are chiefly penal codes, or set forth laws of a civil nature, -such laws as would be necessary for the internal government of a people who were just emerging from a state of barbarous society. All these early French charters regulate the rights and the amount of personal protection for individuals, but are entirely silent on the subject of imports, and on every thing connected with commerce. Now, whilst the Leges Quatuor Burgorum recognise the necessity of guarding individual liberty, and of repressing disorder and anarchy, they provide for the security of the common health, they prohibit the entrance of lepers into the town, they ordain laws for bakers and brewers, for the butchers and hucksters, and moreover enter into so many minor considerations for the public good, that they are vastly in advance of all other charters of the period.* Indeed, it must be confessed that it is far from improbable that these laws, which are attributed to David I., should have been made at the more civilised time of David II., as it is exceedingly difficult to reconcile the mercantile provisions they enforce with the low and semi-barbarous state of society then existing. The learned editor of the first volume of the Acts of Parliament of Scotland makes no exceptions as to the age of these laws. It is therefore necessary to express the conviction, that of the hundred and nineteen chapters of the Leges Quatuor Burgorum, eighteen are identical, as he has shown, with the laws and customs of the burgesses of Newcastle, which are reputed to be of the reign of Henry I. These laws are also in the charter given by Pudsey to the men of Sunderland. The remainder may have been inserted by consultation with other boroughs at various later periods, down to the middle of the fourteenth century. These regulations were probably suggested by the burghers themselves, and confirmed by the king, with the advice and consent of some of the principal magnates of the realm. There was no regularly constituted Parliament in Scotland, or any national council bearing the title, until the one assembled by Baliol at Scone in 1292; and, indeed, at this time * As illustrations of these remarks, it is only necessary to refer to the ordinances, De lana emenda et tingenda: De eo qui habuerit plures uxores: Quod vir pro uxore respondere possit: De annuo redditu brasiatricum: De mensuris et ponderibus: Quod ballivi non vendant panem nec cervisiam: De pistoribus et venditoribus piscium: De consuetudinibus in furno: De officio carnificum: De regratariis: De vendentibus generaliter in burgo: De precone consentiente falsitati: De sutore tannante, &c. the legislative character was so very imperfectly developed, that the convention three years later, which ratified the alliance betwixt Scotland and France, was the first which recognised the assent of the burghs, in addition to that of the bishops, earls, and barons. England was but little in advance as respected the liberties of the burgesses at the same time, they being first summoned to the national councils 25 Edward I. (1296-1297). It was, however, at the Parliament held July 15, 1326, at Cambuskenneth, when Bruce demanded from his subjects the means of carrying on the war, that the third estate became first fused into the Scottish legislative assemblies. The other official acts of David I. were simply charters to Dunfermlyn, Holy Rood, and Stivelyn. Malcolm IV. has only left two charters, one to Dunfermlyn, the other to Scone. The assise of William is in most points more full than the one just mentioned; but its provisions were the work of several years; the first belonging to 1175 (de redemptione furti), and the last, that is dated, belonging to 1209 (de molendinis et multuris). The regulations chiefly concern pleas, personal liberty, replevins, or theft. There were eighteen other judicial acts of this reign, but they refer chiefly to grants or confirmations of ecclesiastical property. The statutes enacted by Alexander II., from 1214 to 1248, partake of the same character as the clauses in the assise of his father, and were evidently the result of careful consideration. In the last year of his reign (1249) he published a code of Border laws. In this work he was assisted by twenty-four knights belonging to both kingdoms, who were sworn on the part of Henry III. by Richard de Charny, sheriff of Northumberland, and by the sheriffs of Roxburgh and Berwick for the king of Scotland, to make a true return. These Border laws being the most ancient that remain, it will be worth while to give them a little attention; and they will tend, moreover, to throw some light upon the relations then subsisting and the maxims of justice held in common between the two kingdoms. The Leges Marchiarum, or Laws of the Marches, derive their title from the Anglo-Saxon mearc, German mark, Low-Latin marchia, limes,' a boundary, or as defined by Selden, and applied to the Welsh and English Borders, which were equally under a special jurisdiction like the Scotch, "by the march* understand those limits between England and Wales, which, continuing from north to south, join the Welsh shires to Hereford, Shropshire, and the English part."† Although Edward I. had not conquered Wales in the third year of his reign (1275), he claimed, in the statute of Westminster, the sovereignty of redressing all plaints on those marches where his writ was not current. It was not until the 28th of Edward III. (1354) that the Lords Marches became permanently under the jurisdiction of the English crown. The Leges Marchiarum of Alexander II. contain fourteen clauses. They relate to homicide, duel, methods of recovering fugitive bondsmen, and debts, modes of swearing, recovery of stolen goods, determination of sureties, safeconduct for malefactors, and procedure against the different ranks of men for debt. Amongst these provisions, the trial by duel, ❝ad bellum faciendum," is referred to in no less than seven of the articles. It would be difficult to conceive any testimony more characteristic of a sanguinary age than what is here exhibited. Nor is this their only reprehensible feature; for what personal combat failed to establish or vindicate was left to be purged by an oath, which one party would be under