bee,

which had been fulminated at his desire, were little regarded by the barons, or even by the clergy, supported in this resistance by the firmness of their archbishop, who acted with great vigour in the cause of the barons, and even delivered into their hands the fortress of Rochester, one of the most important places in the kingdom. After much meditation, the king at last resolved upon a measure of the most extreme kind, extorted by shame, revenge, and despair; but considering the disposition of the time, much the most effectual, that could be chosen. He despatched emissa ries into France, into the low countries and Germany, to raise men for his service. He had recourse to the same measures to bring his kingdom to obedience, which his predecessor, William, had used to conquer it. He promised to the adventurers in his quarrel the lands of the rebellious barons; and it is said, even empowered his agents to make charters of the estates of several particulars. The utmost success attended these negotiations, in an age when Europe abounded with a warlike and poor nobility; with younger brothers, for whom there was no provision in regular armies; who seldom entered into the church, and never applied themselves to commerce; and when every considerable family was surrounded by an innumerable multitude of retainers and dependents, idle, and greedy of war and pillage. The crusade had universally diffused a spirit of adventure; and if any adventure had the pope's approbation, it was sure to have a number of followers.

John waited the effect of his measures. He kept up no longer the solemn mockery of a court, in which a degraded king must always have been the lowest object. He retired to the Isle of Wight; his only companions were sailors and fishermen, among whom he became extremely popular. Never was he more to be dreaded than in this sullen retreat; whilst the parons, amused themselves by idle jests and vain conjectures on his conduct. Such was the strange want of foresight in that barbarous age, and such the total neglect of design in their affairs, that the barons, when they had got the charter, which was weakened even by the force by which it was obtained, and the great power, which it granted, set no watch upon the king; seemed to have no intelligence of the great and open machinations which were carrying on against them, and had made no sort of dispositions for their defence. They spent their time in tournaments and bear-baitings, and other diversions suited to the fierce rusticity of their manners. At length the storm

broke forth, and found them utterly unpro vided. The papal excommunication, the indignation of their prince, and a vast army of lawless and bold adventurers, were poured down at once upon their heads. Such numbers were engaged in this enterprize, that forty thousand are said to have perished at sea. Yet a number still remained sufficient to compose two great armies: one of which, with the enraged king at its head, ravaged without mercy the north of England; whilst the other turned all the west to a like scene of blood and desolation. The memory of Stephen's wars was renewed with every image of horrour, misery, and crime. The barons, dispersed and trembling in their castles, waited who should fall the next victim. They had no army able to keep the field. The archbishop, on whom they had great reliance, was suspended from his functions. There was no hope even from submission; the king could not fulfil his engagements to his foreign troops at a cheaper rate than the utter ruin of his barons. In these circumstances of despair, they resolved to have recourse to Philip, the antient enemy of their country. Throwing off all allegiance to Jonn, they agree to accept Lewis, the son of that monarch, as their king. Philip had once more an opportunity of bringing the crown of England into his family, and he readily embraced it. He immediately sent his son into England with seven hundred ships, and slighted the menaces and excommunications of the pope, to attain the same object for which he had formerly armed to support and execute them The affairs of the barons assumed quite a new face by this reinforcement; and their rise was as sudden and striking as their fall. The foreign army of King John, without discipline, pay or order, ruined and wasted in the midst of its successes, was little able to oppose the natural force of the country, called forth and recruited by so considerable a succour. Besides, the French troops, who served under John, and made a great part of his army, immediately went over to the enemy; unwilling to serve against their sovereign in a cause which now began to look desperate. The son of the king of France was acknowledged in London, and received the homage of all ranks of men. John, thus deserted, had no other ally than the pope, who indeed served him to the utmost of his power; but with arms, to which the circumstances of the time alone can give any force. He excommunicated Lewis and his adherents; he laid England under an interdict he thereatened the king of France himself with

the same sentence; but Philip continued firm, and the interdict had little effect in England. Cardinal Langton, by his remarkable address, by his interest in the sacred college, and his prudent submissions, had been restored to the exercise of his office; but steady to the cause he had first espoused, he made use of the recovery of his authority to carry on his old designs against the king and the pope. He celebrated divine service in spite of the interdict; and by his influence and example taught others to despise it. The king, thus deserted, and now only solicitous for his personal safety, rambled, or rather fled, from place to place, at the head of a small party. He was in great danger in passing a marsh in Norfolk, in which he lost the greatest part of his baggage, and his most valuable effects. With difficulty he escaped to the monastery of Swinestead; where, violently agitated by grief and disappointments, his late fatigue, and the use of an improper diet threw him into a fever, of which he died in a few days at Newark, not without suspicion of poison, after a reign, or rather a struggle to reign, for eighteen years, the most turbulent and calamitous both to king and people, of any that are recorded in the English history.

