ter apprentice to any trade in a borough, unless he have land or rent to the value of twenty shillings a year. The reason assigned, is the scarcity of laborers in husbandry, in consequence of the people living in upland apprenticing their children. A writer of the early part of Edward III.'s reign, quoted by Hallam, asserts that 'gentlemen's children are taught to speak French from the time they are rocked in their cradle; and uplandish men will liken themselves to gentlemen, and learn, with great business, for to speak French, for to be the more told of.' 'It was natural,' says the author last mentioned, 'that the country people, or uplandish folk, as they were called, should repine at the exclusion from the enjoyment of competence, and security for the fruits of their labor, which the inhabitants of towns so fully possessed.' But while they repined, the aristocracy legislated them out of the towns, and did all they could to perpetuate their slavery by repressing their attempts to increase their privileges, and scoffing at their endeavors to acquire knowledge.

It is a question of some interest to determine what towns were allowed, at the conquest, to retain their Saxon usages. We are informed that there were certain voluntary associations among the Saxons called gilds, which, in mercantile towns and sea-ports, were constituted for the purpose of facilitating commercial enterprises. These associations possessed either landed property of their own, or rights of superiority over that of others. They also had an internal elective government for the management of a common revenue, and the administration of the business incident to their association. They frequently enjoyed special privileges as to inheritance. They grew rich by traffic, and the consciousness that they could not be individually despoiled of their possessions, like the villeins, or upland people, inspired an industry and perseverance, which all the rapacity of Norman kings and barons were unable to daunt or overcome. Other towns which were not in this condition at the conquest, grew by encroachments on the claims of the feudal aristocracy. Various circumstances facilitated these encroachments, but principally the pecuniary exigences of the king and his barons. These pecuniary exigences were produced on the continent, and partly, in England, by the expenses of the Crusades. Before the conclusion of the last Crusade, 1270, all the considerable cities in Italy had either purchased or had extorted large immu

nities from the emperors. London is represented to have contained in the reign of Henry II., 1154 to 1189, no more than 40,000 inhabitants; and the other cities were small in proportion, and were not in a condition to extort any extensive privileges. Whatever the measure of those privileges might have been, it was attained by purchase or by force. It is common,' says Hallam, 'to assert that the liberties of England were bought with the blood of our ancestors. But it is far more generally accurate to say that they were purchased by money.'

If privileges were to be purchased with money, or extorted by force, we surely need not the aid of any hypothesis, such as that of the policy of preventing that uncertainty and confusion which would ensue from a diversity of customs, to enable us to explain the reason of allowing certain usages to counties, manors, hundreds, honors, cities, and boroughs, and of denying the same usages to inferior districts: The former could purchase, or extort them, the latter could do neither. If a baron was pressed for money, he obtained it by increasing the privileges of the cities and boroughs under his superiority, because he could not get it otherwise. But he forced it from smaller places. If a baron was weak and cowardly, or tyrannical, the inhabitants of great places seized the opportunity to enlarge their privileges. But those of small and inconsiderable towns, and of the country, were consigned, by their poverty, weakness, and disunion, to hopeless servitude. Nor were they ever restored to their long lost Saxon liberties, till the cities and boroughs so grew in wealth and intelligence, as to seize, in a manner, through the house of commons, upon the reins of government, and reform the law by the statute of wills, by the statute to abolish the feudal tenures, and more than all, by that irresistible public opinion, which inspirited the courts, long before either statute, to annul all the restraints upon alienation.

The true explication of the diversity in the privileges of cities and upland towns, is one of many proofs which exist in the history and laws of all civilized people, of the influence of cities upon the national prosperity. They were the first seminaries of human improvement; and when civilization had vanished before

1 Hallam. Robertson.

the barbarians of the north, cities led the van of returning knowledge.

In every well constituted government society is a unit. And consequently there can be no partial legislation, no privileges imparted to one class of citizens that do not equally belong to all the rest. But the feudal system divided the body politic into several disconnected masses. Thus in England there were ' about 700 chief tenants and 60,215 knight's fees.' All the rest were villeins, who were annexed to the soil, and passed from baron to baron, or knight to knight, with the soil, like the vegetables that receive from it their nutriment. Cities alone at first resisted this decomposing process, and alone were capable of resisting it successfully; and they were also foremost in the work of restoring the oppressed to equality of civil rights.

