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diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..d7b82bc --- /dev/null +++ b/.gitattributes @@ -0,0 +1,4 @@ +*.txt text eol=lf +*.htm text eol=lf +*.html text eol=lf +*.md text eol=lf diff --git a/LICENSE.txt b/LICENSE.txt new file mode 100644 index 0000000..6312041 --- /dev/null +++ b/LICENSE.txt @@ -0,0 +1,11 @@ +This eBook, including all associated images, markup, improvements, +metadata, and any other content or labor, has been confirmed to be +in the PUBLIC DOMAIN IN THE UNITED STATES. + +Procedures for determining public domain status are described in +the "Copyright How-To" at https://www.gutenberg.org. + +No investigation has been made concerning possible copyrights in +jurisdictions other than the United States. Anyone seeking to utilize +this eBook outside of the United States should confirm copyright +status under the laws that apply to them. diff --git a/README.md b/README.md new file mode 100644 index 0000000..f462417 --- /dev/null +++ b/README.md @@ -0,0 +1,2 @@ +Project Gutenberg (https://www.gutenberg.org) public repository for +eBook #69351 (https://www.gutenberg.org/ebooks/69351) diff --git a/old/69351-0.txt b/old/69351-0.txt deleted file mode 100644 index 4face4a..0000000 --- a/old/69351-0.txt +++ /dev/null @@ -1,18397 +0,0 @@ -The Project Gutenberg eBook of Lectures on the constitution and laws -of England, by Francis Stoughton Sullivan - -This eBook is for the use of anyone anywhere in the United States and -most other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms -of the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you -will have to check the laws of the country where you are located before -using this eBook. - -Title: Lectures on the constitution and laws of England - With a commentary on Magna Charta, and illustrations of many of - the English statutes - -Author: Francis Stoughton Sullivan - -Commentator: Gilbert Stuart - -Release Date: November 14, 2022 [eBook #69351] - -Language: English - -Produced by: Sonya Schermann and the Online Distributed Proofreading - Team at https://www.pgdp.net (This file was produced from - images generously made available by The Internet Archive) - -*** START OF THE PROJECT GUTENBERG EBOOK LECTURES ON THE CONSTITUTION -AND LAWS OF ENGLAND *** - - - - - - - LECTURES - ON THE - CONSTITUTION AND LAWS - OF - ENGLAND: - - WITH A COMMENTARY ON - _MAGNA CHARTA_, - - AND ILLUSTRATIONS OF MANY - OF THE - ENGLISH STATUTES. - - BY THE LATE - FRANCIS STOUGHTON SULLIVAN, _LL. D._ - Royal Professor of COMMON LAW in the UNIVERSITY of DUBLIN. - - THE SECOND EDITION. - - To which AUTHORITIES are added, and a DISCOURSE - is prefixed, concerning the LAWS and GOVERNMENT - of ENGLAND. - - BY GILBERT STUART, _LL. D._ - - _LONDON_: - Printed for EDWARD and CHARLES DILLY in the Poultry; and - JOSEPH JOHNSON in St. Paul’s Church-yard. - M,DCC,LXXVI. - - - - - TO THE RIGHT HONOURABLE - FREDERICK LORD NORTH, - KNIGHT OF THE MOST NOBLE ORDER OF THE GARTER, - FIRST LORD OF THE TREASURY, - CHANCELLOR OF THE EXCHEQUER, - AND - CHANCELLOR OF THE UNIVERSITY OF OXFORD, - - -MY LORD, - -I am ambitious of giving dignity to this Work by inscribing it to your -Lordship; and I conceive that it has a natural claim to your protection. -It regards those laws and that constitution which, at a most critical -period, you were called to defend; and of which the important purposes -are the security and the happiness of a free people. - -In this illustrious rank which divides your cares between prerogative -and liberty, and in which you support the lustre of the Crown, while -you guard the independence of the subject; the greatest occasions are -afforded to distinguish the generosity of public virtue, and to employ a -capacity enlarged alike by reflection and experience. - -But it does not become me to say with what honour to yourself, and -with what advantages to the nation, you sustain the arduous charge of -government. To posterity, which will not be suspected of flattery, it -must be left to celebrate the merits of an Administration, too vigorous -to yield under difficulties, and of which the glory has increased with -danger. - - I am, with the greatest respect, - - MY LORD, - - Your Lordship’s - - Most obedient, - - And most humble servant, - - GILBERT STUART. - - - - -ADVERTISEMENT. - - -The following LECTURES were delivered in the University of DUBLIN, and -procured a very high Reputation to their Author. The Researches they -contain into the Nature and History of the FEUDAL LAWS, were esteemed -extensive and ingenious; and the Description they exhibit of the ENGLISH -CONSTITUTION, will be allowed to be particularly interesting. These -Advantages have occasioned their Publication. It was thought, that -Papers, which had done so much Honour to DR. SULLIVAN, when alive, ought -to illustrate his Memory; and that they might prove of Use to the present -Age, and to Posterity. - -THE Authorities assigned for DR. SULLIVAN’S Opinions and Reasonings -are furnished by the EDITOR. They are not, perhaps, in every Instance -those to which he himself would have appealed. This could not have been -expelled. They are such, notwithstanding, as will assist the Student; and -the Preliminary DISCOURSE, it is hoped, will not be thought an useless or -improper Addition to his LECTURES. It will be a Pleasure to the EDITOR -to reflect that he has endeavoured to pay a Tribute of Respect to the -Writings of a virtuous Man and an ingenious Lawyer, whom an immature -Death had ravished from his Friends and from Society. - - - - -CONTENTS. - - - _LECTURE_ I. - - _The intention and purposes of political society—Customs and - manners govern men before the enactment of positive laws—Arts - and property the sources of legislation—Peculiarities attending - the institutions of Lycurgus and those of Moses—In the infancy - of a state, laws are few and plain—In times of civility and - refinement, they are numerous and complicated—The liberty of - the people, a great cause of the multiplicity of laws—The - difficulty of the study of the English law—The methods which - have been followed in the study of it._ - - _LECT._ II. - - _The plan of the present undertaking—The particulars in which - it differs from that adopted by Mr Blackstone—The different - situations of the Universities of Oxford and Dublin—The chief - obstructions which occur to the student of the English laws—The - methods which may be employed to remove them—The law of_ things - _more proper to introduce a system of jurisprudence than the - law of_ persons—_The law of_ things, _or of real property in - England, has its source in the feudal customs—The necessity - of a general acquaintance with the principles of the feudal - polity—The method in which it is proposed to treat of it._ - - _LECT._ III. - - _An enumeration and confutation of several opinions concerning - the foundation of the feudal customs—The origin and rules - of the feudal law to be deduced from the institution of the - German nations before they invaded the Roman empire—The English - indebted for this law to the Franks—A general description of - this people, with an account of the several orders of men into - which they were divided while they continued in Germany._ - - _LECT._ IV. - - _The_ companions _of a German Prince—The constitution of a - German kingdom—The condition of property in Germany—The methods - followed there of distributing justice, and the nature of the - punishments inflicted on criminals._ - - _LECT._ V. - - _The decline of the Roman empire—The invasions of the Northern - nations—The manner in which they settled in the Roman - provinces—The changes insensibly introduced among them in - consequence of their new situation—The policy and condition of - the Franks after they had settled in France—The rise of the - feudal law—Estates beneficiary and temporary._ - - _LECT._ VI. - - _The introduction of estates for life into the feudal - system—The nature and forms of investiture—The oath of fealty, - and the obligations of Lord and tenant._ - - _LECT._ VII. - - _Improper feuds or benefices—Grants to the Church—Grants - in which the oath of fealty was remitted—Grants to which - a condition was annexed that enlarged or diminished the - estate—Grants which reserved certain other services, beside - military service—Grants implying some certain service, as - rent, and not reserving military service—Grants reserving - no services, but general fealty—Grand Serjeantry—Petty - Serjeantry—Grants to women—Grants of things not - corporeal—Feudum de Cavena—Feudum de Camera._ - - _LECT._ VIII. - - _Feudum Soldatæ—Feudum habitationis—Feudum Guardiæ—Feudum - Gastaldiæ—Feudum mercedis—Incorporeal benefices in - England—Advowsons—Presentative advowsons—Collative - advowsons—Donatives._ - - _LECT._ IX. - - _Tithes—The voluntary contributions of the faithful, the - original revenue of the Church—The establishment of regular - payments—The appropriations of the Church—The history and - general rules of tithes in England._ - - _LECT._ X. - - _The right of Seignory and its consequences—The right of - Reversion—Rent seck—Rent charge—The nature of_ distress, _as - the remedy for recovering feudal duties. Observations on_ - distresses _in general_. - - _LECT._ XI. - - _The manner in which estates for life came to be enlarged - into descendible estates—The nature of Reliefs—Feudal - oppressions—The admission of allodial lands into the feudal - policy—The extension of the feudal system in France._ - - _LECT._ XII. - - _Consequences attending the introduction of estates of - inheritance—The incident of homage—Differences in England and - the Continent, with regard to the ceremonies of homage and - fealty—The fine of alienation—Attornment—Warranties—Wardship in - chivalry._ - - _LECT._ XIII. - - _Wardship in Socage—The nature and history of the incident of - marriage._ - - _LECT._ XIV. - - _The rules of descent in the old feudal law in regard to the - sons of the last possessor—Representation and collateral - succession—Feminine feuds._ - - _LECT._ XV. - - _The difference between allodial and feudal lands—The - restrictions on the feudal law—The decay of these—The history - of voluntary alienations._ - - _LECT._ XVI. - - _Involuntary alienations of feudal land—Talliage—Edward I. - introduces the first involuntary attachment of lands—Statutes - enacted for this purpose—Their effects—The origin of estates - Tail._ - - _LECT._ XVII. - - _The consequences and history of estates Tail._ - - _LECT._ XVIII. - - _The constitution of a feudal monarchy—The dignity and revenues - of the King—An examination of his power as to the raising of - taxes and subsidies._ - - _LECT._ XIX. - - _The King’s power as to the making, repealing, altering, or - dispensing with laws._ - - _LECT._ XX. - - _Lords of Parliament or Peers—Earls or Barons—The earlier state - of Baronies in England—The Barones majores & minores—Barons by - writ and by letters patent—The different ranks of Nobility._ - - _LECT._ XXI. - - _Earls or Counts as distinguished from Barons—The office of - Counts—Their condition after the conquest—Counties Palatine in - England—Counties Palatine in Ireland—Spiritual Peers—The trials - of Noblemen._ - - _LECT._ XXII. - - _The share of the Commons in the Legislature—The Armigeri or - Gentry—Knights Bannerets—The nature of Knighthood altered - in the reign of James I.—Knights Baronets—Citizens and - Burghers—The advancement of the power and reputation of the - Commons._ - - _LECT._ XXIII. - - _The privilege of voting for Knights of the Shire—The business - of the different branches of the Legislature, distinct and - separate—The method of passing laws—The history and form of the - legislature in Ireland._ - - _LECT._ XXIV. - - _Villenage—The Servi in Germany, mentioned by Cæsar and - Tacitus, the predecessors of the Socmen or socage tenants in - the feudal monarchy—Villeins in gross and villeins belonging to - the land of the Lord—The condition of villeins—The different - ways by which a man may become a villein—The means by which - villenage or its effects may be suspended._ - - _LECT._ XXV. - - _The methods invented to destroy villenage—The bent of the law - of England towards liberty—Copyhold tenants—Tenants in ancient - demesne._ - - _LECT._ XXVI. - - _The condition and state of laws in England during the Saxon - times—The military policy of the Saxons not so perfect as - that of the Franks—Their Kings elective—The division of the - kingdom into shires, hundreds, and tithings—The administration - of justice—The county court—The hundred court and court - leet—The court-baron—The curia regis—Method of trial in - the Saxon courts—The ordeal—The waging of law—The trial by - battle—Juries._ - - _LECT._ XXVII. - - _The punishment of public crimes and private wrongs among the - Saxons—The ranks of men among the Saxons—The difficulty of - ascertaining the nature of the Saxon estates, and the tenures - by which they were held—Observations to prove, that the Saxon - lands were in general allodial._ - - _LECT._ XXVIII. - - _The Saxons, though their lands in general were allodial, were - not strangers to military benefices for life—The alterations - introduced by William the Norman, as to the tenure of lands in - England._ - - _LECT._ XXIX. - - _The alterations introduced by William, as to the - administration of justice—The Judges of the Curia Regis are - appointed from among the Normans—The county courts decline—The - introduction of the Norman language—The distinction between - courts of record, and not of record—The separation of the - spiritual and temporal courts—The consequences of this measure._ - - _LECT._ XXX. - - _Robert Duke of Normandy, and William Rufus, dispute the - succession to the Conqueror—The English prefer the latter—The - forest laws—The cruelty and oppressions of William—The - advancement of Henry, the Conqueror’s youngest son, to the - crown of England—He grants a charter—The nature of this - charter—His dispute with Anselm concerning Investitures—The - celibacy of the clergy—State of the kingdom under Stephen._ - - _LECT._ XXXI. - - _Henry II. succeeds to the crown—The reformation - of abuses—Alterations introduced into the English - law—The commutation of services into money—Escuage or - Scutage—Reliefs—Assizes of novel disseisin, and other assizes._ - - _LECT._ XXXII. - - _The institution of Judges itinerant, or Justices in Eyre—The - advantages attending it—The jurisdiction of these Judges—Their - circuits—The present form of transacting the county - business—The division of the Curia Regis into four courts—The - jurisdiction of the court of King’s Bench._ - - _LECT._ XXXIII. - - _The jurisdiction of the high court of Chancery—The chancellor, - a very considerable officer in the Curia Regis—The repeal of - letters patent, improvidently issued to the detriment of the - King or the subject, a branch of the jurisdiction of the court - of Chancery—The Chancery, assistant to the Exchequer in matters - of the King’s revenue—Other branches of the business of this - court._ - - _LECT._ XXXIV. - - _The court of Common Bench or Common Pleas—The jurisdiction - of this court—Actions real, personal, or mixt—The court of - Exchequer—The jurisdiction of this court—Exchequer chamber—The - judicature of Parliament._ - - _LECT._ XXXV. - - _Henry II’s dispute with Becket—The constitutions of - Clarendon—The murder of Becket._ - - _LECT._ XXXVI. - - _The rebellions of Henry’s sons—He is succeeded by Richard - I.—The steps taken at this period towards settling the - succession to the kingdom—The laws of Oleron—Accession of - John—His cruelty and oppressions._ - - _LECT._ XXXVII. - - _John’s dispute with the court of Rome—Cardinal Langton - promoted to be Archbishop of Canterbury—Pope Innocent lays - the kingdom under an interdict—John is excommunicated—His - submission to Innocent—The discontents of the Barons—Magna - charta and charta de Foresta—An examination of the Question, - Whether the rights and liberties, contained in these charters, - are to be considered as the antient rights and liberties of - the nation, or as the fruits of rebellion, and revocable by the - successors of John?_ - - _LECT._ XXXVIII. - - _The minority of Henry III.—Ecclesiastical grievances—The - dispensing power—The canon law—Confirmation of Magna Charta—A - commentary on Magna Charta, in so far as it relates to what now - is law._ - - _LECT._ XXXIX, XL, XLI, XLII, and XLIII. - - _Continuation of the commentary on Magna Charta._ - - - - - -A DISCOURSE CONCERNING THE LAWS AND GOVERNMENT OF ENGLAND. - - -The last conquest attempted under the Roman Republic was that of Britain. -Julius Cæsar, on the pretence that its states had given assistance to -the Gauls, but chiefly from a motive of glory, carried the Roman Eagles -into a country from which he was to retreat with disgrace. It required -a length of time, and a succession of able Proconsuls to reduce to -subjection Communities of fierce and independent warriours; and policy -effected what could not be operated by arms. The Britains were debauched -into a resemblance with a most corrupted people. They renounced the -fatigues of war for the blandishments of peace. They forsook their huts -for palaces; affected a costliness of living, and gave way to a seducing -voluptuousness. They sunk into an abject debasement, without having run -that career of greatness, which, in general, precedes the decline of -nations; and, when they were trained to an oppressive yoke, the Romans -found it necessary to abandon them. The impression which the barbarous -tribes had made upon the Empire required the presence of the distant -legions[1]. - -The liberty which the Romans, on their departure, presented to the -Britains, could not be enjoyed by them. Timid and dastardly, they fled -before the Picts and Scots, and allowed their country to be ravaged by a -cruel and undisciplined enemy. Amidst the suggestions of their fear, they -forgot every principle of policy and of prudence; they called to their -defence a foreign valour. The Saxons were invited to fight their battles; -but they acted not long as protectors. They were allured by the prospect -of compleating a settlement in this island; and the total ruin of its -inhabitants was projected. Despair gave a temporary vigour and union to -the Britains. They were unable, however, to resist a people, accustomed -to victory, and directed by experienced commanders. The valiant and -magnanimous fell by the sword; the ignoble submitted to an ignominious -servitude: Wales afforded a retreat to some; and others found shelter in -Armorica[2]. - -But, if the Saxon conquest was ruinous to the Britains, it was yet -attended with consequences which were lasting and important. The sun of -liberty revisited the island, and displayed itself with uncommon lustre. -The Saxons, independent in their original seats, submitted not to tyrants -in their new situation. They laid the foundation of a political fabric, -the most valuable that has, at any time, appeared among men; and which, -though shaken by violent revolutions, a train of fortunate circumstances -has continued down to the present times. Fluctuations have taken place -between prerogative and liberty; but, accident and wisdom have still -conspired to preserve us from the fate of the other kingdoms of Europe. - -During the existence, however, of the Heptarchy, the Saxons seem to -have departed little from their original condition of Society. The -ferocious picture which Tacitus has drawn of the Germans, is, with a few -exceptions, characteristic of them. If we admire their heroism, we are -shocked with their cruelty; and if we are in love with their democratical -maxims, we must sometimes regret their contempt of justice and of order. -The most important innovation introduced into their manners during this -æra was their conversion to christianity. But their acquaintance with -this mode of faith failed to be productive of beneficial consequences. -As they received it from the corrupted source of the Church of Rome, -it involved them in endless and idle disputes. It detracted from the -vigour of their understanding, by turning their attention from civil -precautions, and the arts of policy, to the relics of saints, and the -severities of religious discipline. The power derived from it intoxicated -ecclesiastics: They presumed to interfere in affairs of state; and, a -foundation seemed already to be laid for subjecting the island to the -dominion of the Roman Pontiff[3]. - -When the Saxon kingdoms were consolidated into one state under Egbert, -improvements were made in civility and knowledge. The incursions of the -Danes, and the disorders resulting from them, called forth the ability -and the wisdom of the Anglo-Saxon Princes. Alfred, notwithstanding the -other important transactions of his reign, found leisure to frame into a -code the laws of his predecessors, and those Germanic customs which had -retained their influence. King Edgar has likeways come down to us with -the character of an able legislator. The establishment of the Danes in -England gave occasion to new usages and new laws; but these were neither -many, nor considerable[4]. The ability of Canute did not allow him to -make distinctions between his Danish and his English subjects; and the -sceptre was not long in returning to a prince of the Saxon line. No -Monarch was ever more acceptable to a State than Edward the Confessor; -and, though he had rather the qualities of a saint than those of a king, -his laws have been highly extolled. They were strenuously contended -for during the administration of the earlier Norman princes; they kept -their ground in opposition to the clergy and the imperial institutions; -and they furnished the foundation of what is termed the Common Law of -England[5]. - -In no portion of the Anglo-Saxon period does the power of the Sovereign -appear to have been exorbitant or formidable. The enaction of Laws, -and the supreme sway in all matters, whether civil or ecclesiastical, -were vested in the _Wittenagemot_, or great National Assembly[6]. This -council consisted of King, Lords, and Commons, and exhibited a species -of government, of which political liberty was the necessary consequence; -as its component parts were mutually a check to one another. The free -condition of the northern nations, and the peculiarity of their situation -when they had made conquests, gave rise to this valuable scheme of -administration, and taught the politicians of Europe what was unknown to -antiquity, a distinction between despotism and monarchy. - -The executive power remained with the crown; but it was the united assent -of the three estates which constituted the legislature. The Lords were -spiritual as well as temporal; for notwithstanding that the Ecclesiastics -preached humility, and the contempt of private interest, they had been -seized with ambition and the love of superiority[7]. The people exercised -an authority that was important and ample. The counties appeared -by their knights, and the cities and boroughs by their citizens and -burgesses; the Commons, as at this day constituted, being included under -the appellation of the _wites_ or _sapientes_, who are always mentioned -as a part of the Anglo-Saxon parliament[8]. The assertors of prerogative, -indeed, have affirmed that these were judges or men skilled in the law; -but this opinion they support by very exceptionable evidence[9]: And it -has been conjectured, with no measure of propriety, by some compromising -writers, that all the more considerable proprietors of land had a title, -without any election, to give their votes in the Wittenagemot[10]. - -In inferior assemblies, and in the forms of judicial proceedings, the -marks are also to be traced of the power of the people, and of a limited -administration. The hundred and county courts were admirably calculated -for the protection of the subject. They were composed of _freeholders_, -who were bound, under a penalty, to assemble at stated times; and who, -with the hundreder, earl and bishop, gave decision in all matters of -civil, criminal, or ecclesiastical import. A very powerful obstruction -was thus created to the oppressions of the great. And, in the institution -of a _jury_, our ancestors possessed a bulwark, the most efficacious and -noble that human wisdom has ever devised for the security of the persons -and possessions of men[11]. - -Nor was the condition of those times so entirely destitute of grandeur -as some historians have been fond to assert. Even in the age of Tacitus, -London was a port not unknown to navigators and traders[12]; and we have -the authority of Bede, that England abounded at an early period with -cities which were wealthy and populous[13]. Alfred was particularly -attentive to encourage industry, trade and manufactures; and even -imported the luxuries of life from the most distant countries[14]. It -was a law of Athelstane, that the merchant, who had performed at his -own expence three long and hazardous voyages, should be invested with -nobility[15]. Civility and knowledge, commerce and wealth increased under -Edgar, whose ability and affable manners allured many foreigners to his -court; and affairs did not degenerate, nor was England less respectable -under the peaceful and fortunate administration of Edward the Confessor. - -But the beautiful pre-eminence on the side of the people, enjoyed during -the Saxon times, was soon to be violated. The invasion of the duke of -Normandy was about to introduce sanguinary and oppressive times. We -must not, however, with a multitude of authors, be deceived into the -opinion, that this warriour and statesman atchieved a _conquest_ over the -constitution and the people of England. He made effectual by arms his -right of succession to Edward; but he received the crown with all its -inherent properties. He took the oath which had been prescribed to the -Saxon princes; he acknowledged himself to be equally under restraint and -limitation; and he engaged to preserve the immunities of the church, and -to act according to the laws. The victory he obtained at Hastings was -over the person of Harold, and not over the rights of the nation[16]. - -His accession, at the same time, it will be allowed, was a source of -inquietude and confusion. Dominion is ever consequent on property; and -the forfeited estates of the nobility and the landed proprietors who had -assisted Harold, or who had afterwards joined in insurrections, having -been bestowed by him on his officers; and the high rank of many of these -requiring very ample retributions, a great proportion of territory was -necessarily vested in the hands of a few. Nor was it favourable to the -spirit of democracy, that the donations of William were governed by the -more extended notions of the feudal law. - -This polity, which was common to the northern tribes, had not been -unknown to our Saxon ancestors; but, though they were familiar with -grants, which were precarious, or which endured for a term of years, -or during the life of the feudatory, they had seen few examples of the -perpetuity of the fief. They had not been accustomed to the last step of -the feudal progress; but a tendency to its establishment was observable -among them; and, if the invasion of William had never taken place, the -institutions of this law had yet arrived at their highest point. He only -hastened what the course of time was about to produce by slow degrees: It -was a result of his administration, that, before the end of the reign of -Henry II. fiefs, in their more enlarged condition, had spread themselves -over England[17]. - -This plan of political law, which had been propitious to liberty and -conquest in its rise, was prejudicial to both in its decline; and the -same institutions, which in one situation, conducted to greatness, -led the way in another to confusion and anarchy[18]. The advantages -which distinguished their earlier state, were unknown when they had -attained the ultimate step of their progress. When fiefs had become -hereditary, the association of the chief and the retainer, or the lord -and his vassal, had no longer for its support, any other tie than that -of land[19]; and, if the possessor of a fief was less attached to his -followers, he was less dependent on, and less connected with his prince. -The system had lost the circumstances, which formerly had fitted it so -admirably for war; and the few regulations it included with regard to -peace and domestic policy, were rather calculated for the narrow circle -of a nascent community, than for the complicated fabric of an extensive -empire. - -The exorbitant grants, which it was necessary that duke William should -make, the full establishment of the perpetuity of the fief, and the -consequent investment of offices of rank and of dignity in particular -families, introduced all the disorders of aristocracy. The most princely -dominion was in general claimed and exercised by the great[20]. They -assumed the right of declaring war against each other of their private -authority; they coined money; and they affected to exert without appeal -every species of jurisdiction. But while they disputed in the field -the prize of military glory, or vied in displays of magnificence and -grandeur, their tenants and vassals were oppressed to supply their -necessities; and, amidst the unbounded rapine and licentiousness which -arose, no legal protection was afforded to individuals[21]. There was no -safety for the helpless but in associations with the powerful; and to -these they paid attention and service. The tribunals of justice became -corrupted; and decisions were publickly bought from the judges. New -sources of oppression were thought of; and none were infamous enough to -be rejected. The feudal casualties were exacted with the most rigorous -severity; and, while the kingdom appeared to be divided into a thousand -principalities, the people were nearly debased into a state of servility. - -On a superficial view, one would be apt to imagine, that, in regard to -competition, the nobles of those times were considerably an overmatch for -the prince. But Barons, whose chief recommendations were the military -virtues, who were haughty and independent, and often inflamed against -each other with the fiercest animosity, could not always act in a body, -or by fixed and determined maxims. It was not so with the sovereign: The -master of operations, which depended on himself, he could speculate in -silence, and watch the opportunities of action. The advantages he derived -from his situation were powerful. Not to mention his prerogatives and his -revenue; the returns of feudal service reminded the nobility of their -subjection to him; and the inferior orders of men, regarding these as -their immediate oppressors, looked up to him as to their guardian. - -Amidst the lawless confusion introduced by the struggles between regal -and aristocratical dominion, the constitutional rights of the Commons -seem to have received a temporary interruption, and to have been -insulted with a temporary disregard. Their assembling in parliament -grew to be less frequent and less effectual; and for a season, perhaps, -was altogether suspended. But notwithstanding the disorder occasioned -by these struggles, they were in time productive of effects which -were beneficial to the people. For if the charter, confirming their -_ancient_ liberties, which was granted by Henry I. renewed by Stephen, -and continued by Henry II. had remained without a due and proper force; -the confederacy of the barons produced under king John and Henry III. -the revival and the exercise of the most important privileges. The MAGNA -CHARTA brought back, in some measure, the golden times of the Confessor. -It appeared to the barons, that they could not expect the assistance of -the people, if, in treating with John, they should only act for their -own emolument; they were therefore careful that stipulations should be -made in favour of general liberty. The people were considered as parties -to transactions which most intimately concerned them. The feudal rigours -were abated; and the privileges, claimed by the more dignified possessors -of fiefs, were communicated to inferior vassals. The cities and boroughs -received a confirmation of their _ancient_ immunities and customs[22]. -Provisions were made for a proper execution of justice; and in the -restraints affixed to the power of the king and the nobility, the people -found protection and security. - -The sovereign, no less than the nobles, was an enemy to public liberty; -and yet both contributed to establish it. Stephen gave the example -of a practice, which as it served to enfeeble the aristocracy, was -not forgotten by his successors. In the event of the reversion to the -crown of a great barony, he gave it away in different divisions; and -the tenants _in capite_ produced in this manner, threw naturally their -influence into the scale of the commons. The partitions, also, which the -extravagance of the nobility, and the failure of male-heirs, introduced -into great estates, contributed to restore the democracy. It was a -result, likeways, of the madness of the Crusades, that many adventurers -to the east returned with more cultivated manners, and more improved -notions of order and liberty; and the romantic glory of acquiring -a renown there, had induced many potent barons to dispose of their -possessions. The boroughs hastened to recover the shock, which they had -received during the violent administrations of William and of Rufus[23]; -and, if charters of corporation and community were granted seldom -during the reigns of Henry I. and of Stephen, they were frequent under -Henry II. Richard I. king John, and Henry III. During the sovereignty, -accordingly, of the last, and during that of Edward I. the acquisitions -secured by the Commons appeared so considerable, that their assembling in -parliament became a matter of greater regularity, and they rose to their -ancient importance from the disorder into which they had been thrown -during agitated and turbulent times. - -The 49th year of Henry III. and the 23d year of Edward I. which so many -writers consider as the dates of the establishment of the Commons, were, -of consequence, nothing more than memorable epochs in their history[24]. - -Under Edward I. the constitution received a stability to which it was -no less indebted to his military than his civil capacity. The wars -and expeditions in which he engaged, involved him in immense expence; -and calling for supplies, rendered him particularly attentive to the -people. The feudal force of the kingdom could not be employed by him -with efficacy. In the decline of the gothic system, the nobles were not -sufficiently in subjection to the prince; and their service was limited -to a narrow period. In the reign, indeed, of Henry II. a pecuniary -payment had been substituted in the place of the personal attendance of -the military vassal; and the custom had prevailed of hiring soldiers of -fortune. But, amidst the prevalence of private and mercenary views, the -generous principles which had given solidity to the feudal fabric[25], -having totally decayed, and the holding by a military tenure having -ceased to be considered as an honour; vassals thought of eluding the -duties to which they were bound by their possessions, and granting them -away in fictitious conveyances, received them back under the burden of -elusory or civil donations. It even grew to be usual among tenants to -refuse the pecuniary payments, or the _scutages_ to which they were -liable: They denied the number of their fees; they alledged that the -charge demanded of them was not justified by their charters; and, while -the prince was ready to march against an enemy, it was not convenient to -look into records and registers. The sovereign deprived of his service, -and defrauded of his revenue, and under the necessity of levying a -military force, had no resource so secure or abundant as the generosity -of the people[26]. - -The admirable improvements with which Edward enriched the laws, and -facilitated the preservation of domestic peace and order, contributed -also with the greatest efficacy to advance and secure the liberties -of England. He established the limits of the different courts; he -gave a check to the insolence and encroachments of the clergy; he -abrogated all inconvenient and dangerous usages; and the great charter, -and the charter of the forest, received from him the most ample -settlement[27]. The sagacity of his precautions and policy procured -to him most deservedly the name of the _English Justinian_; and it may -be mentioned as a convincing proof, both of his genius, and of his -having studied the welfare of his people, that, to the form into which -he modelled the common law, as to the administration of common justice, -the wisdom of succeeding times has not been able to add any considerable -improvements[28]. - -The crown of Edward I. but not his talents, descended to Edward II. The -indolence, however, and the incapacity of the last prince, joined to his -absurd passion for favourites, though they rendered his reign tumultuous -and unhappy, were no less favourable to the dignity of parliament, and -the power of the people, than the excellent administration of Edward -III. and the necessities to which he was subjected by his ambition and -his prowess. A weak prince may lose the prerogatives transmitted to him; -but will never be the founder of a despotism. A high-spirited monarch, -dependent for resources on his people, may carry destruction and ruin -into the country of an enemy, but will not easily be induced to attack -the liberty and the prosperity of his own kingdom. - -The sons of Edward III. had contributed, while he lived, to his grandeur, -and that of the nation; but no sooner was he laid in his grave, than -they excited commotions. The ambition of their posterity was still more -pestilent and fatal. The wars between the Houses of York and Lancaster -deluged England with blood. The passions of men were driven into rage -and phrenzy; and in the massacres, rather than the battles that ensued, -conquest or death seemed the only alternative. But while we turn with -sorrow from this bloody period of our story, our sympathy is softened -by the recollection, that the contending princes brought accessions -to liberty, by adding to the weight of the Commons. The favour and -countenance of the people were anxiously solicited by both factions; and -their influence failed not to grow, while the means of extending it were -offered, and while they were courted to seize them[29]. - -The nation, when satiated with the calamities of civil war, thought of -uniting the claims of the two hostile families. Henry VII. the heir of -the House of Lancaster, was married to Elizabeth, the heiress of the -House of York. This prince affected to be profound, and he has obtained -that character. But the condition of Europe at the time in which he -lived, and the situation in which he found himself, pointed out to him -his strain of conduct. He was more mysterious than wise; more prudent -than enterprizing; and more a slave to avarice than ambition. Without -having intended it, he placed the grandeur of the Commons on the most -solid foundation. In the liberty which he granted to the nobility of -breaking their entails, he saw only the degradation of that order. The -civil wars had involved them in great expence; and the growing commerce -and refinement of the times, exposed them to still greater. Their -princely possessions flowed from them to give dignity to the people[30]. - -Henry VIII. had no certain character, and was actuated by no fixed and -determined maxims. He had not the ability to form, nor the firmness to -put into execution a deliberate scheme to overturn the liberties of -his country. With less capacity than his ancestor, his reign was more -splendid; and, with a more imperious temper, he had the art or the -felicity to preserve the affection of his subjects. The father removed -the pillar which supported the power of the nobles: The son gave a -mortal blow to the influence of the clergy. In the humiliation of both, -the Commons found a matter of triumph. The Reformation, though it -interrupted the progress of literature, was yet highly conducive to civil -liberty. The church in losing an authority which it had never merited, -and which it had often abused, sunk into a dependence on government. The -supremacy returned to the sovereign to whom it originally belonged, and -with whom it ought constantly to have remained. The visitation of the -monasteries discovered more than the inventions of a pious fraud; vices -and abuses which cannot be described, without conveying to the mind the -impression of whatever is most wicked and most dishonourable: Their -suppression gave encouragement to industry and to the arts; and their -wealth diffused in a thousand channels, circulated through the kingdom. - -The Reformation advanced under Edward VI. but it was destined that this -prince should only make his appearance on the stage of public life, -and give the hope of an able administration. The sway of Mary was a -paroxysm of religious madness. She knew not, that when the individuals -of a kingdom have agreed to adopt a new religion, it is the duty of the -sovereign to give a sanction to it. The reformed were about to experience -whatever cruelty the extremity of a mistaken zeal can inflict. But the -fires lighted by Gardiner, Bonner, and such abominable men, brought no -converts to popery. The dread of endangering the succession of Elizabeth -prevented the parliament from giving a check to the obstinate malignity -and the sanguinary rage of this unworthy queen; or, perhaps, the nation -had scarcely recovered the astonishment into which it was thrown by -the atrocity of her deeds, when, in the sixth year of her reign, -superstition, peevishness, and the most selfish and unhappy passions, put -an end to her life. - -Elizabeth, who had learned wisdom from misfortune, attained the summit of -political glory. The perilous condition of affairs, on her commencing to -reign, required singular moderation and ability, and she exerted them. A -sagacity, almost incapable of mistake, directed all her operations[31]. -England grew in commerce and advantages, while the rest of Europe was -agitated with contentions, and debated with the tyranny of power. Her -jealousy of prerogative was corrected by her attachment to the felicity -of her people; and the popularity with which she reigned is the fullest -proof that she preserved inviolated all the barriers of liberty[32]. -The reformation which the folly of her predecessor had interrupted, was -compleated by her prudence. - -This accomplished princess was succeeded by James VI. of Scotland. He -substituted, in the place of ability, the affectation of it. The English -nation received him with marks of respect which they were not to continue -long. With high notions of kingly dignity, all his actions tended to -degrade it; and, while his littleness rendered him contemptible at -home, he became an object of ridicule abroad, from his ignorance of -foreign politics. Careless in the choice of his ministers, and supremely -conceited of his own wisdom, his reign brought no glory to the crown. - -The great improvement, which, about this period, displayed itself in the -national manners, diffused among all ranks of men very enlarged ideas -concerning the nature and principles of civil government. The arts had -been cultivated with uncommon success. Discoveries had been made in the -most distant regions of the globe. Commerce had brought great accessions -of wealth. The balance of property had turned with no equivocal direction -to the side of the people. - -It was not an age for fastidious and tyrannical maxims. The Commons -knew all their strength, and were determined to employ it. The prince -endeavoured in vain to impress them with his exorbitant notions of regal -authority. Every complaint and grievance of the subject were inquired -into; every suspicious and inclement act of prerogative was opposed. The -doctrines of the divine right of kings, and of passive obedience, were -now first heard of, and alarmed and astonished the nation. Pretensions to -power, destructive of the natural and inherent privileges of humanity, -and inconsistent with every principle of common sense, were asserted from -the pulpit, were claimed by the sovereign. The extravagance of James -awakened the thunder which was to burst on the head of his successor. - -Charles I. had imbibed the same lofty conceptions of kingly power; and -his character was marked by the same incapacity for real business. -His situation required insinuation and address; but he affected the -utmost stateliness of demeanor. He disgusted the Commons; he insulted -the people. To the exercise of his authority, he fancied there was no -limitation. Inflamed with opposition, he presumed to attack whatever was -most sacred, and most valuable among men. The imprudence of Buckingham -had not softened his obstinacy: His Queen was indiscreet, and he confided -in her. The violent councils of Strafford precipitated his own and the -ruin of his master. The religious foppery of Laud completed what the -incapacity of James had begun: It was the cement of union between the -friends of liberty and the sect of the Puritans. The people beheld with -a fixed and a general indignation the insult and the violence which were -offered to the majesty of their laws, and to their constitution. The -flames of civil discord were kindled. England was torn during six years -with political and religious fury. The unfortunate Charles atoned at -length by his death the disorders he had occasioned. The delegates of -the people pronounced him guilty of misgovernment and breach of trust. -“The pomp, says an eloquent historian, the dignity, the ceremony of this -transaction, corresponded to the greatest conception that is suggested in -the whole annals of human kind[33].” - -Cromwel, the immediate cause of the death of Charles, and of those -circumstances of censure which accompanied it, astonished at the height, -to which, in the course of the civil wars, his ambition had carried him, -was induced to aspire still higher. His genius was great, his fortune -greater. On the abolition of monarchy, he introduced into England a -military despotism, under the appellation of a common-wealth[34]. From an -inferior rank, he had risen gradually to direct the affairs of a powerful -nation. Though irregular in his politics, the vigour of his conduct -brought signal glory to his councils and his arms. But the fabric he had -built was ill-contrived and ill-cemented; its parts were disproportioned; -and it rested on no solid foundation. It began to totter during his own -life. His son Richard had none of the talents of an usurper. The minds -of the people united in an anxious wish for the re-establishment of -the ancient constitution; and general Monke acquired the honour of the -peerage, and the fame of uncommon political sagacity, for forwarding an -event, which it was impossible to prevent. - -Charles II. never forgave the people of England for the misfortunes -he himself had suffered, nor for those of his House. This monarch had -quickness of parts, but possessed not that discernment which sees into -the future. He entered without reflection into schemes and projects, -and renounced them with the same precipitation. Though an enemy to the -constitution of his country, and though in the interest of France, he was -not able to produce any lasting disadvantage to the kingdom. His reign, -though tumultuous, was not unfavourable to liberty. The total abolition -of the military tenures and their appendages, which had place during his -sovereignty, was a most important acquisition to the people: It relieved -their estates from every source of legal oppression. The _habeas corpus_ -act, which was some years posterior to it, offered the firmest security -to their persons. It produces in a court of justice the body of every -prisoner; it makes known the cause of every commitment; and, if an -individual has suffered confinement in opposition to the law, though at -the command of the king in council, he is restored to his liberty, and -has a claim of compensation for the loss and the indignity his affairs -and his honour have sustained. - -The clamour against popery was loud and violent during the long -administration of Charles II. and yet the crown was permitted to pass -to the Duke of York. This confidence, so honourable to the people, was -abused by the sovereign. James II. had the zeal of a monk, not the virtue -and the talents of a great king. His bigotry and his lust of power made -him perpetrate the most atrocious and the most insolent acts. Violating -equally civil and religious liberty, his subjects deprived him of a -throne of which he was unworthy. - -In settling the crown on the prince and princess of Orange, the wisest -precautions were taken, that the religion, the laws, and the liberties -of England should never more be in danger of being subverted. The limits -of the prerogative were defined; the extent of the freedom of the people -was ascertained; and the doctrine of resisting the prince, when he should -presume to encroach on the rights of the subject, was explained and -illustrated[35]. - -From the Saxon conquest, during a long succession of ages, this fortunate -island has never degenerated from liberty. In the most inclement periods -of its history, it despaired not of independence. It has constantly -fostered that indignant spirit which disdains all subjection to an -arbitrary sway. The constitution, prospering under the shocks it -received, fixed itself at the highest point of liberty that is compatible -with government. May it continue its purity and vigour! and give felicity -and greatness to the most distant times! - - _March 1775._ - - - - -LECTURES ON THE LAWS OF ENGLAND. - - - - -LECTURE I. - - _The intention and purposes of political society—Customs and - manners govern men before the enactment of positive Laws—Arts - and property the sources of legislation—Peculiarities attending - the institutions of Lycurgus and those of Moses—In the infancy - of a state, laws are few and plain—In times of civility and - refinement, they are numerous and complicated—The liberty of - the people, a great cause of the multiplicity of laws—The - difficulty of the study of the English law—The methods which - have been followed in the study of it._ - - -Since every political society was originally framed for the general -benefit of the several individuals of which it was composed, in order -that, supported by the united strength of the whole community, each -person might have that security in his life, his liberty, his property, -which, unassisted in a state of nature, he could not of himself attain -unto; and that, instructed by the joint counsels and wisdom of the whole -body, he might so direct his actions, as to promote the public welfare, -with which his own safety and interest are necessarily connected; it -follows, that, in such a state, every man must, even for his own sake, in -many things, sacrifice his private judgment, and his natural liberty of -action, to the will of that community to which he belongs; which will, -acting uniformly for the same purposes, cannot fail of producing a number -of fixed rules and regulations, to serve as directions to the subjects, -in such cases as are common, and frequently occur. - -Accordingly, we find, there never was a state or nation, even but one -degree removed from barbarity, that subsisted without some general -customs, at least, which supplied the place of positive laws, by which -the conduct of the several members of the society was to be governed, -and for the breach of which they were liable to punishment; and in such -a submission the very essence of political freedom consists. For, as M. -Montesquieu very justly observes, the liberty of man in a social state, -different from that in a state of nature, consisteth not in a power of -acting, in all things, according to his own judgment, but in acting -according thereto, in subservience to the will of the public, in being -free to do all things the law prohibits not, and to omit all things the -law doth not enjoin[36]. - -Hence, in all such infant states, the greatest respect is paid, and -the highest influence allowed to those, who, either by their age and -experience, or, by their application and labour, have arrived at a -proficiency in the knowledge of the customs and practices prevailing in -their own and neighbouring nations: _Qui mores hominum multorum vidit et -urbes_, is the great eulogium of the most accomplished hero of the heroic -ages. - -It must be allowed, indeed, that, in societies so small that their -members are, in general, contented with little more than the bare -necessaries of nature, a few rules will be sufficient; and every man of -a tolerable capacity will, with a reasonable degree of observation, be, -in some measure, qualified to be his own lawyer. But when it shall happen -that arts are not only introduced, but become common among any people, -when the comforts and conveniencies of life are, in the public opinion, -esteemed necessaries; when the industry of some, and the negligence of -others, have produced a remarkable inequality in the goods of fortune; -when riches hath brought forth her offspring, insolence and oppression, -and when envy and avarice inflame the breasts of the indigent, it will -be absolutely necessary to lay a continual restraint on such violent -passions, ready at every instant to destroy the peace of society, and -to tear it into pieces, and, for that purpose, to form a great number -of regulations, to curb those who have created to themselves imaginary -wants, and who no longer regulate their conduct by the plain dictates of -rude and simple nature. And as the condition of such a nation must be -perpetually changing, as new arts and gratifications will be continually -invented, as the increase of commerce will every day open a prospect of -more various acquisitions, and insensibly introduce a general change -of manners in the people; and, above all, as the wits of men, checked -in their darling pursuits, will ever be at work to discover methods of -eluding those laws which they dare not openly infringe, there must ensue -a constant alteration and variation of the rules already in being, and a -continual addition of new ones to answer new and unforeseen emergencies. -The laws, therefore, of a nation so circumstanced, must increase to such -a number, and consist of so great a variety of particulars, as to render -it impossible for the generality of the subjects to be masters of them, -and will oblige them to resort to those whose easy circumstances and -leisure have enabled them thoroughly to comprehend and understand them; -and among such a people there must be _lawyers_, although, perhaps, -not formed into a distinct and separate profession, or known by that -appellation. - -Great, undoubtedly, are the inconveniencies which attend a multiplicity -of laws, and very hard it seems, that all men should be obliged to obey -a rule, which it is confessed the majority are incapable of perfectly -knowing; but such is the natural and necessary course of things. If men -will not be contented to live in a state next to absolute barbarity, if -they will enjoy the conveniencies as well as the necessaries of life, if -they will be secured against the oppression and fraud of their fellow -subjects, as well as against the violence of strangers, they must submit -to and abide by the consequences. And so sensible of this necessity was -the great Spartan legislator, that when he resolved his state should -admit of no addition to, or alteration of his regulations, he wisely -stopped up the sources from which new laws spring. Commerce, and its -instrument, money, were prohibited; all arts, except those absolutely -necessary, were interdicted, and the people, by constantly living and -eating in public, were not only accustomed, but necessitated to content -themselves with what simple nature requires. By these means (and by -these only, or by others similar to these, could it be accomplished) -Lycurgus gave a firmness and stability to his republic, which continued -for several hundred years, until conquest introduced wealth, and its -necessary attendants, which soon eat out the vitals of that singular -constitution[37]. - -The law of Moses, likewise, was invariable, and admitted of no additions -or alterations; and as, from the peculiar circumstances of the country, -and its situation, there was no danger of an accumulation of wealth from -foreign commerce, so were the domestic regulations inimitably calculated -to prevent a great inequality of circumstances, and to oblige the nation -in general to a plain and simple life. All usury among the Israelites -was prohibited, the lands were alienable no longer than to the year of -jubilee, at which time they returned free to the original proprietor or -his heirs; and, by the invariable rules of descent, and the continual -dividing of estates among all the males in equal degree, every man was -proprietor of some small patrimony, and consequently obliged to live in -a frugal and laborious manner[38]. Athens, on the contrary, the most -commercial and the richest city of Greece, abounded, above all others, -in a multiplicity of laws, and those, for the causes already mentioned, -perpetually varying and changing. Rome, while it continued a mere -military state, was contented with a few, and those such as were short -and plain; but when, by the conquest of Carthage, of Greece, and of Asia, -floods of wealth were poured into Italy, the necessary consequences soon -followed. New laws were continually made, which, being as continually -eluded, of course gave birth to others. Every new conquest brought an -accession of riches, and became a source of farther regulations: until, -at length, they swelled to such a magnitude, as to become, in the time -of Justinian, an intolerable burthen: For, to say nothing of the laws -themselves, the _senatus consulta_, the _plebiscita_, the _edictum -perpetuum_, and the constitutions of the emperors, which were very -voluminous, the bare commentaries of the lawyers of authority amounted to -three thousand volumes. - -If we look around the nations that now inhabit Europe, we shall find that -the same causes have constantly, every where, produced the same effect. -How few, how short, how plain, and simple, were the antient laws of the -Saxons, the Franks, the Burgundians, the Goths, and the Lombards, while -each of them continued a plain and simple people[39]. As they increased -in arts and wealth, as their kingdoms grew more powerful, either from -internal peace and commerce, or by the melting of different sovereignties -into one, we might see the laws gradually increase in number and in -length; this arose from the necessity their legislators were under, -from the different circumstances of the times and people, to enter into -details of which their ruder ancestors had no conception: and this -augmentation hath ever been in proportion to the wealth and power of the -people that was obliged to admit it; as might easily appear by fixing on -any one period, and by comparing the laws of those nations where arts and -trade were fully established, with those of others where they had not yet -got so firm a footing. - -Within these last two hundred and fifty years, the inhabitants of Europe -in general, particularly those that have any considerable share in -universal commerce, seem to have been seized with an epidemical madness -of making new laws; insomuch that there is scarce a state whose laws, -since the year 1500, are not equal, if not superior, in number and bulk, -to those made in many preceding ages: an effect owing, partly to the -decay of the old military system, and to the necessity every government -was under, to have recourse to new methods for its support, when that -failed; but principally to the discoveries of America, and of the passage -to the East Indies; which, by the peaceful arts of industry and trade, -have poured into modern Europe an accession of treasure, equal to what -was amassed in Italy by conquest and rapine under the Roman empire. As -Britain, during this interval, shared more largely than any other country -in this vast increase of wealth, it is not surprising that her later laws -have been numerous and voluminous in proportion. - -But there is another cause peculiar to these nations, which hath not a -little contributed to the same end, namely, that happy constitution, and -that liberty in which we so justly glory. A constitution which lodges -the supreme, the legislative power in three different hands, each of -which (if considered apart) hath an interest separate and distinct -from the other two, must require a variety of wise regulations, so to -ascertain their respective rights and privileges, and so to poise and -balance them, as to put it out of the power of any one to overtop the -others. A constitution that admits the people, by representation, to -so considerable a share of power, must have many laws to determine the -manner of elections, and the qualifications both of electors and elected. -A constitution that makes the preservation of political freedom its -great object, and that aims to defend the life, liberty, and property of -the meanest individual, not only against others of their own rank, but -even against the executive power of the society itself, must have many -extraordinary fences, and barriers, to protect the weak from the mighty. -Such a constitution must, more particularly than others, restrain its -judges, the dispensers of justice, who are, at the appointment of the -crown, to follow the strict letter of the positive laws; lest, under the -pretence of explaining and extending them, the most valuable privileges -of the people might be betrayed, or rendered illusory. And this very -restraint, so necessary in such a form of government, will eternally (as -new cases arise, which, not being in the contemplation of the legislature -at the time, were not comprehended in the words of the old provisions) -occasion the framing of new ones. - -The state and condition of these kingdoms are such, therefore, as -necessarily require a great number of laws; and heavy as the burden of -them may seem, it should be borne with chearfulness, by all who esteem -the conveniencies of life, and the perfection of arts, more than a rude -and simple state of nature; who think wealth more eligible than poverty, -and power than weakness; or lastly, who prefer our excellent form of -government, and its mild administration, to the despotic tyrannies of -Asia, or the more moderately absolute monarchies of Europe. - -From what hath been already observed, the difficulties attending this -study in these kingdoms will readily appear; but these, instead of -discouraging, should animate every gentleman, and inspire him with -resolution to surmount them; when he considers them as inseparable from -the happy situation in which we are placed, and that the character of an -upright and skilful lawyer is one of the most glorious, because one of -the most useful to mankind; that he is a support and defence of the weak, -the protector of the injured, the guardian of the lives and properties of -his fellow citizens, the vindicator of public wrongs, the common servant -both of prince and people, and, in these countries, the faithful guardian -of those liberties in which we pride ourselves, and which the bounteous -Creator bestowed originally on all the sons of Adam, and would have -continued to them, had they continued worthy of the blessing. - -From hence, likewise, abundantly appears the necessity of proper methods -being pointed out for the study of the laws, and of proper assistance -being given to the youth intended for this profession. This was always -allowed, and for this purpose were the inns of court originally founded; -and it must be owned, that in ancient times, they, in a great measure, -answered the end. Their exercises, in those days, were not mere matters -of form, but real tests of the student’s proficiency. Their readers laid -down, in their lectures, the principles of particular parts of the law, -explained the difficulties, and reconciled the seeming contradictions, -though, at the same time, it must be owned, too many of them exerted -themselves in displaying their own skill and depth of knowledge in the -profession, rather than in removing the obstructions, and smoothing -the ruggedness which are so apt to discourage beginners, and which -all beginners must meet in this untrodden path, without a guide. But, -since the time that these aids have been there laid aside, and that, in -the midst of so great and so rich a city, any degree of restraint or -academical discipline, to keep the students constantly attentive to the -business they are engaged in, hath been found impracticable, it has been -the wish of every considering person, that the elements of this science -should be taught in some more eligible place, where the students may at -once have the benefit of a proper method of instruction, and by proper -regulations be obliged to improve themselves in a study so important both -to them and the public. - -That the universities, the seats of all other branches of learning, are -the places most fit for this purpose, hath been so fully proved by Mr -Blackstone, in his preliminary lecture, not long since reprinted in this -kingdom, that it will be much more proper and decent for me to refer -gentlemen to that excellent performance, than to weaken his arguments, -by repeating, in other words, what he has demonstrated, with such force -of reason, and elegance of expression. I shall only add to what he hath -observed, that every other nation of Europe hath admitted the profession -of their municipal laws into their universities, and that the same hath -been the opinion and practice of almost every age and country, as far -back as the lights of history extend. Were not the laws of Egypt, as well -as their religion, physick, history, and sciences, taught in the colleges -of their priests? It is allowed by all, that the principal employment in -the schools of the prophets was the study of the law of Moses; and, to -come to more modern times, the very first universities that were ever -founded by royal authority, were the works of Roman emperors, and erected -merely for this profession. The famous academies of Rome for the west, -and of Berytus for the east, furnished that extensive empire with a -constant succession of excellent lawyers, whose names, and the fragments -of whose works were held in the highest honour, until the inundation -of barbarians from the north of Europe, and the prevailing arms of the -Saracens in the east extinguished the Roman government in those parts. -But that of Constantinople, founded soon after the translation of the -seat of empire thither, had a more happy destiny, flourished with -distinguished reputation to these later ages, and perished not, but -with the empire itself, when that city was taken by the Turks. Nay, so -sensible were the Arabs themselves, who destroyed the Roman academy of -Berytus, of the utility of such institutions, that, for their own law, -they erected others of the same nature in Bagdad[40]. - -Another powerful reason for laying the foundation of this branch of -learning in these seats of literature, arises from the great utility, or -rather, indeed, necessity, that all gentlemen bred in them are under, of -gaining a general idea, at least, of the principles and practice of the -law of their country. How advantageous this would be to every rank of -gentlemen, whether legislators, magistrates, divines, or jurymen; and to -all, in short, who have any property, to preserve, or transmit, or who -have wishes or desires to acquire any, may be seen at large, illustrated -by Mr Blackstone in the same performance. And indeed, if, before the -attempt, there could be any doubts of the propriety of beginning this -study in an university, the extraordinary success of his lectures in -Oxford, and the high reputation he hath so justly acquired thereby, leave -no room for entertaining such at present. For though much of both must -be attributed to the singular abilities of that gentleman, yet it must -be allowed that the most skilful gardener cannot make a tree flourish in -a soil unnatural to its growth. With the deepest gratitude, therefore, -should the members of this university acknowledge the munificence, and -the wisdom of our present most gracious Sovereign, who established the -present foundation for the benefit of the youth of this kingdom. - -But if the importance of this institution to the public be considered, -together with the difficulties attending the just execution of it, when -these difficulties are enhanced by the novelty of the attempt, when the -public attention is engaged by that very novelty, and when the future -success of the foundation, may, perhaps, in some measure, depend on the -opinion conceived of it at the beginning; he must, indeed, be possessed -of a very overweaning opinion of his own abilities, who can undertake so -arduous a task, without feeling strong apprehensions at the first setting -out. All the return the person thought worthy by this learned body to -fill this chair can make them for so high an honour, and so important -a trust, is to assure them, that the utmost care, and the greatest -exertion of what knowledge and abilities he possesseth, shall be employed -to answer the ends proposed, and to justify, as far as in him lies, the -choice they have made. And if the young gentlemen for whose benefit these -lectures are designed, possessed with a just notion of the great utility -to themselves, and their country, of the study they are engaged in, will -exert that industry, for the honour of their mother university, which -hath made her so long famous for other branches of learning; he doubteth -not but his weak endeavours at the first essay, will not only merit -indulgence, but in the end be crowned with considerable success. On their -assiduity, as well as upon his skill, must the success of the undertaking -depend. - -In the next lecture the grounds and reasons of the plan proposed, as most -proper for the commencing this study in this university, shall be laid -open, in hopes that the students will proceed with the more alacrity, if -they can be once convinced they are set in the right track, and that, by -the professor’s laying before the public the inducements he had to prefer -this before any other, he may acquire information from the skilful of -its errors and imperfections, and, consequently, alter it, so as most -effectually to answer the useful ends of the institution. - - - - -LECTURE II. - - _The plan of the present undertaking—The particulars in which - it differs from that adopted by Mr Blackstone—The different - situations of the Universities of Oxford and Dublin—The chief - obstructions which occur to the student of the English laws—The - methods which may be employed to remove them—The law of_ things - _more proper to introduce a system of jurisprudence than the - law of_ persons—_The law of_ things, _or of real property in - England, has its source in the feudal customs—The necessity - of a general acquaintance with the principles of the feudal - polity—The method in which it is proposed to treat of it._ - - -Having, in the preceding lecture, shewn the necessity of a proper method -being pointed out for the study of the laws of these kingdoms, from the -utility, as well as multiplicity of them; and having explained from -whence that multiplicity arises, and that it is inseparable from the -happy situation we are placed in; and having acknowledged the great -advantage the students of Oxford have received from Mr. Blackstone’s -lectures, it will doubtless be thought necessary, that something should -be said by way of illustration of the plan proposed to be followed here, -and in justification of its departure from the excellent one which -that gentleman has given us in his analysis. The method of instruction -intended to be pursued in this place is not proposed as more perfect, or -absolutely better in itself, but as one that appears more adapted to the -circumstances of our students; and as it will be allowed, that his course -of lectures, in the manner they proceed, hath some great advantages as to -the finishing a lawyer, which cannot be attained, and therefore should -not be attempted here, it will be particularly the duty of your professor -to compensate for those, by guarding against some inconveniencies, which -the extensiveness of his plan must of necessity subject young beginners -to. I shall, therefore, proceed briefly to compare the situation of the -two universities, in hopes, by that consideration, in some measure to -vindicate the several particulars wherein I have chosen to vary from his -scheme. The attendance on the courts of Westminster-Hall, when once a -gentleman hath read and digested enough to listen with understanding to -what he there hears, hath, for a succession of ages, been allowed to -be, and it must be owned is, the most effectual means of accomplishing -a lawyer, and fitting him for practice. In this respect Oxford, in -her proximity to Westminster, hath certainly an advantage, as to her -law students of above two years standing, who may at that time be -supposed capable of improvement by the arguments in the courts of law; -as she is thereby rendered capable of conjoining those two excellent -methods of instruction. Mr. Blackstone was fully sensible of this happy -circumstance, and, accordingly, his scheme is adapted to it. All the -lectures there are appointed at times that fall in the law vacations, and -the course is general and diffusive, not calculated merely for attendants -of the first and second years, but adapted also to those of a more -advanced standing, and consequently, in a manner equally copious, or very -nearly so, illustrates every one of the several branches of the English -law. But this method, however excellent in itself, and most eligible -where gentlemen can have an opportunity of attending the professor for -several successive years, must, on the other hand, be allowed to labour -under some inconveniencies, especially as to those who are yet novices, -which, as it should be the particular care of the professor here to -obviate, it cannot be improper briefly to point out. - -As the lectures of the English professor are all read in the law -vacations, and in all of them, except the long one, when few young -gentlemen of fortune stay in the universities, the shortness of these -vacations necessarily occasions these lectures to follow each other in a -very quick succession; and, accordingly, we find that five are delivered -in every week. It is impossible, therefore, that the students at first -should keep any manner of pace with their professor in their private -reading, without which the ablest performances in the way of prelections -will be of little utility. Many things in the succeeding ones must be -rendered very difficult, if not absolutely unintelligible, for want of -a due time for mastering and digesting those that preceded; and another -unhappy consequence of this quick succession is, that the most useful -and effectual method of instruction to beginners, at their entrance upon -any science, namely, a continued examination of the progress they have -made, is hereby entirely precluded, and rendered impracticable. The great -advantage of that method need not be enlarged upon in this place, as -every gentleman who hears me must be already fully satisfied of it from -his own experience. - -But this university is circumstanced in a very different manner. The -necessity our students are under of repairing to Westminster, to finish -their studies, before they are called to the bar, and their incapacity to -reap any benefit from the courts of law while they reside here, render -it impossible, as well as unnecessary, to conjoin those two methods of -instruction before-mentioned, as is done at Oxford; and, by confining -the professor to pupils of two years standing or little more, make -it highly improper for him to enter minutely into those parts of the -law his audience have not yet had time to apply to. His great object, -therefore, should be so to frame his lectures, as to be most useful to -youth at the beginning, to be particular and copious in the elementary -parts, in order to lay a sure foundation, and to smooth and make plain -the difficulties which at first will every where occur. And as, for these -reasons, a general and equally diffusive course is a method improper for -him to pursue, it should be his especial care to avoid, or remedy the -inconveniencies with which such an one is necessarily attended. - -It is a well known truth, that the entrance on any study, however easy -and agreeable such study might be after some progress made in it, is -at the beginning very irksome, and attended with many perplexities; -principally arising from the use of new terms, whose significations are -yet unknown. But the laws of all nations, and those of England above all -others, abound in such novel words, and old ones used in an uncommon -sense, more than any other science, and therefore must be attended -with difficulties in proportion. And although many of its terms occur -frequently in common conversation, and may, consequently, be supposed -already understood, this is rather a disadvantage than otherwise; -for in common discourse they are used in so vague and undetermined a -meaning, and so far from strict precision and propriety, that it is no -wonder so many persons exclaim at the absurdity of its maxims; which, -though frequently in their mouths, they do not really understand. -Young gentlemen, then, have not only many new words to acquire the -signification of, but they must likewise unlearn the import of many -others they are already acquainted with, and affix to those familiar -terms new and precise ideas, a task, as Mr. Locke observes, of no small -difficulty, and that requires not only the strictest attention, but -constant care and frequent repetition. Another great difficulty the study -of the law of England labours under, peculiar to itself, is that want -of method, so obvious to be observed, and so often complained of in its -writers of authority, insomuch, that almost all of them, and lord Coke -particularly, are too apt to puzzle and bewilder young beginners; whereas -other laws, the civil, the canon, the feudal, have books of approved -authority, (and none other but such should be put into the students -hands,) calculated purposely for the instruction of novices; wherein the -general outlines of the whole law are laid down, the several parts of it -properly distributed, its terms explained, and the most common of its -rules and maxims, with the reasons of them, delivered and inculcated. -It is not to be admired then that Sir Henry Spelman so pathetically -describes his distress at his first entrance upon this study. _Emisit -me mater Londinum, juris nostri capessendi gratia, cujus cum vestibulum -salutassem, reperissemque linguam peregrinam, dialectum barbaram, -methodum inconcinnam, molem non ingentem solum, sed perpetuis humeris -sustinendam, excidit mihi fateor animus_[41]. - -These then are the obstructions to be removed, and the difficulties to -be obviated, by a professor who considers it his business to lead by the -hand young gentlemen, yet strangers to the study; and for this purpose -he should exert his utmost care and attention, not to overburthen the -memories, or to distract the attention of his audience with too great -variety at first, but to feed them with knowledge as he finds them -capable, and to give them time, by reading and meditation, to become -masters of what they have already acquired, and by frequent examinations -to satisfy himself they thoroughly comprehend and retain the substance -of his past lectures. The utility of this last method, by which the -students will be laid under a necessity of reading in private, as to -them, will be readily allowed; but taken in another view will be of no -less assistance to the professor himself, in framing the prelections he -is to read. He will not only be encouraged to proceed with more alacrity, -when he daily observes the success of his endeavours, but also, by the -trial, be convinced of any defects or errors in his plan that before -escaped his observation, and will be warned thereby to amend them; and -he will by this means be particularly and perpetually cautioned against -the great and too common mistake of tutors, namely, their imagining that -such explications as are easy and familiar to them, will be equally -obvious to unexperienced youth. But an examination will demonstrably -shew him where his illustrations have been defective or obscure, and -will oblige him to accommodate his lectures to the capacity and progress -of his hearers. The next variation in the present plan from that of Mr -Blackstone, to be taken notice of, is the proposal of beginning with the -law of _things_, not with the law of _persons_, as he hath done. It must -be allowed impossible thoroughly to understand the law of things, without -some previous knowledge of that of persons; but it is equally impossible -to be master of the law of persons, without an acquaintance with that -of things. Since, therefore, we must begin with one of them, perhaps -it will be sufficient to observe, that such knowledge of the names and -relations of persons, as is generally acquired by observation, before -a person arrives at an age fit for engaging in this study, will enable -him tolerably to understand the law of things; and that whatever more -is necessary, and hath not been attained by this means, may be easily -supplied as the student goes on. And, that I may not be thought to lean -too much on my own opinion in this particular, I shall quote the famous -Sir Matthew Hale to the same purpose; who, in his Analysis, introduces -the law of things in the following manner: “Having done with the rights -of persons, I now come to the rights of things; and, though, according to -the usual method of civilians, and of our ancient common law tractates, -this comes in the second place, and after the _jura personarum_, and -therefore I have herein pursued the same course; yet that must not be the -method of a young student of the common law, but he must begin his study -here, at the _jura rerum_; for the former part contains matter proper for -the study of one that is well acquainted with those _jura rerum_[42].” -And, agreeably hereto, the wisdom of ages hath declared _Littleton’s -Tenures_, which contains the common law of England, as far as it concerns -real property, that is, lands or interests derived out of and flowing -from them, to be the book most proper for students to begin with, in -their study of the law of these nations. - -Taking it then for granted at present, that the law of real property is -the fittest introduction, it will be necessary, as it is confessed to be -the most important, the most extensive, and, in consequence, the most -difficult part, to lay the foundation deep and sure, and to derive its -rules from what is now universally allowed to be its source, the feudal -customs. This, indeed, hath been denied by Lord Coke, and others of his -age; who thought it would depreciate the excellence of the laws of their -country, to admit they were derived from any other nation. But if those -gentlemen had read over but once the two books of the feudal law with -tolerable attention, they must have received conviction, that one of the -laws was certainly derived from the other; and which of them was so would -easily appear, by comparing the law of England after the conquest, with -that which prevailed in the Saxon times, and was not strictly feudal, -exclusive of the testimony of the old historians. - -But, perhaps, for this purpose, it may be thought sufficient to explain -and deduce these rules from the feudal ones, as they occur occasionally -in the books of the common law; which is the method, that, in conformity -to the rest of his plan, the Oxford professor has adopted, and that the -reading through a course of that law, even the shortest, will be attended -with an unprofitable delay, and detain the students too long from their -principal object. The answer to this objection is short, and, if well -founded, perfectly satisfactory. It is, that the real reason of proposing -a system of the feudal law to be gone through, was to save time. The -method is so much better, and clearer, and, by necessary consequence, -so much easier to be comprehended, and retained, that the delay will -be abundantly compensated, and one third at least of Littleton will -be understood, and known by the students, before they open his book. -For the maxims of the common law, as they lie dispersed in our books, -often without reasons, and often with false or frivolous ones, appear -disjointed and unconnected, and as so many separate and independent -axioms; and in this light very many of them must appear unaccountable, -at least, if not absurd; whereas, in truth, they are almost every one -of them deducible, by a train of necessary consequences, from a few -plain and simple rules, that were absolutely necessary to the being and -preservation of such kind of constitutions as the feudal kingdoms were. -The knowledge of which few, timely obtained, will obviate the necessity -of frequent and laboured illustrations, as often as these maxims occur -in our law, will reconcile many seeming contradictions, and will shew -that many distinctions, which at first view appear to be without a -difference, are founded in just and evident reason: to say nothing of the -improvement the mind will attain by exercise, in following such a train -of deductions, and the great help to the memory, by acquiring a perfect -knowledge of the true grounds of those various rules, and of their mutual -connection with and dependence on each other. _Ignoratis causis rerum, ut -res ipsas ignoretis, necesse est_, is a maxim frequently in our lawyers -mouths; and Littleton and Coke continually exhort the student to explore -the grounds and reasons of the law, as the only safe foundations to build -on, and deny that any man, without being perfectly acquainted with them, -can merit the honourable appellation of a lawyer. - -But there is another, and, for gentlemen of rank and fortune -particularly, a more important consideration, that renders a general -acquaintance with the principles of the feudal law very proper at all -times, but at present eminently so; namely, the necessity of knowing -these, for the understanding the nature of those Gothic forms of -government, which, until these last three hundred years, prevailed -universally through Europe, and whence the present constitution, with -several corrections and improvements indeed, in which these islands -are now so happy, is undoubtedly derived. From hence only shall we be -able to determine whether the monarchy of England, as is pretended, was -originally and rightfully an absolute royalty, controuled and checked -by the virtue of the prince alone, and whether the privileges of the -subjects, which we are so proud of, were usurpations on the royal -authority, the fruits of prosperous rebellion, or at best the concessions -of gracious princes to a dutiful people, and revocable by them or their -successors, whenever, in their opinion, their vassals should become -undeserving; principles that were industriously, and, to the misfortune -of a deluded royal family, too successfully propagated during the last -century, and that, of late, have been revived and defended, with no -less zeal, than seeming plausibility. Every man, indeed, of candour and -humanity, will look with tenderness on the errors of princes, unhappily -educated in mistaken notions, and make due allowances for the weight -which arguments urged with great apparent force of reason, concurring -with the lust of power, so natural to the human breast, will certainly -have on such minds; but, surely, this indulgence may be carried too -far, and will be allowed so to be, if, for their justification, it -shall appear, upon examination, that the history of past ages has been -partially delivered down, and perverted; and that to the vain and -unprofitable grandeur of the prince, the happiness of millions, and -their posterity, hath been attempted to be offered up in sacrifice. The -question is of a matter of fact; for on the decision of the fact, how the -constitution of England antiently stood, the question of the right solely -depends. And surely it is the duty of every gentleman to inform himself, -on the best grounds, whether those great men, who, for a succession of -ages, exposed their lives in the field, or exerted their eloquence and -wisdom in the senate, for the purpose of preserving, and perpetuating -these privileges, deserved the honourable name of patriots, or the -detestable appellation of rebels; whether the grievances our glorious -deliverer came to redress were real or imaginary; or, if real, were such -as our fathers were in conscience bound to submit to; and whether we -can with justice give to the family that now fills our throne with such -lustre and dignity, that title which they have always esteemed as their -highest honour, of being the lords of freemen, and the assertors of the -liberties of mankind. - -As the book[43] which it is intended the young gentlemen shall read for -the purpose of acquiring a general idea of the feudal law, is composed -in a systematical method, it is proposed that these lectures shall -proceed in an historical one, in order to shew the original reasons -of those customs, and to point out from what small beginnings, and by -what particular steps and gradations the mighty fabrick rose. By this -means the additions to, and the alterations of the law will be seen in a -clearer light, when we are acquainted with the nature of the regulations -already in being; and by knowing the circumstances of the times, can at -once perceive the wisdom and necessity of such additions and alterations. -And it is hard to imagine a study more improving, more agreeable, or -better adapted to a liberal mind, than to learn how, from a mere military -system, formed and created by the necessities of a barbarous people, for -the preservation of their conquests, a more extensive and generous model -of government, better adapted to the natural liberties of mankind, took -place; how, by degrees, as the danger from the vanquished subsided, the -feudal policy opened her arms, and gradually received the most eminent of -the conquered nation to make one people with their conquerors; how arts -and commerce, at first contemptible to a fierce and savage people, in -time gained credit to their professors, and an admittance for them into -the privileges of the society; and how, at length, with respect to the -lowest class of people, which still continued in servitude, its rigour -insensibly abated; until, in the end, the chains of vassalage fell off of -themselves, and left the meanest individual, in point of security, on an -equal footing with the greatest. - -Thus much has been thought necessary to observe, in order to shew the -reasons of proposing a course of the feudal laws, as an introduction to -the English; to which may be added, that this method hath received the -approbation of many good judges, and hath, in experience, been found -not only useful for the end proposed, as it is the constant practice in -Scotland, whose laws, except in the manner of administering justice, -differ little from ours, and hath been also used in England with good -success; but, at the same time entertaining, and improving in other -respects. - -As we are to begin, therefore, with this law, the observations on the -remaining parts of the plan may be, for the present, deferred; I shall, -in my next lecture, begin to deduce the origin of this law, and of its -rules, from the customs of the German nations, before they invaded the -Roman empire. - - - - -LECTURE III. - - _An enumeration and confutation of several opinions concerning - the foundation of the feudal customs—The origin and rules - of the feudal law to be deduced from the institution of the - German nations before they invaded the Roman empire—The English - indebted for this law to the Franks—A general description of - this people, with an account of the several orders of men into - which they were divided while they continued in Germany._ - - -The feudal customs succeeded the Roman imperial law in almost every -country in Europe, and became a kind of a _jus gentium_; but having -sprung up in rude illiterate ages, and grown by slow degrees to a state -of maturity, it is no wonder that very different have been the opinions -concerning their origin, and that many nations have contended for the -honour of giving them birth, and of having communicated them to others. -Several eminent civilians, smit with the beauty of the Roman law, and -filled with magnificent ideas of the greatness of that empire, have -imagined that nothing noble, beautiful, or wise, in the science of -legislation, could flow from any other source; and, accordingly, have -fixed on Rome as the parent of the feudal constitutions. But as the paths -of error are many, and disagreeing, so have their endeavours to make out, -and defend this opinion, been various in proportion; a short mention of -them, and a very few observations, will be sufficient to convince us, -that they have been all mistaken. - -First, then, some civil lawyers have discovered a likeness between the -Roman patrons and clients, an institution as early as Romulus himself, -and the feudal lords and vassals[44]. The clients, we are told, paid -the highest deference and respect to their patrons, assisted them with -their votes and interest; and, if reduced to indigence, supplied their -necessities by contributions among themselves, and portioned off their -daughters. On the other hand, the patrons were standing advocates for -their clients, and obliged to defend, in the courts of law, their lives -and fortunes. The like respect was paid by vassals to their lords, and -similar assistance was given to their wants. The fortune of the first -daughter, at least, was always paid by them, and if they were impleaded, -they called in their lords to warrant and defend their lands and other -property. Thus far, we must confess, there is a strong resemblance; but -the differences are no less material, and shew plainly that the one -could not proceed from the other. The connection between the patron and -the client was merely civil; whereas the relation between the lord and -the proper vassal was entirely military; and his fealty to his superior -was confirmed by the sanction of an oath, whereas there was no such tie -between patron and client. The aids which the tenant gave to his lord’s -necessities, except in three instances, established by custom, to redeem -his lord’s body taken in war, to make his eldest son a knight, and for -the first marriage of his eldest daughter, were purely voluntary. But -the great point which distinguishes them was, that whereas the Roman -client’s estate was his absolute property, and in his own disposal, -the feudal vassal had but a qualified interest. He could not bequeath, -he could not alien, without his lord’s consent. The _dominium verum_ -remained with the lord to whom the land originally had belonged, and from -whom it moved to the tenant. Upon the failure therefore of the tenant’s -life, if it was not granted transmissible to heirs, or if it was, on the -failure of heirs to the lands, it reverted to the original proprietor. -Neither was the lord, on all occasions, and in every cause, bound to -be his vassal’s advocate, or, as they express it, _bound to warranty_, -and obliged to come in and defend his tenant’s right and property. For -the fealty on one side, and the protection on the other, extended no -farther than the feudal contract; and therefore the one was not bound to -warrant any of the tenant’s lands, but such as were holden of him, nor -the other to give aid, or do service in regard of his whole property, but -in proportion to that only which he derived from his superior. Add to -this, that the lord, in consideration of the lands having been originally -his, retained a jurisdiction over all his tenants dwelling thereon, and -in his court sat in judgment, and determined their controversies. These -striking diversities (and many more there are) it is apprehended, will -be sufficient to demonstrate the impossibility of deriving the feudal -customs from the _old_ institution of patron and client among the Romans. - -Secondly, Others, sensible that military service was the first spring, -and the grand consideration of all feudal donations, have surmised, -that the grants of forfeited lands by the dictators Sylla and Cæsar, -and afterwards by the triumvirs Octavius, Anthony and Lepidus, to their -veterans, gave the first rise to them[45]. In answer to this, I observe, -that those lands, when once given, were of the nature of all other Roman -estates, and as different from fiefs, as the estates of clients, which -we have already spoken of, were. Besides, these were given as a reward -for past services, to soldiers worn out with toil, and unfit for farther -warfare; whereas fiefs were given at first gratuitously, and to vigorous -warriors, to enable them to do future military service. - -Others have looked upon the emperor Alexander Severus[46] as the first -introducer of these tenures, because he had distributed lands on the -borders of the empire, which he had recovered from the Barbarians, -among his soldiers, on the condition of their defending them from the -incursions of the enemy; and had granted, likewise, that they might -pass to their children, provided they continued the same defence. This -opinion, indeed, is more plausible than any of the rest that derive their -origin from the Romans, as these lands were given in consideration of -future military service; yet, when we consider, on the one hand, that in -no other instance did these estates agree with fiefs, but had all the -marks of Roman property; and that, on the other hand, feudal grants were -not, for many ages, descendible to heirs, but ended, at farthest, with -the life of the grantee, we shall be obliged to allow this notion to be -as untenable as any of the foregoing. - -The surmise of some others, that the feudal tenancies were derived from -the Roman agents, bailiffs, usufructuaries, or farmers, is scarce worth -confuting; as these resembled only, and that very little, the lowest and -most improper feuds; and them not in their original state, when they were -precarious, but when, in imitation of the proper military fief, which -certainly was the original, they were become more permanent. - -Lastly, Some resort as far as Constantinople for the rise of fiefs, -and tell us that Constantine Porphyrogenetus was their founder; but -he lived in the tenth century, at a time that this law was already in -France, Germany, Italy, and Spain, where it had arrived very near its -full perfection, and was therefore undoubtedly his model: So that, tho’ -we must acknowledge him the first who introduced these tenures into the -Roman empire, to find their original, we must look back into earlier -ages, and among another people. - -The pretensions of the Romans having been considered, and set aside, -it follows, that this law must have taken its rise among the barbarous -nations; but from which of them particularly, remains to be inquired. -Some, solicitous for the honour of the antient Gauls, quote Cæsar’s -account of their manners; _eos qui opibus valebant multos habuisse -devotos, quos secum ducerent in bella, soldurios sua lingua nuncupatos; -quorum hæc est conditio, ut omnibus in vita commodis una cum his -fruantur quorum se amicitiæ dediderint; si quid iis per vim accidat, -aut eundem casum una ferant aut sibi mortem consciscant_[47]; in these -words they imagine they have plainly the mutual connection between -lords and vassals. The Spaniards too put in their claim for the antient -Celtiberians, of whom Plutarch, in his life of Sertorius and Valerius -Maximus, gives the same account that Cæsar doth of the antient Gauls; -and Sir Edward Coke, in his zeal for the common law of England, which, -although he did not know it, is certainly feudal, relying on fabulous -historians, carries its antiquity so far back as to the British kings -of Geoffrey of Monmouth. But one short and plain observation will fully -dissipate such vain conceits, namely, that, whatever were the original -customs of the barbarous nations, inhabiting Gaul, Spain, or Britain, -they were, many ages before the rise of this law, entirely annihilated -and forgotten. Gaul, Spain, and Britain, were, for centuries, Roman -provinces, governed entirely by Roman magistrates, according to the -imperial laws. For the Romans were particularly studious of introducing -their dress, their language, their laws and customs, among the conquered -nations, as the surest, and most effectual means of keeping them in -subjection. - -Hence, it appears, we must find the true original of this law among those -nations, that destroyed the Western Empire of the Romans; where we first -perceive the traces of it, that is, among the Franks, Burgundians, Goths, -and Lombards[48]. Of these the first and last have the greatest number of -advocates; and, whether out of jealousy to the French monarchy, or not, I -cannot determine, the majority declares for the Lombards. These different -opinions, however, may be easily adjusted, by distinguishing between the -_beneficiary law_, as I shall call it, while the grants were at will, or -for years, or at the utmost for life, and that which is more properly and -strictly called _feudal_, when they became transmissible to heirs, and -were settled as inheritances. As to the beneficiary law, no one of these -nations can lay a better claim to it than another, or with reason pretend -that the rest formed their plan upon its model; each of them independent -of the other, having established the same rules, or rules nearly the -same; which were, in truth, no more than the ancient customs of each -nation, while they lived beyond the Rhine, and were such as were common -to all the different people of Germany. But, as to the law and practice -of feuds, when they became inheritances, there can be little doubt but -it was owing to the Franks. For the books of the feudal law, written -in Lombardy, acknowledge, that the Emperor Conrad, who lived about the -year 1024, was the first that allowed fiefs to be descendible in Germany -and Italy[49]; whereas the kingdom of the Lombards was destroyed by -Charlemagne above two hundred years before; and he it was who first -established among his own Franks the succession of fiefs, limiting it, -indeed, only to one descent. His successors continued the same practice, -and, by slow degrees, this right of succession was extended so, that -by the time of Conrad, all the fiefs in France, great and small, went -in course of descent, by the concession of Hugh Capet, who made use of -that device, in order to sweeten his usurpation, and render it less -disagreeable[50]. By this concession he, indeed, established his family -on the throne, but so much weakened the power of that crown, that it cost -much trouble, and the labour of several centuries, to regain the ground -then lost. - -The opinion of the feudal law’s being derived from the Lombards seems -owing to this, that, in their country, those customs were first reduced -into writing, and compiled in two books, about the year 1150, and have -been received as authority in France, Germany and Spain, and constantly -quoted as such. But then it should be considered, that the written law -in these books is, in each of those nations, especially in France, -controuled by their unwritten customs; which shews plainly, that they are -received only as evidence of their own old legal practices. For had they -been taken in as a new law, they would have been entirely received, and -adopted in the whole. - -But if, in this point, I should be mistaken, and the Lombards were -really the first framers of the feudal law, yet I believe it will be -allowed more proper for the person who fills this chair to deduce the -progress of it through the Franks, from whom we certainly borrowed -it, than to distract the attention of his audience, by displaying the -several minute variations of this law, that happened as it was used -in different nations. To the nation of the Franks, therefore, I shall -principally confine myself, and endeavour to shew by what steps this -system of customs was formed among them, and how their constitution, the -model of our own just after the conquest, arose; and at the same time I -shall be particularly attentive to those parts of it only that prevailed -in England, or may some way contribute to illustrate our domestic -institutions. - -In order, then, to illustrate the original of the French constitution, -and of their beneficiary, and its successor the feudal law, it will -be necessary to enter into some details as to the manners of this -people, while they continued in Germany, and which they preserved for a -considerable time after they passed the Rhine; as also to mention some -few particulars of their history when settled in France, in order to shew -the reasons of their original customs, and the ends their policy aimed -at, and how, by change of circumstances, the preservation of that system -required new regulations; how the feudal law arose, and grew to that -perfection, in which, for so many ages, it flourished throughout Europe. -As skilful naturalists discover in the seed the rudiments of a future -tree, so, in a few passages of Cæsar and Tacitus, concerning the customs -of the Germans, may be seen the old feudal law, and all its original -parts, in _embryo_; which, in process of time, by gradually dilating and -unfolding themselves, grew into a perfect and compleat body. It will -be highly proper, therefore, for the clearer comprehension of what is -to follow, to dwell somewhat particularly upon, and to make ourselves -acquainted with, the manners and institutions of those people; and for -this purpose, perhaps, it will be sufficient to consider them under the -several following heads, viz. their general disposition and manners, the -several ranks and orders of persons among them, their form of government, -and the nature of their policy; their regulations touching property, -their methods of administering justice, and the nature of the punishments -they inflicted on criminals. - -First, as to their manners and general disposition: Germany was at that -time a wild uncultivated country, divided into a great number of small -cantons, separated from each other by thick forests, or impassable -morasses, and inhabited by a rude and simple people, who lived either -by the chace or pasturage, and were always either in a state of open -war, or a suspicious peace with their neighbours: A circumstance that -obliged every one of these little states to esteem military virtue in the -first place, and to train up all their people, fit for that purpose, in -the constant use of arms, and to keep them perpetually in a state ready -always for either offence, or defence[51]. - -But since, in every number of men, however assembled, some there will -be, from the natural strength of their bodies, and courage of their -minds, more fit for soldiers, and others, from the contrary causes, -better adapted to the arts of peace; these nations were necessarily -distributed into two ranks; those in whom the strength of the society -consisted, the freemen or soldiers, who were, properly speaking, the -only members of the community, and whose sole employment was war, or -(in the intervals of hostilities, what Xenophon considers as its image) -hunting; and an inferior order of people, who were servants to them, and, -in return for protection, supplied the warriors with the necessaries of -life, occupied the lands for them, and paid stipulated rates of cattle, -clothes, and sometimes corn, namely, where they had learned the use of -agriculture from the neighbouring Romans. I follow Craig in calling them -servants rather than slaves, as an expression much more suitable to -their condition; for they were not condemned to laborious works, in the -houses of the freemen, as the slaves of other nations were. Among these -simple people, the wives and children even of the greatest among them, -and the old men, unfit for the toils of war, were their only domestics. -The servants of the Germans lived apart, in houses of their own, and -when they had rendered to their lords the services due by agreement, -they were secured in the rest, as their own property; so that a servant -among these people, though meanly considered by the superior rank, was, -in truth, more a freeman than the generality of the Romans under their -Emperors[52]. It has been an antient observation, that servitude among -the northern nations hath always been more gentle and mild than among -those that lay more southerly: A difference, to be ascribed to the -different manners of the people, resulting partly from their climate, and -partly from their way of life. A plain and simple people, unacquainted -with delicacies, were contented with the plainest fair; which was easily -supplied, without afflicting their servants with heavy labour, and gave -no room for envy and discontent in the breasts of inferiors. And a nation -that had always the sword in their hands were too conscious of their own -strength, to entertain any apprehensions from those, who, from their -unfitness for that profession, were destined to other employments. All -motives, therefore, to fear on the one side, and to envy and discontent -on the other, being removed, we need not be surprized at the general -humanity with which the servants were treated in these northern regions. -The putting them in chains was a thing exceedingly rare, and the killing -them, except in a sudden gust of passion (an accident which frequently -happened among the freemen themselves) was almost unheard of. The only -difference in that case was, that the death of a servant was not looked -upon as a public crime, he being no member of the political society, -and therefore was not punished. Such then was the mutual affection and -confidence of these two ranks in each other, that whenever there was -occasion, they made no scruple of arming such of their servants as were -capable, and, by making them soldiers, admitted them into the number of -freemen; and the hopes of such advancement, we may be assured, was a -strong inducement to those of the lower rank to behave in their station -with fidelity and integrity. Another cause of this great lenity to their -servants arose from a custom peculiar to the Germans, which ordained, -that insolvent debtors should be reduced to servitude, until, either by -his labour, the creditor was satisfied, or, as it frequently happened, -the debt was paid by the insolvent’s relations. It was, indeed, reputed -dishonourable for the creditor himself to retain his debtor in servitude; -but then he either sold him to the prince, or some other person. - -Among so plain a people, perhaps it may be thought debts were rare, and -that few instances occurred of freemen’s being reduced to slavery; but -Tacitus assures us of the contrary[53]. These people were possessed with -the rage of gaming to such a degree, that nothing was more common than -to see them, when all their property was lost, set their liberty itself -at stake. It was natural, therefore, to treat those with gentleness, who -had been once perhaps the most valuable members of the body politic, -especially for them who knew their own privileges depended on the -uncertain caprices of the same goddess Fortune, and that an unlucky -throw might reduce them to-morrow to the same low condition. I have been -the more particular on this head, in order to shew, that, even in their -infancy, the feudal maxims were more favourable to the natural liberty -of mankind, than the laws and customs of the southern and more polite -nations, and were of such a spirit, as when circumstances changed, would -naturally expand, and extend that blessing to the whole body of the -people; as we find it at present in our excellent constitution. - -To return, therefore, to the freemen: We find no traces of any different -orders of men among them; but as no kind of government, however rude, can -subsist without some subordination, and as it was impossible for them -all to continue together in one body, it was found necessary, in order -to disperse them round the country, that they should be subdivided into -lesser parties, and to appoint to each a chief, the most eminent and -capable among them; who, when a district was assigned him, distributed -that among his followers; who again, after having retained what they -esteemed sufficient for their own purposes, assigned part of what they -had so received to their servants. And here, indeed, we see the first -rude original of lords and vassals. These lords were those, of whom -Tacitus says, _De minoribus rebus principes consultant_[54]. One of these -lords, and to him a larger territory was assigned than to the others, -was the head of the whole body politic, and honoured with the title of -king. He was the superior, who, at their general assemblies, made the -distribution already mentioned, and appointed the other lords. And, -besides his excelling the others in the enjoyment of a more extensive -district, and in having a greater number of vassals and servants, he was -remarkably distinguished from them in two particulars. His office was -for life, and, in some degree, hereditary; for, in every nation there -was one family, descended, it is to be presumed, from the first founder -of the state, or some ancient hero, which was the only family noble by -birth among them, and the members of which alone were capable of this -high station. Not that these kings succeeded in a lineal, or any other -regular course of descent; for Tacitus intimates sufficiently that they -were elective, when he says, _Reges ex nobilitate sumunt_[55]. And indeed -any one who considers attentively the circumstances of these people, -always either ready to invade their neighbours, or dreading invasions -from them, will allow, that any kind of a constant regular succession was -inconsistent with their preservation. They were necessitated to choose -among the royal family a man in the flower of youth, or, at least, in the -vigour of life, who, by his valour and wisdom, might prove the proper -head of a nation always in a state of war. This will appear beyond a -doubt, if we examine the ancient practice of all the kingdoms founded by -the Germans. Look over the lists of their kings in any one nation, and -examine the degree of kindred in which they stood related to each other, -and you will find them all, indeed, of one family; but you will, at the -same time, see that scarce a third of them could derive their kindred, -by way of title or descent, from their immediate predecessor; yet were -they obeyed chearfully by their subjects, nor ever looked upon in those -days as usurpers, though several modern writers, possessed with opinions -of their own ages, since kingdoms are almost universally settled in a -regular course of descent, have been so liberal in bestowing that title -upon them. - -Montesquieu allows this was the manner of succession in the second -race of the Franks, but insists that those of the first inherited -lineally[56]. But was this so originally, when Clovis came to the crown, -he who first united all the Franks under one sovereign? We find six or -seven independent kings of the Salian Franks, every one of them Clovis’s -near relations, and consequently descended from a common ancestor, at no -very great distance. He thought not himself, nor his posterity, secure -in the possession of the throne, until he had totally extirpated every -other branch, and reduced the royal family to his single person. Then, -indeed, there was no danger of a competition upon his death. So far was -the crown from descending to any determined person, that the kingdom was -divided among all his children; and, for several descents, his bloody -example was followed in one generation, and in the next a new division -took place; nor, in all this time, do we hear of any other title set up, -than what followed either from the will of the father, the consent of the -people, or the fortune of war; which, it is apprehended, is sufficient -to shew, that, in these early ages, there were no invariable rules of -succession settled among the Franks. Otherwise, how came the kingdom to -be divisible, and the right heir to be obliged to content himself with a -small portion of his supposed legal inheritance[57]? - -In the next lecture I shall give an account of the companions of the -prince among the Germans, and finish what I have to observe of the -constitution of their governments, and of their laws and customs, unto -the time of their entering into the Roman empire. - - - - -LECTURE IV. - - _The_ companions _of a German prince—The constitution of a - German kingdom—The condition of property in Germany—The methods - followed there of distributing justice, and the nature of the - punishments inflicted on criminals._ - - -Before we can be fully acquainted with all the several constituent parts -of the German state, it will be necessary to form a just notion of those -who were called the companions of the king or prince; who, being chosen -out of the most robust and daring of the youth, and having attached -themselves particularly to the person of their sovereign, were his -chief defence in war, and the great support of his dignity in times of -tranquillity. A few words of Tacitus will set this institution of theirs -in a clear light. Speaking of their princes, he says, “This is their -principal state, their chief strength, to be at all times surrounded with -a numerous band of chosen young men, for ornament and glory in peace, for -security and defence in war; nor is it among his own people only, but -also from the neighbouring communities, that a prince reaps high honour, -and great renown, when he surpasses in the number and magnanimity of his -followers; for such are courted by embassies, and distinguished with -presents, and by the terror of their fame alone often dissipate wars. In -the day of battle, it is scandalous for the prince to be surpassed in -feats of bravery, scandalous to the followers to fail in matching the -valour of the prince. But it is infamy during life, and an indelible -reproach to return alive from a battle wherein their prince was slain. -To preserve him, to defend him, and to ascribe to his glory all their -gallant actions, is the sum, and most sacred part of their oath. For from -the liberality of their prince they demand and enjoy that war-horse of -theirs, and that terrible javelin, dyed in the blood of their enemies. In -place of pay, they are supplied with a daily table and repasts, though -grossly prepared, yet very profuse. For maintaining such liberality and -munificence, a fund is furnished by continual wars and plunder[58].” - -Here, then, are to be seen most plainly the rudiments of that feudal -connection, that afterwards subsisted between the king and all his -military vassals, and of the oath of fealty which the latter took to -him. To his person, and to aid him in all he undertook, his companions -were bound, during his and their lives, by the strictest ties; but as to -other freemen, who lived apart in their villages, the bonds of allegiance -were much more loose. This rude people had no notion of what almost -every civilized nation hath laid down as a maxim, that being born in, -and protected by a society, creates a durable obligation. They served, -indeed, in consideration of the lands they held, in all defensive wars; -and in all offensive ones, which either were generally approved of, or -in which they chose particularly to engage themselves. Nay, so great -was the notion of particular independence among these people, that they -thought that all of the freemen or soldiers, except the _comites_, who -had by oath bound themselves to the person of the king for life, were -at liberty to engage in expeditions, that neither the king, nor the -majority of the nation consented to; and that under leaders of their own -choosing. For as, at their general meetings, war was necessarily the most -common subject of deliberation, if any one proposed an enterprize, all -who approved the motion were at liberty to undertake it; and if the king -declined commanding therein, they chose a general capable thereof; and -when, under his conduct, they had succeeded, they either returned, and -divided the spoil, and became subjects of their former king as before; -or, if they liked the country they had subdued better, settled there, -and formed a new kingdom, under their victorious leader. _Duces ex -virtute sumunt_, saith Tacitus; a practice hard to be accounted for among -nations exposed to continual danger, and which must be thereby frequently -weakened, on any other supposition, than that it was first introduced -to disburthen a narrow territory, overstocked with inhabitants. This -effect, however, it must have had, that their kings were rendered more -martial, and obliged equally by their glory and interest, to command in -every expedition, that was agreeable to any considerable number of their -subjects. - -From this custom Montesquieu very ingeniously conjectures, that the -Franks derived their right of conferring on their _mairs de palais_ -the power of war, at a time, when, by the long continued slaughters of -the royal family, they were obliged to place the crown on the heads of -minors, or of princes as incapable as minors; a power that enabled them, -by degrees, to usurp the civil administration, and at length to transfer -the title also of royalty to a new race, in the person of Pepin[59]. - -Such, then, was the face of a German state. A king chosen for his -illustrious extraction, attended by a numerous body of chosen youth, -attached to his service in war by the strictest bonds of fidelity; a -number of freemen divided into villages, over each of which was an -elective chief, engaged, likewise, to military duty, but in a laxer -manner; and under all these were the servants, who occupied the greatest -part of the land, and supplied the freemen with the necessaries of life. - -It is time now to attend a little to their domestic policy, and to -inform ourselves what were the rights of each of these orders in the -time of peace. The king, we are assured by Tacitus, was far from being -absolute[60]. He was judge, indeed, among his own peculiar vassals, who -lived on his demesne, as the other chieftains were in their respective -districts. He presided in their general assemblies, and was the first -who proposed matters for their deliberation. His opinion had great -weight, indeed, from his rank and dignity, but his power was rather -that of persuasion than of command. The royal family was no otherwise -distinguished from others, than as their personal merit acquired -influence, or their high birth and capability of succession engaged -respect. The companions of the prince were highly honoured for their -faithful attachment to him, and their valourous atchievements in war; -but, as to rights and privileges, were on the common footing of other -freemen. The only distinction was between the chieftains, or lords of -the villages, and the vassals who were under their jurisdiction. The -chieftains were judges in their respective districts; but, to prevent -partiality, to each of them were assigned an hundred persons, chosen -among the populace, to accompany and assist him, and to help him at once -with their authority and their counsel. And this institution was, in all -probability, the original of the jurisdiction of the _pares curiæ_ in -the feudal law. Another, and a very great check on their chieftains, was -their being elective, and consequently amoveable every year, if their -conduct was displeasing either to prince or people. These elections, as -well as those of their assessors, were made in their assemblies; where, -indeed, every thing of any consequence was transacted, and therefore they -deserve to be particularly treated of. - -These conventions, then, unless they were summoned on extraordinary -occasions, were regularly held once a month, on certain stated days; but -such was the impatience of this people of controul, or any regularity -of proceeding, that Tacitus observes, that frequently two or three days -were spent before they were all assembled. For in these meetings, every -freeman, that is, every soldier, had an equal voice. They appeared all -in arms, and silence was proclaimed by the priests, to whom also it -belonged to keep the assembly in order, and to punish all disturbers -of its regularity. The king in the first place was heard, next such of -the chiefs as had any thing to propose, and lastly others, according to -their precedence in age, nobility, military virtue, or eloquence. If the -proposition displeased, they rejected it by an inarticulate murmur. If it -was pleasing, they brandished their javelins; the most honourable manner -of signifying their consent being by the sound of their arms. But this -approbation of the general assemblies was not of itself sufficient to -establish a resolution. As the sudden determinations of large multitudes -are frequently rash, and injudicious, it was found necessary to have what -they had so determined re-considered by a select body, who should have a -power of rejecting or confirming them. For this purpose the chieftains -were formed into a separate assembly, who, in conjunction with the king, -either disannulled, or ratified what had been agreed to by the people at -large[61]. - -Such then was the constitution of a German kingdom, a constitution so -nearly resembling our own at present, as at first view would tempt any -one to think the latter derived immediately from thence. Yet this was not -the case. With respect to the Saxon times, as far as we can judge from -the few lights remaining, the form of government seems very nearly to -resemble this account which Tacitus gives us; but, for two centuries, at -least, after the conquest, the English constitution wore a face purely -feudal. The sub-vassals had long lost the privilege of being members of -the general assembly, from causes that shall be hereafter attempted to -be explained; and the whole legislative power was lodged in the king -and his immediate vassals, whose interests frequently clashing, and -creating continual broils, it was found necessary, for the advantage both -of the sovereign and nobles, that a proper balance should be formed. -Accordingly, much at the same time in France, Spain, and England, namely, -in or about the thirteenth century, the happy method of readmitting the -third estate, by way of representation, was found out, with an addition -very favourable to the natural rights of mankind, that traders and -artizans, who before had been treated with the most sovereign contempt, -were now permitted to make part of the general assembly, and put on an -equal footing with other subjects[62]. - -But to return to the assembly of German chieftains, or their house of -lords, as I may call it; besides a share in the legislative power, they -were likewise a council, to assist the king in the execution of the -resolutions of the general assembly, and determined solely by their -own authority all matters of lesser moment, that did not immediately -affect the whole community. _De minoribus rebus principes consultant, de -majoribus omnes._ - -Many other things were likewise transacted in these general assemblies, -as particularly the admission of a new member into the political society. -When a youth was judged capable of bearing arms, he was introduced by -his relations into the assembly; and if they testified his capacity of -wielding them, he was dignified with a lance and javelin by one of the -chieftains, or by his father, or some other near relation. This was his -_toga virilis_. Then, and not before, was he emancipated from the family -he belonged to, was permitted to become a soldier, and in consequence -admitted to all the privileges of a free subject. A practice that, -in after ages, gave rise to the solemn and public manner of creating -knights[63]. - -This, likewise, was the proper place of accusing criminals of public -crimes, namely such as were looked upon by those people particularly -to affect the whole society; neither was it unusual, likewise, to -bring hither accusations of private wrongs, if the party injured was -apprehensive of partiality in his own canton. - -But the business of greatest moment, next to legislation, was, that, -once in a year, in these assemblies, each village, with the approbation -of the king, chose their chiefs, and their hundred assistants[64]. Here -it was they either received a testimony of their good behaviour, by -being continued in office another year, or saw themselves reduced to -the rank of private subjects, if their conduct had not been acceptable. -At the same time were the lands distributed to the several chieftains, -which leads me to say something on the next head, their regulations with -respect to property; as to which their institutions were very singular, -and totally different from those of all ancient, as well as modern -nations. - -All property being then naturally divisible into two kinds, moveable and -immoveable, of the first these people had but a scanty share, their whole -wealth consisting in their arms, a few mean utensils, and perhaps some -cattle. The use of gold and silver, in the way of commerce, was utterly -unknown to them, except to a few of their nations, namely such as lived -near the Rhine, and had acquired some by dealing with the neighbouring -Gauls. Consequently, there was no such thing as an accumulation of wealth -among them, or any great disparity in the distribution of this kind of -property, over which each had uncontrouled dominion during his life. But -as testaments, or last wills, were unknown amongst them, upon death, the -right went according to the plain dictates of nature. Tacitus saith, “To -every man his own children were heirs and successors. For want of them, -his nearest of kin, his own brothers, next his father’s brothers, or -his mother’s.” Whatever there was, was divided among the males next in -degree; save that to each of the females, a few arms were assigned, the -only dowry in use among those people; a dowry which, as Tacitus saith, -signified that they were to share with their husbands in all fortunes of -life and death. Accordingly, they constantly attended them to the field, -were witnesses of their valour, took care of the wounded[65]; and often, -if their party had the worst, they ran into the ranks, and by their -presence and danger, animated the men to renew the charge. - -But with respect to real or landed property, the case was very different. -Here a man had only the use, or enjoyment of the profits; and that, -too, but a temporary one. The real property, or _dominium verum_, was -lodged in the community at large; and was, at the end of every year, -cantoned out, and distributed to the several tribes of the people; and -the portion assigned to each was after that subdivided to the respective -individuals; who by these means were perpetually removed from one part -of the territory to another; nor could any man tell in what place his -lot was to fall the next year[66]. And this custom, absurd as it seems -to us, they were so fond of, as to continue for some time after they -settled in the Roman territories; until, growing by degrees acquainted -with the conveniencies of life, a change of manners was introduced, and -they wished for more settled habitations. Then came into use grants -for terms of years, after for life, and lastly, estates descendible -to heirs, which are those we, properly speaking, called _fiefs_. This -continual removal of habitation, so intolerable to a people any way -accustomed to comfortable dwellings, was no manner of inconvenience to -them. Their little substance was easily removed, and two or three days -were sufficient to erect a sorry hovel, which contented the wishes of -the greatest among them[67]. But their passion for this constant change -of place seems derived from that condition which I have already observed -they were in, namely, a middle state between hunters and shepherds; -and that they still retained that practice, was an evidence that they -had not been long reclaimed from a savage life. Tacitus indeed says, -that, in the intervals of war, they were not much employed in hunting, -but lived a lazy and inactive life. This, however, I apprehend, must -be understood only of a few nations, nearest to the Romans, where game -was not so plentiful, and not of all the Germans in general: for it -is certain the Franks had a strong passion that way, after they were -settled in Gaul; and from them the plan of the forest laws, so justly -complained of in England, after the conquest, was derived. And true it -is, that whole nations, as well as individuals, were possessed with this -rambling inclination; and that, not always with a view of settling in a -better country. If the Germans changed their barren wilds for the warm -sun and fertile climate of Gaul, we are assured by the same authority, -that many tribes of the Gauls, on the other hand, removed to the forests -of Germany. If Jornandes tells us, that the Goths quitted the bleak and -barren mountains of Scandinavia for the pleasant banks of the Danube, -he likewise informs us, that, afterwards, they returned back into their -native country. - -As to their methods of administering justice, I have already observed, -that their chieftains, in the several districts, assisted by their -assessors, were their judges. Before them all causes were brought, which -were not discussed in their general assemblies; but as to the manner of -investigating the truth, all the German nations did not agree. Nay the -Salian Franks differed considerably from their brethren, the Ripuarian -Franks. If the judge, or his assessors, or any of them, had knowledge of -the fact in dispute, which often happened, as these people lived much in -public, and in the open air, they gave sentence on such their knowledge. -This was common to them all; but if there was no such knowledge in any -of the _pares curiæ_, as I may call them, and the fact in question was -denied, the Salians proceeded thus: The accuser or plaintiff produced his -witnesses, the accused did the like; and on comparing the evidence on -both sides, the judges gave sentence. If the plaintiff had no witnesses, -the defendant, on his denial, was dismissed of course. If the witnesses -for the plaintiff failed in fully proving the point, and yet their -testimony was such, as induced a presumption which the other party was -not able to remove, the trial was referred to the ordeal[68]. That of -boiling water was the most usual among them. The manner was thus: The -person suspected plunged his hand into the boiling water, which was -afterwards carefully closed up, and inspected at the end of three days: -If no sign of the scalding then appeared, he was acquitted; if otherwise, -he was esteemed guilty[69]. - -It is strange that any people should, for ages, make use of such a -method, which a very little reflection, or common experience, might -easily satisfy them had no manner of connection with guilt or innocence. -But, besides the gross superstition of these nations, who thought the -honour of providence concerned in the detection and punishment of -criminals, Montesquieu hath given us another reason for this practice, -which, whether just or not, for its ingenuity, deserves to be taken -notice of. He observes, that the military profession naturally inspires -its votaries with magnanimity, candour, and sincerity, and with the -utmost scorn for the arts of falshood and deceit. This trial, then, he -imagines calculated to discover plainly to the eye, whether the person -accused had spent his whole life in the arts of war, and in the handling -of arms. For if he had, his hands would thereby have acquired such a -callousness, as would prevent any impression from the boiling water, -discernible at that distance of time. He therefore was acquitted, because -it was presumed he would not screen himself by a falshood. But if the -marks appeared, it was plain he was an effeminate soldier, had resisted -the force of education, and the general bent of his countrymen; that he -was not to be moved by the spur of constant example, that he was deaf to -the call of honour; and consequently such a person whose denial could -have no weight to remove the presumption against him[70]. - -These were the methods of trial among the Salians, but the Ripuarian -Franks, the Burgundians, and several other German nations acted very -differently. No witnesses were produced among them on either side, but -they contented themselves with what were called negative proofs; that is, -the person accused swore positively to his own innocence, and produced -such a number of his relations as the custom of the country required: -or if he had not relations enough, the number was made up out of his -intimate acquaintance: These were to swear that they believed his oath -to be true, and upon this he was acquitted. But if he declined the oath, -or could not produce a sufficient number of compurgators, he was found -guilty; a practice that fully proves these nations were, when this method -was introduced, a people of great simplicity and sincerity[71]. - -But as, by this means, every profligate person, with the assistance of -a few others as wicked as himself, was sure to escape, the defects of -this kind of trial introduced another, or rather revived an antient one, -no less inconclusive. Antiently, the Germans had no judicatures for the -decision of private wrongs; but each in person took his own satisfaction, -and this introduced perpetual combats. When the new method of trial came -in use, a party seeing his adversary ready to defeat his just demands, -and screen his injustice with perjury, resorted to his antient right, -refused to accept the oath, and appealed to the providence of God by -the trial of battle: a method as absurd, indeed, as the former, but -peculiarly adapted to the way of thinking of the Germans, who frequently, -before they entered into a war, prognosticated the success of it from -the event of a combat between one of their own nation, and a captive of -the enemy[72]. This kind of trial gained ground among all the defendants -of this ferocious people[73], and introduced itself at length among the -Salians, who had it not at first, and who, by admitting positive proofs, -had no need of it; and, though long fallen into disuse, hath left behind, -its offspring, private duelling. It hath been long since observed, that -this fashionable custom owed its origin to these northern nations, the -ancestors of the present inhabitants of Europe, as no other nations, -antient or modern, however martial or disposed to war, had any knowledge -or practice of it; but it is undeniably evinced by this, that as a lie, -above all other provocations, is the strongest, and what lays gentlemen -of honour under an indispensible necessity of duelling, so were _you lie_ -the very words mutually given and received in old times, the accustomed -form of joining issue by battle, after which neither party, without -perpetual infamy and degradation from his rank, could recede. - -I have taken the more notice of these four different methods of trial -among the old Germans, as every one of them has been received into -England. Concerning the first, the trial by witnesses, little need be -said. As it is the fairest, and the justest, it has accordingly, pursuant -to the practice of all civilized nations, prevailed over all the rest; -and it is that, and that only, that we use at this day. But the ordeal -also was in use among the Saxons, and continued some time after the -Norman conquest; as appears, not only by the old records of the law, -but from the famous story, whether true or false, of queen Emma, mother -of Edward the Confessor, and the plow-shares[74]. The trial by negative -proofs, though out of practice, is still in being, in what is called by -us the _wager of law_; where, if a person is impleaded in an action of -debt, on a simple contract, he may clear himself, by swearing he oweth -it not, and by producing eleven others, who swear to their belief that -he has deposed the truth[75]. Hence it has happened, that, for a long -time past, _actions of debt_, in such cases, have not been brought, but -another, called an _action on the case_, is the usual method, which -admits the parties on both sides, as to the point of debt, _vel non -debet_ to an examination of witnesses. For the last, the trial by battle, -our old books are full of it, in real actions; and although, to prevent -the inconvenience and uncertainty of it, the grand assize was invented; -yet was it in the tenant’s, that is, the defendant’s option, to choose -which method of trial he pleased. The latest instance of joining issue -by battle, I have met with, is in Dyer’s Reports, in the beginning of -Elizabeth’s reign[76]; but by this time it was so much discouraged, that, -by force of repeated adjournments, the parties were prevailed on to -agree, and judgment was at length given upon the failure of one of the -parties appearing on the day appointed for the combat. - -When the truth, by some of the methods above-mentioned, was ascertained, -judgment was to be given. Here it will be proper to observe, that, among -these people, there were only two kinds of crimes, that were looked upon -as public ones, and consequently capital. The first was treason, or -desertion in the field, the punishment hanging; the second cowardice, -or unlawful lust, for they were strict observers of the nuptial band, -the punishment stifling in a morass, with an hurdle over them. It -seems, at first view, surprising, that murder, which Tacitus assures -us, from sudden gusts of passion, and intemperance in liquor, was very -frequent, should not, as it so much weakened the strength of the nation, -be considered as a criminal offence, and punished accordingly[77]. But -a little reflection on their situation will reconcile us to it. The -person slain was already lost to the society, and if every murder was a -capital offence, the state would lose many of its members, who were its -chief supporters. Besides, if the slayer had no hopes of mercy, nothing -else could be expected than his desertion to their enemies, to whom he -could be of infinite service, and to them of infinite detriment, from his -knowledge of their strength and circumstances, and of the passes into -their country, through the morasses and forests, which were their chief -defence. Murder, therefore, like other lesser crimes, was atoned among -those people, as it was among the ancient Greeks, who were in pretty -similar circumstances, in the heroic times, as Ajax assures us in these -words, in the ninth Iliad: - - και μεν τις τε κασιγνητοιο φονοιο - Ποινεν, η του παιδος εδεζατο τεθνειωτος, - -namely, by a satisfaction of cattle, corn, or money, to the persons -injured, that is, to the next of kin to the deceased, with a fine to the -king or lord, as an acknowledgment of his offence, and to engage the -society to protect him against the future attempts of the party offended. -These satisfactions were not regulated originally, nor fixed at any -certain rate, but left to the discretion of the injured, or next of kin. -However, if he appeared extraordinarily unreasonable, and refused what -was judged competent, the society, upon payment of his fine to their -head, took the offender into protection, and warranted his security -against the attempts of the other party, or his friends. After these -nations were settled in the Roman empire, these satisfactions for each -offence were reduced to a certainty by their laws[78]. - -This is as much as I have thought necessary to observe at present, -concerning the manners and customs of these people, while they remained -beyond the Rhine. It will next be proper to see how far afterwards -they retained them, and what alterations were introduced by their new -situation. - - - - -LECTURE V. - - _The decline of the Roman empire—The invasions of the Northern - nations—The manner in which they settled in the Roman - provinces—The changes insensibly introduced among them in - consequence of their new situation—The policy and condition of - the Franks after they had settled in France—The rise of the - feudal law—Estates beneficiary and temporary._ - - -It is full time now to quit the wilds of Germany, to attend these nations -in their passage into the Roman dominions, and to take a view of the -manner wherein they settled themselves in these new countries. The Roman -empire had been long on the decline; but especially, from the time of -Severus, it every day grew weaker. This weakness arose, in a great -measure, from an excessive luxury, which disqualified not only their -great ones, but the bulk of the Roman people for soldiers; and also from -the tyrannical jealousy of their emperors, who were afraid of trusting -persons of virtue or ability, and had no other method of supporting their -authority, than by employing numerous standing armies, that, under them, -pillaged and oppressed the defenceless populace; and lastly, from the -licentiousness of the soldiery, who made and unmade emperors according -to their wild caprices. Hence proceeded many competitions for that -dignity, and continual battles and slaughters of their men at arms; the -natural consequence of which was, that whoever prevailed in these bloody -contests, always found himself less able and powerful to defend the -empire from foreign enemies or domestic competitors, than his predecessor -was[79]. - -About the year 200 after Christ, the several nations who had been -hitherto cooped up beyond the Rhine and the Danube, and kept in some -awe by the terror of the Roman name, began to gather some courage from -the weakness of the empire; and from that time few years passed without -incursions into, and ravages of, some part of the southern territories, -by one or other of these people; and how redoubtable they became to that -decaying state, may easily be judged from the particular fondness the -emperors of those days had, upon every slight advantage gained over them, -for assuming the pompous titles of Gothicus, Vandalicus, Alemannicus, -Francicus, &c. not for the conquest, or reducing into subjection those -several people, as in antient times, but merely for having checked them, -and kept them out of the Roman boundaries[80]. - -But these invasions of the northern nations were a long time confined -to the single views of rapine and plunder; for as yet they were not -fully convinced of their own strength, and the enfeebled condition of -their enemies. And perhaps they might have longer continued in this -ignorance, and within their former bounds, had it not been for an event -that happened about the year 370, the like to which hath several times -since changed the face of Asia. I mean a vast irruption of the Hunns, and -other Tartarian nations into the north of Europe. These people, whether -out of their natural desire of rambling, or pressed by a more potent -enemy, were determined on a general change of habitation; and, finding -the invasion of the Persian empire, which then was in its full grandeur, -an enterprize too difficult, they crossed the Tanais, and obliged the -Alans and Goths, who lived about the Borysthenes and the Danube, to seek -new quarters. The former fled westward to Germany, already overloaded -with inhabitants; and the latter begged an asylum from Valens in the -eastern empire, which was willingly accorded them. The countries south -of the Danube were before almost entirely depopulated by their frequent -ravages. Here, therefore, they were permitted to settle, on the condition -of embracing the Christian faith; and it was hoped they, in time, would -have proved a formidable barrier against the incroaching Hunns, and, by -a conformity of religion, be at length melted into one people with the -Romans. For the attaining this purpose, they were employed in the armies, -where, to their native fierceness and bravery, they added some knowledge -of discipline, the only thing they wanted; and many of their kings and -great men were in favour at court, and either supported by pensions, or -raised to employments in the state[81]. - -But the injudiciousness of this policy too soon appeared; and indeed it -was not to be expected that a people used entirely to war and rapine, -and unaccustomed to any other method of subsistance, could in a short -time be reduced to the arts of social life, and to the tillage of the -earth; or be retained in any moderate bounds, in time of peace, when, -by being admitted within the empire, they saw with their own eyes the -immense plunder that lay before them, and the inability of the Romans to -oppose their becoming masters of it. During the life of Theodosius they -remained in perfect quiet, awed by his power and reputation; but when he -left two weak minor princes under the guardianship of two interested and -odious regents, it was obvious they could not be bridled much longer. -Though, if we are to credit the Roman historians, their first irruption -was owning to the jealousy Ruffinus, the prime minister of Arcadius, -entertained of Stilicho, the guardian of Honorius. This latter, it is -said, ambitious of holding the reins of both empires, pretended, that -Theodosius had on his death-bed appointed him sole regent of both. For, -though Arcadius was now of sufficient age to govern of himself, he was, -in truth, for want of capacity, all his life a minor. Ruffinus, we are -told, conscious of his rival Stilicho’s superior talents and power, -resolved to sacrifice his master’s interest rather than submit to one he -so much hated; and, accordingly, by his private emissaries, stirred up -both Goths and Hunns, to fall at once on the eastern empire[82]. - -In the year 406, these nations, so long irreconcileable enemies to each -other, poured their swarms in concert into the defenceless dominions -of Arcadius. The Hunns passed by the Caspian sea, and with unrelenting -cruelty ravaged all Asia to the gates of Antioch; and at the same -time the Goths, under the so much dreaded Alarick, with no less fury, -committed the like devastations in Illyricum, Macedon, Greece, and -Peneloponnesus. Stilicho, thinking that his saving the eastern empire -would undoubtedly accomplish for him his long wished-for desire of -governing it in the name of Arcadius, as he did the western in that of -Honorius, hastened into Greece with a well-appointed army. But, when he -had the barbarous enemy cooped up, and, as it were, at his mercy, the -weak prince, instigated by his treacherous minister Ruffinus, sent him -orders to retire out of his dominions. The Goths returned unmolested to -the banks of the Danube, laden with plunder; and Stilicho went bank to -Italy boiling with rage and resentment, but he never had an opportunity -of wreaking his vengeance on his treacherous rival. - -In the next year, Germany, surcharged with her own inhabitants, and the -nations who fled from the Hunns, and, perhaps, instigated by Ruffinus, -to find work for Stilicho at home, sent forth her multitudes across the -Rhine; and, for three successive years, the Suevians, Alans, Vandals, and -Burgundians, laid all the open country of Gaul waste; and, about the same -time, Constantine, a Roman Briton, assumed the imperial purple, and was -acknowledged by all the Romans of that island and Gaul. - -The western empire was now utterly disqualified for defence: Stilicho, -the only man whose abilities and influence were capable of saving the -falling state, had been suspected of treason in aspiring to the diadem, -and was put to death; and Alarick, having before effectually plundered -Greece, was now acting the same part in Italy, while Honorius, shut up in -Ravenna, made but feeble efforts of resistance. Twice was Rome besieged, -once redeemed by an immense ransom, and the second time taken, plundered -and burnt. At length these calamities a little subsided; Constantine, the -British usurper of the empire, died; and all the western Romans again -acknowledged Honorius; but the western empire, though she lingered some -time, had received her mortal wound, and utterly perished in less than -fifty years. The distressed emperor Honorius granted to the Burgundians, -who were the most civilized of these barbarians, and had embraced the -Christian religion, the country they had possessed themselves of, namely, -Alsace and Burgundy. The Goths, who were already Christians, but of -the Arian persuasion, having by this time exhausted Italy, were easily -prevailed on, under Ataulphus, Alarick’s successor, to settle in the -south-west of Gaul, under a like grant; which country had been quitted -in the year 410 by the Sueves, Alans, and Vandals, who had over-run all -Spain, and divided it into three kingdoms. And thus were two kingdoms -formed in the south of Gaul, the new inhabitants of which coming by -compact, and under the title of the Roman emperor, behaved afterwards to -the subjected Romans and Gauls not in the light of brutal conquerors. -Though they themselves retained their own customs, they indulged these in -the use of the Roman laws, suffered them to enjoy a considerable portion -of the lands, and made no very afflicting distinctions between themselves -and their subjects. - -The Burgundians, particularly, we are informed, took two thirds of the -lands, the pasturage and forests, with one third of the slaves to look -after their flocks, and left the remainder to the Romans, who were -skilled in agriculture. They also quartered themselves in the houses of -the Romans, which naturally produced an acquaintance and amity between -the two nations. But one great reason, as I apprehend, of the lenity of -these people to the vanished (and a similar one will account for the -Ostrogoths and Lombards in Italy, afterwards, following their example, -which likewise hath been taken notice of with wonder by some authors) was -their neighbourhood to the Roman empire, which still continued in name in -the west, and which they might well be afraid of seeing revived, under -a prince of ability, if their harsh treatment alienated the conquered -people’s affections from them[83]. - -But different was the treatment the conquered met with from the Franks, -who about this same time settled themselves at a greater distance from -Italy, namely, in Belgic Gaul. The Franks, above most of the other -German nations, had been for a considerable time attached to the Romans, -insomuch that if they did not receive their kings from them, as Claudian -tells us they did from Honorius, at least the kings received their -confirmation from the emperors; and they continued in this fidelity till -the year 407, when they fought a bloody battle with the Sueves, Vandals, -and Alans, to prevent their passing the Rhine, to invade the Roman -territories. But when they found the western empire already dismembered, -they thought it not convenient to lie still, and suffer other nations -to share the prey entirely amongst themselves. The Salians, therefore, -took possession of the present Netherlands, and the Ripuarians to their -original country of Mentz and Hesse, added Treves, Cologne, and Lorrain. -Some have thought these people had grants from the Roman emperor, in the -same manner as I have mentioned before concerning the Burgundians and -Visigoths; but I should, with others, apprehend this to be a mistake; -for Ætius the Roman general left the Goths and Burgundians in quiet -possession of their seats, but defeated, and obliged the Franks to repass -the Rhine, which made them, after the danger was over, return with double -fury; and for a long time after they treated the conquered Romans in the -stile of masters, and with many afflictive distinctions, unknown to their -neighbours the Goths and Burgundians[84]. - -Many, in the first heat of victory, they reduced to slavery, to a -servitude very different from what had been before practised in Germany, -and nearly approaching to what was used by the Romans. For whatever -property was acquired by these slaves or servants, who in after ages were -called Villains, belonged to their masters, not absolutely, as at Rome; -but the masters claimed and took possession of it, and they (I mean in -France) for the enjoyment of what was permitted them, paid a stipulated -tax called _census_, which was the only tax used there in those ancient -times. However, they did not employ them in domestic drudgery, but -suffered them to live apart, as the proper German servants had done. -Their duties were uncertain, in this agreeing with those of the men of -war, and differing from those of the middle rank, which I shall hereafter -mention, and were of the most humiliating kind, they being obliged to -attend at their lord’s summons, to carry out dung, remove nuisances, -and do other mean and servile offices. The number of these slaves and -villains for centuries perpetually increased, from the many wars both -foreign and civil, these people were engaged in, and the _jus gentium_ of -those ages, by which all that were taken in war were reduced to slavery; -insomuch that, by the year 1000, the number of these villains was -immense, whole cities and regions being reduced to that state[85]. - -This introduction of a new order of men, unknown to the original German -policy, and inferior to all others, was of advantage to that which had -before been the lowest, I mean the _servants_, as they were called -in Germany, or _socage tenants_, as they were called in England; for -the duties they paid their lords were fixed at a certain rate, which -being performed, they were chargeable with no other burdens, and, -though no members of the body politic, as having no share in the public -deliberations, either in person or by representation, were in reality -free men. These, with the addition of several of the captive Romans, who -were most skilful in agriculture, were the successors of the old servants -in Germany; but their numbers, from the causes before-mentioned, the -perpetual wars, continually decreased, great multitudes of them being -reduced into the state of villainage[86]. - -The soldiers, who were really what composed the nation, continued -for a longer time pretty much in the same state as in Germany; for a -whole people do not part with their accustomed usages and practices on -a sudden. They changed their habitations as before, their manner of -judicature and administering justice continued the same, they met in -general assemblies as usual, but, as they were now dispersed over a -more extensive country, not so frequently as formerly. When they were -converted to Christianity, which happened under Clovis, who, by uniting -all the Franks, subduing the Alemans, and conquering considerable tracts -of country from both the Visigoths and Burgundians, first formed a -considerable kingdom, it was found exceedingly inconvenient to assemble -every month. Thrice in the year, namely on the three festivals, was -found sufficient, except on extraordinary occasions; and this method was -continued many ages in France and in England. For hundreds of years after -the conquest, these were the most usual and regular times of assembling -parliaments. - -But though things, in general, wore the same face as when these people -remained at home, it will be necessary to observe, that a change was -insensibly introducing, the king and the chieftains were daily increasing -their privileges, at the expence of the common soldiers, an event -partly to be ascribed to the general assemblies being less frequent, -and consequently fewer opportunities occurring for the people at large -to exert their power; but principally to the many years they had spent -successively in camp, before they thought themselves secure enough to -disperse through the country. The strictness of military discipline, and -that prompt and unlimited obedience its laws require, habituated them to -a more implicit submission to their leaders, who, from the necessities -of war, were generally continued in command. And it is no wonder that -while the authority of the inferior lords was thus every day gaining -strength, that of the king should encrease more considerably. For, -probably, because he, as general, was the fittest person to distribute -the conquered lands to each according to his merits, he about this time -assumed to himself, and was quietly allowed the entire power of the -partition of lands. They were still, and for some considerable time -longer, assigned in the general assemblies, but according to his sole -will and pleasure, to the several lords, who afterwards subdivided -them to their followers in the same manner at their discretion; whence -it came, that these grants were called benefices, and are constantly -described by the old writers, as flowing from the pure bounty and -benevolence of the lord[87]. - -A power so extraordinary in a king would tempt any one, at first view; to -think that he who had so unlimited a dominion over the landed property, -must be a most absolute monarch, and subject to no manner of controul -whatsoever. It will therefore be proper to make an observation or two, to -shew why, in fact, it was otherwise. First, then, the ascendant the lords -had gained over their followers, made it extremely dangerous for the king -to oppress the lords, lest it might occasion, if not a rebellion, at -least a desertion of them and their people. For the bonds of allegiance, -except among the companions of the king, as I observed before, were not -yet fully tied. On the other hand, the interest of the lords obliged them -to protect their inferiors from the regal power. Secondly, this power of -the king, and of his lords under him, was not unlimited in those times, -as it may appear to be at first sight, and as it became afterwards. For, -though he could assign what land he pleased to any of the Franks, he -could not assign any part to any other but a Frank, nor leave any one of -the Franks unprovided of a sufficient portion, unless his behaviour had -notoriously disqualified him[88]. - -But the strongest reason against this absolute power in those times, -is to be drawn from the common feelings of human nature. As absolute -monarchies are only to be supported by standing armies, so is an absolute -unlimited power over that army, who have constantly the sword in their -hands, a thing in itself impossible. The Grand Seignior is, indeed, the -uncontrouled lord of the bulk of his subjects, that is, of the unarmed; -but let him touch the meanest of the janizaries, in a point of common -interest, and he will find that neither the sacredness of the blood of -Ottoman, nor the religious doctrine of passive obedience, can secure his -throne. How then could an elective prince, in these northern regions, -exercise an uncontrouled dominion over a fierce people, bred up in the -highest notions of civil liberty and equality? One of their old maxims -they long religiously adhered to, that is, that, in consideration of -their lands, they were bound to serve only in defensive wars; so that -a king who had engaged in an offensive one, had every campaign a new -army to raise by the dint of largesses; which if he had no treasure left -him by his predecessor, as he frequently had, and which every king by -all means was diligent in amassing, he supplied from the profits of his -demesns, the _census_ on his villains, or else from foreign plunder[89]. - -But these people had not long been settled in their new seats, before the -encrease of their wealth, and the comfortableness of their habitations, -rendered a constant removal inconvenient, and made them desirous of more -settled assurance in their residence, than that of barely one year. Hence -it came, that many were, by the tacit permission of the king, or the -lord, allowed to hold after their term was expired, and to become what -our law calls _tenants by sufferance_, amoveable at any time, at the -pleasure of the superior; and afterwards, to remedy the uncertainty of -these tenures, grants for more years than one, but generally for a very -short term, were introduced. The books of the feudal law, written many -hundred years after, indeed, say that the first grants were at will, -then for one year, then for more; but I own I cannot bring myself to -believe that these conquerors, who were accustomed in Germany to yearly -grants, could be satisfied with a tenure so precarious as under that -of a year, in their new acquisitions. These grants at will, therefore, -which are mentioned in those books, I understand to be after their term -ended. I mean this only as to the warrior-Franks, for as to the socagers -and villains, I will readily allow that many of the former, and all the -latter, were originally at pleasure[90]. - -About this period, as I gather from the reason and circumstances of -the times, was introduced the tenure of castleguard, which was the -assignment of a castle, with a tract of country adjacent, on condition -of defending it from enemies and rebels. This tenure continued longer -in its original state than any other; for by the feudal law it could be -granted for no more than one year certain[91]. - -It is time now to take notice of such of the Romans as lived among -the Franks, and by them were not reduced to slavery. Clovis began his -conquests with reducing Soissons, where a Roman general had set himself -up with the title of a king; and after he had extended his conquests over -all the other states, the Franks, and some other German nations, the -Armorici, the inhabitants of Brittany, who, cut off from the body of the -empire, had for some time formed a separate state, submitted to him on -condition of retaining their estates, and the Roman laws. Their example -was soon followed by others. The Gauls who dwelt on the Loire, and the -Roman garrisons there, were taken into his service. Thus was the king of -France sovereign of two distinct nations, inhabiting the same country, -and governed by different laws. The Franks were ruled by their customs, -which Clovis and his successors reduced into writing; the Romans by the -Imperial law. The estates of the one were beneficiary and temporary; -those of the others were held _pleno jure_ and perpetual, and now, or -soon after, began to be called _allodial_. But these allodial estates -were not peculiar in after times to the Romans; for as these estates were -alienable, many of them were purchased by the Franks: So that we read, -that when Sunigisila and Callamon were deprived of the benefices they -held as Franks, they were permitted to enjoy their estates in propriety. -As the Romans were, before their submission, divided into three classes, -the nobles, the freemen, and the slaves, so they continued thus divided; -the nobles being dignified with the title of _convivæ regis_[92]. - -But as it was unsafe to trust the government of these new subjects in -the hands of one of their nation, the king appointed annually one of his -companions, or _comites_, for that purpose, in a certain district; and -this was the origin of counties, and counts. The business of these lords -was to take care of, and account for the profits of the king’s demesns, -to administer justice, and account for the profits of the courts; -which were very considerable, as the Roman laws about crimes being, by -degrees, superseded, and consequently capital punishment in most cases -abolished, all offences became fineable, a third of which they retained -to themselves. They also, in imitation of the lords of the Franks, -led their followers to the wars. For every free Roman, that held four -manors, was obliged to serve under his count; and those that had more -or less contributed in proportion. This military duty, together with an -obligation of furnishing the king with carriages and waggons, was all the -burden put upon them, instead of those heavy taxes and imposts they had -paid to their emperors; so that, in this instance, their situation was -much mended, though in other respects it was sufficiently mortifying[93]. -The greatest among them was no member of the political body, and -incapable of the lowest office in the state; and as all offences were -now fineable, those committed against a Frank, or other Barbarian, were -estimated at double to the compensation of those committed against a -Roman or Gaul. No wonder, then, that _gentilis homo_, a term formerly of -reproach among the Romans, (for it signified a heathen and barbarian) -became now a name of honour, and a mark of nobility; and that the Romans -earnestly longed to turn their allodial estates into benefices, and to -quit their own law for the Salic. And when once they had obtained that -privilege, the Roman law insensibly disappeared, in the territories of -the Franks, the northern parts of modern France, which are still called -the _païs des coutumes_; whereas, in the southern parts, where no such -odious distinctions were made by the original conqueror, the Roman law -kept its ground, and is to this day almost entirely observed. These -countries are called by the French lawyers _païs de loi ecrite_, meaning -the Roman[94]. - -But we cannot have a compleat idea of the constitution of this nation, -without taking notice of the clergy, who now made a considerable figure -among them. Churchmen had, ever since the conversion of Constantine, -been of great consequence in the empire; but the influence they obtained -among the northern barbarians was much more extensive than what they had -in the Roman empire. The conversion of Clovis to the Christian religion -was owing to the earnest persuasions of his wife Clotildis, a zealous -Christian, and to a vow he made when pressed in battle, of embracing the -faith of Jesus Christ, if he obtained the victory. He and his people in -general accordingly turned Christians; and the respect and superstitious -regard they had in former times paid to their pagan priests, were now -transferred to their new instructors. The principal, therefore, of them -were admitted members of their general assemblies; where their advice and -votes had the greatest weight, as well as in the court of the prince; -as learning, or even an ability to read, was a matter of astonishment -to such an illiterate people, and it was natural in such a state they -should take those in a great measure as guides in their temporal affairs, -whom they looked on as their conductors to eternal happiness. As they -were the only Romans (for the churchmen were all of that nation) that -were admissible into honours, the most considerable of their countrymen -were fond of entering into this profession, and added a new weight to -it. But if the sacredness of their function gave them great influence, -their wealth and riches added not a little to it. Before the irruptions -of the barbarians, they had received large possessions from the bounty of -the Roman emperors, and the piety of particulars. These they were sure -to possess: but their subsequent acquisitions were much greater. Though -these kings and their people had imbibed the faith of Christ, they were -little disposed to follow its moral precepts. Montesquieu observes the -Franks bore with their kings of the first race, who were a set of brutal -murderers, because these Franks were murderers themselves. They were -not ignorant of the deformity of their crimes, but, instead of amending -their lives, they chose rather to make atonement for their offences, by -largesses to their clergy. Hence the more wicked the people, the more -that order encreased in wealth and power[95]. - -But, to do justice to the clergy of that age, there was another cause -of their aggrandizement, that was more to their honour. As these -barbarians were constantly at war, and reduced their unhappy captives -to a state of slavery, and often had many more than they knew what to -do with, it was usual for the churchmen to redeem them. These, then, -became their servants, and tenants, where they met not only with a more -easy servitude, but were, from the sacredness of the church, both for -themselves and their posterity, secured from any future dangers of the -same kind. It was usual also for the unhappy Romans, who were possessed -of allodial estates, and saw themselves in danger, by these perpetual -wars, of not only losing them, but their liberty also, to make over their -estates to the church, and become its socage-tenants, on stipulated -terms, in order to enjoy the immunities thereof. - -By all these means the landed estates of the clergy grew so great, that -in time the military power of the kingdom was much enfeebled: for though -they were obliged to furnish men for the wars, according as the lands -they held were liable to that service, this was performed with such -backwardness and insufficiency, that the state at one time was near -overturned, and it became necessary to provide a remedy. Charles Martel, -therefore, after having delivered the nation from the imminent danger -of the Saracen invasion, found himself strong enough to attempt it. He -stripped the clergy of almost all their possessions, and, turning them -into strict military tenures, divided them among the companions of his -victories; and the clergy, instead of lands, were henceforth supported -by tithes, which before, though sometimes in use, were only voluntary -donations, or the custom of particular places not established by law[96]. - -In my next lecture I shall consider the introduction of estates for life -into the feudal system, and take notice of the consequences that followed -from thence. - - - - -LECTURE VI. - - _The introduction of estates for life into the feudal - system—The nature and forms of investiture—The oath of fealty, - and the obligations of lord and tenant._ - - -In the preceding lecture I took notice of the different condition and -situation of the Romans and barbarians in the infancy of the French -monarchy; but it will be necessary to observe, that all the barbarians -themselves were not subject to the same laws and regulations. When the -Ripuarian Franks, after the murder of their sovereign, submitted to -Clovis, it was under an express condition of preserving their own usages. -The same privilege he allowed to the Allemans, whom he conquered, and -to such parts of the Burgundian and Gothic kingdoms as he reduced to -his obedience. The customs of all these several people, as they were -Germans, were indeed of the same spirit, and did pretty much agree; but -in particular points, and especially as to the administration of justice, -they had many variations; and these the several nations were fond of -and studious of preserving. What was peculiar to these people, above -all other nations, was this, that these different laws were not local, -but personal: for although the Salians, in general, dwelt in one part -of the country, the Ripuarians in another, the Allemans in a third, &c. -yet the laws were not confined to these districts: but a Salian, in the -Ripuarian territories was still judged by his own, the Salian law; and -the same was true of all the others. Another peculiarity was, that the -barbarians were not confined to live in the law they were born under. The -Romans, indeed, could not pass from their Roman law to that of any one of -their conquerors, until they were allowed, several ages after, to acquire -fiefs; but any of the barbarians, if he liked another law better than his -own, could adopt it: a privilege, I presume, derived from that antient -practice which they used, of removing from one state or commonwealth to -another, or of going forth to form a new one. - -In the French monarchy, then, there were five different nations, besides -the Romans, governed by five distinct laws; but these five people, being -all of the same northern original, and descended from the conquerors -of Gaul, were, in the state, every one of them esteemed and regarded -on an equal footing, enjoyed the same privileges, and equally received -benefices from the king or other lords. I have already observed, that -the bonds between the king and his companions in Germany continued -during their joint lives. It had the same duration after they settled in -Gaul; where they either presided with him in his court, as they had done -formerly, or were settled in benefices near him, and in such situations -as they might readily attend him on occasion; or else were the governors -and leaders of the free Romans, under the title of counts. But all the -grants of lands or offices that they enjoyed were, as yet, but temporary. -So that they were _fideles_, or vassals, bound by an oath of fealty for -life; but there were no fiefs, or feudal tenures, if we may call them by -that name, that continued for so long a term[97]. - -The introduction of beneficiary grants for life, as is very properly -conjectured, was first owing to the counts. They had, as I mentioned -before, the third part of the profits of the courts in their respective -districts, which made their office not only considerable and honourable, -but opulent. They lived apart from the other barbarians among the Romans, -whose allodial property was fixed and permanent. It was natural for them -to wish the continuance of their lucrative employments, and to make them -as perpetual as their obligation of fidelity was; and this they were -enabled to attain by the means of the profits they made of their places, -and the want of treasure, which the kings frequently laboured under to -support their wars: for offensive ones they could carry on in no other -manner than by ready treasure. The counts, therefore, by the dint of -presents, or fines, attained, or I may rather say, purchased estates for -life in their offices; but these estates had, at first, continuance only -during the joint lives of the granter and grantee[98]. - -But the matter did not stop here. The example was quickly followed by -the other barbarians, who were the immediate tenants of the crown, and -who now were growing weary of the constant, or even a frequent change -of habitation. And, in one respect, this allowance was of considerable -advantage to the king, as it created a tie upon them, equally durable -with that by which his companions were bound to him, and wore out by -degrees that principle they had before retained, that by throwing up -what they held from him, they were absolved from their allegiance. They, -therefore, as well as the companions, took the oath of fealty; which, -as far as I can find, was taken by none on the continent, whose estates -were less than for life; though, in the law of England, it is a maxim, -that fealty is incident to every tenure but two, namely, estates at will -(for they did not think it reasonable that a person should bind himself -by oath, in consideration of what might be taken from him the next day) -and estates given in frank almoigne, or free alms, that is, to religious -houses, in consideration of saying divine service, and praying for -the donor and his heirs; and these were excused out of respect to the -churchmen, who were supposed not to need the bond of an oath, to perform -that duty to which they had dedicated themselves, and also because the -service was not done to the lord, who gave the land, but to God. - -Thus estates for life, created by particular grants, went on continually -encreasing in number, till the year 600, by which time almost every -military tenure, castle-guard excepted, was of this nature. And this -accounts for the particular regard the feudal, and from it our law -shews to the tenant of the freehold, and the preference given to him -above a tenant for years. For, first, his estate was, generally, more -valuable and permanent, as long terms were then unknown; and, secondly, -it was more honourable, as it was a proof of a military tenure, and of -the descent of its possessor from the old German freemen. For it was a -long time after that socage lands, in imitation of these, came to be -granted in the same manner, for life. The lords, or immediate tenants -of the crown, having, by the means afore-mentioned, gotten estates of -continuance, and being bound for life to the king, thought it their -interest likewise to connect their tenants as strictly to them, by -granting them freeholds also; but in the oath of these sub-vassals, -which they took to their lords, there was an exception of the fealty due -to the king, from whom the land was originally derived, or of a former -lord, if such an one they had, to whom they were bound by oath before. -These sub-vassals, likewise, had not in those early times, the power of -creating vassalages, or estates for life, under them; for it was thought -improper to remove the dependence of any military man on the king to so -great a distance; and indeed it was hardly worth any man’s while, if it -had been lawful, to accept such a gift as was determinable either on the -death of the superior lord, or of his vassal, who had granted it, or -lastly, on his own death[99]. - -Estates for life being now become common, and in high estimation, it -was thought proper that they should be conferred with more form and -solemnity, and that by means of what the feudal law calls Investiture, -of which there are two kinds. The first, or proper investiture, was thus -given: The lord, or one impowered by him, and he that was to be tenant, -went upon the land, and then the tenant, having taken his oath of fealty, -the lord, or his deputy (or attorney, as our law calls him) gave actual -possession to him, by putting into his hand a part of the premises, in -the name of the whole, as a turf, a twig, or a hasp of the door, in the -presence of the _pares curiæ_, that is, of the other vassals or tenants -of the lord. This is what our law calls giving livery and seizin, from -the lord’s or his deputy’s delivering, and the tenant’s taking seizin, -for so the possession of a freehold or estate for life is called. The -presence of the _pares curiæ_ was required equally for the advantage of -the lord, of the tenant, and of themselves; of the lord, that, if the -tenant was a secret enemy, or otherwise unqualified, he might be apprised -thereof by the peers of his court, before he admitted him; and that they -might be witnesses of the obligation the tenant had laid himself under of -doing service, and of the conditions annexed to the gift, if any there -were, which the law did not imply: for the benefit of the tenant, that -they might testify the grant of the lord, and for what services it was -given; and lastly, for their own advantage, that they might know what the -land was, that it was open for the lord to give, and not the property of -any of the vassals; and also that no improper person should be admitted a -par, or peer of their court, and consequently be a witness, or judge, in -their causes[100]. - -Hence it is, that in our law, if a man has right to enter into several -lands in the same county, an entry into one of them, in the name of all, -is sufficient to vest the seizin, that is, the possession of the freehold -of all, in him; because the same _pares curiæ_ (who were in antient -times the only witnesses allowed) who know he had in their presence -entered into one, know also that he entered that one in the name of -all the others; but if the lands lie in different counties (which are -distinct jurisdictions, and have different _pares curiæ_) an entry into -one county, in the name of the whole, is not sufficient; because, as to -seizin of lands in the other county, the _pares_ thereof are the only -competent witnesses. - -As the proper investiture required the actual going upon the lands, which -was often inconvenient, the improper investiture was introduced. This, -which was the second kind mentioned, was also performed in the presence -of the _pares curiæ_, thus: The intended tenant, in a most humble and -lowly manner, prays the grant of such an estate from his lord; which, -when the latter has agreed to, he invests him, by words signifying his -grant, and what it is of, accompanied by some corporeal action, as -delivering him a staff, a ring, a sword, or clothing him with a robe, -which last, being the most common method amongst the great immediate -tenants of the king, gave rise to the name _investiture_. After this, the -tenant did fealty. But this improper investiture did not transfer the -actual possession of the land without subsequent livery and seizin, and -gave the tenant not a right to enter, but only a right of action, whereby -he might sue, and oblige the lord to transfer it by an actual livery. For -all these lands, being liable to services arising out of the profits for -which the lord was bound to answer to the king, his possession of these -profits by their rules was continued, until he had, by an act of public -notoriety, namely, by giving livery and seizin on the land, put it out of -him. And this maxim was, I apprehend, established also for the benefit of -the co-vassals, who could better judge by their own eyes, on the spot, -whether an injury was done by the grant to any of them, than by hearing -the lands named and described elsewhere, as, in such case, it frequently -happened that all the vassals were not present[101]. - -Hence, if the lord had granted lands by an improper investiture to A, and -had afterwards, by livery and seizin, granted them to B, they became B’s, -though he was the later invested; and the remedy A had against the lord -was not for the lands themselves, for those he had already legally parted -with to B, and could not recal, but for their value, in consideration of -his having bound himself to fealty. - -This was the form and manner of proper and improper investitures in the -early times, before these barbarians had learned the use of letters, -and was intended not merely for solemnity, but also to create such a -notoriety of the fact, as it might easily be proved by _viva voce_ -testimony. For if it was denied, the tenant produced two or more of the -_pares curiæ_, each of whom swore he had either been present at the -investiture himself, or had constantly heard his father declare, that -he was. And this, at first, was the only evidence admissible, and was -abundantly sufficient, when the grants were only for one life. Such -proof, however, could not be of any advantage to the church; for, though -churchmen die, the church doth not, but continues to be represented -in a succession of natural persons. If she, therefore, had not a more -permanent evidence to produce than what I have before-mentioned, she -could never, after some length of time, ascertain her rights. On this -account _brevia testata_, or, as we call them, deeds, were made use of, -which were written instruments, expressing the grant, and its nature, -attested by some of the _pares_, and authenticated by the seal of the -lord, or by his name and sign of the cross. When this kind of evidence -was once introduced, as it was more fixed and certain than the frail -memories of men, it became customary for the tenant, who had been -invested either properly or improperly, to demand and obtain a _breve -testatum_ of that investiture, and afterwards other symbols in improper -investitures went out of use, and the delivery of a deed became the -ordinary sign; but this, as all other improper investitures, required a -subsequent actual livery and seizin. - -Having thus delivered the antient and proper method of constituting an -estate for life, let us attend to the consequences, and see what were -the several rights and obligations of the lord and tenant, and for that -purpose examine the oath of fealty. - -The general oath of fealty on the continent was thus: _Ego N. vassallus, -super hæc sancta Dei evangelia, juro, quod ab hac horâ in antea usque -ad ultimum vitæ meæ diem, tibi M. domino meo, fidelis ero, contra omnem -hominem, excepta summo pontifice, vel imperatore, vel rege, vel priore -domino meo_, as the case was. In England, Littleton gives this account of -it. When a freeholder doth fealty to his lord, he shall hold his right -hand on a book, and shall say thus: Know ye this, my lord, that I shall -be faithful and true unto you, and faith to you shall bear, for the lands -which I claim to hold of you; and that I shall lawfully do to you the -customs and services which I ought to do, at the terms assigned; so help -me God, and his saints; and he shall kiss the book[102]. - -The only differences are, that the words _ab hac hora in antea usque -ad ultimum vitæ meæ diem_ are omitted: for abroad none but tenants for -life swore fealty. In England termers for years did; and that _contra -omnem hominem, excepto, &c._ though implied, is likewise omitted; which -exceptions, however, in the English law, were inserted in the doing of -homage which the tenant in fee did to his lord. - -Such was the general oath of fealty; but to shew what _being faithful -and true_, and _bearing faith_ comprehends, it will be proper to -insert, from the seventh title of the second book of the feudal law, -the larger oath, which persons, rude and ignorant of what the word -fealty implied, were to take. It runs in these words: _Ego juro, quod -nunquam scienter ero in consilio, vel in facto quod tu amittas vitam, -vel membrum aliquod, vel quod tu recipias in personâ aliquam læsionem, -vel injuriam, vel contumeliam, vel quod tu amittas aliquem honorem quem -nunc habes, vel in antea habebis; & si scivero, vel audivero, de aliquo, -qui velit aliquod istorum contra te facere, pro posse meo, ut non fiat -impedimentum præstabo. Et si impedimentum præstare nequivero, quam -cito potero, tibi nunciabo; & contra eum, prout potero, auxilium meum -tibi præstabo; & si contigerit, te rem aliquam quam habes vel habebis -injuste vel fortuito casu amittere, eam recuperare juvabo, & recuperatam -omni tempore retinere. Et si scivero te velle juste aliquem offendere, -& inde generaliter vel specialiter fuero requisitus, meum tibi, sicut -potero, præstabo auxilium. Et si aliquid mihi de secreto manifestaveris, -illud, sine tua licentia, nemini pandam, vel per quod pandatur faciam; -& si consilium mihi super aliquo facto postulaveris, illud tibi dabo -consilium, quod mihi videtur magis expedire tibi; & nunquam ex persona -mea aliquid faciam scienter, quod pertineat ad tuam vel tuorum injuriam -vel contumeliam._ - -Besides the negative obligations, of doing nothing to the prejudice of -the lord or his family, the positive ones the vassals lay under may -be reduced to the two heads of counsel and aid; which, with us, are -still the principal duties that the parliament, who are, or represent -the vassals of the king, owe to the sovereign. Under counsel, not only -giving faithful advice, but keeping his secrets was included. Aid may -be either in supporting his reputation and dignity, or defending his -person or property. Under the first, the vassal was not only to shew him -the highest reverence, but was forbid to accuse or inform against him, -except in the case of treason, where the supreme lord was concerned. He -could not in a suit between them tender to his lord the oath of calumny, -whereby he should be obliged to swear he thought his cause was just, and -that he did not carry it on with an intent to harrass and distress; for -this was throwing an aspersion on his lord’s character. He could not, -for the same reason, bring any action against him, whereby he might be -defamed, and particularly the interdictum _unde-vi_, which was a charge -against the person sued, of an unjust and violent dispossession of -property. Neither could he, in any cause that was not strictly feudal -(for in such as were for the general preservation of that polity, he -was permitted) bear witness against him. And, lastly, he was obliged to -support his dignity, to attend his courts, and do suit and service, as a -witness and a juror. - -By aid to his person, he was not only obliged to defend his lord, if -attacked personally, but to assist him in his wars, and that at his own -expence, out of the profits of his tenancy; and if, in the field of -battle, he deserted his lord, before his lord was mortally wounded, it -was an absolute forfeiture. But this aid he was not obliged to give until -required; for perhaps the lord did not need the aid of all his tenants; -and the vassal, without notice, was supposed ignorant that there was any -occasion for his assistance, unless it could be proved the vassal knew -his lord’s danger, when the lord himself did not; or that he knew it -was so imminent as not to give the lord time to summon him; in which two -cases, he was obliged to serve without requisition[103]. - -But here some distinctions must be taken notice of as to the nature of -these wars. I have often repeated that the king’s companions were bound -to assist him in all his undertakings, offensive or defensive; and that -the other freemen were obliged only to serve in defensive wars. But now, -by this new introduction of grants for life to the freemen, the case was -altered. In all defensive wars, they were obliged to aid their lord, -though he had been the unjust aggressor, and this for the preservation -of the society to which they belonged; but in offensive ones, it was to -be considered whether the cause was just, or doubtful, or notoriously -unjust. In the two first cases, he was obliged to furnish his aid; for -if his lord’s quarrel was doubtful, the respect and reverence he owed -him, and his regard to his lord’s character and dignity, laid him under -a necessity of presuming in his superior’s favour. But if the war was -notoriously unjust, he was at liberty to serve, or not, as he pleased. -And the aid he was bound to give, where he was bound, was against all -persons, _contra omnem hominem_, even his parents, brothers, children, -and friends, with the following exceptions. First, not against the king, -who was the supreme lord of the whole, and in whose preservation and -dignity every individual was concerned. Secondly, not against himself, -for self-preservation is the first law of nature. Thirdly, not against -his original country, though he had received a grant from a foreign -lord, and afterwards war broke out between them: for by this time, the -opinion of a durable obligation to the state he was born in, began to -prevail among them. Lastly, not against his antienter lord, when he had -grants from two; for the second obligation could not annul the first. -It may here be naturally asked, how such a vassal, who had two lords, -was to act in case of a war between them? If his first lord’s cause was -just or doubtful, he was undoubtedly bound to him against the subsequent -one, even in attacking him; and this was no forfeiture, for the second -lord had sufficient notice of his prior obligation, by the exception in -the oath of fealty. Indeed, if he, having a lord before, had omitted the -exception, he justly lost his fief, for the deceit put on his latter -lord. But if his first lord’s cause was notoriously unjust, he was not -at liberty to assist him against the second; but by the two bonds was -obliged to remain neuter[104]. - -This military duty was to be done in the vassal’s proper person, if he -was capable of it; unless the lord was pleased to accept of a deputy. But -if he was incapable himself, as often must have happened, after estates -for life came in, he was allowed to serve by a substitute, such as the -lord approved. Suppose, then, a man had two lords, who were at the same -time at war with others, and each required his personal assistance, it -was plain he was obliged to serve both, the elder lord in person, because -his right was prior, and the last by deputy[105]. - -The aids due to the lord, in respect of his property, were, first, to -aid and support him, if reduced to actual indigence, and to procure -his liberty, by paying his ransom, if taken in war. It was a doubt -among the feudal lawyers, whether, if the lord was imprisoned for -debts, his tenants were obliged to release him; and the better opinion -was, that they were, if the debts did not tend to their very great -impoverishment[106]. - -These were all the aids necessarily required by the law in these antient -times. For those for making his eldest son a knight, and marrying -his elder daughter, came in afterwards. All other contributions and -assistances were merely voluntary, though very frequent, and were -originally, as they are still here, and are still called abroad, though -imposed really and truly, _free gifts_. - -We are now to speak of the duty of the lord to his vassals; and on this -head there is no need of enlarging much: for it was a maxim in the -feudal law, that though the vassal only took the oath to the lord, and -the lord, on account of his dignity, and the respect due to him from the -tenant, took none; yet was he equally obliged as if he had taken it, to -do every thing, and forbear every thing, with respect to his tenant, that -the vassal was with respect to the lord; so that the bond was in most -respects strictly mutual; but not in all, for the lord was not obliged to -support his indigent tenant, or to give aids to him; but, on the other -hand, he was obliged to warrant and defend the lands he had given to -his tenant by arms, if attacked in open war, and in courts of justice, -by appearing upon his voucher, that is, the tenant’s calling him in to -defend his right, and if the lord failed, he was bound to give lands of -equal value, or, if he had not such to bestow, to pay to the tenant (in -consideration of the bond for life, he had bound himself to his lord in) -an equivalent in money. - -As, in case of the vassal’s failure in his duty, the lands returned to -the lord, so, in case of the lord’s failure on his side, the lands were -vested in the vassal, free from all services to his immediate superior. -But to the king, or lord paramount, he still owed service, in proportion -to his fief; and by this means he might become, instead of a subvassal, -an immediate vassal of the king[107]. - -Having mentioned the obligations on each side between lord and tenant, -it next follows to see what interest each had in the lands given; on -which head I shall be brief, as these several rights were not so nicely -distinguished as in after ages, when these tenures became hereditary. -The lord was then to suffer his tenant to enjoy the issues and profits -of the lands, he rendering the services due by the reservation of law, -and the additional ones, if any such had been specially reserved. In -case of failure, he had, in those antient times, a right of entry for -the tenant’s forfeiture. For while this military system continued in its -full vigour, the smallest breach the vassal committed in his engagements -was an absolute forfeiture; but in after times, when the lands were -often given upon other considerations than military service; and when -the military was often commuted for pecuniary considerations, a milder -way was found out, that is, by _distress_, by which the lord, instead of -seizing the lands, took possession of all the goods and chattels of his -tenants found upon the lands, (for the lands were still the mark where -he was to take), and kept them as a deposit, till his tenant had made -satisfaction, originally indeed at the lord’s pleasure, for the failure -in his duty[108]. - -The right the tenant had in the land was, that, paying the services -due, he should receive the produce thereof, and turn it to his own best -advantage; and that he might, if attacked in a court of justice, vouch, -or call in his lord to defend his possession by arms, or otherwise. But -as his tenure was precarious, and only for life, he was prohibited from -doing any thing that should either hurt his lord’s interest, or that of -the king, in whom and his successors the inheritance was vested. Thus, -he could not commit waste, by destroying houses, or cutting down trees, -except what was necessary for immediate use, for repairs, firing, or -tillage. He could not bequeath his tenancy, for he held only during life. -He could not alienate without the consent of his lord, for he had his -lands in consideration of his personal service; and although, in case of -necessity, he was allowed a substitute, it was only such an one as was -acceptable to the lord; whereas by alienation, the real tenant who was -bound by oath to do the services out of the profits, was to lose them, -and a stranger, perhaps an enemy, who was under no tie to the lord, was -to enjoy them. Alienation, therefore, without the consent of the lord, -was unlawful. If he consented indeed, and accepted the alienée, he, upon -his taking the oath of fealty, became the real tenant, and the former -was quit of all positive service, except honour and reverence; but -still bound by his former oath from doing or suffering any thing to the -prejudice of his former lord. Neither could a sub-vassal, in those early -times, create a vassalage to be held of himself. The immediate vassal of -the king, indeed, could, but then it was on these terms; first, that the -person he granted it to was one that was of the ligeance of the king, -either natural or adopted; next, that he was as capable of rendering the -services as the grantor; and lastly, that the services reserved should, -if not better, which was expected, be at least equally beneficial to -the supreme lord as those of the original grant to the intermediate or -mesne lord. To explain this, if the king granted ten thousand acres to -his immediate vassal, for the service of ten knights, the vassal might -give one thousand, indeed, or any lesser number of acres to one person, -for the service of one knight; but if he gave more to one, as he had -attempted to hurt and lessen the benefit his superior had stipulated for, -his grant was void, and in those times, when forfeitures were regularly -exacted, the grant of the king to him was forfeited also[109]. - -In my next lecture I shall say something of _improper feuds_, as they -began to be introduced about the time I am now upon, and were very -seldom, in those ages, granted for longer terms than for years or lives, -and go on to shew by what means, by what steps and degrees, estates for -life grew up into inheritances. - - - - -LECTURE VII. - - _Improper feuds or benefices—Grants to the Church—Grants - in which the oath of fealty was remitted—Grants to which - a condition was annexed, that enlarged or diminished the - estate—Grants which reserved certain other services, beside - military service—Grants implying some certain service, as - rent, and not reserving military service—Grants reserving - no services, but general fealty—Grand serjeanty—Petty - serjeanty—Grants to women—Grants of things not corporeal—Feudum - de Cavena—Feudum de Camera._ - - -Having, in the preceeding lecture, laid down the manner of constituting -a proper beneficiary estate for life, which consisted in lands granted -for the defence of the state, upon the consideration of personal military -service, and the rights and obligations annexed thereto; it will be -proper to mention such, (and to point out the several kinds of them) -as are called improper benefices, which are those that, in one or more -particulars, recede from the strict, and, in antient times, the usual -nature of those grants; and this is more especially necessary, as, since -the abolishing the military tenures in Charles the Second’s time, all our -present estates come under one or other of these heads. It was a maxim -in the feudal law, that _conventio modum dat donationi_; and therefore, -whatever terms the donor prescribed, though varying from the general -course, was the rule by which the grant was to be regulated. - -In the first place, then, all benefices granted to the church were -improper ones, because given on other terms than that of military -service, and because they ended not with the death of the grantor or -grantee, but continued coeval with the life of the church, that is, for -ever[110]. - -Secondly, Grants of lands, wherein the oath of fealty was remitted; for -although fealty itself was an incident, essential to, and inseparable -from, every estate of life abroad, and every estate of years also in -England, the ceremony of actually taking the oath might be omitted; and -if the lord had put the tenant in possession, without his having taken -the oath, the tenant might enjoy without it. He was obliged, indeed, to -take it whenever his lord called upon him, on pain of forfeiture; unless, -in the investiture, it had been expressly remitted; in which case, he -might refuse to take it, and justify his refusal by the tenor of his -investiture[111]. - -Thirdly, All grants to which there was a condition annexed, that either -enlarged or diminished the estate; as if lands were granted to two, -and the survivor of them. This was an improper benefice, as it had -continuance for more than one life; or if they were granted to a man for -life, provided he did, or refrained from doing such an act. This was -improper also, because it might have a more speedy determination. - -Fourthly, All grants, in which certain services beside military were -reserved, were also of this nature, as if the tenure was by military -service and a certain rent, or any other certain duty, or by military -service reduced to a certainty, as to attend, suppose forty days and -no more, or by military service with a power in the tenant to excuse -himself, by paying a certain sum. For the proper fief was for military -service only, the occasions and duration of which were uncertain[112]. - -Fifthly, If military service was not reserved at all, but some other -certain service instead thereof, as rent, the grant was an improper -one, and such are our tenures, since they have been reduced to socage, -which is derived from _soke_ or _soka_, a plough, because their duty -was originally to attend a certain number of days to plow their lord’s -grounds, or else to supply him with a certain quantity of corn in lieu -thereof. This manner of paying in kind, namely, by corn, cattle or other -necessaries, was continued every where many ages; in England, until the -time of Henry the first, when they began to be commuted into money, to -the great advantage of the successors of these socage tenants, whose -estates were before become hereditary. For the computation being made -at the rate and proportion of value between money and the necessaries -of life at that time, as money grew more plentiful every day, its value -continually sunk, and the price of commodities accordingly increased; in -so much that the present successor of a tenant at that time, who had -before paid a fat ox, which was changed into twenty shillings, its then -value, would now pay but the eight part of the original reservation, when -the price of an ox is eight pounds. And this contributed not a little -to the happy equality which now reigns among all ranks, as these baser, -the socage tenures, were continually rising in value, and consequently -in consideration, and coming every day nearer to an equality, in the -estimation of the world, with the nobler, the military benefices[113]. - -Sixthly, If no services at all were reserved, except general fealty, -which could not be remitted; for it was thought reasonable, not only -to grant lands in consideration of future military service, but also -to reward such as had deserved eminently, and were perhaps maimed or -mutilated, and so unfit for future service, with lands free from such, or -any other duty. - -Seventhly, Grand serjeanty is a benefice of an improper nature, even -though it be reckoned a military one, because it is reduced to a -certainty. Grand serjeanty is a certain service done by the body of a man -to the person of the king, and is of two kinds; military, which is to -be done either in or out of the realm; and not military, which is to be -done within the realm. Military, as when lands are given on condition of -carrying the banner of the king, or his lance, or to lead his army, that -is, to be his constable; or to number and array his army, that is, to be -his marshal; but these being _certain_ services, and due to the person of -the king, they were not obliged to attend, but where he went in person; -and this right they insisted on so strongly, as had almost occasioned a -rebellion in the time of Edward the First; who, although in most things -an excellent prince, was of an hot and haughty temper[114]. - -Having determined to attack France on two sides; in Flanders, where he -intended to command himself, and in Guienne; he ordered the Earl of -Hereford, high constable by tenure, and the Earl of Norfolk, marshal by -tenure, to lead the army in Guienne, as his generals and commanders in -chief. But, however honourable and pleasing in other respects the offer -might be, they feared that such a precedent, quietly complied with, -might be, in after times, a means of introducing new and hard services -at the king’s pleasure, instead of the antient and known ones. They, -therefore, flatly refused, unless he went thither himself; offering, at -the same time, to serve under him in Flanders. The king, boiling with -resentment against France, and provoked at this contradiction to his -pleasure, however justly founded, threatened Norfolk, in a transport of -passion, with hanging; to which the other replied, with equal fierceness, -and total want of respect. The two Earls retired to their estates, put -themselves in a state of defence, and even committed several outrages -against the king’s collectors; and their cause was generally espoused by -the nation, who were against the king’s exacting any new and unheard-of -services. The behaviour of these lords to their sovereign, and to such a -sovereign, in setting him at defiance, and that with terms of disdain, -when they themselves were the aggressors, was utterly unjustifiable; -but, from their cause, notwithstanding this behaviour of theirs, being -universally espoused by the nation, we may clearly see the opinion and -judgment of those times; that their kings were not unlimited, and that -they had no right to exact from their vassals any services but those -that flowed from their tenures. The king, indeed, at first gave their -lands and offices to others; but when he had cooled, and found they had -insisted on no more than was their right, he, in the frankest manner, -repaired his error. He gave in parliament a new confirmation of Magna -Charta. By another statute, he renounced all right of taking talliages, -that is, levying taxes, even on his own demesnes, without consent of -parliament, as contrary to that charter; and in the body of this last -act, in the amplest manner, remitted all disgust and resentment against -the two earls and their associates; and gave them the fullest indemnity -for the offences they had so outrageously committed. Such conduct in any -king, whose subjects were not disposed to esteem him, might have been -as a sign of weakness, and have been attended with dismal consequences; -but in Edward’s realms there was not a man that did not admire his -wisdom, adore him for his valour, his honour, and his sincerity. He could -encroach without incurring hatred, and he could retract without being -thought mean; so that it may be a question, whether, by the noble manner -of his repairing his mistake, he did not tie his subjects to him with -stronger bonds of affection, than if he had never committed it[115]. - -The grand serjeanties that are not military are of various kinds, being -offices and services done to the person of the king within the realm, in -order to the support of his state and dignity; for which reason, although -they are not, properly speaking, military services, yet they are looked -upon in that light, and are endowed with the same privileges, and subject -to the same regulations, except in a few instances, to be hereafter -mentioned; so that no person under the rank of the lesser nobility, that -is, of knighthood, was capable of performing them; and therefore, when, -by allowing the alienation of lands, these tenures fell into the hands -of persons of inferior quality, they were either knighted, or appointed -a deputy of that rank. Thus, at the coronation of Richard the Second, -as we find in Lord Coke, William Furnivall claimed to find a globe for -the right hand of the king, and to support his hand on the day of his -coronation, in virtue of the manor of Farnham, which he held by that -grand serjeanty; but, though descended of a noble family, he was not -permitted to perform it in person, until he had been dubbed a knight. At -the same coronation, John Wiltshire, citizen of London, claimed to hold a -towel while the king washed before dinner, which claim being allowed, as -he was of too low rank to perform the service in person, he made Edmund -Earl of Cambridge his deputy. Women likewise and minors were obliged to -serve by deputy; as did, at that time, Anne Countess-dowager of Pembroke, -by Sir John Blount, and her son John Earl of Pembroke, a minor, by Edmund -Earl of March[116]. - -These grand serjeanties, which were most of them lands granted for the -doing certain duties at the solemnity of the coronation, contributing -to the splendour and dignity of the crown, have been still retained, -though all other military tenures have been changed into free and -common socage. However, all these grand serjeanties were not for the -bare purpose of attending at coronations. The lord high stewardship or -seneschalship of England, of which the duty is to preside at the trials -of peers, was annexed to the barony of Hinckly, which, passing into the -family of Leicester, and then into that of Lancaster, in the person of -Henry the Fourth was united to the crown; but ever since that time, as -the powers and privileges the law threw into his hands were looked upon -as too extensive, and dangerous, if continued, this officer hath only -been occasionally created, as for a coronation, or the trial of a peer, -which ended, he breaks his staff, and the office is vacant[117]. The same -is the case, and for the same reason, of the office of high-constable, -ever since the attainder, in Henry the Eighth’s time, of Edward Duke -of Buckingham, who enjoyed it as Earl of Hereford. Thus did the crown -get rid of two considerable checks, which concurring with other more -extensive and influencing causes, helped to raise the power of the -house of Tudor above what the princes of the line of Plantagenet had -enjoyed[118]. The office of earl marshal, indeed still continues in the -noble family of Norfolk. For, notwithstanding the attainders of that -family, when they were restored, it also was restored to them. The reason -is, because this office is of little power; indeed, in the vacancy of the -constable to whom he is properly an assistant, scarce of any at all. It -being, therefore, an honourable dignity, and attended with no danger, it -is no wonder it hath remained[119]. In this kingdom one grand serjeanty -remained till the year 1715, in the family of Ormond, that of butlerage; -but it differed from those before-mentioned in this, that it was not a -service arising from a grant of lands, but of the prisage of wines, an -antient profit of the crown, due by prerogative, namely, a right to take -two tons of wine, one before the mast, and the other behind, out of every -ship containing twenty tons or more, until Charles the Second purchased -it from the Duke of Ormond by a perpetual pension of four thousand pounds -a year[120]. - -Eighthly, Petty serjeanty was another species of improper benefices, and, -in our law, was comprised under the general head of _socage_, because the -service was certain. It is, as Littleton[121] defines it, where a man -holds his land of our sovereign lord the king, to yield to him yearly a -bow or a sword, or a dagger, or a knife, or a lance, or a pair of gloves -of mail, or a pair of gilt spurs, or an arrow, or divers arrows; or to -yield such other small things belonging to war; so this, as well as grand -serjeanty, was a tenure of the king’s person, and could not be held of -a subject. Such is the grant the Lord Baltimore hath in his province of -Maryland; for he yields every Christmas five Indian arrows, besides a -fifth of all gold and silver found within this province. - -Ninthly, All grants to women were of the nature of improper ones, because -they must always serve by deputy; and personal service is essential to -the proper military tenures[122]. But these were not introduced so early. - -The tenth kind, and the last that I shall mention, of improper benefices, -are those that are of _things not corporeal_, and of which, consequently, -there cannot be a possession manually delivered over, that is, they do -not admit of livery and seizin, and therefore can be only conveyed by -the improper investiture, that is, by words or writing, accompanied by -a symbol. Such are rights in, or profits issuing out of land, where -another hath the possession of it. As the feudal law distinguishes -between corporeal things, whose possession can be actually transferred, -and incorporeal, which cannot; so doth our law make what is the same -distinction between things that lie in livery, and things that lie in -grant. In the first, it regularly requires an actual livery and seizin, -and here a deed is not absolutely necessary; but the second pass by the -delivery of the deed. Here therefore a deed is absolutely necessary; for -although the feudal law admits the use of other symbols in this case, -ours, for the greater certainty, precisely requires this peculiar one, -that there may be full evidence of what was conveyed. Of this last tenth -kind as there are many and various species, I shall run over some of them -in a cursory manner, to explain and shew their general nature. - -The first I shall take notice of is, that which, I presume, was the most -antient, as it seems to have come in the place of those repasts the -king gave to his comites, or companions, and is what is called _feudum -de cavena_. _Cavena_ signified the repository, or repositories of the -necessaries of life, while in those ancient times the services due from -the demesnes, or the socage lands, to the king or lords, were paid in -kind. Things therefore necessary, or useful for the support of life, -distributed in specie, out of the king’s or lord’s cellar or pantry, or -both, were what the _feudum cavena_ consisted in; and that this came in -place of the antient constant entertainments, and feasts, of the comites, -or companions, appears from this, that it was a rule, even after other -grants were allowed to be hereditary, that these determined with the -life of the grantor, or grantee, which ever first happened to expire. -These grants likewise were of two kinds; some granted in consideration -of future services, upon the failure of which a forfeiture was incurred, -others, in reward for past services, where nothing was expected for the -future but general fealty. This difference runs through many other of -these gifts that lie in grant. For the feudal law distinguishes them -into _officiosa_, that is, to which a positive duty is annexed, and -_inofficiosa_, where no subsequent service is required, but general -fidelity, which is incident to every tenure[123]. - -The second I shall mention is _feudum de camera_, which, I apprehend, was -originally a substitution for what I have just mentioned, the _feudum de -cavena_; for it was instead of an allowance of necessaries out of the -cellar or pantry of the king, an annual allocation of a sum of money for -will, life, or years, according as it was granted out of the _camera_, or -chamber where the king or lord kept his money; and this was, as the other -I before mentioned into whose room it came, either a reward for past -services, in which case no future duty was required, or on consideration -of future ones. The pensions granted by the king in our kingdom (Ireland) -out of his revenue, are of the nature of the former; and the salaries -to judges and other officers are of the nature of the latter. What was -common to both of these, the _feudum de camera & de cavena_, was, that, -by the feudal law, they were not due at the stated time, unless there -were provisions in the _cavena_, or money in the _camera_, and that free -from debts; for the lord’s safety and dignity was to be first considered; -but they were to wait for their arrear, till provisions or money came in. - -Another thing is to be observed, that, although, at the introduction of -these tenures, all others were for the life of the grantor and grantee at -most, yet when the others became perpetual, these continued long after -to be only for the joint lives of the grantor and grantee, namely, as -long as kings and great lords were considered as tenants for life, and -incapable of alienating their demesnes, or laying any permanent charge -upon them. But when, by the frequency of the example of alienations, -and by the occasional indigence of the kings and other lords, and the -desire designing persons had to take advantage of it, alienations of the -demesnes were once introduced, to the prejudice of the successor, these -grants, as was very natural, as they were less hurtful than an absolute -alienation, were continued for the life of the grantee, though the -grantor had died before[124]. - - - - -LECTURE VIII. - - _Feudum Soldatæ—Feudum habitationis—Feudum Guardiæ—Feudum - Gastaldiæ Feudum mercedis—Incorporeal benefices in - England—Advowsons—Presentative advowsons—Collative - advowsons—Donatives._ - - -In the preceding lecture I began to treat of the several kinds of -improper benefices, which are transferable only by the improper -investiture, or, as the English law says, _lie in grant_; intending -only to illustrate their general nature, without descending minutely -into particulars; and of these I have already mentioned the _feudum de -camera_, and that _de cavena_. I call these fiefs, even at the time I am -now treating of, in conformity with the practice of the feudal writers: -not with strict propriety, indeed; for _feudum_, properly speaking, -signifies a tenure of inheritance, and such were not yet introduced. But -before I quit them, it will be proper to take notice of some subdivisions -of them, to be met with in the feudal writers. - -I have already observed they were either gratuitous or officious, that -is, without future service, or with it. Of the first kind there were two -species, that called _feudum soldatæ_, from the word _solidus_, which -signified a piece of money, and was a gratuitous pension, granted either -out of the charity or bounty of the lord, or in reward of past services; -the other called _feudum habitationis_; which is liberty of dwelling in -an house belonging to the lord, in whom the property still doth, and -the possession is still supposed to remain[125]. Of the officious ones -Corvinus mentions three kinds, _feudum guardiæ_, _feudum gastaldiæ_, and -_feudum mercedis_. - -The _feudum guardiæ_ hath annexed to it the defence of a castle, for the -security of the realm; and this differs from the castle guard I have -before mentioned, in as much as that, where lands were given for the -defence of the castle, it was a corporeal benefice, and transferred by -livery and seizin; namely, by admitting the constable into the castle, -and delivering him the key thereof, and was an improper one only in -respect of its duration, as, in the early times, it continued only a -year; but this I am now speaking of was a pension, paid out of the king’s -exchequer for the same purpose; and was of the same nature with the -modern salaries of governors of garrisons[126]. - -The _feudum gastaldiæ_ was a pension granted to a person for transacting -the lord’s business, as for being his treasurer, steward, agent, or -receiver. The _feudum mercedis_ was in consideration of being an advocate -or defender of the lord. Such are grants to lawyers _pro consilio -impendendo_; and the salaries of the king’s lawyers, and the solicitors -for the crown[127]. - -I shall next run over briefly the several kinds of incorporeal benefices -which the law of England takes notice of, and explain their general -nature. And the first I shall take notice of is an _advowson_, which is -a right a man hath of nominating a proper person to fulfil the duties, -and to receive the profits of an ecclesiastical benefice. These rights -arose thus. In the infancy of the christian church, when the clergy were -supported by the voluntary contributions of the people, the bishop was -chosen by the clergy and people at large; and this method was so firmly -established, that when the emperors became christians, although they -made great donations of lands to the church, yet they left the manner -of election as they found it; and so it continued in Rome until the -year 1000 at least. But these elections, made by the giddy multitude, -were the occasions of infinite disorders. The value of these offices -being encreased, and the manners of the ecclesiastics corrupted by the -accession of riches; parties and factions were eternally forming, and -supported by all methods; and when a vacancy happened, the contest was -frequently not decided without bloodshed. It is no wonder that all the -sober part of the clergy, who were scandalized at these irreligious -practices, and the emperors, who were concerned in the peace of their -dominions, concurred in remedying these evils; which was at length -effected by excluding the laity, gradually, and by insensible degrees, -and confining the election to the ecclesiastics. Many of the emperors, -indeed, struggled hard to get the nomination to themselves, but the -clergy proving too powerful for them, they obtained, at most, but a power -of recommendation[128]. - -In the northern kingdoms the same causes produced the same effects, as to -the exclusion of the laity, but with more advantageous circumstances to -the rights of these princes. For as the lands they gave to the bishops in -right of their churches were held of them, so they gave the investiture; -and there was a kind of concurring right between the clergy, who elected, -and the king. He insisted on his right of giving the investiture, but -generally received their nominee, and granted it to him. - -But after the time of Charles Martel, when the clergy were stripped of -most of their lands, things took a different turn. For when new grants -were made to the church by the king, he insisted, as feudal lord, on the -absolute nomination, and the giving investiture, by delivering the staff -or crosier, the emblem of his pastoral care, and the ring, the symbol of -his spiritual marriage with the church; but these rights were opposed by -the clergy, who were strongly supported by the popes then setting up for -being the feudal lords of all churchmen, and who hoped to derive, as they -did, great advantage from these dissentions. From the year 1000 to 1200, -great confusion subsisted throughout all Europe, occasioned by these -contests, until the popes in general prevailed; but for four hundred -years past, and particularly since the reformation, their power hath been -on the decline; and from this last period the patronage or advowson of -bishoprics hath been confessedly in our king, as hath been the case in -several other kingdoms; and though in England a form of election is still -retained, it is no more than a mere form[129]. - -The advowson, or patronage of inferior benefices, came in another way. -In order to understand this, let us consider how dioceses came to be -subdivided into parishes. Antiently, I mean about the year 420, the -bishop had the sole cure of souls throughout his whole district, and -received all the profits of it; which he and the clergy distributed -into four parts, not exactly equal ones; but unequal, according to -the exigences of the several interests to be considered; one to the -bishop, to maintain hospitality, and support the clergy residing with -him, and the Christians of other places, who were often forced to fly -from persecution, or travelled on their necessary concerns; one for the -building and repair of churches; one for the poor, and one to support -the inferior clergy, whom the bishop used to send to particular places, -as his deputies, and to remove or recal at his pleasure. The clergy who -lived in the city where the bishop resided, were supported by him in a -collegiate