L A W. 379 
ambitious, and a politic, prince to create. The confci- 
ences of men were enflaved by four ecclefiallies, devoted 
to a foreign power, and unconnected with the civil Itate 
under which they lived ; who now imported from Rome 
for the firft time the whole farrago of fuperftitious novel¬ 
ties, which had been engendered, by the blindnels and 
corruption of the times, between the frit million of Au- 
guftine the monk and the Norman conqueft; fuch as 
tranfubftantiation, purgatory, communion in one kind, 
and the worlhip of faints and images; not forgetting the 
univeffal fupremacy and dogmatical infallibility of the 
holy fee. The laws too, as well as the prayers, were ad- 
miniltered in an unknown tongue. The ancient trial by 
jury gave way to the impious decifion by battle. The 
foreft-laws totally refrained all rural pleafures and manly 
recreations. And in cities and towns the cafe was no 
better; all company being obliged to difperfe, and fire 
and candle to be extinguilhed, by eight at night, at the 
found of the melancholy curfeu. The ultimate property 
of all lands, and a conliderable fhare of the prefent pro¬ 
fits, were vefed in the king, or by him granted out to his 
Norman favourites; who, by a gradual progrefion of 
flavery, were abfolute vaffals to the crown, and as abfo- 
lute tyrants to the commons. Unheard-of forfeirures, 
talliages, aids, and fines, were arbitrarily extracted from 
the pillaged land-holders, in purfuance of the new fyftem 
of tenure. And to crown all, as a confequence of the 
tenure by knight-fervice, the king had always ready at 
his command, an army of fixty thoufand knights, or mi- 
lites ; who were bound, upon pain of confifcating their 
efiates, to attend him in time of invafion, or to quell any 
domeltic infurreCtion. Trade or foreign merchandife, fuch 
as it then was, was carried on by the Jews and Lombards; 
and the very name of an Englifh fleet, which king Edgar 
had rendered fo formidable, was utterly unknown to Eu¬ 
rope ; the nation confifling wholly of the clergy, who 
were alfo the lawyers, the barons, or great lords of the 
land; the knights, or foldiery, who were the fubordinate 
land-holders ; and the burghers, or inferior tradefmen, 
who from their infignificancy happily retained, in. their 
focage and burgage tenure, fome points of their ancient 
freedom. All the reft* were villains, or bondman. 
From fo complete and well-concerted a fcheme of fer- 
vility, it has been the work of generations for our ancef- 
tors to redeem themfelves and their polferity into that 
ftate of liberty which we now enjoy; and which therefore 
is not to be looked upon as confuting of mere encroach¬ 
ments on the crown, and infringements on the preroga¬ 
tive, as fome flavifh and narrow-minded writers in the 17th 
century endeavoured to maintain ; but as, in general, a 
gradual reftoration of that ancient conftitution, whereof 
our Saxon forefathers had been unjuftly deprived, partly 
by the policy, and partly by the force, of the Norman. 
How that reftoration has, in along feries of years, been Itep 
by Itep effected, we now proceed to inquire. 
William Rufus proceeded on his father’s plan, and in 
fome points extended it, particularly with regard to the 
foreft-law's. But his brotherand fuccefior Henry I. found 
it expedient, when he firft came to the crown, to ingrati¬ 
ate himfelf with the people; by reltoring (as our mOnkifh 
hiltorians tell us) the laws of king Edward the Confeflor. 
The ground whereof is this ; that by charter he gave up 
the great grievances of marriage, ward, and relief, the be¬ 
neficial pecuniary fruits of his feodal tenures ; but re- 
ferved the tenures themfelves, for the fame military pur- 
pofep that his father introduced them. He alfo abolifhed 
the curfeu ; for, though it is mentioned in our laws a full 
century afterwards, yet it is rather fpoken of as a known 
time of night (fo denominated from that abrogated ufage) 
than as a Itill-fubfifting cuftcm. There is extant a code 
of laws in his name, confifling partly of thofe of the C011- 
feflor, but with great additions and alterations of his 
ow'u ; and chiefly calculated for the regulation of the coun¬ 
ty-courts. It contains fome directions as to crimes and 
their punifhments, (that of theft being made capital in. 
his reign,) and a few things relating to eftates, particu¬ 
larly as to the defeent of lands, which, being by the Saxon 
laws equally to all the fons, by the feodal or Norman to 
the eldeA only, king Henry here moderated the differ¬ 
ence ; directing the eldelt fon to have only the principal 
eflate, primum patris feudwn, the reft of his eftates, if he 
had any others, being equally divided among them all. 