The conquest of Italy by the Teutonic nations did not abolish the Roman Laws. They continued, after that event, to give security of person and property, which is liberty, to the inhabitants of the cities, until, by degrees, the cities asserted their supremacy, by infusing a mixture of order into the very frame of the feudal governments. Thus the germs of liberty were buried, but not deprived of vitality, amidst the ruins of civil

ization.

The like happened at the Norman conquest of England. The Romans were masters of a good part of Britain for about four hundred years; and it is impossible to say, how far they may have contributed to form that assemblage of institutions, which is usually denominated Saxon Liberty. Historians and antiquaries are far from being agreed in assigning them a feudal origin. It is most probable that they were a mixture of Roman laws with British, Saxon, and Danish customs. We should not, perhaps, miss the mark far, by conjecturing that the best part of them were Roman. But be this as it may, Saxon liberty was, at least, stubborn and inflexible, incapable of annihilation. Its peculiar usages were preserved amidst the desolation of the conquest, in a few cities and boroughs. These kept its spirit alive. That spirit was diffused, and inspired the nation to extort from unwilling tyrants, charters of liberties, each of which separately was adverse to, and whose combined influence overthrew, the feudal slavery. One after another, those shackles were unriveted, which, at first, bid fair to

make tyranny as perpetual in Europe as it has been in Asia. The castes of the feudal system were not less uncommunicating, nor less calculated for eternal duration, than those of Hindostan.

Europe has been saved from a state of society that 'mantles like a standing pool,' by a pervading and electrical spirit of freedom that the Romans imparted to their legal institutions.

ART. III.-IMPROVEMENTS IN PLEADING AND PRACTICE.

The Second and Third Reports made by the Commissioners appointed to inquire into the Practice and Proceedings of the Superior Courts of Common Law in England.

In our last number we noticed some of the improvements in pleading recommended in these reports. Some suggestions on subjects of practice are also contained in them, which we think will be of interest in this country.

Every one conversant with the practice of courts must have often seen cause to lament the time and expense consumed in proving writings in the course of a trial, the authenticity of which the party against whom they are produced ought never to have contested, and which in many cases he probably would not have denied, if there had been any power to compel his answering a question upon the point.

In the second report it is said,

No expense is more uselessly incurred, nor is any attendance more vexatiously required than those which in the great majority of cases are occasioned by the mode of proving written documents. Where nothing is admitted by the form of pleading, every matter in writing, whatever be its nature, must be proved by the oral testimony of some witness, who must be an attesting witness if there happen to be one, unless the document be thirty years old, or his presence be dispensed with upon grounds to be proved by some other witness or witnesses. The distance of the place of trial from the residences of the persons whose testimony is required, is often found greatly to augment their personal inconvenience and the costs of parties, both which

are also frequently enhanced to an intolerable degree by a protracted attendance for several days, until the time for trial of the cause arrives. Though every document may be known to both parties, and free from all suspicion, yet the personal attendance of every witness necessary to the establishment by strict proof of each of them, is indispensable, lest advantage should be taken of his absence to defeat the cause.

'Where title is to be made out, either by descent or conveyance, the copies of all parish registers and other originals of which copies are admissible, must be proved by the individuals who have examined them; and not only must instruments of modern date be established by the attesting witnesses, but ancient documents (though commonly said to prove themselves) must be shown by oral testimony to have been brought into court from the proper custody; and no letter or other similar paper can be read unless some witness can speak to his personal knowledge of the hand-writing. These and other rules which require the best evidence, are fit to be observed where the genuineness of the document is doubtful; but are in most cases resorted to in practice for the purpose of obstructing rather than promoting the ends of justice. We are by no means disposed to recommend a relaxation of the rules themselves. Our object is to make it the interest of parties to dispense with them, when recourse to them is unnecessary. The greater part of the documents might in most instances be admitted without prejudice to the merits of the case on either side, if fair opportunity for inspection and inquiry previously to trial were given. Though the unsuccessful party be ultimately liable to the costs of his adversary's proof, yet it is greatly for the interest of both parties that these costs should be reduced as far as possible, not only because the event of every cause is in some degree uncertain, but because the disbursement in the first instance is inconvenient, because the amount to be awarded in respect of the costs incurred must probably, under any system of taxation, be less than the actual advance, and because the ultimate payment by the opposite party is often very doubtful.

'These considerations, which at present generally fail to induce a party to propose admissions, lest he should disclose his case without attaining his object, would probably operate with considerable effect if any advantage was to be obtained by such