way at first; until at length their particular shares were -ascertained, and carved out of the general revenue of the church; and -this was the origin of _chapters_[130]. - -To return to the country clergy. The manner in which they came to -have settled establishments was thus: It was usual, as soon indeed as -tithes were established as a law, that is, before or about the time of -Charlemagne, for the bishop to allocate to his vicar or curate in any -district, the whole, or a part of the tithes or other profits arising -there; but when England, France, and other countries were ravaged by the -Danes and Normans, the fury of these barbarous heathens fell particularly -on the ecclesiastics. Their churches they burned, and themselves they -slaughtered without mercy; insomuch that, when their devastations ceased, -there ensued not only a great scarcity of clergymen, but such a want of -means of proper support for them (the old estates of the church having -been turned into military fiefs) that the feudal lords were willing, for -the sake of having divine service performed in their districts, for the -benefit of themselves and their vassals, to alienate part of their lands -to the church, which was then in indigence, for the purpose of building -houses for the parson, and providing a competent glebe for him, and also -for building new churches where they were wanted. Altho’ alienation was -at this time entirely disallowed by the feudal customs, yet the necessity -of those times prevailed against it in those instances, especially as -these superstitious people attacked, or ready to be attacked by an -heathen enemy, thought the lands so given to be really given for military -service, as they were given for the service of God, the Lord of Hosts, -who was to speed their arms. However, the circumstances and opinions -of that age would not allow any grant, without an acknowledgment of -the superiority of the grantor; nor allow any lord to give any grant -materially detrimental to his military fief. Hence, as an acknowledgment -that the lands so granted to the church proceeded from the bounty of the -Lord, he was allowed to nominate a clergyman to the bishop; who, if he -was qualified, was obliged to admit him. But as the patron might present -an improper person, and such an one as the bishop must be obliged in -conscience to reject; and might do this repeatedly, for any considerable -length of time, during which the duties of religion would be neglected, -it was, in after times, settled, in all countries, that the right of the -patron’s presentation should last only a limited time. In our countries -it is six months; after which time lapsed from the vacancy, the bishop’s -original right of nomination revives[131]. - -But the customs of those ages not admitting of the alienation of any part -of a military tenure, but what was absolutely necessary, it followed that -these glebes were far from being sufficient for the maintenance of a -parson. These grants, therefore, were not made without the consent of the -bishop, to allocate, in aid of the glebe, the tithes of that precinct, -to the use of the parson. And now the parson began to have a permanent -interest for life in his parish, and a permanent cure of souls therein; -but not exclusive of the cure of souls in the bishop, who was concomitant -with him in that point, though not in the profits. For when the bishop, -for the good of the church, appropriated a part of the revenues of the -church to a particular person and his successors, which, for the public -good, he was allowed to do, he could not, however, divest himself, or -his successor, of that general cure of souls through his whole district, -which was the essence of his office. As the parson, therefore, though -named by a layman, was his deputy, he was in truth (to speak by way of -accommodation) his feudal tenant. From him he received institution, -which is the improper investiture; to him he gave the oath of canonical -obedience, which is equivalent to the oath of fealty; and by him, or -persons appointed by him, he was inducted into his church, that is, had -livery and seizin given him[132]. - -This was the origin and nature of presentative advowsons, in which, -though a matter ecclesiastical, the lay patron was allowed to have -a temporal and a valuable interest: inasmuch as it might serve for -a provision of one of his children, or any other relation that was -qualified for it; and consequently be an ease to him; and as, at the -time that these glebes were granted, most fiefs were hereditary, -at least none were suffered to be granted but by those who had such -(because the lord superior might else be disinherited) this right of -_advowson presentative_ descended to the heir. The church in its distress -exceedingly encouraged and fostered these rights for a time; but when her -circumstances changed, and, in ages when profound ignorance prevailed -both among the clergy and laity, many were the attempts to deprive the -laity of their rights, and many the exclamations against the impropriety -and impiety of such persons pretending to name any one to an holy office. -But I do not find they ever thought of restoring to the laity the glebes, -in consideration of which, for the necessities of the church, those -rights were first allowed. - -Thus much for _presentative advowsons_, which, I hope, from what hath -been already observed, will be sufficiently understood for the present. -I now must proceed to _collative advowsons_, namely, those given by the -bishop, which were of two kinds; either absolutely in his own right, -or by lapse, when the patron neglected to present; which was in truth -but a devolution of the antient right he had parted with, to him; and -therefore, as there is no substantial difference, they may well be -treated of together. As the bishop in the case of lapse, collates, -that is, institutes in his former right in default of the person who -had the right of presentation, I observed before, that the bishop had -used to grant to the country clergy a part or the whole of the tithes -of the precincts they served in; but when once, by the allowance of -presentative advowsons, parsons had got freeholds in them, the example -became contagious, and much to the benefit of the church. Those parts -of the diocese which still remained in the bishop’s hands were divided -into parishes; and the tithes of them, or at least a considerable part -of them, were assigned to the minister for his life. I need observe no -farther of these, than to say, that they differed no otherways in their -nature from the last mentioned, than that, as a patron had nothing here -to do, there was no presentation, and that _collation_ is, in the case -where the bishop hath the sole right, what is called _institution_ in the -case of a clerk presented. - -The third and last kind of advowsons are those called _donatives_, in -the giving seizin of which the bishop hath nothing to do, such livings -being privileged, and exempt from the jurisdiction of the bishop, and -visitable by the patron only. How these exemptions arose, when, at -first, every place was a part of a diocese, and of the bishop’s cure of -souls, it will be worth while to inquire. The bishops of Rome, aided by -their great riches, and the fall of the western empire, did, by pursuing -a settled plan for many hundred years, with the greatest art and unshaken -perseverance (temporizing indeed when the season was unfit, but never -giving up expressly any point that had been claimed) at length, instead -of being the first bishops in rank, attained to a jurisdiction over all -the west, and claimed a general cure of souls, which made the bishops, -indeed, but pastors under them. However, conscious of their usurpations, -in order to establish them, it was necessary to depress the episcopal -order. - -They began first with dismembering bishoprics, in order to found new -ones, on pretence of the churches being better served; and this they -did principally in Italy, where their influence was most extensive; and -that with a view, by having a greater number of votes, to over-rule -the determination of the general councils. They did the same, but more -sparingly, for the reason aforesaid, in other countries, with the -sovereigns; who, in these cases, were really actuated by the motive of -advancing the public good, and promoting religion. The next step was more -decisive. Their authority being now established, they took occasion, -on several pretences, to exempt from the jurisdiction of the bishops, -several places within their dioceses, which they kept immediately under -themselves, to which they appointed clerks by this way of donation, -and whom they visited by their legates, as their immediate ordinary. -The clergy, thus provided for, served as faithful servants and spies -to the pope, in all parts of the christian world, and were, next to -the monasteries, the firmest support of his power. The same practice -they pursued with respect to bishoprics, by exempting several of them -in divers places from the archbishop of the province. And this was the -origin of donatives. But, in order to shew the plenitude of their power, -the next step they took was of a higher strain. They not only founded -donatives for themselves, but for others, even of the laity; shewing by -this, that all ecclesiastical jurisdiction and discipline was entirely -subject to their will, and that, at pleasure, they could transfer it to -hands before judged incapable of it. - -These two kind of donatives still subsist in England, the latter in the -hands of subjects, the former of the king as supreme ordinary, since the -pope’s usurped power was transferred to Henry the Eighth. I am sensible -many common lawyers insist that the king of England was always supreme -ordinary, and that nothing new was gained at that time, but only his -old authority, which the pope had usurped, restored to him. But what -shall we say to the first fruits and tenths; which are certainly papal -impositions, and comparatively of a modern date. The same I apprehend to -be the case of the ordinary jurisdiction. As to the supreme patronage, I -allow it was, originally, the king’s. My reason is, that I do not find in -the antient church any trace of a layman solely exercising ecclesiastical -jurisdiction, or enacting laws for the church[133]. - -In the apostolic times all things were transacted by the _faithful_ at -large; in the next age, they fell into the hands of the clergy, all -excepting the election of bishops, and approbation of clergymen. After -the emperors became christians, they published indeed ecclesiastical -laws, but that was only giving the sanction of the imperial power to -the canons the church had made; whose censures, when there were such -multitudes of new and counterfeit converts, were likely to have little -weight. In the northern nations the case was the same. Canons were made -by the clergy, and these were often enforced and turned into obligatory -laws by their general assemblies, who had the legislative authority; -and if there are any instances in those times of laymen exercising -ecclesiastical discipline as ordinaries, I own they have escaped me. I -speak merely of ecclesiastical discipline: for as to things of a temporal -concern, such as wills, administrations, marriages, tithes, &c. the -authority undoubtedly was from the king. But not as to matters entirely -spiritual, such as concern the _salutem animæ_[134]. - -I think therefore the king’s title to be supreme ordinary, stands better -settled on the parliamentary declaration, and on the reason of the thing, -that all coercive power should be derived from him, whom God hath made -the superintendant; than on the assertions of lawyers, that it always was -so. Matters of fact are to be determined by evidence, not by considering -what ought to have been; and we need not be surprized to find, that an -ignorant and superstitious people allowed practices, and a division of -power in themselves unreasonable. - -In these donatives there was neither institution nor induction. The -patron gave his clerk a title by deed, on which he entered; for the -plenitude of the papal power supplied all forms. The patron was the -visitor, and had the power of deprivations; but what clearly shews, in my -apprehension, that these donatives were incroachments on the episcopal -authority, is, that, if once a common patron (for the king was saved -by his prerogative) had presented his clerk, and he got institution -and induction, the donative was gone for ever. The living became -presentative, and the bishop’s jurisdiction revived. - -I should next proceed to tithes, another kind of incorporeal benefice; -but this would carry me too great a length for the present discourse. - - - - -LECTURE IX. - - _Tithes—The voluntary contributions of the faithful, the - original revenue of the church—The establishment of regular - payments—The appropriations of the church—The history and - general rules of tithes in England._ - - -The next kind of incorporeal benefices taken notice of by the law of -England, that I shall mention is _tithes_; the New Testament, as well -as common reason, says, that _they who serve by the altar, should live -by the altar_; but is silent as to the manner in which this support -should arise. In the very first times, when their numbers were but few, -and those confined to Jerusalem and its neighbourhood; the christians -sold all they had, and lived out of the common stock. But this lasted -a very short time. When they increased to multitudes, that method was -found impracticable, so that each retained his possessions, and gave a -voluntary contribution out of it at his discretion. This was the fund -of the church; and in those times of fervent zeal in the laity, and -simplicity of manners in the clergy, it was found abundantly sufficient, -not only to support the ministers, and their own power, but also to build -churches, and to do many acts of charity to some of the pagans. - -The revenues of the church went on continually encreasing to the time -of Constantine; and though by the Roman laws, no _colleges_, as they -called them, that is, communities or fraternities, unless they had the -sanction of the imperial authority, could accept legacies or donations, -yet, such was the devotion of the times, that many such private grants -were made; and the principal churches obtained great acquisitions, -not only in moveable goods, but in landed estates; insomuch that some -of the persecuting emperors were thought to be as much instigated to -their cruelties by avarice, as by their blind attachment to their pagan -superstition[135]. - -In the fourth century, the restraint being taken away, these largesses -from the rich and superstitious, to the church became much greater; but -the general voluntary contributions from all who could spare, diminished, -the apparent necessity for them being lessened; and the zeal of the -people, which persecution had kept warm and fervent, slackened from ease -and security. The bishops, who were the distributers, prided in vying -with each other in the magnificence of their churches; and, being now -raised to an eminent rank in the state, were not satisfied to live in -such a manner as contented the simplicity of the antient fathers of the -church; so that by the year 400, the inferior clergy and the poor were, -in many places, but in very scanty circumstances. This induced many of -the pious to fix upon a certain rate out of their own annual gains to -supply these necessities, and as the tenth was what had been assigned to -the Levites in the mosaical law, that generally became the proportion. -But as the payments of those tithes were purely voluntary, so did the -givers appropriate them in such manner as they pleased, and as they -thought they were most wanted[136]. - -In Egypt, where, it seems, this practice began, they were commonly -given to the monks, who had devoted themselves to a religious poverty; -in Illyricum generally to the poor; in other places to the inferior -clergy of such a district, or, if the church itself was indigent, to -the bishop, for the use of his church. The famous preachers about this -time, particularly St. Ambrose and St. Augustine, inforced this practice -with all their eloquence, and insisted on the levitical law of tithes -as binding on christians. This had great, but not general effects. Some -gave the tithe, others, of more zeal, gave more, and others less; and -though these contributions began now to be aided by the spiritual arms of -excommunication, yet were these only used to oblige a man, in testimony -of his being a christian, to make some offering, not to pay precisely the -tenth, or any other portion[137]. - -These payments of the tenth hitherto we see were voluntary; but there -soon came in another practice, which, in particular places, made them -compulsory. It was usual when a patron founded a church, in order for its -support, to charge his lands with the payment of tithes to the minister -who officiated therein. This created a permanent right in the church, -not by the force of any general law, or canon (for all such attributed -to these ages are forgeries of a later date) but from the especial gift -of the grantor, and the power he had to charge his land. The earliest -authority that proves a general right of tithes, through any country -of Europe, is to be met with in the council of Mascon, held under king -Guntram, who reigned in the south-east parts of France, in the year 586. -There the right of tithes, through all his dominions, is acknowledged as -an antient duty due to the church; and they are enjoined to be regularly -paid. But it is observable, in the very words of this law, that the -tithes so paid were not solely appropriated to the clergy, but much -of them applied to other charitable uses, _unde statuimus, ut decimas -ecclesiasticas omnis populus inferat, quibus sacerdotes, aut in pauperum -usum, aut in captivorum redemptionem erogatis, suis orationibus pacem -populo & salutem impetrant_. Thus the kingdom of Burgundy was the first -that established the universal payment of tithes by a positive law. This -payment, in the other parts of France, was long after at pleasure, or by -particular foundation; but was daily gaining ground, especially after -the impoverishment of the church by Charles Martel rendered them more -necessary; and his grandson Charlemagne was the first that established -them by a positive law, made in a general assembly of the states, through -all France; and that as due by a divine right, in the year 778. And as he -and his successors were masters also of Germany and Italy, the same law -and opinion soon passed into those countries[138]. - -But as positive as his law was, in the direction of payment of them to -the bishop or priest, it was for a long time not universally obeyed, -and where it was obeyed, often shamefully eluded, as appears by the -laws of his successors, and many ecclesiastical canons framed for the -redressing those mischiefs. For as a portion of the tithes was originally -distributed to the poor, under this pretence, it was customary for the -superstitious laity, when they granted the tithes, instead of aligning -them for the maintenance of the ministering, _i. e._ the secular clergy, -to appropriate them to monasteries, which were societies of voluntary -poor. These appropriations, or consecrations, as they were called, became -very numerous, both from the unbounded veneration paid to the monks, -and from the encouragement such grants received from the see of Rome, -which looked upon the monastic orders as its fastest friends, and was -bent upon raising them on the ruin of the secular clergy. But as the -monks of those times were generally laymen, and incapable of serving the -cure, it grew into a practice for them, if any of their own body was fit -for the purpose, to get him ordained; or if they had none, to employ a -secular priest, to perform the divine offices, under the name of their -vicar or deputy, who was to account with them for the profits, and was to -receive for his subsistence a stipulated proportion; and thus came in the -division of parochial tithes, into _rectorial_ and _vicarial_; the former -remaining in the _employer_, the latter in the _employed_, who did the -duty[139]. - -The same pretence of appropriating the tithes to the poor gave a handle -likewise to many, when they found it necessary to pay tithes, to grant -them to laymen in fee, under the like conditions and services as other -fiefs; and many likewise were the unworthy churchmen, who turned the -incomes of their church into provisions for their families, by granting -them in fief. Thus, in process of time, were the ministering clergy, and -the real poor, for whose support the tithes were originally granted, in -a great measure stripped of them; and they were converted either into -lay inheritances, for secular services, or applied to the support of -monasteries; and both these abuses began under the specious pretence of -charity. The latter, _viz._ the grants to monks, was always favoured by -the heads of the church; and the former, in spite of all their censures, -prevailed, until, at length, it was found necessary to apply some remedy -to both. The evils were too inveterate to be finally removed; but this -temper was found out in the council of Lateran, held in 1215, when it -was enacted, That all tithes which from time immemorial had been given -in fief might so continue, but no more be granted in that manner for the -future; and the appropriations to monasteries were confined to three -orders of monks who were looked upon as the most learned, and capable of -furnishing men fit for the duty[140]. - -I shall proceed now to say something of the fate of tithes in England. -That tithes had been paid in several parts of England during the -heptarchy, and established by law in some of its kingdoms, is undeniable; -but the first who ordained them by law, through all England, was -Ethelwolf, in his parliament of the year 855; who had been himself, in -his elder brother’s life, designed for the church; in this imitating -Charlemagne, at whose court his father had long resided. This may well -be allowed, although those authors that give us the copy of this law -differ in the date, both as to the time and place where it was made. But -be that as it may, his son Alfred certainly made a law for this purpose, -to bind not only his own English, but also the new converted Danes, to -whom he assigned seats in his kingdom, and whom he had submitted to the -government of Guthrun. Such laws were renewed by almost every one of his -successors down to the Norman conquest; an evident proof, that however -zealous those princes were for the support of the church, their pious -intentions were but ill seconded by their people. The severity of the -law of Edgar was remarkable, and of itself sufficient cause of their -backwardness; for it made the non-payment of the tenth a forfeiture -of eight-tenths. The _præpositus_ of the king and bishop, that is, I -presume, the sheriff and arch-deacon, were to seize the fruits out of -which the tithes had been with-held, and when they were divided into ten -parts, one was given to the church that had been defrauded, another to -the proprietor, and the remaining eight were divided between the king and -the bishop[141]. - -During these times appropriations of tithes, to other churches than the -parish one, and also to monasteries, were frequent, here as well as on -the continent; but, for some time after the conquest, the largesses to -the monks, with respect both to lands and tithes, encreased considerably, -and were continually encouraged by the popes, the kings, the bishops, -and nobility; by the popes for the reason already given; by the bishops -and nobility, who were all Normans or foreigners, out of partiality to -their countrymen (for such the monks generally were) and out of contempt -and hatred to the secular clergy, who were universally English; by the -kings, not only for this last mentioned cause, but for another peculiar -to themselves. The government of the Saxon kings was remarkably moderate, -and their laws and constitutions extremely favourable to the liberties -of the people. The first race of Norman kings pretended, indeed, a -right to the throne, and every one of them swore to observe the Saxon -laws, with such emendations as had been consented to in parliament by -William the First. But the conduct of every one of them shewed how little -regard they had to that obligation, and how bent they were on setting -themselves free from all restraint, and to destroy all traces of the old -Saxon laws. For this purpose it was absolutely necessary to depress the -secular clergy; who, in those times of ignorance, were the only lawyers; -insomuch, that, in William the Second’s reign, it was said, _nullus -clericus, nisi causidicus_; and, to render them unfit guardians of those -privileges, the kings were resolved to trample upon them. For this end, a -new language and new forms of proceeding were introduced into the courts, -the secular and ecclesiastical jurisdictions, which had been united, were -separated; and the clergy were banished from the temporal courts, and the -greatest part of the business which formerly had been transacted in the -country courts was transferred to the _curia regis_, under the immediate -inspection of his judges[142]. - -Thus were the secular clergy daily reduced in circumstances and -importance, while the monasteries flourished on their downfall. However, -about the time of Henry the Third (for it is hard precisely to fix -when it became an allowed maxim of the English law) all tithes arising -in any parish were, of common right, payable to the priest of that -parish, unless they had been previously appropriated to some other -priest, or monastery, either by a positive appropriation appearing, or -by prescription where that was lost, and that no layman could prescribe -against the payment of them. I say no layman, for with respect to -ecclesiastics, the case was otherwise. It had, indeed, been a controversy -in France several centuries before, whether the lands of a church or -monastery should pay tithes to the parish minister where they lay; but -it was determined by the better opinion that they should. However the -bishops of Rome, in complaisance to their friends the Monks, granted to -many monasteries an exemption from tithes for their lands. And these are -the lands, which we see at this day in the hands of laymen discharged of -tithes, by virtue of a statute in the reign of Henry the eighth; before I -proceed to which, it will be proper to take notice of what a _modus_ is, -as they were introduced in those early times. - -A modus, then, is a composition for tithes in kind, within a certain -district; whereby the layman is discharged from rendering his tithes, -on his paying to the parson, in lieu thereof, what the local custom of -that place directs. These compositions were originally for the mutual -benefit of the clergy and laity; that one might have a settled certainty -what to receive, and the other what to pay; and was, while the equivalent -continued to bear any reasonable proportion to the value, an excellent -means to prevent yearly disputes between the minister and his flock; -but as most of them are fixed at certain rates of money, the change of -its value hath, in all these cases, greatly impoverished the parochial -clergy, especially as many of them grew up into a prescription, by -the negligence of the clergy, without an original composition. These -_moduses_ have, likewise, not a little hurt the spiritual jurisdiction; -for as their courts paid little or no regard to them, as being against -the canon law, if the original composition did not appear to have the -bishop’s authority, by being found in his registry, the temporal courts, -wherever one is pleaded, send a prohibition to the ecclesiastical one, -and reserve the tryal to themselves, by a jury of twelve men, as the -legal judges of the custom[143]. - -When Henry the eighth threw off the pope’s supremacy, great was his -danger both from abroad, and at home, particularly from the monasteries. -A resolution therefore was taken for suppressing them, and applying -their revenues to more useful purposes. The intention of Cranmer, at -least, was to restore the tithes to the parochial clergy, and out -of some part of the lands to found new bishopricks, and for other -religious and charitable purposes; the remainder to be united to the -royal demesnes to enable him to defend his realm without burthening his -subjects with subsidies. But little of this kind was done. Five or six -bishopricks, with very poor revenues, were erected, and the rest, both -of lands and tithes, were distributed to the laity in whose hands they -still remain, partly out of present political views, but principally -from the extravagance of that king and the indigence of his successors, -concurring with the avarice of their courtiers. As to the lands the -abbots held discharged of tithes, the parish ministers right to them -would, by the common law of England, have revived as soon as they got -into lay-hands; as it would have done before, if the abbot had aliened -with the consent of the convent, and this was the case of the lands of -the lesser monasteries. But when the greater ones were dissolved by the -act of 31st of Henry the eighth, it was expressly provided, that the king -and his grantees should enjoy those lands, discharged from tithes, in as -ample a manner, as the abbots held them before that time. Thus became -a great part of the tithes of the kingdom, which by the common law of -England were the legal maintenance of the parochial clergy, lay fees, and -inheritances, as they continue at this day[144]. - -Tithes are of three kinds, _prædial_, _personal_ or _mixed_. Prædial, are -the fruits arising immediately from the ground, as all sorts of grain, -hay, underwoods, fruits of trees, hops, saffron, hemp, flax, and such -like. Mixed, which arise from cattle nourished by the ground as their -young, colts, calves, lambs, pigs, or their productions, as milk, cheese, -butter, &c. Thirdly, personal, which arise from the labour and industry -of men using any merchandize, or manual occupation, and is the tenth part -of their clear gain. - -The two first had their foundation in the law of Moses, the last was -introduced and strongly inforced by the canon law; nay so shameless were -some of the canonists, as to insist that harlots were obliged to pay the -tenth of their infamous gains; but this latter kind has had little effect -in England, except by the local customs of some particular places[145]. - -As to what things are tithable or not by our law, it may not be amiss to -lay down some general maxims concerning them. - -First then, as to prædial tithes: Regularly, they are due only out of -things that encrease annually, _simul & semel_, and therefore except -by special custom, mines, minerals, chalks, stones, slates, turfs, -being part of the soil, and not increasing annually, are not tithable; -but this rule admits of some exceptions, of which I shall just mention -two. Saffron, which encreases from three years to three years, is yet -tithable; and so is underwood, that is, all trees cut under twenty years -growth. The tithes of trees occasioned many contests between the clergy -and laity in England, the one exacting it by their canons, and the -commons in parliament constantly remonstrating against it. At length it -was settled by parliament, that none should be exempted but timber above -twenty years growth, as being fit for building. But this statute is so -constructed, that if the trees be not of the nature of timber, they are -tithable, though above that age, as bush, birch, and the like; but these, -if for the scarcity of other timber, they are used in building, as beech -is in Buckinghamshire, they are there exempted. - -As to mixed tithes, the rule is, that things _feræ naturæ_ are not -tithable. Therefore fish, pheasants, partridges, rabbits, deer, bees, and -such like are not; but several of these, if reclaimed, have been adjudged -to be so, as bees in a hive, and the same reason holds as to pigeons in -a dove house; though the opinion of common lawyers is, that they are not -tithable, if spent in the house, and not used for sale. - -But what shall we say for barren cattle, from whom no yearly profit -arises? Shall the parson receive no benefit whatever from them, and shall -it lie in the power of the occupier, by employing all his land in feeding -nothing but barren cattle, to leave his minister without support? Certain -it is, whatever the modern practice and opinion may be, that by the best -authorities of the antient lawyers, _agistment_ was due to the clergy -which was the tenth part of the value of the lands, or the twentieth, -which by custom, in most places, was generally paid, if the proprietor -depastured the whole year, or less, according to the time and quantity of -the cattle, saddle horses, or cattle for the plough, only excepted[146]. - -Thus much may suffice for the history and general rules of tithes, the -second species of incorporeal rights, to which I may add, as much of the -same nature, and founded on the same reason, what is called _ministers -money_ out of houses, in cities and towns, where there are no tithes, -which the act of parliament, of the 17th and 18th of Charles the second, -hath restrained to the twentieth part of the value of houses, as valued -by a commission from the Lord Lieutenant and six of the council. - - - - -LECTURE X. - - _The right of Seignory and its consequences—The right of - Reversion—Rent seck—Rent charge—The nature of_ distress, _as - the remedy for recovering feudal duties. Observations on_ - distresses _in general_. - - -Having spoken of tithes and advowsons, two kinds of incorporeal benefices -that arose in those antient times, I come now to treat of _seignories_ -and their consequences. A seignory is an incorporeal right and interest -still remaining in the lord, when he parts with his lands, in benefice -to a tenant. Now the rights of a lord, in respect of his seignory, may -be considered in two ways, either as the services were due to the lord -from the _person_ of the tenant, or from the _lands_. He hath therefore, -in virtue of his seignory, a right to all those personal duties which -flow impliedly from the oath of fealty; such as to receive warning from -his tenants of any injury done, or impending danger to his person, his -dignity, or seignory, to receive faithful advice from them when called -upon, and to have his secrets faithfully kept by them; to be the judge -of their controversies, and the leader in war of such of them as hold -by military service. For these barbarous people had no idea of dividing -power, but always entrusted the civil and military sword in the same -hands; whereby they avoided the dangers and disorders that more polished -and richer nations have ever been exposed to, namely, of having the civil -and legal authority subverted by the military power. And so strict was -the bond between lord and tenant, that the latter could in no wise, in -point of judgment, decline his lord’s jurisdiction, by refusing him as -judge on account of partiality. Such a charge was a breach of fealty on -the vassal’s part, and no such presumption could be admitted by that law, -which looked upon the lord as equally bound by the oath of fealty, though -not taken by him, as the tenant was[147]. - -By the Roman law, a suspected judge might be refused by the suitors -for almost all the same causes, and grounded mostly upon the same -reasons, for which jurors, who in our law are _judges of the fact_, -may be challenged at this day. But the feudal customs admitted no such -suspicions as to the lord, and therefore in the English law, no judge, -however clearly interested in the cause, can be challenged. This maxim -once established, it was necessary, however, for the sake of justice, -that it should admit of some qualification. The _assessors_ in Germany, -who assisted the lord in judgment, from whom came, in after time, the -_pares curiæ_, were this qualification. But as these were not judges in -all feudal causes, but in some the lord alone continued sole judge; some -remedy was here to be applied, and on the continent and in England, they -proceeded differently. On the continent, the king, or superior lord, -appointed a _cojudge_, or assessor. In England the suitor, by applying to -the king’s courts was empowered to remove the cause thither; which hath -been one great occasion of these inferior courts of the lords dwindling -to nothing[148]. - -As to the right the lord had in the land by virtue of his seignory, the -principal, and upon which his other rights out of the land depended, was -his _reversion_. A reversion is that right of propriety remaining in the -lord, during the continuance of the particular estate of possession of -the tenant; whereby he is entitled to the service during the duration of -the term, and to the possession itself, when it is either expired, or -forfeited. Hence it appears that the fealty and services of the tenant -are incident to the lord’s reversion. Out of these reversions may be -carved another incorporeal estate, called a _remainder_, which is a -particular estate dependant upon, and consequent to a prior particular -estate; as if lands be granted to A. for five years, and afterwards to -B. for life. In this case A. hath a lease for years, B. a remainder for -life, and the reversion remains in the grantor. In our law, remainders, -and the particular precedent estate on which they depend are considered -as making but one estate; and so, in truth, they are with respect to the -reversioner, though not to each other. Therefore they must both pass out -of the grantor at the same time, though it is not absolutely necessary -that the remainder should vest in the grantee at the creation of the -precedent particular estate; for a remainder may be good which depends -on a contingency, as if a remainder, after a lease for life or years -to A, is limited to the eldest son of J. S. This is a good remainder, -but a contingent one, depending on the birth of J. S.’s son during the -continuance of the term of A; for the remainder being but one estate -with the precedent particular one, and only a continuation of it, must -commence instantly when it determines. Or, if after a lease to A, a -remainder is limited to the heirs of J. S. this is a good contingent -remainder, depending on the event of J. S. dying during the particular -estate. For it is a maxim of the English law, _Nemo est hæres viventis_. - -To return to reversions, I mentioned fealty and services as incidents of -a reversion; but we must distinguish that fealty is an inseparable one, -which the services are not; for the tenure being from the reversioner, -and fealty necessarily incident to every tenure, it is impossible -they should be separated. A grant, therefore, of fealty, without the -reversion, is void; and the grant of the reversion carries the fealty -with it. But the case is otherwise as to the services; for the services -may be granted without the reversion, and although the reversion be -granted, the services, by special words, may be excepted[149]. - -It will be now proper to speak of the remedy the reversioner hath for the -recovery of his services, if they are not paid. In the antient times the -tenant was, at all the due times, at his peril obliged to perform his -service; for as each the smallest failure was a breach of his fealty, -his tenancy was thereby absolutely forfeited, and this long continued to -be the case in military tenures. But as the defence of the realm was not -concerned in the socage holdings, but only the immediate interest of the -lord, it was thought too hard, that every, perhaps involuntary omission, -should induce an absolute forfeiture; when the lord, where his dues were -certain, might receive an adequate recompence. Custom, then, introduced -the method of _distress_, in imitation of the Roman law, as the proper -method to recover an equivalent for the damages he sustained by the -non-performance of the duties. And afterwards, when the personal service -of the military tenants came to be commuted into a sum of money called -_escuage_, distress came to be the regular method of recovering that and -the other fruits of the military tenure; the damage the lord sustained -being now capable of a reduction to a certainty[150]. - -The introduction of distress on socage tenants was thus: When the -absolute forfeiture was thought too severe, the first step was, that the -lord should enter, and hold the lands till his tenant had satisfied him -as to his damages; but as this seizure frequently disabled the tenant -from making that satisfaction, especially if he had no other lands, -this, after some time, was thought still too rigorous, and in its stead -was substituted the seizure of the cattle, and other moveables found on -the land, and the detention of them as a pledge, until the damages were -answered; which is what we call _distraining_. This was a sufficient -security to the lord, as it rarely happened but that there was sufficient -found to answer his demand for one failure; and the tenant was not (as -not being deprived of his possession) reduced to an incapacity of paying -his rent of services, and thereby recovering his pledges. Hence all -feudal rents, or, as our law calls them, _rent services_, (being the -service the tenant pays to the lord, in consideration of the land he -holds from him) are distrainable[151]. - -But there was another species of rents in our law not distrainable; -which, therefore was called _redditus siccus_, or _rent seck_. This was -not a feudal service, not being paid from a tenant to his lord, and -was thus: When a man, keeping still his land in himself, grants a rent -thereout to a stranger, the grantor is justly bound by his grantee; but -the grantee, not being his lord, cannot have this remedy. For the remedy -of distress being substituted in the place of the lord’s right of entry, -could not be extended to a stranger, who never had that right. And this -was originally the only kind of rent seck; but the statute called _quia -emptores terrarum_, introduced another species of rents not distrainable, -by converting rent services into rents seck. The liberty of alienation -without the consent of the lords having been allowed before that statute, -it became customary for a tenant who sold his land, and parted with his -whole estate in it, to reserve the tenure of the _vendee_, not to his -superior lord and his heirs, but to himself and his heirs; whereby he -retained many advantages to himself, by continuing the vendee’s lord, -such as the right of escheat, if the tenant died without heirs, and the -benefit of the wardship and marriage, if it was held by knight’s service. -Now a rent reserved upon such a sale to the vender, was, as he continued -the vendee’s lord, a rent service, and consequently distrainable[152]. - -But this practice, though highly useful to the sellers, was of -considerable detriment, not only to their lords, who thereby frequently -lost the fruits of their tenures, but indeed to the whole military policy -of the kingdom. It was enacted, therefore, in the eighteenth of Edward -the First, by the statute above mentioned, that whenever a man aliened -his whole estate, the alienee should not hold from him, and be his -tenant, but from the superior lord, and be the lord’s tenant directly; -and that by the same services, by which the alienor had holden. The -alienor, then, by this statute, ceasing to be lord, and his right of -reversion clearly gone, if he reserves a rent on such alienation, he -cannot distrain for it, and it is a rent seck. - -These rents seck, therefore, were of two kinds, one arising by grant, -which was the most antient, the other by reservation, when a man aliened -his whole estate. For if the whole estate was not gone, but a reversion -remained in him, a rent reserved was still, on account of that reversion, -a rent service; as if A. gave lands to B. and the heirs of his body, -reserving rent. As this estate tail, although it might continue for ever, -yet was capable of determination by the failure of that issue, such rent -was distrainable, for that reason, and also because, by the statute which -gave force to such estates tail, the reversion was saved to the donor. -But if he had made a lease of life or years, or a gift in tail, and -had, at the same time, conveyed over the remainder in fee, so that his -reversion was gone, a rent reserved on such a grant was _seck_. - -The inconvenience attending these rents seck, in their not being -distrainable, introduced another species of rents called _rent charges_. -These are rents seck, armed with a power of distress by the special -agreement of the parties; and are of two kinds, as the former are created -either by _grant_, or _reservation_. Those by grant, which were the only -species of rent charges before the statute, were thus; as if I grant out -of my lands, keeping them still in myself, a rent for years, life, fee -tail, or fee simple, and give my grantee a power to enter and distrain -for the rent. It will be by reservation; if I reserve to myself a rent -upon a conveyance in fee simple, or upon a gift in tail with a remainder -over in fee, or upon a lease for life or years, with a remainder over in -fee, and it is covenanted that I shall have a right to enter and distrain -for the rent. The power of distress, therefore, in rent charges is good -only by the express provision of the parties, not by the force of the -general law[153]. - -Antiently it was a doubt whether a rent charge could be reserved upon a -_deed poll_; to understand which, it will be necessary to explain the -difference between a _deed poll_ and an _indenture_. A deed poll is -a grant from one man to another, and is all and every part of it the -act and words of the grantor only; and therefore the deed belongs to -the grantee, and there is no counterpart in the hands of the grantor; -because the grantee binds himself to nothing towards him. Whereas, in an -indenture, every clause is the act and words of both. They are mutually -bound to each other, and therefore there is a counterpart in the hands -of each party. Now if A. by deed poll, granted lands in fee to B. -reserving rent, with a clause of distress, it was doubted whether this -clause was not void, and the rent a rent seck; because as the lands by -A’s grant was in B. it was apprehended they could not be charged with it -without an express covenant from him; as in the deed poll he was a party -merely passive. But it is now held, and that very equitably, that such a -reservation can raise a good rent-charge; for his acceptance of the deed -upon the delivery is an act sufficient to shew his assent to take it on -the terms therein contained; and nothing can be more reasonable than that -whosoever takes a benefit shall take it under such conditions, and no -other than such as the donor intended. - -Thus have I endeavoured to explain the nature of the three several kinds -of rents in our law, of which only rent service is properly feudal; but -upon account of the affinity of their nature, I thought proper to join -them here. It will be proper now to say something concerning the nature -of _distress_, as it was the remedy for recovering the feudal duties in -these kingdoms. - -Distresses were not only taken for rents, and other services reserved, -but also to oblige persons to appear in courts of justice, or to raise -fines, and amerciaments inflicted on them. This likewise arose from the -feudal law, as by that the doing suit and service at the lord’s court was -one of the duties attendant on fealty. - -But there is another kind of distress allowed by our law, arising neither -from the feudal contract, nor the express stipulation of the parties, -but from the _delictum_, or negligence of a stranger. It is called a -_distress for damage feasant_, and is a seizure of the cattle, or any -other moveable of a stranger, trespassing upon or damaging my ground. The -law in this case will not put me to my action against the proprietor, -whom perhaps I may never discover; but has provided a _festinum remedium_ -for me, by way of distress; and this distress is more privileged than -others, for it may be taken in the night-time, which other distresses -cannot; because, otherwise, the cattle might escape, and the goods be -removed, and so the party injured remain without remedy. - -Many and grievous were the extortions and oppressions of the antient -English lords in their taking distresses, during the troublesome reign of -Henry the Third, for the remedying which many wise regulations were made -by the statute of Marlebridge and others. For they not only distrained in -a most unreasonable manner for the smallest duties, but distrained where -nothing was due; and frequently even out of their fees; and to deprive -the parties injured of legal remedy, drove them into another county, or -inclosed them in a castle, or would not suffer their bailiffs to permit a -replevin[154]. - -Since I am on this head of distresses, it will be proper to make a few -observations, _what_ may be legally distrained, _when_, and _where_, and -_how_ a distress is to be demeaned, and what remedy the person wrongfully -distrained hath to recover his property. - -First then, nothing can be distrained but moveables, and such as may -be restored in the same plight. For the distress is in the nature of a -pledge to be restored on due satisfaction made; therefore nothing fixed -to the freehold is distrainable, as doors, windows, furnaces, &c. for -these being affixed thereto, are part of the freehold, and cannot be -separated thence without damage. Therefore, a smith’s anvil, though not -actually fixed, or a millstone removed in order to be picked, are not -subject to distress; for the one is, in law, still part of the shop, as -the other is of the mill. Hence, likewise, money is not distrainable, -unless it be in a bag; because, otherwise, it cannot be known, so as to -return it in the same plight. For the same reason, by the old law, corn -in sheaves, or in stacks, or in a barn, or hay in cocks, or in a loft, -could not, for fear of damage in removing. That however hath been since -altered by statute, but corn or hay on a cart could be distrained by the -old law; for they being, in such a case, found in a situation fit for -removal, might be transported from place to place without any probable -danger of damage, or diminution. - -Secondly, The instruments of a man’s livelihood, as the tools of a -tradesman, the books of a scholar, the plough-cattle of a ploughman, &c. -cannot be distrained where any other distress is to be found; and this -for the particular safety and benefit of individuals. But this holds not -in the case of _damage feasant_; for there the identical thing that did -the trespass, and that only, must answer for it. - -Thirdly, Things sent to public places of trade are privileged, for the -public benefit of the realm, as cattle in a market, corn sent to a mill, -cloth in a taylor’s shop, yarn in a weaver’s house. For it would put a -total stop to commerce if these were answerable for the rents of such -places. - -Fourthly, What is in the custody of law is not distrainable, for it would -be an absurdity that a man should have a right by law, to take things out -of the custody of the law itself, such as goods already distrained, or -goods taken in execution, or seized by process at the suit of the king. - -Fifthly, Things in manual possession of another, are, for the time, -privileged, as an ax in a man’s hand, or the horse I ride on. But for -damage feasant, as I said before, every thing is distrainable; for the -thing itself which did the damage, is the pledge of the satisfaction, and -the only one. - -Next let us see _how_ and _where_ they may be taken. The distress, then, -should not be excessive, as an ox should not be taken for twelve pence, -where other sufficient distress might be had, or two sheep where one was -sufficient; but for damage feasant, though ever so little, the whole may -be taken; and likewise for homage, fealty, or the wages of members in -parliament. As the interest of the whole community is concerned in these, -no distress can be excessive. No distress can be taken in the king’s -highway, for it is privileged for the public use of the nation. Neither -can any distress be taken by night, unless for damage feasant; for as no -tender of rent, or other duty, can be made, or acceptance enforced but -in the day-time, perhaps the tenant may, in such case, be provided, and -ready to tender his duties the succeeding morning, and thereby save his -chattels. Lastly, by the common law, no man could distrain out of his -fee, unless when coming to distrain he had the view of them, and they -were driven off to prevent him. But this hath been altered by statute, -and now a landlord may follow his tenant’s cattle, if conveyed by his -lessee off the land, and distrain them within twenty days. - -As to the _manner_ of demeaning or managing the distress, it is the duty -of the distrainor to carry them to a pound, that they may be in the -custody of the law. _Pounds_ are of two kinds, _overt_, or _covert_; the -one for living cattle, the other for other goods that might take damage -by the weather. The reason why living cattle should regularly be put into -a pound overt, is, that, as they are but a pledge, from which, in itself, -the taker is to receive no benefit; and as the proprietor, therefore, -must be at the sole expence of feeding them, he should have the freest -access to them for that purpose; and, in such case, if they perish, the -loss is his; but if they be put into a covert pound, there, because the -owner cannot have access, the taker is to feed them, and answer for them -at his peril. - -In antient times, the lords used to drive the distresses into foreign -counties, whereby the tenants knew not where to resort to feed their -beasts. This was forbidden by Marlebridge, cap. 4. However, that act -received this construction, that if a manor lay in two counties, and its -pound in one of them, the lord might distrain in the other county, and -impound them in his manor pound; because the tenant, by attending the -manor court, was presumed to know every thing transacted in the manor. -But now, by later acts, no distress of cattle shall be impounded out of -the hundred, or barony where taken, except in a pound overt, in the same -county, within three miles of the place; nor shall distresses be divided, -and impounded in several places. Dead chattels must be impounded likewise -within three miles, and that in a pound covert, otherwise the taker is -answerable for them, if damaged or stolen. - -As to the _remedy_ for taking an unjust distress, the tenant might, if -there was nothing due, rescue them before they were put in pound, and -justify it; but when once impounded, they were in the custody of the law, -and must be delivered by law. Or if there was any thing due, he might, -before they were impounded, make a tender of satisfaction; which, though -the caption was just, rendered the detention unlawful; and therefore if -the beasts, after such tender, were put in pound, and died there, the -taker was answerable. - -When the goods were once impounded, the remedy was by _replevin_, which -is a judicial writ out of Chancery, directed to the sheriff, who is -Judge in this case, complaining of the unjust taking and detention, and -commanding the sheriff to deliver them back to the owner, upon security -given to make out the injustice of the taking or detention, or else to -return the goods and chattels. - -But this method of replevin, by writ out of Chancery, was very -inconvenient to the remote parts of the kingdom; as the owner might be -put to extraordinary expence and trouble, in maintaining his cattle for a -long time. Hence it was provided, by the statute of Marlebridge, cap. 21. -_Quod si Averia alicujus capiantur, & injuste detineantur, vicecomes post -querimoniam sibi factam, ea sine impedimento vel contradictione ejus qui -dicta Averia ceperit, deliberare possit_[155]. - -This impowered the sheriff to make replevins without writ, upon the -plaint of the plaintiff in replevin; and this he could do out of his -county court, because, as that was held only from month to month, were -it otherwise, the delay might be as great as in the case of a writ of -replevin; but then the sheriff, in order to lay the foundation of the -suit, must enter the plaint the next county court, that it may appear on -the rolls thereof. - -The sheriff’s duty then was, in the first place, to take sufficient -security _ad prosequendum_, that is, that the plaintiff should make out, -in due course of law, the justice of his writ or plaint, that is, that -the cattle or goods were either taken, or detained unjustly. He was -also to take security _de retorno habendo_, that is, in case he failed, -that he would return the same distress, that it might be delivered to -the taker; and this is by the statute of West. 2.; and he generally, -likewise, took security to indemnify himself from any action that might -be brought against him. And then it was his duty immediately to deliver -the distress to the plaintiff in replevin. - -Then it lies on the taker or defendant in replevin to _avow_, that is, -to set forth the reasons of his caption, to which the plaintiff replies; -and so the justice of the cause comes into question, to be legally -determined. Thus much is sufficient, at the present, to shew the remedy -the lord hath for his services, by virtue of his seignory, and how his -tenant is to defend himself if unjustly distressed[156]. - -I might here treat of another fruit of the lord’s seignory, which is the -_right of escheat_, or the lands falling back to the lord, either for the -_delictum_ of the tenant, or the failure of blood; but as, to understand -this last properly, we must know who are inheritable, it will be more -proper to defer it till after we have treated of _inheritances_. - - - - -LECTURE XI. - - _The manner in which estates for life came to be enlarged - into descendible estates—The nature of Reliefs—Feudal - oppressions—The admission of allodial lands into the feudal - policy—The extension of the feudal system in France._ - - -The feudal lands having been changed by degrees from tenancies for years -into permanent grants for life, partly by the necessities, and partly -by the favour of the lords, the matter did not stop here; but, to the -advantage of the vassals, their rights were continually gaining ground, -and insensibly extending themselves, to a durable continuance in the same -family. To this, undoubtedly, the number of allodial estates, which were -estates of inheritance in the hands of the Romans, greatly contributed. -For it is not to be imagined that it could be an agreeable spectacle -to the conquerors, when once they were settled, and secured in the -possession of the country, to behold their posterity in a more precarious -situation, with regard to property, than the vanquished were. It is true, -as by their constitution the lord was obliged to provide every gentleman, -that is, every one of their nation, unless he proved unworthy, with a -benefice, there was no danger of their issue not being supplied, in some -degree or other. But this did not satisfy them[157]. - -Their roving manner of life being antiquated, and the practice of -removing them from place to place every year being superseded by gifts -for life, the possessors, by habitude, became fond of their dwellings, -and no longer contented with bare necessaries, studied to render their -situation commodious and agreeable. They built houses of strength and -convenience, and by their socage, tenants and villains planted and -improved their lands. And now it began to be thought severe, that -the benefit of their improvements, and the fruit of their and their -dependants toil and labour, should go to strangers, or even to the lord -himself. For before this time it had began, and was now grown into a -common practice, for the lords, when they gave an estate for life, not to -content themselves merely with future service, but to exact, at the time -of their investiture, an _honorary fine_ from the tenant; and this, being -but moderate, was generally complied with, in order to gain a permanent -estate. The interest of the state, which was concerned in the improvement -of particulars, required also a preference of the defendants of those -that made them. It is no wonder, therefore, that it grew to be a maxim, -and universal opinion among these people, that the not continuing the son -in the possession of his deceased father, though it was in the lord’s -power to remove him, was a great hardship, and an unworthy act in the -lord[158]. - -With these general sentiments, the lords, for their own interest, were -obliged to comply, and especially the kings; who, by the frequent -divisions of the monarchy in France, had competitors to guard against; -and were, therefore, enforced to attach their vassals to them in the -strongest manner, by complying with their inclinations. The sons, -therefore, or one of them, generally succeeded; not in virtue of any -inherent right, but by a new gift, through the favour of the lord. For, -upon the death of his vassal, the estate being expired, the lord took -possession, and, upon receiving a fine, made a new grant, by investiture, -as of a new estate, to such an one of the sons as he chose; or he divided -it among them at his pleasure. These fines for continuing the fiefs in -the same family were called _relevia_ or _reliefs_, from the Latin word -_relevare_, which signified a second lightening, or removing the hand of -the lord, who had seized the benefice upon its vacancy, by the death of -the former possessor. Hence the son had no right to continue his father’s -possession. He was obliged to petition for a new investiture, and to -tender his relief, and himself ready to take the oath of fealty. These -reliefs were originally paid in arms, being the most valuable property -these military people had, and afterwards were converted into money. The -_quantum_ was originally at the lord’s will; but his own interest, from -the motives already hinted, commonly prevented him from being exorbitant. -This preference to a succession being at first a matter of favour, not -of right, some vassals, by degrees, obtained of their lord, in their -investitures, an absolute right of succession to their sons; which bound -the lord and his heir; and that in these two different manners. It was -either by a grant to the vassal, and one or more of his sons by name; and -then those omitted were excluded; or _to him and his sons_ generally; and -then, by the feudal law abroad, they were all admitted to enjoy in equal -portions, in imitation of the Roman law, which admits all the children in -that manner. - -But the words of the grant were not extended, by a favourable -construction, to take in grandsons by the name of sons, for the following -reason. When a grant was made to a man and one or more of his sons by -name, the sons were originally, at the time of the investiture, capable, -or supposed capable, by the lord’s admission, of doing the services of -the feud; and their ability and merit was in the contemplation of the -grantor, and part of the consideration of the grant; and where it was -given to a man and his sons generally, the law presumed the same thing, -the same capacity in them, the same intention in the grantor. But in the -case of grandfather and grandson, the law could not presume so, it being -contrary to the ordinary course of nature, that both should, at the time -of investiture, be capable of doing the services in person; and therefore -the grandsons, unless specially provided for, were excluded[159]. - -Thus a right of succession for one step was gained by the express -provision of the parties, in particular cases. But as the lord, where -he continued the succession out of favour, entered into the lands, and -parted not with them without payment of his relief by the son, it was -reasonable in this case, where he positively bound himself, that these -advantages should be reserved to him. Therefore the heir could not enter, -but was obliged to petition his lord _humiliter_ and _devotè_, and to -offer his fealty and relief; and the interest of the lord and of the -state requiring the place of the deceased vassal to be speedily filled -up, a year’s and a day’s time was allowed for this application; within -which space, if the heir did not apply, unless prevented by inevitable -necessity, he forfeited his right of succession, and the lord was at -liberty to dispose of it to a stranger. - -Reliefs, however, being, in their original creation, arbitrary, it should -seem to be in the power of the lord, where the quantity was not specified -in the tenor of the investiture, to defeat his own grant, by demanding, -under that name, more than the value of the land, or otherwise grievously -to distress his tenant. This, in England particularly, occasioned many -struggles. It appears from the laws of William the Conqueror, that, in -those times, the reliefs were fixed according to the different ranks of -the persons, and paid in horses and armour, in imitation of heriots in -the Saxon times; but his avaricious and tyrannical son William Rufus -laid claim to, and exacted arbitrary reliefs, to the great discontent of -all, and to the impoverishment of many of his subjects[160]. This was -redressed in Henry the First’s charter, where the first chapter says, -_Si quis baronum, comitum, sive aliorum qui de me tenent mortuus fuerit, -heres suus non redimet terram suam sicut faciebat tempore fratris mei, -sed legitima, & certa relevatione relevabit eam, similiter & homines -baronum meorum, legitima, & certa relevatione relevabunt terras suas de -dominis suis_[161]. Henry the First, however, was a man little inclined -to keep any engagements with his people that he could free himself from; -and therefore reliefs went on in an arbitrary way, for the most part, -under him, though not in so oppressive and extorting a manner as his -brother William had used. For in his grandson Henry the Second’s reign, -in whose time the feudal payments became generally converted into money, -we find, from Glanville, that the relief of a knight’s fee, indeed, was -reduced to a certainty, but that of a noble fee was not. _Dicitur autem -rationabile relevium alicujus, juxta consuetudinem regni, de feodo unius -militis, centum solidos;—de baroniis vero nihil certum statutum est, quia -juxta voluntatem & misericordiam domini regis solent baroniæ capitales de -releviis suis domino regi satisfacere[162]._ - -It seems a little odd, that the lower military people had got such an -advantage above the great and powerful lords; but this may be accounted -for from the number of the knights, who made the strength of the kingdom, -and were not to be disobliged; and also from the precarious situation -many of the great lords were in, who had been attached to the cause of -Stephen. However, the wisdom and moderation of this great prince was -such, that we find no complaints on this head, during his reign, or that -of his son Richard; but when John ascended the throne, a prince who -hated, and was hated by his nobles, the old oppressions were renewed, -and aggravated to such a degree, that the remedying thereof is the first -article of temporal concern in Magna Charta[163]. - -There it is provided, _Si quis comitum, vel baronum nostrorum, sive -aliorum tenentium de nobis in capite per servitium militare, mortuus -fuerit, & cum decesserit, heres ejus plenæ ætatis fuerit & relevium nobis -debeat, habeat hereditamentum suum per antiquum relevium; scilicet, -heres, vel heredes comitis de comitatu integro per centum libras, -heres vel heredes baronis de baronia integra per centum marcas; heres -vel heredes militis de feodo militis integra per centum solidos ad -plus: Et qui minus habuerit minus det, secundum antiquam consuetudinem -feodorum_[164]. And now were all reliefs reduced to a certain sum of -money, namely, the fourth part of what was then reckoned the value of the -inheritance; for a knight’s fee was then reckoned at twenty pounds, a -barony at four hundred marks, and an earldom at four hundred pounds per -annum. And by the gradual sinking of the value of money, and the rising -of lands, these payments continuing the same, came in a few centuries to -be not the twentieth part of the value. We see by the words _per antiquum -relevium, & secundum antiquam consuetudinem feodorum_, how careful the -lords were to have this certainty of relief acknowledged as their antient -right, and not to accept it as a concession from the crown. When the -military lords began, in imitation of the estates they themselves had, -to grant inheritances to their socage tenants, they likewise exacted, in -the nature of a relief, from every new possessor a year’s value; or, in -other words, the rent of the first year was doubled. For a year’s value -was what was, in France, at the beginning, paid for military tenures, by -the name of _rachat_, or _repurchase_, answering to our relief, until at -length they were reduced to a certainty in money; and, consequently, from -the same causes as in England, though remaining nominally the same, they -sunk to be very inconsiderable[165]. - -Estates of succession, as I observed, arose first from private grants, -and that for one generation only; but they were continually extending to -further lengths, and encreasing in number; insomuch that, fiefs falling -vacant much seldomer than before, the king had it not in his power to -gratify his deserving soldiers so frequently as he should, and the -crown was consequently enfeebled. This then started the notion of such -grants being good only during the life of the king or lord who made them, -and not binding on his successors. Upon this plan, Brunechild, in her -regency, during the minority of her infant son, attempted to revoke them, -and actually did revoke several; which at length raised that flame, and -caused that revolution, in which her son and herself miserably perished. -What shews the violent indignation her venturing on this step occasioned, -was the horrid manner of her death, that of being torn asunder by four -wild horses. Clothair the Second, who succeeded, was wise enough by law -to confirm these estates; and then, namely about the year 613, the former -doubt was removed, and all these estates of inheritance confirmed to -continue against the successor, according to the terms of the original -investiture. New grants were continually made, and for more generations -than had been formerly practised. But yet this rule of descent was not -general; but all grants, unless heirs were specially named, were but for -life; as it is in our law, in which a _feofment to a man for ever_, is -but an estate for life for want of words of inheritance[166]. - -What greatly contributed to the extending these grants to indefinite -generations, was the inclination that now seized the Romans and Gauls -who held allodial lands to be admitted into the feudal policy, by -becoming vassals to the king. They had long lain under very humiliating -distinctions. They were no members of the state. The loss of their lives, -and other injuries, were compensated only by half the satisfaction to a -Frank. For neglect, or contumacy, when called into the king’s courts, -they were reputed guilty, and forfeited their estates; whereas a Frank -was only imprisoned to oblige him to answer. When accused of the lightest -crimes, they were put to the ordeal; whereas the Franks were only -subjected thereto in case of murder. And many other were the distinctions -between the allodial and feudal tenants. No wonder then the former were -very desirous of enrolling themselves among the conquerors, which when -they had at length obtained, their liberty was effected, by their giving -their allodial lands, or a part of them, to the king, and receiving them -back, subject to the feudal rules. Now were they immediate vassals of -the king, and, as such, became Franks to all intents and purposes. But -these people were not so foolish, nor could it be expected from them, to -part with absolute inheritances, and take back only an estate for life. -They insisted upon grants for a perpetuity, at least for as long as the -issue male of the person resigning lasted. When once these donations were -become common, we may be assured the Franks were very ready to follow the -example, and to take all advantages either of the favour, or the weakness -of their kings; and to such a number did these inheritances increase, -that, about the year 730, the kingdom was near being lost to the -Saracens, for want of a sufficient number of beneficiary or life-estates, -to encourage the soldiery[167]. - -At the time the kings of France were merely nominal, and the whole -administration in the hands of the _maires du palais_, of whom the -second, who had obtained this unlimited authority, Charles Martel, -was so happy as to save the kingdom from those African invaders in a -battle near Tours, wherein they were routed with a slaughter almost -incredible. It remained to reward the victorious soldiers, who were at -least as much animated to their exploits by his previous promises, as -by their affection to the antient constitution of the state, which was -now in truth destroyed, the kings of the royal race being mere phantoms, -whose names he and his father had made use of at their pleasure. But -this family had not acquired sufficient weight and authority to act as -masters. The fund of lands, out of which benefices had been formerly -given, was almost exhausted, and the major part of the lands that were -not still allodial, was alienated either in perpetuity to the church, -as atonements for the vices of the former kings, or what was near a -perpetuity to the lords, for many descents. These last he could not -despoil. They were too firmly established by custom and law; and he and -all his predecessors had paved their way to greatness, by supporting -these hereditary grants at the expence of the crown. Necessity therefore -obliged him to make free with the lands of the church; for which, in -their visions, they lodged him in a chamber, the very lowest in hell. Of -these lands the greatest part he converted into benefices of the antient -kind, for life only; and by means of the number of those new ones, added, -to the old ones, that were in the same state, some kind of a balance was -formed; which for a time supported the government, and checked the growth -of inheritances. But it is remarkable, that, of those church lands, -several he gave as allodial ones. I will not pretend to say, that, in -this distinction, he considered the antient nature of the lands of the -church, some of which came from feudal, others from allodial proprietors. -It seems rather probable, as the allodial estates were greatly decreased, -by being turned into fiefs of inheritance, he was inclinable to form a -kind of equality between the feudal tenants, the beneficiaries, and the -allodians; that, by managing them, he might advance his family to the -title, as well as power of royalty; which we find was soon afterwards -accomplished by his son Pepin[168]. - -The policy of Pepin and his son Charlemagne corresponded with Charles -Martel’s views. The former allowed the continuance of inheritances -according to the original provision in the creation, but were much -fonder of the beneficiary estates, and Charlemagne made several laws to -prevent his beneficiaries from converting by any art their interests into -inheritances. In his time, a great majority of estates were benefices; -but this I presume is not to be understood of France particularly, -where, from the detail before mentioned, it could scarce be, but of his -whole empire. For in his acquisitions, and especially in Germany, where -such a practice was agreeable to the antient customs of the natives, -such a regulation was conformable to the sound policy of his father -and grandfather; by which they endeavoured to restore the splendour of -the old French monarchy, I mean with exception to the large gifts he -gave to the church on the borders of the infidels, in atonement for his -grandfather’s sacrilege, and in hopes of converting those barbarians, and -thereby civilizing them, and making them good subjects. - -But the successors of Charlemagne had neither the power nor the -understanding of their ancestors. No wonder then, that, under them, the -general inclination of the subjects to change their benefices into fiefs -gained ground. The division of the empire, and frequent wars between the -brothers, weakened the royal authority, and strengthened their vassals; -who, at the times of their kings distress, were rather to be entreated -than commanded. In the time, therefore, of his grandsons, we find laws, -that, conforming to the inclination of the vassals, did in time put an -end to beneficiary estates, holden from the king; opened the gate to -_subinfeudations_, and all its extensive consequences; and raised a new -kind of polity never before seen in the world, the _feudal_ one, such as -it reigned about the year 1050 on the continent, and was introduced into -England by William the Conqueror[169]. - -I speak of the times of Charles the Bald, who reigned about 860. One of -his laws gave leave, and an unlimited one, to the allodians, to submit -themselves and their estates, in the nature of fiefs, to others besides -the kings. Nothing could contribute more to the weakening of the royal -power, and the throwing of all the weight into the baron’s scale. Before -they could be made Franks, only by becoming the immediate vassals of the -king. This was equally for the public benefit of the state, the king, -and the allodians. But when once the barrier was thrown down, in those -times of confusion, the allodians were glad to gain the protection of the -neighbouring lords, and, under colour thereof, detached themselves from -their former subjection to the counts, who were the king’s officers over -them. - -Another law, of equal consequence, was to entitle the fee of a -beneficiary, who had only an estate for life, without any express -agreement for a longer continuance, to go to the son. This was extorted -by the circumstances of the times, and perhaps then was thought of little -consequence, as it only continued them for one generation. But the -temper and general inclination of the people were not to be controuled. -Those grants that had been so long as two generations in a family, it -was sometimes dangerous, always invidious not to continue; and thus -the successors often obtained permanent estates, when nothing less was -intended at the beginning. And this was easily obtained, as the use of -letters was not common among these people, and their charters were, by -frequent rebellions, liable to be destroyed. - -The last law I shall mention, is that declaring, that the sons of counts, -who were the king’s officers over the _allodianée_, and were originally -for years, after for life, should succeed to their father. This put -the finishing stroke to the beneficiary estates. For though this, in -appearance, was, as the former, but for one life, and conditionally; yet, -from the prevailing principles, it was impossible they should not grow up -into inheritances. And as all inheritances were growing feudal ones, and -upon those conditions, and no others given, these counties become fiefs. -The demesnes of the crown within them became the demesnes of the count, -and all the allodiaries were now become his sub-vassals[170]. - -We are come to the dawn of a strictly feudal monarchy, and, to shew the -gradation, I have, in this lecture, taken in a great compass of time. But -before I proceed further downwards, it will be proper to return a little -back as to the order of time, and to speak of the consequences that -attended the introduction of estates of inheritance. Of one of these, -_reliefs_, I have already spoken in this lecture; but there are many -others that must be taken notice of. - - - - -LECTURE XII. - - _Consequences attending the introduction of estates of - inheritance—The incident of homage—Differences in England and - the Continent, with regard to the ceremonies of homage and - fealty—The fine of alienation—Attornment—Warranties—Wardship in - chivalry._ - - -Having already, in my last lecture, taken notice of _relief_ which sprung -up immediately with estates of inheritance, and was their immediate -consequence, it is proper now to proceed to the other fruits of this -tenure, which grew up not so soon, but in after times: and the first to -be considered, as undoubtedly the next to relief, if not coeval with -it, is _homage_; which, Littleton says, is the most honourable service -(that is with respect to the lord, and the most humble service, that is -with respect to the tenant, that a freeholder can do to his lord) as -upon the introduction of estates for life, the ceremony of fealty was -introduced, so was it thought reasonable, when a further step was taken, -that of continuing them to heirs, that a new ceremony should be invented, -distinct from the former; which being performed publicly, in the presence -of the _pares curiæ_, should, in those illiterate ages, create a -notoriety, that the tenant had a more durable estate than a freehold. The -manner of performing homage is thus distinctly described by Littleton. -When the tenant shall make homage to his lord, he shall be ungirt, (that -is, unarmed) and his head uncovered, and his lord shall sit, and the -tenant shall kneel before him on both his knees, and hold his hands -jointly together between the hands of his lord, and shall say, _Thus I -become your man_ (from which word _homo_, _homagium_, and _hominium_ -are derived) _from this day forward, of life and limb, and of earthly -worship, and unto you shall be true and faithful, and bear your faith, -for the tenements that I claim to hold of you, saving the faith that I -owe to our sovereign lord the king_; and then the lord so sitting shall -kiss him. These are the words of Littleton, and they are just in the -case he puts of a tenant doing homage to an inferior lord, and who had -no prior lord; but if he had a prior lord, or the homage was to be done -to the king, there was a difference in the form; for if the tenant had -a former lord, he also was to be excepted, that the new lord might have -notice of the tenant’s prior obligation, and that it was not in his power -to do absolute personal services at all times to him. And if the homage -was done to the king, who acknowledged no superior, then the exception -was entirely omitted; but if to a subject, it was so absolutely necessary -that an omission of it was looked upon as an attempt against the royal -dignity, and done in disherison of the crown. And accordingly we find, -that Edward the First, in the sixth year of his reign, brought an action -of ten thousand pounds damages, now at least in value thirty thousand -pounds, against the bishop of Exeter, for taking homage of thirteen of -his bishop’s vassals, without the exception of the king; and, in the end, -judgment was given against the bishop[171]. - -Our antient authors tell us, that the lands for which the homage was done -ought to be specified in the doing homage; and the reason given is, _Ne -in captione homagii contingat dominum, per negligentiam, decipi, vel per -errorem_. But it was better to say, that it was for the benefit both of -lord and tenant, and for the information of the _pares curiæ_, who were -to judge in case of any controversy between them. - -In England the two ceremonies of homage and fealty were kept distinct; -the homage, as being for the most durable estate, was performed first, -and afterwards the fealty; but, on the continent, at least in some -countries, I find they were blended together, by the homage being done -upon oath. - -Another difference between England and the continent was, that, in -England, no homage was repeated to the lord’s heir, by a tenant who had -himself performed it to the ancestor, but homage once from the tenant -was sufficient for his life; whereas, in France, new homage by the same -tenant was done on the death of the lord, as we may see plainly by many -instances, in the case of the kings of England and France, for the lands -the former held in the latter country. Homage was the symbol of a strict -and indissoluble bond between the bloods of the lord and tenant, by which -they, and the heirs of their blood, were mutually disabled from doing any -thing to the prejudice of the other party. The tenant, therefore, could -not alien, either by last will or by deed, in his life-time, without -the previous consent of the lord. This maxim was established partly in -favour of the blood of the first tenant, which was, in fact, often the -consideration of the original grant, as when the lord gave lands in -marriage with his daughter, or to a son or a brother, (and even where -it was not in truth so, the law presumed the blood of the first tenant -was in contemplation on the strength of this maxim, _fortes creantur -fortibus et bonis_, and the probability that a gallant warrior would, by -a proper education, qualify his son for the same profession) and partly -also in favour of the lord, that he should not be obliged to receive, as -his tenant, a person that was inexpert in war; or that, if qualified, -was, perhaps, an enemy to the lord, or that was previously vassal -and bound to another lord who was an enemy. For in those troublesome -times, the power of the crown of France, where these rules began, being -greatly diminished, every lordship made a little kind of state in -itself, frequently at open war; and when not so, at least in a state -of suspicious peace with its neighbours; and from this state of things -it happened, that the word _feud_ has come in our common language, to -signify a mortal quarrel, as being almost inseparable from the greater, -or even lesser fiefs[172]. - -In those times, the lord, when things grew into a more settled state, -took advantage of this maxim, that the tenant should not alien without -licence, and the tenants readily acquiesced, under the subsistence of the -rule, as it permitted them, in their turn, to exact a fine from their -under tenants, or the alienees of such in all cases of subalienation; by -which means this fine at length became an established fruit of tenure. In -England, however, it ceased in the case of lords that were subjects from -the time of the statute called _Quia emptores terrarum_, which gave every -person a free liberty to sell his lands: but the king not being named -in that statute, according to the well-known legal maxim, was not bound -thereby; and of course was paid fines for alienation, or by subsequent -statutes a commutation for such fines by his military tenants _in -capite_, to the time of the Restoration, when these tenures were entirely -abolished. On the other hand, the lord was not permitted to alien, even -with the consent of his superior, without the consent also of his tenant, -and that for a similar reason. For if he, the lord, might so do, he might -subject his tenant to one who was the tenant’s mortal enemy, and perhaps -for no other reason than for serving his former lord faithfully against -the new one[173]. - -This last maxim once established, introduced the practice of tenants -_attorning_ to their lords grants of the seignory. _Attornment_ is an act -of notoriety, originally performed in the presence of the _pares curiæ_, -signifying the tenant’s consent, and turning over from his former lord -to the new one, and the putting him, the new one, in the seizin of his -services. This, at first, was merely voluntary in the tenant; but when, -in England, free alienations were allowed by the aforesaid act, it was -not thought reasonable that it should be in the tenant’s power to defeat -his lord’s grant, by refusing to attorn. He was therefore obliged, by -an action called _Quid juris clamat_, to appear, and to shew forth what -title he had in the said lands, and whether he had any sufficient cause -why he should not attorn to the grantee; and if he could not shew any, he -was obliged by the judgment of the court to attorn[174]. - -Another effect of this homage was _warranty_, which is the obligation -on the lord to defend his tenant in the lands holden of him; or, if he -cannot, to give him a recompence of equal value in other lands, our law -went no farther; but the feudal law, if the warrantor had no lands to -give in exchange, obliged him to pay the value in money. _Warranty_ is -derived from the word _war_, because, in those real actions, the trial -was of old by combat. This obligation, indeed, subsided, as I have -already hinted, long before the introduction of hereditary estates; but -when these hereditary estates became common, and all the military tenures -were of this sort, and estates for lives and years were only, or for the -most part, socage, these last had no warranty annexed to them by law, -but only by special agreement; and the warranty I am now speaking of -was confined to inheritances, and of those only to such as were held by -homage _auncestrel_, that is, where the tenant and his ancestors had, -from time immemorial, done homage to the lord and his ancestors. Here, on -account of the continued connection between the blood of both families, -the law obliged the lord and his heirs to warrant the lands to the tenant -and his heirs[175]. - -The manner of taking advantage of this obligation of the lords by -voucher, which still remains in our law, (the other method by disuse -being antiquated) was shortly thus: When the tenant in possession -is impleaded for the lands by a stranger, who claims them as his -inheritance, he, the tenant appears, defends his right, and _vouches_, -that is, calls in his lord to warrant the lands to him. If the lord -appears gratis, and enters into the warranty, as he ought, if he is bound -to warranty, the tenant hath no more to do in the defence of the suit. It -is the lord’s business. Against him the stranger declares, and prosecutes -the suit. He defends, and it is found against him, either by legal trial, -or default, for want of appearing; and the judgment the court gives is, -that the demandant or stranger shall recover the lands demanded against -the tenant, and that the tenant shall recover lands of equal value from -the lord, or voucher, as he is termed, because he is _vocatus_, or called -in to take upon himself the defence. If the lord, who is to warrant, doth -not appear, he is summoned till he does; or if he appears, and will not -enter gratis into the warranty, the tenant is to shew how the person he -calls in is bound to warrant; which must be either by homage auncestrel, -or by his, or his ancestors express covenant, as I shall hereafter shew; -and until this was determined, the suit of the demandant was suspended; -because as yet it was uncertain who was obliged to defend the lands. So -we see in the judgment of this kind, there were in fact two judgments, -one against the tenant, who was to give up the lands, another against the -lord, who was to give lands equal in value. But there might be three, or -more judgments, as there might be two or more vouchers. As if there be in -respect to land, A, B, and C. A, lord paramont or superior, B _mesne_, -that is, tenant to A, and to lord C; and C tenant _paravaile_, that is, -the actual possessor of the land. Here, if D, a, stranger, brings his -action against C, the tenant, who vouches his lord B the mesne, who -enters into warranty, and vouches A the lord paramont, who enters into -warranty, and fails, D recovers the lands from C, C recovers in value -from B, and B recovers in value from A, and so on, if there be more -vouchers. - -Warranties, as I hinted before, are of two kinds, _warranties in law_ or -by homage auncestrel, or by words in the deed, which the law construes to -import warranty (which stood upon a feudal footing), and _warranties in -deed_, that depend on a special covenant. These last were substituted in -the place of the former. For as by every alienation, either of the lord -or tenant, the mutual connection between the two bloods was extinguished, -and warranty by homage auncestrel consequently gone (insomuch that -now, by frequent alienations, there is no such thing left) the tenant -would not attorn to his lord’s grant when the lord aliened, nor a new -tenant accept of a grant from an old tenant of his tenancy, without -an express warranty, binding in the first case the new lord and his -heirs; in the latter the old one and his heirs. Afterwards the making -of these warranties was extended to persons between whom there was no -feudal connection; as if a man aliened lands to hold of his lord. Here -the grantee held of the lord of the grantor, not of the grantor; and -therefore, as he had nothing to bind the lord to warranty, would insist -on an express warranty from the grantor and his heirs[176]. - -One species of these warranties, namely, that which is called _collateral -warranties_, was made use of, and it was the first invention that was -made use of, to elude the statute of Edward the First, _De donis_, which -gave birth to, or rather restored to life that antient kind of feudal -estate, which we call _Fee tail_. But it must be owned this intention -was both against the words and intention of that law. A judge in his -grandson’s, Edward the Third’s, reign, says, they were wise men that -made this statute, and that the king that passed it was the wisest king -that ever was in England, and both assertions must be allowed. The -nobles who made it were wise men in their generations. For, by making -effectual these gifts in tail, they secured their estates in their -families, free from any forfeitures, arising from their own misconduct; -which before their estates were liable to. But at the same time it was -a destructive law for the nation. It put the great lords of England, -who were before too powerful, in a condition, by this security of the -inheritance’s descending to the heirs, to beard and awe the crown, and -it likewise discouraged industry and commerce, which then began to rear -their heads in England. Perhaps the wisdom of the sagest of the kings -of England, as he is universally called, may by some be doubted in -this, that he consented to this act; but he was a sage king, and did -wisely in consenting to it. The barons had been so oppressed in his -father’s reign, and their estates so often confiscated, that a mutual -jealousy subsisted at that time between them and the crown. They had been -restored, because the crown was otherwise in danger. They were jealous -likewise of Edward himself, for one or two of his actions: In short, his -barons were too powerful to be refused this law, however contrary to the -interest of the crown and the lower people, and there was more to be said -in its favour, it being entirely agreeable to the feudal principles, -that he who received an estate to him and the heirs of his body, should -not have it in his power to contravene, by any act of his, the gift of -the donor. He complied therefore with a good grace; but his wisdom, -if it was seen in his complying, was farther seen, and in a stronger -light, in the construction his judges and their successors made of this -act, that collateral warranty, without an equivalent, should be a bar. -However, this was but a feeble defence against the mischiefs of entails, -which every day happened, to the weakening of the public estates, and -collateral warranties, were not on every occasion so easy to be got[177]. - -At length, in Edward the Fourth’s reign, under pretence of warranties, -and those entirely fictitious, a method was found out, under the form of -legal proceedings, to defeat estates tail, and all remainders thereon, -and that in the manner following: A, who was tenant in tail, was -impleaded by collusion, by a person who pretended to claim title to the -lands antecedent to the estate tail, and who was, in fact, the man to -whom A, by his private agreement, was to alienate it, in destruction of -the estate tail. A appears, and takes defence, but vouches to warranty -B, a man who has not a foot of land, nor is likely to have any: B very -readily enters into the warranty; and when the day comes, that he should -defend the suit, makes default; in consequence whereof, the court gives -judgment, that the demandant should recover the lands against A, and -A’s lands of equal value against B the vouchee, who hath none; and yet -this was judged a good bar to the entail, upon the possibility that -B might purchase lands equivalent, and so A, and the other persons -entitled in tail, might receive satisfaction. And that is what, under the -name of a common recovery, is grown to be one of the common assurances -of the realm; and though, for about seventy years, the justice and -conscientiousness of it was disputed, yet being constantly asserted -as law by the judges, and taken notice and approved of by acts of -parliament, it is the now most effectual bar to an estate tail. To speak -candidly about these recoveries, as to their application to this purpose, -they were notorious breaches of the statute _De donis_, under the colour -of legal proceedings. Yet what could be done? the law could not be -repealed; for all members of parliament had their estates entailed. It -could only be eluded, and both for the king and all who had not estates -tail, it was necessary it should[178]. - -Another consequence of estates becoming hereditary, and, in respect of -military tenures, a fruit of seignory, is _wardship_, or guardianship. -For it must now frequently happen, by the death of ancestors, that -estates would descend to heirs incapable to do the service, to manage -their affairs, or to educate themselves. It was necessary, therefore, -that the law should make provision both for the doing the services, and -the benefit of the heir, until he arrived at a proper age. And the law -proceeded in a different manner, as the lands were holden either by -knights service or socage; tenure, in the first case, having in view -principally the defence of the realm; in the second, the benefit of the -heir. With respect to military tenures, the time of age was twenty-one -years compleat; at which time the law presumed the heir was qualified, -both by skill and strength of body, to perform the part of a soldier. At -this age, therefore, he was out of the ward. If his ancestor died before -he had attained that age, his lord had by law the guardianship both of -his lands and person till then, and took the profits of the lands to -himself for his own use, being only obliged to educate and maintain the -heir in a condition suitable to his rank and station. The reason of this -was, that it was a principle in the feudal law, as the profits and the -military duties were equivalents for each other, that he who was obliged -to the duty should enjoy the profits, which, in the first instance, was -the lord, he being obliged to answer the king, or other superior lord, -for all the military duties comprised in his seignory. - -He had the guardianship, likewise, of the heir’s person; first, that, -because of the bond under which he lay to the tenant and his heirs, -the law had entire confidence in the care he would take of the minor; -secondly, because the lord was certainly well qualified to instruct -him in the art of war; and thirdly, his own interest obliged him to -do this carefully, that his vassal might be enabled to perform to him -the future services. But this, as to the person, is to be understood, -if the minor’s father was not living. For if he was, he was guardian by -nature, and intitled to the custody of the person, as in the case put by -Littleton, where there is a grandfather by the mother’s side, tenant, -by knight service, father, and mother, and son; and the mother dies, -leaving the grandfather, and then the grandfather dies, and his land -descends to the son of his daughter, then a minor, the minor’s father -still alive; here the guardianship shall be divided. The grandfather’s -lord shall have the ward of the lands, and the father shall have the ward -of the person of his minor son. So it is if a lord gives land in fee by -military service to the son of A, by which son’s dying without issue the -lands descend to his brother, a minor. Here A, the father, shall have the -custody of the body, and the lord, of the lands. There was another case, -likewise, wherein the guardianship, I cannot say was divided, but where -the wardship of the person was extinct. Antiently, although twenty-one -years was the regular time, yet, if the minor was knighted by the king, -and thereby adjudged capable of service in person, the guardianship -ceased. For here, the legal presumption of unfitness was refused by a -positive act of the king to the contrary. But the lords obtained an act -of parliament, that, notwithstanding such knighthood in minority by the -king, the lords should retain the lands of the minor so knighted, till -he was twenty-one years of age; and so, after this act, the wardship of -the lands continued, though that of the person, who was by the king’s act -declared _sui juris_, was gone[179]. - -The term of twenty-one years, which I have mentioned was confined, as may -appear by what I said concerning it, to heirs minor, that were males; but -with respect to heirs female, minors, as almost all of our fiefs soon -after the conquest were feminine feuds, as the lawyers on the continent -call them, that is, descendable to females in the next degree, if males -in that degree failed, the limitation of minority was different. In these -fiefs it was impossible the woman herself should do personal service: -She was, therefore, allowed a substitute; but in time of minority, as -she could not appoint a proper one, the lord who was bound to perform -the service to his superior, had the lands in the same manner as in -case of an heir male. However, there was no reason that the minority of -a woman in wardship should continue so long as that of a man, namely, to -twenty-one years; for as the law of God declared that man and wife should -be one flesh; so the canon law, and ours in consequence, have decreed, -that, in law, the man and wife are one person, and that the husband in -all respects is bound to perform the obligations she lies under. Hence, -in case of a female heir, the term of the lord’s guardianship was, by the -common law, limited to fourteen years; by which time it was presumed she -might have a husband capable, and obliged to do the duty for her. But -this age of fourteen years was, in a particular case, extended, by act of -parliament, to two years farther. However, as the reason of that depends -on the lord’s right to the marriage of the heiress, it will be better to -defer speaking thereof, until we come to that head. - -It remains to be mentioned, what was the nature of this interest the -lord had in the estate of this minor tenant, by virtue of the feudal -institutions, and so contrary to the general and the original tenure of -them. For, simply, the lord had only the propriety, and in consequence -the right of reversion or escheat, with the render of the services; -whilst the tenant had the possession and the profits. But, in this -case, all these seem to be blended, particularly the right of original -propriety and possession, so essentially to be distinguished in the -feudal system. For the lord has not only his propriety in right of his -seignory, but also the absolute possession, and permanency, or taking of -the profits, and the minor heir apparently nothing. However, the law, in -this case, did justice, and created in the lord a temporary interest, -an estate for years, namely, for the number of years till the majority -was compleated, contrary to all the other feudal maxims. For the fee and -inheritance of the estate remained in the minor, though he had neither -possession or profits. This interest of the lord could not be called, -at least with strict propriety, a tenancy for years, because, in this -case, the lord possesses the tenant’s lands, not the tenant. The lords -had therefore no tenure, but an estate for years, created by the law; and -that it was originally considered as an estate for years, or a chattle -interest in lands, appears from two things. First, that in the early -times, when alienations were scarce allowed, it was assignable over to -another, without any licence or form. Secondly, that instead of going to -the heir, in case of the lord’s death, during the minority of the ward, -it went to the lord’s executors, as other estates for years did[180]. - -As the lord was bound to his vassal and his heirs by the homage done -to him, it certainly followed, that it was not lawful for him to do, -during the wardship, any actual waste (that is, any permanent damage) to -the estate of his minor ward, or to suffer any to be done by others. He -was also obliged to repair and keep in condition, out of the profits of -the estate, the houses and improvements thereon; yet so great was the -misbehaviour of the English lords, soon after the conquest, that many -severe and restrictive laws were, from time to time, made in favour of -the minor wards[181]. - -In my next I shall treat of guardians in socage, reserving the article -of marriage, though it appertained to military service, to a place by -itself; as it was of a distinct nature, and went on its own particular -ground in a great measure. - - - - -LECTURE XIII. - - _Wardship in Socage—The nature and history of the incident of - marriage._ - - -Having, in the last lecture, given some account of wardship and -guardianship in chivalry, it will be necessary to mention what provision -the law made, now lands were become hereditary, for the benefit of a -minor, when lands, held in socage, descended to him. In the former -case, where war was the consideration, whose times and exigences were -uncertain, the law was obliged, on account of the public safety, to -consider the interest of the lord, who was to answer the duties to the -state, in the first place, and the interest of the minor only in a -secondary light. But in socage lands, which the lord had parted with for -certain fixed stipulated services, to be paid at particular times, the -lord had no claim to any more than them. Neither did the public interest -demand a military person for the guardian of one who was not to be bred a -soldier. A near relation, therefore, was the properest person to take the -wardship. - -But in fixing who that person should be, the feudal and the Roman civil -law proceeded on different principles; the latter fixed upon the nearest -relation that was inheritable to the estate, but the former entirely -excluded all relations that might inherit. Thus, if the land descended -on the side of the father, all relations of the father were incapable, -and the mother, or the next of kin of her blood, was the guardian. And -this is a difference wherein the English lawyers greatly triumph over -the civilians. For to give the care of a minor to one who might be his -heir, is, they say, _quasi agnum lupo committere ad devorandum_. But -this very reason strongly proves the general wickedness and barbarity of -the people, who were obliged to establish this rule at that time. Both -laws were equally wise, because adapted each to the circumstances of the -nations that made them. The Romans, who were a polished civilized people, -among whom murders were infrequent, were not afraid to trust the person -of the minor to the care of one who might be his heir; and such an one -they preferred on account of the preservation of the estate, which they -presumed would be taken best care of by him to whom it might descend. The -northern nations, on the contrary, who were barbarians, and murderers, -were obliged to sacrifice the consideration of preserving the estate, to -the personal safety of the infant, and therefore committed both to one -who could have no interest in the succession. - -The guardian in socage differed from guardian in chivalry in this, -that he was but in the nature of a bailiff, or trustee, for the minor, -to whom, at the expiration of his guardianship, he was obliged to -account, upon an allowance of all his reasonable costs and charges. -Another difference was, as to the _term_ of the guardianship. For this -guardianship expired at the ward’s full age of fourteen; at which time, -if he pleased, he might enter and occupy the lands himself, or choose -another guardian; for as at that age he had discretion enough to consent -to marriage, so did the law suppose he had sufficient perhaps to manage -his own affairs, at least to choose the properest person for that -purpose[182]. - -But put the case, Suppose that the minor doth not enter, or choose -another guardian, but that the old one continues to receive the profits, -what remedy shall the minor have for those received after his age of -fourteen? Certain it is, he cannot bring an action of account against him -as guardian; for guardianship is expired; and yet the infant’s discretion -cannot be presumed so great, as to be perfectly acquainted with all -his legal rights, and therefore his negligence shall not be imputed to -him. The law in this case remedieth him by a reasonable fiction, and -supposeth, though the fact hath not been so, that the minor had appointed -him to receive the profits of the estate, and therefore gives an action -of accounts against him, not as guardian, but as bailiff or receiver. - -But suppose the next of kin neglects the guardianship, and any other -person of his own head enters, and takes the profits, what remedy shall -the minor have? In this case the law will not suppose him that enters to -be a wrong doer, an _abator_, as the law would call him, if the heir was -of full age; but will rather presume his act proceeded from humanity and -kindness, to supply the neglect of the proper guardian; and therefore, -though he is not appointed guardian, either by the act of law or -otherwise, he shall be considered as such, and the heir, after fourteen, -shall have an action of account against him, and charge him as guardian. -So strictly was the guardian in socage accountable to his ward for the -profits, that, if he married him within the age of fourteen, he was not -only accountable for the money he received in consideration thereof (as -it was the practice in those days to sell the marriage of wards) but if -he received none, he was accountable out of his own fortune for what he -might have received on that account, unless the match itself was equally, -or more beneficial. - -The next consequence of fiefs becoming hereditary, and which followed -from the wardship, is the _marriage_ of the ward by military service, -which belonged to his lord, and was one of his beneficial fruits of -tenure; and although this part of our law is now antiquated by the -abolishing of knight-service, it is necessary, for the understanding our -books, to have at least a general notion of it. - -This right rose originally, on the continent, from fiefs becoming -descendible to female heirs, and was grounded upon the same principle -as the rule which forbad vassals to alien without their lords consent. -As every feudal kingdom, at this time, consisted of a number of -principalities, under their respective lords, who were often at war -with each other, the tenant could not alien without his lord, lest he -might introduce an enemy into the feudal society. The like danger was -there if a female heiress was permitted to marry at her own pleasure, or -could be disposed of by her relations without the lord’s consent. And at -first, it seems, that this rule was general to a woman heiress during -her whole life; but if so it was, it soon abated, and was confined to -the marriage of females in wardship, and to the first marriage only. -The law of Normandy says, if a woman be in wardship, when she shall be -of an age to marry, she ought to marry by the counsel and licence of -her lord, and by the counsel and assent of her relations and friends, -according to what the nobleness of her lineage and the value of her fief -shall require. So that antiently the lord had not the absolute disposal -of her, nor had he any thing to say to the marriage of males; for though -he should marry an enemy, the fief was not thereby put into subjection -to her, but she into the subjection of the vassal. And this rule, that -the lord’s consent should be had, was not intended for him to make an -advantage of, but was a mere political institution, for the safety of -the community. Such was the law introduced into England at the conquest. -However, it was but natural to expect that avaricious lords would take -advantage of their negative voice, to extort money for licence, and by -that, and their influence over their vassals, to arrogate the sole power -to themselves. That William Ruffus acted thus, we may well learn from -the remedial laws of his brother and successor Henry the First; _Si quis -baronum, vel hominum meorum, filiam suam nuptum tradere voluerit, sive -sororem, sive neptem, sive cognatam, mecum inde loquatur; sed neque ego -aliquid de suo pro hac licentia accipiam, neque ei defendam quin eam det, -excepto si eam jungere velit inimico meo_. Another is, _Si mortuo barone, -vel alio homine meo, filio hæres remanserit, illam dabo consilio baronum -meorum_[183]. - -Notwithstanding these laws, the mischief still gained ground, and the -lords extended their encroachments, until they not only got the absolute -disposal of female, but of male heirs also. When this happened, is hard -to determine precisely. That it was after Glanville, who wrote in Henry -the Second’s time, and before Bracton, who wrote in Henry the Third’s, -is plain: Mr Wright’s conjecture seems probable, that it grew up in -Henry the Third’s time, when the barons were very powerful, from a -strained construction of Magna Charta, which says, _Hæredes maritentur -absque disparagatione_; where the general word _hæredes_ should have -been construed to extend only to such heirs as by the former law were -marriageable by their lords, namely, female ones; but both king and -lords, taking advantage of the generality of the expression, claimed and -usurped that of the son’s also[184]. - -However, it is rather to be presumed that this incroachment began -earlier; since in the statute of Merton, the twentieth of Henry the -Third, we find these words: _Quia maritagium ejus qui infra ætatem est_ -(speaking of a male) _mero jure pertinet ad dominum feudi_. From whence -I rather gather the practice was earlier than Magna Charta, which was -not above thirty years before, and confirmed by its interpretation. But -if, in this respect, the vassals were encroached on by their lords, in -another, they met with a mitigation in their favour. For the consent -during the father’s life, went into disuse, and every man was allowed -to marry his son or daughter at his pleasure; and this with very good -reason. For as the prohibition was for fear of introducing an enemy, of -this there was no danger where the marriage was by the father, a vassal, -bound by homage and fealty to do nothing to the prejudice of his lord. -Thus was right of consent to marriage, introduced first for political -reasons, turned into a beneficial perquisite, and fruit of tenure, for -the advantage of the lord; and notwithstanding all the laws made to -regulate it, as constantly abused; so that the evils thence arising were -not among the least causes for abolishing military tenures[185]. - -The penalty for marrying without consent was originally, as all breaches -of fealty were, absolute forfeiture. But the rigour of the feudal law -subsiding, lighter penalties were introduced. By the sixth chapter of -Merton remedy is given to the lord, whose ward, under fourteen, has been -taken away by any layman (and a later act extends it to the clergy) -and married, by an action against the _raptor_ or _ravisher_, as he is -called, for the value of the marriage, besides imprisonment and a fine -to the king. If the ward himself, after the age of consent, or fourteen, -should, to defraud his lord, marry himself, he, as guilty of a breach -of fealty, is more grievously punished than a stranger. For this act -provides, that the lord, in that case, shall retain the lands after the -full age of twenty-one, for so long a time as, out of the profits, he -might receive double the value of the marriage[186]. - -The next, the seventh chapter, is in favour of the ward, and an -inforcement of that chapter of Magna Charta which forbids disparagements -without inflicting any penalty. It enacts, that if the minor under -fourteen is married by his Lord to his disparagement, upon the plaint of -his relations, the lord shall lose the wardship; and the profits of the -lands, till full age, shall be received by the relations so complaining, -and laid out for the benefit of the heir. But if the marriage was after -fourteen, the age of consent, it was no forfeiture, on the maxim, -_Volenti non fit injuria_. This act goes farther in favour of the -minor; for it gives him a liberty of refusing any match the lord should -offer him. But to prevent the lord’s entirely losing the benefit of the -marriage by the refractoriness of the ward, it enacts, in this case, that -if he refuses a convenable marriage, the lord shall hold the lands after -twenty-one to his own use, until such time as his late ward shall pay him -the single value thereof. - -The twenty-second chapter of Westminster the first confirms and repeats -the sixth of Merton, and farther obviates a fraudulent practice of the -guardians of female heirs. I observed that their wardship by law ceased -at the age of fourteen, by which time they might have husbands capable -of the service: but some lords, _for covetousness of the lands_, as the -act expresses it, would not offer any match at all to their female wards, -under the pretence of their being incapable of the services, in order to -hold on the lands for an unlimited time. This act so far alters the old -law, that if the heiress arrives unmarried at the age of fourteen, the -lord should hold two years longer, that he may have time to look out for -a proper match to tender her, within which time, if he neglects it, he -loses all right to her marriage. On the other hand, if the heiress will -refuse a suitable offer, the lord is impowered to retain the lands until -twenty-one, and so much longer, until he has received out of the profits -satisfaction for the value. - -The ravishment of wards from their lords continuing, notwithstanding -the statute of Merton, the thirty-fifth of Westminster the second gave -the writ called _Of ravishment of ward_, and assigned a more speedy and -beneficial method of proceeding, and added to the punishments by the -former act of Merton inflicted on offenders[187]. - -But notwithstanding all these regulations concerning marriages, and the -other many acts made to prevent misbehaviour of lords to the lands of -their wards, the source of the evil remained in the wardship itself; -and the evils constantly followed, insomuch that for hundreds of years, -it was one of the heaviest grievances the subject suffered. Many were -the wastes done to estates; many the heirs married contrary to their -inclinations, and frequently unsuitably. The grievances fell heaviest -on the wards of the crown. There were always a set of needy or greedy -courtiers ready, if they had favour enough to beg, or otherwise to buy at -an under rate, the wardships of minor tenants, of which they were sure -to make the most advantage; marrying the most opulent heirs to their -own children, or relations, or extorting extravagant sums for their -consent. A remarkable instance of this happened so lately as Charles the -First’s time, in the case of the earl, afterwards first duke of Ormond. -A long suit had subsisted between the lady Preston, grand-daughter and -heiress at law of Thomas earl of Ormond, and her cousin, the heir male -of the family, for that part of the estate her grandfather had entailed -to go with the title. At length the relations on both sides thought the -best expedient to end this intricate dispute, was by uniting the young -relations, who likewise had conceived a strong affection for each other; -yet, although the king approved highly thereof, did the earl of Warwick, -who was grantee of the young lady’s wardship, extort ten thousand pounds -before he would consent to a marriage on every account so desirable. - -King Henry the Eighth, finding how grievously the subject was oppressed, -and how much the crown was defrauded, erected, by act of parliament, a -court called the _Court of Wards_, to take proper care of minors, and to -answer in a moderate manner for the profits to the king. This for some -time was a considerable alleviation of the load; but in the weak reign -of James the First, who was governed by his favourites Somerset and -Buckingham, this court was converted into an engine for raising their -families, by providing their numerous and indigent relations with the -greatest heiresses, to the great discontent of the antient nobility, -who saw the most opulent fortunes suddenly raised by private gentlemen, -dignified by titles for the purpose. And great were the extortions -likewise for the licenses that were granted to some to marry at their -pleasure. The only advantage the public reaped at this time from this -right of disposal in marriage was, and it must be allowed to be a -considerable one, the opportunity it gave the crown of breeding the heirs -of many families in the reformed religion; and in justice, it must be -owned, this was not neglected. - -In the eighteenth year of this last reign, it was moved in parliament to -purchase off these heavy burthens of ward and marriage, by settling an -handsome yearly revenue in lieu thereof on the crown. But the attempt -did not succeed at that time, probably owing to the courtiers opposition -to it, from their own interested views. In Charles the First’s reign, -this court was one of the great objects of complaint. At length, on -the restoration, the king consented to turn all the military tenures, -except grand serjeanty, into socage, in consideration of an hereditary -revenue settled on him, and so all the fruits thereof ceased, and the -feudal system, which had for ages, from time to time, undermined the -constitution, fell to the ground, though very many of the rules of -our law, founded on its principles, still retain their force[188]. In -this kingdom the equivalent given for this abolition was the tax of -hearth-money, in which, it must be owned, the king, and those who had -been his military tenants, were a little too sharp for the rest of the -people; for by the improvements of the kingdom, that revenue is every -day increasing to the crown, and almost the whole burthen is thrown on -the lower class, who before felt none of the oppression, or weight of -wardship and marriage. - - - - -LECTURE XIV. - - _The rules of descent in the old feudal law in regard to the - sons of the last possessor—Representation and collateral - succession—Feminine feuds._ - - -It is now time to see how inheritances descended by the feudal law, -where, in the original grant, there were no particular directions to -guide the descent; for in such case the maxim of the feudal law holds, -_Tenor investituræ est inspiciendus_; or, as the common law expresses it, -_Conventio vincit legem_. The first rule then was, that descendants of -the first acquirer, and none others, were admitted. The reason was, that -his personal ability to do the duties of the fief was the motive of the -grant, together with the obligation his fealty laid him under to educate -his offspring to the lord’s obedience, and to qualify him for his service -in war. It was observed, therefore, it should go to the first purchaser’s -collateral relations, whom he had no power to bind by his acts, and over -whose education he had no influence. I mean where it was not particularly -otherwise expressed; for then the collaterals succeeded, as the merit of -their blood was part of the consideration; not so properly in the right -of heirs, as by way of remainder, under the lord’s original grant[189]. - -The next thing to be enquired is, since the descendants alone inherited, -whether all, or which only of them inherited. And here the females -and their descendants, unless they were specially named, were totally -excluded, not merely for their personal incapacity, but lest they should -carry the fief to strangers, or enemies; and therefore, where they were -admitted, they were obliged to marry with the consent of the lord. The -third rule is, that, unless it was otherwise stipulated, all the sons -succeeded equally to the father. This was the antient feudal law, and the -law of England in the Saxon times, the relicks of which remain in the -gavel kind of Kent, and remained in the last century in many, if they -do not still in some of the principalities of the empire. In France, -during the first, and a good part of the second race, we see the kingdom -divided among the sons. There are not wanting instances of the same -among the English Saxons; and the Spaniards continued the practice now -and then even in later ages. But the frequent wars, occasioned by these -partitions, at length abolished them, and made kingdoms to be considered -as indivisible inheritances. In imitation of the sovereignty, the same -alteration was introduced into the great seignories, which made, at -this time the principal strength of the kingdom, and which, now the -crown was become indivisible, would, if liable to partition, become so -inconsiderable in power, as to be at the mercy of the king[190]. - -The inconveniencies attending the lower military tenancies which still -continuing divisible, were crumbled into very small portions, and, of -course, must have fallen into indigent hands, were such, that these -also, for the most part, became descendible to a sole heir. But this, -however, was not effected but by degrees; for in the reign of Henry the -First, though a single knight’s fee was not divisible, yet when a man -died seized of more than one, they were distributed among his sons as far -as they went; but in his grandson’s reign the general law was settled -in favour of a single heir, in the same manner as it has stood ever -since[191]. - -But it remains to be enquired which of the sons, in case of an -indivisible inheritance, should be this sole heir. In the antient and -unsettled times, the law made no particular provision; but, as the lord -was the head of the military society, and bound to protect it, it was -left to his option to fix upon the properest person to do the duties: -and an instance of the exertion of this power we have in England so -late as the reign of Henry the Second, who gave the entire military -lands of Geoffry de Mandeville to his son by a second ventre, to the -exclusion of the eldest by a former wife, for this reason, _eo quod -melior esset miles_. A trace of this still remains in the case of a -peerage, descendible to heirs general, that is, male or female, falling -to daughters. Here the fief being indivisible, the king may appoint the -peerage to which he pleases, and until he doth so, it is not indeed -extinguished, but lieth dormant, being what is called _in abeyance_, or -the custody of the law. But at length this uncertainty was removed, -and the eldest son being generally the best qualified, and consequently -almost always chosen, obtained the right, by degrees, in exclusion of his -brethren, or the choice of the lord[192]. - -But it will be inquired with respect to kingdoms, who had no superior -to make the choice, how was it to be determined after they became -indivisible, which of the sons was to succeed, seeing the absolute right -of primogeniture was not yet established in the opinions of men. I -answer, the usual practice was for the king himself, before his death, to -appoint the successor; generally with the consent and approbation of his -states, and sometimes merely by his own act, which was almost universally -allowed, and obeyed by the people. But if no such disposition had been -made, the states assembled, and chose the person themselves; and these -appointments generally falling on the eldest son, paved the way for -lineal hereditary succession, though the case was not always so. - -In France, Hugh Capet, to go no higher, in order to prevent competition, -caused his son Robert to be crowned, and sworn allegiance to in his -lifetime; but Robert neglecting the same precaution, Henry his younger -son was chosen in preference of the elder, who was obliged to content -himself with the dutchy of Burgundy. And if Henry was an usurper, so -were all the succeeding kings of France for three hundred years, till -that family of Burgundy failed. Henry followed his grandfather Capet’s -example, and so did his successors for about an hundred years, and -then, the notion of the lineal succession of the eldest son being fully -established, the custom of crowning the son in the father’s life, was -laid aside, as unnecessary. - -In England the practice was antiently the same. William the Conqueror, -though he set up a claim under Edward the Confessor’s will, yet as that -never appeared, a formal election by which he was chosen, extorted indeed -by dread of his power, but apparently free, was his title. When pressed -to declare a successor, he only signified his wish that William might -succeed, but declared he would leave the people of England as free as he -had found them. William accordingly was elected in prejudice of his elder -brother Robert, and upon his death, occasioned by an accident, Robert -was again excluded, and Henry the First, the third brother, chosen. Henry -was willing to have the course of descent secured in his offspring; and -for this purpose proceeded in the method that had been so successful -in France, namely, by causing his son Henry to be crowned, and sworn -to. But this latter dying childless in the lifetime of his father, king -Henry caused his daughter Maud to be acknowledged successor, and the -oath of eventual allegiance to her to be taken by his people. However, -this project did not succeed. No nation of Europe had yet seen a crown -on the head of a female; and Spain was the only country that had ever -had a king who claimed in a female right. The majority, therefore, upon -Henry’s death, looked upon their oath as inconsistent with the nature of -monarchy, and void, and in consequence chose Stephen, who was the son -of Maud’s aunt, and grandson of the Conqueror, whose whole male issue -was now spent. There was, however, a large party in the kingdom who -paid a greater veneration to the obligation of their oath, and adhered -to Maud. Hence was this reign a continued scene of civil war, until all -sides, being wearied out, by mutual consent, ratified by the states of -the kingdom, Stephen was allowed king for life, and Maud’s personal -pretensions, as a woman, being set aside, her son, Henry the Second, was -declared, and sworn to, as eventual successor[193]. - -Henry the Second followed the example of his grandfather, and had his -eldest son Henry crowned; but that ungrateful prince conspiring and -rebelling against him at his death, which likewise happened in the -lifetime of his father, the old king fearing the like consequences, -refused to crown his next son Richard; who conscious of his own -ungrateful conduct, and suspecting that this refusal proceeded from -partiality to John, the youngest and favourite son, stirred up those -commotions and rebellions which broke his father’s heart. Richard was -the next heir, and did succeed, but not merely in the right of next -heir; for he assumed no title but that of duke of Normandy, until he was -elected and crowned. The title of John was notoriously by election, and -his son Henry the Third was the first who was introduced to his subjects -by the words, _Behold your king_, or words equivalent. Those few who -adhered to his father, immediately swore to him; but the majority, who -were disaffected, did not submit but upon terms, the restoration of the -charters. - -From that day the lineal succession has been established, and the crown -is vested in the successor upon the death of his ancestor, and the maxim -prevailed of the king’s never dying; whereas before, the crown was in -abeyance, till coronation, and the date of the king’s reign was taken, -not as now, from the death of the former monarch, but from the day that -the succeeding one was crowned. Henceforth coronation became a mere -ceremony, though the form of an election is still continued in it. I -have been more particular in this detail, in tracing the origin of the -hereditary descent of the crown, to shew how false in fact, as well as in -reason, the notion is of its being founded either on divine right, or on -any law of man coeval with the monarchy[194]. - -Having laid down the rules of descent in the old feudal law, in regard -to the sons of the last possessor, it will be proper next to mention how -far it admitted representation, or collateral succession; for at first -both were excluded. If a man had two sons, one of which died before him, -leaving a son, the grandson could not succeed to his grandfather, but -the uncle was sole heir. This was grounded partly on the presumption -that the uncle was of more mature age, and better qualified to do the -service; but this could not be the only reason, for the rule was general, -and held where the grandson was of full age and capacity. We must have -recourse, therefore, to a farther cause, which was also the same that, -in those old times, prevented collateral descents; for if a man had two -sons, by the old law, the estate was divided between them. If one of -these died without issue, the brother did not succeed to the share of -the deceased, but it reverted, as an escheat, to the lord. The reason of -both these was, that he that claims by descent, must claim through the -last possessor, and derive his right from him; and that right arose from -the supposition of his being educated in the fealty of the lord, that -is, by the last possessor who had sworn fealty. Therefore the grandson, -being educated under the _patria potestas_ of his father, who, dying -before the grandfather, had never taken the oath of fealty, was excluded -the succession, as not trained up by a real tenant; but the uncle was -admitted to claim from the grandfather, the tenant under whom he was -bred[195]. - -This rule was of some advantage to the feudal system at that time, as it -frequently prevented the too great crumbling of fiefs, when almost all of -them were divisible. For the same reason a brother could not succeed to a -brother, even in a paternal fief, because he was not educated by the last -possessor that had done fealty: and though this seems very unreasonable, -as he had been bred in the fealty of the lord, namely by the father, yet -this rule continued for ages, being greatly for the advantage of the king -and the great lords, in regard to their escheats; as every failure of a -lineal descent occasioned them to happen. Neither was it thought severe -in those early ages by the tenants. As all benefices were originally for -life, it was a great advantage to have them made descendible even under -these strict limitations[196]. - -At length the necessity of Charlemagne’s grandsons, who had parted the -empire, and were in eternal broils, extorted from them, in France, a -grant of the grandson’s succeeding in his father’s share, by way of -representation, in imitation of the civil law, and also of brothers -succeeding to brothers in a paternal fief, but not in a new one. And -about an hundred and fifty years the like necessity of the emperor -Conrad, who was embroiled with the Pope, procured the same law for -Germany and Italy[197]. - -The extension of the right of collateral succession beyond brothers -grew up by degrees, not from any positive law. It was first extended to -uncles and cousin-germans, provided it was a fief descended from the -grandfather; afterwards to any the next cousin, to the seventh degree, -descended from the first purchaser; and at last to any, however remote, -who could prove their descent from the first purchaser. This was the rule -in ancient inheritances; but with respect to new ones, lately acquired, -there grew up a practice of granting them _as ancient_ ones; _feudum -novum, ut antiquum, datum_. Here the fief, though really new, was, by -means of this grant, supposed to proceed from some indefinitely remote -ancestor, at any distance; and therefore any one, who could prove himself -descended from a common ancestor of the last possessor, was admissible, -and he that was nearest by the rules of succession was preferred. In -this case, therefore, the old rule of requiring a proof, that the person -claiming as heir was a descendant of the body of any ancestor of the last -possessor, would be absurd, as defeating the tenure of investiture. Any -ancestor _pro re nata_ might be supposed the first purchaser, to support -the intention of the donor, in his directing it to be considered as an -ancient fief, although in fact modern. So in this case, if the fief was -masculine, any male relation, descended from male blood entirely, was -inheritable, even up to Adam, I mean, if he could prove his descent; but -females, and their descendants were excluded[198]. - -If it was descendible to females, either by the particular terms of the -grant, or by the general law of the country, then, as it was supposed to -descend from any lineal ancestor _pro re nata_, that ancestor might be -a female, and the descendants of females, and they themselves might be -admissible. The rule then was, to establish in this case of a fictitious -descent, the same regulations as in the case of a real one. But here the -root from whence the right of descent was to spring, was inverted; for -as there was no real ancestor, an original purchaser, the person last -seized, that is possessed of the fee, was the person to be considered. As -in the old and common case of inheritances descending, the reckoning was -downwards from the first acquirer; in case of collaterals, when they were -admitted, you begin to reckon lineally upwards, and at every step enquire -for collaterals descended from that lineal ancestor you are upon at the -time[199]. - -A man purchases _feudum novum, ut antiquum_, and dies without heirs of -his body. This feud is, by the constitution of it, presumed to have -descended from some of his ancestors. To find out who is that ancestor, -it was likely to have descended from, you must look at the law of -descents: the father, in the first place, is supposed the person. His -children, that is, the brothers or sisters, or their descendants, in the -first place; if none of them, the grandfather by the father is supposed -the person; then the grandfather’s descendants. The uncles and aunts -by the father, and their descendants, succeed in the second place. If -none of them, then the great grandfather’s by the grandfather and father -descendants, the great uncles and aunts, and their posterity; and if -there are none of them, you still go a step higher in the male line, -till you can trace it no farther. But now you begin to invert the rule -of tracing up in the male ancestors, and so downwards, and trace up to -the female ancestor of the males, as supposing the estate descended from -her, or her ancestors. For instance, I have supposed the descendants of -the male line have failed in the great grandfather. His wife, therefore, -the great grandmother, is supposed the first purchaser; for, upon account -of the probability of the inheritance coming through males, I trace up -to her through the father and grandfather; her heirs, therefore, shall -succeed, first, lineal, then collateral, in the same manner as if the -estate had descended from a remote ancestor of her’s. If none such can be -found, we descend another step, namely, to the grandmother by the father, -and suppose the estate to have come from her line; and then heirs, first -lineal, then collateral, succeed according to their several ranks. If -none of these, so that there is no kindred on the side of the father, the -presumption is, that this supposed antient feud came from the mother’s -family, and therefore the heirs of her male ancestors are to be traced -up, and discovered in the same manner; and whenever they fail, the heir -of the most remote female ancestor, all through males; and failing them, -the heir of the next most remote, and so on, until the blood of the -mother is spent; and then the estate, for want of heirs, reverts to the -lord, of whom it is holden. - -Such is the rule of descents of new purchases granted as if they had -been ancient inheritances; but this rule was, on the Continent, and -anciently in England, confined to such grants, and them only, wherein -this clause appeared in the investiture. But in the reign of Stephen, his -necessity of gaining adherents, and the same necessity of his competitor -Henry the Second, occasioned so many grants of this kind to be made, -some originally, and others on the surrender of old ones, that it hath -since become the common law of England, that purchases, that is, new -acquisitions, are descendible to any relation, however remote[200]. - -It will be necessary to say something as to _feminine feuds_, which -are a deviation from the strict principles of the ancient law, which -excluded them and their descendants entirely. They first arose from the -woman’s being the principal consideration of the grant; as when a lord -gave lands in marriage with his daughter, sister, niece, kinswoman, or -any other female: here the lands being partly given in consideration of -the female blood, it was reasonable they and their descendants should -be inheritable. But this was still an exception to the general law, and -confined to those grants wherein it was mentioned, until the number -of those grants, at length prevailed to have this order of succession -considered as the general law, and the succession of males remote, -in exclusion of a nearer female (as in case of tail male) considered -as an exception. The monarchy of France, however, and of many of the -principalities of Germany, have retained the antient feudal law, in -absolutely excluding females and their descendants. - -The descent of imperial crowns to females, was of a much later date, -than that of lower fiefs: for here a manly capacity was looked upon -as indispensibly requisite. The first step was admitting a male -representative for them, a husband or a son. This began in Spain. -Pelagius, who was of the blood royal, having gathered a few of the -Spanish fugitives together, after the Moorish conquest, founded a pretty -monarchy in the mountains of Asturias. His son Favila dying without -issue, the crown was given to his daughter’s husband, and this continued -the rule for many ages, where males failed. But where the son of such -female heir was of sufficient age to mount the throne, he of course -excluded both mother and father. At length, in the thirteenth century, -Europe, for the first time, saw a woman solely invested with royalty, -Joan the first of Naples; for Henry the first of England’s project in -favour of his daughter Maud, as we have said before, had miscarried. -Margaret of Denmark, Sweden and Norway, Joan the second of Sicily, and -Isabella of Castile, followed in the next century. In the following -century came Mary and Elizabeth in England, and many since in all parts -of Europe; so that at present the monarchies of Europe are descendible -to females in general, if we except France, and several but not all of -the principalities of the empire. Bohemia and Hungary have received a -queen in the person of the present empress in this present century, -but so inveterate are old customs and opinions, that when her faithful -Hungarians resolved to assist her to the last extremity, it was by -saying, _moriamur pro rege nostro Maria Teresa_, not _pro regina_[201]. - - - - -LECTURE XV. - - _The difference between allodial and feudal lands—The - restrictions on the feudal law—The decay of these—The history - of voluntary alienations._ - - -One great and striking difference between allodial and feudal lands -consisted in this, that the former entered into commerce. They were -saleable or otherwise alienable, at the will of the possessor, either -by act executed, and taking effect in his lifetime, or by will, to take -effect after his death. They were likewise pledges to the king for the -good behaviour of the owner, and therefore for his crimes forfeitable -against him and his heirs. They were also security to his fellow subjects -for the debts he might contract; and, therefore, by following the due -course of law, attachable and saleable, to satisfy the demands of a just -creditor[202]. - -In every one of these respects did fiefs, when they became descendible -inheritances, differ from them. The possessor was but an usufructuary, -and his power over his lands was checked and controlled by the interest -others had therein. These were the lord and the persons descended from -the first purchaser. The consent of the lord was absolutely necessary -to the tenant’s alienation, to prevent the introduction of an enemy or -unqualified person into the fief; but the consent of the lord alone -was not sufficient, if there were in being any persons entitled to the -succession. Thus if A. is himself the first purchaser of a fee, and hath -a son, his alienation, even with the consent of the lord, would hold -good only during his own life; but if he had aliened with the consent -of the lord before issue had, this should be valid, and bind the issue -born afterwards. For here the alienation was made by all the persons in -being interested in the land, and the former contract is by their mutual -act dissolved, nor is there any wrong done; for it is an absurdity to -say that a person not _in rerum natura_ can suffer wrong: the consent -therefore of the son, or sons, if one or more of them were in being, was -as necessary as the lord’s in this case. - -If the lands descended from B. the first purchaser, to his son A. -before the introduction of collateral descent, the law was the same; -but when these were admitted, it varied for the same reason. A. could -not alienate with the consent of the lord and his sons, without the -consent also of all the collaterals intitled, that is, all the _agnati_, -or male descendants of B. for this would strip them of their right -of succession. If it descended from C. the grandfather, or from any -more remote ancestor, the consent also of all the male descendants -of the grandfather, or that remote ancestor was required, upon the -same principle. By this we see, it was next to an impossibility, that -an estate which had been any time in a family (so many consents were -required) could be alienated at all. However, there was allowed by that -law a transfer of the fief in a particular case, even without the consent -of the lord. This was called _refuting the fief_; it was a resignation of -it to the person who was next in order of succession. Here was no injury -done to the lord, or the _agnati_, because it went in the same manner, -and to the same persons, as if the refuter was absolutely dead, _& -quisque juri suo renunciare potest_. For the same reasons no testaments -of lands were allowed, except the lord, and all others concerned were -present and consenting; which scarce ever happening, it became a maxim of -the English law, that lands were not devisable by will. - -Neither were the feudal lands originally forfeitable for the crimes -of the possessor for any longer time than his own life, if there were -persons entitled to the succession. But this rule of forfeiture was -afterwards extended to the issue of the criminal: for as the right of -succession depended much on the supposition the successor was educated -in the fealty of the lord, this presumption ceased where the father had -actually broke his oath of fealty. And at length, when the rule was -established, that every person must claim through him that was last -seized, and make himself heir to him, the delinquency of the predecessor -became likewise a bar to collaterals. - -Feudal estates also were not liable to the debts contracted by the -feudatory. For if the creditor might have sold them for debt, a wide door -for alienation had been opened, by means of fictitious debts, contracted -by collusion between the creditor and vassal. Or even if they were honest -ones, the lords and the heirs would have been deprived of their right. -Neither could the creditor attach the profits of the land during the life -of the debtor; for if he could, an improvident vassal might so impoverish -himself, as to be incapable of the duties of the fief. - -Such and so strong were the restrictions this old law laid on the -feudatory. But as times grew more settled, and the strictness of the -military system abated; as commerce increased, and with it luxury, the -propensity to alienation grew up, and became at length so strong, in -every country, as to be irresistable. And it is a speculation not only -curious, but very useful for the students of our law, to observe and -remark its progress in England[203]. - -The first step towards voluntary alienations arose from the practice of -sub-infeoffing. Originally, as I observed in a former lecture, although -the vassals of the king could infeoff, their vassals could not; but -at the latter end of the second race in France, when the power of the -crown was declined, and the great lords were in reality sovereigns, -acknowledging only a nominal dependance on the king, some of them, in -order to strengthen themselves, and to increase the number of their -military followers, allowed this privilege not only to their immediate -vassals, but to sub-vassals also, to an unlimited degree. And when -this practice was once begun, the other lords, for their own security -and grandeur, were obliged to follow the example. This practice of -subinfeuding contributed much to the power of the lords, and therefore -was by them encouraged. But though it was intended, at first, only to -extend to part of the vassal’s fief, the usage of subinfeuding the whole -gained ground, to the great prejudice of the heirs; when the terms of -subinfeudation were no better than those of the first grant; and of -the lords also, who thereby lost frequently their profitable fruits of -tenure, their reliefs, wardships, and marriages; which, with respect to -the lords, was remedied in the reign of Edward the First, by the statute -of _Quia emptores terrarum_ before mentioned[204]. - -In the mean time, free alienation was allowed in cities and boroughs; -partly because many of these were old Roman towns, and their lands and -houses allodial, and because those which were not so were founded by -lords on the same principles for the benefit of commerce, which could -never have flourished if a debtor had not full power over his property of -all kinds to satisfy his creditor; and if the creditor, in case he was -unwilling, had not power to compel him to sell for his just satisfaction. -Alienations, however, of one kind were permitted, namely, the founding of -monasteries, and endowing of churches. These, through the superstition -of the times, were looked upon as being equally beneficial to the feudal -society as subinfeudation, by engaging God in their interest; and even if -the lords and their heirs, who suffered by these grants, were willing to -dispute them, they were unable to contend with the omnipotent power of -the pope and the clergy; until at length the tyranny of the first, and -the avarice of the last, provoked both king and people to restrain them -by the acts against Mortmain. But no other alienations were yet allowed -without consent, as before mentioned[205]. - -In the reign of William Rufus a particular matter occurred, which -opened a way for alienation without the lords consent, and occasioned -a prodigious revolution in the landed property of Europe. This was the -madness of engaging in crusades for the recovery of the Holy Land. A -crazy friar returning from a pilgrimage to Palestine, where he saw -the Christians maltreated, began to preach up this expedition as the -most meritorious of works; and it is wonderful with what an epidemical -contagion the enthusiasm spread through all ranks of people. These -pilgrims, who assumed the cross, had no way of defraying the expence, but -by the sale of their lands, which their lords, if disinclined, dared not -to gainsay, or obstruct so pious a work. But indeed, most of them were -conscientiously affected with the same madness, as may be seen by the -great number of kings, princes, and lords, that beggared themselves in -these fruitless enterprizes[206]. - -The pope and the kings concurred in inflaming this superstition, but -from different motives. The pope did it out of ambition and avarice. The -former he satisfied by declaring himself the head of the expedition, and -thereby attaching to himself and his see such multitudes of redoubted -warriors by the strongest of bonds, conscientious superstition. And -indeed successors in that chair afterwards made very good use of this -example, by preaching up crusades against such Christian kings and -princes as disobliged them. But the more immediate advantage he received, -was the glutting his avarice by a proper sale of dispensations to such as -had rashly taken the cross, and afterwards found themselves unable, or -unwilling to fulfil the obligation. The reason that induced the kings of -Europe to promote this spirit, I mean such of them as were not possessed -with the frenzy themselves, was the hope of abasing their too great and -powerful vassals, which would naturally follow from the alienation of -part of their lands, to equip them for the expedition; and a desire to -facilitate the partition of these great seignories among females, when -the males were so frequently and miserably slaughtered[207]. - -So many were the alienations of this kind, and so long were they -continued, that it is no wonder that the interest of the lord and the -heirs began to lose ground in the opinions of the people, which proceeded -so far, as that, in the other cases, the lord, on the payment of a -moderate fine, either before or after, was looked upon as obliged to -consent to the alienation. Let us now see how the liberty of alienation -gained ground, particularly in England. - -In Henry the First’s time, a man was allowed to alienate his purchase, -but not an estate that came by descent. This law says, _Acquisitiones -suas det cui magis velit; si Bocland autem habeat, quam ei parentes sui -dederint, non mittat eam extra cognationem suam_[208]. - -This liberty of alienation of purchases is not to be understood -generally, but only where the purchaser had no son; if he had any, it -may be a doubt whether he could alienate any part at this time. Certain -it is, he could not the whole, even in Henry the Second’s time. For thus -Glanville lays down the law: _Si vero questum tantum habuerit, is qui -partem terræ suæ donare voluerit, tunc quidem hoc ei licet sed non totum -questum, quia non potest filium suum hæredem cohæredare_[209]. - -The practice of alienating lands by descent grew up more slowly. At this -time a part only was alienable, and that not freely, to all persons, or -for any consideration generally; but only in particular cases, first to -the church in Frankalmoigne; secondly, to one who had done services in -war, or to the fief in time of peace; thirdly, for the advancement of his -family, as in Frank-marriage with his daughter, sister, niece, or cousin. -But every day this liberty gained ground, until at length the interest -of the heir entirely vanished, and that of the lord began, in military -tenures, to be little considered, and not at all in socage. However, in -Magna Charta some check was given to that kind of alienation of the whole -fief, that was carried on under the pretence of subinfeudation. _Nullus -liber homo det de cætero amplius alicui vel vendat de terra sua quam ut -de residuo terræ possit sufficienter fieri domino feudi servitium ei -debitum_; and this sufficiency was by practice explained to the half of -the fee[210]. - -No provision being made in these laws for the consent of the lords, they -generally, though not always, lost their fines; and a method likewise -was invented to obviate their refusal, by levying fines in the king’s -courts of record, in this manner. They used to suppose that the parties -had covenanted to alienate; and all writs of covenant (being actions of -public concern to the justice of the kingdom) were sueable only in the -king’s court; and by consequence this covenant to alienate was sueable -only there. The superior court then being possessed of the matter, as an -_adversary cause_, permitted the parties (on a fine being paid to the -king, in lieu of that which he would have received at the end of the -suit, from the party that failed) to make an amicable agreement or end of -the suit, which was done by the party sued coming in, and recognizing, -that is, acknowledging in court the right of the demandant to the land. -This method of conveyance by fine grew up, and still continues to be one -of the common assurances of the realm. For being transacted in a court of -record, it obviated the danger of future controversies between parties, -or any dispute concerning the execution of a deed, or the giving of -livery and seizin[211]. - -At length the statute of _Quia emptores terrarum_, already mentioned, -was made, as well to remedy the mischiefs the lords complained they -suffered by subinfeudation, namely, the loss of their fruits of tenure, -as to settle the doubt, as to the right of the tenants to alienate. This -statute entirely takes away the lords consent; for it gives the tenant -free power to sell, or alien the whole, or part of his tenancy, to whom -he pleased. But then, in favour of the lord, it establishes, that if -the tenant parts with his whole interest in the lands, namely, the fee -simple, the _alienée_ should not hold of the _alienor_, but immediately -from the alienor’s lord, by the same services, by which he, the alienor, -had holden. Thus were the lords, in one respect secured in their rights, -by the stopping the course of subinfeudations, and the tenants got a free -liberty of alienation without the consent of the lord, or paying any -fine to him. The king, however, not being named expressly in this act, -it was construed not to bind him, as I have said before; and his consent -was still required to the alienation of his tenants by military service, -according to the rule of Magna Charta; that is, if more than half was -alienated, so that the residue was deemed unsufficient to answer the -services. And this was put out of doubt by the statute _De prerogativa -regis_, made the 17th of Edward the Second, cap. 6. - -The bent towards free alienation, however, was so strong as to occasion -a further mitigation so soon after, as the first year of Edward the -Third. For then it was provided, that if the king’s military tenant -alienated without licence, contrary to the late act, the land so -alienated should not be absolutely forfeited as before, but that the -king should be contented with a reasonable fine in chancery. These -compositions were sometimes dispensed with, to encourage the tenants to -attendance in hazardous expeditions; but, except in those singular cases, -they continued to be paid, until the reign of Charles the Second, when -knight’s service being abolished, they fell of course along with it[212]. - -Such was the progress the alienation of land made by conveyance _inter -vivos_; but the bequeathing lands by last will did not keep equal pace -with it. The first step made thereto was by laying hold of the doctrine -of _uses_, which about the time of Richard the Second was invented by -the clergy, to elude the statutes of Mortmain, by which their advance -from time to time was checked. As in every feudal grant there were two -estates, the absolute propriety in the lord, a qualified property, -namely, the possession and profits, in the tenant; now that they were -prohibited from taking the real tenancy, they cunningly devised a -means of subdividing the tenancy, by separating the profits from the -possession. When, therefore, a man had a mind to alienate to the church, -as he could not do it directly, he infeoffed a person to the use of such -a monastery. Here the feoffee and his heirs were, in the construction of -the common law, the proprietors, but, in fact, were bare trustees for the -monastery, for the use of which they received the profits. But it may be -asked, if the trustee or his heirs would not suffer them so to do, where -was their remedy. The courts of common law allowed of no such division of -estates at that time, nor would they have suffered such necessary laws to -be defeated by such collusion, though they had been acquainted with these -divided interests. They had recourse, therefore, to chancery, where, it -being always, to the time of Henry the Eighth, filled with a churchman, -they were sure to meet favour; and this court claiming an equitable power -to enforce persons conscientiously to fulfil their engagements, compelled -the trustee to support and maintain the uses. - -These uses, once introduced, were applied to other purposes, particularly -to that I am now upon, the enabling persons to dispose of their lands -by will. The manner was thus: A. aliens his lands to B. to the use of -A. himself for his life, and, after his death, to such uses as he A. -should, by his last will and testament, appoint. B. was then compellable -in chancery, not only to suffer A. to take the profits during life, but -after his death to execute the directions of the will, and to stand -subject to the use of such persons as he appointed, and make such estates -as he directed. This method gained ground every day, as many persons -chose to retain their power of alienation in their own hands, to the last -moment of their lives, and to keep their heirs, or other expectants, in -continual dependance. And it at length grew so common, that in Henry the -Eighth’s time, it was thought proper to give leave, without going through -this round-about method, to dispose of lands directly and immediately -by will; of the whole of their socage lands, and of two thirds of the -lands holden by knight’s service. And this latter tenure being, after -the Restoration, turned into common socage, all lands, not particularly -restrained by settlement, are since become devisable; whereas, before -these laws, they were only so in particular places, by local custom. But -the statute that gives this power, in order to prevent frauds, expressly -orders such will to be in writing; whence arose a distinction, as to the -validity of wills of land, according as these lands had, or had not, been -before devisable by custom. For those that were so before, continued -devisable by will _nuncupative_, or without writing[213]. - -But the reduction of the will into writing was not found sufficient to -prevent forgery and perjury, and therefore the statute of frauds and -perjuries has added other solemnities, as requisite to pass lands by -will. It requires that it shall be signed by the testator, or some other -by his direction, and attested by three witnesses in his presence. - -As to signing, it is insignificant where the signature is, whether at -the bottom, or the top, or in the context of the will, the name of the -testator, written by his own hand, in any place, being sufficient. And -the putting his seal to the will, though without his writing, has been -judged sufficient; for his seal is as much his mark, or sign, as his -handwriting. As to the attestation, the statute requires it to be in the -testator’s presence; but it is absolutely necessary, that he should look -on and see it done. Therefore, if it is attested in the room where he -lies sick in bed, with his curtains undrawn, this is a good attestation; -or if it is attested in a neighbouring room, and the door open, so that -he might possibly see it done, this is in his presence. But if the door -be shut, or the place so situated that he could not by any means see the -attestation, the will is void. - -I shall next proceed to _involuntary alienation_ of lands, namely, for -payment of debts; and then give an account of the origin and progress -of _estates tail_, which were introduced to restrain this power of -alienation, and to restore, in some degree, the old law of keeping -estates in the blood of the first purchaser. - - - - -LECTURE XVI. - - _Involuntary alienations of feudal land—Talliage—Edward I. - introduces the first involuntary attachment of lands—Statutes - enacted for this purpose—Their effects—The origin of estates - Tail._ - - -The _involuntary_ alienation of feudal land, namely, the attaching, -and afterwards the selling it for debt, kept pace pretty much, but not -strictly, with the voluntary alienation already treated of. It first -began in cities and trading boroughs, which were either the remains of -old Roman towns, and where, consequently, the estates were allodial; -or else new towns, founded either by the kings, or other great lords; -or their demesnes, for the benefit of trades and arts within their own -districts. External commerce, during those confused times, was little -known or practised, the Barbarians of the North infesting the coasts -of the ocean, and the Saracens and Moors, those of the Mediterranean. -It was the interest, therefore, of every lord who had such a town on -his territory, to give it such privileges as would make it flourish, -and outrival the towns of like nature on the lands of the king, or the -neighbouring lords. For the natives of such towns were no part of the -feudal society, but were in the nature of socage tenants in the early -times, removeable, and consequently subject to be taxed, or, as our law -calls it, _talliagable_, from the French word _tailler_ to cut[214]. - -Talliage, consequently, was the cutting out a part from the whole of -the tenant’s substance, at the will of the lord. Yet this very power -of talliage, which the lords were not for a long time inclined to part -with, joined to their desire to make their towns flourish (that they -might be able to bear a greater talliage) put them under a necessity -of making such provisions, and granting such privileges, as were -necessary for the use of trade and commerce, and at length, in effect, -destroyed that absolute power of taxation, which the king and lords had -all along claimed and exercised, and which at first, for their own -interests sake (which no doubt they well understood) they had used with -great moderation. But after the discovery of the civil law at Amalfi -in Italy, in the reign of our Stephen, the kings of Europe, who found -therein an unlimited power of taxation in the emperor, were desirous to -establish the like authority in themselves; and for that purpose began -with oppressing their nobles with arbitrary scutages, or commutations -for military services; and the towns of their demesne with talliages, -not only arbitrary, but extravagantly beyond their power to pay without -ruin[215]. - -John of England was particularly famous for these extraordinary charges; -for though his title to the crown was, at that time, by many of his -subjects, and by others abroad, much doubted (as in prejudice of his -elder brother’s son Arthur then a minor) and his only just claim could -be but by parliamentary authority, the omnipotence of which was not -then so universally admitted, never was there a prince who carried his -prerogative to such extravagant and oppressive heights. This, at length, -occasioned the making _Magna Charta_; partly to assert and restore the -ancient liberties of the nation, which had been invaded; partly to alter -the old law, in such particulars as had been the engines of oppression. -One of the chief of these latter remedies was the taking away the right -of talliage, unless consented to in parliament. And now were the boroughs -emancipated, and the burgesses made freemen, which before they could -hardly be called, while their effects lay wholly at the mercy of the -lord[216]. - -In the next reign they advanced in importance; for as the treasure of the -kingdom was in their hands, they were sure to be favoured and courted on -both sides, during the fierce contests between the king and the barons. -And in the latter end of this reign it appears they had got admission -into parliament, which not a little increased their consequence. Edward -the First was a great favourer of merchants, and, for the security of -their debts, introduced the first involuntary attachment of lands by the -act called _statute merchant_, in the thirteenth year of his reign[217]. - -Before this time, no lands, except in boroughs by custom, were attachable -for debt, but only in the case of the king, who, by right of his -prerogative, could enter on the lands of his debtor, and receive the -profits, until he was paid. For the same political reason, the surety -also for a debt to the king, if he paid the debt, was allowed to come -in the king’s place, and enjoy the same privilege; but in all other -cases, the chattles were the only mark for the debt. This statute, -after reciting that merchants had fallen into poverty, for want of a -speedy remedy for recovering their dues, provides, that, in every city -or great town, which the king should appoint, there should be kept a -_recognizance_, that is, the acknowledgement or confession of debts due -to merchants, and of the day of payment; and that, in case payment was -not made at the day, they may, or should, on the application of the -merchant, and inspection of the roll, imprison the body of the debtor -until payment; and if no payment was made within three months, (which -time the debtor was allowed to sell his chattles or lands) his chattles -and lands were to be delivered to the merchant creditor, at a reasonable -valuation, or _extent_, as it is called; that out of the profits he might -satisfy himself. And in case the debtor could not be found within the -jurisdiction of the city or town, or had no chattles or lands therein, -then was the mayor to send into chancery the recognizance of the debt, -and the chancellor was to issue a writ to the sheriff in whose bailiwick -the debtor was or had effects, to act in like manner. And so greatly was -the merchant favoured, that tho’ this was but an estate for years (it -being certain, from the valuation, in what time the debt would be paid), -yet had he, with regard of maintaining actions to recover his possession -when deprived of it, the privileges of a free-holder given him, by -express provision in the act. Such was the favour shewn to merchants to -recover their just demands, nor were other creditors at this time left -totally unprovided for, in cases where there was a deficiency of chattles. - -In the same year a law was made for attaching the lands of persons, in -favour of creditors who were not merchants, but in a different manner, -called an _elegit_. I shall here use the words of the statute, as -they are sufficiently plain, and easy to be understood. “When debt is -recovered or acknowledged in the king’s courts, or damages awarded, it -shall be, from henceforth, in the election of him that sueth for such -debt or damages, to have a writ to the sheriff of _fieri faciat_ of the -lands and goods” (which was the old remedy against the chattles) “or -that the sheriff shall deliver to him all the chattles of the debtor, -saving only his oxen and beasts of his plough, and the one half of his -land, until the debt be levied upon a reasonable price or extent.” After -this the act gives the same privilege as in case of statute merchant, to -the creditor dispossessed. From his making his election for the extending -the lands, the writ directed to the sheriff for that purpose got the name -of _elegit_. The difference of execution just mentioned shews clearly in -how superior a light the legislature regarded the interests of commerce. -That the debts to merchants, in whose prosperity the whole community was -concerned, might be levied as soon as possible, the security by statute -merchant gave possession of the whole of the land to the creditor; but -the writ of _elegit_ gave him possession of no more than one half. -Originally men could not alien lands at all. Afterwards they were allowed -to alien, but not beyond the half of the fief; and this principle or -maxim was strongly regarded at the time the writ of _elegit_ was framed, -which was before the statute of _Quia emptores terrarum_, which allowed -alienation of the whole. So that whatever stretches might be found -necessary, from the circumstances of merchandize, yet, with regard to the -kingdom in general, a small deviation only was made from the common law, -and the _elegit_ was allowed to affect no more by operation of law than a -man was supposed capable of alienating by his own deed[218]. - -Two reigns after, namely, the 27th of Edward the Third, when the mart, or -market of the standing commodities of England, namely, wool, woolfels, -hides, lead and tin, was removed from Flanders into England, and a court -merchant was erected in all such places where the staple was fixed, -to be held by the mayor of the staple, he had power given him to take -recognizances on the debts contracted at the staple, called _statute -staple_, in the same manner as of _statute merchant_; and as the effect -thereof was the same as of statute merchant, it need not be particularly -repeated. However in some time afterwards, statute merchant was, by -custom, extended to others beside merchants, and became one of the common -assurances of the realm. The statute staple was likewise extended upon -surmise of the debt being contracted at the staple; and though an act of -Henry the Eighth in England restrained this latter to its ancient bounds, -yet, the same act framed a new kind of security in imitation of it, -common to all the subjects, called a recognizance on that act, which had -all the effects and advantages of it[219]. - -The statutes of Elizabeth and those since her time, concerning bankrupts, -have gone much further. They not only, in the cases they extend to, -laid the whole land open to the creditor, but, instead of a possession, -and gradual discharge of the debt, which was all that was given by the -statute merchant, _elegit_, or statute staple, they gave him a more -speedy satisfaction, by enabling him to procure a sale of the lands[220]. -But these later acts having never been enacted in this kingdom, I shall -content myself with having barely hinted at them, and their effects. - -Voluntary alienations of land having gained ground, and become at length -established in England, contrary to the principles of the original law; -and it being allowed for a maxim, that he that had a fee simple, had an -absolute dominion over half of his land, to dispose of as he pleased, -and, in some cases, of the whole; it could not be, but that there would -arise many persons fond of perpetuating their estates in their families, -and consequently displeased at this power of alienation. The means they -used to attain their ends was under that maxim of law, _Tenor investituræ -est inspiciendus_, or, as we express it, _Conventio vincit & dat modum -donationi_. Every man therefore, absolute master of his estate, having -a right to give it on what terms he pleased, they began, not as before, -to give lands to a man and his heirs in general, for that would have -given an absolute dominion, but to heirs limited, as to the _heirs of his -body_, or to the _heirs male_ of his body, or to the heirs of his body by -such a woman. Here it was plain enough, that none were intended to take, -but such as came within this description; and by this means they hoped -to defeat the power of alienation, to secure the estate to the persons -described, and, in failure of them, the returning or reversion of it to -themselves or their heirs. - -But the judges complying with the universal bent of the times to the -contrary, did not give these grants that construction they expected, upon -the natural presumption, that every person will have heirs of his body, -and that his posterity will continue for ever. They construed this to -be a fee simple; and yet, not entirely to disregard the intention of the -donor, to be a fee simple conditional; as if the words had been _to a man -and his heirs_, provided he have heirs of his body, and consequently to -be alienable, and forfeitable upon a certain event. And one great reason -of making this construction, I take to be the consideration of forfeiture -for treason and felony, which, by such grants, would be defeated by -another construction, and men thereby rendered more fearless to commit -crimes in those troublesome times[221]. - -Let us see then what estate or power was in _donor_ and _donée_ -immediately by the grant; and what, upon the performance of the -condition, namely, the having issue. And first, the _donée_ had -immediately a fee simple upon the grant, contrary to Britton’s opinion, -that, before children born, he had only an estate for life, and -afterwards a fee. This appears from hence, that if a man had aliened in -fee before issue had, the donor could not have entered upon the lands -for the forfeiture, which, if he was tenant for life, he might. For the -alienation in fee of tenant for life is an absolute forfeiture, and gives -right of entry to the _lessor_. The _donée_, then, having presently a -fee simple in him, that is, an estate for ever, than which there can be -no greater; it was impossible the donor should have any actual estate -or interest in the lands. He had not, therefore, a _reversion_ vested -in him, that is, a certain positive right of the lands returning to him -or his heirs, as he would have had, if an estate for life only had been -granted. He had only a bare _possibility of reverter_, in case the donée -died without issue; or, leaving any, that issue had failed. - -For the same reason, of the donée’s having a fee simple, no _remainder_ -could be limited in such an estate. If land be given to A. for life or -for years, and after the efflux of the life or years to B., B. hath -presently a remainder in the lands for life, years, or in fee, according -as the limitation of the estate is; because it is certain that a life, -or term of years, must expire. But if land be given to A. and the heirs -of his body, and, in failure of such heirs, to B. and his heirs, this -remainder to B., before the statute _De Donis_, was void, for A. had -immediately an estate for ever, and therefore the limitation over to B. -was rejected, as repugnant to the estate it depended upon. - -But though, by such a grant, the donée got a fee, it being clogged with -a condition, he had not, to all intents and purposes, an absolute power -over it, either with respect to the donor, or his own issue. If the -donor aliened before issue had, this was no bar to the donor, of his -possibility of _reverter_; but it was a bar to the issue born afterwards, -to enjoy the estate tail. For at this time fathers had a greater liberty -to bar their children, than a stranger. Therefore, in this case, the -_alienée_ and his heirs, were to enjoy the lands while the donée, or any -issue of his body remained. But whenever they failed, the donor’s, or his -heir’s possibility of reverter, was changed into an actual reversion, and -the land became his. For now, by a subsequent event, it appeared, that -the legal presumption of the estates continuing for ever was ill founded. -Neither, by the having of issue, was the condition performed to all -purposes, so as to vest an absolute fee in the _donor_; for if the donée -had died without issue, or if his issue failed, without any alienation -being made by either, in this case also, the donor’s possibility was -changed into an actual reversion. But by having issue, the condition was -so far performed, as to enlarge the power of the donée to three special -purposes; first, to alien absolutely, and thereby to destroy the right -of issue, and the possibility also of reverter in the donor; secondly, -to charge and incumber it to the prejudice of both issue and donor; and -thirdly, to forfeit it for treason or felony, to the prejudice of both -also. Such was the construction the judges made of these grants, which, -we see, gave, in almost all cases, an unlimited power of alienating, -contrary to the intention of the donor, and the form of the gift[222]. - -But, in the thirteenth of Edward the First, the lords, willing to -preserve the grandeur of their families, obtained of that monarch the -famous statute of Westminster the second, called _De Donis_, which by -these words, _quod voluntas donatoris, secundum formam in charta Doni -sui, manifeste expressam, de cætero observetur, ita quod non habeant -illi, quibus tenementum sic fuit datum sub conditione, potestatem -alienandi tenemenium sic datum, quo minus ad exitum illorum, quibus -tenementum sic fuerit datum, remaneat post eorum obitum, vel ad -donatorem vel ad ejus hæredem, si exitus deficiat, revertatur_[223], -created a new kind of inheritance, _estates tail_, which very much -resemble the old feudal donations, that were only descendible to the -issue of the first feudatory. Let us see the consequence of these words. -First, since the will of the donor was to be observed, it followed, that -neither the donée, nor his issue, should have power to alien, incumber, -or forfeit: the consequence of which was, that he could no longer have a -fee simple, as these are inseparable incidents to such an estate; but a -lesser estate, called _Fee tail_, from, the French word _Tailler_ before -mentioned, as being, like other lesser estates, carved out of the fee -simple. - -Were it to be asked, in whom did the fee simple reside? it is plain it -could be in none other but the donor, who had it originally in him. -Therefore, by this statute, the possibility of reverter, which the donor -had, was changed into an actual present interest, called a _reversion in -fee simple_. But it was not always necessary that the fee simple should -be in the donor; for estates tail, being now less than a fee simple, it -became possible to limit a remainder thereon which should be good: Thus, -if a gift be made to A. and the heirs of his body, and, in failure of -such heirs, to B. and his heirs; in this case, there is no reversion: -for the donor hath parted with his whole estate, but A. hath an estate -tail, and B. a remainder in fee simple. Many remainders may be limited -on one another, as for instance, an estate may be given to A. for years, -remainder to B. for life, remainder to C. in tail, remainder to D. in -tail, remainder to E. in fee simple; but if the last remainder is not in -fee simple, but in fee tail, then is the reversion in fee simple to the -donor. - -However, although a tenant in tail after this statute could alien only -for his own life, his heir in tail was not allowed to enter upon the -alienée without first proving his right in a court of law, and this is -what is meant by saying, _though a tenant in tail could not destroy the -estate tail by his alienation, yet he could continue it_. The reason of -this is, that all estates of inheritance are presumed fee simple, until -the contrary is proved, and it would be unjust to remove a possessor, -who came in by a title apparently fair, until the weakness of that -title appears judicially. This rule, however, extended only to estates -corporeal, that lay in liveries, not to incorporeal ones, that lay in -grant; which shews that this maxim of its working a discontinuance -proceeded from the feudal principle, of protecting the possessor, because -he was to do the feudal duties. - -The statute to guard these inheritances from alienations, expressly -provides, that even a fine levied of them in the king’s courts of record -should be _ipso jure_ null. - -The method of recovering such lands so discontinued, is by a writ called -a _Formedon_, from the words _forma doni_, of which writ there are three -kinds, according to the title of the persons who bring them; _formedon, -in the reverter_, _in the descender_, and _in the remainder_. _Formedon -in the reverter_ lies for the donor or his heirs, and lay at the common -law after the failure of issue, where the alienation was before issue -had; but since the statute, upon the failure of issue, it lies, though -the alienation be after. _Formedon in descender_ lies for the issue in -tail, when the ancestor has aliened, and is given by the statute. The -form of it is as follows, “The king to the sheriff of ⸺ greeting, command -A. that he justly, and without delay, restore to B. such a manor, &c. -which C. gave to D., and the heirs of his body, and which, after the -death of the said D., ought to descend to the said B. the son of the -said D. by the form of the aforesaid gift, as he says.” _Formedon in -remainder_ lies for a remainder man in tail, or his issue, after the -particular estate previous to his (whether it be for years, life, or in -tail) is spent. In the reverter, instead of the word _descend_, it is -_revert_; in the remainder, _remain_[224]. - -Having shewn the origin of estates tail, I shall next consider their -consequences, and future fortune. - - - - -LECTURE XVII. - - _The consequences and history of estates Tail._ - - -The following are the words of my lord Coke. “When all estates were fee -simple, then were purchasers sure of their purchases, farmers of their -leases, creditors of their debts; the king and lords had their escheats, -forfeitures, wardships, and other profits of their seignories: and for -these, and other like cases, by the wisdom of the common law, all estates -of inheritance were fee simple; and what contentions and mischiefs have -crept into the quiet of the law by these fettered inheritances, daily -experience teacheth us.” By this enumeration of his, of the advantages -that attended estates of fee simple, it is easy to see who were the -sufferers, and wherein they suffered, by the introduction of estates -tail. But it is a little surprizing that he should make such a slip as -to say, that before this creditors were secure of their debts by all -estates being fee simple; when the first statute that gave them any hold -of lands was made after this statute _De Donis_, in the latter end of -the same year of the king’s reign, the thirteenth of Edward the First. -Those, indeed, who had landed estates at that time, and their posterity, -were great gainers hereby; but the king and the nation in general were -sufferers. The nation suffered by the check that commerce, then just -arising, received, by so much lands becoming unalienable, and the crown -suffered in a double respect; first by the opportunity it afforded to -strengthen and explain the great estates of the lords, and secondly by -the security it gave when enlarged. - -Soon after the conquest, the estates of the English lords were enormous. -William brought over an army of 60,000 men, not levied by himself, (for -he was unable to raise or defray the expences of a third of that number, -out of the province of Normandy,) but consisting chiefly of adventurers, -who engaged in the expedition on the promise of forfeited lands, in -proportion to the numbers they brought with them. Accordingly, some -had seven hundred manors, others five, four, three, two, one hundred, -or less; insomuch, that all the lands of England, (if we except the -king’s demesnes, the church lands, and the little properties annexed to -cities and boroughs) were in no more than about seven hundred hands, -the principal of which were petty princes, like the dukes and counts of -France[225]. - -William was sensible, from the experience of that country, how dangerous -such large grants would prove to the authority of the crown, and he -accordingly moderated them as well as his circumstances would permit. -That the king might not be too far removed from the view of the lower -people, by the interposition of the great lords, their immediate -superiors, he did not, as in France, leave the whole judicial power, -and the profits of the county courts in the earls; but justice was -administered in the king’s name by his sheriffs; who, as being deputies -of the earls, were called _Vice Comites_, and who accounted for the -profits to the king, except as for the one third, which in England was -the earl’s proportion; and in after times, upon new creations, the third -also was referred to the king, and only a certain stipend out of it, -generally twenty pounds a year, assigned to the earl[226]. - -Another means he used of disarming them of the too great powers -immoderate estates would have given them, was avoiding the rock the -French court had split on, the giving vast territories, lying contiguous -to each other, in fief, whereby all the followers were immediately in -the view and at the call of the lords. William acted more prudently. He -generally gave to an earl twenty knights fees, which was the proportion -of an English earldom in the county, whose title he bore; perhaps -thirteen, or a barony, in another county; and the remainder, he was to -give, either in baronies in distant counties, or more generally in single -knights fees, dispersed through all England. This was his general method, -except to a few of his near relations, to whom he gave palatinates with -_jura regalia_, which were exactly in the nature of the French dutchies -and counties[227]. - -Another prudent step he took for the benefit of his successors, was the -making all his grants _feminine fiefs_. For as, in a course of several -descents, it must happen that lineal males would frequently fail, by -admitting the daughters in that case, these vast inheritances were -frequently broken, as females succeeded equally. His successors followed -his plan, and for that purpose, not only permitted, but encouraged their -great vassals to alien, and dismember their properties; and whenever a -great escheat fell, were always sure, unless there was a prince of the -blood to be provided for, to divide it into many hands. - -Both kings and people received the advantages, and would have received -more, if this policy had continued. The immediate tenants of the crown -being encreased in number, and lessened in wealth, were not able to -confederate so easily against the crown; and, sensible of their being -weakened, had occasion for the support of the lower rank of the people, -whom, consequently, they treated with more gentleness and equality than -before. But this statute of entails put a stop to the progress that -course of things were in; estates became unalienable, and indivisible. -The property of no lord could lessen; and if it happened, as it -frequently did, that they acquired, either by descent or marriage, -or the purchase of an estate not tied up, a new entail connected it -inseparately with the old one; and thus the lords, towards the end of -the Plantagenet line, grew up to such a pitch of power, as was dangerous -to the constitution, and when they were divided into the factions of the -York and Lancaster, deluged the land with blood. - -The king saw the mischief betimes, but the mischief was done. The act was -passed, and to get it repealed was impossible. They had nothing left, but -to find means to elude it by construction of law, wherever they could. -The scheme was readily embraced by the judges and lawyers, who had raised -great outcries against these fettered inheritances, and were joined by -all the trading and industrious people, and even by the younger branches -of these great families, whose fathers were thereby disabled to provide -for them. - -The first means found out was by _collateral warranty_. Before this -statute all warranties by an ancestor bound the heir at law, although -no land descended from that ancestor, upon the presumption that no man -would disinherit his heir, without leaving him a recompence. But this -could be no longer the law in general; for, if so, the ancestor in tail -might, by his warranty, defeat the tail, contrary to the statute, which -says, _The will of the donor shall be observed_. They therefore made now -a distinction between a lineal warranty and a _collateral_ one. Lineal -warranty is that which is made by tenants in tail; collateral, that -which is made by one who is a stranger to the entail. In the first case -they held it no bar, unless assets descended; that is, an estate in fee -simple, equal in value. But in the latter case, that no assets descended, -they held it at bar as at common law[228]. - -To illustrate this by an example, If lands are given to A. and the heirs -male of his body, and A. aliens with warranty, this is lineal warranty, -and shall not bind the son; but if B. the brother of A. who has nothing -to say to the entail, joins in the alienation with warranty, or releases -to the alienee with warranty, or disseizes A, and then aliens with -warranty, and dies without issue, so that A’s son is his heir, this -warranty is collateral to the entail, and without assets should bind the -son of A, as at common law. At first view it may seem surprising how this -construction gained ground against the express words of the statute, -_Voluntas donatoris de cætero observetur_; for the will of the donor was -certainly as much defeated by a collateral, as by a lineal warranty; but -the judges took advantage of the preamble of the act, which, reciting -the mischief, speaks only of the alienation of the tenant in tail, that -is, of lineal warranty. They restrained, therefore, out of disfavour -to these fettered estates, the general words in the enacting part, to -the particular case mentioned in the preamble, on this ground, that the -common law was not to be altered without it appeared undeniable that the -legislator intended it; and here, as to collateral alienation, they are -silent. This was the first device used to defeat estates tail, namely, by -getting a collateral relation, whose heir the issue in tail was to be, -to concur in the alienation, and to bind himself and heirs to warranty; -which was generally obtained for a small consideration, as such person -could never be a gainer by the estate tail, since it could in no case -come to him. - -When once this rule of collateral warranty barring an estate tail, -was settled, attempts were made to prevent its taking effect, and to -continue such estate notwithstanding. Jude Richel, in Richard the -Second’s time, led the way; he having settled lands on his eldest son -in tail; remainder to his second son in tail; adds, that the lands are -given on this condition, that, if the eldest son should alien, that -instant his estate should cease and determine, and the land remain to -the second son and the heirs of his body. Here he imagined he had got -clear of collateral warranty, because the first estate was to determine, -and the second to commence immediately on the alienation, and before -any collateral warranty could descend on the second. But the judges -determined this condition to be void; for which Littleton gives three -reasons, drawn rather from the art of law, than from the principles of -plain reason[229]. The true ground seems to be this: - -In every reign, from Edward the First down to Edward the Fourth, bills -were brought into parliament to repeal the statute _De Donis_, as Coke -informs us, but had constantly miscarried, as the estates of the majority -in parliament were entailed. The only relief found out at that time -against their mischiefs was this collateral warranty; and if Richel’s -conditions were to be adjudged good, all estates tail would have been -made with such conditions, and there would have been an end of that -method of defeating them. The same was the fate of a similar settlement -of Judge Thirning, who took the advice of his cotemporary judges, in -wording his condition so as to make it effectual; but their successors -were of a different opinion, and rejected it. However, these collateral -warranties not being to be got in all cases, the relief was but partial, -and extended only to particular cases. And the tenant in tail himself -could by no act of his, in concurrence with any other person, except a -collateral ancestor of the issue in tail, bar them. - -At length the judges found out a device, by a fiction in law, to enable -him to bar his issue, and all remainders, and reversions. A. brings his -action real against B, tenant in tail, and alledges the lands in tail to -be his A’s right and inheritance, when in truth he hath no title thereto; -B. comes in, and voucheth C. to warranty, who enters into warranty, and -after, when he should defend, makes default, so judgment is given for A. -against B. and for B. to recover in value against C. Here, though C. has -no land to render in value, the judges have construed B, and all that -should come after him, to be barred; because if C. ever after purchased -lands, these lands might be recovered from him, by virtue of the former -judgment; and so there was a possibility of a recompence. Though this -decision at first created great outcries, and even in Henry the Eighth’s -reign was but weakly defended in equity and conscience, by the author of -_Doctor and Student_, yet the judges, for the public good, constantly -adhering to it, and these common recoveries being taken notice of and -approved of by subsequent acts of parliament, are at length grown to be -common assurances of lands, and, passing in the court of record, are the -best securities of estates[230]. - -The bearing of estates tail, _by fine_ passed in the king’s courts, grew -up another way, and is founded on an act of parliament in Henry the -Seventh’s reign, and is indeed, properly speaking, a partial repeal of -the statute _De Donis_, since it puts it in the tenant in tail’s power to -destroy it, by observing certain solemnities. Though common recoveries -had been invented some years before, yet as they had not had time to grow -up to such a degree of firmness as to be sufficiently depended upon, -their legality was still doubted, and it was not certain that future -judges would give them the same construction which their predecessors had -done. Therefore, that politic prince Henry the Seventh, who saw, in all -its lights, that superiority which the preservation of landed property in -their families gave to the nobles, a superiority which had cost some of -his predecessors their lives and crowns, freed lawyers from the trouble -of inventing future devices against entails, by getting the famous -act passed in the fourth year of his reign, which made a fine, with -proclamations to conclude all persons, strangers as well as privies[231]. - -It was the purport of, and so it is expressed in the statute _De Donis_, -that a fine levied of entailed lands should be _ipso jure_ null, and it -is the intent of this act, on the contrary, that a fine, levied with -the prescribed solemnity, should be valid to bar the persons therein -intended to be barred. There is a clause, indeed, in this act, saving the -right and interests of all persons, which accrued after the ingrossing -of the fine, they pursuing their rights within a certain time after -they accrued. This clause was apparently thrown in to make the act pass, -and to deceive the enactors into an opinion, that it would not affect -estates tail; and on this clause a doubt occurred in that reign, whether -the issue of tenant in tail could be barred by this statute, and that, -notwithstanding by the tenor of it, privies were barred. The question -was, whether the statute meant privies to the fine, or privies to the -estate of the person levying it? The issue were not privies in the first -sense, but were in the latter. The judges embraced the opportunity this -ambiguity gave them, of defeating entails, and bound the issue by the -fine. A statute of the succeeding prince approved of that construction, -gave it retrospect, and prevented all ambiguity for the future[232]. - -Thus were estates tail no longer certain perpetuities, but defeasible -upon performing certain requisite solemnities. Still however they -continued not to be forfeitable for crimes, which was a point not to be -got over without an act of parliament, and there was little likelihood -of obtaining such an one; but Henry the Eighth snatched the lucky -opportunity his situation gave him, of gaining this important point, in -the 26th year of his reign, when he had quarrelled with the Pope, and -all hope of accommodation vanished; when a sentence of excommunication -was denounced against him, and numbers of his subjects, many of them of -great fortunes, bigotedly attached to the old religion, were known to -meditate rebellion. The parliament, the majority of which were of the new -profession, seeing no other means to preserve the security of the state, -and the protestant religion, yielded at length to the passing of an act -for that purpose[233]. - -However, there were not wanting persons after this, willing to create -perpetuities, in which they were always disappointed by the decision of -the judges. The first device was by giving estates upon condition, that -if tenants in tail should levy a fine, or suffer a recovery, the estate -should cease, and go over to the next issue intitled. But the judges -rejected such condition, for the same reason as in Richel’s case. They -adjudged the right of barring by a fine or recovery to be an incident -inseparable to a fee tail, and all conditions repugnant thereto idle -and void; for how could the law suffer that an estate, by previous act -of the donor, should, upon a judgment at law, become vested in any other -person than him who recovered? These ingenious conveyancers, finding that -the limitation upon breach of the condition came too late, as the estate -had already gone in another channel, framed the condition thus; that _if -tenant in tail should go about to levy_, &c. _or make any covenant to -levy, or hold any communication about levying_, &c. _the estate should -then_, &c. But these were all condemned upon the old principle, and still -more for their vagueness and uncertainty. - - - - -LECTURE XVIII. - - _The constitution of a feudal monarchy—The dignity and revenues - of the King—An examination of his power as to the raising of - taxes and subsidies._ - - -As, in my former lectures, I drew a general sketch of the nature and -form of the governments that prevailed among the northern nations whilst -they remained in Germany, and what alterations ensued on their being -removed within the limits of the Roman empire, it will be now proper to -shew, in as brief a manner as may consist with clearness, the nature and -constitution of a feudal monarchy, when estates were become hereditary, -the several constituent parts thereof, and what were the chief of the -peculiar rights and privileges of each part. This research will be of -use, not only to understand our present constitution, which is derived -from thence, but to make us admire and esteem it, when we compare it with -that which was its original, and observe the many improvements it has -undergone. From hence, likewise, may be determined that famous question, -whether our kings were originally absolute, and all our privileges only -concessions of theirs; or whether the chief of them are not originally -inherent rights, and coeval with the monarchy; not, indeed, in all the -subjects, for that, in old times, was not the case, but in all that were -_freemen_, and, as all are such now, do consequently belong to all. - -To begin with the king, the head of the political body. His dignity -and power were great, but not absolute and unlimited. Indeed, it was -impossible, in the nature of things, even if it had been declared so by -law, that it could have continued in that state, when he had no standing -force, and the sword was in the hand of the people. And yet it must be -owned his dignity was so high, as to give a superficial observer some -room, if he is partially inclined, to lean to that opinion. All the lands -in his dominions were holden of him. For, by degrees, the _allodia_ had -been changed into, and supposed to have been derived from, his original -grant, and consequently revertible to him. But then, the land proprietors -had (on fulfilling the conditions they were bound to) a secure and -permanent interest in their possessions. He could neither take them -away at pleasure, nor lay taxes or talliages on them by arbitrary will, -which would have been little different. Since, in Magna Charta, we find -the people insisting that the king had no right to assess the quantity -of escuage, which was a pecuniary commutation for military service, -nor to lay talliages on his other subjects, but that both must be done -in parliament. He was a necessary party to the making new laws, and to -the changing and abrogating old ones; and from him they received their -binding force, insomuch that many old laws, tho’ passed in parliament, -run in the king’s name only. For, in those days, persons were more -attentive to substance than forms; and it was not then even suspected, -in any nation of Europe, that any king would arrogate to himself a power -so inconsistent with the original freedom of the German nations. Nay, in -France, to this day, the king’s edicts are not laws, until registered in -parliament, which implies the consent of the people, tho’ that consent is -too often extorted by the violent power that monarch has assumed over the -persons and liberty of the members of that body[234]. - -The dignity of the king was supported, in the eyes of the people, not -only by the splendor of his royalty, but by the lowly reverence paid -him by the greatest of his lords. At solemn feasts they waited on him -on the knee, or did other menial offices about his person, as their -tenures required, and did their homage and fealty with the same lowly and -humiliating circumstances that the meanest of their vassals paid to them. -His person likewise was sacred, and guarded by the law, which inflicted -the most horrible punishment for attempts against him; neither was he to -be resisted, or accountable for any private injury done personally by -himself, on any account whatsoever. For the state thought it better to -suffer a few personal wrongs to individuals, than to endanger the safety -of the whole, by rendering the head insecure. - -But the greatest of the kingly power consisted in his being entirely -entrusted with the executive part of the government, both at home and -abroad. At home justice was administered in his name, and by officers of -his appointment. He had, likewise, the disposal of all the great offices -of the state, with an exception of such as had been granted by his -predecessors in fee, and of all other offices and employments exercised -in the kingdom immediately under him. Abroad he made war and peace, -treaties, and truces as he pleased. He led his armies in person, or -appointed commanders; and exercised, in time of war, that absolute power -over his armies that is essential to their preservation and discipline. -But how was he enabled to support the expence of the government, or to -provide for the defence of the kingdom, or carry on a foreign war; since, -if he was not furnished in that respect, these high-sounding prerogatives -had been but empty names, and the state might have perished? and if he -could at pleasure levy the necessary sums, he being sole judge of the -necessity, both as to occasion and quantity, as Charles the First claimed -in the case of ship-money, the state of the subject was precarious, and -the king would have been as absolute a monarch as the present king of -France or Spain[235]. - -But abundant provision was made on this head, and that without -over-burdening the subject, for supporting the ordinary expences of the -government. A vast demesne was set apart to the king, amounting, in -England, to one thousand four hundred and twenty-two manors, as also -many other lands, which had not been erected into manors. Besides these, -he had the profits of all his feudal tenures, his worships, marriages, -and reliefs; the benefit of escheats, either upon failure of heirs or -forfeiture; the goods of felons and traitors; the profits of his courts -of justice; besides many other casualties, which amounted to an immense -revenue; insomuch, that, we are informed, that William the Conqueror -had L. 1061: 10s. a-day, that is, allowing for the comparative value of -money, near four millions a-year; so that Fortescue might well say, that, -originally, the king of England was the richest king in Europe. Such a -sum was not only sufficient for the occasions of peace, but out of it he -might spare considerably for the exigencies of war[236]. - -This revenue, however great, was not sufficient to support a war of -any importance and continuance, besides the extraordinary expence -of government. It remains, therefore, to see what provision this -constitution made, in addition to what the monarch might spare, for the -defence of England, as it might be attacked either by land or sea. For -the former, every sea-port was, in proportion to its ability, obliged to -find, in time of danger, at their own expence, one or more ships properly -furnished with men and arms; which, joined to such other ships as the -king hired, were, in general, an overmatch for the invaders. But if the -enemy had got footing in the country, the defence at land was by the -knights or military tenants, who were obliged to serve on horseback in -any part of England; and by the socage tenants, or infantry, who, in case -of invasion, were likewise obliged to serve, but not out of their own -country, unless they themselves pleased, and then they were paid by the -king. - -With respect to carrying on _offensive_ war into the enemy’s country, the -king of England had great advantages over any other feudal monarch. In -the other feudal kingdoms the military vassals were not obliged to serve -in any offensive war, unless it was just, the determination of which -point was in themselves; but William the Conqueror obliged all to whom -he gave tenures to serve him _ubicunque_; and though he had not above -three hundred, if so many, immediate military tenants under him, yet -these were obliged, on all occasions, to furnish sixty thousand knights -compleatly equipped, and ready to serve forty days at their own expence. -If he wanted their service longer, he was obliged to obtain it on what -terms he could. There is, therefore, no reason to wonder that the king -of England, though master of so comparatively small a territory, was, in -general, an overmatch, in those early times, for the power of France. As -for _infantry_ in his foreign wars, he had none obliged to attend him. -Those he had were socage tenants, whose services were certain; so that -he was obliged to engage, and pay them, as hired soldiers. As the socage -tenants in his dominions had a good share of property, and enjoyed it -without oppression, it is no wonder the English archers in those days had -a gallant spirit, and were as redoubtable as the English infantry is at -present. - -To support these military tenants, who served after the necessary time, -and likewise his infantry (as the surplus of his ordinary revenue would -not suffice) he had _customs_ and _talliages_, and _aids_ and _subsidies_ -granted by parliament. These customs, or so much paid by merchants on the -exportation of goods, were of two kinds; as paid either by _merchant -strangers_, or by _merchant denizens_[237]. - -The customs paid by merchant strangers were not originally settled by act -of parliament, but by a compact between the merchant strangers and king -Edward the First. In the Saxon times the king had a power of excluding -strangers from his kingdom, not merely with an intention of inducing -their own people to traffick, but chiefly to keep out the Danes, who were -the masters of the sea; lest, under pretence of trade, they might get -footing in, and become acquainted with the state of the kingdom. They -were, accordingly, admitted by the kings upon such terms as the latter -were pleased to impose; but Edward, who had the success and prosperity -of his kingdom at heart, came to a perpetual composition with them; gave -them several privileges, and they gave to him certain customs in return. -What shews they had their origin from consent is, that the king could -not raise them without applying to parliament. The customs of natives -or denizens were, certainly, first given to the king by parliament; -though this has been denied by some, merely because no such act is to be -found, as if many of the antient acts had not been lost; but there are -acts and charters still extant, which expressly say they were appointed -and granted by parliament, without the power of which they could not be -either altered or enlarged. - -The difference between the customs and the other aids I have mentioned, -_viz._ talliages and subsidies, is, that the latter were occasional, -granted only on particular emergencies, whereas the _customs_ were for -ever. If it be asked how they came to be granted in that manner, we must -refer back to the original state of boroughs and their inhabitants, -traders, in the feudal law. In France, the Roman towns were taken into -protection, and had their antient privileges allowed them; but in the -series of wars that happened in that country for ages, every one of -them in their turns were stormed, and reduced to vassalage, either to -the king or some other great lord; and as, now, these lords had learned -that the Roman emperor laid on taxes at his pleasure, it was but natural -they should claim the same right, especially over towns they had taken -in war. The burgesses, therefore, became in the nature of villains, -not indeed of common villains, for that would absolutely have destroyed -trade, but with respect to arbitrary taxation, which, however, if the -lord was wise, was never exorbitant. In England, I apprehend, they -became villains; for the Saxons were a murdering race, and extirpated -the old inhabitants. However, wise kings, considering the advantages of -commerce, by degrees, bestowed privileges on certain places, in order to -render them flourishing and wealthy; and at length, about the time of -Magna Charta, or before, when every uncertain service was varying to a -certainty, this privilege was obtained for merchant adventurers. But the -other burgesses, that did not import or export, and likewise villains, -were still talliageable at will. This was restrained by Magna Charta, -which declares all talliages unlawful, unless ordained by parliament[238]. - -To come to the latter head, whether taxes, aids, and subsidies can be -assessed by the king, as sole judge of the occasion, and the _quantum_—or -whether they must be granted by parliament, was the great and principal -contest between the two first princes of the unfortunate house of Stuart -and their people, and which, concurring with other causes, cost the last -of them his life and throne. To say nothing of the divine hereditary -right urged on the king’s behalf, and which, if examined into strictly, -no royal family in Europe had less pretensions to claim, both sides -referred themselves to the antient constitution for the decision of this -point. The king’s friends urged that all lands were holden from him by -services, and that this was one of his prerogatives, and a necessary -one to the defence of the state. They produced several instances of its -having been done, and submitted to, not only in the times of the worst, -but of some of the best kings; and as to acts of parliament against it, -they were extorted from the monarchs in particular exigencies, and could -not bind their successors, as their right was from God. - -The advocates of the people, on the other hand, insisted, that, in -England, as in all other feudal countries, the right of the king was -founded on compact; that William the Conqueror was not master of all the -lands in England, nor did he give them on these terms; that he claimed -no right but what the Saxon kings had, and this they certainly had not; -that he established and confirmed the Saxon laws, except such as were -by parliament altered; that he gave away none but the forfeited lands, -and gave them on the same terms as they were generally given in feudal -countries, where such a power was in those days unknown. They admitted, -that, in fact, the kings of England had sometimes exercised this power, -and that, on some occasions, the people submitted to it. But they -insisted, that most of the kings that did it were oppressors of the worst -kind in all respects; that the subjects, even in submitting, insisted -on their ancient rights and freedom, and every one of these princes -afterwards retracted, and confessed they had done amiss. If one or two -of the best and wisest of their kings had practised this, they insisted -that their ancestors acquiescence once or twice, in the measures of a -prince they had absolute confidence in, and at times when the danger, -perhaps, was so imminent as to stare every man in the face, (for it was -scarce ever done by a good prince) as when there was not a fleet already -assembled in the ports of France to waft over an army, should not be -considered as conveying a right to future kings indiscriminately, as a -surrender of their important privileges of taxation. They insisted that -these good and wise kings had acknowledged the rights of the people; -that they excused what they had done, as extorted by urgent necessity, -for the preservation of the whole; that, by repeated acts of parliament, -they had disavowed this power, and declared such proceedings should never -be drawn into precedent. They observed, that there was no occasion for -the vast demesne of the king, if he had this extraordinary prerogative -to exert whenever he pleased. They denied the king’s divine right to -the succession of the crown, and that absolute unlimited authority that -was deduced from it. They insisted that he was a king by compact, that -his succession depended on that compact, though they allowed that a -king intitled by that compact, and acting according to it, has a divine -right of government, as every legal and righteous magistrate hath. They -inferred, therefore, that he was a limited monarch, and consequently -that he and his successors were bound by the legislative, the supreme -authority[239]. - -The advocates of the king treated the original compact as a chimera, and -desired them to produce it; which the other side thought an unreasonable -demand, as it was, they alledged, transacted when both king and people -were utterly illiterate. They thought the utmost proof possible was -given by quoting the real acts of authority, which the Saxon kings had -exercised; among which this was not to be found; that the Norman kings, -though some of them had occasionally practised it, had, in general, both -bad and good princes, afterwards disclaimed the right, and that it never -had (though perhaps submitted to in one or two instances) been given -up by their ancestors, who always, and even to the face of their best -princes, insisted that it was an encroachment on those franchises they -were intitled to by their birthright. - -Such, in general, were the principles on which the arguments were -maintained on both sides: for to go into _minutiæ_, would not consist -with the design of this undertaking. I apprehend it will be evident from -this detail of mine, though I protest I designed to represent both sides -fairly, that I am inclined to the people in this question. I own I think -that any one that considers impartially the few monuments that remain -of the old Saxon times, either in their laws or histories, the constant -course since the conquest, and the practice of nations abroad, who had -the same feudal policy, must acknowledge, that though this right was -claimed and exercised by John, Henry the Third, Edward the First, Second, -and Third, Richard the Second, and Henry the Eighth, it was in the event -disclaimed by every one of them, by the greatest of our kings, Edward -the First and Third, and Henry the Eighth, with such candour and free -will, as inforced confidence in them; by the others, in truth, because -they could not help it. I hope I shall stand excused, if I add, that the -majority of those who engaged in the civil war, either for king Charles, -or against him, were of the same opinion. For, had he not given up this -point, (and indeed he did it with all the appearances of the greatest -sincerity) he would not have got three thousand men to appear for him in -the field. But, unfortunately for his family, and us, (for we still feel -the effects of it from the popish education his offspring got abroad) -his concession came too late. He had lost the confidence of too many -of his people, and a party of republicans were formed; all reasonable -securities were certainly given; but upon pretence that he could not -be depended upon, his enemies prevailed on too many to insist on such -conditions, as would have left him but a king in name, and unhinged the -whole frame of government. Thus the partizans of absolute monarchy on -one side, and the republicans, with a parcel of crafty ambitious men, who -for their own private views affected that character, on the other, rented -the kingdom between them, and obliged the honest, and the friends to the -old constitution, to take side either with one party or other, and they -were accordingly, for their moderation and desire of peace, and a legal -settlement, equally despised which ever they joined with[240]. - -I shall make but one observation more; that though it is very false -reasoning to argue from events when referred to the decision of God, -as to the matter of right in question; I cannot help being struck with -observing, that though this has been a question of five hundred years -standing in England, the decision of providence hath constantly been -in favour of the people. If it has been so in other countries for two -hundred or two hundred and fifty years past, which is the utmost, let -us investigate the causes of the difference, and act accordingly. The -ancients tell us it is impossible that a brave and virtuous nation can -ever be slaves, and, on the contrary, that no nation that is cowardly, or -generally vitious, can be free. Let us bless God, who hath for so long -a time favoured these realms. Let us act towards the family that reigns -over us, as becomes free subjects, to the guardians of liberty, and of -the natural rights to mankind; but above all, let us train posterity, -so as to be deserving of the continuance of these blessings, that -Montesquieu’s prophecy[241] may never appear to be justly founded. - -“England (says he) in the course of things, _must_ lose her liberties, -and then she will be a greater slave than any of her neighbours.” - - - - -LECTURE XIX. - - _The King’s power as to the making, repealing, altering, or - dispensing with laws._ - - -Having, in the last lecture, begun to draw the outlines of a feudal -monarchy, particularly, as it antiently was in England, in order that it -may be more easy to understand the nature of our present constitution; -and to see how far, and in what particulars, it has deviated from its -original, either for the better, or the worse; and having, for that -purpose, begun with the regal prerogatives, and particularly with that -important one, the raising of money, it will be proper to proceed to -the king’s power as to the _laws_, either in the making, repealing, -altering, or dispensing with them: for these powers are now exercised by -the sovereigns in almost all the monarchies that were antiently feudal, -and have been claimed likewise in England. That this power could not -originally have been in the king, in any feudal state, is plain from the -detail I have given of the old German governments, and of the gradual -progress and formation of the European kingdoms from thence; and it would -not only be an entertaining, but useful study for gentlemen of fortune, -to trace, through the history of every nation, the several steps whereby -the liberties of the people have been undermined, until the whole power -hath settled in the monarch; but I shall content myself with a few -observations on this subject, drawn from the History of England, and such -as, in my apprehension, will be sufficient to settle this point as to us. - -If the monarchies on the continent were not absolute in this respect, -much less could the Saxon kings pretend to such a power, from the very -nature of the foundation of their kingdoms. The Franks, the Goths, the -Burgundians, and others on the continent, were led to conquest by those -who had been previously their kings, and who had a stable and settled -authority over them. Very different was the settlement of the Saxons -in Britain. Neither Hengist, nor any of their first kings, had been -kings in Germany. They were mere leaders of companies of freebooters, -who had associated themselves first for plunder, and afterwards to fix -themselves in new seats, in imitation of the other German nations. Their -leaders, therefore, could have no powers, but what were conferred upon -them by their followers; and that _law-making_ was not one of those -powers, appears from the frequent meetings of their _witenagemots_, which -was the name they gave to their general assemblies, or parliaments; and -from all the laws of theirs now extant being made in them. It was the -boast of the good and wise king Alfred, that “he left the people of -England as free as the internal thoughts of man,” a speech which could -never have proceeded from the mouth of one who had the least notion of -the almighty power of kings over the laws. His successors were of the -same opinion. The law of Edward the Confessor, which was ratified by the -Conqueror, says, _Debet rex omnia rite facere in regno, & per judicium -procerum regni_, and if _omnia_, surely the making and repealing of laws, -the most important of all[242]. - -Our historians and records from that time down undeniably shew who, -in every age, were the legislators, and that the kings alone were not -so. The same is expressly delivered by all the old writers on the law, -Glanville, Bracton, Britton, Fleta and Fortescue. Nay, some of them, in -their zeal for liberty, have gone so far, as to pervert the meaning of -the civil law, which, in their time, was in high repute, and to deny the -absolute power of legislation to the Roman emperor. The civil law says, -_Quod principi placet legis habet vigorem_; but how doth Bracton comment -upon it? _Id est non quicquid de voluntate regis temere præsumptum est, -sed animo condendi jura, sed quod consilio magistratuum suorum, rege -auctoritatem præstante, & habita super hoc deliberatione & tractatu, -recte fuerit definitum[243]._ - -It must, however, be owned that many of our princes were very desirous of -assuming this power. In the reign of our Henry the First, a perfect copy -of the civil law being discovered at Amalfi, the princes of Europe got an -idea of a monarchy more powerful and absolute than either kings or people -had for many centuries before any notion of; and they were, in general, -desirous enough to stretch, if they could, their limited prerogative to -the height of the antient imperial despotism; but to do this by their -own authority was impossible. A wiser way was pursued. The excellency -of this law was, on every occasion, extolled, not only as providing -remedies, and determining, in many cases, where the feudal customs were -silent, but on account also of its justice and equity; praises that, it -must be owned, do belong to this law where the absolute authority of -the prince is not concerned. Foundations for the teaching this law were -established in all the universities, and the proficients therein were -sure of ample encouragement[244]. - -The popes, likewise, who wanted to set themselves up in the seat of the -old emperors, contributed not a little, in those days of ignorance, -to spread it; so that it is not wonderful that it got ground in every -country almost on the continent; and being melted into, and conjoined -with the feudal, customs, contributed not a little to the destruction -of the freedom of the antient constitutions. The same method was -attempted in England, but not with the like success. The foundation of -professorships, the introducing that law, and its forms, into the courts -that were more immediately under the king’s influence, as the courts -of the constable, the