often going far back, and to periods of deep obscurity, for the elements of our present most remarkable institutions. Not that he can pretend, especially with regard to the unwritten law, to guide the student with close precision, or that he can confidently apportion to each source its particular contributions. "It would be vain," he admits, " to endeavour to trace to its fountain-head every custom that forms part of the ocean of the unwritten law; we can only say that this or that custom was discovered at such a period, perhaps, then just swelling up into the future river, or perhaps already a broad and steady stream; or again, that such a custom flowed from that distant range of hills, where lodged in primeval times an early tribe, the natural lords of the land; or else that it had not risen and commenced its downward course, till the children of another people had occupied that region. It seems, therefore, that as it would be useless to seek to fix and determine each part of the great mass of customs which form the common law, the simplest way will be to trace the usages of each of those nations who now form the united community; and as these respectively must have constituted that body of customs which became afterwards commingled and blended together, it is clear that thus we shall arrive at something like certainty." Analogous to the rise, progress, and development of our language, which has been enriched not only as civilization and mind recorded their conquests, but with the ample borrowings from a number of foreign nations who from time to time have established a footing and been naturalized in our country, must be the ingredients of the great deep of unwritten laws; and with very considerable learning, legal, antiquarian, and historical, has Mr. Flintoff, who is a barrister, collected and distinguished the quality and source of some of the more important of the elements. We need hardly name the sources from which Britain principally must have derived the elements of her laws. Neither shall we attempt to follow our author with any degree of closeness when endeavouring to ascertain the proportion which was native; or such contributions as belonged respectively to Saxon, Dane, and Norman. The Romans, every one is aware, bequeathed a deep impress of themselves upon our institutions and customs, as well as upon our arts and literature. And how rude, simple, and picturesque was the basis upon which the mighty superstructure has been reared! In Druidical times the laws of the Britons were oral, and couched in verse. They were afterwards codified by Hoel the Good, and called Triads, the number three being a sacred number among the ancient inhabitants of this country. Nor have some of the most curious elements of their laws departed from amongst us at this day; neither have they been totally obliterated by innovation. Says Mr. Flintoff,

The Triads and laws of Hoel, both remotely derived from the Bardic lore, thus form the repositories of the usages and customs of the Britons. In their solitary cairns, we see the visible and touching memorials which point out the dwelling-seats of their tribes. In their language, largely mixing with that now spoken, we have another vestige that has travelled in the memories of their children. If again we turn to their ancient laws, we shall find these also existing to a great degree amongst their descendants. *** Amongst other principles which we find laid down in the laws of Hoel, is one, that a witness to an accusation must swear that he knew and saw what he swears to, agreeably to the present well-established rule, and another, that the testimony of one man should not be taken. So the husband and wife could not give evidence respectively against one another; nor could the wife be brought forward to give evidence without her husband; the like thing applying in the case of an infant, for whom his father or guardian must have appeared. Although, however, the wife was considered as part of her husband, yet she had certain rights of her own. Thus the wife of the king could dispose of the thirds given to her by the king; and the wife of a freeman could dispose of all her paraphernalia and such like goods; but this did not hold in the case of the wife of a villanus or bondsman. The wife had also a right to all her articles of dress to which her husband could not lay claim; and it appears she was entitled to a dowry, and a present from her husband immediately after the marriage; besides which, she received on that occasion an outfit from her own family and connexions, a custom which now remains, it is said, in some parts of Wales.

It is not generally known that, even before the arrival of the German tribes, the elements of our Parliament were recognized by the Britons. Still, the Saxons introduced a number of new laws and principles of jurisprudence. For example, trial by ordeal was one of their innovations. A specimen may be new to most of our readers; viz., that by the offa execrata, the method by which the priests used to purge themselves, " and which they chose, probably," observes our author, " as the least likely to put the party in jeopardy. A morsel of bread was placed on the altar with great preparation and ceremony, which the person to be tried had to eat. If it stuck in his throat, which was improbable, this was to be considered as a token of his guilt."