It may not be improper to pause here for a few moments, and to consider a little more minutely the causes which had produced the grand revolution in favour of liberty, by which this reign was distinguished; and to draw all the circumstances which led to this remarkable event into a single point of view. Since the death of Edward the Confessour, only two princes succeeded to the crown upon undisputed titles. William the conquerour established his by force of arms. His successours were obliged to court the people, by yielding many of the possessions and many of the prerogatives of the crown; but they supported a dubious title by a vigorous administration; and recovered by their policy, in the course of their reign, what the necessity of their affairs obliged them to relinquish for the establishment of their power. Thus was the nation kept continnally fluctuating between freedom and servitude. But the principles of freedom were predominant, though the thing itself was not yet fully formed. The continual struggle of the clergy for the ecclesiastical liberties laid open at the same time the natural claims of the people; and the clergy were obliged to shew some respect for those claims, in order to add strength to their own party. The concessions which Henry the Second made to the ecclesiastics on the death of Becket, which

were afterwards confirmed by Richard the First, gave a grievous blow to the authority of the crown; as thereby an order of so much power and influence triumphed over it in many essential points. The latter of these princes brought it very low by the whole tenour of his conduct. Always abroad, the royal authority was felt in its full vigour, without being supported by the dignity, or softened by the graciousness of the royal presence. Always in war, he considered his dominions only as a resource for his armies. The demesnes of the crown were squandered. Every office in the state was made vile by being sold. Excessive grants, followed by violent and arbitrary resumptions, tore to pieces the whole contexture of the government. The civil tumults, which arose in that king's absence, showed that the king's lieutenants at least might be disobeyed with impunity.

more.

Then came Jonn to the crown. The arbitrary taxes which he imposed very early in his reign, which offended even more by the improper use made of them than their irregularity, irritated the people extremely, and joined with all the preceding causes to make his government contemptible. Henry the Second, during his contests with the church, had the address to preserve the barons in his interests. Afterwards, when the barons had joined in the rebellion of his children, this wise prince found means to secure the bishops and ecclesiastics. But John drew upon himself at once the hatred of all orders of his subjects. His struggle with the pope weakened him; his submission to the pope weakened him yet The loss of his foreign territories, besides what he lost along with them in reputation, made him entirely dependent upon England; whereas his predecessors made one part of their territories subservient to the preservation of their authority in another, where it was endangered. Add to all these causes the personal character of the king, in which there was nothing uniform or sincere, and which introduced the like unsteadiness into all his government. He was indolent, yet restless in his disposition; fond of working by violent methods, without any vigour; boastful, but continually betraying his fears; showing, on all occasions, such a desire of peace as hindered him from ever enjoying it. Hav ing no spirit of order, he never looked forward; content, by any temporary expedient, to extricate himself from a present difficulty. Rash, arrogant, perfidious, irreligious, unquiet, he made a tolerable head of a party, but a bad king; and had talents fit to disturb another's

government, not to support his own. A most striking contrast presents itself between the conduct and fortune of John, and his adversary Philip. Philip came to the crown when many of the provinces of France, by being in the hands of too powerful vassals, were in a manner dismembered from the kingdom: the royal authority was very low in what remained. He re-united to the crown a country as valuable as what belonged to it before; he reduced his subjects of all orders to a stricter obedience than they had given to his predecessors. He withstood the papal usurpation, and yet used it as an instrument in his designs; whilst John, who inherited a great territory and an entire prerogative, by his vices and weakness, gave up his independency to the pope, his prerogative to his subjects, and a large part of his dominions to the king of France.

CHAPTER IX.

FRAGMENT.-AN ESSAY TOWARDS AN HIS

TORY OF THE LAWS OF ENGLAND.

THERE is scarce any object of curiosity more rational than the origin, the progress, and the various revolutions of human laws. Political and military relations are for the greater part accounts of the ambition and violence of mankind; this is an history of their justice. And surely there cannot be a more pleasing speculation than to trace the advances of men, in an attempt to imitate the Supreme Ruler in one of the most glorious of his attributes; and to attend them in the exercise of a prerogative which it is wonderful to find entrusted to the management of so weak a being. In such an inquiry we shall indeed frequently see great instances of this frailty; but at the same time we shall behold such noble efforts of wisdom and equity, as seem fully to justify the reasonableness of that extraordinary disposition, by which men, in one form or other, have been always put under the dominion of creatures like themselves. For what can be more instructive than to search out the first obscure and scanty fountains of that jurisprudence which now waters and enriches whole nations with so abundant and copious a flood:-to observe the first principles of RIGHT springing up, involved in superstition and polluted with violence; until, by length of time and favourable circumstances, it has worked itself into clearness:

the laws, sometimes lost and trodden down in the confusion of wars and tumults, and sometimes over-ruled by the hand of power; then victo rious over tyranny; growing stronger, clearer, and more decisive by the violence they had suffered; enriched even by those foreign conquests which threatened their entire destruction; softened and mellowed by peace and religion; improved and exalted by commerce, by social intercourse, and that great opener of the mind, ingenuous science?