admiral, and of the universities, and the high -employments its professors obtained, sufficiently shew the fondness -many of our kings had for it. But the common lawyers and parliament -perceived the design, and foresaw the consequences that might follow. -Their opposition was steady and successful; and if they did not banish it -from the courts wherein it had got footing, at least they so limited and -circumscribed it, as to prevent its future progress. - -The kings who had any wisdom or prudence, in order to dissemble their -real design, gave way to these restrictions, and waited for more -favourable opportunities; but the imprudent and haughty Richard the -Second avowed himself an open patron to this law. When the duke of -Ireland, the archbishop of York, and others his minions, were accused in -parliament of high treason, and the evidence being known to be so full as -that they must be convicted, he made this weak attempt to screen them. -He got his judges, who were his creatures, to declare the proceedings -against these persons null and void, as not being regulated according to -the forms prescribed by the civil law: but the barons, provoked at such -a bare-faced attempt, insisted they were regular, as agreeable to their -own customs, and declared positively they would never suffer England to -be governed by the Roman civil law, and passed sentence of high treason -against the judges[245]. - -Whence that king’s fondness for this law arose, may be seen from the -use he put it to, the protection of the instruments of his tyrannical -administration; and from the many wild and unguarded declarations he -made, especially that relative to his commons, _that slaves they were, -and slaves they should be_, and to his parliament, _that he would not at -their request discharge the meanest scullion in his kitchen_. But tho’ -this prince was pleased to say, that _the laws were in his breath, and -that he could make and unmake them at his pleasure_, he did not think the -time was come to put that vaunt in execution. He took, therefore, another -way of usurping the legislative power. Having gained over a majority of -the returning officers, and either intimidated or gained over the most -powerful of the nobility, he called the famous parliament at Shrewsbury, -after having nominated to the returning officers whom they should -return; and, as he expected, this parliament, if so it may be called, -was complaisant enough to compliment the king with his heart’s desire. -The former sentence against the judges was reversed, and consequently -the civil law set up as the standard in trials of treason. And they -indirectly transferred the whole legislative power to the sovereign in -the following manner. - -As there had been many petitions left unanswered, and many motions -undecided, they gave the power of deciding these, or other matters that -might arise before the next parliament, to the king, twelve peers, -and six commoners. For this committee, they chose such persons, the -majority of whom were at the devotion of the king, and gave him and the -majority power to fill up vacancies; thereby rendering the calling any -future parliament absolutely unnecessary. Thus was the constitution -subverted, and in its stead set up an _oligarchy_ in appearance, but in -truth an absolute monarchy. But as wisely and happily as Richard thought -he had conduced this affair, by which he supposed he had gained his -long wished-for end, neither the seeming authority of parliament, nor -the anathemas thundered in the pope’s bull against the contravenors, -could satisfy the people that they were not stripped of their ancient -rights, or that the king and his committee were rightful legislators. -What sentiments the nation entertained appears, from their deserting him -as one man, and following the first standard that was set up against -him[246]. - -Since the days of this unfortunate Richard, no king of England hath, -in open and express terms, assumed to himself singly the right of -legislation. Though James the First plainly claimed it, by implication, -in many of his speeches, particularly in those famous words of his, -_that as it was blasphemy for man to dispute what God might do in the -plenitude of his omnipotence, so was it sedition for subjects to dispute -what a king might do in the fulness of his power_. But it would be doing -injustice to the house of Stuart not to acknowledge that some of the -princes before them, particularly the Tudors, tho’ they did not pretend -to make laws, yet issued out many proclamations, or _acts of state_, as -they were afterwards called, to which they exacted the same unlimited -obedience as if they had been laws enacted by parliament. This is a point -worthy consideration; for if all proclamations, or acts of the king and -his council, require unlimited obedience, it is to little purpose whether -we call them laws or not, since such they are in effect. But this, I -think, will be pretty plain, if we make a proper distinction between -such proclamations, or acts of the king, as are particular exertions of -the executive power, which the law and constitution hath entrusted him -with, and such as, affecting the whole people, should in any wise alter, -diminish, or impair the rights they were before lawfully in possession of. - -To give some few instances of the first sort. The appointment of -magistrates, the proclaiming war or peace, the laying on embargoes, or -performance of quarantine, the ordering erection of beacons in times of -danger of an invasion, the granting of escheated or forfeited estates, -and many more, are the antient and undoubted prerogatives of the king -alone, and the subject who resists, or disobeys, in such cases, is as -much a _rebel_, or disobedient subject, as if these acts were exercised -by the whole legislature. But with respect to making general rules and -ordinances, affecting the previous rights of the people, the case is very -different. For if such were to be universally obeyed, it is equivalent -to saying, that subjects have, properly speaking, no rights at all, -but hold every thing at the will of the king; a speech which the most -despotic monarch in Europe would not venture to advance. - -However, I will not carry this so far as to deny that there may -cases happen wherein the king may have this right, and wherein his -proclamations and orders, even relating to such points, ought to be -obeyed. The cases, I mean, are those of a foreign invasion, or intestine -rebellion, when the danger is too imminent to attend the resolutions of -parliament. In such cases the constitution is, for a time, suspended -by external violence, and as _salus populi suprema lex est_, every man -is under an obligation to use his utmost endeavours to restore it, -and, consequently, obliged to obey him, to whom the constitution has -particularly entrusted that care. Instances of this kind did happen -during the confusions raised by the houses of York and Lancaster, and the -princes were accordingly obeyed. These precedents doubtless gave a handle -to their successors, who had no competitors to the throne, to exercise -the same power in more settled times. But this was used, at first, in a -cautious and sparing manner; and Henry the Eighth, who was a monarch as -unlikely to make undue condescensions to his people as ever lived, was -glad to derive it from the grant of parliament, that his proclamations -should have the force of laws, which was, in truth, giving into his hands -the legislative power for life[247]. - -His great successor, Elizabeth, carried this practice farther, and it -will be worth while to discover the reason why a people, in antient -times, so jealous of their privileges, should to the one prince -explicitly give up, and quietly suffer the other to usurp this power, -so essential to a limited constitution. And the cause I take to be the -critical state the nation stood in with respect to religion. The bulk -of the people, glad to be delivered from the yoke of papal tyranny, and -dreading its restoration, were willing to arm their princes with a power -sufficient to protect their religion from foreign and domestic enemies; -and about religion indeed, this power was at first principally exercised, -on the footing of the papal supremacy being transferred to the king. -Their end was attained: Papists and Puritans were both kept under, and -happy in the enjoyment of their religion, they did not consider the -consequences; that this very weapon might be used, by a prince of another -stamp, to root out the very religion they were so fond of, and that, by -admitting this exertion of power in a matter of so high consequence, it -would naturally be used in others that appeared of less[248]. - -This was what accordingly happened. Proclamations on other points -were issued; and monopolies in trade were introduced. All monopolies, -undoubtedly, were not destructive to trade. Where a new traffick has been -discovered, and one that requires a large expence, and is liable to many -hazards, it is very reasonable that the first undertakers should have the -trade for a time confined to them, that, by the prospect of extraordinary -profit, they may be encouraged to promote and settle that commerce on a -solid bottom. Such monopolies, instead of hurting, tend to the promotion -of traffick, and are not without similar instances in former times, I -mean the kings of England appointing the towns for the staple; and had -Elizabeth and James confined themselves to the erection of the Russia, -the Turky, and East India companies, and that for a limited term, their -conduct would have deserved the highest applause; but that was far from -being the case. Monopolies were introduced in the antient, the most -common and most necessary commodities, to the great impoverishment of the -nation by the advance of prices. - -At first it may seem strange that the wise Elizabeth, who, on all -occasions, seemed to have her people’s wealth and ease at heart, should -follow so destructive a course. But the great end of all her actions was -the securing herself on the throne, and one of the principal means she -used for that end, was the asking money from her people as seldom as -possible. Hence proceeded the long leases of the crown lands, at small -rents and large fines, and hence all the monopolies, which she sold to -the undertakers; but better had it been for her subjects, to have raised -the sums she wanted by an additional subsidy, or an easy tax, than to pay -to the monopolists what they had advanced, with their exorbitant profits -besides. What Elizabeth began out of policy, James continued, to supply -his profusion, to such an extraordinary degree, as disgusted his people, -provoked his parliament, and at last made himself ashamed, insomuch that -he revoked above twenty. And now no monopoly can be raised but by act of -parliament, except in case of a new invention, and that but for a short -term of years[249]. - -I come now to the _dispensing power_, another prerogative which the -Stuarts claimed, and which cost the last of them the throne. As no state -can subsist without mercy as well as justice, the king hath the power -of distributing this mercy, and exempting a convicted criminal from the -penalty of the law, but this is only where the conviction is at his -suit; thus the king can pardon a murderer convicted on an indictment -in the king’s name, but if he was convicted on an _appeal_ by the next -relation, the king cannot. The pardon belongs to the appellant. But there -is a wide difference between a _pardon_, that is remission of punishment -after the fact, and _dispensing_, which is giving a previous licence -to break the law. A general dispensation is, in fact, a repeal, and a -particular one is a repeal _quod hunc_, and therefore can belong only -to the legislature. The Roman emperors, and the popes, as legislators, -assumed this power, and Henry the Third, an apt pupil of his lord and -master the pope, introduced the practice into England. In his reign a -patent, with a _non obstante_ to any law whatsoever, was produced into -court before Roger de Thurkeby, and this honest judge was astonished -at the innovation, as Matthew Paris tells us in these words: _Quod cum -comperisset, ab alto ducens suspicia de prædictæ adjectionis appositione, -dixit, heu, heu hos utquid dies expectavimus, ecce, jam civilis curia -exemplo ecclesiasticæ, conquinatur, & a sulphureo fonte rivulus -intoxicatur_[250]. - - - - -LECTURE XX. - - _Lords of Parliament or Peers—Earls and Barons—The earlier - state of Baronies in England—The Barones majores & - minores—Barons by writ and by letters patent—The different - ranks of Nobility._ - - -Next in rank to the king are the _lords_, that held immediately of him by -military service, as long as that species of tenure subsisted; and whom, -from their privilege of sitting in parliament in their own rights, are -frequently called _Lords of Parliament_, and in common speech are called -_Peers_, though that word properly signifies any _co-vassals_ to the same -lord. Thus every immediate vassal of a baron are peers of that barony, -and the accurate description of the great personages I am speaking of -is _Pares Regni_. Of these there were, antiently, two ranks only, in -England, _Earls_ and _Barons_. Indeed, abroad also, to speak properly, -there were but two likewise: for there was no difference in power and -privilege between the _dukes_ and _counts_, or _earls_. But as every earl -is a baron, and something more, and as it is a maxim of our law, that -every lord of parliament sits there by virtue of his barony, it will, in -the first place, be necessary to see what a baron is. - -The word _baron_ of itself originally, did not, more than peer, signify -an immediate vassal of the king; for earls palatine had their barons, -that is, their immediate tenants; and, in old records, the citizens of -London are stiled barons, and so are the representatives of the cinque -ports called to this day. Baron, therefore, at first signified only -the immediate tenant of that superior whose baron he is said to be, -but by length of time it became restrained to those who, properly and -exactly speaking, were _barones regis & regni_, and even not to all of -these, but to such only as had manors and courts therein. For though, -by the principles of the feudal constitutions, every immediate military -tenant of the crown, however small his holding, was obliged to assist -the king with his advice, and entitled likewise to give or refuse his -assent to any new law or subsidy, that is, to attend in parliament. -This attendance was too heavy and burthensome upon such as had only one -or two knights fees, and could not be complied with without their ruin. -Hence arose the omission of issuing writs to such, and which, being for -their ease, they acquiesced in, attendance in parliament being considered -at that time as a burthen. Thus they lost that right they were entitled -to by the nature of their tenure, until the method was found out of -admitting them by representation. Hence arose the distinction between -_tenants by barony_, and _tenants by knight service in capite_ of the -king. The former were such military tenants of the king, as had estates -so considerable as qualified them, without inconvenience, to attend in -parliament, and who were therefore entitled to be summoned. The _quantum_ -of this estate was regularly thirteen knights fees and one third, as -that of a count or earl was twenty; that is, as a knight’s fee was then -reckoned at twenty pounds _per annum_, the baron’s revenue was four -hundred marks, or two hundred sixty-six pounds thirteen shilling and -four-pence, and the earl’s four hundred pounds, answering in value of -money at present to about two thousand six hundred, and four thousand -pounds yearly[251]. - -Such was the nature of all the baronies of England for about two hundred -years after the conquest; and they are called _baronies by tenure_, -because the dignity and privileges were annexed to the lands they held; -and if these were alienated with the consent of the king (for without -that they could not) the barony went over to the alienée. The manner of -creating these barons was by investiture, that is, by arraying them with -a robe of state, and a cap of honour, and girding on a sword, as the -symbols of their dignity. Of these Matthew Paris tells us there were two -hundred and fifty in the time of Henry the Third, and while they stood -purely on this footing, it was not in the king’s power to encrease the -number of the baronies, though of barons perhaps he might. For as William -the Conqueror was obliged to gratify several of his great officers -according to the number of men they brought, with two or more baronies, -whenever these fell into the hands of the crown by escheat, either for -want of heirs, or by forfeiture, it was in the king’s power, and was his -interest, to divide them into separate hands. The same thing likewise -happened, when, by an intermarriage with an heiress, more baronies than -one came into the hands of a nobleman, and escheated to the crown[252]. - -But the number of these feudal baronies could not, strictly or properly -speaking, be encreased by the king; for they could be created only out of -lands, and there were no lands vacant to create new ones out of, for the -king’s demesnes were, in those days, unalienable. However, we find, at -the end of Henry the Third’s reign, and even in John’s, that the number -of baronies were actually encreased, and a distinction made between the -_barones majores_, and _minores_. The _majores_ were those who stood upon -the old footing of William, and had lands sufficient in law, namely, the -number of knights fees requisite. The _minores_ were such as held by part -of a barony; as when an old barony descended to, and was divided among -sisters; in which case, when the husband of the sister whom the king -pleased to name, was the baron of parliament; or else were newly carved -out of the old baronies that had fallen in by escheat; as supposing the -king had granted six knights fees of an old barony to one, to hold with -all the burthens, and to do the service of an entire barony, and the -remaining seven and one third to another, on the same terms. But the -attendance of these minor barons also, at length became too burthensom -for their circumstances, and many of them were glad to be excused. The -kings took then the power of passing by such as they thought unable, by -not sending them writs of summons, and John extended his prerogative even -to omit summoning such of the _majores_ as he imagined were inclined to -oppose him. This however at length he was obliged to give up: For in his -Magna Charta it is said, _Ad habendum commune consilium regni faciemus -summoneri archiepiscopos, episcopos, abbates, commites, & majores barones -regni sigillatim, per literas nostras_[253]. - -The _barones majores_ were then fully and plainly distinguished from -the _minores_, and I think it will not be doubted they were such as had -the full complement of knights fees that made up an antient barony; -and, accordingly, we find in 1255, when Henry the Third had neglected -summoning some of these, the others refused to enter on any business, -_Quia omnes, tunc temporis, non fuerunt, juxta tenorem Magnæ Chartæ suæ, -vocati, et ideo, sine paribus suis, tunc absentibus, nullum voluerunt -tunc responsum dare, vel auxilium concedere vel prestare_. No king since, -ever omitted to summon all the greater nobility, until Charles the First -was prevailed upon to forbid the sending a writ to the Earl of Bristol by -Buckingham, who was afraid of being accused by that nobleman; but on the -application of the house of lords, and their adjourning themselves from -day to day, and doing no business, the writ at last was issued. - -In the reign of Henry the Third also, the king’s prerogative of summoning -or omitting the lesser barons was likewise ascertained by an act of -parliament since lost, as we find by these words from history: _Ille -enim rex (scilicet Henricus Tertius) post magnas perturbationes, & -enormes vexationes inter ipsum regem, Simonem de Morteforti, & alios -barones, motas & sopitas, statuit & ordinavit, quod omnes illi commites & -barones regni Angliæ, quibus ipse rex dignatus est brevia summonitionis -dirigere, venirent ad parlamentum suum; & non alii nisi, forte, dominus -rex alia illa brevia illis dirigere voluisset_[254]. And from henceforth -no nobleman could sit in parliament without a writ. But there was this -difference between the greater and the lesser barons, that the former had -a right to their writ _ex debito justitiæ_, to the latter it was a matter -of favour; but when summoned, they, being really barons, had the same -rights with the rest, though sitting, not by any inherent title, but by -virtue of the writ. The other lesser barons, who were generally omitted -to be summoned, by degrees mixed with the other kings tenants in capite, -and were thenceforth represented by the knights of the shires[255]. - -But these baronies by tenure being long since worn out among the laity, -it is proper to proceed to the two ways now in being of creating peers, -by _writ_, and by _letters patent_. It is the lord Coke’s opinion, and -in this he has been followed ever since, that a writ to any man, baron, -or no baron, to sit in parliament, if once he hath taken his seat in -pursuance thereof, gains a barony to him and the heirs of his body. And -though the law, principally on the authority of that great lawyer, is -now so settled, certainly it is comparatively but a novel opinion, and -very ill to be supported by reason. The words of the writ are, _Rex tali -salutem, quia de advisamento & assensu concilii nostri, pro quibusdam -arduis & urgentibus negotiis statum & defensionem regni nostri Angliæ -contingentibus, quoddam parlamentum nostrum apud Westmonast. tali die, -talis mensis, proximo futuro teneri ordinavimus, & ibidem vobiscum, ac -cum prelatis magnatibus & proceribus dicti regni nostri, colloquium -habere & tractatum; vobis in fide & ligeantia quibus nobis tenemini, -firmiter injungendo mandamus, quod consideratis dictorum negotiorum -auctoritate & periculis imminentibus, cessante excusatione quacunque, -dictis die & loco personaliter intersitis nobiscum, ac cum prelatis -magnatibus & proceribus super dictis negotiis tractaturi, vestrumque -consilium impensuri, & hoc sicut nos, & honorem nostrum, ac expeditionem -negotiorum prædictorum diligitis, nullatenus omittatis_[256]. - -That this writ must be obeyed, there is no doubt, for every subject is, -by his allegiance, obliged to assist the king with faithful counsel: But -what right the party summoned acquired thereby is the question. The words -are not only personal to him, but restricted likewise to a particular -place and time; and accordingly, in antient times, we find many persons -summoned to one parliament, omitted in the next, and summoned perhaps to -the third. There is not a word therein that hints at giving the least -right to an heir; and what reason can be assigned why a man, by this -writ, should gain an estate of inheritance in a peerage, when, in letters -patents, it is admitted that he gains only an estate for life, without -the word _heirs_. That antiently there was no such notion appears from -the summons to parliament, where frequently we find the grandfather -summoned, the father passed by, and the grandson afterwards summoned: -Nay, in the rolls there are instances of ninety-eight persons being -summoned a single time only, and neither themselves, nor any of their -posterity, ever taken notice of afterwards. Or, if we were to allow -that this writ created an inheritance, what reason can be given why it -should be an estate tail only, and be confined to the heirs of the body, -and not, as all other new inheritances, created generally, go to the -collateral heirs? - -But, in order to discover plainly what privileges persons so called -by writ, had, or could obtain in those times, it will be proper to -distinguish them into three kinds of persons. First, then, they were -either some of the _minores barones by tenure_; and these, when called, -had certainly all the privileges of the greater; or else they were -not barons at all, but plain knights or gentlemen; and, with respect -to these, it is plain they had a right to deliberate, debate, and -advise. But the better opinion is, they had no right to vote, but were -assistants and advisers only, as the judges are at present; for it is -absurd to suppose that, in those times, when the commons were low, and -inconsiderable, and the barons were more powerful than the crown, these -latter should suffer their resolutions to be over-ruled at the pleasure -of the king, by his calling in such numbers as we find he often did, -which must have been the case, if all he summoned had votes. But these -two kinds of persons gained by their writ, or sitting in consequence -of it, originally, no farther right than to be present at that time. -However, by many of these persons and their heirs having been constantly -summoned, especially since Henry the Seventh’s reign, and the ancient -practice of omitting any who had been very frequently so, going into -disuse, the distinction between the greater and the lesser barons was -forgot, and that opinion prevailed which my lord Coke had adopted, and -which is now the law, that a man, having once sat in parliament in -pursuance of the king’s writ, acquires thereby an estate tail to him and -the heirs of his body[257]. - -There were yet another kind of persons, not peers, that might be summoned -by writ. These were the eldest sons of peers, to whom the father’s -barony must descend; and in such case, if the heir was called by the -name of a barony that was in his father, he was a baron to all intents -and purposes. But it seems very plain, that this was not a new creation -of a barony; for in that case the son so called should have been the -lowest peer, whereas the practice is the contrary. The eldest son of the -duke of Norfolk, called by the title of lord Mowbray, sat first baron, -because that barony of his father’s is the antientest in England. It -seems, therefore, that this was considered as a transfer of the antient -barony by the joint consent of the father and king, and the father still -continues to sit by the remaining peerage in him. Accordingly we find no -instance of a baron’s son sitting on such a summons, unless the father -had another barony by which he might sit. If the father indeed had a -higher title, that has been reckoned sufficient to support his seat, -though his only barony was transferred to the son. This then being no new -creation, but a temporary transfer only of an old peerage, it should -seem, that this title, when once merged in the greater by the father’s -death, should go according to the old limitation; but of late we find -them considered as new creations. On the death of the late earl of Derby, -Sir Edward Stanley, his sixth cousin, succeeded, and sits in parliament -as baron Strange, by Henry the Seventh’s creation; but an elder son of -a former earl of Derby, having been called by writ while his father was -living, the Duke of Athol, as his heir by the female line, sits by the -same title of baron Strange of king Charles the First’s creation. - -The descent of these two kinds of baronies are directed by the rules -of the descent of other inheritances at common law, and consequently -females are capable of succession, but with two exceptions; first, that -half blood is no impediment, and consequently the half brother excludes -the sister; secondly, that the honour is not divisible, and therefore, -if there be two or more sisters, heiresses, the title is _in abeyance_, -that is, is suspended, until the king makes choice of one of them and her -heirs; though by constant usage the law seems to be verging fast to a -constant descent to the eldest[258]. - -The third method of creating peers is by _letters patent_, which is the -most usual, and esteemed the most advantageous way; because a peerage is -thereby created, though the new nobleman hath never taken his seat, which -is not the case of a barony by writ. As to the manner of these creations, -there has a notable difference intervened since the accession of Henry -the Seventh from what was the practice before Richard the Second. In his -eleventh year began this method of creating by patent, in favour of John -de Beauchamp, who, though summoned, never sat there, but was attainted -by the next parliament, and afterwards executed. But, the attainder -out of the case, his patent in law could never have been deemed valid, -because Michael de la Pole was the lord chancellor who affixed the seal -to it, which had been before taken from him by act of parliament, and -he declared incapable of ever having it again. This, then, was a single -and ineffectual attempt of that weak prince to create a new peer without -the assent of parliament, which was the usual way, above thirty having -been made so in that very reign. His successors were too wise to follow -this example; for every barony newly created, till the union of the -roses, which were about fourteen, were, every one of them, as appears on -the face of the patents, by authority of parliament, if we except two -or three; and even these, on a close examination, will appear not to be -new baronies, but _regrants_ of old feudal baronies by tenure, which, -undoubtedly, were all in the sole disposition of the king[259]. - -But Henry the Seventh, having trodden down all opposition, was fortunate -enough to carry the point Richard had vainly attempted, and acquired -for his successors that prerogative which they have since enjoyed, of -creating peers at pleasure. The descent of these titles, created by -patent, is directed by the words of the creation. If heirs are not -mentioned, it is only an estate for life; if to a man and heirs of his -body, females are not excluded, but the general way is, to the heirs -male of the body of the grantée, perhaps, with remainders over, and they -descend as other estates entailed. The case of the dutchy of Somerset was -singular. Edward Seymour having sons by two venters, was created duke of -Somerset, and his heirs male of his second marriage, remainder to his -heirs male by his first. This title continued near two hundred years in -the younger branch, until, upon its failure in the late duke of Somerset, -Sir Edward Seymour, the present duke, the heir by the prior marriage, -succeeded by virtue of the remainder. - -In the case of lord Purbeck, in Charles the Second’s reign, it was -controverted whether a title could be extinguished, for as lord Purbeck -had surrendered his honour by fine to the king, and there it was -determined, and so the law now stands, contrary to many precedents that -were produced, that the title is inherent in the blood, and while that -remains uncorrupted, can by no means be extinguished by surrender or -otherwise, and this, generally, whether the peerage be created by patent -or by writ; for Purbeck’s was by writ. In case of a patent where the -dignity is expressly entailed, it is surely as reasonable that it should -be impossible for the possessor to destroy the entail, as in an estate -tail of land, created by the king, and yet in old times there had been -many instances to the contrary. I shall mention but two that happened in -this kingdom. - -Sir Thomas Butler was created baron Cahir by Henry the Eighth to his -heirs general. His heirs male failed in his son Edmond, the second baron, -and his nephew, Sir Theobald, was, in 1683, by queen Elizabeth created -baron Cahir; but it being found that Sir Thomas left daughters, to one -of whom the title ought to have been assigned by the queen, one of them, -and the heir of the other, who was dead in 1685, bargained, sold, and -released to Sir Theobald and his assigns, their right and title to the -said honour. The other was the case of the honour of Kingsale. Charles -the First, apprehending the barony of Kingsale to be extinguished by -attainder, created Sir Dominick Sarsfield viscount Kingsale, but, upon -lord Kingsale’s petition, and proof made by him that his barony still -subsisted, it was ordered that Sarsfield should surrender his viscounty -of Kingsale, and be treated viscount of Kilmallock, with his former -precedence, which was accordingly done. - -These two instances were, indeed, of a particular nature, and calculated -to rectify grants that had arisen from error; but in England there were, -in ancient times, many instances of such surrenders without error. They -were, indeed, generally made in order to obtain higher titles; and -therefore it is no wonder they passed _sub silentio_, and were never -disputed. But as to the old baronies by tenure that were annexed to -land, nothing is clearer than that, by the king’s consent, they might -be aliened or surrendered, notable instances of which happened in the -reign of Henry the Third. Andrew Giffard, baron of Pomfret, surrendered -to the king; and Simon de Montfort, a nobleman of large possessions in -France, had two sons by the heiress of the earldom of Leicester, in whose -right he was earl of Leicester, and, having a mind to settle his second -son in England, assigned the earldom over to him, as Selden says; or, -which comes to the same thing (for the eldest son was equally defeated) -surrendered it to the king, who granted it to the second, according to -Camden. - -All noblemen are equally so, and, therefore, each others peers; but they -differ in rank and precedence. The ranks are five; _dukes_, _marquisses_, -_earls_, _viscounts_, _barons_. The first duke was created by Edward the -Third; the first marquiss, by Richard II.; the first viscount, by Henry -the Sixth. Though their dignities are now personal, and annexed to the -blood, yet as they were originally annexed to land, so much of the old -form remains, that, in their creation, they must be named from some place -in some county; though I do not apprehend it to be material at this day, -whether there really be such a place or not. With respect to the raising -a lord from a lower degree of dignity to a higher, I should observe, -that long before Henry the Seventh’s time, the king had the right solely -in himself, though it was frequently done in parliament; for this was -not adding to the number of the peers, but an exertion of the ancient -prerogative of his settling precedence according to his pleasure. This -continued in England till Henry the Eighth, by act of parliament, settled -it according to antiency, and it still continues in Ireland, though it -has not been exerted since Henry the Seventh’s time, when lord Kingsale, -a Yorkist, was obliged to change places with lord Athenry, a Lancastrian, -and from first became the second baron, which hath continued his rank, -till lately, that Athenry was created an earl[260]. - - - - -LECTURE XXI. - - _Earls or Counts as distinguished from Barons—The office of - Counts—Their condition after the conquest—Counties Palatine in - England—Counties Palatine in Ireland—Spiritual Peers—The trials - of Noblemen._ - - -In my last lecture I treated of baronies, which are the lowest rank -of peerage, and of the right whereby this class of nobles sits in the -great council of the nation, and also of the various methods that have -prevailed in different ages of creating them; but before I have done with -the higher nobility, it will be necessary to say something of _earls_ or -_counts_ as distinguished from barons; for they differ from them, not -only in having a greater number of knights fees, and consequently having -a greater revenue, but in possessing also a more extensive jurisdiction. -The institution of _counts_, I observed in a former lecture, wherein -I treated of the progress of the feudal law, was not, originally, a -part of the feudal policy. They were, indeed, always chosen out of the -king’s companions, who resided in his house, and were therefore called -_comites_, but they were not set to preside over Germans, who were the -conquerors, but over such of the old inhabitants, Romans or Gauls, who -by a voluntary submission had retained their freedom, and who in every -respect, except bearing a share in the legislature or government, were on -an equal footing with the conquerors[261]. - -The office of these counts was threefold, to judge these freemen in -peace, to conduct them in war, to manage the king’s demesnes in their -respective districts, and to account with him for them and the profits -of his courts of justice; which were very considerable when all offences -were punished by fines. At the beginning they were temporary officers, -but they soon became fixed for life, and at length, towards the latter -end of the second, and in the beginning of the third race in France, -they got, through the weakness of the crown, estates in fee in their -counties; and either by grants of the kings, or by usurpation, converted -the profits they before accounted for to the crown, for their own use, -and held their courts in their own name. In short, they became petty -sovereigns, paying only homage, and the usual services of ward, marriage, -and relief to their supreme lord; and as such they coined money, levied -war against their neighbours, nay frequently against the king himself; -until Lewis the Eleventh found the means of humbling them, and brought -the crown out of tutelage, as the French express it[262]. - -The present state of Germany is an exact representation of what the -French and the other continental monarchies were in those days, except -that the kings had large countries, and multitudes of vassals immediately -subject to them; whereas the emperor hath now none. But in England -these lords, tho’ very powerful, never ascended to such a pinnacle of -grandeur. Their first constitution here we must refer to the time of the -division of England into counties, to which they had a reference, which -is generally ascribed to Alfred. Their power and office was exactly the -same with the counts on the continent in those early times, namely, to -judge and lead the freemen to war. For the greatest part of the lands of -England were at that time allodial, as is proved by Spelman, contrary to -the opinion of Sir Edward Coke; although, with him, it must be allowed, -that there were fiefs also before the Conquest, and that they were not -all introduced at that period. Till that time their office was only for -life, and they were known by various names, as _duces_, _comites_, and -_consules_ in Latin, _ealdermen_ in Saxon, and _earls_ in the Danish -tongue[263]. - -But William, having turned all the lands into feudal, was obliged to -put his earls on the same footing, that those on the continent were -in his time, and consequently to make them hereditary. However he and -his successors were careful not to give them such extensive powers -and revenues as they had abroad. The county courts were held in the -king’s name, neither were the earls allowed the whole profits of them, -two-thirds of them being reserved to the king; and in appearance to -ease them, who were often obliged to attend in council or in war, but -in reality to prevent the king’s being defrauded, and to prevent the -too great influence which their judging in person might acquire to them -in their districts, officers chosen by the people, and approved by the -king, were substituted to administer justice under the names of _vice -comites_, or sheriffs; these were to pay to the king the two-thirds, and -to the earl his third of the profits, which was in those times looked -upon as so incident to an earldom, as to pass with it, although express -words were wanting; so that in those times an earl and a county were -correlatives[264]. - -Each earl took his title from some one county, and the number of the one -could not exceed that of the other. King John, however, altered their -nature in some measure, and his example has been followed in depriving -the earl of the thirds of the county profits; for he created Henry de -Bohun earl of Hereford, and granted to him twenty pounds yearly, to be -received out of the third penny of the county in lieu thereof. But it is -plain that the justice and success of this invention was doubted of at -first, for John took a collateral security from the earl, that he should -never in his earldom claim any more than the twenty pounds expressly -granted him. These sums, so granted, are called _creation money_, and -were formerly expressly granted out of the third penny of the county; but -of late have been made payable at the Exchequer. Such was the nature of -the ancient earldoms that were by tenure, and had reference to counties. -The modern ones, that are merely honorary, and go with the blood, were -first made in parliament. Afterwards the king was allowed, by his sole -authority, to advance a baron to a higher rank; for that was not adding -to the number of the peers; but the creation of a bare gentleman a -peer at once hath only been practised since the accession of Henry the -Seventh[265]. - -Before I quit this head of earldoms, it will be proper to say somewhat -about _counties palatine_ which had extraordinary privileges, like -unto the counties and duchies abroad. The first was that of Chester, -erected by the Conqueror, in favour of his nephew Hugh Lupus, in these -words: _Totumque hunc comitatum tenendum sibi & hæredibus, ita libere ad -gladium, sicut ipse rex tenet Angliam ad coronam_. The effect of this -creation was to have _jura regalia_; for the earl palatine might pardon -treason, murder, and other offences, might make justices of assize, gaol -delivery, and of the peace; might create barons of his county palatine, -and confer knighthood. They had likewise all forfeitures, that arose by -the common law, or by any prior statute; but forfeitures arising from -statute, made after the erection of the county palatine, belonged to the -king. They had courts as the king had at Westminster, and out of their -chancery issued all writs, original and judicial. Neither did the king’s -writs run within the county palatine, except writs of error, which were -in the nature of appeals, or in cases where, otherwise, there would be -a failure of justice. All manner of indictments and processes were made -in the name, and every trespass was laid to be done against the peace of -him that had the county palatine. But these and some other privileges -have been taken away, and annexed to the crown, in whose name they must -now be; but the _teste_ of the writs is still in the name of the earl -palatine[266]. - -Of these counties palatine there are now in England four, Lancaster -united to the crown, Chester to the principality of Wales; Durham and -Ely, each belonging to the bishop of the place; but the privileges of -these two are going fast into disuse. But in this kingdom, (Ireland) for -the encouragement of adventurers, the whole country, as fast as it could -be reduced, was erected into palatinates, and very little, except the -cities, retained in the king’s hand. The making so many great lords, who -had frequent quarrels with each other, and that at such a distance from -the seat of government, was one great occasion of the slowness of the -settlement of the kingdom. For, to strengthen themselves, such of them -as resided here attached the natives to them, and taught them the use of -arms, and others that dwelt in England entirely neglected to send hither -any defence, so that, by the end of Edward the Third’s time, the Irish -had repossessed themselves of almost the whole kingdom, if we except five -or six counties; whereas in John’s reign they held not above half, and -that under homage and tribute, either to the king, or the lords, who had -grants from him. - -I shall give a short detail of these palatinates, and an account of the -manner of their distinguishment. The present county of Gallway, under -the name of the county of Cannaught, was a palatinate in the De Burghs; -as was Ulster, first in De Courcy, then in De Lacy; and these two were -united by De Burgh’s marriage with Lacy’s daughter, and afterwards -descended to Lionel of Clarence’s daughter, who married the earl of -March, and, in the person of Edward the Fourth, merged in the crown. -In the same prince, likewise, merged that of Meath, which, being in -another branch of the Lacy’s, was divided into the eastern and western -between two daughters. The former came by descent to the house of March, -and so to Edward the Fourth. Strongbow had the grant of Leinster as a -Palatinate, which at length was divided into five distinct ones between -his grand-daughters, who being married to English noblemen, took no care -for the defence of the country, their titles, estates, and Jura Regalia -were taken from them by act of parliament, under Henry the Eighth. - -Kildare, being in the hands of the earl of that name, escaped for a -little time, until he was attainted under the same king, where it ended; -for though his heir was restored to the title and estate by queen Mary, -it was with an express exception of the palatinate. The kingdom of Cork, -containing that county and the south of Kerry, was another palatinate, -granted to Fitz Stephen and Cogan, who made partition between them; and -on Fitz Stephen’s death without issue, his part escheated to the crown. -Cogan’s share should have gone to the Courcey’s and Carens, but they -could never obtain the possession of it; for the earl of Desmond got the -estate by purchase from a Cogan who pretended a right, and held it; so -this share of the palatinate fell likewise into disuse. Desmond, indeed, -had interest enough to get a new palatinate created for himself in the -county of Kerry, called Desmond, which for repeated rebellions was justly -forefeited to queen Elizabeth. - -Edward the Third erected the palatinate of Tipperary in favour of the -earl of Ormond, who was grandson to Edward the First, which continued in -that family, with some interruptions, until the attainder of the late -duke in 1715. Thus by degrees the crown regained the power it had parted -with, and was at length enabled, though with difficulty, to reduce the -whole kingdom, which had been well nigh lost by means of such profuse -grants. - -Besides the temporal peers, there are spiritual ones, that is the -bishops, and, they have seats in parliament, which antiently many -abbots also enjoyed. The original of this right was from the feudal -customs. The priests of the Germans, while they continued pagans, were -necessary attendants in their general assemblies, not only for advice, -but the benefit of their prayers and divinations. When these nations -embraced Christianity, they transferred the same veneration and honour -to their new instructors and bishops; and sometimes other churchmen of -eminence, though they held lands not by military tenure, but by what is -called _free alms_, were, in every nation as well as England, members -of the states of parliaments. But since the conquest they have begun to -sit by another right, namely by their baronies; the conqueror having -converted their estates in free alms into baronies, and to their great -mortification, subjected them to military service[267]. - -Upon this head several questions have been propounded, as how far they -are lords of parliament, and whether the clergy are a third estate of -the realm, and sit solely in that right. This is a question of some -importance, because if they make a distinct estate, no law would be good -to which the majority of them did not consent. Certain it is that in -France, the clergy made one estate, the nobility the second, the burghers -the third; and in Sweden the peasants make the fourth, all sitting in -distinct houses, the majority of each of which must concur. And therefore -I do believe, that when, in England, we talk of _three estates_, the -clergy, not the bishops alone, make one of them, contrary to the modern -opinion, that the king is the first estate, and the bishops and the -nobility the second; for the king is in no country reckoned one of the -estates, but the head of all. However from this no argument can be drawn -that the bishops should sit separately, or that a majority of them, as -representing the clergy, should concur. - -As to sitting separately, it is pretty clear that, by the old law, -none were members of parliament, but the immediate military tenants of -the king, and that they sat all in one house, however their titles and -fortune might differ; being all equal as to rank, with respect to the -king, and all having the same rights. The division of parliament into two -houses was never known in Scotland, who, in all probability, modelled -their constitution from their neighbours; nor doth it appear in England -previous to Edward the First, but arose, probably, from the great barons -disdaining to sit, as equals with citizens and burgesses. For even, after -this time, they did not disdain to associate with the knights of the -shires, who represented the minor barons, and other military tenants, as -appears by many instances. But for a number of centuries past the gentry, -which were formerly considered as a lower noblesse, and are so abroad, -have been melted into one body with the other commoners[268]. - -If then there was originally but one house, and if, since the division, -the bishops have constantly sat in the house of peers, there can be no -pretence for any privilege for them more than for the body of barons or -earls. It is urged, likewise, that several valid acts of parliament were -passed without any bishop present; but this happened only in distracted -times; and, whoever might think it prudent or proper to absent themselves -at a particular season, it will hardly be said to be a good parliament -when they were not summoned; and if, at any time, they refused to attend, -there was no reason why the public business should stop, as they sat, not -as an independent constituent part of parliament, but each distinctly -for himself, in right of his barony. From these occasional and general -absences of theirs, an opinion grew up by degrees, and now is established -law, that there is a material difference between bishops and lay lords, -in respect to their nobility. In truth, that they are not peers to each -other, and consequently that a bishop cannot sit in judgment on the life -of a peer, neither is he to be tried by the peers, but by a jury of -commoners. - -It is worth while to see how these opinions grew up; for, from the -original constitution, every bishop, being a baron by tenure, and having -a fee simple therein, had certainly as great right as other barons; but -the canon law having forbid any ecclesiastics being concerned in matters -of blood, and they being obliged by the common law to attend judgments -in parliament, were in a great streight between the two laws, how to act -when a peer was capitally accused. They at length obtained from Henry -the Second in the constitutions of Clarendon, the following allowance: -_Et sicut cæteri barones debent interesse judiciis curiæ, regis quousque -perveniatur ad diminutionem membrorum, vel ad mortem_; where the last -words are plainly an exception in their favour, in derogation to the -common law, on account of their peculiar circumstances under the canon. -However, as many questions might arise before it came to the last vote, -that might intirely influence the final determination, they used to -absent themselves totally, and this going on for ages, and the feudal -baronies wearing out, and all titles becoming fixed to the blood, -not to the land, they came to be considered as peers of a different -nature, because their blood did not succeed, and that which was first a -favourable permission, was construed a prohibition; and when this was -once established, it followed necessarily, that, not being peers to the -nobility by blood, they must be tried by commoners[269]. - -With respect to the trials of noblemen, now I have said so much on that -head, I shall observe, they were carried on in two different methods. -Either the accused person was tried in parliament, and then all the -temporal lords had voices, or he was tried by a jury of peers; that is -the king appointed twenty-four noblemen for that purpose: A law that has -proved fatal to many noblemen, who happened to fall under the displeasure -of the court. A commoner hath a right to prevent the sheriffs returning -a jury to try him, if he can shew a just exception to the sheriff; and -after the return is made, he can challenge a certain number for causes -known only to himself, and as many more as he can prove sufficient matter -of exception to. Such care did the law take of the lives of the commons, -but no exception lay for a peer to the king’s return. The law would not -suppose the least partiality in him, even in his own cause; neither would -it suspect that a peer could be biassed by any consideration from doing -strict justice, and therefore no challenge lay against him for any cause, -however strong and notorious; and the same confidence is the reason why -they give their votes, guilty or not guilty, not upon their oaths, but -upon their honours. - -I can scarce imagine that this method of trial could have prevailed in -the times of the great power of the barons, when they often made the -crown to totter; neither have I been able to discover its beginning. -Certain it is that, in the reigns of the Plantagenets most, if not all -noblemen, were tried in full parliament; and as certain it is, that, -during the reigns of the Tudors and Stuarts, the other was universally -followed; insomuch that every nobleman was sure either to suffer or -escape, according as the court was at that time affected towards him. -At length, after many struggles, about 1695, the bill for regulating -trials for high treason and misprision of treason was passed; one clause -of which provides, that on the trial of peers, every lord who hath a -right to vote in parliament, shall be summoned, and have a right to -vote. Thus was the inconvenience attending the king’s naming the jury -remedied; but the law in the other point stands as before, that no peer -can be challenged. According to this law have all trials of Irish peers -proceeded since that time, though there is no act for that purpose in -this kingdom[270]. - - - - -LECTURE XXII. - - _The share of the Commons in the Legislature—The Armigeri or - Gentry—Knights Bannerets—The nature of Knighthood altered - in the reign of James I.—Knights Baronets—Citizens and - Burghers—The advancement of the power and reputation of the - Commons._ - - -Having given a general idea of the lords, and their share of the -legislature, it will now be proper to descend, and see the several -classes of the lower rank, called _Commons_, and to examine what share -or influence they had formerly, or now enjoy, in the government. The -commoners may, in general, then, be divided into the _lesser nobility_, -or _gentry_, and the others, whom, for distinction sake, I shall call -the _lower commons_. For although, since the reign of Henry the Eighth, -many men of the best families, and some descended from the nobility, -have engaged in commerce, and thereby brought lustre to that order of -men, before that time all persons engaged in trade were held in as much -contempt by the gentry of England, as they are at present, by those of -any nation; and a gentleman who employed himself in hunting, or perhaps -serving the king, or some great lord, was looked upon to have degraded -himself. - -The gentry were called _Armigeri_, because they fought on horseback, -in compleat armour, covered from head to foot; whereas the infantry’s -defensive arms were of a slighter kind, and no compleat covering. But we -are not to imagine that all who fought on horseback compleatly armed, -were gentry; for, in order to compleat their squadrons, men of the lower -ranks, who, by their strength of body, and military skill, were capable -of service, were admitted, but this did not make them gentlemen. Hence, -in our old histories, we find the _knights and esquires_, that is, the -real gentry, carefully distinguished from the _men at arms_. The peculiar -privilege of the gentry was the bearing on their shields certain marks, -to distinguish them from each other, and the men at arms called _Coats -of Arms_. At first they were personal privileges, and not inherent in -the blood, and the marks and rewards of some personal act of bravery -performed by the bearer; so we find in the romances, that a new knight -was to wear plain white, until, by some exploit, he merited a mark. -The general opinion is, that they were first introduced at the time of -the crusades, which I believe is pretty just, at least with respect to -our country: for the imperial crown of England had no arms before the -conquest. The Norman kings bore the arms of Normandy, _two leopards -passant_, to which Richard the First added that of Guienne, another -leopard passant, and so composed this English coat, in which, among other -alterations, the leopards have since been changed to lions[271]. - -For the further encouragement of valour, these marks became transmissible -to heirs, not to the eldest son only, as lands, but to all the sons; -saving that the younger were to take some addition, for distinction sake. -While these coats were granted by the king alone, and that for real -service done, and consequently were not too common; and while the custom -of wearing compleat armour remained, and the office of high constable -(the judge in such matters) continued, the gentry were very curious in -preserving these distinctions, and vindicating them from usurpation. But -as the military disposition of our gentry hath greatly subsided since the -loss of the provinces in France, and the kings at arms have assumed the -power of giving coats, nicety in these respects hath long since expired; -and now, as in a commercial country, especially, it should be, education -and behaviour are sufficient criterions of a gentleman. - -I shall therefore say no more of them, as distinguished from the rest -of the commonalty, but observe, that of these there are two ranks, -_knights_ and _esquires_, or gentlemen. For though we now make a -distinction between these two last, the old law knew none, nor is it now -a misnomer, in a writ of pleadings, to stile an esquire a gentleman, or -the contrary. The holding of a knight’s fee did not make a man of that -order, but there were particular ceremonies required for the purpose. For -the original design of the institution of _dubbing knights_, was that, -after a person had, by performing military exercises, shewn that he had -properly accomplished himself, and was capable of that honourable service -in the field, in his proper person, he should, by a public solemnity, -be openly declared so. No wonder, then, that the highest nobility, the -sons of kings, nay kings themselves, thought this title an addition to -their dignity, as it was then an infallible proof, that they had not -degenerated from the virtue of their ancestors[272]. - -But among knights there were some of a more distinguished kind (I do -not mean to speak of particular orders, such as those of the garter and -others) called _Bannerets_, as knights in general were made, upon their -proving themselves by exercises capable of service. These were never -made but for an actual exploit in war, and then were dubbed with great -solemnity under the royal banner. Their distinction was bearing a little -banner, annexed to the wooden part of their lance, adjoining the iron -point; as, originally, every man who had a whole knight’s fee, or the -amount thereof in parts of fees, was obliged to serve in person, and was -not allowed a proxy, but in cases of necessity every such person was -obliged to appear upon the king’s summons, to shew himself qualified, and -to receive the order of knighthood. This power continued in the king, -even after the military tenants were discharged of personal attendance -on sending another, or paying escuage, and came to be considered as a -profitable fruit of the king’s seignory, and was frequently used as an -expedient to raise money, by obliging the unqualified, or those who had -no mind to the expence or fatigue of attending, to compound[273]. - -This right of composition was established by act of parliament, the -first of Edward the Second, which likewise fixes the estate the persons -summoned must have at twenty pounds a year, the quantity of a knight’s -fee; twenty pounds a year was indeed the valuation of a knight’s fee at -the time of the conquest, but by change of times, in Edward the Second’s -reign, it may well be esteemed forty; so that by this act a man who -had half a knight’s fee was liable to be summoned. This was one of the -unhappy means made use of by king Charles the First to procure money -when he quarrelled with his parliament. He was sensible, indeed, of a -difference in the value of money, and therefore summoned none but such -as had forty pounds a-year; but had he paid due attention to its real -rise, he should have summoned none under an hundred and twenty. For in -Edward’s reign a pound in money was a real pound in silver, whereas in -Charles’s, it was but a third part, and so the proportion was to sixty -pound sterling, and sixty more is the least rise that can be allowed for -the improvements in the value of lands, by the intermediate increase of -commerce. No wonder, therefore, that his people looked upon it as an -unsupportable grievance. Accordingly, in the 17th of his reign, the act -of Edward the second was repealed, and in Ireland, it vanished with the -tenures on which it depended[274]. - -The great change in the nature of knighthood happened in the reign of -James the First. The Plantagenets never created any persons such but with -a view to military merit, except their judges. The Tudors extended it to -persons who had served them well in civil stations, but so sparingly, and -to persons of such evident merit, that it still was an encouragement to -those that deserved well of the public. But James, who had a passion for -creating honours, poured forth his knighthoods, without regard to desert, -with so lavish an hand, confirming them for money frequently on wealthy -traders, and others without any apparent public merit, that thereby, as -also by creating an order of hereditary knights, called _baronets_, a -knighthood soon lost the badge of merit it before had carried. - -The occasion of creating baronets was this. On the escheat of the six -counties in Ulster, they were planted with colonies of Scotch and -English; and, as it was necessary to support a standing army there, for -some years after, for the defence of the infant settlements, and money -was wanting for that purpose, as, in that reign, it always was for every -other, this scheme of creating an order of hereditary knights, to take -place after the barons, was fixed upon for that purpose. At first it -had some aspect towards military service, for each of them was obliged -to maintain so many soldiers in the plantation, for a limited time; and -to make the honour more valuable, and to get the better terms for it in -the first plan, it was provided, that no more than two hundred should -be originally created; and when any of them failed, no new ones to be -created in their room. But it was soon seen that these new knights, -when they had once attained their dignities, might not duly perform the -services they engaged for. The maintaining the soldiers, therefore, -was commuted into a sum paid to the king, who undertook to do it; and -had he been a good œconomist, it would have been a prudent precaution, -but whatever sums he could lay his hands on were always at the mercy of -his reigning favourite. He was, therefore, obliged to depart from his -intended limitation, and to exceed his number; and yet, after all, the -service was not done so well as it should have been. His successors have -followed his example, in adding to the number, which now is certainly -unlimited[275]. - -Next to the gentry, or military order, in estimation among the northern -nations stood the _citizens_ and _burghers_, that is, the trading -part of the nation, whether merchants or artificers. These were for -some ages held in a very low light, none of the conquerors or their -defendants applying themselves to such occupations. They were, indeed, -at first, allowed certain privileges and enjoyed their own laws, under -the inspection of magistrates appointed by the king, known by the name -of _Præpositi_, _Provosts_, or some other equivalent title. But these -liberties did not last long. The turbulent temper of the times, the -frequent competitions for the throne, and the many rebellions of the -great lords, occasioned the towns and their inhabitants to be taken in -war, one after another; and the persons so taken, were, by the prevailing -_Jus Gentium_ of these ages reduced to servitude; not, however to a -condition so low as the _villeins_, who were, properly, the slaves of -those people, and had no property but at the will of their lords. However -it is, no state, except one absolutely barbarous, could subsist without -artizans; and as commerce is the parent of wealth, and as neither it, -nor arts, could thrive where property is not, in some sort, secure, the -lords were in some degree, by their own interest, obliged to relinquish -to these people the seizing of their goods at pleasure, as they practised -towards their villeins, and to leave them at liberty to make regulations -among themselves for the benefit of trade[276]. - -Thus far, then, they were free, but their servitude consisted in their -being liable to taxes, or _tailliages_, at the will of the lords, who, if -they were wise, laid on such only as they could well bear; but miserable -was their condition when they fell into the hands of one who was needy -and rapacious; for, then, they were often fleeced, even to ruin and -depopulation. This induced the wiser lords, who saw the consequences, -and how much the arbitrary exertion of such powers must, in the end, -hurt themselves, to restrain their own powers; and, by degrees, by -granting them _charters_, to emancipate them. They formed them into -_bodies corporate_, confirmed the right of making _bye-laws_, which had -been permitted them, and granted them other privileges, or _franchises_, -as they called them, from their being infranchised, in derogation to -former regal or seignoral rights. But for their total freedom they were -indebted to parliament, which, seeing the bad use king John made of his -right in this kind, provided thus in Magna Charta, _Civitas London habeat -omnes libertates suas antiquas, & consuetudines suas. Præterea volumus -& concedimus, quod omnes aliæ civitates, burgi, & villæ, & barones de -quinque portubus, & omnes alii portus, habeant omnes libertates & liberas -consuetudines suas._ And another chapter restrains the king from laying -new and evil tolls, and confines him to the antient customs[277]. - -Hitherto, however, the citizens and burgesses were no part of the body -politic, and were not represented in parliament. But as, with their -security, their wealth and consequence encreased, about, or before the -year 1300, they were admitted to that privilege; that they might, in -conjunction with the knights of shires, be a check on the overgrown -power of the mighty lords; and about that time also the same privilege -was allowed to this class of people in the other nations of Europe also. -This right was confirmed, and so I may say, the _house of commons_, in -its present condition, formed by the statute of the thirty-fourth of -Edward the First. _Nullum tallagium vel auxilium, per nos vel heredes -nostros, in regno nostro ponatur, seu levetur, sine voluntate & assensu -archiepiscoporum, episcoporum, comitum, baronum, militum, burgensium, -& aliorum liberorum communium de regno nostro_; where we see, not only -the burgesses, but free yeomen also had representatives, namely, by -their voting along with the knights of the shires, according to the -maxim of that wise prince, _Quæ ad omnes pertinent, ab omnibus debent -tractani_[278]. - -Having come to the constitution of the house of commons as it stands -at present, it will not be amiss to look back, and see how far its -present form agrees with, or differs from the feudal principles. These -principles, we have seen, were principles of liberty; but not of liberty -to the whole nation, nor even to the conquerors; I mean, as to the point -I am now upon, of having a share in the legislation. That was reserved -to the military tenants, and to such of them only as held immediately -of the king. And the lowest and poorest of these also, finding it too -burthensome to attend these parliaments, or assemblies, that were held -so frequently, soon, by disuse, lost their privileges; so that the whole -legislature centered in the king, and his rich immediate tenants, of his -barony. And it is no wonder the times were tempestuous, when there was no -mediator, to balance between two so great contending powers, and were it -not that the clergy, who, though sitting as barons, were in some degree -a separate body, and had a peculiar interest of their own, performed -that office, sometimes, by throwing themselves into the lighter scale, -the government must soon have ended either in a despotical monarchy, or -tyrannical oligarchy. - -Such were the general assemblies abroad in the feudal countries, but -such were not strictly the _wittenagemots_ of the Saxons, for their -constitution was not exactly feudal. I have observed that the most of -their lands were allodial, and very little held by tenure. The reason -I take to be this: On their settlement in Britain they extirpated, or -drove out, the old inhabitants, and therefore, being in no danger from -them, they were under no necessity of forming a constitution compleatly -military. But then those allodial proprietors being equally freemen, and -equal adventurers with these who had lands given them by tenure, if any -in truth had such, they could not be deprived of their old German rights, -of sitting in the public assemblies. From the old historians, who call -these meetings _infinita multituda_, it appears that they sat in person, -not by representation[279]. - -This constitution, however, vanished with the conquest, when all the -lands became feudal, and none but the immediate military tenants were -admitted. We find, indeed, in the fourth year of William the First, -twelve men summoned from every county, and Sir Matthew Hale will have -this to be as effectual a parliament as any in England[280]; but, with -deference to so great an authority, I apprehend that these were not -members of the legislature, but only assistants to that body. For if -they were part thereof, how came they afterwards to be discontinued till -Henry the Third’s time, where we first find any account of the commons? -The truth seems to be, that they were summoned on a particular occasion, -and for a purpose that none but they could answer. On his coronation he -had sworn to govern by Edward the Confessor’s laws, which had been some -of them reduced into writing, but the greater part were the immemorial -custom of the realm; and he having distributed his confiscations, which -were almost the whole of England, into his follower’s hands, who were -foreigners, and strangers to what these laws and customs were, it was -necessary to have them ascertained; and, for this purpose, he summoned -these twelve Saxons from every county, to inform him and his lords what -the antient laws were. And that they were not legislators, I think -appears from this, that when William wanted to revive the Danish laws, -which had been abolished by the Confessor, as coming nearer to his own -Norman laws, they prevailed against him, not by refusing their consent, -but by tears and prayers, and adjurations, by the soul of Edward his -benefactor. - -Thus William’s laws were no other than the Confessor’s, except that -by one new one, he dextrously, by general words, unperceived by the -English, because couched in terms of the foreign feudal law, turned all -the allodial lands, which had remained unforfeited in the proprietor’s -hands, into military tenures. From that time, until the latter end of -Henry the Third’s reign, our parliaments bore the exact face of those on -the continent in that age; but then, in order to do some justice to the -lesser barons, and the lower military tenants, who were entitled by the -principles of the constitution to be present, but disabled by indigence -to be so in person, they were allowed to appear by representation, -as were the boroughs about the same time, or soon after. The persons -entitled to vote in these elections for knights of the shire, were, in -my apprehension, only the minor barons, and tenants by knight service, -for they were the only persons that had been omitted, and had a right -before, or perhaps with them, the king’s immediate socage tenants _in -capite_. - -But certain it is, the law that settled this had soon, with regard to -liberty, a great and favourable extension, by which all freemen, whether -holding of the king mediately or immediately, by military tenure or -otherwise, were admitted equally to vote; and none were excluded from -that privilege, except villeins, copy-holders, and tenants in antient -demesne. That so great a deviation from the feudal principles of -government happened in so short a time, can only be accounted for by -conjecture. For records, or history, do not inform us. I shall guess -then, that the great barons, who, at the end of Henry the Third’s reign, -had been subject to forfeiture, and obliged to submit, and accept of -mercy, were duly sensible of the design the king had in introducing this -new body of legislators, and sensible that it was aimed against them, -could not oppose it. But, however, they attempted, and for some time -succeeded to elude the effects of it, by insisting that all freemen, -whether they held of the king, or of any other lord, should be equally -admitted to the right of the representation. - -The king, whose profession was to be a patron of liberty, Edward the -First, could not oppose this; and as he was a prince of great wisdom -and foresight, I think it is not irrational to suppose, that he might -be pleased to see even the vassals of his lords, act in some sort -independently of them, and look immediately to the king their lord’s -lord. The effect was certainly this, by the power and influence their -great fortunes gave them in the country, the majority of the commons -were, for a long time, more in the dominion of the lords than of the -crown; though, if the king was either a wise or a good prince, they were -even then a considerable check upon the too mighty peers. - -Every day, and by insensible steps, their house advanced in reputation -and privileges and power; but since Henry the Seventh’s time, the -progress has been very great. The encrease of commerce gave the commons -ability to purchase; the extravagance of the lords gave them an -inclination, the laws of that king gave them a power to alienate their -intailed estates; insomuch that, as the share of property which the -commons have is so disproportionate to that of the king and nobles, and -that power is said to follow property, the opinion of many is, that, -in our present situation, our government leans too much to the popular -side; while others, though they admit it is so in appearance, reflecting -what a number of the house of commons are returned by indigent boroughs, -who are wholly in the power of a few great men, think the weight of the -government is rather oligarchical[281]. - - - - -LECTURE XXIII. - - _The privilege of voting for Knights of the Shire—The business - of the different branches of the Legislature, distinct and - separate—The method of passing laws—The history and form of the - legislature in Ireland._ - - -The house of commons growing daily in consequence, and the socage tenants -having got the same privilege of voting for the knights of the shire as -the military ones, it naturally followed, that every free person was -ambitious of tendering his vote, and thereby of claiming a share in the -legislature of his country. The number of persons, many of them indigent, -resorting to such elections, introduced many inconveniences, which are -taken notice of, and remedied by the statute of the eighth of Henry the -sixth chapter the seventh which recites, that of late “elections of -knights had been made by very great, outrageous, and excessive numbers -of people of which the most part was of people of small substance, and -of no value, whereof every one of them pretended a voice equivalent -with the most worthy knights and esquires, whereby manslaughter, riots, -batteries, and divisions among the gentlemen and other people of the -same counties shall very likely rise and be, unless convenient and due -remedy be provided in this behalf;” and then it provides that, “no -persons should have votes, but such as have lands or tenements to the -value of forty shillings a year above all charges.” And so the law stands -at this day, though by the change in the value of money, by the spirit -of this statute, no person should have a vote that could not dispend -ten pounds a year at least. Such a regulation, were it now to be made, -would, certainly, be of great advantage both to the representers and -represented; but there is little prospect of its ever taking place: And -if it should be proposed, it would be looked upon as an innovation, -though in truth, it would be only returning to the original principles of -the constitution[282]. - -Our legislature, then, consisting of three distinct parts, the king, -lords, and commons, in process of time, each of them grew up to have -distinct privileges, as to the beginning particular businesses. Thus all -acts of general grace and pardon take their rise from the king; acts -relative to the lords and matters of dignity, in that house; and the -granting of money in the commons. How the commons came by this exclusive -right, as to money matters, is not so easy to determine. Certain it is -that, originally, the lords frequently taxed themselves, as did the -commons the commonalty, without any communication with each other; but -afterwards, when it was judged better to lay on general taxes, that -should equally affect the whole nation, these generally took their rise -in that house which represented the bulk of the people; and this, by -steadiness and perseverance, they have arrogated so far into a right -peculiar to themselves, as not to allow the lords a power to change the -least title in a money bill. As to laws that relate not to these peculiar -privileges, they now take their rise indifferently either in the lords or -commons, and when framed into a bill, and approved by both, are presented -to the king for his assent; and this has been the practice for these two -or three hundred years past[283]. - -But the ancient method of passing laws was different, and was not only -more respectful to, but left more power in the crown. The house which -thought a new law expedient, drew up a petition to the king, setting -forth the mischief, and praying that it might be redressed by such or -such a remedy. When both houses had agreed to the petition, it was -entered on the parliament-roll, and presented to the king, who gave such -answer as he thought proper, either consenting in the whole, by saying, -_let it be as is desired_, or accepting part and refusing or passing -by the rest, or refusing the whole by saying, _let the ancient laws be -observed_, or in a gentler tone, _the king will deliberate_. And after -his answer was entered on the roll, the judges met, and on consideration -of the petition and answer, drew up the act, which was sent to be -proclaimed in the several counties[284]. - -Lord Coke very justly observes that these acts drawn up by men, masters -of the law, were generally exceedingly well penned, short, and pithy, -striking at the root of the grievance, and introducing no new ones; -whereas the long and ill penned statutes of later days, drawn up in the -houses, have given occasion to multitudes of doubts and suits, and often, -in stopping one hole, have opened two. However, notwithstanding this -inconvenience, there was good cause for the alteration of method. The -judges, if at the devotion of the court, would sometimes, make the most -beneficial laws elusory, by inserting a salvo to the prerogative, though -there was none in the king’s answer; whereas, by following the present -course, the subjects have reduced the king to his bare affirmative or -negative, and he has lost that privilege, by the disuse of petitions, -of accepting that part which was beneficial to himself, and denying the -remainder[285]. - -I have the rather mentioned this ancient practice of making laws, because -it shews how inconsistent with our constitution is that republican -notion, which was broached by the enemies of Charles the First, that -the king, by his coronation oath, swearing to observe the laws _quas -vulgus elegerit_, was obliged to pass all bills presented to him, and had -no negative. The meaning, certainly, only extended to his observation -of the laws in being. For if the words were to be construed of future -propositions, and in the sense that those people would put upon them, -the lords also, as well as the king, must be deprived of their power of -dissent, and so indeed, it appears, they expounded it; for when the lords -offended them, by refusing the trial of the king, they confidently enough -with the maxim they had established, turned them out of doors. - -But though such as I have mentioned is the constitution of the English -parliament, the form of the legislature in this kingdom hath been for -above two hundred and sixty years very different, the nature of which, -and the causes of its deviation from its model, it is proper every -gentleman of this country should be acquainted with. In the infancy of -the English government in Ireland, the chief governors were generally -chosen by the king out of the lords of the pale, the descendants of the -first conquerors, both as they were better acquainted with the interest, -and more concerned in the preservation of the colony, and also as, -by their great possessions, they were better enabled to support the -dignity of the place, whose appointments, the king’s revenue here being -inconsiderable, were very low. These governors, however, though men of -the greatest abilities, and of equal faithfulness to the crown, were not -able to preserve the footing the English had got soon after the conquest; -but were every day losing ground to the natives, down to the reign of -Edward the Third, which is generally, and, I believe, justly, attributed -to the negligence of the English lords, who, by intermarriages, had -acquired great estates in Ireland. The power of these lord lieutenants -was, in one respect, likewise exorbitant, namely, in giving consent to -laws without ever consulting his majesty, a power, perhaps, necessary at -first, when the country was in a perpetual state of war, and its interest -would not brook delays, but certainly, both for the sake of king and -people, not fit to be continued. - -It was natural, therefore, for the king, who found himself ill served, -to change hands, and to entrust this exorbitant power with persons -not estated in the country, and whose attachment he could confide in; -and accordingly, from that time, we find natives of England generally -appointed to the government, to the great discontent of the Irish lords, -who looked upon themselves as injured by the antient practice not being -continued. This discontent was farther inflamed by a very extraordinary -step, which this otherwise wise and just king was prevailed upon to take, -and which first gave rise to that famous distinction between the English -by blood, and the English by birth. This king, and his father Edward -the Second, had granted great estates, and extensive jurisdictions to -many Irish lords of English blood, for services pretended to have been -done, many of which, it is probable enough, as the king alledged, were -obtained by deceit and false representation; and had he contented himself -with proceeding in a legal course, by calling these patents in by _scire -facias_, and vacating them upon proof of the deceit, no person could have -complained; but he took a very different method, as appears from the -writ he thought proper to issue on that occasion. _Quia plures excessivæ -donationes terrarum, tenementorum & libertatum, in terra Hiberniæ, ad -minus veracem & subdolam suggestionem petentium, tam per Edward II. -quam per regem nunc factæ sunt, rex delusorias hujusmodi machinationes -volens elidere, de concilio peritarum sibi assistentium, omnes donationes -terrarum, tenementorum, & libertatum prædictarum duxit revocandas, -quousque de meritis personarum, de causis & conditionibus donationum -prædictarum fuerit informatus, & ideo, mandatum est justiciariis regni -Hiberniæ, quod omnia terras tenementa & libertates predicta per dictos -regis justiciarios aut locum tenentes suos quibuscunque personis facto -scisire facias._ This hasty step alienated the English Irish from the -king and his advisers, and though, after a contest of eleven years, the -king annulled this presumption, the jealousy continued on both sides, and -the Irish of English blood, were too ready to follow the banners of any -pretender to the crown of England. - -In the reign of Henry the Sixth, that weak prince’s ministers, jealous of -the influence of Richard duke of York in England, and of his pretensions -to the crown, constituted him governor of Ireland; than which they could -not have done a thing more fatal to their master’s family, or to the -constitution of this kingdom, as it turned out in the sequel; for to -induce him to accept it so eager were they to remove him from England, -they armed him almost with regal powers. He was made lieutenant for ten -years, had all the revenue, without account, besides an annual allowance -from England; had power to farm the king’s lands, to place and displace -officers, and levy soldiers at his pleasure. The use the duke made of -his commission was to strengthen his party, and make Ireland an asylum -for such of them as should be oppressed in England; and for this purpose -passed an act of parliament, reciting a prescription, that any person, -for any cause, coming into the said land, had used to receive succour, -tuition, supportation, and free liberty within the said land, during -their abiding there, without any grievance, hurt, or molestation of any -person, notwithstanding any writ, privy seal, great seal, letters missive -under signet, or other commandment of the king, confirming the said -prescription, and making it high treason in any person who should bring -in such writs, and so forth, to attach or disturb any such person. - -This act, together with the duke’s popularity, and the great estate he -had in this kingdom, attached the English Irish firmly to his family, -insomuch that, in Henry the Seventh’s reign, they crowned the impostor -Lambert Simnel, and were afterwards ready to join Perkin Warbeck; and by -this act of the duke of York’s they thought to exculpate themselves[286]. -But when that king had trodden down all opposition, he took advantage -of the precarious situation they were in, not only to have that act -repealed, and to deprive his representatives there from passing laws -_rege inconsulto_, but also to make such a change in the legislature, as -would throw the principal weight into his and his successors’ hands; and -this was by the famous law of Poyning’s[287]. By former laws a parliament -was to be holden once a year, and the lords and commons, as in England, -were the proposers. This act, intended to alter these points, gave -occasion to many doubts; and indeed, it seems calculated for the purpose -of not disclosing its whole effect at once. Its principal purport, -at first view, seeming to be intended to restrain the calling the -parliament, except on such occasions as the lord lieutenant and council -should see some good causes for it, that should be approved by the king. -The words are, that “from the next parliament that shall be holden by the -king’s commandment and license, no parliament be holden hereafter in the -said land, but at such season as the king’s lieutenant and council there -first do certify the king, under the great seal of that land, the causes -and considerations; and all such acts as to them seemeth should pass in -the same parliament, and such causes, considerations, and acts, affirmed -by the king and his council to be good and expedient for that land, and -his license thereupon, as well in affirmation of the said causes and -acts, as to summon the said parliament under his great seal of England -had and obtained; that done, a parliament to be had and holden after the -form and effect before rehearsed, and any parliament holden contrary to -be deemed void[288].” - -The first and great effect of this act was, that it repealed the law for -annual parliaments, and made the lord lieutenant and council, or the king -who had the naming of them, with his council of England, the proposer -to the two houses of the laws to pass, at least of those that should -be so devised before the meeting of parliament. But the great doubt -was, as there were no express words depriving the lords and commons of -their former rights, whether, when the parliament was once met, they had -not still the old right of beginning other bills, or whether they were -not restrained to the acts so certified and returned. By the preambles -of some acts, soon after made, expressing that they were made at the -prayer of the commons in the present parliament assembled, one would be -inclined to think that the commons, after the assembling the parliament, -had proposed these laws. Certain it is, the latter opinion, supported by -the ministers of the king and his lawyers, gained ground. For, in the -twenty-eighth of Henry the Eight’s reign, an act was made suspending -Poyning’s law with respect to all acts already passed, or to be passed -in that parliament; the passing of which act was certainly a strong -confirmation of what was before doubtful against the house of lords or -commons in Ireland, whether they could bring in bills different from -those transmitted by the council, since here they both consented to the -suspension of the act, to make valid the laws they had passed or should -pass in that parliament, without that previous ceremony[289]. - -But in the reign of Philip and Mary, by which time this opinion, before -doubtful (for so it is mentioned in the act then made) was, however, to -be maintained, and strengthened, as it added power to the crown. The act -we at present live under was made to prevent all doubts in the former, -which was certainly framed in words calculated to create such doubts, to -be extended in favour of the prerogative. This provides, that as many -causes and considerations for acts not forseen before, may happen during -the sitting of parliament, the lord lieutenant and council may certify -them, and they should pass, if they should be agreed to by the lords -and commons. But the great strokes in this new act were two, the first -explanatory of part of the former in Henry the Seventh’s reign, that is, -that the king and council of England should have power to alter the acts -transmitted by the council of Ireland; secondly, the enacting part, that -no acts but such as so came over, under the great seal of England, should -be enacted; which made it clear, that neither lords or commons in Ireland -had a right to frame or propose bills to the crown, but that they must -first be framed in the privy council of Ireland, afterwards consented -to, or altered by the king, and the same council in England, and then, -appearing in the face of bills, be refused or accepted _in toto_ by the -lords and commons here[290]. - -It is true, that both lords and commons have attempted, and gained -an approach towards their antient rights of beginning bills, not in -that name, but under the name of _Heads of Bills_, to be transmitted -by the council; but as the council are the first beginners of acts of -parliament, they have assumed a power of modelling these also. The -legislature of Ireland is, therefore, very complicated. First, the privy -council of Ireland, who, though they may take the hint from the lords -or commons, frame the bill, next the king and council of England, who -have a power of alteration, and really make it a bill, unalterable, by -sending it under the great seal of England; then the two houses of lords -and commons, who must agree in the whole, or reject the whole; and, if -it passes all these, it is presented to the king for his assent; which -indeed is but nominal, as it was before obtained. - - - - -LECTURE XXIV. - - _Villenage—The Servi in Germany, mentioned by Cæsar and - Tacitus, the predecessors of the Socmen or socage tenants in - the feudal monarchy—Villeins in gross and villeins belonging to - the land of the Lord—The condition of villeins—The different - ways by which a man may become a villein—The means by which - villenage or its effects may be suspended._ - - -I now proceed to the lowest class of people that were in a feudal -kingdom, who, indeed, were not any part at all of the body politick, -namely _copyhold tenants_, _tenants in ancient demesne_, and _villeins_, -on which I shall not much enlarge as villenage is worn out both in -England and Ireland; and though the two former are common in England, -yet there are none such in this kingdom. I shall begin with _villenage_, -though the lowest kind, as I apprehend the other two by the tacit -consent of their lords, have for ages, from being villeins acquired the -privileges that distinguished them from such. - -In a former lecture I gave it as my opinion, that, while the nations of -the north continued in Germany, there was no such order of men among -them; but that the persons among those people who were called _servi_ -by Cæsar and Tacitus, were the predecessors of the _socmen_ or _socage -tenants_ in the feudal monarchy; though they certainly had not all -the privileges the socmen acquired, and that, after their settlements -in their conquests, this rank was introduced, and formed out of their -captives taken in war, in imitation of the Roman slaves. In this I am -strongly supported by my lord Coke, who quotes Bracton, Fleta, and the -Mirror, concerning their origin, to the following purpose: “The condition -of villeins who passed from freedom into bondage in ancient time grew by -the constitution of nations, and not by law of nature; in which time all -things were common to all, and by multiplication of people, and making -proper and private those things that were common, arose battles. And -then it was ordained by constitution of nations (he means by the tacit -consent of civilized nations) that none should kill another, but that -he that was taken in battle should remain bond to his taker for ever, -and he to do with him, and all that should come of him, his will and -pleasure, as with his beast or any other cattle, to give, or to sell, or -to kill. And after, it was ordained for the cruelty of some lords, that -none should kill them, and that the life and members of them, as well as -of freemen, were in the hands and protection of kings, and that he that -killed his villein should have the same judgment as if he had killed a -freeman[291].” This, it falls also to be observed, is the very account -the Roman civil law gives of the original of servitude. - -Villenage, therefore, was a state of servitude, erected for the purpose -of doing the most ignoble, laborious, and servile offices to the lord, -according to his will and pleasure, whensoever called upon; such as -the instances _Littleton_ gives, of carrying and recarrying dung, and -spreading it on his lord’s land. _Bracton_, thus defines it _purum -villenagium est, a quo prestatur servitium incertum indeterminatum, ubi -scire non poterit vespere quale servitium, fieri debet mane_, viz. _Ubi -quis facere tenetur quicquid ei præceptum fuerit_. So the most honourable -service, the military one, was free, and its duties uncertain. The next -in rank, the socage was free, and its duties certain. This, the lowest, -was servile, and its duties uncertain[292]. - -Of those villeins there were two kinds, villeins belonging to the -person of the lord and his heirs, which our law calls _villeins in -gross_, and _villeins belonging to the land of the lord_, and who, in -consequence of the lands being aliened, went over to the new acquirer, -without any special grant. These were in the Roman law, called, _servi -adscriptitii glebæ_, that is, slaves annexed to the soil, and by our -lawyers _villeins_ regardant to a manor; for manors were, antiently, -thus distributed. After the lord had reserved to himself a demesne -contiguous to his castle, sufficient for the purpose of his house and -his cattle, the remainder was generally divided into four parts; the -first for settling such a number of military tenants as might always -more than suffice to do the service due to the superior lord; the second -for socage tenants, to plow the lord’s demesne, or, in lieu thereof, -to render corn, cattle, or other things as stipulated by him; the -third for villeins, for the purpose of carrying dung, felling timber, -making inclosures, and other servile offices, as required by the lord -at his pleasure; and the last share of land, was called the _waste_, or -_common_, being generally woodland, and coarse pasture, the wood for the -lord’s hunting, for supplying him with timber at his pleasure, and the -tenants with reasonable _estovers_ as they are called, out of the woods, -in those three articles, _housebote_ for the support of their houses, -_sloughbote_, for their utensils of husbandry, and _firebote_, for fewel; -and the pasture for the cattle of all the tenants, military, socage, -and villeins in common. This was the usual method of distribution, not -however into equal parts, for the demesne and waste were generally much -the largest, nor always into the same number of parts, for this varied -according to the quantity and quality of the land, whether better or -worse, and the military service reserved, whether lighter or heavier[293]. - -From this distribution we may see that, in most manors, there was land -which, having been originally set apart to the use of the villeins, was -called villein-land, which retained its name, and was liable to the -same name, and servile services, though it had come into the hands of -freemen, who, consequently, though free, might hold lands in villenage, -and be obliged to do the same uncertain services as a villein was. Few -freemen however we may suppose, would submit to such uncertain burthens, -and therefore when they took such lands, the lord generally reduced the -service to a certainty, and this tenure, because of the low nature of the -duties they performed, was also, though abusively, called _villenage_. -But speaking with propriety, it was socage, the tenant being a freeman, -and the services certain. Certainty of service being, as I have often -mentioned, the grand characteristic that distinguished the socage tenure -from the military above it, and from villenage below it. - -Let us now see what kind of property this rank of people had in their -persons, their lands and their chattles; for from what has been already -observed, some kind of property they must have had, or they could not -have performed the services. And the first rule is, that, with respect to -every person but his lord alone, a villein was perfectly a freeman. His -life, his liberty, his property, were equally protected by the law, as -those of any other person. He could acquire, he could alien property, he -could be plaintiff in all kinds of actions whatsoever; but if defendant -he might plead his being a villein. As to his lord, his case was very -different. His life, indeed, his liberty, his limbs, were under the -protection of the king; and if in these he was injured by his lord, the -lord should be punished at the suit of the king, as in the case of any -other subject, but not at his own suit. However, there was two excepted -cases, where the law (for they most certainly punished the two detestable -crimes of murder and rape) gave a villein actions against the lord, -namely an _appeal_, that is an accusation in his own name of murder, -where the lord had killed the villein’s ancestor; and appeal of rape, -where the lord had ravished his _neif_, for so a bond woman, or female -villein, or _nief_, is called in our law. And here if the lord was found -guilty, the villein, or _neif_, were by that judgment manumized for ever. -For it would have been a glaring absurdity, to have afterward trusted -them in the power of the heir of that lord, whom they had hanged. Neither -had a villein, with respect to his daughter, the same power of disposing -her in marriage without the lord’s consent as he had of his son. And this -distinction was founded upon solid reason, for the son of a villein, -after his marriage, and his issue, continued in the same plight as he -was in before, villeins to the lord; but the daughter, by her marriage, -passed into another family, and her issue were either to be freemen, -if her husband was free, or villeins to the other lord, if her husband -was such; so that the lord had a very important interest in his seeing -his villein’s daughter married to another villein of his. This previous -consent, however, wore out by degrees, and by the custom of particular -places, a certain fine was all that the lord could claim for the marriage. - -With respect to the lands the villein held from his lord, and also as -to his chattels, or personal fortune, he was only tenant, or possessor -at the will of the lord; for he the lord might resume the one, or take -possession of the other whenever he pleased; but in the interim they were -the villeins, and he might convert the profits of them to his own use, -unless they were also in being and seized; the seizure of them being what -made the absolute property in the lord. And the case was the same with -respect to purchases, or acquisitions of lands or goods; for before the -seizure, or some other public act equivalent thereto, the villein might -alien them as well as the goods he had held before at the will of the -lord, and the alienation was good against the lord, and the reason of -this was undeniable. For it would have put a total stop to all commerce -both of goods and land, if every buyer was obliged, at his peril, to -make enquiry, and to take notice whether the seller may not possibly, in -truth, be a villein to some one of the many lords in the kingdom; and it -would have been highly absurd to allow the lord to seize the lands, or -goods in the hands of the purchaser, when he might seize the purchase -money likewise in the hands of his villein, the seller; I say it is -the seizure, or some other public act equivalent thereto, that vests -the property in the lord; for, in all cases, an actual seizure was not -possible. A few instances will clear this up[294]. - -If the villein purchases lands in possession in fee simple, fee tail, -life, or years, the lord should, if he had a mind to make them his, -enter, and claim them; or if, for fear of danger, he dare not enter, -should come as nigh to the lands as he dare, and claim them there. And -this was sufficient to vest the estate in the lord, according to the -nature of the estate the villein had in it, and to defeat a future -purchaser; even though the lord should suffer the villein to continue -in the possession. For the purchaser is obliged, at his peril, to take -notice of all legal acts of notoriety, done respecting the lands he -purchases. But if the villein purchases land not in possession, as -suppose a remainder, or reversion, where there is a prior estate for life -or lives, or in tail, in another person in being; here the lord cannot -enter, for that would be disseizing, and doing wrong to the immediate -tenant of the freehold; and if he waited till that estate was spent, and -the remainder or reversion was to come into possession, the villein might -have aliened them before, and so defeated his lord. He should, therefore, -in such case, come to the land, and claim the reversion or remainder, -as his villein’s purchase. And this act presently is sufficient to -vest them, the reversion or remainder in him, and to defeat a future -purchaser. So if a villein purchased an advowson, or presentation to -a living, where the parson of the church is living, the lord cannot -present, which is the proper act to gain possession of the advowson. For -the church is full of an incumbent, but he shall come to the church, -and claim the advowson as his villein’s purchase; and this vests the -advowson in him, and will defeat a future alienation by his villein. In -the same way with respect to goods; the lord may either seize them, and -retain them in his own hands, or may come to the place where they are, -and openly claim them before the neighbours, and seize a part of them in -the name of the whole goods his villein _hath_; and this shall vest the -property in him, though he leaves the possession still in his villein; -and if he adds the words or _may have_, it vests the property of goods -after acquired, though it is otherwise of lands. - -From this power of the lord as to his villein’s property, it appears -the villein can bring no action relative to property against him; for -all such actions, being either to recover the thing itself, or damages -for the wrong done, in both cases, it would be useless, and improper. -For, inasmuch as the lord had right to take, the taking could be no -injury, and to give damages even for a personal injury would be absurd -and nugatory, since the lord might immediately, as soon as recovered -rightfully, retake them from his villein. Therefore Littleton says, “a -villein cannot have an appeal of maim against his lord that hath maimed -him[295].” For, as the law then stood, _maim_ was only punishable by fine -and imprisonment, at the suit of the king, or by damages, in an appeal -of maim, at the suit of the party. Neither could he have an appeal of -robbery against him, though that offence, with respect to freemen, was -capital; for the lord having a right to take, could not be guilty of -robbery. However, there was one excepted case, wherein the lord could not -take things out of his own villein’s hands, and wherein the villein also -might maintain an action against him; but then, in this case, the villein -acted not in his own right, but in that of another, _in autre droit_, as -our law says, which was when a villein was made an executor. For here he -acted not in his own right, but as representative of his testator, for -the performance of whose will, and for no other purpose, he had allowed -to him this possession against his lord, and this right of action against -him. - -Let us now see how many different ways a man might be a villein, how many -ways the villenage, or its effects, may be suspended, and how many ways -it might be totally destroyed. - -Now a man might be a villein either by birth, or become such by his own -act. With respect to birth, our law considers only the condition of the -father, whether free or villein, contrary to the civil law, where the -maxim is _partus sequitur ventrem_. Our rule seems more agreeable to -natural reason, as the husband is master of the family, the head of -the wife, and supposed, at least, the principal party in the production -of the offspring. Yet the Roman law is not therefore to be charged with -absurdity, it proceeding on a principle peculiar to itself, namely, -that they allowed no matrimony but between free persons; a cohabitation -between two slaves, or between a slave and a free person, was called -_Contubernium_, not _Nuptiæ_, nor _Matrimonium_; and to such a commerce -their law did not give such continuance, or entire credit, as to presume -the father to be certain. A freewoman who so far disgraced herself as -to cohabit with a slave, they supposed equally guilty with others; and -therefore, as the father was uncertain, _in favorem libertatis_, they -presumed him a freeman. And, on the contrary, though a freeman cohabited -with a slave, that law gave no credit to her constancy, but rather -supposed the issue begat by one of her own rank, another slave. But in -England, if the father was free or slave, the issue was so; for our law -admitting such marriages as good ones, upon the maxim, _whom God hath -joined let no man sunder_, gave them an entire credit. What then shall we -say was the case of _bastards_, where the father was entirely unknown, -and who were _filii nullius_. Some old opinion in England indeed held, -that if the mother was a neif, because she was certain, the issue should -be a villein; but this doctrine was exploded, and it was settled that, as -the child was, by our law, to follow the rank of his father, and who that -was, was entirely uncertain, it should be universally presumed in favour -of liberty, that the father was a freeman, whatever the mother was. A -bastard, therefore, could not be a villein, but by his own act; and how a -man could become so I shall next proceed to shew[296]. - -There was then but one way for a freeman born to become a villein, I mean -in the latter ages, when the practice of making slaves of captives taken -in war went into disuse, and that was by his admission and confession. -For _volenti non fit injuria_ is a maxim of all laws, and in the antient -times of confusion, it might be an advantage, at some times, to a poor -freeman to put himself, even in this law manner, under the protection of -a lord that was both powerful and humane. But so careful was the English -law of liberty that it did not allow every confession or admission to -conclude against a man’s liberty, but such an one only as could not -proceed from mistake, inadvertence, or constraint. The confession must -be made in a court of record, and entered on record. Then indeed was -it conclusive, for it is a maxim of our law, that there is no averring -against a record, that is, charging it, or the contents thereof, with -falsehood. For if that could be, property could never receive a final -determination, nor a man be certain that the suit that he had obtained -might not be renewed against him[297]. - -But the law went farther in its precautions, and would not suffer any -confession, even in a court of record, to destroy liberty. If a man came -voluntarily into such a court, and made an extrajudicial confession, -that is where there was no suit depending, and contested in that court, -it could not bind him. The confession, to bind, must be made in such a -court, and in a suit litigated there; so that there might be no room -afterwards for pretending surprize, error, constraint, or terror. Thus, -if a stranger brought any action against a man (for if the lord brings -any action, except one kind only, against his villein, he the villein, is -thereby manumized, as I shall observe hereafter) I say, if a stranger, A, -brought an action against B, and B, to bar A, of his action, pleads on -record, as he may, that he is villein to C, this confession shall bind -him, and he shall be C’s villein, though he was in truth a freeman; yea -though A, in that very action, had replied that B was a freeman, and had -even proved him such: And indeed this was but a just punishment for his -fraudulent attempt to deprive A of his action. - -Again, if a lord, claiming a man to be his villein, bring the writ called -_nativo habendo_, the proper one to prove this fact, that the defendant -was his villein, and the defendant confesses himself judicially so to -be, he and his issue are bound, though he was free before; or if the -defendant, in such case, pleads he is a freeman, and the lord, to prove -him his villein, produces the defendant’s uncles, or cousins, who swear, -that they and their ancestors, from time immemorial, or from a time -antecedent to the separation of family, have been villeins to that lord -and his ancestors, whatever becomes of the original suit, they themselves -thenceforwards are the lord’s villeins; and though they were in truth -free, it is but a just punishment, as I observed before, for their foul -attempt of reducing their kinsman to slavery. However, as we must allow -that every man is fond of his own and his posterity’s liberty, we must -accordingly believe that these instances of freemen becoming slaves -voluntary were very rare, and, that the majority of villeins were such as -were so by birth. Before I leave this head, I should observe that, with -respect to the issue of men becoming villeins by their own confession, -the issue born after the confession alone were bond, as being so born, -and that the children born before, retained the liberty they had acquired -by their birth. - -Villenage could not only be totally destroyed by many means, but also -might be suspended for a time, and afterwards revive. The suspension -arose from some subsequent obligation the villein, or nief, happened to -lie under, which the law considered, and favoured more than the lord’s -right in his villein, or nief; therefore, if the king made a villein -a knight, such a creation, being for the defence of, and to encrease -the military strength of the realm, and the person obliged to serve -accordingly, his state of villenage was suspended, not destroyed. For, if -he was afterwards degraded from his order, he became the lord’s villein -again, so if a villein became a monk professed, now was he obliged to -live entirely in his monastery, and spend his time in prayers, and other -spiritual exercises, duties inconsistent with his service as a villein; -and those being performed to God were preferred to the interest of the -lord; but if such monk was deraigned, that is, degraded from his order, -and turned out of his monastery, he became a secular man again, and the -lord’s right revived. But if a villein is made a secular priest, he -not being confined to a monastery, nor his whole time dedicated to the -service of God, he is still a villein and obliged to attend his lord at -all times, when the stated times or occasions of his new duty do not -employ him. So if a nief marries a freeman, the right of the husband -in his wife, as founded on the law of God and nature, is preferred to -the lord’s, though prior, which is founded only on the constitutions of -nations: She, therefore, is priviledged, and a free woman during the -coverture; but if the husband dies, or a divorce happens, then is she a -nief again. But it may be asked, shall the lord thus, without any fault -of, or consent from him, be, by the act of others, deprived, even for a -time, of his right in his villein, and the advantage thence arising? I -answer, though the law, for the public good, suspended the villenage, -it did not leave the lord without redress for the wrong done unto him. -For, in the cases of profession and marriage, the lord shall have his -action against, and recover the damages he may sustain, from the abbot -who had admitted his villein a monk, or the husband who married his nief; -but against the king who has knighted his villein, he cannot have an -action, for, according to the principles of the feudal law, to bring an -action against the king is a breach of fealty: it is charging him with -injustice, and with breaking that mutual bond, whereby he is tied to his -vassals as strictly as they are tied to him. But he shall not be without -remedy. He shall have his action, and recover damages against those, who -by their aid, advice, counsel, or recommendation prevailed on the king -to make his villein a knight. Coke mentions two cases more, wherein I -cannot say so fully as he says, the _villenage itself_ is suspended, as -that the _effects_ thereof are suspended, as to a certain place; and both -these are in honour of the king, one is when a villein escapes from his -lord, and has continued for a year and a day in the demesne of the king, -doing service to him as his villein. The lord can neither seize him, nor -even bring a writ of _nativo habendo_ against him while he continues in -the royal demesne. The other is where a villein is made a secular priest -in the king’s chapel. The lord cannot seize him in the presence of the -king[298]. - -We shall next have a more agreeable subject, and by considering the -many ways the law of England hath contrived to destroy villenage, have -the pleasure of observing its natural bent toward the equal liberty of -mankind, and how it rejoiced to shake off the shackles of servitude, even -in those days when it admitted it. - - - - -LECTURE XXV. - - _The methods invented to destroy villenage—The bent of the law - of England towards liberty—Copyhold tenants—Tenants in ancient - demesne._ - - -Relative to villenage, the following are the words of the antient judge -Fortescue, who wrote a treatise on the grounds of the English law, for -the instruction of his pupil, the unfortunate son of the unfortunate -king Henry the Sixth. _Ab homine, & pro vitio introducta est servitus; -sed libertas a Deo hominis est indita naturæ. Quare ipsa ab homine -sublata semper redire gliscit, ut facit omne quod libertate naturali -privatur[299]._ We are now to see how, and in how many ways, our law -favours this natural propensity to liberty. And the first and plainest -is a direct enfranchisement, or, as the Romans called it, _manumission_. -This, in the ancient times, before writing was common, used to be done, -as all their important acts, (for the better preserving them in memory) -in great form. _Qui servum suum liberum facit, in ecclesia, vel mercato, -vel comitatu, vel hundredo_, (_that is, the county court or hundred -court_) _coram testibus, & palam faciat, et liberas ei vias, & portas -conscribit apertas, & lanceam, & gladium, vel quæ liberorum arma in -manibus ei ponat[300]._ But after the use of writing became common, the -method was by the lord’s deed (mentioning him to be his villein, and -expressly infranchising him) sealed by the lord’s seal, and attested by -proper witnesses, as other deeds between freemen should be[301]. - -Before I go farther, I should observe the favour of the English laws to -liberty in that, by it all manumission, of what kind soever, was absolute -and irrevocable. Once a freeman, and ever so; whereas by the civil law, a -freedman was bound to many duties towards his patron. A relation between -them still subsisted, and if he was guilty of ingratitude, that is, of -any of the many offences their law marked as such, he was again to be -reduced to slavery. - -But besides this species of express enfranchisement, there were many -implied ones. First, by the a act of the lord alone, and others by -construction of law, upon the act either of lord or villein. By the act -of the lord alone, namely, if he had entered into any solemn certain -contract with his villein, giving him thereby either a permanent right of -property, or a power to bring an action against his lord. In such cases -he was instantly manumized, without express words; for, otherwise, he -could not have the benefit of the gift intended, and the lord’s act, in -such cases, should be construed most wrongly against himself. As if the -lord gives land to his villein and his heirs, or to him and the heirs -of his body, or to him for life; immediately on the giving livery and -seizin, which was, as I have often observed, what compleated an estate of -freehold, and made it irrevocable, the villein became free. Otherwise he -could not enjoy the benefit of the grant, or protect it against his lord. - -The same was the case if the lord gave him any certain property, as a -bond for payment of a sum of money, or a yearly annuity, or a lease of -lands for years. The villein could not securely enjoy the benefit of -the gift, without being able to bring an action against his lord, and -consequently being free against him. Yea, though the annuity or lease of -land was but for years, the manumission was absolute for ever, and not -suspended for the years only; which was different from the cases I put -in my last lecture, of villenage being suspended by the act, not of the -lord, but another person; but here where the lord himself, by his own -act, set him free, though but for a time, he was free for ever. But if -the lord gave his villein lands to hold at will; this being of the same -nature with the proper holdings of villeins, and the lord having reserved -in his own breast a power of ousting whenever he pleased, the villein -gaining thereby no certain property, he continued in his former situation. - -Secondly, a man may be enfranchised without express words, by -construction of law, operating on the act either of the lord or villein. -If a lord had a mind to dispossess his villein of lands, or of goods, he -had a right to enter on the lands, or seize the goods, without ceremony; -but if, waving this right, he brought an action against him for them, or -if he brought not any action personal against him, but the one of _Nativo -Habendo_, the villein was enfranchised, whether the lord recovered or -not, or whether he prosecuted the action or not. For when he omitted -the easy remedy the law appointed, and brought his villein into court -to defend his right, he admitted him to be a person that could stand in -judgment against him, and litigate with him; that is, to be a freeman. -But it must be observed this enfranchisement did not commence immediately -from the taking out the writ, which was the commencement of the action, -but from the appearance of both plaintiff and defendant, and this for -the benefit of the lord; for otherwise, as Coke observes, a stranger, -by collusion with a villein, might take out an action against him in -his lord’s name. To which I may add, that the lord might have intended -his action against a freeman of the same name with the villein, and the -sheriff might have summoned the villein by mistake. In this case it was -hard that the lord should suffer. He therefore might, when he saw the -villein ready to appear, nonsuit himself, that is, decline appearing; and -then the villein could not appear, and therefore was not enfranchised. -But if he went on, and suffered his villein to appear, and consequently -enabled him to plead against him, he must have abided by the consequences -of his own folly, and his nonsuiting himself afterwards could in no sort -avail him[302]. - -A villein might likewise be manumitted by his lord’s bringing a criminal -action against him, though this was no admission of permanent property -in him, or of his capacity of standing in law against him as a freeman; -as if the lord brought an appeal of felony, as of murder, or robbery, -against him. If he was acquitted he might be enfranchised, because he -might be entitled to recover damages for the malicious prosecution, and -the danger his life had been in; and damages he could not recover without -being a freeman. I say _might_ be enfranchised, because he _might_ -recover damages. For in this case a distinction is to be taken, whether -the villein was, before the appeal brought, indicted at the suit of the -king for the same offence, or was not. If he was not, the acquittal -shewed the prosecution to be malicious, and the villein was entitled to -recover damages, and so to be free. But if he had been indicted, there -were no grounds to suppose the appeal brought maliciously. The finding -the indictment by the grand jury was a presumption of his guilt. The lord -had a rational ground for bringing his appeal, and he had a right to -bring it for the punishment of his villein, if guilty. Otherwise he could -not have him hanged, for the indictment at the king’s suit might not be -prosecuted, or the king might pardon. In such case, therefore, there -being no malice presumed, the law gave no damages, and consequently no -enfranchisement. But the lord’s bringing the writ called _Nativo habendo_ -against his villein, namely, claiming a man to be his, as such, was no -enfranchisement, for that would defeat the ends of the suit; and the law -allowed the lord a power to seize his villein without further ceremony, -it did not precisely compel him to that method only, for his villein -might be at too remote a distance, or under the protection of persons -too powerful. But if, after appearance, the lord suffered himself to be -nonsuited, in this action, it was an enfranchisement. - -The law, likewise, enfranchised in some cases on the act of the villein -himself, as if the lord had been found guilty in an appeal of murder, -brought by his villein, or of rape by his nief; but these I mentioned in -the last lecture, and the reason is apparent. - -By all these various ways the number of villeins insensibly diminished, -and the number of freemen continued to encrease in every reign; but what -gave the finishing stroke to servitude were the confusions occasioned by -the two contending houses of York and Lancaster; when the whole kingdom -was divided, and every lord obliged, even for his own security, to take -part with one side or the other; and when once engaged, necessitated -to support his party with his whole force. Villeins were, therefore, -emancipated in prodigious numbers, in order to their becoming soldiers. -Many of such, also, who had not been formerly emancipated, in those times -of distraction, fled for self-preservation to London, and other cities, -where, being absent from their lords, they were looked upon as free; and -where they generally continued, even after these troubles had ceased, -unknown to the heirs of the antient lords; and in consequence, for want -of proof of their servitude within fifty years last past, (which was the -time of limitation for this action) most of them and their posterity -became free. When things afterwards became composed, under Henry the -Seventh, many of these persons were by the heirs of their former lords -reclaimed, and recovered as villeins, though, undoubtedly, the far -greater part escaped undiscovered. But even in those actions that were -brought, both judges and juries were very favourable to the persons -claimed; the juries out of favour to liberty, and the judges, I presume, -following the policy of that reign, one of the great objects of which was -the depression of the great lords; to which nothing could more contribute -than the lessening the number of the persons who were held in such strict -dependance by them, and the profits of whose industry they had right to -seize, to encrease their wealth and their power[303]. - -Another thing which had, long before that period, lessened their numbers, -was the rise of copyhold tenants. These are persons who are said to hold -lands _at will, but according to the custom of a manor_, and those arose -from the villenage tenants, as I conceive, by the following means. When -a succession of mild and humane lords had neglected, for a long time, -to seize their villeins goods, or to exact villein service, so that -no memory remained of their having made use of such a practice, they -came to be considered in another light, and became exempted from that -seizure by prescription. For the lord claiming a villein in a _nativo -habendo_, must plead, and prove, that he, or his ancestors, had exacted -such services, from the person claimed, or his ancestors, otherwise he -failed. Therefore, in the case I have mentioned, though a future lord -had an inclination to depart from the practice of his predecessors, and -revive his rights, he could not recover them for want of proof; and these -persons so long indulged, became freemen. However their lands, (they -being only tenants at will) might still be resumed, until, at last, they -got, likewise, by the same kind of prescription, a permanent right in -them also, in the way I now shall relate. - -If a lord had given his villein any certain estate, it was, as I before -observed, an absolute manumission for ever. But some lords, either in -reward for services done, or out of bounty, gave many of those underling -tenants, if not an absolute right to their holdings, at least, a fair -claim and title to a permanent estate, which, in honour, the lord or -his heirs could not defeat, and yet kept them in a particular kind of -dependance, between freedom and absolute villenage. But the question was -how this was to be done; for if the lord had given him a deed, to assure -him the lands, and so entered into a contract with him, he was entirely -emancipated. The way was then for the lord to enter into the roll of his -court, wherein he kept the list of his tenants, that he had given such -an one an estate at will, to hold to him and his heirs, or to him and -the heirs of his body, or to him for life or years; and these directions -being constantly complied with, grew by length of time into established -rights, and they came to be called _tenants at will, according to the -custom of the manor_. - -They were still called tenants at will, because, they had been originally -such, for they were never considered as, nor called, _freeholders_, until -very lately, in one instance, they were admitted to vote for members -of parliament, and their votes allowed by the house of commons. This -decision was greatly exclaimed against by the tories, who were foiled -by this reception, as proceeding from a spirit of party, and as being -contrary to the rules of the antient law, as it certainly was. But, on -the other hand, it was agreeable to common reason and justice, and to the -spirit and principles also, though not to the practice of the antient -constitution. For when Edward the First lays down this maxim, _quæ ad -omnes pertinent ab omnibus debent tractari_, what reason can be assigned -why a copyholder for life, who has a valuable, and as certain estate, -in fact, as a freeholder, though called by a different name, and who -contributes equally to the taxes and expences of the government, should -not have equal privileges, and be equally intitled to be represented. -They are called _copyholders_, from the evidence they had of their -titles. The evidence that freemen had of their estates in land was -either a _deed_, if the grant was by deed, or if it was without deed, -the _livery and seizen_, attested by the witnesses present; but the -copyholder had no deed, neither was livery and seizen given to him, as he -was originally but a tenant at will. His evidence, therefore, was a copy -of the rule entered in the lord’s court roll, which was his title, and -from hence was he named copyholder[304]. - -The peculiarities attending this kind of tenure, that distinguished it -from other tenures, arose from their being considered as tenants at will. -Hence arose that antient opinion, that if a lord ousted his copyholder, -he could have no remedy by action in the king’s court against him: But -had this been the law that since prevailed, all copyholders had been long -since destroyed. Therefore, in Edward the Fourth’s reign, it came to -be settled, that if the lord turned out his copyholder, he might well -maintain an action of ejectment against him, as a tenant for years could, -or else they might sue the lord in equity to be restored. - -From the same principle of its having been an estate at will, arose the -right of the lord to a fine, upon the change either of lord or tenant; -upon the change of the lord by the act of God only, that is by his death; -upon the change of the tenant, either by the act of God, by his death; -or by his own act, by his alienation. But the tenant paid no fine on the -lord’s alienation; for if he was so to do, he might be ruined by being -frequently charged. These fines were an acknowledgment of the lord’s -ancient right of removing them, and were, in some places, by custom, -fixed at a certain rate; in others, they were uncertain, and settled -by the lord: However, he was not allowed to exact an unreasonable one, -for if so, the tenancy would have been absolutely in his power, and of -the reasonableness of the fine the judges of the king’s courts were to -determine. - -I mentioned the alienation of copyholders, but to alien directly they -could not, being esteemed but tenants at will, yet what they cannot -directly do, they may indirectly, by observing certain forms; that is, -by surrendering to the lord, to the use of such a person, and then the -lord is, in equity, compellable to admit into the copyhold the person -for whose use it is surrendered. These surrenders are either made in the -manor court, or out of it. If made in court, it is immediately entered in -the court roll; if out of court, it should be presented at the next court -day, and then entered. The surrender out of court must be made to the -lord himself, or to the steward of the manor, or it is not good; except -in some particular manors by custom, where it may be surrendered to the -lord’s bailiff, or to two or more of the copyholders, who are to present -it at court. When a surrender was made, the lord was only an instrument -to hand it over, and therefore must admit that grantee into such estate, -and no other, whom the grantor had appointed in his surrender. In many -cases a court of equity will supply the want of a surrender. - -Copyholders could not devise their lands by will for two reasons. First, -that, in general, lands were not devisable till the reign of Henry the -Eighth; and for another reason peculiar to themselves, that, being -called tenants at will, they were not looked upon to have a sure and -permanent estate. But when, after the invention of _uses_, a way was -found out to evade the general law, and to make lands go by will, by the -owner granting his estate to another for the use of himself, the grantor, -for life, and after, for the use of such persons as he, the grantor, -should name in his will; and when courts of equity were found disposed to -oblige the grantee to perform the trust he had undertaken, in imitation -hereof, copyhold estates began to be surrendered to the lord to the use -of the copyholder’s last will; and then the lord, after his death, was -obliged to admit such person as he appointed in such his will, and in -the mean time, the copyholder enjoyed during his life, for the surrender -only did not transfer the estate, except it was to the lord’s own use. If -to any other use, the lord was but an instrument, and the land remained -in the surrenderer until the admittance of the new tenant, which, in the -case I have put, could not be till the old one was dead. - -Another peculiarity arising from the same source, there being tenancies -at will, was, that neither the husband could be tenant by the courtesy, -nor the wife tenant in dower. The reason was, that every estate at will -determined by the death of the tenant, neither could an estate tail -be created of a copyhold; for the statutes _De Donis_ extended not to -them, and, therefore, if a gift was made in such words as would, at this -day, create such an estate, it would be in the nature of a _fee simple -conditional_ at common law. However, by special custom in particular -manors, copyhold might be entailed; might go to the tenant by the -courtesy, and the wife might be endowed thereout[305]. - -Thus much I have thought requisite to shew the general nature of this -tenure, and of its origin. More would be needless to say here, as there -are no such in this kingdom, though the law relating to them makes a -considerable part of the law of England. For the same reason I shall be -very short as to the tenants in antient demesne. - -Lands in _antient demesne_ are the estates that the king had, as king, to -support his family, and other expences, and were antiently unalienable. -They were the lands of Edward the Confessor, and the Conqueror. But -as the king could not make profit of them himself, they were given to -tenants of two kinds, freeholders and copyholders. The law with respect -to them stands as it does with other freeholders and copyholders, except -that they have some peculiar privileges. The general reason of these -privileges was, that the freeholders were originally socage, and the -copyholders the villenage tenants of the king, and had these privileges -granted to them because they were supposed constantly employed on the -king’s land, to furnish him with corn, cattle, and other necessaries; and -their privileges have continued, though the services have been changed -into money, and the estates almost all alienated from the crown. These -are principally as follow: They are exempted from all burthens and taxes -laid on by parliament, unless they are specially named. They are not to -be taxed for the wages of the knights of the shire. They are not to pay -toll, or passage money for goods bought and sold in markets, for all -things concerning husbandry and sustenance. They are not to be impleaded -in any court, only in their manor court, nor to be summoned as jurymen, -with some other privileges of the like nature, not necessary to be here -insisted on[306]. - - - - -LECTURE XXVI. - - _The condition and state of laws in England during the Saxon - times—The military policy of the Saxons not so perfect as that - of the Franks—Their Kings elective—The division of the kingdom - into shires, hundreds, and tithings—The administration of - justice—The county-court—The hundred court and court-leet—The - court-baron—The curia regis—Method of trial in the Saxon - courts—The ordeal—The waging of law—The trial by battle—Juries._ - - -Having drawn a rough delineation of a feudal monarchy, and given a -general account of the ranks of people of which it was composed, and of -their distinct rights and privileges, it will next be proper, agreeably -to what I first proposed, to observe, through the several reigns, the -progress of English law, and by what steps and gradations it is come to -differ so widely from what it was in its original; not, indeed, to go -minutely through all the alterations made, for that would be a task that -could not be confined within the compass of these lectures, but to point -out the great and considerable changes, which had extensive influences, -and contributed to give the law a new face. But, before I enter upon -this, it will not be amiss to look back a little, and to say something -with respect to the law in the Saxon times, since much of that remained -after the conquest, and even makes a part of our law at this day. - -The Saxons, being a German nation, brought into England the customs of -that country, customs very similar to, and, in many instances, exactly -the same with those used abroad on the continent. However, with respect -to their military policy, it was not so strict and perfect as that of the -Franks, occasioned, as I suppose, by their greater security from danger. -For they had no reason to dread the Britons, having extirpated many, and -expelled the rest, except a few whom they kept in the meanest offices, in -the nature of villeins. Neither was the authority of their kings so great -as abroad, for the founders of the kingdoms of the heptarchy were not -kings in Germany, as the kings of the Franks and other nations had been, -but only leaders of adventurers, who voluntarily associated themselves, -and therefore could have no authority but what their followers confirmed -upon them; and that it was not very considerable, appears from this, that -every thing of great moment was transacted in their general assemblies or -_wittenagemots_[307]. - -These kings were elective, though generally those of the same family, -(for to this also there were some exceptions) were elected. Offa says of -himself to his people, _Electus ad libertatis vestræ tuitionem, non meis -meritis, sed sola liberalitate vestra_. From the death of a former king -to the election of a new one there was an _interregnum_, and even during -these interregnums they made laws. For when the excellent king _Brithric_ -had been poisoned by his queen, they enacted a law, that if any future -king should give his wife the title of queen, he should forfeit his -dignity, and his subjects should be free from their oath of allegiance; -and then they proceeded to elect Egbert, Brithric’s tenth cousin. And, -in pursuance of this law, Ethelbald, deposed his father, for giving that -title to Judith of France. Alfred, indeed, was not chosen upon a vacancy, -but claiming a part of the kingdom before the assembly at Swinburn, by -virtue of an agreement with his brother Ethelred, that assembly annulled -the agreement, as destructive to the nation, then threatened by the -Danes, but enacted that Alfred should succeed to the whole, though -Ethelred, and also their elder brother Ethelbert left sons[308]. - -I know it is generally said that these three brothers succeeded by their -father’s will, and so the Conqueror pretended a will of Edward the -Confessor in his favour, but what had Ethelwulf to leave, but the little -kingdom of Kent, which was assigned to him upon his deposition. Besides -his will was, that they should succeed in case of issue failing, and they -succeeded though there were sons; and Alfred, who should know his own -title best, acknowledged he had received his crown from the bounty of the -princes, elders, and people. Here I should mention, that the kings had -not a right to marry themselves without the consent of their people, for -of Alfred it is observed, that he did so, _contra morem & statuta_, not -only against custom, but against positive laws. To go through no more -particulars; it appears from history, that all the kings of the Saxon -race were elected; so were the Danes; so was the last Harold, though not -of royal blood, and though Edgar Atheling, who was the lawful heir, had -the kingdom been hereditary, was living; so was the Conqueror, and that -was the just title he had. But enough of this point. - -To see how justice was administered among the Saxons; the kingdom, -for this purpose was divided into _shires_, those into _hundreds_, -or, as we call them in this kingdom (Ireland,) _baronies_, and these -into _tithings_, so called because they originally consisted of ten -contiguous families, over which a _tithingman_ presided. Every man, in -these tithings, was bound to keep the peace, not only for himself, but -for the others of his tithing; and if one of them committed a crime, the -rest were obliged to search him out, and produce him for trial; otherwise -the tithing was grievously amerced. This division of the kingdom into -_counties_, and their subdivisions, is generally ascribed to king Alfred. -That the division of hundreds into tithings was his is undoubted; and it -is probable the division of counties into hundreds was his also; that the -people, beggared by the Danish incursions, might have justice rendered -to them nearer their own homes, without the expence, the fatigue, and -even danger of travelling to the county town. But as to counties, they -certainly were more antient. Justice could not be administered, according -to the principles of the German policy, in a country so large as one -of the kingdoms of the heptarchy, without its being subdivided; and -accordingly, during those times, before the union of these kingdoms -into one, we find, in the old laws, the mention of _shires_ and -_sheriffs_[309]. - -But though Alfred was not the first maker of the divisions, we are not -therefore to charge the writers that give that account with falsity. -Even before his reign the Danes had made settlements in England, in the -northern parts. In the very beginning of it they reduced him to content -himself with the countries south of the Bristol channel and Thames, with -the addition of Essex, which, in their ravages, they had thrown into -the greatest confusion. The rest of England was left as their prey, in -which, after ravaging it several years, they fixed themselves, until, -at length this great prince, to whom no king, I may say, no man, whom -history has recorded, was superior, either for piety to God, for a strict -love of justice, for a fatherly affection to his people, for heroism in -battle, for fortitude of mind (that never despaired in the lowest state -of his affairs, when all seemed desperate) or for a wisdom capable of -directing upon every occasion the proper measures to be taken by the -state over which he presided; I say, until this great prince trampled his -enemies under his feet, and obliged the Danes, who had so long looked -upon him with contempt to sue to become his subjects, and to receive -the lands they had usurped, from him as their king and lord. For to -expel them was impossible, and if it had been otherwise, and the matter -had been effected, they had committed such massacres in the lands they -possessed, that the country would have been desolate. Then, indeed, this -king settled the limits of shires or counties, through all England; in -Essex, and the counties south of the Thames, I presume, according to -the old limits. For if we allow for one county being more woody, or -having more unprofitable land than another, they appear to bear no great -disproportion to each other. But, as to the lands the Danes held, it was -different, for here, to win his new subjects, he was to accommodate the -division somewhat to that which they had made among themselves, under -their several leaders. Hence, in that part of England which was then -Danish, we find the greatest difference between the size and value of -the lands in the several counties, some excessively large, and others as -exceedingly small; which, I think, is no way to be accounted for, in so -wise a prince, but that the several tribes of these Danes were to be kept -in their old bounds, and separate from each other. In such a succession -of ages, undoubtedly, these boundaries have received alterations, but -they could not have received such as would account for the disproportion; -and in truth we find the Danes had divided the land before he conquered -them. - -In those counties and hundreds justice was administered to the -inhabitants near their homes, without the delays and expences of -resorting to Westminster. The court held by the sheriff, assisted by the -bishop, was, in its origin, as we find in the red book of the exchequer, -and had cognizance of four several matters that were handled, in this -order. First, all offences against religion and the ecclesiastical -jurisdiction were tried. The bishop, or his commissary, here was judge, -and the sheriff was his assistant; and if the delinquent disregarded the -censures of the church, he enforced the sentence by imprisonment. Next -were tried temporal offences, that concerned the publick, as felonies, -breach of the peace, nuisances, and many others. Here the sheriff was -judge, and the bishop was assistant, to enforce the sentence with -ecclesiastical censures. Thirdly, were tried civil actions, as titles -to lands, and suit upon debt or contracts. Here the sheriff presided, -but the _suitors of the court_, as they were called, that is, the -freeholders, were the judges, or as we now say, the _jury_, and the -sheriff executed the judgment, assisted by the bishop, if need were. -Lastly there was held an _inquest_, to see that every person above twelve -years of age who was in some tything, had taken the oath of allegiance, -and found security to the king for his good demeanor. This was called -the _view of frank pledge_, that is, the viewing that every person had -nine freemen pledges or security for his loyalty to the king, and his -peaceable behaviour to his fellow subjects[310]. - -But since the time of king Edgar, at least, this court has been divided -into two, the criminal matters, both ecclesiastical and civil, and also -the view of frank pledge was dispatched in one court called the _tourn_, -that is, the _circuit_, from the bishop and sheriffs going circuit -through the county; and the civil business was dispatched in another, -called, the _county court_. The law was, that the sheriff and bishop -should twice in the year go their circuit or tourn, namely, in the month -following Easter, and the month following Michaelmas; and should hold -their court in every hundred of the county; but the view of frank pledge -was to be taken only once a year, namely the tourn after Easter. But for -the more ready dispatching civil causes, the county court was held once -a month, that is in twenty-eight _days_, reckoning a month by four weeks -and not by the calendar[311]. - -Out of these courts were others afterwards derived, for the more easy and -expeditious way of distributing justice. Out of the sheriff’s tourn, were -two, the _hundred court_, and the _court leet_, and they had cognizance -of the same matters the tourn had, and were erected independent of the -sheriff’s tourn, for the mutual ease of him and the inhabitants, where, -in large counties, the hundred lay too remote to be conveniently visited -in the circuit. But many inconveniencies arising from the sheriff’s power -not running in these separated jurisdictions, the hundred court, which -was held by the steward of the hundred, were all, except a very few, that -had been given in fee to some great men, reunited to the tourn, and so -they vanished in Edward the Third’s reign[312]. - -The leet was of the same nature as the hundred court, derived out of the -tourn, and made a separate jurisdiction; but it was held in the name of a -subject, by the lord of the manor’s steward, and to the lord belonged the -profits of the courts leet. They were, however, though held by a subject, -in his own name, esteemed as the king’s courts, and allowed to be courts -of record, as well as the tourn from which they sprung. - -Out of the county court, which was for private causes, was derived the -_court baron_. It was held from three weeks to three weeks, as all courts -were in the early Saxon times. It was when a manor was exempted from the -sheriff’s county court, and the jurisdiction granted to the lord, to -hold plea of civil suits. In this the suitors were the judges, as in the -county court[313]. - -In these several courts was justice administered in the Saxon times, -and even for a considerable time after the conquest, for the most part. -But soon after that time inconveniencies were found, partly from the -partiality of the judges in these inferior courts, and partly, from their -ignorance in law. Then began the higher court to draw to themselves the -jurisdiction of these matters, and the county courts to be confined to -pleas of such matters as exceeded forty shillings in value. The pleas of -lands were likewise brought in there, and discussed either in the higher -courts, or before justices of _nisi prius_. The appointment of _justices -errant_, and _justices of assize_; of _justices of goal delivery_, and of -the _quarter sessions_, together with the many powers granted by divers -acts of parliament to one or more justices of the peace, have, in a -succession of ages, continually sunk the business of these courts, and -have left them but a shadow of what they were. - -But although most of the business in the old times was in these inferior -courts, there was one superior, that even in the Saxon times, had a -concurrent jurisdiction with them, the _curia regis_. The curia regis -sat in the king’s palace, and removed with him from one part of the -kingdom to another, generally in the king’s hall; except when they -judged questions belonging to the king’s treasure, when they sat in his -treasury, called the _exchequer_, from the chequered cloth wherewith -the table was covered. The judges were, the judiciary, the chancellor, -and the treasurer, together with such great lords as were attendant on -the court; so that, in parliament time, all the great lords sat there; -and this was the foundation of the lords judicature in parliament. The -judiciary presided in all cases that did not concern the revenues, and -indeed his power was so exorbitant by the antient law, being regent of -the kingdom in the king’s absence, that sometime after the conquest, the -kings thought proper to abolish the office, and divide even his judicial -power into several hands[314]. - -The chancellor was one of the most learned ecclesiastics. It fell, -therefore, naturally to his province to make out all writs, and -processes, and letters patent, and consequently the great seal of the -kingdom was lodged with him. He attended, likewise, something in the -nature of an equity judge; not that there was any such thing as a -distinct _court of equity_, but, as a learned and pious man, to direct -with his advice whenever the case happened, where conscience dictated one -way and the strict law another. The treasurer was present also to take -care that the king had his fines from offenders, which he was afterwards -to collect into the exchequer where he presided, where also he set leases -of the king’s lands for years, collected his rents and debts, and took -care of his escheats and forfeitures. The proper jurisdiction of this -court was where the king was concerned in interest as to his revenue; -where one of the great peers was to be tried for heinous offences, or -even where two persons had been guilty of crimes that seemed to have a -general influence, and tended to general confusion. For unless the crime -of a lower person was very heinous indeed, he was tried in the country, -in the tourn. - -Civil causes likewise between the great lords fell under their -inspection, but those between meaner persons they seldom meddled with, -unless they had for difficulty been referred or adjourned to them from -the courts below, and if they, in that case, found the cause of great -difficulty, they adjourned it to the _curia regis_ in full parliament. -However, as they had the power of judging civil causes between all -persons in the first instance, if they thought the cause of such a -nature, that justice was not likely to be done in the country, they -had many applications from such as had those apprehensions; and as -this court had a discretionary power, either of sending them back to -the county-court, or of admitting them here, this gave an occasion for -exacting fines for license to plead in the king’s court, and thereby -of increasing his revenue; until at length, when the inferior courts -declined in reputation, and every man sought for justice in the _curia -regis_, these fines, being arbitrary, became an intolerable grievance, -which was remedied by those famous words in Magna Charta, _Nulli -vendemus, nulli negabimus justitiam_, as I shall observe hereafter. Such -were the courts held in the Saxon times, and for some time after the -conquest, whose several jurisdictions it is proper to point out, for the -better understanding of the alterations that afterward ensued[315]. - -I next proceed to the _method of trial_, or determining the matters in -issue in these courts. And they were the same that were used abroad, -which I have already mentioned, and shall therefore barely run them over. -First, _ordeal_, either by putting their hands in boiling water, or -holding a red hot bar of iron in their hands; or by _cold water_, that -is, tying their hands together, and their feet together, and throwing -the person accused into a pond; and this method the ignorant vulgar -have adopted to try witches. Secondly, the _oath_ of the party, with -_compurgators_, or, as it is called, _waging his law_; and in this manner -was Earl Goodwin acquitted of the murder of Alfred, king Ethelred’s -brother. Thirdly, _battle_, which was the usual method of trying the -title to lands, and appeals of felony, or capital crimes. - -If a man was indicted of felony at the king’s suit, he could not offer -battle; for challenging the king was a breach of allegiance, but if he -was appealed of felony by a subject, he had his choice either of battle, -or submitting to be tried by a jury. But if he waged battle, he must -fight in proper person, whereas the appellant, who might be an infant, -or decrepid with age, or a man of religion, or a woman, was allowed -a champion. If lands were demanded from a man, he had, likewise, the -option of trial by battle, or by _grand assize_. If by battle, then were -both parties allowed champions, if they desired it; but the champion, -in such case, must first swear, that he knows the land was the right of -the party he fought for, or that his father told him he knew it, and -charged him to bear witness thereof. So that this trial was referring it -to the providence of God, which of the two contradictory witnesses, the -champions, swore true[316]. - -The other method was by the grand assize. _Assize_, coming from -_assides_, to fit together, signifies a jury. It was called _grand_, -because of its number. The sheriff returned four knights, who chose -twelve knights more, and their verdict determined. But the most usual -method of trial among the _Saxons_ was by _juries_, as at this day, that -is, by twelve of the _pares curiæ_. The invention of these is attributed -by the English lawyers to Alfred, and greatly do they exult over the laws -of other countries in the excellency of this method. But had they been -acquainted with the ancient laws of the continent, they would have found -the trial by _pares_ common to all the northern nations, though since -wore out by the introduction of the civil law; not so common, indeed, any -where as in England; where every age it gained ground, and wore out the -other[317]. Alfred’s merit, therefore, was rather in fixing the number, -and determining the qualities of the jurors, than in the invention; but -what these several qualifications were, will come in more properly in -another place. - - - - -LECTURE XXVII. - - _The punishment of public crimes and private wrongs among the - Saxons—The ranks of men among the Saxons—The difficulty of - ascertaining the nature of the Saxon estates, and the tenures - by which they were held—Observations to prove that the Saxon - lands were in general allodial._ - - -In my last I gave an account of the courts wherein the Saxons -administered justice, and of the several methods of trial used in them; -it will be proper to add a few words concerning their _punishment_ of -persons found guilty either of public crimes or private wrongs. When I -spoke of the customs of the German nations, while they lived in that -country, I observed, that all offences were punished by _fines_ only, and -none by _death_, two only excepted, desertion in war, and the rape of a -married woman. The nations descended from them, when they settled within -the limits of the Roman empire, continued the same practice for some -ages, as did the Saxons also in England. - -All wrong and crimes, not excepting murder and high treason, were -redeemable by fine and imprisonment, until the Heptarchy was declined; -and for this purpose their laws assigned the several mulcts that were -to be paid for the different offences. Murder was rated higher or -lower according to the quality of the person slain. That of their king -himself was valued at thirty thousand _thrymsæ_, a piece of their money. -But afterwards it was found necessary to inflict capital punishments. -Treason, murder, rape, and robbery, were of the number so punished, -though the punishment of rape was afterwards _castration_; but after the -Conquest it was made capital again. Corrupt administration of justice -was another; for it is recorded, to the praise of Alfred, that he hanged -forty four unjust judges in one year[318]. These were the judges in -the tourns, ealdermen of the counties, or their deputies the sheriffs. -Other offences against the public continued punishable by fine and -imprisonment, and satisfaction for private wrongs was obtained either -by restoration of the thing unjustly detained, if it was extant, or a -compensation to the value in damages, if it was not[319]. - -As to the order and ranks of people among them, there were, properly -speaking, but two, _freemen_ and _villeins_. The last, I presume, were -the remains of the antient Britons, but among the freemen there were -various orders, not distinguished by any hereditary difference of blood, -but by the dignities of the offices they held by the gift of the king. -Not that we are to imagine there was no regard whatsoever paid to the -descendants of great and illustrious men. As their king was eligible out -of the royal family only, so were there a number of other families, to -whom the enjoyment of these honourable offices were, I may say, confined, -not by any positive distinctive law, but by general practice, and by -the king’s constantly choosing out of them; and who may, with propriety -enough be called the _nobility_. Those honorary offices were of different -ranks of dignity; such as those of _ealdermen_ or _earls_, _coples_, -or as they were sometimes called _Thanes_, _Præpositi_, or rulers -of hundreds; all of whom were, originally, removeable at the king’s -pleasure, though, unless they misbehaved, they were generally continued -for life. - -Some, indeed, have thought that earldoms were hereditary, even in the -Saxon times, because they see that earl Goodwin’s son succeeded him, -and the same was true in some other families also. But there is a great -difference between a son’s succeeding to his father by a legal right of -inheritance, and his succeeding either by the voluntary favour of the -king, or by his extorted favour, when a family has grown so powerful, -as to make it a necessary act in the king, in order to preserve public -peace. The latter was the case with respect to earl Goodwin’s family. -Edward the Confessor hated him mortally for the death of his brother -Alfred, as he did his whole family for his sake. However, as he owed the -crown solely to his interest and intrigues, as he was well acquainted -with the power, and knew that he had spirit enough to attempt dethroning -him, if once offended, that prince, who was careless of what came after -him, so he might reign in peace during life, caressed Goodwin and his -family; dissembled all resentment, and, after one or two weak struggles, -let him and his family govern the kingdom at their pleasure; a conduct -that raised them still higher in the opinions of the people, and -concurring with the incapacity of Edgar Atheling, Edward’s nephew, raised -Harold to the throne, as the only man in England capable of defending it -against two powerful invaders[320]. - -But the great difficulty is to know what kind of _estates_ the Saxons had -in their lands, and by what _tenures_ they held them. This question hath -divided the lawyers and antiquaries of England; some holding that the -tenures were as strictly feudal, as after the conquest, while others as -strongly deny it. I shall not, in this difficult point, pretend to decide -absolutely where so great masters differ, but only make some observations -that perhaps would induce one to believe, that the Saxon lands were, in -general, _allodial_, some of them military benefices for life, and none, -or, if any, at least very few feudal inheritances; and this I take to be -the truth of the matter. - -First, then, the Saxon lands in general, were inheritances, descendable -to heirs; and were all subject to military service. An _Heriot_, which is -contended to be the same as the Norman _relief_, was paid upon the death -of the ancestor, and all landholders took the oath of allegiance, or of -fealty, as they would have it; and therefore, Coke and others conclude -that their lands were feudal, and held by knight service; and tho’ there -are no traces either of _wardship_ or _marriage_ to be met with in those -times, they insist that they, as fruits of knight service, must have been -in use tho’ from the paucity of the Saxon records remaining, they cannot -be discovered[321]. - -This reasoning seems to have great strength, and yet, if we examine with -a little attention, perhaps, these very arguments, when well considered, -will prove the contrary, _viz._ that most of the Saxons lands were -allodial. - -First, then, as to their being hereditary: This, singly, is far from -being a proof of their being held by a feudal tenure. The lands of the -Greeks, of the Romans, I may say of all nations, except the conquering -Germans, nay, the allodial lands in their conquests, were hereditary. -Their being so seems rather a proof of their not being founded on the -feudal policy; for the military benefices did not become inheritances -any great length of time before the conquest; whereas there is no ground -to believe that the Saxon lands were ever otherwise. Besides, they had -some qualities that are utterly incompatible with the feudal system. They -were not only inheritances, but were _alienable_ at the pleasure of the -owner, without any leave from the superior, and were, likewise, devisable -by will; so that the Saxons were absolute masters of their land, and not -obliged to transmit to the blood the donor intended to favour, contrary -to the feudal law abroad, and to our law after the conquest. I shall -observe, by the way, that some lands in England in particular places, -being by custom devisable by will after the conquest, was a relict of the -old general Saxon law, those places not having, along with the rest of -the kingdom, embraced the feudal maxim[322]. - -Another striking difference is, that the Saxons’ lands were not -forfeitable for felony, which still remains by custom in the _gavelkind_ -lands in Kent, whence that country proverb, _the father to the bough -and the son to the plough_. Their lands likewise were equally divisable -among all the sons, as were gavelkind lands; which is a customary relict -of the Saxon law, contrary to general rule, since the conquest, where, -at first, the king chose one, and afterwards, as at this day, the eldest -alone succeeded. But this last I will not urge against their being of -feudal origin, for that was the antient law of fiefs; it only shews there -was a considerable alteration introduced at the conquest. However, though -their being inheritances singly will not prove them fiefs, yet, when that -is joined to the military tenure, to the payment of reliefs, and to the -oath of fealty, we must allow them to be such. Let us see then, whether -any of them, singly, or taken all together, will enable us to draw that -conclusion[323]. - -Certain it is, then, that all the lands in England were, in the Saxon -times, liable to military service; but this will not prove that they -were feudal. For, as I have observed in a former lecture, the allodial -lands in France were subject to the same. Every man who held land as an -allodial tenant, was, according to the quantity, either to find a foot -soldier equipped for the wars, or to join with another to find one, if -he had not land sufficient. These allodial lands were subjected by law -to three sorts of duties. The first I have mentioned, the other two were -building, and repairing bridges, and furnishing waggons and carriages for -the conveyance of arms and the king’s provisions, or money[324]. - -The Saxon lands were, likewise, subject to what they called _trinoda -necessitas_, the three knotted obligation. The first was, furnishing a -foot soldier; the second, which was not in the allodial lands abroad, -was _arcis constructio_ the building and keeping in repair castles and -forts, where the king, for the public good, ordered them to be erected; -and lastly, _pontis constructio_ the building and repairing of bridges. -As to furnishing carriages, the Saxon freemen were exempted; these being -supplied, in that constitution, by the lower tenants in ancient demesne; -or the king had a right to seize any man’s carriages by his purveyors, -and use them upon paying for them. This right of purveyance of carriages, -and of timber, and of provisions for the king’s household, which was -intended for the king’s benefit, and by which no loss was to accrue to -the subject, as he was to be paid the value, became, in the hands of -the greedy purveyors, an occasion of great grievances; those officers -seizing, often more than was wanted, often where nothing was wanted, -merely to force the proprietor to a composition of money on restoring -them. The manner of payment, too, became very oppressive. The rates were -fixed at first at the due value, but as the rate of money changed, and -the prices of things rose, it came to be under the half, and as it was -not paid for on the spot, but by tickets on the treasurer, the owners, -were frequently put to more trouble and expence in attendance than the -value of their demand. This the purveyors well knew, and therefore turned -their office into an engine of extortion. Many were the proclamations -issued by the king; many the acts of parliament made to regulate it; -But the evil was inveterate, and proved very heavy even under the -best princes. The complaints of these oppressions were as great under -Elizabeth as under her successor James, and indeed, the evil was so -inveterate, that nothing but cutting it up by the roots, the destroying -purveyance itself, could cure it[325]. - -But to return to the military duty done by the Saxons in general for -their lands. In the first place, then, they served as foot soldiers, -and not on horseback, and in compleat armour, as the feudal tenants -were obliged. Again, the feudal tenants attended not but when called -upon, whereas, the Saxons had regular times of meeting and mustering, -though not summoned, in order to see that the men were well trained, and -properly armed. But the great difference lay in this, that no particular -person was bound to military duty, in consideration of his tenure in -the lands. The lands themselves were liable. Every hide of land found -a man, whether it was in the hands of one, or more persons. There was -then no personal attendance, and, consequently, no commutation for it. -The hide of land supported its soldier, while he continued fighting in -his own county; but if in another, he was to be maintained either by -that county, or the king; whereas, the military tenants, by the feudal -law, were obliged to serve forty days at their own expence, wherever the -king pleased, if the war was a just, or a defensive one; and indeed, -as William the Conqueror modelled it, if the war was even unjust, or -offensive. These differences, added to what I have already observed, -concerning their lands not being escheatable for felony, being alienable, -and being devisable by will, I think, shew plainly that, though the lands -were subject to military service, it was upon grounds and principles very -different from the feudal ones, and that they were rather in the nature -of the allodial lands on the continent. - -As to _Herriots_, which Coke and his followers insist much upon, as being -_reliefs_, they also, when thoroughly considered, will, perhaps, be found -to be of a different nature. A Herriot was a title the landlord had from -his tenants, and the king, as supreme landlord, from his, of seizing, -the best beast of his dead tenant, or his armour, if he was a military -man. These being due upon the death of the tenant, certainly bore some -resemblance to the reliefs on the continent, and are in king Canute’s -law, which was written in Latin, called by the name of _relevatio_. To -shew what they were in that time, the _relevatio_, or Herriot of an earl, -was eight horses, four saddled, four unsaddled, four helmets, four coats -of mail, eight lances, eight shields, four swords, and two hundred marks -of gold; of the king’s thane four horses, two saddled, two unsaddled, -two swords, four lances, four shields, his helmet and coat of mail, and -fifty marks of gold; of the middling thane, a horse with his furniture, -with his arms. But, then, Spelman justly observes, that these were not -paid by the heir, as a relief to the lords, to entitle him to enter on -the inheritance. The heir had the lands immediately and was not obliged -to defer his entry till he had paid them, as he was his relief by the -feudal law, and by the law of England after the conquest. Nay, they were -not paid by the heir at law, but by the executor or administrator, as a -perquisite out of the tenant’s personal fortune[326]. - -However, William the Conqueror, finding these perquisites in use, and -that in Latin they were called _relevationes_, took advantage thereof, -and as the forfeited lands he bestowed on his Normans were given upon -the terms, and with the same burthens as lands on the continent, so were -the reliefs he exacted from such in the same manner, made payable by the -heir, not the executor; and as to the unforfeited lands, which remained -to the Saxons, and were very inconsiderable in number, he, in the manner -I shall shew in the next lecture, converted them, into real fiefs, such -as were then in use in France; from whence the reliefs came, likewise, -to be exacted from the heir, and to be considered as redemptions of the -inheritance, which, upon the principles of the feudal policy, could not -be entered upon by the heir till the relief was paid. This alteration -it was not in the Saxon landholders power to oppose, on the account -before-mentioned; nor, indeed, was the burthen on the heir such, if no -consequences were to be apprehended from it, as deserved opposition; for -William fixed the reliefs at a certainty, at the same rate, or with very -little addition, as the Herriots were in Canute’s law. - -But experience soon shewed what effects might follow from the -construction of Norman judges, at the devotion of a king, upon the word -_relevium_ being used, and its becoming payable by the heir, instead -of the executor; his son and successor insisted that reliefs were by -the feudal law arbitrary, and looked upon his father’s limiting them -as a void act, that could not bind his successors. He, accordingly, -exacted arbitrary and excessive reliefs both from the Norman and Saxon -landholders in England, which exasperated both equally against him; -for though the reliefs in France were, by no law, as yet reduced to a -certainty, yet by custom they were to be reasonable, and not to be -merely at the will and discretion of the king or lord; in consequence of -which he was, on some occasions, forced to depend almost entirely, in his -wars with Normandy, on the mercenary army of the lower English, who had -no property; and had his reign continued much longer, it is extremely -probable he would have felt severely for the oppressions he laid his -military tenants of both nations under. But he dying in ten years, Henry -was obliged, before he was elected, to swear to observe the laws of -Edward the Confessor, which he did, with such emendations as his father -the Conqueror had made; and accordingly, as to _reliefs_ he faithfully -observed his oath; but it being inconvenient for the heir, who was at a -call to perform military duty, to be obliged to pay his relief in arms, -which he might want on a sudden emergency, it was therefore, generally -commuted for money. However, there being no settled rate fixed, at which -this commutation should be regulated, this also was made an engine of -oppression in John’s reign, until it was finally fixed at a certain sum -of money, according to the different ranks of the persons, by _Magna -Charta_[327]. - -As to the last argument, of the _Oath of fealty_ being taken by the -Saxons, it is the weakest of all. An oath of fealty taken by a feudal -tenant, was to his _lord_, whether king or not. It was merely as tenant -to him of land, and in consideration of such, and consequently the -proprietors of land only were to take it. The oath the Saxons took, which -is likened to this, was to the king, as king not as landlord, and not -at all in consideration of land; for every male person above the age of -twelve years was obliged to take this oath among the Saxons, whether he -had lands or not. In truth, it was no more than an oath of allegiance to -the king, as king, which was common in all kingdoms, and not peculiar to -those where the feudal maxims prevailed[328]. - -Hence I think I have some liberty to conclude, though I do it with due -deference, as the greatest masters in the antient laws and records of -England have been divided in this point, that the very reasons urged to -prove that lands were held in the Saxon times as feudal inheritances, -prove rather the contrary, and that they were, in the general I mean, of -the nature of the allodial lands on the continent. - -In my next I shall speak of the alterations introduced by the conqueror, -both as to the tenure of lands in England, and as to the administration -of justice, which were so remarkable, as to deserve to be considered -with the strictest attention, as they laid the foundation for the great -alterations that have followed since. - - - - -LECTURE XXVIII. - - _The Saxons, though their lands in general were allodial, were - not strangers to military benefices for life—The alterations - introduced by William the Norman, as to the tenure of lands in - England._ - - -Though, in my last, I have delivered my opinion, that the lands of the -Saxons were not feudal, but allodial, I would not be understood as if -there were no lands held by them upon military service, different from -the allodial I have already described. It is undeniable, that there -was among them _lord_ and _vassal_; that there were lands held by such -military service as was performed abroad; where the bond of fealty -subsisted between lord and tenant, and where the tenants were obliged -to serve in person on horseback. But these were few; for the strength -of the Saxon army lay in their infantry. Besides, such were not feudal -inheritances, but benefices for life, for, in all the records remaining -of them, there is not a word implying an estate that could descend, or -a single trace of _wardship_, _marriage_, or _relief_, the necessary -concomitants of such estates. What puts that out of all doubt, in my -apprehension, is one of the laws of William himself, where he says it -was he that granted lands _in feudum, jure hæreditario_, which words are -added, by way of distinguishing the estates he granted from the military -estates for life, in use before. The word _feudum_ alone would have -been sufficient, had that law been in use before, and the words _jure -hæreditario_ were added by way of explanation of _feudum_; and _feudum_ -is added by way of distinction from allodial inheritances[329]. - -When these military benefices began among the Saxons, I cannot say is -determined, but shall offer a conjecture, that carries a great face of -probability. That they were not coeval with the Heptarchy is certain; -for none of the German nations had, at that time, fixed estates for life -in their military holdings. What time, then, so probable as the days of -Egbert, who had resided long in the court of Charlemagne, where these -tenures were in use, and where he saw the benefit of them? Besides, this -was the very time that a body of horse began to be wanted, who could move -swiftly to encounter the Danes, then beginning their ravages, and whose -practice it was to land in separate bodies, and to kill and plunder, -until a superior force assembled, and then reimbarking, to commit the -same devastations on some other defenceless part of the coast. But these -kind of tenures, as I observed before, could be but few, as most of the -lands were inheritances appropriated to particular families. - -To come now to William. A single battle, wherein Harold and the flower -of the nobility were slain, determined the fate of England. However, -many of the great men survived, and the bulk of the nation were averse -to his pretensions. A weak attempt was made to set up Edgar Atheling, -the only prince remaining of the royal race, but the intrigues of the -clergy, who were almost universally on the invader’s side (on account of -his being under the protection of the pope, and having received from him -a consecrated banner) co-operating with the approach of his victorious -army, soon put an end to Edgar’s shadow of royalty. He submitted, as did -his associates, and they were all received, not only with kindness but -with many high marks of distinction. William, accordingly, was crowned -with the unanimous consent of the nation, upon swearing to the laws of -Edward the Confessor; and it must be owned he behaved, during his first -stay, with the utmost equal justice and impartiality between the Normans -and natives. But the continuing to act in that manner did not consist -with his views, which were principally two; the first to gratify his -hungry adventurers with lands, the next to subvert the English law, and -introduce the feudal and Norman policy in lieu of it[330]. - -The first step he made there was no finding fault with. It was now -allowed, that William’s title was legal from the beginning, and that -Harold was an usurper, and all that adhered to him rebels. He made -enquiry for all the great men that fell in battle on Harold’s side. Their -lands he confiscated, and distributed, upon the terms of the Norman law, -to his followers; but these were not half sufficient to satisfy the -expectants, and the English were still too powerful, as he had pardoned -all those who survived. He therefore returned to Normandy, carrying -Edgar and the chief of the English nobility with him, under pretence -of doing them honour, but in reality, that they might be absent while -his views were carrying on; and in the mean time he left his scheme to -be executed by his Normans, and those he had appointed his regents. I -say _his_ scheme, for his interest, to exalt one side and depress the -other, on which he could not depend, almost forced him to this conduct. -The oppressions, therefore, were so exorbitant in his absence, as must -necessarily have driven a people to rebel, and for which a man of justice -would think the real delinquents ought to be the persons punished, whilst -the unhappy nation merited the freest pardon, for whatever they did when -actuated by a despair, proceeding from the denial of justice. But that -he himself was the immediate source of these distresses is evident from -his temper, which was such, that no regents of his durst have acted as -they did without his approbation. The Normans began by encroaching on -their neighbours the English, nay with forcibly turning them out of their -entire possessions. If these applied to the regents in the _curia regis_, -there was no redress. If they retaliated the injuries they suffered, they -were declared outlaws and rebels[331]. - -These proceedings threw the whole nation into a flame, and, had they -had a leader of sufficient weight and abilities to head them, William, -perhaps, might have been dethroned; but the right heir, and all the -men he feared, were out of the kingdom. They produced, therefore, -only ill-concerted, unconnected insurrections, headed by men of no -considerable figure, provoked by private wrongs; and these being easily -suppressed, afforded a fund of new confiscations, which he disposed of -in the same manner as the former, and thereby spread the use of the -feudal law further into several parts of England. However, though he did -not spare the insurgents, nor punish his officers that had occasioned -those commotions, he did not, as some have asserted, seize all the -lands of England as his by right of conquest; for, when he came over, -his court was open to the complaints of the English, and if any of them -could undeniably prove, as indeed few of them could, that they had never -assisted Harold, or been concerned in the late disturbances, they were -restored to their lands as they held them before; as appears from the -case of Edwin Sharrburn, and many others. By these means William obtained -the first of his great ends, the transferring almost all the lands of -England to his followers, and making them inheritances, descendible -according to the Norman law. - -But as to the inheritances that still remained in English hands, had he -not proceeded somewhat farther, they would have gone in the old course, -and been free from the burthen of feudal tenure. But how to alter this, -and to subject the few allodial lands, as also the church lands, to the -Norman services, was the question; for he had sworn to observe Edward’s -laws. The alteration, therefore, must be made by the _commune concilium_, -or parliament, and this he was not in the least danger of not carrying, -in a house composed of his own countrymen, enriched by his bounty, and -who were born and bred under the law he had a mind to introduce; and -who could not be well pleased to see some of the conquered nation enjoy -estates on better terms than themselves the conquerors. The pretence -of calling this assembly, which was convened in the fourth year of -his reign, was very plausible. The English had grievously and justly -complained of the constant violation of the Saxon laws, and the only -extenuation that could be made for this, and which had some foundation -in truth, was, that the king and his officers were strangers, and not -acquainted with that law. He therefore summoned this _commune concilium_, -or parliament, to ascertain what the antient law was, and to make such -amendments thereto, as the late change and circumstances of affairs -required. And, for their instruction in the old law, which was but partly -in writing, most of it customary, he summoned twelve men, the most -knowing in the laws of England, out of each county, to assist and inform -them what those laws were. - -Accordingly, we find the laws of William the First are, in general, -little other than transcripts of the Saxon laws or customs. However, -there are two, which were intended to alter the military policy of the -kingdom, to abolish the _trinoda necessitas_, and in its lieu, to make -the lands of the English, and of the church liable to knights service, -as the Normans lands were by his new grants, and thereby make the system -uniform. His fifty second law is entirely in feudal terms, and was -certainly drawn up by some person skilled in that law, for the purpose I -have mentioned. It runs thus: _Statuimus ut omnes liberi homines fædere -& sacramento affirment, quod intra et extra universum regnum angliæ, -Willielmo Domino suo fideles esse volunt, terras & honores illius ubique -servare cum eo, & contra inimicos & alienigenas defendere_[332]. - -I shall make a few remarks on the wording of this law; and first on the -word _statuimus_. Wright[333] observes, that it being plural, implies -that this was not by the king alone, but by the _commune concilium_, -or parliament, for the stile of the king of England, when speaking of -himself was for ages after in the singular number, and in the subsequent -part he is plainly distinguished from the enactors of the law; for it -is not _mihi_, or _nobis fideles esse_, but _Willielmo Domino suo_ in -the third person, nor, _terras & honores meos_ or _nostros servare_, but -_terras & honores illius_; and indeed, in the subsequent law I shall -mention it is expressly said in effect, that the subjecting the free -lands to knight service was _per commune concilium_. Secondly, the words -_liberi homines_ is a term of the feudal law, properly applicable to -allodial tenants, who held their lands free from the military service -that vassals were obliged to: And in this sense was it used in France -also, from whence William came. In these words were included also, the -men of the church, for as their lands were before subject to the _trinoda -necessitas_, it was reasonable when that was abolished, they should be -subject to this that came in the lieu of it. _Fædere_ and _sacramento -affirment_. _Fædus_ is the homage, which, though done by the tenant only -to the lord, was looked upon by the feudists as a contract, and equally -bound both parties, as is _sacramentum_; as appears after the feudal -oath of fealty; and they are placed in the order they are to be done, -homage first and then the oath of fealty. _Willielmo Domino suo_, not -_regi_, not the oath of allegiance as king, but the oath of fealty from -a tenant to a landlord, for the lands he holds. _Fidelis_ is the very -technical word of the feudal law for a vassal. But the words _intra & -extra universum regnum angliæ_ are particularly to be observed: For these -made a deviation from the general principles of the feudal law, and one -highly advantageous to the kingly power. By the feudal law no vassal -was obliged to serve his lord in war, unless it was a defensive war, or -one he thought a just one, nor for any foreign territories belonging -to his lord, that was not a part of the seignory of which he held; but -this would not effectually serve for the defence of William. He was duke -of Normandy, which he held from France, and he knew the king of that -country was very jealous of the extraordinary accession of power he had -gained by his new territorial acquisition, and would take every occasion, -just or unjust, of attacking him there; in short, that he must be almost -always in a state of war. Such an obligation on his tenants, of serving -every where, was of the highest consequence for him to obtain; nor was -it difficult, as most of them had also estates in Normandy, and were by -self-interest engaged in its defence. - -The next law of his I shall mention is the fifty-eighth, which -enjoins all who held lands by military service, and some others, to -be in perpetual readiness. It runs to this effect: “We enact and -firmly command, that all earls and barons and knights and servants, -_servientes_, (that is the lower soldiers, not knighted, who had not -yet got lands, but were quartered on the abbeys,) and all the freemen, -(namely the Saxon freeholders, and of the tenants of the church, -which now was subjected to knights service) of our whole aforesaid -kingdom, shall have and keep themselves well in arms, and in horses, -as is fitting, and their duty; and that they should be always ready, -and well prepared to fulfil and to act whensoever occasion shall be, -according to what they ought by law to do for us from their fiefs and -tenements; and as we have enacted to them by the _commune concilium_ of -our whole kingdom aforesaid; and have given and granted to them in fee -in hereditary right.” The great effect of this law was to settle two -things, not expressly mentioned in the former; the first to shew the -nature of the service now required, knight service on horseback; and the -other, to ascertain to all his tenants, Saxons as well as Normans, the -hereditary right they had in their lands, for if that had not been done -by this law, as now all lands were made feudal, and their titles to them -consequently to be decided by that law, they might otherwise be liable -to a construction, according to its principles, that any man, who could -not shew in his title _words of inheritance_, which the Saxons generally -could not, was but tenant for life[334]. - -This general law then put all on the same footing, and gave them -inheritances, as they had before, but of another nature, the feudal one, -and consequently, made them subject to all its regulations. From this -time, and in consequence of these laws, the maxim prevailed, that _all -lands in England are held from the king_, and that they all proceeded -from his free bounty, as is strongly implied in the word _concessimus_; -and hence some, indeed many, have imagined that the conqueror seized -all the lands of England, as his by right of conquest, and distributed -them to whom, and on what terms he pleased. With respect to the greater -part, which he gave to his Normans, this is true; but it appears from -the records of his time, that it was not universally the case. The laws -I have mentioned so changed the nature of the inheritances, which he did -not seize, that they were subject to all the same consequences, as if -he had so done; though in truth, with respect to the Saxons, he did not -dispossess them. It was but a fiction in law. - -I have mentioned that he made the lands of the church liable to knights -service, in lieu of the military expedition they were subject to before; -but this is to be understood with some limitation. For where the lands -of an ecclesiastical person, or corporation, were barely sufficient -to maintain those that did the duty, they, for necessity’s sake, were -exempted; and the Saxon expedition being abolished, the contribution -thereto fell with it, and they became tenants in _frankalmoine_, or -_free alms_. But where an ecclesiastical corporation was rich, and -able, besides their necessary support, according to their dignity, they -were, by these laws, under the words _liberi homines_, subjected to the -new ordained military service, as they had been before to the old, and -according to their wealth, were obliged to find one or more knights or -horsemen. If they were obliged to furnish as many as a baron regularly -was, they were barons, as all the bishops and many of the great abbots -were; and, as barons, sat in the _commune concilium_; whereas, before, -the clergy in general sat in parliament, as well as the laity, not as a -separate body, nor invested with separate rights, but both clergy and -laity equally concurred in making laws, whether relative to temporal -affairs or spiritual; though, with respect to the latter, it may well -be inferred, from the ignorance of the times, that they had almost the -entire influence. But after this time the clergy became a separate body -from the laity, had distinct interests also, and a separate jurisdiction; -nay, I may say, became, in some degree, a separate branch of the -legislature, by the right they claimed, and exercised, of making canons -to bind laity as well as clergy[335]. But the explaining this would carry -me too far at present, so I shall defer it to my next lecture. - -In the mean time, I shall just recapitulate the prodigious alteration, -as to the properties of landed estates in England, introduced by the two -laws of the conquerors, I have mentioned, from what was their nature and -qualities before that time. They had been the absolute proprieties of -the owner, (I speak in general,) they could be aliened at pleasure, they -could be devised by will, were subject to no exactions on the death of -the owner, but a very moderate settled herriot paid by the executor. In -the mean time, on the death of the ancestor, the heir entered without -waiting for the approbation of the lord, or paying any thing for it; and -his heir, if there was no will, was all the sons jointly. No wardship, -or marriage, was due or exacted, if the heir was a minor. All these, by -the feudal customs being introduced, were quite altered. Lands could no -longer be aliened without the consent of the lord. No will or testament -concerning them availed any thing. The heir had no longer a right to -enter into his ancestor’s inheritance immediately on his death, until -he (not the executor) had paid a relief (and that not a moderate one) -and been admitted by the lord. The heir, likewise, was not all the sons -jointly, but one, first, such as the lord pleased to prefer; at length -it became settled universally in favour of the eldest; and the fruits of -tenure, wardship, marriage and relief (for the Saxon herriot was, as I -have mentioned, a different thing) came in as necessary attendants of a -feudal donation. - -No wonder, then, that it has been said William introduced a new law, the -Norman one. He certainly did so as to landed estates; but this, as I have -observed before, by the consent of his parliament, who, being Normans, -were as well pleased with the change as himself; but it is not true -with respect to the other old Saxon laws, which did not clash with the -design of introducing the military feudal system. Them he confirmed, and -his feudal laws were called only emendations. However, certain it is, -his secret design was to eradicate even the Saxon, the laws he had, in -pursuance of his coronation oath, confirmed, and that he took many steps -thereto; which though they had not the full effect he intended, wrought -considerable changes. What these were, and the consequences of them, -shall be the subject of the next lecture. - - - - -LECTURE XXIX. - - _The alterations introduced by William, as to the - administration of justice—The Judges of the Curia Regis are - appointed from among the Normans—The county courts decline—The - introduction of the Norman language—The distinction between - courts of record, and not of record—The separation of the - spiritual and temporal courts—The consequences of this measure._ - - -William, by altering the nature of land estates, and the conditions upon -which they were held, had proceeded a good way in his second capital -design, the introduction of the Norman, and the abolishing of the Saxon -law. And farther than that, it was not proper nor consistent with his -honour, who had sworn to Edward’s laws, to proceed openly. However he -formed a promising scheme for sapping and undermining the Saxon law -by degrees. First, he appointed all the judges of the _curia regis_, -from among the Normans, persons fond of their own law, ignorant of the -English, and therefore incapable, even if they had a mind, to judge -according to it. - -Before his time this court only meddled with the causes of the great -lords, or others that were of great difficulty, but now it was thought -proper to discourage the county courts, and to introduce most causes -originally into the superior court; and for this there was a reasonable -pretence, from the divisions and factions between the two nations and the -partialities that must ever flow from such a situation of affairs. The -ancient laws of England had been written, some in the Saxon, some in the -Latin tongue, and the laws of William, and of many of his successors, -were penned in the latter language. But in the _curia regis_ all the -pleadings henceforward were entered in the Norman tongue, the common -language of his court, as were also, all the proceedings therein, until -the time of Edward the Third. This introduced the technical law terms -and with those came in the maxims and rules of administering justice -belonging to that people, which gradually, wherever they differed -from, superseded the English. Hence proceeded the great affinity I may -say, identity, between the antient law of Normandy, as set forth in the -_coutumier_ of that country, and the law of England, as it stood soon -after the conquest. - -The analogy, however, did not arise from this alone. Though England -borrowed most from Normandy, yet, on the other hand, Normandy borrowed -much from England. William, for the ease of his people, who had occasion -to frequent his court, or had suits in the _curia regis_, established -schools for instructing persons in this language, and obliged parents of -substance to send their children thither, which had the consequence of -abolishing the old Saxon tongue, and forming a new language, from the -mixture of both[336]. - -This introduction of a new language, together with the exaltation of -the _curia regis_ and the consequent depression of the county courts, -introduced, as I apprehend, the distinction between the _courts of -record_, and _not of record_, and made the county courts considered of -the latter kind. Courts of record are such whose proceedings are duly -entered, which, at that time, was to have been done in the Norman tongue, -and which proceedings are of such weight, as, unless reversed, for ever -appearing from the record, can never be gainsaid or controverted. Now, -to allow such a privilege to the proceedings of the inferior courts, -the county ones, where the suitors were judges, and where, besides, the -proceedings were in the English language, would have been contrary to the -policy of that time, and would have tended, rather to the confirmation -than depression of the old law. The spiritual courts, also, are not -allowed to be courts of record, and that, I presume, because they were -antiently a part of the county courts, and separated from them, as I -shall shew presently in this reign, and therefore could have no greater -privilege than the court from which they were derived. However some -inferior courts, such as the _tourn_, and the leet, were allowed to be -courts of record, and that, I conceive, both for the benefit of the -realm, and the profit of the king; for these were criminal courts, where -public offences were punished, and therefore should have all weight given -them, and where the king’s forfeitures and fines for crimes were found. - -I have observed before, that the courts, in the Saxon times, were -mixed assemblies, where the bishop and sheriff presided, and mutually -assisted each other, and where the bishop, I may add, had a share in the -amerciaments and fines. But in this reign the spiritual and temporal -courts were separated by William, a thing which afterwards was of bad -consequence to many of his successors, but was, at the time, very -serviceable to the views he then had. This was certainly done partly to -oblige the pope, who had espoused his title, and at this time was setting -up for the universal lord of churchmen, though, in after times, they -carried their pretensions much higher[337]. - -One great engine the popes set on foot to attain the power they aimed -at, was to make a distinction between _clergy_ and _laity_, to have -the matters relating to the former, as well the merely spiritual as -the temporal rights they had acquired, cognizable only in their own -jurisdictions; and, to preserve the distinction stronger, to forbid their -interfering in the temporal courts, upon pretence of their time being -taken up in spiritual exercises, and particularly, that it suited not the -piety and charity of a clergyman, even by his presence, to countenance -the proceeding to sentence of death, or the mutilation of limbs. Many -were the laws they made for this purpose, upon motives of pretended -piety; and the circumstances and practices of the times contributed -greatly to their success. The emperors, kings, and great lords, had the -nomination to bishoprics, and other benefices, as their ancestors had -been the founders, and their lands were held from them. But shameful was -the abuse they made of this power. Upon pretence of the clergy being -their beneficiary tenants, according to the principles of the feudal law, -they exacted reliefs, and arbitrary ones from them before investiture, -or, to speak in plain terms, they sold them on Simoniacal contracts to -the highest bidder, as the Conqueror’s son William did afterwards in -England; so that the profligate and vicious were advanced to the highest -dignities, while the conscientious clergy remained in obscurity; nay, if -they could get no clergyman to come up to their price, they made gifts of -the title and temporalities to laymen, nay, to children; it was a matter -of little concern that there was no one to do the spiritual office. - -Such practices, (and they were too common) gave just and universal -offence to all sober persons, so that the popes were generally -applauded for their aiming at the reformation of the evils, and for the -endeavouring, by their decrees, to reform the morals of the corrupt -clergy, and to restore an elective manner of conferring benefices, though -their real design was first to become the protectors of the clergy, -next, their lords and masters, and then, by their means, to tyrannize -over the laity; a plan which they carried into execution with too much -success. This plan was in the height of its operation in William’s reign. -The foundation of it had been laid before, as I observed, in the many -distinctions made between clergy and laity, and the prohibiting the -first, except some great ones, from meddling with secular affairs, or -tribunals. This reparation, however, had not yet taken place in England, -and it is not a wonder that William, who had peculiar views of his own in -it, as I shall observe, thought it reasonable to oblige his benefactor -the pope, and to conform the constitution of this church and nation to -that of France, where the clergy were a separate body. - -The private views of the king were twofold, the first arose merely -from his personal character, his avarice. By the bishop’s ceasing to -be a judge in the temporal courts, he lost his share of the mulcts or -fines imposed therein, and in consequence the king’s two-thirds of them -were encreased. But his other view lay deeper. To comprehend this, we -must remember how great was the ignorance of those ages. Scarce a man, -except a clergyman, could read or write, insomuch that being able to -read was looked upon as a proof of being in orders. Many even of the -greatest lords could not write their names, but signed _marks_; and from -this ignorance it was that proceeded the great weight our law gives to -_sealing_ above _signing_ any instrument, and that sealing is what makes -it a man’s deed. It followed from hence that the laity must be grossly -ignorant in point of the laws. Their knowledge could extend no farther -than as they remembered a few particular cases, that fell under their own -observation; whereas the clergy had the benefit of reading the written -laws, and consulting the proceedings thereon, in the rolls of the courts -of justice, and they were the only lawyers of the times; insomuch that it -became a proverb, _nullus clericus nisi causidicus_. - -What method then could so effectually answer the king’s end of making -the Saxon law fall into oblivion, which he could not openly abolish, -after having solemnly sworn to observe it, as the removing from the -courts of justice those persons who only knew it, and could oppose any -innovation his Norman ministers should attempt to introduce. This policy, -however, as artfully as it was laid, had not its full effect; for many -of the clergy, unwilling to lose so gainful a trade, appeared still -in these courts in disguise, as laymen, and at this time it is very -probably conjectured that that ornament of the serjeant at law’s dress, -the _coiff_, was introduced, and for this very purpose of hiding the -tonsure, which would have shewn them to be clerks. This their attendance, -in some degree, frustrated the scheme, and many of the Saxon laws, such -especially as were repeated in William’s, kept their ground, but many -more were forgotten. - -I mentioned that one motive of William’s to separate the jurisdictions, -was to oblige the pope, to whose favour he owed much, yet it ought to -be observed to his honour, that he maintained the independency of his -kingdom with a royal firmness. Pope Gregory, commonly called Hildebrand, -who was the first that ventured so far as to excommunicate sovereign -princes, as he did the emperor no less than four different times, -conceiving William could not sit securely on his throne without the aid -of his see, demanded of him homage for the kingdom of England, and the -arrears of Peter’s pence; grounding his claim of superiority on his -predecessor’s consecrated banner, and that Peter-pence was the service -by which the kingdom was held from the holy see. But he found he had a -man of spirit to deal with. William allowed the justice of the demand -of Peter-pence, and promised to have it collected and paid, not as a -tribute, but as a charitable foundation, as in truth it was, to support -a college of English students at Rome, for the benefit of the English -church. As to _homage_, he absolutely refused it, and declared he held -his crown from God alone, and would maintain its independence; and to -convince the pope he was in earnest, he issued an edict forbidding, on -their allegiance, his subjects to acknowledge any person for sovereign -pontiff, until he had first acknowledged him. So bold a step convinced -Gregory, who was already sufficiently embroiled with the emperor, that -this was no fit time to push things; and so he dropped his project, -but without retracting it; for the court of Rome never did in any case -formally recede from a pretension it had once advanced. - -The consequences of the separation of the ecclesiastical from the -temporal jurisdiction were many. It naturally occasioned controversies -concerning the respective limits, and these gave rise to the _curia -regis_ interposing in these matters, and, by prohibitions, preventing one -from encroaching upon the other. The great contest was concerning suits -for benefices, or church livings, which the clergy contended were of -_spiritual_, and the king’s courts, of _temporal_ cognizance. And this, -indeed, was the great question that, in those days, divided the Christian -world abroad. However in England, the clergy were, at length, foiled in -this point. But a much greater evil arose from this separation. It is -a maxim of all laws, that no man should be twice punished for the same -crime, and this just maxim the clergy, in favour of the members of their -own body, perverted in a shocking manner. If a clerk committed murder, -rape, or robbery, the bishop tried and condemned him to penance; and -this sentence was made a pretence of not delivering him to the temporal -courts, to be tried for his life. This was one of the great disputes -concerning the constitutions of Clarendon, in Henry the Second’s time, -between him and archbishop Becket[338]. - -At length, about Henry the Third’s reign, the limits between the several -jurisdictions were pretty well settled, and by subsequent statutes, and -judicial resolutions, are confined to the respective limits they are -now under. Indeed, since the Reformation, as the credit of the canon -law has declined, on account of the dilatory proceedings, and the use -of excommunication upon every trifling contempt, the reputation of the -ecclesiastical courts has greatly fallen, and prohibitions are now -issued, in many cases, where they could not have been granted in former -times. Yet, if we examine accurately, we shall find that these great -complaints, which, it must be owned, are in the general just, namely, of -dilatoriness and excommunications, proceeded from the separation of the -two courts by William. Before, when the courts sat together, the sheriff -assisted the bishop, and by his temporal power compelled the parties to -appear, and submit to the sentence, if they were contumacious against -excommunication. But when they were separated, the bishop was left to his -spiritual arms, merely, excommunication; and as the consequences of such -a sentence were, in the superstitious times, looked on as very dreadful, -and are really severe in law, several intermediate processes and notices -were necessary before they proceeded to that extremity; and this gave -opportunity to litigious persons to disobey every order the court made in -a cause, until they came to the brink of excommunication, and that way, -by repeated contumacies, to spin out causes to an unconscionable length. -And the want of other arms compelled these courts, on very trifling -contempts, to enforce their orders by excommunication, which, it must be -owned, according to its primitive and right use, should be reserved only -for flagitious immoralities[339]. - -Another evil consequence that flowed from this separation of these -courts, was, that the pope cunningly got his, the canon law, introduced -into the ecclesiastical courts, which made him the head of the church, -introduced appeals to him, and in effect, robbed the king of so many -subjects in ecclesiastical affairs, whereas, before, though there might -be references in cases of difficulty for advice to Rome, there were -no appeals thither. The _curia regis_ was to reform ecclesiastical -judgments, and the ecclesiastical, as well as temporal jurisdiction, was -the king’s. - -Another evil consequence, and it is the last I shall mention, of this -alteration, was the setting up two legislatures, if I may say so, in the -kingdom. In the antient time all laws were made in the same assembly, -but now, the clergy being separated from the laity, when a parliament -was called, the business became divided; ecclesiastical matters, and -the taxes on the clergy, were handled in the convocation, as temporal -matters, and the taxes on the laity, were in parliament. This contributed -to the further clashing of jurisdictions. For it must be owned the -convocation exceeded their powers, and made canons about things merely -temporal; which, however, they contended to be spiritual; and sometimes -contrary to the express law of the land, nevertheless they by the -superstitious and ignorant, who knew not the distinction between such -things, were generally obeyed, and hence from such submission it is, -that, by custom, in several places, tythes are payable of things that are -not tythable at common law. - -The right of the convocation’s canons binding the laity in spiritual -matters was never doubted in the times of popery, nay till Charles the -First’s time, if they had the approbation of the king, who was the head -of the church, it was the general opinion, except among the Puritans. -But since that time their jurisdiction is settled on a reasonable -footing. Their canons bind no man, spiritual or lay, in temporal matters. -They bind no layman in spiritual matters; but they bind the clergy -in spiritual matters, provided that no right of the laity is thereby -infringed. As for instance, there is a canon forbidding clergymen to -celebrate marriage out of canonical hours. This doth not bind even a -clergyman, for if it did, it would strip the laity of their right of -being married at any hour. However it is to be considered whether a canon -of the convocation is a new ordinance, or only a repetition of the old -ecclesiastical law. If the latter, it binds all men, spiritual and lay, -not as a canon, but as the law of the land. - - - - -LECTURE XXX. - - _Robert Duke of Normandy, and William Ruffus, dispute the - succession to the Conqueror—The English prefer the latter—The - forest laws—The cruelty and oppressions of William—The - advancement of Henry, the Conqueror’s youngest son, to the - crown of England—He grants a charter—The nature of this - charter—His dispute with Anselm concerning Investitures—The - celibacy of the clergy—State of the kingdom under Stephen._ - - -William the Conqueror left three sons, Robert, William and Henry. The -eldest, Robert, according to the established rules of the French fiefs, -succeeded in Normandy, and on account of his primogeniture laid claim -also to the crown of England; but what right that gave him, might in -those days, well be a question. In the Saxon times the rule was to elect -a king out of the royal family, and the election generally fell on the -eldest son, though not universally; for the line of Alfred reigned in -prejudice to the descendants of his two elder brothers. Edred succeeded -to his brother Edmund, in prejudice of Edmund’s two sons; again, on -Edred’s death, his son was excluded, and Edmund’s eldest son resigned; -and lastly Edward the Confessor was king, though his elder brother’s -son was living. So that priority of birth was rather a circumstance -influencing the people’s choice, than what gave an absolute right of -succession[340]. - -Another thing, it might be pretended, should determine this point, -that is, as William claimed the crown through the will, as he said, of -the Confessor, he also had not a power to bequeath the crown. When, -therefore, he was making his will he was applied to on this head, but the -approach of death seems to make him acknowledge that his only just title -was his _election_, for though he hated his son Robert, and was extremely -fond of William, he refused to dispose of it by will. He only expressed -his wish that William might succeed, and dispatched him to England, with -letters to Lanfranc archbishop of Canterbury, requesting him to influence -the election in his favour, and he accordingly was crowned. Indeed, it -seems a little odd that William, whose bad qualities were universally -known (for he had not one single virtue, except personal bravery) should -be preferred to Robert, who, with that virtue, possessed all the amiable -virtues of humanity. - -That the native English should prefer any one to Robert is not to be -wondered at, as he had, on all occasions, expressed the highest aversion -to them, but they had no influence in the matter and it appears, at first -view, the interest of the English lords, most of whom had also estates in -Normandy, to be subject to one monarch, and not have their estates liable -to confiscation, on taking part with one of the brothers against the -other. But the interest of Lanfranc and the clergy, added to his father’s -treasure, which he had seized, and distributed liberally, bore down all -opposition; and indeed, it is probable that Robert’s disposition, which -was well known, operated in his disfavour; for his extreme indolence and -prodigality, and his scruples of using improper means for attaining the -most desirable ends (whereas William was extremely active and would stick -at nothing) made it easy for persons of any penetration to see in whose -favour the contest between the two brothers must end[341]. - -We have little to say of the laws in his time, for he regarded no laws, -divine or human, ecclesiastical or temporal. He chose for judges and -courtiers the most profligate persons he could find. And one of the great -oppressions his people laboured under was the extending, and aggravating -the forest laws. The _forests_ were large tracts of land, set apart -by his father for the king’s hunting out of the royal demesnes; and -consequently William his father had by his own authority, made laws, and -severe ones, to be observed in these districts for the preservation of -the game, and erected courts to try offenders, and trespassers in his -forests. The great intention of these courts was to fleece his subjects, -who were as fond of hunting as their sovereign, by mulcts and fines; and -in truth, these were the only oppressions his countrymen, the Normans, -suffered under the Conqueror. - -But Ruffus flew out of all bounds. He introduced the _lawing_, as it -is called, the Hamstringings of Dogs; nay, he made a law, by his own -authority, to make the killing of a deer capital. On pretence of this law -he seized many of the great and rich, confined them for years, without -bringing them to tryal, until he forced them to compound, and to give up -the better part of their estates. Not content with harrassing the laity, -he laid sacrilegious hands on the church revenues. Whenever a rich abbey, -or bishoprick, fell vacant, he laid his hands on the temporalities, kept -them vacant for years, as he did that of Canterbury four years; and even, -when he was prevailed upon to fill them, he openly set them to sale in -his presence, and gave them to the best bidder. However, in a violent -fit of sickness, he promised to reform, and did till he recovered his -strength, when his reformation vanished. The remonstrances of his clergy, -or the pope, had no effect with him; and, indeed, the circumstances of -the times were favourable. For as there were two popes, one made by the -emperor, the other, by the Romans, who disowned the imperial authority in -that respect, William acknowledged neither, and each was afraid to drive -him into his adversaries party, by proceeding to extremities. - -These enormities raised him so many enemies among his subjects, of all -kinds, that Robert had a strong party, and an insurrection was begun -in his favour, which William, profiting of Robert’s indolence, easily -suppressed, and then invaded him in Normandy, and was near conquering it, -as, by a sum of money, he detached the king of France from the alliance, -if he had not been invaded by Scotland, in favour of Robert. He patched -up, therefore, a peace with him, ratified by the barons on both sides, -the terms of which were, that the adherents of each should be pardoned, -and restored to their estates, and the survivor succeed to the other[342]. - -Thus there was a legal settlement of the crown of England made, which -ought to have taken place, but did not. For William being accidentally -killed in hunting, while Robert was absent in Italy, on his return from -the holy war, Henry the youngest son, took the advantage, and seizing -his brother William’s treasure, was crowned the third day, after a very -tumultuous election, the populace threatening death to any that should -oppose him. The reason of their attachment to him was, that he was, by -birth, an Englishman, and therefore, they hoped for milder treatment -from him than they had met from his two Norman predecessors. Besides he -had promised a renewal of the Confessor’s laws, with such emendations as -his father had made. And in pursuance of this promise, as soon as he was -crowned, he issued a charter, containing the laws as he now settled them, -and sent copies of it to every cathedral in his kingdom. - -These laws were, as to the bulk of them, the old Saxon constitutions, -with the addition of the Conqueror’s law of fiefs, and some things taken -from the compilations of the canon law. However, with respect to the -feudal law, he, in many instances, moderated its severity. With respect -to _reliefs_, he abolished the arbitrary and heavy ones which William -had exacted, and restored the moderate, and certain ones, which his -father had established. With respect to the _marriage_ of his vassal’s -children, he gave their parents and relations free power of disposing -of them, provided they did not marry them to his enemies, for obviating -which, his consent was to be applied for, but then he expressly engaged -not to take any thing for his consent; and the _wardships_ of his minor -tenants he committed to their nearest kindred, that they might take care -of the persons and estates of the ward, and account with him for the -profits during the minority, upon reasonable terms. He even, in some -degree, restored the Saxon _law of descents_, and permitted alienation -of lands. For if a man had several fiefs, and several sons, the eldest -had the principal one, on which was the place of habitation, only, and -the rest went among the sons, as far as they would go; and if a man -purchased or acquired land (as land might be alienated by the feudal law, -with the consent of the superior lord,) such acquisitions by the laws of -Henry, he was not obliged to transmit to his heirs; but might alien at -pleasure[343]. - -This mitigation of the former law was very agreeable to his people, -both English and Normans. The former were pleased to see the Saxon law -so nearly restored, and the latter, harrassed with the oppressions of -William, were glad to have the heavy burthens of their tenures lightened; -and indeed, began, by degrees, to relish the old English law, and to -prefer it to their own. - -To attach the bulk of his subjects to him still more strongly, he took -another very prudent step. He married Maud the daughter of the king of -Scotland, by Edgar Atheling’s sister, so that in his issue the blood -of the Norman and Saxon kings were united. But still he was not firmly -settled, until the affairs of the church, and the right of lay persons -granting investitures of church livings were settled. He intended to -proceed in the same manner that his father and brother had done. He -accordingly named persons to the vacant bishopricks, and recalled Anselm, -archbishop of Canterbury, who had lived in exile during the latter -part of William’s reign, on account of the then famous dispute of lay -investitures. But Anselm, adhering to the canons of a council held at -Rome, refused to consecrate the bishops named by the king, and also to do -him homage for the temporalities of his own see, which the king required -before he gave him possession. - -Henry, afraid of detaching from himself, and attaching to his brother -Robert, the pope and so powerful a body as the bulk of the clergy, -with so popular and high spirited a priest at their head, was obliged -to propose an expedient, that he should send ambassadors to the pope, -to represent that these canons were contrary to the antient law and -customs of the nation, and to endeavour to obtain a dispensation for -not complying with the canons; and that, in the mean time, Anselm might -enter into the temporalities of his see. This proposal was accepted. -But, though, the king’s desiring to do that by dispensation, which he -had a right to do by law, was tacitly giving up his cause, the pope -knew his own strength, and Henry’s weakness too well, to grant this -favour. He insisted on the canons being executed, which produced another -quarrel between the king and archbishop. The archbishop, attended -by other bishops his adherents, went to Rome to complain. The king -sent new ambassadors, but all in vain. The pope proceeded to threaten -excommunication, which, in those days of superstition, would have -tumbled Henry from the throne, so he was obliged to submit, and come to -a composition. He renounced the nomination and investiture _per annulum -& baculum_, restored the free election of bishops and abbots to the -chapters and convents, which, as the pope was judge of the validity -of such elections, was, in effect, almost giving them to him; and, in -acknowledgment of his antient right of patronage, was allowed the custody -of the temporalities during the vacancy; was allowed to give the _congé -d’elire_, or license to proceed to election, without which they could -not elect, and was allowed to receive homage from the elect, upon the -restitution of the temporalities. - -Thus the pope gratified the king with the shadow, and gained to himself -and the church the substance, and thus, at this time ended, that contest -in England, which had cost so many thousand lives abroad, between the -pope and emperors. Henry, however, retained a considerable influence in -the elections, for before he issued his _congé d’elire_, he generally -convened his nobles and prelates, and with them recommended a proper -person, who generally was chosen; and this the pope, for the present, -suffered to pass[344]. - -I have little else to observe touching the laws in this reign, save what -pertains to the _celibacy of the clergy_. The popes, aiming at detaching -the clergy entirely from secular interests, had made many canons against -their marrying, and all the eloquence of some centuries had been -employed in recommending celibacy. These canons, however, had not their -full effect in England; for very many of the secular clergy were still -married. Anselm, in a synod he assembled, enacted a canon against them, -commanding them to dismiss their wives, upon pain of suspension, and -excommunication, if they presumed to continue to officiate. Cardinal de -Crema was afterwards sent legate by the pope to England, where, in a -general assembly of the clergy, he re-enacted the canons against their -marriages, and presiding in a lofty throne, uttered a most furious -declamation against such a sinful practice, declaring it a horrid -abomination, that priests should rise from the arms of a strumpet, and -consecrate the body of Christ. And yet the historians assure us, that, -after consecrating the eucharist in that assembly, he was found that very -night in the stews of Southwark, in bed with a prostitute; which made -him so ashamed, that he stole privately out of England[345]. - -Henry, though he had subdued Normandy, and kept his brother Robert in -prison, was not without uneasiness as to the succession to his dominions; -for Robert’s son was an accomplished prince, and protected by the king -of France, whereas his own bore but a worthless character. However, to -secure the succession to him, he assembled the barons of Normandy in -Normandy, and those of England in England, and prevailed on them to -take the oath of allegiance to him as such. But he being soon after -drowned, the king, in hopes of male issue, took a second wife, and after -three years fruitless expectation, he turned his thoughts to making his -daughter Maud his heir, and did accordingly prevail on his nobility to -take the oath of allegiance to her as successor. But one of the steps he -took for securing the throne to her, in fact, defeated his scheme. He -knew that a woman had never yet sat on an European throne, that Spain, -which was the only nation that admitted persons to reign in the right -of females, had never suffered the female herself, but always set up -her son, if he was of a competent age; if not, her husband. As to the -circumstances of his own family, his grandson was an infant, and neither -he nor his daughter had confidence in her husband. He knew that this -oath was taken against the general bent of his people, and that little -dependance could be had on it when he was gone, so easy was it to get -absolution. His chief dependance was on the power and influence of his -natural son Robert, who, indeed, did not disappoint him, and of his -nephew Stephen, and of his brother Roger, bishop of Salisbury, on all of -whom he heaped wealth and honours. - -Stephen, thus advanced, began to lift his