6

and Foreigner (peregrinus), or between Foreigner and Foreigner when in Rome. From what we can gather, we appear justified in saying that he began by relying upon his common sense, or, as the Romans styled it, upon 'The law of nature.' Decisions based upon that law were styled Equity,' the law of nature making no distinction between Roman and Peregrinus. We cannot afford the space to trace the interesting progress of this new law: suffice it to say, that it soon found such favour with the Romans as to make veneration for the Twelve Tables their sole security. The Legis Actiones gave place to the Formulæ. Between A.D. 125 and A.D. 228 (about), the greatest jurists that the world has produced, men who delighted in principle, flourished and died. The shelves and brains of their successors became overloaded with precedents. Finally, in A.D. 529, Justinian published his First Code; in A.D. 532, his Pandects; in A.D. 533, his Institutes; and in A.D. 534, his Second Code, or that which we now possess, and declared those works alone to be of legal authority. Had not the ruthless barbarians shaken Rome to its very foundations, it is more than probable that, ere this, her legal history would, more or less perfectly, have repeated itself. The history of one nation is no mean guide to that of others.

In drawing this chapter to a close, I must observe that a complete treatise upon General Jurisprudence would necessitate the lengthy discussion of many subjects not even referred to in this sketch. Indeed, if my suggestion in the first chapter as to the origin of law is tenable, the science of General Jurisprudence must involve the examination of every branch of law, and the distinguishing between the natural and the artificial

H

principles of each system under consideration. The reader will find, in the work from which I have mainly quoted in this chapter, a rich mine of intellectual wealth; and the more familiar he becomes with the great work of Mr. Austin, the more deeply will he regret that death prevented its being completed as it was commenced.

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CHAPTER III.

OUTLINE OF THE DEVELOPMENT OF THE BRITISH CONSTITUTION, TAKEN CENTURY BY CENTURY, FROM THE ACCESSION OF WILLIAM I. TO THE PRESENT TIME.

ELEVENTH CENTURY-1000 To 1099.

William I., 1066 to 1087. William II., 1087 to 1100.

In this chapter I purpose to trace the development of the British Constitution from the accession of William I. to the present time, with the view of determining the relative political positions of the three Estates of the Realm-the King, the Lords, and the Commons. To do this, it is incumbent upon me to indicate the various checks that have been introduced to restrain the arbitrary exercise of power; and to explain the several guarantees by which the liberty of the subject has been secured. Of the various methods of treating the subject as a whole, that adopted appears to me to be the most satisfactory-to divide the period under consideration into the recognised centuries of our era, instead of into reigns. The advantage of this division will readily be recognised by the general reader, and especially by those who have before them my Chronometrical Chart of the History of England.

The laws prevailing in England at the death of

Harold the 14th of October, A.D. 1066-were the laws commonly called the Laws of Edward the Confessor.1

Sir Matthew Hale says, 'William I., though he is called the Conqueror, and his attaining the crown here is often in history, and in some records, called conquestus Angliæ; yet in truth it was not such a conquest as did, or could alter the laws of the kingdom, or impose laws upon the people per modum conquestûs, or jure belli.' Indeed, William, at his coronation, which took place at Westminster on Christmas Day, A.D. 1066, solemnly declared that he claimed the crown, not jure belli, but jure successionis.4

What, then, were the consequences of the Duke's success? First, it is certain that William took into his hands all the demesne lands of the Crown, which belonged to Edward the Confessor at the time of his death, and avoided all the dispositions and grants thereof made by Harold, during his short reign. And this might be one great end of his making that noble survey in the fourth year of his reign, called Doomsday-read (Doomsday Book), thereby to ascertain what were the possessions of the Crown in the time of the Confessor, and those he entirely resumed. And this is the reason why in some of our old books it is said, ancient demesne is that which was held by King William the Conqueror; and in others it is said, ancient demesne is that which was held by King Edward the Confessor. Whatever appeared to be the Confessor's at the time of his death, was assumed by King William into his own possession. Secondly, it is also certain that no person

1 See chap. v., Municipal Law.

2 He is said never to have surnamed himself 'Conqueror'; nor was he ever so styled in any letters patent or grants executed by him.

3 History of the Common Law of England, p. 94. 4 Hale, p. 106.

:

simply and quatenus an Englishman, was dispossessed of any of his possessions; consequently their land was not pretended unto, as acquired jure belli. Which appears most plainly from the following evidences, viz.:First, that very many of those persons that were possessed of lands in the time of Edward the Confessor, and so returned upon the book of Doomsday, retained the same unto them and their descendants. Secondly, we find that in all times, even suddenly after the Conquest, the charters of the ancient Saxon kings were pleaded and allowed; and titles made and created. by them to lands, liberties, franchises, and regalities, affirmed and adjudged under William I. . . . . Thirdly, many recoveries were had shortly after this Conquest, as well by heirs as successors, of the seisin of their predecessors before the Conquest.'

'But to descend to some particulars. The English persons with whom the Conqueror had to deal were of three kinds, viz.:-First, such as adhered to him against Harold the Usurper; and, without all question, those continued the possession of their lands, and their possessions were rather increased by him than any way diminished. Secondly, such as adhered to Harold, and opposed the Duke, and fought against him; and doubtless, as to these, the Duke, after his victory, used his power, and dispossessed them of their estates;

... and, Thirdly, such as stood neuter, and meddled not on either side during the controversy. And doubtless, for some time after this great change, many of those suffered very much, and were hardly used in their estates, especially such as were of the more eminent sort.'1

1 Hale, p. 112, et seq.