Under such circumstances the lapse of centuries scarcely disturbs the repose of the laws, and men find themselves standing in the same crippled posture, which was forced upon their ancestors, long after their sepulchres have mouldered into dust, and the names of the oppressor and the oppressed are sunk into doubtful traditions.

The laws of the Medes and Persians were proverbially immutable. The institutions of China have undergone no sensible change since the discovery and doubling of the Cape of Good Hope; and the pyramids of Egypt, lost as their origin is in remote antiquity, are not perhaps of a higher age, than some of its customary laws and institutions. And it may be affirmed of some of the Eastern nations, that, through all the revolutions of their dynasties, it is difficult to point out any fundamental changes in the powers of the government, the rights of the subject, or the laws, that regulate the succession to property, since the Christian era.

In free governments, and in those, where the popular interests have obtained some representation or power, however limited, the case has been far otherwise. We can here trace a regular progress from age to age in their laws, a gradual adaptation of them to the increasing wants and employments of society, and a substantial improvement, corresponding with their advancement in the refinements and elegancies of life. In the heroic and barbarous ages, the laws are few and simple, administered by the prince in person, assisted by his compeers and council. But, as civilization advances, the judicial powers are gradually separated from the executive and legislative authorities, and transferred to men, whose sole duty it is to administer justice and correct abuses. The punishment of crimes, at first arbitrary, is gradually moulded into a system, and moderated in its severity; and property, which is at first held at the mere pleasure of the chief, acquires a permanency in its tenure, and soon becomes transmissible to the descendants of those, whose enterprise or good fortune has accumulated it. Whoever examines the history of Grecian, or Roman, or Gothic, or Feudal jurisprudence, will perceive in the strong lines, which may every where be traced, the truth of these remarks. And it is matter of curious reflection, that, while the laws and customs of the East seem in a great measure to have been stationary since the Christian era, those of Europe have undergone the most extraordinary revolutions; attaining, at one period, great refinement and equity; then sinking from that elevation into deep obscurity and barbarism, under the northern invaders; and

rising again from the ruins of ancient grandeur to assume a new perfection and beauty, which first softened the features, and then extinguished the spirit of the feudal system.

It is not, however, upon topics of this sort, suggested by a broad and general survey of the past, however interesting to the philosophical inquirer, that I propose to dwell at this time. My purpose, rather, is to offer some considerations touching the past and present state of the common law, and to suggest some hints as to its future prospects in our own country, and the sources, from which any probable improvements must be derived. In doing this, I shall attempt nothing more than a few plain sketches, contenting myself with the hope of being useful, and leaving to others, of higher talents and attainments, the more ambitious path of eloquence and learning.

The history of the common law may be divided into three great epochs; the first extending from the reign of William the Conqueror to the Reformation; the second from the reign of Elizabeth to the Revolution, which placed the house of Brunswick on the throne; and the third including the period, which has since elapsed, down to our own time.

The first of these epochs embraces the origin and complete establishment of the feudal system, with all its curious burdens and appendages; its primer seizins, its aids, its reliefs, its escheats, its wardships, its fines upon marriages and alienations, and its chivalric and soccage services. Connected with these were the distinct establishment of tribunals of justice, administered first by Judges in Eyre, and afterwards by the Courts at Westminster; the introduction of assizes, and writs of entry; and the perfecting of all those forms of remedies, by which rights are enforced, and wrongs redressed. Some of the most venerable sages of the law belong to this period; the methodical and almost classical Bracton; the neat and perspicuous Glanville; the exact and unknown author of Fleta; the criminal treatise of Britton; the ponderous collections of Statham, Fitzherbert, and Brooke; and, above all, the venerable Year-Books themselves, the grand depositories of the ancient common law, whence the Littletons and the Cokes, the Hobarts and the Hales, of later times, drew their precious and almost inexhaustible learning. Of these black-lettered volumes few in our days can boast the mastery. Even in England they are suffered to repose on dusty and neglected shelves, rarely disturbed, except when some nice question upon an appeal of death, upon the nature of seizin, or upon proceedings in writs of right, calls them up, like

the spirits of a departed age, to bear their testimony in the strife. This, too, was the age of scholastic refinements, and metaphysical subtilties, and potent quibbles, and mysterious conceits; when special pleading pored over its midnight lamp, and conjured up its phantoms to perplex, to bewilder, and sometimes to betray. This, too, was the age of strained and quaint argumentation, when the discussions of the bar were perilously acute and cunning. And yet, though much of the law of these times is grown obsolete, and the task of attempting a general revival of it is hopeless, it cannot be denied, that it abounds with treasures of knowledge. It affords the only sure foundation in many cases, on which to build a solid fabric of argument; and no one ever explored its depths, rough and difficult as they are, without bringing back instruction fully proportioned to his labor.