eyes to the crown. He, as well -as his cousin Maud, was a grandchild of the Conqueror, and descended from -the Saxon kings; and he had the personal advantage of being a male, and -bearing an extraordinary good character. By his ability and generosity -he had become exceedingly popular, and his brother Roger secured the -clergy in his interest. Immediately on his uncle’s death, he seized his -treasure, which he employed as Henry had done William’s, and having -spread a report that Henry, on his death bed, had disinherited Maud, and -made him his heir, he was crowned in a very thin assembly of barons. -Sensible of his weakness, he immediately convoked a parliament at Oxford, -where, of his own motion, he swore, not only to rule with equity, but -that he would not retain vacant benefices long in his hands, that he -would sue none for trespassing in his forests, that he would disforest -all such as had been made by the late king, and abolish the odious tax of -_Danegelt_; concessions, which, with the pope’s approbation of his title, -so satisfied the people, that all the lords and prelates who favoured -Maud, and had kept aloof, and among them Robert her brother, came in, and -swore allegiance to him as long as he kept these engagements; from which -conditional oath they expected he would soon release them, and indeed -they did all they could to provoke him to it. This bait taking, and he -having disobliged his brother and the clergy, Maud’s friends rose in her -favour; and made the kingdom for many years a field of blood[346]. - -In one of these battles Stephen was taken, and Maud was universally -acknowledged; but her insufferable haughtiness, her inflexible severity -to her captive, and her haughty refusal of the city of London’s request, -to mitigate her father’s laws, and restore the Saxon, so alienated -the people from her, that she was forced to fly from London, and arms -were again taken up for Stephen. Her brother, who was the soul of her -cause, being soon after taken prisoner, was exchanged for Stephen, -and he dying soon after, Maud was forced to leave the kingdom to her -competitor. However, Stephen continuing still embroiled with the clergy, -her son Henry, in a few years after, invaded England, and was joined by -multitudes; but some noblemen, who loved their country, mediated a peace, -and at last established it on the following terms; that Stephen should -reign during life; that Henry should succeed him, and receive hostages at -the present for the delivery of the king’s castles to him on Stephen’s -death; and that, in the interim, he should be consulted with on all the -great affairs of the kingdom; and this agreement was ratified by the -oaths of all the nobility of both sides. In this treaty no mention was -made of Maud’s title, though she was living[347]. - - - - -LECTURE XXXI. - - _Henry II. succeeds to the crown—The reformation - of abuses—Alterations introduced into the English - Law—The commutation of services into money—Escuage or - Scutage—Reliefs—Assizes of novel disseisin, and other assizes._ - - -Upon Stephen’s death, Henry the Second succeeded, according to the -settlement of the crown before made, and came to the possession of the -kingdom with greater advantages than most kings ever did. He was in the -flower of youth, had an agreeable person, and had already given the most -convincing proofs both of wisdom and valour. He was by far the most -powerful prince of his time: For, besides England, which when united -to its king in affection, was, by the greatness of its royal demesnes, -and the number of knights fees, incomparably the mightiest state in -Europe, in proportion to its extent; he had in France, where he was but -a vassal, greater territories than the king of France himself. In him -were united three great fees, to each of which belonged several great -dependancies; Anjou, which came from his father; Normandy from his -mother, and Guienne by his wife. And, from the very first steps he took -on coming to the throne, his subjects had good foundation to hope that -this great power would be principally exerted to make them happy. The -whole reign of Stephen, until the last pacification, had been a scene of -dismal confusion, in which every lord of a castle tyrannized at pleasure, -during the competition for the crown; and though, from the time of the -settlement of peace, Stephen published edicts to restrain violence and -rapine, and made a progress through the kingdom, in order to re-establish -justice and order, he lived not long enough to see his good intentions -answered, but left the work to be accomplished by his successor. - -The first thing Henry did was to discharge a multitude of foreigners, -whom Stephen kept in arms during his whole reign. His next care was the -reformation of the coin, which had been greatly debased. He coined money -of the due weight and fineness, and then cried down the adulterated -which had, in the late reign, been counterfeited by the Jews, and the -many petty tyrants in their castles. These to humble, and make amesnable -to law, was his next concern. As to the castles in private hands, that -had been erected in his grandfather’s time, or before, he meddled not -with them; but all that had been built during Stephen’s reign, either by -permission or connivance, through the weakness of that prince, which were -the great nuisances, he issued a proclamation for demolishing, except -some few, which, from their convenient situation, he chose to keep in -his own hands, for the defence of the realm. And, lastly, as the crown -had been greatly impoverished by the alienations Stephen had, through -necessity, been forced to make, he issued another, to renounce all the -antient demesnes that had been so alienated, that he might be enabled to -support his dignity without loading his people, except on extraordinary -occasions[348]. - -These reformations, however just in themselves, or agreeable to the -subject, he did not proceed on merely by his own authority. He had -deliberated with the nobles, who attended at his coronation, concerning -them, and had their approbation; and though there were no acts of -parliament made at that time, yet, as form in those days was less minded -than substance, these edicts had the obedience of laws immediately paid -them by all, except some mutinous noblemen, who still held their castles -in a state of defence. Having taken these prudent steps, he formed his -privy council of the best and wisest men of the nation, and by their -advice summoned a regular parliament, wherein many good regulations were -made. The laws of the Confessor, as amended by Henry the First, were -re-established, and every thing, both in church and state, settled on the -footing they were in the time of that king. Being thus armed with a full -parliamentary authority, he marched against his mutinous nobles, whom he -soon brought to submit; and demolished their castles. - -In another parliament, in order to settle the succession, contests about -which had had fatal effects ever since the death of the Conqueror, he -prevailed on his subjects to take the oath of allegiance, to his two -sons, though both in their infancy, first to William, then, to Henry, -as his successors. And having taken all these wise and just measures, -for the peace and security of his kingdom, he repaired to his foreign -dominions; but his transactions there, or even at home, that do not -relate to the laws or constitution, are not within the compass of the -design of these lectures. Let it suffice to say, that he made as good -laws for, and was as good a sovereign to, his French as his English -subjects. - -In his reign many were the alterations introduced into the English law, -most of them, no doubt, by act of parliament, though the records of them -are lost. For, in the beginning of his reign, as I observed, he enacted -in parliament the laws of Henry the First; and yet from the book of -Glanville, written in the latter end of his reign, it is plain there were -great changes, and the law was very much brought back to what it was in -the Conqueror’s reign; nay, in one respect, to what it was in Rufus’s, I -mean reliefs, the law of which I shall mention hereafter. Many likewise -were the regulations he introduced of his own authority, which in the -event proved very beneficial to his subjects. - -The first I shall take notice of was his commutation of the services due -of his tenants in demesne, which formerly were paid in provisions and -other necessaries, into a certain sum of money, adequate to the then -usual price. His grandfather Henry did somewhat of this kind, but he it -was that established and fixed it; and his example was followed by his -lords, so that, from this time, rents became generally paid in certain -yearly sums of money, instead of corn and provisions. What advantage the -successors of these socage tenants gained thereby will be evident, if we -consider the price of things at or about that time. In the reign of Henry -the First, we are told, the current price of several commodities, which, -however, must be trebled when reduced to the money of our standard, were -as follows: That of a fat ox five shillings, of our money fifteen; a -wether four-pence, of ours, a shilling; wheat to serve an hundred men -with bread for one meal, a shilling, of ours, three shillings; a ration -for twenty horses for a day, four-pence, of our money a shilling. And -although we should allow that, in Henry the Second’s time, the prices -of things were even doubled, which is impossible to be admitted, it -is easy to see how greatly the future socage tenants paying the same -nominal rent, the value of which was daily decreasing, rose in wealth and -importance. Besides, they were greatly eased in point of the expence and -trouble of carrying the provisions to the king’s court, to which before -they were obliged, wherever he resided in England; whereas, now, they had -only to carry, or send by a proper messenger, the money to be accepted as -an equivalent[349]. - -His military tenants he eased in a much more considerable manner. By the -law of the Conqueror, every military man was obliged to serve at his own -expence forty days as well abroad, where the king’s occasions required, -as in England, and in person too, unless notoriously incapable; in -which case they were obliged to find each a deputy, and if they failed -herein, by the strictness of the feudal law, they forfeited their lands, -or rather, as the law was used in England, compounded at the king’s -pleasure; which, if he was very avaricious, came pretty near the same -thing. This was a miserable heavy grievance. For what oppression must it -be for a knight of Northumberland, who had, perhaps, but a single fee, -to transport himself, it may be, to Guienne, to serve forty days, and -then return? Nay, it was inconvenient to the king himself; for as France, -where the scene of the king of England’s wars generally lay, was every -where full of fortifications, it was scarce possible to finish a war in -forty days, however great the humour of that age was for pitched battles; -the consequence of which was, that, after that time, the king was ever in -danger of being left in the midst of a campaign, with an inferior army. - -Henry then, sensible of these inconveniencies, both to himself and his -subjects, devised _escuage_, or _scutage_, in the fourth year of his -reign, upon account of his war with Toulouse upon which his wife had -some pretensions. He, knowing that this war required but a small part -of his force, did, both in Normandy and England, publish, that such of -his military tenants as would before-hand pay a certain sum of money, -should be excused from serving, either in person or by deputy; and this -sum, which was rated by him extremely moderately, and was, therefore, -generally paid by his vassals, rather than serve in so remote a place, -he employed in hiring mercenary soldiers of fortune, of whom there was -plenty on the continent; and those, by their engagement, were obliged to -serve during the continuance of the war[350]. - -That his sole view, in this new project, was the ease of his people, -and the better prosecution of his wars, and not the depressing the -military spirit of his subjects, appears from hence; that those who were -qualified, and chose to serve in person, he caressed, and encouraged -by all means possible; that he never brought a single mercenary into -England, when he had wars with Wales or Scotland, but insisted on his -subjects personal service; nay, that he never kept those mercenaries on -foot in his foreign dominions, but dismissed them as soon as the war was -at an end. And this of _scutage_ was the general method he followed in -his subsequent wars in France and Ireland. What wonder is it then, that -this prince was universally beloved by his people of all ranks? though, -as the best institutions are liable to be corrupted, this very scutage, -that he devised for public ease, was turned into an heavy engine of -oppression by his son John. - -Another alteration in the law in the reign of this king, was the point -_of reliefs_, as I mentioned before. The old relief of William the -First, which was restored by Henry the First, was certain, to all lords -and knights, according to their degrees, and was paid in horses and -arms; but now the humour of the times being that every thing should be -paid in money, the relief of a knight’s fee was settled at one hundred -shillings, the fourth part of its then computed yearly value, and which -I suppose was about the price of the armour, a knight was before to -pay; and henceforward the arms of the deceased descended to the heir, -and consequently the coats of arms blazoned thereon became hereditary. -But the reliefs of barons, or earls, were not settled at this time, but -remained arbitrary, as Glanville informs us. _De baroniis & comitatibus -nihil certum est statutum, quia juxta voluntatem et misericordiam -domini regis solent baroniæ capitales de releviis suis domino regi -satisfacere[351]._ - -From the word _statutum_ I take it for granted this change of reliefs -into money was by act of parliament. Indeed, how could it be otherwise; -but, then, the most surprising circumstance is, that the great lords, -who, in that age principally composed the parliament, should take care -in this material point, of the knights, the lower military tenants, and -leave themselves at the mercy of the crown. I shall venture on conjecture -to assign the reason. The Conqueror settled the reliefs of earls and -barons at a certainty, because he had fixed the number of knights fees -they should contain; twenty to an earldom, and thirteen and two-thirds -to a barony; but by the time of Henry the Second, the number of knights -fees contained in them might be greater or less. For instance, if an earl -died, and left two daughters, his twenty fees would be divided equally -between them; but the dignity was to go to the husband of that daughter -the king chose. Now it would be hard that he should pay for ten knights -fees, merely because he had the same title, as much as the predecessor -paid for twenty. Again, in the new created honours, it seems very -probable, from many circumstances, that an earldom might be erected but -with fifteen knights fees, or, perhaps, with twenty-five. The certainty -of the _quantum_ of land an earldom or barony should consist of not -being settled, I imagine, was the reason that the _quantum_ of relief -was not expressly determined, though, by fixing that of a knight’s fee, -the reasonable relief might, in any case be easily determined. And that -Henry, and his son Richard exercised that discretion the law left in them -in this equitable manner, we may infer from there being no complaints, -as to reliefs, from the earls or barons, during their reigns; but John -revived the arbitrary relief of William Rufus, to the great oppression of -his nobles, until he was restrained by _Magna Charta_. - -To no other reign than this, I think, can be ascribed, so properly, the -invention of _assizes of novel disseisin_, and the other _assizes_, -for obtaining possession of lands. By the strictness of the very -antient feudal law, if a man had been disseized, that is, turned out -of possession, if he did not enter, and regain his possession, or, at -least, claim it within a year and a day, he lost all right; for, if he -was a socage tenant, the possessor had, within that time, paid a rent to -his lord, and been by him, who was supposed the best judge, allowed to -be the rightful tenant; and, if he was a military one, it was probable, -in those ages of perpetual war, he had actually served, at least he had -kept himself in constant readiness if called upon. But the limitation of -a year and day being soon found too short, it was after extended to five -years; then, to the time of the possession of the disseizor himself, -namely till he had either died or aliened it. But upon the alienée, or -heir of the disseizor, he could not enter, because they came in honestly, -by a fair title, and were guilty of no wrong. However, this antient -law, that gave no remedy but by entry, during the seizor’s possession, -was still too severe; for the _disseizor_ might alien, or die suddenly, -before the _disseizee_ could enter, or he might hold the possession _manu -forti_, so that the disseizee might not be strong enough to enter and -recover his possession[352]. - -To remedy these evils, and to prevent bloodshed, the law provided for -the disseizee his right of action, either against the disseizor himself, -or his heir or assigns, and, in which, upon shewing his right to the -land, he should be restored to his possession by the king’s officer, -the sheriff, with the _posse_ of the county. But still this action was -hitherto but the _writ of right_, which meddled not with the unlawful -possession, only with the absolute right to the land, and this action, -if brought in the _curia regis_, where only impartial justice could -be expected; was very dilatory. It was dangerous also, as the tenant -in possession might offer battle. In this reign, then, were these -_possessory actions_ introduced, for the determining the point of -possession, leaving the right of propriety as it was. It was advantageous -likewise to the subject, both disseizor and disseizee, as it gave him -two trials for his lands; for the writ of right when once determined was -final and conclusive[353]. - -This distinction between the _right of possession_, and the _right of -propriety_ was borrowed from the civil law, which was first introduced -in the late reign, and was now, and for some time forward, studied with -great assiduity by the English, as appears from the many long transcripts -from it to be found in the books of our antient lawyers. There they found -the distinction of _actions possessory_ and _petitory_; _possessory_ -when a man had been notoriously in possession, and reputed the owner, -and was put out by another of his own authority. The public peace was -concerned to protect the possession of the reputed owner, and not to -let him suffer the loss thereof while he was suing his petitory action, -that is on the mere right, which the other undoubtedly would delay, by -all the arts and shifts he could invent. The proceedings, therefore, in -possessory actions were summary and expeditious; for they only regarded -the possession, and did not determine the absolute right: so there was no -conclusive wrong done to either party, let the matter of possession be -decided how it would; for he that failed might bring his petitory action -for the right. - -An _assize_ in our law was a very summary action. Bracton, who lived an -hundred years after, calls it _novum & festinum remedium_, and indeed -so _festinum_ was it, that, in its proceedings, it seems to depart from -the general rules of reason and all laws. For it is a maxim of all laws, -except in some few very extraordinary cases, that no proofs are to be -taken till an _issue_ is _joined_, as our law calls it, or till there is -a _contest_, as the civil law expresseth it; that is, till it is settled -what is the matter to be proved, or till there is something affirmed on -one side, and denied on the other, upon which the merits of the cause -turn. If there be no disagreement about _facts_, but the question is mere -_matter of law_, the judges, who are best acquainted therewith, are, by -our law to determine. If the question be matters of fact, or facts mixed -with law, the jury, assisted with the judges, are to determine; though -if they doubt about the point of law, they may find the facts specially, -and leave the law arising thereon to the judges, which is what we call a -_special verdict_. No jury, therefore, ought to have been summoned till -the defendant appeared, and issue was joined, so that it was known what -was the matter to be tried; and this is the general rule. But, for the -speedy settling and quitting possessions, the assize is an exception -thereto, as appears from the _writ of assize_ directed to the sheriff. -For, besides giving notice to the defendant, or _tenant_, as he is called -in this action (because he is in possession) the sheriff is immediately -to summon a jury or assize, as it is called upon this occasion, who shall -directly go to the place, and make themselves judges, by their view, -of the nature, quality, and quantity of the land, or thing demanded, -and inform themselves, by all the ways they best may, of the former -possession of the demandant, and how he came to lose it. They are then -to appear the same day with the demandant and tenant, and, when issue -is joined between them, are to determine the matter according to their -own prior knowledge, and the evidence then given before them. I observed -that this action is not final. A brings an assize against B. If judgment -be given for A, B may bring his _writ of right_, if he has the right of -propriety, and recover, and so _e contra_. But though B cannot deny his -disseizing A, he may still defend himself. The words of the writ are -_injuste, & sine judicio, disseizivit_. He may therefore shew that he -disseized A, justly, that is, that he had a right of entry. As, suppose -B was first in possession, A disseizes him; then B, as he lawfully may, -disseizes A, A shall not recover. But if B had been in possession, and -A’s father had disseized him, and died, so that the land has come to A, -who is innocent, B, not entering in the father’s life-time, has lost -his right of possession. It is so in A. Now if B disseizes A, the son, -though he had ever so good a right to the land, A shall recover the -possession; for B had no right to enter, though he had a right to recover -the possession he was deprived of by A’s father, by bringing an action. -Wherever a man comes innocently to a possession, the law will defend that -possession, until it is proved that he hath no good right to it[354]. - - - - -LECTURE XXXII. - - _The institution of Judges itinerant, or Justices in Eyre—The - advantages attending it—The jurisdiction of these Judges—Their - circuits—The present form of transacting the county - business—The division of the Curia Regis into four courts—The - jurisdiction of the court of King’s Bench._ - - -The greatest and most beneficial step taken by Henry the Second, was the -institution of _judges itinerant_, or _justices in eyre_, as they were -called, from the Norman word _eyre_, equivalent to, and derived from the -Latin _iter_. I observed before, that almost all businesses relative to -the administration of justice were, in the Saxon times, transacted in -the county, and hundred, that the leet and manor courts were held in the -county, near the suitors doors, and that none but the causes of the great -lords, or such as were of difficulty, were handled in the _curia regis_. -Under the reign of the Conqueror, I took notice, that the administration -of other causes was facilitated in the king’s great court, and that, -consequently, the business of the inferior courts began to decay; and I -laid open the motives William had for that conduct, the introduction of -the Norman, and suppression of the Saxon law. But the scheme succeeded -in the same manner as his other one did, of rooting out the English -language, and introducing his own in lieu thereof. As _this_ produced a -new language, from the mixture of both, so _that_ caused the English law -to consist henceforward partly of feudal, partly of old Saxon customs. -However, the causes of most persons were still determined in the inferior -courts; for they were but few who were able to undergo the trouble and -expence of suing in the _curia regis_, especially, as all persons, whose -causes did not properly belong to the cognizance of that court, were -obliged to pay a fine for declining the proper jurisdiction, and for -having licence to plead in the superior[355]. - -But by this time the decisions of those courts, where the freeholders -were judges both of law and fact, had fallen into great and just -disrepute, had occasioned many mischiefs, and were likely to produce -many more. The reasons, as they are delivered by lord Hale, were -principally three: First, the ignorance of the judges in the law: for -as the freeholders in general were Saxons, they must be supposed to -be entirely ignorant of the feudal law, which was now introduced with -respect to titles in lands; or, if they did know any thing of it, it is -not probable that they would prefer that to their own customs. Nay, the -Norman freeholders could be of little service in this point, considering -their illiteracy, their education being confined solely to arms, as also -their frequent absence almost every year to attend their lords in war. -With respect to the Saxon law also, it could be little expected that -it should be regularly observed, now that the clergy, who only were -acquainted with it, were removed, and none of the judges could possibly -know more than an illiterate juryman at this day, who could neither read -nor write, might be able to pick up by attending a court held once a -month. How inadequate such a knowledge would be, even in those times, -when the laws were comparatively few, need not be enlarged on[356]. - -It is true, some remedies were applied to obviate the bad consequences -of this ignorance; but they were very ineffectual. It was required that -the sheriff, who presided, should have some skill in the laws, but -notwithstanding, he was seldom found to have any; and if he had, it was -not very probable, as he was a Norman, that the jury would pay much -regard to his direction in giving their verdicts. As a further remedy to -this ignorance, by the laws of Henry the First, the bishop, the barons, -and the great men of the court, that is, the king’s immediate tenants, -were ordered to attend. But the bishop, in obedience to the canons, -applied himself solely to his ecclesiastical jurisdiction; and the others -were generally in the king’s service; so that they could but seldom -attend, and if they did, they could do but little service, being almost -all bred to nothing but the sword, and as illiterate as any other set of -men. - -The next mischief, and which flowed from the former, was, that this bred -great variety of laws in the several counties, whereas the intention of -the Confessor in his compilation, and of his successors afterwards in -theirs, was to have one uniform certain law, common to the whole kingdom. -But the decisions, or judgments, being made by divers courts, and by -several independent judges, who had no common interest, or communication -together touching the laws, in process of time, every several county was -found to have several laws, customs, rules, and forms of proceeding; -which is always the effect of several independent judicatories, -administered by several judges. And, indeed, this I look upon to be one -of the great causes of very many local customs in many parts of England, -different from, and derogatory to, the general common law. - -But the third and greatest evil, was the frequent injustice of the -judgments given in those petty courts, and every business of any moment -being carried by parties and factions. The contest about the crown had -been carried on with such violence, that one half of the people, all -over the kingdom, were professed enemies to the other; and though both -sides, wearied with war, came into the expedient of Henry’s succession, -and he behaved so that there were no factions against him, yet as to -individuals, the sense of past injuries, and the rancour arising from -thence, still remained. For the freeholders being the judges, and these -conversing with one another, and those almost entirely of their own -party; and being likewise much under the influence of the lords, every -one that had a suit there sped according as he could make parties; and -the men of great power and interest in the county did easily overthrow -others in their own causes, or in such wherein they were interested, -either by relation, tenure, service, dependance, or application. True it -is, the law provided a remedy for false judgments given in these courts, -by _a writ of false judgment_ before the king, or his chief justice; and -in case the judgment, given in the county court was found to be such, all -the suitors were considerably amerced. Yet this was insufficient for the -purpose: For, first, it was too heavy and expensive for many that were -aggrieved; next, it was hard to amerce all for the fault of a few, _viz._ -the jury, who gave the verdict; and the amercement, though sometimes -very severe, being equally assessed, on all the freeholders, was not a -sufficient check upon the injustice of some juries[357]. - -The king therefore took a more effectual course; and, in his -twenty-second year, by advice of his parliament, held at Northampton, -instituted _justices itinerant_. He divided the kingdom into six -circuits, and to every circuit allotted three judges, men knowing and -experienced in the laws of the realm, to preside in such cases as were -of consequence, and to direct the juries in all matters of law. They -were principally empowered to try _assizes_, that is, as I explained in -my last lecture, the rights of possession, which had been notoriously -invaded in the last reign; and which, from the continuance of the old -parties, could not even, in this reign, be fairly determined in the -inferior courts[358]. - -Not that this was their sole business; for they had in their commissions -power to enquire into several other matters, such, particularly, as the -king found, by the advice he had received from the several counties, to -be evils not likely to be remedied in the county courts. These were, -before every commission for justices itinerant in eyre went out, digested -under certain articles, called _Capitula Itineris_, or _The chief heads -of the eyre_ or _circuit_, which specified what actions they were to deal -with. These were, in general (for the commissions varied at different -times, being sometimes more, sometimes less extensive) _civil_ and -_criminal_ actions, happening between party and party; actions brought -at the suit of the crown, either for public crimes, or the usurpation of -liberties, franchises, or jurisdiction from the crown, which had been -very frequent in the former times of confusion; and also the escheats of -the king. - -The thing I find most remarkable is, that, in these distributions -of England into circuits, are omitted some counties, (I do not mean -Middlesex, where the _curia regis_ sat, or Chester, which was a county -palatine, for they of course were not to be included) as particularly -Lincoln, in the second eyre; also York, in the second eyre, is but one -county, whereas, in the first, it is two, York and Richmond; as in -Lancashire also, Lancaster, and Copeland; and Rutland is omitted in -both. All which shews, that the limits and divisions of all the counties -were not ascertained with precision at that time. The second eyre was -instituted three years after the first, by parliament also held at -Windsor, and in this there were but four circuits. After these two -first, the king appointed the circuits, and distributed the counties at -his pleasure. - -The usual times of their going was once in seven years. However, they -were not stated certainly; for sometimes, if there was a more than -ordinary complaint of want of justice, they went every three or four -years, and sometimes, if there was no complaint, they were intermitted -beyond seven. Neither was the number of judges sent on the circuits -fixed, but alterable at the king’s pleasure. - -The determinations in these circuits, being under the inspection of -men of integrity and skill, were in high estimation, and accordingly -are several times quoted by Bracton, as being of as great authority as -the decisions in the _curia regis_; and in consequence thereof, the -business in the county courts continually declined; justice was every -day administered worse in them, and at length they were confined, except -in some cases, to pleas under forty shillings. Nay even these were, upon -application, easily removeable by a writ called a _pone_, into the king’s -courts[359]. - -But as the hopes of obtaining justice in the inferior courts waxed every -day more faint, it was found necessary, during the intervals of the -eyres, to substitute other courts in their place. Hence the invention -of _justices of assizes_, of _oyer and terminer_, of _goal delivery_; -and the necessity of affairs afterwards obliging these to be sent very -frequently, it was thought fit, about the end of Edward the Third’s -reign, to lay aside the justices in eyre, as superfluous, since these -other did their business, except as to pleas of the king’s forests, where -the _eyres_ were continued. And, in process of time, to prevent the -enormous expence of bringing juries up to the king’s courts, the justices -of the _nisi prius_ were instituted, to try issues joined in the king’s -courts, and, the verdicts so found to return to the court from whence -the record was brought; which court, on the record so found, proceeds -to judgment. These are the judges who now transact the county business -in their circuits, under the several commissions before-mentioned; and -going regularly twice every year for that purpose, the whole business -they transact is, in common speech, called _Assizes_; that being, in -the antient times of their institution, the principal part of their -employment, though now such actions are scarce ever brought; personal -actions, which may repeatedly be tried, having superseded them[360]. - -About this time, also, it seems that the _curia regis_, the business -there increasing, was divided, for the more convenient dispatch thereof, -into four courts; and to each its separate jurisdiction allotted. The -exchequer, indeed, was in some sort a separate court before, and had -its distinct business of the province; and in it the treasurer, not the -_Justiciarius Angliæ_, presided, as he did in the other courts. It is not -impossible that, before this time, they had, in the _curia regis_, set -apart different days for different kinds of causes. But they were all, in -one respect, the same court; because they had the same judges, namely, -all such nobles as attended the court. But this being found inconvenient, -as these great men were generally ignorant in law, and business began -to encrease, it was found proper to appoint settled skilful judges, and -to divide the court, and appoint each part its separate jurisdiction. -However, those limits were not exactly settled, or, at least, not exactly -observed, for some time after: For we find in John’s reign, that _common -pleas_, that is, civil suits between party and party, and particularly -fines of lands, which are of the same nature, were held in the King’s -Bench; though, on the contrary, we find no pleas of the crown tried in -the court of Common Pleas. I suppose the reason was, that the latter -being derived out of the former, the king’s bench had a concurrent -jurisdiction with it, until restrained by that branch of Magna Charta, -_Communia placita non sequantur curiam nostram_. The first of those -courts in dignity and power, especially while the _Justiciarius Angliæ_ -remained, was the _King’s Bench_, though of late days the Chancery hath -over-topped it. Here, as the king used frequently, in the antient times, -to sit in person, the king is supposed always present; which is the -reason why a blow given in this court, upon any provocation whatsoever, -is punished with the loss of the hand, as it is done in the presence -of the king. The proper jurisdiction of this court is causes where -the king is either directly or indirectly concerned, except as to his -revenue[361]. - -In all _pleas of the crown_ therefore, that is, suits of the king to -punish offences, as indictment of treason, felony, breach of the peace, -are proper subjects for this court. He is indirectly concerned in this, -that all erroneous judgments, given in the Common Pleas, or other -inferior courts, are here reformed; for the king is concerned to see -justice done to his subjects. - -Secondly, for the same reason, this is a proper court to grant -prohibitions to courts that exceed their jurisdiction, though this is not -particular to the King’s Bench, but common to all the four courts. - -Thirdly, it hath cognizance of all privileges and franchises, claimed -by any private persons or corporations; and if any usurped upon the -king in this respect, they are called in, by a _quo warranto_, to shew -by what title they claim such privileges. Likewise where any member of -a corporation is disfranchised, or removed from, or disturbed in his -office, here shall he be remedied. For when a king has given a franchise, -he is concerned, in honour and interest, to see that every man entitled, -shall enjoy the benefit of it. - -Fourthly, the king is interested in the life, limbs, and liberty of every -subject. Therefore this is the court wherein appeals, brought by private -persons, of murder, felony, and maim, should be tried; and if any man -complains of wrongful imprisonment, this court shall, by writ of _habeas -corpus_, have him brought into court, with the cause of his imprisonment -returned; and if the cause is insufficient to discharge him, or if the -offence he is charged with be bailable, to bail him. Nay, this court, -in favour of liberty, hath a power, in all cases; they may, if they see -proper, bail a man for crimes that are not ordinarily bailable by common -law. - -Fifthly, they have a right to hold plea of all the trespasses done _vi & -armis_, though brought principally for a private reparation to the party; -for this action favours of a criminal nature, and the king is entitled to -a fine for the breach of the peace. - -Lastly, it has cognizance of all personal actions brought against persons -that have the privilege of this court. The persons privileged are two, -first the officers of the court, who are supposed to be constantly -attendant thereon, and to whom it would be inconvenient, as well as to -the court, to sue or be sued elsewhere; and therefore the privilege -extends to suits brought as well by, as against such officers; secondly, -the prisoners who are in the custody of the marshal of the court, and -who are consequently not at liberty to appear in any other. These -therefore can only be sued here; for the court will, in such case, order -the prisoner up from their own prison to make his defence; and, under -the colour of this rule, they now, by a fiction, make all sorts of a -actions suable in this court; for it is only alledging the defendant is -in the custody of the marshal, though in fact he is not, and that is held -sufficient to found the jurisdiction[362]. - -I shall next proceed to the jurisdiction of the high court of Chancery, -the second in antient times, but for some ages past the first court of -the realm. - - - - -LECTURE XXXIII. - - _The jurisdiction of the high court of chancery—The Chancellor, - a very considerable officer in the Curia Regis—The repeal of - letters patent, improvidently issued to the detriment of the - King or the subject, a branch of the jurisdiction of the court - of chancery—The chancery, assistant to the exchequer in matters - of the King’s revenue—Other branches of the business of this - court._ - - -In my last lecture, having taken notice, that, in the reign of Henry -the Second, the _curia regis_ and the _Exchequer_, which dealt with the -king’s revenue, were distinct courts, and that there were even traces of -the _Common Pleas_, as another court, different from the higher court, -the _curia regis_; I took occasion to treat of these several courts, -and the several limits of their jurisdictions; although the now general -opinion be, that these courts were not separated till after the barons -wars, that is, not until an hundred years later; which opinion, as I -conceive, hath, thus far, its foundation in truth, that the precise -limits of their several jurisdictions were not perfectly ascertained, and -kept distinct till then, though the division had been made before, that -is, about the time I am now treating of. For, if it be a good maxim, as -my Lord Coke says, _boni judicis est officium ampliare jurisdictionem_, -it is not to be wondered at, that, for some time after the separation, -the _Justiciarius Angliæ_, who had the sole jurisdiction in him before, -should retain, in many instances, the exertion of it, where, after the -separation, the matter properly belonged to another court. - -The maxim, indeed, is, in my opinion, utterly false. For where there -are separate courts with distinct powers, surely it is the duty of -each court, were it only to prevent confusion, to keep within their -proper limits. However thus much must be allowed in justification of -Lord Coke’s maxim, that, as it is too much the inclination of human -nature, when in power, to grasp at more than is properly our due, so the -judges of all courts, and of all nations, have been as little exempt -from this infirmity as any other set of men. Witness the outrageous -usurpation upon the temporal jurisdiction in antient days, both by the -ecclesiastical judges in the times of the Pope’s grandeur, and by the -judges of the constables and admirals courts, when supported by arbitrary -kings[363]. - -The temporal judges, on the other hand, with a firmness highly to be -commended, have successfully not only resisted these encroachments, -but, by way of reprizals, have, in these latter days, made considerable -inroads into the antiently allowed territories of those courts; not to -the detriment of the subject, I must confess; for the method of trial by -the common law, is certainly preferable to theirs. But the common law -courts have not satisfied themselves with extending their jurisdiction, -in derogation of those courts, which they justly looked on, in those -days, as enemies to them, and to the laws and constitution of the -kingdom, but they have made invasions into each others territories, and, -by what they call _fictions of law_, have made almost all causes, except -criminal ones, cognizable in any court; contrary to the very intention -of dividing the courts; which was, that each should have their separate -business, and that the judges and practitioners, by being confined in a -narrower track, should be more expert in their different provinces[364]. - -In treating of these courts, I began with the _King’s Bench_, which, as -long as the office of _Justiciarius Angliæ_ subsisted, was the superior; -but since Edward the First discontinued that office, on account of its -too great power, and the business of that officer hath been shared -between several judges, the rank of this court hath declined, and the -_Chancery_ hath obtained the first place. To this court, then, I shall -now proceed. And as in it there are, at present, and have been for some -ages, two distinct courts, one _ordinary_, proceeding by common law, -and the other _extraordinary_, according to the maxims of equity, where -common law could give no relief; I shall, for the present, confine myself -to the former, and defer treating of the latter, until I come to that -period when the _Equity jurisdiction_ arose. - -In the antient times, before the division of the courts, the chancellor -was a very considerable officer of the _curia regis_. It was his business -to write and seal with the great _seal_ the _diplomata_, or _chartæ -regis_, what we now call _letters patents_; to issue all writs, either -for founding the jurisdiction of the _curia regis_, and the bringing -causes into that court, that by the antient law belonged to the courts -in the country; or those to the nobles, to summon them to attend the -_commune concilium_, or parliament. Afterwards, when the House of Commons -was formed, he issued writs to the proper places, for the election of -the members thereof. Hence, when the courts were divided, the making -out letters patents, the keeping the inrolments thereof, and issuing -of _original writs_, as they are called, that is, those that found the -jurisdiction of courts, and other writs of like nature, continued to -belong to him; and, as these records remained with him, there arose to -him a jurisdiction concerning them; except as to such writs as were -intended to found the jurisdiction of another court, which, though issued -from Chancery, were returnable into the proper court, and the cause -determined there[365]. - -The first branch of the jurisdiction of this court, then, was the repeal -of letters patents, that had issued improvidently, to the detriment of -either of the king or the subject; and this properly fell to the lot of -the chancellor, as he made out the patents, and kept the enrolments of -them. The method of repealing those was by a writ called _scire facias_ -notified to the party claiming under the patent, and calling him in to -shew cause why it should not be revoked. This _scire facias_ issued in -three cases: the first, at the suit of a subject; where two patents were -granted to two persons of the same thing, the first patentee brought a -_scire facias_ against the second, to repeal his grant; the other two -were at the suit of the king, where the king was deceived, either by -false suggestions of merit, or as to the value of the thing granted; or, -in the second place, if the king had, by his patent, granted what by law -he could not have granted. Here, if the case was clear in law, and there -was no controverted matter of fact necessary to be settled, to ascertain -the right, the chancellor was judge; and if his judgment was against the -patent, it was his duty to _cancel_ the inrolment thereof; from which -part of his office he had his name. I say if the case was clear in law, -and there was no controverted matter of fact; for, if this latter was -the case, he could not try it, he being antiently but an officer of the -_curia regis_, and not a judge; and therefore unqualified to summon a -jury. The rule continued the same after the separation of the courts, and -his becoming a judge; principally, as I conceive, for the preservation -of the common law, and the birthright of Englishmen, the trial by jury. -For, as the chancellor was almost always, in those days, an ecclesiastic, -and consequently supposed more attached to the _civil_ and _canon law_, -there might be danger, if he was suffered to try matter of fact himself, -he might introduce a new method of trial. When, therefore, the cause was -heard upon a _demurrer_, that is, the facts admitted of both sides, and -only the law in dispute, he gave judgment; but if they came to issue on a -fact, he must carry the record over to the King’s Bench, who summoned the -jury, and gave judgment on the verdict[366]. - -Another branch of his jurisdiction was with relation to the inquisitions -of office. There are many officers whose duty it is to take care of the -profits and revenues of the king, and to that purpose they are sworn in -the Exchequer; such as _escheators_, _sheriffs_, and others, whose duty -it is to make enquiry what the king is entitled to in their respective -limits, whether lands or chattels, or by what title. For this purpose -they are to summon juries, and to return the verdicts found to the court -of the revenue of the Exchequer, in order that that court may take care -of the king’s rights. These were called _inquisitions_, or _enquiries_, -_of office_, as proceeding from the duty of an officer that made them. -But these officers being negligent in the performance of this their -duty, it became sometimes necessary, and afterwards customary to quicken -them, by issuing writs for this purpose; and these writs issued out of -Chancery, the _Officina Brevium_; and then, that it might be seen they -were properly obeyed, the return of the inquisition was made into the -court that issued the writ, and thus, the Chancery gained a jurisdiction -in this point, and became an assistant to the Exchequer in the matters -of the king’s revenue; not indeed in the administration thereof, but in -bringing it into the king’s possession[367]. - -It is a maxim in the English law, that nothing can pass from the king -to a subject but by _matter of record_, which maxim was not only -advantageous to the royal estate, as preventive of persons getting -grants by surprise, but also advantageous to the subject in the firmness -of his title, when once he had obtained it. And, on the contrary, the -regular and equal way of restoring possessions to the crown was by record -also, that is, by inquisitions finding the king’s title returned, as I -have mentioned. But as the verdicts taken in these inquisitions may be -erroneous, and detrimental to another person, by finding what was really -his property, to have been the property of another, and to have accrued -to the king by forfeiture or escheat; and as, regularly, by another maxim -of law, there is no averring against or contesting a record, it was -necessary that the bare return of inquisition into Chancery should not be -final and conclusive, but that time should be given to any that thought -himself affected to claim his right. Hence a month’s time is given by -statute, after the return of the inquisition, in which any person may -come in and _traverse the office_, that is, contest the validity of it. -And here the chancellor is judge, in the same manner as in the repeal -of letters patents, that is, if the subject of the controversy depends -merely upon matter of law; but if the parties come to an issue on matter -of fact, he cannot try it, for the reason above given, but it must go to -the King’s Bench[368]. - -Another branch of the judicial business is the hearing of petitions to -the king for justice in his own causes. No man, by the feudal principles -of our law, can bring an action against the king. For the charging him -with wrong doing would be a breach of fealty. The king cannot, by our -law, do wrong; but yet, from the multiplicity of his occupations, or from -his being misinformed, the subject may sometimes suffer wrong from him. -The remedy thereof, in this case, is by humble petition to the king, that -he would enquire into the cause, and do justice to the party, which, -though conceived in an humbler strain, is as effectual as an action, and -must be tried in this court, the proper channel to convey his majesty’s -graces, and the king, by his chancellor, dispenses justice to the party. - -Another branch of the judicial business of this court was the proceeding -in certain cases against persons privileged, that is, the officers of -the court, who being supposed to be constantly attendant, were to be -sued here, as the officers of other courts, were in their respective -courts. - -Lastly, this court had jurisdiction with respect to proceeding upon -_recognizances_, or acknowledgments of obligations taken in this court, -which being here recorded, and not to be removed, were properly here -triable[369]. - -There are some other causes, proper for the jurisdiction of Chancery, -which would carry me too far at present. I shall, therefore, conclude -here with mentioning one striking difference between this and the other -courts, that they sit only in the times of the four terms, whereas it is -open all the year. The confining the others to the terms arose from the -religion of the times, and the inquisitions of canon law, which forbad -courts to be held during the seasons of the three great festivals, and -of harvest. In obedience to this law, I may say (for the papal power was -then very high in England) was our Michaelmas vacation set apart for the -solemnization of Christmas, the Hillary vacation for Easter, the Easter -vacation for Whitsuntide, and the Trinity or long vacation, for the uses -of husbandry. But great would be the evils, if that court which is the -_Officina Justiciæ_, the Shop of Justice, were to be ever shut. Writs, -therefore, issued hence at all times, and all such causes as, for the -public good, cannot brook delay till the ordinary times of sitting of -other courts, are here handled in the vacations, such as to mention a -few, _habeas corpus’s_ and _homine replegiando’s_, to restore persons -imprisoned to liberty, prohibitions to keep inferior courts within their -proper limits; and _replevins_, to restore the possession of goods -distrained. - -But the great business of this court, as a court of common law, was, -that it was the _Officina Brevium_, the shop where original writs were -purchased by suitors, in order to commence their actions. An _original -writ_, in the most common form, is an order to the sheriff to summon -the party complained of to do justice to, or else to answer to the -complainant in the proper court; containing a short description of the -complainant’s title, and the wrong done to him, from whence, in Latin, -it is called _Breve_, and answers to the original citation in the Roman -and ecclesiastical laws. This, and the making out patents, was the -principal business of the chancellor in the _curia regis_, and therefore -naturally continued with him after the division of the courts. The -reasons assigned by Gilbert for having one of these superior courts a -public shop for justice, are three; first, that it might appear that all -power of judicature flowed from the crown; secondly, that the crown might -not be defrauded of the fines due to it for suffering persons to desert -the inferior courts, and to sue for justice immediately from the king; -and lastly, to preserve an uniformity in the law; for these writs being -made out in one constant form contributed greatly thereto, being both a -direction to the judge, and a limitation of his authority. - -Originally, the chancellor heard the complaints of the person injured, -and formed a writ according to the nature of the case, but as, among -a rude military people, little versed in commerce, and the variety of -transactions that attend it, the complaints of the people were confined -in a narrow compass, it but seldom happened, after some time, that there -was occasion for making a new writ, in a form different from what had -been used before. These forms, therefore, were collected into a book -of our law, called the _Register_, the antientest book of our law; and -the making them out, being now matter of course, nothing more than -copying out the old terms, inserting the proper names of persons, and -places, and the chancellor’s business encreasing, became devolved upon -the chancellor’s clerks, the _Clerici_, as they were antiently, or the -_Masters_, as they are now called, of Chancery; and they were restrained -from making out any of a different form from those in the Register. -However, as, in process of time, cases would happen which none of the -forms in that book would suit, and it was looked on as the corner-stone -of the law, the chancellor could not of himself venture to make out new -and unusual writs, but referred the complainants, in such cases, to -petition the parliament for remedy[370]. - -These petitions afterwards growing too frequent, and interrupting the -public business, it was found necessary to enlarge the power of the -Masters of Chancery, and to give them a qualified power of forming new -writs. This was done by the statute of Westminster the second, cap. -24, in Edward the First’s reign; it runs thus: _Quotiescunque de cætero -evenerit me cancellaria, quod in uno casu reperitur breve, & in consimili -casu cadente sub eodem jure, & simili indigente remedio, non reperitur, -concordent clerici de cancellaria in breve faciendo, vel atterminent -querentes in proximum parliamentum, & scribantur casus, in quibus -concordare non possunt, & referant eos ad proximum parliamentum, & de -consensu jurisperitorum fiat breve ne contingat de cætero, quod curia -domini regis deficiat conquerentibus in justitia perquirenda_; which last -words, _ne contingat_, &c. gave a handle, as I shall shew hereafter, to -this court to erect their equitable jurisdiction[371]. - -We see how this power given to the Masters was limited: it must be -exercised only in cases parallel to such as there was a remedy already -provided for; all the Masters must agree in the form of the new writ; and -the remedy must be the same as was in the similar case in the Register. -To illustrate this by the example of the first writ formed by the Masters -upon this statute, and which therefore, by way of eminence, is called a -_writ, in consimili casu_. The statute of Glocester ordered the Chancery -to form a writ for the relief of the person in reversion, where a tenant -in power had aliened her dower. The writ was accordingly framed, and -inserted in the Register. Now, by virtue of this statute of Westminster, -the Masters framed the writ _in casu consimili_, in favour of the person -in reversion, where a tenant by the courtesy, or tenant for life, had -aliened, he being equally damaged as the former case. But though this was -particularly called _a writ, in casu consimili_, there were many others -formed by virtue of this statute, such as for various kinds of trespasses -unknown in former ages, and actions upon the case, so frequent in these -our days, and so called, because the writ is formed according to the -circumstances of the case, and not upon the old forms continued in the -Register. - -This new employment of Masters in Chancery, and the business of the court -encreasing, created a necessity of erecting new officers, to make out the -_brevia de cursu_, namely, those in the Register, who were therefore -called _Curritors_. The chief of the Masters is _Keeper of the Rolls_ of -this court, which was formerly a part of the chancellor’s business; and -he is therefore called _Master of the Rolls_. For ages past, since the -Equity business multiplied in England, this officer has been there, in -matters of equity, an assistant judge to the chancellor, but his decrees -are liable to a rehearing, and to be reversed by the chancellor. But in -this kingdom, the office hath not had any judicial authority annexed to -it. - - - - -LECTURE XXXIV. - - _The court of Common Bench or Common Pleas—The jurisdiction - of this court—Actions real, personal, or mixt—The court of - Exchequer—The jurisdiction of this court—Exchequer chamber—The - judicature of Parliament._ - - -The next of the superior courts, is the _Common Bench_, or _Common -Pleas_, as it is more commonly called, being the proper court for the -determining suits between subjects, wherein the king is not concerned; -and upon the multiplication of business in the _curia regis_, it was -separated from it, for the more speedy and easy dispatching the affairs -of the people. As in the very old times the king often sat in person in -the _curia regis_, and that he might have an opportunity of so doing when -he pleased, that court always followed the king wherever he went within -the kingdom of England; and in those days it was customary for the kings -to take progresses; and reside in the different seasons of the year in -different parts of the kingdom, as we see, by the variety of places where -the parliaments were held in old times. The same practice of the courts -and the records following the person of the king continued in France -longer than in England. For when king John was taken by the black prince -at the battle of Poictiers, the antient records of that kingdom were -lost, and there are scarce any now remaining there, of what had passed -previous to that time, except enrolments made since, of the antient -charters that were in the hands of the subjects. - -But in England the constant removal of the courts was found very -burdensome to the people, who had suits much earlier. For their ease, -therefore, it was enacted in _Magna Charta_, that _communia placita non -sequantur curiam nostram, sed teneantur in aliquo certo loco_; that the -Court of Common Pleas should no longer be ambulatory, but held in one -certain place. Westminster was the place fixed upon, and there, if we -except some occasional removals, on account of epidemical sicknesses, -hath it been held ever since. And in long space of time after, the other -courts became, though not in pursuance of any positive law, fixed -there also. By their becoming settled in a certain place, one great -inconvenience, besides the hardships on the suitors, was avoided, namely, -the loss and imbezzlement of the records by these frequent removals. For -it is very remarkable, that there is not a record remaining of the times -previous to the fixing of the courts, not even the enrolments of the acts -of parliament themselves, except a few, and a very few, of the courts -of Exchequer, which, concerning the king’s revenue, were more carefully -preserved[372]. - -But the greatest advantage that attended this change was the improvement -of the law, and, what was a consequence thereof, the preservation of -the liberty of the subject. For now it became much more convenient -for persons to apply to that study, when they were no longer under -a necessity of removing. And we therefore, soon after, find the -practitioners of the law settled together, something in a collegiate -manner; and after the dissolution of the order of Knights Templars, the -habitation of these latter, called the _Temple_, was granted to them -for their residence and improvement. Here, they continued to confer the -degrees of _Apprentices, or Barristers at law_, and _Sergeants at law_, -which they had began before, in imitation of the bachelors and doctors -degrees in universities. - -The preservation of the liberty of the subject was, as I said before, -another happy consequence that resulted from the fixing the courts, and -the uniting the professors of the law into one body. For as, about this -time the study of the civil and canon laws was eagerly pursued by the -clergy in the universities, and the English customs as much depreciated -by them as possible, and as those two laws were founded on maxims of -despotism, and, as such, encouraged and supported to the utmost by the -popes, and all kings that aimed at arbitrary power, the common lawyers -were necessitated, for the support of their profession, to take the -popular side of the question, and to stickle for the old Saxon freedom, -and limited form of government. - -Hence the steady opposition they made, even in those early times, to -the king’s dispensing. Nay, they carried their zeal for liberty so far, -as (since they could not directly, in those days, oppose the weight -of the civil law) to quote the very passages of it that were in favour -of absolute power, and by their glosses make it speak the language of -liberty. Thus Bracton quotes that text: _Quod principi placet, legis -habet vigorem_; that is, in its true meaning, the monarch is sole -legislator: but Bracton’s comment is, _id est, non quicquid de voluntate -regis temere presumptum fuerit, sed quod concilio magistratuum suorum, -rege auctoritatem præstante, habita super hoc deliberatione & tractatu, -recte fuerit definitum_; that is, the king is not sole legislator; -directly contrary to the sense of the very text he quotes. And it must be -allowed, to the honour of the common lawyers, that, with the exception -of a few venal time-serving individuals, they have, for a succession of -ages, proved themselves true friends to a rational civil liberty in the -subject, and to reasonable power and prerogative in the king[373]. - -To come to the jurisdiction of this court. Its proper business, as -appears from its name, is to take cognizance of all _common pleas_, that -is, all pleas that are not pleas of the crown, or at the suit of the -king. With these it cannot meddle; for all actions at the suit of the -king for criminal matters, belong to the King’s Bench, as those for his -revenue do properly to the Exchequer. But it hath jurisdiction, and that -universally, throughout England, in all civil causes, whether _real_, -_personal_, or _mixt_; the distinction of which it will not be amiss just -to point out. - -Real _actions_ are those that are brought to recover land itself, where -the claimant has a right to an estate in it for life at least; and these, -until within these two hundred and fifty years, were the only ones used -for that purpose; but, since that time, they are gone almost entirely out -of use, on account of their nicety, their delays, their being conclusive; -and their place is supplied by mixed actions, which are easier, shorter, -and may be tried again. However, if any one was inclined, at this day, to -bring such an action, this is the court to bring it in; and therefore all -_common recoveries_, which antiently were, and still carry the form of, -real actions, are suffered in this court. - -Personal _actions_ are those that are brought for the recovery either of -some duty, or demand in particular, or of damages for the non-performance -of some promise or contract, entered into, or lastly such as are brought -by a man to recover a compensation in damages for some injury sustained -in his person—or property. To give but one or two instances of these -last: If my ground is trespassed on, if my person is assaulted, my -reputation injured, the remedy is by the personal actions of _trespass_, -_assault & battery_, or _slander_. All actions for breach of covenants -are likewise personal actions; for, by the common law, damages only -are recoverable thereon, and the party is not obliged to perform the -covenant. Wherefore, if a man chuses rather to have his covenant -performed than receive a satisfaction in damages, he must go into a Court -of Equity, which will oblige a man to perform in specie, what he hath -specifically engaged to perform, if the performance is possible. This -court, therefore, being the proper court for personal actions, fines of -lands are levied here; for they are fictitious actions, founded on a -fictitious breach of covenant. - -Mixed actions are designed for the recovery of a specific thing, and -also damages, and consequently partake of the nature both of real and -personal actions. For instance: If a tenant for life, or years, or at -will, commits waste, he forfeits to the owner of the inheritance the -place wherein the waste was done, and treble damages. The _action of -waste_, therefore being brought to recover both, is a mixed action. -The action of _ejectment_ also, which was originally proper to recover -damages for being put out of a lease for years, but is now the common -remedy, substituted in the lieu of real actions, is now of the same -nature; because both the land itself, and damages for the wrong are -recovered[374]. - -These three kinds of actions are properly the business of this court, -though, as to the two last, actions personal and mixed, the courts -of King’s Bench and Exchequer have, by fictions, gained a concurrent -jurisdiction with this court; the King’s Bench, by supposing the -defendant to be in the custody of the marshal thereof; and the Exchequer, -by supposing the plaintiff to be a debtor to the king. - -The proper way of founding the jurisdiction of this writ, is by a writ -out of Chancery, returnable hither, either to begin a cause originally -here, or to remove one depending in an inferior court not of record; but, -in some cases, they proceed without any writ from Chancery, as in causes -brought by or against an officer of the court, and likewise, in granting -prohibitions to other courts that attempt to enlarge their jurisdictions. - -Before I conclude, I must observe, that this court, though one of the -four high courts derived out of the _curia regis_, is not, however, -supreme, but subordinate to the King’s Bench. For judgments given therein -are reversible in the King’s Bench, by a writ of error issuing from the -Chancery, suggesting the king’s being informed that manifest error has -interveened, and commanding the record to be transmitted into the King’s -Bench; the judges belonging to which, upon the face of it, and nothing -else, are to affirm or reverse the judgment; for the error must be -manifest; and no error in point of fact, but error only in point of law, -can be averred against a record. - -The lowest in rank of the four great courts, though from antient times -one of the greatest importance, is the court of _Exchequer_, whose -business was to collect in the several debts, fines, amerciaments, -or other duties or properties belonging or accruing to the king, and -likewise, to issue money by his orders; and this court being originally -solely erected for the king’s profit, is the reason, I presume, why -it is held in rank the lowest; it being more honourable to the crown -to give precedence of rank to those courts that were intended for the -administration of justice to the subject, above that which was intended -merely for the king’s temporal advantage. Besides, this court was, in its -original, distinct from the _curia regis_, the treasurer being the judge -in this, as the _justiciarius Angliæ_ was in the other; and therefore, -it was regular, that the Chancery, and Common Pleas, as having been once -part of the supreme court, should take place before this. Its having -been originally a distinct court, accounts for its independency on the -King’s Bench; for, no writ of error lies from it to the King’s Bench, -as doth from the Common Pleas, but its errors are rectified in another -manner[375]. - -This court, as well as the Chancery, hath, properly speaking, two courts: -one, ordinary, proceeding according to the strict rules of the common -law; the other, by equity; for, as it is the king’s duty to render -justice with mercy, so, in this court, the rights of the king are not -always exacted with rigour; but, on circumstances of reason and equity, -may be mitigated or discharged. The court of common law in this court -had antiently much more business than of late. Originally, whilst the -royal demesnes were unalienated, they had the setting of them for years; -but, afterwards, people chusing rather the authority of the great seal, -took them in Chancery. That court, as I mentioned when treating of it, -had likewise gained the returns of inquisitions of office, and had -also gained by act of parliament, the composition of forfeitures, for -the king’s tenants _in capite_ aliening their lands without license; -which, otherwise, would have belonged to this court. The erection of the -_Court of Wards_, also, by Henry the Eighth, took off that branch of its -jurisdiction; and the abolishing of the military tenures by Charles the -Second took away the business of calling in their fruits. The erecting -the office of _the Treasury_, as distinct, for the issuing of money, had -the same effect; but, above all, the erecting new jurisdictions, and -appointing new judges to try causes relative to the new taxes, as the -Commissioners of the Customs and Excise, and Commissioners of Appeal, -diminished the peculiar business of the court[376]. - -It will be now proper to consider the nature and extent of their present -jurisdiction. Here then are sworn the sheriffs, and other officers -concerned in the king’s revenue and duties; and here they are to return, -and make up their accounts. Here, likewise, the king sues his debtors, or -even the debtor of his debtor (for so far his prerogative extends); and -here also, for enabling his debtors to pay him, they are priviledged to -sue their debtors; an allowance that hath grown up by degrees to extend -the jurisdiction of this court, and to make it concurrent with the Common -Pleas. For it is only alledging, (and this they will not allow to be -traversed or denied) that the plaintiff is the king’s debtor, and the -business is done. The court acquires an immediate jurisdiction. The same -allegation is likewise necessary, when a suit of equity is commenced in -this court; for otherwise, the suit would, on the face of it, appear to -belong to Chancery. I need scarce observe, that the officers of this -court are to sue and be sued here; for that is a privilege common to -the officers of all the courts, arising from their personal attendance. -Here, likewise, the king’s attorney-general exhibits informations for -concealment of customs and seizures, informations upon penal statutes, -where there is a fine due to the king, forfeitures and breach of covenant -to the king; likewise all informations for intrusions, wastes, spoils or -encroachments on the king’s lands; in general, where the crown suffers in -its profits. - -In this court of common law, the _Barons of Exchequer_ only are judges, -and are called _Barons_, because antiently none were judges there under -that degree. In the Court of Equity, the chancellor of the Exchequer is -joined with them, though it must be owned this officer hath seldom, of -late years, acted either in England or Ireland, in his judicial capacity, -and it hath been considered little more than as a great lucrative place. -Errors in this court are not, as I observed before, redressed in the -King’s Bench, as those of the Common Pleas are, but in another court, -called the Exchequer Chamber, consisting of the lord chancellor, lord -treasurer, and chief judges. - -There is another court of _Exchequer Chamber_ in England, tho’ we have -none such in this kingdom, erected 27th Eliz. and composed of the judges -of the Common Pleas and barons of the Exchequer, in which lies a writ -of error from the King’s Bench, to reverse judgments in certain suits -commenced there originally. Into this court are frequently removed, -or adjourned from any of the other courts, causes that are of a new -impression, and attended with difficulty, or even such concerning which -the judges, perhaps, entertain no great doubts, but are new, and attended -with extensive consequences; and this, for the more solemn determination, -that all the judges of all the courts might be consulted about -establishing a new precedent. Antiently such causes were adjourned into -parliament, but the legislative business of that high court increasing, -this court was substituted for the above purpose of consultation[377]. - -To finish this account concerning the superior courts at once, it will -be proper to say something of the supreme judicature of all, that of -parliament. Antiently, as I have frequently observed, all causes but such -as concerned the king or peers, or those that were of great difficulty, -or such as justice could not be expected in by law, were dispatched in -the county courts, the rest by petition to the king in parliament, or, in -the intervals thereof, in the _curia regis_, which originally was but a -committee thereof, appointed by the king. Hence matters determined there, -were subject to a review in parliament; writs of error from the King’s -Bench returned there; and when the Equity courts grew up, appeals from -the Chancery and Exchequer in matters of equity. This power of judicature -is peculiar to the lords (for the parliament consisted at first only -of them, and when the commons were introduced, they sat in a distinct -house) and the parliament hears at present only matters that come from -other courts by appeal, or by writ of error, which is in the nature of -an appeal, and no causes originally. It is true, that, for a long time -after the division of the courts, many causes by petition were brought -into parliament in the first instance; but these being generally referred -to the courts below, the practice ceased, and would not now be allowed. -For a long time accusations against peers were originally admitted, but -at present, and for this long time, indictments found below are required -before a peer can be tried; nor can the trial of peers by impeachment -in parliament be considered as an original trial, for the commons are -considered as the grand inquest or grand jury of the whole nation, and -therefore an impeachment by them is not only equivalent to, but has and -ought to have greater weight than any indictment by any private grand -jury. - -In this judicature of the lords, an impeachment there, is one -singularity, an exception to the grand rule, that every man is to be -tried by his peers, and that is, that a commoner impeached by the commons -shall be tried by the lords. The reason of this procedure seems to be, -that all the commons of England are supposed parties to the accusation, -when their representatives have accused him, and it might be dangerous -to trust his life with a common jury; but the lords are strangers to the -charge, and it is their interest to controul the commons, if they proceed -with too great violence[378]. - - - - -LECTURE XXXV. - - _Henry II.’s dispute with Becket—The constitutions of - Clarendon—The murder of Becket._ - - -Having, in a general manner, run through the jurisdictions of the several -great courts of the kingdom, which were divided from each other about -the time I am now treating of, though the division was not compleated, -nor the several limits exactly adjusted till some time after; I shall -proceed, in a summary way, with the few remaining observations I have to -make, with respect to the state of the law during the reign of Henry the -Second. And the greatest and most remarkable of these was his dispute -with Becket, archbishop of Canterbury; a contest attended with the most -fatal effects, and which makes up a considerable part of the civil -history of that reign. The particular circumstances that attended it, and -the many turns it took, I shall not dwell on; but, as it arose from the -clashing of contrary laws, I shall briefly lay open its source, and give -an account of the events. - -From the year of Christ one thousand, the popes had every day been -encreasing their power, and extending their pretensions. They set -themselves up, at first, as protectors of the clergy, who really had -been oppressed by the temporal princes, and in order to attach them more -firmly to their interests, they made canons in councils, and published -decretal epistles, by their own sole authority; which, in those days of -superstition, were too readily received as laws; all tending to depress -the civil power, to raise the ecclesiastical on its ruins, and, in short, -to pave the way for making the pope supreme monarch of the world, in -matters temporal as well as spiritual. The emperors, however, stickled -hard, on the other hand, to support their rights, and particularly -to maintain to themselves the nomination of the popes, as well as of -other bishops, which the popes had transferred to the people of Rome -first, and afterwards to the clergy alone; so that, for a good part of -this time, there was a schism in the church, and two popes in being, -the one named by the emperor, and the other elected; and I observed -before, William Rufus kept himself independent by acknowledging neither, -and was absolute master of the church. However, the popes that were -elected, generally gained ground. They had the majority of the clergy -on their side, and indeed most of the sovereign princes of Europe, who -were jealous lest the emperor, under pretence of being successor to the -Romans, might arrogate a superiority over them. - -It is surprizing, yet very true, that, in these contested times, the -papal power was pushed very near its greatest height. The materials, -indeed, were formed and collected some time before. A multitude of -fictitious decretal epistles had been forged in the names of the antient -popes, so early as from the year 800, all tending to exalt the bishop -of Rome, as head over the church universal; but these were not as yet -generally known and received as laws, the church being hitherto governed -by collections of canons made by private persons, out of the canons of -the general or provincial councils and sayings of the fathers. But in -the reign of our Stephen, the mighty fabrick began to be reared, and -to take a regular form. Gratian, a Roman courtier, undertook to make -a new compilation of ecclesiastical laws, and published it under the -name of _Decretum_, which is now the first volume of the canon law. -This is a motely composition, digested under distinct heads or titles, -of rules and decisions, collected from the sayings of the fathers, -canons of the councils, and, above all, from the decretal epistles of -the popes, (the modern ones real, the ancient ones forged), and was put -together principally for the two great purposes, of aggrandising the -See of Rome, and exempting the clergy from lay-jurisdiction. And, for -that purpose, not only forged epistles and canons have been inserted -in it, but the real canons and writings of the fathers have been, in -many places, falsified by adding or omitting words as best served the -purpose proposed; and that this is the case of Gratian’s work, the -learned Papists themselves confess, in many instances. However, in that -ignorant age, it passed easily all for genuine. But the popes, wisely -considering, that, if it was canvassed, it would not bear a strict -scrutiny, never chose to give it an authentic testimony of their -authority, but contented themselves with authorising it to be read in -universities. In the interval I have mentioned, the popes began to turn -their spiritual arms of excommunication or interdict, that is, forbidding -the administration of divine offices, except in _articulo mortis_, in -a country or district, to temporal purposes, and the support of their -grandeur[379]. - -On this state of affairs happened the quarrel between the archbishop and -Henry, which embroiled him with the pope, embittered his life, and was -attended with consequences that brought him to the grave with sorrow. At -this time there were two popes, Victor, confirmed by the emperor, and -Alexander, the most enterprising pope the world had yet seen, supported -by the king of France. Had Henry followed the example of William, and -acknowledged neither, he might have kept both in awe, and vindicated the -rights of his crown with success. But he was prevailed upon by Lewis of -France to recognize Alexander, who was afterwards made an instrument -of humbling Henry, of whose power that monarch was jealous. For his -extreme partiality and severity is, in part, to be ascribed to the -influence of his protector, as well as to his zeal for ecclesiastical -immunities. These immunities had grown to an excessive height, and, under -the pretence that no man should be twice punished for one offence, the -bishops took care to inflict penance on ecclesiastical offenders, and -then refused to suffer them to be tried by the laws of the land; so that -the most profligate ruffians crowded into the lower order, and committed -with impunity (except penance, or rather, a pecuniary commutation for it) -what murders, rapes, and robberies, they thought fit. Henry was sensible -of those enormities, and, in hopes of curing them, by the assistance -of one highly obliged to him, got Becket, who was lord chancellor, his -favourite, and indebted to him for his grandeur, promoted to the See of -Canterbury. But he soon found how much he was mistaken in his man. Becket -had been bred in his youth in the study of the ecclesiastical laws, -and, though he had in all things hitherto complied with the king for -his advancement, was, at the bottom, strictly attached to his order and -its privileges, and resolved, at whatever price, rather to extend than -diminish them. - -To dazzle the people, he threw aside the pomp and expensive life of -a courtier, and assumed the character of mortification and sanctity. -He began by reclaiming the estates belonging formerly to his see, -though they had been aliened by his predecessors, with the consent -of their chapters, and upon valuable consideration; and this under -pretence of a canon, made a year or two before by Pope Alexander, in a -packed council at Troyes in France; which was plainly saying, that an -ecclesiastical canon might repeal the laws of any country, and subvert -its constitution. He made an attempt likewise on the patronages of -laymen, and appointed a parson to a church, which belonged to one of -his own tenants, and afterwards excommunicated the tenant for turning -this person out, altho’ he was the king’s tenant _in capite_; and such, -by a law of the conqueror, were forbid to be excommunicated without the -king’s leave, under the penalties of treason. This was a very necessary -law; as otherwise a bishop might, by his sentence, deprive the king -of his service, and that of as many of his military tenants as he -pleased. However, in this point, when he found he was in danger of being -prosecuted on the law, he relented, and absolved the gentleman[380]. - -His screening of criminals was excercised also in the most shameful -manner. A lewd clerk had debauched a young lady, and afterwards publickly -murdered her father, and this criminal was refused to be given up to be -tried. Another was guilty of sacrilege, in stealing a silver chalice out -of a church, and _Becket_ would not suffer him to be tried by the laws of -the land. However, as the offence concerned the church, and was therefore -of a very heinous nature, he tried him himself; and having found him -guilty, branded him with a hot iron, in defiance both of the English and -canon laws, neither of which allow such punishments to an ecclesiastical -judge. But he knew he was too faithful a servant to the Pope, to be -called to an account even for making free with his own law. - -Henry, finding it necessary to stop the prelate’s career, summoned an -assembly of the bishops, and demanded of them that they should degrade -all ecclesiastical murderers, and deliver them over to the secular arm. -At first the majority seemed to think this a reasonable proposal, as they -must, in the first place, find them guilty before they were to be given -up. But _Becket_ brought them over, by representing, that, by the canon -law, they were not to be concerned in matters of blood, and that their -delivering over any criminal to capital punishment would be infringing -thereof. They therefore refused the king. He then demanded whether they -would observe the laws and customs of the kingdom. Their answer was, -in all things that did not interfere with the rights of their order. -The king left the assembly in wrath, and at length, Becket was, by the -intreaties of the other bishops, and even of the Pope’s legate, who knew -his master, being embroiled with the antipope, was not able, at this -time, to support him, prevailed with to wait on the king, and promise to -observe the laws of the land without any reservation[381]. - -Henry, sensible that such a general promise, when particular facts arose, -might be explained and evaded, was resolved that the limits of the -ecclesiastical jurisdiction should be ascertained in such a manner as -would leave no room for subterfuges; and to that end called a parliament -at Clarendon, wherein Becket and the bishops swore to observe the laws -there made, called _constitutions_, as new laws, but declared to be the -old laws of the realm. These constitutions were in number sixteen. I -shall mention a few of the principal, in order to give a notion of the -points of jurisdiction then contested between the spiritual and lay -courts. First, then, it was declared, that suits about presentations -to livings belong to the king’s courts; that clergymen should be tried -for temporal crimes in the temporal courts; and that, if they pleaded -guilty, or were convicted, they should lose the ecclesiastical privilege; -that no clergyman should quit the realm without the king’s licence, nor -attain it, without giving security to attempt nothing to the prejudice of -the king or kingdom; that no immediate tenant, or officer of the crown, -should be excommunicated without the king’s licence; that appeals in -ecclesiastical causes should be made from the arch-deacon to the bishop, -from the bishop to the archbishop, from the archbishop to the king. - -This indeed was striking at the root of the Pope’s supremacy, and of -his profits too. It was in truth declaring the king supreme head of -the church as to jurisdiction; next, that all that held ecclesiastical -dignities by the tenure of baronies, should do the duty of barons, and -among the rest sit in judgment as barons; however with this favourable -allowance to them, in consideration of their being bound by the canon -law, that they might retire when the question was to be put about loss -of life or limb; likewise that no bishop, or abbot, should be elected -without the king’s consent; nor, when elected, be consecrated till they -had first done homage and fealty; that the spiritual courts should -not hold plea of debts due upon oath; and lastly, that the spiritual -and temporal courts should mutually aid each other in carrying their -sentences into execution[382]. - -Such were the most material of the famous constitutions of Clarendon -drawn from the antient practice, and law of the kingdom, which the Pope -afterwards declared null and void, as contrary to the rights of the holy -church; which was plainly assuming the supreme legislature in every thing -that had the most distant relation to a church, or a churchman. But -Becket, who had sworn to obey the old laws only, for fear of personal -danger at that time, did not wait for the Pope’s condemnation of them, -but instantly shewed he was resolved to disobey, by enjoining himself -penance, and abstaining from officiating till he could obtain the Pope’s -absolution. Henry, provoked to the uttermost, was now resolved to crush -him. He called him to an account in parliament for all the king’s moneys -that had passed through his hands while he was chancellor, and for one -thousand marks he had lent him; demands that the king had never intended -to have made, but for his refractoriness; and which he well knew he was -not able to pay, having embezzled them in high living. - -The archbishop resolved to stand out to extremity: he offered a most -wonderful plea in a cause merely civil, that of debt, _viz._ that his -being made archbishop of Canterbury had discharged him of all former -accounts and debts, and appealed, even in this purely civil cause, to the -Pope. When reproached with contravening the constitutions of Clarendon, -contrary to his oath, he broached another curious maxim, That, in every -oath a clergyman could take, there was a _tacit salvo_ for the rights -of his order; he forbid the bishop to sit in judgment upon him, under -pain of excommunication. He would not hear his sentence, but told the -peers that he was their father, and they his children, and that children -had no right to sit in judgment on their father. He then departed, in -contempt of the court, and went over to France, where he was kindly -received by that king; and the Pope avowed and encouraged him in all the -extravagances he had advanced, received his appeal, and annulled all -sentences against him. - -However, as the schism was not yet ended, he kept him in for some time -from proceeding to extremities; but as soon as the danger was over, -the Pope suffered him to thunder out his excommunications against all -the ministers of the king, and all that observed the constitutions of -Clarendon. The king himself, indeed, was spared, and the kingdom was -not, on this occasion, laid under an interdict; a circumstance then -much apprehended. The king, on the other hand, enacted, that no appeals -should be made to the archbishop, or Pope; that the lands belonging to -Becket should be confiscated; that the clergy who resided abroad should -return in three months, or forfeit their benefices; and that no letter of -interdict should be brought into England, the penalty of which last was -afterwards made the same of treason. - -The king was not a little uneasy at the apprehensions of personal -excommunication, or of an interdict’s issuing, as he observed the -censures already passed had but too much influence on the weakness of -many of his subjects. He therefore, to ward the blow, had recourse to -negotiation, which the Pope readily admitted, who feared, on the other -hand, from the popularity of Henry’s and the unpopularity of Becket’s -conduct, that his ecclesiastical thunders might be slighted in England. -He contrived, however, in the interim, to embroil him with the king of -France, and other powers on the continent. Matters continued on this -footing for some years, in a train of negotiation; in the course of which -the moderation of the king and the insolence of the archbishop were -equally remarkable, till, at length, the former, finding the Pope had -trod down all opposition, and that his own interest was on the decline, -was obliged, I may say, to submit; for he was reconciled to Becket; -engaged to restore his and his adherent’s effects, and to suffer him to -return to England, which he did with the additional quality of legate of -the Pope; and no mention was made of either side, of the subject of the -dispute. - -But Becket was resolved to shew the world he had conquered. He began the -exercise of his legatine power, by suspending and degrading the clergy, -and excommunicating the laity that adhered to the laws of the kingdom. -Nay, he excommunicated two of the king’s tenants for cutting off the tail -of his sumpter mule; so sacred was the beast become. - -Soon after he was murdered at the high altar, in consequence of a rash -speech of the king’s, in a barbarous manner, as all, any way acquainted -with the history of England, must know; and now was Henry compleatly -at the Pope’s mercy. For Becket, dead, served the See of Rome more -effectually than he ever could have done living. The bloodiness of -the fact, the sacredness of the place where it was committed, and the -resolution with which he died, filled not only all England, but all -Europe, with religious horror. Miracles in abundance he immediately -wrought, and he who by many was looked upon as a traitor, was now -universally esteemed a saint and a martyr; and so he was to the interest -of the See of Rome. - -In these circumstances Henry was obliged to submit to be judged by the -Pope’s legates, who, at length, absolved him, on his swearing that he had -not willingly occasioned the murder, and that he felt great grief and -vexation on account of it; in which, no doubt, he was sincere. But before -he could obtain it, he was obliged to promise to be faithful to Alexander -and his successors, not to interrupt the free course of appeals to Rome -in ecclesiastical causes, and not to enforce the observance of evil -customs introduced since his accession to the throne; for so they stiled -the constitutions of Clarendon, though they were only declarations of the -old law. And thus ended this famous contest, in an absolute victory on -the side of the Pope[383]. - - - - -LECTURE XXXVI. - - _The rebellions of Henry’s sons—He is succeeded by Richard_ - I.—_The steps taken at this period towards settling the - succession to the kingdom—The laws of Oleron—Accession of - John—His cruelty and oppressions._ - - -Henry’s quarrel with the Pope, terminating in the manner it did, -necessarily weakened the weight and influence he ever before supported, -both in his own kingdom, and on the continent; nor could the unwearied -pains he afterwards took, in redressing grievances, and making salutary -laws, by the advice of his parliament, restore him to the consequence he -had lost. The rest of his life was spent in unfortunate wars with his -rebellious children, instigated thereto by the artful Philip of France. -And the pretence was grounded on a step that Henry had taken in favour -of his children, and I may add of his people, that of bringing the crown -to a regular course of succession, and by that means preventing contests -upon a vacancy. Hugh Capet, the first of the present race of French -kings, who came to the throne by election, in order to perpetuate it in -his family, invented that practice which his successors followed for near -three hundred years, of associating the eldest son, by causing him to be -crowned in the father’s lifetime. - -Henry, who loved his children, and was sensible that the not following -this practice in England had occasioned the wars between William and -Henry the Conqueror’s sons, and their brother Robert, as well as those -between Stephen and himself and his mother, crowned his eldest son Henry. -But the use which the ungrateful prince made of his advancement, was -to embroil his father, by demanding the immediate cession of Normandy, -on pretence that, being a king, he should have some country given up -immediately to govern. Upon young Henry’s death, the father, who knew -Richard, with greater capacity, was equally unnatural with his elder -brother, resolved not to give him the same pretence to trouble him, -and refused obstinately to have him crowned; but this refusal served -itself for a pretext for rebellion, as it gave Richard room to think, -or at least to pretend to think, that his father intended to disinherit -him, and to settle the crown on his youngest and favourite son John. -In this rebellion Richard, assisted by the king of France, and many of -Henry’s subjects, who probably suspected Henry’s design was such as was -suggested, prevailed, and the father was obliged to engage that his -subjects should take the oath of eventual allegiance to Richard, and soon -after died of a broken heart, occasioned by the undutiful conduct of -every one of his sons. - -Richard accordingly succeeded; during whose reign we have little to -observe concerning the laws, the whole time of it being spent in a -continual state of war either in Palestine or France. Enormously heavy -indeed were the taxations his subjects laboured under, and yet they -bore them with chearfulness. For the holy war, and the recovery of -the sepulchre of Christ from the infidels, no aids could be thought -exorbitant; and for his wars after his return he was readily supplied -out of affection; for the remorse he shewed for having occasioned his -father’s death, his admirable valour, the injustice of and the cruel -treatment he received in his captivity, and, above all, the opposition -between the perfidious conduct of the French king and his openness and -sincerity, endeared him to his subjects, made them shut their eyes on his -many failings, and bear their burthens with patience. - -Two things only passed in this reign proper for the subject of these -lectures, the steps made for settling the succession of the crown, -and the laws of Oleron. As Richard was unmarried when he set out for -Palestine, he thought it proper to prevent, if he could, any doubt that -might arise, in case he died without issue. There might, in this case, -be two competitors, Arthur, the son of Geoffry, his next brother who was -dead, and John the youngest brother, who was living. However clear the -point is at this day in favour of the nephew, it was then far otherwise. -For Arthur might be urged the right of representation. He represented his -father Geoffry; in all the fiefs in France, the law was in favour of the -nephew; nay, Glanville, who wrote in Henry the Second’s reign in England, -as to English estates, declared to the same purpose; and certain it is -that the general current of opinions at that time tended that way[384]. - -On the other side, it might be said in favour of John’s pretensions, -that the examples of fiefs could be no precedents in case of crowns. -These required more strictly, a person capable of acting in person. That -this was the very case; John was a man, Arthur a child; that, allowing -Glanville to have laid down the law right, he had made a distinction, -which comes up to this case; for he says, the uncle shall succeed, if -the father of the nephew had in his life-time been _forisfamiliated_; -that Geoffry had been out of the _patria potestas_ of Henry, by being -sovereign prince of Britany; that in the Saxon times two cases, for the -exclusion of infants, had happened, much stronger than the present; that -when Edmund the first died in possession of the throne, his brother -Edred succeeded, not his sons; and though Edmund Ironside had been king, -yet, after the Danish usurpation ceased, his brother the _Confessor_ -was preferred to his son, though of full age, whereas Geoffry never -had the crown; that, since the conquest, three several times had the -lineal succession been set aside by parliament. So that there were not -wanting plausible arguments of each side of the question, and it is with -injustice that modern historians, considering only the maxims of their -own times, when a regular succession has been established, charge John -with a manifest usurpation of the crown of England. But that he was a -manifest usurper of the territories in France must be allowed; for, by -the laws of that country, they should have gone to the nephew. - -A question of this weight and difficulty should regularly have been -decided in parliament, which always hitherto had determined in such -matters; but Richard had never thought of the business till he left -England, and then it was too late to proceed in that method. He was -obliged, therefore, to content himself with declaring, by his own -authority, his nephew Arthur his successor; and, to prevent John’s -traversing his design, he exacted an oath from him not to set foot in -England for three years; but from this obligation he afterwards released -him, at the request of their mother. John used all his art to caress the -nobility, and to supplant his nephew Arthur, as he fondly hoped Richard -would never return. And indeed, the conduct of William Longchamp, bishop -of Ely, Richard’s viceroy, contributed greatly to his success; for, as -to oppressions and outrages, he was not exceeded even by William Rufus -himself. This gave John a pretext for intermeddling to preserve the -liberties of the people. He sent word to that prelate, that if he did -not refrain from his exorbitancies, he would visit him at the head of an -army; which for such an occasion he might easily raise. - -A general assembly, or parliament, was called, to compose the -differences; in which it was settled, that Longchamp should continue -in the administration, and hold the castles during the king’s life, -but that, if he died without issue, they should be delivered to John -as successor; and this agreement was ratified by the oaths of all the -nobility and prelates, so that, as Arthur had the decision of the king in -his favour, John by this means attained that of the people. Sensible how -much this step must offend the king, and of the dangerous predicaments he -must stand in should he return, he spared no pains to ascend the throne -even in the life of his brother, in which he was cordially supported by -the king of France. But all his efforts were baffled by the vigilance of -the regency, who had been appointed on Longchamp’s deposition, and was -more necessary from his continuing in his former extravagancies. John -even gave out that Richard was dead, and seized several castles, which he -put in a state of defence. He was, however, soon reduced, upon the king’s -return, and all his treasonable practices pardoned at the intercession of -his mother. When Richard came to die, he changed his mind as to Arthur, -and by will appointed John his successor: an alteration, considering -his former attachments to his nephew, who had never offended him, that -could proceed from nothing but his unwillingness to leave his dominions -involved in a civil war through the intrigues and interest of his brother. - -The laws of Oleron concerning naval affairs are the only specimen of this -prince’s legislative capacity. They were made at the isle of Oleron, -off the coast of France, where his fleet rendezvoused in their passage -to the Holy Land, and were designed for the keeping of order, and the -determination of controversies abroad. With such wisdom were these laws -framed, that they have been adopted by other nations as well as England. -And, I think, to this time we may, with probability enough, refer the -origin of the admiralty jurisdiction. In his reign, for the first and the -last time, was raised the feudal aid, for the redemption of the king from -captivity. - -Notwithstanding all the faults of this prince, his firmness against the -papal power is to be commended. Two of his bishops having a controversy, -there was an appeal to the pope, who sent a legate to determine it; but -Richard prevailed on the parties to refer it to his arbitration, and -would not suffer the legate to enter England, till he had made an end -of the business; and when he did come, the king suffered him not to -excercise his legatine power in any but one single point, and that by -his express permission. Notwithstanding all the steps taken in favour of -John, in order to pave the way for his succession, the notion of Arthur’s -hereditary right had taken such strong root in the minds of many, that, -had he been in England, and of a sufficient age to manage his affairs, he -might have had a fair prospect of success[385]. - -The lower people indeed were easily prevailed on by his agents to take -the oath of fealty to John, while the prelates, and nobility in general, -retired to their castles, as deliberating what steps they should take; -but, at length, by magnificent grants, and more magnificent promises, -they were prevailed on to come in, and he mounted the throne without -opposition. But in the French provinces his usurpation met with more -resistance. Arthur had many partizans, and his cause was espoused by -Philip of France, the lord paramount, not with an intention to strip John -of all; for that, with Britany, would have made Arthur too powerful; but -with a design to divide the dominions more equally between them, and -perhaps to clip off a part for himself, as he afterwards did Normandy, as -being forfeited by a sentence of the peers of France, by John’s murder of -Arthur. By the way, I shall observe, that this sentence was notoriously -unjust. By the laws of France, Arthur was the undoubted heir of Normandy, -and on his death his sister ought to have succeeded, nor ought the duchy -to have been forfeited by the crime of a wrongful possessor. Or, taking -it the other way, that Philip had a right to choose his vassal, and, -consequently, that the investiture he gave to John was valid; then was -he rightful duke of Normandy, and Arthur, as duke of Britany, was his -vassal, and had justly forfeited his life, by rebelling and endeavouring -to depose his liege lord. That John was guilty of this crime there was no -room to doubt; and truly, from the whole of his conduct from that time, -he seemed to have been infatuated by the terrors of his conscience; for -it was but little less than frenzy. He knew he was, by this cruel act, -become the detestation of his subjects in general, and that his father, -in the midst of his power and popularity, had been humbled by the Pope; -and yet, at the same time, he trampled on the liberties of the former, -and oppressed them in the most outrageous manner, and while his subjects -were thus disaffected, he openly set the latter at defiance. - -To this reign, however, so inglorious, and so miserable to the English -of that age, do their successors owe the ascertaining their liberties. -He was, if we except William Rufus, the first of the kings that openly -professed to rule by arbitrary power. I do not mean to deny that every -one of his predecessors from the Conquest had, in some particular or -other encroached on their people, but then there were either peculiar -circumstances of distress, that almost enforced and excused them, or one -or two wrong steps were atoned for by the greatness and goodness of their -general conduct. It is very observable, that, as England is almost the -only country in Europe that hath preserved its liberties, so was it the -first wherein the kings set up for absolute power: and the preservation -of them, I apprehend, was in a great measure owing thereto, that this -claim was started there when the feudal principles, and the spirit of -independency, except only in feudal matters, were in their vigour, and -consequently raised such a spirit of jealousy and watchfulness, as, -though it hath sometimes slept, could never be extinguished; whereas, in -other countries, the progress of arbitrary power hath been more gradual. -It hath made its advances when the feudal system was in its wane, and -when the minds of men, by the introduction of the civil and canon law, -were prepared for it. - -What encouraged the kings of England to attempt this sooner than other -monarchs, we may judge, was the greater disparity in riches between them -and their vassals, than was in other countries; so that nothing much -less than a general confederacy could curb them; whereas, abroad, two -or three potent vassals were an overmatch for the sovereign. Besides, -having subjects on each side of the water, not knit together in any -common interest, they might hope to use the one to quell the other. But -whatever was the cause, so was the fact; and John, even before the death -of Arthur, having removed the dread of a competitor, shewed, by a most -extraordinary step, what kind of sovereign he was like to prove. By the -law of these days a vassal was to pay his relief to his superior out of -his own demesnes, and the profits of his seignory, and had no right to -demand aid for that purpose from his sub-vassals; John having detached -Philip from his nephew’s interest, by ceding a part of his French -territories, was to pay twenty thousand marks for the relief of the rest; -and, to receive this sum, he, by his own authority, laid three shillings -on every hide of land in England; thus making England to pay that relief -for his foreign dominions, which his foreign subjects themselves were not -obliged to pay. - -The next instance was in favour of the Pope, under pretence of the holy -war. Innocent had laid a tax upon the clergy, of the fortieth of their -revenues, and sent a collector to England to gather it, whom John, -of his own authority, empowered to collect it from the laity. These -two impositions were submitted to, in as much as there was no plan of -opposition then formed; but they afterwards occasioned great discontent -among a people, who thought no taxes could be raised without their own -consent. Accordingly, the next time he summoned his military tenants -to attend him into France, they assembled at Leicester, and agreed to -refuse attendance, unless he would restore their privileges; for though, -by the law of the Conqueror, they were obliged to go, they looked upon -this obligation as suspended by his behaviour. However, they had not yet -sufficiently smarted, to unite them thoroughly, and this affair was made -up by his accepting a scutage. - -To enumerate all the exorbitancies he committed would be tedious, and -unnecessary, as the remedies prescribed in _Magna Charta_ sufficiently -point out the grievances. Let it suffice to say, in general, that he -oppressed his military tenants by exacting extravagant reliefs, by -disparagement of heirs, by wasting his wards lands, by levying exorbitant -scutages, by summoning them to war, and delaying them so long at the -place of transportation that they were obliged to return home, having -spent all their money; or, when they were transported, keeping them -inactive till they were obliged to return for the same reason, and then, -without trial, seizing their lands as forfeited. The same oppressions he -extended to others, seized lands and tenements at will and pleasure, -imprisoned whom he pleased, laid heavy talliages on the socage tenants -and boroughs, without any regard to the privileges they had obtained from -his predecessors; and having, by these means excited the detestation of -his subjects, and forfeited his reputation by losing Normandy by his -indolence, he took it into his head that he was a match for the Pope, -and engaged in a contest with his Holiness, which subjected him and his -kingdom to the Roman See, tho’ eventually it contributed not a little to -the recovery of his subjects liberties.[386] The manner in which this -happened shall be the subject of the ensuing lecture. - - - - -LECTURE XXXVII. - - _John’s dispute with the court of Rome—Cardinal Langton - promoted to be Archbishop of Canterbury—Pope Innocent lays - the kingdom under an interdict—John is excommunicated—His - submission to Innocent—The discontents of the Barons—Magna - Charta and Charta de Foresta—An examination of the question, - Whether the rights and liberties, contained in these charters, - are to be considered as the antient rights and liberties of the - nation, or as the fruits of rebellion, and revocable by the - successors of John?_ - - -If Alexander the Third shewed the grandeur of the pontifical power in -humbling Henry the Second, the displaying it in its full glory was -reserved for Innocent the Third who now reigned, and who being promoted -to the papacy at the age of thirty seven, had vigour of body and mind to -carry every point he engaged in, and was resolved to push his power to -the utmost. Having tasted the sweets of English gold, in the collection -made under pretence of the holy war, he had a great desire to renew -the experiment; and that he might be able to proceed with the less -opposition, was resolved to have an archbishop of Canterbury at his -devotion; and the See falling vacant, a controverted election furnished -him with an opportunity. - -The election belonged to the convent of Christ-church, though it was -contested with them by the suffragan bishops. The very night the -archbishop died, a faction of the younger monks resolving to have an -archbishop of their own chusing, assembled, and chose Reginald sub-prior -of the convent, and sent him off before morning for Rome, to obtain -the Pope’s confirmation, of which they did not entertain any doubt, as -it would be plucking a feather from the king’s prerogative, that of a -previous licence for proceeding to election; and Innocent had already -shewn that he looked on himself as monarch of monarchs. But as they could -not expect the Pope would take this stride in support of a clandestine -election, they all took an oath of secrecy, to be observed till the -confirmation was obtained. - -But Reginald’s vanity defeated the scheme, and made him divulge it, -which so provoked his electors, that they joined with the others, -petitioned the king for a license, and elected, at his recommendation, -the bishop of Norwich, and twelve of the monks were dispatched to solicit -his confirmation. The suffragan bishops opposed him, as being elected -without their concurrence, which point was determined for the convent by -Innocent; notwithstanding which, without assigning any invalidity in the -second election, he annulled it as well as the first, and recommended -to the twelve deputies to elect Stephen Langton, an Englishman and a -cardinal. At first they demurred, as having no authority; but the threat -of instant excommunication compelled them to obey. And then, as if they -had done nothing out of the way, he recommended Langton to John in a -very civil letter. The king, enraged to the highest, turned the monks -of Canterbury, who were entirely innocent, out of their convent and -the kingdom, and threatened the Pope that he would suffer no appeals. -Innocent, who had before this humbled Philip of France by an interdict, -and knew the man he had to deal with, proceeded very calmly, to order -three bishops to exhort the king to receive Langton, and recall the -monks; and, in case of non-compliance, to lay the kingdom under an -interdict[387]. - -The name of interdict frightened John, who knew how much he was hated. -He offered to comply, if he might be allowed to make a protestation of -a saving his dignity and prerogative; but no salvo would be allowed; -the interdict was published, Divine service ceased through the kingdom, -except in a very few places, where some clergymen were found honest and -bold enough to preach against the Pope’s proceedings. John, in revenge, -fleeced the clergy in a most horrible manner; and, what is yet more -surprising, did not desist from oppressing the laity. However, as to the -points in contest, he was not obstinate; he offered more than once to -submit; but Innocent had more extensive views. There was no remission -without he refunded to the churchmen every farthing he had extorted -from them, a thing absolutely out of his power. Then followed, after -successive delays calculated to shew that the holy father would give his -undutiful son time to repent, a sentence of excommunication by name, a -bull absolving his subjects from their oath of allegiance, and commanding -all persons to avoid his company; and, lastly, a sentence of deposition, -and a grant of all his dominions to the king of France, who had been -invited also by John’s subjects, whose patience had been by this time -quite exhausted with his tyranny, and the suspension of the performance -of Divine service. - -Philip was very ready to execute this sentence, and assembled a numerous -army. Randulf was sent, as the Pope’s legate, to see the sentence of -deposition put in execution; but, in reality, with secret instructions -of a very different nature; for it was by no means Innocent’s intention -to give England to France, but to subject it to himself. John, terrified -with the exaggerated account of Philip’s armament, and the disaffection -of his subjects, submitted in every point before in contest, and in -one new one, that no clergyman should be outlawed. But this was not -sufficient to avert the danger from Philip, and his own disaffected -barons. To make him sacred and invulnerable, he became a vassal to the -Pope, resigned his kingdom to him by a formal charter, and received it -again as a favour, under homage, and a yearly rent of a thousand marks. - -In consideration of this submission, John was favoured in the point -of indemnifying the clergy, which was what had so long retarded the -accommodation. Innocent took the estimating this on himself, and having -got all he wanted for the See of Rome, forgot his former clients the -clergy, and was very moderate with his new vassal. However, the interdict -was not removed, nor the king absolved from his excommunication, till -Langton was put into possession; which when done, John was obliged to -renew his homage, to swear to defend church and clergy against all -their adversaries, and to make restitution; and then he was absolved. -But there was one curious addition to this oath, which Langton, who was -an Englishman, and a lover of liberty, certainly inserted of his own -head, that he should restore the laws of the Confessor: For Innocent -would never, we may be well assured, have allowed such privileges to -his vassals. John, however, out of fear of Philip, being in an hurry to -be absolved, made no objection; and indeed he had no reason to doubt -the Pope would absolve him from his oath. But Langton and the nobles -were resolved to keep him strictly to it. Soon after, while he was in -France, his regents summoned a parliament, wherein the king’s peace was -proclaimed, and the laws of Henry the First were revived. These were -those he had sworn to restore, being in truth the Confessor’s, with a few -additions and alterations by the Conqueror and Henry. - -John, however, went on in his old courses, being now sure of the Pope’s -protection, and indeed it was hard to charge him with a breach of Henry’s -charter, of which, though copies had been lodged in every cathedral and -great abbey in England, yet so carefully were they destroyed, that not -one appeared. At length archbishop Langton furnished them with one, which -had escaped the general calamity; and this the associated barons, who -had determined to restrain John, and recover their liberties, made the -basis of their demands, and swore to demand, and if refused, to vindicate -with the sword, at a meeting they had at Edmundsbury under pretence of -devotion. Accordingly, they waited on the king in a military dress, and -made their demands; but he, seeing they were only a party among the -nobles, and not imagining the rest were of the same sentiments, not -only refused, but with haughtiness insisted they should renounce them, -by giving under their hands and seals, that they would never make the -like demand on him or his successors. But his eyes were opened when he -found scarce two or three of those that were with him would comply. He -had recourse to procrastination, and promised them satisfaction at the -latter end of Easter. In the interim he exacted a new oath of allegiance -from his subjects; a feeble precaution; for none refused it, or thought -themselves precluded by that act of duty from vindicating their rights -in what manner they best might. To secure the clergy, he gave them a -charter, confirming their immunities, and the entire freedom of their -elections; and yet a great multitude continued zealous for the liberty -of the subject against him; but his main dependance was on religion. To -render his person sacred, he assumed the cross, as if he intended for -the holy war, and implored the protection of his Holiness, to whom the -discontented barons also represented the justice of their pretensions. -Innocent, in appearance, received them favourably, advised them to -represent their hardships in a decent and humble manner to the king, in -which case he would interpose in favour of all their just and reasonable -petitions; but annulled their association, and forbad them to enter into -any new one for the future. - -The barons, who sent to the Pope rather out of respect than any -expectation of favour, proceeded in the method they began. They and their -vassals assembled in array, in such numbers as to compose a formidable -army; and when they had particularly specified their demands, and -were refused, they proceeded to attack him, by reducing his castles. -Against himself, as being under the cross, they made no attempt. On -this occasion, archbishop Langton, who was at the bottom of the whole -confederacy, outwitted John; who, as they had disobeyed the Pope, was -impatient to have them excommunicated, and this the Pope promised to -do as soon as the foreign troops, which the king had brought over for -his defence, had quitted the kingdom; but when they were gone, he broke -his engagement, so that John, left defenceless, was obliged to appoint -four nobles to treat with the revolted lords; and, upon conference, some -points they had insisted on before being given up, the liberties of the -nation were settled, as contained in the two charters of _Magna Charta_, -and _Charta de Foresta_[388]. - -The manner of obtaining these charters, and the right the people have -to the liberties contained in them, have been the subject of much -controversy between the favourers of arbitrary power and the assertors -of freedom; the one, contending that they were the fruits of rebellion, -extorted by force and fraud, from a prince unable to resist, and -therefore revocable by him or his successors; and the others, that they -were the antient privileges of the nation, which John had, contrary to -his coronation-oath, invaded, and which they therefore had a right to -reclaim by arms. That they were obtained by force, is undoubted, and -that John and many of his successors looked upon them, therefore, as of -no validity, is as clear, even from the argument lord Coke brings for -their great weight, their being confirmed above twenty times by act of -parliament. To what purpose so many confirmations, if the kings had not -thought them invalid, and had not, on occasions, broke through them; and -were it as clear that they were not the antient rights of the people, -it must be owned they were extorted by rebellion. But that they were no -other than confirmations, appears very plainly from the short detail I -have heretofore given of the constitution and spirit of the monarchy of -the Saxons, and all other northern nations. - -As to any new regulations introduced in them, as some there are, they -are only precautions for the better securing those liberties the people -were before entitled to, and it is a maxim of all laws, that he who has a -right to a thing, hath a right to the means without which he cannot enjoy -that thing. - -The friends, therefore, to absolute power, sensible that the original -constitution is against them, choose to look no farther back than -the Conquest. Then, say they, the Saxon government and laws were -extinguished, the English by the Conquest lost their rights, the -foreigners had no title to English liberties, and the Conqueror and his -son William acted as despotic monarchs. Therefore, their successors -had the same right, and it was treason to think of controuling them. -But how little foundation there is for this doctrine, may appear from -what I observed on the reign of the Conqueror. He claimed to be king on -the same footing as his predecessors; he confirmed the Saxon laws, and -consequently both Saxons and foreigners, when settled in the kingdom, -had a right to them. If he oppressed the English, that oppression did -not extend to all; and to those it did, it was not exercised as upon -conquered slaves, but as upon revolted rebels. But, for argument sake, -to allow that the English became slaves, and that the foreign lords -had no right to the Saxon privileges, both which are false, how came -the king to be despotic sovereign over them? They were partly his own -subjects, freemen, according to the feudal principles, who served him -as volunteers, for he had no right to command their service in England; -or volunteers from other princes dominions, and to say that freemen and -their posterity became slaves, because they are so kind as to conquer a -kingdom for their leader, is a most extraordinary paradox. - -But William the Conqueror, in some instances, and his son in all, acted -as despotic princes; therefore they had a right so to do. I answer, -the triumvirs proscribed hundreds of the best Romans, therefore they -had a right. It is as unsafe to argue from matter of fact to matter of -right, as from matter of right to matter of fact. It is as absurd to -say, Tarquin ruled absolutely, therefore the Romans were rightfully his -slaves, as to say the Romans had a right to liberty under him, therefore -they were free. - -But it may be said, the people quietly submitted, and new rights may be -acquired, and new laws made, by the tacit consent of prince and people, -as well as by express legislation. I allow it where the consent is -undoubtedly voluntary, and hath continued uninterrupted for a long space -of time; and how voluntary this submission was, we may judge from the -terms they made with Henry the First, before they suffered him to mount -the throne. Besides, there are some points of liberty, essential to human -nature, that cannot, either by express or tacit laws, be given up, such -as the natural right that an innocent man has to his life, his personal -liberty, and the guidance of his actions, provided they are lawful, when -the public good doth not necessarily require a restraint. In short, never -was there a worse cause, or worse defended; and this maxim was what -influenced the conduct of the Stuarts, and precipitated that unhappy -house to their ruin. - -John, who entertained the same sentiments, had no resource to recover -his lost rights, as he thought them, but the assistance of the Pope, and -an army of foreigners. The first very cordially espoused his interest. -He was provoked that he, who had humbled kings, should be controuled by -petty lords, and that by these privileges he should be prevented from -reaping that golden harvest he expected from England. He annulled the -charters, commanded them to recede from them, and, on their disobedience, -excommunicated them, first in general, and then, by name. - -About the same time arrived an army of veteran foreigners, that came -to assist John, who had, in imitation of the Conqueror, distributed to -them the estates of the barons. With these and a few English lords, -he took the field, and ravaged the country with a more than Turkish -barbarity. The confederate barons saw the liberties they had contended -for annulled, their lives and estates in the most imminent danger, and, -in a fit of despair, invited Lewis, prince of France, to the crown, who, -bringing over an army, saved them from immediate destruction. However, -this strengthened John. It was not for any to stand neuter. Few chose to -embark in an excommunicated party, and many, who saw slavery unavoidable, -and nothing left but the choice of a master, preferred their countryman -for a king to a foreigner. The loss of liberty now seemed certain, which -ever prevailed; when the haughtiness of Lewis, and his want of confidence -in the English noblemen who joined him, concurring with the death of -John, and the innocence of his infant son, providentially preserved the -freedom of England. - - - - -LECTURE XXXVIII. - - _The minority of Henry III.—Ecclesiastical grievances—The - dispensing power—The canon law—Confirmation of Magna Charta—A - commentary on Magna Charta, in so far as it relates to what now - is law._ - - -John left his minor son under the guardianship of the earl of Pembroke, -a nobleman of great abilities, and the strictest integrity. The first -step he took for the benefit of his pupil, was the confirmation of the -charters, and the next was a negotiation with the revolted lords, who -began to be discontented with the prince of France; which succeeded -so happily, that in a short time he brought them all over with very -little bloodshed, and Lewis was obliged to quit the kingdom. Peace being -re-established, the regent applied himself with all diligence to restore -the peace of the kingdom, and justice to her regular course: And had he -lived long enough to form the conduct and principles of the young king, -England never had a fairer prospect of happiness; but he soon dying, and -his successors being men of a different stamp, such principles were sown -in the monarch’s mind, as, in the event, produced bitter fruit both to -him and the whole kingdom. - -This reign was as calamitous as the preceeding one, and rather more -shameful; and what added to the misfortune, it lasted three times as -long. As soon as Henry came of age, he revoked _Magna Charta_, as being, -an act of his nonage, soon after he confirmed it, then broke it, then -confirmed it by oath, with a solemn excommunication of all that should -infringe it; then he obtained from the Pope a dispensation of his oath, -and broke it again. And thus he fluctuated for fifty years, according as -his hopes or years prevailed. However, in general, the charter was pretty -well observed. The great point it was infringed in, was the levying -money without the parliament, and in this he frequently prevailed, being -assisted by his Lord Paramount, the Pope. They joined in levying taxes, -and then divided the spoil between them. Indeed, their Holinesses had, -upon each occasion, by much the greater share; for they not only fleeced -the clergy separately, but drew vast sums from the king, on pretence of a -foolish project of making his younger son king of Sicily; all which they -squandered on their private occasions. - -In this reign they introduced the practice of provisorship, against -which so many acts of parliament have been made. It went on this maxim, -That the Pope was universal pastor of the church, and consequently sole -judge who should be his deputy in any particular place. The inference -necessarily followed, that the rights of patronage to livings, whether in -a Bishop or lay patron, were, strictly speaking, no rights at all, being -such only where the Pope did not chuse to interfere. But this privilege -would have been of little significance, if they could act only in the -vacancy of a living; for it would generally have been filled up before -he could have notice. Bulls of provisorships were, therefore, invented. -These were charters of the Pope, directed to the bishop, acquainting -him, that he had provided for such a person, by appointing him to such -a benefice, when it should become vacant, or the first benefice of such -a value that should fall; strictly forbidding the Bishop to admit any -other person, upon any account whatsoever. Sometimes the person provided -for was not named; but notice was to be given when the vacancy happened. -In process of time a number of livings were resolved in the same bull; -nay, one went so far as to forbid any living that should fall to be -filled, till the Pope had provided for three hundred persons. Such were -the delightful consequences of John’s homage, and of England becoming -St. Peter’s patrimony; so that the monkish historians tell us that Rome -sheared all Europe; but in England they flayed off the skin. An account -was taken at one time of the value of English benefices possessed by -Italian priests, non-residents, and it was found to exceed the ordinary -revenue of the crown. All these bulls concluded with a non obstante, that -is, notwithstanding any laws, custom, privilege, right or patronage, -or any thing else whatever; and this hopeful precedent Henry the Third -adopted in his charters, thereby, if he could not repeal, at least making -ineffectual the laws of the land; and thus began the king’s claiming a -_dispensing power_ over the laws[389]. - -In this meridian of the Pope’s power was the canon law introduced into -England, and it soon began to usurp considerably on the civil courts; -insomuch that, had not the common law judges exerted themselves to check -the ecclesiastical court by prohibitions, which they did even in this -reign, it would have gained the same ascendant that it has in the Pope’s -territory. - -The latter end of this reign was filled with a succession of troubles, -occasioned by the repeated breaches of the charters, and fomented by -the ambition of some of the great nobles; however, in the end, the king -prevailed, by the assistance of his son; but it was found expedient, -even in the midst of victory, in order to prevent future convulsions, -to establish the liberties of England, by confirming _Magna Charta_; -and they have ever since stood their ground. I shall therefore proceed -briefly to speak to _Magna Charta_, and in so doing shall omit almost all -that relates to the feudal tenures, which makes the greatest part of it, -and confine myself to that which now is law. - -The first chapter of _Magna Charta_, as confirmed in the 9th year of -Henry, which is that now in force, and differs from that of John in some -omissions, concerned the freedom of the church, in which was principally -included the freedom of elections to Bishopricks, which, since the -reformation, has been taken away. I shall, therefore, proceed to those -that concern the laity; the five next are feudal, and the seventh is -concerning widows. It first gives them free liberty to marry or not; -whereas, before, such as were called the _king’s widows_, that is, -those who held lands, or whose husbands held lands of the king, had -been obliged to pay for license to marry if they had a mind, or were -distrained to marry, if they had no mind, which it is unnecessary to say -was a grievous oppression. It restrains the taking any thing from the -widow for her dower, or for her own land, which her husband had held in -her right. It provides for her _quarantine_, that is, gives her leave to -stay forty days in her husband’s house, unless she had dower assigned to -her before, and within that time orders the third part of her husband’s -land to be assigned her by the heir, as her dower; and that, in the -interim, she should have reasonable estovers[390]. - -The next is in favour of the _king’s debtors_, and their securities. By -the old law, the king’s profit was so highly favoured, that he could, to -satisfy his debt, seize the chattels or extend, that is, take the profits -of the real estate of his debtor, at his pleasure; or he might, in the -first instance, come on the security, without attacking the principal -debtor. For remedy hereof, it forbids the king, or any of his officers, -seizing the land, while the debtor’s personal chattels are sufficient. -It forbids, also, the distraining the securities, while the debtor’s -chattels were sufficient. If they were not, the king had the option -either to seize the land of the debtor, or distrain the securities; and -if the latter was done, it provides, that the securities should have -the land, until they are reimbursed. Immediately after this, in king -John’s charter, followed the law prohibiting the king from levying any -talliage or tax on the socage tenants, or on boroughs, without assent -of parliament, which is here omitted; and this king and his son Edward -asserted and exercised the right; but the last was at length obliged -to give it up, in the famous statute _de tallagio non concedendo_, and -not till then were these ranks of the people entirely emancipated. This -omission for a time rendered illusory the next, the ninth chapter, which -provides that the city of London and all the other cities, boroughs, and -ports, should enjoy all their ancient liberties and customs; for these -would be of little use whilst arbitrary taxation remained. The tenth is -in affirmance of the common law, that no person should be distrained for -more rent or services than he owed out of the land. If he was, he had -a double remedy, either by _a suit in replevin_, or by the writ called -_ne injuste vexes_. The next is for fixing the court of Common Pleas, -of which I spoke already. The twelfth was for the ease of the people, -by taking assizes in the country. But those actions are out of use now. -The thirteenth is concerning assizes too. I hasten therefore to the -fourteenth that treats of _amerciaments_. - -Amerciaments come from the word _mercy_, and are so called from the words -in the record, _sit in miserecordia pro falso clamore suo_, and were -properly, though the word hath been since extended, what a plaintiff -or defendant that had troubled the king’s courts should pay by way of -punishment for maintaining an unjust suit; whereas _fines_, to which they -bear a resemblance, and with which they have sometimes been confounded, -were for offences, and assessed by the court; as were amerciaments also -sometimes, and very grievously, though entirely against law. This act -restores the common law; orders the amerciaments to be proportioned to -the nature of the case, and also, in regard to the man’s circumstances, -so that he should not be ruined thereby; that no freeholder should be -amerced in so heavy a manner as to destroy his freehold; no merchant, his -merchandize; no villain, his carts, whereby he would be unable to do his -lord’s services; no ecclesiastic according to the value of his benefice, -but only according to his lay property. And that this might be constantly -observed, the amerciaments were to be asserted, or settled by the man’s -peers. It may be asked, what remedy had the man, who was too severely -amerced by his peers? On this act was grounded the writ of _moderata -miserecordia_, whereby this amerciament may be tried by another jury, and -moderated. - -The fifteenth provides, that none should be distrained to repair bridges, -or landing places, but who are bound by their tenures or custom. The -sixteenth for the free navigation in rivers, and unloading of goods. -The seventeenth takes away the power of trying pleas of the crown -from sheriffs, constables and coroners, and other inferior officers; -a very necessary law, upon account of the great value of the life of -an individual, especially as none but the king’s courts could give the -benefit of clergy. However, sheriffs and coroners can take _indictments_; -for that is not _trying_, but bringing the matter into a method of -trial. The eighteenth concerns debts due to the king where his debtor -is dead. By this law, the first duty of executors is to pay the debts -of the deceased; those of the highest nature, not as to _value_, but in -_quality_, in the first place, then the lower ones: and if the effects -were not sufficient, it was in their option to pay one creditor of the -same nature without another, so that they observed the rule of not -paying the lower debtor before the higher. But the king, be his debts of -what nature they would, by his prerogative, had the preference of all -creditors, and by colour hereof his officers often seized and embezzled -the effects of the deceased, to the prejudice of other creditors and -legatees. This orders the sheriff to attach and value the goods by a jury -of twelve men, to the value of the debt, which were to remain unremoved, -till the king was paid; and then the whole, or, if not, the overplus, to -be restored to the executors. The two next are feudal. The twenty-first -relates to purveyorship, which has been abolished. - -The twenty-second relates to the king’s right to the lands of felons. On -which there is something curious to be observed. By attainder of felony, -the goods and chattels of the felon are forfeited to the king, and the -land to the lord from whom they were holden; but in case of treason, both -were forfeited to the king. Such was the feudal law; but by the law of -England, in order to deter persons from committing felony, and to make -the lords more careful what kind of tenants they chose, the king had -an interest in the land of felons; not for his own benefit indeed, but -for the terrifying by example. He had a right to commit waste in them, -to cut down the trees, to demolish the houses and improvements, and to -plow up the meadows; and for this purpose he was allowed, by common -law, a year and a day. To prevent this destruction, the lords, to whom -the land escheated frequently, by a fine, bought off the king’s right -of waste; but if they did not, his officers would take the profits for -the time, and then hold it longer, till they had committed the waste. -This act prohibits the retaining the land longer than a year and a day, -and directs that then it should be restored to the lord. This new law -was certainly intended for the public good, to prevent this malicious -wasting, which the king’s officers would be sure to commit, if they were -not properly, as they thought, considered; and to give the king, in -lieu of the waste that he had a right to make, a lawful profit, which -his officers had unlawfully, to their own use, we may be sure, extorted -before. It gives the custody of the lands for that time, and consequently -the profits. But observe the consequence. - -The king now had the custody, as also the profits, by a legal title for -a year and a day, unless the lord pleased to compound with him, and so -intitle himself to the immediate possession. But this did not satisfy -the greediness of the officers of the crown. It was easy to gather the -profits until very near the time the king’s right expired, and then, -for a week or fortnight before it was out, they had it in their power -to commit waste enough, if the lord, who was intitled by the escheat, -did not buy them out. This was certainly against the spirit of the law -whereof we are speaking, which was intended to give the king a real -profit, instead of a right destructive to the community in general; but -the waste was not prohibited expressly, and this was pretext enough for -these officers to exact composition for not doing it within the year. It -was accordingly claimed and paid, and accounted for as due to the king, -on that old maxim, That general laws do not change the prerogative royal, -but by express words. This was the doctrine and practice in the courts of -the third Henry, and convenient enough for him, who was always indigent. -But what was the opinion of the lawyers of that age, we may learn from -Bracton, Britton, and the author of Fleta; the first of which wrote in -the latter end of this reign, and the other two in the reign following. -Bracton says expressly, that “the king’s power over the lands of felons -convicted, was because he had a right to throw down the buildings, unroot -the gardens, and plow up the meadows; but because such things turned to -the great damage of the lords, it was provided, for common utility, that -such houses, gardens, and meadows should remain, and that the king for -this should have the advantage of the whole land for a year and a day, -and so every thing should return entire to the lord. Then he goes on, -but now both is demanded, namely, a fine for the term, likewise for the -waste, nor do I see the reason why[391].” Thus far Bracton. Britton says, -speaking in the person of the king, of felons, for in that manner his -book is written, “Their moveables are ours; their heirs are disinherited; -and we will have their tenements, of whatsoever holden, for a year and -a day, so that they shall remain in our hands that year and day, and -that we shall not cause to perish the tenements, nor hurt the woods, -nor plow the meadows, as hath been accustomed in time past[392].” Fleta -talks in the same strain, in commenting on this law of _Magna Charta_, -which he expressly quotes, that, as a mark of brand on felony, it had -been antiently provided that the houses should be thrown down, and so -goes on to enumerate the other species of waste, which I need not here -repeat, as I have mentioned them already; and then he says “because by -such doings great damage would accrue to the lords of the fiefs; for -common utility it was provided, that such hardships and severities should -cease; and that the king, in consideration thereof, should, for a year -and a day, enjoy the commodity of the whole land; after which term it -should return to the lords of the propriety entirely, without waste or -destruction[393].” The _Mirror_, another antient law-book, joins with -these; and this book, which was written in the same reign of Edward -the first, or, at the latest, in that of his son, says, “the point of -felons lands being held for the year is disused; for by that, the king -ought not to have but the waste by right, or the year, in name, (that -is, in nature) of a fine; to save the fief from _estrepement_ (that is, -waste), the ministers of the king take both the one and the other[394].” -A melancholy consideration, that, under his name, and in pretence of -his profit, though not really to his advantage, such a law should, for -their own profit, be eluded by his ministers; as by these testimonies, -one cotemporary, and the rest immediately subsequent, we are informed -it was contrary to the intention of this chapter of _Magna Charta_; but -the practice prevailed for a long time after. I shall conclude this -lecture with the words of Lord Coke on this chapter of _Magna Charta_. -“Out of these old books you may observe, that when any thing is given to -the king, in lieu or satisfaction of _an antient right of his crown_, -when once he is in possession of the new recompence, and the same in -charge, his officers and ministers will many times demand the old also, -which may turn to great prejudice, if it be not duly and discreetly -prevented[395]”. - - - - -LECTURE XXXIX. - - _Continuation of the commentary on Magna Charta._ - - -The twenty-third chapter of _Magna Charta_ prohibits _fish weires_ in -rivers, which are great annoyances to navigation, and the free liberty -of fishing; and which have stood their ground in spite of all the laws -that can be made against them. The next relates to the inferior courts -of Lords of Manors, and to writs of _Præcipe in capite_; which having -gone into disuse, with the feudal tenures, I shall pass them over. The -twenty-fifth orders, that measures and weights should be one and the same -through the whole kingdom; witness the difference between Troy weight and -Averdupois; the wine gallon and ale gallon. Established customs, which -of necessity must come into daily practice, are hard to be rooted out -by positive laws; and indeed it is more prudent to let them continue. -For the confusion that such an alteration of things in daily or hourly -practice would occasion, would be more detrimental, for a considerable -time at least, than the uniformity intended to be introduced would be -attended with advantage[396]. - -The twenty-sixth is concerning the writ _De odio et atia_, that is, of -hatred and malice; which, though not abolished, hath long since been -antiquated; but, as it was an antient provision for restoring the liberty -of the subject, I shall take some notice of it. It was a maxim of the -common law, that no man imprisoned for any offence, which, if proved, -would touch his life or members, could be bailed out but by the supreme -criminal court, the King’s Bench; which, upon danger of death, or such -other special causes as appeared sufficient to them, had that power. -Hence, in those unsettled and oppressive times, it became a practice -for malicious persons to have a man clapped up in prison for a capital -offence, without either indictment or appeal brought against him; and -there he was of necessity to lie, until the justice in eyre came into -the county to deliver the gaols, which regularly was but once in seven -years; to avoid this hardship, the writ we are now speaking of was -invented, and issued out from time to time, as occasion required, out of -the Chancery. Besides, by this chapter of _Magna Charta_, it is ordered -to be granted without any purchase or reward; whereas, before, all the -original writs were purchased at the price the chancellor pleased to -set on them, which was a grievous oppression. It ordered the sheriff to -make inquisition in the county court, by the oath of a jury, whether the -imprisonment proceeded from malice or not. If they found it did, upon its -return, the person accused had a right to a writ, ordering the sheriff to -bail him by twelve _manucaptors_, or securities. But, this was only where -there was no indictment, or appeal; for these were accusations of record, -and therefore the finding the charge malicious in the county court, which -was no court of record, could not avail against them. This, writ has gone -into disuse, since justices of gaol-delivery have continued to go into -every county twice a year; a proceeding which has evidently superseded -the necessity of it[397]. - -The twenty-seventh chapter restrains the unjust practice in the king, -of arrogating to himself the wardship of his socage or burgage tenants, -where they held lands by military service from others, his subjects. The -whole military system hath since been dissolved by act of parliament, and -therefore it will be unnecessary for me to explain or enlarge upon the -nature of the mischief complained of in this chapter. The next forbids -any judge or officer of the king to oblige a man to _wage his law_, that -is, swear to his innocence, except in a cause where a suit was instituted -against him; but _wager of law_, being now totally fallen into disuse, -I hasten to the twenty-ninth chapter, the corner-stone of the English -liberties, made in affirmance of the old common law[398]. - -By the bare reading of this chapter we may learn the extravagances of -John’s reign, which it was intended to redress. It consists of two parts. -The first runs thus: _Nullus liber homo capiatur, vel imprisonetur, -aut disseisetur, de libero tenemento suo, vel libertatibus vel liberis -consuetudinibus suis, aut utlagetur aut exuletur, aut aliquo modo -destruatur, nec super eum ibimus, nec super eum mittimus, nisi per -legale judicium parium suorum, vel per legem terræ._ First, then, to see -to whom this act extends: the words _liber homo_, in antient acts of -parliament, is, in general, rightly construed _freeholders_, and so it -means here, in the second branch which prohibits disseisins; for none but -a freeholder is capable of being disseised, no others being said to have -a seisin of land. But it must not, throughout the whole of this act, be -confined to this limited sense. The first branch speaks of the restraint -of liberty; the third, of unjust outlawries; the fourth, of unjust -banishment; the fifth, of any kind of destruction, or wrongs; which, -offered to an innocent person, are against the natural rights of mankind, -and therefore, the remedy must extend to all: and so it hath always been -understood; for women are included in it, and so are villeins, for they -are free men against all but their lord. - -Let us next consider the end of this part, which is an exception running -through the whole; _nisi per legale judicium parium suorum, vel per legem -terræ_. That is, by the common law, which doth not, in all these cases, -require a trial by peers; a thing indeed impossible, where the party -doth not appear; in which case there is a necessity of proceeding to -judgment another way. Coke observes, the words _legale judicium parium -suorum_ include the trial both of lords and commons, the finding of the -latter being upon oath, and called _Veredictum_, and in which all must -be unanimous; wherein it differs from the trial of lords, for they find -not upon oath, but upon honour; and it is not necessary that all should -agree, the majority, provided that majority consists of twelve, being -sufficient[399]. - -Upon this a question may be put, who are the peers of a woman of quality? -If she be noble by blood, that is, a peeress, (for I speak not of the -nobility by courtesy, which is merely nominal) there is no doubt but the -barons and other noblemen; if she be ennobled by marrying a peer, she -becomes in law one person with her husband, and therefore must have the -same peers with him, which right continues after her husband’s death, -unless she marries a commoner; for then, being one person with him, she -becomes a commoner; whereas a peeress, in her own right, marrying a -commoner, forfeits not her dignity, though she becomes one person with -him. She was not ennobled by her own act, and therefore, by no act of her -own can destroy that nobility she has by the gift of God, or the king, by -means of her blood, which she cannot alter. - -Two exceptions, however, there are to the rule of every Englishman’s -being tried for offences by his peers; but neither of them against the -purport of this statute. First, the statute speaks in the disjunctive, -_per legale judicium parium suorum, aut per legem terræ_: now the _lex -terræ_, the common law, in the universal practice of it, allows these -exceptions; nor will they be found to be against the letter; for the -words are _nec super eum ibimus_, _nec super eum mittemus_, speaking in -the person of the king; which shews that it is meant of the accusation -or other suit of the king. Now these exceptions are not at his suit. -One of these exceptions I mentioned in a former lecture. It is where a -commoner is impeached by the commons in parliament; and the reason I -then gave, is, I think, plain and satisfactory, that every jury that -could be summoned is supposed a party to the charge brought by their -representatives, and therefore, as the man is accused as an enemy to -the king by the body of the people, that there may not be a failure of -justice, the lords, as the only indifferent persons, must be the judges. - -The other exception may seem more extraordinary. It is that a lord of -parliament appealed, that is, accused of a crime, by a private person, -not for the satisfaction of public justice, but of his own private -wrong, shall not be tried by his peers, but by a jury of commoners. When -this law was introduced, the lords were few in number, immensely rich -and powerful, linked together frequently by alliances, almost always -by factions. In this towering situation, they looked down on the lower -ranks with disdain; frequently injured and oppressed them; and little -prospect would the poor commoner have of redress, were the criminal to -be tried by those of his own rank, several of them his relations, most -of them liable to be suspected of the same offences; especially, as the -law will not allow a lord to be challenged. Neither did the lord run any -extraordinary risk of being unjustly condemned. The lower rank of people -in all countries and ages have been used to look with respect on persons -possessed of great wealth and power, invested with titles of honour, -and dignified by blood of an antient descent. But, in those military -ages, such veneration was highly encreased by that valour and personal -bravery, which distinguished every one of the nobility, and than which -no virtue is more apt to captivate, in general, the hearts of mankind. -Besides, that the lord had his advantage of challenging suspected jurors; -whereas, if tried by his peers, he had not such privilege of exception, -though they were ever so notoriously his enemies. Every commoner almost, -how great soever, was, in those days, under the influence of some one or -other of the lords, and there could be little doubt but that influence -would be exerted, and successfully too, unless the guilt was too clear -and evident. - -It may here be asked, When a civil suit is depending between a lord and a -commoner, how the issue is to be tried, whether by the lords alone, or by -commoners only, or by a jury composed of an equal number of each; in the -same manner, as, when an alien is tried, it is by a jury half natives, -half aliens? The answer is, it shall be tried by a jury of commoners; -only, on account of the dignity of the lord, there must be a knight on -the jury. I need not enlarge on the reason, as it is the same with the -former, the lesser danger of partiality. - -I now come to the other part of the disjunctive, _aut per legem terræ_; -and it will be necessary to point out in general (for to descend into -particulars, would carry me a great deal too far) the principal cases, -where this _lex terræ_ supersedes the trial _per pares_. First, then, if -a man accused of a crime pleads guilty, so that there is no doubt of the -fact, it would be an absurd and useless delay to summon a jury, to find -what is already admitted: accordingly, by the _lex terræ_ judgment is -given on the confession. So in a civil action, if the defendant confesses -the action, or if he appears, and afterwards, when he should defend -himself, makes default, and will not plead (which case is equivalent -to confession) no jury is requisite. So, if both parties plead all the -matters material in the case, and a demurrer is joined, that is, the -facts agreed on both sides, and only the matter of right, depending on -the facts already allowed, in contest, the judges shall try by demurrer, -and give judgment according to _law_ without a jury. The general rule -is, that a jury shall try _facts_, and the judges the _law_; for it -would carry a face of absurdity to expect from a common, or indeed, from -any jury, a decision of a point of law that is controverted between the -lawyers of the plaintiff and defendant, who have made that science their -particular study. Besides, as the law inflicts so heavy a punishment on -jurors who give a false verdict, it would be the utmost cruelty to force -men unpractised in law to run such a hazard, where it must be supposed -an equal chance, at least, they may mistake. The same dangers that the -jurors would run by mistaking the law, hath, in points complicated both -of law and fact, introduced _special verdicts_, that is, the finding of -all the facts by the jury, and the leaving the matter of right to be -judged by the court, who best know the law: but this by way of digression. - -All the proceedings of courts to bring causes to a hearing previous to -the impannelling a jury, and the carrying judgments into execution, are -_per legem terræ_, or, as my Lord Coke expresses it, the due process of -the law is _lex terræ_. The inflicting of punishment by the discretion -of courts for all contempts of their authority, without the intervention -of a jury, is also, I think part of the _lex terræ_, and founded in the -necessity of enforcing due respect and obedience to courts of justice, -and supporting their due dignity. The outlawing a person who absconds, -and cannot be found, so as to oblige him to answer a charge against him, -whether civil or criminal, is one of these proceedings _per legem terræ_ -without a jury; of which, as I have now occasion, it will not be amiss to -give a short account, as it is in daily practice[400]. - -By the very antient law of England, the consequence of outlawry was very -troublesome. Not only a seizure of the person, lands and goods, was -lawful, but he was looked upon, not, merely, as one out of the protection -of the law, but also as a publick enemy; for whoever met him had a right -to slay him. This barbarous law undoubtedly proceeded hence, that no -person was then ever outlawed but for a felony; that is, a crime whose -punishment was death; but it was a most absurd thing to allow every -private person to execute the offender, who by refusing to answer has -confessed himself guilty: and the absurdity became more glaring, when, -about Henry the Third’s time, process of outlawry began to be extended -to all trespasses committed _vi et armis_, when the consequences were so -dreadful. Such extension seems surprising; yet the turbulent condition -of the times will, in some measure, account for it; when, under pretence -of dormant titles, forcible possessions, not without frequent bloodshed -and murders, were daily taken by the adherents of the king or barons, as -their respective parties prevailed. But when the times grew peaceable, -this bloody maxim wore out, and in the beginning of Edward the Third’s -reign, it was resolved by all the judges, that the putting any man to -death, except by the sheriff, and even by him without due warrant in law, -however outlawed and convicted, was murder; and since the forementioned -times, as the number of people encreased, and the opportunities of -concealment and absconding along with them, it has been found necessary -to grant the process of outlawry in many civil actions. - -I shall briefly point out the proceedings therein, to shew the abundant -care the law of England takes, on the one hand, to do justice to the -plaintiff, if the defendant absconds, and will not appear; and, on the -other, that the defendant may have all possible opportunity of notice -before the outlawry be pronounced against him. First, there issue three -writs successively, to take the body of the defendant, if found in his -bailywick or county, and to bring him to answer. The first is called a -_capias_, from that mandatory word in the writ. When the sheriff cannot -find him in his bailywick, he returns a _non est inventus_ on the back -of the writ, on which there issues a second _capias_, called an _alias_, -from its reciting that _alias_, or before this, the like writ had issued. -On the same return of _non est inventus_ to this (for if upon any of -the processes the defendant is taken, or comes voluntarily in, so as to -answer, the end is obtained, and no further proceedings to outlawry go -on), the third writ issues called a _pluries_, because it recites the -sheriff had been _pluries_, that is, twice before, commanded to take him. -The sending these three writs, one after the other, in order to bring in -the party is, I presume (as, undoubtedly many of the antient practices in -our courts of law are) borrowed from the civil law; for by that law they -issued three citations, at the distance of ten days, one after another, -to call in the party to answer. - -But as, upon a return of a _non est inventus_ on the third _capias_, -the personal apprehending the defendant may well be despaired of, the -law proceeds another way; in order, if possible, to give him notice, -that is by issuing the writ of _exigent_, so called from the Latin word -_exigere_, to _require_, or _call upon_. This writ commands the sheriff -to call the defendant in his county-court, where all the persons of the -county are supposed to have business, or at least some that can inform -him might have. The words are, _We command you that you cause such a one -to be required from county-court to county-court, until, according to the -law and custom of our realm, he be outlawed if he doth not appear. And if -he do appear, him to take, and safely keep, and so forth._ Now the law -and custom of the realm requires, in this case, that the party should be -called on five different county-court days, one after another, before -he can be outlawed; and these courts being held at the distance of four -weeks from each other, the interval amounts to sixteen weeks, besides the -time of the three previous _capias’s_; a time so abundantly sufficient, -as it is scarce to be presumed possible a person living in the county -should not have notice; and consequently, on his not appearing in the -fifth court, the coroners of the county, whose duty it is, give judgment -of outlawry against him. - -Such is the care the common law takes to prevent outlawries by surprize. -But the act of the thirty-first of Elizabeth in England, enacted here -in the eleventh of James, had superadded another caution, namely -three publick proclamations. The reason of this superadded caution -was, I presume, on account of the dwindling of the business in the -county-courts, and, in consequence, their being not so well attended. -This writ, commanding the sheriff to make proclamation, issues with the -_exigent_, and recites it, and the cause for which the proceeding to an -outlawry is, and directs him to proclaim the party three several days; -first in the county-court, secondly at the quarter-sessions, a court of -more resort, and lastly on a Sunday immediately after Divine service, at -the most usual door of the church of the parish, where the person dwelt -at the time the _exigent_ issued; or if no church, in the church-yard of -the parish; or if no parish, at the nearest church, and all outlawries -in personal actions, where these solemnities are not observed, are -declared void. - -I have been the more particular on this head, to shew the abundant care -the law has taken in these proceedings, and to vindicate it from the -common complaint, of outlawries being obtained surreptitiously, and -without notice. I am sensible such complaints are generally without -foundation; but if in any case they are just, the fault is not in the -law, but in man, in the laws not being duly executed; and if we are to -complain of the best laws, until they be in all cases perfectly and -uprightly executed, we shall never cease complaining while human nature -is what it is, weak and corrupt[401]. - - - - -LECTURE XL. - - _Continuation of the commentary on Magna Charta._ - - -Having mentioned the several kinds of proceeding to judgment without -the intervention of juries, practised by the courts of common law, and -authorised under the words of this statute, _per legem terræ_, it will -be proper, before I quit this head, to say something of other kinds of -courts which do not admit this method of trial; which, yet, have been -received, and allowed authority in England; and whose proceedings, -however different from those of the common law, are justified by the -same words, _per legem terræ_. These are the courts _ecclesiastical_, -_maritime_, and _military_. - -If we trace back the origin of ecclesiastical jurisdictions, we shall -find its source in that advice of St. Paul, who reproves the new -christians for scandalising their profession, by carrying on law-suits -against each other before heathen judges, and recommends their leaving -all matters in dispute between them to the decision of the _Ecclesiæ_, -or the congregation of the faithful. In the fervour of the zeal of these -times, this counsel was soon followed as a law. The heathen tribunals -scarce ever heard of any of their controversies. They were all carried -before the bishop, who, with his clergy, presided in the congregation; -and who, from the deference the laity paid them, became at length the -sole judges, as, in after ages, the bishop became sole judge, to the -exclusion of his clergy. These judges, however, being, properly speaking, -only _arbitrators_, had no coercive power to enforce their judgments. -They were obliged, therefore, to make use of that only means they had -of bringing the refractory to submission, namely, excluding them from -the rights of the church, and warning other Christians against their -company, and indeed, it was an effectual one; for what could a Christian, -despised and abhorred by the heathen, and shut out from the commerce of -his brethren, do, but submit? Besides, if he was really a Christian, -this proceeding seems founded on the words of the Apostle, “He that will -not hear the _ecclesia_, the congregation, let him be unto thee as an -heathen[402].” - -Thus was _excommunication_ the only process in the primitive church to -inforce obedience, as it is in ecclesiastical courts at this day; though, -considering the many petty and trifling occasions on which they are, of -necessity, obliged to have recourse to these arms, having no other, and -the many temporal inconveniencies it may be attended with, it has been -the opinion of many wise and learned, as well as of many pious men, that -it would not be unworthy the attention of the legislature to devise some -other coercive means for the punishment of contempts, and to restrain -excommunication to extraordinary offences only. Though, if we consider -that the jealousy which the temporal courts, and the laity in general, -so justly conceived of these judicatures in the time of popery, hath not -even yet entirely subsided, there is little prospect that this or any -other regulation, to amend their proceedings, and others they do want, -will be attempted. - -When the empire became Christian, these courts and their authority were -fully established in the minds of the people. However, that the temporal -courts might not be stripped of their jurisdiction, and churchmen become -the sole judges, a distinction was made between matters of spiritual -and temporal cognizance; not but several matters, originally and -naturally temporal, were allowed, by the grants of the emperors, to the -ecclesiastical jurisdiction; and even, of such as were not allowed them, -they might take cognizance, if both the parties agreed thereto. This was -called _proroguing_ the jurisdiction, that is, extending, by the consent -of the litigants, its power to matters that do not properly belong to -it. A practice our law has most justly rejected; for it would introduce -confusion, and a perpetual clashing of courts, if it was in the power -of the private persons to break down the fences that the constitution -has so wisely erected ta keep every judicature within its strict bounds. -And indeed this practice was one of the great engines the churchmen made -use of, in their grand scheme of swallowing up all temporal jurisdiction -and power. The method of trial in these courts was by the depositions of -witnesses; and upon them the judge determined both the law and the fact. - -Trials by jury were entirely unknown to the Romans, though indeed their -_centumviral court_, in the early times, bore some resemblance to them; -and even when the northern nations, who were the introducers of the -trial _per pares_, became Christians, the ecclesiastical courts on the -continent proceeded in their old manner. But in England, during the -times of the Saxons, both spiritual and temporal courts, though their -business was distinct, sat together, and mutually assisted each other, as -I observed under the Conqueror’s reign. But whether the matter of fact -in ecclesiastical causes was then tried by a jury, I will not pretend -to affirm, though, from the peculiar fondness the Saxons had, above -the other northern nations, for that method of trial, it may seem not -improbable. However, this is certain, that from the time William, who, -to gratify the court of Rome, and to shew his own political purposes, -separated the courts, the proceedings of the spiritual ones in England -have been conformed to the practice of those courts abroad, and to the -canon law. The alteration, if indeed there was any, was sufficiently -authorised by the king and pope; and indeed as all the bishoprics were -filled by Normans, they knew not how to proceed in any other manner. -By the time of John, the proceedings of these courts, and their trial -of causes without jury, had been universally fixed, and received as a -part of the _lex terræ_, and, as such, is confirmed by the words of this -statute. - -The next court that the law of the land allows to proceed to sentence -without a jury is the Court of _Admiralty_, and that for absolute -necessity; for as its jurisdiction is not allowed as to any thing that -happens within the body of a county, except in one particular instance, -_contracts for sailors wages_, but extends only to things done on the -sea, or at most to contracts made in foreign countries (though this last -is denied by the lawyers of our days to belong to them) there is no place -from whence a jury can come. For the jury of the county, where the cause -of suit arose, are the triers, but here, it arose in none. Besides, the -great excellency of this method of trial consists in this, that the -jury, from their vicinity, have opportunities of knowing something of -the nature of the case, and of being acquainted with the characters and -credit of the witnesses, neither of which can be supposed in this case. -In this court the judge determines both matter of law and fact. - -The same was the case of the Constable’s and Marshal’s Court, formerly -of great power, but now next to antiquated. Its jurisdiction was, first, -_martial law_, over the soldiers and attendants of the camp. Now the -trial of offenders in this kind, by a jury, whether taken out of the -army, or out of the county, if in the kingdom, would have effectually -destroyed that strict subordination, which is the soul of military -enterprises. Secondly, they had the trials of treasons and felonies done -by the king’s subjects in foreign kingdoms. Here there could be no trial -by jury, for the same reason as given already for the Court of Admiralty. -The last part of their jurisdiction was as to precedence, arms, and -marks of dignity, which flowing immediately from the grace of the crown, -the sole disposer and judge of them, were not supposed to be in the -cognizance of jurors, but proper to be determined by the king’s judges, -who had the keeping of the memorials of his grants in this kind. Besides, -these honorary distinctions are not local, but universal through the -realm; so that there is no particular county from whence a jury should -come[403]. - -Such are the reasons assigned why these two courts proceed _per legem -terræ_, and not by juries; but, to speak my own opinion truly, when -I consider that their methods are formed upon the proceedings of the -civil law, I suspect a farther design. The discovery and revival of -this law happened in the reign of our Stephen. I have already had -occasion to observe how greatly the princes, in every part of Europe, -were flattered by the tempting bait of unlimited power it set before -them, and particularly the kings of England, who were the first that -set out in pursuit of this delusive object; and that their being less -successful than others was, very probably, owing to their beginning the -career too early. When I consider then that these two courts, where -trials by juries prevail not, dealt in matters that were of the resort -of the prerogative, and that, in consequence, the modelling of them was -left to the king; when I see all the parts of these models taken from -the imperial law; when I reflect on the notoriously avowed and unjust -preference the weakest of them gave to that against the common law, and -the kind patronage the wisest and most moderate of them shewed to it, and -its possessions, down to the reign of Charles the Second, I cannot help -suspecting a deeper design. And, indeed, the common lawyers seemed to -take the alarm, and decried and despised every part of this law, though -most of it is founded on good reason, merely out of the apprehensions, -that giving it the least countenance, might, in time, open a door for the -absolute authority of the prince, and the rapaciousness of his _fisc_ or -treasury, and thereby overturn the constitution. - -But there are other courts, besides those already named, that proceed -upon the deposition of witnesses, and not by jury, I mean the courts of -Equity; which, in imitation of the civil and canon laws, oblige a party -to answer upon oath to his adversary’s charge. This practice, though not -allowed by common law, is founded in very good reason. For, as the proper -business of a court of equity is to detect fraud and surprize, these -things being done in private, and endeavoured to be as much concealed -as possible, it is but reasonable that the plaintiff should have power -to sift the conscience of his adversary, and to examine not to a single -point, as the _issues_ at common law are, but to many separate facts, -from which, taken together, the fraud, if any, may appear. Such matters, -therefore, being of nice discussion, and of a complicated nature, are not -fit for the decision of a jury, and indeed would take up more time than -they could possibly employ in the examination. The court, therefore, go -upon _depositions_, and judge both of the law and fact. However, if a -matter of fact, necessary for the decision of the cause, appears on the -deposition doubtful; or if any matter arise which these courts have no -power to try, they direct an issue, wherein the point is tried by jury, -in a court of common law; and thus, these courts have the advantage of -both methods of trial, as well that of the civil, as that used by the -common law; namely the oath of the party, and depositions from one, and -the trial by jury from the other. - -This method, however, of trial by deposition, has been objected to, as -productive of enormous expence and delays; and it cannot be denied, that, -as affairs are now conducted, there is too much reason for the objection. -Yet to this it may be answered, that if examiners were more careful, and -would set down nothing but what is evidence, and were the rules of court, -to cut off delays, always strictly inforced, the damage arising from both -these heads would be considerably lessened. To cut off all delays, and -to reduce the proceedings to as summary a method as that of the courts -of common law would, (considering the matters they are conversant about -are of different proof, and require the most acute examination) instead -of preventing frauds in most instances, by a hurried manner of trial, -serve to defend and encourage them. The policy of the common law was to -reduce the matter in question to a single fact, which the jury might, -with ease and convenience, determine within a convenient time. And it -must be owned that the lawyers and judges of latter days, by admitting -the trial of titles to lands in personal actions, have deviated much from -the simplicity of the law, and weakened the excellence of the trial by -jury. The present practice, of determining the title to land by an action -of trespass, will serve as an instance; where the enquiry is, whether -a man’s entering upon lands was a trespass or not; if he had right to -enter in, it was no trespass; if he had not, it was otherwise. Now, -as the right may depend upon twenty different matters of fact, beside -matters of law, all which must be settled and weighed, before the bare -question of trespass can be determined, it is easy to see to what lengths -trial by juries may be now spun; to how short a time the examination of -the most material points must be confined; how imperfect, consequently, -the examination must often be; to say nothing of the danger of a jury’s -erring when both body and mind is wearied out with long attendance, and -the attention consequently enfeebled. - -If it be asked, how came this deviation, which has been attended with so -many inconveniencies? The true answer is the best, that it sprung from -the advantage of practitioners, and the litigiousness of suitors. By the -common law, no man could bring two actions of the same nature for the -same thing. If I am entitled to the possession of lands, I may bring -my _writ of entry_, or an _assize_, to recover it; but if I am foiled, -I cannot bring a second. So, if I am entitled to the propriety of the -land, I may bring my writ of right, and if I recover not therein, my -right is gone for ever. The litigiousness of suitors, who had a mind to -gain a method of trying the same thing over and over again, where they -miscarried, introduced this method I am speaking of. For every new entry -was a new trespass, and could not be said to have been tried before; -though whether it was a trespass or not, depends on what had been tried -before, and the avarice of practitioners, who desired frequent suits, -encouraged it. But when once it was allowed, notwithstanding all the -complaints of Coke and his co-temporary judges, it became universally -followed, and is now so established, and the higher actions so much out -of use, that I question whether there is a lawyer living who would be -able, without a great deal of study, to conduct a cause in one of those -antiquated real actions. The inconveniencies of these frequent trials -introduced, for the obviating them, a new practice, the applying to the -court of chancery, after two or more verdicts consonant to one another, -for an injunction to stop farther proceedings at law; which, though a -new, was become a necessary curb, after the common law-courts had allowed -the former method. - -Besides these courts already mentioned, there are many other -judicatories, which, by particular acts of parliament, have particular -matters entrusted to their determination, without the intervention of -juries; as the several matters determinable summarily by one or more -justices of the peace; the affairs of the revenue by the commissioners; -and suits by civil bills for limited sums by judges of assize; though in -these last the presiding judge may, and ought, in matters of difficulty, -to call a jury to his assistance; and it must be owned in this poor -country the alteration of the law in this last particular, has been -attended with very good consequences. The expediency of the two former -changes, indeed, has been much disputed; but that being a question of -_politicks_, not of law, I shall not enter into it. - -Thus much I have observed, in a summary way, concerning the several -methods of trial, differing from that _per pares_, which are authorised -by these words of _Magna Charta, per legem terræ_. - -I shall next proceed to the point of the _personal liberty of the -subject_; but as it will be proper to take all that together, in one -view, I shall here conclude the present Lecture. - - - - -LECTURE XLI. - - _Continuation of the commentary on Magna Charta._ - - -Having explained the import of the words _per legale judicium parium -suorum, vel per legem terræ_, which refer to, and qualify all the -preceeding parts, it will be proper to mention those preceeding -articles, and to make some observations upon them. They then consist of -six different heads. The first relates to the personal liberty of the -subject; the second to the preservation of his landed property; the third -is intended to defend him from unjust outlawry; the fourth to prevent -unjust banishment; the fifth prohibits all manner of destruction; and the -design of the sixth is to regulate criminal prosecutions at the suit of -the king. I shall briefly treat of all these particulars in the order in -which they stand. - -The first clause tending to secure personal liberty, runs in these words; -_Nullus liber homo capiatur vel imprisonetur_. _Liber homo_, as I before -observed, here extends to all the subjects, and is not to be taken in -its more restrained sense, of a freeholder. We see the words are not -barely against wrongful imprisonment, but extend to arresting, or taking, -_nullus capiatur_. This act extends not only to prevent private persons, -particularly the great men, from arresting and imprisoning the subjects, -but extends also to those from whom, on account of their extraordinary -power, the greatest danger might be apprehended, I mean the king’s -ministerial officers, his council, nay himself, acting in person. “No -man,” (says my Lord Coke, commenting on this point,) “shall be taken, -that is restrained of liberty, by petition or suggestion to the king, -or his council; unless it be by indictment, or presentment of good and -lawful men, where such deeds be done.” For in that case it is _per legale -judicium parium_; though an indictment found, or a presentment made by -a grand jury, in one sense, cannot properly be called _judicium_, as it -is not conclusive; but the fact must be after tried by a petty jury; -yet for the purpose of restraining and securing a person accused upon -record, that he may be forthcoming on his trial, it is _judicium parium_. -Otherwise the most flagrant offenders might escape being tried and -convicted[404]. - -In the fifteenth chapter of Westminster the first, enacted in the third -year of Edward the First, and ordained to ascertain for what offences a -man might be detained in prison, and to make effectual provision for the -bailing out persons upon their giving security to abide a trial, those -accused of the slighter offences, persons detained _per maundement de -roy_ by the command of the king, are mentioned as not bailable; and this -may seem to contradict the law I have now laid down. Yet, when rightly -understood, it doth not. For as judge Gascoigne rightly said, the king -hath committed all his power judicial to divers courts, some to one, -some to another; and it is a rule in the construction of statutes, that -when any judicial act is referred to the king, it is to be understood -to be done in some court of justice, according to law. The command of -the king, therefore, doth not mean the king’s private will, but a legal -command, issued in his name, by his judges, to whom his judicial power is -intrusted. Accordingly, Sir John Markham, chief justice, told Edward the -Fourth, that the king could not arrest any man for suspicion of treason, -or felony, as any of his subjects might; and he gave a most excellent -reason for it: Because, says he, if the king did wrong, the party could -not have his action. In the sixteenth of Henry the Sixth, it was resolved -by the whole court, That if the king command me to arrest a man, and I do -arrest him, he shall have his action of false imprisonment against me, -although I did it in the king’s presence. - -The maxim, then, is, that no man shall be taken and committed to prison, -but by _judicium parium, vel per legem terræ_, that is, by due process -of law. Now to understand this, it is necessary to see in what cases a -man may be taken before presentment or indictment by a jury; and in the -enquiry it is to be considered, that process of law, for this purpose, -is two-fold, either by the king’s writ, to bring him into a court of -justice, to _answer_, or by what is called _a warrant in law_. And this -is, again, two-fold, _indeed_, by the authority of a legal magistrate, -as a Justice of Peace’s _mittimus_, or that which each private person is -invested with, and may exercise. - -First then, for making a _mittimus_ a good warrant, it is previously -necessary, that there should be an information on oath, before a -magistrate having lawful authority, that the party hath committed an -offence; or at least of some positive fact, that carries with it a strong -and violent presumption that he hath so done: Next, then, the _mittimus_ -must contain the offence in certain, that it may appear whether the -offence charged is such an one as justifies the taking; whether it is -bailable, or such as the law requires the detention in prison. A warrant -without the cause expressed, is a void one, and imprisonment on it -illegal, and so it was adjudged in Charles the First’s reign, though done -by the secretaries of state, by the king’s authority, with the advice of -his council; thirdly, the warrant must not only contain a lawful cause, -but have a legal conclusion, _and him safely to keep until delivered by -law_; not until the party committing doth farther order, for that would -be to make the magistrate, who is only _ministerial_, _judicial_, as to -the point of the liberty of the subject; from whence might redound great -mischief to the party on one hand, or to the king and public on the -other, by letting an offender escape. - -Let us see how far the law warrants a private person to take another, -and commit him to prison. First, then, if a man is present when another -commits treason, felony, or notorious breach of the peace, he hath a -right instantly to arrest and commit him, lest he should escape if any -affray be made, to the breach of the peace, any man present may, during -the continuance of the affray, by a warrant in law, in order to prevent -imminent mischief, restrain any of the offenders; but if the affray is -over, so that the danger is perfectly past, there is a necessity of -an information, and an express warrant; so, if one man wounds another -dangerously, any person may arrest him, that he be safely kept, until it -be known whether the party wounded shall die or not. Suspicion, also, -where it is violent and strong, is, in many cases, a good cause of -imprisonment. Suppose a felony done, and the hue and cry of the country -is raised, to pursue and take the offender, any man may arrest another -whom he finds flying; for what greater presumption of guilt can there -be, than for a person, instead of joining the hue and cry as his duty -prompts him, to fly from it? His good character or his innocence, how -clear it may after appear, shall not avail him. His imprisonment is -lawful. - -Another lawful cause of arresting and imprisoning upon suspicion is, if -a treason or felony is certainly done; and though there is no certain -evidence against any person as the perpetrator, yet if the public voice -and fame is, that A is guilty, it is lawful for any man to arrest and -detain him. So, if a treason or felony be done, and though there be no -public fame, any one that suspects another for the author of the fact may -arrest him. But let him that so doth, take care his cause of suspicion -will be such as will bear the test; for otherwise he may be punishable -for false imprisonment. The frequent keeping company with a notorious -thief, that is, one that had been convicted, or outlawed, or proclaimed -as such, was a good cause of imprisonment. Lastly, a watchman may arrest -a night-walker at unseasonable hours by the common law, however peaceably -he might demean himself; for strolling at unusual hours was a just -cause of suspicion of an ill intent. With respect to persons arrested -by private authority, I must observe, that the law of England so abhors -imprisonment, without a certain cause shewn, that if there is not an -information on oath sworn before a magistrate, and his commitment thereon -in a competent time, which is esteemed twenty-four hours, the person is -no longer to be detained[405]. - -Such is the law of England with respect to the personal liberty of the -subject. Let us now see the remedies the law provides for those that -suffer by its being infringed: the writ of _odio & atia_ I have already -mentioned, and that it is long since out of use: the most usual way then -to remedy this, and to deliver the party, is the writ of _habeas corpus_, -in obedience to which, the person imprisoned is brought into court by the -sheriff, who is the keeper of the prison, together with the cause of his -caption and detention, that the court may judge whether the first taking -was lawful; and if it was, whether the continuance of the imprisonment is -such; and this is brought in the name of the party himself imprisoned. - -The next is the writ _de homine replegiando_, of replevying a man, that -is, delivering him out upon security, to answer what may be objected -against him. This is most commonly used when a person is not in the -legal prison, but perhaps carried off by private violence, and secreted -from his friends, and therefore may be brought by a near friend having -interest in the person’s liberty, as by a father, or mother, for their -child, or a husband for his wife. These are the remedies for restoring a -person unjustly deprived of liberty, to the enjoyment of that invaluable -blessing. But very deficient would these remedies be, if there were no -provisions made for the punishment of a person offending against his -natural right, nor any relief for the person unjustly aggrieved. - -For the point of punishment, an indictment will lie at the king’s -suit, against the false imprisoner, grounded on this statute, for the -vindication of the public justice of the nation; and the party, if found -guilty, shall be punished by fine and imprisonment. For the relief of the -person injured, he may have an action of false imprisonment, wherein he -shall recover damages; or an action on the case grounded on this statute, -wherein he shall have the same remedy. For Coke observes on this statute, -that it is a general rule, where an act of parliament is made against any -public mischief or grievance, there is either given expressly, or else -implied by the law, an action to the party injured. - -Such is the antient original law of England with respect to liberty; -and so different from that of other nations of Europe, at least, as -their laws are understood and practised at present, where a man may be -imprisoned without knowing his crime or accuser, or having any means, -except of humble petition, to be brought to his trial. It is therefore no -wonder that the people on the continent envy much the situation of the -subjects of these islands, when they contemplate their own. - -The next branch of the statute is, _Nullus liber homo disseizetur de -libero tenemento suo, vel libertatibus, vel liberis consuetudinibus -suis_. Here it may be thought the word _liber homo_ should be restrained -to freeholders, because none others can be disseized; but the following -words, _libertatibus_ and _consuetudinibus_, lead, by their import, to -a more enlarged construction, and take in all the subjects; so that -_disseizetur_ must not be taken in its limited peculiar sense, but -rather in general for _deprivetur_. First, then, no freeholder shall be -disseized of his freehold, but by verdict of a jury, or by the law of -the land, as upon default, not pleading, or being outlawed. It was made -to prevent wrongful entries, by such as had right or pretended right to -the land, in order to avoid breaches of the peace and bloodshed, which -often ensued thereon; but it was not intended to take away the entry of -a person who had a right to enter given him by law, for that the law -could never construe a _disseizen_, which is a wrongful diverting of the -freehold. - -To understand this, it is necessary to observe, that a man may have right -to the lands, and yet no right to enter upon them; or he may have both; -and in the last case it is no disseizen. If A disseizes B, he shall -never, by his own wrongful act, deprive B of the right of possession; but -he may of his own authority enter at any time, during A’s life, provided -he doth it without breach of the peace. But if A is dead, now the lands -being thrown by the law upon A’s heir, who had no hand in the wrong, and -who is answerable to the Lord Paramount for the services due from the -land, B has, by his own negligence, in not entring, or if he could not -enter, claiming, during A’s life, lost the right of possession; it is -transferred to A’s heir, and B must recover his right by a suit at law. - -To see what is meant by _libertatibus_. It comprehendeth, in the first -place, the laws of the realm, that every man should freely enjoy such -advantages and privileges as these laws give him. Secondly, it signifies -the privileges that some of the subjects, whether single persons, or -bodies corporate, have above others, by the lawful grant of the king; -as the chattels of felons or outlaws, and the lands and privileges -of corporations. Hence any grant of the king, by letters patent to -any person, which deprives another subject of his natural right and -free liberties, is against this branch of _Magna Charta_, as are all -monopolies, which were so plentifully and so oppressively granted in the -reigns of Elizabeth and James the First, and here in Ireland, in that -of Charles the First. We must, however, except such monopolies as are -erected by act of parliament, or by the king’s patents, pursuing the -directions of an act made for that purpose[406]. - -Lastly, _Consuetudinibus_ takes in and preserves those local customs -in many parts of England, which, though they derogate from the common -law, are yet countenanced and acknowledged as part of the general system -of law. It also extends to any privileges which a subject claims by -prescription, as wreck, waif, stray, and the like[407]. - -The next clause is, _aut utlagetur_; of which having spoken already, I -shall pass on to the fourth, _aut exuletur_. No man shall be banished -out of the realm, _nisi per legem terræ_; for the _judicium parium_ is -out of this clause, there being no crime of which a man is convicted, -whose sentence is banishment. The _transportation_ now commonly used -for slighter felonies is not like it; for that is by the free consent -of the criminal, who desires to commute a heavier punishment for a -slighter. Now _per legem terræ_ a man may be exiled two ways, either by -act of parliament, as some wicked minions of our former kings were, and -particularly Richard the Second’s corrupt judges into Ireland; or by a -man’s abjuring the realm when accused of felony, that is, swearing to -depart out of the kingdom, never to return; which latter is long since -fallen into disuse. Coke says, that the king cannot send any subject -against his will to serve him out of the realm, and the reason is strong; -for if he could under pretence of service, he might tear him from his -family and country, and transport him to the remotest corner of the -earth, there to remain during the whole of his life[408]. But what shall -we say as to the military tenants, who by the very tenure of their grants -were obliged to serve the king in his wars out of the realm? Certainly, -whilst the feudal system retained its pristine vigour, and personal -service was required, they were an exception to this rule; but when -the commutation of _escuage_ was established, they were considered as -under it. Indeed their general readiness to attend their king’s service -in person, gave no occasion for this question’s ever being decided. -The famous case on this point was in Edward the Third’s reign; that -prince had made many grants to Sir Richard Pembrige, some for _servitio -impenso_, others for _servitio impendendo_. The king commanded him to -serve in Ireland, as his Lord-deputy, which he positively refused to do, -looking upon the appointment as no better than an exile; and for this -refusal the king seized all that had been granted to him _pro servitio -impendendo_; and the question came on in court, whether the seizure -was lawful. The judges clearly held the refusal lawful, and therefore -would not commit him to prison; but as to the seizure, in consequence -of the words _pro servitio impendendo_, without specifying where, they -thought it justified. But Coke says, “it seemeth to me that the seizure -was unlawful.” For _pro servitio impenso_, and _impendendo_, must be -intended of lawful service within the realm. The last time this act was -violated was in the reign of the misguided James the First, in the case -of the unfortunate Sir Thomas Overbury; who for refusing to go ambassador -to Muscovy, was by that prince sent to the Tower, in which place he -was afterwards barbarously poisoned; and for his murder the favourite -Somerset and his countess were both condemned to die[409]. - - - - -LECTURE XLII - - _Continuation of the commentary on Magna Charta._ - - -The fifth branch of this statute is in very general terms; it is, _aut -aliquo modo destruatur_. “_Destruction_” is a word of very general -import. Coke, in the first place, explains it by saying, “no man shall -be fore-judged of life or limb, or put to the torture or death, without -legal trial.” But he shews, afterwards, by his instances, that it is much -more extensive: For he observes, that “when _any thing_ is prohibited, -_every thing_ is prohibited which necessarily leads to it.” Every -thing, therefore, openly and visibly tending to a man’s destruction, -either as to life, limb, or the capacity of sustaining life, is hereby -directly forbid: So that, _torture_, as it endangers life and limbs, and -may prevent a man from earning his livelihood, is, on all these three -accounts, unlawful, though common among all other nations of Europe, who -have borrowed it from the old Roman law with respect to slaves; a plain -indication in what light the introducers of it looked on their subjects. -It cannot be said that this hath never been violated in England in -arbitrary times; (as what nation is there, whose fundamental laws have -not been, on occasion, violated?) yet, in five hundred years, I do not -believe the English history can afford ten instances[410]. - -For the same reason, “judging a man, either in a civil or criminal cause, -without calling him to answer and make his defence,” is against this -provision. So likewise is “the not producing the witnesses, that the -party may have an opportunity to cross-examine them,” I believe, if they -may be had. For in the case of death, or absence in a foreign country, -that they cannot be produced, there is an exception, for very necessity’s -sake; and in that case, the examination of such person, taken before a -proper magistrate, is good evidence, tho’ thereby the party loses the -cross-examination or information against the murderer. But whenever this -happens, the jury should consider that the party has lost the benefit -of the cross-examination, and have that in their contemplation, when -they are preparing to give their verdict. Directly contrary to this -fundamental law, and to common justice, was the trial of Sir Walter -Raleigh, conduced by Coke, attorney-general, upon the depositions of -people who might be brought face to face. For, notwithstanding the -perfect knowledge of that great lawyer in the laws of England, he was a -most time-serving minister of the crown. The people of these nations are -much indebted to him for his excellent writings on the law, and more for -demonstrating the antient right of the people of England to the liberties -they claimed: But, if we consider that he was then in disgrace at court, -I fear this panegyric must be confined to his behaviour while a judge, -which was without reproach; nor did he hesitate to forfeit the favour of -the crown, by opposing incroachments on the law of England. - -As _tending to destruction_; it is likewise unlawful to amerce or fine -a man convicted of a crime, beyond what he has a possibility of paying; -for that would tend to perpetual imprisonment, and disabling him from -maintaining himself and family. Neither is it lawful, tho’ a man be -indicted of treason or felony, for the king to grant, or even to promise, -the forfeiture of his lands or goods; for this would be throwing a -temptation in the way of others to suborn witnesses to his destruction. -These I mention, only as particular instances, to open the import of this -law; but the words are, _aliquo modo destruatur_, taking in “every thing -that directly tends to destruction.” And it must be observed that these -words, _aliquo modo_, are not in any other branch of this act. - -I come now to the last clause of this first part, _nec super eum ibimus, -nec super eum mittemus, nisi per legale judicium parium suorum, aut per -legem terræ_. I observed before, from the words here being in the first -person, that they refer to the suit of the king; and they relate not -only, by the latter words, to a legal trial, as to matter and form, but -also to a trial in a proper and legal court. The words _nec super eum -ibimus_ belong to the King’s Bench, where the suits of the king, the -_placita coronæ_, are properly handled, and where the king is always -supposed to be present. The words _super cum mittemus_ refer to other -courts sitting for the same purposes, as Justice of gaol-delivery, for -instance, under the king’s commission. But when those words are coupled -with the following ones, _per legem terræ_, they carry a farther import; -not only that the courts, trying the king’s causes should proceed -according to the law of the land, but that the courts themselves should -be such as the _lex terræ_ authorizes; that is, either the common law, -from time immemorial, or acts of parliament. So that the king hath no -power, of his own authority, to form new criminal courts, as he may civil -ones. In some cases, he appoints, indeed, the judges of the courts of -common law, and issues commissions, and appoints the commissioners in -criminal courts authorized by parliament; but no farther doth his power -extend. - -To this it may be objected, that the king may create a county palatine, -and consequently new criminal courts; but let this be considered: -Counties, and duchies, such as we call _palatine_, were, I may say, -indeed of the essence of a feudal kingdom, as ours originally was; that -is, the king might dismember a part of his kingdom from the immediate -subjection to the crown, transfer a subordinate degree of the legal -rights to a subject; and when a county of that kind was created, without -saying any more, all the courts, not new ones, but the same that were -at common law through the whole kingdom, followed as incidents; in -the same manner as by erecting a new county, not palatine, it had its -county-court, and the sheriff’s tourne. These are not erecting, properly -speaking, new courts, so much as bringing the old ones home to the doors -of the people of that district. - -As I observed at the beginning, this law naturally divides itself into -two parts, the first ending at the words _per legem terræ_. Having made -such observations as have occurred to me as necessary or material for -the understanding thereof, I now proceed to the latter part of this -statute, which runs in these words: _Nulli vendemus, nulli negabimus, -aut deferemus justitiam, vel rectum_. Some have imagined that, by these -words, in the disjunctive, are meant common law and equity; but courts -of equity, and proceedings in cases of equity in those courts, were -not known in times so early; and the legal signification of _rectum_ -in old statutes, and law-books, is either the right that a man hath to -a thing, or the law of the land, the means of attaining the possession -and enjoyment of that right; and in that sense it is here to be taken; -as Coke says, _justice_ is the end, _rectum_ the means, namely, due -process of law; neither of which is to be sold, denied, or delayed to the -subject. In order to understand this, it will be necessary to point out -some of the mischiefs that were before this act, which is the surest way -to expound the meaning of any law[411]. - -For this purpose it is to be remembered, that, in the Saxon times, almost -all suits, except between grandees, were expedited in the county-courts. -I have observed before, that the Conqueror and his successors discouraged -these, and encouraged suits in the _Aula Regis_, or king’s courts; and -that the subjects were fond of suing there; but still it was a matter of -favour, where the cause properly belonged to the country jurisdictions, -and could not be demanded as a right. As a matter of favour, it might -be denied by the king, or his chancellor, who was the issuer of the -original writs, unless a sum of money was paid, such as they demanded. -This was _selling_ justice. Or, if the person to be sued was a favourite -of the king, or chancellor, the writ might be denied; this was _denying_ -justice. Or, if it was granted, as the proceedings were _ex gratia_, -the party might, _ad libitum_, be delayed by the judges, or the cause -might be stopped by order of the king, and this was the _deferring_ of -justice, meant by this act, which was intended for the giving every -subject a right, in all cases, and against all persons, to have justice -administered to him in the king’s courts. The chancellor now is hereby -obliged instantly to issue all original writs, and the judges of the -several courts, where causes depend, to issue the proper judicial ones -without fee or reward. This, however, is not so to be understood, as to -prohibit the moderate and accustomed fees, which, from time immemorial, -have been paid to the officer, for his trouble in making them out, -or to the judge, for putting the seal; for these are a part of their -livelihood, but only those arbitrary sums which were before taken, and -which the state properly calls the _selling_ of justice. So likewise -the judges are obliged, in every cause before them, to proceed with -expedition, and to suffer no delays, but such as the law allows, and -requires, for giving each party an opportunity of defence, and of laying -his cause fully before the court. - -However, notwithstanding this act, the evil was often repeated, and many -suits stopped by the command of the king, and others, as appears by four -several acts of parliament, made to enforce and explain this one, the -substance of which acts, is summoned by Coke in these words: That “by -no means common right, or common law, should be disturbed or delayed; -no, though it be by command, and under the great seal, or privy seal, -order, writ, letters, message, or commandment whatsoever, either from the -king, or any other; and that the justices shall proceed, as if no such -writs, letters, order, message, or other commandment, were come to them.” -However, this is not to be understood so strictly, but that the king may -stop his own civil suit that he hath instituted for his own benefit, as -a _capias_ for a fine, because _quisque juri suo renunciare potest_; -and this stoppage, in truth, is for the benefit of the subject. It is -otherwise in criminal accusations, unless he can shew good cause to the -court to put it off. For every man accused has a right to be brought to -his trial[412]. - -Neither are legal protections within the prohibition of this law; these -were granted to stop suits against any man that was personally employed -in the service of the king, and were founded on this presumption, that -such service was for the public benefit, to which all private regards -must give way. But then these protections, must be legal ones, such, -and none other, as are found in the Register, the antientest book of -the law, and not ones newly devised, and for new-fangled causes. These -protections, however, were greatly abused in the sequel; favourites, -and their dependants, frequently obtaining them, to hinder others of -their just rights, under pretence of serving the king; where in truth, -there was no such thing. It is therefore recorded, highly to the honour -of Elizabeth, that she first discontinued the granting them; and her -laudable example has been followed by all her successors. I shall, -therefore, not dwell upon them, it being sufficient to have mentioned -that such things there are, or at least _were_ in our law. - -I hope the prolixity with which I have treated of _this_ chapter of -_Magna Charta_, the care I have taken to open the true meaning and force -of every word in it, and the many tacit exceptions each part of it is -subject to, will be excused, when it is considered, that it not only -contains great variety of matter, but is the most important, and of -more general consequence and concern, than any other law of the land. -It is the guardian of the life, the liberty, the limbs, the livelihood, -the possessions, and to the right to justice of every individual, and -therefore it concerns every man to know it, and fully to understand it. - -The thirtieth chapter is in favour of commerce and merchant strangers. -Certain it is, that, in antient times, the kings of Europe, and their -military subjects, looked on merchandize as a dishonourable profession; -as did the Romans also, in the military ages of that republic. By the -old laws of England, no merchants alien were to frequent England, except -at the four great fairs; and then were permitted to stay but forty days -at a time, that is, an hundred and sixty days in the whole year. But now -this act has altered the former law, and is very favourable to persons -engaged in commerce, who before were little better than at sufferance. It -commands, that all merchants, namely, merchant strangers, whose sovereign -is in amity with the king, unless publicly prohibited, that is, says -Coke, by Parliament, which is true, as the law hath since stood, (but -before, I conceive the king himself had the power to prohibit) shall -have safe and sure conduct in seven things. First, to depart out of -England without licence, at their will and pleasure. Secondly, to come -into England in the same manner. Thirdly, to continue in England without -limit of time. Fourthly, to go and travel through any part of England at -their pleasure, by land or water. Fifthly, free liberty to buy and sell. -Sixthly, without any manner of evil, tolls or taxes; but only, Seventhly, -by the old and rightful customs, that is, by such duties as were of old -time accustomed to be paid, and are therefore called _Customs_. By this -law the king is prohibited from laying any new taxes on the imports or -exports of merchant strangers. And as now they gained a general licence -to continue in the realm, from hence arose that privilege of merchant -strangers to take leases for years, of houses for their dwelling, and -warehouses for their goods, which they continued in England; for, -regularly, all acquisitions of aliens, in lands or tenements, belong to -the king[413]. - -The second branch of this act is a very equitable one. It concerns -merchant enemies, or rather such merchant strangers as came in friends, -and afterwards became enemies, by a war’s breaking out between the -sovereigns while they are in England. It provides that, on a war’s -so breaking out, the persons and effects of such merchants should be -seized, and safely kept till it should be known how the English merchants -had been treated in the enemy’s country; and that, if they were well -treated, these should be so too. This regulation, however, is not put -in use; because, by the treaties made between the sovereigns of Europe, -it is stipulated, that, on the breaking out of war, the merchants in -each others country should have a certain number of days to withdraw -themselves and their effects. But if a merchant enemy comes into the -country, after war declared, he is to be treated as an enemy; to which, -by the old law, now antiquated, there was a very humane exception, that -of persons driven into England by stress of weather. - - - - -LECTURE XLIII. - - _Continuation of the commentary on Magna Charta._ - - -As I have dwelt on the twenty-ninth chapter of _Magna Charta_ so long, -and treated of it and every part of it so minutely, I shall, in this -lecture, dispatch the remaining part thereof with more expedition. -Indeed, of the thirty-first I would have said no more, than merely to -observe, that it related to the military tenures now abolished, were it -not proper to remark, that it was made to enforce the old feudal law, -then the law of England, with respect to landed estates, and to restrain -John’s successors from the violences he had introduced in favour of the -royal prerogative, to the detriment of the immunities and privileges of -the subjects. It has been already observed in these lectures, that by the -feudal law, especially as established by the Conqueror in England, the -king was very amply provided for with a landed estate, to support his -dignity and expences, which was at that time looked on all over Europe -as unalienable, except during the life of the king in being; and that -the rest of the land was to be the property of the free subjects of the -realm, subject to the services imposed, and the other consequences of his -seignory as feudal lord. - -One of these consequences was the escheat on the failure of heirs, either -by there being none, or by the blood being corrupted by the commission -of felony, which in law amounted to the same thing; as no son, uncle, -nephew, or cousin, could by law claim as heir by descent to a person -attainted. For the legal blood, the title to the inheritance, failed in -him the last possessor, by his breach of fealty; and every heir lineal or -collateral by the law of England being obliged to claim as heir to the -person last seized, must be excluded, when the legal blood inheritable -failed in the last possessor. - -In consequence of these escheats, which often happened in those times, -both by corruption of blood, and failure of heirs inheritable, (for, -as I have observed before, the granting _feuda antiqua ut nova_ was -introduced only by Henry the Second, the father of John, and were not at -this time become universal, as they since have been) John introduced this -new maxim, that when an earldom or barony fell to the crown by escheat, -he held it in the right of his crown, as it was originally derived from -thence; and consequently, that the tenants of the former lord, being -now, instead of _intermediate_, become _immediate_ tenants of the crown, -held of him _in capite_, as it was called; that is, that he, by this -escheat, obtained privileges over the tenants of the former lord, which -he, the former lord, never had, or could have, but which he claimed as -king, _in jure coronæ_. These privileges were many in number; but it will -be sufficient to mention only two of them, to shew into how much worse -a state the tenants of these escheated lordships were thrown, by being -considered as tenants _in capite_. - -First, then, the king had from his tenants _in capite_, who came into -possession of their lands at full age, instead of _relief_, to which -subject lords were intitled, and which was only one fourth of the -value of the lands, his _primeir seizin_, which was the whole year’s -value. Another grievance was with respect to the wardship of military -tenants under age. As to the tenants _in capite_, the king had, by his -prerogative, a right not only to the wardship of the person of his minor -tenant, and of the lands he held of him _in capite_, but also of all -other lands held by knight-service of any other person. For as to socage -lands, they were to be in the hands of the next of kin, to whom the -inheritance could not descend, who, at the infant’s full age, was to be -accountable for the profits: and under the pretence of such tenants, upon -the superior lord’s escheat, becoming tenants _in capite_, John claimed -and exacted the privilege, to the detriment of the other lords. These -and other mischiefs, for others there were, as I observed before, and -some of them are mentioned in this statute, are remedied by the general -provision which restored the feudal law, that the king should hold all -such escheated lordships in the same right they were before held, and -have no other privilege, but what the lord by whose escheat they fell to -him had: in a word, that he should hold them as lord of that lordship, -not as king[414]. - -The thirty-second chapter relates to the alienation of lands, and gives -a qualified power of that kind. By the feudal law, as it was introduced -at the Conquest, no lord could alien his seignory without the tenants -consent, so neither could the tenant his tenancy, without approbation -of the lord. These strict rules were first broken into, in those -superstitious times, in favour of churchmen; afterwards, in Richard the -First’s time, to raise money for the holy war. Not but the subjects, by -their insisting on Edward the Confessor’s laws, of which free alienation -was a part, seemed to be fond of it. However, the kings, in all their -grants of the old English laws, were careful to preserve the feudal -system, in guarding against the alienation of the military tenures. Coke, -on commenting in this statute, in order to the better understanding -thereof, makes three observations relative to what was the common law -before this statute; in the last of which I apprehend he is mistaken, as -the law then stood; and that what he asserts therein to have been law did -not become (so though often in practice) till after the statute _quia -emptores terrarum_, in Edward the First’s reign. - -His first observation is, that the tenant might have made a feoffment of -the whole, or a part of his tenancy, to hold _of himself_; and no doubt -but he might. This was the usual case of subinfudation, by which the -lord was in no sort prejudiced; for his seignory remained entire, and he -might distrain in any part for his whole service; and in such case, if -the under tenant was aggrieved, he was to have his remedy against his -immediate landlord the _mesne_, (or middle person), as he is called in -our law. - -The second observation is, that the tenant could not alien in fee _apart_ -of the tenancy, to hold, not of himself, but of the lord, than which -nothing could be more reasonable; for it would have been against these -old rules also, for a tenant to bring in another, as immediate vassal to -the lord, without his the lord’s consent. The tenant would by that means -dismember the seignory, which he received, entire, and so deprive the -lord of his right of distraining in the whole, and confine him merely to -that part remaining in his own hands, as original tenant. For as to the -part of the _allienee_, he could not distrain that for his service, there -having been no feudal contract between them. Such alienation, therefore, -unless when the lord accepted the _allienee_ as a tenant, was a breach of -fealty, and against the old feudal principles, and consequently unlawful -in England. - -The third observation Coke makes on this statute, is, that by the common -law the tenant might have made a feoffment of the whole tenancy, to be -holden of the lord. For, says he, that was no prejudice at all to the -lord[415]. But though this certainly prevailed as common law, long before -either Coke or Littleton wrote, I cannot help thinking, both because -it was contrary to the old feudal law, and also from the words of the -statute _quia emptores terrarum_, that it was first introduced by that -act of parliament, the words of which are, _de cætero liceat unicuique -libero homini terras suas, seu tenementa sua vel partem, inde vendere_. -Here the alienating the whole is declared from henceforth lawful; which -words had been nugatory, if this had been common law before. - -The chapter of _Magna Charta_ of which we are speaking, was, then, the -first positive law that allowed the free alienation of lands. It, in one -sense, enlarged, whilst in another it expressly restrained, the power -of the tenant; whereas, before, he might alien the whole, or part of -his tenancy in fee, but subject to the distress of the lord. Now, by -this statute, he was confined to an alienation only for so much, that, -out of what remained, the lord might have sufficient distress for his -entire service, and the part conveyed was in the _alienee_’s hands, free -from any future distress by the lord, or service due to him, fealty -only excepted. But it not being specified, how much of the land was -a sufficiency, though the half, or what was the half in value, was, -in common estimation, reputed such, the tenants, under this pretence, -would alien more; which gave occasion to many disputes and suits, and -the propensity to general alienations continuing, the law called _quia -emptores terrarum_, already mentioned, was at length made, which gave -a general licence to alien the whole, or a part at pleasure, to hold -of the superior lord; and this put an end, in the law of England, to -subinfudation of fee simples. For, since the passing that law, if a man -infeoffs another of the whole or part of his land, there is no tenure -between the feoffer and feoffee, but the feoffee holds of the feoffer’s -lord. But as to lower estates, as fee tail estates for life, years, or at -will, subinfudation remains; because the whole estate is not out of the -donor, or lessor, but a reversion remains in him; wherefore the tenure, -in such case, is of the donor or lessor. - -By the statute of _Magna Charta_, in case of alienation of part, to hold -of the lord, the residue remaining in the original tenant’s hands, was -to answer the services, and the _alienee_ held of the lord, by fealty -only. But now by the second chapter of the forementioned statute, the -services were to be apportioned, that is, divided in proportion to the -value of the lands. If half of the lands, not in _extent_, but _value_, -was aliened, the _alienee_ paid half: if one third, the like quantity. -I have observed before, on this statute of _quia emptores_, that the -king, not being named, was not bound by it. For his tenant _in capite_ -to alien without licence was a forfeiture, until, in the reign of Edward -the Third, a fine for alienating was substituted in the place of the -forfeiture, which fine continued until the restoration, when it was -abolished. - -The thirty-third chapter provides, that the patrons, that is, the heirs -of the founders of abbeys, who, by title under the king’s letters patent, -or by tenure, or antient possession, were intitled to the custody of -temporalities, during the vacancy of the abbey, should enjoy them free -from molestation of any person, or of the king, under the pretence of the -prerogative[416]. - -The thirty-fourth chapter is relative to appeals of murder, brought -by private persons. When a man is murdered, not only the king, who is -injured by the loss of a subject, may prosecute the offender, but also -the party principally injured, that is, the widow of the deceased, if he -had one; for she, as having one person with him, stands intitled to this -remedy in the first place; but if he left no widow, his heir at law might -pursue it. It follows, therefore, that a female heir might, by the common -law, have brought an appeal of murder, as the daughter, or the sister, if -there had been neither children or brother. But this statute alters the -common law, and takes away the appeal, in such case, from every woman, -except the widow; so that, at this day, if a man be murdered, leaving -no widow, and his next heir be a female, no appeal of murder can be -brought. But this disability is personal to women; for though a daughter -or sister, living, can bring no appeal, though heir, yet, if they be dead -before the murder, leaving a son who is heir, he may bring it[417]. - -I shall now make a few observations on the right of the widow’s bringing -such appeal. First, then, the man slain must be _vir suus_, as the -statute expresses it. If, therefore, they had been divorced, the marriage -being dissolved, she could not have an appeal. It was otherwise, if they -had been only separated _a mensâ & thoro_; for then he still continued -her husband. He ceases likewise to be _vir suus_, if she ceases to be his -wife, or widow. Therefore, by her marrying again, her appeal is gone, -even though the second husband should die within the year, the time -limited for bringing it. This is carried so far, that though she brings -an appeal while a widow, yet if she marries while it is depending, it -shall abate for ever. So if she has obtained judgment of death against -the _appellee_, if she marries before execution, she can never have -execution against him. In one point the heir is less favoured in appeals -than the widow; for if the person murdered had been attainted of high -treason, or felony, so that his blood was corrupted, the heir could not -have it; for the civil relation between them was extinguished, by the -ancestor’s civil death: but the relation of husband and wife depends on -the law of God, who has declared the bond indissoluble; therefore no law -of man can make him cease to be _vir suus_, and, in such case, she shall -have an appeal. - -The thirty-fifth chapter treats of the county-courts[418]; but having -already, in a former lecture, mentioned what appeared to me sufficient -on that subject, I shall proceed to the next, viz. the first law made to -prevent alienations in mortmain. Lands given to a corporation, whether -spiritual or lay, are said to fall into _mortmain_, that is, into a dead -hand, an hand useless and unprofitable to the lord of the fee, from whom -he could never receive the fruits. There could be no escheat, either for -want of heirs, or felony, because the body never died, nor was capable of -committing felony. For the same reason of its never dying, there could -be no wardship, or relief; neither could there be marriage. But besides -the loss to the lords, the public also suffered; for the military service -the lands were subject to, were often withdrawn, or, at least, very -insufficiently performed. - -These alienations, without the consent of the superior lord, were -directly against the feudal polity; yet such was the power of the clergy, -who were the principal gainers thereby, in those ages, and so great -their influence, that they were not only tolerated, but universally -practised, through all Europe; for the founding of a monastery was the -usual atonement for the most atrocious crimes. In England, particularly, -from the accession of the Conqueror to that of John, containing one -hundred and thirty-four years, there were no less than an hundred and -four monasteries founded, many of them very richly endowed, besides -particular benefactions made to them and the old ones. No wonder, then, -it was found necessary, by laws, to put a stop to the growing wealth -of the church; but the reign of John, a vassal to the Pope, was not a -time to expect a remedy. Accordingly, this act goes no farther than to -remedy a collusive practice, by which a vassal, to defraud his lord of -the fruits of his seignory, made over his lands to a convent, and took it -back to hold from them; and to that end, the statute declares the land, -in such case, forfeited to the lord. - -I shall say no more on this point, nor of the many cunning practices -churchmen, in after times, put in use by the advice of the most learned -lawyers they could procure, in order to creep out of this, and every -other statute made to restrain them, and for employing which, Coke says, -they were much to be commended. But he has forgot to tell us whether he -thought those great lawyers deserved commendation, for finding means -to elude the most beneficial laws of the land. It will be enough here -to say, that, from these devices, arose, in time, the wide-spreading -doctrine of _uses and trusts_, which have over-run our whole law, and -that the judicial powers of courts of equity have grown with them[419]. - -The next chapter was made to restrain the intolerable exactions of -_escuage_ which John had introduced, and forbids the assessing it, in any -other manner than was used in the time of Henry the Second, his father, -that is, as I observed under that reign, very moderately; so that every -man had his option, whether he would serve in person, or pay it[420]. - -Next comes the thirty-eighth, which is the conclusion. First, it saves -to the subjects all other rights and privileges before had, though -not mentioned herein. Coke observes, that there is no saving for the -_prerogative of the king_, or his heirs; for that would have rendered all -illusory. Secondly, it ordains that the king and his heirs should observe -it. Thirdly, that all the subjects should. Fourthly, it recites, that, -in consideration hereof, the king received from the subjects a grant -of the fifteenth of their moveables. For _Magna Charta_ is not merely -a declaration of the old laws, but alters them in many instances; for -which favourable alterations the subjects made this grant, and thereby -became purchasers of them. Fifthly, it prohibites the king, and his -heirs, from doing any thing whereby these liberties might be infringed or -weakened; and declares all such doings null and void. Lastly, comes the -alteration of twelve bishops, and nineteen abbots, and thirty-one earls -and barons[421]. - - - - -FOOTNOTES - - -[1] Cæsar de bell. Gal. lib. 4. c. 18. Tacit. vit. Agric. Dion Cassius, -vit. Sever. - -[2] Bede, lib. 1. - -[3] Bede, lib. 3. and 5. - -[4] The division of laws, during the Anglo-Saxon period, into -West-Saxon-lage, Mercen-lage and Dane-lage, was not of any importance. -These differed not essentially from one another. “Our Saxons, says Sir -Henry Spelman, though divided into many kingdoms, yet were they all one -in effect, in manners, laws and language: So that the breaking of their -government into many kingdoms, or the reuniting of their kingdoms into -a monarchy, wrought little or no change amongst them touching laws. -For, though we talk of the _West-Saxon-law_, the _Mercian-law_ and the -_Dane-law_, whereby the west parts of _England_, the middle parts, and -those of _Norfolk_, _Suffolk_ and the north, were severally governed; -yet held they all an uniformity in substance, differing rather in their -_mulcts_ than in their _canea_; that is, in the quantity of fines and -amerciaments, than in the course and frame of justice.” _Relig. Spelm._ -p. 49. - -[5] King Edward’s laws were compiled from those of former princes, and -abolished any little peculiarities which distinguished the West-Saxon, -Mercian and Danish laws, subjecting the whole kingdom to a common law. -His code, accordingly, was termed _lex Angliæ_, or _lex terræ_. No -correct copy of it has descended to us. Those regulations, which pass -under his name in the editions of the Saxon-laws by Lambard and Wilkins, -have evidently some interpolations. Traces of them are to be seen in -Hoveden and Knyghton; and remains of them are likeways to be found in the -laws of William I. From the time of this Prince to that of King John, -they continued, with the addition of some Norman laws and customs, the -law of the land. _Præcipimus_, says William, _ut omnes habeant et teneant -leges Edwardi regis in omnibus rebus, adauctis his quas constituimus -ad utilitatem Anglorum_. _Leg. Guliel. ap._ Wilkins, p. 229. By the -influence of the Barons under the last Prince, they were drawn up in -the form of _Magna Charta_. For the _great charter_ was not what some -partial writers have represented it, a concession of privileges extorted -by violence, but a declaration of the principal grounds of the _antient_ -and fundamental laws of England, and a correction of the defects of the -common law. See _Lord Coke 2 Inst._ and _Lord Lyttelton’s hist. of Henry -II. vol. I._ p. 42. 