a strong temptation to violate, and the falsehood of which nothing except the transgressor's conscience could disprove. The credibility of all witnesses was the same. The chances of just retribution, and of perfect freedom from punishment, were equally balanced, so that no Robert of earlier date, nor had the Cliffords any connection with the Borders till their intermarriage with the Viponts (circa 1265), of whom Robert's mother was the sole heir. The difficulty may, however, be got over without impeaching the general authenticity of the document, on the assumption that the date has been vitiated, and should have been at least half a century later. Against this, it may be urged, that these laws with the date 1249 occur in the Berne Ms., which the learned author of the Preface to the Acts of Parliament of Scotland assigns to the reign of Henry III., or the early part of that of Edward I. It may, however, be suggested as a question worthy of consideration, whether the handwriting of the Ms., of which a fac-simile is given, justifies the antiquity claimed for it. in reality there was no certainty of crime receiving its proper desert. The law of duel was introduced into England by William the Conqueror, who, however, left recourse to it optional both with the English and the Normans, offering them the choice of combat or of judgment by compurgation.* There is not any direct mention of wager by battle in the AngloSaxon laws, and we are therefore hardly warranted in supposing that the practice, though of Teutonic origin, was customary before his edict legalised its adoption. The only mode of purgation we read of before his arrival was by ordeal; and the regulations concerning this are so exceedingly numerous and minute, that had judgment by duel been previously sanctioned, it would undoubtedly have been noticed. The assise of King David I. (1124-1155) very closely imitated this provision, as will be seen by reference to the note; and it continued to form a feature, not only in the laws of Scotland during the reigns of all the sovereigns down to the fifteenth century, but in those of England to the most recent period. There were numerous exemptions from deciding a case by duel; for instance, a man of the age of sixty was free from this proof: the Fragmentary Scotch Laws mention others; and the Regiam Majestatem gives the offender the choice of combat or assise.T It would be tedious and unnecessary to pursue the various regulations that were made concerning duel; but two things occur that are remarkable. In the first place, this practice, so common in the north-east of Europe, was viewed much more philosophically in the south. The Neapolitan con *Ancient Laws and Institutes, v. i. p. 489. †The second clause of David's assise runs thus: "Si quis appellat aliquem de furto in curia regis vel in aliqua alia curia fit in libitum appellati utrum velit duellum vel purgacionem duodecim fidelium hominum cum clengyng de uno hirdman accipere." William's Charter de Appellatis pro aliquo maleficio is as follows. The first clause will suffice to show its resemblance. "Si Anglicus homo compellat aliquem Francigenam per bellum, de furto, vel homicidio, vel aliqua re pro qua bellum fieri debeat, vel judicium inter duos homines, habeat plenam licentiam hoc faciendi. Et si Anglicus bellum nolit Francigena compellatus adlegiet de jurejurando contra eum per testes suos, secundum legem Normanniæ." It was only set aside by 59th Geo. III. c. 46, in an act entitled, "An act to abolish appeals of murder, felony, treason, or other offences, and wager of battle, or joining issue and trial by battle in writs of right." The case of Mary Ashford, who was murdered by Thornton, the trial of which took place at the Warwickshire Summer Assizes 1817, gave rise to the foregoing act. See full details of the proceedings in Barnewall and Alderson's Reports, 405. § Regiam Majestatem, iv. 2. stitutions, supposed to have been made by Roger and his successors down to Frederick II. (1154-1250), not only interdict the practice, but assign as the reason its inconsistency with the common law of nature. Here may be observed the nascent element of civilisation struggling against barbarism. Secondly, the whole principle involved in the law of duel was anomalous, since it showed no distinction in the nature of crime. Whilst, on the one hand, neither homicide nor even murder were held capital, on the other, the committal of a crime of equal magnitude with one of the offences was even taken as an expiation for both. In the whole of the Anglo-Saxon laws, fine is the common mode of punishment. The most strange and unnatural ideas were prevalent about the sanctity of civil liberty and the preservation of life. Take merely a few instances, in proof of the severity or the useless lenity with which dif ferent offences were viewed by the legislature. We will look at the English laws first. Ethelbirht decreed, that if a man slew another in the king's township, he was to make recompense with fifty shillings; but if it was done in an earl's, the fine was reduced to twelve.t The loss of an eye was estimated at the former sum. The Conqueror fixed the price of murder at forty-seven marcs; but if a thief was detected in the land of any one, the owner and the wife of the culprit should share his goods. The assise of David decreed, that if a man slew another, he should give to the king twenty-nine cows and a heifer;§ if any one killed another's dog, he should watch upon the owner's dunghill for a year and a day. But if a man sell a convicted thief, he should forfeit thirty-four cows to the king. The whole of the ancient laws, Anglo-Saxon, Scotch, Welsh, Visigothic, Salic, Burgundian, Longobardic, &c., are full of such notions; and they proclaim the most extraordinary mixture of cruelty and absurdity, of tyranny and leniency, that could well be framed. No wonder, then, that under such a code the subjects themselves were degraded; that they became reckless of their own lives, and ferocious and brutal towards their enemies. And if such an utter disregard of common humanity and justice was manifested 33. * Constitutionum Sicularum, 1. ii. tit. † Ancient Laws and Institutes, v. i. p. 5. Ib. 7, p. 15. Assise Regis David, xiv. |