NOTES.

In reading these Lectures on the subject of England, I took occasion to introduce the following remarks.

WE

I.

E are now in possession of some valuable publications from the pen of Sir James Mackintosh on the subject of English history.

These octavo volumes are intended by the editor for the general reader, and are proposed as a sort of popular history.

But the fact is, that the mind of this eminent man of letters is of too philosophic a nature, too generalizing, and too enlightened, to admit of his writing for any one who can be described by any such term as the general reader. These are not books, unassuming as they may look, that he who runs may read, he who reads must move slowly and stop often. Sir James is one who necessarily thinks in a manner, that however it may afterwards reward, will assuredly first require, the best thinking of any man, who means to be benefited by what he reads.

I must mention too that there is an air of uncertainty about the pages of these little volumes, that renders them very agreeable. It is evidently quite impossible to know, as we proceed, what we are next to find; that is, what a man, so enlightened and so able, may think it worth his while to observe.

We shall probably lose the great work which Sir James projected as a continuation of Hume: this on every account is for ever to be lamented; no one ever had access to such materials, or was so fitted to use them; but the present cabinet volumes will no doubt present to us the most valuable comments, on the most important characters and periods of our history, — but these are treatises on history, not histories.

Since I wrote what you have just heard, this illustrious man of letters has sunk into the grave, from a slight accident and immaturely. No loss can be so great to the literary world. His understanding was of so superior a quality, his memory so astonishing, and his disposition so truly courteous and obliging, that he was always able and always willing to instruct every person who approached him. And on every occasion his entire sympathy with the great interests of mankind, and his enlightened comprehension of them were distinctly marked. He was one of those, whom, for the benefit of others, one could have wished exempt from the common lot of humanity. One could have said to him, as do the Persians to their king, Live for ever." He should have been exempted too from the common cares of our existence, and instead of having to make provision for the day that was going over him, should have had nothing to do but to read, to think, and to write. Men of these great intellectual powers, should not, like their fabled prototype, be chained to their rock with the vultures to tear them.

Some papers remain, which will afford a melancholy indication of what under favorable circumstances he might have done : what he has however done is of great value and will live. He can be properly estimated only by those who were fortunate enough to know him.

II.

Or Mr. Hallam's Constitutional History, I spoke in the following manner in my lectures in November, 1828.

Mr. Hallam's Constitutional History of England I must earnestly recommend, for it is a work of great research, great ability, great impartiality, often of very manly eloquence; the work of an enlightened lawyer, an accomplished scholar, and a steady assertor of the best interests of mankind. It is a source of great satisfaction to me, that such a work exists, for every page is full of statements and opinions on every topic and character of consequence since the reign of Henry the Seventh; and these sentiments and opinions are so learned and well reasoned, that I am quite gratified to think, that the student can now never want a guide and an instructor, worthy to conduct and counsel him in his constitutional inquiries. Mr. Hallam is indeed a stern and severe critic, and the student may be allowed to love and honor many of our patriots, statesmen, and divines, in a more warm and unqualified manner, than does Mr. Hallam; but the perfect calmness of Mr. Hallam's temperament, makes his standard of moral and political virtue high, and the fitter on that account to be presented to youthful minds.

There are objectionable passages and even strange passages, more particularly in the notes; but they are of no consequence in a work of so vast a range, and of so much merit; and Mr. Hallam may have given offence, which could never have been his intention, to some good men, to whom their establishments are naturally so dear; but I see not how this was to be avoided, if he was to render equal justice to all persons and parties, all sects and churches in their turn; and if he was to do his duty, as he has nobly done, to the civil and religious liberties of his country.

III.