526. - -[6] _Wittenagemot_, imports a council of wise men; the Saxon word _witta_ -signifying a wise man; and the British word _gemot_ expressing a synod or -council. During the Heptarchy, each kingdom had its _Wittenagemot_. - -[7] The lay lords were the earls, thanes, and other nobility of the -kingdom. The spiritual lords were the bishops and dignitaries of -the church, whose possessions were held in Frankalmoigne. After the -conquest, they were subjected to military service and held by barony. -What may seem extraordinary, Abesses were also in use to sit in the -Saxon Wittenagemots. In Wightred’s great council at Beconceld, _anno_ -694. the Abesses sat and deliberated, and several of them subscribed the -decrees made in it. _Spel. conc. vol. I._ The abesses appeared also in -Ethelwolf’s parliament at Winchester _anno_ 855. _Ingulph, edit. Savil._ -862. And king Edward’s charter to the abbay of Croyland was subscribed -by an abbess. Even in the time of Henry III. and in that of Edward I. -it appears that four abbesses were summoned to parliament; those of -Shaftsbury, Berking, St. Mary of Winchester, and of Wilton. _Tit. hon. p. -729, and Whitelock’s notes upon the king’s writ for choosing members of -Parliament, vol. I. p. 479. 480._ - -[8] The preambles of the Saxon laws express an anxiety to please the -people, and allude to their consent in enacting them. The laws of king -Ina begin thus: _Ego Ina Dei gratia Occiduorum Saxonum Rex, cum consilio -et cum doctrina Cenredæ patris mei, et Heddæ Episcopi mei, et cum omnibus -meis senatoribus, et senioribus SAPIENTIBUS POPULI MEI, et multa etiam -societate ministrorum Dei, consultabam de salute animæ nostræ, et de -fundamento regni nostri, ut justæ leges, et justa statuta per ditionem -nostram stabilita et constituta essent, ut nullus senator nec subditus -noster post hæc has nostras leges infringeret_. See _LL. Anglo-Saxon, -ap. Wilkins, p. 14._ The preambles to the laws of the other princes are -nearly similar; and those of Edgar, Ethelred and Canute, may serve as -additional examples. 1. Leges Eadgari regis. _Hoc et institutum quod -Eadgarus cum SAPIENTUM SUORUM consilio instituit in gloriam Dei, et sibi -ipsi in dignitatem regiam, et in utilitatem omni populo suo_. 2. Leges -Æthelredi regis. _Hoc est consilium quod Æthelredus rex, et SAPIENTES -EJUS consultaverunt ad emendationem pacis omni populo Wodstoci in regione -Merciorum, secundum Angliæ leges_. 3. Leges Cnuti regis. _Hoc est -consilium quod Cnutus rex, totius Angliæ et Danorum et Norwegorum rex, -cum SAPIENTUM SUORUM consilio sancivit, in laudem Dei, et sibi ipsi in -ornamentum regium, et ad utilitatem populi; et hoc erat sacris natalibus -domini nostri Wintoniæ_. See _Wilkins_, p. 76. 102. 126. - -In the 8th law of Edward the Confessor we read, _Hæc concessa sunt a -rege, baronibus et POPULO_; and in his 35th law we have the following -words: _Hoc enim factum fuit per COMMUNE CONSILIUM et ASSENSUM omnium -episcoporum, principum, procerum, comitum, et omnium SAPIENTUM seniorum -et POPULORUM totius regni, et per præceptum regis Inæ prædicti._ See -Wilkins, p. 198. The laws of Edward are, I know, to be read with -distrust; but they are allowed to contain genuine relics of that prince; -and, in the present case, there seems no reason for suspicion. Their -_appeal_ of consequence to the _assent_ of the _people_ must be allowed -to be of authority. For, if such _assent_ was not known and believed in -that age, how is it possible that they could appeal to it? The advocates -for the late origin of the house of commons will not surely suppose, that -the Confessor alluded prophetically to transactions which were not to -happen till the reigns of Henry III. and Edward I. - -In the _Mirroire de Justices_, it is expressly said, that no king, during -the Saxon times, could change his money, nor enhance nor impair it, nor -make any money but of silver, without the _assent_ of the _Lords_ and -all the COMMONS. Part of this book is conceived by Sir Edward Coke to -have been written before the conquest; and additions were made to it -by Andrew Horn in the reign of Edward I. from old MSS. the authors of -which must have seen ancient rolls and records. Matter, also, from more -exceptionable materials, it is to be thought, was superadded by him. The -book is notwithstanding of considerable weight and authority. _Mirroire -des Justices_, cap. 1. sect. 3. _Atkyns on the power of parliament._ - -Concerning the high antiquity of the _commons_, Sir Edward Coke is -clear and explicit; and he has founded chiefly his opinion on the -ancient tract, which bears this title: _Modus quomodo parliamentum regis -Angliæ et ANGLORUM SUORUM, tenebatur TEMPORIBUS REGIS EDWARDI, filii -REGIS Ethelredi, qui modus recitatus fuit per discretiores regni coram -Willielmo duce Normanniæ conquestore et rege Angliæ, ipso conquestore hoc -præcipiente, et per ipsum approbatus, et suis temporibus et temporibus -successorum suorum regum Angliæ usitatus._ Other authors beside Lord -Coke have paid great respect to this treatise. It is to be acknowledged, -however, that Mr Selden has demonstrated that this tract could not -possibly be of the age of the Confessor, from its employing terms which -were not in use till long after. But this does not wholly derogate -from its force as to the point in question. For, allowing it to have -been written in the reign of Edward III. the period which, with great -probability, some writers have assigned to it, it yet proves that the -sense of that period was full and strong with regard to the antiquity -of the constitution, as consisting of king, lords and _commons_; a -circumstance which must have great weight in opposition to those, who -would make us believe, that our constitution, as so formed, was unknown -till the times of Henry III. and Edward I. _4 Institute_, _p._ 2. 12. -_Selden_, _tit. hon._ _p._ 739. 743. - -“In the time of king Canutus, says Whitelocke, to a charter then graunted -to the monastery of St. Edmond’s Bury (probably in a publique councell) -after the subscriptions of the queen and dukes, followes, _I Oslaus, -KNIGHT_, _I Thored, KNIGHT_, _I Thurkell, KNIGHT_, and so of others. How -many these were, or how for several counties, doth not appear; nor in -that parlement of the same king (for so is testified by the discription -of it) where it is sayd, that _the king calling all the prælats of his -kingdome, and the nobles, and great men to his parlement_, there were -present bishops, abbots, dukes, earles, _with many MILITIBUS_, butte -the certain number is not extant; nor of those which are mentioned in -the parlement of Edward the Confessor, where after the king, queen, -archbishops, bishops, abbots, king’s chapleins, Thaines, KNIGHTS are -reckoned in that parlement.” _Notes upon the king’s writ_, vol. I. p. 437. - -Lambard, Dugdale, and other antiquaries, produce a very strong evidence -of the antiquity of the representation of boroughs, by evincing, “That in -every quarter of the realm, a great many boroughs do yet send burgesses -to parliament, which are nevertheless so ancient, and so long since -decayed, and gone to nought, that it cannot be shewed that they have been -of any reputation at any time since the Conquest; and much less that -they have obtained this privilege by the grant of any king succeeding -the same. So that the interest which they have in parliament groweth -by an ancient usage before the Conquest, whereof they cannot shew any -beginning.” _Lambard Archeion_, _p._ 256. 257. _Coke Epist._ 9. _Rep. -Dugdale, Jurid._ _p._ 15. - -This matter receives confirmation from what we are told of the _boroughs -of ancient demesne_. “These, says Whitelocke, were tenants of the demesne -lands of William I. and of Edward the Confessor; who (to the end that -they might not be hindered from their business of husbandry of the -king’s lands) had many privileges, whereof one was, that they should not -be compelled to serve in parliament. Another was, that they should not -contribute to the wages of KNIGHTS OF THE SHIRE. Which privileges they -still enjoy, and had their beginning in the times of William I. and of -the Confessor, whose tenants they first were, as appears in the book of -Domesday, and is a strong proof, that KNIGHTS and BURGESSES were then in -parliament.” _Notes upon the Kings Writ_, vol. II. p. 139. - -See also the 22d note to the present tract. - -[9] The law was not then a particular profession. - -[10] On the following record in the register of Ely, this notion seems -to be founded. _Abbas Wulfricus habuit fratrem, Guthmundum vocabulo; cui -filiam præpotentis viri in matrimonium conjungi paraverat; sed quoniam -ille XL. hidarum terræ dominium minus obtineret, licet nobilis esset, -inter proceres TUNC nuncupari non potuit_. It is somewhat remarkable, -that Mr Hume is among those, who, resting on this foundation, would make -us conceive, that a person who had 40 hides of land, could, without being -noble, give his voice in the Wittenagemot. _Hist. of Eng. vol. I. p. -145._ The passage, however, properly understood, serves to shew, that, in -the course of time, the attendance of the Nobles in parliament, having -been deemed an expensive service, a law was made to relieve those of -them from it who were not possessed of 40 hides of land. The reader may -consult _hist. Eliens. c. 36. 40. ap. Gale_, the authority appealed to by -Mr Hume. - -[11] It is perhaps impossible to ascertain the æra of this invaluable -institution. It loses itself in a distant antiquity. The Saxon laws -mention it as a known invention. See _LL. Ethelr. c. 4. Senat. Consult. -de Mont. Wal. c. 3. ap. Wilkins_. See also _Nicolson, Præfat. ad Leg. -Anglo-Sax. Spelm. Gloss. and Coke’s 1st Institute_. Olaus Wormius traces -it to a remote age among the Danes; and Stiernhook among the Swedes. -_Monument. Dan. lib. 1. c. 10._ _De Jure Sueon. et Goth. vetusto. c. 4._ - -[12] Annal. lib. 14. c. 33. _Copia negotiatorum et commeatuum maxime -celebre._ The city of London in the Danish times was able to pay L. -11,000 as its proportion of L. 70,000, a tax then imposed on the nation. -Asser, in the life of Alfred, refers to above 120 cities, boroughs and -villages. - -[13] Lib. 1. See also Holingh. Chron. p. 192. - -[14] Spelman, life of Alfred, b. 2. p. 28. Malmesb. lib. 2. c. 4. A -writer in Du Chesne having occasion to mention the first return of duke -William to Normandy, after his invasion of England, has the following -passage: _Attulit quantum ex ditione trium Galliarum vix colligeretur -argentum atque aurum: Chari metalli abundantia multipliciter Gallias -terra illa [Anglia] vincit. Gest. Gul. Conques. p. 210._ - -[15] LL. Anglo-Saxon. ap. Wilkins, p. 71. - -[16] The Confessor dying without issue, the competitors for the crown -were Edgar Atheling, Harold, and duke William. The first had not capacity -to sway the sceptre; and the succession of kings was not yet directed -by very regular maxims. Harold was a subject, and in possession of no -legal claim. William was related to Edward, and urged the destination of -that prince to succeed him. On these grounds he invaded England; and by -opposing Harold, he meant to secure what was his right of succession. -His victory accordingly gave him the capacity of a successor, and not -of a conqueror. That the quarrel was personal with Harold may be even -conceived from the circumstance that duke William offered to decide their -dispute by single combat. _Hale, hist. of the com. law, ch. v. Cook, -argument. antinorm._ - -With regard to William’s right of succession, the best account -appears to be that which is found in Ingulphus, William of Poictiers, -William Gemetensis, and Ordericus Vitalis, who were all of them his -contemporaries. These authors inform us, that king Edward sent Harold -into Normandy to assure duke William of his having destined him to be -his successor to the crown of England; a destination which he had before -observed to him by Robert Archbishop of Canterbury; and which appears -to have been made with the consent of the national council. And of this -relation there remains a very curious and decisive confirmation. It -is a tapestry found at Bayeux, and supposed to be work of Matilda the -wife of duke William, and of the ladies of her court, in which Harold -is represented on his embassy. See _a description of this tapestry by -Smart Lethieullier, Esq; ap. Du Carrel’s Anglo-Norman antiquities_. It is -surprising, when these particulars are considered, that Mr. Hume should -have given his sanction to the opinion that William’s right was entirely -by war, and that he should have conceived that those who refuse to this -prince the title of _Conqueror_ should rest solely or chiefly on the -pretence that the word _conqueror_ is in old books and records applied -to such as make an acquisition of territory by any means. _Hist. of Eng. -vol. 1. p. 200._ It is true, that Sir Henry Spelman and other antiquaries -have shown, that _conquestus_ and _conquisitio_ were in the age of duke -William synonymous with _acquisitio_; but it is no less true, that the -authors who refuse to duke William the title of Conqueror, rest on much -superior evidence. It is not with pleasure that I differ from this great -authority; but, no man has a title to enquire who will not think for -himself; and the most perfect productions of human wit have their errors -and their blemishes. - -[17] See farther, an Historical Dissertation concerning the antiquity of -the English constitution. Part 2. - -[18] Ibid. - -[19] Ibid. - -[20] It is a very curious fact, that even some of the Anglo-Saxon nobles -had all the prerogatives of earls-palatine. Alfred, we are told, put to -death one of his judges for having passed sentence on a malefactor for -an offence which had been committed _where the king’s writ did not pass. -Mirroire de Justices, ch._ v. And in Selden we meet with earls who had -entirely the civil and criminal jurisdiction in their own territories. -_Tit. Hon. part 2. ch._ v. If there were no other proofs than these, they -would be sufficient to evince the reality of fiefs among the Anglo-Saxons. - -[21] Madox, hist. of Excheq. _Erant in Anglia quodammodo_, says an old -writer concerning the age of Stephen, _tot reges vel potius tyranni, quot -domini Castellorum. Gul. Neubrigens._ - -[22] _Civitas London. habeat omnes ANTIQUAS LIBERTATES et LIBERAS -CONSUETUDINES SUAS tam per terras quam per aquas. Præterea volumus et -concedimus quod OMNES ALIAE CIVITATES et BURGI et VILLAE et PORTUS -habeant OMNES LIBERTATES, et LIBERAS CONSUETUDINES SUAS._ _Magna charta -ap. Blackstone, Law Tracts, vol. III. p. 21._ - -[23] They had suffered considerably, even from the time of the Confessor -to that of Domesday-book. Authors ought therefore to be cautious in -reasoning back from that monument to the Saxon period. It is a pity, -that the survey of the kingdom taken by Alfred did not yet remain. -The comparison of it with that of William would lead to very curious -discoveries. - -[24] The first summons of knights extant on record is supposed to be in -the 49th of Henry III. But this, though it were true, does not prove that -knights were not known till that time. The writ does not say so; nor can -it be gathered from it, that _knights of the shire_ were then _newly_ -established. If there remained, indeed, an uniform series of records -from the earliest times, in which there was no mention of _knights_ -till the age of Henry III. there might thence arise a strong argument -against their antiquity. But this is not the case; and it happens, that -in the 15th year of king John, there is a writ to the sheriff to summon -_FOUR knights of the county_; _15. Jo. Rs. rot. claus. pt. 2. m. 7. -dorso. 4 discretos milites, de comitatu suo, ad loquendum nobiscum_. -There is also similar evidence, that in the 32d and 42d years of Henry -III. _knights_ made their appearance in parliament. _Whitelocke, Notes, -vol. I. 438. vol. II. 120._ In the close roll, also, of the 38th year of -Henry III. there is extant a writ of summons directed to the sheriffs -of Bedfordshire and Buckinghamshire, requiring _TWO knights_ to be sent -for each of these counties. _Lyttelton, Hist. Henry II. notes to the 2d -book, p. 70. 79._ In ancient times, it was usual to summon sometimes -_FOUR knights_, sometimes THREE, sometimes TWO, and even sometimes _ONE -knight_. But from the reign of Edward III. it has been the constant -practice for the sheriff to return _TWO knights_ for each county. -_Whitelocke, vol. I. 439._ - -The first summons directed to the sheriff for the election of _citizens_ -and _burgesses_, is supposed to be in the 23d of Edward I. But in the -sixth year of king John, says Whitelocke, there is extant on record a -writ to the sheriff, which mentions “Bishops, earls, barons, and _all our -faithful people in England_; by whose assent, lawes were then made.” _6. -Jo. regis, rot. claus. m. 3. dors. et rot. pat. m. 2. Assensu archiepis. -&c. et omnium fidelium nostrorum Angliæ. Notes on the king’s writ, vol. -II. p. 120._ An ordinance in this year of king John, directed _to all the -sheriffs_ in England, is mentioned from the records by Sir Robert Cotton, -and has these words: _Provisum est ASSENSU Archiepiscoporum, comitum, -baronum, et OMNIUM FIDELIUM NOSTRORUM ANGLIAE._ _Cotton. posth. p. 15._ - -In the _conventio inter regem Johannem et barones_ the people are stated -as parties; a circumstance which would not have happened if they had -not been represented. _Hæc est conventio facta inter dominum Johannem -regem Angliæ ex una parte, et Robertum filium Walteri Marescallum, &c. -ET LIBEROS HOMINES TOTIUS REGNI ex altera parte_. Blackstone’s Edition -of the charters, ap. Law Tracts, vol. II. p. 39. 40. And what confirms -this notion is, that we find the _mayor of London_ and the _constable of -Chester_ in the list of those who were chosen conservators of the public -liberties in consequence of the great charter. Other proofs, likeways, of -the antiquity of the commons are to be found in the great charters. See -Lyttelton, Hist. Henry II. Notes to the 2d book, p. 71. - -It is also worthy of notice, that the 25th of Edward I. which confirms -the great charter, observes, that it was made by the _common assent of -all the realm_: And the 15th of Edward III. observes, that it was made -_par le roy, ses piers, et la communalté de la terre_. - -Nor must it be omitted, that the 5th of Richard II. has this remarkable -passage: _The king doth will and command, and it is assented in the -parliament, by the prelates, lords and COMMONS, that all and singular -persons and commonalties, which from henceforth shall have the summons -of the parliament, shall come from henceforth to the parliaments in the -manner as they are bound to do, and have been accustomed within the realm -of England OF OLD TIMES. And if any person of the same realm, which -from henceforth shall have the said summons (be he archbishop, bishop, -abbot, prior, duke, earl, baron, banneret, KNIGHT of the shire, CITIZEN -of city, BURGESS of borough, or other singular person, or commonalty) -do absent himself, and come not at the said summons (except he may -reasonably and honestly excuse him to our lord the king) he shall be -amerced, and otherwise punished, according as OF OLD TIMES hath been used -to be done within the said realm in the said case. And if any sheriff of -the realm be from henceforth negligent in making his returns of writs -of the parliament; or that he leave out of the said returns ANY CITIES -OR BOROUGH WHICH BE BOUND AND OF OLD TIME WERE WONT TO COME TO THE -PARLIAMENT, he shall be amerced, or otherwise punished in the manner as -was accustomed to be done in the said case_ in times past. _Stat. 2. cap. -4._ - -The expression “of old time,” so often used here, must doubtless carry us -farther back than the 23d of Edward I. or even the 49th of Henry III. The -space of two or even three reigns does not make a period of antiquity. We -do not say, that the accession of George I. was in _ancient times_. - -I know well, that the expressions _commonalty_, _communitas regni_, -_baronagium Angliæ_, _magnates_, _nobiles_, _proceres_, _&c._ have been -considered as solely applicable to barons and tenants _in capite_. But -one must beware of giving credit to this opinion. The great charter of -king John bears to have been made _per regem, barones et liberos homines -totius regni_; a certain proof that it was not made by the king and -the barons only; yet Henry III. speaking of this parliament, calls it -_baronagium Angliæ_. The _magnates_ and _proceres_ are said to have made -the statute of Mortmain; but it is well known, that the parliament which -gave authority to this act consisted of king, lords and _Commons_. In the -35th of Edward I. the expression _cum comitibus, baronibus, proceribus, -nobilibus, ac communitatibus_, evidently refers to KNIGHTS, CITIZENS and -BURGESSES: And in the 14th of Edward III. _commonalty_ and _Commons_ are -used as synonymous. See farther, _Whitelocke, vol. II. ch. 81_. _Coke, -2nd Inst. 583._ _Petyt, Rights of the Commons._ _Atkyns, on the power and -jurisdiction of parliament._ - -Mr Hume, I am sensible, strenuously asserts the late origin of the -Commons; and one would almost imagine, that his history of England had -been written to prove it. His reasonings, however, on constitutional -points, do not appear to me to be always decisive; and it is with pain -I observe the respect which this great man has paid to the opinions of -Dr Brady; a writer who is known to have disgraced excellent talents, by -pleading the cause of a faction, and giving a varnish to tyranny. - -The brevity which was necessary to this tract, has permitted me rather -to hint at, than to treat the antiquity of the Commons. In a work which -I hope one day to lay before the public, I shall have an opportunity of -entering into it at greater length. - -[25] Hist. Dissert. concerning the antiq. of the Engl. constitut. part 2. - -[26] _Madox, Hist. of the Excheq. Bar. Angl._ The granting of supplies -to the sovereign, naturally suggested to the people the petitioning for -redress when under the pressure of any grievance; and the crown, where it -expected much, would not naturally exercise a rigorous severity. - -The term _petitioners_ indeed, has, by some authors, been considered as -reproachful to the _Commons_; but how a petition, as the spring of a -law, could have meanness in it, is inconceivable. Even in the free age -of Charlemagne, this mode of application was employed. _Baluz. capit. -reg. Franc. tom. 1._ The behaving with reverence to the sovereign is very -different from acting with servility. And as to the petitioning against -grievances, it is to be remembered, that respectful requisitions of -ancient and constitutional privileges, which had suffered invasion, are -not to be considered as mean solicitations for acts of favour. - -[27] _Conf. Cart. an. 25. Ed. I._ It is singular, that even after the -times of Edward I. some writers will not allow, that the Commons were any -essential branch of the legislature; yet the writ of summons expresses -in strong terms their right of assent: _Ad audiendum et faciendum et -consentiendum_; and a multitude of examples may be produced of their -actually consulting and determining about peace and war and other -important matters of state. - -There is evidence that Edward I. called a parliament, and consulted -with the Lords and _Commons_ about the conquest of Wales; and that on -receiving information that the French King intended to invade some of his -dominions in France, he summoned a parliament _ad tractand. ordinand. et -faciend. cum prælatis, proceribus et aliis incolis regni quibuslibet, -hujusmodi periculis et excogitatis malis sit objurand_. Inserting in the -writ these memorable words, _Lex justissima, provida circumspectione -stabilita_: QUOD OMNES TANGIT, AB OMNIBUS APPROBETUR. - -Edward II. consulted with his PEOPLE in his first year _pro solemnitate -sponsalium et coronationis_; and in his sixth year he consulted them, -_super diversis negotiis statum regni et expeditionem GUERRAE SCOTIAE -specialiter tangentibus_[A]. - -Edward III. summoned the peers and _Commons_ in his first year to consult -them, Whether they would resolve on peace or war with the Scottish king. -In his sixth year, he assembled the lords and _Commons_, and required -their advice, Whether he should undertake an expedition to the Holy Land. -The lords and _Commons_ consulted accordingly; and while they applauded -his religious and princely forwardness to the holy enterprize, advised -a delay of it for that season. In his thirteenth year, the parliament -assembled _avisamento prælatorum, procerum, necnon COMMUNITATIS_ to advise -_de expeditione GUERRAE in partibus transmarinis_; and ordinances were -made for provision of ships, arraying of men for the marches, and defence -of the isle of Jersey. In his fortieth year, the Pope demanding the -tribute of king John, the parliament assembled, where, after consultation -apart, the prelates, lords and _Commons_ advise the refusal of it, -_although it be by the dint of the sword_. - -Richard II. in the first year of his reign, advised with the peers and -_Commons_, How he should best resist his enemies? In the second year, -he consulted his _people_ how to withstand the Scots; who had combined -against him with France. In the sixth year, he consulted the parliament -about the defence of the borders; his possessions beyond sea, _Ireland_ -and _Gascoyne_, his subjects in _Portugal_, and safe keeping of the -seas; and whether he should proceed by treaty or alliance, or the duke -of Lancaster by force? The lords approved the duke’s intention for -Portugal; and the _Commons_ advised, that Thomas bishop of Norwich, -having the Pope’s _croiceris_, should invade France. In his fourteenth -year, this prince advised with the lords and _Commons_ for the war with -Scotland, and would not, without their counsels, conclude a final peace -with France. And the year ensuing the _Commons_ interested the king to -use moderation in the law of provisions, and proposed that the duke of -Aquitaine should be employed to negotiate the peace with France. - -With regard to the power of the _Commons_ as to _judicature_ in the -times of which we speak, there are not wanting decisive proofs. In the -reign of Edward II. the peers and _Commons_ gave consent and judgment -to the revocation and reversement of the sentence of banishment of the -two Spencers[B]. In the first year of Edward III. when _Elizabeth_ the -widow of _Sir John de Burgo_ complained in parliament, that Hugh Spencer -the younger, Robert Baldock and William Cliffe his instruments, had -by duress forced her to make a writing to the king, in consequence of -which she was despoiled of her inheritance, sentence was given for her -by the prelates, lords and _Commons_. In the 4th year of Edward III. it -appears by a letter to the pope, that to the sentence given against the -earl of Kent, the _Commons_ were parties as well as the peers, for the -king directed their proceedings in these words: _Comitibus, magnatibus, -baronibus, et aliis de COMMUNITATE dicti regni ad parliamentum illud -congregatis injunximus, ut super his discernerent et JUDICARENT quod -rationi et justiciæ conveniret_. When in the first year of Richard -II. William Weston and John Jennings were arraigned in parliament for -surrendering certain forts to the king; the _Commons_ were parties to -the sentence against them, as appears from a writing annexed to the -record. In the first year of Henry IV. although the _Commons_ refer by -protestation, the pronouncing the sentence of deposition against King -Richard II. to the lords, yet they were equally interested in it, as is -evident from the record; for there were made proctors or commissioners -for the whole parliament, one bishop, one earl, one abbot, one baronet, -and two knights. “And to infer, says a learned and accurate author[C], -that because the lords pronounced the sentence, the point of judgment -should be only theirs, were as absurd as to conclude that no authority -was left in any other commissioner of _oyer and terminer_ than in the -person of that man solely that speaketh the sentence.” In the second year -of Henry V. the petition of the Commons imported no less than a _RIGHT to -act and assent to all things in parliament_; and the king allowed that -they possessed this right. - -These examples of the importance of the people are striking; and they are -supported by the authority of the parliament-rolls, or by records above -exception. The curious reader may see them, and other proofs to the same -purpose, in the posthumous pieces of Sir Robert Cotton. - - [A] In his history of this prince, Mr Hume has the following - very strange assertion: “The Commons, though now an estate in - parliament, were yet of so little consideration, _that their - assent was never demanded_.” Vol. II. p. 139. - - [B] The share the _Commons_ had in this act, Sir Robert Cotton - authenticates from the parliament rolls. _Cottoni posthuma, p. - 348._ Yet Mr Hume, in the most positive terms, denies that the - _Commons_ had any concern in it. Vol. 2. p. 140. - - [C] Sir Robert Cotton. - -[28] _Hale, hist. of the com. law, ch. vii._ It has been sometimes -insisted upon, that much improvement was brought to England by the canon -and civil laws. I cannot, however, but imagine, that these laws, have, on -the whole, been rather attended with disadvantage. For tyrannical maxims -do not suit a limited government. They may have assisted, indeed, the -invention, and extended the views of some lawyers; but they have filled -the heads of more with illiberal prejudices. - -[29] The reader, who is desirous of seeing proofs of the consideration -of the people during the wars between the Houses of York and Lancaster, -may consult Cotton’s abridgment of the records; and Bacon on the laws and -government of England. Part II. - -[30] In the year 1546, there were 126 boroughs that returned members to -parliament; and the greatest number of these were wealthy and populous. -_Brown Willis, notit. parliam. vol. I._ In the reign of Edward VI. 23 new -boroughs were summoned to send burgesses to parliament. Philip and Mary -added 13 more, Elizabeth 30, James the 2 universities and 12 boroughs, -Cha. I. 8 boroughs, and Cha. II. the county of Durham and 2 boroughs. -_Ellys on temporal liberty._ Anciently the king might incorporate any -town, and enable it to send burgesses to parliament; but this privilege -remains not at present with the crown. If the king was now to venture on -the creation of a parliamentary borough, it would rest with the house of -commons whether they would receive the members. - -[31] “As for her government, says a great authority, I assure myself I -shall not exceed, if I do affirm, that this part of the island never had -45 years of better times; and yet not all through the calmness of the -season, but through the wisdom of her regiment.” _Lord Bacon._ - -[32] “She loved not to be tied, but would be knit unto her people. Of -13 parliaments called during her reign, not one became abortive by -unkindness; and yet not any one of them passed without subsidy granted by -the people, but one wherein none was desired. And sometimes the aid was -so liberal, that she refused the one half, and thanked the people for the -remnant; a courtesy that rang loud abroad, to the shame of other princes. -She never altered, continued, repealed, nor explained any law, otherwise -than by act of parliament, whereof there are multitudes of examples -in the statutes of her reign.” _Nat. Bacon, Discourse on the laws and -government of England, part 2._ - -I do not mean to say, that Elizabeth, and the princes who preceded her, -never acted against the spirit of our government. Her reign, and those -of many of her predecessors, were doubtless stained with bold exertions -of authority. But bold exertions of authority must not be interpreted -to infer despotism in our government. We must separate the personal -qualities of princes, and the principles of the constitution. The -government of England, and the administrations of its chief magistrates, -are very different things. - -[33] _Hume, Hist. of England, vol. V. p. 462._ This historian, the most -accomplished, perhaps, who has written in modern times, has attempted -to vindicate both James and Charles; but he has done nothing more than -to produce evidence to shew, that in some respects they acted from -precedents of administration in former princes; and this, if taken even -in the fullest extent, is insufficient to justify them. Charles, however, -it will be allowed, exceeded every violation of liberty, of which there -had been any example; and when he had consented to reduce the exorbitancy -of the regal power, his conduct created a suspicion of his sincerity. -But on the supposition that he did not advance his authority beyond the -practice of former times, he is not therefore to be vindicated. It is no -exculpation of a crime in one individual, that it has been committed by -others. The advantages of a free government belonged to the people of -England; and they were the proper judges when to enforce their privileges -against an invader. They might pardon in one sovereign what they would -punish in another. They might overlook in Elizabeth what they did not -wish to excuse in Charles. The doctrine of resistance is delicate. In a -free constitution, like that of which we speak, the prince and the people -will often fall into situations where they seem to encroach, or actually -do so, on the rights of one another. But it is never on slight grounds -that the people will be prevailed upon to take arms against their chief -magistrate. After all, had England been an absolute monarchy, Was it -thence proper and just that it should remain in that situation? There are -rights which it is impossible that men can either lose or forfeit. No -authority and no precedent, no usage and no law, can give a sanction to -tyranny. - -[34] Lord Clarendon applies to him, with great propriety, what was said -of Cinna, _ausum eum, quæ nemo auderet bonus; perfecisse, quæ a nullo, -nisi fortissimo, perfici possent_. - -[35] Bill of rights, toleration act, act of settlement. - -[36] L’Esprit des Loix, Liv. xi. ch. 3. - -[37] Plut. Vit. Lycurg. - -[38] Spencer, Dissert. de ratione Leg. Usuram prohibentis. - -[39] Lindenbrogius, codex legum antiquarum. - -[40] Conringius de Antiquitatibus Academicis. Bruckerus, Hist. Philos. -Giannone’s hist. of Naples, lib. 1. chap. 10. § 1. and 11. lib. 11. chap. -6. § 1. - -[41] Præfat. ad Glossar. - -[42] P. 55. - -[43] Corvini jus feudale. - -[44] See Craig, de Feud. lib. 1. dieg. 5. and Selden’s Titles of Honour, -part second, chap. 1. § 23. Basnage, Coutume reformée de Normandie, tom. -1. p. 139. - -[45] Selden. Ibid. Craig, lib. 1. dieg. 5. - -[46] This Emperor, says Lampridius, gave the territories gained on the -frontiers, limitaneis ducibus et militibus, ita ut eorum essent si -hæredes illorum militarent, nec unquam ad privatos pertinerent; dicens -attentius eos militaturos si etiam sua rura defenderent. Addidit sane -his et animalia et servos; ut possent colere quod acceperunt, ne per -inopiam hominum vel per senectutem possidentium defererentur rura vicina -barbariæ, quod turpissimum esse dicebat. See also Molin. in consuet. -Paris. tit. 1. de Fiefs, and Loyseau, des Off. lib. 1. chap. 1. - -[47] De bell. Gall. lib. 4. chap. 22. - -[48] Montesquieu, L’esprit des loix, liv. 30. chap. 2. and 6. - -[49] Lib. Feud. 1. tit. 1. - -[50] L’esprit des loix, liv. 31. chap. 31. - -[51] Tacitus de moribus Germanorum. Cæsar de bell. Gall. lib. 6. - -[52] Servis, non in nostrum morem descriptis per familiam ministeriis -utantur. Suam quisque sedem, suos penates regit. Frumenti modum dominus, -aut pecoris, aut vestis, ut colono injungit; et servus hactenus paret. -Tacit. de mor. Germ. cap. 25. - -[53] De mor. Germ. cap. 24. - -[54] De mor. Germ. cap. 11. - -[55] Ibid. cap. 7. - -[56] L’esprit des loix, liv. 31. - -[57] Mably, Observations sur l’histoire de France, liv. 1. cap. 3. - -[58] De mor. Germ. cap. 13. and 14. - -[59] L’Esprit des loix, liv. 31. - -[60] De mor. Germ. cap. 7. 12. and 14. - -[61] Ibid. cap. xi. - -[62] Muratori, Antiq. Ital. vol. 4. p. 160. et Seq. Mably, Observations -sur l’histoire de France, tom. 2. p. 96. et Seq. Madox, Firma Burgi, cap. -1. sect. 9. - -[63] Tacit, de mor. Germ. c. 13. Spelman’s Glossary, voc. Miles. - -[64] Tacit, de mor. Germ. cap. 12. - -[65] Hi cuique sanctissimi testes, hi maximi laudatores. Tacit. de m. G. -c. 7. Consult also c. 5. and c. 18. - -[66] It is to be wished, that our ingenious Professor had here entered -more at large into the history of property in land. The subject is -important and little understood. The conceptions entertained by the -antient inhabitants of Germany and Gaul concerning property have -been explained and illustrated in a book, intituled, “An Historical -Dissertation concerning the Antiquity of the English Constitution.” The -author of this treatise seems to be the first who has remarked that land -is originally the property of nations, and has attempted to account for -the manner in which it comes to descend to individuals. See his Dissert. -part 1. sect. 3. See also Professor Millar’s valuable work on the -Distinction of Ranks in Society, p. 165. et seq. 2d edition. - -[67] Cæsar, de bell. Gall. lib. 4. c. 1. Lib. 6. c. 22. Tacit. de mor. -Germ. c. 26. - -[68] Du Cange, Glossarium voc. Juramentum. Georgisch, corp. juris -Germanici antiqui. - -[69] Spelman, Gloss. voc. Lada et Ladare. Struv. Hist. jur. criminal. -sect. 9. - -[70] L’Esprit des loix, liv. 28. ch. 17. - -[71] Georgisch, corp. juris Germanici antiqui, p. 347. and p. 368. - -[72] Du Cange, Gloss. voc. Duellum. Spelman, voc. Campus. Selden’s -Duello, or Treatise on Single Combat, ch. 5. - -[73] Georgisch, corp. juris Germanici antiqui, p. 980, 1063, 1223, 1267, -1270. - -[74] Selden, Analecta Anglo-Britannica, lib. 2. cap. 8. - -[75] Brady’s Hist. of England, p. 65. - -[76] Mr Barrington has remarked, that “the last trial by battle in -England was in the time of Charles I. and that it did not end in the -actual combat.” Observations on the Statutes, 3d edition, p. 202. The -last instance which occurs of the judicial combat in the history of -France, was the famous one between M. Jarnac and M. de la Chaistaignerie, -A. D. 1547. Dr. Robertson’s Charles V. vol. 1. p. 298. - -[77] Tacit. de mor. Germ. cap. 12. and 25. - -[78] Lindenbrog. Cod. Leg. Antiq. p. 1404. Tacit. de mor. Germ. c. 21. -LL. Wal. by Wotton, p. 192. 194. LL. Anglo-Saxon, ap. Wilkins, p. 18. 20. -41. Hickes. Dissert. Epist. p. 110. Georgisch, corpus jur. Germ. antiq. - -[79] Montesquieu on the Rise and Decline of the Roman Empire. Dr. Geddes, -in his Tract concerning the Nations which overturned the Empire of the -Romans, p. 21.-26. - -[80] Selden’s titles of honour, part 1. chap. 5. § 1. - -[81] Procop. de bel. Goth. ap. script. Byz. Jornandes, Paulus -Warnefridus, Gregory of Tours. Mably, observations sur l’histoire de -France, tom. 1. chap. 1. - -[82] Giannone’s hist. of Naples, lib. II. cap. 4. - -[83] Bouquet, le droit public de France, èclairci par les monuments de -l’antiquité, p. 6.-10. Montesquieu, l’Esprit des loix, liv. 30. chap. 6, -7, 8, 9. - -[84] Reliq. Spelm. p. 2.-7. - -[85] Potgiesser, de stat. servorum, lib. 2. cap. 1. Montesquieu, l’Esprit -des loix, liv. 30. chap. 14. Du Cange, voc. Servus. - -[86] Spelman reliq. 12, 14, 248. Muratori antiq. Ital. vol. 5. p. 712. - -[87] Brussel, usage des fiefs, liv. 2. Selden’s tit. of honour, part 2, -cap. 1. § 23. and § 33. - -[88] Mably, observations sur l’histoire de France, liv. 1. chap. 5. and 6. - -[89] Gregor. Turonen. lib. 2. cap. 27. Usage des fiefs, par Brussel, liv. -2. cap. 6. Dissertation on the antiq. of the English constitution, part -3. § 2. - -[90] Lib. feud. 1. tit. 1. Hume appendix, 2. Dalrymple, Essay on feudal -property, cap. 5. § 1. - -[91] Coke on Littleton, lib. 2. chap. 4. - -[92] Montesquieu, l’Esprit des loix. liv. 30. chap. 13. Du Cange, voc. -Alod. Schilteri Thesaur. voc. Alod. - -[93] Heinnec. Elem. jur. Germ. lib. 3. § 26. Selden’s tit. of hon. part -2. chap. 1. Spelman, voc. Comites. - -[94] Ripuar. L. L. tit. de diversis interfectionibus, p. 160, 161. ap. -Georgisch, corp. jur. Germ. Du Cange, voc. Faida. - -[95] Bacon’s Discourse on the Laws and Government of England, p. 11.-27. -Monast. Anglican, passim. Mezeray, abr. chronol. tom. 1. p. 172. - -[96] Montesquieu, l’Esprit de Loix, liv. 30. chap. 21. liv. 31. chap. 9. -10. 11. - -[97] Lib. 1. Feud. tit. 1. Hanneton, de jur. feud. p. 139. Du Cange, voc. -Fideles et Fidelitas. - -[98] Mably, Observations sur l’histoire de France, liv. 1. chap. 6. Du -Cange voc. Beneficium. - -[99] Spelman’s Gloss. voc. Feodiem. Dalrymple on Feudal-Property, chap. -1. Hume, Append. 2. - -[100] Du Cange, voc. Investitura. Spelman, voc. Pares Curiæ. Craig de -feud. lib. 2. dieg. 2. - -[101] Bracton, lib. 2. cap. 17. Spelman, voc. Fidelitas, et Seisina. -Fleta, lib. 3. cap. 15. - -[102] Spelman, Gloss. p. 266. Feud. lib. 2. tit. 6. Littleton, lib. 2. -chap. 2. Basnage, contume reformée de Normandie, tit. Des fiefs et droits -Feodaux, art. 107. - -[103] Coke on Littleton, book 2. chap. 1. Du Cange, voc. Vassaticum. -Wright on tenures, p. 55, 56. - -[104] Feud. lib. 2. tit. 23. and 24. Dalrymple on Feud. property, chap. -2. Wright on tenures, p. 72. - -[105] Madox, Antiquities of the Exchequer, vol. 1. p. 653. Coke on -Littleton, lib. 2. chap. 2. - -[106] Du Cange, voc. Auxilium. Madox, Antiq. Excheq. chap. 15. - -[107] Feud. lib. 2. tit. 25. - -[108] Bracton, lib. 3. p. 130. Spelm. voc. Escheata. Glanville, lib. 7. -cap. 17. Dalrymple on feud. property, p. 62. Ed. 1757. Hengham Parva, -chap. 6. Coke on Littleton, b. 1. chap. 1. - -[109] Craig, de feud. lib. 2. dieg. 207. - -[110] Craig, de feud. lib. 1. dieg. 11. and 12. - -[111] Ibid. - -[112] Ibid. - -[113] Reliq. Spelm. p. 3, 7, 33, 43. Gervas. de Tilb. Dialog. de Scaccar. -lib. 1. cap. 7. Madox, Antiq. Excheq. vol. 1. p. 272. - -[114] Fortescue de Laud. leg. Angl. p. 99. Ed. 1737. Coke on Littleton, -b. 2. chap. 7. - -[115] Carte, hist. of England, vol. 2. p. 169. The reign of Edward I. in -Kennet’s collect. of English historians, p. 197. - -[116] Coke on Littleton, lib. 2. chap. 8. Madox, Antiq. Excheq. vol. 1. -p. 321, 326. - -[117] Madox, hist. of Excheq. vol. 1. p. 51. - -[118] Ib. p. 40. 41. - -[119] Ib. p. 43. - -[120] It may not be improperly remarked in this place, that about the -18th year of Henry II. Geoffrey Martell held in England the office or -serjeanty of Pincernaria, or Butlership. See Madox, hist. Excheq. vol. 1. -p. 50. - -[121] Lib. 2. cap. 9. - -[122] Feud. lib. 1. tit. 8. - -[123] Brussel, usage des Fiefs, tom. 1. p. 41. Du Cange, voc. Cavena and -Canava. - -[124] Spelman, and Du Cange, voc. Camera, et voc. Feudum. Craig, de Feud. -lib. 1. Dieges. 10. - -[125] Du Cange, voc. Soldata, et voc. Feudum. ædificii. - -[126] Coke on Littleton, lib. 2. chap. 4. - -[127] Du Cange, voc. Gastaldus. - -[128] Gibson, Cod. Jur. Eccles. Anglican, tit. 23. - -[129] Montesquieu, l’Esprit de Loix, liv. 31. chap. 11. Bacon, hist. and -polit. disc. on the laws and government of England, ch. 59. Inett’s hist. -of the English Church, vol. 2. ch. 2. - -[130] Gibson, Cod. Jur. Eccles. Anglican. tit. 23. - -[131] Ibid. - -[132] Ibid. and tit. 30. - -[133] Gibson, Cod. Jur. Eccles. Anglican, tit. 34. - -[134] Gibson, tit. 1. and 2. - -[135] Father Paul on beneficiary matters, ch. 2. and ch. 6. Selden’s -history of tithes, ch. 4. sect. 1. Spelm. larger work of tithes, ch. 6. - -[136] Selden’s hist. of tithes, ch. 6. and 7. Spelm. larger work of -tithes, ch. 29. - -[137] De non temerand. Eccles. tract. Spelm. p. 3. - -[138] Montesquieu, l’Esprit des loix. liv. 31. chap. 12. Selden of -tithes, ch. 7. Father Paul of benefices, ch. 11. - -[139] Father Paul of benefices, ch. 14. - -[140] Giannone’s hist. of Naples, b. 19. chap. 4. § 2. - -[141] Selden on tithes, chap. 8. Bacon, hist. and polit. disc. on the -Laws and Government of England, chap. 59. L. l. Angl. Sax. ap. Wilkins. - -[142] Brady, Appendix to his hist. p. 15. Carte, hist. of England, vol. -1. p. 441. - -[143] Selden on tithes, chap. 14. - -[144] Carte’s hist. of England, vol. 3. p. 135, 143, 148, 149. Lord -Herbert’s life and reign of Henry VIII. p. 186. et seq. ap. Kennet. - -[145] Gibson, Cod. Jur. Eccles. Anglican. tit. 35. Hume, vol. 1. p. 51. - -[146] Wood, Institute of the Laws of England, fol. 161. et seq. - -[147] Madox, Baronia Angl. - -[148] 4. Instit. 268. Scroggs of Courts Baron, p. 56. - -[149] Coke on Littleton, lib. 2. chap. 12. § 215. - -[150] Madox, Antiquities of the Excheq. vol. 1. p. 652. - -[151] Coke on Littleton, lib. 2. chap. 12. - -[152] Ibid. - -[153] Coke, ut supra. - -[154] Madox, Antiq. of the Excheq. chap. 13. The Statutes at Marlebridge, -ap. Ruffhead, vol. 1. p. 30. - -[155] Ruffhead, vol. 1. p. 37. - -[156] Glanvil, lib. 9. c. 8. lib. 10. c. 3. lib. 11. c. 4. - -[157] Houard, Anciennes loix des François conservées dans les coutumes -Angloises, tom. 1. p. 32. et seq. Craig, lib. 1. dieg. 4. - -[158] Bracton, lib. 2. c. 36. Hume, append. 2. Du Cange, voc. relevium. -Spelman, voc. relevamen. Reliq. Spel. p. 32, 33. - -[159] Fleta, lib. 3. c. 77. Feud. lib. 1. tit. 1. Dalrymple on feudal -property, ch. 5. Madox, antiq. of the Exchequer, ch. 10. § 4. - -[160] Wright on tenures, p. 95. 96. - -[161] LL. Hen. 1. c. 1. - -[162] Lib. 9. c. 4. - -[163] Madox, antiq. of the Exchequer, ch. x. - -[164] Ruffhead, vol. 1. p. 2. - -[165] Bracton, lib. 2. fol. 86. - -[166] Montesquieu, l’Esprit de Loix, liv. 31. chap. 1. - -[167] St. Amand on the legislative power of England, p. 27. Montesquieu, -l’Esprit des loix, liv. 31. ch. 8. Dr Robertson’s Charles V. vol. 1. p. -222. - -[168] Mably, observations sur l’histoire de la France, tom. 1. l. 1. ch. -5. and 6. Montesquieu, l’Esprit des loix, liv. 31. ch. 9. - -[169] Spelman on feuds and tenures. Mably, observations sur l’histoire -de France, tom. 1. l. 2. ch. 3, 4, 5, 6. Montesquieu, l’Esprit des loix, -liv. 31. ch. 28, 29, 30, 31. Houard, anciennes loix des François, liv. 1. -ch. 1. Basnage, coutume de Normandie, tom. 1. p. 146. - -[170] See the authorities quoted above, and Selden’s titles of honour, -part 2. chap. 5. - -[171] Coke on Littleton, lib. 2. ch. 1. - -[172] Houard, anciennes loix des François, liv. 2. ch. 1. Du Cange, voc. -Hominium. Spelman, voc. Homagium. - -[173] Wright on tenures, p. 154. et seq. Dalrymple on feudal property, -chap. 2. § 2. Millar on the distinction of ranks in society, second edit. -p. 215. - -[174] Wright on tenures, p. 172. - -[175] Coke on Littleton, lib. 3. chap. 13. - -[176] Houard, anciennes loix des François, liv. 3. chap. 13. Coke, ut -supra. - -[177] Wright on tenures, p. 168, 169. - -[178] Wright on tenures, p. 186. - -[179] Fortescue de laud. leg. Angliæ, cap. 44. Glanvil, lib. 2. chap. 9. -Spel. reliq. p. 25, 26. Du Cange, voc. Warda. - -[180] Craig, de feud. lib. 2. dieg. 20. Wright on tenures, p. 86. et -seqq. Dalrymple on feud. property, chap. 2. § 2. - -[181] Ruffhead’s Statutes, p. 2, 3. Basnage, Coutume de Normandie, tit. -des gardes. - -[182] Coke on Littleton, lib. 2. ch. 5. sect. 123. Houard, anciennes loix -des François, liv. 2. ch. 5. - -[183] LL. Henry 1. c. 1. Bracton, lib. 2. c. 37. sect. 6. Craig, de feud. -lib. 2. Dieges. 21. Du Cange, voc. Maritagium. Glanvil, liv. 7. c. 12. - -[184] Wright on tenures, p. 97. - -[185] Ruffhead’s statutes, fol. p. 19. - -[186] Ibid. p. 6. - -[187] Coke’s institutes, part 2. p. 440. Ruffhead, vol. I. - -[188] 32 Henry VIII. c. 46. 12 Car. II. - -[189] Craig, de feud. lib. 2. Dieges. 13. Dalrymple on feudal property, -ch. 5. sect. 1. - -[190] Craig de feud. lib. 2. dieges. 14. - -[191] Basnage, coutume de Normandie, tit. De partage d’heritage. LL. Hen. -1. 70. - -[192] Dalrymple on feud. property, chap. 5. § 1. Hume, appen. 2. - -[193] Hale’s hist. of the common law, chap. 5. Bacon’s hist. and polit. -discourse on the laws and government of England, part 1. chap. 45, 55, -and 56. - -[194] Id. chap. 57. See also Tyrrel’s history, and Kennet’s historians. - -[195] Glanvil, lib. 7. cap. 3. Craig de feud. lib. 2. dieges. 15. -Dalrymple on feudal property, chap. 5. § 2. - -[196] Lib. Feud. 2. tit. 12. - -[197] Lindenbrogius, cod. leg. antiq. p. 679. - -[198] Dalrymple on feud. property, chap. 5. - -[199] Craig. de feud. lib. 2. dieges. 14. - -[200] Hale, hist. com. law, chap. 9. - -[201] Giannone’s hist. of Naples. Selden’s tit. hon. part 2. chap. 9. - -[202] Bouquet, le droit public de France, p. 30.-36.—Allodium, proprietas -quæ a nullo recognoscitur. Tenere in allodium, id est, in plenam et -absolutam proprietatem. Habet integrum ac directum dominium quale à -principio de jure gentium fuit distributum et distinctum. Du Moulin, de -l’ancienne coûtume de Paris, art. 46. - -[203] Dalrymple on feud. property, ch. 3. sect. 1. - -[204] Lib. 4. feud. tit. 34. Ruffhead’s statutes, v. 1. p. 122. - -[205] Gibson, cod. jur. eccles. Anglican, tit. 28. - -[206] Kennet’s collection of historians, vol. 1. p. 116. Carte, hist. of -England, vol. 1. p. 469. 555. - -[207] Hume, hist. of England, vol. 1. - -[208] LL. Hen. 1. cap. 70. - -[209] Lib. 7. c. 1. - -[210] Glanvil, ut supra. Ruffhead’s statutes, vol. 1. p. 8. - -[211] Britton, c. 18. Wright on tenures, p. 163. 164. - -[212] Staunford, de prerog. Reg. cap. 7. - -[213] An. 27. Hen. VIII. cap. 10. ap. Ruffhead, vol. 2. p. 226. - -[214] Madox, hist. of Exchequer, ch. 17. Firma burgi. - -[215] Du Cange, et Spelman, voc. Tallagium. Madox, antiq. of the -Exchequer, ch. 17. - -[216] Hume’s hist. of England, appendix 2. Madox, Firma burgi, ch. 1. - -[217] Ruffhead, vol. 1. p. 115. - -[218] An. 13. Ed. I. c. 18. apud Ruffhead, append. - -[219] An. 23. Henry VIII. cap. 6. ap. Ruffhead, vol. 2. p. 167. - -[220] An. 13. Eliz. c. 7. An. 1. James I. cap. 15. 21. James I. cap. 19. -5. George II. c. 30. - -[221] Coke on Littleton, book 1. chap. 2. § 13. - -[222] Wright on tenures, p. 186. et seq. - -[223] Coke’s institutes, part 2. p. 332. Ruffhead, vol. 1. p. 79. - -[224] Coke’s institutes, part 2. p. 336. - -[225] Hume’s hist. of England, vol. 1. Carte’s hist. 382, 383, 384, 420. -Brady’s hist. append. - -[226] Selden, tit. hon. part 2. chap. 5. § 3. - -[227] Ibid. § 8. and 9. - -[228] Coke on Littleton, lib. 3. chap. 13. § 703, 709. - -[229] Lib. 3. chap. 13. § 720. - -[230] Saintgerman, cap. 50. - -[231] Bacon, voc. Fine and Recovery. An. 4. Hen. VII. c. 24. ap. -Ruffhead, vol. 2. p. 79. - -[232] An. 32. Hen. VIII. c. 36. ap. Ruffhead, vol. 2. p. 296. - -[233] Ruffhead, vol. 2. p. 216. - -[234] Hottoman. Franco-Gall. Boulainvilliers on the antient parliaments -of France. Fortescue de laud. leg. Angl. cap. 34. 36. - -[235] Craig, de feud. lib. 1. dieges. 16. Du Cange voc. Dominicum. - -[236] Madox, hist. Excheq. Carte’s hist. of England, vol. 1. p. 423. - -[237] Carte, ibid. Hume, append. 2. Madox, antiq. of the Excheq. passim. - -[238] Firma Burgi, ch. 4. 5. 11. - -[239] Bibliotheca politica, Dial. 5. and 10. - -[240] Biblioth. polit. 320. 330. 333. 339. 356. 357. 370. - -[241] L’Esprit des loix, liv. 11 chap. 6. - -[242] Asser, de Gestis Alfredi. Tyrrel, gen. introduct. to the hist. of -England. - -[243] Lib. 3. cap. 9. fol. 107. - -[244] Giannone’s hist. of Naples, lib. 11. chap. 2. Hume’s hist. of -England, vol. 2. p. 441. - -[245] Dissertatio Seldeni ad Fletam, cap. 7. - -[246] Bacon, hist. and polit. discourse on the laws and government -of England, part 2. ch. 1. and 2. The reign of Rich. II. in Kennet’s -collection of historians. - -[247] Hume’s hist. of England, vol. 2. - -[248] Camden’s reign of Elizabeth, passim. - -[249] Wilson’s life and reign of James I. ap. Kennet. - -[250] Bibliotheca politica, dial. 11. Bacon, hist. and political -discourse, part 1. chap. 64. - -[251] Madox, Antiq. of the Exchequer, vol. 1. p. 197, 198. Baronia -Anglica, book 1. chap. 1. Spelman, voc. Baro. - -[252] Brady’s introduction, in append. Baronia Anglica, p. 33. - -[253] Selden’s titles of honour, part 2. chap. 5. Baronia Anglica, book -1. chap. 2. - -[254] Camden, Britan. p. 122. - -[255] Selden, tit. Honour, part 2. chap. 5. § 21. - -[256] Baronia Anglica, book 2. chap. 1. Selden’s tit. Hon. part 2. chap. -5. § 22. - -[257] Coke on Littleton, lib. 2. chap. 8. § 159. Baronia Anglica, p. 164. -et seq. - -[258] Coke on Littleton, p. 166. St. Amand on the legislative power of -England, p. 193. - -[259] Selden, tit. Hon. part 2. chap. 5. § 27. and 28. - -[260] Camden’s Introd. to his Britan. p. 234. et seq. Baronia Anglica. -Selden, tit. hon. part 2. chap. 5. § 29. 30. 31. - -[261] Selden, tit. hon. part 2. ch. 1. - -[262] Du Bos, hist. critique de L’etablissments de la monarchie -Françoise, tom. 3. 497, &c. Mascou’s hist. of the antient Germans, b. 16. -§ 36. - -[263] Spelman’s treatise of Feuds and Tenures. - -[264] Selden, tit. hon. part 2. ch. 5. - -[265] Selden, tit. hon. part 2. ch. 5. § 10. - -[266] Baronia Anglica, p. 150, et seq. Selden, tit. hon. part 2. chap 5. -§ 8. Bacon, hist. and polit. discourse on the laws of England, part 1. -ch. 29. - -[267] Coke on Littleton, lib. 2. § 135. Selden, tit. hon. part 2. ch. 5. -§ 19. - -[268] Robertson’s hist. of Scotland, book 1. p. 68. Essays on Brit. -Antiq. Ess. 2. - -[269] Gibson, cod. jur. eccles. Angl. vol. 1. p. 143. - -[270] Privileges of the Baronage, by Selden, ch. 2. p. 1537 of the -edition of his works by Wilkins. Coke’s institute, second part, p. 49. -and 50.; third part, p. 26.-31. - -[271] Spelman, voc. Armiger. Du Cange, voc. Armigiri. - -[272] Selden, tit. hon. part 2. ch. 5. § 33. Camden’s introd. to his -Britan, 242. - -[273] Selden, tit. hon. part 2. ch. 5. § 39. - -[274] Spelm. reliq. dissert. de milite. Coke’s inst. part 2. p. 593. - -[275] Selden, tit. hon. part 2. ch. 5. § 46. Cotton’s posthumous works. - -[276] Madox, Firma Burgi, ch. 1. - -[277] Madox, Firma Burgi, ch. 2. Ruffhead, vol. 1. p. 4. - -[278] Ruffhead, vol. 1. p. 156. - -[279] Gurdon’s history of Parliament. Tyrrel’s introduction to his -history. L. L. Anglo Saxon, ap. Wilkins. - -[280] History of the common law of England, p. 107. - -[281] Biblioth, polit. dial. 6, 7, 8. Hume, vol. 1. - -[282] Ruffhead, vol. 1. p. 544. - -[283] Spelman, voc. Parlamentum. Hales on Parliaments. Ellys on Temporal -Liberty. - -[284] Elsringe, on the method of passing bills in Parliament. Gurdon’s -hist. of Parliament. - -[285] Ruffhead’s preface to the statutes. - -[286] Kennet’s English Historians, vol. 2. p. 587, 606. Carte, vol. 2. p. -828. Hume, vol. 2. and 3. - -[287] Lord Bacon’s life of Henry VII. ap. Kennet, vol. 2. p. 612. - -[288] Irish statutes, vol. 1. p. 23. Coke, 4. instit. chap. 76. - -[289] Irish Statutes, p. 48. - -[290] Irish Stat. vol. 1. p. 143. - -[291] Coke on Littleton, lib. 2. ch. 11. § 172. - -[292] Bracton, lib. 4. cap. 28. - -[293] Reliq. Spelm. 251. Barington on the statutes 270. et seq. Gurdon’s -hist. of Court-Baron and Court-Leet, p. 573. - -[294] Coke on Littleton, lib. 2. chap. 11. - -[295] Lib. 2. § 194. - -[296] Littleton, § 187, 188. - -[297] Littleton, § 174. - -[298] Coke on Littleton, lib. 2. ch. 11. - -[299] Cap. 42. - -[300] Wilkins, Leg. Anglosax. - -[301] Formulare Anglicanum, tit. Grants and Manumissions of Villeins. - -[302] Hickes. dissert. epist. p. 13. et seq. Brady’s hist. p. 82. -Fitzherbert’s natura brevium, p. 187, 189, 190. Cowell’s interpreter, -voc. copiehould. Coke on Littleton, lib. 2. chap. 11. - -[303] Carte, hist. of England, vol. 2. p. 844. 845. 846. - -[304] Fitzherbert’s natura brevium, p. 28. Kitchen on Courts. - -[305] Coke on Littleton, lib. 1. chap. 8. - -[306] Madox, Hist. of the Excheq. vol. 1. p. 295. Cowell’s Interpreter, -voc. Demaine. Spel. Gloss. voc. Dominicum. - -[307] Bacon’s discourse on the Laws and Government of England, part 1. -chap. 16. - -[308] Tyrrel’s general Introduction to his Hist. of England. Hume, -append. 1. - -[309] Spelm. Gloss. voc. Comitatus, hundredus, et trithinga. Tyrrel’s -introduction to his Hist. Carte’s Hist. vol. 1. p. 310. Spelm. life of -Alfred. Gurdon’s Hist. of Court Baron and Court Leet. - -[310] Gurdon’s hist. of Court Baron and Court Leet. Cowel’s Interpreter, -voc. Frank-pledge. Bacon’s Discourse on the Laws and Government of -England, part. 1. chap. 23. - -[311] Bacon, chap. 24. - -[312] Bacon’s discourse on the Laws and Government of England, chap. 25, -26. - -[313] Dugdale’s Origines Juridiciales, chap. 9, 10, 11, 12, 13, 14, 15. - -[314] Madox, Hist. of Exchequer, chap. 1. - -[315] Madox, Hist. Excheq. Dalrymple on Feudal Property, ch. 7. § 1. - -[316] Dugdale, orig. Jurid. ch. 25. 26. Nicholson, præfat. ad leg. Anglo. -Sax. Du Cange, voc. Duellum et Juramentum. Spel. voc. Campus et Judicium -Dei. Muratori antiq. Ital. Dissertat. 38. - -[317] Stiernhook de jure vetusto Sueonum et Gothorum. c. 4. Dissert. on -the antiquity of the English Constitution, part. 4. § 4. - -[318] Mirroir des Justices, chap. 2. - -[319] Tacit. de Mor. Germ. c. 21. L. L. Wal. p. 192. 194. L. L. Anglo, -Sax. ap. Wilkins p. 18. 20. 41. Hickes. dissert. Epist. p. 110. -Lindenbrog, p. 1404. - -[320] Selden’s tit. of Hon. part 2. ch. 5. Hume, vol. 1. - -[321] 1 Inst. 76. Bacon on the Government of Engl. p. 75. Saltern de -antiq. leg. Brit. c. 8. - -[322] Spelman on Feuds and Tenures. ch. 6. - -[323] Taylor and Somner on Gavelkind, and Harris in his Hist. of Kent, p. -457. - -[324] Spel. gloss. voc. Burghbote et Brughbote. - -[325] Tyrrel’s Introd. p. 120. Spel. Reliq. p. 22. - -[326] Dr. Brady’s Glossary to his Tracts, p. 3. Spelman on Feuds and -Tenures, p. 17. and 18. - -[327] Madox, Hist. of the Exchequer, vol. 1. chap. 10. § 4. - -[328] Spelm. on Feuds and Tenures, chap. 21. - -[329] Wright on tenures, chap. 2. - -[330] Hale’s hist. Com. Law, chap. 5, and 7. - -[331] Bacon’s hist. and polit. discourse, chap. 44, 45. &c. Tyrrel’s hist. - -[332] LL. Anglo Saxon, ap. Wilkins, p. 228. Wright on tenures, p. 66. - -[333] P. 69. - -[334] LL. Anglo. Saxon. ap. Wilkins. Wright on tenures, p. 72. - -[335] Madox, Baronia Angl. p. 25. Seld. tit. hon. part 2. ch. 5. - -[336] Dugdale’s orig. jurid. c. 34. Madox, hist. of Excheq. ch. 2. La -coutume de Normandie. - -[337] Baron Gilbert’s hist. of Excheq. p. 55. Lord Littleton’s hist. of -Henry II. 4to. vol. 1. p. 43. 457. Carte, vol. 1. p. 419. 420. - -[338] Madox, Excheq. ch. 1. Bacon on the laws and government of England, -part 1. ch. 59. and 66. Brady, Carte and Tyrrel. - -[339] Hale, hist. com. law, ch. 7. Bacon, hist. and polit. discourse, p. -129. &c. - -[340] Tyrrel’s Introduct. to his hist. - -[341] Carte, vol. 1. p. 452, 453. - -[342] Kennet’s historians, and Carte. - -[343] Hale, hist. com. law, chap. 7. Carte, vol. 1. p. 480. et seq. - -[344] Carte; and Kennet’s historians. - -[345] Kennet’s historians. Hume, vol. 1. p. 243. - -[346] Bacon, hist. and polit. disc. p. 103, &c. Carte, vol. 1. p. 525. et -seq. - -[347] Kennet’s historians. - -[348] Hale, hist. com. law, chap. 7. Carte. - -[349] Gervas. de Tilbury, dial. de Scaccario. - -[350] Madox, hist. of Excheq. ch. 16. - -[351] Lib. 9. c. 4. - -[352] Coke on Littleton, fol. 153. - -[353] Ibid. - -[354] Bracton, lib. 4. - -[355] Hale’s hist. Com. Law, chap. 7. Dugdale, orig. jurid. p. 27. -Hoveden, p. 590. - -[356] Hale’s hist. Com. Law, ch. 7. - -[357] Fitzherbert, Nat. brev. p. 41. - -[358] Dugdale, orig. jurid. chap. 20. Madox, hist. of Exchequer, chap. 3. -§ 10. Bracton, lib. 3. chap. 10, 11. M. Paris, an. 1176. - -[359] 4. Instit. p. 184, 266. Hale, hist. com. law. chap. 7. - -[360] 2. Instit. p. 24. et seq. 4. Instit. p. 162. Selden’s notes on -Hengham. - -[361] Dugdale, orig. jurid. chap. 17. - -[362] 4. Institute, p. 70. et seq. - -[363] d’Anver’s abrigement, vol. 2. - -[364] 4. Institute, p. 79. - -[365] Dugdale, orig. jurid. ch. 16. 4. Inst. p. 80. - -[366] 4. Inst. p. 79. 80. 84. 88. - -[367] Ibid. p. 225. 113. 80. 76. - -[368] 4. Inst. p. 155. 79. 206. - -[369] 4 Inst. ch. 8. Bacon, hist. and polit. discourse, part. 2. ch. 18. - -[370] Baron Gilbert’s history of the Court of Common Pleas. Madox, hist. -Excheq. ch. 2. sect. 9. 2 Institute, p. 53. 407. 4 Institute, ch. 8. - -[371] 2 Institute, p. 405. - -[372] 2. Institute, p. 21, 22. - -[373] Bracton, lib. 1. cap. 1. Fortescue de laud. leg. Angliæ, cap. 34. - -[374] Baron Gilbert, Hist. of the court of Com. Pleas. 4. Inst. ch. 10. - -[375] 2d. Inst. p. 196. 197. 255. 551. - -[376] 4th Inst. ch. xi. - -[377] 4th Inst. ch. 13. - -[378] Hales of the power and jurisdiction of Parliament. Selden of the -Judicature of Parliament. See his works vol. 3. 4. Inst. ch. 1. - -[379] Giannone’s hist. of Naples, b. 1. Bower’s hist. of the Popes, vol. -1. - -[380] Lord Lyttelton’s hist. of Henry II. b. 3. - -[381] Daniel, ap. Kennet. Carte. - -[382] Hoveden. edit. Savil. 494-549. Mat. Paris. an. 1164. Lord -Lyttelton’s hist. of Henry II. book 3. Brady’s history. - -[383] Hume, Carte, Lyttelton, &c. - -[384] Hale, hist. com. law, chap. 7. - -[385] Mare Claus. 386. Kennet’s historians. Hume. Carte. - -[386] Brady, Daniel, Tyrrel, and the general histories of England. - -[387] Kennet’s historians. Hume. Carte. - -[388] Blackstone’s discourse concerning the hist. of the charters. -Gurdon’s hist. of Parliament. Hale, hist. com. law, ch. 7. - -[389] Sir Robert Atkins on the dispensing power. Bibliotheca Politica. -The general histories of England. - -[390] Ruffhead, vol. 1. - -[391] Lib. 3. p. 129. 137. - -[392] Cap. 5. - -[393] Lib. 1. cap. 28. - -[394] Cap. 5. - -[395] 2 Inst. p. 37. - -[396] 2 Inst. 38. 41. Barrington on the Statutes, p. 15. 16. - -[397] Mirror, cap. 5. sect. 2. Glanvil, lib. 14. cap. 3. Bracton, lib. 3. -p. 121. Fleta, lib. 1. cap. 23. - -[398] 2 Inst. p. 43. 45. - -[399] 2. Institut. p. 48. 49. - -[400] 2. Institut. p. 51. - -[401] 2 Inst. p. 51. 55. - -[402] Father Paul, of beneficiary matters. - -[403] 4 Institut. - -[404] 2 Inst. p. 46. - -[405] 2 Institut. p. 51.-55. - -[406] 2 Inst. p. 47. - -[407] 2 Inst. p. 47. - -[408] Ibid. - -[409] 2 Inst. p. 48. - -[410] 2 Inst. p. 48. - -[411] 2 Institut. p. 55, 56. - -[412] 2 Institut. p. 56. - -[413] 2 Institut. p. 57. et seq. Barrington on the statutes. p. 23. 25. - -[414] 2 Institut, p. 64. - -[415] 2 Inst. p. 65.-67. - -[416] 2 Inst. p. 68. Barrington, p. 25. - -[417] Ibid. p. 68. 69. - -[418] 2 Inst. p. 69. 74. - -[419] 2 Inst. p. 74, 75. Barrington, p. 27. - -[420] Ibid. p. 76. See also Inst. lib. 2. cap. Escuage. Barrington, p. -28.-31. - -[421] 2 Inst. p. 76.-78. - - - - -INDEX. - - - A - - Abbots, 202 - - Abeyance, 136 - - Actions of debt, 40 - - ⸺ on the case, 40, 310 - - ⸺ personal, 301, 315 - - ⸺ real, 314, 366 - - ⸺ mixed, 315 - - ⸺ possessory and petitory, 292 - - ⸺ to be tried by the judges itinerant, 298 - - ⸺ of waste, 315 - - ⸺ of ejectment, _ibid._ - - Acts of State. See proclamations - - Admiralty jurisdiction, 331 - - ⸺ court of, 362 - - Advowsons of Bishoprics, 78 - - ⸺ right of nomination, in whom lodged, 79 - - ⸺ presentative, 81 - - ⸺ collative, 82 - - ⸺ donative, _ibid._ - - ⸺ now subsisting in England, 84 - - ⸺ how forfeited, 85 - - Ætius, 46 - - Agistment when due to the Clergy, 94 - - Aids and subsidies, 174 - - Alias writ of, 357 - - Alans, 43 - - Alarick, 44, 45 - - Alexander III., 322 - - Alexander Severus, 21 - - Alfred makes a law for the payment of tithes, 90 - - ⸺ his boast of the liberty he transmitted to England, 180 - - ⸺ divided England into counties, hundreds, and tithings, 198, 245 - - Alienation, 66 - - ⸺ of lands, 80, 81, 146, 147, 148, 149, 150, 153, 157, 161, 384 - - ⸺ in mortmain, 387 - - Allodial. See estates allodial - - Allodians attach themselves to their neighbouring Lords, 114 - - Amalfi, a copy of the civil law found there, 180 - - Amerciaments, how settled by Magna Charta, 346 - - Appeals, where properly to be brought, 301 - - Appeal for murder, 186 - - Arabs, erect academies for the study of their laws, 8 - - Armigeri, 206 - - Arresting by mittimus, 369 - - ⸺ persons not authorised by warrant, 370 - - Assemblies, general. The share they held in the government in the - 13th century, 33 - - ⸺ manner of admitting members therein, 34 - - ⸺ crimes cognizable thereby, _ibid._ - - Assessors in Germany, 96 - - Assize, trial by, 250 - - ⸺ of novel disseisin, 291 - - ⸺ writ of, 292 - - Athenians, their multiplicity of laws, 4 - - Ataulphus, 45 - - Athol, Duke of, 193 - - Attainder of felony, 348 - - Attornment, 119 - - Attorney-General, 318 - - - B - - Bail, superior power in the Court of King’s Bench to take it, 301 - - Baron of England, its original import, 187 - - ⸺ quantum of revenue to qualify for attendance in parliament, 188 - - Barons, oppose the arbitrary measures of King John, 339 - - ⸺ of the Exchequer, 318 - - Barones majores & minores, 189 - - ⸺ their rules of descent, 193 - - ⸺ minores privileges obtained by writ of election to parliament, - 192 - - Baronets, by whom first created, 209 - - Baronies by tenure, 188 - - ⸺ long since worn out among the laity, 190 - - Barristers at law, 313 - - Bastards, 23 - - Becket, Thomas a, 322, 327 - - Beauchamp, John, the first peer created by patent, 193 - - Benefices, or grants of land, wherefore so called, 49 - - ⸺ improper, 68 - - ⸺ incorporeal, 78 - - Beneficiary law, 23 - - ⸺ estates, 113 - - Berytus, its famous academy, 7 - - Bishops, how chosen in the infancy of Christianity, 78 - - ⸺ their ancient revenue, 80 - - ⸺ allocate the tithes in aid of the glebe, 81 - - ⸺ retain the general cure of souls, _ibid._ - - ⸺ their seats in parliament, whence derived, 202, 203 - - Bishop’s court, originally joined to the Sheriff’s, 247 - - Bishops of Rome, their artful conduct; to obtain the supremacy, 83 - - ⸺ dismember bishoprics, _ibid._ - - ⸺ attempt to over-rule general councils, _ibid._ - - ⸺ practise upon sovereign Princes, 83 - - ⸺ encourages of the civil law, 181 - - ⸺ their bull ineffectual to silence the people of England, when - incensed against Richard II., 182, 183 - - ⸺ assume a dispensing power, 186 - - ⸺ their views respecting England, 272 - - ⸺ lord it over the Kings of Europe, 320 - - ⸺ compel King John to surrender his crown, 338 - - ⸺ dispose of the English benefices by provisorship, 344 - - Blackstone (Judge), 8, 9 - - Bodies corporate, 211 - - Bracton, 130, 180, 225, 293, 299, 314, 349 - - Brevia testata, 60 - - Britain, Great. Whence its multiplied laws, 5, 6 - - ⸺ its peculiar advantages, 6 - - Britton, 180, 349 - - Brothers, not the heirs one of another, 140 - - Brunechild, 111 - - Burghers. See Citizens - - Burgundians, 4, 43, 46 - - Butlerage of England, 72 - - Bye-Laws, 211 - - - C - - Canon law, 13, 180, 203, 345 - - Capias, writ of, 357 - - ⸺ for a fine, 379 - - Capitula itineris, 298 - - Castleguard, 50 - - Castration, 252 - - Celtiberians. See Spaniards, 22 - - Census, a tax among the Franks, 47 - - Chancellor of England, 249 - - ⸺ his ancient office, 305 - - ⸺ derivation of his name, _ibid._ - - ⸺ of the Exchequer, 318 - - Chancery, court of, 249, 300 - - ⸺ ordinary, 304, 310 - - ⸺ extraordinary, 364, 366 - - Chapters, their origin, 80 - - Charles I. his claim of ship-money, 172 - - ⸺ his conduct to the Earl of Bristol, 190 - - ⸺ raises money by Knights fines, 208 - - Charles II. purchases the right of prisage of wines, 73 - - ⸺ abolishes the feudal system, 68, 134, 150 - - Charles the Bald, 114 - - Charlemagne, 80, 88 - - Charters, 211, 281 - - Church benefices stiled improper feuds, 68 - - ⸺ lands not secured by living evidence, 60 - - ⸺ secured by brevia testata, _ibid._ - - ⸺ revenue of, how antiently distributed, 80 - - Churchmen. See Clergy - - Circuits established by Henry II., 294, 298 - - Citizens of London, anciently stiled Barons, 187 - - ⸺ their original state, 209 - - ⸺ antiently no part of the body politic, 210 - - ⸺ admitted to vote along with Knights of the Shires, 211 - - Civil law, 12, 13, 170 - - ⸺ attempted to be introduced by the Princes of Europe, 180 - - ⸺ and by the Pope, 181 - - ⸺ became blended with the feudal, _ibid._ - - ⸺ destructive of freedom, _ibid._ - - ⸺ opposed by the English parliament, _ibid._ - - ⸺ openly countenanced by Richard II., 181 - - ⸺ obligations of a freeman to his patron thereby, 234 - - Claudian, 46 - - Clergy, their wealth and importance, 52 - - ⸺ their practice of redeeming slaves, 53 - - ⸺ divested of their possessions by Martel, 54 - - ⸺ supported by the voluntary contributions of the people, 78 - - ⸺ their temporalities how derived, 80 - - ⸺ feudal tenants to the bishop of their precinct, 81 - - ⸺ rendered serviceable to the views of the Pope, 83 - - ⸺ SECULAR, depressed under the Norman Kings, 90 - - ⸺ the only lawyers in the reign of William II., 91, 273 - - ⸺ banished the temporal courts, 91 - - ⸺ celibacy of the, 283 - - ⸺ the only people that could read and writ, 273 - - ⸺ DIGNIFIED, their share in the legislation, 267 - - ⸺ IN FRANCE, make one distinct state, 202 - - Clothair II., 111 - - Clovis, 28, 48, 51, 52 - - Coats of arms, 206 - - ⸺ became hereditary, 290 - - Coiff of a Serjeant at law, conjecture about its origin, 274 - - Cojudge, 96 - - Coke, Lord, 16, 72, 162, 190, 198, 217, 224, 233, 254, 257, 303, 340, - 350, 353, 356, 365, 367, 371, 373, 375, 376, 378, 380, 384, 388 - - Collation to a living, 82 - - Colleges, 86 - - Commons, house of, 206, 319 - - ⸺ its present constitution compared with the feudal principles, - 211 - - ⸺ its advance in privilege and powers, 214 - - ⸺ whether most inclined to popular or oligarchical influence, - 214, 217 - - Common Pleas, court of, 300, 312, 316 - - Commentaries on the Laws, how multiplied by the Romans at the time of - Justinian, 4 - - Commoner, his right of excepting against the Sheriffs return of a - Jury, 204 - - Commerce, its effect in multiplying laws, 3 - - ⸺ FOREIGN, 153 - - ⸺ regarded by Magna Charta, 380 - - Commune Concilium, further the designs of William the Conqueror, 264 - - Commissioners of Customs, 317 - - ⸺ of Excise, 317 - - ⸺ Appeals, _ibid._ - - Companions of the King or Prince, 30 - - Constitutions of Clarendon, 203, 275, 325 - - Coutumier of Normandy, 271 - - Convocation of the Clergy, 276 - - Conrad Emperor, 23 - - Constable, High, of England, 73 - - Constantine Porphyrogenetus, 22, 45 - - Convivæ Regis, a title on whom conferred, 51 - - Copyhold tenants, 324 - - Corvinus, 77 - - Cork, kingdom of, 201 - - Covassals. See Pares curiæ - - Councils general, 83 - - Counts, their origin and employments, 51 - - ⸺ obtain grants of estates for life, 57, 187 - - Counts. See Earldoms - - County court, 104, 247, 248, 296 - - Counties their origin, 51 - - ⸺ PALATINE, 199 - - Court of wards, 133, 317 - - ⸺ record, the King’s, its cognizance of covenants to alienate, 149 - - ⸺ merchant, 156 - - ⸺ of the constable, 181 - - ⸺ admiralty, _ibid._ - - ⸺ Tourn, 247, 271 - - ⸺ Sheriffs. See Sheriff - - ⸺ of the hundred, 247 - - ⸺ Leet, 247, 271 - - ⸺ Baron, 271 - - Courts of Westminster-Hall, 10 - - ⸺ Ecclesiastical and temporal, their rights settled, 275 - - ⸺ Martial, 363 - - ⸺ of Record, what are such, 271 - - ⸺ not of Record, what are such, _ibid._ - - Craig, 25 - - Cranmer, 92 - - Creation money, 199 - - Crimes public, what among the Franks, 40 - - ⸺ how punished, 252 - - Cross, sign of it used in the first written instruments, 60 - - Curia Regis, judges in that court, 249 - - ⸺ how appointed by William the Conqueror, 270 - - ⸺ the foundation of the Lords judicature in parliament, 249 - - ⸺ their pleadings entered in the Norman language, 270 - - ⸺ divided into four courts, 300 - - Customs paid on merchandize, 173 - - ⸺ LOCAL; origin of several, 297, 273 - - - D - - Danegelt, 285 - - Decretals of the Pope, 320, 321 - - Deed poll, 100 - - Demesnes, 50 - - Demurrer, what, 306 - - Derby, Earl of, 193 - - Descents by feudal law, to whom, 135 - - ⸺ law of, 141 - - Dioceses, how subdivided into parishes, 79 - - Dispensing power, a prerogative claimed by the Stuarts, 186 - - ⸺ distinct from a power of pardoning, _ibid._ - - ⸺ opposed by the early lawyers, 314 - - Distress, what, 65, 100, 101 - - ⸺ introduced instead of actual forfeiture, 97 - - ⸺ severity of English Lords in levying it restrained, 101 - - ⸺ how and where to be levied, 102 - - ⸺ restrictions in levying it, _ibid._ - - Duelling, the practice whence derived, 39 - - Dukes, 187 - - Dyer’s reports, 39 - - - E - - Earldoms of England, quantum of Knight’s fees assigned thereto, 163 - - ⸺ how antiently held, 197 - - ⸺ wherein differing from Barons, _ibid._ - - ⸺ when created, 198 - - Earls, 187 - - ⸺ their authority restricted in the County court, 198 - - ⸺ PALATINE, 187 - - ⸺ the first created, 199 - - Ecclesiastical Courts, 271 - - ⸺ how separated from the temporal, 275 - - ⸺ their right of recognizance of suits for benefices annulled by - the temporal courts, 276 - - ⸺ screen their members from the rigour of the law, 276, 322 - - ⸺ their power of excommunication, 360 - - Edgar King, severity of the law enacted by him for payment of tithes, - 90 - - ⸺ division of the Sheriff’s and Bishop’s court in his reign, 247 - - Edmundsbury, meeting of the Barons there, 339 - - Edward I. his dispute concerning grand serjeanty grants, 70 - - ⸺ gives in parliament a new confirmation of Magna Charta, 71 - - ⸺ renounces the taking of talliage, _ibid._ - - ⸺ his action against the Bishop of Exeter respecting homage, 117 - - ⸺ motives for his conduct, 121 - - ⸺ the CONFESSOR, his laws, 180 - - Egypt, antient method of studying the laws there, 7 - - ⸺ tithes first introduced there, 87 - - Elegit, writ of, 156 - - Elizabeth Queen, causes her proclamation to carry the force of laws, - 184 - - ⸺ why submitted to by the people, _ibid._ - - ⸺ her false policy in encouraging monopolies in trade, 185 - - ⸺ discontinued the granting of protections, 379 - - Emma Queen, 40 - - Enfranchisement, express, 234 - - ⸺ implied, 235 - - England, how divided by the Saxons, 245 - - ⸺ divided into circuits by Henry II., 298 - - Escheat, 98, 140 - - ⸺ of the King, 298, 382 - - Escuage, 97, 289 - - Esquires, their rank, 207 - - Estates, allodial, 51, 52, 56, 106, 144, 254 - - ⸺ of CONTINUANCE, 57 - - ⸺ TAIL, 99, 121, 160 - - ⸺ BENEFICIARY, 114 - - ⸺ FEUDAL, not liable to the debts of the feudatory, 146 - - Ethelwolf, establishes tithes by law in England, 90 - - Evidence, the kind admissible among the Franks before the use of - letters, 60 - - Exchequer court of, 300, 313, 315 - - ⸺ ordinary, 317 - - ⸺ extraordinary, _ibid._ - - ⸺ chamber, 318 - - Extent, 155 - - Eyre or circuit, omissions of places in first and second, 298 - - - F - - Fealty, the oath of, 61 - - ⸺ its obligations, _ibid._ - - ⸺ why not required of the Lords, 64 - - Fee simple, 99 - - ⸺ tail, 99, 121 - - Females, their dowry among the Franks, 35 - - ⸺ the part they bore in the State, _ibid._ - - ⸺ excluded from descent by the feudal law, 135 - - ⸺ under what limitations admitted, _ibid._ - - Feud, whence adopted into common language, 118 - - Feudal law. See LAW - - Feuds improper, 68, &c. - - ⸺ advowsons, 78 - - ⸺ tithes, 86 - - ⸺ feminine, 142 - - Feudum de cavena, 75 - - ⸺ camera, _ibid._ - - ⸺ soldatæ, 77 - - ⸺ habitationis, _ibid._ - - ⸺ guardiæ, _ibid._ - - ⸺ gastaldiæ, 78 - - ⸺ mercedis, _ibid._ - - Fiefs, 21, 36, 55 - - ⸺ feminine, 163 - - Fine levied on entailed lands, 167 - - Fines honorary, 107 - - ⸺ established as a fruit of tenure, 118 - - ⸺ abolished at the restoration, _ibid._ - - ⸺ for licence to plead in the King’s court, 250 - - First fruits and tenths, 84 - - Fictions of law, 304, 315 - - Fish weires, 351 - - Fleta, 180, 349 - - Forest laws, whence derived, 37 - - Formedon, writ of three kinds, 161 - - Fortescue, 180, 234 - - Frank pledge, 247 - - Franks, 4, 23, 24, 31, 35, 37, 38, 41, 42, 46, 48, 55 - - Freemen, among the Germans, the nature of the allegiance required - from them to their Princes, 31 - - Free alms, 202 - - Furnivall, William, 72 - - - G - - Gallway, county palatine of, 201 - - Gascoigne, Judge, 368 - - Gavel-kind, 135, 255 - - Gauls, 22, 51, 111 - - Gentry, who so called, 206 - - ⸺ their peculiar privileges, _ibid._ - - ⸺ cause of their military disposition subsiding, 207 - - Gentilis homo, its ancient and modern acceptation, 52 - - Geoffry of Monmouth, 22 - - Germans, their method of deciding disputes by single combat, 39 - - ⸺ Murder not punished with death among them, 41 - - Germany, its condition at the time of the Franks, 32 - - ⸺ its ancient constitution nearly resembling that of England, 33 - - Gilbert, Judge, his opinion concerning the division of courts, 309 - - Glanville, 109, 130, 148, 180, 288, 290, 330 - - Glebe-land, how obtained by the clergy, 80 - - Gold and silver, their use unknown to the Franks, 35 - - Goths, 4, 43, 44, 46, 47 - - Grand assize, for what purpose invented, 40 - - Grandsons, 108, 139, 140 - - Grants, the first feudal ones, 50 - - ⸺ temporary, 56 - - ⸺ beneficiary, _ibid._ - - ⸺ FOR LIFE, how obtained, 57 - - ⸺ improper, 68 - - ⸺ to women, 74 - - ⸺ of things not corporeal, _ibid._ - - ⸺ to indefinite generations, 112 - - ⸺ laws tending to establish them, 114 - - ⸺ of William the Conqueror to his followers, 163 - - ⸺ of Knight’s fees, _ibid._ - - Gregory, Pope, demands homage and Peter’s pence from William the - Conqueror, 274 - - Gratian, 321 - - Guardianship. See Wardship - - - H - - Habeas Corpus, 301, 370 - - Hale, Sir Matthew, 14, 213, 296 - - Heptarchy, 252 - - Heriots, 254, 257 - - Hearth-money, 134 - - Heir in tail, 160 - - Heirs of landed inheritance, 136 - - Hengist, 179 - - Henry I. his charter in favour of the Saxon laws, 281 - - ⸺ subdues Normandy, 284 - - ⸺ II. payment in kind commuted into money, 69 - - ⸺ his quarrel with Pope Alexander II., 322 - - ⸺ his wholesome regulations, 286, 287 - - ⸺ III. introduces a dispensing power into England, 186, 344 - - ⸺ consequences of his neglecting to summon the Barones majores, 189 - - ⸺ his illegal patent opposed by Roger de Thurkeby, 186 - - ⸺ his oppressions, 344 - - ⸺ VI. his mistaken conduct with regard to Ireland, 220 - - ⸺ VIII. his danger upon throwing off the Pope’s supremacy, 92 - - ⸺ suppresses the monasteries, _ibid._ - - ⸺ meets a court of Ward, 133 - - ⸺ obtains from parliament a sanction for his proclamations to - bear the force of laws, 184 - - Hereford, Earl of, his dispute with Edward I., 70 - - Homage, 61 - - ⸺ when instituted, and how performed, 116 - - ⸺ fealty, 117 - - ⸺ warranty, a consequence of homage, 119 - - ⸺ auncestrel, the import of this term, _ibid._ - - ⸺ duties arising from homage to lord and vassal, 118 - - Honorius, 44 - - Hugh Capet, 23, 137 - - Hunns, 43, 44 - - - I - - James I. his arbitrary claims, 183 - - ⸺ mistaken policy in encreasing monopolies, 185 - - ⸺ institutes a new title of honour, 209 - - Independence of the King, the idea thereof entertained by the early - Franks, 31 - - Inhabitants of Europe, their propensity to the making of new laws, 5 - - Innocent III., 334 - - Inns of Court, wherefore founded, 6 - - ⸺ their ancient usefulness, _ibid._ - - ⸺ their present state, 7 - - ⸺ Institution to a living, 82 - - Interdict laid on England by Innocent III., 334 - - Investiture proper, 58 - - ⸺ improper, 59 - - ⸺ its nature fixes the line of duty, 69 - - John, King, mutual hatred between him and his nobles, 110 - - ⸺ his arbitrary government, 154, 352 - - ⸺ claims a right of taxation, 177 - - ⸺ omits summoning some of the Barones majores, 189 - - ⸺ deprives the earls of the thirds of the county profits, 199 - - ⸺ supplants his nephew Arthur, 331 - - Jornandes, 37 - - Ireland, peerages there recovered by petition, 195 - - ⸺ erected into palatinates, 200 - - ⸺ form of trial of noblemen in that kingdom, 204 - - ⸺ the statutes of Edward II. abolished, 209 - - ⸺ state of legislation there, 218, 222 - - ⸺ influence of Poyning’s law on its government, 221 - - Issue joined, 292 - - Italian priests, the chief possessors of benefices in England in - John’s reign, 342 - - Judges itinerant, 294 - - ⸺ their jurisdiction, 298 - - ⸺ of assize, 366 - - ⸺ judgment, in what instances obtained without the intervention - of juries, 354 - - Juries, trial by, 251 - - ⸺ their original power, 247 - - ⸺ judges of law and fact, 294, 356 - - Justice, method of administering it among the Salic Franks, 37 - - Justices of Nisi Prius, 248, 299 - - ⸺ errant, _ibid._ - - ⸺ of assize, _ibid._ - - ⸺ of oyer and terminer, 299 - - ⸺ of gaol delivery, 248 - - ⸺ of Quarter Sessions, 248, 366 - - ⸺ in Eyre, 294 - - Judiciary of England, 248, 300 - - ⸺ discontinued by Edward I., 304 - - - K - - Kildare, county palatine of, 201 - - King’s Bench, court of, 300 - - ⸺ its power in taking bail, 301 - - ⸺ suits cognizable therein, 300, 301, 306 - - ⸺ its peculiar distinctions, 312, 314 - - King never dies, origin of that maxim, 139 - - Kings elective among the Franks, 28, 29 - - ⸺ their power, 48, 49 - - ⸺ Norman, the arms borne by them, 207 - - Kings of England, their power anciently limited, 71 - - ⸺ their right of service from their vassals, _ibid._ - - ⸺ possessed of donatives, 83 - - ⸺ their ecclesiastical jurisdiction, 84 - - ⸺ their title to supreme ordinary, whence derived, _ibid._ - - ⸺ their power by the feudal law, 170 - - ⸺ executive branch of government belongs to them, 171 - - ⸺ their revenue, 172 - - ⸺ their supplies for foreign wars, 173 - - ⸺ their authority, whence derived, 175 - - ⸺ their proclamations, how far legal, 183 - - ⸺ their dispensing power, 186 - - ⸺ their demesnes unalienable, 189 - - ⸺ their prerogative of summoning the lesser Barons to parliament, - 190 - - ⸺ their right of raising peers to a higher rank, 196 - - ⸺ their power of settling precedency, _ibid._ - - ⸺ not one of the three estates, but the head of all, 202 - - ⸺ their right of appointing peers to try an accused nobleman, 204 - - ⸺ ancient concern in making laws, 217 - - ⸺ their present influence in framing laws, 218 - - ⸺ their style when speaking of themselves, 265 - - ⸺ have no power to create new criminal courts, 377 - - Kingsale, Lord, 196 - - Knights, origin of that dignity, 34 - - ⸺ their advantages over the Lords with regard to feudal payments, - 109 - - ⸺ service, 129 - - ⸺ when abolished, 150 - - ⸺ fees, 188 - - ⸺ their privileges by writ of election to parliament, 192 - - ⸺ their rank, 206 - - ⸺ their ancient dignity, 207 - - ⸺ BANNERET, 208 - - - L - - Laity, when excluded from the election of the clergy, 78 - - Lands, their property how far alienable among the Jews, 3 - - Lands, distributed to the Christians by the General Assembly, 34 - - ⸺ interest of Lord and vassal therein, 65 - - ⸺ Saxons, by what tenures they held their lands, 254 - - Langton, Legate, 338 - - Lateran, council of, 89 - - Lawing, 280 - - Laws feudal, the foundation of the law of things, 14 - - ⸺ the foundation of the English constitution, 15 - - ⸺ method of teaching them, 17 - - ⸺ their origin and progress, _ibid._ - - ⸺ succeed the Roman imperial law, 19 - - ⸺ various opinions on their origin, _ibid._ - - ⸺ not derived from Roman laws and customs, 21 - - ⸺ first reduced into writing by the Lombards, 23 - - ⸺ their tendency to cherish the national liberties of mankind, 27 - - ⸺ in ENGLAND, permit no Lord to be challenged by the suitors, 96 - - ⸺ allow a power of appeal to the King’s court, _ibid._ - - ⸺ their doctrine of remainder, _ibid._ - - ⸺ respecting warranty, 119 - - ⸺ wardship, 123, 124 - - ⸺ their obligations on minors, 132 - - Laws POSITIVE, or general customs, always to be found in communities - however barbarous, 1 - - ⸺ a knowledge of them a means of procuring respect and influence, - 2 - - ⸺ of things and persons, which to be first treated on, 14 - - ⸺ few and intelligible in small societies, _ibid._ - - ⸺ when necessarily numerous and extensive, _ibid._ - - ⸺ inconveniencies attending their multiplicity, 3 - - ⸺ of what kind in Rome at different periods, 4 - - ⸺ their great increase in Europe since the, 14th century, 5 - - ⸺ of NORMANDY, respecting the marriage of females in wardship, 129 - - ⸺ of ENGLAND, advantages attending a knowledge of them, 8 - - ⸺ what required by them in transferring possessions, 74 - - ⸺ its maxim respecting the devising of lands by will, 145 - - ⸺ how enacted, 217 - - ⸺ their ancient method of passing, _ibid._ - - ⸺ their tendency to promote liberty, 234 - - ⸺ alterations introduced in them by Henry II., 289 - - Lawyers, 3 - - Laymen, how far exercising ecclesiastical discipline, 48 - - ⸺ tithes granted to them in fee, 89 - - ⸺ by what means possessed of lands discharged of tithes, 92 - - Legates of Rome, 83 - - Leinster, county palatine of, 201 - - Letters Patent for creating of Peers, 190 - - ⸺ when took place, 193 - - ⸺ grants by them, how forfeited, 194, 195 - - ⸺ anciently called Chartæ Regis, 305 - - ⸺ repealable by the Lord Chancellor, _ibid._ - - Lex Terræ, what, 355 - - Licences to marry, 131 - - Liberty of the subject, how advanced, 313 - - ⸺ how ascertained, 333 - - Littleton, 14, 15, 61, 73, 116, 124, 225, 229 - - Livery and seizen, 58, 59 - - Locke, Mr., 12 - - Longchamp Archbishop of Canterbury, 330 - - Lords feudal, their power over minors respecting marriage, 129 - - ⸺ respect paid by them to the person of their King, 171 - - ⸺ their power over their villeins, 224, 232 - - ⸺ of parliament in England, their rank, 187 - - ⸺ created by writ, or letters patent, 190 - - ⸺ privilege to their eldest sons, 192 - - ⸺ their titles extinct on surrender, 195 - - ⸺ their quality as noblemen, 187 - - ⸺ spiritual, 202 - - ⸺ lay, their form of trial, 204 - - Lombards, 4 - - Lupus, Hugh, 199 - - Lycurgus, 3 - - - M - - Markham, sir John, 368 - - Maud, 282, 284 - - Magna Charta specifies the quantum to be paid in relief, 110, 290 - - ⸺ misconstrued in the right of Lords to the disposal of minor - heirs in marriage, 130 - - ⸺ restrains the alienation of lands, 150 - - ⸺ its designs, 154 - - ⸺ abolishes the right of talliage, 154, 171, 175 - - ⸺ summons to parliament settled thereby, 189 - - ⸺ its regulations of fines in the King’s court, 250 - - ⸺ abolishes the removal of the courts of justice, 312 - - ⸺ commentary thereon, 343 to the end - - Manors how distributed by William the Conqueror to his followers, 163 - - Marriages, 133 - - Marshal, Earl, of England, 72 - - Maritime court. See Admiralty - - Mascon, council of, 88 - - Master of the Rolls, 310 - - Masters in Chancery, 309 - - ⸺ empowered to frame new writs, _ibid._ - - Maxim of Law, 306, 341 - - Measures and weights, 351 - - Meath, county palatine of, 201 - - Merchant stranger, 174, 380 - - ⸺ denizen, 174 - - ⸺ enemies, 381 - - Military system (Old) its influence on law, 4 - - ⸺ power, danger of its subverting the civil and legal - authorities, 95 - - ⸺ benefices, their rise among the Saxons, 261 - - ⸺ tenures, their service lightened by Henry II., 288 - - ⸺ abolished by Charles II., 150 - - ⸺ courts, 360 - - Minor heirs male, when deemed of age, 123 - - ⸺ in chivalry, when deemed of age, 124 - - ⸺ in socage, when deemed of age, 128 - - ⸺ female, in chivalry, when deemed of age, 124 - - ⸺ their marriages, how controuled by their Lords, 129 - - ⸺ when released from wardship, 132 - - Mittimus, essentials to render it legal, 369 - - Modus, payment of tithes by a, 91 - - Monarchy of France, 55, 56 - - ⸺ of England, its nature ascertained by the feudal laws, 16 - - ⸺ how changed, by estates becoming hereditary, 170 - - Monasteries, the firmest support of papal power, 83, 88 - - ⸺ tithes improperly applied to their use, 89 - - ⸺ raised on the suppression of the secular clergy, 91 - - Money, its present decreased value, 69 - - Monopolies, 185 - - Montesquieu, 2, 28, 31, 38, 53, 178 - - Moses, 3, 7 - - Mowbray, Lord, 192 - - Murder, why not punished with death among the ancient Germans, 41 - - ⸺ how punished by the Saxons, 252 - - - N - - Neif, 227, 230, 232 - - Nisi Prius, Justices of, 248 - - Norfolk, Earl of, his dispute with Edward I., 70 - - Northern nations become formidable to the Roman empire, 43 - - Notorieties of a fact, how regarded in feudal grants, 60 - - - O - - Oath of fealty, from whence to be traced, 31 - - ⸺ taken by the Saxons, 259 - - Officers of Courts, where to be sued, 318 - - Officina brevium, 306 - - Oleron, laws of, 331 - - Oligarchy introduced into England, 182 - - Ordeal trial among the Franks, 37 - - ⸺ continued after the Norman conquest, 40 - - Ormond, Earl of, 201 - - ⸺ Duke of, 133 - - Overbury, Sir Thomas, 374 - - Outlawry, 356 - - ⸺ proclamation to be made by statute, 31st Elizabeth, 358 - - - P - - Païs des coutumes, 52 - - ⸺ de loi ecrite, _ibid._ - - Pares curiæ, 58, 59, 96, 116, 119 - - Paris, Matthew, 186, 188 - - Parliament of England, its ancient constitution, 187, 193, 202, 213 - - ⸺ its judicature, 319 - - Patron, lay, his interest in presentative advowsons, 81 - - ⸺ inverted with donatives by grants from the Pope, 83 - - ⸺ possessed a power of deprivation, 85 - - Peer. See Lords of Parliament - - Peeress, who are her peers, 353 - - Pelagius, 143 - - Pembrige, Sir Richard, 373 - - Pepin, 113 - - Persian Empire, 43 - - Pembroke, Earl of, 343 - - Philip of France, 332, 338 - - Plantagenets, 209 - - Pleas of the crown, 301 - - Pole, Michael de la, 193 - - Popes. See Bishops of Rome - - _Posse_ of the county, 292 - - Possessions, corporeal, 74 - - ⸺ incorporeal, 74, 78, 87, 95 - - Pounds overt and covert, 103 - - Precedence of Peers, how settled by parliament, 196 - - Primogeniture, 137 - - Prisage of wines, 73 - - Privileges of the subject, whence derived, 16 - - ⸺ of the distinct parts of the legislature, 217 - - Privileged persons, how to be sued, 307 - - Proclamations royal, when and how far legal, 183 - - ⸺ conduct of Henry VIII. relative to them, 184 - - ⸺ their force in the reign of Elizabeth, _ibid._ - - ⸺ baneful consequences attending the arbitrary use of them, 185 - - Professors of Laws, 13 - - Property, its division, 35 - - ⸺ of lands, where lodged by the Franks, _ibid._ - - Provisorship, 344 - - Provosts, 210 - - Punishments inflicted by the ancient courts of law, for public and - private wrongs, 251 - - ⸺ for false imprisonment, 370 - - Purbeck, Lord, 194 - - Purchases new, how descendible, 144 - - Purveyance for the King, 256, 257 - - - Q - - Quo Warranto, writ of, 301 - - - R - - Rachat, or Repurchase, 110 - - Raleigh, Sir Walter, 376 - - Ranks of the people in the Saxon times, 253 - - Ravishment of wards, 132 - - Record, matter of, 306 - - Records of France, lost at the battle of Poictiers, 312 - - Recognizance, 155, 308 - - Rectorial tithes. See Tithes - - Register of writs, 309 - - Refuting the fief, 145 - - Reliefs or fines, 107 - - ⸺ wherein burdensome to the tenant, 109 - - ⸺ altered by Henry II., 290 - - ⸺ fixed by Magna Charta, 110 - - ⸺ and heriots, their difference, 257 - - Remainder derived from a reversion, 96 - - Rent charges, 99 - - Replevin, 104 - - Reversion, right of, in land, 96 - - ⸺ fealty and service incidental thereto, 97 - - ⸺ on contingency, _ibid._ - - Richard I., 329, 332 - - Richard II., 181, 183 - - Right of entry for possession, 59, 65 - - ⸺ action, _ibid._ - - Rome, its famous academies, 7 - - ⸺ taken by the Goths, 45 - - Roman imperial law, 19 - - ⸺ empire, 42 - - ⸺ emperors, 186 - - ⸺ estates, 51 - - ⸺ patron and client, 19, 20 - - Romans, their policy respecting conquered nations, 22 - - ⸺ become socage tenants to the church, 54 - - ⸺ their condition under the Franks, 111 - - - S - - Salic Law, 52 - - Sergeanty, grand, 70 - - ⸺ various kinds, 72 - - ⸺ the rank capable of performing it, _ibid._ - - ⸺ for what purposes granted, _ibid._ - - ⸺ butlerage held thereby in the family of Ormond, 73 - - ⸺ PETTY, _ibid._ - - Satisfaction for petty crimes, how regulated by the Franks, 41 - - Saxons, the nature of their primitive laws, 4 - - ⸺ their government in England, how far feudal, 33, 212, 243 - - ⸺ admit the ordeal trial in determining causes, 40 - - ⸺ the authority of their Kings, whence derived, 179, 180 - - ⸺ their courts of law, 246, 250 - - ⸺ method of trial therein, 250, 251 - - ⸺ punishments inflicted, 252 - - ⸺ nature of their tenures, 254, 265 - - Scire facias, writ of, 219, 305 - - Scotland, method of studying the law there, 18 - - ⸺ its parliament not divided into two houses, 202 - - Seal, used in the first written instruments, 60 - - Sealing of instruments, why more strictly authenticating them than - signing, 273 - - Seignory, 95 - - Sergeants at law, 313 - - Service from a tenure, how dependant on the nature of the grant, 96 - - ⸺ when required by the lord, 97 - - ⸺ rent, 98 - - ⸺ made rent seck by statute Edward I., _ibid._ - - Sharrburn, Edwin, his lands restored by William the Conqueror, 264 - - Sheriffs, their power in making replevins, 104 - - ⸺ method of proceeding thereon, _ibid._ - - ⸺ appointed to restrain the power of the Earls, 199 - - ⸺ nature of their court, 246 - - ⸺ nature of their court altered by William the Conqueror, 272 - - ⸺ their ignorance of law, 296 - - Socage tenures, their increased value, 70 - - Socage tenants, 47, 224, 289 - - ⸺ nature of the grants to them, 50 - - ⸺ subject to distress instead of forfeiture, 97 - - ⸺ relief paid by them to their lords, 110 - - ⸺ lands granted for life, 57 - - ⸺ free and common, 72 - - ⸺ petty sergeanty, 73 - - ⸺ its derivation, 69 - - Society political, for what purposes instituted, 1 - - ⸺ the obligations which it lays on individuals, _ibid._ - - Sons, the inheritance obtained by the eldest, 137 - - ⸺ succeeded equally to the father, 135 - - Spaniards, 22 - - Special verdict, 356 - - Spelman, Sir Henry, 13, 198, 258 - - Statute of Ethelwolf, 90 - - ⸺ Alfred, _ibid._ - - ⸺ Edgar, _ibid._ - - ⸺ Edward I. quia emptores terrarum, 99, 146, 149, 384 - - ⸺ Edward I. de donis, 121 - - ⸺ 34th Edward I., 211 - - ⸺ 17th Edward II. de prerogativa regis, 150 - - ⸺ for compounding a Knight’s fee, 208 - - ⸺ of Marlebridge, 101, 103, 104, 345 - - ⸺ respecting knighthood conferred on minors, 124 - - ⸺ of Merton, 131 - - ⸺ Westminster I., 132, 368 - - ⸺ Westminster II., 132, 159, 309 - - ⸺ Mortmain, 151 - - ⸺ Merchant, 154 - - ⸺ of writ of elegit, 156 - - ⸺ Elizabeth concerning bankrupts, 157 - - ⸺ concerning outlawry, 358 - - ⸺ of William the Conqueror, 265 - - ⸺ 8th Henry VI. chap. 5., 216 - - ⸺ Poyning’s, 221 - - ⸺ 28th Henry VIII. suspending Poyning’s law, 222 - - ⸺ Philip & Mary respecting Ireland, _ibid._ - - ⸺ ancient and present, manner of enacting them, 217 - - Stewardship, High, of England, 72 - - Stephen, King, 284 - - Stilicho, 44, 45 - - Strange, Baron of, 193 - - Strongbow, 201 - - Stuart, house of, 183 - - Study of the law in Great Britain, 6 - - ⸺ proper method, 7 - - ⸺ causes of difficulty therein, 12, 13 - - ⸺ reasons for beginning with the law of things instead of that of - persons, 14 - - ⸺ promoted by fixing the courts of justice, 313 - - Substitute, when allowed in aid from a vassal, 64 - - Subvassals, 33, 57, 65 - - Succession royal by descent, 137, 138, 139, 143 - - ⸺ collateral, 139, 140 - - ⸺ to estates, how rendered hereditary, 107, 110, 144 - - ⸺ of sons to the father, 135 - - - T - - Tacitus, 27, 28, 30, 31, 32, 35, 36 - - Talliage, 71, 153, 173, 174 - - Taxes, how assessed, 174 - - Tenants by sufferance, 50 - - ⸺ allodial, 111 - - ⸺ not allowed to alienate, 118 - - ⸺ copyhold, whence derived, 238 - - ⸺ when subject to fines to their lord, 239 - - ⸺ their power of alienation, how restricted, _ibid._ - - ⸺ in frankalmoine or free alms, 267 - - ⸺ in capite, 383 - - Toga virilis, what, 34 - - Tenures feudal. See fiefs - - ⸺ subject to fealty, 57 - - ⸺ military, how forfeited, 65 - - ⸺ when abolished, 68 - - ⸺ of the crown, obligations therefrom, 187 - - ⸺ hereditary, 65 - - ⸺ the nature of those now held, 69 - - ⸺ Saxon, 254 - - ⸺ in ancient demesne, 224, 241, 288 - - Temple, the, granted to the practitioners of the law, 313 - - Thanes, 253, 258 - - Tipperary, its palatinate, 201 - - Tithes introduced among the Franks by Charles Martel, 54 - - ⸺ when established by law, 80 - - ⸺ allocated from the bishop to the parish priest, 82 - - ⸺ an incorporeal benefice, 86 - - ⸺ originally what, 87 - - ⸺ first introduced in Egypt, _ibid._ - - ⸺ how distributed there, _ibid._ - - ⸺ how rendered compulsory, _ibid._ - - ⸺ forgeries concerning them, 88 - - ⸺ divided into rectorial and vicarial, 89 - - ⸺ how paid in England during the heptarchy, _ibid._ - - ⸺ when made payable to the parish priest, 91 - - ⸺ monastery lands exempted from them, _ibid._ - - ⸺ settled by a modus, _ibid._ - - ⸺ Cranmer’s intention concerning them, 92 - - ⸺ when established in England on the footing they now stand, 93 - - ⸺ their three kinds, _ibid._ - - Transportation, 273 - - Traders and artizans admitted into the general assembly of the people - in the thirteenth century, 34 - - Treasurer of England, 249 - - ⸺ presided in the Exchequer court, 300 - - Trinoda necessitas, 256, 264 - - Trial, methods of, among the old Germans, 37 - - ⸺ received into England, 39 - - ⸺ by witness, _ibid._ - - ⸺ ordeal. See Ordeal - - ⸺ by negative proof, 40 - - ⸺ by battle, 250 - - ⸺ by grand assize, 251 - - ⸺ by juries, _ibid._ - - ⸺ by deposition, 353, 364 - - Tudor, house of, 183, 209 - - - U - - Vandals, 45 - - Vassals (military) their connections with their king, 31 - - ⸺ bound by an oath of fealty for life, 56 - - ⸺ immediate of the king, who, 65 - - ⸺ now represented by the parliament, 62 - - Villein-land, 226 - - Villein, a name given to slaves and servants, 47 - - ⸺ nature of the grants made to them, 50 - - ⸺ whom reduced to that state, 174 - - ⸺ feudal, 224, 225 - - ⸺ their property, 226 - - ⸺ when allowed to bring actions against their lord, 229 - - ⸺ their right of purchasing land, 227 - - ⸺ power of their lords over their property, 228 - - ⸺ causes of their decrease in England, 237 - - Villenage, how destroyed and suspended, 232 - - Ulster, county palatine of, 201 - - Uncle, the heir of his grand nephew, 139 - - University of Dublin, its situation for the study of the law, 12 - - ⸺ of Oxford, 10 - - Universities, 7, 11, 12 - - Voucher, appearance upon, 65 - - Uses, doctrine of, 151, 241 - - Usury, 4 - - Uses and Trust, 388 - - - W - - Wager of the law, 40, 250, 352 - - Wages to members of parliament, how to be levied, 101 - - Wardship in chivalry, laws respecting it, 123, 126 - - ⸺ in socage, 127 - - ⸺ how differing from wardship in chivalry, 128 - - ⸺ obligations on the guardian, _ibid._ - - ⸺ penalty on marriage without the consent of the lord, 129 - - ⸺ its evils, 133 - - ⸺ not comprehended in Saxon tenures, 261 - - Warranty, 119 - - ⸺ collateral, 164 - - Warwick, Earl of, 133 - - Waste, committing of, 66 - - William the Conqueror, 137, 163, 212, 258, 262, 264, 266, 267, 268, - 270, 273, 274 - - ⸺ Rufus, 278 - - Wills and testaments, unknown to the Franks, 35 - - ⸺ lands not devisable thereby, 145 - - ⸺ how rendered devisable, 151, 152 - - ⸺ required to be in writing, 152 - - ⸺ further requisitions, _ibid._ - - ⸺ copyholds not devisable thereby, 240 - - Wiltshire, John, 72 - - Wittenagemots of the Saxons, 180, 212 - - Wright, 265 - - Writ of chancery to recover by replevin, 104 - - ⸺ election to parliament, 190, 191 - - ⸺ error, 200, 316 - - ⸺ nativo habendo, 231 - - ⸺ assize, 293 - - ⸺ false judgment, 297 - - ⸺ scire facias, 219, 305 - - ⸺ original, 308 - - ⸺ by a master in chancery, 309 - - ⸺ de odio & atia, 351 - - ⸺ of capias, 357 - - ⸺ alias, _ibid._ - - ⸺ pluries, _ibid._ - - ⸺ exigent, 358 - - ⸺ entry, 365 - - ⸺ de homine replegiando, 371. - - - -FINIS. - -*** END OF THE PROJECT GUTENBERG EBOOK LECTURES ON THE CONSTITUTION -AND LAWS OF ENGLAND *** - -Updated editions will replace the previous one--the old editions will -be renamed. - -Creating the works from print editions not protected by U.S. copyright -law means that no one owns a United States copyright in these works, -so the Foundation (and you!) can copy and distribute it in the -United States without permission and without paying copyright -royalties. 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You may copy it, give it away or re-use it under the terms -of the Project Gutenberg License included with this eBook or online -at <a href="https://www.gutenberg.org">www.gutenberg.org</a>. If you -are not located in the United States, you will have to check the laws of the -country where you are located before using this eBook. -</div> - -<p style='display:block; margin-top:1em; margin-bottom:0; margin-left:2em; text-indent:-2em'>Title: Lectures on the constitution and laws of England</p> -<p style='display:block; margin-left:2em; text-indent:0; margin-top:0; margin-bottom:1em;'>With a commentary on Magna Charta, and illustrations of many of the English statutes</p> -<p style='display:block; margin-top:1em; margin-bottom:0; margin-left:2em; text-indent:-2em'>Author: Francis Stoughton Sullivan</p> -<p style='display:block; margin-top:1em; margin-bottom:0; margin-left:2em; text-indent:-2em'>Commentator: Gilbert Stuart</p> -<p style='display:block; text-indent:0; margin:1em 0'>Release Date: November 14, 2022 [eBook #69351]</p> -<p style='display:block; text-indent:0; margin:1em 0'>Language: English</p> - <p style='display:block; margin-top:1em; margin-bottom:0; margin-left:2em; text-indent:-2em; text-align:left'>Produced by: Sonya Schermann and the Online Distributed Proofreading Team at https://www.pgdp.net (This file was produced from images generously made available by The Internet Archive)</p> -<div style='margin-top:2em; margin-bottom:4em'>*** START OF THE PROJECT GUTENBERG EBOOK LECTURES ON THE CONSTITUTION AND LAWS OF ENGLAND ***</div> - -<p><span class="pagenum"><a id="FM_Page_iii"></a>[iii]</span></p> - -<h1><span class="smcap">LECTURES<br> -<span class="smaller"><span class="smaller">on the</span><br> -CONSTITUTION and LAWS<br> -<span class="smaller">of<br> -ENGLAND</span>:<br> -<span class="smcap smaller">With a COMMENTARY on</span><br> -<i>MAGNA CHARTA</i>,<br> -<span class="smaller">AND ILLUSTRATIONS OF MANY<br> -OF THE</span><br> -ENGLISH STATUTES.</span></span></h1> - -<p class="titlepage"><span class="smaller">BY THE LATE</span><br> -FRANCIS STOUGHTON SULLIVAN, <i>LL. D.</i><br> -<span class="smaller">Royal Professor of <span class="smcap">Common Law</span> in the <span class="smcap">University</span> of <span class="smcap">Dublin</span>.</span></p> - -<p class="titlepage"><span class="smcap">The SECOND EDITION.</span></p> - -<p class="titlepage">To which <span class="smcap">Authorities</span> are added, and a <span class="smcap">Discourse</span><br> -is prefixed, concerning the <span class="smcap">Laws</span> and <span class="smcap">Government</span><br> -of <span class="smcap">England</span>.</p> - -<p class="titlepage"><span class="smcap">By GILBERT STUART</span>, <i>LL. D.</i></p> - -<p class="titlepage"><span class="gesperrt">LONDON</span>:<br> -<span class="smaller">Printed for <span class="smcap">Edward</span> and <span class="smcap">Charles Dilly</span> in the Poultry; and<br> -<span class="smcap">Joseph Johnson</span> in St. Paul’s Church-yard.<br> -M,DCC,LXXVI.</span></p> - -<p><span class="pagenum"><a id="FM_Page_iv"></a>[iv]</span></p> - -<hr class="chap x-ebookmaker-drop"> - -<p><span class="pagenum"><a id="FM_Page_v"></a>[v]</span></p> - -<p class="dedication"><span class="smcap">To the RIGHT HONOURABLE<br> -<span class="larger">FREDERICK LORD NORTH,</span><br> -KNIGHT of the most Noble Order of the GARTER,<br> -First LORD of the TREASURY,<br> -CHANCELLOR of the EXCHEQUER,<br> -and<br> -CHANCELLOR of the UNIVERSITY of Oxford,</span></p> - -<p class="in4"><span class="smcap">My Lord</span>,</p> - -<p>I am ambitious of giving dignity to this Work by -inscribing it to your Lordship; and I conceive that -it has a natural claim to your protection. It regards -those laws and that constitution which, at a most critical -period, you were called to defend; and of which -the important purposes are the security and the happiness -of a free people.</p> - -<p>In this illustrious rank which divides your cares -between prerogative and liberty, and in which you -support the lustre of the Crown, while you guard the<span class="pagenum"><a id="FM_Page_vi"></a>[vi]</span> -independence of the subject; the greatest occasions are -afforded to distinguish the generosity of public virtue, -and to employ a capacity enlarged alike by reflection -and experience.</p> - -<p>But it does not become me to say with what honour -to yourself, and with what advantages to the -nation, you sustain the arduous charge of government. -To posterity, which will not be suspected of flattery, -it must be left to celebrate the merits of an Administration, -too vigorous to yield under difficulties, and -of which the glory has increased with danger.</p> - -<p class="center">I am, with the greatest respect,</p> - -<p class="center"><span class="smcap">My Lord</span>,</p> - -<p class="center in4">Your Lordship’s</p> - -<p class="center in6">Most obedient,</p> - -<p class="center in15">And most humble servant,</p> - -<p class="right">GILBERT STUART.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="FM_Page_vii"></a>[vii]</span></p> - -<h2 class="nobreak" id="ADVERTISEMENT">ADVERTISEMENT.</h2> - -</div> - -<p>The following <span class="smcap">Lectures</span> were delivered in the University -of <span class="smcap">Dublin</span>, and procured a very high Reputation to their -Author. The Researches they contain into the Nature and -History of the <span class="smcap">Feudal Laws</span>, were esteemed extensive and ingenious; -and the Description they exhibit of the <span class="smcap">English -Constitution</span>, will be allowed to be particularly interesting. -These Advantages have occasioned their Publication. It was -thought, that Papers, which had done so much Honour to <span class="smcap">Dr. -Sullivan</span>, when alive, ought to illustrate his Memory; and -that they might prove of Use to the present Age, and to Posterity.</p> - -<p><span class="smcap">The</span> Authorities assigned for <span class="smcap">Dr. Sullivan’s</span> Opinions and -Reasonings are furnished by the <span class="smcap">Editor</span>. They are not, perhaps, -in every Instance those to which he himself would have -appealed. This could not have been expelled. They are -such, notwithstanding, as will assist the Student; and the Preliminary -<span class="smcap">Discourse</span>, it is hoped, will not be thought an -useless or improper Addition to his <span class="smcap">Lectures</span>. It will be a -Pleasure to the <span class="smcap">Editor</span> to reflect that he has endeavoured to -pay a Tribute of Respect to the Writings of a virtuous Man and -an ingenious Lawyer, whom an immature Death had ravished -from his Friends and from Society.</p> - -<p><span class="pagenum"><a id="FM_Page_viii"></a>[viii]</span></p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="FM_Page_ix"></a>[ix]</span></p> - -<h2 class="nobreak" id="CONTENTS">CONTENTS.</h2> - -</div> - -<table> - <tr> - <td class="tdc"><a href="#LECTURE_I"><span class="gesperrt">LECTURE</span> I.</a></td> - </tr> - <tr> - <td><i>The intention and purposes of political society—Customs and manners - govern men before the enactment of positive laws—Arts and - property the sources of legislation—Peculiarities attending the institutions - of Lycurgus and those of Moses—In the infancy of a state, laws - are few and plain—In times of civility and refinement, they are numerous - and complicated—The liberty of the people, a great cause of the - multiplicity of laws—The difficulty of the study of the English law—The - methods which have been followed in the study of it.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_II"><span class="gesperrt">LECT.</span> II.</a></td> - </tr> - <tr> - <td><i>The plan of the present undertaking—The particulars in which it - differs from that adopted by Mr Blackstone—The different situations of - the Universities of Oxford and Dublin—The chief obstructions which - occur to the student of the English laws—The methods which may be - employed to remove them—The law of</i> things <i>more proper to introduce - a system of jurisprudence than the law of</i> persons—<i>The law of</i> - things, <i>or of real property in England, has its source in the feudal - customs—The necessity of a general acquaintance with the principles of - the feudal polity—The method in which it is proposed to treat of it.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_III"><span class="gesperrt">LECT.</span> III.</a></td> - </tr> - <tr> - <td><i>An enumeration and confutation of several opinions concerning the - foundation of the feudal customs—The origin and rules of the feudal law - to be deduced from the institution of the German nations before they invaded - the Roman empire—The English indebted for this law to the - Franks—A general description of this people, with an account of the<span class="pagenum"><a id="FM_Page_x"></a>[x]</span> - several orders of men into which they were divided while they continued - in Germany.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_IV"><span class="gesperrt">LECT.</span> IV.</a></td> - </tr> - <tr> - <td><i>The</i> companions <i>of a German Prince—The constitution of a German - kingdom—The condition of property in Germany—The methods followed - there of distributing justice, and the nature of the punishments inflicted on - criminals.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_V"><span class="gesperrt">LECT.</span> V.</a></td> - </tr> - <tr> - <td><i>The decline of the Roman empire—The invasions of the Northern nations—The - manner in which they settled in the Roman provinces—The - changes insensibly introduced among them in consequence of their new situation—The - policy and condition of the Franks after they had settled in - France—The rise of the feudal law—Estates beneficiary and temporary.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_VI"><span class="gesperrt">LECT.</span> VI.</a></td> - </tr> - <tr> - <td><i>The introduction of estates for life into the feudal system—The nature - and forms of investiture—The oath of fealty, and the obligations of - Lord and tenant.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_VII"><span class="gesperrt">LECT.</span> VII.</a></td> - </tr> - <tr> - <td><i>Improper feuds or benefices—Grants to the Church—Grants in which - the oath of fealty was remitted—Grants to which a condition was annexed - that enlarged or diminished the estate—Grants which reserved certain - other services, beside military service—Grants implying some certain - service, as rent, and not reserving military service—Grants reserving no - services, but general fealty—Grand Serjeantry—Petty Serjeantry—Grants - to women—Grants of things not corporeal—Feudum de Cavena—Feudum - de Camera.</i><span class="pagenum"><a id="FM_Page_xi"></a>[xi]</span></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_VIII"><span class="gesperrt">LECT.</span> VIII.</a></td> - </tr> - <tr> - <td><i>Feudum Soldatæ—Feudum habitationis—Feudum Guardiæ—Feudum - Gastaldiæ—Feudum mercedis—Incorporeal benefices in England—Advowsons—Presentative - advowsons—Collative advowsons—Donatives.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_IX"><span class="gesperrt">LECT.</span> IX.</a></td> - </tr> - <tr> - <td><i>Tithes—The voluntary contributions of the faithful, the original revenue - of the Church—The establishment of regular payments—The appropriations - of the Church—The history and general rules of tithes in - England.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_X"><span class="gesperrt">LECT.</span> X.</a></td> - </tr> - <tr> - <td><i>The right of Seignory and its consequences—The right of Reversion—Rent - seck—Rent charge—The nature of</i> distress, <i>as the remedy for - recovering feudal duties. Observations on</i> distresses <i>in general</i>.</td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XI"><span class="gesperrt">LECT.</span> XI.</a></td> - </tr> - <tr> - <td><i>The manner in which estates for life came to be enlarged into descendible - estates—The nature of Reliefs—Feudal oppressions—The admission - of allodial lands into the feudal policy—The extension of the feudal system - in France.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XII"><span class="gesperrt">LECT.</span> XII.</a></td> - </tr> - <tr> - <td><i>Consequences attending the introduction of estates of inheritance—The - incident of homage—Differences in England and the Continent, with regard - to the ceremonies of homage and fealty—The fine of alienation—Attornment—Warranties—Wardship - in chivalry.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XIII"><span class="gesperrt">LECT.</span> XIII.</a></td> - </tr> - <tr> - <td><i>Wardship in Socage—The nature and history of the incident of marriage.</i><span class="pagenum"><a id="FM_Page_xii"></a>[xii]</span></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XIV"><span class="gesperrt">LECT.</span> XIV.</a></td> - </tr> - <tr> - <td><i>The rules of descent in the old feudal law in regard to the sons of the - last possessor—Representation and collateral succession—Feminine feuds.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XV"><span class="gesperrt">LECT.</span> XV.</a></td> - </tr> - <tr> - <td><i>The difference between allodial and feudal lands—The restrictions on - the feudal law—The decay of these—The history of voluntary alienations.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XVI"><span class="gesperrt">LECT.</span> XVI.</a></td> - </tr> - <tr> - <td><i>Involuntary alienations of feudal land—Talliage—Edward I. introduces - the first involuntary attachment of lands—Statutes enacted for this - purpose—Their effects—The origin of estates Tail.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XVII"><span class="gesperrt">LECT.</span> XVII.</a></td> - </tr> - <tr> - <td><i>The consequences and history of estates Tail.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XVIII"><span class="gesperrt">LECT.</span> XVIII.</a></td> - </tr> - <tr> - <td><i>The constitution of a feudal monarchy—The dignity and revenues of - the King—An examination of his power as to the raising of taxes and - subsidies.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XIX"><span class="gesperrt">LECT.</span> XIX.</a></td> - </tr> - <tr> - <td><i>The King’s power as to the making, repealing, altering, or dispensing - with laws.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XX"><span class="gesperrt">LECT.</span> XX.</a></td> - </tr> - <tr> - <td><i>Lords of Parliament or Peers—Earls or Barons—The earlier state - of Baronies in England—The Barones majores & minores—Barons by - writ and by letters patent—The different ranks of Nobility.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XXI"><span class="gesperrt">LECT.</span> XXI.</a></td> - </tr> - <tr> - <td><i>Earls or Counts as distinguished from Barons—The office of Counts—Their - condition after the conquest—Counties Palatine in England—Counties - Palatine in Ireland—Spiritual Peers—The trials of Noblemen.</i><span class="pagenum"><a id="FM_Page_xiii"></a>[xiii]</span></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XXII"><span class="gesperrt">LECT.</span> XXII.</a></td> - </tr> - <tr> - <td><i>The share of the Commons in the Legislature—The Armigeri or Gentry—Knights - Bannerets—The nature of Knighthood altered in the reign - of James I.—Knights Baronets—Citizens and Burghers—The advancement - of the power and reputation of the Commons.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XXIII"><span class="gesperrt">LECT.</span> XXIII.</a></td> - </tr> - <tr> - <td><i>The privilege of voting for Knights of the Shire—The business of - the different branches of the Legislature, distinct and separate—The - method of passing laws—The history and form of the legislature in Ireland.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XXIV"><span class="gesperrt">LECT.</span> XXIV.</a></td> - </tr> - <tr> - <td><i>Villenage—The Servi in Germany, mentioned by Cæsar and Tacitus, - the predecessors of the Socmen or socage tenants in the feudal monarchy—Villeins - in gross and villeins belonging to the land of the Lord—The - condition of villeins—The different ways by which a man may become a - villein—The means by which villenage or its effects may be suspended.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XXV"><span class="gesperrt">LECT.</span> XXV.</a></td> - </tr> - <tr> - <td><i>The methods invented to destroy villenage—The bent of the law of - England towards liberty—Copyhold tenants—Tenants in ancient demesne.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XXVI"><span class="gesperrt">LECT.</span> XXVI.</a></td> - </tr> - <tr> - <td><i>The condition and state of laws in England during the Saxon times—The - military policy of the Saxons not so perfect as that of the Franks—Their - Kings elective—The division of the kingdom into shires, hundreds, - and tithings—The administration of justice—The county court—The hundred - court and court leet—The court-baron—The curia regis—Method of - trial in the Saxon courts—The ordeal—The waging of law—The trial by - battle—Juries.</i><span class="pagenum"><a id="FM_Page_xiv"></a>[xiv]</span></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XXVII"><span class="gesperrt">LECT.</span> XXVII.</a></td> - </tr> - <tr> - <td><i>The punishment of public crimes and private wrongs among the - Saxons—The ranks of men among the Saxons—The difficulty of ascertaining - the nature of the Saxon estates, and the tenures by which they - were held—Observations to prove, that the Saxon lands were in general - allodial.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XXVIII"><span class="gesperrt">LECT.</span> XXVIII.</a></td> - </tr> - <tr> - <td><i>The Saxons, though their lands in general were allodial, were not - strangers to military benefices for life—The alterations introduced by - William the Norman, as to the tenure of lands in England.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XXIX"><span class="gesperrt">LECT.</span> XXIX.</a></td> - </tr> - <tr> - <td><i>The alterations introduced by William, as to the administration of justice—The - Judges of the Curia Regis are appointed from among the - Normans—The county courts decline—The introduction of the Norman - language—The distinction between courts of record, and not of record—The - separation of the spiritual and temporal courts—The consequences of - this measure.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XXX"><span class="gesperrt">LECT.</span> XXX.</a></td> - </tr> - <tr> - <td><i>Robert Duke of Normandy, and William Rufus, dispute the succession - to the Conqueror—The English prefer the latter—The forest laws—The - cruelty and oppressions of William—The advancement of Henry, the Conqueror’s - youngest son, to the crown of England—He grants a charter—The - nature of this charter—His dispute with Anselm concerning Investitures—The - celibacy of the clergy—State of the kingdom under Stephen.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XXXI"><span class="gesperrt">LECT.</span> XXXI.</a></td> - </tr> - <tr> - <td><i>Henry II. succeeds to the crown—The reformation of abuses—Alterations - introduced into the English law—The commutation of services into - money—Escuage or Scutage—Reliefs—Assizes of novel disseisin, and other - assizes.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XXXII"><span class="gesperrt">LECT.</span> XXXII.</a></td> - </tr> - <tr> - <td><i>The institution of Judges itinerant, or Justices in Eyre—The advantages - attending it—The jurisdiction of these Judges—Their circuits—The<span class="pagenum"><a id="FM_Page_xv"></a>[xv]</span> - present form of transacting the county business—The division of the Curia - Regis into four courts—The jurisdiction of the court of King’s Bench.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XXXIII"><span class="gesperrt">LECT.</span> XXXIII.</a></td> - </tr> - <tr> - <td><i>The jurisdiction of the high court of Chancery—The chancellor, a very - considerable officer in the Curia Regis—The repeal of letters patent, improvidently - issued to the detriment of the King or the subject, a branch of the - jurisdiction of the court of Chancery—The Chancery, assistant to the Exchequer - in matters of the King’s revenue—Other branches of the business - of this court.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XXXIV"><span class="gesperrt">LECT.</span> XXXIV.</a></td> - </tr> - <tr> - <td><i>The court of Common Bench or Common Pleas—The jurisdiction of this - court—Actions real, personal, or mixt—The court of Exchequer—The - jurisdiction of this court—Exchequer chamber—The judicature of Parliament.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XXXV"><span class="gesperrt">LECT.</span> XXXV.</a></td> - </tr> - <tr> - <td><i>Henry II’s dispute with Becket—The constitutions of Clarendon—The - murder of Becket.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XXXVI"><span class="gesperrt">LECT.</span> XXXVI.</a></td> - </tr> - <tr> - <td><i>The rebellions of Henry’s sons—He is succeeded by Richard I.—The - steps taken at this period towards settling the succession to the kingdom—The - laws of Oleron—Accession of John—His cruelty and oppressions.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XXXVII"><span class="gesperrt">LECT.</span> XXXVII.</a></td> - </tr> - <tr> - <td><i>John’s dispute with the court of Rome—Cardinal Langton promoted - to be Archbishop of Canterbury—Pope Innocent lays the kingdom under an - interdict—John is excommunicated—His submission to Innocent—The discontents - of the Barons—Magna charta and charta de Foresta—An examination - of the Question, Whether the rights and liberties, contained in - these charters, are to be considered as the antient rights and liberties of<span class="pagenum"><a id="FM_Page_xvi"></a>[xvi]</span> - the nation, or as the fruits of rebellion, and revocable by the successors of - John?</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XXXVIII"><span class="gesperrt">LECT.</span> XXXVIII.</a></td> - </tr> - <tr> - <td><i>The minority of Henry III.—Ecclesiastical grievances—The dispensing - power—The canon law—Confirmation of Magna Charta—A commentary - on Magna Charta, in so far as it relates to what now is law.</i></td> - </tr> - <tr> - <td class="tdc"><a href="#LECTURE_XXXIX"><span class="gesperrt">LECT.</span> XXXIX, XL, XLI, XLII, and XLIII.</a></td> - </tr> - <tr> - <td><i>Continuation of the commentary on Magna Charta.</i></td> - </tr> -</table> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_i"></a>[i]</span></p> - -<h2 class="nobreak"><span class="smcap"><span class="smaller">A</span><br> -DISCOURSE<br> -<span class="smaller">concerning the</span><br> -LAWS and GOVERNMENT<br> -<span class="smaller">of</span><br> -ENGLAND.</span></h2> - -</div> - -<p>The last conquest attempted under the Roman Republic -was that of Britain. Julius Cæsar, on the pretence that -its states had given assistance to the Gauls, but chiefly from a -motive of glory, carried the Roman Eagles into a country from -which he was to retreat with disgrace. It required a length of -time, and a succession of able Proconsuls to reduce to subjection -Communities of fierce and independent warriours; and -policy effected what could not be operated by arms. The -Britains were debauched into a resemblance with a most corrupted -people. They renounced the fatigues of war for the -blandishments of peace. They forsook their huts for palaces; -affected a costliness of living, and gave way to a seducing voluptuousness. -They sunk into an abject debasement, without having -run that career of greatness, which, in general, precedes -the decline of nations; and, when they were trained to an oppressive -yoke, the Romans found it necessary to abandon them. -The impression which the barbarous tribes had made upon the -Empire required the presence of the distant legions<a id="FNanchor_1" href="#Footnote_1" class="fnanchor">[1]</a>.</p> - -<p><span class="pagenum"><a id="Page_ii"></a>[ii]</span></p> - -<p>The liberty which the Romans, on their departure, presented -to the Britains, could not be enjoyed by them. Timid and -dastardly, they fled before the Picts and Scots, and allowed -their country to be ravaged by a cruel and undisciplined enemy. -Amidst the suggestions of their fear, they forgot every principle -of policy and of prudence; they called to their defence a foreign -valour. The Saxons were invited to fight their battles; -but they acted not long as protectors. They were allured by -the prospect of compleating a settlement in this island; and the -total ruin of its inhabitants was projected. Despair gave a temporary -vigour and union to the Britains. They were unable, -however, to resist a people, accustomed to victory, and directed -by experienced commanders. The valiant and magnanimous -fell by the sword; the ignoble submitted to an ignominious servitude: -Wales afforded a retreat to some; and others found shelter -in Armorica<a id="FNanchor_2" href="#Footnote_2" class="fnanchor">[2]</a>.</p> - -<p>But, if the Saxon conquest was ruinous to the Britains, it was -yet attended with consequences which were lasting and important. -The sun of liberty revisited the island, and displayed itself -with uncommon lustre. The Saxons, independent in their -original seats, submitted not to tyrants in their new situation. -They laid the foundation of a political fabric, the most valuable -that has, at any time, appeared among men; and which, though -shaken by violent revolutions, a train of fortunate circumstances -has continued down to the present times. Fluctuations have -taken place between prerogative and liberty; but, accident and -wisdom have still conspired to preserve us from the fate of the -other kingdoms of Europe.</p> - -<p><span class="pagenum"><a id="Page_iii"></a>[iii]</span></p> - -<p>During the existence, however, of the Heptarchy, the Saxons -seem to have departed little from their original condition of Society. -The ferocious picture which Tacitus has drawn of the -Germans, is, with a few exceptions, characteristic of them. If -we admire their heroism, we are shocked with their cruelty; -and if we are in love with their democratical maxims, we must -sometimes regret their contempt of justice and of order. The -most important innovation introduced into their manners during -this æra was their conversion to christianity. But their acquaintance -with this mode of faith failed to be productive of -beneficial consequences. As they received it from the corrupted -source of the Church of Rome, it involved them in endless and -idle disputes. It detracted from the vigour of their understanding, -by turning their attention from civil precautions, and the arts of -policy, to the relics of saints, and the severities of religious discipline. -The power derived from it intoxicated ecclesiastics: -They presumed to interfere in affairs of state; and, a foundation -seemed already to be laid for subjecting the island to the -dominion of the Roman Pontiff<a id="FNanchor_3" href="#Footnote_3" class="fnanchor">[3]</a>.</p> - -<p>When the Saxon kingdoms were consolidated into one state -under Egbert, improvements were made in civility and knowledge. -The incursions of the Danes, and the disorders resulting -from them, called forth the ability and the wisdom of the -Anglo-Saxon Princes. Alfred, notwithstanding the other important -transactions of his reign, found leisure to frame into a -code the laws of his predecessors, and those Germanic customs -which had retained their influence. King Edgar has likeways -come down to us with the character of an able legislator. The -establishment of the Danes in England gave occasion to new -usages and new laws; but these were neither many, nor<span class="pagenum"><a id="Page_iv"></a>[iv]</span> -considerable<a id="FNanchor_4" href="#Footnote_4" class="fnanchor">[4]</a>. The ability of Canute did not allow him to make -distinctions between his Danish and his English subjects; and -the sceptre was not long in returning to a prince of the Saxon -line. No Monarch was ever more acceptable to a State than -Edward the Confessor; and, though he had rather the qualities of -a saint than those of a king, his laws have been highly extolled. -They were strenuously contended for during the administration -of the earlier Norman princes; they kept their ground in opposition -to the clergy and the imperial institutions; and they -furnished the foundation of what is termed the Common Law -of England<a id="FNanchor_5" href="#Footnote_5" class="fnanchor">[5]</a>.</p> - -<p><span class="pagenum"><a id="Page_v"></a>[v]</span></p> - -<p>In no portion of the Anglo-Saxon period does the power of -the Sovereign appear to have been exorbitant or formidable. -The enaction of Laws, and the supreme sway in all matters, -whether civil or ecclesiastical, were vested in the <i>Wittenagemot</i>, -or great National Assembly<a id="FNanchor_6" href="#Footnote_6" class="fnanchor">[6]</a>. This council consisted of King, -Lords, and Commons, and exhibited a species of government, -of which political liberty was the necessary consequence; as its -component parts were mutually a check to one another. The -free condition of the northern nations, and the peculiarity of -their situation when they had made conquests, gave rise to this -valuable scheme of administration, and taught the politicians of -Europe what was unknown to antiquity, a distinction between -despotism and monarchy.</p> - -<p>The executive power remained with the crown; but it was -the united assent of the three estates which constituted the legislature. -The Lords were spiritual as well as temporal; for notwithstanding -that the Ecclesiastics preached humility, and the -contempt of private interest, they had been seized with ambition -and the love of superiority<a id="FNanchor_7" href="#Footnote_7" class="fnanchor">[7]</a>. The people exercised an<span class="pagenum"><a id="Page_vi"></a>[vi]</span> -authority that was important and ample. The counties appeared -by their knights, and the cities and boroughs by their -citizens and burgesses; the Commons, as at this day constituted, -being included under the appellation of the <i>wites</i> or <i>sapientes</i>, -who are always mentioned as a part of the Anglo-Saxon -parliament<a id="FNanchor_8" href="#Footnote_8" class="fnanchor">[8]</a>. The assertors of prerogative, indeed, have<span class="pagenum"><a id="Page_vii"></a>[vii]</span> -affirmed that these were judges or men skilled in the law; but this<span class="pagenum"><a id="Page_viii"></a>[viii]</span> -opinion they support by very exceptionable evidence<a id="FNanchor_9" href="#Footnote_9" class="fnanchor">[9]</a>: And it<span class="pagenum"><a id="Page_ix"></a>[ix]</span> -has been conjectured, with no measure of propriety, by some -compromising writers, that all the more considerable proprietors -of land had a title, without any election, to give their votes in -the Wittenagemot<a id="FNanchor_10" href="#Footnote_10" class="fnanchor">[10]</a>.</p> - -<p>In inferior assemblies, and in the forms of judicial proceedings, -the marks are also to be traced of the power of the people, -and of a limited administration. The hundred and county -courts were admirably calculated for the protection of the subject. -They were composed of <i>freeholders</i>, who were bound, under -a penalty, to assemble at stated times; and who, with the -hundreder, earl and bishop, gave decision in all matters of civil, -criminal, or ecclesiastical import. A very powerful obstruction -was thus created to the oppressions of the great. And, in the -institution of a <i>jury</i>, our ancestors possessed a bulwark, the most -efficacious and noble that human wisdom has ever devised for -the security of the persons and possessions of men<a id="FNanchor_11" href="#Footnote_11" class="fnanchor">[11]</a>.</p> - -<p><span class="pagenum"><a id="Page_x"></a>[x]</span></p> - -<p>Nor was the condition of those times so entirely destitute of -grandeur as some historians have been fond to assert. Even -in the age of Tacitus, London was a port not unknown to navigators -and traders<a id="FNanchor_12" href="#Footnote_12" class="fnanchor">[12]</a>; and we have the authority of Bede, that -England abounded at an early period with cities which were -wealthy and populous<a id="FNanchor_13" href="#Footnote_13" class="fnanchor">[13]</a>. Alfred was particularly attentive to -encourage industry, trade and manufactures; and even imported -the luxuries of life from the most distant countries<a id="FNanchor_14" href="#Footnote_14" class="fnanchor">[14]</a>. It -was a law of Athelstane, that the merchant, who had performed -at his own expence three long and hazardous voyages, should -be invested with nobility<a id="FNanchor_15" href="#Footnote_15" class="fnanchor">[15]</a>. Civility and knowledge, commerce -and wealth increased under Edgar, whose ability and affable -manners allured many foreigners to his court; and affairs did -not degenerate, nor was England less respectable under the -peaceful and fortunate administration of Edward the Confessor.</p> - -<p>But the beautiful pre-eminence on the side of the people, -enjoyed during the Saxon times, was soon to be violated. The -invasion of the duke of Normandy was about to introduce sanguinary<span class="pagenum"><a id="Page_xi"></a>[xi]</span> -and oppressive times. We must not, however, with a -multitude of authors, be deceived into the opinion, that this -warriour and statesman atchieved a <i>conquest</i> over the constitution -and the people of England. He made effectual by arms his -right of succession to Edward; but he received the crown with -all its inherent properties. He took the oath which had been -prescribed to the Saxon princes; he acknowledged himself to -be equally under restraint and limitation; and he engaged -to preserve the immunities of the church, and to act according -to the laws. The victory he obtained at Hastings was over the -person of Harold, and not over the rights of the nation<a id="FNanchor_16" href="#Footnote_16" class="fnanchor">[16]</a>.</p> - -<p><span class="pagenum"><a id="Page_xii"></a>[xii]</span></p> - -<p>His accession, at the same time, it will be allowed, was a -source of inquietude and confusion. Dominion is ever consequent -on property; and the forfeited estates of the nobility and -the landed proprietors who had assisted Harold, or who had afterwards -joined in insurrections, having been bestowed by him -on his officers; and the high rank of many of these requiring -very ample retributions, a great proportion of territory was necessarily -vested in the hands of a few. Nor was it favourable -to the spirit of democracy, that the donations of William were -governed by the more extended notions of the feudal law.</p> - -<p>This polity, which was common to the northern tribes, had not -been unknown to our Saxon ancestors; but, though they were -familiar with grants, which were precarious, or which endured -for a term of years, or during the life of the feudatory, they -had seen few examples of the perpetuity of the fief. They had -not been accustomed to the last step of the feudal progress; -but a tendency to its establishment was observable among them; -and, if the invasion of William had never taken place, the institutions -of this law had yet arrived at their highest point. He -only hastened what the course of time was about to produce by -slow degrees: It was a result of his administration, that, before<span class="pagenum"><a id="Page_xiii"></a>[xiii]</span> -the end of the reign of Henry II. fiefs, in their more enlarged -condition, had spread themselves over England<a id="FNanchor_17" href="#Footnote_17" class="fnanchor">[17]</a>.</p> - -<p>This plan of political law, which had been propitious to liberty -and conquest in its rise, was prejudicial to both in its decline; -and the same institutions, which in one situation, conducted -to greatness, led the way in another to confusion and -anarchy<a id="FNanchor_18" href="#Footnote_18" class="fnanchor">[18]</a>. The advantages which distinguished their earlier -state, were unknown when they had attained the ultimate step -of their progress. When fiefs had become hereditary, the association -of the chief and the retainer, or the lord and his vassal, -had no longer for its support, any other tie than that of land<a id="FNanchor_19" href="#Footnote_19" class="fnanchor">[19]</a>; -and, if the possessor of a fief was less attached to his followers, -he was less dependent on, and less connected with his prince. -The system had lost the circumstances, which formerly had fitted -it so admirably for war; and the few regulations it included -with regard to peace and domestic policy, were rather calculated -for the narrow circle of a nascent community, than for the -complicated fabric of an extensive empire.</p> - -<p>The exorbitant grants, which it was necessary that duke William -should make, the full establishment of the perpetuity of the -fief, and the consequent investment of offices of rank and of dignity -in particular families, introduced all the disorders of aristocracy. -The most princely dominion was in general claimed and exercised -by the great<a id="FNanchor_20" href="#Footnote_20" class="fnanchor">[20]</a>. They assumed the right of declaring war<span class="pagenum"><a id="Page_xiv"></a>[xiv]</span> -against each other of their private authority; they coined money; -and they affected to exert without appeal every species of -jurisdiction. But while they disputed in the field the prize of -military glory, or vied in displays of magnificence and grandeur, -their tenants and vassals were oppressed to supply their -necessities; and, amidst the unbounded rapine and licentiousness -which arose, no legal protection was afforded to individuals<a id="FNanchor_21" href="#Footnote_21" class="fnanchor">[21]</a>. -There was no safety for the helpless but in associations -with the powerful; and to these they paid attention and service. -The tribunals of justice became corrupted; and decisions were -publickly bought from the judges. New sources of oppression -were thought of; and none were infamous enough to be rejected. -The feudal casualties were exacted with the most rigorous -severity; and, while the kingdom appeared to be divided into -a thousand principalities, the people were nearly debased into a -state of servility.</p> - -<p>On a superficial view, one would be apt to imagine, that, in -regard to competition, the nobles of those times were considerably -an overmatch for the prince. But Barons, whose chief recommendations -were the military virtues, who were haughty -and independent, and often inflamed against each other with -the fiercest animosity, could not always act in a body, or by fixed -and determined maxims. It was not so with the sovereign:<span class="pagenum"><a id="Page_xv"></a>[xv]</span> -The master of operations, which depended on himself, he could -speculate in silence, and watch the opportunities of action. The -advantages he derived from his situation were powerful. Not -to mention his prerogatives and his revenue; the returns of -feudal service reminded the nobility of their subjection to him; -and the inferior orders of men, regarding these as their immediate -oppressors, looked up to him as to their guardian.</p> - -<p>Amidst the lawless confusion introduced by the struggles between -regal and aristocratical dominion, the constitutional rights -of the Commons seem to have received a temporary interruption, -and to have been insulted with a temporary disregard. Their -assembling in parliament grew to be less frequent and less effectual; -and for a season, perhaps, was altogether suspended. But -notwithstanding the disorder occasioned by these struggles, they -were in time productive of effects which were beneficial to the -people. For if the charter, confirming their <i>ancient</i> liberties, -which was granted by Henry I. renewed by Stephen, and continued -by Henry II. had remained without a due and proper -force; the confederacy of the barons produced under king -John and Henry III. the revival and the exercise of the most important -privileges. The <span class="smcap">magna charta</span> brought back, in -some measure, the golden times of the Confessor. It appeared -to the barons, that they could not expect the assistance of the -people, if, in treating with John, they should only act for their -own emolument; they were therefore careful that stipulations -should be made in favour of general liberty. The people were -considered as parties to transactions which most intimately concerned -them. The feudal rigours were abated; and the privileges, -claimed by the more dignified possessors of fiefs, were communicated -to inferior vassals. The cities and boroughs received -a confirmation of their <i>ancient</i> immunities and<span class="pagenum"><a id="Page_xvi"></a>[xvi]</span> -customs<a id="FNanchor_22" href="#Footnote_22" class="fnanchor">[22]</a>. Provisions were made for a proper execution of -justice; and in the restraints affixed to the power of the king -and the nobility, the people found protection and security.</p> - -<p>The sovereign, no less than the nobles, was an enemy to public -liberty; and yet both contributed to establish it. Stephen -gave the example of a practice, which as it served to enfeeble -the aristocracy, was not forgotten by his successors. In the -event of the reversion to the crown of a great barony, he gave -it away in different divisions; and the tenants <i>in capite</i> produced -in this manner, threw naturally their influence into the scale -of the commons. The partitions, also, which the extravagance -of the nobility, and the failure of male-heirs, introduced into -great estates, contributed to restore the democracy. It was a -result, likeways, of the madness of the Crusades, that many adventurers -to the east returned with more cultivated manners, -and more improved notions of order and liberty; and the romantic -glory of acquiring a renown there, had induced many -potent barons to dispose of their possessions. The boroughs -hastened to recover the shock, which they had received during -the violent administrations of William and of Rufus<a id="FNanchor_23" href="#Footnote_23" class="fnanchor">[23]</a>; and, if -charters of corporation and community were granted seldom -during the reigns of Henry I. and of Stephen, they were frequent<span class="pagenum"><a id="Page_xvii"></a>[xvii]</span> -under Henry II. Richard I. king John, and Henry III. -During the sovereignty, accordingly, of the last, and during that -of Edward I. the acquisitions secured by the Commons appeared -so considerable, that their assembling in parliament became -a matter of greater regularity, and they rose to their ancient importance -from the disorder into which they had been thrown -during agitated and turbulent times.</p> - -<p>The 49th year of Henry III. and the 23d year of Edward I. -which so many writers consider as the dates of the establishment -of the Commons, were, of consequence, nothing more than -memorable epochs in their history<a id="FNanchor_24" href="#Footnote_24" class="fnanchor">[24]</a>.</p> - -<p><span class="pagenum"><a id="Page_xviii"></a>[xviii]</span></p> - -<p>Under Edward I. the constitution received a stability to -which it was no less indebted to his military than his civil capacity.<span class="pagenum"><a id="Page_xix"></a>[xix]</span> -The wars and expeditions in which he engaged, involved -him in immense expence; and calling for supplies, rendered -him particularly attentive to the people. The feudal -force of the kingdom could not be employed by him with efficacy. -In the decline of the gothic system, the nobles were not -sufficiently in subjection to the prince; and their service was -limited to a narrow period. In the reign, indeed, of Henry II. -a pecuniary payment had been substituted in the place of the<span class="pagenum"><a id="Page_xx"></a>[xx]</span> -personal attendance of the military vassal; and the custom had -prevailed of hiring soldiers of fortune. But, amidst the prevalence -of private and mercenary views, the generous principles -which had given solidity to the feudal fabric<a id="FNanchor_25" href="#Footnote_25" class="fnanchor">[25]</a>, having totally -decayed, and the holding by a military tenure having ceased to -be considered as an honour; vassals thought of eluding the duties -to which they were bound by their possessions, and granting -them away in fictitious conveyances, received them back under -the burden of elusory or civil donations. It even grew to be -usual among tenants to refuse the pecuniary payments, or the -<i>scutages</i> to which they were liable: They denied the number of -their fees; they alledged that the charge demanded of them -was not justified by their charters; and, while the prince was -ready to march against an enemy, it was not convenient to look -into records and registers. The sovereign deprived of his service, -and defrauded of his revenue, and under the necessity of -levying a military force, had no resource so secure or abundant -as the generosity of the people<a id="FNanchor_26" href="#Footnote_26" class="fnanchor">[26]</a>.</p> - -<p>The admirable improvements with which Edward enriched -the laws, and facilitated the preservation of domestic peace and<span class="pagenum"><a id="Page_xxi"></a>[xxi]</span> -order, contributed also with the greatest efficacy to advance and -secure the liberties of England. He established the limits of -the different courts; he gave a check to the insolence and encroachments -of the clergy; he abrogated all inconvenient and -dangerous usages; and the great charter, and the charter of -the forest, received from him the most ample settlement<a id="FNanchor_27" href="#Footnote_27" class="fnanchor">[27]</a>.<span class="pagenum"><a id="Page_xxii"></a>[xxii]</span> -The sagacity of his precautions and policy procured to him -most deservedly the name of the <i>English Justinian</i>; and it may be<span class="pagenum"><a id="Page_xxiii"></a>[xxiii]</span> -mentioned as a convincing proof, both of his genius, and of his -having studied the welfare of his people, that, to the form into -which he modelled the common law, as to the administration -of common justice, the wisdom of succeeding times has not -been able to add any considerable improvements<a id="FNanchor_28" href="#Footnote_28" class="fnanchor">[28]</a>.</p> - -<p>The crown of Edward I. but not his talents, descended to -Edward II. The indolence, however, and the incapacity of -the last prince, joined to his absurd passion for favourites, -though they rendered his reign tumultuous and unhappy, were -no less favourable to the dignity of parliament, and the power<span class="pagenum"><a id="Page_xxiv"></a>[xxiv]</span> -of the people, than the excellent administration of Edward III. -and the necessities to which he was subjected by his ambition -and his prowess. A weak prince may lose the prerogatives -transmitted to him; but will never be the founder of a despotism. -A high-spirited monarch, dependent for resources on -his people, may carry destruction and ruin into the country of -an enemy, but will not easily be induced to attack the liberty -and the prosperity of his own kingdom.</p> - -<p>The sons of Edward III. had contributed, while he lived, to -his grandeur, and that of the nation; but no sooner was he laid -in his grave, than they excited commotions. The ambition of -their posterity was still more pestilent and fatal. The wars between -the Houses of York and Lancaster deluged England with -blood. The passions of men were driven into rage and phrenzy; -and in the massacres, rather than the battles that ensued, conquest -or death seemed the only alternative. But while we turn -with sorrow from this bloody period of our story, our sympathy -is softened by the recollection, that the contending princes -brought accessions to liberty, by adding to the weight of the -Commons. The favour and countenance of the people were -anxiously solicited by both factions; and their influence failed -not to grow, while the means of extending it were offered, -and while they were courted to seize them<a id="FNanchor_29" href="#Footnote_29" class="fnanchor">[29]</a>.</p> - -<p>The nation, when satiated with the calamities of civil war, -thought of uniting the claims of the two hostile families. Henry -VII. the heir of the House of Lancaster, was married to -Elizabeth, the heiress of the House of York. This prince affected<span class="pagenum"><a id="Page_xxv"></a>[xxv]</span> -to be profound, and he has obtained that character. But -the condition of Europe at the time in which he lived, and the -situation in which he found himself, pointed out to him his -strain of conduct. He was more mysterious than wise; more -prudent than enterprizing; and more a slave to avarice than -ambition. Without having intended it, he placed the grandeur -of the Commons on the most solid foundation. In the liberty -which he granted to the nobility of breaking their entails, -he saw only the degradation of that order. The civil -wars had involved them in great expence; and the growing -commerce and refinement of the times, exposed them to still -greater. Their princely possessions flowed from them to give -dignity to the people<a id="FNanchor_30" href="#Footnote_30" class="fnanchor">[30]</a>.</p> - -<p>Henry VIII. had no certain character, and was actuated by -no fixed and determined maxims. He had not the ability to -form, nor the firmness to put into execution a deliberate scheme -to overturn the liberties of his country. With less capacity -than his ancestor, his reign was more splendid; and, with a -more imperious temper, he had the art or the felicity to preserve -the affection of his subjects. The father removed the pillar -which supported the power of the nobles: The son gave a -mortal blow to the influence of the clergy. In the humiliation -of both, the Commons found a matter of triumph. The<span class="pagenum"><a id="Page_xxvi"></a>[xxvi]</span> -Reformation, though it interrupted the progress of literature, -was yet highly conducive to civil liberty. The church in losing -an authority which it had never merited, and which it had -often abused, sunk into a dependence on government. The -supremacy returned to the sovereign to whom it originally belonged, -and with whom it ought constantly to have remained. -The visitation of the monasteries discovered more than the inventions -of a pious fraud; vices and abuses which cannot be -described, without conveying to the mind the impression of -whatever is most wicked and most dishonourable: Their suppression -gave encouragement to industry and to the arts; and -their wealth diffused in a thousand channels, circulated through -the kingdom.</p> - -<p>The Reformation advanced under Edward VI. but it was -destined that this prince should only make his appearance on -the stage of public life, and give the hope of an able administration. -The sway of Mary was a paroxysm of religious madness. -She knew not, that when the individuals of a kingdom have agreed -to adopt a new religion, it is the duty of the sovereign -to give a sanction to it. The reformed were about to experience -whatever cruelty the extremity of a mistaken zeal can inflict. -But the fires lighted by Gardiner, Bonner, and such -abominable men, brought no converts to popery. The dread -of endangering the succession of Elizabeth prevented the parliament -from giving a check to the obstinate malignity and the -sanguinary rage of this unworthy queen; or, perhaps, the nation -had scarcely recovered the astonishment into which it was -thrown by the atrocity of her deeds, when, in the sixth year of -her reign, superstition, peevishness, and the most selfish and unhappy -passions, put an end to her life.</p> - -<p>Elizabeth, who had learned wisdom from misfortune, attained -the summit of political glory. The perilous condition of<span class="pagenum"><a id="Page_xxvii"></a>[xxvii]</span> -affairs, on her commencing to reign, required singular moderation -and ability, and she exerted them. A sagacity, almost incapable -of mistake, directed all her operations<a id="FNanchor_31" href="#Footnote_31" class="fnanchor">[31]</a>. England -grew in commerce and advantages, while the rest of Europe -was agitated with contentions, and debated with the tyranny of -power. Her jealousy of prerogative was corrected by her attachment -to the felicity of her people; and the popularity with -which she reigned is the fullest proof that she preserved inviolated -all the barriers of liberty<a id="FNanchor_32" href="#Footnote_32" class="fnanchor">[32]</a>. The reformation which the -folly of her predecessor had interrupted, was compleated by her -prudence.</p> - -<p>This accomplished princess was succeeded by James VI. of -Scotland. He substituted, in the place of ability, the affectation -of it. The English nation received him with marks of respect -which they were not to continue long. With high notions -of kingly dignity, all his actions tended to degrade it;<span class="pagenum"><a id="Page_xxviii"></a>[xxviii]</span> -and, while his littleness rendered him contemptible at home, he -became an object of ridicule abroad, from his ignorance of -foreign politics. Careless in the choice of his ministers, and -supremely conceited of his own wisdom, his reign brought no -glory to the crown.</p> - -<p>The great improvement, which, about this period, displayed -itself in the national manners, diffused among all ranks of men -very enlarged ideas concerning the nature and principles of -civil government. The arts had been cultivated with uncommon -success. Discoveries had been made in the most distant -regions of the globe. Commerce had brought great accessions -of wealth. The balance of property had turned with no equivocal -direction to the side of the people.</p> - -<p>It was not an age for fastidious and tyrannical maxims. The -Commons knew all their strength, and were determined to employ -it. The prince endeavoured in vain to impress them with -his exorbitant notions of regal authority. Every complaint -and grievance of the subject were inquired into; every suspicious -and inclement act of prerogative was opposed. The doctrines -of the divine right of kings, and of passive obedience, -were now first heard of, and alarmed and astonished the nation. -Pretensions to power, destructive of the natural and inherent -privileges of humanity, and inconsistent with every principle of -common sense, were asserted from the pulpit, were claimed by -the sovereign. The extravagance of James awakened the thunder -which was to burst on the head of his successor.</p> - -<p>Charles I. had imbibed the same lofty conceptions of kingly -power; and his character was marked by the same incapacity -for real business. His situation required insinuation and address;<span class="pagenum"><a id="Page_xxix"></a>[xxix]</span> -but he affected the utmost stateliness of demeanor. He -disgusted the Commons; he insulted the people. To the exercise -of his authority, he fancied there was no limitation. Inflamed -with opposition, he presumed to attack whatever was -most sacred, and most valuable among men. The imprudence -of Buckingham had not softened his obstinacy: His Queen was -indiscreet, and he confided in her. The violent councils of -Strafford precipitated his own and the ruin of his master. The -religious foppery of Laud completed what the incapacity of -James had begun: It was the cement of union between the -friends of liberty and the sect of the Puritans. The people beheld -with a fixed and a general indignation the insult and the -violence which were offered to the majesty of their laws, and to -their constitution. The flames of civil discord were kindled. -England was torn during six years with political and religious -fury. The unfortunate Charles atoned at length by his death -the disorders he had occasioned. The delegates of the people -pronounced him guilty of misgovernment and breach of trust. -“The pomp, says an eloquent historian, the dignity, the ceremony -of this transaction, corresponded to the greatest conception -that is suggested in the whole annals of human -kind<a id="FNanchor_33" href="#Footnote_33" class="fnanchor">[33]</a>.”</p> - -<p><span class="pagenum"><a id="Page_xxx"></a>[xxx]</span></p> - -<p>Cromwel, the immediate cause of the death of Charles, and -of those circumstances of censure which accompanied it, astonished -at the height, to which, in the course of the civil wars, -his ambition had carried him, was induced to aspire still higher. -His genius was great, his fortune greater. On the abolition of -monarchy, he introduced into England a military despotism, -under the appellation of a common-wealth<a id="FNanchor_34" href="#Footnote_34" class="fnanchor">[34]</a>. From an inferior -rank, he had risen gradually to direct the affairs of a powerful -nation. Though irregular in his politics, the vigour of his -conduct brought signal glory to his councils and his arms. -But the fabric he had built was ill-contrived and ill-cemented; -its parts were disproportioned; and it rested on no solid foundation. -It began to totter during his own life. His son Richard -had none of the talents of an usurper. The minds of -the people united in an anxious wish for the re-establishment of -the ancient constitution; and general Monke acquired the honour -of the peerage, and the fame of uncommon political sagacity,<span class="pagenum"><a id="Page_xxxi"></a>[xxxi]</span> -for forwarding an event, which it was impossible to prevent.</p> - -<p>Charles II. never forgave the people of England for the misfortunes -he himself had suffered, nor for those of his House. -This monarch had quickness of parts, but possessed not that discernment -which sees into the future. He entered without reflection -into schemes and projects, and renounced them with -the same precipitation. Though an enemy to the constitution -of his country, and though in the interest of France, he was not -able to produce any lasting disadvantage to the kingdom. His -reign, though tumultuous, was not unfavourable to liberty. -The total abolition of the military tenures and their appendages, -which had place during his sovereignty, was a most important -acquisition to the people: It relieved their estates from -every source of legal oppression. The <i>habeas corpus</i> act, which -was some years posterior to it, offered the firmest security to -their persons. It produces in a court of justice the body of -every prisoner; it makes known the cause of every commitment; -and, if an individual has suffered confinement in opposition -to the law, though at the command of the king in council, -he is restored to his liberty, and has a claim of compensation -for the loss and the indignity his affairs and his honour -have sustained.</p> - -<p>The clamour against popery was loud and violent during the -long administration of Charles II. and yet the crown was permitted -to pass to the Duke of York. This confidence, so honourable -to the people, was abused by the sovereign. James II. had -the zeal of a monk, not the virtue and the talents of a great -king. His bigotry and his lust of power made him perpetrate -the most atrocious and the most insolent acts. Violating equally<span class="pagenum"><a id="Page_xxxii"></a>[xxxii]</span> -civil and religious liberty, his subjects deprived him of a -throne of which he was unworthy.</p> - -<p>In settling the crown on the prince and princess of Orange, -the wisest precautions were taken, that the religion, the laws, -and the liberties of England should never more be in danger of -being subverted. The limits of the prerogative were defined; -the extent of the freedom of the people was ascertained; and -the doctrine of resisting the prince, when he should presume to -encroach on the rights of the subject, was explained and illustrated<a id="FNanchor_35" href="#Footnote_35" class="fnanchor">[35]</a>.</p> - -<p>From the Saxon conquest, during a long succession of ages, -this fortunate island has never degenerated from liberty. In -the most inclement periods of its history, it despaired not of independence. -It has constantly fostered that indignant spirit -which disdains all subjection to an arbitrary sway. The constitution, -prospering under the shocks it received, fixed itself at -the highest point of liberty that is compatible with government. -May it continue its purity and vigour! and give felicity and -greatness to the most distant times!</p> - -<p class="right"><i>March 1775.</i></p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_1"></a>[1]</span></p> - -<h2 class="nobreak" id="LECTURES"><span class="smcap">LECTURES -ON THE -LAWS of ENGLAND.</span></h2> -</div> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<h2 class="nobreak" id="LECTURE_I">LECTURE I.</h2> - -<p><i>The intention and purposes of political society—Customs and manners govern men -before the enactment of positive Laws—Arts and property the sources of legislation—Peculiarities -attending the institutions of Lycurgus and those of Moses—In -the infancy of a state, laws are few and plain—In times of civility and refinement, -they are numerous and complicated—The liberty of the people, a great -cause of the multiplicity of laws—The difficulty of the study of the English law—The -methods which have been followed in the study of it.</i></p> - -</div> - -<p>Since every political society was originally framed for the general -benefit of the several individuals of which it was composed, in order -that, supported by the united strength of the whole community, each -person might have that security in his life, his liberty, his property, which, -unassisted in a state of nature, he could not of himself attain unto; and that, -instructed by the joint counsels and wisdom of the whole body, he might so -direct his actions, as to promote the public welfare, with which his own -safety and interest are necessarily connected; it follows, that, in such a state, -every man must, even for his own sake, in many things, sacrifice his private -judgment, and his natural liberty of action, to the will of that community to -which he belongs; which will, acting uniformly for the same purposes, cannot -fail of producing a number of fixed rules and regulations, to serve as -directions to the subjects, in such cases as are common, and frequently -occur.</p> - -<p><span class="pagenum"><a id="Page_2"></a>[2]</span></p> - -<p>Accordingly, we find, there never was a state or nation, even but one -degree removed from barbarity, that subsisted without some general customs, -at least, which supplied the place of positive laws, by which the conduct -of the several members of the society was to be governed, and for the -breach of which they were liable to punishment; and in such a submission the -very essence of political freedom consists. For, as M. Montesquieu very justly -observes, the liberty of man in a social state, different from that in a state -of nature, consisteth not in a power of acting, in all things, according to his -own judgment, but in acting according thereto, in subservience to the will -of the public, in being free to do all things the law prohibits not, and to -omit all things the law doth not enjoin<a id="FNanchor_36" href="#Footnote_36" class="fnanchor">[36]</a>.</p> - -<p>Hence, in all such infant states, the greatest respect is paid, and the -highest influence allowed to those, who, either by their age and experience, -or, by their application and labour, have arrived at a proficiency in the -knowledge of the customs and practices prevailing in their own and neighbouring -nations: <i>Qui mores hominum multorum vidit et urbes</i>, is the great -eulogium of the most accomplished hero of the heroic ages.</p> - -<p>It must be allowed, indeed, that, in societies so small that their members -are, in general, contented with little more than the bare necessaries of nature, -a few rules will be sufficient; and every man of a tolerable capacity -will, with a reasonable degree of observation, be, in some measure, qualified -to be his own lawyer. But when it shall happen that arts are not only -introduced, but become common among any people, when the comforts -and conveniencies of life are, in the public opinion, esteemed necessaries; -when the industry of some, and the negligence of others, have produced a -remarkable inequality in the goods of fortune; when riches hath brought -forth her offspring, insolence and oppression, and when envy and avarice -inflame the breasts of the indigent, it will be absolutely necessary to lay a -continual restraint on such violent passions, ready at every instant to destroy -the peace of society, and to tear it into pieces, and, for that purpose, to -form a great number of regulations, to curb those who have created to -themselves imaginary wants, and who no longer regulate their conduct by -the plain dictates of rude and simple nature. And as the condition of such a -nation must be perpetually changing, as new arts and gratifications will be<span class="pagenum"><a id="Page_3"></a>[3]</span> -continually invented, as the increase of commerce will every day open a prospect -of more various acquisitions, and insensibly introduce a general change -of manners in the people; and, above all, as the wits of men, checked in -their darling pursuits, will ever be at work to discover methods of eluding -those laws which they dare not openly infringe, there must ensue a constant -alteration and variation of the rules already in being, and a continual addition -of new ones to answer new and unforeseen emergencies. The laws, -therefore, of a nation so circumstanced, must increase to such a number, and -consist of so great a variety of particulars, as to render it impossible for the -generality of the subjects to be masters of them, and will oblige them to -resort to those whose easy circumstances and leisure have enabled them -thoroughly to comprehend and understand them; and among such a people -there must be <i>lawyers</i>, although, perhaps, not formed into a distinct and -separate profession, or known by that appellation.</p> - -<p>Great, undoubtedly, are the inconveniencies which attend a multiplicity -of laws, and very hard it seems, that all men should be obliged to obey a -rule, which it is confessed the majority are incapable of perfectly knowing; -but such is the natural and necessary course of things. If men will not be -contented to live in a state next to absolute barbarity, if they will enjoy the -conveniencies as well as the necessaries of life, if they will be secured against -the oppression and fraud of their fellow subjects, as well as against the violence -of strangers, they must submit to and abide by the consequences. And -so sensible of this necessity was the great Spartan legislator, that when he resolved -his state should admit of no addition to, or alteration of his regulations, -he wisely stopped up the sources from which new laws spring. Commerce, -and its instrument, money, were prohibited; all arts, except those -absolutely necessary, were interdicted, and the people, by constantly living -and eating in public, were not only accustomed, but necessitated to content -themselves with what simple nature requires. By these means (and by these -only, or by others similar to these, could it be accomplished) Lycurgus -gave a firmness and stability to his republic, which continued for several -hundred years, until conquest introduced wealth, and its necessary attendants, -which soon eat out the vitals of that singular constitution<a id="FNanchor_37" href="#Footnote_37" class="fnanchor">[37]</a>.</p> - -<p>The law of Moses, likewise, was invariable, and admitted of no additions -or alterations; and as, from the peculiar circumstances of the country,<span class="pagenum"><a id="Page_4"></a>[4]</span> -and its situation, there was no danger of an accumulation of wealth from -foreign commerce, so were the domestic regulations inimitably calculated to -prevent a great inequality of circumstances, and to oblige the nation in general -to a plain and simple life. All usury among the Israelites was prohibited, -the lands were alienable no longer than to the year of jubilee, at which -time they returned free to the original proprietor or his heirs; and, by the -invariable rules of descent, and the continual dividing of estates among all -the males in equal degree, every man was proprietor of some small patrimony, -and consequently obliged to live in a frugal and laborious manner<a id="FNanchor_38" href="#Footnote_38" class="fnanchor">[38]</a>. -Athens, on the contrary, the most commercial and the richest city of -Greece, abounded, above all others, in a multiplicity of laws, and those, -for the causes already mentioned, perpetually varying and changing. Rome, -while it continued a mere military state, was contented with a few, and -those such as were short and plain; but when, by the conquest of Carthage, -of Greece, and of Asia, floods of wealth were poured into Italy, the necessary -consequences soon followed. New laws were continually made, which, -being as continually eluded, of course gave birth to others. Every new -conquest brought an accession of riches, and became a source of farther regulations: -until, at length, they swelled to such a magnitude, as to become, -in the time of Justinian, an intolerable burthen: For, to say nothing -of the laws themselves, the <i>senatus consulta</i>, the <i>plebiscita</i>, the <i>edictum -perpetuum</i>, and the constitutions of the emperors, which were very voluminous, -the bare commentaries of the lawyers of authority amounted to -three thousand volumes.</p> - -<p>If we look around the nations that now inhabit Europe, we shall find -that the same causes have constantly, every where, produced the same effect. -How few, how short, how plain, and simple, were the antient laws -of the Saxons, the Franks, the Burgundians, the Goths, and the Lombards, -while each of them continued a plain and simple people<a id="FNanchor_39" href="#Footnote_39" class="fnanchor">[39]</a>. As they -increased in arts and wealth, as their kingdoms grew more powerful, either -from internal peace and commerce, or by the melting of different sovereignties -into one, we might see the laws gradually increase in number and in -length; this arose from the necessity their legislators were under, from the -different circumstances of the times and people, to enter into details of -which their ruder ancestors had no conception: and this augmentation hath<span class="pagenum"><a id="Page_5"></a>[5]</span> -ever been in proportion to the wealth and power of the people that was -obliged to admit it; as might easily appear by fixing on any one period, -and by comparing the laws of those nations where arts and trade were fully -established, with those of others where they had not yet got so firm a footing.</p> - -<p>Within these last two hundred and fifty years, the inhabitants of Europe -in general, particularly those that have any considerable share in universal -commerce, seem to have been seized with an epidemical madness of making -new laws; insomuch that there is scarce a state whose laws, since the year -1500, are not equal, if not superior, in number and bulk, to those made -in many preceding ages: an effect owing, partly to the decay of the old -military system, and to the necessity every government was under, to have -recourse to new methods for its support, when that failed; but principally -to the discoveries of America, and of the passage to the East Indies; which, -by the peaceful arts of industry and trade, have poured into modern Europe -an accession of treasure, equal to what was amassed in Italy by conquest -and rapine under the Roman empire. As Britain, during this interval, -shared more largely than any other country in this vast increase of wealth, -it is not surprising that her later laws have been numerous and voluminous -in proportion.</p> - -<p>But there is another cause peculiar to these nations, which hath not a little -contributed to the same end, namely, that happy constitution, and that liberty -in which we so justly glory. A constitution which lodges the supreme, -the legislative power in three different hands, each of which (if considered -apart) hath an interest separate and distinct from the other two, must -require a variety of wise regulations, so to ascertain their respective rights -and privileges, and so to poise and balance them, as to put it out of the -power of any one to overtop the others. A constitution that admits the -people, by representation, to so considerable a share of power, must have -many laws to determine the manner of elections, and the qualifications both -of electors and elected. A constitution that makes the preservation of political -freedom its great object, and that aims to defend the life, liberty, and -property of the meanest individual, not only against others of their own -rank, but even against the executive power of the society itself, must have -many extraordinary fences, and barriers, to protect the weak from the mighty. -Such a constitution must, more particularly than others, restrain its judges, -the dispensers of justice, who are, at the appointment of the crown, to follow<span class="pagenum"><a id="Page_6"></a>[6]</span> -the strict letter of the positive laws; lest, under the pretence of explaining -and extending them, the most valuable privileges of the people might be -betrayed, or rendered illusory. And this very restraint, so necessary in such -a form of government, will eternally (as new cases arise, which, not being in -the contemplation of the legislature at the time, were not comprehended in -the words of the old provisions) occasion the framing of new ones.</p> - -<p>The state and condition of these kingdoms are such, therefore, as necessarily -require a great number of laws; and heavy as the burden of them may -seem, it should be borne with chearfulness, by all who esteem the conveniencies -of life, and the perfection of arts, more than a rude and simple state -of nature; who think wealth more eligible than poverty, and power than -weakness; or lastly, who prefer our excellent form of government, and its -mild administration, to the despotic tyrannies of Asia, or the more moderately -absolute monarchies of Europe.</p> - -<p>From what hath been already observed, the difficulties attending this study -in these kingdoms will readily appear; but these, instead of discouraging, -should animate every gentleman, and inspire him with resolution to surmount -them; when he considers them as inseparable from the happy situation in -which we are placed, and that the character of an upright and skilful -lawyer is one of the most glorious, because one of the most useful to mankind; -that he is a support and defence of the weak, the protector of the injured, -the guardian of the lives and properties of his fellow citizens, the vindicator -of public wrongs, the common servant both of prince and people, and, -in these countries, the faithful guardian of those liberties in which we pride -ourselves, and which the bounteous Creator bestowed originally on all the -sons of Adam, and would have continued to them, had they continued -worthy of the blessing.</p> - -<p>From hence, likewise, abundantly appears the necessity of proper -methods being pointed out for the study of the laws, and of proper assistance -being given to the youth intended for this profession. This was always -allowed, and for this purpose were the inns of court originally founded; -and it must be owned, that in ancient times, they, in a great measure, answered -the end. Their exercises, in those days, were not mere matters of -form, but real tests of the student’s proficiency. Their readers laid down, -in their lectures, the principles of particular parts of the law, explained the<span class="pagenum"><a id="Page_7"></a>[7]</span> -difficulties, and reconciled the seeming contradictions, though, at the same -time, it must be owned, too many of them exerted themselves in displaying -their own skill and depth of knowledge in the profession, rather than in removing -the obstructions, and smoothing the ruggedness which are so apt to -discourage beginners, and which all beginners must meet in this untrodden -path, without a guide. But, since the time that these aids have been there -laid aside, and that, in the midst of so great and so rich a city, any degree -of restraint or academical discipline, to keep the students constantly attentive -to the business they are engaged in, hath been found impracticable, it -has been the wish of every considering person, that the elements of this -science should be taught in some more eligible place, where the students -may at once have the benefit of a proper method of instruction, and by -proper regulations be obliged to improve themselves in a study so important -both to them and the public.</p> - -<p>That the universities, the seats of all other branches of learning, are -the places most fit for this purpose, hath been so fully proved by -Mr Blackstone, in his preliminary lecture, not long since reprinted in this -kingdom, that it will be much more proper and decent for me to refer gentlemen -to that excellent performance, than to weaken his arguments, by repeating, -in other words, what he has demonstrated, with such force of -reason, and elegance of expression. I shall only add to what he hath observed, -that every other nation of Europe hath admitted the profession of -their municipal laws into their universities, and that the same hath been the -opinion and practice of almost every age and country, as far back as the lights -of history extend. Were not the laws of Egypt, as well as their religion, -physick, history, and sciences, taught in the colleges of their priests? It is -allowed by all, that the principal employment in the schools of the prophets -was the study of the law of Moses; and, to come to more modern times, -the very first universities that were ever founded by royal authority, were -the works of Roman emperors, and erected merely for this profession. -The famous academies of Rome for the west, and of Berytus for the east, -furnished that extensive empire with a constant succession of excellent lawyers, -whose names, and the fragments of whose works were held in the -highest honour, until the inundation of barbarians from the north of -Europe, and the prevailing arms of the Saracens in the east extinguished -the Roman government in those parts. But that of Constantinople, founded -soon after the translation of the seat of empire thither, had a more happy<span class="pagenum"><a id="Page_8"></a>[8]</span> -destiny, flourished with distinguished reputation to these later ages, and -perished not, but with the empire itself, when that city was taken by the -Turks. Nay, so sensible were the Arabs themselves, who destroyed the -Roman academy of Berytus, of the utility of such institutions, that, for -their own law, they erected others of the same nature in Bagdad<a id="FNanchor_40" href="#Footnote_40" class="fnanchor">[40]</a>.</p> - -<p>Another powerful reason for laying the foundation of this branch of learning -in these seats of literature, arises from the great utility, or rather, indeed, -necessity, that all gentlemen bred in them are under, of gaining a general -idea, at least, of the principles and practice of the law of their country. -How advantageous this would be to every rank of gentlemen, whether legislators, -magistrates, divines, or jurymen; and to all, in short, who have any -property, to preserve, or transmit, or who have wishes or desires to acquire -any, may be seen at large, illustrated by Mr Blackstone in the same performance. -And indeed, if, before the attempt, there could be any doubts -of the propriety of beginning this study in an university, the extraordinary -success of his lectures in Oxford, and the high reputation he hath so -justly acquired thereby, leave no room for entertaining such at present. For -though much of both must be attributed to the singular abilities of that -gentleman, yet it must be allowed that the most skilful gardener cannot -make a tree flourish in a soil unnatural to its growth. With the deepest -gratitude, therefore, should the members of this university acknowledge -the munificence, and the wisdom of our present most gracious Sovereign, -who established the present foundation for the benefit of the youth of -this kingdom.</p> - -<p>But if the importance of this institution to the public be considered, together -with the difficulties attending the just execution of it, when these -difficulties are enhanced by the novelty of the attempt, when the public -attention is engaged by that very novelty, and when the future success of -the foundation, may, perhaps, in some measure, depend on the opinion -conceived of it at the beginning; he must, indeed, be possessed of a very -overweaning opinion of his own abilities, who can undertake so arduous a -task, without feeling strong apprehensions at the first setting out. All the -return the person thought worthy by this learned body to fill this chair can -make them for so high an honour, and so important a trust, is to assure<span class="pagenum"><a id="Page_9"></a>[9]</span> -them, that the utmost care, and the greatest exertion of what knowledge -and abilities he possesseth, shall be employed to answer the ends proposed, -and to justify, as far as in him lies, the choice they have made. And if the -young gentlemen for whose benefit these lectures are designed, possessed -with a just notion of the great utility to themselves, and their country, -of the study they are engaged in, will exert that industry, for the honour -of their mother university, which hath made her so long famous for other -branches of learning; he doubteth not but his weak endeavours at the first -essay, will not only merit indulgence, but in the end be crowned with considerable -success. On their assiduity, as well as upon his skill, must the -success of the undertaking depend.</p> - -<p>In the next lecture the grounds and reasons of the plan proposed, as most -proper for the commencing this study in this university, shall be laid open, -in hopes that the students will proceed with the more alacrity, if they can -be once convinced they are set in the right track, and that, by the professor’s -laying before the public the inducements he had to prefer this before -any other, he may acquire information from the skilful of its errors and -imperfections, and, consequently, alter it, so as most effectually to answer -the useful ends of the institution.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_10"></a>[10]</span></p> - -<h2 class="nobreak" id="LECTURE_II">LECTURE II.</h2> - -<p><i>The plan of the present undertaking—The particulars in which it differs from -that adopted by Mr Blackstone—The different situations of the Universities of -Oxford and Dublin—The chief obstructions which occur to the student of the -English laws—The methods which may be employed to remove them—The law of</i> -things <i>more proper to introduce a system of jurisprudence than the law of</i> persons—<i>The -law of</i> things, <i>or of real property in England, has its source in the feudal -customs—The necessity of a general acquaintance with the principles of the feudal -polity—The method in which it is proposed to treat of it.</i></p> - -</div> - -<p>Having, in the preceding lecture, shewn the necessity of a proper -method being pointed out for the study of the laws of these kingdoms, -from the utility, as well as multiplicity of them; and having explained -from whence that multiplicity arises, and that it is inseparable from -the happy situation we are placed in; and having acknowledged the great -advantage the students of Oxford have received from Mr. Blackstone’s lectures, -it will doubtless be thought necessary, that something should be said -by way of illustration of the plan proposed to be followed here, and in -justification of its departure from the excellent one which that gentleman -has given us in his analysis. The method of instruction intended to be pursued -in this place is not proposed as more perfect, or absolutely better in itself, -but as one that appears more adapted to the circumstances of our students; -and as it will be allowed, that his course of lectures, in the manner -they proceed, hath some great advantages as to the finishing a lawyer, which -cannot be attained, and therefore should not be attempted here, it will be -particularly the duty of your professor to compensate for those, by guarding -against some inconveniencies, which the extensiveness of his plan must of -necessity subject young beginners to. I shall, therefore, proceed briefly to -compare the situation of the two universities, in hopes, by that consideration, -in some measure to vindicate the several particulars wherein I have -chosen to vary from his scheme. The attendance on the courts of Westminster-Hall, -when once a gentleman hath read and digested enough to -listen with understanding to what he there hears, hath, for a succession of<span class="pagenum"><a id="Page_11"></a>[11]</span> -ages, been allowed to be, and it must be owned is, the most effectual -means of accomplishing a lawyer, and fitting him for practice. In this respect -Oxford, in her proximity to Westminster, hath certainly an advantage, -as to her law students of above two years standing, who may at that time -be supposed capable of improvement by the arguments in the courts of law; -as she is thereby rendered capable of conjoining those two excellent methods -of instruction. Mr. Blackstone was fully sensible of this happy circumstance, -and, accordingly, his scheme is adapted to it. All the lectures there -are appointed at times that fall in the law vacations, and the course is general -and diffusive, not calculated merely for attendants of the first and -second years, but adapted also to those of a more advanced standing, and -consequently, in a manner equally copious, or very nearly so, illustrates -every one of the several branches of the English law. But this method, -however excellent in itself, and most eligible where gentlemen can have an -opportunity of attending the professor for several successive years, must, on -the other hand, be allowed to labour under some inconveniencies, especially -as to those who are yet novices, which, as it should be the particular care -of the professor here to obviate, it cannot be improper briefly to point out.</p> - -<p>As the lectures of the English professor are all read in the law vacations, -and in all of them, except the long one, when few young gentlemen of fortune -stay in the universities, the shortness of these vacations necessarily occasions -these lectures to follow each other in a very quick succession; and, accordingly, -we find that five are delivered in every week. It is impossible, -therefore, that the students at first should keep any manner of pace with -their professor in their private reading, without which the ablest performances -in the way of prelections will be of little utility. Many things in -the succeeding ones must be rendered very difficult, if not absolutely unintelligible, -for want of a due time for mastering and digesting those that preceded; -and another unhappy consequence of this quick succession is, that -the most useful and effectual method of instruction to beginners, at their -entrance upon any science, namely, a continued examination of the progress -they have made, is hereby entirely precluded, and rendered impracticable. -The great advantage of that method need not be enlarged upon in -this place, as every gentleman who hears me must be already fully satisfied -of it from his own experience.</p> - -<p><span class="pagenum"><a id="Page_12"></a>[12]</span></p> - -<p>But this university is circumstanced in a very different manner. The -necessity our students are under of repairing to Westminster, to finish their -studies, before they are called to the bar, and their incapacity to reap any -benefit from the courts of law while they reside here, render it impossible, -as well as unnecessary, to conjoin those two methods of instruction before-mentioned, -as is done at Oxford; and, by confining the professor to pupils -of two years standing or little more, make it highly improper for him -to enter minutely into those parts of the law his audience have not -yet had time to apply to. His great object, therefore, should be so to -frame his lectures, as to be most useful to youth at the beginning, to be -particular and copious in the elementary parts, in order to lay a sure foundation, -and to smooth and make plain the difficulties which at first will -every where occur. And as, for these reasons, a general and equally diffusive -course is a method improper for him to pursue, it should be his especial -care to avoid, or remedy the inconveniencies with which such an one -is necessarily attended.</p> - -<p>It is a well known truth, that the entrance on any study, however easy -and agreeable such study might be after some progress made in it, is at -the beginning very irksome, and attended with many perplexities; principally -arising from the use of new terms, whose significations are yet unknown. -But the laws of all nations, and those of England above all -others, abound in such novel words, and old ones used in an uncommon -sense, more than any other science, and therefore must be attended with -difficulties in proportion. And although many of its terms occur frequently -in common conversation, and may, consequently, be supposed already -understood, this is rather a disadvantage than otherwise; for in common -discourse they are used in so vague and undetermined a meaning, and so -far from strict precision and propriety, that it is no wonder so many persons -exclaim at the absurdity of its maxims; which, though frequently in their -mouths, they do not really understand. Young gentlemen, then, have -not only many new words to acquire the signification of, but they must -likewise unlearn the import of many others they are already acquainted -with, and affix to those familiar terms new and precise ideas, a task, as -Mr. Locke observes, of no small difficulty, and that requires not only the -strictest attention, but constant care and frequent repetition. Another great -difficulty the study of the law of England labours under, peculiar to itself,<span class="pagenum"><a id="Page_13"></a>[13]</span> -is that want of method, so obvious to be observed, and so often complained -of in its writers of authority, insomuch, that almost all of them, and lord -Coke particularly, are too apt to puzzle and bewilder young beginners; -whereas other laws, the civil, the canon, the feudal, have books of approved -authority, (and none other but such should be put into the students -hands,) calculated purposely for the instruction of novices; wherein the -general outlines of the whole law are laid down, the several parts of it properly -distributed, its terms explained, and the most common of its rules and -maxims, with the reasons of them, delivered and inculcated. It is not to -be admired then that Sir Henry Spelman so pathetically describes his distress -at his first entrance upon this study. <i>Emisit me mater Londinum, juris -nostri capessendi gratia, cujus cum vestibulum salutassem, reperissemque linguam -peregrinam, dialectum barbaram, methodum inconcinnam, molem non ingentem -solum, sed perpetuis humeris sustinendam, excidit mihi fateor animus</i><a id="FNanchor_41" href="#Footnote_41" class="fnanchor">[41]</a>.</p> - -<p>These then are the obstructions to be removed, and the difficulties -to be obviated, by a professor who considers it his business to lead by -the hand young gentlemen, yet strangers to the study; and for this -purpose he should exert his utmost care and attention, not to overburthen -the memories, or to distract the attention of his audience with too great -variety at first, but to feed them with knowledge as he finds them capable, -and to give them time, by reading and meditation, to become masters of -what they have already acquired, and by frequent examinations to satisfy -himself they thoroughly comprehend and retain the substance of his past -lectures. The utility of this last method, by which the students will be laid -under a necessity of reading in private, as to them, will be readily allowed; -but taken in another view will be of no less assistance to the professor himself, -in framing the prelections he is to read. He will not only be encouraged -to proceed with more alacrity, when he daily observes the success of -his endeavours, but also, by the trial, be convinced of any defects or errors -in his plan that before escaped his observation, and will be warned thereby -to amend them; and he will by this means be particularly and perpetually -cautioned against the great and too common mistake of tutors, namely, -their imagining that such explications as are easy and familiar to them, will -be equally obvious to unexperienced youth. But an examination will demonstrably -shew him where his illustrations have been defective or obscure,<span class="pagenum"><a id="Page_14"></a>[14]</span> -and will oblige him to accommodate his lectures to the capacity and progress -of his hearers. The next variation in the present plan from that of -Mr Blackstone, to be taken notice of, is the proposal of beginning with the -law of <i>things</i>, not with the law of <i>persons</i>, as he hath done. It must be allowed -impossible thoroughly to understand the law of things, without some -previous knowledge of that of persons; but it is equally impossible to be -master of the law of persons, without an acquaintance with that of things. -Since, therefore, we must begin with one of them, perhaps it will be sufficient -to observe, that such knowledge of the names and relations of persons, -as is generally acquired by observation, before a person arrives at an age fit -for engaging in this study, will enable him tolerably to understand the law of -things; and that whatever more is necessary, and hath not been attained by -this means, may be easily supplied as the student goes on. And, that I -may not be thought to lean too much on my own opinion in this particular, -I shall quote the famous Sir Matthew Hale to the same purpose; who, in his -Analysis, introduces the law of things in the following manner: “Having -done with the rights of persons, I now come to the rights of things; and, -though, according to the usual method of civilians, and of our ancient -common law tractates, this comes in the second place, and after the <i>jura -personarum</i>, and therefore I have herein pursued the same course; yet that -must not be the method of a young student of the common law, but he -must begin his study here, at the <i>jura rerum</i>; for the former part contains -matter proper for the study of one that is well acquainted with those <i>jura -rerum</i><a id="FNanchor_42" href="#Footnote_42" class="fnanchor">[42]</a>.” And, agreeably hereto, the wisdom of ages hath declared -<i>Littleton’s Tenures</i>, which contains the common law of England, as far as it -concerns real property, that is, lands or interests derived out of and flowing -from them, to be the book most proper for students to begin with, in their -study of the law of these nations.</p> - -<p>Taking it then for granted at present, that the law of real property is the -fittest introduction, it will be necessary, as it is confessed to be the most -important, the most extensive, and, in consequence, the most difficult part, -to lay the foundation deep and sure, and to derive its rules from what is -now universally allowed to be its source, the feudal customs. This, indeed, -hath been denied by Lord Coke, and others of his age; who thought it -would depreciate the excellence of the laws of their country, to admit they -were derived from any other nation. But if those gentlemen had read over<span class="pagenum"><a id="Page_15"></a>[15]</span> -but once the two books of the feudal law with tolerable attention, they -must have received conviction, that one of the laws was certainly derived -from the other; and which of them was so would easily appear, by comparing -the law of England after the conquest, with that which prevailed in -the Saxon times, and was not strictly feudal, exclusive of the testimony of -the old historians.</p> - -<p>But, perhaps, for this purpose, it may be thought sufficient to explain -and deduce these rules from the feudal ones, as they occur occasionally -in the books of the common law; which is the method, that, in conformity -to the rest of his plan, the Oxford professor has adopted, and that the -reading through a course of that law, even the shortest, will be attended -with an unprofitable delay, and detain the students too long from their -principal object. The answer to this objection is short, and, if well -founded, perfectly satisfactory. It is, that the real reason of proposing a -system of the feudal law to be gone through, was to save time. The method -is so much better, and clearer, and, by necessary consequence, so much -easier to be comprehended, and retained, that the delay will be abundantly -compensated, and one third at least of Littleton will be understood, and -known by the students, before they open his book. For the maxims of the -common law, as they lie dispersed in our books, often without reasons, and -often with false or frivolous ones, appear disjointed and unconnected, and -as so many separate and independent axioms; and in this light very many -of them must appear unaccountable, at least, if not absurd; whereas, in -truth, they are almost every one of them deducible, by a train of necessary -consequences, from a few plain and simple rules, that were absolutely necessary -to the being and preservation of such kind of constitutions as the -feudal kingdoms were. The knowledge of which few, timely obtained, -will obviate the necessity of frequent and laboured illustrations, as often as -these maxims occur in our law, will reconcile many seeming contradictions, -and will shew that many distinctions, which at first view appear to be without -a difference, are founded in just and evident reason: to say nothing of -the improvement the mind will attain by exercise, in following such a train -of deductions, and the great help to the memory, by acquiring a perfect -knowledge of the true grounds of those various rules, and of their mutual -connection with and dependence on each other. <i>Ignoratis causis rerum, ut -res ipsas ignoretis, necesse est</i>, is a maxim frequently in our lawyers mouths;<span class="pagenum"><a id="Page_16"></a>[16]</span> -and Littleton and Coke continually exhort the student to explore the -grounds and reasons of the law, as the only safe foundations to build on, -and deny that any man, without being perfectly acquainted with them, can -merit the honourable appellation of a lawyer.</p> - -<p>But there is another, and, for gentlemen of rank and fortune particularly, -a more important consideration, that renders a general acquaintance -with the principles of the feudal law very proper at all times, but at present -eminently so; namely, the necessity of knowing these, for the understanding -the nature of those Gothic forms of government, which, until -these last three hundred years, prevailed universally through Europe, and -whence the present constitution, with several corrections and improvements -indeed, in which these islands are now so happy, is undoubtedly derived. -From hence only shall we be able to determine whether the monarchy of -England, as is pretended, was originally and rightfully an absolute royalty, -controuled and checked by the virtue of the prince alone, and whether the -privileges of the subjects, which we are so proud of, were usurpations on the -royal authority, the fruits of prosperous rebellion, or at best the concessions -of gracious princes to a dutiful people, and revocable by them or -their successors, whenever, in their opinion, their vassals should become -undeserving; principles that were industriously, and, to the misfortune of -a deluded royal family, too successfully propagated during the last century, -and that, of late, have been revived and defended, with no less zeal, than -seeming plausibility. Every man, indeed, of candour and humanity, will -look with tenderness on the errors of princes, unhappily educated in mistaken -notions, and make due allowances for the weight which arguments -urged with great apparent force of reason, concurring with the lust of -power, so natural to the human breast, will certainly have on such minds; -but, surely, this indulgence may be carried too far, and will be allowed so to -be, if, for their justification, it shall appear, upon examination, that the -history of past ages has been partially delivered down, and perverted; and -that to the vain and unprofitable grandeur of the prince, the happiness of -millions, and their posterity, hath been attempted to be offered up in sacrifice. -The question is of a matter of fact; for on the decision of the fact, -how the constitution of England antiently stood, the question of the right -solely depends. And surely it is the duty of every gentleman to inform -himself, on the best grounds, whether those great men, who, for a succession<span class="pagenum"><a id="Page_17"></a>[17]</span> -of ages, exposed their lives in the field, or exerted their eloquence and -wisdom in the senate, for the purpose of preserving, and perpetuating these -privileges, deserved the honourable name of patriots, or the detestable appellation -of rebels; whether the grievances our glorious deliverer came to -redress were real or imaginary; or, if real, were such as our fathers were in -conscience bound to submit to; and whether we can with justice give to -the family that now fills our throne with such lustre and dignity, that title -which they have always esteemed as their highest honour, of being the lords -of freemen, and the assertors of the liberties of mankind.</p> - -<p>As the book<a id="FNanchor_43" href="#Footnote_43" class="fnanchor">[43]</a> which it is intended the young gentlemen shall read for -the purpose of acquiring a general idea of the feudal law, is composed -in a systematical method, it is proposed that these lectures shall proceed -in an historical one, in order to shew the original reasons of those customs, -and to point out from what small beginnings, and by what particular -steps and gradations the mighty fabrick rose. By this means the additions -to, and the alterations of the law will be seen in a clearer light, when -we are acquainted with the nature of the regulations already in being; and -by knowing the circumstances of the times, can at once perceive the wisdom -and necessity of such additions and alterations. And it is hard to -imagine a study more improving, more agreeable, or better adapted to a -liberal mind, than to learn how, from a mere military system, formed and -created by the necessities of a barbarous people, for the preservation of their -conquests, a more extensive and generous model of government, better -adapted to the natural liberties of mankind, took place; how, by -degrees, as the danger from the vanquished subsided, the feudal policy -opened her arms, and gradually received the most eminent of the conquered -nation to make one people with their conquerors; how arts and commerce, -at first contemptible to a fierce and savage people, in time gained credit to -their professors, and an admittance for them into the privileges of the society; -and how, at length, with respect to the lowest class of people, which still -continued in servitude, its rigour insensibly abated; until, in the end, the -chains of vassalage fell off of themselves, and left the meanest individual, in -point of security, on an equal footing with the greatest.</p> - -<p><span class="pagenum"><a id="Page_18"></a>[18]</span></p> - -<p>Thus much has been thought necessary to observe, in order to shew the -reasons of proposing a course of the feudal laws, as an introduction to the -English; to which may be added, that this method hath received the approbation -of many good judges, and hath, in experience, been found not -only useful for the end proposed, as it is the constant practice in Scotland, -whose laws, except in the manner of administering justice, differ little from -ours, and hath been also used in England with good success; but, at the -same time entertaining, and improving in other respects.</p> - -<p>As we are to begin, therefore, with this law, the observations on the remaining -parts of the plan may be, for the present, deferred; I shall, in my -next lecture, begin to deduce the origin of this law, and of its rules, from -the customs of the German nations, before they invaded the Roman empire.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_19"></a>[19]</span></p> - -<h2 class="nobreak" id="LECTURE_III">LECTURE III.</h2> - -<p><i>An enumeration and confutation of several opinions concerning the foundation -of the feudal customs—The origin and rules of the feudal law to be deduced -from the institution of the German nations before they invaded the Roman empire—The -English indebted for this law to the Franks—A general description -of this people, with an account of the several orders of men into which they -were divided while they continued in Germany.</i></p> - -</div> - -<p>The feudal customs succeeded the Roman imperial law in almost -every country in Europe, and became a kind of a <i>jus gentium</i>; but -having sprung up in rude illiterate ages, and grown by slow degrees to -a state of maturity, it is no wonder that very different have been the opinions -concerning their origin, and that many nations have contended for the -honour of giving them birth, and of having communicated them to others. -Several eminent civilians, smit with the beauty of the Roman law, and filled -with magnificent ideas of the greatness of that empire, have imagined that -nothing noble, beautiful, or wise, in the science of legislation, could flow -from any other source; and, accordingly, have fixed on Rome as the parent -of the feudal constitutions. But as the paths of error are many, and disagreeing, -so have their endeavours to make out, and defend this opinion, -been various in proportion; a short mention of them, and a very few observations, -will be sufficient to convince us, that they have been all mistaken.</p> - -<p>First, then, some civil lawyers have discovered a likeness between the -Roman patrons and clients, an institution as early as Romulus himself, and -the feudal lords and vassals<a id="FNanchor_44" href="#Footnote_44" class="fnanchor">[44]</a>. The clients, we are told, paid the highest -deference and respect to their patrons, assisted them with their votes and -interest; and, if reduced to indigence, supplied their necessities by contributions -among themselves, and portioned off their daughters. On the -other hand, the patrons were standing advocates for their clients, and -obliged to defend, in the courts of law, their lives and fortunes. The like -respect was paid by vassals to their lords, and similar assistance was given<span class="pagenum"><a id="Page_20"></a>[20]</span> -to their wants. The fortune of the first daughter, at least, was always paid -by them, and if they were impleaded, they called in their lords to warrant -and defend their lands and other property. Thus far, we must confess, -there is a strong resemblance; but the differences are no less material, and -shew plainly that the one could not proceed from the other. The connection -between the patron and the client was merely civil; whereas the relation between -the lord and the proper vassal was entirely military; and his fealty to -his superior was confirmed by the sanction of an oath, whereas there was no -such tie between patron and client. The aids which the tenant gave to his -lord’s necessities, except in three instances, established by custom, to redeem -his lord’s body taken in war, to make his eldest son a knight, and for the -first marriage of his eldest daughter, were purely voluntary. But the great -point which distinguishes them was, that whereas the Roman client’s estate -was his absolute property, and in his own disposal, the feudal vassal had but a -qualified interest. He could not bequeath, he could not alien, without his -lord’s consent. The <i>dominium verum</i> remained with the lord to whom the -land originally had belonged, and from whom it moved to the tenant. -Upon the failure therefore of the tenant’s life, if it was not granted transmissible -to heirs, or if it was, on the failure of heirs to the lands, it reverted -to the original proprietor. Neither was the lord, on all occasions, and in -every cause, bound to be his vassal’s advocate, or, as they express it, <i>bound -to warranty</i>, and obliged to come in and defend his tenant’s right and property. -For the fealty on one side, and the protection on the other, extended -no farther than the feudal contract; and therefore the one was not -bound to warrant any of the tenant’s lands, but such as were holden of him, -nor the other to give aid, or do service in regard of his whole property, -but in proportion to that only which he derived from his superior. Add to -this, that the lord, in consideration of the lands having been originally his, -retained a jurisdiction over all his tenants dwelling thereon, and in his court -sat in judgment, and determined their controversies. These striking diversities -(and many more there are) it is apprehended, will be sufficient to demonstrate -the impossibility of deriving the feudal customs from the <i>old</i> institution -of patron and client among the Romans.</p> - -<p>Secondly, Others, sensible that military service was the first spring, and -the grand consideration of all feudal donations, have surmised, that the<span class="pagenum"><a id="Page_21"></a>[21]</span> -grants of forfeited lands by the dictators Sylla and Cæsar, and afterwards -by the triumvirs Octavius, Anthony and Lepidus, to their veterans, gave -the first rise to them<a id="FNanchor_45" href="#Footnote_45" class="fnanchor">[45]</a>. In answer to this, I observe, that those lands, when -once given, were of the nature of all other Roman estates, and as different -from fiefs, as the estates of clients, which we have already spoken of, -were. Besides, these were given as a reward for past services, to soldiers -worn out with toil, and unfit for farther warfare; whereas fiefs were given -at first gratuitously, and to vigorous warriors, to enable them to do future -military service.</p> - -<p>Others have looked upon the emperor Alexander Severus<a id="FNanchor_46" href="#Footnote_46" class="fnanchor">[46]</a> as the first -introducer of these tenures, because he had distributed lands on the borders -of the empire, which he had recovered from the Barbarians, among his -soldiers, on the condition of their defending them from the incursions of -the enemy; and had granted, likewise, that they might pass to their children, -provided they continued the same defence. This opinion, indeed, -is more plausible than any of the rest that derive their origin from the -Romans, as these lands were given in consideration of future military service; -yet, when we consider, on the one hand, that in no other instance -did these estates agree with fiefs, but had all the marks of Roman property; -and that, on the other hand, feudal grants were not, for many ages, descendible -to heirs, but ended, at farthest, with the life of the grantee, we shall -be obliged to allow this notion to be as untenable as any of the foregoing.</p> - -<p>The surmise of some others, that the feudal tenancies were derived from -the Roman agents, bailiffs, usufructuaries, or farmers, is scarce worth confuting; -as these resembled only, and that very little, the lowest and most -improper feuds; and them not in their original state, when they were -precarious, but when, in imitation of the proper military fief, which certainly -was the original, they were become more permanent.</p> - -<p><span class="pagenum"><a id="Page_22"></a>[22]</span></p> - -<p>Lastly, Some resort as far as Constantinople for the rise of fiefs, and -tell us that Constantine Porphyrogenetus was their founder; but he lived in -the tenth century, at a time that this law was already in France, Germany, -Italy, and Spain, where it had arrived very near its full perfection, and -was therefore undoubtedly his model: So that, tho’ we must acknowledge -him the first who introduced these tenures into the Roman empire, to find -their original, we must look back into earlier ages, and among another people.</p> - -<p>The pretensions of the Romans having been considered, and set aside, it -follows, that this law must have taken its rise among the barbarous nations; -but from which of them particularly, remains to be inquired. Some, solicitous -for the honour of the antient Gauls, quote Cæsar’s account of their -manners; <i>eos qui opibus valebant multos habuisse devotos, quos secum ducerent in -bella, soldurios sua lingua nuncupatos; quorum hæc est conditio, ut omnibus in -vita commodis una cum his fruantur quorum se amicitiæ dediderint; si quid iis -per vim accidat, aut eundem casum una ferant aut sibi mortem consciscant</i><a id="FNanchor_47" href="#Footnote_47" class="fnanchor">[47]</a>; in -these words they imagine they have plainly the mutual connection between -lords and vassals. The Spaniards too put in their claim for the antient -Celtiberians, of whom Plutarch, in his life of Sertorius and Valerius Maximus, -gives the same account that Cæsar doth of the antient Gauls; and -Sir Edward Coke, in his zeal for the common law of England, which, -although he did not know it, is certainly feudal, relying on fabulous historians, -carries its antiquity so far back as to the British kings of Geoffrey of -Monmouth. But one short and plain observation will fully dissipate such -vain conceits, namely, that, whatever were the original customs of the barbarous -nations, inhabiting Gaul, Spain, or Britain, they were, many ages -before the rise of this law, entirely annihilated and forgotten. Gaul, Spain, -and Britain, were, for centuries, Roman provinces, governed entirely by -Roman magistrates, according to the imperial laws. For the Romans were -particularly studious of introducing their dress, their language, their laws -and customs, among the conquered nations, as the surest, and most effectual -means of keeping them in subjection.</p> - -<p>Hence, it appears, we must find the true original of this law among those -nations, that destroyed the Western Empire of the Romans; where we first<span class="pagenum"><a id="Page_23"></a>[23]</span> -perceive the traces of it, that is, among the Franks, Burgundians, Goths, -and Lombards<a id="FNanchor_48" href="#Footnote_48" class="fnanchor">[48]</a>. Of these the first and last have the greatest number of advocates; -and, whether out of jealousy to the French monarchy, or not, I -cannot determine, the majority declares for the Lombards. These different -opinions, however, may be easily adjusted, by distinguishing between the -<i>beneficiary law</i>, as I shall call it, while the grants were at will, or for years, -or at the utmost for life, and that which is more properly and strictly called -<i>feudal</i>, when they became transmissible to heirs, and were settled as inheritances. -As to the beneficiary law, no one of these nations can lay a better -claim to it than another, or with reason pretend that the rest formed their -plan upon its model; each of them independent of the other, having established -the same rules, or rules nearly the same; which were, in truth, no -more than the ancient customs of each nation, while they lived beyond the -Rhine, and were such as were common to all the different people of Germany. -But, as to the law and practice of feuds, when they became inheritances, -there can be little doubt but it was owing to the Franks. For the -books of the feudal law, written in Lombardy, acknowledge, that the Emperor -Conrad, who lived about the year 1024, was the first that allowed -fiefs to be descendible in Germany and Italy<a id="FNanchor_49" href="#Footnote_49" class="fnanchor">[49]</a>; whereas the kingdom of the -Lombards was destroyed by Charlemagne above two hundred years before; -and he it was who first established among his own Franks the succession of -fiefs, limiting it, indeed, only to one descent. His successors continued the -same practice, and, by slow degrees, this right of succession was extended -so, that by the time of Conrad, all the fiefs in France, great and small, -went in course of descent, by the concession of Hugh Capet, who made use -of that device, in order to sweeten his usurpation, and render it less disagreeable<a id="FNanchor_50" href="#Footnote_50" class="fnanchor">[50]</a>. -By this concession he, indeed, established his family on the -throne, but so much weakened the power of that crown, that it cost much -trouble, and the labour of several centuries, to regain the ground then -lost.</p> - -<p>The opinion of the feudal law’s being derived from the Lombards seems -owing to this, that, in their country, those customs were first reduced into<span class="pagenum"><a id="Page_24"></a>[24]</span> -writing, and compiled in two books, about the year 1150, and have been -received as authority in France, Germany and Spain, and constantly quoted -as such. But then it should be considered, that the written law in these -books is, in each of those nations, especially in France, controuled by their -unwritten customs; which shews plainly, that they are received only as evidence -of their own old legal practices. For had they been taken in as a -new law, they would have been entirely received, and adopted in the -whole.</p> - -<p>But if, in this point, I should be mistaken, and the Lombards were -really the first framers of the feudal law, yet I believe it will be allowed -more proper for the person who fills this chair to deduce the progress of it -through the Franks, from whom we certainly borrowed it, than to distract -the attention of his audience, by displaying the several minute variations of -this law, that happened as it was used in different nations. To the nation of -the Franks, therefore, I shall principally confine myself, and endeavour to -shew by what steps this system of customs was formed among them, and -how their constitution, the model of our own just after the conquest, arose; -and at the same time I shall be particularly attentive to those parts of it only -that prevailed in England, or may some way contribute to illustrate our -domestic institutions.</p> - -<p>In order, then, to illustrate the original of the French constitution, and -of their beneficiary, and its successor the feudal law, it will be necessary to -enter into some details as to the manners of this people, while they continued -in Germany, and which they preserved for a considerable time after -they passed the Rhine; as also to mention some few particulars of their history -when settled in France, in order to shew the reasons of their original -customs, and the ends their policy aimed at, and how, by change of circumstances, -the preservation of that system required new regulations; how the -feudal law arose, and grew to that perfection, in which, for so many ages, -it flourished throughout Europe. As skilful naturalists discover in the seed -the rudiments of a future tree, so, in a few passages of Cæsar and Tacitus, -concerning the customs of the Germans, may be seen the old feudal law, -and all its original parts, in <i>embryo</i>; which, in process of time, by gradually -dilating and unfolding themselves, grew into a perfect and compleat body.<span class="pagenum"><a id="Page_25"></a>[25]</span> -It will be highly proper, therefore, for the clearer comprehension of what is -to follow, to dwell somewhat particularly upon, and to make ourselves acquainted -with, the manners and institutions of those people; and for this -purpose, perhaps, it will be sufficient to consider them under the several -following heads, viz. their general disposition and manners, the several ranks -and orders of persons among them, their form of government, and the nature -of their policy; their regulations touching property, their methods of -administering justice, and the nature of the punishments they inflicted on -criminals.</p> - -<p>First, as to their manners and general disposition: Germany was at that -time a wild uncultivated country, divided into a great number of small -cantons, separated from each other by thick forests, or impassable morasses, -and inhabited by a rude and simple people, who lived either by the chace or -pasturage, and were always either in a state of open war, or a suspicious -peace with their neighbours: A circumstance that obliged every one of these -little states to esteem military virtue in the first place, and to train up all -their people, fit for that purpose, in the constant use of arms, and to keep -them perpetually in a state ready always for either offence, or defence<a id="FNanchor_51" href="#Footnote_51" class="fnanchor">[51]</a>.</p> - -<p>But since, in every number of men, however assembled, some there will -be, from the natural strength of their bodies, and courage of their minds, -more fit for soldiers, and others, from the contrary causes, better adapted -to the arts of peace; these nations were necessarily distributed into two -ranks; those in whom the strength of the society consisted, the freemen or -soldiers, who were, properly speaking, the only members of the community, -and whose sole employment was war, or (in the intervals of hostilities, what -Xenophon considers as its image) hunting; and an inferior order of people, -who were servants to them, and, in return for protection, supplied the warriors -with the necessaries of life, occupied the lands for them, and paid stipulated -rates of cattle, clothes, and sometimes corn, namely, where they -had learned the use of agriculture from the neighbouring Romans. I follow -Craig in calling them servants rather than slaves, as an expression much -more suitable to their condition; for they were not condemned to laborious -works, in the houses of the freemen, as the slaves of other nations were.