The Saxons had an ingenious method of making sure of the peaceful and dutiful conduct of each person in a tything; viz., by the enforcement of the Frankpledge, which was a mutual agreement of all for the proper behaviour of each. We here quote from the essay before us :

The next of the Saxon territorial divisions were the Tythings, also called Decennaries and Fribourgs, and which derived their name from containing ten free families. At the head of every tything an officer presided, who was called the head of the fribourg; and every one of the free members

was, as we have seen, a security for the rest, pledging himself that each would behave orderly, and stand to the inquiries and awards of justice, from which reciprocal engagement and guarantee this sort of community was also called frankpledge. If any of them fled from justice, the Tything was allowed thirty-one days to produce him. If he did not then make his appearance, the head of the fribourg might take two principal persons of his own tything, and the head and two other members of each of three adjoining tythings, and might, by himself and these others, making together twelve, purge himself and his tything from any privity to the offender's escape but if he was not able to purge himself by this corroboration, he and his tything had of themselves to make compensation to the party injured.

A number of remarkable and permanent institutions were brought in by the Saxons; such as those which have their copies in territorial and local courts, where justice was almost invariably administered. "Indeed it was a maxim which exists also in the time we live in, that the king should not be resorted to as long as justice could be obtained in the proper inferior courts."

With the Normans came in the influence of the feudal laws; but still the Saxon system formed the great foundation of the common law. Mr. Flintoff says,

When the Conqueror ascended the English throne, claiming it in right of the will of Edward the Confessor, and not obtaining his title from a notion of conquest over the people, which he carefully disclaimed, but for the feudal meaning of the term conquest, which signifies acquest, or newly acquired feudal rights, he solemnly swore, in the fourth year of his reign, that he would observe the ancient and approved laws of the kingdom, particularly those of Edward the Confessor, and also ordered that twelve Saxons in each county should make inquiry, and certify what those laws were. Subsequently to this, it was solemnly ordained, in a general council, that the laws of Edward, with such alterations and additions as the Conqueror himself had made, should in all things be observed.

The following are some of the most important innovations made in the character of acquests :

1. Among the first of these alterations we may reckon the separation of the ecclesiastical courts from the civil, effected in order to ingratiate the new king with the popish clergy, who for some time before had been endeavouring, all over Europe, to exempt themselves from the secular power, and whose demands the Conqueror, like a politic prince, thought it prudent to comply with, by reason that their reputed sanctity had a great influence over the minds of the people; and because all the little learning of the times was engrossed into their hands, which made them necessary men, and by all means to be gained over to his interests. ** 2. Another violent alteration of the English constitution consisted in the depopulation of whole counties, for the purposes of the king's royal diversion; and subjecting both

them, and all the ancient forests of the kingdom, to the unreasonable severities of forest laws imported from the continent, whereby the slaughter of a beast was made almost as penal as the death of a man. * 3. A third alteration in the English laws was by narrowing the remedial influence of the county courts, the great seats of Saxon justice, and extending the original jurisdiction of the king's justiciars to all kinds of causes, arising in all parts of the kingdom. To this end the aula regis, with all its multifarious authority, was erected; and a capital justiciary appointed, with powers so large and boundless, that he became at length a tyrant to the people, and formidable to the crown itself. The constitution of this court, and the judges themselves who presided there, were fetched from the duchy of Normandy; and the consequence naturally was, the ordaining that all proceedings in the king's courts should be carried on in the Norman, instead of the English language: a provision the more necessary, because none of his Norman justiciars understood English; but resembling those badges of slavery which are imposed upon a conquered people. This lasted till King Edward the Third obtained a double victory,-over the armies of France in their own country, and their language in our court here at home. ** 4. A fourth innovation was the introduction of the trial by combat, for the decision of all civil and criminal questions of fact in the last resort. This was the immemorial practice of all the northern nations, but first reduced to regular and stated forms among the Burgundi about the close of the fifth century; and from them it passed to other nations, particularly the Franks and the Normans. ** 5. But the last and most important alteration, both in our civil and military polity, was the engrafting on all landed estates, a few only excepted, the fiction of feudal tenure, which drew after it a numerous and oppressive train of servile fruits and appendages, aids, reliefs, primer seisins, wardships, marriages, escheats and fines for alienation; the genuine consequences of the maxim then adopted, that all the lands in England were derived from, and holden, mediately or immediately, of the crown.