But

These certainly were great encouragements to the study of historical jurisprudence, particularly of our own. Nor was there a want of materials or help for such an undertaking. Yet we have had few attempts in that province. Lord Chief Justice Hale's history of the common law is, I think, the only one, good or bad, which we have. with all the deference justly due to so great a name, we may venture to assert that this performance, though not without merit, is wholly unworthy of the high reputation of its author The sources of our English law are not well, nor, indeed, fairly laid open; the antient judicial proceedings are touched in a very slight and transient manner; and the great changes and remarkable revolutions in the law, together with their causes, down to his time, are scarcely mentioned.

Of this defect I think there were two prin cipal causes; the first, a persuasion hardly to be eradicated from the minds of our lawyers, that the English law has continued very much in the same state from an antiquity to which they will allow hardly any sort of bounds. The second is, that it was formed and grew up among ourselves; that it is in every respect peculiar to this island; and that if the Roman or any foreign laws attempted to intrude into its composition, it has always had vigour enough to shake them off, and return to the purity of its primitive constitution.

These opinions are flattering to national vanity and professional narrowness. And though they involved those that supported them in the most glaring contradictions, and some absurdities even too ridiculous to mention, we have always been, and in a great measure still are, extremely tenacious of them. If these principles are admitted, the history of the law must in a great measure be deemed superfluous. For to what purpose is a history of a law, of which it is impossible to trace the beginning, and which, during its continuance, has admitted no essential changes? Or why should we search foreign laws or histories, for explanation or ornament of that which is

wholly our own; and by which we are effectually distinguished from all other countries? Thus the law has been confined and drawn up into a narrow and inglorious study. And that, which should be the leading science in every well-ordered commonwealth, remained in all the barbarism of the rudest times, whilst every other advanced by rapid steps to the highest improvement, both in solidity and elegance; insomuch that the study of our jurisprudence presented to liberal and well educated minds, even in the best authors, hardly any thing but barbarous terms, ill explained; a coarse, but not a plain expression, an indigested method, and a species of reasoning, the very refuse of the schools; which deduced the spirit of the law, not from original justice or legal conformity, but from causes foreign to it, and altogether whimsical. Young men were sent away with an incurable, and if we regard the manner of handling rather than the substance, a very well-founded disgust. The famous antiquary, Spelman, though no man was better formed for the most laborious pursuits, in the beginning deserted the study of the law in despair, though he returned to it again, when a more confirmed age, and a strong desire of knowledge enabled him to wrestle with every difficulty.

The opinions which have drawn the law into such narrowness, as they are weakly founded, so they are very easily refuted. With regard to that species of eternity, which they attribute to the English law, to say nothing of the manifest contradictions in which those involve themselves who praise it for the frequent improvements it has received, and at the same time value it for having remained without any change in all the revolutions of government; it is obvious, on the very first view of the Saxon laws, that we have entirely altered the whole frame of our jurisprudence since the conquest. Hardly can we find in these old collections a single title which is law at this day; and one may venture to assert without much hazard, that if there were at present a pation governed by the Saxon laws, we should und it difficult to point out another so entirely different from every thing we now see established in England.

This is a truth which requires less sagacity than candour to discover. The spirit of party, which has misled us in so many other particulars, has tended greatly to perplex us in this matter. For as the advocates for prerogative would, by a very absurd consequence drawn from the Norman conquest, have made all our national rights and liberties to have arisen from

the grants, and therefore to be revocable at the will of the sovereign; so on the other hand, those who maintained the cause of liberty did not support it upon more solid principles. They would hear of no beginning to any of our privileges, orders, or laws; and, in order to gain them a reverence, would prove that they were as old as the nation; and to support that opinion, they put to the torture all the antient monuments. Others, pushing things further, have offered a still greater violence to them. N. Bacon, in order to establish his republican system, has so distorted all the evidence he has produced, concealed so many things of consequence, and thrown such false colours upon the whole argument, that I know no book so likely to mislead the reader in our antiquities, if yet it retains any authority. In reality, that antient constitution and those Saxon laws make little or nothing for any of our modern parties; and when fairly laid open, will be found to compose such a system as none, I believe, would think either practicable or desirable to establish. I am sensible that nothing has been a larger theme of panegyric, with all our writers on politics and history, than the Anglo-Saxon government. And it is impossible not to conceive a high opinion of its laws, if we rather consider what is said of them than what they visibly are. These monuments of our pristine rudeness still subsist; and they stand out of themselves indisputable evidence to confute the popular declamations of those writers, who would persuade us, that the crude institutions of an unlettered people had reached a perfection which the united efforts of inquiry, experience, learning and necessity have not been able to attain in many ages.