<span class="pagenum"><a id="Page_26"></a>[26]</span> -Among these simple people, the wives and children even of the greatest -among them, and the old men, unfit for the toils of war, were their only -domestics. The servants of the Germans lived apart, in houses of their own, -and when they had rendered to their lords the services due by agreement, -they were secured in the rest, as their own property; so that a servant among -these people, though meanly considered by the superior rank, was, in truth, -more a freeman than the generality of the Romans under their Emperors<a id="FNanchor_52" href="#Footnote_52" class="fnanchor">[52]</a>. -It has been an antient observation, that servitude among the northern nations -hath always been more gentle and mild than among those that lay -more southerly: A difference, to be ascribed to the different manners of the -people, resulting partly from their climate, and partly from their way of -life. A plain and simple people, unacquainted with delicacies, were contented -with the plainest fair; which was easily supplied, without afflicting -their servants with heavy labour, and gave no room for envy and discontent -in the breasts of inferiors. And a nation that had always the sword in -their hands were too conscious of their own strength, to entertain any apprehensions -from those, who, from their unfitness for that profession, were -destined to other employments. All motives, therefore, to fear on the one -side, and to envy and discontent on the other, being removed, we need not -be surprized at the general humanity with which the servants were treated -in these northern regions. The putting them in chains was a thing exceedingly -rare, and the killing them, except in a sudden gust of passion (an accident -which frequently happened among the freemen themselves) was almost -unheard of. The only difference in that case was, that the death of a -servant was not looked upon as a public crime, he being no member of the -political society, and therefore was not punished. Such then was the mutual -affection and confidence of these two ranks in each other, that whenever -there was occasion, they made no scruple of arming such of their servants -as were capable, and, by making them soldiers, admitted them into -the number of freemen; and the hopes of such advancement, we may be -assured, was a strong inducement to those of the lower rank to behave in -their station with fidelity and integrity. Another cause of this great lenity -to their servants arose from a custom peculiar to the Germans, which ordained,<span class="pagenum"><a id="Page_27"></a>[27]</span> -that insolvent debtors should be reduced to servitude, until, either -by his labour, the creditor was satisfied, or, as it frequently happened, the -debt was paid by the insolvent’s relations. It was, indeed, reputed dishonourable -for the creditor himself to retain his debtor in servitude; but then -he either sold him to the prince, or some other person.</p> - -<p>Among so plain a people, perhaps it may be thought debts were rare, -and that few instances occurred of freemen’s being reduced to slavery; but -Tacitus assures us of the contrary<a id="FNanchor_53" href="#Footnote_53" class="fnanchor">[53]</a>. These people were possessed with the -rage of gaming to such a degree, that nothing was more common than to -see them, when all their property was lost, set their liberty itself at stake. -It was natural, therefore, to treat those with gentleness, who had been once -perhaps the most valuable members of the body politic, especially for them -who knew their own privileges depended on the uncertain caprices of the -same goddess Fortune, and that an unlucky throw might reduce them to-morrow -to the same low condition. I have been the more particular on -this head, in order to shew, that, even in their infancy, the feudal maxims -were more favourable to the natural liberty of mankind, than the laws and -customs of the southern and more polite nations, and were of such a spirit, -as when circumstances changed, would naturally expand, and extend that -blessing to the whole body of the people; as we find it at present in our -excellent constitution.</p> - -<p>To return, therefore, to the freemen: We find no traces of any different -orders of men among them; but as no kind of government, however rude, -can subsist without some subordination, and as it was impossible for them all -to continue together in one body, it was found necessary, in order to disperse -them round the country, that they should be subdivided into lesser parties, -and to appoint to each a chief, the most eminent and capable among -them; who, when a district was assigned him, distributed that among his -followers; who again, after having retained what they esteemed sufficient for -their own purposes, assigned part of what they had so received to their servants. -And here, indeed, we see the first rude original of lords and vassals. -These lords were those, of whom Tacitus says, <i>De minoribus rebus principes -consultant</i><a id="FNanchor_54" href="#Footnote_54" class="fnanchor">[54]</a>. One of these lords, and to him a larger territory was assigned<span class="pagenum"><a id="Page_28"></a>[28]</span> -than to the others, was the head of the whole body politic, and honoured -with the title of king. He was the superior, who, at their general assemblies, -made the distribution already mentioned, and appointed the other -lords. And, besides his excelling the others in the enjoyment of a more -extensive district, and in having a greater number of vassals and servants, -he was remarkably distinguished from them in two particulars. His office -was for life, and, in some degree, hereditary; for, in every nation there -was one family, descended, it is to be presumed, from the first founder of -the state, or some ancient hero, which was the only family noble by birth -among them, and the members of which alone were capable of this high -station. Not that these kings succeeded in a lineal, or any other regular -course of descent; for Tacitus intimates sufficiently that they were elective, -when he says, <i>Reges ex nobilitate sumunt</i><a id="FNanchor_55" href="#Footnote_55" class="fnanchor">[55]</a>. And indeed any one who considers -attentively the circumstances of these people, always either ready to invade -their neighbours, or dreading invasions from them, will allow, that any -kind of a constant regular succession was inconsistent with their preservation. -They were necessitated to choose among the royal family a man in the flower -of youth, or, at least, in the vigour of life, who, by his valour and -wisdom, might prove the proper head of a nation always in a state of war. -This will appear beyond a doubt, if we examine the ancient practice -of all the kingdoms founded by the Germans. Look over the lists of their -kings in any one nation, and examine the degree of kindred in which they -stood related to each other, and you will find them all, indeed, of one family; -but you will, at the same time, see that scarce a third of them could -derive their kindred, by way of title or descent, from their immediate predecessor; -yet were they obeyed chearfully by their subjects, nor ever looked -upon in those days as usurpers, though several modern writers, possessed -with opinions of their own ages, since kingdoms are almost universally settled -in a regular course of descent, have been so liberal in bestowing that -title upon them.</p> - -<p>Montesquieu allows this was the manner of succession in the second race -of the Franks, but insists that those of the first inherited lineally<a id="FNanchor_56" href="#Footnote_56" class="fnanchor">[56]</a>. But was -this so originally, when Clovis came to the crown, he who first united all -the Franks under one sovereign? We find six or seven independent kings<span class="pagenum"><a id="Page_29"></a>[29]</span> -of the Salian Franks, every one of them Clovis’s near relations, and consequently -descended from a common ancestor, at no very great distance. He -thought not himself, nor his posterity, secure in the possession of the throne, -until he had totally extirpated every other branch, and reduced the royal family -to his single person. Then, indeed, there was no danger of a competition -upon his death. So far was the crown from descending to any determined -person, that the kingdom was divided among all his children; and, for -several descents, his bloody example was followed in one generation, and in -the next a new division took place; nor, in all this time, do we hear of any -other title set up, than what followed either from the will of the father, the -consent of the people, or the fortune of war; which, it is apprehended, is -sufficient to shew, that, in these early ages, there were no invariable rules -of succession settled among the Franks. Otherwise, how came the kingdom -to be divisible, and the right heir to be obliged to content himself -with a small portion of his supposed legal inheritance<a id="FNanchor_57" href="#Footnote_57" class="fnanchor">[57]</a>?</p> - -<p>In the next lecture I shall give an account of the companions of the prince -among the Germans, and finish what I have to observe of the constitution -of their governments, and of their laws and customs, unto the time of their -entering into the Roman empire.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_30"></a>[30]</span></p> - -<h2 class="nobreak" id="LECTURE_IV">LECTURE IV.</h2> - -<p><i>The</i> companions <i>of a German prince—The constitution of a German kingdom—The -condition of property in Germany—The methods followed there -of distributing justice, and the nature of the punishments inflicted on criminals.</i></p> - -</div> - -<p>Before we can be fully acquainted with all the several constituent -parts of the German state, it will be necessary to form a just notion of -those who were called the companions of the king or prince; who, being -chosen out of the most robust and daring of the youth, and having attached -themselves particularly to the person of their sovereign, were his chief defence -in war, and the great support of his dignity in times of tranquillity. -A few words of Tacitus will set this institution of theirs in a clear light. -Speaking of their princes, he says, “This is their principal state, their chief -strength, to be at all times surrounded with a numerous band of chosen -young men, for ornament and glory in peace, for security and defence -in war; nor is it among his own people only, but also from the neighbouring -communities, that a prince reaps high honour, and great renown, -when he surpasses in the number and magnanimity of his followers; -for such are courted by embassies, and distinguished with presents, -and by the terror of their fame alone often dissipate wars. In the day of -battle, it is scandalous for the prince to be surpassed in feats of bravery, -scandalous to the followers to fail in matching the valour of the prince. -But it is infamy during life, and an indelible reproach to return alive from -a battle wherein their prince was slain. To preserve him, to defend -him, and to ascribe to his glory all their gallant actions, is the sum, and -most sacred part of their oath. For from the liberality of their prince -they demand and enjoy that war-horse of theirs, and that terrible javelin, -dyed in the blood of their enemies. In place of pay, they are supplied -with a daily table and repasts, though grossly prepared, yet very profuse. -For maintaining such liberality and munificence, a fund is furnished by -continual wars and plunder<a id="FNanchor_58" href="#Footnote_58" class="fnanchor">[58]</a>.”</p> - -<p><span class="pagenum"><a id="Page_31"></a>[31]</span></p> - -<p>Here, then, are to be seen most plainly the rudiments of that feudal connection, -that afterwards subsisted between the king and all his military vassals, -and of the oath of fealty which the latter took to him. To his person, and -to aid him in all he undertook, his companions were bound, during his and -their lives, by the strictest ties; but as to other freemen, who lived apart in -their villages, the bonds of allegiance were much more loose. This rude -people had no notion of what almost every civilized nation hath laid down -as a maxim, that being born in, and protected by a society, creates a durable -obligation. They served, indeed, in consideration of the lands they -held, in all defensive wars; and in all offensive ones, which either were generally -approved of, or in which they chose particularly to engage themselves. -Nay, so great was the notion of particular independence among -these people, that they thought that all of the freemen or soldiers, except -the <i>comites</i>, who had by oath bound themselves to the person of the king for -life, were at liberty to engage in expeditions, that neither the king, nor the -majority of the nation consented to; and that under leaders of their own -choosing. For as, at their general meetings, war was necessarily the most -common subject of deliberation, if any one proposed an enterprize, all who -approved the motion were at liberty to undertake it; and if the king declined -commanding therein, they chose a general capable thereof; and -when, under his conduct, they had succeeded, they either returned, and -divided the spoil, and became subjects of their former king as before; or, -if they liked the country they had subdued better, settled there, and formed -a new kingdom, under their victorious leader. <i>Duces ex virtute sumunt</i>, -saith Tacitus; a practice hard to be accounted for among nations exposed -to continual danger, and which must be thereby frequently weakened, -on any other supposition, than that it was first introduced to disburthen a -narrow territory, overstocked with inhabitants. This effect, however, it -must have had, that their kings were rendered more martial, and obliged -equally by their glory and interest, to command in every expedition, that -was agreeable to any considerable number of their subjects.</p> - -<p>From this custom Montesquieu very ingeniously conjectures, that the -Franks derived their right of conferring on their <i>mairs de palais</i> the power -of war, at a time, when, by the long continued slaughters of the royal family, -they were obliged to place the crown on the heads of minors, or of -princes as incapable as minors; a power that enabled them, by degrees, to<span class="pagenum"><a id="Page_32"></a>[32]</span> -usurp the civil administration, and at length to transfer the title also of royalty -to a new race, in the person of Pepin<a id="FNanchor_59" href="#Footnote_59" class="fnanchor">[59]</a>.</p> - -<p>Such, then, was the face of a German state. A king chosen for his illustrious -extraction, attended by a numerous body of chosen youth, attached -to his service in war by the strictest bonds of fidelity; a number of -freemen divided into villages, over each of which was an elective chief, engaged, -likewise, to military duty, but in a laxer manner; and under all -these were the servants, who occupied the greatest part of the land, and supplied -the freemen with the necessaries of life.</p> - -<p>It is time now to attend a little to their domestic policy, and to inform -ourselves what were the rights of each of these orders in the time of peace. -The king, we are assured by Tacitus, was far from being absolute<a id="FNanchor_60" href="#Footnote_60" class="fnanchor">[60]</a>. He was -judge, indeed, among his own peculiar vassals, who lived on his demesne, as -the other chieftains were in their respective districts. He presided in their -general assemblies, and was the first who proposed matters for their deliberation. -His opinion had great weight, indeed, from his rank and dignity, -but his power was rather that of persuasion than of command. The royal -family was no otherwise distinguished from others, than as their personal -merit acquired influence, or their high birth and capability of succession engaged -respect. The companions of the prince were highly honoured for -their faithful attachment to him, and their valourous atchievements in war; -but, as to rights and privileges, were on the common footing of other freemen. -The only distinction was between the chieftains, or lords of the villages, -and the vassals who were under their jurisdiction. The chieftains -were judges in their respective districts; but, to prevent partiality, to each -of them were assigned an hundred persons, chosen among the populace, to -accompany and assist him, and to help him at once with their authority and -their counsel. And this institution was, in all probability, the original of -the jurisdiction of the <i>pares curiæ</i> in the feudal law. Another, and a very -great check on their chieftains, was their being elective, and consequently -amoveable every year, if their conduct was displeasing either to prince or -people. These elections, as well as those of their assessors, were made in<span class="pagenum"><a id="Page_33"></a>[33]</span> -their assemblies; where, indeed, every thing of any consequence was transacted, -and therefore they deserve to be particularly treated of.</p> - -<p>These conventions, then, unless they were summoned on extraordinary -occasions, were regularly held once a month, on certain stated -days; but such was the impatience of this people of controul, or any regularity -of proceeding, that Tacitus observes, that frequently two or three -days were spent before they were all assembled. For in these meetings, -every freeman, that is, every soldier, had an equal voice. They appeared -all in arms, and silence was proclaimed by the priests, to whom -also it belonged to keep the assembly in order, and to punish all disturbers -of its regularity. The king in the first place was heard, next such of the -chiefs as had any thing to propose, and lastly others, according to their precedence -in age, nobility, military virtue, or eloquence. If the proposition -displeased, they rejected it by an inarticulate murmur. If it was pleasing, -they brandished their javelins; the most honourable manner of signifying -their consent being by the sound of their arms. But this approbation of the -general assemblies was not of itself sufficient to establish a resolution. As the -sudden determinations of large multitudes are frequently rash, and injudicious, -it was found necessary to have what they had so determined re-considered -by a select body, who should have a power of rejecting or confirming -them. For this purpose the chieftains were formed into a separate assembly, -who, in conjunction with the king, either disannulled, or ratified what had -been agreed to by the people at large<a id="FNanchor_61" href="#Footnote_61" class="fnanchor">[61]</a>.</p> - -<p>Such then was the constitution of a German kingdom, a constitution so -nearly resembling our own at present, as at first view would tempt any one -to think the latter derived immediately from thence. Yet this was not -the case. With respect to the Saxon times, as far as we can judge from the -few lights remaining, the form of government seems very nearly to resemble -this account which Tacitus gives us; but, for two centuries, at least, after -the conquest, the English constitution wore a face purely feudal. The sub-vassals -had long lost the privilege of being members of the general assembly, -from causes that shall be hereafter attempted to be explained; and the<span class="pagenum"><a id="Page_34"></a>[34]</span> -whole legislative power was lodged in the king and his immediate vassals, -whose interests frequently clashing, and creating continual broils, it was -found necessary, for the advantage both of the sovereign and nobles, that a -proper balance should be formed. Accordingly, much at the same time in -France, Spain, and England, namely, in or about the thirteenth century, -the happy method of readmitting the third estate, by way of representation, -was found out, with an addition very favourable to the natural rights of -mankind, that traders and artizans, who before had been treated with the -most sovereign contempt, were now permitted to make part of the general -assembly, and put on an equal footing with other subjects<a id="FNanchor_62" href="#Footnote_62" class="fnanchor">[62]</a>.</p> - -<p>But to return to the assembly of German chieftains, or their house of -lords, as I may call it; besides a share in the legislative power, they were -likewise a council, to assist the king in the execution of the resolutions of -the general assembly, and determined solely by their own authority all matters -of lesser moment, that did not immediately affect the whole community. -<i>De minoribus rebus principes consultant, de majoribus omnes.</i></p> - -<p>Many other things were likewise transacted in these general assemblies, -as particularly the admission of a new member into the political society. -When a youth was judged capable of bearing arms, he was introduced by -his relations into the assembly; and if they testified his capacity of wielding -them, he was dignified with a lance and javelin by one of the chieftains, or -by his father, or some other near relation. This was his <i>toga virilis</i>. Then, -and not before, was he emancipated from the family he belonged to, was -permitted to become a soldier, and in consequence admitted to all the privileges -of a free subject. A practice that, in after ages, gave rise to the solemn -and public manner of creating knights<a id="FNanchor_63" href="#Footnote_63" class="fnanchor">[63]</a>.</p> - -<p>This, likewise, was the proper place of accusing criminals of public -crimes, namely such as were looked upon by those people particularly to -affect the whole society; neither was it unusual, likewise, to bring hither accusations<span class="pagenum"><a id="Page_35"></a>[35]</span> -of private wrongs, if the party injured was apprehensive of partiality -in his own canton.</p> - -<p>But the business of greatest moment, next to legislation, was, that, once in -a year, in these assemblies, each village, with the approbation of the king, -chose their chiefs, and their hundred assistants<a id="FNanchor_64" href="#Footnote_64" class="fnanchor">[64]</a>. Here it was they either -received a testimony of their good behaviour, by being continued in office -another year, or saw themselves reduced to the rank of private subjects, if -their conduct had not been acceptable. At the same time were the lands -distributed to the several chieftains, which leads me to say something on the -next head, their regulations with respect to property; as to which their institutions -were very singular, and totally different from those of all ancient, -as well as modern nations.</p> - -<p>All property being then naturally divisible into two kinds, moveable and -immoveable, of the first these people had but a scanty share, their whole -wealth consisting in their arms, a few mean utensils, and perhaps some cattle. -The use of gold and silver, in the way of commerce, was utterly unknown -to them, except to a few of their nations, namely such as lived near -the Rhine, and had acquired some by dealing with the neighbouring Gauls. -Consequently, there was no such thing as an accumulation of wealth among -them, or any great disparity in the distribution of this kind of property, over -which each had uncontrouled dominion during his life. But as testaments, -or last wills, were unknown amongst them, upon death, the right went according -to the plain dictates of nature. Tacitus saith, “To every man his -own children were heirs and successors. For want of them, his nearest -of kin, his own brothers, next his father’s brothers, or his mother’s.” -Whatever there was, was divided among the males next in degree; save that -to each of the females, a few arms were assigned, the only dowry in use -among those people; a dowry which, as Tacitus saith, signified that they -were to share with their husbands in all fortunes of life and death. Accordingly, -they constantly attended them to the field, were witnesses of their valour, -took care of the wounded<a id="FNanchor_65" href="#Footnote_65" class="fnanchor">[65]</a>; and often, if their party had the worst, -they ran into the ranks, and by their presence and danger, animated the -men to renew the charge.</p> - -<p><span class="pagenum"><a id="Page_36"></a>[36]</span></p> - -<p>But with respect to real or landed property, the case was very different. -Here a man had only the use, or enjoyment of the profits; and that, too, -but a temporary one. The real property, or <i>dominium verum</i>, was lodged in -the community at large; and was, at the end of every year, cantoned out, -and distributed to the several tribes of the people; and the portion assigned -to each was after that subdivided to the respective individuals; who by -these means were perpetually removed from one part of the territory to another; -nor could any man tell in what place his lot was to fall the next -year<a id="FNanchor_66" href="#Footnote_66" class="fnanchor">[66]</a>. And this custom, absurd as it seems to us, they were so fond of, -as to continue for some time after they settled in the Roman territories; until, -growing by degrees acquainted with the conveniencies of life, a change -of manners was introduced, and they wished for more settled habitations. -Then came into use grants for terms of years, after for life, and lastly, -estates descendible to heirs, which are those we, properly speaking, called -<i>fiefs</i>. This continual removal of habitation, so intolerable to a people any -way accustomed to comfortable dwellings, was no manner of inconvenience -to them. Their little substance was easily removed, and two or three days -were sufficient to erect a sorry hovel, which contented the wishes of the -greatest among them<a id="FNanchor_67" href="#Footnote_67" class="fnanchor">[67]</a>. But their passion for this constant change of place -seems derived from that condition which I have already observed they were -in, namely, a middle state between hunters and shepherds; and that they -still retained that practice, was an evidence that they had not been long reclaimed -from a savage life. Tacitus indeed says, that, in the intervals of -war, they were not much employed in hunting, but lived a lazy and inactive -life. This, however, I apprehend, must be understood only of a few nations, -nearest to the Romans, where game was not so plentiful, and not of<span class="pagenum"><a id="Page_37"></a>[37]</span> -all the Germans in general: for it is certain the Franks had a strong passion -that way, after they were settled in Gaul; and from them the plan of the -forest laws, so justly complained of in England, after the conquest, was derived. -And true it is, that whole nations, as well as individuals, were possessed -with this rambling inclination; and that, not always with a view of -settling in a better country. If the Germans changed their barren wilds for -the warm sun and fertile climate of Gaul, we are assured by the same authority, -that many tribes of the Gauls, on the other hand, removed to the -forests of Germany. If Jornandes tells us, that the Goths quitted the bleak -and barren mountains of Scandinavia for the pleasant banks of the Danube, -he likewise informs us, that, afterwards, they returned back into their native -country.</p> - -<p>As to their methods of administering justice, I have already observed, that -their chieftains, in the several districts, assisted by their assessors, were their -judges. Before them all causes were brought, which were not discussed in -their general assemblies; but as to the manner of investigating the truth, all -the German nations did not agree. Nay the Salian Franks differed considerably -from their brethren, the Ripuarian Franks. If the judge, or his -assessors, or any of them, had knowledge of the fact in dispute, which often -happened, as these people lived much in public, and in the open air, they -gave sentence on such their knowledge. This was common to them all; -but if there was no such knowledge in any of the <i>pares curiæ</i>, as I may call -them, and the fact in question was denied, the Salians proceeded thus: -The accuser or plaintiff produced his witnesses, the accused did the like; -and on comparing the evidence on both sides, the judges gave sentence. If -the plaintiff had no witnesses, the defendant, on his denial, was dismissed of -course. If the witnesses for the plaintiff failed in fully proving the point, -and yet their testimony was such, as induced a presumption which the other -party was not able to remove, the trial was referred to the ordeal<a id="FNanchor_68" href="#Footnote_68" class="fnanchor">[68]</a>. That -of boiling water was the most usual among them. The manner was thus: -The person suspected plunged his hand into the boiling water, which was -afterwards carefully closed up, and inspected at the end of three days: If no -sign of the scalding then appeared, he was acquitted; if otherwise, he was -esteemed guilty<a id="FNanchor_69" href="#Footnote_69" class="fnanchor">[69]</a>.</p> - -<p><span class="pagenum"><a id="Page_38"></a>[38]</span></p> - -<p>It is strange that any people should, for ages, make use of such a method, -which a very little reflection, or common experience, might easily satisfy -them had no manner of connection with guilt or innocence. But, besides -the gross superstition of these nations, who thought the honour of providence -concerned in the detection and punishment of criminals, Montesquieu -hath given us another reason for this practice, which, whether just or not, -for its ingenuity, deserves to be taken notice of. He observes, that the military -profession naturally inspires its votaries with magnanimity, candour, -and sincerity, and with the utmost scorn for the arts of falshood and deceit. -This trial, then, he imagines calculated to discover plainly to the eye, -whether the person accused had spent his whole life in the arts of war, and -in the handling of arms. For if he had, his hands would thereby have acquired -such a callousness, as would prevent any impression from the boiling -water, discernible at that distance of time. He therefore was acquitted, -because it was presumed he would not screen himself by a falshood. But if -the marks appeared, it was plain he was an effeminate soldier, had resisted -the force of education, and the general bent of his countrymen; that he -was not to be moved by the spur of constant example, that he was deaf to -the call of honour; and consequently such a person whose denial could have -no weight to remove the presumption against him<a id="FNanchor_70" href="#Footnote_70" class="fnanchor">[70]</a>.</p> - -<p>These were the methods of trial among the Salians, but the Ripuarian -Franks, the Burgundians, and several other German nations acted very differently. -No witnesses were produced among them on either side, but they -contented themselves with what were called negative proofs; that is, the -person accused swore positively to his own innocence, and produced such a -number of his relations as the custom of the country required: or if he had -not relations enough, the number was made up out of his intimate acquaintance: -These were to swear that they believed his oath to be true, and upon -this he was acquitted. But if he declined the oath, or could not produce -a sufficient number of compurgators, he was found guilty; a practice -that fully proves these nations were, when this method was introduced, a -people of great simplicity and sincerity<a id="FNanchor_71" href="#Footnote_71" class="fnanchor">[71]</a>.</p> - -<p><span class="pagenum"><a id="Page_39"></a>[39]</span></p> - -<p>But as, by this means, every profligate person, with the assistance of a -few others as wicked as himself, was sure to escape, the defects of this kind -of trial introduced another, or rather revived an antient one, no less inconclusive. -Antiently, the Germans had no judicatures for the decision of private -wrongs; but each in person took his own satisfaction, and this introduced -perpetual combats. When the new method of trial came in use, a -party seeing his adversary ready to defeat his just demands, and screen his -injustice with perjury, resorted to his antient right, refused to accept the -oath, and appealed to the providence of God by the trial of battle: a method -as absurd, indeed, as the former, but peculiarly adapted to the way -of thinking of the Germans, who frequently, before they entered into a -war, prognosticated the success of it from the event of a combat between -one of their own nation, and a captive of the enemy<a id="FNanchor_72" href="#Footnote_72" class="fnanchor">[72]</a>. This kind of trial -gained ground among all the defendants of this ferocious people<a id="FNanchor_73" href="#Footnote_73" class="fnanchor">[73]</a>, and -introduced itself at length among the Salians, who had it not at first, and -who, by admitting positive proofs, had no need of it; and, though long -fallen into disuse, hath left behind, its offspring, private duelling. It hath -been long since observed, that this fashionable custom owed its origin to -these northern nations, the ancestors of the present inhabitants of Europe, -as no other nations, antient or modern, however martial or disposed to war, -had any knowledge or practice of it; but it is undeniably evinced by this, -that as a lie, above all other provocations, is the strongest, and what lays -gentlemen of honour under an indispensible necessity of duelling, so were -<i>you lie</i> the very words mutually given and received in old times, the accustomed -form of joining issue by battle, after which neither party, without -perpetual infamy and degradation from his rank, could recede.</p> - -<p>I have taken the more notice of these four different methods of trial -among the old Germans, as every one of them has been received into England. -Concerning the first, the trial by witnesses, little need be said. As -it is the fairest, and the justest, it has accordingly, pursuant to the practice -of all civilized nations, prevailed over all the rest; and it is that, and<span class="pagenum"><a id="Page_40"></a>[40]</span> -that only, that we use at this day. But the ordeal also was in use among -the Saxons, and continued some time after the Norman conquest; as appears, -not only by the old records of the law, but from the famous story, -whether true or false, of queen Emma, mother of Edward the Confessor, -and the plow-shares<a id="FNanchor_74" href="#Footnote_74" class="fnanchor">[74]</a>. The trial by negative proofs, though out of practice, -is still in being, in what is called by us the <i>wager of law</i>; where, if a -person is impleaded in an action of debt, on a simple contract, he may clear -himself, by swearing he oweth it not, and by producing eleven others, who -swear to their belief that he has deposed the truth<a id="FNanchor_75" href="#Footnote_75" class="fnanchor">[75]</a>. Hence it has happened, -that, for a long time past, <i>actions of debt</i>, in such cases, have not -been brought, but another, called an <i>action on the case</i>, is the usual method, -which admits the parties on both sides, as to the point of debt, <i>vel non debet</i> -to an examination of witnesses. For the last, the trial by battle, our old -books are full of it, in real actions; and although, to prevent the inconvenience -and uncertainty of it, the grand assize was invented; yet was it in -the tenant’s, that is, the defendant’s option, to choose which method of trial -he pleased. The latest instance of joining issue by battle, I have met with, -is in Dyer’s Reports, in the beginning of Elizabeth’s reign<a id="FNanchor_76" href="#Footnote_76" class="fnanchor">[76]</a>; but by this -time it was so much discouraged, that, by force of repeated adjournments, -the parties were prevailed on to agree, and judgment was at length given -upon the failure of one of the parties appearing on the day appointed for -the combat.</p> - -<p>When the truth, by some of the methods above-mentioned, was ascertained, -judgment was to be given. Here it will be proper to observe, that, -among these people, there were only two kinds of crimes, that were looked -upon as public ones, and consequently capital. The first was treason, -or desertion in the field, the punishment hanging; the second cowardice, or -unlawful lust, for they were strict observers of the nuptial band, the punishment<span class="pagenum"><a id="Page_41"></a>[41]</span> -stifling in a morass, with an hurdle over them. It seems, at first view, -surprising, that murder, which Tacitus assures us, from sudden gusts of passion, -and intemperance in liquor, was very frequent, should not, as it so -much weakened the strength of the nation, be considered as a criminal offence, -and punished accordingly<a id="FNanchor_77" href="#Footnote_77" class="fnanchor">[77]</a>. But a little reflection on their situation -will reconcile us to it. The person slain was already lost to the society, and -if every murder was a capital offence, the state would lose many of its -members, who were its chief supporters. Besides, if the slayer had no -hopes of mercy, nothing else could be expected than his desertion to their -enemies, to whom he could be of infinite service, and to them of infinite -detriment, from his knowledge of their strength and circumstances, and of -the passes into their country, through the morasses and forests, which were -their chief defence. Murder, therefore, like other lesser crimes, was -atoned among those people, as it was among the ancient Greeks, who were -in pretty similar circumstances, in the heroic times, as Ajax assures us in -these words, in the ninth Iliad:</p> - -<div class="poetry-container"> -<div class="poetry"> - <div class="stanza"> - <div class="verse indent8">και μεν τις τε κασιγνητοιο φονοιο</div> - <div class="verse indent0">Ποινεν, η του παιδος εδεζατο τεθνειωτος,</div> - </div> -</div> -</div> - -<p class="noindent">namely, by a satisfaction of cattle, corn, or money, to the persons injured, -that is, to the next of kin to the deceased, with a fine to the king or lord, -as an acknowledgment of his offence, and to engage the society to protect -him against the future attempts of the party offended. These satisfactions -were not regulated originally, nor fixed at any certain rate, but left to the -discretion of the injured, or next of kin. However, if he appeared extraordinarily -unreasonable, and refused what was judged competent, the society, -upon payment of his fine to their head, took the offender into protection, -and warranted his security against the attempts of the other party, or -his friends. After these nations were settled in the Roman empire, these -satisfactions for each offence were reduced to a certainty by their laws<a id="FNanchor_78" href="#Footnote_78" class="fnanchor">[78]</a>.</p> - -<p>This is as much as I have thought necessary to observe at present, concerning -the manners and customs of these people, while they remained beyond -the Rhine. It will next be proper to see how far afterwards they retained -them, and what alterations were introduced by their new situation.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_42"></a>[42]</span></p> - -<h2 class="nobreak" id="LECTURE_V">LECTURE V.</h2> - -<p><i>The decline of the Roman empire—The invasions of the Northern nations—The -manner in which they settled in the Roman provinces—The changes insensibly -introduced among them in consequence of their new situation—The policy and -condition of the Franks after they had settled in France—The rise of the feudal -law—Estates beneficiary and temporary.</i></p> - -</div> - -<p>It is full time now to quit the wilds of Germany, to attend these nations -in their passage into the Roman dominions, and to take a view of the -manner wherein they settled themselves in these new countries. The Roman -empire had been long on the decline; but especially, from the time of Severus, -it every day grew weaker. This weakness arose, in a great measure, -from an excessive luxury, which disqualified not only their great ones, -but the bulk of the Roman people for soldiers; and also from the tyrannical -jealousy of their emperors, who were afraid of trusting persons of virtue or -ability, and had no other method of supporting their authority, than by employing -numerous standing armies, that, under them, pillaged and oppressed -the defenceless populace; and lastly, from the licentiousness of the soldiery, -who made and unmade emperors according to their wild caprices. -Hence proceeded many competitions for that dignity, and continual battles -and slaughters of their men at arms; the natural consequence of which was, -that whoever prevailed in these bloody contests, always found himself less -able and powerful to defend the empire from foreign enemies or domestic -competitors, than his predecessor was<a id="FNanchor_79" href="#Footnote_79" class="fnanchor">[79]</a>.</p> - -<p>About the year 200 after Christ, the several nations who had been hitherto -cooped up beyond the Rhine and the Danube, and kept in some awe -by the terror of the Roman name, began to gather some courage from the -weakness of the empire; and from that time few years passed without incursions -into, and ravages of, some part of the southern territories, by one -or other of these people; and how redoubtable they became to that decaying<span class="pagenum"><a id="Page_43"></a>[43]</span> -state, may easily be judged from the particular fondness the emperors -of those days had, upon every slight advantage gained over them, for assuming -the pompous titles of Gothicus, Vandalicus, Alemannicus, Francicus, -&c. not for the conquest, or reducing into subjection those several people, -as in antient times, but merely for having checked them, and kept them out -of the Roman boundaries<a id="FNanchor_80" href="#Footnote_80" class="fnanchor">[80]</a>.</p> - -<p>But these invasions of the northern nations were a long time confined to -the single views of rapine and plunder; for as yet they were not fully convinced -of their own strength, and the enfeebled condition of their enemies. -And perhaps they might have longer continued in this ignorance, and -within their former bounds, had it not been for an event that happened about -the year 370, the like to which hath several times since changed the face of -Asia. I mean a vast irruption of the Hunns, and other Tartarian nations -into the north of Europe. These people, whether out of their natural desire -of rambling, or pressed by a more potent enemy, were determined on a -general change of habitation; and, finding the invasion of the Persian empire, -which then was in its full grandeur, an enterprize too difficult, they -crossed the Tanais, and obliged the Alans and Goths, who lived about the -Borysthenes and the Danube, to seek new quarters. The former fled westward -to Germany, already overloaded with inhabitants; and the latter begged -an asylum from Valens in the eastern empire, which was willingly accorded -them. The countries south of the Danube were before almost entirely -depopulated by their frequent ravages. Here, therefore, they were -permitted to settle, on the condition of embracing the Christian faith; and -it was hoped they, in time, would have proved a formidable barrier against -the incroaching Hunns, and, by a conformity of religion, be at length -melted into one people with the Romans. For the attaining this purpose, -they were employed in the armies, where, to their native fierceness and -bravery, they added some knowledge of discipline, the only thing they -wanted; and many of their kings and great men were in favour at court, -and either supported by pensions, or raised to employments in the state<a id="FNanchor_81" href="#Footnote_81" class="fnanchor">[81]</a>.</p> - -<p>But the injudiciousness of this policy too soon appeared; and indeed it -was not to be expected that a people used entirely to war and rapine, and<span class="pagenum"><a id="Page_44"></a>[44]</span> -unaccustomed to any other method of subsistance, could in a short time be -reduced to the arts of social life, and to the tillage of the earth; or be retained -in any moderate bounds, in time of peace, when, by being admitted within -the empire, they saw with their own eyes the immense plunder that lay before -them, and the inability of the Romans to oppose their becoming masters -of it. During the life of Theodosius they remained in perfect quiet, awed -by his power and reputation; but when he left two weak minor princes under -the guardianship of two interested and odious regents, it was obvious -they could not be bridled much longer. Though, if we are to credit the -Roman historians, their first irruption was owning to the jealousy Ruffinus, -the prime minister of Arcadius, entertained of Stilicho, the guardian of Honorius. -This latter, it is said, ambitious of holding the reins of both empires, -pretended, that Theodosius had on his death-bed appointed him sole -regent of both. For, though Arcadius was now of sufficient age to govern -of himself, he was, in truth, for want of capacity, all his life a minor. Ruffinus, -we are told, conscious of his rival Stilicho’s superior talents and -power, resolved to sacrifice his master’s interest rather than submit to one he -so much hated; and, accordingly, by his private emissaries, stirred up both -Goths and Hunns, to fall at once on the eastern empire<a id="FNanchor_82" href="#Footnote_82" class="fnanchor">[82]</a>.</p> - -<p>In the year 406, these nations, so long irreconcileable enemies to each other, -poured their swarms in concert into the defenceless dominions of Arcadius. -The Hunns passed by the Caspian sea, and with unrelenting cruelty -ravaged all Asia to the gates of Antioch; and at the same time the Goths, -under the so much dreaded Alarick, with no less fury, committed the like -devastations in Illyricum, Macedon, Greece, and Peneloponnesus. Stilicho, -thinking that his saving the eastern empire would undoubtedly accomplish for -him his long wished-for desire of governing it in the name of Arcadius, as -he did the western in that of Honorius, hastened into Greece with a well-appointed -army. But, when he had the barbarous enemy cooped up, and, as -it were, at his mercy, the weak prince, instigated by his treacherous minister -Ruffinus, sent him orders to retire out of his dominions. The Goths returned -unmolested to the banks of the Danube, laden with plunder; and -Stilicho went bank to Italy boiling with rage and resentment, but he never -had an opportunity of wreaking his vengeance on his treacherous rival.</p> - -<p><span class="pagenum"><a id="Page_45"></a>[45]</span></p> - -<p>In the next year, Germany, surcharged with her own inhabitants, and the -nations who fled from the Hunns, and, perhaps, instigated by Ruffinus, to -find work for Stilicho at home, sent forth her multitudes across the Rhine; -and, for three successive years, the Suevians, Alans, Vandals, and Burgundians, -laid all the open country of Gaul waste; and, about the same -time, Constantine, a Roman Briton, assumed the imperial purple, and was -acknowledged by all the Romans of that island and Gaul.</p> - -<p>The western empire was now utterly disqualified for defence: Stilicho, -the only man whose abilities and influence were capable of saving the falling -state, had been suspected of treason in aspiring to the diadem, and was put -to death; and Alarick, having before effectually plundered Greece, was -now acting the same part in Italy, while Honorius, shut up in Ravenna, -made but feeble efforts of resistance. Twice was Rome besieged, once redeemed -by an immense ransom, and the second time taken, plundered and -burnt. At length these calamities a little subsided; Constantine, the British -usurper of the empire, died; and all the western Romans again acknowledged -Honorius; but the western empire, though she lingered some time, -had received her mortal wound, and utterly perished in less than fifty years. -The distressed emperor Honorius granted to the Burgundians, who were -the most civilized of these barbarians, and had embraced the Christian religion, -the country they had possessed themselves of, namely, Alsace and -Burgundy. The Goths, who were already Christians, but of the Arian -persuasion, having by this time exhausted Italy, were easily prevailed on, -under Ataulphus, Alarick’s successor, to settle in the south-west of Gaul, -under a like grant; which country had been quitted in the year 410 by the -Sueves, Alans, and Vandals, who had over-run all Spain, and divided it -into three kingdoms. And thus were two kingdoms formed in the south -of Gaul, the new inhabitants of which coming by compact, and under the -title of the Roman emperor, behaved afterwards to the subjected Romans -and Gauls not in the light of brutal conquerors. Though they themselves -retained their own customs, they indulged these in the use of the Roman -laws, suffered them to enjoy a considerable portion of the lands, and made -no very afflicting distinctions between themselves and their subjects.</p> - -<p><span class="pagenum"><a id="Page_46"></a>[46]</span></p> - -<p>The Burgundians, particularly, we are informed, took two thirds of the -lands, the pasturage and forests, with one third of the slaves to look after -their flocks, and left the remainder to the Romans, who were skilled in -agriculture. They also quartered themselves in the houses of the Romans, -which naturally produced an acquaintance and amity between the two nations. -But one great reason, as I apprehend, of the lenity of these people -to the vanished (and a similar one will account for the Ostrogoths and -Lombards in Italy, afterwards, following their example, which likewise -hath been taken notice of with wonder by some authors) was their neighbourhood -to the Roman empire, which still continued in name in the west, -and which they might well be afraid of seeing revived, under a prince of -ability, if their harsh treatment alienated the conquered people’s affections -from them<a id="FNanchor_83" href="#Footnote_83" class="fnanchor">[83]</a>.</p> - -<p>But different was the treatment the conquered met with from the Franks, -who about this same time settled themselves at a greater distance from Italy, -namely, in Belgic Gaul. The Franks, above most of the other German nations, -had been for a considerable time attached to the Romans, insomuch -that if they did not receive their kings from them, as Claudian tells us they -did from Honorius, at least the kings received their confirmation from the -emperors; and they continued in this fidelity till the year 407, when they -fought a bloody battle with the Sueves, Vandals, and Alans, to prevent their -passing the Rhine, to invade the Roman territories. But when they found -the western empire already dismembered, they thought it not convenient -to lie still, and suffer other nations to share the prey entirely amongst themselves. -The Salians, therefore, took possession of the present Netherlands, -and the Ripuarians to their original country of Mentz and Hesse, added -Treves, Cologne, and Lorrain. Some have thought these people had grants -from the Roman emperor, in the same manner as I have mentioned before -concerning the Burgundians and Visigoths; but I should, with others, apprehend -this to be a mistake; for Ætius the Roman general left the Goths -and Burgundians in quiet possession of their seats, but defeated, and obliged -the Franks to repass the Rhine, which made them, after the danger was over, -return with double fury; and for a long time after they treated the conquered<span class="pagenum"><a id="Page_47"></a>[47]</span> -Romans in the stile of masters, and with many afflictive distinctions, -unknown to their neighbours the Goths and Burgundians<a id="FNanchor_84" href="#Footnote_84" class="fnanchor">[84]</a>.</p> - -<p>Many, in the first heat of victory, they reduced to slavery, to a servitude -very different from what had been before practised in Germany, and nearly -approaching to what was used by the Romans. For whatever property was -acquired by these slaves or servants, who in after ages were called Villains, -belonged to their masters, not absolutely, as at Rome; but the masters -claimed and took possession of it, and they (I mean in France) for the enjoyment -of what was permitted them, paid a stipulated tax called <i>census</i>, -which was the only tax used there in those ancient times. However, they -did not employ them in domestic drudgery, but suffered them to live apart, -as the proper German servants had done. Their duties were uncertain, in -this agreeing with those of the men of war, and differing from those of -the middle rank, which I shall hereafter mention, and were of the most -humiliating kind, they being obliged to attend at their lord’s summons, to -carry out dung, remove nuisances, and do other mean and servile offices. -The number of these slaves and villains for centuries perpetually increased, -from the many wars both foreign and civil, these people were engaged in, -and the <i>jus gentium</i> of those ages, by which all that were taken in war were -reduced to slavery; insomuch that, by the year 1000, the number of these -villains was immense, whole cities and regions being reduced to that state<a id="FNanchor_85" href="#Footnote_85" class="fnanchor">[85]</a>.</p> - -<p>This introduction of a new order of men, unknown to the original German -policy, and inferior to all others, was of advantage to that which had -before been the lowest, I mean the <i>servants</i>, as they were called in Germany, -or <i>socage tenants</i>, as they were called in England; for the duties they paid -their lords were fixed at a certain rate, which being performed, they were -chargeable with no other burdens, and, though no members of the body -politic, as having no share in the public deliberations, either in person or -by representation, were in reality free men. These, with the addition of -several of the captive Romans, who were most skilful in agriculture, were -the successors of the old servants in Germany; but their numbers, from<span class="pagenum"><a id="Page_48"></a>[48]</span> -the causes before-mentioned, the perpetual wars, continually decreased, -great multitudes of them being reduced into the state of villainage<a id="FNanchor_86" href="#Footnote_86" class="fnanchor">[86]</a>.</p> - -<p>The soldiers, who were really what composed the nation, continued for -a longer time pretty much in the same state as in Germany; for a whole -people do not part with their accustomed usages and practices on a sudden. -They changed their habitations as before, their manner of judicature and administering -justice continued the same, they met in general assemblies as -usual, but, as they were now dispersed over a more extensive country, not -so frequently as formerly. When they were converted to Christianity, -which happened under Clovis, who, by uniting all the Franks, subduing -the Alemans, and conquering considerable tracts of country from both the -Visigoths and Burgundians, first formed a considerable kingdom, it was -found exceedingly inconvenient to assemble every month. Thrice in the -year, namely on the three festivals, was found sufficient, except on extraordinary -occasions; and this method was continued many ages in France and in -England. For hundreds of years after the conquest, these were the most -usual and regular times of assembling parliaments.</p> - -<p>But though things, in general, wore the same face as when these people -remained at home, it will be necessary to observe, that a change was insensibly -introducing, the king and the chieftains were daily increasing their -privileges, at the expence of the common soldiers, an event partly to be -ascribed to the general assemblies being less frequent, and consequently -fewer opportunities occurring for the people at large to exert their power; -but principally to the many years they had spent successively in camp, before -they thought themselves secure enough to disperse through the country. -The strictness of military discipline, and that prompt and unlimited obedience -its laws require, habituated them to a more implicit submission to -their leaders, who, from the necessities of war, were generally continued -in command. And it is no wonder that while the authority of the inferior -lords was thus every day gaining strength, that of the king should encrease -more considerably. For, probably, because he, as general, was the fittest -person to distribute the conquered lands to each according to his merits, -he about this time assumed to himself, and was quietly allowed the entire<span class="pagenum"><a id="Page_49"></a>[49]</span> -power of the partition of lands. They were still, and for some considerable -time longer, assigned in the general assemblies, but according to his sole -will and pleasure, to the several lords, who afterwards subdivided them to -their followers in the same manner at their discretion; whence it came, that -these grants were called benefices, and are constantly described by the old -writers, as flowing from the pure bounty and benevolence of the lord<a id="FNanchor_87" href="#Footnote_87" class="fnanchor">[87]</a>.</p> - -<p>A power so extraordinary in a king would tempt any one, at first view; -to think that he who had so unlimited a dominion over the landed property, -must be a most absolute monarch, and subject to no manner of controul -whatsoever. It will therefore be proper to make an observation or two, to -shew why, in fact, it was otherwise. First, then, the ascendant the lords -had gained over their followers, made it extremely dangerous for the king -to oppress the lords, lest it might occasion, if not a rebellion, at least a -desertion of them and their people. For the bonds of allegiance, except -among the companions of the king, as I observed before, were not yet fully -tied. On the other hand, the interest of the lords obliged them to protect -their inferiors from the regal power. Secondly, this power of the king, -and of his lords under him, was not unlimited in those times, as it may -appear to be at first sight, and as it became afterwards. For, though he -could assign what land he pleased to any of the Franks, he could not assign -any part to any other but a Frank, nor leave any one of the Franks unprovided -of a sufficient portion, unless his behaviour had notoriously disqualified -him<a id="FNanchor_88" href="#Footnote_88" class="fnanchor">[88]</a>.</p> - -<p>But the strongest reason against this absolute power in those times, is to -be drawn from the common feelings of human nature. As absolute monarchies -are only to be supported by standing armies, so is an absolute unlimited -power over that army, who have constantly the sword in their hands, -a thing in itself impossible. The Grand Seignior is, indeed, the uncontrouled -lord of the bulk of his subjects, that is, of the unarmed; but let him -touch the meanest of the janizaries, in a point of common interest, and he -will find that neither the sacredness of the blood of Ottoman, nor the religious -doctrine of passive obedience, can secure his throne. How then could<span class="pagenum"><a id="Page_50"></a>[50]</span> -an elective prince, in these northern regions, exercise an uncontrouled dominion -over a fierce people, bred up in the highest notions of civil liberty and -equality? One of their old maxims they long religiously adhered to, that -is, that, in consideration of their lands, they were bound to serve only in -defensive wars; so that a king who had engaged in an offensive one, had -every campaign a new army to raise by the dint of largesses; which if he -had no treasure left him by his predecessor, as he frequently had, and which -every king by all means was diligent in amassing, he supplied from the -profits of his demesns, the <i>census</i> on his villains, or else from foreign -plunder<a id="FNanchor_89" href="#Footnote_89" class="fnanchor">[89]</a>.</p> - -<p>But these people had not long been settled in their new seats, before the -encrease of their wealth, and the comfortableness of their habitations, rendered -a constant removal inconvenient, and made them desirous of more -settled assurance in their residence, than that of barely one year. Hence -it came, that many were, by the tacit permission of the king, or the lord, -allowed to hold after their term was expired, and to become what our -law calls <i>tenants by sufferance</i>, amoveable at any time, at the pleasure of -the superior; and afterwards, to remedy the uncertainty of these tenures, -grants for more years than one, but generally for a very short term, were -introduced. The books of the feudal law, written many hundred years -after, indeed, say that the first grants were at will, then for one year, then -for more; but I own I cannot bring myself to believe that these conquerors, -who were accustomed in Germany to yearly grants, could be satisfied with -a tenure so precarious as under that of a year, in their new acquisitions. -These grants at will, therefore, which are mentioned in those books, I understand -to be after their term ended. I mean this only as to the warrior-Franks, -for as to the socagers and villains, I will readily allow that many of -the former, and all the latter, were originally at pleasure<a id="FNanchor_90" href="#Footnote_90" class="fnanchor">[90]</a>.</p> - -<p>About this period, as I gather from the reason and circumstances of the -times, was introduced the tenure of castleguard, which was the assignment<span class="pagenum"><a id="Page_51"></a>[51]</span> -of a castle, with a tract of country adjacent, on condition of defending it -from enemies and rebels. This tenure continued longer in its original state -than any other; for by the feudal law it could be granted for no more than -one year certain<a id="FNanchor_91" href="#Footnote_91" class="fnanchor">[91]</a>.</p> - -<p>It is time now to take notice of such of the Romans as lived among the -Franks, and by them were not reduced to slavery. Clovis began his conquests -with reducing Soissons, where a Roman general had set himself up -with the title of a king; and after he had extended his conquests over all -the other states, the Franks, and some other German nations, the Armorici, -the inhabitants of Brittany, who, cut off from the body of the empire, had -for some time formed a separate state, submitted to him on condition of retaining -their estates, and the Roman laws. Their example was soon followed -by others. The Gauls who dwelt on the Loire, and the Roman garrisons -there, were taken into his service. Thus was the king of France sovereign -of two distinct nations, inhabiting the same country, and governed by -different laws. The Franks were ruled by their customs, which Clovis and -his successors reduced into writing; the Romans by the Imperial law. The -estates of the one were beneficiary and temporary; those of the others -were held <i>pleno jure</i> and perpetual, and now, or soon after, began to be -called <i>allodial</i>. But these allodial estates were not peculiar in after times to -the Romans; for as these estates were alienable, many of them were purchased -by the Franks: So that we read, that when Sunigisila and Callamon -were deprived of the benefices they held as Franks, they were permitted to -enjoy their estates in propriety. As the Romans were, before their submission, -divided into three classes, the nobles, the freemen, and the slaves, so -they continued thus divided; the nobles being dignified with the title of -<i>convivæ regis</i><a id="FNanchor_92" href="#Footnote_92" class="fnanchor">[92]</a>.</p> - -<p>But as it was unsafe to trust the government of these new subjects in the -hands of one of their nation, the king appointed annually one of his companions, -or <i>comites</i>, for that purpose, in a certain district; and this was the -origin of counties, and counts. The business of these lords was to take care -of, and account for the profits of the king’s demesns, to administer justice,<span class="pagenum"><a id="Page_52"></a>[52]</span> -and account for the profits of the courts; which were very considerable, as -the Roman laws about crimes being, by degrees, superseded, and consequently -capital punishment in most cases abolished, all offences became -fineable, a third of which they retained to themselves. They also, in imitation -of the lords of the Franks, led their followers to the wars. For every -free Roman, that held four manors, was obliged to serve under his count; -and those that had more or less contributed in proportion. This military -duty, together with an obligation of furnishing the king with carriages and -waggons, was all the burden put upon them, instead of those heavy taxes -and imposts they had paid to their emperors; so that, in this instance, their -situation was much mended, though in other respects it was sufficiently mortifying<a id="FNanchor_93" href="#Footnote_93" class="fnanchor">[93]</a>. -The greatest among them was no member of the political body, -and incapable of the lowest office in the state; and as all offences were now -fineable, those committed against a Frank, or other Barbarian, were estimated -at double to the compensation of those committed against a Roman -or Gaul. No wonder, then, that <i>gentilis homo</i>, a term formerly of reproach -among the Romans, (for it signified a heathen and barbarian) -became now a name of honour, and a mark of nobility; and that the Romans -earnestly longed to turn their allodial estates into benefices, and to quit -their own law for the Salic. And when once they had obtained that privilege, -the Roman law insensibly disappeared, in the territories of the Franks, -the northern parts of modern France, which are still called the <i>païs des coutumes</i>; -whereas, in the southern parts, where no such odious distinctions -were made by the original conqueror, the Roman law kept its ground, and -is to this day almost entirely observed. These countries are called by the -French lawyers <i>païs de loi ecrite</i>, meaning the Roman<a id="FNanchor_94" href="#Footnote_94" class="fnanchor">[94]</a>.</p> - -<p>But we cannot have a compleat idea of the constitution of this nation, -without taking notice of the clergy, who now made a considerable figure -among them. Churchmen had, ever since the conversion of Constantine, -been of great consequence in the empire; but the influence they obtained -among the northern barbarians was much more extensive than what they -had in the Roman empire. The conversion of Clovis to the Christian religion<span class="pagenum"><a id="Page_53"></a>[53]</span> -was owing to the earnest persuasions of his wife Clotildis, a zealous -Christian, and to a vow he made when pressed in battle, of embracing the -faith of Jesus Christ, if he obtained the victory. He and his people in general -accordingly turned Christians; and the respect and superstitious regard -they had in former times paid to their pagan priests, were now transferred -to their new instructors. The principal, therefore, of them were -admitted members of their general assemblies; where their advice and -votes had the greatest weight, as well as in the court of the prince; as -learning, or even an ability to read, was a matter of astonishment to such an -illiterate people, and it was natural in such a state they should take those in -a great measure as guides in their temporal affairs, whom they looked on as -their conductors to eternal happiness. As they were the only Romans (for -the churchmen were all of that nation) that were admissible into honours, -the most considerable of their countrymen were fond of entering into this -profession, and added a new weight to it. But if the sacredness of their -function gave them great influence, their wealth and riches added not a little -to it. Before the irruptions of the barbarians, they had received large -possessions from the bounty of the Roman emperors, and the piety of particulars. -These they were sure to possess: but their subsequent acquisitions -were much greater. Though these kings and their people had imbibed -the faith of Christ, they were little disposed to follow its moral precepts. -Montesquieu observes the Franks bore with their kings of the first race, -who were a set of brutal murderers, because these Franks were murderers -themselves. They were not ignorant of the deformity of their crimes, but, -instead of amending their lives, they chose rather to make atonement for -their offences, by largesses to their clergy. Hence the more wicked the -people, the more that order encreased in wealth and power<a id="FNanchor_95" href="#Footnote_95" class="fnanchor">[95]</a>.</p> - -<p>But, to do justice to the clergy of that age, there was another cause of -their aggrandizement, that was more to their honour. As these barbarians -were constantly at war, and reduced their unhappy captives to a state of -slavery, and often had many more than they knew what to do with, it was -usual for the churchmen to redeem them. These, then, became their servants,<span class="pagenum"><a id="Page_54"></a>[54]</span> -and tenants, where they met not only with a more easy servitude, -but were, from the sacredness of the church, both for themselves and their -posterity, secured from any future dangers of the same kind. It was usual -also for the unhappy Romans, who were possessed of allodial estates, and saw -themselves in danger, by these perpetual wars, of not only losing them, but -their liberty also, to make over their estates to the church, and become its -socage-tenants, on stipulated terms, in order to enjoy the immunities -thereof.</p> - -<p>By all these means the landed estates of the clergy grew so great, that in -time the military power of the kingdom was much enfeebled: for though -they were obliged to furnish men for the wars, according as the lands they -held were liable to that service, this was performed with such backwardness -and insufficiency, that the state at one time was near overturned, and it became -necessary to provide a remedy. Charles Martel, therefore, after having -delivered the nation from the imminent danger of the Saracen invasion, -found himself strong enough to attempt it. He stripped the clergy of almost -all their possessions, and, turning them into strict military tenures, divided -them among the companions of his victories; and the clergy, instead -of lands, were henceforth supported by tithes, which before, though sometimes -in use, were only voluntary donations, or the custom of particular -places not established by law<a id="FNanchor_96" href="#Footnote_96" class="fnanchor">[96]</a>.</p> - -<p>In my next lecture I shall consider the introduction of estates for life into -the feudal system, and take notice of the consequences that followed from -thence.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_55"></a>[55]</span></p> - -<h2 class="nobreak" id="LECTURE_VI">LECTURE VI.</h2> - -<p><i>The introduction of estates for life into the feudal system—The nature and forms -of investiture—The oath of fealty, and the obligations of lord and tenant.</i></p> - -</div> - -<p>In the preceding lecture I took notice of the different condition and situation -of the Romans and barbarians in the infancy of the French monarchy; -but it will be necessary to observe, that all the barbarians themselves -were not subject to the same laws and regulations. When the Ripuarian -Franks, after the murder of their sovereign, submitted to Clovis, it was -under an express condition of preserving their own usages. The same -privilege he allowed to the Allemans, whom he conquered, and to such -parts of the Burgundian and Gothic kingdoms as he reduced to his obedience. -The customs of all these several people, as they were Germans, -were indeed of the same spirit, and did pretty much agree; but in particular -points, and especially as to the administration of justice, they had many -variations; and these the several nations were fond of and studious of preserving. -What was peculiar to these people, above all other nations, was -this, that these different laws were not local, but personal: for although the -Salians, in general, dwelt in one part of the country, the Ripuarians in -another, the Allemans in a third, &c. yet the laws were not confined to -these districts: but a Salian, in the Ripuarian territories was still judged by -his own, the Salian law; and the same was true of all the others. Another -peculiarity was, that the barbarians were not confined to live in the law they -were born under. The Romans, indeed, could not pass from their Roman -law to that of any one of their conquerors, until they were allowed, several -ages after, to acquire fiefs; but any of the barbarians, if he liked another -law better than his own, could adopt it: a privilege, I presume, derived -from that antient practice which they used, of removing from one state or -commonwealth to another, or of going forth to form a new one.</p> - -<p>In the French monarchy, then, there were five different nations, besides -the Romans, governed by five distinct laws; but these five people, being<span class="pagenum"><a id="Page_56"></a>[56]</span> -all of the same northern original, and descended from the conquerors of -Gaul, were, in the state, every one of them esteemed and regarded on an -equal footing, enjoyed the same privileges, and equally received benefices -from the king or other lords. I have already observed, that the bonds between -the king and his companions in Germany continued during their -joint lives. It had the same duration after they settled in Gaul; where they -either presided with him in his court, as they had done formerly, or were -settled in benefices near him, and in such situations as they might readily attend -him on occasion; or else were the governors and leaders of the free -Romans, under the title of counts. But all the grants of lands or offices -that they enjoyed were, as yet, but temporary. So that they were <i>fideles</i>, -or vassals, bound by an oath of fealty for life; but there were no fiefs, or -feudal tenures, if we may call them by that name, that continued for so -long a term<a id="FNanchor_97" href="#Footnote_97" class="fnanchor">[97]</a>.</p> - -<p>The introduction of beneficiary grants for life, as is very properly conjectured, -was first owing to the counts. They had, as I mentioned before, -the third part of the profits of the courts in their respective districts, which -made their office not only considerable and honourable, but opulent. They -lived apart from the other barbarians among the Romans, whose allodial -property was fixed and permanent. It was natural for them to wish the continuance -of their lucrative employments, and to make them as perpetual as -their obligation of fidelity was; and this they were enabled to attain by the -means of the profits they made of their places, and the want of treasure, -which the kings frequently laboured under to support their wars: for offensive -ones they could carry on in no other manner than by ready treasure. -The counts, therefore, by the dint of presents, or fines, attained, or I may -rather say, purchased estates for life in their offices; but these estates had, -at first, continuance only during the joint lives of the granter and grantee<a id="FNanchor_98" href="#Footnote_98" class="fnanchor">[98]</a>.</p> - -<p>But the matter did not stop here. The example was quickly followed -by the other barbarians, who were the immediate tenants of the crown,<span class="pagenum"><a id="Page_57"></a>[57]</span> -and who now were growing weary of the constant, or even a frequent -change of habitation. And, in one respect, this allowance was of considerable -advantage to the king, as it created a tie upon them, equally durable -with that by which his companions were bound to him, and wore out by degrees -that principle they had before retained, that by throwing up what they -held from him, they were absolved from their allegiance. They, therefore, -as well as the companions, took the oath of fealty; which, as far as I can -find, was taken by none on the continent, whose estates were less than for -life; though, in the law of England, it is a maxim, that fealty is incident -to every tenure but two, namely, estates at will (for they did not think it -reasonable that a person should bind himself by oath, in consideration of -what might be taken from him the next day) and estates given in frank -almoigne, or free alms, that is, to religious houses, in consideration of saying -divine service, and praying for the donor and his heirs; and these were -excused out of respect to the churchmen, who were supposed not to need the -bond of an oath, to perform that duty to which they had dedicated themselves, -and also because the service was not done to the lord, who gave the -land, but to God.</p> - -<p>Thus estates for life, created by particular grants, went on continually encreasing -in number, till the year 600, by which time almost every military -tenure, castle-guard excepted, was of this nature. And this accounts for -the particular regard the feudal, and from it our law shews to the tenant of -the freehold, and the preference given to him above a tenant for years. -For, first, his estate was, generally, more valuable and permanent, as long -terms were then unknown; and, secondly, it was more honourable, as it -was a proof of a military tenure, and of the descent of its possessor from the -old German freemen. For it was a long time after that socage lands, in -imitation of these, came to be granted in the same manner, for life. The -lords, or immediate tenants of the crown, having, by the means afore-mentioned, -gotten estates of continuance, and being bound for life to the king, -thought it their interest likewise to connect their tenants as strictly to them, -by granting them freeholds also; but in the oath of these sub-vassals, which -they took to their lords, there was an exception of the fealty due to the -king, from whom the land was originally derived, or of a former lord, if -such an one they had, to whom they were bound by oath before. These<span class="pagenum"><a id="Page_58"></a>[58]</span> -sub-vassals, likewise, had not in those early times, the power of creating -vassalages, or estates for life, under them; for it was thought improper to -remove the dependence of any military man on the king to so great a distance; -and indeed it was hardly worth any man’s while, if it had been lawful, -to accept such a gift as was determinable either on the death of the superior -lord, or of his vassal, who had granted it, or lastly, on his own death<a id="FNanchor_99" href="#Footnote_99" class="fnanchor">[99]</a>.</p> - -<p>Estates for life being now become common, and in high estimation, -it was thought proper that they should be conferred with more form and -solemnity, and that by means of what the feudal law calls Investiture, of -which there are two kinds. The first, or proper investiture, was thus given: -The lord, or one impowered by him, and he that was to be tenant, went -upon the land, and then the tenant, having taken his oath of fealty, the -lord, or his deputy (or attorney, as our law calls him) gave actual possession -to him, by putting into his hand a part of the premises, in the name of the -whole, as a turf, a twig, or a hasp of the door, in the presence of the <i>pares -curiæ</i>, that is, of the other vassals or tenants of the lord. This is what our -law calls giving livery and seizin, from the lord’s or his deputy’s delivering, -and the tenant’s taking seizin, for so the possession of a freehold or estate for -life is called. The presence of the <i>pares curiæ</i> was required equally for the -advantage of the lord, of the tenant, and of themselves; of the lord, that, -if the tenant was a secret enemy, or otherwise unqualified, he might be apprised -thereof by the peers of his court, before he admitted him; and that -they might be witnesses of the obligation the tenant had laid himself under -of doing service, and of the conditions annexed to the gift, if any there were, -which the law did not imply: for the benefit of the tenant, that they might -testify the grant of the lord, and for what services it was given; and lastly, -for their own advantage, that they might know what the land was, that it -was open for the lord to give, and not the property of any of the vassals; -and also that no improper person should be admitted a par, or peer of their -court, and consequently be a witness, or judge, in their causes<a id="FNanchor_100" href="#Footnote_100" class="fnanchor">[100]</a>.</p> - -<p><span class="pagenum"><a id="Page_59"></a>[59]</span></p> - -<p>Hence it is, that in our law, if a man has right to enter into several lands -in the same county, an entry into one of them, in the name of all, is sufficient -to vest the seizin, that is, the possession of the freehold of all, in him; because -the same <i>pares curiæ</i> (who were in antient times the only witnesses allowed) -who know he had in their presence entered into one, know also that -he entered that one in the name of all the others; but if the lands lie in different -counties (which are distinct jurisdictions, and have different <i>pares -curiæ</i>) an entry into one county, in the name of the whole, is not sufficient; -because, as to seizin of lands in the other county, the <i>pares</i> thereof are the -only competent witnesses.</p> - -<p>As the proper investiture required the actual going upon the lands, which -was often inconvenient, the improper investiture was introduced. This, -which was the second kind mentioned, was also performed in the presence -of the <i>pares curiæ</i>, thus: The intended tenant, in a most humble and lowly -manner, prays the grant of such an estate from his lord; which, when -the latter has agreed to, he invests him, by words signifying his grant, and -what it is of, accompanied by some corporeal action, as delivering him a staff, -a ring, a sword, or clothing him with a robe, which last, being the most common -method amongst the great immediate tenants of the king, gave rise to -the name <i>investiture</i>. After this, the tenant did fealty. But this improper -investiture did not transfer the actual possession of the land without subsequent -livery and seizin, and gave the tenant not a right to enter, but only a -right of action, whereby he might sue, and oblige the lord to transfer it by -an actual livery. For all these lands, being liable to services arising out of the -profits for which the lord was bound to answer to the king, his possession of -these profits by their rules was continued, until he had, by an act of public -notoriety, namely, by giving livery and seizin on the land, put it out of -him. And this maxim was, I apprehend, established also for the benefit of -the co-vassals, who could better judge by their own eyes, on the spot, whether -an injury was done by the grant to any of them, than by hearing the -lands named and described elsewhere, as, in such case, it frequently happened -that all the vassals were not present<a id="FNanchor_101" href="#Footnote_101" class="fnanchor">[101]</a>.</p> - -<p><span class="pagenum"><a id="Page_60"></a>[60]</span></p> - -<p>Hence, if the lord had granted lands by an improper investiture to A, -and had afterwards, by livery and seizin, granted them to B, they became -B’s, though he was the later invested; and the remedy A had against the -lord was not for the lands themselves, for those he had already legally parted -with to B, and could not recal, but for their value, in consideration of -his having bound himself to fealty.</p> - -<p>This was the form and manner of proper and improper investitures in -the early times, before these barbarians had learned the use of letters, and -was intended not merely for solemnity, but also to create such a notoriety -of the fact, as it might easily be proved by <i>viva voce</i> testimony. For if it -was denied, the tenant produced two or more of the <i>pares curiæ</i>, each of -whom swore he had either been present at the investiture himself, or had -constantly heard his father declare, that he was. And this, at first, was the -only evidence admissible, and was abundantly sufficient, when the grants -were only for one life. Such proof, however, could not be of any advantage -to the church; for, though churchmen die, the church doth not, but -continues to be represented in a succession of natural persons. If she, therefore, -had not a more permanent evidence to produce than what I have before-mentioned, -she could never, after some length of time, ascertain her -rights. On this account <i>brevia testata</i>, or, as we call them, deeds, were made -use of, which were written instruments, expressing the grant, and its nature, -attested by some of the <i>pares</i>, and authenticated by the seal of the lord, or by -his name and sign of the cross. When this kind of evidence was once introduced, -as it was more fixed and certain than the frail memories of men, -it became customary for the tenant, who had been invested either properly -or improperly, to demand and obtain a <i>breve testatum</i> of that investiture, and -afterwards other symbols in improper investitures went out of use, and the -delivery of a deed became the ordinary sign; but this, as all other improper -investitures, required a subsequent actual livery and seizin.</p> - -<p>Having thus delivered the antient and proper method of constituting an -estate for life, let us attend to the consequences, and see what were the several -rights and obligations of the lord and tenant, and for that purpose examine -the oath of fealty.</p> - -<p><span class="pagenum"><a id="Page_61"></a>[61]</span></p> - -<p>The general oath of fealty on the continent was thus: <i>Ego N. vassallus, -super hæc sancta Dei evangelia, juro, quod ab hac horâ in antea usque ad ultimum -vitæ meæ diem, tibi M. domino meo, fidelis ero, contra omnem hominem, excepta -summo pontifice, vel imperatore, vel rege, vel priore domino meo</i>, as the -case was. In England, Littleton gives this account of it. When a freeholder -doth fealty to his lord, he shall hold his right hand on a book, and shall -say thus: Know ye this, my lord, that I shall be faithful and true unto you, -and faith to you shall bear, for the lands which I claim to hold of you; and -that I shall lawfully do to you the customs and services which I ought to do, -at the terms assigned; so help me God, and his saints; and he shall kiss the -book<a id="FNanchor_102" href="#Footnote_102" class="fnanchor">[102]</a>.</p> - -<p>The only differences are, that the words <i>ab hac hora in antea usque ad ultimum -vitæ meæ diem</i> are omitted: for abroad none but tenants for life swore -fealty. In England termers for years did; and that <i>contra omnem hominem, -excepto, &c.</i> though implied, is likewise omitted; which exceptions, however, -in the English law, were inserted in the doing of homage which the -tenant in fee did to his lord.</p> - -<p>Such was the general oath of fealty; but to shew what <i>being faithful -and true</i>, and <i>bearing faith</i> comprehends, it will be proper to insert, from -the seventh title of the second book of the feudal law, the larger oath, -which persons, rude and ignorant of what the word fealty implied, were to -take. It runs in these words: <i>Ego juro, quod nunquam scienter ero in consilio, -vel in facto quod tu amittas vitam, vel membrum aliquod, vel quod tu recipias -in personâ aliquam læsionem, vel injuriam, vel contumeliam, vel quod tu -amittas aliquem honorem quem nunc habes, vel in antea habebis; & si scivero, -vel audivero, de aliquo, qui velit aliquod istorum contra te facere, pro posse meo, -ut non fiat impedimentum præstabo. Et si impedimentum præstare nequivero, -quam cito potero, tibi nunciabo; & contra eum, prout potero, auxilium meum tibi -præstabo; & si contigerit, te rem aliquam quam habes vel habebis injuste vel fortuito -casu amittere, eam recuperare juvabo, & recuperatam omni tempore retinere. -Et si scivero te velle juste aliquem offendere, & inde generaliter vel specialiter -fuero requisitus, meum tibi, sicut potero, præstabo auxilium. Et si aliquid mihi de<span class="pagenum"><a id="Page_62"></a>[62]</span> -secreto manifestaveris, illud, sine tua licentia, nemini pandam, vel per quod pandatur -faciam; & si consilium mihi super aliquo facto postulaveris, illud tibi dabo -consilium, quod mihi videtur magis expedire tibi; & nunquam ex persona mea -aliquid faciam scienter, quod pertineat ad tuam vel tuorum injuriam vel contumeliam.</i></p> - -<p>Besides the negative obligations, of doing nothing to the prejudice of -the lord or his family, the positive ones the vassals lay under may be reduced -to the two heads of counsel and aid; which, with us, are still the -principal duties that the parliament, who are, or represent the vassals of the -king, owe to the sovereign. Under counsel, not only giving faithful advice, -but keeping his secrets was included. Aid may be either in supporting -his reputation and dignity, or defending his person or property. Under -the first, the vassal was not only to shew him the highest reverence, but was -forbid to accuse or inform against him, except in the case of treason, where -the supreme lord was concerned. He could not in a suit between them tender -to his lord the oath of calumny, whereby he should be obliged to swear -he thought his cause was just, and that he did not carry it on with an intent -to harrass and distress; for this was throwing an aspersion on his lord’s character. -He could not, for the same reason, bring any action against him, -whereby he might be defamed, and particularly the interdictum <i>unde-vi</i>, -which was a charge against the person sued, of an unjust and violent dispossession -of property. Neither could he, in any cause that was not strictly -feudal (for in such as were for the general preservation of that polity, he was -permitted) bear witness against him. And, lastly, he was obliged to support -his dignity, to attend his courts, and do suit and service, as a witness -and a juror.</p> - -<p>By aid to his person, he was not only obliged to defend his lord, if attacked -personally, but to assist him in his wars, and that at his own expence, -out of the profits of his tenancy; and if, in the field of battle, he deserted -his lord, before his lord was mortally wounded, it was an absolute forfeiture. -But this aid he was not obliged to give until required; for perhaps the lord -did not need the aid of all his tenants; and the vassal, without notice, was -supposed ignorant that there was any occasion for his assistance, unless it -could be proved the vassal knew his lord’s danger, when the lord himself<span class="pagenum"><a id="Page_63"></a>[63]</span> -did not; or that he knew it was so imminent as not to give the lord time -to summon him; in which two cases, he was obliged to serve without requisition<a id="FNanchor_103" href="#Footnote_103" class="fnanchor">[103]</a>.</p> - -<p>But here some distinctions must be taken notice of as to the nature of -these wars. I have often repeated that the king’s companions were bound -to assist him in all his undertakings, offensive or defensive; and that the -other freemen were obliged only to serve in defensive wars. But now, by -this new introduction of grants for life to the freemen, the case was altered. -In all defensive wars, they were obliged to aid their lord, though he had -been the unjust aggressor, and this for the preservation of the society to -which they belonged; but in offensive ones, it was to be considered whether -the cause was just, or doubtful, or notoriously unjust. In the two first cases, -he was obliged to furnish his aid; for if his lord’s quarrel was doubtful, the -respect and reverence he owed him, and his regard to his lord’s character -and dignity, laid him under a necessity of presuming in his superior’s favour. -But if the war was notoriously unjust, he was at liberty to serve, or not, -as he pleased. And the aid he was bound to give, where he was bound, -was against all persons, <i>contra omnem hominem</i>, even his parents, brothers, -children, and friends, with the following exceptions. First, not against -the king, who was the supreme lord of the whole, and in whose preservation -and dignity every individual was concerned. Secondly, not against himself, -for self-preservation is the first law of nature. Thirdly, not against his -original country, though he had received a grant from a foreign lord, and -afterwards war broke out between them: for by this time, the opinion of -a durable obligation to the state he was born in, began to prevail among -them. Lastly, not against his antienter lord, when he had grants from two; -for the second obligation could not annul the first. It may here be naturally -asked, how such a vassal, who had two lords, was to act in case of a war -between them? If his first lord’s cause was just or doubtful, he was undoubtedly -bound to him against the subsequent one, even in attacking him; -and this was no forfeiture, for the second lord had sufficient notice of his -prior obligation, by the exception in the oath of fealty. Indeed, if he, having -a lord before, had omitted the exception, he justly lost his fief, for the -deceit put on his latter lord. But if his first lord’s cause was notoriously unjust,<span class="pagenum"><a id="Page_64"></a>[64]</span> -he was not at liberty to assist him against the second; but by the two -bonds was obliged to remain neuter<a id="FNanchor_104" href="#Footnote_104" class="fnanchor">[104]</a>.</p> - -<p>This military duty was to be done in the vassal’s proper person, if he was -capable of it; unless the lord was pleased to accept of a deputy. But if he -was incapable himself, as often must have happened, after estates for life -came in, he was allowed to serve by a substitute, such as the lord approved. -Suppose, then, a man had two lords, who were at the same time at war -with others, and each required his personal assistance, it was plain he was -obliged to serve both, the elder lord in person, because his right was prior, -and the last by deputy<a id="FNanchor_105" href="#Footnote_105" class="fnanchor">[105]</a>.</p> - -<p>The aids due to the lord, in respect of his property, were, first, to aid and -support him, if reduced to actual indigence, and to procure his liberty, by -paying his ransom, if taken in war. It was a doubt among the feudal lawyers, -whether, if the lord was imprisoned for debts, his tenants were obliged -to release him; and the better opinion was, that they were, if the debts did -not tend to their very great impoverishment<a id="FNanchor_106" href="#Footnote_106" class="fnanchor">[106]</a>.</p> - -<p>These were all the aids necessarily required by the law in these antient -times. For those for making his eldest son a knight, and marrying his elder -daughter, came in afterwards. All other contributions and assistances were -merely voluntary, though very frequent, and were originally, as they are -still here, and are still called abroad, though imposed really and truly, <i>free -gifts</i>.</p> - -<p>We are now to speak of the duty of the lord to his vassals; and on this -head there is no need of enlarging much: for it was a maxim in the feudal -law, that though the vassal only took the oath to the lord, and the lord, on -account of his dignity, and the respect due to him from the tenant, took -none; yet was he equally obliged as if he had taken it, to do every thing, -and forbear every thing, with respect to his tenant, that the vassal was with<span class="pagenum"><a id="Page_65"></a>[65]</span> -respect to the lord; so that the bond was in most respects strictly mutual; -but not in all, for the lord was not obliged to support his indigent tenant, -or to give aids to him; but, on the other hand, he was obliged to warrant -and defend the lands he had given to his tenant by arms, if attacked in open -war, and in courts of justice, by appearing upon his voucher, that is, the -tenant’s calling him in to defend his right, and if the lord failed, he was -bound to give lands of equal value, or, if he had not such to bestow, to -pay to the tenant (in consideration of the bond for life, he had bound himself -to his lord in) an equivalent in money.</p> - -<p>As, in case of the vassal’s failure in his duty, the lands returned to the -lord, so, in case of the lord’s failure on his side, the lands were vested in -the vassal, free from all services to his immediate superior. But to the -king, or lord paramount, he still owed service, in proportion to his fief; and -by this means he might become, instead of a subvassal, an immediate vassal -of the king<a id="FNanchor_107" href="#Footnote_107" class="fnanchor">[107]</a>.</p> - -<p>Having mentioned the obligations on each side between lord and tenant, -it next follows to see what interest each had in the lands given; on which -head I shall be brief, as these several rights were not so nicely distinguished -as in after ages, when these tenures became hereditary. The lord was then -to suffer his tenant to enjoy the issues and profits of the lands, he rendering -the services due by the reservation of law, and the additional ones, if -any such had been specially reserved. In case of failure, he had, in those -antient times, a right of entry for the tenant’s forfeiture. For while this -military system continued in its full vigour, the smallest breach the vassal -committed in his engagements was an absolute forfeiture; but in after times, -when the lands were often given upon other considerations than military -service; and when the military was often commuted for pecuniary considerations, -a milder way was found out, that is, by <i>distress</i>, by which the -lord, instead of seizing the lands, took possession of all the goods and chattels -of his tenants found upon the lands, (for the lands were still the mark -where he was to take), and kept them as a deposit, till his tenant had made<span class="pagenum"><a id="Page_66"></a>[66]</span> -satisfaction, originally indeed at the lord’s pleasure, for the failure in his -duty<a id="FNanchor_108" href="#Footnote_108" class="fnanchor">[108]</a>.</p> - -<p>The right the tenant had in the land was, that, paying the services due, -he should receive the produce thereof, and turn it to his own best advantage; -and that he might, if attacked in a court of justice, vouch, or call in -his lord to defend his possession by arms, or otherwise. But as his tenure -was precarious, and only for life, he was prohibited from doing any thing -that should either hurt his lord’s interest, or that of the king, in whom and -his successors the inheritance was vested. Thus, he could not commit -waste, by destroying houses, or cutting down trees, except what was necessary -for immediate use, for repairs, firing, or tillage. He could not bequeath -his tenancy, for he held only during life. He could not alienate without -the consent of his lord, for he had his lands in consideration of his personal -service; and although, in case of necessity, he was allowed a substitute, -it was only such an one as was acceptable to the lord; whereas by -alienation, the real tenant who was bound by oath to do the services out of -the profits, was to lose them, and a stranger, perhaps an enemy, who was -under no tie to the lord, was to enjoy them. Alienation, therefore, without -the consent of the lord, was unlawful. If he consented indeed, and -accepted the alienée, he, upon his taking the oath of fealty, became the -real tenant, and the former was quit of all positive service, except honour -and reverence; but still bound by his former oath from doing or suffering -any thing to the prejudice of his former lord. Neither could a sub-vassal, in -those early times, create a vassalage to be held of himself. The immediate -vassal of the king, indeed, could, but then it was on these terms; first, that -the person he granted it to was one that was of the ligeance of the king, either -natural or adopted; next, that he was as capable of rendering the services -as the grantor; and lastly, that the services reserved should, if not -better, which was expected, be at least equally beneficial to the supreme -lord as those of the original grant to the intermediate or mesne lord. To explain -this, if the king granted ten thousand acres to his immediate vassal, for -the service of ten knights, the vassal might give one thousand, indeed, or<span class="pagenum"><a id="Page_67"></a>[67]</span> -any lesser number of acres to one person, for the service of one knight; but -if he gave more to one, as he had attempted to hurt and lessen the benefit -his superior had stipulated for, his grant was void, and in those times, when -forfeitures were regularly exacted, the grant of the king to him was forfeited -also<a id="FNanchor_109" href="#Footnote_109" class="fnanchor">[109]</a>.</p> - -<p>In my next lecture I shall say something of <i>improper feuds</i>, as they began -to be introduced about the time I am now upon, and were very seldom, in -those ages, granted for longer terms than for years or lives, and go on to -shew by what means, by what steps and degrees, estates for life grew up -into inheritances.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_68"></a>[68]</span></p> - -<h2 class="nobreak" id="LECTURE_VII">LECTURE VII.</h2> - -<p><i>Improper feuds or benefices—Grants to the Church—Grants in which the oath -of fealty was remitted—Grants to which a condition was annexed, that enlarged -or diminished the estate—Grants which reserved certain other services, beside -military service—Grants implying some certain service, as rent, and not -reserving military service—Grants reserving no services, but general fealty—Grand -serjeanty—Petty serjeanty—Grants to women—Grants of things not -corporeal—Feudum de Cavena—Feudum de Camera.</i></p> - -</div> - -<p>Having, in the preceeding lecture, laid down the manner of constituting -a proper beneficiary estate for life, which consisted in lands granted -for the defence of the state, upon the consideration of personal military -service, and the rights and obligations annexed thereto; it will be proper to -mention such, (and to point out the several kinds of them) as are called improper -benefices, which are those that, in one or more particulars, recede -from the strict, and, in antient times, the usual nature of those grants; and -this is more especially necessary, as, since the abolishing the military tenures -in Charles the Second’s time, all our present estates come under one or other -of these heads. It was a maxim in the feudal law, that <i>conventio modum -dat donationi</i>; and therefore, whatever terms the donor prescribed, though -varying from the general course, was the rule by which the grant was to be -regulated.</p> - -<p>In the first place, then, all benefices granted to the church were improper -ones, because given on other terms than that of military service, and because -they ended not with the death of the grantor or grantee, but continued -coeval with the life of the church, that is, for ever<a id="FNanchor_110" href="#Footnote_110" class="fnanchor">[110]</a>.</p> - -<p>Secondly, Grants of lands, wherein the oath of fealty was remitted; for -although fealty itself was an incident, essential to, and inseparable from, -every estate of life abroad, and every estate of years also in England, the -ceremony of actually taking the oath might be omitted; and if the lord had<span class="pagenum"><a id="Page_69"></a>[69]</span> -put the tenant in possession, without his having taken the oath, the tenant -might enjoy without it. He was obliged, indeed, to take it whenever his -lord called upon him, on pain of forfeiture; unless, in the investiture, it -had been expressly remitted; in which case, he might refuse to take it, and -justify his refusal by the tenor of his investiture<a id="FNanchor_111" href="#Footnote_111" class="fnanchor">[111]</a>.</p> - -<p>Thirdly, All grants to which there was a condition annexed, that either -enlarged or diminished the estate; as if lands were granted to two, and the -survivor of them. This was an improper benefice, as it had continuance -for more than one life; or if they were granted to a man for life, provided -he did, or refrained from doing such an act. This was improper also, because -it might have a more speedy determination.</p> - -<p>Fourthly, All grants, in which certain services beside military were reserved, -were also of this nature, as if the tenure was by military service and -a certain rent, or any other certain duty, or by military service reduced to -a certainty, as to attend, suppose forty days and no more, or by military service -with a power in the tenant to excuse himself, by paying a certain sum. -For the proper fief was for military service only, the occasions and duration -of which were uncertain<a id="FNanchor_112" href="#Footnote_112" class="fnanchor">[112]</a>.</p> - -<p>Fifthly, If military service was not reserved at all, but some other certain -service instead thereof, as rent, the grant was an improper one, and -such are our tenures, since they have been reduced to socage, which is derived -from <i>soke</i> or <i>soka</i>, a plough, because their duty was originally to attend -a certain number of days to plow their lord’s grounds, or else to supply -him with a certain quantity of corn in lieu thereof. This manner of paying -in kind, namely, by corn, cattle or other necessaries, was continued every -where many ages; in England, until the time of Henry the first, when -they began to be commuted into money, to the great advantage of the successors -of these socage tenants, whose estates were before become hereditary. -For the computation being made at the rate and proportion of value -between money and the necessaries of life at that time, as money grew -more plentiful every day, its value continually sunk, and the price of commodities -accordingly increased; in so much that the present successor of a tenant<span class="pagenum"><a id="Page_70"></a>[70]</span> -at that time, who had before paid a fat ox, which was changed into -twenty shillings, its then value, would now pay but the eight part of the original -reservation, when the price of an ox is eight pounds. And this contributed -not a little to the happy equality which now reigns among all ranks, -as these baser, the socage tenures, were continually rising in value, and consequently -in consideration, and coming every day nearer to an equality, in -the estimation of the world, with the nobler, the military benefices<a id="FNanchor_113" href="#Footnote_113" class="fnanchor">[113]</a>.</p> - -<p>Sixthly, If no services at all were reserved, except general fealty, which -could not be remitted; for it was thought reasonable, not only to grant -lands in consideration of future military service, but also to reward such as -had deserved eminently, and were perhaps maimed or mutilated, and so unfit -for future service, with lands free from such, or any other duty.</p> - -<p>Seventhly, Grand serjeanty is a benefice of an improper nature, even -though it be reckoned a military one, because it is reduced to a certainty. -Grand serjeanty is a certain service done by the body of a man to the person -of the king, and is of two kinds; military, which is to be done either in or -out of the realm; and not military, which is to be done within the realm. -Military, as when lands are given on condition of carrying the banner of the -king, or his lance, or to lead his army, that is, to be his constable; or to -number and array his army, that is, to be his marshal; but these being <i>certain</i> -services, and due to the person of the king, they were not obliged to -attend, but where he went in person; and this right they insisted on so -strongly, as had almost occasioned a rebellion in the time of Edward the -First; who, although in most things an excellent prince, was of an hot and -haughty temper<a id="FNanchor_114" href="#Footnote_114" class="fnanchor">[114]</a>.</p> - -<p>Having determined to attack France on two sides; in Flanders, where -he intended to command himself, and in Guienne; he ordered the Earl of -Hereford, high constable by tenure, and the Earl of Norfolk, marshal by tenure, -to lead the army in Guienne, as his generals and commanders in chief. -But, however honourable and pleasing in other respects the offer might be,<span class="pagenum"><a id="Page_71"></a>[71]</span> -they feared that such a precedent, quietly complied with, might be, in after -times, a means of introducing new and hard services at the king’s pleasure, -instead of the antient and known ones. They, therefore, flatly refused, unless -he went thither himself; offering, at the same time, to serve under him -in Flanders. The king, boiling with resentment against France, and provoked -at this contradiction to his pleasure, however justly founded, threatened -Norfolk, in a transport of passion, with hanging; to which the other -replied, with equal fierceness, and total want of respect. The two Earls retired -to their estates, put themselves in a state of defence, and even committed -several outrages against the king’s collectors; and their cause was generally -espoused by the nation, who were against the king’s exacting any new -and unheard-of services. The behaviour of these lords to their sovereign, -and to such a sovereign, in setting him at defiance, and that with terms of -disdain, when they themselves were the aggressors, was utterly unjustifiable; -but, from their cause, notwithstanding this behaviour of theirs, being universally -espoused by the nation, we may clearly see the opinion and judgment -of those times; that their kings were not unlimited, and that they had -no right to exact from their vassals any services but those that flowed from -their tenures. The king, indeed, at first gave their lands and offices to -others; but when he had cooled, and found they had insisted on no more -than was their right, he, in the frankest manner, repaired his error. He -gave in parliament a new confirmation of Magna Charta. By another statute, -he renounced all right of taking talliages, that is, levying taxes, even -on his own demesnes, without consent of parliament, as contrary to that charter; -and in the body of this last act, in the amplest manner, remitted all disgust -and resentment against the two earls and their associates; and gave -them the fullest indemnity for the offences they had so outrageously committed. -Such conduct in any king, whose subjects were not disposed to esteem -him, might have been as a sign of weakness, and have been attended -with dismal consequences; but in Edward’s realms there was not a man that -did not admire his wisdom, adore him for his valour, his honour, and his -sincerity. He could encroach without incurring hatred, and he could retract -without being thought mean; so that it may be a question, whether, by -the noble manner of his repairing his mistake, he did not tie his subjects to -him with stronger bonds of affection, than if he had never committed it<a id="FNanchor_115" href="#Footnote_115" class="fnanchor">[115]</a>.</p> - -<p><span class="pagenum"><a id="Page_72"></a>[72]</span></p> - -<p>The grand serjeanties that are not military are of various kinds, being -offices and services done to the person of the king within the realm, in order -to the support of his state and dignity; for which reason, although they are -not, properly speaking, military services, yet they are looked upon in that -light, and are endowed with the same privileges, and subject to the same -regulations, except in a few instances, to be hereafter mentioned; so that -no person under the rank of the lesser nobility, that is, of knighthood, was -capable of performing them; and therefore, when, by allowing the alienation -of lands, these tenures fell into the hands of persons of inferior quality, -they were either knighted, or appointed a deputy of that rank. Thus, -at the coronation of Richard the Second, as we find in Lord Coke, William -Furnivall claimed to find a globe for the right hand of the king, and to -support his hand on the day of his coronation, in virtue of the manor of -Farnham, which he held by that grand serjeanty; but, though descended -of a noble family, he was not permitted to perform it in person, until he -had been dubbed a knight. At the same coronation, John Wiltshire, citizen -of London, claimed to hold a towel while the king washed before dinner, -which claim being allowed, as he was of too low rank to perform the -service in person, he made Edmund Earl of Cambridge his deputy. Women -likewise and minors were obliged to serve by deputy; as did, at that -time, Anne Countess-dowager of Pembroke, by Sir John Blount, and her -son John Earl of Pembroke, a minor, by Edmund Earl of March<a id="FNanchor_116" href="#Footnote_116" class="fnanchor">[116]</a>.</p> - -<p>These grand serjeanties, which were most of them lands granted for -the doing certain duties at the solemnity of the coronation, contributing -to the splendour and dignity of the crown, have been still retained, though -all other military tenures have been changed into free and common socage. -However, all these grand serjeanties were not for the bare purpose of attending -at coronations. The lord high stewardship or seneschalship of England, -of which the duty is to preside at the trials of peers, was annexed to -the barony of Hinckly, which, passing into the family of Leicester, and then -into that of Lancaster, in the person of Henry the Fourth was united to -the crown; but ever since that time, as the powers and privileges the law -threw into his hands were looked upon as too extensive, and dangerous, if -continued, this officer hath only been occasionally created, as for a coronation,<span class="pagenum"><a id="Page_73"></a>[73]</span> -or the trial of a peer, which ended, he breaks his staff, and the office -is vacant<a id="FNanchor_117" href="#Footnote_117" class="fnanchor">[117]</a>. The same is the case, and for the same reason, of the office of -high-constable, ever since the attainder, in Henry the Eighth’s time, of Edward -Duke of Buckingham, who enjoyed it as Earl of Hereford. Thus did -the crown get rid of two considerable checks, which concurring with other -more extensive and influencing causes, helped to raise the power of the house -of Tudor above what the princes of the line of Plantagenet had enjoyed<a id="FNanchor_118" href="#Footnote_118" class="fnanchor">[118]</a>. -The office of earl marshal, indeed still continues in the noble family of Norfolk. -For, notwithstanding the attainders of that family, when they were -restored, it also was restored to them. The reason is, because this office -is of little power; indeed, in the vacancy of the constable to whom he is -properly an assistant, scarce of any at all. It being, therefore, an honourable -dignity, and attended with no danger, it is no wonder it hath remained<a id="FNanchor_119" href="#Footnote_119" class="fnanchor">[119]</a>. -In this kingdom one grand serjeanty remained till the year 1715, in -the family of Ormond, that of butlerage; but it differed from those before-mentioned -in this, that it was not a service arising from a grant of lands, -but of the prisage of wines, an antient profit of the crown, due by prerogative, -namely, a right to take two tons of wine, one before the mast, and -the other behind, out of every ship containing twenty tons or more, until -Charles the Second purchased it from the Duke of Ormond by a perpetual -pension of four thousand pounds a year<a id="FNanchor_120" href="#Footnote_120" class="fnanchor">[120]</a>.</p> - -<p>Eighthly, Petty serjeanty was another species of improper benefices, -and, in our law, was comprised under the general head of <i>socage</i>, because -the service was certain. It is, as Littleton<a id="FNanchor_121" href="#Footnote_121" class="fnanchor">[121]</a> defines it, where a man holds -his land of our sovereign lord the king, to yield to him yearly a bow or a -sword, or a dagger, or a knife, or a lance, or a pair of gloves of mail, or -a pair of gilt spurs, or an arrow, or divers arrows; or to yield such other -small things belonging to war; so this, as well as grand serjeanty, was a<span class="pagenum"><a id="Page_74"></a>[74]</span> -tenure of the king’s person, and could not be held of a subject. Such is -the grant the Lord Baltimore hath in his province of Maryland; for he -yields every Christmas five Indian arrows, besides a fifth of all gold and silver -found within this province.</p> - -<p>Ninthly, All grants to women were of the nature of improper ones, because -they must always serve by deputy; and personal service is essential to -the proper military tenures<a id="FNanchor_122" href="#Footnote_122" class="fnanchor">[122]</a>. But these were not introduced so early.</p> - -<p>The tenth kind, and the last that I shall mention, of improper benefices, -are those that are of <i>things not corporeal</i>, and of which, consequently, there -cannot be a possession manually delivered over, that is, they do not admit of -livery and seizin, and therefore can be only conveyed by the improper investiture, -that is, by words or writing, accompanied by a symbol. Such are -rights in, or profits issuing out of land, where another hath the possession of -it. As the feudal law distinguishes between corporeal things, whose possession -can be actually transferred, and incorporeal, which cannot; so doth -our law make what is the same distinction between things that lie in livery, -and things that lie in grant. In the first, it regularly requires an actual livery -and seizin, and here a deed is not absolutely necessary; but the second -pass by the delivery of the deed. Here therefore a deed is absolutely -necessary; for although the feudal law admits the use of other symbols in -this case, ours, for the greater certainty, precisely requires this peculiar one, -that there may be full evidence of what was conveyed. Of this last tenth -kind as there are many and various species, I shall run over some of them -in a cursory manner, to explain and shew their general nature.</p> - -<p>The first I shall take notice of is, that which, I presume, was the most -antient, as it seems to have come in the place of those repasts the king gave -to his comites, or companions, and is what is called <i>feudum de cavena</i>. <i>Cavena</i> -signified the repository, or repositories of the necessaries of life, while -in those ancient times the services due from the demesnes, or the socage -lands, to the king or lords, were paid in kind. Things therefore necessary, -or useful for the support of life, distributed in specie, out of the king’s or -lord’s cellar or pantry, or both, were what the <i>feudum cavena</i> consisted in;<span class="pagenum"><a id="Page_75"></a>[75]</span> -and that this came in place of the antient constant entertainments, and -feasts, of the comites, or companions, appears from this, that it was a rule, -even after other grants were allowed to be hereditary, that these determined -with the life of the grantor, or grantee, which ever first happened to expire. -These grants likewise were of two kinds; some granted in consideration -of future services, upon the failure of which a forfeiture was incurred, -others, in reward for past services, where nothing was expected for the -future but general fealty. This difference runs through many other of -these gifts that lie in grant. For the feudal law distinguishes them into -<i>officiosa</i>, that is, to which a positive duty is annexed, and <i>inofficiosa</i>, where -no subsequent service is required, but general fidelity, which is incident to -every tenure<a id="FNanchor_123" href="#Footnote_123" class="fnanchor">[123]</a>.</p> - -<p>The second I shall mention is <i>feudum de camera</i>, which, I apprehend, was -originally a substitution for what I have just mentioned, the <i>feudum de cavena</i>; -for it was instead of an allowance of necessaries out of the cellar or -pantry of the king, an annual allocation of a sum of money for will, life, -or years, according as it was granted out of the <i>camera</i>, or chamber where -the king or lord kept his money; and this was, as the other I before mentioned -into whose room it came, either a reward for past services, in which -case no future duty was required, or on consideration of future ones. The -pensions granted by the king in our kingdom (Ireland) out of his revenue, -are of the nature of the former; and the salaries to judges and other officers -are of the nature of the latter. What was common to both of these, the -<i>feudum de camera & de cavena</i>, was, that, by the feudal law, they were not -due at the stated time, unless there were provisions in the <i>cavena</i>, or money -in the <i>camera</i>, and that free from debts; for the lord’s safety and dignity -was to be first considered; but they were to wait for their arrear, till provisions -or money came in.</p> - -<p>Another thing is to be observed, that, although, at the introduction of -these tenures, all others were for the life of the grantor and grantee at most, -yet when the others became perpetual, these continued long after to be only -for the joint lives of the grantor and grantee, namely, as long as kings and<span class="pagenum"><a id="Page_76"></a>[76]</span> -great lords were considered as tenants for life, and incapable of alienating -their demesnes, or laying any permanent charge upon them. But when, by -the frequency of the example of alienations, and by the occasional indigence -of the kings and other lords, and the desire designing persons had to take -advantage of it, alienations of the demesnes were once introduced, to the -prejudice of the successor, these grants, as was very natural, as they were -less hurtful than an absolute alienation, were continued for the life of the -grantee, though the grantor had died before<a id="FNanchor_124" href="#Footnote_124" class="fnanchor">[124]</a>.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_77"></a>[77]</span></p> - -<h2 class="nobreak" id="LECTURE_VIII">LECTURE VIII.</h2> - -<p><i>Feudum Soldatæ—Feudum habitationis—Feudum Guardiæ—Feudum Gastaldiæ -Feudum mercedis—Incorporeal benefices in England—Advowsons—Presentative -advowsons—Collative advowsons—Donatives.</i></p> - -</div> - -<p>In the preceding lecture I began to treat of the several kinds of improper -benefices, which are transferable only by the improper investiture, or, -as the English law says, <i>lie in grant</i>; intending only to illustrate their general -nature, without descending minutely into particulars; and of these I have -already mentioned the <i>feudum de camera</i>, and that <i>de cavena</i>. I call these -fiefs, even at the time I am now treating of, in conformity with the practice -of the feudal writers: not with strict propriety, indeed; for <i>feudum</i>, properly -speaking, signifies a tenure of inheritance, and such were not yet introduced. -But before I quit them, it will be proper to take notice of some subdivisions -of them, to be met with in the feudal writers.</p> - -<p>I have already observed they were either gratuitous or officious, that is, -without future service, or with it. Of the first kind there were two species, -that called <i>feudum soldatæ</i>, from the word <i>solidus</i>, which signified a piece of -money, and was a gratuitous pension, granted either out of the charity or -bounty of the lord, or in reward of past services; the other called <i>feudum -habitationis</i>; which is liberty of dwelling in an house belonging to the lord, -in whom the property still doth, and the possession is still supposed to remain<a id="FNanchor_125" href="#Footnote_125" class="fnanchor">[125]</a>. -Of the officious ones Corvinus mentions three kinds, <i>feudum guardiæ</i>, -<i>feudum gastaldiæ</i>, and <i>feudum mercedis</i>.</p> - -<p>The <i>feudum guardiæ</i> hath annexed to it the defence of a castle, for the -security of the realm; and this differs from the castle guard I have before -mentioned, in as much as that, where lands were given for the defence of -the castle, it was a corporeal benefice, and transferred by livery and seizin; -namely, by admitting the constable into the castle, and delivering him the<span class="pagenum"><a id="Page_78"></a>[78]</span> -key thereof, and was an improper one only in respect of its duration, as, in -the early times, it continued only a year; but this I am now speaking of was -a pension, paid out of the king’s exchequer for the same purpose; and was -of the same nature with the modern salaries of governors of garrisons<a id="FNanchor_126" href="#Footnote_126" class="fnanchor">[126]</a>.</p> - -<p>The <i>feudum gastaldiæ</i> was a pension granted to a person for transacting -the lord’s business, as for being his treasurer, steward, agent, or receiver. -The <i>feudum mercedis</i> was in consideration of being an advocate or defender -of the lord. Such are grants to lawyers <i>pro consilio impendendo</i>; and the salaries -of the king’s lawyers, and the solicitors for the crown<a id="FNanchor_127" href="#Footnote_127" class="fnanchor">[127]</a>.</p> - -<p>I shall next run over briefly the several kinds of incorporeal benefices -which the law of England takes notice of, and explain their general nature. -And the first I shall take notice of is an <i>advowson</i>, which is a right a man -hath of nominating a proper person to fulfil the duties, and to receive the -profits of an ecclesiastical benefice. These rights arose thus. In the infancy -of the christian church, when the clergy were supported by the voluntary -contributions of the people, the bishop was chosen by the clergy and -people at large; and this method was so firmly established, that when the -emperors became christians, although they made great donations of lands to -the church, yet they left the manner of election as they found it; and so it -continued in Rome until the year 1000 at least. But these elections, made -by the giddy multitude, were the occasions of infinite disorders. The value -of these offices being encreased, and the manners of the ecclesiastics corrupted -by the accession of riches; parties and factions were eternally forming, -and supported by all methods; and when a vacancy happened, the contest -was frequently not decided without bloodshed. It is no wonder that all -the sober part of the clergy, who were scandalized at these irreligious practices, -and the emperors, who were concerned in the peace of their dominions, -concurred in remedying these evils; which was at length effected by excluding -the laity, gradually, and by insensible degrees, and confining the -election to the ecclesiastics. Many of the emperors, indeed, struggled hard -to get the nomination to themselves, but the clergy proving too powerful -for them, they obtained, at most, but a power of recommendation<a id="FNanchor_128" href="#Footnote_128" class="fnanchor">[128]</a>.</p> - -<p><span class="pagenum"><a id="Page_79"></a>[79]</span></p> - -<p>In the northern kingdoms the same causes produced the same effects, as -to the exclusion of the laity, but with more advantageous circumstances to -the rights of these princes. For as the lands they gave to the bishops in -right of their churches were held of them, so they gave the investiture; -and there was a kind of concurring right between the clergy, who elected, -and the king. He insisted on his right of giving the investiture, but generally -received their nominee, and granted it to him.</p> - -<p>But after the time of Charles Martel, when the clergy were stripped of -most of their lands, things took a different turn. For when new grants -were made to the church by the king, he insisted, as feudal lord, on the absolute -nomination, and the giving investiture, by delivering the staff or crosier, -the emblem of his pastoral care, and the ring, the symbol of his spiritual -marriage with the church; but these rights were opposed by the -clergy, who were strongly supported by the popes then setting up for -being the feudal lords of all churchmen, and who hoped to derive, as they -did, great advantage from these dissentions. From the year 1000 to 1200, -great confusion subsisted throughout all Europe, occasioned by these contests, -until the popes in general prevailed; but for four hundred years past, -and particularly since the reformation, their power hath been on the decline; -and from this last period the patronage or advowson of bishoprics -hath been confessedly in our king, as hath been the case in several other -kingdoms; and though in England a form of election is still retained, it is -no more than a mere form<a id="FNanchor_129" href="#Footnote_129" class="fnanchor">[129]</a>.</p> - -<p>The advowson, or patronage of inferior benefices, came in another way. -In order to understand this, let us consider how dioceses came to be subdivided -into parishes. Antiently, I mean about the year 420, the bishop -had the sole cure of souls throughout his whole district, and received all the -profits of it; which he and the clergy distributed into four parts, not exactly -equal ones; but unequal, according to the exigences of the several interests -to be considered; one to the bishop, to maintain hospitality, and support -the clergy residing with him, and the Christians of other places, who<span class="pagenum"><a id="Page_80"></a>[80]</span> -were often forced to fly from persecution, or travelled on their necessary -concerns; one for the building and repair of churches; one for the poor, -and one to support the inferior clergy, whom the bishop used to send to particular -places, as his deputies, and to remove or recal at his pleasure. The -clergy who lived in the city where the bishop resided, were supported by -him in a collegiate way at first; until at length their particular shares were -ascertained, and carved out of the general revenue of the church; and this -was the origin of <i>chapters</i><a id="FNanchor_130" href="#Footnote_130" class="fnanchor">[130]</a>.</p> - -<p>To return to the country clergy. The manner in which they came to -have settled establishments was thus: It was usual, as soon indeed as tithes -were established as a law, that is, before or about the time of Charlemagne, -for the bishop to allocate to his vicar or curate in any district, the whole, or -a part of the tithes or other profits arising there; but when England, -France, and other countries were ravaged by the Danes and Normans, the -fury of these barbarous heathens fell particularly on the ecclesiastics. Their -churches they burned, and themselves they slaughtered without mercy; insomuch -that, when their devastations ceased, there ensued not only a great -scarcity of clergymen, but such a want of means of proper support for them -(the old estates of the church having been turned into military fiefs) that the -feudal lords were willing, for the sake of having divine service performed -in their districts, for the benefit of themselves and their vassals, to alienate -part of their lands to the church, which was then in indigence, for the purpose -of building houses for the parson, and providing a competent glebe for -him, and also for building new churches where they were wanted. Altho’ -alienation was at this time entirely disallowed by the feudal customs, yet the -necessity of those times prevailed against it in those instances, especially as -these superstitious people attacked, or ready to be attacked by an heathen -enemy, thought the lands so given to be really given for military service, -as they were given for the service of God, the Lord of Hosts, who was to -speed their arms. However, the circumstances and opinions of that age -would not allow any grant, without an acknowledgment of the superiority -of the grantor; nor allow any lord to give any grant materially detrimental -to his military fief. Hence, as an acknowledgment that the lands so granted -to the church proceeded from the bounty of the Lord, he was allowed to<span class="pagenum"><a id="Page_81"></a>[81]</span> -nominate a clergyman to the bishop; who, if he was qualified, was obliged -to admit him. But as the patron might present an improper person, and -such an one as the bishop must be obliged in conscience to reject; and -might do this repeatedly, for any considerable length of time, during which -the duties of religion would be neglected, it was, in after times, settled, in -all countries, that the right of the patron’s presentation should last only a -limited time. In our countries it is six months; after which time lapsed -from the vacancy, the bishop’s original right of nomination revives<a id="FNanchor_131" href="#Footnote_131" class="fnanchor">[131]</a>.</p> - -<p>But the customs of those ages not admitting of the alienation of any part -of a military tenure, but what was absolutely necessary, it followed that these -glebes were far from being sufficient for the maintenance of a parson. These -grants, therefore, were not made without the consent of the bishop, to allocate, -in aid of the glebe, the tithes of that precinct, to the use of the parson. -And now the parson began to have a permanent interest for life in his parish, -and a permanent cure of souls therein; but not exclusive of the cure of -souls in the bishop, who was concomitant with him in that point, though not -in the profits. For when the bishop, for the good of the church, appropriated -a part of the revenues of the church to a particular person and his -successors, which, for the public good, he was allowed to do, he could not, -however, divest himself, or his successor, of that general cure of souls -through his whole district, which was the essence of his office. As the parson, -therefore, though named by a layman, was his deputy, he was in truth -(to speak by way of accommodation) his feudal tenant. From him he received -institution, which is the improper investiture; to him he gave the -oath of canonical obedience, which is equivalent to the oath of fealty; and -by him, or persons appointed by him, he was inducted into his church, that -is, had livery and seizin given him<a id="FNanchor_132" href="#Footnote_132" class="fnanchor">[132]</a>.</p> - -<p>This was the origin and nature of presentative advowsons, in which, -though a matter ecclesiastical, the lay patron was allowed to have a temporal -and a valuable interest: inasmuch as it might serve for a provision of one of -his children, or any other relation that was qualified for it; and consequently -be an ease to him; and as, at the time that these glebes were granted,<span class="pagenum"><a id="Page_82"></a>[82]</span> -most fiefs were hereditary, at least none were suffered to be granted but by -those who had such (because the lord superior might else be disinherited) -this right of <i>advowson presentative</i> descended to the heir. The church in its -distress exceedingly encouraged and fostered these rights for a time; but -when her circumstances changed, and, in ages when profound ignorance -prevailed both among the clergy and laity, many were the attempts to deprive -the laity of their rights, and many the exclamations against the impropriety -and impiety of such persons pretending to name any one to an holy -office. But I do not find they ever thought of restoring to the laity the -glebes, in consideration of which, for the necessities of the church, those -rights were first allowed.</p> - -<p>Thus much for <i>presentative advowsons</i>, which, I hope, from what hath -been already observed, will be sufficiently understood for the present. I now -must proceed to <i>collative advowsons</i>, namely, those given by the bishop, -which were of two kinds; either absolutely in his own right, or by lapse, -when the patron neglected to present; which was in truth but a devolution -of the antient right he had parted with, to him; and therefore, as there is -no substantial difference, they may well be treated of together. As the bishop -in the case of lapse, collates, that is, institutes in his former right in default -of the person who had the right of presentation, I observed before, that the -bishop had used to grant to the country clergy a part or the whole of the -tithes of the precincts they served in; but when once, by the allowance of -presentative advowsons, parsons had got freeholds in them, the example -became contagious, and much to the benefit of the church. Those parts of -the diocese which still remained in the bishop’s hands were divided into -parishes; and the tithes of them, or at least a considerable part of them, -were assigned to the minister for his life. I need observe no farther of these, -than to say, that they differed no otherways in their nature from the last -mentioned, than that, as a patron had nothing here to do, there was no -presentation, and that <i>collation</i> is, in the case where the bishop hath the sole -right, what is called <i>institution</i> in the case of a clerk presented.</p> - -<p>The third and last kind of advowsons are those called <i>donatives</i>, in the -giving seizin of which the bishop hath nothing to do, such livings being privileged, -and exempt from the jurisdiction of the bishop, and visitable by the<span class="pagenum"><a id="Page_83"></a>[83]</span> -patron only. How these exemptions arose, when, at first, every place was a -part of a diocese, and of the bishop’s cure of souls, it will be worth while to -inquire. The bishops of Rome, aided by their great riches, and the fall of -the western empire, did, by pursuing a settled plan for many hundred years, -with the greatest art and unshaken perseverance (temporizing indeed when -the season was unfit, but never giving up expressly any point that had been -claimed) at length, instead of being the first bishops in rank, attained to a jurisdiction -over all the west, and claimed a general cure of souls, which made -the bishops, indeed, but pastors under them. However, conscious of their -usurpations, in order to establish them, it was necessary to depress the episcopal -order.</p> - -<p>They began first with dismembering bishoprics, in order to found new -ones, on pretence of the churches being better served; and this they did -principally in Italy, where their influence was most extensive; and that with -a view, by having a greater number of votes, to over-rule the determination -of the general councils. They did the same, but more sparingly, for the -reason aforesaid, in other countries, with the sovereigns; who, in these cases, -were really actuated by the motive of advancing the public good, and promoting -religion. The next step was more decisive. Their authority being -now established, they took occasion, on several pretences, to exempt from -the jurisdiction of the bishops, several places within their dioceses, which -they kept immediately under themselves, to which they appointed clerks by -this way of donation, and whom they visited by their legates, as their immediate -ordinary. The clergy, thus provided for, served as faithful servants -and spies to the pope, in all parts of the christian world, and were, next to -the monasteries, the firmest support of his power. The same practice they -pursued with respect to bishoprics, by exempting several of them in divers -places from the archbishop of the province. And this was the origin of -donatives. But, in order to shew the plenitude of their power, the next -step they took was of a higher strain. They not only founded donatives for -themselves, but for others, even of the laity; shewing by this, that all ecclesiastical -jurisdiction and discipline was entirely subject to their will, and that, -at pleasure, they could transfer it to hands before judged incapable of it.</p> - -<p><span class="pagenum"><a id="Page_84"></a>[84]</span></p> - -<p>These two kind of donatives still subsist in England, the latter in the -hands of subjects, the former of the king as supreme ordinary, since the -pope’s usurped power was transferred to Henry the Eighth. I am sensible -many common lawyers insist that the king of England was always supreme -ordinary, and that nothing new was gained at that time, but only his old -authority, which the pope had usurped, restored to him. But what shall we -say to the first fruits and tenths; which are certainly papal impositions, and -comparatively of a modern date. The same I apprehend to be the case of -the ordinary jurisdiction. As to the supreme patronage, I allow it was, -originally, the king’s. My reason is, that I do not find in the antient church -any trace of a layman solely exercising ecclesiastical jurisdiction, or enacting -laws for the church<a id="FNanchor_133" href="#Footnote_133" class="fnanchor">[133]</a>.</p> - -<p>In the apostolic times all things were transacted by the <i>faithful</i> at large; -in the next age, they fell into the hands of the clergy, all excepting the election -of bishops, and approbation of clergymen. After the emperors became -christians, they published indeed ecclesiastical laws, but that was only giving -the sanction of the imperial power to the canons the church had made; whose -censures, when there were such multitudes of new and counterfeit converts, -were likely to have little weight. In the northern nations the case was the -same. Canons were made by the clergy, and these were often enforced and -turned into obligatory laws by their general assemblies, who had the legislative -authority; and if there are any instances in those times of laymen exercising -ecclesiastical discipline as ordinaries, I own they have escaped me. -I speak merely of ecclesiastical discipline: for as to things of a temporal -concern, such as wills, administrations, marriages, tithes, &c. the authority -undoubtedly was from the king. But not as to matters entirely spiritual, -such as concern the <i>salutem animæ</i><a id="FNanchor_134" href="#Footnote_134" class="fnanchor">[134]</a>.</p> - -<p>I think therefore the king’s title to be supreme ordinary, stands better -settled on the parliamentary declaration, and on the reason of the thing, that -all coercive power should be derived from him, whom God hath made the -superintendant; than on the assertions of lawyers, that it always was so. -Matters of fact are to be determined by evidence, not by considering what<span class="pagenum"><a id="Page_85"></a>[85]</span> -ought to have been; and we need not be surprized to find, that an ignorant -and superstitious people allowed practices, and a division of power in themselves -unreasonable.</p> - -<p>In these donatives there was neither institution nor induction. The patron -gave his clerk a title by deed, on which he entered; for the plenitude -of the papal power supplied all forms. The patron was the visitor, and had -the power of deprivations; but what clearly shews, in my apprehension, -that these donatives were incroachments on the episcopal authority, is, that, -if once a common patron (for the king was saved by his prerogative) had -presented his clerk, and he got institution and induction, the donative was -gone for ever. The living became presentative, and the bishop’s jurisdiction -revived.</p> - -<p>I should next proceed to tithes, another kind of incorporeal benefice; -but this would carry me too great a length for the present discourse.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_86"></a>[86]</span></p> - -<h2 class="nobreak" id="LECTURE_IX">LECTURE IX.</h2> - -<p><i>Tithes—The voluntary contributions of the faithful, the original revenue of the -church—The establishment of regular payments—The appropriations of the -church—The history and general rules of tithes in England.</i></p> - -</div> - -<p>The next kind of incorporeal benefices taken notice of by the law of -England, that I shall mention is <i>tithes</i>; the New Testament, as well as -common reason, says, that <i>they who serve by the altar, should live by the altar</i>; -but is silent as to the manner in which this support should arise. In the very -first times, when their numbers were but few, and those confined to Jerusalem -and its neighbourhood; the christians sold all they had, and lived out -of the common stock. But this lasted a very short time. When they increased -to multitudes, that method was found impracticable, so that each -retained his possessions, and gave a voluntary contribution out of it at his -discretion. This was the fund of the church; and in those times of fervent -zeal in the laity, and simplicity of manners in the clergy, it was found abundantly -sufficient, not only to support the ministers, and their own power, but -also to build churches, and to do many acts of charity to some of the pagans.</p> - -<p>The revenues of the church went on continually encreasing to the time -of Constantine; and though by the Roman laws, no <i>colleges</i>, as they called -them, that is, communities or fraternities, unless they had the sanction of the -imperial authority, could accept legacies or donations, yet, such was the devotion -of the times, that many such private grants were made; and the -principal churches obtained great acquisitions, not only in moveable goods, -but in landed estates; insomuch that some of the persecuting emperors were -thought to be as much instigated to their cruelties by avarice, as by their -blind attachment to their pagan superstition<a id="FNanchor_135" href="#Footnote_135" class="fnanchor">[135]</a>.</p> - -<p><span class="pagenum"><a id="Page_87"></a>[87]</span></p> - -<p>In the fourth century, the restraint being taken away, these largesses -from the rich and superstitious, to the church became much greater; but -the general voluntary contributions from all who could spare, diminished, -the apparent necessity for them being lessened; and the zeal of the people, -which persecution had kept warm and fervent, slackened from ease and security. -The bishops, who were the distributers, prided in vying with each -other in the magnificence of their churches; and, being now raised to an -eminent rank in the state, were not satisfied to live in such a manner as -contented the simplicity of the antient fathers of the church; so that by the -year 400, the inferior clergy and the poor were, in many places, but in very -scanty circumstances. This induced many of the pious to fix upon a certain -rate out of their own annual gains to supply these necessities, and as the -tenth was what had been assigned to the Levites in the mosaical law, that generally -became the proportion. But as the payments of those tithes were -purely voluntary, so did the givers appropriate them in such manner as they -pleased, and as they thought they were most wanted<a id="FNanchor_136" href="#Footnote_136" class="fnanchor">[136]</a>.</p> - -<p>In Egypt, where, it seems, this practice began, they were commonly given -to the monks, who had devoted themselves to a religious poverty; in Illyricum -generally to the poor; in other places to the inferior clergy of such -a district, or, if the church itself was indigent, to the bishop, for the use of -his church. The famous preachers about this time, particularly St. Ambrose -and St. Augustine, inforced this practice with all their eloquence, and insisted -on the levitical law of tithes as binding on christians. This had great, -but not general effects. Some gave the tithe, others, of more zeal, gave -more, and others less; and though these contributions began now to be -aided by the spiritual arms of excommunication, yet were these only used to -oblige a man, in testimony of his being a christian, to make some offering, -not to pay precisely the tenth, or any other portion<a id="FNanchor_137" href="#Footnote_137" class="fnanchor">[137]</a>.</p> - -<p>These payments of the tenth hitherto we see were voluntary; but there -soon came in another practice, which, in particular places, made them compulsory. -It was usual when a patron founded a church, in order for its support, -to charge his lands with the payment of tithes to the minister who officiated<span class="pagenum"><a id="Page_88"></a>[88]</span> -therein. This created a permanent right in the church, not by the -force of any general law, or canon (for all such attributed to these ages are -forgeries of a later date) but from the especial gift of the grantor, and the -power he had to charge his land. The earliest authority that proves a general -right of tithes, through any country of Europe, is to be met with in the -council of Mascon, held under king Guntram, who reigned in the south-east -parts of France, in the year 586. There the right of tithes, through all -his dominions, is acknowledged as an antient duty due to the church; and -they are enjoined to be regularly paid. But it is observable, in the very -words of this law, that the tithes so paid were not solely appropriated to the -clergy, but much of them applied to other charitable uses, <i>unde statuimus, -ut decimas ecclesiasticas omnis populus inferat, quibus sacerdotes, aut in pauperum -usum, aut in captivorum redemptionem erogatis, suis orationibus pacem populo & -salutem impetrant</i>. Thus the kingdom of Burgundy was the first that established -the universal payment of tithes by a positive law. This payment, in -the other parts of France, was long after at pleasure, or by particular foundation; -but was daily gaining ground, especially after the impoverishment -of the church by Charles Martel rendered them more necessary; and his -grandson Charlemagne was the first that established them by a positive law, -made in a general assembly of the states, through all France; and that as -due by a divine right, in the year 778. And as he and his successors were -masters also of Germany and Italy, the same law and opinion soon passed -into those countries<a id="FNanchor_138" href="#Footnote_138" class="fnanchor">[138]</a>.</p> - -<p>But as positive as his law was, in the direction of payment of them to -the bishop or priest, it was for a long time not universally obeyed, and where -it was obeyed, often shamefully eluded, as appears by the laws of his successors, -and many ecclesiastical canons framed for the redressing those mischiefs. -For as a portion of the tithes was originally distributed to the -poor, under this pretence, it was customary for the superstitious laity, when -they granted the tithes, instead of aligning them for the maintenance of the -ministering, <i>i. e.</i> the secular clergy, to appropriate them to monasteries, -which were societies of voluntary poor. These appropriations, or consecrations, -as they were called, became very numerous, both from the unbounded<span class="pagenum"><a id="Page_89"></a>[89]</span> -veneration paid to the monks, and from the encouragement such -grants received from the see of Rome, which looked upon the monastic orders -as its fastest friends, and was bent upon raising them on the ruin of the -secular clergy. But as the monks of those times were generally laymen, -and incapable of serving the cure, it grew into a practice for them, if any of -their own body was fit for the purpose, to get him ordained; or if they had -none, to employ a secular priest, to perform the divine offices, under the -name of their vicar or deputy, who was to account with them for the profits, -and was to receive for his subsistence a stipulated proportion; and thus -came in the division of parochial tithes, into <i>rectorial</i> and <i>vicarial</i>; the former -remaining in the <i>employer</i>, the latter in the <i>employed</i>, who did the duty<a id="FNanchor_139" href="#Footnote_139" class="fnanchor">[139]</a>.</p> - -<p>The same pretence of appropriating the tithes to the poor gave a handle -likewise to many, when they found it necessary to pay tithes, to grant them -to laymen in fee, under the like conditions and services as other fiefs; and -many likewise were the unworthy churchmen, who turned the incomes of -their church into provisions for their families, by granting them in fief. -Thus, in process of time, were the ministering clergy, and the real poor, for -whose support the tithes were originally granted, in a great measure stripped -of them; and they were converted either into lay inheritances, for secular -services, or applied to the support of monasteries; and both these abuses -began under the specious pretence of charity. The latter, <i>viz.</i> the grants -to monks, was always favoured by the heads of the church; and the former, -in spite of all their censures, prevailed, until, at length, it was found -necessary to apply some remedy to both. The evils were too inveterate to -be finally removed; but this temper was found out in the council of Lateran, -held in 1215, when it was enacted, That all tithes which from time -immemorial had been given in fief might so continue, but no more be -granted in that manner for the future; and the appropriations to monasteries -were confined to three orders of monks who were looked upon as the -most learned, and capable of furnishing men fit for the duty<a id="FNanchor_140" href="#Footnote_140" class="fnanchor">[140]</a>.</p> - -<p>I shall proceed now to say something of the fate of tithes in England. -That tithes had been paid in several parts of England during the heptarchy, -and established by law in some of its kingdoms, is undeniable; but<span class="pagenum"><a id="Page_90"></a>[90]</span> -the first who ordained them by law, through all England, was Ethelwolf, -in his parliament of the year 855; who had been himself, in his elder brother’s -life, designed for the church; in this imitating Charlemagne, at -whose court his father had long resided. This may well be allowed, although -those authors that give us the copy of this law differ in the date, both as to -the time and place where it was made. But be that as it may, his son -Alfred certainly made a law for this purpose, to bind not only his own -English, but also the new converted Danes, to whom he assigned seats in -his kingdom, and whom he had submitted to the government of Guthrun. -Such laws were renewed by almost every one of his successors down to the -Norman conquest; an evident proof, that however zealous those princes -were for the support of the church, their pious intentions were but ill seconded -by their people. The severity of the law of Edgar was remarkable, -and of itself sufficient cause of their backwardness; for it made the non-payment -of the tenth a forfeiture of eight-tenths. The <i>præpositus</i> of the king -and bishop, that is, I presume, the sheriff and arch-deacon, were to seize the -fruits out of which the tithes had been with-held, and when they were divided -into ten parts, one was given to the church that had been defrauded, -another to the proprietor, and the remaining eight were divided between -the king and the bishop<a id="FNanchor_141" href="#Footnote_141" class="fnanchor">[141]</a>.</p> - -<p>During these times appropriations of tithes, to other churches than the -parish one, and also to monasteries, were frequent, here as well as on the -continent; but, for some time after the conquest, the largesses to the -monks, with respect both to lands and tithes, encreased considerably, and -were continually encouraged by the popes, the kings, the bishops, and -nobility; by the popes for the reason already given; by the bishops and -nobility, who were all Normans or foreigners, out of partiality to their -countrymen (for such the monks generally were) and out of contempt and -hatred to the secular clergy, who were universally English; by the kings, -not only for this last mentioned cause, but for another peculiar to themselves. -The government of the Saxon kings was remarkably moderate, -and their laws and constitutions extremely favourable to the liberties of the -people. The first race of Norman kings pretended, indeed, a right to the<span class="pagenum"><a id="Page_91"></a>[91]</span> -throne, and every one of them swore to observe the Saxon laws, with such -emendations as had been consented to in parliament by William the First. -But the conduct of every one of them shewed how little regard they had to -that obligation, and how bent they were on setting themselves free from -all restraint, and to destroy all traces of the old Saxon laws. For this purpose -it was absolutely necessary to depress the secular clergy; who, in those -times of ignorance, were the only lawyers; insomuch, that, in William the -Second’s reign, it was said, <i>nullus clericus, nisi causidicus</i>; and, to render -them unfit guardians of those privileges, the kings were resolved to trample -upon them. For this end, a new language and new forms of proceeding -were introduced into the courts, the secular and ecclesiastical jurisdictions, -which had been united, were separated; and the clergy were banished -from the temporal courts, and the greatest part of the business which formerly -had been transacted in the country courts was transferred to the <i>curia -regis</i>, under the immediate inspection of his judges<a id="FNanchor_142" href="#Footnote_142" class="fnanchor">[142]</a>.</p> - -<p>Thus were the secular clergy daily reduced in circumstances and importance, -while the monasteries flourished on their downfall. However, about -the time of Henry the Third (for it is hard precisely to fix when it became -an allowed maxim of the English law) all tithes arising in any parish were, -of common right, payable to the priest of that parish, unless they had been -previously appropriated to some other priest, or monastery, either by a positive -appropriation appearing, or by prescription where that was lost, and -that no layman could prescribe against the payment of them. I say no layman, -for with respect to ecclesiastics, the case was otherwise. It had, indeed, -been a controversy in France several centuries before, whether the -lands of a church or monastery should pay tithes to the parish minister -where they lay; but it was determined by the better opinion that they -should. However the bishops of Rome, in complaisance to their friends -the Monks, granted to many monasteries an exemption from tithes for their -lands. And these are the lands, which we see at this day in the hands of -laymen discharged of tithes, by virtue of a statute in the reign of Henry the -eighth; before I proceed to which, it will be proper to take notice of what -a <i>modus</i> is, as they were introduced in those early times.</p> - -<p><span class="pagenum"><a id="Page_92"></a>[92]</span></p> - -<p>A modus, then, is a composition for tithes in kind, within a certain district; -whereby the layman is discharged from rendering his tithes, on his -paying to the parson, in lieu thereof, what the local custom of that place -directs. These compositions were originally for the mutual benefit of the -clergy and laity; that one might have a settled certainty what to receive, -and the other what to pay; and was, while the equivalent continued to -bear any reasonable proportion to the value, an excellent means to prevent -yearly disputes between the minister and his flock; but as most of them are -fixed at certain rates of money, the change of its value hath, in all these -cases, greatly impoverished the parochial clergy, especially as many of them -grew up into a prescription, by the negligence of the clergy, without an -original composition. These <i>moduses</i> have, likewise, not a little hurt the -spiritual jurisdiction; for as their courts paid little or no regard to them, as -being against the canon law, if the original composition did not appear to -have the bishop’s authority, by being found in his registry, the temporal -courts, wherever one is pleaded, send a prohibition to the ecclesiastical one, -and reserve the tryal to themselves, by a jury of twelve men, as the legal -judges of the custom<a id="FNanchor_143" href="#Footnote_143" class="fnanchor">[143]</a>.</p> - -<p>When Henry the eighth threw off the pope’s supremacy, great was his -danger both from abroad, and at home, particularly from the monasteries. -A resolution therefore was taken for suppressing them, and applying their -revenues to more useful purposes. The intention of Cranmer, at least, was -to restore the tithes to the parochial clergy, and out of some part of the -lands to found new bishopricks, and for other religious and charitable purposes; -the remainder to be united to the royal demesnes to enable him to defend -his realm without burthening his subjects with subsidies. But little of -this kind was done. Five or six bishopricks, with very poor revenues, were -erected, and the rest, both of lands and tithes, were distributed to the laity -in whose hands they still remain, partly out of present political views, -but principally from the extravagance of that king and the indigence of his -successors, concurring with the avarice of their courtiers. As to the lands -the abbots held discharged of tithes, the parish ministers right to them would, -by the common law of England, have revived as soon as they got into lay-hands; -as it would have done before, if the abbot had aliened with the consent<span class="pagenum"><a id="Page_93"></a>[93]</span> -of the convent, and this was the case of the lands of the lesser monasteries. -But when the greater ones were dissolved by the act of 31st of Henry -the eighth, it was expressly provided, that the king and his grantees should -enjoy those lands, discharged from tithes, in as ample a manner, as the abbots -held them before that time. Thus became a great part of the tithes of -the kingdom, which by the common law of England were the legal maintenance -of the parochial clergy, lay fees, and inheritances, as they continue -at this day<a id="FNanchor_144" href="#Footnote_144" class="fnanchor">[144]</a>.</p> - -<p>Tithes are of three kinds, <i>prædial</i>, <i>personal</i> or <i>mixed</i>. Prædial, are the -fruits arising immediately from the ground, as all sorts of grain, hay, underwoods, -fruits of trees, hops, saffron, hemp, flax, and such like. Mixed, -which arise from cattle nourished by the ground as their young, colts, calves, -lambs, pigs, or their productions, as milk, cheese, butter, &c. Thirdly, -personal, which arise from the labour and industry of men using any merchandize, -or manual occupation, and is the tenth part of their clear gain.</p> - -<p>The two first had their foundation in the law of Moses, the last was introduced -and strongly inforced by the canon law; nay so shameless were some -of the canonists, as to insist that harlots were obliged to pay the tenth of their -infamous gains; but this latter kind has had little effect in England, except -by the local customs of some particular places<a id="FNanchor_145" href="#Footnote_145" class="fnanchor">[145]</a>.</p> - -<p>As to what things are tithable or not by our law, it may not be amiss to -lay down some general maxims concerning them.</p> - -<p>First then, as to prædial tithes: Regularly, they are due only out of -things that encrease annually, <i>simul & semel</i>, and therefore except by special -custom, mines, minerals, chalks, stones, slates, turfs, being part of the soil, -and not increasing annually, are not tithable; but this rule admits of some -exceptions, of which I shall just mention two. Saffron, which encreases -from three years to three years, is yet tithable; and so is underwood, that -is, all trees cut under twenty years growth. The tithes of trees occasioned -many contests between the clergy and laity in England, the one exacting it<span class="pagenum"><a id="Page_94"></a>[94]</span> -by their canons, and the commons in parliament constantly remonstrating -against it. At length it was settled by parliament, that none should be -exempted but timber above twenty years growth, as being fit for building. -But this statute is so constructed, that if the trees be not of the nature of -timber, they are tithable, though above that age, as bush, birch, and the -like; but these, if for the scarcity of other timber, they are used in building, -as beech is in Buckinghamshire, they are there exempted.</p> - -<p>As to mixed tithes, the rule is, that things <i>feræ naturæ</i> are not tithable. -Therefore fish, pheasants, partridges, rabbits, deer, bees, and such like -are not; but several of these, if reclaimed, have been adjudged to be so, as -bees in a hive, and the same reason holds as to pigeons in a dove house; -though the opinion of common lawyers is, that they are not tithable, if -spent in the house, and not used for sale.</p> - -<p>But what shall we say for barren cattle, from whom no yearly profit -arises? Shall the parson receive no benefit whatever from them, and shall it -lie in the power of the occupier, by employing all his land in feeding nothing -but barren cattle, to leave his minister without support? Certain it is, -whatever the modern practice and opinion may be, that by the best authorities -of the antient lawyers, <i>agistment</i> was due to the clergy which was the -tenth part of the value of the lands, or the twentieth, which by custom, in -most places, was generally paid, if the proprietor depastured the whole year, -or less, according to the time and quantity of the cattle, saddle horses, or -cattle for the plough, only excepted<a id="FNanchor_146" href="#Footnote_146" class="fnanchor">[146]</a>.</p> - -<p>Thus much may suffice for the history and general rules of tithes, the -second species of incorporeal rights, to which I may add, as much of the -same nature, and founded on the same reason, what is called <i>ministers money</i> -out of houses, in cities and towns, where there are no tithes, which the act -of parliament, of the 17th and 18th of Charles the second, hath restrained -to the twentieth part of the value of houses, as valued by a commission from -the Lord Lieutenant and six of the council.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_95"></a>[95]</span></p> - -<h2 class="nobreak" id="LECTURE_X">LECTURE X.</h2> - -<p><i>The right of Seignory and its consequences—The right of Reversion—Rent seck—Rent -charge—The nature of</i> distress, <i>as the remedy for recovering feudal -duties. Observations on</i> distresses <i>in general</i>.</p> - -</div> - -<p>Having spoken of tithes and advowsons, two kinds of incorporeal -benefices that arose in those antient times, I come now to treat of -<i>seignories</i> and their consequences. A seignory is an incorporeal right and -interest still remaining in the lord, when he parts with his lands, in benefice -to a tenant. Now the rights of a lord, in respect of his seignory, may be -considered in two ways, either as the services were due to the lord from -the <i>person</i> of the tenant, or from the <i>lands</i>. He hath therefore, in virtue -of his seignory, a right to all those personal duties which flow impliedly from -the oath of fealty; such as to receive warning from his tenants of any injury -done, or impending danger to his person, his dignity, or seignory, to receive -faithful advice from them when called upon, and to have his secrets faithfully -kept by them; to be the judge of their controversies, and the leader in war -of such of them as hold by military service. For these barbarous people -had no idea of dividing power, but always entrusted the civil and military -sword in the same hands; whereby they avoided the dangers and disorders -that more polished and richer nations have ever been exposed to, namely, -of having the civil and legal authority subverted by the military power. -And so strict was the bond between lord and tenant, that the latter could in -no wise, in point of judgment, decline his lord’s jurisdiction, by refusing him -as judge on account of partiality. Such a charge was a breach of fealty on -the vassal’s part, and no such presumption could be admitted by that law, -which looked upon the lord as equally bound by the oath of fealty, though -not taken by him, as the tenant was<a id="FNanchor_147" href="#Footnote_147" class="fnanchor">[147]</a>.</p> - -<p>By the Roman law, a suspected judge might be refused by the suitors for -almost all the same causes, and grounded mostly upon the same reasons, for<span class="pagenum"><a id="Page_96"></a>[96]</span> -which jurors, who in our law are <i>judges of the fact</i>, may be challenged at this -day. But the feudal customs admitted no such suspicions as to the lord, and -therefore in the English law, no judge, however clearly interested in the -cause, can be challenged. This maxim once established, it was necessary, -however, for the sake of justice, that it should admit of some qualification. -The <i>assessors</i> in Germany, who assisted the lord in judgment, from whom -came, in after time, the <i>pares curiæ</i>, were this qualification. But as these -were not judges in all feudal causes, but in some the lord alone continued -sole judge; some remedy was here to be applied, and on the continent and -in England, they proceeded differently. On the continent, the king, or superior -lord, appointed a <i>cojudge</i>, or assessor. In England the suitor, by applying -to the king’s courts was empowered to remove the cause thither; -which hath been one great occasion of these inferior courts of the lords -dwindling to nothing<a id="FNanchor_148" href="#Footnote_148" class="fnanchor">[148]</a>.</p> - -<p>As to the right the lord had in the land by virtue of his seignory, the -principal, and upon which his other rights out of the land depended, was -his <i>reversion</i>. A reversion is that right of propriety remaining in the lord, -during the continuance of the particular estate of possession of the tenant; -whereby he is entitled to the service during the duration of the term, and -to the possession itself, when it is either expired, or forfeited. Hence it -appears that the fealty and services of the tenant are incident to the lord’s -reversion. Out of these reversions may be carved another incorporeal -estate, called a <i>remainder</i>, which is a particular estate dependant upon, and -consequent to a prior particular estate; as if lands be granted to A. for five -years, and afterwards to B. for life. In this case A. hath a lease for years, -B. a remainder for life, and the reversion remains in the grantor. In our -law, remainders, and the particular precedent estate on which they depend -are considered as making but one estate; and so, in truth, they are with -respect to the reversioner, though not to each other. Therefore they must -both pass out of the grantor at the same time, though it is not absolutely -necessary that the remainder should vest in the grantee at the creation of the -precedent particular estate; for a remainder may be good which depends on a -contingency, as if a remainder, after a lease for life or years to A, is limited -to the eldest son of J. S. This is a good remainder, but a contingent one,<span class="pagenum"><a id="Page_97"></a>[97]</span> -depending on the birth of J. S.’s son during the continuance of the term of -A; for the remainder being but one estate with the precedent particular -one, and only a continuation of it, must commence instantly when it determines. -Or, if after a lease to A, a remainder is limited to the heirs of -J. S. this is a good contingent remainder, depending on the event of J. S. -dying during the particular estate. For it is a maxim of the English law, -<i>Nemo est hæres viventis</i>.</p> - -<p>To return to reversions, I mentioned fealty and services as incidents of a -reversion; but we must distinguish that fealty is an inseparable one, which -the services are not; for the tenure being from the reversioner, and fealty -necessarily incident to every tenure, it is impossible they should be separated. -A grant, therefore, of fealty, without the reversion, is void; and the -grant of the reversion carries the fealty with it. But the case is otherwise as -to the services; for the services may be granted without the reversion, and -although the reversion be granted, the services, by special words, may be -excepted<a id="FNanchor_149" href="#Footnote_149" class="fnanchor">[149]</a>.</p> - -<p>It will be now proper to speak of the remedy the reversioner hath for the -recovery of his services, if they are not paid. In the antient times the tenant -was, at all the due times, at his peril obliged to perform his service; -for as each the smallest failure was a breach of his fealty, his tenancy was -thereby absolutely forfeited, and this long continued to be the case in military -tenures. But as the defence of the realm was not concerned in the -socage holdings, but only the immediate interest of the lord, it was thought -too hard, that every, perhaps involuntary omission, should induce an absolute -forfeiture; when the lord, where his dues were certain, might receive -an adequate recompence. Custom, then, introduced the method of <i>distress</i>, -in imitation of the Roman law, as the proper method to recover an equivalent -for the damages he sustained by the non-performance of the duties. -And afterwards, when the personal service of the military tenants came to -be commuted into a sum of money called <i>escuage</i>, distress came to be the -regular method of recovering that and the other fruits of the military tenure; -the damage the lord sustained being now capable of a reduction to a certainty<a id="FNanchor_150" href="#Footnote_150" class="fnanchor">[150]</a>.</p> - -<p><span class="pagenum"><a id="Page_98"></a>[98]</span></p> - -<p>The introduction of distress on socage tenants was thus: When the absolute -forfeiture was thought too severe, the first step was, that the lord -should enter, and hold the lands till his tenant had satisfied him as to his -damages; but as this seizure frequently disabled the tenant from making -that satisfaction, especially if he had no other lands, this, after some time, -was thought still too rigorous, and in its stead was substituted the seizure of -the cattle, and other moveables found on the land, and the detention of -them as a pledge, until the damages were answered; which is what we call -<i>distraining</i>. This was a sufficient security to the lord, as it rarely happened -but that there was sufficient found to answer his demand for one failure; and -the tenant was not (as not being deprived of his possession) reduced to an -incapacity of paying his rent of services, and thereby recovering his pledges. -Hence all feudal rents, or, as our law calls them, <i>rent services</i>, (being -the service the tenant pays to the lord, in consideration of the land he -holds from him) are distrainable<a id="FNanchor_151" href="#Footnote_151" class="fnanchor">[151]</a>.</p> - -<p>But there was another species of rents in our law not distrainable; which, -therefore was called <i>redditus siccus</i>, or <i>rent seck</i>. This was not a feudal service, -not being paid from a tenant to his lord, and was thus: When a -man, keeping still his land in himself, grants a rent thereout to a stranger, -the grantor is justly bound by his grantee; but the grantee, not being his -lord, cannot have this remedy. For the remedy of distress being substituted -in the place of the lord’s right of entry, could not be extended to a -stranger, who never had that right. And this was originally the only kind -of rent seck; but the statute called <i>quia emptores terrarum</i>, introduced another -species of rents not distrainable, by converting rent services into rents -seck. The liberty of alienation without the consent of the lords having been -allowed before that statute, it became customary for a tenant who sold his -land, and parted with his whole estate in it, to reserve the tenure of the -<i>vendee</i>, not to his superior lord and his heirs, but to himself and his heirs; -whereby he retained many advantages to himself, by continuing the vendee’s -lord, such as the right of escheat, if the tenant died without heirs, and the -benefit of the wardship and marriage, if it was held by knight’s service. -Now a rent reserved upon such a sale to the vender, was, as he continued -the vendee’s lord, a rent service, and consequently distrainable<a id="FNanchor_152" href="#Footnote_152" class="fnanchor">[152]</a>.</p> - -<p><span class="pagenum"><a id="Page_99"></a>[99]</span></p> - -<p>But this practice, though highly useful to the sellers, was of considerable -detriment, not only to their lords, who thereby frequently lost the fruits of -their tenures, but indeed to the whole military policy of the kingdom. It -was enacted, therefore, in the eighteenth of Edward the First, by the statute -above mentioned, that whenever a man aliened his whole estate, the -alienee should not hold from him, and be his tenant, but from the superior -lord, and be the lord’s tenant directly; and that by the same services, by -which the alienor had holden. The alienor, then, by this statute, ceasing to -be lord, and his right of reversion clearly gone, if he reserves a rent on such -alienation, he cannot distrain for it, and it is a rent seck.</p> - -<p>These rents seck, therefore, were of two kinds, one arising by grant, -which was the most antient, the other by reservation, when a man aliened -his whole estate. For if the whole estate was not gone, but a reversion -remained in him, a rent reserved was still, on account of that reversion, -a rent service; as if A. gave lands to B. and the heirs of his body, reserving -rent. As this estate tail, although it might continue for ever, yet -was capable of determination by the failure of that issue, such rent was distrainable, -for that reason, and also because, by the statute which gave -force to such estates tail, the reversion was saved to the donor. But if he -had made a lease of life or years, or a gift in tail, and had, at the same -time, conveyed over the remainder in fee, so that his reversion was gone, a -rent reserved on such a grant was <i>seck</i>.</p> - -<p>The inconvenience attending these rents seck, in their not being distrainable, -introduced another species of rents called <i>rent charges</i>. These are -rents seck, armed with a power of distress by the special agreement of the -parties; and are of two kinds, as the former are created either by <i>grant</i>, -or <i>reservation</i>. Those by grant, which were the only species of rent charges -before the statute, were thus; as if I grant out of my lands, keeping them -still in myself, a rent for years, life, fee tail, or fee simple, and give my -grantee a power to enter and distrain for the rent. It will be by reservation; -if I reserve to myself a rent upon a conveyance in fee simple, or upon a gift -in tail with a remainder over in fee, or upon a lease for life or years, with a -remainder over in fee, and it is covenanted that I shall have a right to enter -and distrain for the rent. The power of distress, therefore, in rent charges<span class="pagenum"><a id="Page_100"></a>[100]</span> -is good only by the express provision of the parties, not by the force of the -general law<a id="FNanchor_153" href="#Footnote_153" class="fnanchor">[153]</a>.</p> - -<p>Antiently it was a doubt whether a rent charge could be reserved upon -a <i>deed poll</i>; to understand which, it will be necessary to explain the difference -between a <i>deed poll</i> and an <i>indenture</i>. A deed poll is a grant from one man -to another, and is all and every part of it the act and words of the grantor -only; and therefore the deed belongs to the grantee, and there is no counterpart -in the hands of the grantor; because the grantee binds himself to -nothing towards him. Whereas, in an indenture, every clause is the act -and words of both. They are mutually bound to each other, and therefore -there is a counterpart in the hands of each party. Now if A. by deed poll, -granted lands in fee to B. reserving rent, with a clause of distress, it was -doubted whether this clause was not void, and the rent a rent seck; because -as the lands by A’s grant was in B. it was apprehended they could not -be charged with it without an express covenant from him; as in the deed -poll he was a party merely passive. But it is now held, and that very equitably, -that such a reservation can raise a good rent-charge; for his acceptance -of the deed upon the delivery is an act sufficient to shew his assent to -take it on the terms therein contained; and nothing can be more reasonable -than that whosoever takes a benefit shall take it under such conditions, and -no other than such as the donor intended.</p> - -<p>Thus have I endeavoured to explain the nature of the three several kinds -of rents in our law, of which only rent service is properly feudal; but upon -account of the affinity of their nature, I thought proper to join them here. -It will be proper now to say something concerning the nature of <i>distress</i>, as it -was the remedy for recovering the feudal duties in these kingdoms.</p> - -<p>Distresses were not only taken for rents, and other services reserved, -but also to oblige persons to appear in courts of justice, or to raise fines, and -amerciaments inflicted on them. This likewise arose from the feudal law, -as by that the doing suit and service at the lord’s court was one of the duties -attendant on fealty.</p> - -<p>But there is another kind of distress allowed by our law, arising neither -from the feudal contract, nor the express stipulation of the parties, but<span class="pagenum"><a id="Page_101"></a>[101]</span> -from the <i>delictum</i>, or negligence of a stranger. It is called a <i>distress for damage -feasant</i>, and is a seizure of the cattle, or any other moveable of a -stranger, trespassing upon or damaging my ground. The law in this case -will not put me to my action against the proprietor, whom perhaps I may -never discover; but has provided a <i>festinum remedium</i> for me, by way of -distress; and this distress is more privileged than others, for it may be -taken in the night-time, which other distresses cannot; because, otherwise, -the cattle might escape, and the goods be removed, and so the party injured -remain without remedy.</p> - -<p>Many and grievous were the extortions and oppressions of the antient -English lords in their taking distresses, during the troublesome reign of Henry -the Third, for the remedying which many wise regulations were made by -the statute of Marlebridge and others. For they not only distrained in a -most unreasonable manner for the smallest duties, but distrained where nothing -was due; and frequently even out of their fees; and to deprive the -parties injured of legal remedy, drove them into another county, or inclosed -them in a castle, or would not suffer their bailiffs to permit a replevin<a id="FNanchor_154" href="#Footnote_154" class="fnanchor">[154]</a>.</p> - -<p>Since I am on this head of distresses, it will be proper to make a few -observations, <i>what</i> may be legally distrained, <i>when</i>, and <i>where</i>, and <i>how</i> a -distress is to be demeaned, and what remedy the person wrongfully distrained -hath to recover his property.</p> - -<p>First then, nothing can be distrained but moveables, and such as may -be restored in the same plight. For the distress is in the nature of a pledge -to be restored on due satisfaction made; therefore nothing fixed to the freehold -is distrainable, as doors, windows, furnaces, &c. for these being affixed -thereto, are part of the freehold, and cannot be separated thence -without damage. Therefore, a smith’s anvil, though not actually fixed, or -a millstone removed in order to be picked, are not subject to distress; for -the one is, in law, still part of the shop, as the other is of the mill. Hence, -likewise, money is not distrainable, unless it be in a bag; because, otherwise, -it cannot be known, so as to return it in the same plight. For the<span class="pagenum"><a id="Page_102"></a>[102]</span> -same reason, by the old law, corn in sheaves, or in stacks, or in a barn, or -hay in cocks, or in a loft, could not, for fear of damage in removing. -That however hath been since altered by statute, but corn or hay on a cart -could be distrained by the old law; for they being, in such a case, found in -a situation fit for removal, might be transported from place to place without -any probable danger of damage, or diminution.</p> - -<p>Secondly, The instruments of a man’s livelihood, as the tools of a tradesman, -the books of a scholar, the plough-cattle of a ploughman, &c. cannot -be distrained where any other distress is to be found; and this for the -particular safety and benefit of individuals. But this holds not in the case -of <i>damage feasant</i>; for there the identical thing that did the trespass, and -that only, must answer for it.</p> - -<p>Thirdly, Things sent to public places of trade are privileged, for the -public benefit of the realm, as cattle in a market, corn sent to a mill, cloth -in a taylor’s shop, yarn in a weaver’s house. For it would put a total stop -to commerce if these were answerable for the rents of such places.</p> - -<p>Fourthly, What is in the custody of law is not distrainable, for it would -be an absurdity that a man should have a right by law, to take things out of -the custody of the law itself, such as goods already distrained, or goods taken -in execution, or seized by process at the suit of the king.</p> - -<p>Fifthly, Things in manual possession of another, are, for the time, -privileged, as an ax in a man’s hand, or the horse I ride on. But for -damage feasant, as I said before, every thing is distrainable; for the thing -itself which did the damage, is the pledge of the satisfaction, and the only -one.</p> - -<p>Next let us see <i>how</i> and <i>where</i> they may be taken. The distress, then, -should not be excessive, as an ox should not be taken for twelve pence, -where other sufficient distress might be had, or two sheep where one was -sufficient; but for damage feasant, though ever so little, the whole may be -taken; and likewise for homage, fealty, or the wages of members in parliament. -As the interest of the whole community is concerned in these, no<span class="pagenum"><a id="Page_103"></a>[103]</span> -distress can be excessive. No distress can be taken in the king’s highway, -for it is privileged for the public use of the nation. Neither can any distress -be taken by night, unless for damage feasant; for as no tender of rent, or -other duty, can be made, or acceptance enforced but in the day-time, perhaps -the tenant may, in such case, be provided, and ready to tender -his duties the succeeding morning, and thereby save his chattels. Lastly, -by the common law, no man could distrain out of his fee, unless when coming -to distrain he had the view of them, and they were driven off to prevent -him. But this hath been altered by statute, and now a landlord may follow -his tenant’s cattle, if conveyed by his lessee off the land, and distrain them -within twenty days.</p> - -<p>As to the <i>manner</i> of demeaning or managing the distress, it is the duty of -the distrainor to carry them to a pound, that they may be in the custody of -the law. <i>Pounds</i> are of two kinds, <i>overt</i>, or <i>covert</i>; the one for living -cattle, the other for other goods that might take damage by the weather. -The reason why living cattle should regularly be put into a pound overt, is, -that, as they are but a pledge, from which, in itself, the taker is to receive -no benefit; and as the proprietor, therefore, must be at the sole expence of -feeding them, he should have the freest access to them for that purpose; and, -in such case, if they perish, the loss is his; but if they be put into a covert -pound, there, because the owner cannot have access, the taker is to feed -them, and answer for them at his peril.</p> - -<p>In antient times, the lords used to drive the distresses into foreign counties, -whereby the tenants knew not where to resort to feed their beasts. This -was forbidden by Marlebridge, cap. 4. However, that act received this -construction, that if a manor lay in two counties, and its pound in one of -them, the lord might distrain in the other county, and impound them in -his manor pound; because the tenant, by attending the manor court, was -presumed to know every thing transacted in the manor. But now, by later -acts, no distress of cattle shall be impounded out of the hundred, or barony -where taken, except in a pound overt, in the same county, within three -miles of the place; nor shall distresses be divided, and impounded in several -places. Dead chattels must be impounded likewise within three miles,<span class="pagenum"><a id="Page_104"></a>[104]</span> -and that in a pound covert, otherwise the taker is answerable for them, if -damaged or stolen.</p> - -<p>As to the <i>remedy</i> for taking an unjust distress, the tenant might, if there -was nothing due, rescue them before they were put in pound, and justify -it; but when once impounded, they were in the custody of the law, and -must be delivered by law. Or if there was any thing due, he might, before -they were impounded, make a tender of satisfaction; which, though -the caption was just, rendered the detention unlawful; and therefore if the -beasts, after such tender, were put in pound, and died there, the taker -was answerable.</p> - -<p>When the goods were once impounded, the remedy was by <i>replevin</i>, -which is a judicial writ out of Chancery, directed to the sheriff, who is -Judge in this case, complaining of the unjust taking and detention, and -commanding the sheriff to deliver them back to the owner, upon security -given to make out the injustice of the taking or detention, or else to return -the goods and chattels.</p> - -<p>But this method of replevin, by writ out of Chancery, was very inconvenient -to the remote parts of the kingdom; as the owner might be put to -extraordinary expence and trouble, in maintaining his cattle for a long -time. Hence it was provided, by the statute of Marlebridge, cap. 21. <i>Quod -si Averia alicujus capiantur, & injuste detineantur, vicecomes post querimoniam -sibi factam, ea sine impedimento vel contradictione ejus qui dicta Averia ceperit, -deliberare possit</i><a id="FNanchor_155" href="#Footnote_155" class="fnanchor">[155]</a>.</p> - -<p>This impowered the sheriff to make replevins without writ, upon the -plaint of the plaintiff in replevin; and this he could do out of his county -court, because, as that was held only from month to month, were it otherwise, -the delay might be as great as in the case of a writ of replevin; but -then the sheriff, in order to lay the foundation of the suit, must enter the -plaint the next county court, that it may appear on the rolls thereof.</p> - -<p>The sheriff’s duty then was, in the first place, to take sufficient security -<i>ad prosequendum</i>, that is, that the plaintiff should make out, in due course<span class="pagenum"><a id="Page_105"></a>[105]</span> -of law, the justice of his writ or plaint, that is, that the cattle or goods were -either taken, or detained unjustly. He was also to take security <i>de retorno -habendo</i>, that is, in case he failed, that he would return the same distress, that -it might be delivered to the taker; and this is by the statute of West. 2.; -and he generally, likewise, took security to indemnify himself from any -action that might be brought against him. And then it was his duty immediately -to deliver the distress to the plaintiff in replevin.</p> - -<p>Then it lies on the taker or defendant in replevin to <i>avow</i>, that is, to set -forth the reasons of his caption, to which the plaintiff replies; and so the -justice of the cause comes into question, to be legally determined. Thus -much is sufficient, at the present, to shew the remedy the lord hath for his -services, by virtue of his seignory, and how his tenant is to defend himself -if unjustly distressed<a id="FNanchor_156" href="#Footnote_156" class="fnanchor">[156]</a>.</p> - -<p>I might here treat of another fruit of the lord’s seignory, which is the -<i>right of escheat</i>, or the lands falling back to the lord, either for the <i>delictum</i> -of the tenant, or the failure of blood; but as, to understand this last properly, -we must know who are inheritable, it will be more proper to defer -it till after we have treated of <i>inheritances</i>.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_106"></a>[106]</span></p> - -<h2 class="nobreak" id="LECTURE_XI">LECTURE XI.</h2> - -<p><i>The manner in which estates for life came to be enlarged into descendible estates—The -nature of Reliefs—Feudal oppressions—The admission of allodial lands -into the feudal policy—The extension of the feudal system in France.</i></p> - -</div> - -<p>The feudal lands having been changed by degrees from tenancies for -years into permanent grants for life, partly by the necessities, and -partly by the favour of the lords, the matter did not stop here; but, to the -advantage of the vassals, their rights were continually gaining ground, and -insensibly extending themselves, to a durable continuance in the same family. -To this, undoubtedly, the number of allodial estates, which were estates of -inheritance in the hands of the Romans, greatly contributed. For it is not -to be imagined that it could be an agreeable spectacle to the conquerors, -when once they were settled, and secured in the possession of the country, -to behold their posterity in a more precarious situation, with regard to property, -than the vanquished were. It is true, as by their constitution the -lord was obliged to provide every gentleman, that is, every one of their nation, -unless he proved unworthy, with a benefice, there was no danger of -their issue not being supplied, in some degree or other. But this did not satisfy -them<a id="FNanchor_157" href="#Footnote_157" class="fnanchor">[157]</a>.</p> - -<p>Their roving manner of life being antiquated, and the practice of removing -them from place to place every year being superseded by gifts for -life, the possessors, by habitude, became fond of their dwellings, and no -longer contented with bare necessaries, studied to render their situation -commodious and agreeable. They built houses of strength and convenience, -and by their socage, tenants and villains planted and improved their -lands. And now it began to be thought severe, that the benefit of their -improvements, and the fruit of their and their dependants toil and labour, -should go to strangers, or even to the lord himself. For before this time<span class="pagenum"><a id="Page_107"></a>[107]</span> -it had began, and was now grown into a common practice, for the lords, -when they gave an estate for life, not to content themselves merely with -future service, but to exact, at the time of their investiture, an <i>honorary fine</i> -from the tenant; and this, being but moderate, was generally complied -with, in order to gain a permanent estate. The interest of the state, which -was concerned in the improvement of particulars, required also a preference -of the defendants of those that made them. It is no wonder, therefore, -that it grew to be a maxim, and universal opinion among these people, that -the not continuing the son in the possession of his deceased father, though it -was in the lord’s power to remove him, was a great hardship, and an unworthy -act in the lord<a id="FNanchor_158" href="#Footnote_158" class="fnanchor">[158]</a>.</p> - -<p>With these general sentiments, the lords, for their own interest, were -obliged to comply, and especially the kings; who, by the frequent divisions -of the monarchy in France, had competitors to guard against; and were, -therefore, enforced to attach their vassals to them in the strongest manner, -by complying with their inclinations. The sons, therefore, or one of them, -generally succeeded; not in virtue of any inherent right, but by a new gift, -through the favour of the lord. For, upon the death of his vassal, the -estate being expired, the lord took possession, and, upon receiving a fine, -made a new grant, by investiture, as of a new estate, to such an one of the -sons as he chose; or he divided it among them at his pleasure. These fines -for continuing the fiefs in the same family were called <i>relevia</i> or <i>reliefs</i>, -from the Latin word <i>relevare</i>, which signified a second lightening, or removing -the hand of the lord, who had seized the benefice upon its vacancy, -by the death of the former possessor. Hence the son had no right to continue -his father’s possession. He was obliged to petition for a new investiture, -and to tender his relief, and himself ready to take the oath of fealty. -These reliefs were originally paid in arms, being the most valuable property -these military people had, and afterwards were converted into money. The -<i>quantum</i> was originally at the lord’s will; but his own interest, from the motives -already hinted, commonly prevented him from being exorbitant. -This preference to a succession being at first a matter of favour, not of right, -some vassals, by degrees, obtained of their lord, in their investitures, an absolute<span class="pagenum"><a id="Page_108"></a>[108]</span> -right of succession to their sons; which bound the lord and his heir; -and that in these two different manners. It was either by a grant to the -vassal, and one or more of his sons by name; and then those omitted were -excluded; or <i>to him and his sons</i> generally; and then, by the feudal law -abroad, they were all admitted to enjoy in equal portions, in imitation of -the Roman law, which admits all the children in that manner.</p> - -<p>But the words of the grant were not extended, by a favourable construction, -to take in grandsons by the name of sons, for the following reason. -When a grant was made to a man and one or more of his sons by name, the -sons were originally, at the time of the investiture, capable, or supposed capable, -by the lord’s admission, of doing the services of the feud; and their -ability and merit was in the contemplation of the grantor, and part of the -consideration of the grant; and where it was given to a man and his sons -generally, the law presumed the same thing, the same capacity in them, the -same intention in the grantor. But in the case of grandfather and grandson, -the law could not presume so, it being contrary to the ordinary course of -nature, that both should, at the time of investiture, be capable of doing the -services in person; and therefore the grandsons, unless specially provided -for, were excluded<a id="FNanchor_159" href="#Footnote_159" class="fnanchor">[159]</a>.</p> - -<p>Thus a right of succession for one step was gained by the express provision -of the parties, in particular cases. But as the lord, where he continued -the succession out of favour, entered into the lands, and parted not with -them without payment of his relief by the son, it was reasonable in this case, -where he positively bound himself, that these advantages should be reserved -to him. Therefore the heir could not enter, but was obliged to petition his -lord <i>humiliter</i> and <i>devotè</i>, and to offer his fealty and relief; and the interest -of the lord and of the state requiring the place of the deceased vassal to be -speedily filled up, a year’s and a day’s time was allowed for this application; -within which space, if the heir did not apply, unless prevented by inevitable -necessity, he forfeited his right of succession, and the lord was at liberty to -dispose of it to a stranger.</p> - -<p><span class="pagenum"><a id="Page_109"></a>[109]</span></p> - -<p>Reliefs, however, being, in their original creation, arbitrary, it should -seem to be in the power of the lord, where the quantity was not specified in -the tenor of the investiture, to defeat his own grant, by demanding, under -that name, more than the value of the land, or otherwise grievously to distress -his tenant. This, in England particularly, occasioned many struggles. -It appears from the laws of William the Conqueror, that, in those times, -the reliefs were fixed according to the different ranks of the persons, and -paid in horses and armour, in imitation of heriots in the Saxon times; but -his avaricious and tyrannical son William Rufus laid claim to, and exacted -arbitrary reliefs, to the great discontent of all, and to the impoverishment of -many of his subjects<a id="FNanchor_160" href="#Footnote_160" class="fnanchor">[160]</a>. This was redressed in Henry the First’s charter, -where the first chapter says, <i>Si quis baronum, comitum, sive aliorum qui de me -tenent mortuus fuerit, heres suus non redimet terram suam sicut faciebat tempore -fratris mei, sed legitima, & certa relevatione relevabit eam, similiter & homines -baronum meorum, legitima, & certa relevatione relevabunt terras suas de dominis -suis</i><a id="FNanchor_161" href="#Footnote_161" class="fnanchor">[161]</a>. Henry the First, however, was a man little inclined to keep any engagements -with his people that he could free himself from; and therefore -reliefs went on in an arbitrary way, for the most part, under him, though -not in so oppressive and extorting a manner as his brother William had used. -For in his grandson Henry the Second’s reign, in whose time the feudal -payments became generally converted into money, we find, from Glanville, -that the relief of a knight’s fee, indeed, was reduced to a certainty, but -that of a noble fee was not. <i>Dicitur autem rationabile relevium alicujus, juxta -consuetudinem regni, de feodo unius militis, centum solidos;—de baroniis vero nihil -certum statutum est, quia juxta voluntatem & misericordiam domini regis solent -baroniæ capitales de releviis suis domino regi satisfacere<a id="FNanchor_162" href="#Footnote_162" class="fnanchor">[162]</a>.</i></p> - -<p>It seems a little odd, that the lower military people had got such an advantage -above the great and powerful lords; but this may be accounted for -from the number of the knights, who made the strength of the kingdom, -and were not to be disobliged; and also from the precarious situation many -of the great lords were in, who had been attached to the cause of Stephen. -However, the wisdom and moderation of this great prince was such, that we -find no complaints on this head, during his reign, or that of his son Richard;<span class="pagenum"><a id="Page_110"></a>[110]</span> -but when John ascended the throne, a prince who hated, and was hated by -his nobles, the old oppressions were renewed, and aggravated to such a degree, -that the remedying thereof is the first article of temporal concern in -Magna Charta<a id="FNanchor_163" href="#Footnote_163" class="fnanchor">[163]</a>.</p> - -<p>There it is provided, <i>Si quis comitum, vel baronum nostrorum, sive aliorum -tenentium de nobis in capite per servitium militare, mortuus fuerit, & cum decesserit, -heres ejus plenæ ætatis fuerit & relevium nobis debeat, habeat hereditamentum -suum per antiquum relevium; scilicet, heres, vel heredes comitis de comitatu -integro per centum libras, heres vel heredes baronis de baronia integra per -centum marcas; heres vel heredes militis de feodo militis integra per centum solidos -ad plus: Et qui minus habuerit minus det, secundum antiquam consuetudinem -feodorum</i><a id="FNanchor_164" href="#Footnote_164" class="fnanchor">[164]</a>. And now were all reliefs reduced to a certain sum of money, -namely, the fourth part of what was then reckoned the value of the -inheritance; for a knight’s fee was then reckoned at twenty pounds, a barony -at four hundred marks, and an earldom at four hundred pounds per -annum. And by the gradual sinking of the value of money, and the rising -of lands, these payments continuing the same, came in a few centuries to be -not the twentieth part of the value. We see by the words <i>per antiquum relevium, -& secundum antiquam consuetudinem feodorum</i>, how careful the lords -were to have this certainty of relief acknowledged as their antient right, -and not to accept it as a concession from the crown. When the military -lords began, in imitation of the estates they themselves had, to grant inheritances -to their socage tenants, they likewise exacted, in the nature of a relief, -from every new possessor a year’s value; or, in other words, the rent of the -first year was doubled. For a year’s value was what was, in France, at the -beginning, paid for military tenures, by the name of <i>rachat</i>, or <i>repurchase</i>, -answering to our relief, until at length they were reduced to a certainty in -money; and, consequently, from the same causes as in England, though remaining -nominally the same, they sunk to be very inconsiderable<a id="FNanchor_165" href="#Footnote_165" class="fnanchor">[165]</a>.</p> - -<p>Estates of succession, as I observed, arose first from private grants, and -that for one generation only; but they were continually extending to further -lengths, and encreasing in number; insomuch that, fiefs falling vacant -much seldomer than before, the king had it not in his power to gratify<span class="pagenum"><a id="Page_111"></a>[111]</span> -his deserving soldiers so frequently as he should, and the crown was consequently -enfeebled. This then started the notion of such grants being -good only during the life of the king or lord who made them, and not -binding on his successors. Upon this plan, Brunechild, in her regency, -during the minority of her infant son, attempted to revoke them, and actually -did revoke several; which at length raised that flame, and caused that -revolution, in which her son and herself miserably perished. What shews -the violent indignation her venturing on this step occasioned, was the horrid -manner of her death, that of being torn asunder by four wild horses. Clothair -the Second, who succeeded, was wise enough by law to confirm these -estates; and then, namely about the year 613, the former doubt was removed, -and all these estates of inheritance confirmed to continue against the -successor, according to the terms of the original investiture. New grants -were continually made, and for more generations than had been formerly -practised. But yet this rule of descent was not general; but all grants, unless -heirs were specially named, were but for life; as it is in our law, in -which a <i>feofment to a man for ever</i>, is but an estate for life for want of words -of inheritance<a id="FNanchor_166" href="#Footnote_166" class="fnanchor">[166]</a>.</p> - -<p>What greatly contributed to the extending these grants to indefinite generations, -was the inclination that now seized the Romans and Gauls who -held allodial lands to be admitted into the feudal policy, by becoming vassals -to the king. They had long lain under very humiliating distinctions. -They were no members of the state. The loss of their lives, and other injuries, -were compensated only by half the satisfaction to a Frank. For neglect, -or contumacy, when called into the king’s courts, they were reputed guilty, -and forfeited their estates; whereas a Frank was only imprisoned to oblige -him to answer. When accused of the lightest crimes, they were put to the -ordeal; whereas the Franks were only subjected thereto in case of murder. -And many other were the distinctions between the allodial and feudal tenants. -No wonder then the former were very desirous of enrolling themselves -among the conquerors, which when they had at length obtained, -their liberty was effected, by their giving their allodial lands, or a part of -them, to the king, and receiving them back, subject to the feudal rules. -Now were they immediate vassals of the king, and, as such, became Franks<span class="pagenum"><a id="Page_112"></a>[112]</span> -to all intents and purposes. But these people were not so foolish, nor could -it be expected from them, to part with absolute inheritances, and take back -only an estate for life. They insisted upon grants for a perpetuity, at least -for as long as the issue male of the person resigning lasted. When once -these donations were become common, we may be assured the Franks were -very ready to follow the example, and to take all advantages either of the -favour, or the weakness of their kings; and to such a number did these inheritances -increase, that, about the year 730, the kingdom was near being -lost to the Saracens, for want of a sufficient number of beneficiary or life-estates, -to encourage the soldiery<a id="FNanchor_167" href="#Footnote_167" class="fnanchor">[167]</a>.</p> - -<p>At the time the kings of France were merely nominal, and the whole -administration in the hands of the <i>maires du palais</i>, of whom the second, -who had obtained this unlimited authority, Charles Martel, was so happy -as to save the kingdom from those African invaders in a battle near Tours, -wherein they were routed with a slaughter almost incredible. It remained -to reward the victorious soldiers, who were at least as much animated to -their exploits by his previous promises, as by their affection to the antient -constitution of the state, which was now in truth destroyed, the kings of the -royal race being mere phantoms, whose names he and his father had made -use of at their pleasure. But this family had not acquired sufficient weight -and authority to act as masters. The fund of lands, out of which benefices -had been formerly given, was almost exhausted, and the major part of -the lands that were not still allodial, was alienated either in perpetuity to the -church, as atonements for the vices of the former kings, or what was near -a perpetuity to the lords, for many descents. These last he could not despoil. -They were too firmly established by custom and law; and he and all -his predecessors had paved their way to greatness, by supporting these hereditary -grants at the expence of the crown. Necessity therefore obliged -him to make free with the lands of the church; for which, in their visions, -they lodged him in a chamber, the very lowest in hell. Of these lands the -greatest part he converted into benefices of the antient kind, for life only; -and by means of the number of those new ones, added, to the old ones, that -were in the same state, some kind of a balance was formed; which for a -time supported the government, and checked the growth of inheritances.<span class="pagenum"><a id="Page_113"></a>[113]</span> -But it is remarkable, that, of those church lands, several he gave as allodial -ones. I will not pretend to say, that, in this distinction, he considered the -antient nature of the lands of the church, some of which came from feudal, -others from allodial proprietors. It seems rather probable, as the allodial -estates were greatly decreased, by being turned into fiefs of inheritance, he -was inclinable to form a kind of equality between the feudal tenants, the -beneficiaries, and the allodians; that, by managing them, he might advance -his family to the title, as well as power of royalty; which we find was soon -afterwards accomplished by his son Pepin<a id="FNanchor_168" href="#Footnote_168" class="fnanchor">[168]</a>.</p> - -<p>The policy of Pepin and his son Charlemagne corresponded with Charles -Martel’s views. The former allowed the continuance of inheritances according -to the original provision in the creation, but were much fonder of -the beneficiary estates, and Charlemagne made several laws to prevent his -beneficiaries from converting by any art their interests into inheritances. In -his time, a great majority of estates were benefices; but this I presume is not -to be understood of France particularly, where, from the detail before mentioned, -it could scarce be, but of his whole empire. For in his acquisitions, -and especially in Germany, where such a practice was agreeable to the antient -customs of the natives, such a regulation was conformable to the sound -policy of his father and grandfather; by which they endeavoured to restore -the splendour of the old French monarchy, I mean with exception to the -large gifts he gave to the church on the borders of the infidels, in atonement -for his grandfather’s sacrilege, and in hopes of converting those barbarians, -and thereby civilizing them, and making them good subjects.</p> - -<p>But the successors of Charlemagne had neither the power nor the understanding -of their ancestors. No wonder then, that, under them, the general -inclination of the subjects to change their benefices into fiefs gained -ground. The division of the empire, and frequent wars between the brothers, -weakened the royal authority, and strengthened their vassals; who, -at the times of their kings distress, were rather to be entreated than commanded. -In the time, therefore, of his grandsons, we find laws, that, conforming<span class="pagenum"><a id="Page_114"></a>[114]</span> -to the inclination of the vassals, did in time put an end to beneficiary -estates, holden from the king; opened the gate to <i>subinfeudations</i>, and -all its extensive consequences; and raised a new kind of polity never before -seen in the world, the <i>feudal</i> one, such as it reigned about the year 1050 -on the continent, and was introduced into England by William the Conqueror<a id="FNanchor_169" href="#Footnote_169" class="fnanchor">[169]</a>.</p> - -<p>I speak of the times of Charles the Bald, who reigned about 860. One -of his laws gave leave, and an unlimited one, to the allodians, to submit -themselves and their estates, in the nature of fiefs, to others besides the -kings. Nothing could contribute more to the weakening of the royal -power, and the throwing of all the weight into the baron’s scale. Before -they could be made Franks, only by becoming the immediate vassals of -the king. This was equally for the public benefit of the state, the king, and -the allodians. But when once the barrier was thrown down, in those times -of confusion, the allodians were glad to gain the protection of the neighbouring -lords, and, under colour thereof, detached themselves from their -former subjection to the counts, who were the king’s officers over them.</p> - -<p>Another law, of equal consequence, was to entitle the fee of a beneficiary, -who had only an estate for life, without any express agreement for -a longer continuance, to go to the son. This was extorted by the circumstances -of the times, and perhaps then was thought of little consequence, as -it only continued them for one generation. But the temper and general -inclination of the people were not to be controuled. Those grants that had -been so long as two generations in a family, it was sometimes dangerous, -always invidious not to continue; and thus the successors often obtained -permanent estates, when nothing less was intended at the beginning. And -this was easily obtained, as the use of letters was not common among these -people, and their charters were, by frequent rebellions, liable to be destroyed.</p> - -<p>The last law I shall mention, is that declaring, that the sons of counts, -who were the king’s officers over the <i>allodianée</i>, and were originally for<span class="pagenum"><a id="Page_115"></a>[115]</span> -years, after for life, should succeed to their father. This put the finishing -stroke to the beneficiary estates. For though this, in appearance, was, as -the former, but for one life, and conditionally; yet, from the prevailing -principles, it was impossible they should not grow up into inheritances. And -as all inheritances were growing feudal ones, and upon those conditions, -and no others given, these counties become fiefs. The demesnes of the -crown within them became the demesnes of the count, and all the allodiaries -were now become his sub-vassals<a id="FNanchor_170" href="#Footnote_170" class="fnanchor">[170]</a>.</p> - -<p>We are come to the dawn of a strictly feudal monarchy, and, to shew -the gradation, I have, in this lecture, taken in a great compass of time. -But before I proceed further downwards, it will be proper to return a little -back as to the order of time, and to speak of the consequences that attended -the introduction of estates of inheritance. Of one of these, <i>reliefs</i>, I -have already spoken in this lecture; but there are many others that must -be taken notice of.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_116"></a>[116]</span></p> - -<h2 class="nobreak" id="LECTURE_XII">LECTURE XII.</h2> - -<p><i>Consequences attending the introduction of estates of inheritance—The incident of -homage—Differences in England and the Continent, with regard to the ceremonies -of homage and fealty—The fine of alienation—Attornment—Warranties—Wardship -in chivalry.</i></p> - -</div> - -<p>Having already, in my last lecture, taken notice of <i>relief</i> which -sprung up immediately with estates of inheritance, and was their immediate -consequence, it is proper now to proceed to the other fruits of this -tenure, which grew up not so soon, but in after times: and the first to be -considered, as undoubtedly the next to relief, if not coeval with it, is <i>homage</i>; -which, Littleton says, is the most honourable service (that is with respect to -the lord, and the most humble service, that is with respect to the tenant, -that a freeholder can do to his lord) as upon the introduction of estates for -life, the ceremony of fealty was introduced, so was it thought reasonable, -when a further step was taken, that of continuing them to heirs, that a new -ceremony should be invented, distinct from the former; which being performed -publicly, in the presence of the <i>pares curiæ</i>, should, in those illiterate -ages, create a notoriety, that the tenant had a more durable estate than a -freehold. The manner of performing homage is thus distinctly described -by Littleton. When the tenant shall make homage to his lord, he shall be -ungirt, (that is, unarmed) and his head uncovered, and his lord shall sit, -and the tenant shall kneel before him on both his knees, and hold his hands -jointly together between the hands of his lord, and shall say, <i>Thus I become -your man</i> (from which word <i>homo</i>, <i>homagium</i>, and <i>hominium</i> are derived) -<i>from this day forward, of life and limb, and of earthly worship, and unto you -shall be true and faithful, and bear your faith, for the tenements that I claim to -hold of you, saving the faith that I owe to our sovereign lord the king</i>; and then -the lord so sitting shall kiss him. These are the words of Littleton, and they -are just in the case he puts of a tenant doing homage to an inferior lord, and -who had no prior lord; but if he had a prior lord, or the homage was to be -done to the king, there was a difference in the form; for if the tenant had a<span class="pagenum"><a id="Page_117"></a>[117]</span> -former lord, he also was to be excepted, that the new lord might have notice -of the tenant’s prior obligation, and that it was not in his power to do -absolute personal services at all times to him. And if the homage was done -to the king, who acknowledged no superior, then the exception was entirely -omitted; but if to a subject, it was so absolutely necessary that an -omission of it was looked upon as an attempt against the royal dignity, and -done in disherison of the crown. And accordingly we find, that Edward -the First, in the sixth year of his reign, brought an action of ten thousand -pounds damages, now at least in value thirty thousand pounds, against the -bishop of Exeter, for taking homage of thirteen of his bishop’s vassals, -without the exception of the king; and, in the end, judgment was given -against the bishop<a id="FNanchor_171" href="#Footnote_171" class="fnanchor">[171]</a>.</p> - -<p>Our antient authors tell us, that the lands for which the homage was -done ought to be specified in the doing homage; and the reason given is, -<i>Ne in captione homagii contingat dominum, per negligentiam, decipi, vel per errorem</i>. -But it was better to say, that it was for the benefit both of lord and -tenant, and for the information of the <i>pares curiæ</i>, who were to judge in -case of any controversy between them.</p> - -<p>In England the two ceremonies of homage and fealty were kept distinct; -the homage, as being for the most durable estate, was performed first, and -afterwards the fealty; but, on the continent, at least in some countries, I -find they were blended together, by the homage being done upon oath.</p> - -<p>Another difference between England and the continent was, that, in -England, no homage was repeated to the lord’s heir, by a tenant who had -himself performed it to the ancestor, but homage once from the tenant was -sufficient for his life; whereas, in France, new homage by the same tenant -was done on the death of the lord, as we may see plainly by many instances, -in the case of the kings of England and France, for the lands the former -held in the latter country. Homage was the symbol of a strict and indissoluble -bond between the bloods of the lord and tenant, by which they, -and the heirs of their blood, were mutually disabled from doing any thing to -the prejudice of the other party. The tenant, therefore, could not alien,<span class="pagenum"><a id="Page_118"></a>[118]</span> -either by last will or by deed, in his life-time, without the previous consent -of the lord. This maxim was established partly in favour of the blood of -the first tenant, which was, in fact, often the consideration of the original -grant, as when the lord gave lands in marriage with his daughter, or to a -son or a brother, (and even where it was not in truth so, the law presumed -the blood of the first tenant was in contemplation on the strength of this -maxim, <i>fortes creantur fortibus et bonis</i>, and the probability that a gallant -warrior would, by a proper education, qualify his son for the same profession) -and partly also in favour of the lord, that he should not be obliged to receive, -as his tenant, a person that was inexpert in war; or that, if qualified, -was, perhaps, an enemy to the lord, or that was previously vassal and bound -to another lord who was an enemy. For in those troublesome times, the -power of the crown of France, where these rules began, being greatly diminished, -every lordship made a little kind of state in itself, frequently at -open war; and when not so, at least in a state of suspicious peace with its -neighbours; and from this state of things it happened, that the word <i>feud</i> -has come in our common language, to signify a mortal quarrel, as being almost -inseparable from the greater, or even lesser fiefs<a id="FNanchor_172" href="#Footnote_172" class="fnanchor">[172]</a>.</p> - -<p>In those times, the lord, when things grew into a more settled state, took -advantage of this maxim, that the tenant should not alien without licence, -and the tenants readily acquiesced, under the subsistence of the rule, as it -permitted them, in their turn, to exact a fine from their under tenants, or -the alienees of such in all cases of subalienation; by which means this fine -at length became an established fruit of tenure. In England, however, it -ceased in the case of lords that were subjects from the time of the statute -called <i>Quia emptores terrarum</i>, which gave every person a free liberty to sell -his lands: but the king not being named in that statute, according to the -well-known legal maxim, was not bound thereby; and of course was paid -fines for alienation, or by subsequent statutes a commutation for such fines -by his military tenants <i>in capite</i>, to the time of the Restoration, when these -tenures were entirely abolished. On the other hand, the lord was not permitted -to alien, even with the consent of his superior, without the consent -also of his tenant, and that for a similar reason. For if he, the lord, might so -do, he might subject his tenant to one who was the tenant’s mortal enemy,<span class="pagenum"><a id="Page_119"></a>[119]</span> -and perhaps for no other reason than for serving his former lord faithfully -against the new one<a id="FNanchor_173" href="#Footnote_173" class="fnanchor">[173]</a>.</p> - -<p>This last maxim once established, introduced the practice of tenants <i>attorning</i> -to their lords grants of the seignory. <i>Attornment</i> is an act of notoriety, -originally performed in the presence of the <i>pares curiæ</i>, signifying the -tenant’s consent, and turning over from his former lord to the new one, and -the putting him, the new one, in the seizin of his services. This, at first, -was merely voluntary in the tenant; but when, in England, free alienations -were allowed by the aforesaid act, it was not thought reasonable that it should -be in the tenant’s power to defeat his lord’s grant, by refusing to attorn. -He was therefore obliged, by an action called <i>Quid juris clamat</i>, to appear, -and to shew forth what title he had in the said lands, and whether he had -any sufficient cause why he should not attorn to the grantee; and if he could -not shew any, he was obliged by the judgment of the court to attorn<a id="FNanchor_174" href="#Footnote_174" class="fnanchor">[174]</a>.</p> - -<p>Another effect of this homage was <i>warranty</i>, which is the obligation on -the lord to defend his tenant in the lands holden of him; or, if he cannot, -to give him a recompence of equal value in other lands, our law went no -farther; but the feudal law, if the warrantor had no lands to give in exchange, -obliged him to pay the value in money. <i>Warranty</i> is derived from -the word <i>war</i>, because, in those real actions, the trial was of old by combat. -This obligation, indeed, subsided, as I have already hinted, long before -the introduction of hereditary estates; but when these hereditary estates became -common, and all the military tenures were of this sort, and estates -for lives and years were only, or for the most part, socage, these last had no -warranty annexed to them by law, but only by special agreement; and the -warranty I am now speaking of was confined to inheritances, and of those -only to such as were held by homage <i>auncestrel</i>, that is, where the tenant -and his ancestors had, from time immemorial, done homage to the lord -and his ancestors. Here, on account of the continued connection between -the blood of both families, the law obliged the lord and his heirs to warrant -the lands to the tenant and his heirs<a id="FNanchor_175" href="#Footnote_175" class="fnanchor">[175]</a>.</p> - -<p><span class="pagenum"><a id="Page_120"></a>[120]</span></p> - -<p>The manner of taking advantage of this obligation of the lords by -voucher, which still remains in our law, (the other method by disuse being -antiquated) was shortly thus: When the tenant in possession is impleaded -for the lands by a stranger, who claims them as his inheritance, he, the tenant -appears, defends his right, and <i>vouches</i>, that is, calls in his lord to -warrant the lands to him. If the lord appears gratis, and enters into the -warranty, as he ought, if he is bound to warranty, the tenant hath no more -to do in the defence of the suit. It is the lord’s business. Against him the -stranger declares, and prosecutes the suit. He defends, and it is found -against him, either by legal trial, or default, for want of appearing; and -the judgment the court gives is, that the demandant or stranger shall -recover the lands demanded against the tenant, and that the tenant shall -recover lands of equal value from the lord, or voucher, as he is termed, -because he is <i>vocatus</i>, or called in to take upon himself the defence. If the -lord, who is to warrant, doth not appear, he is summoned till he does; or -if he appears, and will not enter gratis into the warranty, the tenant is to -shew how the person he calls in is bound to warrant; which must be either -by homage auncestrel, or by his, or his ancestors express covenant, as I -shall hereafter shew; and until this was determined, the suit of the demandant -was suspended; because as yet it was uncertain who was obliged -to defend the lands. So we see in the judgment of this kind, there were in -fact two judgments, one against the tenant, who was to give up the lands, -another against the lord, who was to give lands equal in value. But there -might be three, or more judgments, as there might be two or more vouchers. -As if there be in respect to land, A, B, and C. A, lord paramont -or superior, B <i>mesne</i>, that is, tenant to A, and to lord C; and C tenant -<i>paravaile</i>, that is, the actual possessor of the land. Here, if D, a, stranger, -brings his action against C, the tenant, who vouches his lord B the mesne, -who enters into warranty, and vouches A the lord paramont, who enters -into warranty, and fails, D recovers the lands from C, C recovers in value -from B, and B recovers in value from A, and so on, if there be more -vouchers.</p> - -<p>Warranties, as I hinted before, are of two kinds, <i>warranties in law</i> -or by homage auncestrel, or by words in the deed, which the law construes -to import warranty (which stood upon a feudal footing), and <i>warranties in -deed</i>, that depend on a special covenant. These last were substituted in the<span class="pagenum"><a id="Page_121"></a>[121]</span> -place of the former. For as by every alienation, either of the lord or tenant, -the mutual connection between the two bloods was extinguished, and warranty -by homage auncestrel consequently gone (insomuch that now, by -frequent alienations, there is no such thing left) the tenant would not attorn -to his lord’s grant when the lord aliened, nor a new tenant accept of a -grant from an old tenant of his tenancy, without an express warranty, -binding in the first case the new lord and his heirs; in the latter the old one -and his heirs. Afterwards the making of these warranties was extended to -persons between whom there was no feudal connection; as if a man aliened -lands to hold of his lord. Here the grantee held of the lord of the grantor, -not of the grantor; and therefore, as he had nothing to bind the lord to -warranty, would insist on an express warranty from the grantor and his -heirs<a id="FNanchor_176" href="#Footnote_176" class="fnanchor">[176]</a>.