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rural pleasures and manly recreations. And in cities and towns, the case was no better; all company being obliged to disperse, and fire and candle to be extinguished, by eight at night, at the sound of the melancholy curfew.

"The ultimate property of all lands, and a considerable share of the present profits, were vested in the king, or by him granted out to his Norman favourites; who, by a gradual progression of slavery, were absolute vassals to the crown, and as absolute tyrants to the commons. Unheard of forfeitures, talliages, aids, and fines were arbitrarily extracted from the pillaged landholders, in pursuance of the new system of tenure. And, to crown all, as a consequence of the tenure by knight service, the king had always ready at his command an army of sixty thousand knights, or milites; who were bound, upon pain of confiscating their estates, to attend him in time of invasion, or to quell any domestick insurrection.

"Trade, or foreign merchandise, such as it then was, was carried on by the Jews and Lombards; and the very name of an English fleet, which king Edgar had rendered so formidable, was utterly unknown to Europe: the nation consisting wholly of the clergy, who were also the lawyers; the barons, or great lords of the land; the knights or soldiery, who were the subordinate landholders; and the burghers, or inferiour tradesmen, who, from their insignificancy, happily retained, in their socage and burgage tenure, some points of their ancient freedom. All the rest were villains or bond men.

"From so complete and well concerted a scheme of servility, it has been the work of generations for our

ancestors, to redeem themselves and their posterity into that state of liberty, which we now enjoy: and which, therefore, is not to be looked upon as consisting of mere encroachments on the crown, and infringements of the prerogative, as some slavish and narrow minded writers in the last century endeavoured to maintain; but as, in general, a gradual restoration of that ancient constitution, whereof our Saxon forefathers had been unjustly deprived, partly by the policy, and partly by the force, of the Norman.”1

From the deduction, which we have made, it appears, I think, in a satisfactory manner, that the rich composition of the common law is formed from all the different ingredients, which have been enumerated; yet, when we descend to particular principles and rules, it is very difficult, it is often impossible, to ascertain the particular source, from which such rules and principles have been drawn. That some of our customs have been derived from the Grecians, though probably through the intermediate channel of the Romans; that others of them have been derived immediately from the Romans, others from the Britons, others from the Saxons, and others, in fine, from the Normans, seems to be evinced by the reasonable rules of historical credibility. But to say that such or such a particular custom has descended to us from such and such a particular origin, would be often to hazard too much upon uncertain conjecture. It may, however, be done sometimes, upon facts and arguments, which are clear and convincing: and whenever it can be done, it will amply repay all the care and trouble of the investigation. As has been already mentioned, the most

14. Bl. Com. 411-413.

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proper way to teach and to study the common law, is to teach and to study it as a historical science. Under many titles, we shall have an opportunity of pursuing this method.

Besides those particular instances; of which notice will be taken afterwards; there is one pretty general distribution of the common law, according to which, different parts of it may be referred to different nations, by whom, in all probability, they were introduced.

The original frame of the British constitution, different, indeed, in many important points, from what it now is, and bearing, to some of the constitutions which have lately been formed, and established in America, a degree of resemblance, which will strike and surprise those who compare them together-this venerable frame may be considered as of Saxon architecture. To a Saxon origin may also be ascribed much of that part of the common law, which relates to crimes and punishments. One lovely feature, in particular, we have the pleasure to recognise. The ancient Germans, of whom the Saxons composed a part, discriminated punishments, as we are informed by Tacitus, m according to the kind, and proportioned them according to the measure of the crime. "Liberty," says the celebrated Montesquieu," "is in its highest perfection, when criminal laws derive each punishment from the particular nature of the crime.” With regard to this very interesting part of the law, very wide deviations from Saxon principles have been made

m De mor. Germ. c. 12.

n

Spir. Laws. b. 12, c. 4.

in the English criminal code, since the period of the Norman conquest.

The common law, as it respects contracts and personal property, discovers evident traces of the Roman jurisprudence. It has been the opinion of some, that those parts of the common law have been borrowed from the civil law, subsequent to the great legislative era,. when the pandects of Justinian were discovered at Amalfi: I suggest, merely for consideration at present, a conjecture, that many of those parts were incorporated into the common law, during the long period of near four centuries, when the Roman jurisprudence predominated in England.

Much of the common law respecting real estates, as it has been received in England since the time of William the Conqueror; and a considerable part of it, as it is still received in that kingdom, particularly the feudal principles and policy, should be referred to a Norman extraction.

Concerning the period, at which the feudal system was introduced into England, there has been long and learned controversy among lawyers and antiquarians. "At the close of the first century," says Whitaker in his History of Manchester, "our tenures in Britain appear undeniably to have been purely military in their design, and absolutely feudal in their essence. The primary institution of feuds is unanimously deduced, by our historical and legal antiquarians, from the northern invaders of the Roman empire; and the primary introduction of

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them into this island is almost as unanimously referred to the much more recent epocha of the Norman conquest. But they certainly existed among us before, and even formed the primitive establishment of the Britons," They must have existed coeval with the first plantation of the island. They were plainly the joint result of a colonizing and a military spirit. The former providentially animated the first ages of the Noachida, was constantly prosecuted under the discipline of regular order, and the control of regal authority, and had whole regions to partition among the members of the colony. The latter was excited by the frequent migrations of colonists and the numerous invasions of settlements in the same ages, and naturally provided for the security of the colony, by the institution of a military establishment." P

From Mr. Whitaker's own account, it appears that he is singular in his sentiments with regard to the antiquity of the feudal system. Indeed, if his sentiments are well founded, that system must have been coeval and coextensive with society itself. But from the account which we have already given of the origin and first principles of society, the inference, we apprehend, may be fairly made, that its first ages were ages of equality, perhaps of some culpable degree of license. The opinion is indeed singular-that rule and subordination in the extreme, in other words, tyranny and slavery, should be necessarily extended with the extension of the human

race.

It is remarkable, however, that this very writer makes, with regard to the Saxons, a peculiar exception

P 1. Whitak.262. 264.

9 Ante. vol. 1. p. 306.

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