The commencement of the second period is rendered remarkable by the enactment of two statutes, which have probably conduced more than any others to change the condition of real property; and at the same time, that they have facilitated its application to the business and the wants of real life, they have in no small degree rendered its titles intricate. I allude to the great statutes of Wills and of Uses, in the reign of Henry VIII. The former statute has crowded our books of reports with cases, more numerous and more difficult in construction than any other single branch of the law. The latter, followed up by the statute of Elizabeth of Charitable Uses, is thought by many to have laid the foundation of that broad and comprehensive judicature, in which equity adininisters, through its searching interrogatories, addressed to the consciences of men, the most beneficent and wholesome principles of justice. The whole modern structure of Trusts, infinitely diversified as it is, by marriage settlements, terms to raise portions, or to pay debts, contingent and springing appointments, resulting uses and implied trusts, grew out of this statute, and the constructions put upon it. And it is scarcely figurative language to assert, that the scintilla juris of Chudleigh's case is the spark, which kindled the flame, which has burned so brightly and benignantly in the courts of equity in modern times.

Two statutes, equally remarkable, adorned the close of this second period; the one, the statute securing the writ of Habeas Corpus, the great bulwark of personal liberty; the other, the statute abolishing the burdensome tenures of the Feudal Law. These were the triumphs of sound reason and free inquiry over the dictates of oppression and igno

rance. They were the harbinger of better days, and gave lustre to an age, which was scarcely redeemed from profligacy by the purity of Lord Hale, and was deeply disgraced by the harsh and vindictive judgments of Lord Jeffries. Yet through the whole of this period we may trace a steady improvement in the great departments of the law. Under the guidance of Lord Bacon, the business of chancery assumed a regular course; and, at the distance of two centuries, his celebrated Ordinances continue to be the polestar, which directs the practice of that court. A more noble homage to his memory, or a more striking proof of the profoundness of his genius, and of the wisdom and comprehensiveness of his views, can scarcely be imagined. And it may be truly affirmed, that his Novum Organum scarcely introduced a more salutary change in the study of physics and experimental philosophy, than his Ordinances did in the practical administration of equity. The common law, too, partaking of the spirit and enterprise of the times, gradually shifted and widened its channels. Courts of justice were no longer engaged in settling ecclesiastical or feudal rights and services. The intricacies of real actions were laid aside for the more convenient and expeditious trial of titles by ejectment. Assizes and writs of entry fell into neglect, and the subtilties of logic were exchanged for the more useful inductions of common sense. Arguments were no longer buried under a mass of learning; and reports, instead of overwhelming the profession, as in the pages of the venerable Plowden, with a flood of ancient authorities and curious analogies, began to be directed to the points in controversy with brevity and exactness. Philosophy, too, lent its aid to illustrate the science; and the criminal law, though occasionally disgraced by abuses, was softened by the humanity, illustrated by the genius, and methodized by the labors of the great luminaries of the law.

The third period may not inaptly be termed the Golden Age of the law; since it embraces the introduction of the principles of commercial law, and the application of them with wonderful success to the exposition of the then comparatively novel contracts of bills of exchange, promissory notes, bills of lading, charter parties, and, above all, policies of insurance. Lord Holt, with great sagacity and boldness, led the way to some of the most important improvements, by his celebrated judgment in Coggs v. Barnard, in which the law of bailments is expounded with philosophical precision and fulness. It is true, that the leading maxims are borrowed from the Roman

law, as the beautiful treatise of Sir William Jones sufficiently explains to the humblest student. But the merit of Lord Holt is scarcely lessened by this consideration, since he had the talent to discern their value, and the judgment to transfer them into the English code. The modest close of his opinion in this case shows, how little the law on this subject was at that time settled, and how much we owe to the achievements of a single mind. "I have said thus much" (is his language) "on this case, because it is of great consequence, that the law should be settled on this point. But I don't know, whether I may have settled it, or may not rather have unsettled it. But however that may happen, I have stirred these points, which wiser heads in time may settle." Wiser heads have not settled these points. This branch of the law stands now, at the distance of more than a century, on the immovable foundation, where this great man placed it, the foundation of reason and justice. And, if he had left no other judgment on record, this alone would justify the eulogy of an eminent modern judge, that "he was as great a lawyer as ever sat in Westminster Hall."

The doctrines of the courts of equity during this last period have attained a high degree of perfection, though the origin of them must in many cases be admitted to belong to the preceding age. Lord Nottingham brought to the subject a strong and cultivated mind, and pronounced his decrees after the most cautious and painstaking study. Lord Cowper and Lord Talbot pursued the same career with the genuine spirit of jurists. But it was reserved for Lord Hardwicke, by his deep learning, his extensive researches, and his powerful genius, to combine the scattered fragments into a scientific system; to define with a broader line the boundaries between the departments of the common law and chancery; and to give certainty and vigor to the principles, as well as the jurisdiction, of the latter. Henceforth, equity began to acquire the same exactness as the common law; and at this moment there is scarcely a branch of its jurisprudence, that is not reduced to method, and does not in the harmony of its parts rival the best examples of the common law. Our own age has witnessed in the labors of Lord Eldon, through a series of more than twenty-five volumes of reports, a diligence, sagacity, caution, and force of judgment, which have seldom been equalled, and can scarcely be surpassed; which have given dignity, as well as finish, to that curious moral machinery, which, dealing in an artificial system, yet contrives to administer the most perfect of human inventions, the doctrines of conscience ex æquo et bono.