</p> - -<p>One species of these warranties, namely, that which is called <i>collateral -warranties</i>, was made use of, and it was the first invention that was made -use of, to elude the statute of Edward the First, <i>De donis</i>, which gave birth -to, or rather restored to life that antient kind of feudal estate, which we -call <i>Fee tail</i>. But it must be owned this intention was both against the words -and intention of that law. A judge in his grandson’s, Edward the Third’s, -reign, says, they were wise men that made this statute, and that the king -that passed it was the wisest king that ever was in England, and both assertions -must be allowed. The nobles who made it were wise men in their generations. -For, by making effectual these gifts in tail, they secured their -estates in their families, free from any forfeitures, arising from their own -misconduct; which before their estates were liable to. But at the same time -it was a destructive law for the nation. It put the great lords of England, -who were before too powerful, in a condition, by this security of the inheritance’s -descending to the heirs, to beard and awe the crown, and it likewise -discouraged industry and commerce, which then began to rear their heads in -England. Perhaps the wisdom of the sagest of the kings of England, as -he is universally called, may by some be doubted in this, that he consented -to this act; but he was a sage king, and did wisely in consenting to it. The -barons had been so oppressed in his father’s reign, and their estates so often<span class="pagenum"><a id="Page_122"></a>[122]</span> -confiscated, that a mutual jealousy subsisted at that time between them -and the crown. They had been restored, because the crown was otherwise -in danger. They were jealous likewise of Edward himself, for one or two -of his actions: In short, his barons were too powerful to be refused this law, -however contrary to the interest of the crown and the lower people, and there -was more to be said in its favour, it being entirely agreeable to the feudal -principles, that he who received an estate to him and the heirs of his body, -should not have it in his power to contravene, by any act of his, the gift -of the donor. He complied therefore with a good grace; but his wisdom, -if it was seen in his complying, was farther seen, and in a stronger light, in -the construction his judges and their successors made of this act, that collateral -warranty, without an equivalent, should be a bar. However, this -was but a feeble defence against the mischiefs of entails, which every day -happened, to the weakening of the public estates, and collateral warranties, -were not on every occasion so easy to be got<a id="FNanchor_177" href="#Footnote_177" class="fnanchor">[177]</a>.</p> - -<p>At length, in Edward the Fourth’s reign, under pretence of warranties, -and those entirely fictitious, a method was found out, under the form of -legal proceedings, to defeat estates tail, and all remainders thereon, and -that in the manner following: A, who was tenant in tail, was impleaded -by collusion, by a person who pretended to claim title to the lands antecedent -to the estate tail, and who was, in fact, the man to whom A, by his -private agreement, was to alienate it, in destruction of the estate tail. A -appears, and takes defence, but vouches to warranty B, a man who has -not a foot of land, nor is likely to have any: B very readily enters into the -warranty; and when the day comes, that he should defend the suit, makes -default; in consequence whereof, the court gives judgment, that the demandant -should recover the lands against A, and A’s lands of equal value -against B the vouchee, who hath none; and yet this was judged a good bar -to the entail, upon the possibility that B might purchase lands equivalent, -and so A, and the other persons entitled in tail, might receive satisfaction. -And that is what, under the name of a common recovery, is grown to be -one of the common assurances of the realm; and though, for about seventy -years, the justice and conscientiousness of it was disputed, yet being constantly -asserted as law by the judges, and taken notice and approved of by<span class="pagenum"><a id="Page_123"></a>[123]</span> -acts of parliament, it is the now most effectual bar to an estate tail. To -speak candidly about these recoveries, as to their application to this purpose, -they were notorious breaches of the statute <i>De donis</i>, under the colour -of legal proceedings. Yet what could be done? the law could not be -repealed; for all members of parliament had their estates entailed. It could -only be eluded, and both for the king and all who had not estates tail, it -was necessary it should<a id="FNanchor_178" href="#Footnote_178" class="fnanchor">[178]</a>.</p> - -<p>Another consequence of estates becoming hereditary, and, in respect of -military tenures, a fruit of seignory, is <i>wardship</i>, or guardianship. For it -must now frequently happen, by the death of ancestors, that estates would -descend to heirs incapable to do the service, to manage their affairs, or to -educate themselves. It was necessary, therefore, that the law should make -provision both for the doing the services, and the benefit of the heir, until -he arrived at a proper age. And the law proceeded in a different manner, -as the lands were holden either by knights service or socage; tenure, in the -first case, having in view principally the defence of the realm; in the second, -the benefit of the heir. With respect to military tenures, the time of age -was twenty-one years compleat; at which time the law presumed the heir was -qualified, both by skill and strength of body, to perform the part of a soldier. -At this age, therefore, he was out of the ward. If his ancestor died -before he had attained that age, his lord had by law the guardianship both -of his lands and person till then, and took the profits of the lands to himself -for his own use, being only obliged to educate and maintain the heir in a -condition suitable to his rank and station. The reason of this was, that it -was a principle in the feudal law, as the profits and the military duties were -equivalents for each other, that he who was obliged to the duty should enjoy -the profits, which, in the first instance, was the lord, he being obliged -to answer the king, or other superior lord, for all the military duties comprised -in his seignory.</p> - -<p>He had the guardianship, likewise, of the heir’s person; first, that, because -of the bond under which he lay to the tenant and his heirs, the law -had entire confidence in the care he would take of the minor; secondly, because -the lord was certainly well qualified to instruct him in the art of war;<span class="pagenum"><a id="Page_124"></a>[124]</span> -and thirdly, his own interest obliged him to do this carefully, that his vassal -might be enabled to perform to him the future services. But this, as to -the person, is to be understood, if the minor’s father was not living. For -if he was, he was guardian by nature, and intitled to the custody of the -person, as in the case put by Littleton, where there is a grandfather by the -mother’s side, tenant, by knight service, father, and mother, and son; and -the mother dies, leaving the grandfather, and then the grandfather dies, -and his land descends to the son of his daughter, then a minor, the minor’s -father still alive; here the guardianship shall be divided. The grandfather’s -lord shall have the ward of the lands, and the father shall have the ward of -the person of his minor son. So it is if a lord gives land in fee by military -service to the son of A, by which son’s dying without issue the lands descend -to his brother, a minor. Here A, the father, shall have the custody -of the body, and the lord, of the lands. There was another case, likewise, -wherein the guardianship, I cannot say was divided, but where the wardship -of the person was extinct. Antiently, although twenty-one years was -the regular time, yet, if the minor was knighted by the king, and thereby -adjudged capable of service in person, the guardianship ceased. For here, -the legal presumption of unfitness was refused by a positive act of the king -to the contrary. But the lords obtained an act of parliament, that, notwithstanding -such knighthood in minority by the king, the lords should retain -the lands of the minor so knighted, till he was twenty-one years of age; -and so, after this act, the wardship of the lands continued, though that of -the person, who was by the king’s act declared <i>sui juris</i>, was gone<a id="FNanchor_179" href="#Footnote_179" class="fnanchor">[179]</a>.</p> - -<p>The term of twenty-one years, which I have mentioned was confined, as -may appear by what I said concerning it, to heirs minor, that were males; -but with respect to heirs female, minors, as almost all of our fiefs soon after -the conquest were feminine feuds, as the lawyers on the continent call them, -that is, descendable to females in the next degree, if males in that degree -failed, the limitation of minority was different. In these fiefs it was impossible -the woman herself should do personal service: She was, therefore, allowed -a substitute; but in time of minority, as she could not appoint a proper -one, the lord who was bound to perform the service to his superior, had<span class="pagenum"><a id="Page_125"></a>[125]</span> -the lands in the same manner as in case of an heir male. However, there -was no reason that the minority of a woman in wardship should continue so -long as that of a man, namely, to twenty-one years; for as the law of God -declared that man and wife should be one flesh; so the canon law, and ours -in consequence, have decreed, that, in law, the man and wife are one person, -and that the husband in all respects is bound to perform the obligations -she lies under. Hence, in case of a female heir, the term of the lord’s guardianship -was, by the common law, limited to fourteen years; by which -time it was presumed she might have a husband capable, and obliged to do -the duty for her. But this age of fourteen years was, in a particular case, -extended, by act of parliament, to two years farther. However, as the -reason of that depends on the lord’s right to the marriage of the heiress, it -will be better to defer speaking thereof, until we come to that head.</p> - -<p>It remains to be mentioned, what was the nature of this interest the -lord had in the estate of this minor tenant, by virtue of the feudal institutions, -and so contrary to the general and the original tenure of them. For, simply, -the lord had only the propriety, and in consequence the right of reversion -or escheat, with the render of the services; whilst the tenant had the -possession and the profits. But, in this case, all these seem to be blended, -particularly the right of original propriety and possession, so essentially to be -distinguished in the feudal system. For the lord has not only his propriety -in right of his seignory, but also the absolute possession, and permanency, or -taking of the profits, and the minor heir apparently nothing. However, -the law, in this case, did justice, and created in the lord a temporary interest, -an estate for years, namely, for the number of years till the majority was -compleated, contrary to all the other feudal maxims. For the fee and inheritance -of the estate remained in the minor, though he had neither possession -or profits. This interest of the lord could not be called, at least with strict -propriety, a tenancy for years, because, in this case, the lord possesses the -tenant’s lands, not the tenant. The lords had therefore no tenure, but an -estate for years, created by the law; and that it was originally considered -as an estate for years, or a chattle interest in lands, appears from two -things. First, that in the early times, when alienations were scarce allowed, -it was assignable over to another, without any licence or form. Secondly, -that instead of going to the heir, in case of the lord’s death, during the<span class="pagenum"><a id="Page_126"></a>[126]</span> -minority of the ward, it went to the lord’s executors, as other estates for -years did<a id="FNanchor_180" href="#Footnote_180" class="fnanchor">[180]</a>.</p> - -<p>As the lord was bound to his vassal and his heirs by the homage done to -him, it certainly followed, that it was not lawful for him to do, during the -wardship, any actual waste (that is, any permanent damage) to the estate -of his minor ward, or to suffer any to be done by others. He was also -obliged to repair and keep in condition, out of the profits of the estate, the -houses and improvements thereon; yet so great was the misbehaviour of -the English lords, soon after the conquest, that many severe and restrictive -laws were, from time to time, made in favour of the minor wards<a id="FNanchor_181" href="#Footnote_181" class="fnanchor">[181]</a>.</p> - -<p>In my next I shall treat of guardians in socage, reserving the article of -marriage, though it appertained to military service, to a place by itself; as -it was of a distinct nature, and went on its own particular ground in a great -measure.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_127"></a>[127]</span></p> - -<h2 class="nobreak" id="LECTURE_XIII">LECTURE XIII.</h2> - -<p class="center"><i>Wardship in Socage—The nature and history of the incident of marriage.</i></p> - -</div> - -<p>Having, in the last lecture, given some account of wardship and -guardianship in chivalry, it will be necessary to mention what provision -the law made, now lands were become hereditary, for the benefit of a -minor, when lands, held in socage, descended to him. In the former case, -where war was the consideration, whose times and exigences were uncertain, -the law was obliged, on account of the public safety, to consider the interest -of the lord, who was to answer the duties to the state, in the first place, and -the interest of the minor only in a secondary light. But in socage lands, -which the lord had parted with for certain fixed stipulated services, to be -paid at particular times, the lord had no claim to any more than them. Neither -did the public interest demand a military person for the guardian of one -who was not to be bred a soldier. A near relation, therefore, was the properest -person to take the wardship.</p> - -<p>But in fixing who that person should be, the feudal and the Roman civil -law proceeded on different principles; the latter fixed upon the nearest relation -that was inheritable to the estate, but the former entirely excluded -all relations that might inherit. Thus, if the land descended on the side of -the father, all relations of the father were incapable, and the mother, or -the next of kin of her blood, was the guardian. And this is a difference -wherein the English lawyers greatly triumph over the civilians. For to give -the care of a minor to one who might be his heir, is, they say, <i>quasi agnum -lupo committere ad devorandum</i>. But this very reason strongly proves the general -wickedness and barbarity of the people, who were obliged to establish -this rule at that time. Both laws were equally wise, because adapted each -to the circumstances of the nations that made them. The Romans, who -were a polished civilized people, among whom murders were infrequent,<span class="pagenum"><a id="Page_128"></a>[128]</span> -were not afraid to trust the person of the minor to the care of one who might -be his heir; and such an one they preferred on account of the preservation -of the estate, which they presumed would be taken best care of by him to -whom it might descend. The northern nations, on the contrary, who were -barbarians, and murderers, were obliged to sacrifice the consideration of -preserving the estate, to the personal safety of the infant, and therefore committed -both to one who could have no interest in the succession.</p> - -<p>The guardian in socage differed from guardian in chivalry in this, that -he was but in the nature of a bailiff, or trustee, for the minor, to whom, -at the expiration of his guardianship, he was obliged to account, upon an -allowance of all his reasonable costs and charges. Another difference was, -as to the <i>term</i> of the guardianship. For this guardianship expired at the -ward’s full age of fourteen; at which time, if he pleased, he might enter -and occupy the lands himself, or choose another guardian; for as at that -age he had discretion enough to consent to marriage, so did the law suppose -he had sufficient perhaps to manage his own affairs, at least to choose the -properest person for that purpose<a id="FNanchor_182" href="#Footnote_182" class="fnanchor">[182]</a>.</p> - -<p>But put the case, Suppose that the minor doth not enter, or choose another -guardian, but that the old one continues to receive the profits, what -remedy shall the minor have for those received after his age of fourteen? -Certain it is, he cannot bring an action of account against him as guardian; -for guardianship is expired; and yet the infant’s discretion cannot be presumed -so great, as to be perfectly acquainted with all his legal rights, and -therefore his negligence shall not be imputed to him. The law in this case -remedieth him by a reasonable fiction, and supposeth, though the fact hath -not been so, that the minor had appointed him to receive the profits of the -estate, and therefore gives an action of accounts against him, not as guardian, -but as bailiff or receiver.</p> - -<p>But suppose the next of kin neglects the guardianship, and any other -person of his own head enters, and takes the profits, what remedy shall the<span class="pagenum"><a id="Page_129"></a>[129]</span> -minor have? In this case the law will not suppose him that enters to be a -wrong doer, an <i>abator</i>, as the law would call him, if the heir was of full -age; but will rather presume his act proceeded from humanity and kindness, -to supply the neglect of the proper guardian; and therefore, though -he is not appointed guardian, either by the act of law or otherwise, he -shall be considered as such, and the heir, after fourteen, shall have an action -of account against him, and charge him as guardian. So strictly was the -guardian in socage accountable to his ward for the profits, that, if he -married him within the age of fourteen, he was not only accountable for -the money he received in consideration thereof (as it was the practice in -those days to sell the marriage of wards) but if he received none, he was -accountable out of his own fortune for what he might have received on that -account, unless the match itself was equally, or more beneficial.</p> - -<p>The next consequence of fiefs becoming hereditary, and which followed -from the wardship, is the <i>marriage</i> of the ward by military service, which belonged -to his lord, and was one of his beneficial fruits of tenure; and although -this part of our law is now antiquated by the abolishing of knight-service, -it is necessary, for the understanding our books, to have at least a -general notion of it.</p> - -<p>This right rose originally, on the continent, from fiefs becoming descendible -to female heirs, and was grounded upon the same principle as the -rule which forbad vassals to alien without their lords consent. As every -feudal kingdom, at this time, consisted of a number of principalities, under -their respective lords, who were often at war with each other, the tenant -could not alien without his lord, lest he might introduce an enemy into the -feudal society. The like danger was there if a female heiress was permitted -to marry at her own pleasure, or could be disposed of by her relations without -the lord’s consent. And at first, it seems, that this rule was general to -a woman heiress during her whole life; but if so it was, it soon abated, and -was confined to the marriage of females in wardship, and to the first marriage -only. The law of Normandy says, if a woman be in wardship, when -she shall be of an age to marry, she ought to marry by the counsel and licence<span class="pagenum"><a id="Page_130"></a>[130]</span> -of her lord, and by the counsel and assent of her relations and friends, according -to what the nobleness of her lineage and the value of her fief shall -require. So that antiently the lord had not the absolute disposal of her, -nor had he any thing to say to the marriage of males; for though he should -marry an enemy, the fief was not thereby put into subjection to her, but she -into the subjection of the vassal. And this rule, that the lord’s consent -should be had, was not intended for him to make an advantage of, but was -a mere political institution, for the safety of the community. Such was the -law introduced into England at the conquest. However, it was but natural -to expect that avaricious lords would take advantage of their negative voice, -to extort money for licence, and by that, and their influence over their vassals, -to arrogate the sole power to themselves. That William Ruffus acted -thus, we may well learn from the remedial laws of his brother and successor -Henry the First; <i>Si quis baronum, vel hominum meorum, filiam suam nuptum -tradere voluerit, sive sororem, sive neptem, sive cognatam, mecum inde loquatur; -sed neque ego aliquid de suo pro hac licentia accipiam, neque ei defendam quin eam -det, excepto si eam jungere velit inimico meo</i>. Another is, <i>Si mortuo barone, vel -alio homine meo, filio hæres remanserit, illam dabo consilio baronum meorum</i><a id="FNanchor_183" href="#Footnote_183" class="fnanchor">[183]</a>.</p> - -<p>Notwithstanding these laws, the mischief still gained ground, and the -lords extended their encroachments, until they not only got the absolute -disposal of female, but of male heirs also. When this happened, is hard to -determine precisely. That it was after Glanville, who wrote in Henry the -Second’s time, and before Bracton, who wrote in Henry the Third’s, is -plain: Mr Wright’s conjecture seems probable, that it grew up in Henry -the Third’s time, when the barons were very powerful, from a strained -construction of Magna Charta, which says, <i>Hæredes maritentur absque disparagatione</i>; -where the general word <i>hæredes</i> should have been construed to -extend only to such heirs as by the former law were marriageable by their -lords, namely, female ones; but both king and lords, taking advantage of -the generality of the expression, claimed and usurped that of the son’s -also<a id="FNanchor_184" href="#Footnote_184" class="fnanchor">[184]</a>.</p> - -<p><span class="pagenum"><a id="Page_131"></a>[131]</span></p> - -<p>However, it is rather to be presumed that this incroachment began earlier; -since in the statute of Merton, the twentieth of Henry the Third, we -find these words: <i>Quia maritagium ejus qui infra ætatem est</i> (speaking of a -male) <i>mero jure pertinet ad dominum feudi</i>. From whence I rather gather -the practice was earlier than Magna Charta, which was not above thirty -years before, and confirmed by its interpretation. But if, in this respect, -the vassals were encroached on by their lords, in another, they met with a -mitigation in their favour. For the consent during the father’s life, went -into disuse, and every man was allowed to marry his son or daughter at his -pleasure; and this with very good reason. For as the prohibition was -for fear of introducing an enemy, of this there was no danger where the -marriage was by the father, a vassal, bound by homage and fealty to do -nothing to the prejudice of his lord. Thus was right of consent to marriage, -introduced first for political reasons, turned into a beneficial perquisite, -and fruit of tenure, for the advantage of the lord; and notwithstanding -all the laws made to regulate it, as constantly abused; so that the evils -thence arising were not among the least causes for abolishing military -tenures<a id="FNanchor_185" href="#Footnote_185" class="fnanchor">[185]</a>.</p> - -<p>The penalty for marrying without consent was originally, as all breaches -of fealty were, absolute forfeiture. But the rigour of the feudal law subsiding, -lighter penalties were introduced. By the sixth chapter of Merton -remedy is given to the lord, whose ward, under fourteen, has been taken -away by any layman (and a later act extends it to the clergy) and married, -by an action against the <i>raptor</i> or <i>ravisher</i>, as he is called, for the value of -the marriage, besides imprisonment and a fine to the king. If the ward -himself, after the age of consent, or fourteen, should, to defraud his lord, -marry himself, he, as guilty of a breach of fealty, is more grievously punished -than a stranger. For this act provides, that the lord, in that case, shall -retain the lands after the full age of twenty-one, for so long a time as, out -of the profits, he might receive double the value of the marriage<a id="FNanchor_186" href="#Footnote_186" class="fnanchor">[186]</a>.</p> - -<p>The next, the seventh chapter, is in favour of the ward, and an inforcement -of that chapter of Magna Charta which forbids disparagements without<span class="pagenum"><a id="Page_132"></a>[132]</span> -inflicting any penalty. It enacts, that if the minor under fourteen is -married by his Lord to his disparagement, upon the plaint of his relations, -the lord shall lose the wardship; and the profits of the lands, till full age, -shall be received by the relations so complaining, and laid out for the benefit -of the heir. But if the marriage was after fourteen, the age of consent, -it was no forfeiture, on the maxim, <i>Volenti non fit injuria</i>. This act goes -farther in favour of the minor; for it gives him a liberty of refusing any -match the lord should offer him. But to prevent the lord’s entirely losing -the benefit of the marriage by the refractoriness of the ward, it enacts, in -this case, that if he refuses a convenable marriage, the lord shall hold the -lands after twenty-one to his own use, until such time as his late ward shall -pay him the single value thereof.</p> - -<p>The twenty-second chapter of Westminster the first confirms and repeats -the sixth of Merton, and farther obviates a fraudulent practice of the guardians -of female heirs. I observed that their wardship by law ceased at the -age of fourteen, by which time they might have husbands capable of the -service: but some lords, <i>for covetousness of the lands</i>, as the act expresses it, -would not offer any match at all to their female wards, under the pretence -of their being incapable of the services, in order to hold on the lands for an -unlimited time. This act so far alters the old law, that if the heiress arrives -unmarried at the age of fourteen, the lord should hold two years longer, -that he may have time to look out for a proper match to tender her, within -which time, if he neglects it, he loses all right to her marriage. On the -other hand, if the heiress will refuse a suitable offer, the lord is impowered -to retain the lands until twenty-one, and so much longer, until he has received -out of the profits satisfaction for the value.</p> - -<p>The ravishment of wards from their lords continuing, notwithstanding -the statute of Merton, the thirty-fifth of Westminster the second gave the -writ called <i>Of ravishment of ward</i>, and assigned a more speedy and beneficial -method of proceeding, and added to the punishments by the former act of -Merton inflicted on offenders<a id="FNanchor_187" href="#Footnote_187" class="fnanchor">[187]</a>.</p> - -<p><span class="pagenum"><a id="Page_133"></a>[133]</span></p> - -<p>But notwithstanding all these regulations concerning marriages, and the -other many acts made to prevent misbehaviour of lords to the lands of their -wards, the source of the evil remained in the wardship itself; and the evils -constantly followed, insomuch that for hundreds of years, it was one of the -heaviest grievances the subject suffered. Many were the wastes done to -estates; many the heirs married contrary to their inclinations, and frequently -unsuitably. The grievances fell heaviest on the wards of the crown. -There were always a set of needy or greedy courtiers ready, if they had favour -enough to beg, or otherwise to buy at an under rate, the wardships -of minor tenants, of which they were sure to make the most advantage; -marrying the most opulent heirs to their own children, or relations, or extorting -extravagant sums for their consent. A remarkable instance of this -happened so lately as Charles the First’s time, in the case of the earl, afterwards -first duke of Ormond. A long suit had subsisted between the lady -Preston, grand-daughter and heiress at law of Thomas earl of Ormond, and -her cousin, the heir male of the family, for that part of the estate her grandfather -had entailed to go with the title. At length the relations on both -sides thought the best expedient to end this intricate dispute, was by uniting -the young relations, who likewise had conceived a strong affection for -each other; yet, although the king approved highly thereof, did the earl of -Warwick, who was grantee of the young lady’s wardship, extort ten thousand -pounds before he would consent to a marriage on every account so desirable.</p> - -<p>King Henry the Eighth, finding how grievously the subject was oppressed, -and how much the crown was defrauded, erected, by act of parliament, -a court called the <i>Court of Wards</i>, to take proper care of minors, and to answer -in a moderate manner for the profits to the king. This for some time -was a considerable alleviation of the load; but in the weak reign of James -the First, who was governed by his favourites Somerset and Buckingham, -this court was converted into an engine for raising their families, by providing -their numerous and indigent relations with the greatest heiresses, to -the great discontent of the antient nobility, who saw the most opulent fortunes -suddenly raised by private gentlemen, dignified by titles for the purpose. -And great were the extortions likewise for the licenses that were -granted to some to marry at their pleasure. The only advantage the public<span class="pagenum"><a id="Page_134"></a>[134]</span> -reaped at this time from this right of disposal in marriage was, and it must -be allowed to be a considerable one, the opportunity it gave the crown of -breeding the heirs of many families in the reformed religion; and in justice, -it must be owned, this was not neglected.</p> - -<p>In the eighteenth year of this last reign, it was moved in parliament to -purchase off these heavy burthens of ward and marriage, by settling an -handsome yearly revenue in lieu thereof on the crown. But the attempt -did not succeed at that time, probably owing to the courtiers opposition to -it, from their own interested views. In Charles the First’s reign, this court -was one of the great objects of complaint. At length, on the restoration, -the king consented to turn all the military tenures, except grand serjeanty, -into socage, in consideration of an hereditary revenue settled on him, and -so all the fruits thereof ceased, and the feudal system, which had for ages, -from time to time, undermined the constitution, fell to the ground, though -very many of the rules of our law, founded on its principles, still retain -their force<a id="FNanchor_188" href="#Footnote_188" class="fnanchor">[188]</a>. In this kingdom the equivalent given for this abolition was -the tax of hearth-money, in which, it must be owned, the king, and those -who had been his military tenants, were a little too sharp for the rest of the -people; for by the improvements of the kingdom, that revenue is every day -increasing to the crown, and almost the whole burthen is thrown on the -lower class, who before felt none of the oppression, or weight of wardship -and marriage.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_135"></a>[135]</span></p> - -<h2 class="nobreak" id="LECTURE_XIV">LECTURE XIV.</h2> - -<p><i>The rules of descent in the old feudal law in regard to the sons of the last possessor—Representation -and collateral succession—Feminine feuds.</i></p> - -</div> - -<p>It is now time to see how inheritances descended by the feudal law, where, -in the original grant, there were no particular directions to guide the -descent; for in such case the maxim of the feudal law holds, <i>Tenor investituræ -est inspiciendus</i>; or, as the common law expresses it, <i>Conventio vincit -legem</i>. The first rule then was, that descendants of the first acquirer, and -none others, were admitted. The reason was, that his personal ability to do -the duties of the fief was the motive of the grant, together with the obligation -his fealty laid him under to educate his offspring to the lord’s obedience, -and to qualify him for his service in war. It was observed, therefore, -it should go to the first purchaser’s collateral relations, whom he had no -power to bind by his acts, and over whose education he had no influence. -I mean where it was not particularly otherwise expressed; for then the collaterals -succeeded, as the merit of their blood was part of the consideration; -not so properly in the right of heirs, as by way of remainder, under the -lord’s original grant<a id="FNanchor_189" href="#Footnote_189" class="fnanchor">[189]</a>.</p> - -<p>The next thing to be enquired is, since the descendants alone inherited, -whether all, or which only of them inherited. And here the females and -their descendants, unless they were specially named, were totally excluded, -not merely for their personal incapacity, but lest they should carry the fief -to strangers, or enemies; and therefore, where they were admitted, they -were obliged to marry with the consent of the lord. The third rule is, that, -unless it was otherwise stipulated, all the sons succeeded equally to the father. -This was the antient feudal law, and the law of England in the Saxon -times, the relicks of which remain in the gavel kind of Kent, and remained -in the last century in many, if they do not still in some of the principalities<span class="pagenum"><a id="Page_136"></a>[136]</span> -of the empire. In France, during the first, and a good part of the second -race, we see the kingdom divided among the sons. There are not wanting -instances of the same among the English Saxons; and the Spaniards continued -the practice now and then even in later ages. But the frequent -wars, occasioned by these partitions, at length abolished them, and made -kingdoms to be considered as indivisible inheritances. In imitation of the -sovereignty, the same alteration was introduced into the great seignories, -which made, at this time the principal strength of the kingdom, and -which, now the crown was become indivisible, would, if liable to partition, -become so inconsiderable in power, as to be at the mercy of the king<a id="FNanchor_190" href="#Footnote_190" class="fnanchor">[190]</a>.</p> - -<p>The inconveniencies attending the lower military tenancies which still -continuing divisible, were crumbled into very small portions, and, of course, -must have fallen into indigent hands, were such, that these also, for the most -part, became descendible to a sole heir. But this, however, was not effected -but by degrees; for in the reign of Henry the First, though a single knight’s -fee was not divisible, yet when a man died seized of more than one, they -were distributed among his sons as far as they went; but in his grandson’s -reign the general law was settled in favour of a single heir, in the same manner -as it has stood ever since<a id="FNanchor_191" href="#Footnote_191" class="fnanchor">[191]</a>.</p> - -<p>But it remains to be enquired which of the sons, in case of an indivisible -inheritance, should be this sole heir. In the antient and unsettled times, -the law made no particular provision; but, as the lord was the head of the -military society, and bound to protect it, it was left to his option to fix upon -the properest person to do the duties: and an instance of the exertion of -this power we have in England so late as the reign of Henry the Second, -who gave the entire military lands of Geoffry de Mandeville to his son by -a second ventre, to the exclusion of the eldest by a former wife, for this -reason, <i>eo quod melior esset miles</i>. A trace of this still remains in the case of -a peerage, descendible to heirs general, that is, male or female, falling to -daughters. Here the fief being indivisible, the king may appoint the peerage -to which he pleases, and until he doth so, it is not indeed extinguished, -but lieth dormant, being what is called <i>in abeyance</i>, or the custody of the<span class="pagenum"><a id="Page_137"></a>[137]</span> -law. But at length this uncertainty was removed, and the eldest son being -generally the best qualified, and consequently almost always chosen, obtained -the right, by degrees, in exclusion of his brethren, or the choice of the -lord<a id="FNanchor_192" href="#Footnote_192" class="fnanchor">[192]</a>.</p> - -<p>But it will be inquired with respect to kingdoms, who had no superior to -make the choice, how was it to be determined after they became indivisible, -which of the sons was to succeed, seeing the absolute right of primogeniture -was not yet established in the opinions of men. I answer, the usual practice -was for the king himself, before his death, to appoint the successor; generally -with the consent and approbation of his states, and sometimes merely -by his own act, which was almost universally allowed, and obeyed by the -people. But if no such disposition had been made, the states assembled, -and chose the person themselves; and these appointments generally falling -on the eldest son, paved the way for lineal hereditary succession, though the -case was not always so.</p> - -<p>In France, Hugh Capet, to go no higher, in order to prevent competition, -caused his son Robert to be crowned, and sworn allegiance to in his -lifetime; but Robert neglecting the same precaution, Henry his younger -son was chosen in preference of the elder, who was obliged to content himself -with the dutchy of Burgundy. And if Henry was an usurper, so were -all the succeeding kings of France for three hundred years, till that family -of Burgundy failed. Henry followed his grandfather Capet’s example, and -so did his successors for about an hundred years, and then, the notion of -the lineal succession of the eldest son being fully established, the custom of -crowning the son in the father’s life, was laid aside, as unnecessary.</p> - -<p>In England the practice was antiently the same. William the Conqueror, -though he set up a claim under Edward the Confessor’s will, yet as -that never appeared, a formal election by which he was chosen, extorted indeed -by dread of his power, but apparently free, was his title. When pressed -to declare a successor, he only signified his wish that William might succeed, -but declared he would leave the people of England as free as he had -found them. William accordingly was elected in prejudice of his elder -brother Robert, and upon his death, occasioned by an accident, Robert<span class="pagenum"><a id="Page_138"></a>[138]</span> -was again excluded, and Henry the First, the third brother, chosen. Henry -was willing to have the course of descent secured in his offspring; and -for this purpose proceeded in the method that had been so successful in -France, namely, by causing his son Henry to be crowned, and sworn to. -But this latter dying childless in the lifetime of his father, king Henry -caused his daughter Maud to be acknowledged successor, and the oath of -eventual allegiance to her to be taken by his people. However, this project -did not succeed. No nation of Europe had yet seen a crown on the head -of a female; and Spain was the only country that had ever had a king who -claimed in a female right. The majority, therefore, upon Henry’s death, -looked upon their oath as inconsistent with the nature of monarchy, and void, -and in consequence chose Stephen, who was the son of Maud’s aunt, and -grandson of the Conqueror, whose whole male issue was now spent. There -was, however, a large party in the kingdom who paid a greater veneration -to the obligation of their oath, and adhered to Maud. Hence was this -reign a continued scene of civil war, until all sides, being wearied out, by -mutual consent, ratified by the states of the kingdom, Stephen was allowed -king for life, and Maud’s personal pretensions, as a woman, being set aside, -her son, Henry the Second, was declared, and sworn to, as eventual successor<a id="FNanchor_193" href="#Footnote_193" class="fnanchor">[193]</a>.</p> - -<p>Henry the Second followed the example of his grandfather, and had -his eldest son Henry crowned; but that ungrateful prince conspiring and -rebelling against him at his death, which likewise happened in the lifetime -of his father, the old king fearing the like consequences, refused to crown -his next son Richard; who conscious of his own ungrateful conduct, and -suspecting that this refusal proceeded from partiality to John, the youngest -and favourite son, stirred up those commotions and rebellions which broke -his father’s heart. Richard was the next heir, and did succeed, but not -merely in the right of next heir; for he assumed no title but that of duke -of Normandy, until he was elected and crowned. The title of John was -notoriously by election, and his son Henry the Third was the first who was -introduced to his subjects by the words, <i>Behold your king</i>, or words equivalent. -Those few who adhered to his father, immediately swore to him;<span class="pagenum"><a id="Page_139"></a>[139]</span> -but the majority, who were disaffected, did not submit but upon terms, the -restoration of the charters.</p> - -<p>From that day the lineal succession has been established, and the crown -is vested in the successor upon the death of his ancestor, and the maxim -prevailed of the king’s never dying; whereas before, the crown was in -abeyance, till coronation, and the date of the king’s reign was taken, -not as now, from the death of the former monarch, but from the day -that the succeeding one was crowned. Henceforth coronation became a -mere ceremony, though the form of an election is still continued in it. I -have been more particular in this detail, in tracing the origin of the hereditary -descent of the crown, to shew how false in fact, as well as in reason, -the notion is of its being founded either on divine right, or on any law of -man coeval with the monarchy<a id="FNanchor_194" href="#Footnote_194" class="fnanchor">[194]</a>.</p> - -<p>Having laid down the rules of descent in the old feudal law, in regard -to the sons of the last possessor, it will be proper next to mention how far it -admitted representation, or collateral succession; for at first both were excluded. -If a man had two sons, one of which died before him, leaving a -son, the grandson could not succeed to his grandfather, but the uncle was -sole heir. This was grounded partly on the presumption that the uncle was -of more mature age, and better qualified to do the service; but this could -not be the only reason, for the rule was general, and held where the grandson -was of full age and capacity. We must have recourse, therefore, to a -farther cause, which was also the same that, in those old times, prevented -collateral descents; for if a man had two sons, by the old law, the estate -was divided between them. If one of these died without issue, the brother -did not succeed to the share of the deceased, but it reverted, as an escheat, -to the lord. The reason of both these was, that he that claims by descent, -must claim through the last possessor, and derive his right from him; and -that right arose from the supposition of his being educated in the fealty of -the lord, that is, by the last possessor who had sworn fealty. Therefore the -grandson, being educated under the <i>patria potestas</i> of his father, who, dying -before the grandfather, had never taken the oath of fealty, was excluded -the succession, as not trained up by a real tenant; but the uncle was admitted<span class="pagenum"><a id="Page_140"></a>[140]</span> -to claim from the grandfather, the tenant under whom he was -bred<a id="FNanchor_195" href="#Footnote_195" class="fnanchor">[195]</a>.</p> - -<p>This rule was of some advantage to the feudal system at that time, as it -frequently prevented the too great crumbling of fiefs, when almost all of -them were divisible. For the same reason a brother could not succeed to a -brother, even in a paternal fief, because he was not educated by the last -possessor that had done fealty: and though this seems very unreasonable, as -he had been bred in the fealty of the lord, namely by the father, yet this -rule continued for ages, being greatly for the advantage of the king and -the great lords, in regard to their escheats; as every failure of a lineal descent -occasioned them to happen. Neither was it thought severe in those -early ages by the tenants. As all benefices were originally for life, it was a -great advantage to have them made descendible even under these strict -limitations<a id="FNanchor_196" href="#Footnote_196" class="fnanchor">[196]</a>.</p> - -<p>At length the necessity of Charlemagne’s grandsons, who had parted the -empire, and were in eternal broils, extorted from them, in France, a grant -of the grandson’s succeeding in his father’s share, by way of representation, -in imitation of the civil law, and also of brothers succeeding to brothers in a -paternal fief, but not in a new one. And about an hundred and fifty years -the like necessity of the emperor Conrad, who was embroiled with the Pope, -procured the same law for Germany and Italy<a id="FNanchor_197" href="#Footnote_197" class="fnanchor">[197]</a>.</p> - -<p>The extension of the right of collateral succession beyond brothers grew -up by degrees, not from any positive law. It was first extended to uncles -and cousin-germans, provided it was a fief descended from the grandfather; -afterwards to any the next cousin, to the seventh degree, descended -from the first purchaser; and at last to any, however remote, who could -prove their descent from the first purchaser. This was the rule in ancient -inheritances; but with respect to new ones, lately acquired, there grew up -a practice of granting them <i>as ancient</i> ones; <i>feudum novum, ut antiquum, datum</i>. -Here the fief, though really new, was, by means of this grant, supposed<span class="pagenum"><a id="Page_141"></a>[141]</span> -to proceed from some indefinitely remote ancestor, at any distance; -and therefore any one, who could prove himself descended from a common -ancestor of the last possessor, was admissible, and he that was nearest by the -rules of succession was preferred. In this case, therefore, the old rule of requiring -a proof, that the person claiming as heir was a descendant of the -body of any ancestor of the last possessor, would be absurd, as defeating the -tenure of investiture. Any ancestor <i>pro re nata</i> might be supposed the first -purchaser, to support the intention of the donor, in his directing it to be -considered as an ancient fief, although in fact modern. So in this case, if -the fief was masculine, any male relation, descended from male blood entirely, -was inheritable, even up to Adam, I mean, if he could prove his descent; -but females, and their descendants were excluded<a id="FNanchor_198" href="#Footnote_198" class="fnanchor">[198]</a>.</p> - -<p>If it was descendible to females, either by the particular terms of the -grant, or by the general law of the country, then, as it was supposed to descend -from any lineal ancestor <i>pro re nata</i>, that ancestor might be a female, -and the descendants of females, and they themselves might be admissible. -The rule then was, to establish in this case of a fictitious descent, the same -regulations as in the case of a real one. But here the root from whence the -right of descent was to spring, was inverted; for as there was no real ancestor, -an original purchaser, the person last seized, that is possessed of the fee, -was the person to be considered. As in the old and common case of inheritances -descending, the reckoning was downwards from the first acquirer; -in case of collaterals, when they were admitted, you begin to reckon lineally -upwards, and at every step enquire for collaterals descended from that -lineal ancestor you are upon at the time<a id="FNanchor_199" href="#Footnote_199" class="fnanchor">[199]</a>.</p> - -<p>A man purchases <i>feudum novum, ut antiquum</i>, and dies without heirs of -his body. This feud is, by the constitution of it, presumed to have descended -from some of his ancestors. To find out who is that ancestor, it -was likely to have descended from, you must look at the law of descents: -the father, in the first place, is supposed the person. His children, that is, -the brothers or sisters, or their descendants, in the first place; if none of -them, the grandfather by the father is supposed the person; then the -grandfather’s descendants. The uncles and aunts by the father, and their<span class="pagenum"><a id="Page_142"></a>[142]</span> -descendants, succeed in the second place. If none of them, then the great -grandfather’s by the grandfather and father descendants, the great uncles -and aunts, and their posterity; and if there are none of them, you still go a -step higher in the male line, till you can trace it no farther. But now you -begin to invert the rule of tracing up in the male ancestors, and so downwards, -and trace up to the female ancestor of the males, as supposing the -estate descended from her, or her ancestors. For instance, I have supposed -the descendants of the male line have failed in the great grandfather. His -wife, therefore, the great grandmother, is supposed the first purchaser; -for, upon account of the probability of the inheritance coming through -males, I trace up to her through the father and grandfather; her heirs, -therefore, shall succeed, first, lineal, then collateral, in the same manner -as if the estate had descended from a remote ancestor of her’s. If none such -can be found, we descend another step, namely, to the grandmother by the -father, and suppose the estate to have come from her line; and then heirs, -first lineal, then collateral, succeed according to their several ranks. If -none of these, so that there is no kindred on the side of the father, the presumption -is, that this supposed antient feud came from the mother’s family, -and therefore the heirs of her male ancestors are to be traced up, and discovered -in the same manner; and whenever they fail, the heir of the most remote -female ancestor, all through males; and failing them, the heir of the -next most remote, and so on, until the blood of the mother is spent; and -then the estate, for want of heirs, reverts to the lord, of whom it is holden.</p> - -<p>Such is the rule of descents of new purchases granted as if they had been -ancient inheritances; but this rule was, on the Continent, and anciently in -England, confined to such grants, and them only, wherein this clause appeared -in the investiture. But in the reign of Stephen, his necessity of gaining -adherents, and the same necessity of his competitor Henry the Second, -occasioned so many grants of this kind to be made, some originally, and -others on the surrender of old ones, that it hath since become the common -law of England, that purchases, that is, new acquisitions, are descendible to -any relation, however remote<a id="FNanchor_200" href="#Footnote_200" class="fnanchor">[200]</a>.</p> - -<p>It will be necessary to say something as to <i>feminine feuds</i>, which are a deviation -from the strict principles of the ancient law, which excluded them and<span class="pagenum"><a id="Page_143"></a>[143]</span> -their descendants entirely. They first arose from the woman’s being the -principal consideration of the grant; as when a lord gave lands in marriage -with his daughter, sister, niece, kinswoman, or any other female: here -the lands being partly given in consideration of the female blood, it was reasonable -they and their descendants should be inheritable. But this was still -an exception to the general law, and confined to those grants wherein it was -mentioned, until the number of those grants, at length prevailed to have -this order of succession considered as the general law, and the succession of -males remote, in exclusion of a nearer female (as in case of tail male) considered -as an exception. The monarchy of France, however, and of many -of the principalities of Germany, have retained the antient feudal law, in -absolutely excluding females and their descendants.</p> - -<p>The descent of imperial crowns to females, was of a much later date, than -that of lower fiefs: for here a manly capacity was looked upon as indispensibly -requisite. The first step was admitting a male representative for them, a -husband or a son. This began in Spain. Pelagius, who was of the blood -royal, having gathered a few of the Spanish fugitives together, after the -Moorish conquest, founded a pretty monarchy in the mountains of Asturias. -His son Favila dying without issue, the crown was given to his daughter’s -husband, and this continued the rule for many ages, where males failed. -But where the son of such female heir was of sufficient age to mount the -throne, he of course excluded both mother and father. At length, in the -thirteenth century, Europe, for the first time, saw a woman solely invested -with royalty, Joan the first of Naples; for Henry the first of England’s project -in favour of his daughter Maud, as we have said before, had miscarried. -Margaret of Denmark, Sweden and Norway, Joan the second of Sicily, -and Isabella of Castile, followed in the next century. In the following century -came Mary and Elizabeth in England, and many since in all parts of -Europe; so that at present the monarchies of Europe are descendible to -females in general, if we except France, and several but not all of the principalities -of the empire. Bohemia and Hungary have received a queen in -the person of the present empress in this present century, but so inveterate -are old customs and opinions, that when her faithful Hungarians resolved -to assist her to the last extremity, it was by saying, <i>moriamur pro rege nostro -Maria Teresa</i>, not <i>pro regina</i><a id="FNanchor_201" href="#Footnote_201" class="fnanchor">[201]</a>.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_144"></a>[144]</span></p> - -<h2 class="nobreak" id="LECTURE_XV">LECTURE XV.</h2> - -<p><i>The difference between allodial and feudal lands—The restrictions on the feudal -law—The decay of these—The history of voluntary alienations.</i></p> - -</div> - -<p>One great and striking difference between allodial and feudal lands -consisted in this, that the former entered into commerce. They -were saleable or otherwise alienable, at the will of the possessor, either by -act executed, and taking effect in his lifetime, or by will, to take effect -after his death. They were likewise pledges to the king for the good behaviour -of the owner, and therefore for his crimes forfeitable against him -and his heirs. They were also security to his fellow subjects for the debts -he might contract; and, therefore, by following the due course of law, attachable -and saleable, to satisfy the demands of a just creditor<a id="FNanchor_202" href="#Footnote_202" class="fnanchor">[202]</a>.</p> - -<p>In every one of these respects did fiefs, when they became descendible inheritances, -differ from them. The possessor was but an usufructuary, and his -power over his lands was checked and controlled by the interest others had -therein. These were the lord and the persons descended from the first purchaser. -The consent of the lord was absolutely necessary to the tenant’s alienation, -to prevent the introduction of an enemy or unqualified person into -the fief; but the consent of the lord alone was not sufficient, if there were -in being any persons entitled to the succession. Thus if A. is himself the -first purchaser of a fee, and hath a son, his alienation, even with the consent -of the lord, would hold good only during his own life; but if he had aliened -with the consent of the lord before issue had, this should be valid, and -bind the issue born afterwards. For here the alienation was made by all the -persons in being interested in the land, and the former contract is by their<span class="pagenum"><a id="Page_145"></a>[145]</span> -mutual act dissolved, nor is there any wrong done; for it is an absurdity to -say that a person not <i>in rerum natura</i> can suffer wrong: the consent therefore -of the son, or sons, if one or more of them were in being, was as necessary -as the lord’s in this case.</p> - -<p>If the lands descended from B. the first purchaser, to his son A. before -the introduction of collateral descent, the law was the same; but when -these were admitted, it varied for the same reason. A. could not alienate -with the consent of the lord and his sons, without the consent also of all -the collaterals intitled, that is, all the <i>agnati</i>, or male descendants of B. for -this would strip them of their right of succession. If it descended from C. -the grandfather, or from any more remote ancestor, the consent also of all -the male descendants of the grandfather, or that remote ancestor was required, -upon the same principle. By this we see, it was next to an impossibility, -that an estate which had been any time in a family (so many consents -were required) could be alienated at all. However, there was allowed -by that law a transfer of the fief in a particular case, even without -the consent of the lord. This was called <i>refuting the fief</i>; it was a resignation -of it to the person who was next in order of succession. Here was no -injury done to the lord, or the <i>agnati</i>, because it went in the same manner, -and to the same persons, as if the refuter was absolutely dead, <i>& quisque -juri suo renunciare potest</i>. For the same reasons no testaments of lands were -allowed, except the lord, and all others concerned were present and consenting; -which scarce ever happening, it became a maxim of the English law, -that lands were not devisable by will.</p> - -<p>Neither were the feudal lands originally forfeitable for the crimes of the -possessor for any longer time than his own life, if there were persons entitled -to the succession. But this rule of forfeiture was afterwards extended to -the issue of the criminal: for as the right of succession depended much on -the supposition the successor was educated in the fealty of the lord, this presumption -ceased where the father had actually broke his oath of fealty. And -at length, when the rule was established, that every person must claim -through him that was last seized, and make himself heir to him, the delinquency -of the predecessor became likewise a bar to collaterals.</p> - -<p><span class="pagenum"><a id="Page_146"></a>[146]</span></p> - -<p>Feudal estates also were not liable to the debts contracted by the feudatory. -For if the creditor might have sold them for debt, a wide door for -alienation had been opened, by means of fictitious debts, contracted by collusion -between the creditor and vassal. Or even if they were honest ones, -the lords and the heirs would have been deprived of their right. Neither -could the creditor attach the profits of the land during the life of the debtor; -for if he could, an improvident vassal might so impoverish himself, as to be -incapable of the duties of the fief.</p> - -<p>Such and so strong were the restrictions this old law laid on the feudatory. -But as times grew more settled, and the strictness of the military system -abated; as commerce increased, and with it luxury, the propensity to -alienation grew up, and became at length so strong, in every country, as -to be irresistable. And it is a speculation not only curious, but very useful -for the students of our law, to observe and remark its progress in England<a id="FNanchor_203" href="#Footnote_203" class="fnanchor">[203]</a>.</p> - -<p>The first step towards voluntary alienations arose from the practice of sub-infeoffing. -Originally, as I observed in a former lecture, although the -vassals of the king could infeoff, their vassals could not; but at the latter -end of the second race in France, when the power of the crown was declined, -and the great lords were in reality sovereigns, acknowledging only -a nominal dependance on the king, some of them, in order to strengthen -themselves, and to increase the number of their military followers, allowed -this privilege not only to their immediate vassals, but to sub-vassals also, to -an unlimited degree. And when this practice was once begun, the other -lords, for their own security and grandeur, were obliged to follow the -example. This practice of subinfeuding contributed much to the power of -the lords, and therefore was by them encouraged. But though it was intended, -at first, only to extend to part of the vassal’s fief, the usage of subinfeuding -the whole gained ground, to the great prejudice of the heirs; -when the terms of subinfeudation were no better than those of the first -grant; and of the lords also, who thereby lost frequently their profitable -fruits of tenure, their reliefs, wardships, and marriages; which, with respect -to the lords, was remedied in the reign of Edward the First, by the statute -of <i>Quia emptores terrarum</i> before mentioned<a id="FNanchor_204" href="#Footnote_204" class="fnanchor">[204]</a>.</p> - -<p><span class="pagenum"><a id="Page_147"></a>[147]</span></p> - -<p>In the mean time, free alienation was allowed in cities and boroughs; -partly because many of these were old Roman towns, and their lands and -houses allodial, and because those which were not so were founded by lords -on the same principles for the benefit of commerce, which could never have -flourished if a debtor had not full power over his property of all kinds to -satisfy his creditor; and if the creditor, in case he was unwilling, had not -power to compel him to sell for his just satisfaction. Alienations, however, -of one kind were permitted, namely, the founding of monasteries, and endowing -of churches. These, through the superstition of the times, were -looked upon as being equally beneficial to the feudal society as subinfeudation, -by engaging God in their interest; and even if the lords and their heirs, -who suffered by these grants, were willing to dispute them, they were unable -to contend with the omnipotent power of the pope and the clergy; -until at length the tyranny of the first, and the avarice of the last, provoked -both king and people to restrain them by the acts against Mortmain. -But no other alienations were yet allowed without consent, as before mentioned<a id="FNanchor_205" href="#Footnote_205" class="fnanchor">[205]</a>.</p> - -<p>In the reign of William Rufus a particular matter occurred, which opened -a way for alienation without the lords consent, and occasioned a prodigious -revolution in the landed property of Europe. This was the madness -of engaging in crusades for the recovery of the Holy Land. A crazy friar -returning from a pilgrimage to Palestine, where he saw the Christians maltreated, -began to preach up this expedition as the most meritorious of -works; and it is wonderful with what an epidemical contagion the enthusiasm -spread through all ranks of people. These pilgrims, who assumed the -cross, had no way of defraying the expence, but by the sale of their lands, -which their lords, if disinclined, dared not to gainsay, or obstruct so pious a -work. But indeed, most of them were conscientiously affected with the -same madness, as may be seen by the great number of kings, princes, and -lords, that beggared themselves in these fruitless enterprizes<a id="FNanchor_206" href="#Footnote_206" class="fnanchor">[206]</a>.</p> - -<p><span class="pagenum"><a id="Page_148"></a>[148]</span></p> - -<p>The pope and the kings concurred in inflaming this superstition, but -from different motives. The pope did it out of ambition and avarice. -The former he satisfied by declaring himself the head of the expedition, and -thereby attaching to himself and his see such multitudes of redoubted warriors -by the strongest of bonds, conscientious superstition. And indeed successors -in that chair afterwards made very good use of this example, by preaching -up crusades against such Christian kings and princes as disobliged them. -But the more immediate advantage he received, was the glutting his avarice -by a proper sale of dispensations to such as had rashly taken the cross, and -afterwards found themselves unable, or unwilling to fulfil the obligation. -The reason that induced the kings of Europe to promote this spirit, I mean -such of them as were not possessed with the frenzy themselves, was the hope -of abasing their too great and powerful vassals, which would naturally follow -from the alienation of part of their lands, to equip them for the expedition; -and a desire to facilitate the partition of these great seignories among females, -when the males were so frequently and miserably slaughtered<a id="FNanchor_207" href="#Footnote_207" class="fnanchor">[207]</a>.</p> - -<p>So many were the alienations of this kind, and so long were they continued, -that it is no wonder that the interest of the lord and the heirs began -to lose ground in the opinions of the people, which proceeded so far, as that, -in the other cases, the lord, on the payment of a moderate fine, either before -or after, was looked upon as obliged to consent to the alienation. -Let us now see how the liberty of alienation gained ground, particularly in -England.</p> - -<p>In Henry the First’s time, a man was allowed to alienate his purchase, -but not an estate that came by descent. This law says, <i>Acquisitiones suas det -cui magis velit; si Bocland autem habeat, quam ei parentes sui dederint, non -mittat eam extra cognationem suam</i><a id="FNanchor_208" href="#Footnote_208" class="fnanchor">[208]</a>.</p> - -<p>This liberty of alienation of purchases is not to be understood generally, -but only where the purchaser had no son; if he had any, it may be a doubt -whether he could alienate any part at this time. Certain it is, he could not -the whole, even in Henry the Second’s time. For thus Glanville lays<span class="pagenum"><a id="Page_149"></a>[149]</span> -down the law: <i>Si vero questum tantum habuerit, is qui partem terræ suæ donare -voluerit, tunc quidem hoc ei licet sed non totum questum, quia non potest filium -suum hæredem cohæredare</i><a id="FNanchor_209" href="#Footnote_209" class="fnanchor">[209]</a>.</p> - -<p>The practice of alienating lands by descent grew up more slowly. At -this time a part only was alienable, and that not freely, to all persons, or -for any consideration generally; but only in particular cases, first to the -church in Frankalmoigne; secondly, to one who had done services in war, -or to the fief in time of peace; thirdly, for the advancement of his family, -as in Frank-marriage with his daughter, sister, niece, or cousin. But every -day this liberty gained ground, until at length the interest of the heir entirely -vanished, and that of the lord began, in military tenures, to be little -considered, and not at all in socage. However, in Magna Charta some -check was given to that kind of alienation of the whole fief, that was carried -on under the pretence of subinfeudation. <i>Nullus liber homo det de -cætero amplius alicui vel vendat de terra sua quam ut de residuo terræ possit -sufficienter fieri domino feudi servitium ei debitum</i>; and this sufficiency was by -practice explained to the half of the fee<a id="FNanchor_210" href="#Footnote_210" class="fnanchor">[210]</a>.</p> - -<p>No provision being made in these laws for the consent of the lords, they -generally, though not always, lost their fines; and a method likewise was -invented to obviate their refusal, by levying fines in the king’s courts of -record, in this manner. They used to suppose that the parties had covenanted -to alienate; and all writs of covenant (being actions of public concern -to the justice of the kingdom) were sueable only in the king’s court; -and by consequence this covenant to alienate was sueable only there. The -superior court then being possessed of the matter, as an <i>adversary cause</i>, permitted -the parties (on a fine being paid to the king, in lieu of that which -he would have received at the end of the suit, from the party that failed) to -make an amicable agreement or end of the suit, which was done by the -party sued coming in, and recognizing, that is, acknowledging in court -the right of the demandant to the land. This method of conveyance by -fine grew up, and still continues to be one of the common assurances of the -realm. For being transacted in a court of record, it obviated the danger<span class="pagenum"><a id="Page_150"></a>[150]</span> -of future controversies between parties, or any dispute concerning the execution -of a deed, or the giving of livery and seizin<a id="FNanchor_211" href="#Footnote_211" class="fnanchor">[211]</a>.</p> - -<p>At length the statute of <i>Quia emptores terrarum</i>, already mentioned, was -made, as well to remedy the mischiefs the lords complained they suffered -by subinfeudation, namely, the loss of their fruits of tenure, as to settle the -doubt, as to the right of the tenants to alienate. This statute entirely takes -away the lords consent; for it gives the tenant free power to sell, or alien -the whole, or part of his tenancy, to whom he pleased. But then, in favour -of the lord, it establishes, that if the tenant parts with his whole interest -in the lands, namely, the fee simple, the <i>alienée</i> should not hold of -the <i>alienor</i>, but immediately from the alienor’s lord, by the same services, -by which he, the alienor, had holden. Thus were the lords, in one respect -secured in their rights, by the stopping the course of subinfeudations, -and the tenants got a free liberty of alienation without the consent of the -lord, or paying any fine to him. The king, however, not being named -expressly in this act, it was construed not to bind him, as I have said before; -and his consent was still required to the alienation of his tenants by military -service, according to the rule of Magna Charta; that is, if more than half -was alienated, so that the residue was deemed unsufficient to answer the services. -And this was put out of doubt by the statute <i>De prerogativa regis</i>, -made the 17th of Edward the Second, cap. 6.</p> - -<p>The bent towards free alienation, however, was so strong as to occasion -a further mitigation so soon after, as the first year of Edward the Third. -For then it was provided, that if the king’s military tenant alienated without -licence, contrary to the late act, the land so alienated should not be absolutely -forfeited as before, but that the king should be contented with a -reasonable fine in chancery. These compositions were sometimes dispensed -with, to encourage the tenants to attendance in hazardous expeditions; but, -except in those singular cases, they continued to be paid, until the reign of -Charles the Second, when knight’s service being abolished, they fell of -course along with it<a id="FNanchor_212" href="#Footnote_212" class="fnanchor">[212]</a>.</p> - -<p><span class="pagenum"><a id="Page_151"></a>[151]</span></p> - -<p>Such was the progress the alienation of land made by conveyance <i>inter -vivos</i>; but the bequeathing lands by last will did not keep equal pace with -it. The first step made thereto was by laying hold of the doctrine of <i>uses</i>, -which about the time of Richard the Second was invented by the clergy, to -elude the statutes of Mortmain, by which their advance from time to time -was checked. As in every feudal grant there were two estates, the absolute -propriety in the lord, a qualified property, namely, the possession and profits, -in the tenant; now that they were prohibited from taking the real -tenancy, they cunningly devised a means of subdividing the tenancy, by -separating the profits from the possession. When, therefore, a man -had a mind to alienate to the church, as he could not do it directly, -he infeoffed a person to the use of such a monastery. Here the feoffee -and his heirs were, in the construction of the common law, the proprietors, -but, in fact, were bare trustees for the monastery, for the use of -which they received the profits. But it may be asked, if the trustee or his -heirs would not suffer them so to do, where was their remedy. The courts -of common law allowed of no such division of estates at that time, nor would -they have suffered such necessary laws to be defeated by such collusion, -though they had been acquainted with these divided interests. They had -recourse, therefore, to chancery, where, it being always, to the time of -Henry the Eighth, filled with a churchman, they were sure to meet favour; -and this court claiming an equitable power to enforce persons conscientiously -to fulfil their engagements, compelled the trustee to support and -maintain the uses.</p> - -<p>These uses, once introduced, were applied to other purposes, particularly -to that I am now upon, the enabling persons to dispose of their lands -by will. The manner was thus: A. aliens his lands to B. to the use of A. -himself for his life, and, after his death, to such uses as he A. should, by -his last will and testament, appoint. B. was then compellable in chancery, -not only to suffer A. to take the profits during life, but after his death to -execute the directions of the will, and to stand subject to the use of such -persons as he appointed, and make such estates as he directed. This method -gained ground every day, as many persons chose to retain their power -of alienation in their own hands, to the last moment of their lives, and to -keep their heirs, or other expectants, in continual dependance. And it at<span class="pagenum"><a id="Page_152"></a>[152]</span> -length grew so common, that in Henry the Eighth’s time, it was thought -proper to give leave, without going through this round-about method, to -dispose of lands directly and immediately by will; of the whole of their socage -lands, and of two thirds of the lands holden by knight’s service. And -this latter tenure being, after the Restoration, turned into common socage, -all lands, not particularly restrained by settlement, are since become devisable; -whereas, before these laws, they were only so in particular places, -by local custom. But the statute that gives this power, in order to prevent -frauds, expressly orders such will to be in writing; whence arose a distinction, -as to the validity of wills of land, according as these lands had, or had -not, been before devisable by custom. For those that were so before, continued -devisable by will <i>nuncupative</i>, or without writing<a id="FNanchor_213" href="#Footnote_213" class="fnanchor">[213]</a>.</p> - -<p>But the reduction of the will into writing was not found sufficient to -prevent forgery and perjury, and therefore the statute of frauds and perjuries -has added other solemnities, as requisite to pass lands by will. It requires -that it shall be signed by the testator, or some other by his direction, -and attested by three witnesses in his presence.</p> - -<p>As to signing, it is insignificant where the signature is, whether at the -bottom, or the top, or in the context of the will, the name of the testator, -written by his own hand, in any place, being sufficient. And the putting -his seal to the will, though without his writing, has been judged sufficient; -for his seal is as much his mark, or sign, as his handwriting. As to the -attestation, the statute requires it to be in the testator’s presence; but it is -absolutely necessary, that he should look on and see it done. Therefore, if -it is attested in the room where he lies sick in bed, with his curtains undrawn, -this is a good attestation; or if it is attested in a neighbouring room, -and the door open, so that he might possibly see it done, this is in his presence. -But if the door be shut, or the place so situated that he could not by -any means see the attestation, the will is void.</p> - -<p>I shall next proceed to <i>involuntary alienation</i> of lands, namely, for payment -of debts; and then give an account of the origin and progress of -<i>estates tail</i>, which were introduced to restrain this power of alienation, and -to restore, in some degree, the old law of keeping estates in the blood of -the first purchaser.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_153"></a>[153]</span></p> - -<h2 class="nobreak" id="LECTURE_XVI">LECTURE XVI.</h2> - -<p><i>Involuntary alienations of feudal land—Talliage—Edward I. introduces the -first involuntary attachment of lands—Statutes enacted for this purpose—Their -effects—The origin of estates Tail.</i></p> - -</div> - -<p>The <i>involuntary</i> alienation of feudal land, namely, the attaching, -and afterwards the selling it for debt, kept pace pretty much, but -not strictly, with the voluntary alienation already treated of. It first began -in cities and trading boroughs, which were either the remains of old Roman -towns, and where, consequently, the estates were allodial; or else new -towns, founded either by the kings, or other great lords; or their demesnes, -for the benefit of trades and arts within their own districts. External -commerce, during those confused times, was little known or practised, the -Barbarians of the North infesting the coasts of the ocean, and the Saracens -and Moors, those of the Mediterranean. It was the interest, therefore, of -every lord who had such a town on his territory, to give it such privileges -as would make it flourish, and outrival the towns of like nature on the -lands of the king, or the neighbouring lords. For the natives of such -towns were no part of the feudal society, but were in the nature of socage -tenants in the early times, removeable, and consequently subject to be taxed, -or, as our law calls it, <i>talliagable</i>, from the French word <i>tailler</i> to cut<a id="FNanchor_214" href="#Footnote_214" class="fnanchor">[214]</a>.</p> - -<p>Talliage, consequently, was the cutting out a part from the whole of -the tenant’s substance, at the will of the lord. Yet this very power of talliage, -which the lords were not for a long time inclined to part with, joined -to their desire to make their towns flourish (that they might be able to bear -a greater talliage) put them under a necessity of making such provisions, -and granting such privileges, as were necessary for the use of trade and commerce, -and at length, in effect, destroyed that absolute power of taxation, -which the king and lords had all along claimed and exercised, and which at<span class="pagenum"><a id="Page_154"></a>[154]</span> -first, for their own interests sake (which no doubt they well understood) they -had used with great moderation. But after the discovery of the civil law at -Amalfi in Italy, in the reign of our Stephen, the kings of Europe, who -found therein an unlimited power of taxation in the emperor, were desirous -to establish the like authority in themselves; and for that purpose began -with oppressing their nobles with arbitrary scutages, or commutations for military -services; and the towns of their demesne with talliages, not only arbitrary, -but extravagantly beyond their power to pay without ruin<a id="FNanchor_215" href="#Footnote_215" class="fnanchor">[215]</a>.</p> - -<p>John of England was particularly famous for these extraordinary charges; -for though his title to the crown was, at that time, by many of his subjects, -and by others abroad, much doubted (as in prejudice of his elder -brother’s son Arthur then a minor) and his only just claim could be but -by parliamentary authority, the omnipotence of which was not then so universally -admitted, never was there a prince who carried his prerogative to -such extravagant and oppressive heights. This, at length, occasioned the -making <i>Magna Charta</i>; partly to assert and restore the ancient liberties of the -nation, which had been invaded; partly to alter the old law, in such particulars -as had been the engines of oppression. One of the chief of these latter -remedies was the taking away the right of talliage, unless consented to in -parliament. And now were the boroughs emancipated, and the burgesses -made freemen, which before they could hardly be called, while their effects -lay wholly at the mercy of the lord<a id="FNanchor_216" href="#Footnote_216" class="fnanchor">[216]</a>.</p> - -<p>In the next reign they advanced in importance; for as the treasure of the -kingdom was in their hands, they were sure to be favoured and courted on -both sides, during the fierce contests between the king and the barons. And -in the latter end of this reign it appears they had got admission into parliament, -which not a little increased their consequence. Edward the First was -a great favourer of merchants, and, for the security of their debts, introduced -the first involuntary attachment of lands by the act called <i>statute merchant</i>, -in the thirteenth year of his reign<a id="FNanchor_217" href="#Footnote_217" class="fnanchor">[217]</a>.</p> - -<p><span class="pagenum"><a id="Page_155"></a>[155]</span></p> - -<p>Before this time, no lands, except in boroughs by custom, were attachable -for debt, but only in the case of the king, who, by right of his prerogative, -could enter on the lands of his debtor, and receive the profits, until -he was paid. For the same political reason, the surety also for a debt to the -king, if he paid the debt, was allowed to come in the king’s place, and enjoy -the same privilege; but in all other cases, the chattles were the only mark -for the debt. This statute, after reciting that merchants had fallen into -poverty, for want of a speedy remedy for recovering their dues, provides, -that, in every city or great town, which the king should appoint, there -should be kept a <i>recognizance</i>, that is, the acknowledgement or confession of -debts due to merchants, and of the day of payment; and that, in case payment -was not made at the day, they may, or should, on the application of -the merchant, and inspection of the roll, imprison the body of the debtor until -payment; and if no payment was made within three months, (which -time the debtor was allowed to sell his chattles or lands) his chattles and lands -were to be delivered to the merchant creditor, at a reasonable valuation, or -<i>extent</i>, as it is called; that out of the profits he might satisfy himself. And -in case the debtor could not be found within the jurisdiction of the city or -town, or had no chattles or lands therein, then was the mayor to send into -chancery the recognizance of the debt, and the chancellor was to issue a writ -to the sheriff in whose bailiwick the debtor was or had effects, to act in like -manner. And so greatly was the merchant favoured, that tho’ this was but -an estate for years (it being certain, from the valuation, in what time the debt -would be paid), yet had he, with regard of maintaining actions to recover his -possession when deprived of it, the privileges of a free-holder given him, by -express provision in the act. Such was the favour shewn to merchants to -recover their just demands, nor were other creditors at this time left totally -unprovided for, in cases where there was a deficiency of chattles.</p> - -<p>In the same year a law was made for attaching the lands of persons, in favour -of creditors who were not merchants, but in a different manner, called -an <i>elegit</i>. I shall here use the words of the statute, as they are sufficiently -plain, and easy to be understood. “When debt is recovered or acknowledged -in the king’s courts, or damages awarded, it shall be, from henceforth, in -the election of him that sueth for such debt or damages, to have a writ to -the sheriff of <i>fieri faciat</i> of the lands and goods” (which was the old remedy<span class="pagenum"><a id="Page_156"></a>[156]</span> -against the chattles) “or that the sheriff shall deliver to him all the -chattles of the debtor, saving only his oxen and beasts of his plough, -and the one half of his land, until the debt be levied upon a reasonable -price or extent.” After this the act gives the same privilege as in case -of statute merchant, to the creditor dispossessed. From his making his -election for the extending the lands, the writ directed to the sheriff for -that purpose got the name of <i>elegit</i>. The difference of execution just mentioned -shews clearly in how superior a light the legislature regarded the interests -of commerce. That the debts to merchants, in whose prosperity the -whole community was concerned, might be levied as soon as possible, the -security by statute merchant gave possession of the whole of the land to the -creditor; but the writ of <i>elegit</i> gave him possession of no more than one half. -Originally men could not alien lands at all. Afterwards they were allowed -to alien, but not beyond the half of the fief; and this principle or maxim -was strongly regarded at the time the writ of <i>elegit</i> was framed, which was -before the statute of <i>Quia emptores terrarum</i>, which allowed alienation of -the whole. So that whatever stretches might be found necessary, from the -circumstances of merchandize, yet, with regard to the kingdom in general, -a small deviation only was made from the common law, and the <i>elegit</i> was -allowed to affect no more by operation of law than a man was supposed -capable of alienating by his own deed<a id="FNanchor_218" href="#Footnote_218" class="fnanchor">[218]</a>.</p> - -<p>Two reigns after, namely, the 27th of Edward the Third, when the mart, -or market of the standing commodities of England, namely, wool, woolfels, -hides, lead and tin, was removed from Flanders into England, and a court -merchant was erected in all such places where the staple was fixed, to be -held by the mayor of the staple, he had power given him to take recognizances -on the debts contracted at the staple, called <i>statute staple</i>, in the same -manner as of <i>statute merchant</i>; and as the effect thereof was the same as of -statute merchant, it need not be particularly repeated. However in some -time afterwards, statute merchant was, by custom, extended to others beside -merchants, and became one of the common assurances of the realm. The -statute staple was likewise extended upon surmise of the debt being contracted -at the staple; and though an act of Henry the Eighth in England restrained -this latter to its ancient bounds, yet, the same act framed a new kind<span class="pagenum"><a id="Page_157"></a>[157]</span> -of security in imitation of it, common to all the subjects, called a recognizance -on that act, which had all the effects and advantages of it<a id="FNanchor_219" href="#Footnote_219" class="fnanchor">[219]</a>.</p> - -<p>The statutes of Elizabeth and those since her time, concerning bankrupts, -have gone much further. They not only, in the cases they extend to, laid -the whole land open to the creditor, but, instead of a possession, and gradual -discharge of the debt, which was all that was given by the statute merchant, -<i>elegit</i>, or statute staple, they gave him a more speedy satisfaction, by enabling -him to procure a sale of the lands<a id="FNanchor_220" href="#Footnote_220" class="fnanchor">[220]</a>. But these later acts having never -been enacted in this kingdom, I shall content myself with having barely -hinted at them, and their effects.</p> - -<p>Voluntary alienations of land having gained ground, and become at -length established in England, contrary to the principles of the original -law; and it being allowed for a maxim, that he that had a fee simple, had -an absolute dominion over half of his land, to dispose of as he pleased, and, -in some cases, of the whole; it could not be, but that there would arise -many persons fond of perpetuating their estates in their families, and consequently -displeased at this power of alienation. The means they used to -attain their ends was under that maxim of law, <i>Tenor investituræ est inspiciendus</i>, -or, as we express it, <i>Conventio vincit & dat modum donationi</i>. Every man -therefore, absolute master of his estate, having a right to give it on what -terms he pleased, they began, not as before, to give lands to a man and his -heirs in general, for that would have given an absolute dominion, but to -heirs limited, as to the <i>heirs of his body</i>, or to the <i>heirs male</i> of his body, or -to the heirs of his body by such a woman. Here it was plain enough, that -none were intended to take, but such as came within this description; and -by this means they hoped to defeat the power of alienation, to secure the -estate to the persons described, and, in failure of them, the returning or -reversion of it to themselves or their heirs.</p> - -<p>But the judges complying with the universal bent of the times to the -contrary, did not give these grants that construction they expected, upon -the natural presumption, that every person will have heirs of his body, and<span class="pagenum"><a id="Page_158"></a>[158]</span> -that his posterity will continue for ever. They construed this to be a fee -simple; and yet, not entirely to disregard the intention of the donor, to be -a fee simple conditional; as if the words had been <i>to a man and his heirs</i>, -provided he have heirs of his body, and consequently to be alienable, and -forfeitable upon a certain event. And one great reason of making this -construction, I take to be the consideration of forfeiture for treason and -felony, which, by such grants, would be defeated by another construction, -and men thereby rendered more fearless to commit crimes in those troublesome -times<a id="FNanchor_221" href="#Footnote_221" class="fnanchor">[221]</a>.</p> - -<p>Let us see then what estate or power was in <i>donor</i> and <i>donée</i> immediately -by the grant; and what, upon the performance of the condition, namely, -the having issue. And first, the <i>donée</i> had immediately a fee simple upon -the grant, contrary to Britton’s opinion, that, before children born, he had -only an estate for life, and afterwards a fee. This appears from hence, -that if a man had aliened in fee before issue had, the donor could not have -entered upon the lands for the forfeiture, which, if he was tenant for life, -he might. For the alienation in fee of tenant for life is an absolute forfeiture, -and gives right of entry to the <i>lessor</i>. The <i>donée</i>, then, having presently -a fee simple in him, that is, an estate for ever, than which there can -be no greater; it was impossible the donor should have any actual estate or -interest in the lands. He had not, therefore, a <i>reversion</i> vested in him, that -is, a certain positive right of the lands returning to him or his heirs, as he -would have had, if an estate for life only had been granted. He had only -a bare <i>possibility of reverter</i>, in case the donée died without issue; or, leaving -any, that issue had failed.</p> - -<p>For the same reason, of the donée’s having a fee simple, no <i>remainder</i> -could be limited in such an estate. If land be given to A. for life or for -years, and after the efflux of the life or years to B., B. hath presently a remainder -in the lands for life, years, or in fee, according as the limitation of -the estate is; because it is certain that a life, or term of years, must expire. -But if land be given to A. and the heirs of his body, and, in failure of -such heirs, to B. and his heirs, this remainder to B., before the statute <i>De -Donis</i>, was void, for A. had immediately an estate for ever, and therefore<span class="pagenum"><a id="Page_159"></a>[159]</span> -the limitation over to B. was rejected, as repugnant to the estate it depended -upon.</p> - -<p>But though, by such a grant, the donée got a fee, it being clogged with -a condition, he had not, to all intents and purposes, an absolute power over -it, either with respect to the donor, or his own issue. If the donor aliened -before issue had, this was no bar to the donor, of his possibility of <i>reverter</i>; -but it was a bar to the issue born afterwards, to enjoy the estate tail. For -at this time fathers had a greater liberty to bar their children, than a stranger. -Therefore, in this case, the <i>alienée</i> and his heirs, were to enjoy the -lands while the donée, or any issue of his body remained. But whenever -they failed, the donor’s, or his heir’s possibility of reverter, was changed -into an actual reversion, and the land became his. For now, by a subsequent -event, it appeared, that the legal presumption of the estates continuing -for ever was ill founded. Neither, by the having of issue, was the -condition performed to all purposes, so as to vest an absolute fee in the -<i>donor</i>; for if the donée had died without issue, or if his issue failed, without -any alienation being made by either, in this case also, the donor’s possibility -was changed into an actual reversion. But by having issue, the -condition was so far performed, as to enlarge the power of the donée to -three special purposes; first, to alien absolutely, and thereby to destroy the -right of issue, and the possibility also of reverter in the donor; secondly, to -charge and incumber it to the prejudice of both issue and donor; and -thirdly, to forfeit it for treason or felony, to the prejudice of both also. -Such was the construction the judges made of these grants, which, we see, -gave, in almost all cases, an unlimited power of alienating, contrary to the -intention of the donor, and the form of the gift<a id="FNanchor_222" href="#Footnote_222" class="fnanchor">[222]</a>.</p> - -<p>But, in the thirteenth of Edward the First, the lords, willing to preserve -the grandeur of their families, obtained of that monarch the famous -statute of Westminster the second, called <i>De Donis</i>, which by these words, -<i>quod voluntas donatoris, secundum formam in charta Doni sui, manifeste expressam, -de cætero observetur, ita quod non habeant illi, quibus tenementum sic fuit -datum sub conditione, potestatem alienandi tenemenium sic datum, quo minus ad -exitum illorum, quibus tenementum sic fuerit datum, remaneat post eorum obitum,<span class="pagenum"><a id="Page_160"></a>[160]</span> -vel ad donatorem vel ad ejus hæredem, si exitus deficiat, revertatur</i><a id="FNanchor_223" href="#Footnote_223" class="fnanchor">[223]</a>, created -a new kind of inheritance, <i>estates tail</i>, which very much resemble the old -feudal donations, that were only descendible to the issue of the first feudatory. -Let us see the consequence of these words. First, since the will of -the donor was to be observed, it followed, that neither the donée, nor his -issue, should have power to alien, incumber, or forfeit: the consequence -of which was, that he could no longer have a fee simple, as these are inseparable -incidents to such an estate; but a lesser estate, called <i>Fee tail</i>, from, -the French word <i>Tailler</i> before mentioned, as being, like other lesser estates, -carved out of the fee simple.</p> - -<p>Were it to be asked, in whom did the fee simple reside? it is plain it -could be in none other but the donor, who had it originally in him. -Therefore, by this statute, the possibility of reverter, which the donor had, -was changed into an actual present interest, called a <i>reversion in fee simple</i>. -But it was not always necessary that the fee simple should be in the donor; -for estates tail, being now less than a fee simple, it became possible to limit -a remainder thereon which should be good: Thus, if a gift be made -to A. and the heirs of his body, and, in failure of such heirs, to B. and his -heirs; in this case, there is no reversion: for the donor hath parted with his -whole estate, but A. hath an estate tail, and B. a remainder in fee simple. -Many remainders may be limited on one another, as for instance, an estate -may be given to A. for years, remainder to B. for life, remainder to C. in -tail, remainder to D. in tail, remainder to E. in fee simple; but if the last -remainder is not in fee simple, but in fee tail, then is the reversion in fee -simple to the donor.</p> - -<p>However, although a tenant in tail after this statute could alien only for -his own life, his heir in tail was not allowed to enter upon the alienée without -first proving his right in a court of law, and this is what is meant by -saying, <i>though a tenant in tail could not destroy the estate tail by his alienation, -yet he could continue it</i>. The reason of this is, that all estates of inheritance -are presumed fee simple, until the contrary is proved, and it would be unjust -to remove a possessor, who came in by a title apparently fair, until the -weakness of that title appears judicially. This rule, however, extended<span class="pagenum"><a id="Page_161"></a>[161]</span> -only to estates corporeal, that lay in liveries, not to incorporeal ones, that lay -in grant; which shews that this maxim of its working a discontinuance proceeded -from the feudal principle, of protecting the possessor, because he -was to do the feudal duties.</p> - -<p>The statute to guard these inheritances from alienations, expressly provides, -that even a fine levied of them in the king’s courts of record should -be <i>ipso jure</i> null.</p> - -<p>The method of recovering such lands so discontinued, is by a writ called -a <i>Formedon</i>, from the words <i>forma doni</i>, of which writ there are three kinds, -according to the title of the persons who bring them; <i>formedon, in the reverter</i>, -<i>in the descender</i>, and <i>in the remainder</i>. <i>Formedon in the reverter</i> lies for the -donor or his heirs, and lay at the common law after the failure of issue, where -the alienation was before issue had; but since the statute, upon the failure -of issue, it lies, though the alienation be after. <i>Formedon in descender</i> lies for -the issue in tail, when the ancestor has aliened, and is given by the statute. -The form of it is as follows, “The king to the sheriff of ⸺ greeting, command -A. that he justly, and without delay, restore to B. such a manor, -&c. which C. gave to D., and the heirs of his body, and which, after -the death of the said D., ought to descend to the said B. the son of the -said D. by the form of the aforesaid gift, as he says.” <i>Formedon in remainder</i> -lies for a remainder man in tail, or his issue, after the particular estate -previous to his (whether it be for years, life, or in tail) is spent. In the reverter, -instead of the word <i>descend</i>, it is <i>revert</i>; in the remainder, <i>remain</i><a id="FNanchor_224" href="#Footnote_224" class="fnanchor">[224]</a>.</p> - -<p>Having shewn the origin of estates tail, I shall next consider their consequences, -and future fortune.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_162"></a>[162]</span></p> - -<h2 class="nobreak" id="LECTURE_XVII">LECTURE XVII.</h2> - -<p class="center"><i>The consequences and history of estates Tail.</i></p> - -</div> - -<p>The following are the words of my lord Coke. “When all estates -were fee simple, then were purchasers sure of their purchases, -farmers of their leases, creditors of their debts; the king and lords had -their escheats, forfeitures, wardships, and other profits of their seignories: -and for these, and other like cases, by the wisdom of the common law, all -estates of inheritance were fee simple; and what contentions and mischiefs -have crept into the quiet of the law by these fettered inheritances, -daily experience teacheth us.” By this enumeration of his, of the advantages -that attended estates of fee simple, it is easy to see who were the -sufferers, and wherein they suffered, by the introduction of estates tail. -But it is a little surprizing that he should make such a slip as to say, that before -this creditors were secure of their debts by all estates being fee simple; -when the first statute that gave them any hold of lands was made after this -statute <i>De Donis</i>, in the latter end of the same year of the king’s reign, the -thirteenth of Edward the First. Those, indeed, who had landed estates at -that time, and their posterity, were great gainers hereby; but the king and -the nation in general were sufferers. The nation suffered by the check that -commerce, then just arising, received, by so much lands becoming unalienable, -and the crown suffered in a double respect; first by the opportunity -it afforded to strengthen and explain the great estates of the lords, and secondly -by the security it gave when enlarged.</p> - -<p>Soon after the conquest, the estates of the English lords were enormous. -William brought over an army of 60,000 men, not levied by himself, (for -he was unable to raise or defray the expences of a third of that number, out -of the province of Normandy,) but consisting chiefly of adventurers, who -engaged in the expedition on the promise of forfeited lands, in proportion -to the numbers they brought with them. Accordingly, some had seven<span class="pagenum"><a id="Page_163"></a>[163]</span> -hundred manors, others five, four, three, two, one hundred, or less; insomuch, -that all the lands of England, (if we except the king’s demesnes, -the church lands, and the little properties annexed to cities and boroughs) -were in no more than about seven hundred hands, the principal of which -were petty princes, like the dukes and counts of France<a id="FNanchor_225" href="#Footnote_225" class="fnanchor">[225]</a>.</p> - -<p>William was sensible, from the experience of that country, how dangerous -such large grants would prove to the authority of the crown, and he -accordingly moderated them as well as his circumstances would permit. -That the king might not be too far removed from the view of the lower -people, by the interposition of the great lords, their immediate superiors, -he did not, as in France, leave the whole judicial power, and the profits of -the county courts in the earls; but justice was administered in the king’s -name by his sheriffs; who, as being deputies of the earls, were called <i>Vice -Comites</i>, and who accounted for the profits to the king, except as for the -one third, which in England was the earl’s proportion; and in after times, -upon new creations, the third also was referred to the king, and only a certain -stipend out of it, generally twenty pounds a year, assigned to the earl<a id="FNanchor_226" href="#Footnote_226" class="fnanchor">[226]</a>.</p> - -<p>Another means he used of disarming them of the too great powers immoderate -estates would have given them, was avoiding the rock the French -court had split on, the giving vast territories, lying contiguous to each -other, in fief, whereby all the followers were immediately in the view and at -the call of the lords. William acted more prudently. He generally gave to -an earl twenty knights fees, which was the proportion of an English earldom -in the county, whose title he bore; perhaps thirteen, or a barony, in another -county; and the remainder, he was to give, either in baronies in distant -counties, or more generally in single knights fees, dispersed through all England. -This was his general method, except to a few of his near relations, -to whom he gave palatinates with <i>jura regalia</i>, which were exactly in the nature -of the French dutchies and counties<a id="FNanchor_227" href="#Footnote_227" class="fnanchor">[227]</a>.</p> - -<p>Another prudent step he took for the benefit of his successors, was the -making all his grants <i>feminine fiefs</i>. For as, in a course of several descents,<span class="pagenum"><a id="Page_164"></a>[164]</span> -it must happen that lineal males would frequently fail, by admitting the -daughters in that case, these vast inheritances were frequently broken, as -females succeeded equally. His successors followed his plan, and for that -purpose, not only permitted, but encouraged their great vassals to alien, -and dismember their properties; and whenever a great escheat fell, were -always sure, unless there was a prince of the blood to be provided for, to -divide it into many hands.</p> - -<p>Both kings and people received the advantages, and would have received -more, if this policy had continued. The immediate tenants of the -crown being encreased in number, and lessened in wealth, were not able to -confederate so easily against the crown; and, sensible of their being weakened, -had occasion for the support of the lower rank of the people, whom, -consequently, they treated with more gentleness and equality than before. -But this statute of entails put a stop to the progress that course of things -were in; estates became unalienable, and indivisible. The property of no -lord could lessen; and if it happened, as it frequently did, that they acquired, -either by descent or marriage, or the purchase of an estate not tied up, -a new entail connected it inseparately with the old one; and thus the lords, -towards the end of the Plantagenet line, grew up to such a pitch of power, -as was dangerous to the constitution, and when they were divided into the -factions of the York and Lancaster, deluged the land with blood.</p> - -<p>The king saw the mischief betimes, but the mischief was done. The -act was passed, and to get it repealed was impossible. They had nothing -left, but to find means to elude it by construction of law, wherever they -could. The scheme was readily embraced by the judges and lawyers, who -had raised great outcries against these fettered inheritances, and were joined -by all the trading and industrious people, and even by the younger branches -of these great families, whose fathers were thereby disabled to provide for -them.</p> - -<p>The first means found out was by <i>collateral warranty</i>. Before this statute -all warranties by an ancestor bound the heir at law, although no land descended -from that ancestor, upon the presumption that no man would disinherit -his heir, without leaving him a recompence. But this could be no<span class="pagenum"><a id="Page_165"></a>[165]</span> -longer the law in general; for, if so, the ancestor in tail might, by his -warranty, defeat the tail, contrary to the statute, which says, <i>The will of -the donor shall be observed</i>. They therefore made now a distinction between -a lineal warranty and a <i>collateral</i> one. Lineal warranty is that which is made -by tenants in tail; collateral, that which is made by one who is a stranger -to the entail. In the first case they held it no bar, unless assets descended; -that is, an estate in fee simple, equal in value. But in the latter case, that -no assets descended, they held it at bar as at common law<a id="FNanchor_228" href="#Footnote_228" class="fnanchor">[228]</a>.</p> - -<p>To illustrate this by an example, If lands are given to A. and the heirs -male of his body, and A. aliens with warranty, this is lineal warranty, and -shall not bind the son; but if B. the brother of A. who has nothing to say -to the entail, joins in the alienation with warranty, or releases to the alienee -with warranty, or disseizes A, and then aliens with warranty, and dies without -issue, so that A’s son is his heir, this warranty is collateral to the entail, -and without assets should bind the son of A, as at common law. At first -view it may seem surprising how this construction gained ground against the -express words of the statute, <i>Voluntas donatoris de cætero observetur</i>; for the -will of the donor was certainly as much defeated by a collateral, as by a -lineal warranty; but the judges took advantage of the preamble of the -act, which, reciting the mischief, speaks only of the alienation of the tenant -in tail, that is, of lineal warranty. They restrained, therefore, out of disfavour -to these fettered estates, the general words in the enacting part, to -the particular case mentioned in the preamble, on this ground, that the -common law was not to be altered without it appeared undeniable that the -legislator intended it; and here, as to collateral alienation, they are silent. -This was the first device used to defeat estates tail, namely, by getting a -collateral relation, whose heir the issue in tail was to be, to concur in the -alienation, and to bind himself and heirs to warranty; which was generally -obtained for a small consideration, as such person could never be a gainer -by the estate tail, since it could in no case come to him.</p> - -<p>When once this rule of collateral warranty barring an estate tail, was -settled, attempts were made to prevent its taking effect, and to continue -such estate notwithstanding. Jude Richel, in Richard the Second’s time,<span class="pagenum"><a id="Page_166"></a>[166]</span> -led the way; he having settled lands on his eldest son in tail; remainder to -his second son in tail; adds, that the lands are given on this condition, -that, if the eldest son should alien, that instant his estate should cease and -determine, and the land remain to the second son and the heirs of his body. -Here he imagined he had got clear of collateral warranty, because the first -estate was to determine, and the second to commence immediately on the -alienation, and before any collateral warranty could descend on the second. -But the judges determined this condition to be void; for which Littleton -gives three reasons, drawn rather from the art of law, than from the principles -of plain reason<a id="FNanchor_229" href="#Footnote_229" class="fnanchor">[229]</a>. The true ground seems to be this:</p> - -<p>In every reign, from Edward the First down to Edward the Fourth, bills -were brought into parliament to repeal the statute <i>De Donis</i>, as Coke informs -us, but had constantly miscarried, as the estates of the majority in parliament -were entailed. The only relief found out at that time against their -mischiefs was this collateral warranty; and if Richel’s conditions were to -be adjudged good, all estates tail would have been made with such conditions, -and there would have been an end of that method of defeating them. -The same was the fate of a similar settlement of Judge Thirning, who took -the advice of his cotemporary judges, in wording his condition so as to -make it effectual; but their successors were of a different opinion, and rejected -it. However, these collateral warranties not being to be got in all -cases, the relief was but partial, and extended only to particular cases. -And the tenant in tail himself could by no act of his, in concurrence -with any other person, except a collateral ancestor of the issue in tail, bar -them.</p> - -<p>At length the judges found out a device, by a fiction in law, to enable -him to bar his issue, and all remainders, and reversions. A. brings his -action real against B, tenant in tail, and alledges the lands in tail to be his -A’s right and inheritance, when in truth he hath no title thereto; B. comes -in, and voucheth C. to warranty, who enters into warranty, and after, -when he should defend, makes default, so judgment is given for A. against -B. and for B. to recover in value against C. Here, though C. has no land -to render in value, the judges have construed B, and all that should come<span class="pagenum"><a id="Page_167"></a>[167]</span> -after him, to be barred; because if C. ever after purchased lands, these -lands might be recovered from him, by virtue of the former judgment; -and so there was a possibility of a recompence. Though this decision at -first created great outcries, and even in Henry the Eighth’s reign was but -weakly defended in equity and conscience, by the author of <i>Doctor and Student</i>, -yet the judges, for the public good, constantly adhering to it, and -these common recoveries being taken notice of and approved of by subsequent -acts of parliament, are at length grown to be common assurances of -lands, and, passing in the court of record, are the best securities of estates<a id="FNanchor_230" href="#Footnote_230" class="fnanchor">[230]</a>.</p> - -<p>The bearing of estates tail, <i>by fine</i> passed in the king’s courts, grew up -another way, and is founded on an act of parliament in Henry the Seventh’s -reign, and is indeed, properly speaking, a partial repeal of the statute <i>De -Donis</i>, since it puts it in the tenant in tail’s power to destroy it, by observing -certain solemnities. Though common recoveries had been invented -some years before, yet as they had not had time to grow up to such a degree -of firmness as to be sufficiently depended upon, their legality was still -doubted, and it was not certain that future judges would give them the -same construction which their predecessors had done. Therefore, that politic -prince Henry the Seventh, who saw, in all its lights, that superiority -which the preservation of landed property in their families gave to the nobles, -a superiority which had cost some of his predecessors their lives and -crowns, freed lawyers from the trouble of inventing future devices against -entails, by getting the famous act passed in the fourth year of his reign, -which made a fine, with proclamations to conclude all persons, strangers as -well as privies<a id="FNanchor_231" href="#Footnote_231" class="fnanchor">[231]</a>.</p> - -<p>It was the purport of, and so it is expressed in the statute <i>De Donis</i>, that -a fine levied of entailed lands should be <i>ipso jure</i> null, and it is the intent of -this act, on the contrary, that a fine, levied with the prescribed solemnity, -should be valid to bar the persons therein intended to be barred. There is -a clause, indeed, in this act, saving the right and interests of all persons, -which accrued after the ingrossing of the fine, they pursuing their rights<span class="pagenum"><a id="Page_168"></a>[168]</span> -within a certain time after they accrued. This clause was apparently thrown -in to make the act pass, and to deceive the enactors into an opinion, that it -would not affect estates tail; and on this clause a doubt occurred in that -reign, whether the issue of tenant in tail could be barred by this statute, and -that, notwithstanding by the tenor of it, privies were barred. The question -was, whether the statute meant privies to the fine, or privies to the estate of -the person levying it? The issue were not privies in the first sense, but were -in the latter. The judges embraced the opportunity this ambiguity gave -them, of defeating entails, and bound the issue by the fine. A statute of -the succeeding prince approved of that construction, gave it retrospect, and -prevented all ambiguity for the future<a id="FNanchor_232" href="#Footnote_232" class="fnanchor">[232]</a>.</p> - -<p>Thus were estates tail no longer certain perpetuities, but defeasible upon -performing certain requisite solemnities. Still however they continued not -to be forfeitable for crimes, which was a point not to be got over without -an act of parliament, and there was little likelihood of obtaining such an -one; but Henry the Eighth snatched the lucky opportunity his situation -gave him, of gaining this important point, in the 26th year of his reign, -when he had quarrelled with the Pope, and all hope of accommodation -vanished; when a sentence of excommunication was denounced against -him, and numbers of his subjects, many of them of great fortunes, bigotedly -attached to the old religion, were known to meditate rebellion. The -parliament, the majority of which were of the new profession, seeing no -other means to preserve the security of the state, and the protestant religion, -yielded at length to the passing of an act for that purpose<a id="FNanchor_233" href="#Footnote_233" class="fnanchor">[233]</a>.</p> - -<p>However, there were not wanting persons after this, willing to create -perpetuities, in which they were always disappointed by the decision of the -judges. The first device was by giving estates upon condition, that if tenants -in tail should levy a fine, or suffer a recovery, the estate should cease, -and go over to the next issue intitled. But the judges rejected such condition, -for the same reason as in Richel’s case. They adjudged the right of -barring by a fine or recovery to be an incident inseparable to a fee tail, and<span class="pagenum"><a id="Page_169"></a>[169]</span> -all conditions repugnant thereto idle and void; for how could the law suffer -that an estate, by previous act of the donor, should, upon a judgment at -law, become vested in any other person than him who recovered? These -ingenious conveyancers, finding that the limitation upon breach of the condition -came too late, as the estate had already gone in another channel, -framed the condition thus; that <i>if tenant in tail should go about to levy</i>, &c. -<i>or make any covenant to levy, or hold any communication about levying</i>, &c. <i>the -estate should then</i>, &c. But these were all condemned upon the old principle, -and still more for their vagueness and uncertainty.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_170"></a>[170]</span></p> - -<h2 class="nobreak" id="LECTURE_XVIII">LECTURE XVIII.</h2> - -<p><i>The constitution of a feudal monarchy—The dignity and revenues of the King—An -examination of his power as to the raising of taxes and subsidies.</i></p> - -</div> - -<p>As, in my former lectures, I drew a general sketch of the nature and -form of the governments that prevailed among the northern nations -whilst they remained in Germany, and what alterations ensued on their being -removed within the limits of the Roman empire, it will be now proper -to shew, in as brief a manner as may consist with clearness, the nature and -constitution of a feudal monarchy, when estates were become hereditary, -the several constituent parts thereof, and what were the chief of the peculiar -rights and privileges of each part. This research will be of use, not only to -understand our present constitution, which is derived from thence, but to -make us admire and esteem it, when we compare it with that which was its -original, and observe the many improvements it has undergone. From -hence, likewise, may be determined that famous question, whether our -kings were originally absolute, and all our privileges only concessions of -theirs; or whether the chief of them are not originally inherent rights, and -coeval with the monarchy; not, indeed, in all the subjects, for that, in old -times, was not the case, but in all that were <i>freemen</i>, and, as all are such -now, do consequently belong to all.</p> - -<p>To begin with the king, the head of the political body. His dignity -and power were great, but not absolute and unlimited. Indeed, it was impossible, -in the nature of things, even if it had been declared so by law, -that it could have continued in that state, when he had no standing force, -and the sword was in the hand of the people. And yet it must be owned -his dignity was so high, as to give a superficial observer some room, if he -is partially inclined, to lean to that opinion. All the lands in his dominions -were holden of him. For, by degrees, the <i>allodia</i> had been changed into, -and supposed to have been derived from, his original grant, and consequently -revertible to him. But then, the land proprietors had (on fulfilling the<span class="pagenum"><a id="Page_171"></a>[171]</span> -conditions they were bound to) a secure and permanent interest in their -possessions. He could neither take them away at pleasure, nor lay taxes or -talliages on them by arbitrary will, which would have been little different. -Since, in Magna Charta, we find the people insisting that the king had no -right to assess the quantity of escuage, which was a pecuniary commutation -for military service, nor to lay talliages on his other subjects, but that both -must be done in parliament. He was a necessary party to the making new -laws, and to the changing and abrogating old ones; and from him they received -their binding force, insomuch that many old laws, tho’ passed in parliament, -run in the king’s name only. For, in those days, persons were -more attentive to substance than forms; and it was not then even suspected, -in any nation of Europe, that any king would arrogate to himself a -power so inconsistent with the original freedom of the German nations. -Nay, in France, to this day, the king’s edicts are not laws, until registered -in parliament, which implies the consent of the people, tho’ that consent is -too often extorted by the violent power that monarch has assumed over the -persons and liberty of the members of that body<a id="FNanchor_234" href="#Footnote_234" class="fnanchor">[234]</a>.</p> - -<p>The dignity of the king was supported, in the eyes of the people, not -only by the splendor of his royalty, but by the lowly reverence paid him -by the greatest of his lords. At solemn feasts they waited on him on the -knee, or did other menial offices about his person, as their tenures required, -and did their homage and fealty with the same lowly and humiliating -circumstances that the meanest of their vassals paid to them. His person -likewise was sacred, and guarded by the law, which inflicted the most -horrible punishment for attempts against him; neither was he to be resisted, -or accountable for any private injury done personally by himself, on any -account whatsoever. For the state thought it better to suffer a few personal -wrongs to individuals, than to endanger the safety of the whole, by -rendering the head insecure.</p> - -<p>But the greatest of the kingly power consisted in his being entirely entrusted -with the executive part of the government, both at home and abroad. -At home justice was administered in his name, and by officers of his appointment.<span class="pagenum"><a id="Page_172"></a>[172]</span> -He had, likewise, the disposal of all the great offices of the -state, with an exception of such as had been granted by his predecessors in -fee, and of all other offices and employments exercised in the kingdom immediately -under him. Abroad he made war and peace, treaties, and truces -as he pleased. He led his armies in person, or appointed commanders; -and exercised, in time of war, that absolute power over his armies that is -essential to their preservation and discipline. But how was he enabled to -support the expence of the government, or to provide for the defence of -the kingdom, or carry on a foreign war; since, if he was not furnished in -that respect, these high-sounding prerogatives had been but empty names, -and the state might have perished? and if he could at pleasure levy the necessary -sums, he being sole judge of the necessity, both as to occasion and -quantity, as Charles the First claimed in the case of ship-money, the state of -the subject was precarious, and the king would have been as absolute a monarch -as the present king of France or Spain<a id="FNanchor_235" href="#Footnote_235" class="fnanchor">[235]</a>.</p> - -<p>But abundant provision was made on this head, and that without over-burdening -the subject, for supporting the ordinary expences of the government. -A vast demesne was set apart to the king, amounting, in England, -to one thousand four hundred and twenty-two manors, as also many other -lands, which had not been erected into manors. Besides these, he had the -profits of all his feudal tenures, his worships, marriages, and reliefs; the -benefit of escheats, either upon failure of heirs or forfeiture; the goods of -felons and traitors; the profits of his courts of justice; besides many other -casualties, which amounted to an immense revenue; insomuch, that, we -are informed, that William the Conqueror had L. 1061: 10s. a-day, that is, -allowing for the comparative value of money, near four millions a-year; -so that Fortescue might well say, that, originally, the king of England was -the richest king in Europe. Such a sum was not only sufficient for the occasions -of peace, but out of it he might spare considerably for the exigencies -of war<a id="FNanchor_236" href="#Footnote_236" class="fnanchor">[236]</a>.</p> - -<p>This revenue, however great, was not sufficient to support a war of any -importance and continuance, besides the extraordinary expence of government.<span class="pagenum"><a id="Page_173"></a>[173]</span> -It remains, therefore, to see what provision this constitution made, -in addition to what the monarch might spare, for the defence of England, -as it might be attacked either by land or sea. For the former, every sea-port -was, in proportion to its ability, obliged to find, in time of danger, at -their own expence, one or more ships properly furnished with men and -arms; which, joined to such other ships as the king hired, were, in general, -an overmatch for the invaders. But if the enemy had got footing in -the country, the defence at land was by the knights or military tenants, -who were obliged to serve on horseback in any part of England; and by -the socage tenants, or infantry, who, in case of invasion, were likewise -obliged to serve, but not out of their own country, unless they themselves -pleased, and then they were paid by the king.</p> - -<p>With respect to carrying on <i>offensive</i> war into the enemy’s country, the -king of England had great advantages over any other feudal monarch. In -the other feudal kingdoms the military vassals were not obliged to serve in -any offensive war, unless it was just, the determination of which point was -in themselves; but William the Conqueror obliged all to whom he gave -tenures to serve him <i>ubicunque</i>; and though he had not above three hundred, -if so many, immediate military tenants under him, yet these were -obliged, on all occasions, to furnish sixty thousand knights compleatly -equipped, and ready to serve forty days at their own expence. If he wanted -their service longer, he was obliged to obtain it on what terms he could. -There is, therefore, no reason to wonder that the king of England, though -master of so comparatively small a territory, was, in general, an overmatch, -in those early times, for the power of France. As for <i>infantry</i> in his foreign -wars, he had none obliged to attend him. Those he had were socage tenants, -whose services were certain; so that he was obliged to engage, and -pay them, as hired soldiers. As the socage tenants in his dominions had a -good share of property, and enjoyed it without oppression, it is no wonder -the English archers in those days had a gallant spirit, and were as redoubtable -as the English infantry is at present.</p> - -<p>To support these military tenants, who served after the necessary time, -and likewise his infantry (as the surplus of his ordinary revenue would not -suffice) he had <i>customs</i> and <i>talliages</i>, and <i>aids</i> and <i>subsidies</i> granted by parliament. -These customs, or so much paid by merchants on the exportation<span class="pagenum"><a id="Page_174"></a>[174]</span> -of goods, were of two kinds; as paid either by <i>merchant strangers</i>, or by -<i>merchant denizens</i><a id="FNanchor_237" href="#Footnote_237" class="fnanchor">[237]</a>.</p> - -<p>The customs paid by merchant strangers were not originally settled by -act of parliament, but by a compact between the merchant strangers and -king Edward the First. In the Saxon times the king had a power of excluding -strangers from his kingdom, not merely with an intention of inducing -their own people to traffick, but chiefly to keep out the Danes, who -were the masters of the sea; lest, under pretence of trade, they might get -footing in, and become acquainted with the state of the kingdom. They -were, accordingly, admitted by the kings upon such terms as the latter -were pleased to impose; but Edward, who had the success and prosperity -of his kingdom at heart, came to a perpetual composition with them; gave -them several privileges, and they gave to him certain customs in return. -What shews they had their origin from consent is, that the king could not -raise them without applying to parliament. The customs of natives or -denizens were, certainly, first given to the king by parliament; though -this has been denied by some, merely because no such act is to be found, -as if many of the antient acts had not been lost; but there are acts and -charters still extant, which expressly say they were appointed and granted -by parliament, without the power of which they could not be either altered -or enlarged.</p> - -<p>The difference between the customs and the other aids I have mentioned, -<i>viz.</i> talliages and subsidies, is, that the latter were occasional, -granted only on particular emergencies, whereas the <i>customs</i> were for ever. -If it be asked how they came to be granted in that manner, we must refer -back to the original state of boroughs and their inhabitants, traders, in the -feudal law. In France, the Roman towns were taken into protection, and -had their antient privileges allowed them; but in the series of wars that -happened in that country for ages, every one of them in their turns were -stormed, and reduced to vassalage, either to the king or some other great -lord; and as, now, these lords had learned that the Roman emperor laid -on taxes at his pleasure, it was but natural they should claim the same right, -especially over towns they had taken in war. The burgesses, therefore, became<span class="pagenum"><a id="Page_175"></a>[175]</span> -in the nature of villains, not indeed of common villains, for that -would absolutely have destroyed trade, but with respect to arbitrary taxation, -which, however, if the lord was wise, was never exorbitant. In England, -I apprehend, they became villains; for the Saxons were a murdering -race, and extirpated the old inhabitants. However, wise kings, considering -the advantages of commerce, by degrees, bestowed privileges on certain -places, in order to render them flourishing and wealthy; and at length, about -the time of Magna Charta, or before, when every uncertain service was varying -to a certainty, this privilege was obtained for merchant adventurers. -But the other burgesses, that did not import or export, and likewise villains, -were still talliageable at will. This was restrained by Magna Charta, which -declares all talliages unlawful, unless ordained by parliament<a id="FNanchor_238" href="#Footnote_238" class="fnanchor">[238]</a>.</p> - -<p>To come to the latter head, whether taxes, aids, and subsidies can be -assessed by the king, as sole judge of the occasion, and the <i>quantum</i>—or -whether they must be granted by parliament, was the great and principal -contest between the two first princes of the unfortunate house of Stuart and -their people, and which, concurring with other causes, cost the last of them -his life and throne. To say nothing of the divine hereditary right urged on -the king’s behalf, and which, if examined into strictly, no royal family in -Europe had less pretensions to claim, both sides referred themselves to the -antient constitution for the decision of this point. The king’s friends urged -that all lands were holden from him by services, and that this was one of -his prerogatives, and a necessary one to the defence of the state. They -produced several instances of its having been done, and submitted to, not -only in the times of the worst, but of some of the best kings; and as to -acts of parliament against it, they were extorted from the monarchs in particular -exigencies, and could not bind their successors, as their right was -from God.</p> - -<p>The advocates of the people, on the other hand, insisted, that, in England, -as in all other feudal countries, the right of the king was founded on -compact; that William the Conqueror was not master of all the lands in -England, nor did he give them on these terms; that he claimed no right -but what the Saxon kings had, and this they certainly had not; that he<span class="pagenum"><a id="Page_176"></a>[176]</span> -established and confirmed the Saxon laws, except such as were by parliament -altered; that he gave away none but the forfeited lands, and gave -them on the same terms as they were generally given in feudal countries, -where such a power was in those days unknown. They admitted, that, in -fact, the kings of England had sometimes exercised this power, and that, -on some occasions, the people submitted to it. But they insisted, that most -of the kings that did it were oppressors of the worst kind in all respects; -that the subjects, even in submitting, insisted on their ancient rights and -freedom, and every one of these princes afterwards retracted, and confessed -they had done amiss. If one or two of the best and wisest of their kings -had practised this, they insisted that their ancestors acquiescence once or -twice, in the measures of a prince they had absolute confidence in, and at -times when the danger, perhaps, was so imminent as to stare every man in -the face, (for it was scarce ever done by a good prince) as when there was -not a fleet already assembled in the ports of France to waft over an army, -should not be considered as conveying a right to future kings indiscriminately, -as a surrender of their important privileges of taxation. They insisted -that these good and wise kings had acknowledged the rights of the people; -that they excused what they had done, as extorted by urgent necessity, for -the preservation of the whole; that, by repeated acts of parliament, they had -disavowed this power, and declared such proceedings should never be drawn -into precedent. They observed, that there was no occasion for the vast -demesne of the king, if he had this extraordinary prerogative to exert whenever -he pleased. They denied the king’s divine right to the succession of -the crown, and that absolute unlimited authority that was deduced from it. -They insisted that he was a king by compact, that his succession depended -on that compact, though they allowed that a king intitled by that compact, -and acting according to it, has a divine right of government, as every -legal and righteous magistrate hath. They inferred, therefore, that he was -a limited monarch, and consequently that he and his successors were bound -by the legislative, the supreme authority<a id="FNanchor_239" href="#Footnote_239" class="fnanchor">[239]</a>.</p> - -<p>The advocates of the king treated the original compact as a chimera, and -desired them to produce it; which the other side thought an unreasonable -demand, as it was, they alledged, transacted when both king and people<span class="pagenum"><a id="Page_177"></a>[177]</span> -were utterly illiterate. They thought the utmost proof possible was given -by quoting the real acts of authority, which the Saxon kings had exercised; -among which this was not to be found; that the Norman kings, though -some of them had occasionally practised it, had, in general, both bad and -good princes, afterwards disclaimed the right, and that it never had (though -perhaps submitted to in one or two instances) been given up by their -ancestors, who always, and even to the face of their best princes, insisted -that it was an encroachment on those franchises they were intitled to by -their birthright.</p> - -<p>Such, in general, were the principles on which the arguments were -maintained on both sides: for to go into <i>minutiæ</i>, would not consist with -the design of this undertaking. I apprehend it will be evident from this -detail of mine, though I protest I designed to represent both sides fairly, -that I am inclined to the people in this question. I own I think that any -one that considers impartially the few monuments that remain of the old -Saxon times, either in their laws or histories, the constant course since the -conquest, and the practice of nations abroad, who had the same feudal -policy, must acknowledge, that though this right was claimed and exercised -by John, Henry the Third, Edward the First, Second, and Third, Richard -the Second, and Henry the Eighth, it was in the event disclaimed by every -one of them, by the greatest of our kings, Edward the First and Third, -and Henry the Eighth, with such candour and free will, as inforced confidence -in them; by the others, in truth, because they could not help it. I -hope I shall stand excused, if I add, that the majority of those who engaged -in the civil war, either for king Charles, or against him, were of the same -opinion. For, had he not given up this point, (and indeed he did it with -all the appearances of the greatest sincerity) he would not have got three -thousand men to appear for him in the field. But, unfortunately for his -family, and us, (for we still feel the effects of it from the popish education -his offspring got abroad) his concession came too late. He had lost the -confidence of too many of his people, and a party of republicans were -formed; all reasonable securities were certainly given; but upon pretence -that he could not be depended upon, his enemies prevailed on too many to -insist on such conditions, as would have left him but a king in name, and -unhinged the whole frame of government. Thus the partizans of absolute<span class="pagenum"><a id="Page_178"></a>[178]</span> -monarchy on one side, and the republicans, with a parcel of crafty ambitious -men, who for their own private views affected that character, on the -other, rented the kingdom between them, and obliged the honest, and the -friends to the old constitution, to take side either with one party or other, -and they were accordingly, for their moderation and desire of peace, and a -legal settlement, equally despised which ever they joined with<a id="FNanchor_240" href="#Footnote_240" class="fnanchor">[240]</a>.</p> - -<p>I shall make but one observation more; that though it is very false reasoning -to argue from events when referred to the decision of God, as to the -matter of right in question; I cannot help being struck with observing, that -though this has been a question of five hundred years standing in England, -the decision of providence hath constantly been in favour of the people. If -it has been so in other countries for two hundred or two hundred and fifty -years past, which is the utmost, let us investigate the causes of the difference, -and act accordingly. The ancients tell us it is impossible that a brave and -virtuous nation can ever be slaves, and, on the contrary, that no nation that -is cowardly, or generally vitious, can be free. Let us bless God, who hath -for so long a time favoured these realms. Let us act towards the family -that reigns over us, as becomes free subjects, to the guardians of liberty, -and of the natural rights to mankind; but above all, let us train posterity, -so as to be deserving of the continuance of these blessings, that Montesquieu’s -prophecy<a id="FNanchor_241" href="#Footnote_241" class="fnanchor">[241]</a> may never appear to be justly founded.</p> - -<p>“England (says he) in the course of things, <i>must</i> lose her liberties, -and then she will be a greater slave than any of her neighbours.”</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_179"></a>[179]</span></p> - -<h2 class="nobreak" id="LECTURE_XIX">LECTURE XIX.</h2> - -<p class="center"><i>The King’s power as to the making, repealing, altering, or dispensing with laws.</i></p> - -</div> - -<p>Having, in the last lecture, begun to draw the outlines of a feudal -monarchy, particularly, as it antiently was in England, in order that -it may be more easy to understand the nature of our present constitution; -and to see how far, and in what particulars, it has deviated from its original, -either for the better, or the worse; and having, for that purpose, begun -with the regal prerogatives, and particularly with that important one, -the raising of money, it will be proper to proceed to the king’s power as to -the <i>laws</i>, either in the making, repealing, altering, or dispensing with them: -for these powers are now exercised by the sovereigns in almost all the monarchies -that were antiently feudal, and have been claimed likewise in England. -That this power could not originally have been in the king, in any -feudal state, is plain from the detail I have given of the old German governments, -and of the gradual progress and formation of the European -kingdoms from thence; and it would not only be an entertaining, but useful -study for gentlemen of fortune, to trace, through the history of every nation, -the several steps whereby the liberties of the people have been undermined, -until the whole power hath settled in the monarch; but I shall content -myself with a few observations on this subject, drawn from the History -of England, and such as, in my apprehension, will be sufficient to settle -this point as to us.</p> - -<p>If the monarchies on the continent were not absolute in this respect, much -less could the Saxon kings pretend to such a power, from the very nature of -the foundation of their kingdoms. The Franks, the Goths, the Burgundians, -and others on the continent, were led to conquest by those who had -been previously their kings, and who had a stable and settled authority over -them. Very different was the settlement of the Saxons in Britain. Neither -Hengist, nor any of their first kings, had been kings in Germany. They -were mere leaders of companies of freebooters, who had associated themselves<span class="pagenum"><a id="Page_180"></a>[180]</span> -first for plunder, and afterwards to fix themselves in new seats, in -imitation of the other German nations. Their leaders, therefore, could -have no powers, but what were conferred upon them by their followers; -and that <i>law-making</i> was not one of those powers, appears from the frequent -meetings of their <i>witenagemots</i>, which was the name they gave to -their general assemblies, or parliaments; and from all the laws of theirs -now extant being made in them. It was the boast of the good and wise -king Alfred, that “he left the people of England as free as the internal -thoughts of man,” a speech which could never have proceeded from the -mouth of one who had the least notion of the almighty power of kings over -the laws. His successors were of the same opinion. The law of Edward -the Confessor, which was ratified by the Conqueror, says, <i>Debet rex omnia -rite facere in regno, & per judicium procerum regni</i>, and if <i>omnia</i>, surely the -making and repealing of laws, the most important of all<a id="FNanchor_242" href="#Footnote_242" class="fnanchor">[242]</a>.</p> - -<p>Our historians and records from that time down undeniably shew who, -in every age, were the legislators, and that the kings alone were not so. -The same is expressly delivered by all the old writers on the law, Glanville, -Bracton, Britton, Fleta and Fortescue. Nay, some of them, in their zeal -for liberty, have gone so far, as to pervert the meaning of the civil law, -which, in their time, was in high repute, and to deny the absolute power of -legislation to the Roman emperor. The civil law says, <i>Quod principi placet -legis habet vigorem</i>; but how doth Bracton comment upon it? <i>Id est non -quicquid de voluntate regis temere præsumptum est, sed animo condendi jura, sed -quod consilio magistratuum suorum, rege auctoritatem præstante, & habita super -hoc deliberatione & tractatu, recte fuerit definitum<a id="FNanchor_243" href="#Footnote_243" class="fnanchor">[243]</a>.</i></p> - -<p>It must, however, be owned that many of our princes were very desirous -of assuming this power. In the reign of our Henry the First, a perfect -copy of the civil law being discovered at Amalfi, the princes of Europe -got an idea of a monarchy more powerful and absolute than either kings -or people had for many centuries before any notion of; and they were, in -general, desirous enough to stretch, if they could, their limited prerogative -to the height of the antient imperial despotism; but to do this by their own<span class="pagenum"><a id="Page_181"></a>[181]</span> -authority was impossible. A wiser way was pursued. The excellency of -this law was, on every occasion, extolled, not only as providing remedies, -and determining, in many cases, where the feudal customs were silent, but -on account also of its justice and equity; praises that, it must be owned, do -belong to this law where the absolute authority of the prince is not concerned. -Foundations for the teaching this law were established in all the -universities, and the proficients therein were sure of ample encouragement<a id="FNanchor_244" href="#Footnote_244" class="fnanchor">[244]</a>.</p> - -<p>The popes, likewise, who wanted to set themselves up in the seat of the -old emperors, contributed not a little, in those days of ignorance, to spread -it; so that it is not wonderful that it got ground in every country almost -on the continent; and being melted into, and conjoined with the feudal, -customs, contributed not a little to the destruction of the freedom of the antient -constitutions. The same method was attempted in England, but not -with the like success. The foundation of professorships, the introducing -that law, and its forms, into the courts that were more immediately under -the king’s influence, as the courts of the constable, the admiral, and of the -universities, and the high employments its professors obtained, sufficiently -shew the fondness many of our kings had for it. But the common lawyers -and parliament perceived the design, and foresaw the consequences that -might follow. Their opposition was steady and successful; and if they did -not banish it from the courts wherein it had got footing, at least they so limited -and circumscribed it, as to prevent its future progress.</p> - -<p>The kings who had any wisdom or prudence, in order to dissemble their -real design, gave way to these restrictions, and waited for more favourable -opportunities; but the imprudent and haughty Richard the Second avowed -himself an open patron to this law. When the duke of Ireland, the archbishop -of York, and others his minions, were accused in parliament of high -treason, and the evidence being known to be so full as that they must be -convicted, he made this weak attempt to screen them. He got his judges, -who were his creatures, to declare the proceedings against these persons null -and void, as not being regulated according to the forms prescribed by the<span class="pagenum"><a id="Page_182"></a>[182]</span> -civil law: but the barons, provoked at such a bare-faced attempt, insisted -they were regular, as agreeable to their own customs, and declared positively -they would never suffer England to be governed by the Roman civil law, -and passed sentence of high treason against the judges<a id="FNanchor_245" href="#Footnote_245" class="fnanchor">[245]</a>.</p> - -<p>Whence that king’s fondness for this law arose, may be seen from the -use he put it to, the protection of the instruments of his tyrannical administration; -and from the many wild and unguarded declarations he made, -especially that relative to his commons, <i>that slaves they were, and slaves they -should be</i>, and to his parliament, <i>that he would not at their request discharge the -meanest scullion in his kitchen</i>. But tho’ this prince was pleased to say, that -<i>the laws were in his breath, and that he could make and unmake them at -his pleasure</i>, he did not think the time was come to put that vaunt in execution. -He took, therefore, another way of usurping the legislative power. -Having gained over a majority of the returning officers, and either intimidated -or gained over the most powerful of the nobility, he called the famous -parliament at Shrewsbury, after having nominated to the returning -officers whom they should return; and, as he expected, this parliament, if -so it may be called, was complaisant enough to compliment the king with -his heart’s desire. The former sentence against the judges was reversed, -and consequently the civil law set up as the standard in trials of treason. -And they indirectly transferred the whole legislative power to the sovereign -in the following manner.</p> - -<p>As there had been many petitions left unanswered, and many motions -undecided, they gave the power of deciding these, or other matters that -might arise before the next parliament, to the king, twelve peers, and six -commoners. For this committee, they chose such persons, the majority of -whom were at the devotion of the king, and gave him and the majority -power to fill up vacancies; thereby rendering the calling any future parliament -absolutely unnecessary. Thus was the constitution subverted, and in -its stead set up an <i>oligarchy</i> in appearance, but in truth an absolute monarchy. -But as wisely and happily as Richard thought he had conduced this -affair, by which he supposed he had gained his long wished-for end, neither -the seeming authority of parliament, nor the anathemas thundered in the<span class="pagenum"><a id="Page_183"></a>[183]</span> -pope’s bull against the contravenors, could satisfy the people that they were -not stripped of their ancient rights, or that the king and his committee were -rightful legislators. What sentiments the nation entertained appears, from -their deserting him as one man, and following the first standard that was set -up against him<a id="FNanchor_246" href="#Footnote_246" class="fnanchor">[246]</a>.</p> - -<p>Since the days of this unfortunate Richard, no king of England hath, -in open and express terms, assumed to himself singly the right of legislation. -Though James the First plainly claimed it, by implication, in many of his -speeches, particularly in those famous words of his, <i>that as it was blasphemy -for man to dispute what God might do in the plenitude of his omnipotence, so was -it sedition for subjects to dispute what a king might do in the fulness of his power</i>. -But it would be doing injustice to the house of Stuart not to acknowledge -that some of the princes before them, particularly the Tudors, tho’ they -did not pretend to make laws, yet issued out many proclamations, or <i>acts of -state</i>, as they were afterwards called, to which they exacted the same unlimited -obedience as if they had been laws enacted by parliament. This is a -point worthy consideration; for if all proclamations, or acts of the king and -his council, require unlimited obedience, it is to little purpose whether we -call them laws or not, since such they are in effect. But this, I think, will -be pretty plain, if we make a proper distinction between such proclamations, -or acts of the king, as are particular exertions of the executive power, -which the law and constitution hath entrusted him with, and such as, affecting -the whole people, should in any wise alter, diminish, or impair the rights -they were before lawfully in possession of.</p> - -<p>To give some few instances of the first sort. The appointment of magistrates, -the proclaiming war or peace, the laying on embargoes, or performance -of quarantine, the ordering erection of beacons in times of danger of -an invasion, the granting of escheated or forfeited estates, and many more, -are the antient and undoubted prerogatives of the king alone, and the subject -who resists, or disobeys, in such cases, is as much a <i>rebel</i>, or disobedient -subject, as if these acts were exercised by the whole legislature. But -with respect to making general rules and ordinances, affecting the previous -rights of the people, the case is very different. For if such were to be universally<span class="pagenum"><a id="Page_184"></a>[184]</span> -obeyed, it is equivalent to saying, that subjects have, properly -speaking, no rights at all, but hold every thing at the will of the king; a -speech which the most despotic monarch in Europe would not venture to -advance.</p> - -<p>However, I will not carry this so far as to deny that there may cases -happen wherein the king may have this right, and wherein his proclamations -and orders, even relating to such points, ought to be obeyed. The -cases, I mean, are those of a foreign invasion, or intestine rebellion, when -the danger is too imminent to attend the resolutions of parliament. In such -cases the constitution is, for a time, suspended by external violence, and as -<i>salus populi suprema lex est</i>, every man is under an obligation to use his utmost -endeavours to restore it, and, consequently, obliged to obey him, to -whom the constitution has particularly entrusted that care. Instances of this -kind did happen during the confusions raised by the houses of York and -Lancaster, and the princes were accordingly obeyed. These precedents -doubtless gave a handle to their successors, who had no competitors to the -throne, to exercise the same power in more settled times. But this was -used, at first, in a cautious and sparing manner; and Henry the Eighth, -who was a monarch as unlikely to make undue condescensions to his people -as ever lived, was glad to derive it from the grant of parliament, that his -proclamations should have the force of laws, which was, in truth, giving -into his hands the legislative power for life<a id="FNanchor_247" href="#Footnote_247" class="fnanchor">[247]</a>.</p> - -<p>His great successor, Elizabeth, carried this practice farther, and it will -be worth while to discover the reason why a people, in antient times, so -jealous of their privileges, should to the one prince explicitly give up, and -quietly suffer the other to usurp this power, so essential to a limited constitution. -And the cause I take to be the critical state the nation stood in with -respect to religion. The bulk of the people, glad to be delivered from the -yoke of papal tyranny, and dreading its restoration, were willing to arm -their princes with a power sufficient to protect their religion from foreign -and domestic enemies; and about religion indeed, this power was at first -principally exercised, on the footing of the papal supremacy being transferred -to the king. Their end was attained: Papists and Puritans were<span class="pagenum"><a id="Page_185"></a>[185]</span> -both kept under, and happy in the enjoyment of their religion, they did not -consider the consequences; that this very weapon might be used, by a -prince of another stamp, to root out the very religion they were so fond of, -and that, by admitting this exertion of power in a matter of so high consequence, -it would naturally be used in others that appeared of less<a id="FNanchor_248" href="#Footnote_248" class="fnanchor">[248]</a>.</p> - -<p>This was what accordingly happened. Proclamations on other points -were issued; and monopolies in trade were introduced. All monopolies, undoubtedly, -were not destructive to trade. Where a new traffick has been -discovered, and one that requires a large expence, and is liable to many -hazards, it is very reasonable that the first undertakers should have the -trade for a time confined to them, that, by the prospect of extraordinary -profit, they may be encouraged to promote and settle that commerce on a -solid bottom. Such monopolies, instead of hurting, tend to the promotion -of traffick, and are not without similar instances in former times, I mean -the kings of England appointing the towns for the staple; and had Elizabeth -and James confined themselves to the erection of the Russia, the Turky, -and East India companies, and that for a limited term, their conduct would -have deserved the highest applause; but that was far from being the case. -Monopolies were introduced in the antient, the most common and most -necessary commodities, to the great impoverishment of the nation by the -advance of prices.</p> - -<p>At first it may seem strange that the wise Elizabeth, who, on all occasions, -seemed to have her people’s wealth and ease at heart, should follow -so destructive a course. But the great end of all her actions was the securing -herself on the throne, and one of the principal means she used for that -end, was the asking money from her people as seldom as possible. Hence -proceeded the long leases of the crown lands, at small rents and large fines, -and hence all the monopolies, which she sold to the undertakers; but better -had it been for her subjects, to have raised the sums she wanted by an additional -subsidy, or an easy tax, than to pay to the monopolists what they had -advanced, with their exorbitant profits besides. What Elizabeth began out -of policy, James continued, to supply his profusion, to such an extraordinary -degree, as disgusted his people, provoked his parliament, and at last<span class="pagenum"><a id="Page_186"></a>[186]</span> -made himself ashamed, insomuch that he revoked above twenty. And now -no monopoly can be raised but by act of parliament, except in case of a new -invention, and that but for a short term of years<a id="FNanchor_249" href="#Footnote_249" class="fnanchor">[249]</a>.</p> - -<p>I come now to the <i>dispensing power</i>, another prerogative which the Stuarts -claimed, and which cost the last of them the throne. As no state can -subsist without mercy as well as justice, the king hath the power of distributing -this mercy, and exempting a convicted criminal from the penalty of -the law, but this is only where the conviction is at his suit; thus the king -can pardon a murderer convicted on an indictment in the king’s name, but -if he was convicted on an <i>appeal</i> by the next relation, the king cannot. The -pardon belongs to the appellant. But there is a wide difference between a -<i>pardon</i>, that is remission of punishment after the fact, and <i>dispensing</i>, which -is giving a previous licence to break the law. A general dispensation is, in -fact, a repeal, and a particular one is a repeal <i>quod hunc</i>, and therefore can -belong only to the legislature. The Roman emperors, and the popes, as -legislators, assumed this power, and Henry the Third, an apt pupil of his -lord and master the pope, introduced the practice into England. In his -reign a patent, with a <i>non obstante</i> to any law whatsoever, was produced -into court before Roger de Thurkeby, and this honest judge was astonished -at the innovation, as Matthew Paris tells us in these words: <i>Quod cum comperisset, -ab alto ducens suspicia de prædictæ adjectionis appositione, dixit, heu, -heu hos utquid dies expectavimus, ecce, jam civilis curia exemplo ecclesiasticæ, -conquinatur, & a sulphureo fonte rivulus intoxicatur</i><a id="FNanchor_250" href="#Footnote_250" class="fnanchor">[250]</a>.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_187"></a>[187]</span></p> - -<h2 class="nobreak" id="LECTURE_XX">LECTURE XX.</h2> - -<p><i>Lords of Parliament or Peers—Earls and Barons—The earlier state of Baronies -in England—The Barones majores & minores—Barons by writ and by letters -patent—The different ranks of Nobility.</i></p> - -</div> - -<p>Next in rank to the king are the <i>lords</i>, that held immediately of -him by military service, as long as that species of tenure subsisted; -and whom, from their privilege of sitting in parliament in their own rights, -are frequently called <i>Lords of Parliament</i>, and in common speech are called -<i>Peers</i>, though that word properly signifies any <i>co-vassals</i> to the same lord. -Thus every immediate vassal of a baron are peers of that barony, and the -accurate description of the great personages I am speaking of is <i>Pares Regni</i>. -Of these there were, antiently, two ranks only, in England, <i>Earls</i> and -<i>Barons</i>. Indeed, abroad also, to speak properly, there were but two likewise: -for there was no difference in power and privilege between the <i>dukes</i> -and <i>counts</i>, or <i>earls</i>. But as every earl is a baron, and something more, and -as it is a maxim of our law, that every lord of parliament sits there by virtue -of his barony, it will, in the first place, be necessary to see what a -baron is.</p> - -<p>The word <i>baron</i> of itself originally, did not, more than peer, signify an -immediate vassal of the king; for earls palatine had their barons, that is, -their immediate tenants; and, in old records, the citizens of London are -stiled barons, and so are the representatives of the cinque ports called to -this day. Baron, therefore, at first signified only the immediate tenant of -that superior whose baron he is said to be, but by length of time it became -restrained to those who, properly and exactly speaking, were <i>barones regis -& regni</i>, and even not to all of these, but to such only as had manors and -courts therein. For though, by the principles of the feudal constitutions, -every immediate military tenant of the crown, however small his holding, -was obliged to assist the king with his advice, and entitled likewise to give -or refuse his assent to any new law or subsidy, that is, to attend in parliament.<span class="pagenum"><a id="Page_188"></a>[188]</span> -This attendance was too heavy and burthensome upon such as had -only one or two knights fees, and could not be complied with without their -ruin. Hence arose the omission of issuing writs to such, and which, being -for their ease, they acquiesced in, attendance in parliament being considered -at that time as a burthen. Thus they lost that right they were entitled to -by the nature of their tenure, until the method was found out of admitting -them by representation. Hence arose the distinction between <i>tenants by -barony</i>, and <i>tenants by knight service in capite</i> of the king. The former -were such military tenants of the king, as had estates so considerable as qualified -them, without inconvenience, to attend in parliament, and who were -therefore entitled to be summoned. The <i>quantum</i> of this estate was regularly -thirteen knights fees and one third, as that of a count or earl was -twenty; that is, as a knight’s fee was then reckoned at twenty pounds <i>per -annum</i>, the baron’s revenue was four hundred marks, or two hundred sixty-six -pounds thirteen shilling and four-pence, and the earl’s four hundred -pounds, answering in value of money at present to about two thousand six -hundred, and four thousand pounds yearly<a id="FNanchor_251" href="#Footnote_251" class="fnanchor">[251]</a>.</p> - -<p>Such was the nature of all the baronies of England for about two hundred -years after the conquest; and they are called <i>baronies by tenure</i>, because -the dignity and privileges were annexed to the lands they held; and -if these were alienated with the consent of the king (for without that they -could not) the barony went over to the alienée. The manner of creating -these barons was by investiture, that is, by arraying them with a robe of state, -and a cap of honour, and girding on a sword, as the symbols of their dignity. -Of these Matthew Paris tells us there were two hundred and fifty in -the time of Henry the Third, and while they stood purely on this footing, it -was not in the king’s power to encrease the number of the baronies, though -of barons perhaps he might. For as William the Conqueror was obliged to -gratify several of his great officers according to the number of men they -brought, with two or more baronies, whenever these fell into the hands of -the crown by escheat, either for want of heirs, or by forfeiture, it was in -the king’s power, and was his interest, to divide them into separate hands. -The same thing likewise happened, when, by an intermarriage with an<span class="pagenum"><a id="Page_189"></a>[189]</span> -heiress, more baronies than one came into the hands of a nobleman, and -escheated to the crown<a id="FNanchor_252" href="#Footnote_252" class="fnanchor">[252]</a>.</p> - -<p>But the number of these feudal baronies could not, strictly or properly -speaking, be encreased by the king; for they could be created only out of -lands, and there were no lands vacant to create new ones out of, for the -king’s demesnes were, in those days, unalienable. However, we find, at -the end of Henry the Third’s reign, and even in John’s, that the number of -baronies were actually encreased, and a distinction made between the <i>barones -majores</i>, and <i>minores</i>. The <i>majores</i> were those who stood upon the old -footing of William, and had lands sufficient in law, namely, the number of -knights fees requisite. The <i>minores</i> were such as held by part of a barony; -as when an old barony descended to, and was divided among sisters; in -which case, when the husband of the sister whom the king pleased to name, -was the baron of parliament; or else were newly carved out of the old baronies -that had fallen in by escheat; as supposing the king had granted six -knights fees of an old barony to one, to hold with all the burthens, and to -do the service of an entire barony, and the remaining seven and one third to -another, on the same terms. But the attendance of these minor barons also, -at length became too burthensom for their circumstances, and many of -them were glad to be excused. The kings took then the power of passing -by such as they thought unable, by not sending them writs of summons, -and John extended his prerogative even to omit summoning such of the -<i>majores</i> as he imagined were inclined to oppose him. This however at -length he was obliged to give up: For in his Magna Charta it is said, <i>Ad -habendum commune consilium regni faciemus summoneri archiepiscopos, episcopos, -abbates, commites, & majores barones regni sigillatim, per literas nostras</i><a id="FNanchor_253" href="#Footnote_253" class="fnanchor">[253]</a>.</p> - -<p>The <i>barones majores</i> were then fully and plainly distinguished from the -<i>minores</i>, and I think it will not be doubted they were such as had the full -complement of knights fees that made up an antient barony; and, accordingly, -we find in 1255, when Henry the Third had neglected summoning -some of these, the others refused to enter on any business, <i>Quia omnes, -tunc temporis, non fuerunt, juxta tenorem Magnæ Chartæ suæ, vocati, et ideo,<span class="pagenum"><a id="Page_190"></a>[190]</span> -sine paribus suis, tunc absentibus, nullum voluerunt tunc responsum dare, vel auxilium -concedere vel prestare</i>. No king since, ever omitted to summon all the -greater nobility, until Charles the First was prevailed upon to forbid the -sending a writ to the Earl of Bristol by Buckingham, who was afraid of being -accused by that nobleman; but on the application of the house of lords, -and their adjourning themselves from day to day, and doing no business, -the writ at last was issued.</p> - -<p>In the reign of Henry the Third also, the king’s prerogative of summoning -or omitting the lesser barons was likewise ascertained by an act of parliament -since lost, as we find by these words from history: <i>Ille enim rex -(scilicet Henricus Tertius) post magnas perturbationes, & enormes vexationes -inter ipsum regem, Simonem de Morteforti, & alios barones, motas & sopitas, statuit -& ordinavit, quod omnes illi commites & barones regni Angliæ, quibus ipse -rex dignatus est brevia summonitionis dirigere, venirent ad parlamentum suum; -& non alii nisi, forte, dominus rex alia illa brevia illis dirigere voluisset</i><a id="FNanchor_254" href="#Footnote_254" class="fnanchor">[254]</a>. And -from henceforth no nobleman could sit in parliament without a writ. But -there was this difference between the greater and the lesser barons, that the -former had a right to their writ <i>ex debito justitiæ</i>, to the latter it was a matter -of favour; but when summoned, they, being really barons, had the same -rights with the rest, though sitting, not by any inherent title, but by virtue -of the writ. The other lesser barons, who were generally omitted to be -summoned, by degrees mixed with the other kings tenants in capite, and -were thenceforth represented by the knights of the shires<a id="FNanchor_255" href="#Footnote_255" class="fnanchor">[255]</a>.</p> - -<p>But these baronies by tenure being long since worn out among the laity, -it is proper to proceed to the two ways now in being of creating peers, by -<i>writ</i>, and by <i>letters patent</i>. It is the lord Coke’s opinion, and in this he -has been followed ever since, that a writ to any man, baron, or no baron, -to sit in parliament, if once he hath taken his seat in pursuance thereof, -gains a barony to him and the heirs of his body. And though the law, -principally on the authority of that great lawyer, is now so settled, certainly -it is comparatively but a novel opinion, and very ill to be supported by reason.<span class="pagenum"><a id="Page_191"></a>[191]</span> -The words of the writ are, <i>Rex tali salutem, quia de advisamento & -assensu concilii nostri, pro quibusdam arduis & urgentibus negotiis statum & defensionem -regni nostri Angliæ contingentibus, quoddam parlamentum nostrum apud -Westmonast. tali die, talis mensis, proximo futuro teneri ordinavimus, & ibidem -vobiscum, ac cum prelatis magnatibus & proceribus dicti regni nostri, colloquium -habere & tractatum; vobis in fide & ligeantia quibus nobis tenemini, firmiter -injungendo mandamus, quod consideratis dictorum negotiorum auctoritate & periculis -imminentibus, cessante excusatione quacunque, dictis die & loco personaliter -intersitis nobiscum, ac cum prelatis magnatibus & proceribus super dictis negotiis -tractaturi, vestrumque consilium impensuri, & hoc sicut nos, & honorem nostrum, -ac expeditionem negotiorum prædictorum diligitis, nullatenus omittatis</i><a id="FNanchor_256" href="#Footnote_256" class="fnanchor">[256]</a>.</p> - -<p>That this writ must be obeyed, there is no doubt, for every subject is, by -his allegiance, obliged to assist the king with faithful counsel: But what -right the party summoned acquired thereby is the question. The words are -not only personal to him, but restricted likewise to a particular place and -time; and accordingly, in antient times, we find many persons summoned -to one parliament, omitted in the next, and summoned perhaps to the third. -There is not a word therein that hints at giving the least right to an heir; -and what reason can be assigned why a man, by this writ, should gain an estate -of inheritance in a peerage, when, in letters patents, it is admitted that he -gains only an estate for life, without the word <i>heirs</i>. That antiently there -was no such notion appears from the summons to parliament, where frequently -we find the grandfather summoned, the father passed by, and the -grandson afterwards summoned: Nay, in the rolls there are instances of -ninety-eight persons being summoned a single time only, and neither themselves, -nor any of their posterity, ever taken notice of afterwards. Or, if -we were to allow that this writ created an inheritance, what reason can be -given why it should be an estate tail only, and be confined to the heirs of -the body, and not, as all other new inheritances, created generally, go to -the collateral heirs?</p> - -<p>But, in order to discover plainly what privileges persons so called by -writ, had, or could obtain in those times, it will be proper to distinguish -them into three kinds of persons. First, then, they were either some of the<span class="pagenum"><a id="Page_192"></a>[192]</span> -<i>minores barones by tenure</i>; and these, when called, had certainly all the privileges -of the greater; or else they were not barons at all, but plain knights -or gentlemen; and, with respect to these, it is plain they had a right to -deliberate, debate, and advise. But the better opinion is, they had no right -to vote, but were assistants and advisers only, as the judges are at present; -for it is absurd to suppose that, in those times, when the commons were -low, and inconsiderable, and the barons were more powerful than the crown, -these latter should suffer their resolutions to be over-ruled at the pleasure of -the king, by his calling in such numbers as we find he often did, which -must have been the case, if all he summoned had votes. But these two -kinds of persons gained by their writ, or sitting in consequence of it, originally, -no farther right than to be present at that time. However, by many -of these persons and their heirs having been constantly summoned, especially -since Henry the Seventh’s reign, and the ancient practice of omitting any -who had been very frequently so, going into disuse, the distinction between -the greater and the lesser barons was forgot, and that opinion prevailed -which my lord Coke had adopted, and which is now the law, that a man, -having once sat in parliament in pursuance of the king’s writ, acquires thereby -an estate tail to him and the heirs of his body<a id="FNanchor_257" href="#Footnote_257" class="fnanchor">[257]</a>.</p> - -<p>There were yet another kind of persons, not peers, that might be summoned -by writ. These were the eldest sons of peers, to whom the father’s -barony must descend; and in such case, if the heir was called by the name -of a barony that was in his father, he was a baron to all intents and purposes. -But it seems very plain, that this was not a new creation of a barony; for in -that case the son so called should have been the lowest peer, whereas the practice -is the contrary. The eldest son of the duke of Norfolk, called by the -title of lord Mowbray, sat first baron, because that barony of his father’s is -the antientest in England. It seems, therefore, that this was considered as a -transfer of the antient barony by the joint consent of the father and king, and -the father still continues to sit by the remaining peerage in him. Accordingly -we find no instance of a baron’s son sitting on such a summons, unless the -father had another barony by which he might sit. If the father indeed had a -higher title, that has been reckoned sufficient to support his seat, though his -only barony was transferred to the son. This then being no new creation,<span class="pagenum"><a id="Page_193"></a>[193]</span> -but a temporary transfer only of an old peerage, it should seem, that this -title, when once merged in the greater by the father’s death, should go according -to the old limitation; but of late we find them considered as new -creations. On the death of the late earl of Derby, Sir Edward Stanley, his -sixth cousin, succeeded, and sits in parliament as baron Strange, by Henry -the Seventh’s creation; but an elder son of a former earl of Derby, having -been called by writ while his father was living, the Duke of Athol, as his -heir by the female line, sits by the same title of baron Strange of king -Charles the First’s creation.</p> - -<p>The descent of these two kinds of baronies are directed by the rules of -the descent of other inheritances at common law, and consequently females -are capable of succession, but with two exceptions; first, that half blood is -no impediment, and consequently the half brother excludes the sister; secondly, -that the honour is not divisible, and therefore, if there be two or -more sisters, heiresses, the title is <i>in abeyance</i>, that is, is suspended, until -the king makes choice of one of them and her heirs; though by constant -usage the law seems to be verging fast to a constant descent to the eldest<a id="FNanchor_258" href="#Footnote_258" class="fnanchor">[258]</a>.</p> - -<p>The third method of creating peers is by <i>letters patent</i>, which is the most -usual, and esteemed the most advantageous way; because a peerage is -thereby created, though the new nobleman hath never taken his seat, which -is not the case of a barony by writ. As to the manner of these creations, -there has a notable difference intervened since the accession of Henry the -Seventh from what was the practice before Richard the Second. In his -eleventh year began this method of creating by patent, in favour of John -de Beauchamp, who, though summoned, never sat there, but was attainted -by the next parliament, and afterwards executed. But, the attainder out -of the case, his patent in law could never have been deemed valid, because -Michael de la Pole was the lord chancellor who affixed the seal to it, which -had been before taken from him by act of parliament, and he declared incapable -of ever having it again. This, then, was a single and ineffectual -attempt of that weak prince to create a new peer without the assent of parliament, -which was the usual way, above thirty having been made so in -that very reign. His successors were too wise to follow this example; for<span class="pagenum"><a id="Page_194"></a>[194]</span> -every barony newly created, till the union of the roses, which were about -fourteen, were, every one of them, as appears on the face of the patents, -by authority of parliament, if we except two or three; and even these, on -a close examination, will appear not to be new baronies, but <i>regrants</i> of old -feudal baronies by tenure, which, undoubtedly, were all in the sole disposition -of the king<a id="FNanchor_259" href="#Footnote_259" class="fnanchor">[259]</a>.</p> - -<p>But Henry the Seventh, having trodden down all opposition, was fortunate -enough to carry the point Richard had vainly attempted, and acquired -for his successors that prerogative which they have since enjoyed, of creating -peers at pleasure. The descent of these titles, created by patent, is directed -by the words of the creation. If heirs are not mentioned, it is only an -estate for life; if to a man and heirs of his body, females are not excluded, -but the general way is, to the heirs male of the body of the grantée, perhaps, -with remainders over, and they descend as other estates entailed. -The case of the dutchy of Somerset was singular. Edward Seymour having -sons by two venters, was created duke of Somerset, and his heirs male of -his second marriage, remainder to his heirs male by his first. This title -continued near two hundred years in the younger branch, until, upon its -failure in the late duke of Somerset, Sir Edward Seymour, the present -duke, the heir by the prior marriage, succeeded by virtue of the remainder.</p> - -<p>In the case of lord Purbeck, in Charles the Second’s reign, it was controverted -whether a title could be extinguished, for as lord Purbeck had -surrendered his honour by fine to the king, and there it was determined, -and so the law now stands, contrary to many precedents that were produced, -that the title is inherent in the blood, and while that remains uncorrupted, -can by no means be extinguished by surrender or otherwise, and this, generally, -whether the peerage be created by patent or by writ; for Purbeck’s -was by writ. In case of a patent where the dignity is expressly entailed, it -is surely as reasonable that it should be impossible for the possessor to destroy -the entail, as in an estate tail of land, created by the king, and yet in old -times there had been many instances to the contrary. I shall mention but -two that happened in this kingdom.</p> - -<p><span class="pagenum"><a id="Page_195"></a>[195]</span></p> - -<p>Sir Thomas Butler was created baron Cahir by Henry the Eighth to his -heirs general. His heirs male failed in his son Edmond, the second baron, -and his nephew, Sir Theobald, was, in 1683, by queen Elizabeth created -baron Cahir; but it being found that Sir Thomas left daughters, to one of -whom the title ought to have been assigned by the queen, one of them, and -the heir of the other, who was dead in 1685, bargained, sold, and released -to Sir Theobald and his assigns, their right and title to the said honour. The -other was the case of the honour of Kingsale. Charles the First, apprehending -the barony of Kingsale to be extinguished by attainder, created -Sir Dominick Sarsfield viscount Kingsale, but, upon lord Kingsale’s petition, -and proof made by him that his barony still subsisted, it was ordered -that Sarsfield should surrender his viscounty of Kingsale, and be treated viscount -of Kilmallock, with his former precedence, which was accordingly -done.</p> - -<p>These two instances were, indeed, of a particular nature, and calculated -to rectify grants that had arisen from error; but in England there were, in -ancient times, many instances of such surrenders without error. They were, -indeed, generally made in order to obtain higher titles; and therefore it is -no wonder they passed <i>sub silentio</i>, and were never disputed. But as to the -old baronies by tenure that were annexed to land, nothing is clearer than -that, by the king’s consent, they might be aliened or surrendered, notable -instances of which happened in the reign of Henry the Third. Andrew -Giffard, baron of Pomfret, surrendered to the king; and Simon de Montfort, -a nobleman of large possessions in France, had two sons by the heiress -of the earldom of Leicester, in whose right he was earl of Leicester, and, -having a mind to settle his second son in England, assigned the earldom over -to him, as Selden says; or, which comes to the same thing (for the eldest -son was equally defeated) surrendered it to the king, who granted it to the -second, according to Camden.</p> - -<p>All noblemen are equally so, and, therefore, each others peers; but -they differ in rank and precedence. The ranks are five; <i>dukes</i>, <i>marquisses</i>, -<i>earls</i>, <i>viscounts</i>, <i>barons</i>. The first duke was created by Edward the Third; -the first marquiss, by Richard II.; the first viscount, by Henry the Sixth.<span class="pagenum"><a id="Page_196"></a>[196]</span> -Though their dignities are now personal, and annexed to the blood, yet as -they were originally annexed to land, so much of the old form remains, that, -in their creation, they must be named from some place in some county; -though I do not apprehend it to be material at this day, whether there really -be such a place or not. With respect to the raising a lord from a lower degree -of dignity to a higher, I should observe, that long before Henry the -Seventh’s time, the king had the right solely in himself, though it was frequently -done in parliament; for this was not adding to the number of the -peers, but an exertion of the ancient prerogative of his settling precedence -according to his pleasure. This continued in England till Henry the Eighth, -by act of parliament, settled it according to antiency, and it still continues -in Ireland, though it has not been exerted since Henry the Seventh’s time, -when lord Kingsale, a Yorkist, was obliged to change places with lord -Athenry, a Lancastrian, and from first became the second baron, which -hath continued his rank, till lately, that Athenry was created an earl<a id="FNanchor_260" href="#Footnote_260" class="fnanchor">[260]</a>.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_197"></a>[197]</span></p> - -<h2 class="nobreak" id="LECTURE_XXI">LECTURE XXI.</h2> - -<p><i>Earls or Counts as distinguished from Barons—The office of Counts—Their condition -after the conquest—Counties Palatine in England—Counties Palatine in -Ireland—Spiritual Peers—The trials of Noblemen.</i></p> - -</div> - -<p>In my last lecture I treated of baronies, which are the lowest rank of -peerage, and of the right whereby this class of nobles sits in the great -council of the nation, and also of the various methods that have prevailed -in different ages of creating them; but before I have done with the higher -nobility, it will be necessary to say something of <i>earls</i> or <i>counts</i> as distinguished -from barons; for they differ from them, not only in having a -greater number of knights fees, and consequently having a greater revenue, -but in possessing also a more extensive jurisdiction. The institution of -<i>counts</i>, I observed in a former lecture, wherein I treated of the progress of -the feudal law, was not, originally, a part of the feudal policy. They -were, indeed, always chosen out of the king’s companions, who resided in -his house, and were therefore called <i>comites</i>, but they were not set to preside -over Germans, who were the conquerors, but over such of the old inhabitants, -Romans or Gauls, who by a voluntary submission had retained -their freedom, and who in every respect, except bearing a share in the legislature -or government, were on an equal footing with the conquerors<a id="FNanchor_261" href="#Footnote_261" class="fnanchor">[261]</a>.</p> - -<p>The office of these counts was threefold, to judge these freemen in peace, -to conduct them in war, to manage the king’s demesnes in their respective -districts, and to account with him for them and the profits of his courts of -justice; which were very considerable when all offences were punished by -fines. At the beginning they were temporary officers, but they soon became -fixed for life, and at length, towards the latter end of the second, and in -the beginning of the third race in France, they got, through the weakness -of the crown, estates in fee in their counties; and either by grants of the<span class="pagenum"><a id="Page_198"></a>[198]</span> -kings, or by usurpation, converted the profits they before accounted for to -the crown, for their own use, and held their courts in their own name. In -short, they became petty sovereigns, paying only homage, and the usual -services of ward, marriage, and relief to their supreme lord; and as such -they coined money, levied war against their neighbours, nay frequently -against the king himself; until Lewis the Eleventh found the means of -humbling them, and brought the crown out of tutelage, as the French -express it<a id="FNanchor_262" href="#Footnote_262" class="fnanchor">[262]</a>.</p> - -<p>The present state of Germany is an exact representation of what the -French and the other continental monarchies were in those days, except that -the kings had large countries, and multitudes of vassals immediately subject -to them; whereas the emperor hath now none. But in England these lords, -tho’ very powerful, never ascended to such a pinnacle of grandeur. Their -first constitution here we must refer to the time of the division of England -into counties, to which they had a reference, which is generally ascribed to -Alfred. Their power and office was exactly the same with the counts on -the continent in those early times, namely, to judge and lead the freemen to -war. For the greatest part of the lands of England were at that time allodial, -as is proved by Spelman, contrary to the opinion of Sir Edward Coke; -although, with him, it must be allowed, that there were fiefs also before -the Conquest, and that they were not all introduced at that period. Till -that time their office was only for life, and they were known by various -names, as <i>duces</i>, <i>comites</i>, and <i>consules</i> in Latin, <i>ealdermen</i> in Saxon, and <i>earls</i> -in the Danish tongue<a id="FNanchor_263" href="#Footnote_263" class="fnanchor">[263]</a>.</p> - -<p>But William, having turned all the lands into feudal, was obliged to -put his earls on the same footing, that those on the continent were in his -time, and consequently to make them hereditary. However he and his -successors were careful not to give them such extensive powers and revenues -as they had abroad. The county courts were held in the king’s name, neither -were the earls allowed the whole profits of them, two-thirds of them -being reserved to the king; and in appearance to ease them, who were often -obliged to attend in council or in war, but in reality to prevent the<span class="pagenum"><a id="Page_199"></a>[199]</span> -king’s being defrauded, and to prevent the too great influence which their -judging in person might acquire to them in their districts, officers chosen by -the people, and approved by the king, were substituted to administer justice -under the names of <i>vice comites</i>, or sheriffs; these were to pay to the -king the two-thirds, and to the earl his third of the profits, which was in -those times looked upon as so incident to an earldom, as to pass with it, -although express words were wanting; so that in those times an earl and a -county were correlatives<a id="FNanchor_264" href="#Footnote_264" class="fnanchor">[264]</a>.</p> - -<p>Each earl took his title from some one county, and the number of the -one could not exceed that of the other. King John, however, altered their -nature in some measure, and his example has been followed in depriving -the earl of the thirds of the county profits; for he created Henry de Bohun -earl of Hereford, and granted to him twenty pounds yearly, to be received -out of the third penny of the county in lieu thereof. But it is plain -that the justice and success of this invention was doubted of at first, for John -took a collateral security from the earl, that he should never in his earldom -claim any more than the twenty pounds expressly granted him. These -sums, so granted, are called <i>creation money</i>, and were formerly expressly -granted out of the third penny of the county; but of late have been made -payable at the Exchequer. Such was the nature of the ancient earldoms -that were by tenure, and had reference to counties. The modern ones, -that are merely honorary, and go with the blood, were first made in parliament. -Afterwards the king was allowed, by his sole authority, to advance -a baron to a higher rank; for that was not adding to the number of the -peers; but the creation of a bare gentleman a peer at once hath only been -practised since the accession of Henry the Seventh<a id="FNanchor_265" href="#Footnote_265" class="fnanchor">[265]</a>.</p> - -<p>Before I quit this head of earldoms, it will be proper to say somewhat -about <i>counties palatine</i> which had extraordinary privileges, like unto the -counties and duchies abroad. The first was that of Chester, erected by the -Conqueror, in favour of his nephew Hugh Lupus, in these words: <i>Totumque -hunc comitatum tenendum sibi & hæredibus, ita libere ad gladium, sicut ipse -rex tenet Angliam ad coronam</i>. The effect of this creation was to have <i>jura<span class="pagenum"><a id="Page_200"></a>[200]</span> -regalia</i>; for the earl palatine might pardon treason, murder, and other offences, -might make justices of assize, gaol delivery, and of the peace; -might create barons of his county palatine, and confer knighthood. They -had likewise all forfeitures, that arose by the common law, or by any prior -statute; but forfeitures arising from statute, made after the erection of the -county palatine, belonged to the king. They had courts as the king had -at Westminster, and out of their chancery issued all writs, original and judicial. -Neither did the king’s writs run within the county palatine, except -writs of error, which were in the nature of appeals, or in cases where, otherwise, -there would be a failure of justice. All manner of indictments and -processes were made in the name, and every trespass was laid to be done -against the peace of him that had the county palatine. But these and some -other privileges have been taken away, and annexed to the crown, in whose -name they must now be; but the <i>teste</i> of the writs is still in the name of the -earl palatine<a id="FNanchor_266" href="#Footnote_266" class="fnanchor">[266]</a>.</p> - -<p>Of these counties palatine there are now in England four, Lancaster united -to the crown, Chester to the principality of Wales; Durham and Ely, -each belonging to the bishop of the place; but the privileges of these two -are going fast into disuse. But in this kingdom, (Ireland) for the encouragement -of adventurers, the whole country, as fast as it could be reduced, was -erected into palatinates, and very little, except the cities, retained in the -king’s hand. The making so many great lords, who had frequent quarrels -with each other, and that at such a distance from the seat of government, -was one great occasion of the slowness of the settlement of the kingdom. -For, to strengthen themselves, such of them as resided here attached the natives -to them, and taught them the use of arms, and others that dwelt in -England entirely neglected to send hither any defence, so that, by the end -of Edward the Third’s time, the Irish had repossessed themselves of almost -the whole kingdom, if we except five or six counties; whereas in John’s -reign they held not above half, and that under homage and tribute, either -to the king, or the lords, who had grants from him.</p> - -<p><span class="pagenum"><a id="Page_201"></a>[201]</span></p> - -<p>I shall give a short detail of these palatinates, and an account of the -manner of their distinguishment. The present county of Gallway, under the -name of the county of Cannaught, was a palatinate in the De Burghs; as -was Ulster, first in De Courcy, then in De Lacy; and these two were united -by De Burgh’s marriage with Lacy’s daughter, and afterwards descended -to Lionel of Clarence’s daughter, who married the earl of March, and, in -the person of Edward the Fourth, merged in the crown. In the same prince, -likewise, merged that of Meath, which, being in another branch of the Lacy’s, -was divided into the eastern and western between two daughters. -The former came by descent to the house of March, and so to Edward the -Fourth. Strongbow had the grant of Leinster as a Palatinate, which at -length was divided into five distinct ones between his grand-daughters, who -being married to English noblemen, took no care for the defence of the -country, their titles, estates, and Jura Regalia were taken from them by act -of parliament, under Henry the Eighth.</p> - -<p>Kildare, being in the hands of the earl of that name, escaped for a little -time, until he was attainted under the same king, where it ended; for -though his heir was restored to the title and estate by queen Mary, it was -with an express exception of the palatinate. The kingdom of Cork, containing -that county and the south of Kerry, was another palatinate, granted to -Fitz Stephen and Cogan, who made partition between them; and on Fitz -Stephen’s death without issue, his part escheated to the crown. Cogan’s -share should have gone to the Courcey’s and Carens, but they could never obtain -the possession of it; for the earl of Desmond got the estate by purchase -from a Cogan who pretended a right, and held it; so this share of the palatinate -fell likewise into disuse. Desmond, indeed, had interest enough to get -a new palatinate created for himself in the county of Kerry, called Desmond, -which for repeated rebellions was justly forefeited to queen Elizabeth.</p> - -<p>Edward the Third erected the palatinate of Tipperary in favour of the -earl of Ormond, who was grandson to Edward the First, which continued -in that family, with some interruptions, until the attainder of the late duke -in 1715. Thus by degrees the crown regained the power it had parted with, -and was at length enabled, though with difficulty, to reduce the whole kingdom, -which had been well nigh lost by means of such profuse grants.</p> - -<p><span class="pagenum"><a id="Page_202"></a>[202]</span></p> - -<p>Besides the temporal peers, there are spiritual ones, that is the bishops, -and, they have seats in parliament, which antiently many abbots also enjoyed. -The original of this right was from the feudal customs. The priests of the -Germans, while they continued pagans, were necessary attendants in their -general assemblies, not only for advice, but the benefit of their prayers and -divinations. When these nations embraced Christianity, they transferred -the same veneration and honour to their new instructors and bishops; and -sometimes other churchmen of eminence, though they held lands not by -military tenure, but by what is called <i>free alms</i>, were, in every nation as well -as England, members of the states of parliaments. But since the conquest -they have begun to sit by another right, namely by their baronies; the conqueror -having converted their estates in free alms into baronies, and to -their great mortification, subjected them to military service<a id="FNanchor_267" href="#Footnote_267" class="fnanchor">[267]</a>.</p> - -<p>Upon this head several questions have been propounded, as how far -they are lords of parliament, and whether the clergy are a third estate of the -realm, and sit solely in that right. This is a question of some importance, -because if they make a distinct estate, no law would be good to which the -majority of them did not consent. Certain it is that in France, the clergy -made one estate, the nobility the second, the burghers the third; and in -Sweden the peasants make the fourth, all sitting in distinct houses, the majority -of each of which must concur. And therefore I do believe, that -when, in England, we talk of <i>three estates</i>, the clergy, not the bishops alone, -make one of them, contrary to the modern opinion, that the king is the -first estate, and the bishops and the nobility the second; for the king is in -no country reckoned one of the estates, but the head of all. However -from this no argument can be drawn that the bishops should sit separately, -or that a majority of them, as representing the clergy, should concur.</p> - -<p>As to sitting separately, it is pretty clear that, by the old law, none were -members of parliament, but the immediate military tenants of the king, and -that they sat all in one house, however their titles and fortune might differ; -being all equal as to rank, with respect to the king, and all having the same -rights. The division of parliament into two houses was never known in Scotland, -who, in all probability, modelled their constitution from their neighbours;<span class="pagenum"><a id="Page_203"></a>[203]</span> -nor doth it appear in England previous to Edward the First, but -arose, probably, from the great barons disdaining to sit, as equals with citizens -and burgesses. For even, after this time, they did not disdain to associate -with the knights of the shires, who represented the minor barons, and -other military tenants, as appears by many instances. But for a number of -centuries past the gentry, which were formerly considered as a lower noblesse, -and are so abroad, have been melted into one body with the other -commoners<a id="FNanchor_268" href="#Footnote_268" class="fnanchor">[268]</a>.</p> - -<p>If then there was originally but one house, and if, since the division, the -bishops have constantly sat in the house of peers, there can be no pretence -for any privilege for them more than for the body of barons or earls. It is -urged, likewise, that several valid acts of parliament were passed without -any bishop present; but this happened only in distracted times; and, whoever -might think it prudent or proper to absent themselves at a particular -season, it will hardly be said to be a good parliament when they were not -summoned; and if, at any time, they refused to attend, there was no reason -why the public business should stop, as they sat, not as an independent -constituent part of parliament, but each distinctly for himself, in right of his -barony. From these occasional and general absences of theirs, an opinion -grew up by degrees, and now is established law, that there is a material difference -between bishops and lay lords, in respect to their nobility. In truth, -that they are not peers to each other, and consequently that a bishop cannot -sit in judgment on the life of a peer, neither is he to be tried by the -peers, but by a jury of commoners.</p> - -<p>It is worth while to see how these opinions grew up; for, from the original -constitution, every bishop, being a baron by tenure, and having a fee -simple therein, had certainly as great right as other barons; but the canon -law having forbid any ecclesiastics being concerned in matters of blood, and -they being obliged by the common law to attend judgments in parliament, -were in a great streight between the two laws, how to act when a peer was -capitally accused. They at length obtained from Henry the Second in the -constitutions of Clarendon, the following allowance: <i>Et sicut cæteri barones -debent interesse judiciis curiæ, regis quousque perveniatur ad diminutionem membrorum,<span class="pagenum"><a id="Page_204"></a>[204]</span> -vel ad mortem</i>; where the last words are plainly an exception in -their favour, in derogation to the common law, on account of their peculiar -circumstances under the canon. However, as many questions might -arise before it came to the last vote, that might intirely influence the final -determination, they used to absent themselves totally, and this going on for -ages, and the feudal baronies wearing out, and all titles becoming fixed to -the blood, not to the land, they came to be considered as peers of a different -nature, because their blood did not succeed, and that which was first a favourable -permission, was construed a prohibition; and when this was once -established, it followed necessarily, that, not being peers to the nobility by -blood, they must be tried by commoners<a id="FNanchor_269" href="#Footnote_269" class="fnanchor">[269]</a>.</p> - -<p>With respect to the trials of noblemen, now I have said so much on that -head, I shall observe, they were carried on in two different methods. Either -the accused person was tried in parliament, and then all the temporal -lords had voices, or he was tried by a jury of peers; that is the king appointed -twenty-four noblemen for that purpose: A law that has proved fatal to -many noblemen, who happened to fall under the displeasure of the court. -A commoner hath a right to prevent the sheriffs returning a jury to try him, -if he can shew a just exception to the sheriff; and after the return is made, -he can challenge a certain number for causes known only to himself, and as -many more as he can prove sufficient matter of exception to. Such care did -the law take of the lives of the commons, but no exception lay for a peer to -the king’s return. The law would not suppose the least partiality in him, -even in his own cause; neither would it suspect that a peer could be biassed -by any consideration from doing strict justice, and therefore no challenge -lay against him for any cause, however strong and notorious; and the same -confidence is the reason why they give their votes, guilty or not guilty, not -upon their oaths, but upon their honours.</p> - -<p>I can scarce imagine that this method of trial could have prevailed in the -times of the great power of the barons, when they often made the crown to -totter; neither have I been able to discover its beginning. Certain it is -that, in the reigns of the Plantagenets most, if not all noblemen, were tried -in full parliament; and as certain it is, that, during the reigns of the Tudors<span class="pagenum"><a id="Page_205"></a>[205]</span> -and Stuarts, the other was universally followed; insomuch that every -nobleman was sure either to suffer or escape, according as the court was at -that time affected towards him. At length, after many struggles, about -1695, the bill for regulating trials for high treason and misprision of treason -was passed; one clause of which provides, that on the trial of peers, every -lord who hath a right to vote in parliament, shall be summoned, and have a -right to vote. Thus was the inconvenience attending the king’s naming -the jury remedied; but the law in the other point stands as before, that no -peer can be challenged. According to this law have all trials of Irish peers -proceeded since that time, though there is no act for that purpose in this -kingdom<a id="FNanchor_270" href="#Footnote_270" class="fnanchor">[270]</a>.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_206"></a>[206]</span></p> - -<h2 class="nobreak" id="LECTURE_XXII">LECTURE XXII.</h2> - -<p><i>The share of the Commons in the Legislature—The Armigeri or Gentry—Knights -Bannerets—The nature of Knighthood altered in the reign of James I.—Knights -Baronets—Citizens and Burghers—The advancement of the power -and reputation of the Commons.</i></p> - -</div> - -<p>Having given a general idea of the lords, and their share of the -legislature, it will now be proper to descend, and see the several -classes of the lower rank, called <i>Commons</i>, and to examine what share or -influence they had formerly, or now enjoy, in the government. The commoners -may, in general, then, be divided into the <i>lesser nobility</i>, or <i>gentry</i>, -and the others, whom, for distinction sake, I shall call the <i>lower commons</i>. -For although, since the reign of Henry the Eighth, many men of the best -families, and some descended from the nobility, have engaged in commerce, -and thereby brought lustre to that order of men, before that time all persons -engaged in trade were held in as much contempt by the gentry of -England, as they are at present, by those of any nation; and a gentleman -who employed himself in hunting, or perhaps serving the king, or some -great lord, was looked upon to have degraded himself.</p> - -<p>The gentry were called <i>Armigeri</i>, because they fought on horseback, in -compleat armour, covered from head to foot; whereas the infantry’s defensive -arms were of a slighter kind, and no compleat covering. But we are -not to imagine that all who fought on horseback compleatly armed, were -gentry; for, in order to compleat their squadrons, men of the lower ranks, -who, by their strength of body, and military skill, were capable of service, -were admitted, but this did not make them gentlemen. Hence, in our old -histories, we find the <i>knights and esquires</i>, that is, the real gentry, carefully -distinguished from the <i>men at arms</i>. The peculiar privilege of the gentry -was the bearing on their shields certain marks, to distinguish them from -each other, and the men at arms called <i>Coats of Arms</i>. At first they were -personal privileges, and not inherent in the blood, and the marks and rewards<span class="pagenum"><a id="Page_207"></a>[207]</span> -of some personal act of bravery performed by the bearer; so we find -in the romances, that a new knight was to wear plain white, until, by some -exploit, he merited a mark. The general opinion is, that they were first -introduced at the time of the crusades, which I believe is pretty just, at -least with respect to our country: for the imperial crown of England had -no arms before the conquest. The Norman kings bore the arms of Normandy, -<i>two leopards passant</i>, to which Richard the First added that of -Guienne, another leopard passant, and so composed this English coat, in -which, among other alterations, the leopards have since been changed to -lions<a id="FNanchor_271" href="#Footnote_271" class="fnanchor">[271]</a>.</p> - -<p>For the further encouragement of valour, these marks became transmissible -to heirs, not to the eldest son only, as lands, but to all the sons; -saving that the younger were to take some addition, for distinction sake. -While these coats were granted by the king alone, and that for real service -done, and consequently were not too common; and while the custom of -wearing compleat armour remained, and the office of high constable (the -judge in such matters) continued, the gentry were very curious in preserving -these distinctions, and vindicating them from usurpation. But as the -military disposition of our gentry hath greatly subsided since the loss of the -provinces in France, and the kings at arms have assumed the power of -giving coats, nicety in these respects hath long since expired; and now, as -in a commercial country, especially, it should be, education and behaviour -are sufficient criterions of a gentleman.</p> - -<p>I shall therefore say no more of them, as distinguished from the rest of -the commonalty, but observe, that of these there are two ranks, <i>knights</i> -and <i>esquires</i>, or gentlemen. For though we now make a distinction between -these two last, the old law knew none, nor is it now a misnomer, in -a writ of pleadings, to stile an esquire a gentleman, or the contrary. The -holding of a knight’s fee did not make a man of that order, but there were -particular ceremonies required for the purpose. For the original design of -the institution of <i>dubbing knights</i>, was that, after a person had, by performing -military exercises, shewn that he had properly accomplished himself, -and was capable of that honourable service in the field, in his proper person,<span class="pagenum"><a id="Page_208"></a>[208]</span> -he should, by a public solemnity, be openly declared so. No wonder, -then, that the highest nobility, the sons of kings, nay kings themselves, -thought this title an addition to their dignity, as it was then an infallible -proof, that they had not degenerated from the virtue of their ancestors<a id="FNanchor_272" href="#Footnote_272" class="fnanchor">[272]</a>.</p> - -<p>But among knights there were some of a more distinguished kind (I do -not mean to speak of particular orders, such as those of the garter and -others) called <i>Bannerets</i>, as knights in general were made, upon their proving -themselves by exercises capable of service. These were never made -but for an actual exploit in war, and then were dubbed with great solemnity -under the royal banner. Their distinction was bearing a little banner, annexed -to the wooden part of their lance, adjoining the iron point; as, originally, -every man who had a whole knight’s fee, or the amount thereof in -parts of fees, was obliged to serve in person, and was not allowed a proxy, -but in cases of necessity every such person was obliged to appear upon the -king’s summons, to shew himself qualified, and to receive the order of -knighthood. This power continued in the king, even after the military tenants -were discharged of personal attendance on sending another, or paying -escuage, and came to be considered as a profitable fruit of the king’s -seignory, and was frequently used as an expedient to raise money, by obliging -the unqualified, or those who had no mind to the expence or fatigue of -attending, to compound<a id="FNanchor_273" href="#Footnote_273" class="fnanchor">[273]</a>.</p> - -<p>This right of composition was established by act of parliament, the first -of Edward the Second, which likewise fixes the estate the persons summoned -must have at twenty pounds a year, the quantity of a knight’s fee; -twenty pounds a year was indeed the valuation of a knight’s fee at the time -of the conquest, but by change of times, in Edward the Second’s reign, it -may well be esteemed forty; so that by this act a man who had half a -knight’s fee was liable to be summoned. This was one of the unhappy -means made use of by king Charles the First to procure money when he -quarrelled with his parliament. He was sensible, indeed, of a difference in -the value of money, and therefore summoned none but such as had forty -pounds a-year; but had he paid due attention to its real rise, he should have<span class="pagenum"><a id="Page_209"></a>[209]</span> -summoned none under an hundred and twenty. For in Edward’s reign a -pound in money was a real pound in silver, whereas in Charles’s, it was but -a third part, and so the proportion was to sixty pound sterling, and sixty -more is the least rise that can be allowed for the improvements in the value -of lands, by the intermediate increase of commerce. No wonder, therefore, -that his people looked upon it as an unsupportable grievance. Accordingly, -in the 17th of his reign, the act of Edward the second was repealed, and -in Ireland, it vanished with the tenures on which it depended<a id="FNanchor_274" href="#Footnote_274" class="fnanchor">[274]</a>.</p> - -<p>The great change in the nature of knighthood happened in the reign of -James the First. The Plantagenets never created any persons such but with -a view to military merit, except their judges. The Tudors extended it to -persons who had served them well in civil stations, but so sparingly, and to -persons of such evident merit, that it still was an encouragement to those -that deserved well of the public. But James, who had a passion for creating -honours, poured forth his knighthoods, without regard to desert, with -so lavish an hand, confirming them for money frequently on wealthy traders, -and others without any apparent public merit, that thereby, as also -by creating an order of hereditary knights, called <i>baronets</i>, a knighthood -soon lost the badge of merit it before had carried.</p> - -<p>The occasion of creating baronets was this. On the escheat of the six -counties in Ulster, they were planted with colonies of Scotch and English; -and, as it was necessary to support a standing army there, for some years -after, for the defence of the infant settlements, and money was wanting for -that purpose, as, in that reign, it always was for every other, this scheme -of creating an order of hereditary knights, to take place after the barons, -was fixed upon for that purpose. At first it had some aspect towards military -service, for each of them was obliged to maintain so many soldiers in -the plantation, for a limited time; and to make the honour more valuable, -and to get the better terms for it in the first plan, it was provided, that no -more than two hundred should be originally created; and when any of them -failed, no new ones to be created in their room. But it was soon seen that -these new knights, when they had once attained their dignities, might not -duly perform the services they engaged for. The maintaining the soldiers,<span class="pagenum"><a id="Page_210"></a>[210]</span> -therefore, was commuted into a sum paid to the king, who undertook to do -it; and had he been a good œconomist, it would have been a prudent precaution, -but whatever sums he could lay his hands on were always at the -mercy of his reigning favourite. He was, therefore, obliged to depart from -his intended limitation, and to exceed his number; and yet, after all, the -service was not done so well as it should have been. His successors have -followed his example, in adding to the number, which now is certainly unlimited<a id="FNanchor_275" href="#Footnote_275" class="fnanchor">[275]</a>.</p> - -<p>Next to the gentry, or military order, in estimation among the northern -nations stood the <i>citizens</i> and <i>burghers</i>, that is, the trading part of the nation, -whether merchants or artificers. These were for some ages held in a -very low light, none of the conquerors or their defendants applying themselves -to such occupations. They were, indeed, at first, allowed certain -privileges and enjoyed their own laws, under the inspection of magistrates -appointed by the king, known by the name of <i>Præpositi</i>, <i>Provosts</i>, or some -other equivalent title. But these liberties did not last long. The turbulent -temper of the times, the frequent competitions for the throne, and the many -rebellions of the great lords, occasioned the towns and their inhabitants to -be taken in war, one after another; and the persons so taken, were, by the -prevailing <i>Jus Gentium</i> of these ages reduced to servitude; not, however to -a condition so low as the <i>villeins</i>, who were, properly, the slaves of those -people, and had no property but at the will of their lords. However it is, -no state, except one absolutely barbarous, could subsist without artizans; -and as commerce is the parent of wealth, and as neither it, nor arts, could -thrive where property is not, in some sort, secure, the lords were in some -degree, by their own interest, obliged to relinquish to these people the seizing -of their goods at pleasure, as they practised towards their villeins, and to -leave them at liberty to make regulations among themselves for the benefit -of trade<a id="FNanchor_276" href="#Footnote_276" class="fnanchor">[276]</a>.</p> - -<p>Thus far, then, they were free, but their servitude consisted in their -being liable to taxes, or <i>tailliages</i>, at the will of the lords, who, if they -were wise, laid on such only as they could well bear; but miserable was<span class="pagenum"><a id="Page_211"></a>[211]</span> -their condition when they fell into the hands of one who was needy and -rapacious; for, then, they were often fleeced, even to ruin and depopulation. -This induced the wiser lords, who saw the consequences, and how -much the arbitrary exertion of such powers must, in the end, hurt themselves, -to restrain their own powers; and, by degrees, by granting them -<i>charters</i>, to emancipate them. They formed them into <i>bodies corporate</i>, confirmed -the right of making <i>bye-laws</i>, which had been permitted them, and -granted them other privileges, or <i>franchises</i>, as they called them, from their -being infranchised, in derogation to former regal or seignoral rights. But -for their total freedom they were indebted to parliament, which, seeing the -bad use king John made of his right in this kind, provided thus in Magna -Charta, <i>Civitas London habeat omnes libertates suas antiquas, & consuetudines -suas. Præterea volumus & concedimus, quod omnes aliæ civitates, burgi, & -villæ, & barones de quinque portubus, & omnes alii portus, habeant omnes libertates -& liberas consuetudines suas.</i> And another chapter restrains the king -from laying new and evil tolls, and confines him to the antient customs<a id="FNanchor_277" href="#Footnote_277" class="fnanchor">[277]</a>.</p> - -<p>Hitherto, however, the citizens and burgesses were no part of the body -politic, and were not represented in parliament. But as, with their security, -their wealth and consequence encreased, about, or before the year 1300, -they were admitted to that privilege; that they might, in conjunction with -the knights of shires, be a check on the overgrown power of the mighty -lords; and about that time also the same privilege was allowed to this class -of people in the other nations of Europe also. This right was confirmed, -and so I may say, the <i>house of commons</i>, in its present condition, formed by -the statute of the thirty-fourth of Edward the First. <i>Nullum tallagium vel -auxilium, per nos vel heredes nostros, in regno nostro ponatur, seu levetur, sine -voluntate & assensu archiepiscoporum, episcoporum, comitum, baronum, militum, -burgensium, & aliorum liberorum communium de regno nostro</i>; where we see, -not only the burgesses, but free yeomen also had representatives, namely, -by their voting along with the knights of the shires, according to the -maxim of that wise prince, <i>Quæ ad omnes pertinent, ab omnibus debent -tractani</i><a id="FNanchor_278" href="#Footnote_278" class="fnanchor">[278]</a>.</p> - -<p><span class="pagenum"><a id="Page_212"></a>[212]</span></p> - -<p>Having come to the constitution of the house of commons as it stands at -present, it will not be amiss to look back, and see how far its present form -agrees with, or differs from the feudal principles. These principles, we -have seen, were principles of liberty; but not of liberty to the whole nation, -nor even to the conquerors; I mean, as to the point I am now upon, -of having a share in the legislation. That was reserved to the military tenants, -and to such of them only as held immediately of the king. And the -lowest and poorest of these also, finding it too burthensome to attend these -parliaments, or assemblies, that were held so frequently, soon, by disuse, lost -their privileges; so that the whole legislature centered in the king, and his -rich immediate tenants, of his barony. And it is no wonder the times were -tempestuous, when there was no mediator, to balance between two so great -contending powers, and were it not that the clergy, who, though sitting as -barons, were in some degree a separate body, and had a peculiar interest of -their own, performed that office, sometimes, by throwing themselves into -the lighter scale, the government must soon have ended either in a despotical -monarchy, or tyrannical oligarchy.</p> - -<p>Such were the general assemblies abroad in the feudal countries, but -such were not strictly the <i>wittenagemots</i> of the Saxons, for their constitution -was not exactly feudal. I have observed that the most of their lands were -allodial, and very little held by tenure. The reason I take to be this: On -their settlement in Britain they extirpated, or drove out, the old inhabitants, -and therefore, being in no danger from them, they were under no necessity -of forming a constitution compleatly military. But then those allodial proprietors -being equally freemen, and equal adventurers with these who had -lands given them by tenure, if any in truth had such, they could not be deprived -of their old German rights, of sitting in the public assemblies. From -the old historians, who call these meetings <i>infinita multituda</i>, it appears that -they sat in person, not by representation<a id="FNanchor_279" href="#Footnote_279" class="fnanchor">[279]</a>.</p> - -<p>This constitution, however, vanished with the conquest, when all the -lands became feudal, and none but the immediate military tenants were admitted. -We find, indeed, in the fourth year of William the First, twelve<span class="pagenum"><a id="Page_213"></a>[213]</span> -men summoned from every county, and Sir Matthew Hale will have this -to be as effectual a parliament as any in England<a id="FNanchor_280" href="#Footnote_280" class="fnanchor">[280]</a>; but, with deference to -so great an authority, I apprehend that these were not members of the legislature, -but only assistants to that body. For if they were part thereof, how -came they afterwards to be discontinued till Henry the Third’s time, where -we first find any account of the commons? The truth seems to be, that -they were summoned on a particular occasion, and for a purpose that none -but they could answer. On his coronation he had sworn to govern by Edward -the Confessor’s laws, which had been some of them reduced into writing, -but the greater part were the immemorial custom of the realm; and -he having distributed his confiscations, which were almost the whole of -England, into his follower’s hands, who were foreigners, and strangers to -what these laws and customs were, it was necessary to have them ascertained; -and, for this purpose, he summoned these twelve Saxons from every county, -to inform him and his lords what the antient laws were. And that they -were not legislators, I think appears from this, that when William wanted -to revive the Danish laws, which had been abolished by the Confessor, as -coming nearer to his own Norman laws, they prevailed against him, not by -refusing their consent, but by tears and prayers, and adjurations, by the -soul of Edward his benefactor.</p> - -<p>Thus William’s laws were no other than the Confessor’s, except that by -one new one, he dextrously, by general words, unperceived by the English, -because couched in terms of the foreign feudal law, turned all the allodial -lands, which had remained unforfeited in the proprietor’s hands, into -military tenures. From that time, until the latter end of Henry the Third’s -reign, our parliaments bore the exact face of those on the continent in that -age; but then, in order to do some justice to the lesser barons, and the -lower military tenants, who were entitled by the principles of the constitution -to be present, but disabled by indigence to be so in person, they were -allowed to appear by representation, as were the boroughs about the same -time, or soon after. The persons entitled to vote in these elections for -knights of the shire, were, in my apprehension, only the minor barons, and -tenants by knight service, for they were the only persons that had been<span class="pagenum"><a id="Page_214"></a>[214]</span> -omitted, and had a right before, or perhaps with them, the king’s immediate -socage tenants <i>in capite</i>.</p> - -<p>But certain it is, the law that settled this had soon, with regard to liberty, -a great and favourable extension, by which all freemen, whether holding -of the king mediately or immediately, by military tenure or otherwise, were -admitted equally to vote; and none were excluded from that privilege, except -villeins, copy-holders, and tenants in antient demesne. That so great -a deviation from the feudal principles of government happened in so short a -time, can only be accounted for by conjecture. For records, or history, do -not inform us. I shall guess then, that the great barons, who, at the end -of Henry the Third’s reign, had been subject to forfeiture, and obliged to -submit, and accept of mercy, were duly sensible of the design the king had -in introducing this new body of legislators, and sensible that it was aimed -against them, could not oppose it. But, however, they attempted, and -for some time succeeded to elude the effects of it, by insisting that all freemen, -whether they held of the king, or of any other lord, should be equally -admitted to the right of the representation.</p> - -<p>The king, whose profession was to be a patron of liberty, Edward the -First, could not oppose this; and as he was a prince of great wisdom and -foresight, I think it is not irrational to suppose, that he might be pleased to -see even the vassals of his lords, act in some sort independently of them, -and look immediately to the king their lord’s lord. The effect was certainly -this, by the power and influence their great fortunes gave them in the -country, the majority of the commons were, for a long time, more in the -dominion of the lords than of the crown; though, if the king was either a -wise or a good prince, they were even then a considerable check upon the -too mighty peers.</p> - -<p>Every day, and by insensible steps, their house advanced in reputation -and privileges and power; but since Henry the Seventh’s time, the progress -has been very great. The encrease of commerce gave the commons -ability to purchase; the extravagance of the lords gave them an inclination, -the laws of that king gave them a power to alienate their intailed estates; -insomuch that, as the share of property which the commons have is so disproportionate<span class="pagenum"><a id="Page_215"></a>[215]</span> -to that of the king and nobles, and that power is said to follow -property, the opinion of many is, that, in our present situation, our -government leans too much to the popular side; while others, though they -admit it is so in appearance, reflecting what a number of the house of commons -are returned by indigent boroughs, who are wholly in the power of -a few great men, think the weight of the government is rather oligarchical<a id="FNanchor_281" href="#Footnote_281" class="fnanchor">[281]</a>.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_216"></a>[216]</span></p> - -<h2 class="nobreak" id="LECTURE_XXIII">LECTURE XXIII.</h2> - -<p><i>The privilege of voting for Knights of the Shire—The business of the different -branches of the Legislature, distinct and separate—The method of passing -laws—The history and form of the legislature in Ireland.</i></p> - -</div> - -<p>The house of commons growing daily in consequence, and the socage -tenants having got the same privilege of voting for the knights of -the shire as the military ones, it naturally followed, that every free person -was ambitious of tendering his vote, and thereby of claiming a share in the -legislature of his country. The number of persons, many of them indigent, -resorting to such elections, introduced many inconveniences, which are taken -notice of, and remedied by the statute of the eighth of Henry the sixth -chapter the seventh which recites, that of late “elections of knights had -been made by very great, outrageous, and excessive numbers of people of -which the most part was of people of small substance, and of no value, -whereof every one of them pretended a voice equivalent with the most -worthy knights and esquires, whereby manslaughter, riots, batteries, and -divisions among the gentlemen and other people of the same counties -shall very likely rise and be, unless convenient and due remedy be provided -in this behalf;” and then it provides that, “no persons should -have votes, but such as have lands or tenements to the value of forty -shillings a year above all charges.” And so the law stands at this day, -though by the change in the value of money, by the spirit of this statute, no -person should have a vote that could not dispend ten pounds a year at least. -Such a regulation, were it now to be made, would, certainly, be of great -advantage both to the representers and represented; but there is little prospect -of its ever taking place: And if it should be proposed, it would be -looked upon as an innovation, though in truth, it would be only returning -to the original principles of the constitution<a id="FNanchor_282" href="#Footnote_282" class="fnanchor">[282]</a>.