We shall content ourselves with one extract belonging to that portion of Mr. Flintoff's essay which treats of the Statute-Law. It is remarkable that Charles the Second's reign was prolific of good Acts:

The fourth period, which we are next to mention, is after the restoration of King Charles the Second: immediately upon which, the principal remaining grievances, the doctrine and consequences of military tenures, were taken away and abolished, except in the instance of corruption of inheritable blood, upon attainder of treason and felony. And though the monarch, in whose person the royal government was restored, and with it our ancient constitution, deserves no commendation from posterity, yet in his reign, wicked, sanguinary, and turbulent as it was, the concurrence of happy circumstances was such, that from thence we may date, not only the reestablishment of our church and monarchy, but also the complete restitution of English liberty, for the first time, since its total abolition at the Conquest. For therein not only these slavish tenures, the badge of foreign

dominion, with all their oppressive appendages, were removed from incumbering the estates of the subject; but also an additional security of his person from imprisonment was obtained, by that great bulwark of our constitution, the Habeas Corpus Act. These two statutes, with regard to our property and persons, form a second Magna Charta, as beneficial and effectual as that of Running-Mead. That only pruned the luxuriances of the feudal system; but the statute of Charles the Second extirpated all its slaveries: except perhaps in copyhold tenure; and there also they are now in great measure enervated by gradual custom, and the interposition of our courts of justice. Magna Charta only, in general terms, declared, that no man shall be imprisoned contrary to law: the Habeas Corpus Act points him out effectual means, as well to release himself, though committed even by the king in council, as to punish all those who shall thus unconstitutionally misuse him. To these we may add the abolition of the prerogative of purveyance and pre-emption; the statute for holding trienenial parliaments; the Test and Corporation Acts, to secure at once both civil and religious liberty; the abolition of the writ de hæretico comburendo; the statute of frauds and perjuries, a great and necessary security to private property; the statute for distribution of intestates' estates; and that of amendments and jeofails, which cut off those superfluous niceties which so long had disgraced our courts; together with many other wholesome acts that were passed in this reign, for the benefit of navigation and the improvement of foreign commerce, and the whole, when we likewise consider the freedom from taxes and armies which the subject then enjoyed, will be sufficient to demonstrate this truth, "that the constitution of England had arrived to its full vigour, and the true balance between liberty and prerogative was happily established by law in the reign of Charles the Second."

Mr. Bowyer's work is very fitly called a "Popular Commentary on the Constitutional Law of England;" for while it presents a good compilation from a number of sources, some of them not readily accessible, or at least so removed from the ordinary fountains of information that few would think of combining the whole, it is also agreeably and even attractively written. But there is more than a skilful compiling from Blackstone and many other authorities. Mr. Bowyer having extended and traced the history and principles of the "English Constitution" as developed down to the present time, and having also affixed notes of reference in corroboration of his curious facts. The work may therefore be regarded as not only a popular commentary, but as a text-book to the students of the Constitutional Law of England.

By the terms Constitutional Law something distinct from what is understood by Criminal and Civil Law is meant, and also from what may be regarded as statutory and written. Constitutional Law, as viewed in the present volume, brings us to the consideration of what are the institutions and customs,-the rights, privileges, and position, of the different orders in the state, as these have come to