But the truth is, the present system of our laws, like our language and our learning, is a very mixed and heterogeneous mass; in some respects our own; in more, borrowed from the policy of foreign nations; and compounded, altered, and variously modified, according to the various necessities which the manners, the religion, and the commerce of the people have at different times imposed. It is our business, in some measure, to follow and point out these changes and improvements; a task we undertake, not from any ability for the greatness of such a work, but purely to give some short and plain account of these matters to the very ignorant.

The law of the Romans seems utterly to have expired in this island, together with their empire, and that too before the Saxon establishThe Anglo-Saxons came into England

ment.

as conquerours. They brought their own customs with them; and doubtless did not take laws from, but imposed theirs upon the people they had vanquished. These customs of the conquering nation were without question the same, for the greater part, they had observed before their migration from Germany. The best image we have of them is to be found in Tacitus. But there is reason to believe that some changes were made suitable to the cırcumstances of their new settlement, and to the change their constitution must have undergone by adopting a kingly government, not indeed with unlimited sway, but certainly with greater powers than their leaders possessed whilst they continued in Germany. However, we know very little of what was done in these respects until their conversion to Christianity; a revolution which made still more essential changes in their manners and government. For, immediately after the conversion of Ethelbert, king of Kent, the missionaries, who had introduced the use of letters, and came from Rome full of the ideas of the Roman civil establishment, must have observed the gross defect arising from a want of written and permanent laws. The king,* from their report of the Roman method, and in imitation of it, first digested the most material customs of this kingdom into writing, without having adopted any thing from the Roman law, and only adding some regulations for the support and encouragement of the new religion. These laws still exist, and strongly mark the extreme simplicity of manners, and poverty of conception, of the legislators. They are written in the English of that time; and indeed all the haws of the Anglo-Saxons continued in that anguage down to the Norman conquest. This was different from the method of the other northern nations, who made use only of the Latin language in all their codes. And I take the difference to have arisen from this: At the time when the Visigoths, the Lombards, the Franks, and the other northern nations on the continent compiled their laws, the provincial Romans were very numerous among them, or indeed composed the body of the people. The Latin language was yet far from extinguished; so that as the greatest part of those who could write were Romans, they found it difficult to adapt their characters to these rough northern tongues, and therefore chose to write in Latin; which, though not the language of the legisla tor, could not be very incommodious, as they

* Decreta illa judiciorum juxta exemplar Romanorum cum consilio sapientum constituit. Beda. Eccl. Hist. lib. 2, c. 5

VOL. II.---38

could never fail of interpreters; and for this reason, not only their laws, but all their ordinary transactions, were written in that language. But in England, the Roman name and language having entirely vanished in the seventh century, the missionary monks were obliged to contend with the difficulty, and te adapt foreign characters to the English lan guage; else none but a very few could possibly have drawn any advantage from the things they meant to record. And to this it was owing, that many, even the ecclesiastical constitutions, and not a few of the ordinary evidences of the land, were written in the language of the country.

This example of written laws being given by Ethelbert, it was followed by his successors Edric and Lothaire. The next legislator among the English was Ina, king of the West Saxons, a prince famous in his time for his wisdom and his piety. His laws, as well as those of the above-mentioned princes, still subsist. But we must always remember, that very few of these laws contained any new regulation; but were rather designed to affirm their antient customs, and to preserve and fix them; and accordingly they are all extremely rude and imperfect. We read of a collection of laws by Offa, king of the Mercians; but they have been long since lost.

The Anglo-Saxon laws, by universal consent of all writers, owe more to the care and sagacity of Alfred than of any of the antient kings. In the midst of a cruel war, of which he did not see the beginning, nor lived to see the end, he did more for the establishment of order and justice than any other prince has been known to do in the profoundest peace. Many of the institutions attributed to him, undoubtedly were not of his establishment; this shall be shown when we come to treat more minutely of the institutions. But it is clear that he raised as it were from the ashes, and put new life and vigour into the whole body of the law, almost lost and forgotten in the ravages of the Danish war; so that having revived, and in all likelihood improved, several antient national regulations, he has passed for their author with a reputation perhaps more just than if he had invented them. In the prologue, which he wrote to his own code, he informs us that he collected there whatever appeared to him the most valuable in the laws of Ina and Offa, and others of his progenitors, omitting what he thought wrong in itself, or not adapted to the time; and he seems to have done this with no small judgment. The princes who succeeded him, having b