On the other hand, he gave up to the clergy the free elec¬ 
tion of bifhops and mitred abbots ; referving however 
thefe enfigns of patronage, conge d'Hire, cuftody of the 
temporalties when vacant, and homage upon their refti- 
tution. He laftly united again for a time the civil and 
ecclefiaftical courts, which union was foon diflolved by 
his Norman clergy; and, upon that final diflolution, the 
cognizance of teftamentary caufes feems to have been firit 
given to the ecclefiaftical court. The reft remained as in 
his father’s time ; from whence we may eafily perceive 
how far fliort this was of a thorough reftitution of king 
Edward’s or the Saxon laws. 
The ufurper Stephen, as the manner of ufurpers is, 
promifed much at his acceflion, efpecially with regard to 
redreflingthc grievances of the foreft-laws; but performed 
no great matter in that or in any other point. It is from 
his reign, however, that we are to date the introduction 
of the Roman civil and canon laws into this realm ; and 
at the fame time was imported the doCtrine of appeals to 
the court of Rome, as a branch of the canon-law. 
By the time of king Henry II. if not earlier, the char¬ 
ter of Henry I. feems to have been forgotten; for we find 
the claim of marriage, ward, and relief, then flourilhing 
in full vigour. The right of primogeniture feems alfo to 
have tacitly revived, being found more convenient for 
the public than the parcelling of eftates into a multitude 
of minute fubdivifious. However in this prince’s reign 
much was done to methodife the laws, and reduce them 
into a regular order; as appears from that excellent trea- 
tifeof Gian vil; which, though fome of it be now antiquated 
and altered, yet, when compared with the code of Henry I. 
it carries a manifell: fuperiority. Throughout his reign 
alfo was continued the important ftruggle which we have 
had occafion fo often to mention, between the laws of 
England and Rome; the former fupported by the ftrength 
of the temporal nobility, when endeavoured to be fup~ 
planted in favour of the latter by the popilh clergy. 
Which difpute was kept on foot till the reign Edward I. 
when the laws of England, under the new difeipline in¬ 
troduced by that fkilful commander, obtained a complete 
and permanent victory. 
In the prefent reign of Henry II. there are four things 
which peculiarly merit the attention of a legal antiqua¬ 
rian. 1. The conftitutions of the parliament at Claren¬ 
don, A. D. 1164, whereby the king checked the power of 
the pope and his clergy, and greatly narrowed the total ex¬ 
emption they claimed from the fecular jurifdiflion ; though 
his farther progrefs was unhappily flopped, by the fatal 
event of the difputes between him and archbifhop Becket. 
2. The inftitution of the juftices in eyre, in itinere-, the 
king having divided the kingdom into fix circuits, (a lit¬ 
tle different from the prefent,) and commifiioned thefe 
new-created judges to adminifter juftice, and try writs of 
affife, in the feveral counties. Thefe remedies are faid to 
have been then firft invented, before which all caufes were 
ufually terminated in the county-courts, according;to the 
Saxon cuftom; or before the king’s jufticiaries in the aula 
regis, in purfuance of the Norman regulations. The lat¬ 
ter of which tribunals, travelling about with the king’s 
perfon, occafioned intolerable expenfe and delay to the 
(tutors ; and the former, however proper for little debts 
and minute actions, where even injuftice is better than 
procraftinatiors, were now become liable to too much ig¬ 
norance of the law, and too much partiality as to farfs, 
to determine matters of confiderable moment. 3. The 
introduction and eftablifhment of the grand affife, or trial 
by a fpecial kind of jury in a writ of right at the option 
of the tenant or defendant, iilftead of the barbarous and 
Normans 