THE story of England has of late been illustrated by many intelligent and laborious inquirers. We have had the Roman Catholic case stated by Dr. Lingard, an author of original inquiry and vigorous mind; certainly a very skilful controversial writer. For similar reasons we may now consider ourselves as in possession of the republican case, during the times of Charles the First, for Mr. Godwin has dedicated four volumes to the subject, and for this express purpose. A new edition of Burnet has been given us. The history of Clarendon has at last, very creditably to our sister university, been presented to the public in its original state. Miss Aikin has drawn up interesting memoirs of Queen Elizabeth and James the First, and an important work on the reign of Charles the First: she is a diligent and sagacious writer. There are treatises coming out, volume after volume, by a most entertaining and learned antiquary, Mr. D'Israeli. And we have fierce and elo

quent orations on the merits and demerits of the great personages of our history, ecclesiastical and civil, Laud, Clarendon, and others, in the different reviews by which our periodical literature is now distinguished.

There are several very agreeable and sensible publications by Lord John Russell. Recently has been published a posthumous work of Mr. Coxe, a literary laborer, to whom the historical student is so much indebted, — the Pelham Papers, they supply the information that has been so long wanted, with respect to the politics and characters of the members of the Pelham and Newcastle administrations.

IV.

Edward the Confessor's Laws.

THE laws of Edward the Confessor are lost. The great Alfred was a legislator; and Edward the Confessor is represented as having revised and improved the laws of his predecessor Edgar, and therefore probably of Alfred, rather than as having instituted any code of his own. It might have been thought, therefore, that some information on this subject might have been obtained from any writings that respected Alfred. There is a life of him by the monk Asserius, and there are laws of his which are come down to us, and which may be seen in Wilkins; but neither in the work of his biographer, nor in these laws of Alfred, can any thing be found which may enable us to understand what were the laws of Edward the Confessor.

It may, perhaps, give the student some insight into the nature of an inquiry like this, if he takes the trouble of following the subject through one, at least, of the notes of a learned antiquary.

Eadmerius is a monkish writer, who gives the history of his own age, of William the First to William Rufus, and Henry the First; his work was edited by the learned Selden.

Now, it is known that William the First entered into some agreement with his subjects respecting the laws of Edward the Confessor; and it might be expected that Eadmerius, when he gives the history of the reign of William, would also have given us some account of this remarkable code. But in the course of the history, the monk (with more than the stupidity of a monk), instead of giving us these laws, observes," that he forbears to mention what was promulgated by William with respect to secular matters." So here we have a complete disappointment. This gives occasion to his editor, Selden, in a note, to consider the subject more at length.

Selden produces a passage from the Litchfield Chronicle, a very ancient monkish writing, from which it appears that the Conqueror, in the fourth year of his reign, granted the laws of Edward the Confessor to the intercession of his English subjects: “ Ad preces communitatis Anglorum;" and that twelve men were chosen from each county, who were to collect and state, what these laws were; and that what they said was to be written down by the Archbishop of York and Bishop of London. Here, then, we have a fact connected with the subject.

Another monkish historian, Roger Hoveden, who lived under Henry the

not so.

Second and John, gives the same account, and he subjoins the laws themselves at full length. From him they are published by Wilkins; and here, then, we might suppose that we had reached the object of our inquiry. But When we come to peruse them, there is little to be found which could make them so dear to the English commonalty; and by looking at the eleventh head on Dane-gelt, we perceive the name of William the younger, or of William Rufus, which shows, as Selden observes, that they are of a later date than the time of the Conqueror, or at least most unskilfully interpolated. This, therefore, on the whole, is also a disappointment.

Selden has therefore recourse, in the next place, to Ingulphus, who was a sort of secretary to the Conqueror.

Ingulphus, at the end of his history, tells us that he brought the code of Edward's laws, which William had authorized and renewed, from London to his own abbey of Croyland, for the purpose of securing (as he says) the society from the penalties which were contained in it "in the following manner." And now, then, we might expect once more to find the laws all subjoined. But here the history ends, and the laws are wanting in the MS.

But a new attempt is made by the illustrious antiquary (for these valuable men are possessed, at least, of the virtue of patience), and in a later MS., written, he thinks, about the year 1200, he finds a code at the end of it, which from the title should be the code required. This code he gives, and endeavours to translate. It is also given by Wilkins, and translated still more completely.

But our disappointments are not here to cease. Even this copy of the code must surely be materially imperfect. We look in vain for those general provisions of protection to the subject, which must have made these laws so dear to our ancestors.

Finally, it is collected from the monkish historians that Henry the First, to ingratiate himself with his subjects, granted them the laws of Edward the Confessor. A code of Henry's laws has come down to us, and may be seen in Wilkins. But it is a grant of Edward's laws that we find here mentioned, and no detail of the laws themselves. Here, then, we have once more a disappointment, and further research seems at an end.

The code of Henry was, no doubt, to a certain extent modified and meliorated according to this favorite model; but of the model itself no further knowledge can be obtained. Our lawyers and antiquaries are, therefore, left to conclude that these celebrated laws of Edward the Confessor, may now be imaged to us by what is called " the common law of the land," or the unwritten collection of maxims and customs which are transmitted from lawyer to lawyer, and from age to age, and have obtained reception and usage among our courts and judges.

V.

CHARTERS.

THE 9th of Henry the Third is the final one; and that, therefore, which is always commented upon. Of the whole thirty-eighth clauses, about one half respect merely the oppressions of the feudal system.

But by the words of the thirty-eighth clause, the feudal tyranny, wherever relaxed between the king and his vassals, was to be relaxed between the superior and inferior, through all the links of the feudal subordination. And of the thirty-eight clauses, some were of a general nature. By the ninth and thirtieth, an effort was made for the benefit of commerce; protection afforded to the trading towns, foreign merchants, &c. &c.

The eleventh, twelfth, thirteenth, seventeenth, twenty-fourth, twentyeighth, and thirty-fourth, were intended for the better administration of justice.

In the twenty-sixth may be seen the first effort that was made to procure for an accused person a trial; i. e. in other words, to protect the subject from arbitrary imprisonment.

Yet so slow is the progress of civil liberty, that the first principles of the most obvious justice could not be secured till some centuries afterwards, by the proper fitting up of the writ of habeas corpus in the reign of Charles the Second.

The thirty-seventh clause runs thus: -"Scutagium de cætero capiatur sicut capi solebat tempore regis Henrici avi nostri." And in the time of Henry the Second the scutage was moderate,

The important point of the levying of money was thus left in a very imperfect state. But in the confirmation of the charters by Edward the First, it was distinctly stated that no money should be levied upon the subject, except by the common consent of all the realm, and for the benefit of the whole realm.

The celebrated statute, " de tallagio non concedendo," is shown by Blackstone to be probably nothing more than a contemporary Latin abstract of the two French charters themselves, and not a statute.

The most striking clause of all, so well known, so often quoted, so justly celebrated, runs thus: "Nullus liber homo capiatur," &c. &c., " nisi per legale judicium parium suorum vel per legem terræ," &c. &c.

This twenty-ninth clause contains a general description of a free constitution. Dr. Sullivan, in his Lectures on the Laws of England, has made it the subject of a comment through all its words and divisions. That, in the first place, it secures the personal liberty of the subject; in the next, the full enjoyment of his property, &c. &c.; and certainly, while the spirit of this clause is preserved, civil liberty must be enjoyed by Englishmen whether, however, this spirit shall be preserved, depends upon their preserving their own spirit. The book of Dr. Sullivan is worth looking at. You may see from the contents, what parts are more particularly deserving of your attention.

The Charter of the Forest speaks volumes to those who can reflect on what they read.

Observe the words of the tenth clause: "Nullus de cætero, amittat vitam vel membra pro venatione nostrâ.” - -"Sed si quis captus fuerit," &c. &c. "jaceat in prisonâ nostrâ per unum annum," &c. &c.

Offences in the forest must have been, before this time, often punished by the loss of life or of limb, when murder was not.

Observe, too, the clauses which concede the restoration of whole tracts of land to their former state, tracts which had been reduced to forests.