</p> - -<p><span class="pagenum"><a id="Page_217"></a>[217]</span></p> - -<p>Our legislature, then, consisting of three distinct parts, the king, lords, -and commons, in process of time, each of them grew up to have distinct -privileges, as to the beginning particular businesses. Thus all acts of general -grace and pardon take their rise from the king; acts relative to the -lords and matters of dignity, in that house; and the granting of money in -the commons. How the commons came by this exclusive right, as to money -matters, is not so easy to determine. Certain it is that, originally, the -lords frequently taxed themselves, as did the commons the commonalty, -without any communication with each other; but afterwards, when it was -judged better to lay on general taxes, that should equally affect the whole -nation, these generally took their rise in that house which represented the -bulk of the people; and this, by steadiness and perseverance, they have arrogated -so far into a right peculiar to themselves, as not to allow the lords -a power to change the least title in a money bill. As to laws that relate not -to these peculiar privileges, they now take their rise indifferently either -in the lords or commons, and when framed into a bill, and approved by -both, are presented to the king for his assent; and this has been the practice -for these two or three hundred years past<a id="FNanchor_283" href="#Footnote_283" class="fnanchor">[283]</a>.</p> - -<p>But the ancient method of passing laws was different, and was not only more -respectful to, but left more power in the crown. The house which -thought a new law expedient, drew up a petition to the king, setting forth -the mischief, and praying that it might be redressed by such or such a remedy. -When both houses had agreed to the petition, it was entered on the -parliament-roll, and presented to the king, who gave such answer as he -thought proper, either consenting in the whole, by saying, <i>let it be as is desired</i>, -or accepting part and refusing or passing by the rest, or refusing the -whole by saying, <i>let the ancient laws be observed</i>, or in a gentler tone, <i>the -king will deliberate</i>. And after his answer was entered on the roll, the -judges met, and on consideration of the petition and answer, drew up the -act, which was sent to be proclaimed in the several counties<a id="FNanchor_284" href="#Footnote_284" class="fnanchor">[284]</a>.</p> - -<p>Lord Coke very justly observes that these acts drawn up by men, masters -of the law, were generally exceedingly well penned, short, and pithy,<span class="pagenum"><a id="Page_218"></a>[218]</span> -striking at the root of the grievance, and introducing no new ones; whereas -the long and ill penned statutes of later days, drawn up in the houses, -have given occasion to multitudes of doubts and suits, and often, in stopping -one hole, have opened two. However, notwithstanding this inconvenience, -there was good cause for the alteration of method. The judges, if -at the devotion of the court, would sometimes, make the most beneficial -laws elusory, by inserting a salvo to the prerogative, though there was none -in the king’s answer; whereas, by following the present course, the subjects -have reduced the king to his bare affirmative or negative, and he has lost -that privilege, by the disuse of petitions, of accepting that part which was -beneficial to himself, and denying the remainder<a id="FNanchor_285" href="#Footnote_285" class="fnanchor">[285]</a>.</p> - -<p>I have the rather mentioned this ancient practice of making laws, because -it shews how inconsistent with our constitution is that republican notion, -which was broached by the enemies of Charles the First, that the king, -by his coronation oath, swearing to observe the laws <i>quas vulgus elegerit</i>, was -obliged to pass all bills presented to him, and had no negative. The meaning, -certainly, only extended to his observation of the laws in being. For -if the words were to be construed of future propositions, and in the sense -that those people would put upon them, the lords also, as well as the king, -must be deprived of their power of dissent, and so indeed, it appears, they -expounded it; for when the lords offended them, by refusing the trial of -the king, they confidently enough with the maxim they had established, -turned them out of doors.</p> - -<p>But though such as I have mentioned is the constitution of the English -parliament, the form of the legislature in this kingdom hath been for above -two hundred and sixty years very different, the nature of which, and the -causes of its deviation from its model, it is proper every gentleman of this -country should be acquainted with. In the infancy of the English government -in Ireland, the chief governors were generally chosen by the king out -of the lords of the pale, the descendants of the first conquerors, both as they -were better acquainted with the interest, and more concerned in the preservation -of the colony, and also as, by their great possessions, they were -better enabled to support the dignity of the place, whose appointments, the<span class="pagenum"><a id="Page_219"></a>[219]</span> -king’s revenue here being inconsiderable, were very low. These governors, -however, though men of the greatest abilities, and of equal faithfulness to -the crown, were not able to preserve the footing the English had got soon -after the conquest; but were every day losing ground to the natives, down -to the reign of Edward the Third, which is generally, and, I believe, justly, -attributed to the negligence of the English lords, who, by intermarriages, -had acquired great estates in Ireland. The power of these lord lieutenants -was, in one respect, likewise exorbitant, namely, in giving consent to laws -without ever consulting his majesty, a power, perhaps, necessary at first, -when the country was in a perpetual state of war, and its interest would not -brook delays, but certainly, both for the sake of king and people, not fit -to be continued.</p> - -<p>It was natural, therefore, for the king, who found himself ill served, to -change hands, and to entrust this exorbitant power with persons not estated -in the country, and whose attachment he could confide in; and accordingly, -from that time, we find natives of England generally appointed to the government, -to the great discontent of the Irish lords, who looked upon themselves -as injured by the antient practice not being continued. This discontent -was farther inflamed by a very extraordinary step, which this otherwise -wise and just king was prevailed upon to take, and which first gave rise to -that famous distinction between the English by blood, and the English by -birth. This king, and his father Edward the Second, had granted great -estates, and extensive jurisdictions to many Irish lords of English blood, for -services pretended to have been done, many of which, it is probable enough, -as the king alledged, were obtained by deceit and false representation; and -had he contented himself with proceeding in a legal course, by calling -these patents in by <i>scire facias</i>, and vacating them upon proof of the deceit, -no person could have complained; but he took a very different method, as -appears from the writ he thought proper to issue on that occasion. <i>Quia -plures excessivæ donationes terrarum, tenementorum & libertatum, in terra Hiberniæ, -ad minus veracem & subdolam suggestionem petentium, tam per Edward -II. quam per regem nunc factæ sunt, rex delusorias hujusmodi machinationes -volens elidere, de concilio peritarum sibi assistentium, omnes donationes terrarum, -tenementorum, & libertatum prædictarum duxit revocandas, quousque de -meritis personarum, de causis & conditionibus donationum prædictarum fuerit informatus,<span class="pagenum"><a id="Page_220"></a>[220]</span> -& ideo, mandatum est justiciariis regni Hiberniæ, quod omnia terras -tenementa & libertates predicta per dictos regis justiciarios aut locum tenentes suos -quibuscunque personis facto scisire facias.</i> This hasty step alienated the English -Irish from the king and his advisers, and though, after a contest of eleven -years, the king annulled this presumption, the jealousy continued on -both sides, and the Irish of English blood, were too ready to follow the banners -of any pretender to the crown of England.</p> - -<p>In the reign of Henry the Sixth, that weak prince’s ministers, jealous of -the influence of Richard duke of York in England, and of his pretensions -to the crown, constituted him governor of Ireland; than which they could -not have done a thing more fatal to their master’s family, or to the constitution -of this kingdom, as it turned out in the sequel; for to induce him to -accept it so eager were they to remove him from England, they armed him -almost with regal powers. He was made lieutenant for ten years, had all -the revenue, without account, besides an annual allowance from England; -had power to farm the king’s lands, to place and displace officers, and levy -soldiers at his pleasure. The use the duke made of his commission was to -strengthen his party, and make Ireland an asylum for such of them as should -be oppressed in England; and for this purpose passed an act of parliament, -reciting a prescription, that any person, for any cause, coming into the said -land, had used to receive succour, tuition, supportation, and free liberty -within the said land, during their abiding there, without any grievance, -hurt, or molestation of any person, notwithstanding any writ, privy seal, -great seal, letters missive under signet, or other commandment of the king, -confirming the said prescription, and making it high treason in any person -who should bring in such writs, and so forth, to attach or disturb any such -person.</p> - -<p>This act, together with the duke’s popularity, and the great estate he -had in this kingdom, attached the English Irish firmly to his family, insomuch -that, in Henry the Seventh’s reign, they crowned the impostor Lambert -Simnel, and were afterwards ready to join Perkin Warbeck; and by -this act of the duke of York’s they thought to exculpate themselves<a id="FNanchor_286" href="#Footnote_286" class="fnanchor">[286]</a>. But<span class="pagenum"><a id="Page_221"></a>[221]</span> -when that king had trodden down all opposition, he took advantage of the -precarious situation they were in, not only to have that act repealed, and to -deprive his representatives there from passing laws <i>rege inconsulto</i>, but -also to make such a change in the legislature, as would throw the principal -weight into his and his successors’ hands; and this was by the famous law of -Poyning’s<a id="FNanchor_287" href="#Footnote_287" class="fnanchor">[287]</a>. By former laws a parliament was to be holden once a year, -and the lords and commons, as in England, were the proposers. This act, -intended to alter these points, gave occasion to many doubts; and indeed, -it seems calculated for the purpose of not disclosing its whole effect at once. -Its principal purport, at first view, seeming to be intended to restrain the -calling the parliament, except on such occasions as the lord lieutenant and -council should see some good causes for it, that should be approved by the -king. The words are, that “from the next parliament that shall be holden -by the king’s commandment and license, no parliament be holden -hereafter in the said land, but at such season as the king’s lieutenant and -council there first do certify the king, under the great seal of that land, -the causes and considerations; and all such acts as to them seemeth should -pass in the same parliament, and such causes, considerations, and acts, -affirmed by the king and his council to be good and expedient for that -land, and his license thereupon, as well in affirmation of the said causes -and acts, as to summon the said parliament under his great seal of England -had and obtained; that done, a parliament to be had and holden -after the form and effect before rehearsed, and any parliament holden -contrary to be deemed void<a id="FNanchor_288" href="#Footnote_288" class="fnanchor">[288]</a>.”</p> - -<p>The first and great effect of this act was, that it repealed the law for -annual parliaments, and made the lord lieutenant and council, or the king -who had the naming of them, with his council of England, the proposer to -the two houses of the laws to pass, at least of those that should be so devised -before the meeting of parliament. But the great doubt was, as there -were no express words depriving the lords and commons of their former -rights, whether, when the parliament was once met, they had not still the -old right of beginning other bills, or whether they were not restrained to -the acts so certified and returned. By the preambles of some acts, soon<span class="pagenum"><a id="Page_222"></a>[222]</span> -after made, expressing that they were made at the prayer of the commons -in the present parliament assembled, one would be inclined to think that -the commons, after the assembling the parliament, had proposed these laws. -Certain it is, the latter opinion, supported by the ministers of the king and -his lawyers, gained ground. For, in the twenty-eighth of Henry the -Eight’s reign, an act was made suspending Poyning’s law with respect to -all acts already passed, or to be passed in that parliament; the passing of -which act was certainly a strong confirmation of what was before doubtful -against the house of lords or commons in Ireland, whether they could -bring in bills different from those transmitted by the council, since here -they both consented to the suspension of the act, to make valid the laws -they had passed or should pass in that parliament, without that previous -ceremony<a id="FNanchor_289" href="#Footnote_289" class="fnanchor">[289]</a>.</p> - -<p>But in the reign of Philip and Mary, by which time this opinion, before -doubtful (for so it is mentioned in the act then made) was, however, to be -maintained, and strengthened, as it added power to the crown. The act -we at present live under was made to prevent all doubts in the former, -which was certainly framed in words calculated to create such doubts, to -be extended in favour of the prerogative. This provides, that as many -causes and considerations for acts not forseen before, may happen during -the sitting of parliament, the lord lieutenant and council may certify them, -and they should pass, if they should be agreed to by the lords and commons. -But the great strokes in this new act were two, the first explanatory of part -of the former in Henry the Seventh’s reign, that is, that the king and council -of England should have power to alter the acts transmitted by the council -of Ireland; secondly, the enacting part, that no acts but such as so came -over, under the great seal of England, should be enacted; which made it -clear, that neither lords or commons in Ireland had a right to frame or -propose bills to the crown, but that they must first be framed in the privy -council of Ireland, afterwards consented to, or altered by the king, and the -same council in England, and then, appearing in the face of bills, be refused -or accepted <i>in toto</i> by the lords and commons here<a id="FNanchor_290" href="#Footnote_290" class="fnanchor">[290]</a>.</p> - -<p><span class="pagenum"><a id="Page_223"></a>[223]</span></p> - -<p>It is true, that both lords and commons have attempted, and gained an -approach towards their antient rights of beginning bills, not in that name, -but under the name of <i>Heads of Bills</i>, to be transmitted by the council; but -as the council are the first beginners of acts of parliament, they have assumed -a power of modelling these also. The legislature of Ireland is, therefore, -very complicated. First, the privy council of Ireland, who, though they -may take the hint from the lords or commons, frame the bill, next the king -and council of England, who have a power of alteration, and really make it -a bill, unalterable, by sending it under the great seal of England; then the -two houses of lords and commons, who must agree in the whole, or reject -the whole; and, if it passes all these, it is presented to the king for his assent; -which indeed is but nominal, as it was before obtained.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_224"></a>[224]</span></p> - -<h2 class="nobreak" id="LECTURE_XXIV">LECTURE XXIV.</h2> - -<p><i>Villenage—The Servi in Germany, mentioned by Cæsar and Tacitus, the predecessors -of the Socmen or socage tenants in the feudal monarchy—Villeins in gross -and villeins belonging to the land of the Lord—The condition of villeins—The -different ways by which a man may become a villein—The means by which villenage -or its effects may be suspended.</i></p> - -</div> - -<p>I now proceed to the lowest class of people that were in a feudal kingdom, -who, indeed, were not any part at all of the body politick, namely -<i>copyhold tenants</i>, <i>tenants in ancient demesne</i>, and <i>villeins</i>, on which I shall -not much enlarge as villenage is worn out both in England and Ireland; -and though the two former are common in England, yet there are none -such in this kingdom. I shall begin with <i>villenage</i>, though the lowest kind, -as I apprehend the other two by the tacit consent of their lords, have for -ages, from being villeins acquired the privileges that distinguished them -from such.</p> - -<p>In a former lecture I gave it as my opinion, that, while the nations of the -north continued in Germany, there was no such order of men among them; -but that the persons among those people who were called <i>servi</i> by Cæsar -and Tacitus, were the predecessors of the <i>socmen</i> or <i>socage tenants</i> in the feudal -monarchy; though they certainly had not all the privileges the socmen -acquired, and that, after their settlements in their conquests, this rank was -introduced, and formed out of their captives taken in war, in imitation of -the Roman slaves. In this I am strongly supported by my lord Coke, who -quotes Bracton, Fleta, and the Mirror, concerning their origin, to the following -purpose: “The condition of villeins who passed from freedom into -bondage in ancient time grew by the constitution of nations, and not -by law of nature; in which time all things were common to all, and by -multiplication of people, and making proper and private those things -that were common, arose battles. And then it was ordained by constitution<span class="pagenum"><a id="Page_225"></a>[225]</span> -of nations (he means by the tacit consent of civilized nations) that -none should kill another, but that he that was taken in battle should remain -bond to his taker for ever, and he to do with him, and all that should -come of him, his will and pleasure, as with his beast or any other cattle, -to give, or to sell, or to kill. And after, it was ordained for the cruelty -of some lords, that none should kill them, and that the life and members -of them, as well as of freemen, were in the hands and protection of -kings, and that he that killed his villein should have the same judgment -as if he had killed a freeman<a id="FNanchor_291" href="#Footnote_291" class="fnanchor">[291]</a>.” This, it falls also to be observed, is the -very account the Roman civil law gives of the original of servitude.</p> - -<p>Villenage, therefore, was a state of servitude, erected for the purpose -of doing the most ignoble, laborious, and servile offices to the lord, according -to his will and pleasure, whensoever called upon; such as the instances -<i>Littleton</i> gives, of carrying and recarrying dung, and spreading it on his -lord’s land. <i>Bracton</i>, thus defines it <i>purum villenagium est, a quo prestatur -servitium incertum indeterminatum, ubi scire non poterit vespere quale servitium, -fieri debet mane</i>, viz. <i>Ubi quis facere tenetur quicquid ei præceptum fuerit</i>. So -the most honourable service, the military one, was free, and its duties uncertain. -The next in rank, the socage was free, and its duties certain. -This, the lowest, was servile, and its duties uncertain<a id="FNanchor_292" href="#Footnote_292" class="fnanchor">[292]</a>.</p> - -<p>Of those villeins there were two kinds, villeins belonging to the person -of the lord and his heirs, which our law calls <i>villeins in gross</i>, and <i>villeins -belonging to the land of the lord</i>, and who, in consequence of the lands being -aliened, went over to the new acquirer, without any special grant. These -were in the Roman law, called, <i>servi adscriptitii glebæ</i>, that is, slaves annexed -to the soil, and by our lawyers <i>villeins</i> regardant to a manor; for manors -were, antiently, thus distributed. After the lord had reserved to himself -a demesne contiguous to his castle, sufficient for the purpose of his house -and his cattle, the remainder was generally divided into four parts; the first -for settling such a number of military tenants as might always more than suffice -to do the service due to the superior lord; the second for socage tenants, -to plow the lord’s demesne, or, in lieu thereof, to render corn, cattle, or -other things as stipulated by him; the third for villeins, for the purpose of<span class="pagenum"><a id="Page_226"></a>[226]</span> -carrying dung, felling timber, making inclosures, and other servile offices, -as required by the lord at his pleasure; and the last share of land, was called -the <i>waste</i>, or <i>common</i>, being generally woodland, and coarse pasture, the wood -for the lord’s hunting, for supplying him with timber at his pleasure, and the -tenants with reasonable <i>estovers</i> as they are called, out of the woods, in those -three articles, <i>housebote</i> for the support of their houses, <i>sloughbote</i>, for their -utensils of husbandry, and <i>firebote</i>, for fewel; and the pasture for the cattle -of all the tenants, military, socage, and villeins in common. This was the -usual method of distribution, not however into equal parts, for the demesne -and waste were generally much the largest, nor always into the same number -of parts, for this varied according to the quantity and quality of the -land, whether better or worse, and the military service reserved, whether -lighter or heavier<a id="FNanchor_293" href="#Footnote_293" class="fnanchor">[293]</a>.</p> - -<p>From this distribution we may see that, in most manors, there was land -which, having been originally set apart to the use of the villeins, was called -villein-land, which retained its name, and was liable to the same name, -and servile services, though it had come into the hands of freemen, who, -consequently, though free, might hold lands in villenage, and be obliged to -do the same uncertain services as a villein was. Few freemen however we -may suppose, would submit to such uncertain burthens, and therefore when -they took such lands, the lord generally reduced the service to a certainty, -and this tenure, because of the low nature of the duties they performed, was -also, though abusively, called <i>villenage</i>. But speaking with propriety, it was -socage, the tenant being a freeman, and the services certain. Certainty of -service being, as I have often mentioned, the grand characteristic that distinguished -the socage tenure from the military above it, and from villenage -below it.</p> - -<p>Let us now see what kind of property this rank of people had in their -persons, their lands and their chattles; for from what has been already observed, -some kind of property they must have had, or they could not have performed -the services. And the first rule is, that, with respect to every person -but his lord alone, a villein was perfectly a freeman. His life, his liberty, -his property, were equally protected by the law, as those of any other person.<span class="pagenum"><a id="Page_227"></a>[227]</span> -He could acquire, he could alien property, he could be plaintiff in all -kinds of actions whatsoever; but if defendant he might plead his being a -villein. As to his lord, his case was very different. His life, indeed, his -liberty, his limbs, were under the protection of the king; and if in these -he was injured by his lord, the lord should be punished at the suit of the -king, as in the case of any other subject, but not at his own suit. However, -there was two excepted cases, where the law (for they most certainly -punished the two detestable crimes of murder and rape) gave a villein actions -against the lord, namely an <i>appeal</i>, that is an accusation in his own -name of murder, where the lord had killed the villein’s ancestor; and appeal -of rape, where the lord had ravished his <i>neif</i>, for so a bond woman, or -female villein, or <i>nief</i>, is called in our law. And here if the lord was found -guilty, the villein, or <i>neif</i>, were by that judgment manumized for ever. For it -would have been a glaring absurdity, to have afterward trusted them in the -power of the heir of that lord, whom they had hanged. Neither had a villein, -with respect to his daughter, the same power of disposing her in marriage -without the lord’s consent as he had of his son. And this distinction -was founded upon solid reason, for the son of a villein, after his marriage, -and his issue, continued in the same plight as he was in before, villeins to the -lord; but the daughter, by her marriage, passed into another family, and -her issue were either to be freemen, if her husband was free, or villeins to -the other lord, if her husband was such; so that the lord had a very important -interest in his seeing his villein’s daughter married to another villein of -his. This previous consent, however, wore out by degrees, and by the -custom of particular places, a certain fine was all that the lord could claim -for the marriage.</p> - -<p>With respect to the lands the villein held from his lord, and also as to -his chattels, or personal fortune, he was only tenant, or possessor at the will -of the lord; for he the lord might resume the one, or take possession of the -other whenever he pleased; but in the interim they were the villeins, and he -might convert the profits of them to his own use, unless they were also in -being and seized; the seizure of them being what made the absolute property -in the lord. And the case was the same with respect to purchases, or -acquisitions of lands or goods; for before the seizure, or some other public -act equivalent thereto, the villein might alien them as well as the goods he -had held before at the will of the lord, and the alienation was good against -the lord, and the reason of this was undeniable. For it would have put a<span class="pagenum"><a id="Page_228"></a>[228]</span> -total stop to all commerce both of goods and land, if every buyer was obliged, -at his peril, to make enquiry, and to take notice whether the seller -may not possibly, in truth, be a villein to some one of the many lords in the -kingdom; and it would have been highly absurd to allow the lord to seize -the lands, or goods in the hands of the purchaser, when he might seize the -purchase money likewise in the hands of his villein, the seller; I say it is the -seizure, or some other public act equivalent thereto, that vests the property -in the lord; for, in all cases, an actual seizure was not possible. A few instances -will clear this up<a id="FNanchor_294" href="#Footnote_294" class="fnanchor">[294]</a>.</p> - -<p>If the villein purchases lands in possession in fee simple, fee tail, life, or -years, the lord should, if he had a mind to make them his, enter, and claim -them; or if, for fear of danger, he dare not enter, should come as nigh to -the lands as he dare, and claim them there. And this was sufficient to vest -the estate in the lord, according to the nature of the estate the villein had -in it, and to defeat a future purchaser; even though the lord should suffer -the villein to continue in the possession. For the purchaser is obliged, at -his peril, to take notice of all legal acts of notoriety, done respecting the -lands he purchases. But if the villein purchases land not in possession, as suppose -a remainder, or reversion, where there is a prior estate for life or lives, -or in tail, in another person in being; here the lord cannot enter, for that -would be disseizing, and doing wrong to the immediate tenant of the freehold; -and if he waited till that estate was spent, and the remainder or reversion -was to come into possession, the villein might have aliened them before, -and so defeated his lord. He should, therefore, in such case, come to the -land, and claim the reversion or remainder, as his villein’s purchase. And -this act presently is sufficient to vest them, the reversion or remainder in him, -and to defeat a future purchaser. So if a villein purchased an advowson, -or presentation to a living, where the parson of the church is living, the -lord cannot present, which is the proper act to gain possession of the advowson. -For the church is full of an incumbent, but he shall come to the church, -and claim the advowson as his villein’s purchase; and this vests the advowson -in him, and will defeat a future alienation by his villein. In the same -way with respect to goods; the lord may either seize them, and retain them -in his own hands, or may come to the place where they are, and openly -claim them before the neighbours, and seize a part of them in the name of<span class="pagenum"><a id="Page_229"></a>[229]</span> -the whole goods his villein <i>hath</i>; and this shall vest the property in him, -though he leaves the possession still in his villein; and if he adds the words -or <i>may have</i>, it vests the property of goods after acquired, though it is otherwise -of lands.</p> - -<p>From this power of the lord as to his villein’s property, it appears the -villein can bring no action relative to property against him; for all such actions, -being either to recover the thing itself, or damages for the wrong done, -in both cases, it would be useless, and improper. For, inasmuch as the lord -had right to take, the taking could be no injury, and to give damages even -for a personal injury would be absurd and nugatory, since the lord might -immediately, as soon as recovered rightfully, retake them from his villein. -Therefore Littleton says, “a villein cannot have an appeal of maim against -his lord that hath maimed him<a id="FNanchor_295" href="#Footnote_295" class="fnanchor">[295]</a>.” For, as the law then stood, <i>maim</i> was -only punishable by fine and imprisonment, at the suit of the king, or by damages, -in an appeal of maim, at the suit of the party. Neither could he -have an appeal of robbery against him, though that offence, with respect to -freemen, was capital; for the lord having a right to take, could not be -guilty of robbery. However, there was one excepted case, wherein the -lord could not take things out of his own villein’s hands, and wherein the -villein also might maintain an action against him; but then, in this case, -the villein acted not in his own right, but in that of another, <i>in autre droit</i>, -as our law says, which was when a villein was made an executor. For here -he acted not in his own right, but as representative of his testator, for the -performance of whose will, and for no other purpose, he had allowed to him -this possession against his lord, and this right of action against him.</p> - -<p>Let us now see how many different ways a man might be a villein, how -many ways the villenage, or its effects, may be suspended, and how many -ways it might be totally destroyed.</p> - -<p>Now a man might be a villein either by birth, or become such by his -own act. With respect to birth, our law considers only the condition of -the father, whether free or villein, contrary to the civil law, where the -maxim is <i>partus sequitur ventrem</i>. Our rule seems more agreeable to natural<span class="pagenum"><a id="Page_230"></a>[230]</span> -reason, as the husband is master of the family, the head of the wife, -and supposed, at least, the principal party in the production of the offspring. -Yet the Roman law is not therefore to be charged with absurdity, it proceeding -on a principle peculiar to itself, namely, that they allowed no matrimony -but between free persons; a cohabitation between two slaves, or -between a slave and a free person, was called <i>Contubernium</i>, not <i>Nuptiæ</i>, -nor <i>Matrimonium</i>; and to such a commerce their law did not give such continuance, -or entire credit, as to presume the father to be certain. A freewoman -who so far disgraced herself as to cohabit with a slave, they supposed -equally guilty with others; and therefore, as the father was uncertain, -<i>in favorem libertatis</i>, they presumed him a freeman. And, on the -contrary, though a freeman cohabited with a slave, that law gave no credit -to her constancy, but rather supposed the issue begat by one of her own -rank, another slave. But in England, if the father was free or slave, the -issue was so; for our law admitting such marriages as good ones, upon the -maxim, <i>whom God hath joined let no man sunder</i>, gave them an entire credit. -What then shall we say was the case of <i>bastards</i>, where the father was -entirely unknown, and who were <i>filii nullius</i>. Some old opinion in England -indeed held, that if the mother was a neif, because she was certain, the -issue should be a villein; but this doctrine was exploded, and it was settled -that, as the child was, by our law, to follow the rank of his father, and -who that was, was entirely uncertain, it should be universally presumed in -favour of liberty, that the father was a freeman, whatever the mother was. -A bastard, therefore, could not be a villein, but by his own act; and how -a man could become so I shall next proceed to shew<a id="FNanchor_296" href="#Footnote_296" class="fnanchor">[296]</a>.</p> - -<p>There was then but one way for a freeman born to become a villein, I -mean in the latter ages, when the practice of making slaves of captives taken -in war went into disuse, and that was by his admission and confession. -For <i>volenti non fit injuria</i> is a maxim of all laws, and in the antient times of -confusion, it might be an advantage, at some times, to a poor freeman to -put himself, even in this law manner, under the protection of a lord that -was both powerful and humane. But so careful was the English law of liberty -that it did not allow every confession or admission to conclude against -a man’s liberty, but such an one only as could not proceed from mistake, inadvertence,<span class="pagenum"><a id="Page_231"></a>[231]</span> -or constraint. The confession must be made in a court of record, -and entered on record. Then indeed was it conclusive, for it is a -maxim of our law, that there is no averring against a record, that is, charging -it, or the contents thereof, with falsehood. For if that could be, property -could never receive a final determination, nor a man be certain that -the suit that he had obtained might not be renewed against him<a id="FNanchor_297" href="#Footnote_297" class="fnanchor">[297]</a>.</p> - -<p>But the law went farther in its precautions, and would not suffer any -confession, even in a court of record, to destroy liberty. If a man came voluntarily -into such a court, and made an extrajudicial confession, that is -where there was no suit depending, and contested in that court, it could -not bind him. The confession, to bind, must be made in such a court, and -in a suit litigated there; so that there might be no room afterwards for pretending -surprize, error, constraint, or terror. Thus, if a stranger brought -any action against a man (for if the lord brings any action, except one kind -only, against his villein, he the villein, is thereby manumized, as I shall observe -hereafter) I say, if a stranger, A, brought an action against B, and B, -to bar A, of his action, pleads on record, as he may, that he is villein to C, -this confession shall bind him, and he shall be C’s villein, though he was in -truth a freeman; yea though A, in that very action, had replied that B -was a freeman, and had even proved him such: And indeed this was but a -just punishment for his fraudulent attempt to deprive A of his action.</p> - -<p>Again, if a lord, claiming a man to be his villein, bring the writ called -<i>nativo habendo</i>, the proper one to prove this fact, that the defendant was -his villein, and the defendant confesses himself judicially so to be, he and his -issue are bound, though he was free before; or if the defendant, in such -case, pleads he is a freeman, and the lord, to prove him his villein, produces -the defendant’s uncles, or cousins, who swear, that they and their ancestors, -from time immemorial, or from a time antecedent to the separation -of family, have been villeins to that lord and his ancestors, whatever becomes -of the original suit, they themselves thenceforwards are the lord’s -villeins; and though they were in truth free, it is but a just punishment, as -I observed before, for their foul attempt of reducing their kinsman to slavery. -However, as we must allow that every man is fond of his own and his posterity’s<span class="pagenum"><a id="Page_232"></a>[232]</span> -liberty, we must accordingly believe that these instances of freemen -becoming slaves voluntary were very rare, and, that the majority of villeins -were such as were so by birth. Before I leave this head, I should observe -that, with respect to the issue of men becoming villeins by their own confession, -the issue born after the confession alone were bond, as being so born, -and that the children born before, retained the liberty they had acquired by -their birth.</p> - -<p>Villenage could not only be totally destroyed by many means, but also -might be suspended for a time, and afterwards revive. The suspension arose -from some subsequent obligation the villein, or nief, happened to lie under, -which the law considered, and favoured more than the lord’s right in his villein, -or nief; therefore, if the king made a villein a knight, such a creation, -being for the defence of, and to encrease the military strength of the realm, -and the person obliged to serve accordingly, his state of villenage was suspended, -not destroyed. For, if he was afterwards degraded from his order, -he became the lord’s villein again, so if a villein became a monk professed, -now was he obliged to live entirely in his monastery, and spend his time in -prayers, and other spiritual exercises, duties inconsistent with his service as -a villein; and those being performed to God were preferred to the interest -of the lord; but if such monk was deraigned, that is, degraded from his -order, and turned out of his monastery, he became a secular man again, and -the lord’s right revived. But if a villein is made a secular priest, he not -being confined to a monastery, nor his whole time dedicated to the service -of God, he is still a villein and obliged to attend his lord at all times, when -the stated times or occasions of his new duty do not employ him. So if a -nief marries a freeman, the right of the husband in his wife, as founded on -the law of God and nature, is preferred to the lord’s, though prior, which -is founded only on the constitutions of nations: She, therefore, is priviledged, -and a free woman during the coverture; but if the husband dies, or -a divorce happens, then is she a nief again. But it may be asked, shall the -lord thus, without any fault of, or consent from him, be, by the act of -others, deprived, even for a time, of his right in his villein, and the advantage -thence arising? I answer, though the law, for the public good, suspended -the villenage, it did not leave the lord without redress for the wrong -done unto him. For, in the cases of profession and marriage, the lord shall -have his action against, and recover the damages he may sustain, from the<span class="pagenum"><a id="Page_233"></a>[233]</span> -abbot who had admitted his villein a monk, or the husband who married -his nief; but against the king who has knighted his villein, he cannot have -an action, for, according to the principles of the feudal law, to bring an -action against the king is a breach of fealty: it is charging him with injustice, -and with breaking that mutual bond, whereby he is tied to his vassals -as strictly as they are tied to him. But he shall not be without remedy. -He shall have his action, and recover damages against those, who by -their aid, advice, counsel, or recommendation prevailed on the king to -make his villein a knight. Coke mentions two cases more, wherein I cannot -say so fully as he says, the <i>villenage itself</i> is suspended, as that the <i>effects</i> -thereof are suspended, as to a certain place; and both these are in honour -of the king, one is when a villein escapes from his lord, and has continued -for a year and a day in the demesne of the king, doing service to him as -his villein. The lord can neither seize him, nor even bring a writ of <i>nativo -habendo</i> against him while he continues in the royal demesne. The other -is where a villein is made a secular priest in the king’s chapel. The lord -cannot seize him in the presence of the king<a id="FNanchor_298" href="#Footnote_298" class="fnanchor">[298]</a>.</p> - -<p>We shall next have a more agreeable subject, and by considering the many -ways the law of England hath contrived to destroy villenage, have the -pleasure of observing its natural bent toward the equal liberty of mankind, -and how it rejoiced to shake off the shackles of servitude, even in those days -when it admitted it.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_234"></a>[234]</span></p> - -<h2 class="nobreak" id="LECTURE_XXV">LECTURE XXV.</h2> - -<p><i>The methods invented to destroy villenage—The bent of the law of England -towards liberty—Copyhold tenants—Tenants in ancient demesne.</i></p> - -</div> - -<p>Relative to villenage, the following are the words of the antient judge -Fortescue, who wrote a treatise on the grounds of the English law, for -the instruction of his pupil, the unfortunate son of the unfortunate king -Henry the Sixth. <i>Ab homine, & pro vitio introducta est servitus; sed libertas -a Deo hominis est indita naturæ. Quare ipsa ab homine sublata semper redire -gliscit, ut facit omne quod libertate naturali privatur<a id="FNanchor_299" href="#Footnote_299" class="fnanchor">[299]</a>.</i> We are now to see -how, and in how many ways, our law favours this natural propensity to liberty. -And the first and plainest is a direct enfranchisement, or, as the Romans -called it, <i>manumission</i>. This, in the ancient times, before writing was -common, used to be done, as all their important acts, (for the better preserving -them in memory) in great form. <i>Qui servum suum liberum facit, in -ecclesia, vel mercato, vel comitatu, vel hundredo</i>, (<i>that is, the county court or -hundred court</i>) <i>coram testibus, & palam faciat, et liberas ei vias, & portas conscribit -apertas, & lanceam, & gladium, vel quæ liberorum arma in manibus ei -ponat<a id="FNanchor_300" href="#Footnote_300" class="fnanchor">[300]</a>.</i> But after the use of writing became common, the method was by -the lord’s deed (mentioning him to be his villein, and expressly infranchising -him) sealed by the lord’s seal, and attested by proper witnesses, as other -deeds between freemen should be<a id="FNanchor_301" href="#Footnote_301" class="fnanchor">[301]</a>.</p> - -<p>Before I go farther, I should observe the favour of the English laws to -liberty in that, by it all manumission, of what kind soever, was absolute and -irrevocable. Once a freeman, and ever so; whereas by the civil law, a freedman -was bound to many duties towards his patron. A relation between them -still subsisted, and if he was guilty of ingratitude, that is, of any of the -many offences their law marked as such, he was again to be reduced to -slavery.</p> - -<p><span class="pagenum"><a id="Page_235"></a>[235]</span></p> - -<p>But besides this species of express enfranchisement, there were many -implied ones. First, by the a act of the lord alone, and others by construction -of law, upon the act either of lord or villein. By the act of the lord -alone, namely, if he had entered into any solemn certain contract with his -villein, giving him thereby either a permanent right of property, or a power -to bring an action against his lord. In such cases he was instantly manumized, -without express words; for, otherwise, he could not have the benefit -of the gift intended, and the lord’s act, in such cases, should be construed -most wrongly against himself. As if the lord gives land to his villein -and his heirs, or to him and the heirs of his body, or to him for life; immediately -on the giving livery and seizin, which was, as I have often observed, -what compleated an estate of freehold, and made it irrevocable, the -villein became free. Otherwise he could not enjoy the benefit of the grant, -or protect it against his lord.</p> - -<p>The same was the case if the lord gave him any certain property, as a -bond for payment of a sum of money, or a yearly annuity, or a lease of -lands for years. The villein could not securely enjoy the benefit of the -gift, without being able to bring an action against his lord, and consequently -being free against him. Yea, though the annuity or lease of land was -but for years, the manumission was absolute for ever, and not suspended -for the years only; which was different from the cases I put in my last lecture, -of villenage being suspended by the act, not of the lord, but another -person; but here where the lord himself, by his own act, set him free, -though but for a time, he was free for ever. But if the lord gave his villein -lands to hold at will; this being of the same nature with the proper -holdings of villeins, and the lord having reserved in his own breast a power -of ousting whenever he pleased, the villein gaining thereby no certain property, -he continued in his former situation.</p> - -<p>Secondly, a man may be enfranchised without express words, by construction -of law, operating on the act either of the lord or villein. If a lord -had a mind to dispossess his villein of lands, or of goods, he had a right to -enter on the lands, or seize the goods, without ceremony; but if, waving -this right, he brought an action against him for them, or if he brought not -any action personal against him, but the one of <i>Nativo Habendo</i>, the villein<span class="pagenum"><a id="Page_236"></a>[236]</span> -was enfranchised, whether the lord recovered or not, or whether he prosecuted -the action or not. For when he omitted the easy remedy the law -appointed, and brought his villein into court to defend his right, he admitted -him to be a person that could stand in judgment against him, and litigate -with him; that is, to be a freeman. But it must be observed this enfranchisement -did not commence immediately from the taking out the writ, -which was the commencement of the action, but from the appearance of -both plaintiff and defendant, and this for the benefit of the lord; for otherwise, -as Coke observes, a stranger, by collusion with a villein, might take -out an action against him in his lord’s name. To which I may add, that -the lord might have intended his action against a freeman of the same name -with the villein, and the sheriff might have summoned the villein by mistake. -In this case it was hard that the lord should suffer. He therefore might, -when he saw the villein ready to appear, nonsuit himself, that is, decline -appearing; and then the villein could not appear, and therefore was not -enfranchised. But if he went on, and suffered his villein to appear, and -consequently enabled him to plead against him, he must have abided by the -consequences of his own folly, and his nonsuiting himself afterwards could -in no sort avail him<a id="FNanchor_302" href="#Footnote_302" class="fnanchor">[302]</a>.</p> - -<p>A villein might likewise be manumitted by his lord’s bringing a criminal -action against him, though this was no admission of permanent property in -him, or of his capacity of standing in law against him as a freeman; as if -the lord brought an appeal of felony, as of murder, or robbery, against -him. If he was acquitted he might be enfranchised, because he might be -entitled to recover damages for the malicious prosecution, and the danger -his life had been in; and damages he could not recover without being a -freeman. I say <i>might</i> be enfranchised, because he <i>might</i> recover damages. -For in this case a distinction is to be taken, whether the villein was, before -the appeal brought, indicted at the suit of the king for the same offence, or -was not. If he was not, the acquittal shewed the prosecution to be malicious, -and the villein was entitled to recover damages, and so to be free. But -if he had been indicted, there were no grounds to suppose the appeal brought -maliciously. The finding the indictment by the grand jury was a presumption -of his guilt. The lord had a rational ground for bringing his appeal,<span class="pagenum"><a id="Page_237"></a>[237]</span> -and he had a right to bring it for the punishment of his villein, if guilty. -Otherwise he could not have him hanged, for the indictment at the king’s -suit might not be prosecuted, or the king might pardon. In such case, -therefore, there being no malice presumed, the law gave no damages, and -consequently no enfranchisement. But the lord’s bringing the writ called -<i>Nativo habendo</i> against his villein, namely, claiming a man to be his, as such, -was no enfranchisement, for that would defeat the ends of the suit; and the -law allowed the lord a power to seize his villein without further ceremony, -it did not precisely compel him to that method only, for his villein might -be at too remote a distance, or under the protection of persons too powerful. -But if, after appearance, the lord suffered himself to be nonsuited, in -this action, it was an enfranchisement.</p> - -<p>The law, likewise, enfranchised in some cases on the act of the villein -himself, as if the lord had been found guilty in an appeal of murder, brought -by his villein, or of rape by his nief; but these I mentioned in the last lecture, -and the reason is apparent.</p> - -<p>By all these various ways the number of villeins insensibly diminished, -and the number of freemen continued to encrease in every reign; but what -gave the finishing stroke to servitude were the confusions occasioned by the -two contending houses of York and Lancaster; when the whole kingdom -was divided, and every lord obliged, even for his own security, to take part -with one side or the other; and when once engaged, necessitated to support -his party with his whole force. Villeins were, therefore, emancipated in -prodigious numbers, in order to their becoming soldiers. Many of such, -also, who had not been formerly emancipated, in those times of distraction, -fled for self-preservation to London, and other cities, where, being absent -from their lords, they were looked upon as free; and where they generally -continued, even after these troubles had ceased, unknown to the heirs of -the antient lords; and in consequence, for want of proof of their servitude -within fifty years last past, (which was the time of limitation for this action) -most of them and their posterity became free. When things afterwards -became composed, under Henry the Seventh, many of these persons were -by the heirs of their former lords reclaimed, and recovered as villeins, though, -undoubtedly, the far greater part escaped undiscovered. But even in those<span class="pagenum"><a id="Page_238"></a>[238]</span> -actions that were brought, both judges and juries were very favourable to -the persons claimed; the juries out of favour to liberty, and the judges, I -presume, following the policy of that reign, one of the great objects of which -was the depression of the great lords; to which nothing could more contribute -than the lessening the number of the persons who were held in such -strict dependance by them, and the profits of whose industry they had right -to seize, to encrease their wealth and their power<a id="FNanchor_303" href="#Footnote_303" class="fnanchor">[303]</a>.</p> - -<p>Another thing which had, long before that period, lessened their numbers, -was the rise of copyhold tenants. These are persons who are said to -hold lands <i>at will, but according to the custom of a manor</i>, and those arose from -the villenage tenants, as I conceive, by the following means. When a succession -of mild and humane lords had neglected, for a long time, to seize -their villeins goods, or to exact villein service, so that no memory remained -of their having made use of such a practice, they came to be considered in -another light, and became exempted from that seizure by prescription. -For the lord claiming a villein in a <i>nativo habendo</i>, must plead, and prove, -that he, or his ancestors, had exacted such services, from the person claimed, -or his ancestors, otherwise he failed. Therefore, in the case I have mentioned, -though a future lord had an inclination to depart from the practice of -his predecessors, and revive his rights, he could not recover them for want -of proof; and these persons so long indulged, became freemen. However -their lands, (they being only tenants at will) might still be resumed, until, -at last, they got, likewise, by the same kind of prescription, a permanent -right in them also, in the way I now shall relate.</p> - -<p>If a lord had given his villein any certain estate, it was, as I before observed, -an absolute manumission for ever. But some lords, either in reward -for services done, or out of bounty, gave many of those underling tenants, -if not an absolute right to their holdings, at least, a fair claim and -title to a permanent estate, which, in honour, the lord or his heirs could -not defeat, and yet kept them in a particular kind of dependance, between -freedom and absolute villenage. But the question was how this was to be -done; for if the lord had given him a deed, to assure him the lands, and so -entered into a contract with him, he was entirely emancipated. The way -was then for the lord to enter into the roll of his court, wherein he kept the<span class="pagenum"><a id="Page_239"></a>[239]</span> -list of his tenants, that he had given such an one an estate at will, to hold to -him and his heirs, or to him and the heirs of his body, or to him for life or -years; and these directions being constantly complied with, grew by length -of time into established rights, and they came to be called <i>tenants at will, according -to the custom of the manor</i>.</p> - -<p>They were still called tenants at will, because, they had been originally -such, for they were never considered as, nor called, <i>freeholders</i>, until very -lately, in one instance, they were admitted to vote for members of parliament, -and their votes allowed by the house of commons. This decision -was greatly exclaimed against by the tories, who were foiled by this reception, -as proceeding from a spirit of party, and as being contrary to the rules -of the antient law, as it certainly was. But, on the other hand, it was agreeable -to common reason and justice, and to the spirit and principles also, -though not to the practice of the antient constitution. For when Edward -the First lays down this maxim, <i>quæ ad omnes pertinent ab omnibus debent -tractari</i>, what reason can be assigned why a copyholder for life, who has a -valuable, and as certain estate, in fact, as a freeholder, though called by a -different name, and who contributes equally to the taxes and expences of -the government, should not have equal privileges, and be equally intitled to -be represented. They are called <i>copyholders</i>, from the evidence they had of -their titles. The evidence that freemen had of their estates in land was either -a <i>deed</i>, if the grant was by deed, or if it was without deed, the <i>livery -and seizen</i>, attested by the witnesses present; but the copyholder had no -deed, neither was livery and seizen given to him, as he was originally but a -tenant at will. His evidence, therefore, was a copy of the rule entered in -the lord’s court roll, which was his title, and from hence was he named -copyholder<a id="FNanchor_304" href="#Footnote_304" class="fnanchor">[304]</a>.</p> - -<p>The peculiarities attending this kind of tenure, that distinguished it from -other tenures, arose from their being considered as tenants at will. Hence -arose that antient opinion, that if a lord ousted his copyholder, he could -have no remedy by action in the king’s court against him: But had this -been the law that since prevailed, all copyholders had been long since destroyed. -Therefore, in Edward the Fourth’s reign, it came to be settled,<span class="pagenum"><a id="Page_240"></a>[240]</span> -that if the lord turned out his copyholder, he might well maintain an action -of ejectment against him, as a tenant for years could, or else they might sue -the lord in equity to be restored.</p> - -<p>From the same principle of its having been an estate at will, arose the -right of the lord to a fine, upon the change either of lord or tenant; upon -the change of the lord by the act of God only, that is by his death; upon -the change of the tenant, either by the act of God, by his death; or by his -own act, by his alienation. But the tenant paid no fine on the lord’s alienation; -for if he was so to do, he might be ruined by being frequently charged. -These fines were an acknowledgment of the lord’s ancient right of -removing them, and were, in some places, by custom, fixed at a certain rate; -in others, they were uncertain, and settled by the lord: However, he was -not allowed to exact an unreasonable one, for if so, the tenancy would have -been absolutely in his power, and of the reasonableness of the fine the judges -of the king’s courts were to determine.</p> - -<p>I mentioned the alienation of copyholders, but to alien directly they -could not, being esteemed but tenants at will, yet what they cannot directly -do, they may indirectly, by observing certain forms; that is, by surrendering -to the lord, to the use of such a person, and then the lord is, in -equity, compellable to admit into the copyhold the person for whose use it -is surrendered. These surrenders are either made in the manor court, or -out of it. If made in court, it is immediately entered in the court roll; if -out of court, it should be presented at the next court day, and then entered. -The surrender out of court must be made to the lord himself, or to the -steward of the manor, or it is not good; except in some particular manors -by custom, where it may be surrendered to the lord’s bailiff, or to two or -more of the copyholders, who are to present it at court. When a surrender -was made, the lord was only an instrument to hand it over, and therefore -must admit that grantee into such estate, and no other, whom the grantor -had appointed in his surrender. In many cases a court of equity will supply -the want of a surrender.</p> - -<p>Copyholders could not devise their lands by will for two reasons. First, -that, in general, lands were not devisable till the reign of Henry the Eighth;<span class="pagenum"><a id="Page_241"></a>[241]</span> -and for another reason peculiar to themselves, that, being called tenants at -will, they were not looked upon to have a sure and permanent estate. But -when, after the invention of <i>uses</i>, a way was found out to evade the general -law, and to make lands go by will, by the owner granting his estate to another -for the use of himself, the grantor, for life, and after, for the use of -such persons as he, the grantor, should name in his will; and when courts -of equity were found disposed to oblige the grantee to perform the trust he -had undertaken, in imitation hereof, copyhold estates began to be surrendered -to the lord to the use of the copyholder’s last will; and then the lord, -after his death, was obliged to admit such person as he appointed in such his -will, and in the mean time, the copyholder enjoyed during his life, for the -surrender only did not transfer the estate, except it was to the lord’s own use. -If to any other use, the lord was but an instrument, and the land remained in -the surrenderer until the admittance of the new tenant, which, in the case -I have put, could not be till the old one was dead.</p> - -<p>Another peculiarity arising from the same source, there being tenancies -at will, was, that neither the husband could be tenant by the courtesy, nor -the wife tenant in dower. The reason was, that every estate at will determined -by the death of the tenant, neither could an estate tail be created of a copyhold; -for the statutes <i>De Donis</i> extended not to them, and, therefore, if a -gift was made in such words as would, at this day, create such an estate, it -would be in the nature of a <i>fee simple conditional</i> at common law. However, -by special custom in particular manors, copyhold might be entailed; might -go to the tenant by the courtesy, and the wife might be endowed thereout<a id="FNanchor_305" href="#Footnote_305" class="fnanchor">[305]</a>.</p> - -<p>Thus much I have thought requisite to shew the general nature of this -tenure, and of its origin. More would be needless to say here, as there -are no such in this kingdom, though the law relating to them makes a considerable -part of the law of England. For the same reason I shall be very -short as to the tenants in antient demesne.</p> - -<p>Lands in <i>antient demesne</i> are the estates that the king had, as king, to -support his family, and other expences, and were antiently unalienable. -They were the lands of Edward the Confessor, and the Conqueror. But -as the king could not make profit of them himself, they were given to tenants<span class="pagenum"><a id="Page_242"></a>[242]</span> -of two kinds, freeholders and copyholders. The law with respect to -them stands as it does with other freeholders and copyholders, except that -they have some peculiar privileges. The general reason of these privileges -was, that the freeholders were originally socage, and the copyholders the -villenage tenants of the king, and had these privileges granted to them because -they were supposed constantly employed on the king’s land, to furnish -him with corn, cattle, and other necessaries; and their privileges have -continued, though the services have been changed into money, and the -estates almost all alienated from the crown. These are principally as follow: -They are exempted from all burthens and taxes laid on by parliament, unless -they are specially named. They are not to be taxed for the wages of -the knights of the shire. They are not to pay toll, or passage money for goods -bought and sold in markets, for all things concerning husbandry and sustenance. -They are not to be impleaded in any court, only in their manor -court, nor to be summoned as jurymen, with some other privileges of the -like nature, not necessary to be here insisted on<a id="FNanchor_306" href="#Footnote_306" class="fnanchor">[306]</a>.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_243"></a>[243]</span></p> - -<h2 class="nobreak" id="LECTURE_XXVI">LECTURE XXVI.</h2> - -<p><i>The condition and state of laws in England during the Saxon times—The military -policy of the Saxons not so perfect as that of the Franks—Their Kings elective—The -division of the kingdom into shires, hundreds, and tithings—The administration -of justice—The county-court—The hundred court and court-leet—The -court-baron—The curia regis—Method of trial in the Saxon courts—The -ordeal—The waging of law—The trial by battle—Juries.</i></p> - -</div> - -<p>Having drawn a rough delineation of a feudal monarchy, and given -a general account of the ranks of people of which it was composed, -and of their distinct rights and privileges, it will next be proper, agreeably -to what I first proposed, to observe, through the several reigns, the progress -of English law, and by what steps and gradations it is come to differ so -widely from what it was in its original; not, indeed, to go minutely through -all the alterations made, for that would be a task that could not be confined -within the compass of these lectures, but to point out the great and considerable -changes, which had extensive influences, and contributed to give -the law a new face. But, before I enter upon this, it will not be amiss to -look back a little, and to say something with respect to the law in the Saxon -times, since much of that remained after the conquest, and even makes a -part of our law at this day.</p> - -<p>The Saxons, being a German nation, brought into England the customs -of that country, customs very similar to, and, in many instances, exactly -the same with those used abroad on the continent. However, with respect -to their military policy, it was not so strict and perfect as that of the Franks, -occasioned, as I suppose, by their greater security from danger. For they -had no reason to dread the Britons, having extirpated many, and expelled -the rest, except a few whom they kept in the meanest offices, in the nature -of villeins. Neither was the authority of their kings so great as abroad, for<span class="pagenum"><a id="Page_244"></a>[244]</span> -the founders of the kingdoms of the heptarchy were not kings in Germany, -as the kings of the Franks and other nations had been, but only leaders -of adventurers, who voluntarily associated themselves, and therefore could -have no authority but what their followers confirmed upon them; and -that it was not very considerable, appears from this, that every thing of -great moment was transacted in their general assemblies or <i>wittenagemots</i><a id="FNanchor_307" href="#Footnote_307" class="fnanchor">[307]</a>.</p> - -<p>These kings were elective, though generally those of the same family, -(for to this also there were some exceptions) were elected. Offa says of himself -to his people, <i>Electus ad libertatis vestræ tuitionem, non meis meritis, sed -sola liberalitate vestra</i>. From the death of a former king to the election of -a new one there was an <i>interregnum</i>, and even during these interregnums -they made laws. For when the excellent king <i>Brithric</i> had been poisoned -by his queen, they enacted a law, that if any future king should give his -wife the title of queen, he should forfeit his dignity, and his subjects should -be free from their oath of allegiance; and then they proceeded to elect Egbert, -Brithric’s tenth cousin. And, in pursuance of this law, Ethelbald, -deposed his father, for giving that title to Judith of France. Alfred, indeed, -was not chosen upon a vacancy, but claiming a part of the kingdom -before the assembly at Swinburn, by virtue of an agreement with his brother -Ethelred, that assembly annulled the agreement, as destructive to the -nation, then threatened by the Danes, but enacted that Alfred should succeed -to the whole, though Ethelred, and also their elder brother Ethelbert -left sons<a id="FNanchor_308" href="#Footnote_308" class="fnanchor">[308]</a>.</p> - -<p>I know it is generally said that these three brothers succeeded by their -father’s will, and so the Conqueror pretended a will of Edward the Confessor -in his favour, but what had Ethelwulf to leave, but the little kingdom -of Kent, which was assigned to him upon his deposition. Besides his will -was, that they should succeed in case of issue failing, and they succeeded -though there were sons; and Alfred, who should know his own title best, -acknowledged he had received his crown from the bounty of the princes, -elders, and people. Here I should mention, that the kings had not a right -to marry themselves without the consent of their people, for of Alfred it is<span class="pagenum"><a id="Page_245"></a>[245]</span> -observed, that he did so, <i>contra morem & statuta</i>, not only against custom, -but against positive laws. To go through no more particulars; it appears -from history, that all the kings of the Saxon race were elected; so were -the Danes; so was the last Harold, though not of royal blood, and though -Edgar Atheling, who was the lawful heir, had the kingdom been hereditary, -was living; so was the Conqueror, and that was the just title he had. -But enough of this point.</p> - -<p>To see how justice was administered among the Saxons; the kingdom, for -this purpose was divided into <i>shires</i>, those into <i>hundreds</i>, or, as we call them -in this kingdom (Ireland,) <i>baronies</i>, and these into <i>tithings</i>, so called because -they originally consisted of ten contiguous families, over which a <i>tithingman</i> -presided. Every man, in these tithings, was bound to keep the peace, not -only for himself, but for the others of his tithing; and if one of them -committed a crime, the rest were obliged to search him out, and produce -him for trial; otherwise the tithing was grievously amerced. This division -of the kingdom into <i>counties</i>, and their subdivisions, is generally ascribed -to king Alfred. That the division of hundreds into tithings was -his is undoubted; and it is probable the division of counties into hundreds -was his also; that the people, beggared by the Danish incursions, might -have justice rendered to them nearer their own homes, without the expence, -the fatigue, and even danger of travelling to the county town. But as to -counties, they certainly were more antient. Justice could not be administered, -according to the principles of the German policy, in a country so -large as one of the kingdoms of the heptarchy, without its being subdivided; -and accordingly, during those times, before the union of these -kingdoms into one, we find, in the old laws, the mention of <i>shires</i> and -<i>sheriffs</i><a id="FNanchor_309" href="#Footnote_309" class="fnanchor">[309]</a>.</p> - -<p>But though Alfred was not the first maker of the divisions, we are not -therefore to charge the writers that give that account with falsity. Even before -his reign the Danes had made settlements in England, in the northern -parts. In the very beginning of it they reduced him to content himself with -the countries south of the Bristol channel and Thames, with the addition of<span class="pagenum"><a id="Page_246"></a>[246]</span> -Essex, which, in their ravages, they had thrown into the greatest confusion. -The rest of England was left as their prey, in which, after ravaging it several -years, they fixed themselves, until, at length this great prince, to -whom no king, I may say, no man, whom history has recorded, was superior, -either for piety to God, for a strict love of justice, for a fatherly affection -to his people, for heroism in battle, for fortitude of mind (that never -despaired in the lowest state of his affairs, when all seemed desperate) or for -a wisdom capable of directing upon every occasion the proper measures to -be taken by the state over which he presided; I say, until this great prince -trampled his enemies under his feet, and obliged the Danes, who had so -long looked upon him with contempt to sue to become his subjects, and to -receive the lands they had usurped, from him as their king and lord. For -to expel them was impossible, and if it had been otherwise, and the matter -had been effected, they had committed such massacres in the lands they possessed, -that the country would have been desolate. Then, indeed, this -king settled the limits of shires or counties, through all England; in Essex, -and the counties south of the Thames, I presume, according to the old limits. -For if we allow for one county being more woody, or having more -unprofitable land than another, they appear to bear no great disproportion -to each other. But, as to the lands the Danes held, it was different, for -here, to win his new subjects, he was to accommodate the division somewhat -to that which they had made among themselves, under their several -leaders. Hence, in that part of England which was then Danish, we find -the greatest difference between the size and value of the lands in the several -counties, some excessively large, and others as exceedingly small; which, -I think, is no way to be accounted for, in so wise a prince, but that the -several tribes of these Danes were to be kept in their old bounds, and separate -from each other. In such a succession of ages, undoubtedly, these -boundaries have received alterations, but they could not have received such -as would account for the disproportion; and in truth we find the Danes -had divided the land before he conquered them.</p> - -<p>In those counties and hundreds justice was administered to the inhabitants -near their homes, without the delays and expences of resorting to Westminster. -The court held by the sheriff, assisted by the bishop, was, in its origin, -as we find in the red book of the exchequer, and had cognizance of<span class="pagenum"><a id="Page_247"></a>[247]</span> -four several matters that were handled, in this order. First, all offences against -religion and the ecclesiastical jurisdiction were tried. The bishop, or his -commissary, here was judge, and the sheriff was his assistant; and if the delinquent -disregarded the censures of the church, he enforced the sentence by -imprisonment. Next were tried temporal offences, that concerned the publick, -as felonies, breach of the peace, nuisances, and many others. Here -the sheriff was judge, and the bishop was assistant, to enforce the sentence -with ecclesiastical censures. Thirdly, were tried civil actions, as titles to -lands, and suit upon debt or contracts. Here the sheriff presided, but the -<i>suitors of the court</i>, as they were called, that is, the freeholders, were the -judges, or as we now say, the <i>jury</i>, and the sheriff executed the judgment, -assisted by the bishop, if need were. Lastly there was held an <i>inquest</i>, to see -that every person above twelve years of age who was in some tything, had -taken the oath of allegiance, and found security to the king for his good -demeanor. This was called the <i>view of frank pledge</i>, that is, the viewing -that every person had nine freemen pledges or security for his loyalty to -the king, and his peaceable behaviour to his fellow subjects<a id="FNanchor_310" href="#Footnote_310" class="fnanchor">[310]</a>.</p> - -<p>But since the time of king Edgar, at least, this court has been divided -into two, the criminal matters, both ecclesiastical and civil, and also the -view of frank pledge was dispatched in one court called the <i>tourn</i>, that is, -the <i>circuit</i>, from the bishop and sheriffs going circuit through the county; -and the civil business was dispatched in another, called, the <i>county court</i>. -The law was, that the sheriff and bishop should twice in the year go their -circuit or tourn, namely, in the month following Easter, and the month -following Michaelmas; and should hold their court in every hundred of the -county; but the view of frank pledge was to be taken only once a year, -namely the tourn after Easter. But for the more ready dispatching civil -causes, the county court was held once a month, that is in twenty-eight -<i>days</i>, reckoning a month by four weeks and not by the calendar<a id="FNanchor_311" href="#Footnote_311" class="fnanchor">[311]</a>.</p> - -<p>Out of these courts were others afterwards derived, for the more easy -and expeditious way of distributing justice. Out of the sheriff’s tourn, were -two, the <i>hundred court</i>, and the <i>court leet</i>, and they had cognizance of the<span class="pagenum"><a id="Page_248"></a>[248]</span> -same matters the tourn had, and were erected independent of the sheriff’s -tourn, for the mutual ease of him and the inhabitants, where, in large counties, -the hundred lay too remote to be conveniently visited in the circuit. -But many inconveniencies arising from the sheriff’s power not running in -these separated jurisdictions, the hundred court, which was held by the -steward of the hundred, were all, except a very few, that had been given -in fee to some great men, reunited to the tourn, and so they vanished in -Edward the Third’s reign<a id="FNanchor_312" href="#Footnote_312" class="fnanchor">[312]</a>.</p> - -<p>The leet was of the same nature as the hundred court, derived out of -the tourn, and made a separate jurisdiction; but it was held in the name of -a subject, by the lord of the manor’s steward, and to the lord belonged the -profits of the courts leet. They were, however, though held by a subject, -in his own name, esteemed as the king’s courts, and allowed to be courts of -record, as well as the tourn from which they sprung.</p> - -<p>Out of the county court, which was for private causes, was derived the -<i>court baron</i>. It was held from three weeks to three weeks, as all courts -were in the early Saxon times. It was when a manor was exempted from -the sheriff’s county court, and the jurisdiction granted to the lord, to hold -plea of civil suits. In this the suitors were the judges, as in the county -court<a id="FNanchor_313" href="#Footnote_313" class="fnanchor">[313]</a>.</p> - -<p>In these several courts was justice administered in the Saxon times, and -even for a considerable time after the conquest, for the most part. But soon -after that time inconveniencies were found, partly from the partiality of the -judges in these inferior courts, and partly, from their ignorance in law. -Then began the higher court to draw to themselves the jurisdiction of these -matters, and the county courts to be confined to pleas of such matters as exceeded -forty shillings in value. The pleas of lands were likewise brought -in there, and discussed either in the higher courts, or before justices of <i>nisi -prius</i>. The appointment of <i>justices errant</i>, and <i>justices of assize</i>; of <i>justices of -goal delivery</i>, and of the <i>quarter sessions</i>, together with the many powers -granted by divers acts of parliament to one or more justices of the peace,<span class="pagenum"><a id="Page_249"></a>[249]</span> -have, in a succession of ages, continually sunk the business of these courts, -and have left them but a shadow of what they were.</p> - -<p>But although most of the business in the old times was in these inferior -courts, there was one superior, that even in the Saxon times, had a concurrent -jurisdiction with them, the <i>curia regis</i>. The curia regis sat in the king’s -palace, and removed with him from one part of the kingdom to another, -generally in the king’s hall; except when they judged questions belonging -to the king’s treasure, when they sat in his treasury, called the <i>exchequer</i>, -from the chequered cloth wherewith the table was covered. The judges -were, the judiciary, the chancellor, and the treasurer, together with such -great lords as were attendant on the court; so that, in parliament time, all -the great lords sat there; and this was the foundation of the lords judicature -in parliament. The judiciary presided in all cases that did not concern -the revenues, and indeed his power was so exorbitant by the antient law, -being regent of the kingdom in the king’s absence, that sometime after the -conquest, the kings thought proper to abolish the office, and divide even his -judicial power into several hands<a id="FNanchor_314" href="#Footnote_314" class="fnanchor">[314]</a>.</p> - -<p>The chancellor was one of the most learned ecclesiastics. It fell, therefore, -naturally to his province to make out all writs, and processes, and letters -patent, and consequently the great seal of the kingdom was lodged with -him. He attended, likewise, something in the nature of an equity judge; -not that there was any such thing as a distinct <i>court of equity</i>, but, as a learned -and pious man, to direct with his advice whenever the case happened, -where conscience dictated one way and the strict law another. The treasurer -was present also to take care that the king had his fines from offenders, -which he was afterwards to collect into the exchequer where he presided, -where also he set leases of the king’s lands for years, collected his rents and -debts, and took care of his escheats and forfeitures. The proper jurisdiction -of this court was where the king was concerned in interest as to his revenue; -where one of the great peers was to be tried for heinous offences, or even -where two persons had been guilty of crimes that seemed to have a general -influence, and tended to general confusion. For unless the crime of a lower -person was very heinous indeed, he was tried in the country, in the tourn.</p> - -<p><span class="pagenum"><a id="Page_250"></a>[250]</span></p> - -<p>Civil causes likewise between the great lords fell under their inspection, -but those between meaner persons they seldom meddled with, unless they had -for difficulty been referred or adjourned to them from the courts below, and -if they, in that case, found the cause of great difficulty, they adjourned it to -the <i>curia regis</i> in full parliament. However, as they had the power of judging -civil causes between all persons in the first instance, if they thought the -cause of such a nature, that justice was not likely to be done in the country, -they had many applications from such as had those apprehensions; and as this -court had a discretionary power, either of sending them back to the county-court, -or of admitting them here, this gave an occasion for exacting fines for -license to plead in the king’s court, and thereby of increasing his revenue; -until at length, when the inferior courts declined in reputation, and every -man sought for justice in the <i>curia regis</i>, these fines, being arbitrary, became -an intolerable grievance, which was remedied by those famous words in -Magna Charta, <i>Nulli vendemus, nulli negabimus justitiam</i>, as I shall observe -hereafter. Such were the courts held in the Saxon times, and for some -time after the conquest, whose several jurisdictions it is proper to point out, -for the better understanding of the alterations that afterward ensued<a id="FNanchor_315" href="#Footnote_315" class="fnanchor">[315]</a>.</p> - -<p>I next proceed to the <i>method of trial</i>, or determining the matters in issue -in these courts. And they were the same that were used abroad, which I -have already mentioned, and shall therefore barely run them over. First, -<i>ordeal</i>, either by putting their hands in boiling water, or holding a red -hot bar of iron in their hands; or by <i>cold water</i>, that is, tying their hands together, -and their feet together, and throwing the person accused into a pond; -and this method the ignorant vulgar have adopted to try witches. Secondly, -the <i>oath</i> of the party, with <i>compurgators</i>, or, as it is called, <i>waging his law</i>; -and in this manner was Earl Goodwin acquitted of the murder of Alfred, -king Ethelred’s brother. Thirdly, <i>battle</i>, which was the usual method of -trying the title to lands, and appeals of felony, or capital crimes.</p> - -<p>If a man was indicted of felony at the king’s suit, he could not offer -battle; for challenging the king was a breach of allegiance, but if he was -appealed of felony by a subject, he had his choice either of battle, or submitting -to be tried by a jury. But if he waged battle, he must fight in<span class="pagenum"><a id="Page_251"></a>[251]</span> -proper person, whereas the appellant, who might be an infant, or decrepid -with age, or a man of religion, or a woman, was allowed a champion. If -lands were demanded from a man, he had, likewise, the option of trial by -battle, or by <i>grand assize</i>. If by battle, then were both parties allowed -champions, if they desired it; but the champion, in such case, must first -swear, that he knows the land was the right of the party he fought for, or -that his father told him he knew it, and charged him to bear witness thereof. -So that this trial was referring it to the providence of God, which of -the two contradictory witnesses, the champions, swore true<a id="FNanchor_316" href="#Footnote_316" class="fnanchor">[316]</a>.</p> - -<p>The other method was by the grand assize. <i>Assize</i>, coming from <i>assides</i>, -to fit together, signifies a jury. It was called <i>grand</i>, because of its number. -The sheriff returned four knights, who chose twelve knights more, and -their verdict determined. But the most usual method of trial among the -<i>Saxons</i> was by <i>juries</i>, as at this day, that is, by twelve of the <i>pares curiæ</i>. -The invention of these is attributed by the English lawyers to Alfred, and -greatly do they exult over the laws of other countries in the excellency of -this method. But had they been acquainted with the ancient laws of the -continent, they would have found the trial by <i>pares</i> common to all the -northern nations, though since wore out by the introduction of the civil -law; not so common, indeed, any where as in England; where every age -it gained ground, and wore out the other<a id="FNanchor_317" href="#Footnote_317" class="fnanchor">[317]</a>. Alfred’s merit, therefore, was -rather in fixing the number, and determining the qualities of the jurors, -than in the invention; but what these several qualifications were, will come -in more properly in another place.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_252"></a>[252]</span></p> - -<h2 class="nobreak" id="LECTURE_XXVII">LECTURE XXVII.</h2> - -<p><i>The punishment of public crimes and private wrongs among the Saxons—The -ranks of men among the Saxons—The difficulty of ascertaining the nature of the -Saxon estates, and the tenures by which they were held—Observations to prove -that the Saxon lands were in general allodial.</i></p> - -</div> - -<p>In my last I gave an account of the courts wherein the Saxons administered -justice, and of the several methods of trial used in them; it will -be proper to add a few words concerning their <i>punishment</i> of persons found -guilty either of public crimes or private wrongs. When I spoke of the -customs of the German nations, while they lived in that country, I observed, -that all offences were punished by <i>fines</i> only, and none by <i>death</i>, -two only excepted, desertion in war, and the rape of a married woman. -The nations descended from them, when they settled within the limits of -the Roman empire, continued the same practice for some ages, as did the -Saxons also in England.</p> - -<p>All wrong and crimes, not excepting murder and high treason, were -redeemable by fine and imprisonment, until the Heptarchy was declined; -and for this purpose their laws assigned the several mulcts that were to be -paid for the different offences. Murder was rated higher or lower according -to the quality of the person slain. That of their king himself was valued -at thirty thousand <i>thrymsæ</i>, a piece of their money. But afterwards it -was found necessary to inflict capital punishments. Treason, murder, rape, -and robbery, were of the number so punished, though the punishment of -rape was afterwards <i>castration</i>; but after the Conquest it was made capital -again. Corrupt administration of justice was another; for it is recorded, -to the praise of Alfred, that he hanged forty four unjust judges in one year<a id="FNanchor_318" href="#Footnote_318" class="fnanchor">[318]</a>. -These were the judges in the tourns, ealdermen of the counties, or their deputies -the sheriffs. Other offences against the public continued punishable -by fine and imprisonment, and satisfaction for private wrongs was obtained<span class="pagenum"><a id="Page_253"></a>[253]</span> -either by restoration of the thing unjustly detained, if it was extant, or a -compensation to the value in damages, if it was not<a id="FNanchor_319" href="#Footnote_319" class="fnanchor">[319]</a>.</p> - -<p>As to the order and ranks of people among them, there were, properly -speaking, but two, <i>freemen</i> and <i>villeins</i>. The last, I presume, were the -remains of the antient Britons, but among the freemen there were various -orders, not distinguished by any hereditary difference of blood, but by the -dignities of the offices they held by the gift of the king. Not that we are -to imagine there was no regard whatsoever paid to the descendants of great -and illustrious men. As their king was eligible out of the royal family -only, so were there a number of other families, to whom the enjoyment of -these honourable offices were, I may say, confined, not by any positive distinctive -law, but by general practice, and by the king’s constantly choosing -out of them; and who may, with propriety enough be called the <i>nobility</i>. -Those honorary offices were of different ranks of dignity; such as those -of <i>ealdermen</i> or <i>earls</i>, <i>coples</i>, or as they were sometimes called <i>Thanes</i>, <i>Præpositi</i>, -or rulers of hundreds; all of whom were, originally, removeable at -the king’s pleasure, though, unless they misbehaved, they were generally -continued for life.</p> - -<p>Some, indeed, have thought that earldoms were hereditary, even in the -Saxon times, because they see that earl Goodwin’s son succeeded him, and -the same was true in some other families also. But there is a great difference -between a son’s succeeding to his father by a legal right of inheritance, -and his succeeding either by the voluntary favour of the king, or -by his extorted favour, when a family has grown so powerful, as to make -it a necessary act in the king, in order to preserve public peace. The latter -was the case with respect to earl Goodwin’s family. Edward the Confessor -hated him mortally for the death of his brother Alfred, as he did his whole -family for his sake. However, as he owed the crown solely to his interest -and intrigues, as he was well acquainted with the power, and knew that he -had spirit enough to attempt dethroning him, if once offended, that prince, -who was careless of what came after him, so he might reign in peace during -life, caressed Goodwin and his family; dissembled all resentment, and, after -one or two weak struggles, let him and his family govern the kingdom at<span class="pagenum"><a id="Page_254"></a>[254]</span> -their pleasure; a conduct that raised them still higher in the opinions of the -people, and concurring with the incapacity of Edgar Atheling, Edward’s -nephew, raised Harold to the throne, as the only man in England capable -of defending it against two powerful invaders<a id="FNanchor_320" href="#Footnote_320" class="fnanchor">[320]</a>.</p> - -<p>But the great difficulty is to know what kind of <i>estates</i> the Saxons had in -their lands, and by what <i>tenures</i> they held them. This question hath divided -the lawyers and antiquaries of England; some holding that the tenures -were as strictly feudal, as after the conquest, while others as strongly deny it. -I shall not, in this difficult point, pretend to decide absolutely where so -great masters differ, but only make some observations that perhaps would -induce one to believe, that the Saxon lands were, in general, <i>allodial</i>, some -of them military benefices for life, and none, or, if any, at least very few -feudal inheritances; and this I take to be the truth of the matter.</p> - -<p>First, then, the Saxon lands in general, were inheritances, descendable -to heirs; and were all subject to military service. An <i>Heriot</i>, which is contended -to be the same as the Norman <i>relief</i>, was paid upon the death of the -ancestor, and all landholders took the oath of allegiance, or of fealty, as -they would have it; and therefore, Coke and others conclude that their -lands were feudal, and held by knight service; and tho’ there are no traces -either of <i>wardship</i> or <i>marriage</i> to be met with in those times, they insist -that they, as fruits of knight service, must have been in use tho’ from -the paucity of the Saxon records remaining, they cannot be discovered<a id="FNanchor_321" href="#Footnote_321" class="fnanchor">[321]</a>.</p> - -<p>This reasoning seems to have great strength, and yet, if we examine with -a little attention, perhaps, these very arguments, when well considered, will -prove the contrary, <i>viz.</i> that most of the Saxons lands were allodial.</p> - -<p>First, then, as to their being hereditary: This, singly, is far from being -a proof of their being held by a feudal tenure. The lands of the Greeks, of -the Romans, I may say of all nations, except the conquering Germans, nay, -the allodial lands in their conquests, were hereditary. Their being so -seems rather a proof of their not being founded on the feudal policy; for<span class="pagenum"><a id="Page_255"></a>[255]</span> -the military benefices did not become inheritances any great length of time -before the conquest; whereas there is no ground to believe that the Saxon -lands were ever otherwise. Besides, they had some qualities that are utterly -incompatible with the feudal system. They were not only inheritances, -but were <i>alienable</i> at the pleasure of the owner, without any leave from the -superior, and were, likewise, devisable by will; so that the Saxons were absolute -masters of their land, and not obliged to transmit to the blood the donor -intended to favour, contrary to the feudal law abroad, and to our law -after the conquest. I shall observe, by the way, that some lands in England -in particular places, being by custom devisable by will after the conquest, -was a relict of the old general Saxon law, those places not having, along -with the rest of the kingdom, embraced the feudal maxim<a id="FNanchor_322" href="#Footnote_322" class="fnanchor">[322]</a>.</p> - -<p>Another striking difference is, that the Saxons’ lands were not forfeitable -for felony, which still remains by custom in the <i>gavelkind</i> lands in Kent, -whence that country proverb, <i>the father to the bough and the son to the plough</i>. -Their lands likewise were equally divisable among all the sons, as were gavelkind -lands; which is a customary relict of the Saxon law, contrary to -general rule, since the conquest, where, at first, the king chose one, and afterwards, -as at this day, the eldest alone succeeded. But this last I will not -urge against their being of feudal origin, for that was the antient law of -fiefs; it only shews there was a considerable alteration introduced at the -conquest. However, though their being inheritances singly will not prove -them fiefs, yet, when that is joined to the military tenure, to the payment of -reliefs, and to the oath of fealty, we must allow them to be such. Let us -see then, whether any of them, singly, or taken all together, will enable -us to draw that conclusion<a id="FNanchor_323" href="#Footnote_323" class="fnanchor">[323]</a>.</p> - -<p>Certain it is, then, that all the lands in England were, in the Saxon -times, liable to military service; but this will not prove that they were feudal. -For, as I have observed in a former lecture, the allodial lands in -France were subject to the same. Every man who held land as an allodial -tenant, was, according to the quantity, either to find a foot soldier equipped -for the wars, or to join with another to find one, if he had not land sufficient.<span class="pagenum"><a id="Page_256"></a>[256]</span> -These allodial lands were subjected by law to three sorts of duties. -The first I have mentioned, the other two were building, and repairing -bridges, and furnishing waggons and carriages for the conveyance of arms -and the king’s provisions, or money<a id="FNanchor_324" href="#Footnote_324" class="fnanchor">[324]</a>.</p> - -<p>The Saxon lands were, likewise, subject to what they called <i>trinoda necessitas</i>, -the three knotted obligation. The first was, furnishing a foot soldier; -the second, which was not in the allodial lands abroad, was <i>arcis constructio</i> -the building and keeping in repair castles and forts, where the king, for -the public good, ordered them to be erected; and lastly, <i>pontis constructio</i> -the building and repairing of bridges. As to furnishing carriages, the Saxon -freemen were exempted; these being supplied, in that constitution, by -the lower tenants in ancient demesne; or the king had a right to seize any -man’s carriages by his purveyors, and use them upon paying for them. -This right of purveyance of carriages, and of timber, and of provisions for -the king’s household, which was intended for the king’s benefit, and by -which no loss was to accrue to the subject, as he was to be paid the value, -became, in the hands of the greedy purveyors, an occasion of great grievances; -those officers seizing, often more than was wanted, often where nothing -was wanted, merely to force the proprietor to a composition of money -on restoring them. The manner of payment, too, became very oppressive. -The rates were fixed at first at the due value, but as the rate of money -changed, and the prices of things rose, it came to be under the half, and as -it was not paid for on the spot, but by tickets on the treasurer, the owners, -were frequently put to more trouble and expence in attendance than the value -of their demand. This the purveyors well knew, and therefore turned -their office into an engine of extortion. Many were the proclamations issued -by the king; many the acts of parliament made to regulate it; But the evil -was inveterate, and proved very heavy even under the best princes. The -complaints of these oppressions were as great under Elizabeth as under her -successor James, and indeed, the evil was so inveterate, that nothing but -cutting it up by the roots, the destroying purveyance itself, could cure it<a id="FNanchor_325" href="#Footnote_325" class="fnanchor">[325]</a>.</p> - -<p><span class="pagenum"><a id="Page_257"></a>[257]</span></p> - -<p>But to return to the military duty done by the Saxons in general for -their lands. In the first place, then, they served as foot soldiers, and not -on horseback, and in compleat armour, as the feudal tenants were obliged. -Again, the feudal tenants attended not but when called upon, whereas, the -Saxons had regular times of meeting and mustering, though not summoned, -in order to see that the men were well trained, and properly armed. -But the great difference lay in this, that no particular person was bound to -military duty, in consideration of his tenure in the lands. The lands themselves -were liable. Every hide of land found a man, whether it was in the -hands of one, or more persons. There was then no personal attendance, -and, consequently, no commutation for it. The hide of land supported its -soldier, while he continued fighting in his own county; but if in another, -he was to be maintained either by that county, or the king; whereas, the -military tenants, by the feudal law, were obliged to serve forty days at their -own expence, wherever the king pleased, if the war was a just, or a defensive -one; and indeed, as William the Conqueror modelled it, if the war -was even unjust, or offensive. These differences, added to what I have already -observed, concerning their lands not being escheatable for felony, -being alienable, and being devisable by will, I think, shew plainly that, -though the lands were subject to military service, it was upon grounds -and principles very different from the feudal ones, and that they were rather -in the nature of the allodial lands on the continent.</p> - -<p>As to <i>Herriots</i>, which Coke and his followers insist much upon, as being -<i>reliefs</i>, they also, when thoroughly considered, will, perhaps, be found to be -of a different nature. A Herriot was a title the landlord had from his tenants, -and the king, as supreme landlord, from his, of seizing, the best -beast of his dead tenant, or his armour, if he was a military man. These -being due upon the death of the tenant, certainly bore some resemblance to -the reliefs on the continent, and are in king Canute’s law, which was written -in Latin, called by the name of <i>relevatio</i>. To shew what they were in -that time, the <i>relevatio</i>, or Herriot of an earl, was eight horses, four saddled, -four unsaddled, four helmets, four coats of mail, eight lances, eight -shields, four swords, and two hundred marks of gold; of the king’s thane -four horses, two saddled, two unsaddled, two swords, four lances, four -shields, his helmet and coat of mail, and fifty marks of gold; of the middling<span class="pagenum"><a id="Page_258"></a>[258]</span> -thane, a horse with his furniture, with his arms. But, then, Spelman -justly observes, that these were not paid by the heir, as a relief to the -lords, to entitle him to enter on the inheritance. The heir had the lands -immediately and was not obliged to defer his entry till he had paid them, -as he was his relief by the feudal law, and by the law of England after the -conquest. Nay, they were not paid by the heir at law, but by the executor -or administrator, as a perquisite out of the tenant’s personal fortune<a id="FNanchor_326" href="#Footnote_326" class="fnanchor">[326]</a>.</p> - -<p>However, William the Conqueror, finding these perquisites in use, and -that in Latin they were called <i>relevationes</i>, took advantage thereof, and as -the forfeited lands he bestowed on his Normans were given upon the terms, -and with the same burthens as lands on the continent, so were the reliefs -he exacted from such in the same manner, made payable by the heir, not -the executor; and as to the unforfeited lands, which remained to the Saxons, -and were very inconsiderable in number, he, in the manner I shall -shew in the next lecture, converted them, into real fiefs, such as were -then in use in France; from whence the reliefs came, likewise, to be exacted -from the heir, and to be considered as redemptions of the inheritance, -which, upon the principles of the feudal policy, could not be entered upon -by the heir till the relief was paid. This alteration it was not in the Saxon -landholders power to oppose, on the account before-mentioned; nor, indeed, -was the burthen on the heir such, if no consequences were to be apprehended -from it, as deserved opposition; for William fixed the reliefs at -a certainty, at the same rate, or with very little addition, as the Herriots -were in Canute’s law.</p> - -<p>But experience soon shewed what effects might follow from the construction -of Norman judges, at the devotion of a king, upon the word <i>relevium</i> -being used, and its becoming payable by the heir, instead of the executor; -his son and successor insisted that reliefs were by the feudal law arbitrary, -and looked upon his father’s limiting them as a void act, that could not bind -his successors. He, accordingly, exacted arbitrary and excessive reliefs both -from the Norman and Saxon landholders in England, which exasperated -both equally against him; for though the reliefs in France were, by no law, -as yet reduced to a certainty, yet by custom they were to be reasonable,<span class="pagenum"><a id="Page_259"></a>[259]</span> -and not to be merely at the will and discretion of the king or lord; in consequence -of which he was, on some occasions, forced to depend almost entirely, -in his wars with Normandy, on the mercenary army of the lower -English, who had no property; and had his reign continued much longer, -it is extremely probable he would have felt severely for the oppressions he -laid his military tenants of both nations under. But he dying in ten years, -Henry was obliged, before he was elected, to swear to observe the laws of -Edward the Confessor, which he did, with such emendations as his father -the Conqueror had made; and accordingly, as to <i>reliefs</i> he faithfully observed -his oath; but it being inconvenient for the heir, who was at a call to -perform military duty, to be obliged to pay his relief in arms, which he -might want on a sudden emergency, it was therefore, generally commuted -for money. However, there being no settled rate fixed, at which this commutation -should be regulated, this also was made an engine of oppression -in John’s reign, until it was finally fixed at a certain sum of money, according -to the different ranks of the persons, by <i>Magna Charta</i><a id="FNanchor_327" href="#Footnote_327" class="fnanchor">[327]</a>.</p> - -<p>As to the last argument, of the <i>Oath of fealty</i> being taken by the Saxons, -it is the weakest of all. An oath of fealty taken by a feudal tenant, was to -his <i>lord</i>, whether king or not. It was merely as tenant to him of land, and -in consideration of such, and consequently the proprietors of land only -were to take it. The oath the Saxons took, which is likened to this, was -to the king, as king not as landlord, and not at all in consideration of -land; for every male person above the age of twelve years was obliged to -take this oath among the Saxons, whether he had lands or not. In truth, -it was no more than an oath of allegiance to the king, as king, which was -common in all kingdoms, and not peculiar to those where the feudal -maxims prevailed<a id="FNanchor_328" href="#Footnote_328" class="fnanchor">[328]</a>.</p> - -<p>Hence I think I have some liberty to conclude, though I do it with due -deference, as the greatest masters in the antient laws and records of England -have been divided in this point, that the very reasons urged to prove that -lands were held in the Saxon times as feudal inheritances, prove rather the<span class="pagenum"><a id="Page_260"></a>[260]</span> -contrary, and that they were, in the general I mean, of the nature of the -allodial lands on the continent.</p> - -<p>In my next I shall speak of the alterations introduced by the conqueror, -both as to the tenure of lands in England, and as to the administration of -justice, which were so remarkable, as to deserve to be considered with the -strictest attention, as they laid the foundation for the great alterations that -have followed since.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_261"></a>[261]</span></p> - -<h2 class="nobreak" id="LECTURE_XXVIII">LECTURE XXVIII.</h2> - -<p><i>The Saxons, though their lands in general were allodial, were not strangers to -military benefices for life—The alterations introduced by William the Norman, -as to the tenure of lands in England.</i></p> - -</div> - -<p>Though, in my last, I have delivered my opinion, that the lands -of the Saxons were not feudal, but allodial, I would not be understood -as if there were no lands held by them upon military service, different -from the allodial I have already described. It is undeniable, that there -was among them <i>lord</i> and <i>vassal</i>; that there were lands held by such military -service as was performed abroad; where the bond of fealty subsisted -between lord and tenant, and where the tenants were obliged to serve in -person on horseback. But these were few; for the strength of the Saxon -army lay in their infantry. Besides, such were not feudal inheritances, but -benefices for life, for, in all the records remaining of them, there is not a -word implying an estate that could descend, or a single trace of <i>wardship</i>, -<i>marriage</i>, or <i>relief</i>, the necessary concomitants of such estates. What puts -that out of all doubt, in my apprehension, is one of the laws of William -himself, where he says it was he that granted lands <i>in feudum, jure hæreditario</i>, -which words are added, by way of distinguishing the estates he -granted from the military estates for life, in use before. The word <i>feudum</i> -alone would have been sufficient, had that law been in use before, and the -words <i>jure hæreditario</i> were added by way of explanation of <i>feudum</i>; and -<i>feudum</i> is added by way of distinction from allodial inheritances<a id="FNanchor_329" href="#Footnote_329" class="fnanchor">[329]</a>.</p> - -<p>When these military benefices began among the Saxons, I cannot say -is determined, but shall offer a conjecture, that carries a great face of probability. -That they were not coeval with the Heptarchy is certain; for -none of the German nations had, at that time, fixed estates for life in their -military holdings. What time, then, so probable as the days of Egbert,<span class="pagenum"><a id="Page_262"></a>[262]</span> -who had resided long in the court of Charlemagne, where these tenures -were in use, and where he saw the benefit of them? Besides, this was the -very time that a body of horse began to be wanted, who could move swiftly -to encounter the Danes, then beginning their ravages, and whose practice -it was to land in separate bodies, and to kill and plunder, until a superior -force assembled, and then reimbarking, to commit the same devastations -on some other defenceless part of the coast. But these kind of tenures, -as I observed before, could be but few, as most of the lands were -inheritances appropriated to particular families.</p> - -<p>To come now to William. A single battle, wherein Harold and the -flower of the nobility were slain, determined the fate of England. However, -many of the great men survived, and the bulk of the nation were -averse to his pretensions. A weak attempt was made to set up Edgar -Atheling, the only prince remaining of the royal race, but the intrigues of -the clergy, who were almost universally on the invader’s side (on account -of his being under the protection of the pope, and having received from -him a consecrated banner) co-operating with the approach of his victorious -army, soon put an end to Edgar’s shadow of royalty. He submitted, as -did his associates, and they were all received, not only with kindness but -with many high marks of distinction. William, accordingly, was crowned -with the unanimous consent of the nation, upon swearing to the laws of -Edward the Confessor; and it must be owned he behaved, during his first -stay, with the utmost equal justice and impartiality between the Normans -and natives. But the continuing to act in that manner did not consist with -his views, which were principally two; the first to gratify his hungry adventurers -with lands, the next to subvert the English law, and introduce -the feudal and Norman policy in lieu of it<a id="FNanchor_330" href="#Footnote_330" class="fnanchor">[330]</a>.</p> - -<p>The first step he made there was no finding fault with. It was now allowed, -that William’s title was legal from the beginning, and that Harold -was an usurper, and all that adhered to him rebels. He made enquiry for -all the great men that fell in battle on Harold’s side. Their lands he -confiscated, and distributed, upon the terms of the Norman law, to his followers; -but these were not half sufficient to satisfy the expectants, and the<span class="pagenum"><a id="Page_263"></a>[263]</span> -English were still too powerful, as he had pardoned all those who survived. -He therefore returned to Normandy, carrying Edgar and the chief of the -English nobility with him, under pretence of doing them honour, but in -reality, that they might be absent while his views were carrying on; and in -the mean time he left his scheme to be executed by his Normans, and those -he had appointed his regents. I say <i>his</i> scheme, for his interest, to exalt -one side and depress the other, on which he could not depend, almost -forced him to this conduct. The oppressions, therefore, were so exorbitant -in his absence, as must necessarily have driven a people to rebel, and for -which a man of justice would think the real delinquents ought to be the -persons punished, whilst the unhappy nation merited the freest pardon, for -whatever they did when actuated by a despair, proceeding from the denial -of justice. But that he himself was the immediate source of these distresses -is evident from his temper, which was such, that no regents of his durst -have acted as they did without his approbation. The Normans began by -encroaching on their neighbours the English, nay with forcibly turning -them out of their entire possessions. If these applied to the regents in the -<i>curia regis</i>, there was no redress. If they retaliated the injuries they suffered, -they were declared outlaws and rebels<a id="FNanchor_331" href="#Footnote_331" class="fnanchor">[331]</a>.</p> - -<p>These proceedings threw the whole nation into a flame, and, had they -had a leader of sufficient weight and abilities to head them, William, -perhaps, might have been dethroned; but the right heir, and all the men -he feared, were out of the kingdom. They produced, therefore, only ill-concerted, -unconnected insurrections, headed by men of no considerable -figure, provoked by private wrongs; and these being easily suppressed, afforded -a fund of new confiscations, which he disposed of in the same manner -as the former, and thereby spread the use of the feudal law further into -several parts of England. However, though he did not spare the insurgents, -nor punish his officers that had occasioned those commotions, he did -not, as some have asserted, seize all the lands of England as his by right of -conquest; for, when he came over, his court was open to the complaints of -the English, and if any of them could undeniably prove, as indeed few of -them could, that they had never assisted Harold, or been concerned in the -late disturbances, they were restored to their lands as they held them before;<span class="pagenum"><a id="Page_264"></a>[264]</span> -as appears from the case of Edwin Sharrburn, and many others. By -these means William obtained the first of his great ends, the transferring almost -all the lands of England to his followers, and making them inheritances, -descendible according to the Norman law.</p> - -<p>But as to the inheritances that still remained in English hands, had he not -proceeded somewhat farther, they would have gone in the old course, and -been free from the burthen of feudal tenure. But how to alter this, and -to subject the few allodial lands, as also the church lands, to the Norman -services, was the question; for he had sworn to observe Edward’s laws. -The alteration, therefore, must be made by the <i>commune concilium</i>, or parliament, -and this he was not in the least danger of not carrying, in a house -composed of his own countrymen, enriched by his bounty, and who were -born and bred under the law he had a mind to introduce; and who could -not be well pleased to see some of the conquered nation enjoy estates on -better terms than themselves the conquerors. The pretence of calling this -assembly, which was convened in the fourth year of his reign, was very -plausible. The English had grievously and justly complained of the constant -violation of the Saxon laws, and the only extenuation that could be -made for this, and which had some foundation in truth, was, that the king -and his officers were strangers, and not acquainted with that law. He therefore -summoned this <i>commune concilium</i>, or parliament, to ascertain what the -antient law was, and to make such amendments thereto, as the late change -and circumstances of affairs required. And, for their instruction in the old -law, which was but partly in writing, most of it customary, he summoned -twelve men, the most knowing in the laws of England, out of each county, -to assist and inform them what those laws were.</p> - -<p>Accordingly, we find the laws of William the First are, in general, little -other than transcripts of the Saxon laws or customs. However, there -are two, which were intended to alter the military policy of the kingdom, -to abolish the <i>trinoda necessitas</i>, and in its lieu, to make the lands of the English, -and of the church liable to knights service, as the Normans lands were -by his new grants, and thereby make the system uniform. His fifty second -law is entirely in feudal terms, and was certainly drawn up by some person<span class="pagenum"><a id="Page_265"></a>[265]</span> -skilled in that law, for the purpose I have mentioned. It runs thus: <i>Statuimus -ut omnes liberi homines fædere & sacramento affirment, quod intra et -extra universum regnum angliæ, Willielmo Domino suo fideles esse volunt, terras -& honores illius ubique servare cum eo, & contra inimicos & alienigenas defendere</i><a id="FNanchor_332" href="#Footnote_332" class="fnanchor">[332]</a>.</p> - -<p>I shall make a few remarks on the wording of this law; and first on -the word <i>statuimus</i>. Wright<a id="FNanchor_333" href="#Footnote_333" class="fnanchor">[333]</a> observes, that it being plural, implies that -this was not by the king alone, but by the <i>commune concilium</i>, or parliament, -for the stile of the king of England, when speaking of himself was for -ages after in the singular number, and in the subsequent part he is plainly -distinguished from the enactors of the law; for it is not <i>mihi</i>, or <i>nobis fideles -esse</i>, but <i>Willielmo Domino suo</i> in the third person, nor, <i>terras & honores -meos</i> or <i>nostros servare</i>, but <i>terras & honores illius</i>; and indeed, in the subsequent -law I shall mention it is expressly said in effect, that the subjecting -the free lands to knight service was <i>per commune concilium</i>. Secondly, the -words <i>liberi homines</i> is a term of the feudal law, properly applicable to allodial -tenants, who held their lands free from the military service that vassals -were obliged to: And in this sense was it used in France also, from whence -William came. In these words were included also, the men of the church, -for as their lands were before subject to the <i>trinoda necessitas</i>, it was reasonable -when that was abolished, they should be subject to this that came in the -lieu of it. <i>Fædere</i> and <i>sacramento affirment</i>. <i>Fædus</i> is the homage, which, -though done by the tenant only to the lord, was looked upon by the feudists -as a contract, and equally bound both parties, as is <i>sacramentum</i>; as -appears after the feudal oath of fealty; and they are placed in the order -they are to be done, homage first and then the oath of fealty. <i>Willielmo -Domino suo</i>, not <i>regi</i>, not the oath of allegiance as king, but the oath of -fealty from a tenant to a landlord, for the lands he holds. <i>Fidelis</i> is the -very technical word of the feudal law for a vassal. But the words <i>intra & -extra universum regnum angliæ</i> are particularly to be observed: For these -made a deviation from the general principles of the feudal law, and one -highly advantageous to the kingly power. By the feudal law no vassal was -obliged to serve his lord in war, unless it was a defensive war, or one he<span class="pagenum"><a id="Page_266"></a>[266]</span> -thought a just one, nor for any foreign territories belonging to his lord, -that was not a part of the seignory of which he held; but this would not -effectually serve for the defence of William. He was duke of Normandy, -which he held from France, and he knew the king of that country was -very jealous of the extraordinary accession of power he had gained by his -new territorial acquisition, and would take every occasion, just or unjust, of -attacking him there; in short, that he must be almost always in a state of -war. Such an obligation on his tenants, of serving every where, was of -the highest consequence for him to obtain; nor was it difficult, as most -of them had also estates in Normandy, and were by self-interest engaged in -its defence.</p> - -<p>The next law of his I shall mention is the fifty-eighth, which enjoins all -who held lands by military service, and some others, to be in perpetual readiness. -It runs to this effect: “We enact and firmly command, that all -earls and barons and knights and servants, <i>servientes</i>, (that is the lower -soldiers, not knighted, who had not yet got lands, but were quartered -on the abbeys,) and all the freemen, (namely the Saxon freeholders, and -of the tenants of the church, which now was subjected to knights service) of -our whole aforesaid kingdom, shall have and keep themselves well in -arms, and in horses, as is fitting, and their duty; and that they should be -always ready, and well prepared to fulfil and to act whensoever occasion -shall be, according to what they ought by law to do for us from their -fiefs and tenements; and as we have enacted to them by the <i>commune -concilium</i> of our whole kingdom aforesaid; and have given and granted -to them in fee in hereditary right.” The great effect of this law was to -settle two things, not expressly mentioned in the former; the first to shew -the nature of the service now required, knight service on horseback; and -the other, to ascertain to all his tenants, Saxons as well as Normans, the -hereditary right they had in their lands, for if that had not been done by this -law, as now all lands were made feudal, and their titles to them consequently -to be decided by that law, they might otherwise be liable to a construction, -according to its principles, that any man, who could not shew in his<span class="pagenum"><a id="Page_267"></a>[267]</span> -title <i>words of inheritance</i>, which the Saxons generally could not, was but tenant -for life<a id="FNanchor_334" href="#Footnote_334" class="fnanchor">[334]</a>.</p> - -<p>This general law then put all on the same footing, and gave them inheritances, -as they had before, but of another nature, the feudal one, and consequently, -made them subject to all its regulations. From this time, and in -consequence of these laws, the maxim prevailed, that <i>all lands in England are -held from the king</i>, and that they all proceeded from his free bounty, as is -strongly implied in the word <i>concessimus</i>; and hence some, indeed many, -have imagined that the conqueror seized all the lands of England, as his by -right of conquest, and distributed them to whom, and on what terms he -pleased. With respect to the greater part, which he gave to his Normans, -this is true; but it appears from the records of his time, that it was not universally -the case. The laws I have mentioned so changed the nature of the -inheritances, which he did not seize, that they were subject to all the same -consequences, as if he had so done; though in truth, with respect to the -Saxons, he did not dispossess them. It was but a fiction in law.</p> - -<p>I have mentioned that he made the lands of the church liable to knights -service, in lieu of the military expedition they were subject to before; but -this is to be understood with some limitation. For where the lands of an -ecclesiastical person, or corporation, were barely sufficient to maintain those -that did the duty, they, for necessity’s sake, were exempted; and the Saxon -expedition being abolished, the contribution thereto fell with it, and they -became tenants in <i>frankalmoine</i>, or <i>free alms</i>. But where an ecclesiastical -corporation was rich, and able, besides their necessary support, according -to their dignity, they were, by these laws, under the words <i>liberi homines</i>, -subjected to the new ordained military service, as they had been before to -the old, and according to their wealth, were obliged to find one or more -knights or horsemen. If they were obliged to furnish as many as a baron -regularly was, they were barons, as all the bishops and many of the great -abbots were; and, as barons, sat in the <i>commune concilium</i>; whereas, before, -the clergy in general sat in parliament, as well as the laity, not as a separate -body, nor invested with separate rights, but both clergy and laity -equally concurred in making laws, whether relative to temporal affairs or -spiritual; though, with respect to the latter, it may well be inferred, from<span class="pagenum"><a id="Page_268"></a>[268]</span> -the ignorance of the times, that they had almost the entire influence. But -after this time the clergy became a separate body from the laity, had distinct -interests also, and a separate jurisdiction; nay, I may say, became, in -some degree, a separate branch of the legislature, by the right they claimed, -and exercised, of making canons to bind laity as well as clergy<a id="FNanchor_335" href="#Footnote_335" class="fnanchor">[335]</a>. But the -explaining this would carry me too far at present, so I shall defer it to my -next lecture.</p> - -<p>In the mean time, I shall just recapitulate the prodigious alteration, as to -the properties of landed estates in England, introduced by the two laws of -the conquerors, I have mentioned, from what was their nature and qualities -before that time. They had been the absolute proprieties of the owner, (I -speak in general,) they could be aliened at pleasure, they could be devised -by will, were subject to no exactions on the death of the owner, but a very -moderate settled herriot paid by the executor. In the mean time, on the -death of the ancestor, the heir entered without waiting for the approbation -of the lord, or paying any thing for it; and his heir, if there was no will, -was all the sons jointly. No wardship, or marriage, was due or exacted, if -the heir was a minor. All these, by the feudal customs being introduced, -were quite altered. Lands could no longer be aliened without the consent -of the lord. No will or testament concerning them availed any thing. The -heir had no longer a right to enter into his ancestor’s inheritance immediately -on his death, until he (not the executor) had paid a relief (and that not -a moderate one) and been admitted by the lord. The heir, likewise, was -not all the sons jointly, but one, first, such as the lord pleased to prefer; at -length it became settled universally in favour of the eldest; and the fruits of -tenure, wardship, marriage and relief (for the Saxon herriot was, as I have -mentioned, a different thing) came in as necessary attendants of a feudal -donation.</p> - -<p>No wonder, then, that it has been said William introduced a new law, -the Norman one. He certainly did so as to landed estates; but this, as I -have observed before, by the consent of his parliament, who, being Normans, -were as well pleased with the change as himself; but it is not true<span class="pagenum"><a id="Page_269"></a>[269]</span> -with respect to the other old Saxon laws, which did not clash with the design -of introducing the military feudal system. Them he confirmed, and his -feudal laws were called only emendations. However, certain it is, his secret -design was to eradicate even the Saxon, the laws he had, in pursuance -of his coronation oath, confirmed, and that he took many steps thereto; -which though they had not the full effect he intended, wrought considerable -changes. What these were, and the consequences of them, shall be the -subject of the next lecture.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_270"></a>[270]</span></p> - -<h2 class="nobreak" id="LECTURE_XXIX">LECTURE XXIX.</h2> - -<p><i>The alterations introduced by William, as to the administration of justice—The -Judges of the Curia Regis are appointed from among the Normans—The county -courts decline—The introduction of the Norman language—The distinction -between courts of record, and not of record—The separation of the spiritual and -temporal courts—The consequences of this measure.</i></p> - -</div> - -<p>William, by altering the nature of land estates, and the conditions -upon which they were held, had proceeded a good way in his second -capital design, the introduction of the Norman, and the abolishing of -the Saxon law. And farther than that, it was not proper nor consistent -with his honour, who had sworn to Edward’s laws, to proceed openly. -However he formed a promising scheme for sapping and undermining the -Saxon law by degrees. First, he appointed all the judges of the <i>curia regis</i>, -from among the Normans, persons fond of their own law, ignorant of the -English, and therefore incapable, even if they had a mind, to judge according -to it.</p> - -<p>Before his time this court only meddled with the causes of the great -lords, or others that were of great difficulty, but now it was thought proper -to discourage the county courts, and to introduce most causes originally into -the superior court; and for this there was a reasonable pretence, from the -divisions and factions between the two nations and the partialities that must -ever flow from such a situation of affairs. The ancient laws of England had -been written, some in the Saxon, some in the Latin tongue, and the laws of -William, and of many of his successors, were penned in the latter language. -But in the <i>curia regis</i> all the pleadings henceforward were entered in the -Norman tongue, the common language of his court, as were also, all the -proceedings therein, until the time of Edward the Third. This introduced -the technical law terms and with those came in the maxims and rules of -administering justice belonging to that people, which gradually, wherever<span class="pagenum"><a id="Page_271"></a>[271]</span> -they differed from, superseded the English. Hence proceeded the great -affinity I may say, identity, between the antient law of Normandy, as set -forth in the <i>coutumier</i> of that country, and the law of England, as it stood -soon after the conquest.</p> - -<p>The analogy, however, did not arise from this alone. Though England -borrowed most from Normandy, yet, on the other hand, Normandy borrowed -much from England. William, for the ease of his people, who had occasion -to frequent his court, or had suits in the <i>curia regis</i>, established schools -for instructing persons in this language, and obliged parents of substance to -send their children thither, which had the consequence of abolishing the old -Saxon tongue, and forming a new language, from the mixture of both<a id="FNanchor_336" href="#Footnote_336" class="fnanchor">[336]</a>.</p> - -<p>This introduction of a new language, together with the exaltation of the -<i>curia regis</i> and the consequent depression of the county courts, introduced, -as I apprehend, the distinction between the <i>courts of record</i>, and <i>not of record</i>, -and made the county courts considered of the latter kind. Courts of record -are such whose proceedings are duly entered, which, at that time, was -to have been done in the Norman tongue, and which proceedings are of -such weight, as, unless reversed, for ever appearing from the record, can -never be gainsaid or controverted. Now, to allow such a privilege to the -proceedings of the inferior courts, the county ones, where the suitors were -judges, and where, besides, the proceedings were in the English language, -would have been contrary to the policy of that time, and would have tended, -rather to the confirmation than depression of the old law. The spiritual -courts, also, are not allowed to be courts of record, and that, I presume, -because they were antiently a part of the county courts, and separated from -them, as I shall shew presently in this reign, and therefore could have no -greater privilege than the court from which they were derived. However -some inferior courts, such as the <i>tourn</i>, and the leet, were allowed to be -courts of record, and that, I conceive, both for the benefit of the realm, -and the profit of the king; for these were criminal courts, where public offences -were punished, and therefore should have all weight given them, and -where the king’s forfeitures and fines for crimes were found.</p> - -<p><span class="pagenum"><a id="Page_272"></a>[272]</span></p> - -<p>I have observed before, that the courts, in the Saxon times, were mixed -assemblies, where the bishop and sheriff presided, and mutually assisted each -other, and where the bishop, I may add, had a share in the amerciaments -and fines. But in this reign the spiritual and temporal courts were separated -by William, a thing which afterwards was of bad consequence to many -of his successors, but was, at the time, very serviceable to the views he then -had. This was certainly done partly to oblige the pope, who had espoused -his title, and at this time was setting up for the universal lord of churchmen, -though, in after times, they carried their pretensions much higher<a id="FNanchor_337" href="#Footnote_337" class="fnanchor">[337]</a>.</p> - -<p>One great engine the popes set on foot to attain the power they aimed -at, was to make a distinction between <i>clergy</i> and <i>laity</i>, to have the matters -relating to the former, as well the merely spiritual as the temporal rights -they had acquired, cognizable only in their own jurisdictions; and, to preserve -the distinction stronger, to forbid their interfering in the temporal -courts, upon pretence of their time being taken up in spiritual exercises, and -particularly, that it suited not the piety and charity of a clergyman, even by -his presence, to countenance the proceeding to sentence of death, or the -mutilation of limbs. Many were the laws they made for this purpose, upon -motives of pretended piety; and the circumstances and practices of the -times contributed greatly to their success. The emperors, kings, and great -lords, had the nomination to bishoprics, and other benefices, as their ancestors -had been the founders, and their lands were held from them. But -shameful was the abuse they made of this power. Upon pretence of the -clergy being their beneficiary tenants, according to the principles of the feudal -law, they exacted reliefs, and arbitrary ones from them before investiture, -or, to speak in plain terms, they sold them on Simoniacal contracts to -the highest bidder, as the Conqueror’s son William did afterwards in England; -so that the profligate and vicious were advanced to the highest dignities, -while the conscientious clergy remained in obscurity; nay, if they -could get no clergyman to come up to their price, they made gifts of the -title and temporalities to laymen, nay, to children; it was a matter of little -concern that there was no one to do the spiritual office.</p> - -<p><span class="pagenum"><a id="Page_273"></a>[273]</span></p> - -<p>Such practices, (and they were too common) gave just and universal offence -to all sober persons, so that the popes were generally applauded for -their aiming at the reformation of the evils, and for the endeavouring, by -their decrees, to reform the morals of the corrupt clergy, and to restore an -elective manner of conferring benefices, though their real design was first to -become the protectors of the clergy, next, their lords and masters, and -then, by their means, to tyrannize over the laity; a plan which they carried -into execution with too much success. This plan was in the height of its -operation in William’s reign. The foundation of it had been laid before, -as I observed, in the many distinctions made between clergy and laity, and -the prohibiting the first, except some great ones, from meddling with secular -affairs, or tribunals. This reparation, however, had not yet taken place -in England, and it is not a wonder that William, who had peculiar views of -his own in it, as I shall observe, thought it reasonable to oblige his benefactor -the pope, and to conform the constitution of this church and nation -to that of France, where the clergy were a separate body.</p> - -<p>The private views of the king were twofold, the first arose merely from -his personal character, his avarice. By the bishop’s ceasing to be a judge -in the temporal courts, he lost his share of the mulcts or fines imposed therein, -and in consequence the king’s two-thirds of them were encreased. But -his other view lay deeper. To comprehend this, we must remember how -great was the ignorance of those ages. Scarce a man, except a clergyman, -could read or write, insomuch that being able to read was looked upon as a -proof of being in orders. Many even of the greatest lords could not write -their names, but signed <i>marks</i>; and from this ignorance it was that proceeded -the great weight our law gives to <i>sealing</i> above <i>signing</i> any instrument, -and that sealing is what makes it a man’s deed. It followed from hence -that the laity must be grossly ignorant in point of the laws. Their knowledge -could extend no farther than as they remembered a few particular -cases, that fell under their own observation; whereas the clergy had the -benefit of reading the written laws, and consulting the proceedings thereon, -in the rolls of the courts of justice, and they were the only lawyers of the -times; insomuch that it became a proverb, <i>nullus clericus nisi causidicus</i>.</p> - -<p><span class="pagenum"><a id="Page_274"></a>[274]</span></p> - -<p>What method then could so effectually answer the king’s end of making -the Saxon law fall into oblivion, which he could not openly abolish, after -having solemnly sworn to observe it, as the removing from the courts of -justice those persons who only knew it, and could oppose any innovation his -Norman ministers should attempt to introduce. This policy, however, as -artfully as it was laid, had not its full effect; for many of the clergy, unwilling -to lose so gainful a trade, appeared still in these courts in disguise, -as laymen, and at this time it is very probably conjectured that that ornament -of the serjeant at law’s dress, the <i>coiff</i>, was introduced, and for this very purpose -of hiding the tonsure, which would have shewn them to be clerks. -This their attendance, in some degree, frustrated the scheme, and many of -the Saxon laws, such especially as were repeated in William’s, kept their -ground, but many more were forgotten.</p> - -<p>I mentioned that one motive of William’s to separate the jurisdictions, -was to oblige the pope, to whose favour he owed much, yet it ought to be -observed to his honour, that he maintained the independency of his kingdom -with a royal firmness. Pope Gregory, commonly called Hildebrand, -who was the first that ventured so far as to excommunicate sovereign princes, -as he did the emperor no less than four different times, conceiving William -could not sit securely on his throne without the aid of his see, demanded of -him homage for the kingdom of England, and the arrears of Peter’s pence; -grounding his claim of superiority on his predecessor’s consecrated banner, -and that Peter-pence was the service by which the kingdom was held from -the holy see. But he found he had a man of spirit to deal with. William -allowed the justice of the demand of Peter-pence, and promised to have it -collected and paid, not as a tribute, but as a charitable foundation, as in -truth it was, to support a college of English students at Rome, for the benefit -of the English church. As to <i>homage</i>, he absolutely refused it, and -declared he held his crown from God alone, and would maintain its independence; -and to convince the pope he was in earnest, he issued an edict -forbidding, on their allegiance, his subjects to acknowledge any person for -sovereign pontiff, until he had first acknowledged him. So bold a step convinced -Gregory, who was already sufficiently embroiled with the emperor, -that this was no fit time to push things; and so he dropped his project, but<span class="pagenum"><a id="Page_275"></a>[275]</span> -without retracting it; for the court of Rome never did in any case formally -recede from a pretension it had once advanced.</p> - -<p>The consequences of the separation of the ecclesiastical from the temporal -jurisdiction were many. It naturally occasioned controversies concerning -the respective limits, and these gave rise to the <i>curia regis</i> interposing in -these matters, and, by prohibitions, preventing one from encroaching upon -the other. The great contest was concerning suits for benefices, or church -livings, which the clergy contended were of <i>spiritual</i>, and the king’s courts, -of <i>temporal</i> cognizance. And this, indeed, was the great question that, in -those days, divided the Christian world abroad. However in England, the -clergy were, at length, foiled in this point. But a much greater evil arose -from this separation. It is a maxim of all laws, that no man should be -twice punished for the same crime, and this just maxim the clergy, in favour -of the members of their own body, perverted in a shocking manner. -If a clerk committed murder, rape, or robbery, the bishop tried and condemned -him to penance; and this sentence was made a pretence of not delivering -him to the temporal courts, to be tried for his life. This was one -of the great disputes concerning the constitutions of Clarendon, in Henry -the Second’s time, between him and archbishop Becket<a id="FNanchor_338" href="#Footnote_338" class="fnanchor">[338]</a>.</p> - -<p>At length, about Henry the Third’s reign, the limits between the several -jurisdictions were pretty well settled, and by subsequent statutes, and judicial -resolutions, are confined to the respective limits they are now under. -Indeed, since the Reformation, as the credit of the canon law has declined, -on account of the dilatory proceedings, and the use of excommunication -upon every trifling contempt, the reputation of the ecclesiastical courts has -greatly fallen, and prohibitions are now issued, in many cases, where they -could not have been granted in former times. Yet, if we examine accurately, -we shall find that these great complaints, which, it must be owned, are -in the general just, namely, of dilatoriness and excommunications, proceeded -from the separation of the two courts by William. Before, when the -courts sat together, the sheriff assisted the bishop, and by his temporal power -compelled the parties to appear, and submit to the sentence, if they were<span class="pagenum"><a id="Page_276"></a>[276]</span> -contumacious against excommunication. But when they were separated, -the bishop was left to his spiritual arms, merely, excommunication; and as -the consequences of such a sentence were, in the superstitious times, looked -on as very dreadful, and are really severe in law, several intermediate processes -and notices were necessary before they proceeded to that extremity; -and this gave opportunity to litigious persons to disobey every order the -court made in a cause, until they came to the brink of excommunication, -and that way, by repeated contumacies, to spin out causes to an unconscionable -length. And the want of other arms compelled these courts, on very -trifling contempts, to enforce their orders by excommunication, which, it -must be owned, according to its primitive and right use, should be reserved -only for flagitious immoralities<a id="FNanchor_339" href="#Footnote_339" class="fnanchor">[339]</a>.</p> - -<p>Another evil consequence that flowed from this separation of these -courts, was, that the pope cunningly got his, the canon law, introduced into -the ecclesiastical courts, which made him the head of the church, introduced -appeals to him, and in effect, robbed the king of so many subjects in ecclesiastical -affairs, whereas, before, though there might be references in cases -of difficulty for advice to Rome, there were no appeals thither. The <i>curia -regis</i> was to reform ecclesiastical judgments, and the ecclesiastical, as well as -temporal jurisdiction, was the king’s.</p> - -<p>Another evil consequence, and it is the last I shall mention, of this alteration, -was the setting up two legislatures, if I may say so, in the kingdom. -In the antient time all laws were made in the same assembly, but now, the -clergy being separated from the laity, when a parliament was called, the -business became divided; ecclesiastical matters, and the taxes on the clergy, -were handled in the convocation, as temporal matters, and the taxes on the -laity, were in parliament. This contributed to the further clashing of jurisdictions. -For it must be owned the convocation exceeded their powers, and -made canons about things merely temporal; which, however, they contended -to be spiritual; and sometimes contrary to the express law of the land, -nevertheless they by the superstitious and ignorant, who knew not the distinction -between such things, were generally obeyed, and hence from such<span class="pagenum"><a id="Page_277"></a>[277]</span> -submission it is, that, by custom, in several places, tythes are payable of things -that are not tythable at common law.</p> - -<p>The right of the convocation’s canons binding the laity in spiritual matters -was never doubted in the times of popery, nay till Charles the First’s -time, if they had the approbation of the king, who was the head of the -church, it was the general opinion, except among the Puritans. But since -that time their jurisdiction is settled on a reasonable footing. Their canons -bind no man, spiritual or lay, in temporal matters. They bind no layman -in spiritual matters; but they bind the clergy in spiritual matters, provided -that no right of the laity is thereby infringed. As for instance, there is a -canon forbidding clergymen to celebrate marriage out of canonical hours. -This doth not bind even a clergyman, for if it did, it would strip the laity -of their right of being married at any hour. However it is to be considered -whether a canon of the convocation is a new ordinance, or only a repetition -of the old ecclesiastical law. If the latter, it binds all men, spiritual and lay, -not as a canon, but as the law of the land.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_278"></a>[278]</span></p> - -<h2 class="nobreak" id="LECTURE_XXX">LECTURE XXX.</h2> - -<p><i>Robert Duke of Normandy, and William Ruffus, dispute the succession to the -Conqueror—The English prefer the latter—The forest laws—The cruelty and -oppressions of William—The advancement of Henry, the Conqueror’s youngest -son, to the crown of England—He grants a charter—The nature of this -charter—His dispute with Anselm concerning Investitures—The celibacy of -the clergy—State of the kingdom under Stephen.</i></p> - -</div> - -<p>William the Conqueror left three sons, Robert, William and -Henry. The eldest, Robert, according to the established rules -of the French fiefs, succeeded in Normandy, and on account of his primogeniture -laid claim also to the crown of England; but what right that -gave him, might in those days, well be a question. In the Saxon times -the rule was to elect a king out of the royal family, and the election generally -fell on the eldest son, though not universally; for the line of Alfred -reigned in prejudice to the descendants of his two elder brothers. Edred -succeeded to his brother Edmund, in prejudice of Edmund’s two sons; -again, on Edred’s death, his son was excluded, and Edmund’s eldest son -resigned; and lastly Edward the Confessor was king, though his elder -brother’s son was living. So that priority of birth was rather a circumstance -influencing the people’s choice, than what gave an absolute right of -succession<a id="FNanchor_340" href="#Footnote_340" class="fnanchor">[340]</a>.</p> - -<p>Another thing, it might be pretended, should determine this point, -that is, as William claimed the crown through the will, as he said, of the -Confessor, he also had not a power to bequeath the crown. When, therefore, -he was making his will he was applied to on this head, but the approach -of death seems to make him acknowledge that his only just title was -his <i>election</i>, for though he hated his son Robert, and was extremely fond of -William, he refused to dispose of it by will. He only expressed his wish<span class="pagenum"><a id="Page_279"></a>[279]</span> -that William might succeed, and dispatched him to England, with letters -to Lanfranc archbishop of Canterbury, requesting him to influence the -election in his favour, and he accordingly was crowned. Indeed, it seems -a little odd that William, whose bad qualities were universally known (for -he had not one single virtue, except personal bravery) should be preferred -to Robert, who, with that virtue, possessed all the amiable virtues of humanity.</p> - -<p>That the native English should prefer any one to Robert is not to be -wondered at, as he had, on all occasions, expressed the highest aversion to -them, but they had no influence in the matter and it appears, at first -view, the interest of the English lords, most of whom had also estates in -Normandy, to be subject to one monarch, and not have their estates liable -to confiscation, on taking part with one of the brothers against the other. -But the interest of Lanfranc and the clergy, added to his father’s treasure, -which he had seized, and distributed liberally, bore down all opposition; -and indeed, it is probable that Robert’s disposition, which was well known, -operated in his disfavour; for his extreme indolence and prodigality, and -his scruples of using improper means for attaining the most desirable ends -(whereas William was extremely active and would stick at nothing) made -it easy for persons of any penetration to see in whose favour the contest -between the two brothers must end<a id="FNanchor_341" href="#Footnote_341" class="fnanchor">[341]</a>.</p> - -<p>We have little to say of the laws in his time, for he regarded no laws, -divine or human, ecclesiastical or temporal. He chose for judges and courtiers -the most profligate persons he could find. And one of the great oppressions -his people laboured under was the extending, and aggravating the -forest laws. The <i>forests</i> were large tracts of land, set apart by his father -for the king’s hunting out of the royal demesnes; and consequently William -his father had by his own authority, made laws, and severe ones, to -be observed in these districts for the preservation of the game, and erected -courts to try offenders, and trespassers in his forests. The great intention -of these courts was to fleece his subjects, who were as fond of hunting as -their sovereign, by mulcts and fines; and in truth, these were the only oppressions -his countrymen, the Normans, suffered under the Conqueror.</p> - -<p><span class="pagenum"><a id="Page_280"></a>[280]</span></p> - -<p>But Ruffus flew out of all bounds. He introduced the <i>lawing</i>, as it is -called, the Hamstringings of Dogs; nay, he made a law, by his own authority, -to make the killing of a deer capital. On pretence of this law he -seized many of the great and rich, confined them for years, without bringing -them to tryal, until he forced them to compound, and to give up the -better part of their estates. Not content with harrassing the laity, he laid -sacrilegious hands on the church revenues. Whenever a rich abbey, or -bishoprick, fell vacant, he laid his hands on the temporalities, kept them -vacant for years, as he did that of Canterbury four years; and even, when -he was prevailed upon to fill them, he openly set them to sale in his presence, -and gave them to the best bidder. However, in a violent fit of sickness, -he promised to reform, and did till he recovered his strength, when his reformation -vanished. The remonstrances of his clergy, or the pope, had -no effect with him; and, indeed, the circumstances of the times were favourable. -For as there were two popes, one made by the emperor, the -other, by the Romans, who disowned the imperial authority in that respect, -William acknowledged neither, and each was afraid to drive him into his -adversaries party, by proceeding to extremities.</p> - -<p>These enormities raised him so many enemies among his subjects, of all -kinds, that Robert had a strong party, and an insurrection was begun in -his favour, which William, profiting of Robert’s indolence, easily suppressed, -and then invaded him in Normandy, and was near conquering it, as, -by a sum of money, he detached the king of France from the alliance, if -he had not been invaded by Scotland, in favour of Robert. He patched -up, therefore, a peace with him, ratified by the barons on both sides, the -terms of which were, that the adherents of each should be pardoned, and -restored to their estates, and the survivor succeed to the other<a id="FNanchor_342" href="#Footnote_342" class="fnanchor">[342]</a>.</p> - -<p>Thus there was a legal settlement of the crown of England made, which -ought to have taken place, but did not. For William being accidentally -killed in hunting, while Robert was absent in Italy, on his return from the -holy war, Henry the youngest son, took the advantage, and seizing his -brother William’s treasure, was crowned the third day, after a very tumultuous -election, the populace threatening death to any that should oppose him.<span class="pagenum"><a id="Page_281"></a>[281]</span> -The reason of their attachment to him was, that he was, by birth, an Englishman, -and therefore, they hoped for milder treatment from him than -they had met from his two Norman predecessors. Besides he had promised -a renewal of the Confessor’s laws, with such emendations as his father had -made. And in pursuance of this promise, as soon as he was crowned, he -issued a charter, containing the laws as he now settled them, and sent -copies of it to every cathedral in his kingdom.</p> - -<p>These laws were, as to the bulk of them, the old Saxon constitutions, -with the addition of the Conqueror’s law of fiefs, and some things taken -from the compilations of the canon law. However, with respect to the -feudal law, he, in many instances, moderated its severity. With respect to -<i>reliefs</i>, he abolished the arbitrary and heavy ones which William had exacted, -and restored the moderate, and certain ones, which his father had -established. With respect to the <i>marriage</i> of his vassal’s children, he gave -their parents and relations free power of disposing of them, provided they -did not marry them to his enemies, for obviating which, his consent was -to be applied for, but then he expressly engaged not to take any thing for -his consent; and the <i>wardships</i> of his minor tenants he committed to their -nearest kindred, that they might take care of the persons and estates of the -ward, and account with him for the profits during the minority, upon reasonable -terms. He even, in some degree, restored the Saxon <i>law of descents</i>, -and permitted alienation of lands. For if a man had several fiefs, -and several sons, the eldest had the principal one, on which was the place -of habitation, only, and the rest went among the sons, as far as they -would go; and if a man purchased or acquired land (as land might be -alienated by the feudal law, with the consent of the superior lord,) such -acquisitions by the laws of Henry, he was not obliged to transmit to his -heirs; but might alien at pleasure<a id="FNanchor_343" href="#Footnote_343" class="fnanchor">[343]</a>.</p> - -<p>This mitigation of the former law was very agreeable to his people, -both English and Normans. The former were pleased to see the Saxon law -so nearly restored, and the latter, harrassed with the oppressions of William, -were glad to have the heavy burthens of their tenures lightened; and indeed,<span class="pagenum"><a id="Page_282"></a>[282]</span> -began, by degrees, to relish the old English law, and to prefer it to -their own.</p> - -<p>To attach the bulk of his subjects to him still more strongly, he took another -very prudent step. He married Maud the daughter of the king of -Scotland, by Edgar Atheling’s sister, so that in his issue the blood of the -Norman and Saxon kings were united. But still he was not firmly settled, -until the affairs of the church, and the right of lay persons granting investitures -of church livings were settled. He intended to proceed in the same -manner that his father and brother had done. He accordingly named -persons to the vacant bishopricks, and recalled Anselm, archbishop of Canterbury, -who had lived in exile during the latter part of William’s reign, -on account of the then famous dispute of lay investitures. But Anselm, -adhering to the canons of a council held at Rome, refused to consecrate -the bishops named by the king, and also to do him homage for the temporalities -of his own see, which the king required before he gave him possession.</p> - -<p>Henry, afraid of detaching from himself, and attaching to his brother -Robert, the pope and so powerful a body as the bulk of the clergy, with -so popular and high spirited a priest at their head, was obliged to propose -an expedient, that he should send ambassadors to the pope, to represent -that these canons were contrary to the antient law and customs of the nation, -and to endeavour to obtain a dispensation for not complying with the -canons; and that, in the mean time, Anselm might enter into the temporalities -of his see. This proposal was accepted. But, though, the king’s -desiring to do that by dispensation, which he had a right to do by law, was -tacitly giving up his cause, the pope knew his own strength, and Henry’s -weakness too well, to grant this favour. He insisted on the canons being -executed, which produced another quarrel between the king and archbishop. -The archbishop, attended by other bishops his adherents, went to -Rome to complain. The king sent new ambassadors, but all in vain. The -pope proceeded to threaten excommunication, which, in those days of superstition, -would have tumbled Henry from the throne, so he was obliged -to submit, and come to a composition. He renounced the nomination and -investiture <i>per annulum & baculum</i>, restored the free election of bishops and<span class="pagenum"><a id="Page_283"></a>[283]</span> -abbots to the chapters and convents, which, as the pope was judge of the -validity of such elections, was, in effect, almost giving them to him; and, in -acknowledgment of his antient right of patronage, was allowed the custody -of the temporalities during the vacancy; was allowed to give the <i>congé -d’elire</i>, or license to proceed to election, without which they could not -elect, and was allowed to receive homage from the elect, upon the restitution -of the temporalities.</p> - -<p>Thus the pope gratified the king with the shadow, and gained to himself -and the church the substance, and thus, at this time ended, that contest -in England, which had cost so many thousand lives abroad, between -the pope and emperors. Henry, however, retained a considerable influence -in the elections, for before he issued his <i>congé d’elire</i>, he generally -convened his nobles and prelates, and with them recommended a proper -person, who generally was chosen; and this the pope, for the present, suffered -to pass<a id="FNanchor_344" href="#Footnote_344" class="fnanchor">[344]</a>.</p> - -<p>I have little else to observe touching the laws in this reign, save what -pertains to the <i>celibacy of the clergy</i>. The popes, aiming at detaching the -clergy entirely from secular interests, had made many canons against their -marrying, and all the eloquence of some centuries had been employed in -recommending celibacy. These canons, however, had not their full effect -in England; for very many of the secular clergy were still married. Anselm, -in a synod he assembled, enacted a canon against them, commanding -them to dismiss their wives, upon pain of suspension, and excommunication, -if they presumed to continue to officiate. Cardinal de Crema was -afterwards sent legate by the pope to England, where, in a general assembly -of the clergy, he re-enacted the canons against their marriages, and -presiding in a lofty throne, uttered a most furious declamation against such -a sinful practice, declaring it a horrid abomination, that priests should rise -from the arms of a strumpet, and consecrate the body of Christ. And -yet the historians assure us, that, after consecrating the eucharist in that assembly, -he was found that very night in the stews of Southwark, in bed<span class="pagenum"><a id="Page_284"></a>[284]</span> -with a prostitute; which made him so ashamed, that he stole privately out -of England<a id="FNanchor_345" href="#Footnote_345" class="fnanchor">[345]</a>.</p> - -<p>Henry, though he had subdued Normandy, and kept his brother Robert -in prison, was not without uneasiness as to the succession to his dominions; -for Robert’s son was an accomplished prince, and protected by the -king of France, whereas his own bore but a worthless character. However, -to secure the succession to him, he assembled the barons of Normandy in -Normandy, and those of England in England, and prevailed on them to -take the oath of allegiance to him as such. But he being soon after drowned, -the king, in hopes of male issue, took a second wife, and after three -years fruitless expectation, he turned his thoughts to making his daughter -Maud his heir, and did accordingly prevail on his nobility to take the -oath of allegiance to her as successor. But one of the steps he took for securing -the throne to her, in fact, defeated his scheme. He knew that a -woman had never yet sat on an European throne, that Spain, which was -the only nation that admitted persons to reign in the right of females, had -never suffered the female herself, but always set up her son, if he was of a -competent age; if not, her husband. As to the circumstances of his own -family, his grandson was an infant, and neither he nor his daughter had -confidence in her husband. He knew that this oath was taken against the -general bent of his people, and that little dependance could be had on it -when he was gone, so easy was it to get absolution. His chief dependance -was on the power and influence of his natural son Robert, who, indeed, -did not disappoint him, and of his nephew Stephen, and of his brother Roger, -bishop of Salisbury, on all of whom he heaped wealth and honours.</p> - -<p>Stephen, thus advanced, began to lift his eyes to the crown. He, as -well as his cousin Maud, was a grandchild of the Conqueror, and descended -from the Saxon kings; and he had the personal advantage of being a male, -and bearing an extraordinary good character. By his ability and generosity -he had become exceedingly popular, and his brother Roger secured the -clergy in his interest. Immediately on his uncle’s death, he seized his treasure, -which he employed as Henry had done William’s, and having spread -a report that Henry, on his death bed, had disinherited Maud, and made<span class="pagenum"><a id="Page_285"></a>[285]</span> -him his heir, he was crowned in a very thin assembly of barons. Sensible -of his weakness, he immediately convoked a parliament at Oxford, where, -of his own motion, he swore, not only to rule with equity, but that he -would not retain vacant benefices long in his hands, that he would sue -none for trespassing in his forests, that he would disforest all such as had -been made by the late king, and abolish the odious tax of <i>Danegelt</i>; concessions, -which, with the pope’s approbation of his title, so satisfied the -people, that all the lords and prelates who favoured Maud, and had kept -aloof, and among them Robert her brother, came in, and swore allegiance to -him as long as he kept these engagements; from which conditional oath they -expected he would soon release them, and indeed they did all they could -to provoke him to it. This bait taking, and he having disobliged his brother -and the clergy, Maud’s friends rose in her favour; and made the -kingdom for many years a field of blood<a id="FNanchor_346" href="#Footnote_346" class="fnanchor">[346]</a>.</p> - -<p>In one of these battles Stephen was taken, and Maud was universally acknowledged; -but her insufferable haughtiness, her inflexible severity to her -captive, and her haughty refusal of the city of London’s request, to mitigate -her father’s laws, and restore the Saxon, so alienated the people from -her, that she was forced to fly from London, and arms were again taken -up for Stephen. Her brother, who was the soul of her cause, being soon -after taken prisoner, was exchanged for Stephen, and he dying soon after, -Maud was forced to leave the kingdom to her competitor. However, Stephen -continuing still embroiled with the clergy, her son Henry, in a few -years after, invaded England, and was joined by multitudes; but some -noblemen, who loved their country, mediated a peace, and at last established -it on the following terms; that Stephen should reign during life; that -Henry should succeed him, and receive hostages at the present for the delivery -of the king’s castles to him on Stephen’s death; and that, in the interim, -he should be consulted with on all the great affairs of the kingdom; -and this agreement was ratified by the oaths of all the nobility of both sides. -In this treaty no mention was made of Maud’s title, though she was living<a id="FNanchor_347" href="#Footnote_347" class="fnanchor">[347]</a>.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_286"></a>[286]</span></p> - -<h2 class="nobreak" id="LECTURE_XXXI">LECTURE XXXI.</h2> - -<p><i>Henry II. succeeds to the crown—The reformation of abuses—Alterations introduced -into the English Law—The commutation of services into money—Escuage -or Scutage—Reliefs—Assizes of novel disseisin, and other assizes.</i></p> - -</div> - -<p>Upon Stephen’s death, Henry the Second succeeded, according to the -settlement of the crown before made, and came to the possession of the -kingdom with greater advantages than most kings ever did. He was in -the flower of youth, had an agreeable person, and had already given the -most convincing proofs both of wisdom and valour. He was by far the -most powerful prince of his time: For, besides England, which when united -to its king in affection, was, by the greatness of its royal demesnes, -and the number of knights fees, incomparably the mightiest state in Europe, -in proportion to its extent; he had in France, where he was but a -vassal, greater territories than the king of France himself. In him were -united three great fees, to each of which belonged several great dependancies; -Anjou, which came from his father; Normandy from his mother, -and Guienne by his wife. And, from the very first steps he took on coming -to the throne, his subjects had good foundation to hope that this great -power would be principally exerted to make them happy. The whole -reign of Stephen, until the last pacification, had been a scene of dismal -confusion, in which every lord of a castle tyrannized at pleasure, during -the competition for the crown; and though, from the time of the settlement -of peace, Stephen published edicts to restrain violence and rapine, -and made a progress through the kingdom, in order to re-establish justice -and order, he lived not long enough to see his good intentions answered, -but left the work to be accomplished by his successor.</p> - -<p>The first thing Henry did was to discharge a multitude of foreigners, -whom Stephen kept in arms during his whole reign. His next care was -the reformation of the coin, which had been greatly debased. He coined<span class="pagenum"><a id="Page_287"></a>[287]</span> -money of the due weight and fineness, and then cried down the adulterated -which had, in the late reign, been counterfeited by the Jews, and the many -petty tyrants in their castles. These to humble, and make amesnable -to law, was his next concern. As to the castles in private hands, that had -been erected in his grandfather’s time, or before, he meddled not with -them; but all that had been built during Stephen’s reign, either by permission -or connivance, through the weakness of that prince, which were -the great nuisances, he issued a proclamation for demolishing, except some -few, which, from their convenient situation, he chose to keep in his own -hands, for the defence of the realm. And, lastly, as the crown had been -greatly impoverished by the alienations Stephen had, through necessity, -been forced to make, he issued another, to renounce all the antient demesnes -that had been so alienated, that he might be enabled to support his dignity -without loading his people, except on extraordinary occasions<a id="FNanchor_348" href="#Footnote_348" class="fnanchor">[348]</a>.</p> - -<p>These reformations, however just in themselves, or agreeable to the -subject, he did not proceed on merely by his own authority. He had deliberated -with the nobles, who attended at his coronation, concerning them, -and had their approbation; and though there were no acts of parliament -made at that time, yet, as form in those days was less minded than substance, -these edicts had the obedience of laws immediately paid them by all, -except some mutinous noblemen, who still held their castles in a state of -defence. Having taken these prudent steps, he formed his privy council -of the best and wisest men of the nation, and by their advice summoned a -regular parliament, wherein many good regulations were made. The laws -of the Confessor, as amended by Henry the First, were re-established, and -every thing, both in church and state, settled on the footing they were in -the time of that king. Being thus armed with a full parliamentary authority, -he marched against his mutinous nobles, whom he soon brought to -submit; and demolished their castles.</p> - -<p>In another parliament, in order to settle the succession, contests about -which had had fatal effects ever since the death of the Conqueror, he prevailed -on his subjects to take the oath of allegiance, to his two sons, though -both in their infancy, first to William, then, to Henry, as his successors.<span class="pagenum"><a id="Page_288"></a>[288]</span> -And having taken all these wise and just measures, for the peace and security -of his kingdom, he repaired to his foreign dominions; but his transactions -there, or even at home, that do not relate to the laws or constitution, -are not within the compass of the design of these lectures. Let it suffice -to say, that he made as good laws for, and was as good a sovereign to, -his French as his English subjects.</p> - -<p>In his reign many were the alterations introduced into the English law, -most of them, no doubt, by act of parliament, though the records of them -are lost. For, in the beginning of his reign, as I observed, he enacted in -parliament the laws of Henry the First; and yet from the book of Glanville, -written in the latter end of his reign, it is plain there were great -changes, and the law was very much brought back to what it was in the -Conqueror’s reign; nay, in one respect, to what it was in Rufus’s, I mean -reliefs, the law of which I shall mention hereafter. Many likewise were the -regulations he introduced of his own authority, which in the event proved -very beneficial to his subjects.</p> - -<p>The first I shall take notice of was his commutation of the services due -of his tenants in demesne, which formerly were paid in provisions and other -necessaries, into a certain sum of money, adequate to the then usual price. -His grandfather Henry did somewhat of this kind, but he it was that established -and fixed it; and his example was followed by his lords, so that, -from this time, rents became generally paid in certain yearly sums of money, -instead of corn and provisions. What advantage the successors of -these socage tenants gained thereby will be evident, if we consider the price -of things at or about that time. In the reign of Henry the First, we are -told, the current price of several commodities, which, however, must be -trebled when reduced to the money of our standard, were as follows: That -of a fat ox five shillings, of our money fifteen; a wether four-pence, of -ours, a shilling; wheat to serve an hundred men with bread for one meal, -a shilling, of ours, three shillings; a ration for twenty horses for a day, -four-pence, of our money a shilling. And although we should allow that, -in Henry the Second’s time, the prices of things were even doubled, which -is impossible to be admitted, it is easy to see how greatly the future socage<span class="pagenum"><a id="Page_289"></a>[289]</span> -tenants paying the same nominal rent, the value of which was daily decreasing, -rose in wealth and importance. Besides, they were greatly eased in -point of the expence and trouble of carrying the provisions to the king’s -court, to which before they were obliged, wherever he resided in England; -whereas, now, they had only to carry, or send by a proper messenger, the -money to be accepted as an equivalent<a id="FNanchor_349" href="#Footnote_349" class="fnanchor">[349]</a>.</p> - -<p>His military tenants he eased in a much more considerable manner. By -the law of the Conqueror, every military man was obliged to serve at his -own expence forty days as well abroad, where the king’s occasions required, -as in England, and in person too, unless notoriously incapable; in which -case they were obliged to find each a deputy, and if they failed herein, by -the strictness of the feudal law, they forfeited their lands, or rather, as the -law was used in England, compounded at the king’s pleasure; which, if he -was very avaricious, came pretty near the same thing. This was a miserable -heavy grievance. For what oppression must it be for a knight of Northumberland, -who had, perhaps, but a single fee, to transport himself, it -may be, to Guienne, to serve forty days, and then return? Nay, it was inconvenient -to the king himself; for as France, where the scene of the king -of England’s wars generally lay, was every where full of fortifications, it -was scarce possible to finish a war in forty days, however great the humour -of that age was for pitched battles; the consequence of which was, that, -after that time, the king was ever in danger of being left in the midst of a -campaign, with an inferior army.</p> - -<p>Henry then, sensible of these inconveniencies, both to himself and his -subjects, devised <i>escuage</i>, or <i>scutage</i>, in the fourth year of his reign, upon -account of his war with Toulouse upon which his wife had some pretensions. -He, knowing that this war required but a small part of his force, did, -both in Normandy and England, publish, that such of his military tenants -as would before-hand pay a certain sum of money, should be excused from -serving, either in person or by deputy; and this sum, which was rated by -him extremely moderately, and was, therefore, generally paid by his vassals, -rather than serve in so remote a place, he employed in hiring mercenary -soldiers of fortune, of whom there was plenty on the continent; and those,<span class="pagenum"><a id="Page_290"></a>[290]</span> -by their engagement, were obliged to serve during the continuance of the -war<a id="FNanchor_350" href="#Footnote_350" class="fnanchor">[350]</a>.</p> - -<p>That his sole view, in this new project, was the ease of his people, and -the better prosecution of his wars, and not the depressing the military spirit -of his subjects, appears from hence; that those who were qualified, and -chose to serve in person, he caressed, and encouraged by all means possible; -that he never brought a single mercenary into England, when he had wars -with Wales or Scotland, but insisted on his subjects personal service; nay, -that he never kept those mercenaries on foot in his foreign dominions, but -dismissed them as soon as the war was at an end. And this of <i>scutage</i> was -the general method he followed in his subsequent wars in France and Ireland. -What wonder is it then, that this prince was universally beloved by -his people of all ranks? though, as the best institutions are liable to be corrupted, -this very scutage, that he devised for public ease, was turned into an -heavy engine of oppression by his son John.</p> - -<p>Another alteration in the law in the reign of this king, was the point -<i>of reliefs</i>, as I mentioned before. The old relief of William the First, which -was restored by Henry the First, was certain, to all lords and knights, according -to their degrees, and was paid in horses and arms; but now the humour -of the times being that every thing should be paid in money, the relief -of a knight’s fee was settled at one hundred shillings, the fourth part of -its then computed yearly value, and which I suppose was about the price of -the armour, a knight was before to pay; and henceforward the arms of the -deceased descended to the heir, and consequently the coats of arms blazoned -thereon became hereditary. But the reliefs of barons, or earls, were not -settled at this time, but remained arbitrary, as Glanville informs us. <i>De baroniis -& comitatibus nihil certum est statutum, quia juxta voluntatem et misericordiam -domini regis solent baroniæ capitales de releviis suis domino regi satisfacere<a id="FNanchor_351" href="#Footnote_351" class="fnanchor">[351]</a>.</i></p> - -<p>From the word <i>statutum</i> I take it for granted this change of reliefs into -money was by act of parliament. Indeed, how could it be otherwise; but,<span class="pagenum"><a id="Page_291"></a>[291]</span> -then, the most surprising circumstance is, that the great lords, who, in that -age principally composed the parliament, should take care in this material -point, of the knights, the lower military tenants, and leave themselves at the -mercy of the crown. I shall venture on conjecture to assign the reason. -The Conqueror settled the reliefs of earls and barons at a certainty, because -he had fixed the number of knights fees they should contain; twenty to an -earldom, and thirteen and two-thirds to a barony; but by the time of Henry -the Second, the number of knights fees contained in them might be -greater or less. For instance, if an earl died, and left two daughters, his -twenty fees would be divided equally between them; but the dignity was -to go to the husband of that daughter the king chose. Now it would be -hard that he should pay for ten knights fees, merely because he had the -same title, as much as the predecessor paid for twenty. Again, in the new -created honours, it seems very probable, from many circumstances, that -an earldom might be erected but with fifteen knights fees, or, perhaps, with -twenty-five. The certainty of the <i>quantum</i> of land an earldom or barony -should consist of not being settled, I imagine, was the reason that the <i>quantum</i> -of relief was not expressly determined, though, by fixing that of a -knight’s fee, the reasonable relief might, in any case be easily determined. -And that Henry, and his son Richard exercised that discretion the law left -in them in this equitable manner, we may infer from there being no complaints, -as to reliefs, from the earls or barons, during their reigns; but -John revived the arbitrary relief of William Rufus, to the great oppression -of his nobles, until he was restrained by <i>Magna Charta</i>.</p> - -<p>To no other reign than this, I think, can be ascribed, so properly, the -invention of <i>assizes of novel disseisin</i>, and the other <i>assizes</i>, for obtaining possession -of lands. By the strictness of the very antient feudal law, if a man -had been disseized, that is, turned out of possession, if he did not enter, and -regain his possession, or, at least, claim it within a year and a day, he lost -all right; for, if he was a socage tenant, the possessor had, within that time, -paid a rent to his lord, and been by him, who was supposed the best judge, -allowed to be the rightful tenant; and, if he was a military one, it was probable, -in those ages of perpetual war, he had actually served, at least he had -kept himself in constant readiness if called upon. But the limitation of a -year and day being soon found too short, it was after extended to five years;<span class="pagenum"><a id="Page_292"></a>[292]</span> -then, to the time of the possession of the disseizor himself, namely till he had -either died or aliened it. But upon the alienée, or heir of the disseizor, he -could not enter, because they came in honestly, by a fair title, and were -guilty of no wrong. However, this antient law, that gave no remedy but -by entry, during the seizor’s possession, was still too severe; for the <i>disseizor</i> -might alien, or die suddenly, before the <i>disseizee</i> could enter, or he might -hold the possession <i>manu forti</i>, so that the disseizee might not be strong -enough to enter and recover his possession<a id="FNanchor_352" href="#Footnote_352" class="fnanchor">[352]</a>.</p> - -<p>To remedy these evils, and to prevent bloodshed, the law provided for -the disseizee his right of action, either against the disseizor himself, or his -heir or assigns, and, in which, upon shewing his right to the land, he should -be restored to his possession by the king’s officer, the sheriff, with the <i>posse</i> of -the county. But still this action was hitherto but the <i>writ of right</i>, which -meddled not with the unlawful possession, only with the absolute right to the -land, and this action, if brought in the <i>curia regis</i>, where only impartial -justice could be expected; was very dilatory. It was dangerous also, as the -tenant in possession might offer battle. In this reign, then, were these <i>possessory -actions</i> introduced, for the determining the point of possession, leaving -the right of propriety as it was. It was advantageous likewise to the subject, -both disseizor and disseizee, as it gave him two trials for his lands; for -the writ of right when once determined was final and conclusive<a id="FNanchor_353" href="#Footnote_353" class="fnanchor">[353]</a>.</p> - -<p>This distinction between the <i>right of possession</i>, and the <i>right of propriety</i> -was borrowed from the civil law, which was first introduced in the late -reign, and was now, and for some time forward, studied with great assiduity -by the English, as appears from the many long transcripts from it to be -found in the books of our antient lawyers. There they found the distinction -of <i>actions possessory</i> and <i>petitory</i>; <i>possessory</i> when a man had been notoriously -in possession, and reputed the owner, and was put out by another of his -own authority. The public peace was concerned to protect the possession -of the reputed owner, and not to let him suffer the loss thereof while he -was suing his petitory action, that is on the mere right, which the other undoubtedly -would delay, by all the arts and shifts he could invent. The proceedings,<span class="pagenum"><a id="Page_293"></a>[293]</span> -therefore, in possessory actions were summary and expeditious; -for they only regarded the possession, and did not determine the absolute -right: so there was no conclusive wrong done to either party, let the matter -of possession be decided how it would; for he that failed might bring his -petitory action for the right.</p> - -<p>An <i>assize</i> in our law was a very summary action. Bracton, who lived an -hundred years after, calls it <i>novum & festinum remedium</i>, and indeed so <i>festinum</i> -was it, that, in its proceedings, it seems to depart from the general rules -of reason and all laws. For it is a maxim of all laws, except in some few -very extraordinary cases, that no proofs are to be taken till an <i>issue</i> is <i>joined</i>, -as our law calls it, or till there is a <i>contest</i>, as the civil law expresseth it; that -is, till it is settled what is the matter to be proved, or till there is something -affirmed on one side, and denied on the other, upon which the merits -of the cause turn. If there be no disagreement about <i>facts</i>, but the question -is mere <i>matter of law</i>, the judges, who are best acquainted therewith, -are, by our law to determine. If the question be matters of fact, or facts -mixed with law, the jury, assisted with the judges, are to determine; though -if they doubt about the point of law, they may find the facts specially, and -leave the law arising thereon to the judges, which is what we call a <i>special -verdict</i>. No jury, therefore, ought to have been summoned till the defendant -appeared, and issue was joined, so that it was known what was the matter -to be tried; and this is the general rule. But, for the speedy settling -and quitting possessions, the assize is an exception thereto, as appears from -the <i>writ of assize</i> directed to the sheriff. For, besides giving notice to the -defendant, or <i>tenant</i>, as he is called in this action (because he is in possession) -the sheriff is immediately to summon a jury or assize, as it is called upon -this occasion, who shall directly go to the place, and make themselves -judges, by their view, of the nature, quality, and quantity of the land, or -thing demanded, and inform themselves, by all the ways they best may, of -the former possession of the demandant, and how he came to lose it. They -are then to appear the same day with the demandant and tenant, and, when -issue is joined between them, are to determine the matter according to their -own prior knowledge, and the evidence then given before them. I observed -that this action is not final. A brings an assize against B. If judgment -be given for A, B may bring his <i>writ of right</i>, if he has the right of propriety,<span class="pagenum"><a id="Page_294"></a>[294]</span> -and recover, and so <i>e contra</i>. But though B cannot deny his disseizing -A, he may still defend himself. The words of the writ are <i>injuste, & sine -judicio, disseizivit</i>. He may therefore shew that he disseized A, justly, that -is, that he had a right of entry. As, suppose B was first in possession, A -disseizes him; then B, as he lawfully may, disseizes A, A shall not recover. -But if B had been in possession, and A’s father had disseized him, and died, -so that the land has come to A, who is innocent, B, not entering in the father’s -life-time, has lost his right of possession. It is so in A. Now if B disseizes -A, the son, though he had ever so good a right to the land, A shall -recover the possession; for B had no right to enter, though he had a right -to recover the possession he was deprived of by A’s father, by bringing an -action. Wherever a man comes innocently to a possession, the law will defend -that possession, until it is proved that he hath no good right to it<a id="FNanchor_354" href="#Footnote_354" class="fnanchor">[354]</a>.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_295"></a>[295]</span></p> - -<h2 class="nobreak" id="LECTURE_XXXII">LECTURE XXXII.</h2> - -<p><i>The institution of Judges itinerant, or Justices in Eyre—The advantages attending -it—The jurisdiction of these Judges—Their circuits—The present -form of transacting the county business—The division of the Curia Regis into -four courts—The jurisdiction of the court of King’s Bench.</i></p> - -</div> - -<p>The greatest and most beneficial step taken by Henry the Second, was -the institution of <i>judges itinerant</i>, or <i>justices in eyre</i>, as they were called, -from the Norman word <i>eyre</i>, equivalent to, and derived from the Latin -<i>iter</i>. I observed before, that almost all businesses relative to the administration -of justice were, in the Saxon times, transacted in the county, and hundred, -that the leet and manor courts were held in the county, near the suitors -doors, and that none but the causes of the great lords, or such as were -of difficulty, were handled in the <i>curia regis</i>. Under the reign of the Conqueror, -I took notice, that the administration of other causes was facilitated -in the king’s great court, and that, consequently, the business of the inferior -courts began to decay; and I laid open the motives William had for that -conduct, the introduction of the Norman, and suppression of the Saxon law. -But the scheme succeeded in the same manner as his other one did, of rooting -out the English language, and introducing his own in lieu thereof. As -<i>this</i> produced a new language, from the mixture of both, so <i>that</i> caused the -English law to consist henceforward partly of feudal, partly of old Saxon -customs. However, the causes of most persons were still determined in the -inferior courts; for they were but few who were able to undergo the trouble -and expence of suing in the <i>curia regis</i>, especially, as all persons, whose causes -did not properly belong to the cognizance of that court, were obliged to -pay a fine for declining the proper jurisdiction, and for having licence to plead -in the superior<a id="FNanchor_355" href="#Footnote_355" class="fnanchor">[355]</a>.</p> - -<p>But by this time the decisions of those courts, where the freeholders -were judges both of law and fact, had fallen into great and just disrepute,<span class="pagenum"><a id="Page_296"></a>[296]</span> -had occasioned many mischiefs, and were likely to produce many more. The -reasons, as they are delivered by lord Hale, were principally three: First, -the ignorance of the judges in the law: for as the freeholders in general -were Saxons, they must be supposed to be entirely ignorant of the feudal -law, which was now introduced with respect to titles in lands; or, if they -did know any thing of it, it is not probable that they would prefer that to -their own customs. Nay, the Norman freeholders could be of little service -in this point, considering their illiteracy, their education being confined -solely to arms, as also their frequent absence almost every year to attend -their lords in war. With respect to the Saxon law also, it could be little -expected that it should be regularly observed, now that the clergy, who only -were acquainted with it, were removed, and none of the judges could possibly -know more than an illiterate juryman at this day, who could neither -read nor write, might be able to pick up by attending a court held once a -month. How inadequate such a knowledge would be, even in those times, -when the laws were comparatively few, need not be enlarged on<a id="FNanchor_356" href="#Footnote_356" class="fnanchor">[356]</a>.</p> - -<p>It is true, some remedies were applied to obviate the bad consequences -of this ignorance; but they were very ineffectual. It was required that the -sheriff, who presided, should have some skill in the laws, but notwithstanding, -he was seldom found to have any; and if he had, it was not very probable, -as he was a Norman, that the jury would pay much regard to his direction -in giving their verdicts. As a further remedy to this ignorance, by -the laws of Henry the First, the bishop, the barons, and the great men of the -court, that is, the king’s immediate tenants, were ordered to attend. But -the bishop, in obedience to the canons, applied himself solely to his ecclesiastical -jurisdiction; and the others were generally in the king’s service; so -that they could but seldom attend, and if they did, they could do but little -service, being almost all bred to nothing but the sword, and as illiterate as -any other set of men.</p> - -<p>The next mischief, and which flowed from the former, was, that this bred -great variety of laws in the several counties, whereas the intention of the -Confessor in his compilation, and of his successors afterwards in theirs, was -to have one uniform certain law, common to the whole kingdom. But<span class="pagenum"><a id="Page_297"></a>[297]</span> -the decisions, or judgments, being made by divers courts, and by several -independent judges, who had no common interest, or communication together -touching the laws, in process of time, every several county was -found to have several laws, customs, rules, and forms of proceeding; -which is always the effect of several independent judicatories, administered -by several judges. And, indeed, this I look upon to be one of the great -causes of very many local customs in many parts of England, different -from, and derogatory to, the general common law.</p> - -<p>But the third and greatest evil, was the frequent injustice of the judgments -given in those petty courts, and every business of any moment being -carried by parties and factions. The contest about the crown had been -carried on with such violence, that one half of the people, all over the -kingdom, were professed enemies to the other; and though both sides, -wearied with war, came into the expedient of Henry’s succession, and he -behaved so that there were no factions against him, yet as to individuals, -the sense of past injuries, and the rancour arising from thence, still remained. -For the freeholders being the judges, and these conversing with -one another, and those almost entirely of their own party; and being likewise -much under the influence of the lords, every one that had a suit there -sped according as he could make parties; and the men of great power and -interest in the county did easily overthrow others in their own causes, or -in such wherein they were interested, either by relation, tenure, service, -dependance, or application. True it is, the law provided a remedy for -false judgments given in these courts, by <i>a writ of false judgment</i> before the -king, or his chief justice; and in case the judgment, given in the county -court was found to be such, all the suitors were considerably amerced. Yet -this was insufficient for the purpose: For, first, it was too heavy and expensive -for many that were aggrieved; next, it was hard to amerce all for the -fault of a few, <i>viz.</i> the jury, who gave the verdict; and the amercement, -though sometimes very severe, being equally assessed, on all the freeholders, -was not a sufficient check upon the injustice of some juries<a id="FNanchor_357" href="#Footnote_357" class="fnanchor">[357]</a>.</p> - -<p>The king therefore took a more effectual course; and, in his twenty-second -year, by advice of his parliament, held at Northampton, instituted<span class="pagenum"><a id="Page_298"></a>[298]</span> -<i>justices itinerant</i>. He divided the kingdom into six circuits, and to every -circuit allotted three judges, men knowing and experienced in the laws of -the realm, to preside in such cases as were of consequence, and to direct -the juries in all matters of law. They were principally empowered to try -<i>assizes</i>, that is, as I explained in my last lecture, the rights of possession, -which had been notoriously invaded in the last reign; and which, from the -continuance of the old parties, could not even, in this reign, be fairly -determined in the inferior courts<a id="FNanchor_358" href="#Footnote_358" class="fnanchor">[358]</a>.</p> - -<p>Not that this was their sole business; for they had in their commissions -power to enquire into several other matters, such, particularly, as the king -found, by the advice he had received from the several counties, to be evils -not likely to be remedied in the county courts. These were, before every -commission for justices itinerant in eyre went out, digested under certain -articles, called <i>Capitula Itineris</i>, or <i>The chief heads of the eyre</i> or <i>circuit</i>, -which specified what actions they were to deal with. These were, in -general (for the commissions varied at different times, being sometimes -more, sometimes less extensive) <i>civil</i> and <i>criminal</i> actions, happening between -party and party; actions brought at the suit of the crown, either for -public crimes, or the usurpation of liberties, franchises, or jurisdiction from -the crown, which had been very frequent in the former times of confusion; -and also the escheats of the king.</p> - -<p>The thing I find most remarkable is, that, in these distributions of England -into circuits, are omitted some counties, (I do not mean Middlesex, -where the <i>curia regis</i> sat, or Chester, which was a county palatine, for they -of course were not to be included) as particularly Lincoln, in the second -eyre; also York, in the second eyre, is but one county, whereas, in the -first, it is two, York and Richmond; as in Lancashire also, Lancaster, and -Copeland; and Rutland is omitted in both. All which shews, that the -limits and divisions of all the counties were not ascertained with precision at -that time. The second eyre was instituted three years after the first, by -parliament also held at Windsor, and in this there were but four circuits.<span class="pagenum"><a id="Page_299"></a>[299]</span> -After these two first, the king appointed the circuits, and distributed the -counties at his pleasure.</p> - -<p>The usual times of their going was once in seven years. However, they -were not stated certainly; for sometimes, if there was a more than ordinary -complaint of want of justice, they went every three or four years, and -sometimes, if there was no complaint, they were intermitted beyond seven. -Neither was the number of judges sent on the circuits fixed, but alterable -at the king’s pleasure.</p> - -<p>The determinations in these circuits, being under the inspection of men -of integrity and skill, were in high estimation, and accordingly are several -times quoted by Bracton, as being of as great authority as the decisions in -the <i>curia regis</i>; and in consequence thereof, the business in the county -courts continually declined; justice was every day administered worse in -them, and at length they were confined, except in some cases, to pleas under -forty shillings. Nay even these were, upon application, easily removeable -by a writ called a <i>pone</i>, into the king’s courts<a id="FNanchor_359" href="#Footnote_359" class="fnanchor">[359]</a>.</p> - -<p>But as the hopes of obtaining justice in the inferior courts waxed every -day more faint, it was found necessary, during the intervals of the eyres, -to substitute other courts in their place. Hence the invention of <i>justices of -assizes</i>, of <i>oyer and terminer</i>, of <i>goal delivery</i>; and the necessity of affairs -afterwards obliging these to be sent very frequently, it was thought fit, -about the end of Edward the Third’s reign, to lay aside the justices in eyre, -as superfluous, since these other did their business, except as to pleas of the -king’s forests, where the <i>eyres</i> were continued. And, in process of time, -to prevent the enormous expence of bringing juries up to the king’s -courts, the justices of the <i>nisi prius</i> were instituted, to try issues joined in -the king’s courts, and, the verdicts so found to return to the court from -whence the record was brought; which court, on the record so found, proceeds -to judgment. These are the judges who now transact the county business -in their circuits, under the several commissions before-mentioned; -and going regularly twice every year for that purpose, the whole business -they transact is, in common speech, called <i>Assizes</i>; that being, in the antient<span class="pagenum"><a id="Page_300"></a>[300]</span> -times of their institution, the principal part of their employment, -though now such actions are scarce ever brought; personal actions, which -may repeatedly be tried, having superseded them<a id="FNanchor_360" href="#Footnote_360" class="fnanchor">[360]</a>.</p> - -<p>About this time, also, it seems that the <i>curia regis</i>, the business there -increasing, was divided, for the more convenient dispatch thereof, into four -courts; and to each its separate jurisdiction allotted. The exchequer, indeed, -was in some sort a separate court before, and had its distinct business -of the province; and in it the treasurer, not the <i>Justiciarius Angliæ</i>, presided, -as he did in the other courts. It is not impossible that, before this time, -they had, in the <i>curia regis</i>, set apart different days for different kinds of -causes. But they were all, in one respect, the same court; because they -had the same judges, namely, all such nobles as attended the court. But -this being found inconvenient, as these great men were generally ignorant -in law, and business began to encrease, it was found proper to appoint settled -skilful judges, and to divide the court, and appoint each part its separate -jurisdiction. However, those limits were not exactly settled, or, at least, -not exactly observed, for some time after: For we find in John’s reign, -that <i>common pleas</i>, that is, civil suits between party and party, and particularly -fines of lands, which are of the same nature, were held in the King’s -Bench; though, on the contrary, we find no pleas of the crown tried in -the court of Common Pleas. I suppose the reason was, that the latter being -derived out of the former, the king’s bench had a concurrent jurisdiction -with it, until restrained by that branch of Magna Charta, <i>Communia -placita non sequantur curiam nostram</i>. The first of those courts in dignity -and power, especially while the <i>Justiciarius Angliæ</i> remained, was the <i>King’s -Bench</i>, though of late days the Chancery hath over-topped it. Here, as -the king used frequently, in the antient times, to sit in person, the king is -supposed always present; which is the reason why a blow given in this court, -upon any provocation whatsoever, is punished with the loss of the hand, as -it is done in the presence of the king. The proper jurisdiction of this court -is causes where the king is either directly or indirectly concerned, except -as to his revenue<a id="FNanchor_361" href="#Footnote_361" class="fnanchor">[361]</a>.</p> - -<p><span class="pagenum"><a id="Page_301"></a>[301]</span></p> - -<p>In all <i>pleas of the crown</i> therefore, that is, suits of the king to punish -offences, as indictment of treason, felony, breach of the peace, are proper -subjects for this court. He is indirectly concerned in this, that all erroneous -judgments, given in the Common Pleas, or other inferior courts, -are here reformed; for the king is concerned to see justice done to his -subjects.</p> - -<p>Secondly, for the same reason, this is a proper court to grant prohibitions -to courts that exceed their jurisdiction, though this is not particular -to the King’s Bench, but common to all the four courts.</p> - -<p>Thirdly, it hath cognizance of all privileges and franchises, claimed by -any private persons or corporations; and if any usurped upon the king in -this respect, they are called in, by a <i>quo warranto</i>, to shew by what title -they claim such privileges. Likewise where any member of a corporation -is disfranchised, or removed from, or disturbed in his office, here shall he -be remedied. For when a king has given a franchise, he is concerned, -in honour and interest, to see that every man entitled, shall enjoy the benefit -of it.</p> - -<p>Fourthly, the king is interested in the life, limbs, and liberty of every -subject. Therefore this is the court wherein appeals, brought by private -persons, of murder, felony, and maim, should be tried; and if any man -complains of wrongful imprisonment, this court shall, by writ of <i>habeas -corpus</i>, have him brought into court, with the cause of his imprisonment -returned; and if the cause is insufficient to discharge him, or if the offence -he is charged with be bailable, to bail him. Nay, this court, in favour -of liberty, hath a power, in all cases; they may, if they see proper, bail a -man for crimes that are not ordinarily bailable by common law.</p> - -<p>Fifthly, they have a right to hold plea of all the trespasses done <i>vi & -armis</i>, though brought principally for a private reparation to the party; for -this action favours of a criminal nature, and the king is entitled to a fine -for the breach of the peace.</p> - -<p>Lastly, it has cognizance of all personal actions brought against persons -that have the privilege of this court. The persons privileged are two,<span class="pagenum"><a id="Page_302"></a>[302]</span> -first the officers of the court, who are supposed to be constantly attendant -thereon, and to whom it would be inconvenient, as well as to the court, to -sue or be sued elsewhere; and therefore the privilege extends to suits -brought as well by, as against such officers; secondly, the prisoners who -are in the custody of the marshal of the court, and who are consequently -not at liberty to appear in any other. These therefore can only be sued -here; for the court will, in such case, order the prisoner up from their -own prison to make his defence; and, under the colour of this rule, they -now, by a fiction, make all sorts of a actions suable in this court; for it is -only alledging the defendant is in the custody of the marshal, though in -fact he is not, and that is held sufficient to found the jurisdiction<a id="FNanchor_362" href="#Footnote_362" class="fnanchor">[362]</a>.</p> - -<p>I shall next proceed to the jurisdiction of the high court of Chancery, -the second in antient times, but for some ages past the first court of the -realm.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_303"></a>[303]</span></p> - -<h2 class="nobreak" id="LECTURE_XXXIII">LECTURE XXXIII.</h2> - -<p><i>The jurisdiction of the high court of chancery—The Chancellor, a very considerable -officer in the Curia Regis—The repeal of letters patent, improvidently -issued to the detriment of the King or the subject, a branch of the jurisdiction -of the court of chancery—The chancery, assistant to the exchequer in matters -of the King’s revenue—Other branches of the business of this court.</i></p> - -</div> - -<p>In my last lecture, having taken notice, that, in the reign of Henry the -Second, the <i>curia regis</i> and the <i>Exchequer</i>, which dealt with the king’s -revenue, were distinct courts, and that there were even traces of the <i>Common -Pleas</i>, as another court, different from the higher court, the <i>curia regis</i>; -I took occasion to treat of these several courts, and the several limits of -their jurisdictions; although the now general opinion be, that these courts -were not separated till after the barons wars, that is, not until an hundred -years later; which opinion, as I conceive, hath, thus far, its foundation in -truth, that the precise limits of their several jurisdictions were not perfectly -ascertained, and kept distinct till then, though the division had been made -before, that is, about the time I am now treating of. For, if it be a good -maxim, as my Lord Coke says, <i>boni judicis est officium ampliare jurisdictionem</i>, -it is not to be wondered at, that, for some time after the separation, the -<i>Justiciarius Angliæ</i>, who had the sole jurisdiction in him before, should retain, -in many instances, the exertion of it, where, after the separation, the -matter properly belonged to another court.</p> - -<p>The maxim, indeed, is, in my opinion, utterly false. For where there -are separate courts with distinct powers, surely it is the duty of each court, -were it only to prevent confusion, to keep within their proper limits. However -thus much must be allowed in justification of Lord Coke’s maxim, -that, as it is too much the inclination of human nature, when in power, to -grasp at more than is properly our due, so the judges of all courts, and of -all nations, have been as little exempt from this infirmity as any other set<span class="pagenum"><a id="Page_304"></a>[304]</span> -of men. Witness the outrageous usurpation upon the temporal jurisdiction -in antient days, both by the ecclesiastical judges in the times of the Pope’s -grandeur, and by the judges of the constables and admirals courts, when -supported by arbitrary kings<a id="FNanchor_363" href="#Footnote_363" class="fnanchor">[363]</a>.</p> - -<p>The temporal judges, on the other hand, with a firmness highly to be -commended, have successfully not only resisted these encroachments, but, -by way of reprizals, have, in these latter days, made considerable inroads -into the antiently allowed territories of those courts; not to the detriment -of the subject, I must confess; for the method of trial by the common law, -is certainly preferable to theirs. But the common law courts have not satisfied -themselves with extending their jurisdiction, in derogation of those -courts, which they justly looked on, in those days, as enemies to them, -and to the laws and constitution of the kingdom, but they have made invasions -into each others territories, and, by what they call <i>fictions of law</i>, have -made almost all causes, except criminal ones, cognizable in any court; contrary -to the very intention of dividing the courts; which was, that each -should have their separate business, and that the judges and practitioners, -by being confined in a narrower track, should be more expert in their different -provinces<a id="FNanchor_364" href="#Footnote_364" class="fnanchor">[364]</a>.</p> - -<p>In treating of these courts, I began with the <i>King’s Bench</i>, which, as -long as the office of <i>Justiciarius Angliæ</i> subsisted, was the superior; but -since Edward the First discontinued that office, on account of its too great -power, and the business of that officer hath been shared between several -judges, the rank of this court hath declined, and the <i>Chancery</i> hath obtained -the first place. To this court, then, I shall now proceed. And as in -it there are, at present, and have been for some ages, two distinct courts, -one <i>ordinary</i>, proceeding by common law, and the other <i>extraordinary</i>, according -to the maxims of equity, where common law could give no relief; -I shall, for the present, confine myself to the former, and defer treating of -the latter, until I come to that period when the <i>Equity jurisdiction</i> arose.</p> - -<p>In the antient times, before the division of the courts, the chancellor -was a very considerable officer of the <i>curia regis</i>. It was his business to<span class="pagenum"><a id="Page_305"></a>[305]</span> -write and seal with the great <i>seal</i> the <i>diplomata</i>, or <i>chartæ regis</i>, what we -now call <i>letters patents</i>; to issue all writs, either for founding the jurisdiction -of the <i>curia regis</i>, and the bringing causes into that court, that by the -antient law belonged to the courts in the country; or those to the nobles, -to summon them to attend the <i>commune concilium</i>, or parliament. Afterwards, -when the House of Commons was formed, he issued writs to the proper -places, for the election of the members thereof. Hence, when the courts -were divided, the making out letters patents, the keeping the inrolments -thereof, and issuing of <i>original writs</i>, as they are called, that is, those that -found the jurisdiction of courts, and other writs of like nature, continued -to belong to him; and, as these records remained with him, there arose to -him a jurisdiction concerning them; except as to such writs as were intended -to found the jurisdiction of another court, which, though issued from -Chancery, were returnable into the proper court, and the cause determined -there<a id="FNanchor_365" href="#Footnote_365" class="fnanchor">[365]</a>.</p> - -<p>The first branch of the jurisdiction of this court, then, was the repeal of -letters patents, that had issued improvidently, to the detriment of either of -the king or the subject; and this properly fell to the lot of the chancellor, -as he made out the patents, and kept the enrolments of them. The method -of repealing those was by a writ called <i>scire facias</i> notified to the party -claiming under the patent, and calling him in to shew cause why it should -not be revoked. This <i>scire facias</i> issued in three cases: the first, at the suit -of a subject; where two patents were granted to two persons of the same -thing, the first patentee brought a <i>scire facias</i> against the second, to repeal -his grant; the other two were at the suit of the king, where the king was -deceived, either by false suggestions of merit, or as to the value of the thing -granted; or, in the second place, if the king had, by his patent, granted -what by law he could not have granted. Here, if the case was clear in law, -and there was no controverted matter of fact necessary to be settled, to ascertain -the right, the chancellor was judge; and if his judgment was against -the patent, it was his duty to <i>cancel</i> the inrolment thereof; from which part -of his office he had his name. I say if the case was clear in law, and there -was no controverted matter of fact; for, if this latter was the case, he could -not try it, he being antiently but an officer of the <i>curia regis</i>, and not a<span class="pagenum"><a id="Page_306"></a>[306]</span> -judge; and therefore unqualified to summon a jury. The rule continued -the same after the separation of the courts, and his becoming a judge; principally, -as I conceive, for the preservation of the common law, and the birthright -of Englishmen, the trial by jury. For, as the chancellor was almost -always, in those days, an ecclesiastic, and consequently supposed more attached -to the <i>civil</i> and <i>canon law</i>, there might be danger, if he was suffered -to try matter of fact himself, he might introduce a new method of trial. -When, therefore, the cause was heard upon a <i>demurrer</i>, that is, the facts -admitted of both sides, and only the law in dispute, he gave judgment; -but if they came to issue on a fact, he must carry the record over to the -King’s Bench, who summoned the jury, and gave judgment on the verdict<a id="FNanchor_366" href="#Footnote_366" class="fnanchor">[366]</a>.</p> - -<p>Another branch of his jurisdiction was with relation to the inquisitions -of office. There are many officers whose duty it is to take care of the profits -and revenues of the king, and to that purpose they are sworn in the Exchequer; -such as <i>escheators</i>, <i>sheriffs</i>, and others, whose duty it is to make -enquiry what the king is entitled to in their respective limits, whether lands -or chattels, or by what title. For this purpose they are to summon juries, -and to return the verdicts found to the court of the revenue of the Exchequer, -in order that that court may take care of the king’s rights. These -were called <i>inquisitions</i>, or <i>enquiries</i>, <i>of office</i>, as proceeding from the duty of -an officer that made them. But these officers being negligent in the performance -of this their duty, it became sometimes necessary, and afterwards -customary to quicken them, by issuing writs for this purpose; and these -writs issued out of Chancery, the <i>Officina Brevium</i>; and then, that it might -be seen they were properly obeyed, the return of the inquisition was made -into the court that issued the writ, and thus, the Chancery gained a jurisdiction -in this point, and became an assistant to the Exchequer in the matters -of the king’s revenue; not indeed in the administration thereof, but in -bringing it into the king’s possession<a id="FNanchor_367" href="#Footnote_367" class="fnanchor">[367]</a>.</p> - -<p>It is a maxim in the English law, that nothing can pass from the king to -a subject but by <i>matter of record</i>, which maxim was not only advantageous<span class="pagenum"><a id="Page_307"></a>[307]</span> -to the royal estate, as preventive of persons getting grants by surprise, but -also advantageous to the subject in the firmness of his title, when once he -had obtained it. And, on the contrary, the regular and equal way of restoring -possessions to the crown was by record also, that is, by inquisitions -finding the king’s title returned, as I have mentioned. But as the verdicts -taken in these inquisitions may be erroneous, and detrimental to another person, -by finding what was really his property, to have been the property of -another, and to have accrued to the king by forfeiture or escheat; and as, -regularly, by another maxim of law, there is no averring against or contesting -a record, it was necessary that the bare return of inquisition into Chancery -should not be final and conclusive, but that time should be given to -any that thought himself affected to claim his right. Hence a month’s -time is given by statute, after the return of the inquisition, in which any person -may come in and <i>traverse the office</i>, that is, contest the validity of it. -And here the chancellor is judge, in the same manner as in the repeal of -letters patents, that is, if the subject of the controversy depends merely upon -matter of law; but if the parties come to an issue on matter of fact, he cannot -try it, for the reason above given, but it must go to the King’s -Bench<a id="FNanchor_368" href="#Footnote_368" class="fnanchor">[368]</a>.</p> - -<p>Another branch of the judicial business is the hearing of petitions to -the king for justice in his own causes. No man, by the feudal principles of -our law, can bring an action against the king. For the charging him with -wrong doing would be a breach of fealty. The king cannot, by our law, -do wrong; but yet, from the multiplicity of his occupations, or from his -being misinformed, the subject may sometimes suffer wrong from him. The -remedy thereof, in this case, is by humble petition to the king, that he -would enquire into the cause, and do justice to the party, which, though -conceived in an humbler strain, is as effectual as an action, and must be -tried in this court, the proper channel to convey his majesty’s graces, and -the king, by his chancellor, dispenses justice to the party.</p> - -<p>Another branch of the judicial business of this court was the proceeding -in certain cases against persons privileged, that is, the officers of the<span class="pagenum"><a id="Page_308"></a>[308]</span> -court, who being supposed to be constantly attendant, were to be sued here, -as the officers of other courts, were in their respective courts.</p> - -<p>Lastly, this court had jurisdiction with respect to proceeding upon <i>recognizances</i>, -or acknowledgments of obligations taken in this court, which -being here recorded, and not to be removed, were properly here triable<a id="FNanchor_369" href="#Footnote_369" class="fnanchor">[369]</a>.</p> - -<p>There are some other causes, proper for the jurisdiction of Chancery, -which would carry me too far at present. I shall, therefore, conclude here -with mentioning one striking difference between this and the other courts, -that they sit only in the times of the four terms, whereas it is open all the -year. The confining the others to the terms arose from the religion of the -times, and the inquisitions of canon law, which forbad courts to be held -during the seasons of the three great festivals, and of harvest. In obedience -to this law, I may say (for the papal power was then very high in England) -was our Michaelmas vacation set apart for the solemnization of Christmas, -the Hillary vacation for Easter, the Easter vacation for Whitsuntide, and the -Trinity or long vacation, for the uses of husbandry. But great would be -the evils, if that court which is the <i>Officina Justiciæ</i>, the Shop of Justice, -were to be ever shut. Writs, therefore, issued hence at all times, and all -such causes as, for the public good, cannot brook delay till the ordinary -times of sitting of other courts, are here handled in the vacations, such as to -mention a few, <i>habeas corpus’s</i> and <i>homine replegiando’s</i>, to restore persons -imprisoned to liberty, prohibitions to keep inferior courts within -their proper limits; and <i>replevins</i>, to restore the possession of goods distrained.</p> - -<p>But the great business of this court, as a court of common law, was, that -it was the <i>Officina Brevium</i>, the shop where original writs were purchased by -suitors, in order to commence their actions. An <i>original writ</i>, in the most -common form, is an order to the sheriff to summon the party complained of -to do justice to, or else to answer to the complainant in the proper court; -containing a short description of the complainant’s title, and the wrong done -to him, from whence, in Latin, it is called <i>Breve</i>, and answers to the original -citation in the Roman and ecclesiastical laws. This, and the making -out patents, was the principal business of the chancellor in the <i>curia regis</i>,<span class="pagenum"><a id="Page_309"></a>[309]</span> -and therefore naturally continued with him after the division of the courts. -The reasons assigned by Gilbert for having one of these superior courts a public -shop for justice, are three; first, that it might appear that all power of -judicature flowed from the crown; secondly, that the crown might not be -defrauded of the fines due to it for suffering persons to desert the inferior -courts, and to sue for justice immediately from the king; and lastly, to preserve -an uniformity in the law; for these writs being made out in one constant -form contributed greatly thereto, being both a direction to the judge, -and a limitation of his authority.</p> - -<p>Originally, the chancellor heard the complaints of the person injured, -and formed a writ according to the nature of the case, but as, among a rude -military people, little versed in commerce, and the variety of transactions -that attend it, the complaints of the people were confined in a narrow compass, -it but seldom happened, after some time, that there was occasion for -making a new writ, in a form different from what had been used before. -These forms, therefore, were collected into a book of our law, called the -<i>Register</i>, the antientest book of our law; and the making them out, being -now matter of course, nothing more than copying out the old terms, inserting -the proper names of persons, and places, and the chancellor’s business -encreasing, became devolved upon the chancellor’s clerks, the <i>Clerici</i>, -as they were antiently, or the <i>Masters</i>, as they are now called, of -Chancery; and they were restrained from making out any of a different -form from those in the Register. However, as, in process of -time, cases would happen which none of the forms in that book would -suit, and it was looked on as the corner-stone of the law, the chancellor -could not of himself venture to make out new and unusual writs, -but referred the complainants, in such cases, to petition the parliament -for remedy<a id="FNanchor_370" href="#Footnote_370" class="fnanchor">[370]</a>.</p> - -<p>These petitions afterwards growing too frequent, and interrupting the -public business, it was found necessary to enlarge the power of the Masters -of Chancery, and to give them a qualified power of forming new -writs. This was done by the statute of Westminster the second, cap.<span class="pagenum"><a id="Page_310"></a>[310]</span> -24, in Edward the First’s reign; it runs thus: <i>Quotiescunque de cætero -evenerit me cancellaria, quod in uno casu reperitur breve, & in consimili -casu cadente sub eodem jure, & simili indigente remedio, non reperitur, concordent -clerici de cancellaria in breve faciendo, vel atterminent querentes in -proximum parliamentum, & scribantur casus, in quibus concordare non possunt, -& referant eos ad proximum parliamentum, & de consensu jurisperitorum -fiat breve ne contingat de cætero, quod curia domini regis deficiat -conquerentibus in justitia perquirenda</i>; which last words, <i>ne contingat</i>, &c. -gave a handle, as I shall shew hereafter, to this court to erect their equitable -jurisdiction<a id="FNanchor_371" href="#Footnote_371" class="fnanchor">[371]</a>.</p> - -<p>We see how this power given to the Masters was limited: it must -be exercised only in cases parallel to such as there was a remedy already -provided for; all the Masters must agree in the form of the new -writ; and the remedy must be the same as was in the similar case in -the Register. To illustrate this by the example of the first writ formed -by the Masters upon this statute, and which therefore, by way of -eminence, is called a <i>writ, in consimili casu</i>. The statute of Glocester -ordered the Chancery to form a writ for the relief of the person in reversion, -where a tenant in power had aliened her dower. The writ was -accordingly framed, and inserted in the Register. Now, by virtue of -this statute of Westminster, the Masters framed the writ <i>in casu consimili</i>, -in favour of the person in reversion, where a tenant by the courtesy, -or tenant for life, had aliened, he being equally damaged as the -former case. But though this was particularly called <i>a writ, in casu -consimili</i>, there were many others formed by virtue of this statute, such -as for various kinds of trespasses unknown in former ages, and actions -upon the case, so frequent in these our days, and so called, because -the writ is formed according to the circumstances of the case, and -not upon the old forms continued in the Register.</p> - -<p>This new employment of Masters in Chancery, and the business of -the court encreasing, created a necessity of erecting new officers, to -make out the <i>brevia de cursu</i>, namely, those in the Register, who were<span class="pagenum"><a id="Page_311"></a>[311]</span> -therefore called <i>Curritors</i>. The chief of the Masters is <i>Keeper of the -Rolls</i> of this court, which was formerly a part of the chancellor’s business; -and he is therefore called <i>Master of the Rolls</i>. For ages past, -since the Equity business multiplied in England, this officer has been -there, in matters of equity, an assistant judge to the chancellor, but -his decrees are liable to a rehearing, and to be reversed by the chancellor. -But in this kingdom, the office hath not had any judicial authority -annexed to it.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_312"></a>[312]</span></p> - -<h2 class="nobreak" id="LECTURE_XXXIV">LECTURE XXXIV.</h2> - -<p><i>The court of Common Bench or Common Pleas—The jurisdiction of this court—Actions -real, personal, or mixt—The court of Exchequer—The jurisdiction of -this court—Exchequer chamber—The judicature of Parliament.</i></p> - -</div> - -<p>The next of the superior courts, is the <i>Common Bench</i>, or <i>Common Pleas</i>, -as it is more commonly called, being the proper court for the determining -suits between subjects, wherein the king is not concerned; and upon -the multiplication of business in the <i>curia regis</i>, it was separated from it, -for the more speedy and easy dispatching the affairs of the people. As in -the very old times the king often sat in person in the <i>curia regis</i>, and that -he might have an opportunity of so doing when he pleased, that court always -followed the king wherever he went within the kingdom of England; -and in those days it was customary for the kings to take progresses; and reside -in the different seasons of the year in different parts of the kingdom, as -we see, by the variety of places where the parliaments were held in old -times. The same practice of the courts and the records following the person -of the king continued in France longer than in England. For when -king John was taken by the black prince at the battle of Poictiers, the antient -records of that kingdom were lost, and there are scarce any now remaining -there, of what had passed previous to that time, except enrolments -made since, of the antient charters that were in the hands of the subjects.</p> - -<p>But in England the constant removal of the courts was found very burdensome -to the people, who had suits much earlier. For their ease, therefore, -it was enacted in <i>Magna Charta</i>, that <i>communia placita non sequantur -curiam nostram, sed teneantur in aliquo certo loco</i>; that the Court of Common -Pleas should no longer be ambulatory, but held in one certain place. -Westminster was the place fixed upon, and there, if we except some occasional -removals, on account of epidemical sicknesses, hath it been held ever -since. And in long space of time after, the other courts became, though<span class="pagenum"><a id="Page_313"></a>[313]</span> -not in pursuance of any positive law, fixed there also. By their becoming -settled in a certain place, one great inconvenience, besides the hardships on -the suitors, was avoided, namely, the loss and imbezzlement of the records -by these frequent removals. For it is very remarkable, that there is not a -record remaining of the times previous to the fixing of the courts, not even -the enrolments of the acts of parliament themselves, except a few, and a -very few, of the courts of Exchequer, which, concerning the king’s revenue, -were more carefully preserved<a id="FNanchor_372" href="#Footnote_372" class="fnanchor">[372]</a>.</p> - -<p>But the greatest advantage that attended this change was the improvement -of the law, and, what was a consequence thereof, the preservation of -the liberty of the subject. For now it became much more convenient for -persons to apply to that study, when they were no longer under a necessity -of removing. And we therefore, soon after, find the practitioners of the -law settled together, something in a collegiate manner; and after the dissolution -of the order of Knights Templars, the habitation of these latter, called -the <i>Temple</i>, was granted to them for their residence and improvement. -Here, they continued to confer the degrees of <i>Apprentices, or Barristers at -law</i>, and <i>Sergeants at law</i>, which they had began before, in imitation of -the bachelors and doctors degrees in universities.</p> - -<p>The preservation of the liberty of the subject was, as I said before, another -happy consequence that resulted from the fixing the courts, and the -uniting the professors of the law into one body. For as, about this time -the study of the civil and canon laws was eagerly pursued by the clergy in -the universities, and the English customs as much depreciated by them as -possible, and as those two laws were founded on maxims of despotism, and, -as such, encouraged and supported to the utmost by the popes, and all -kings that aimed at arbitrary power, the common lawyers were necessitated, -for the support of their profession, to take the popular side of the -question, and to stickle for the old Saxon freedom, and limited form of -government.</p> - -<p>Hence the steady opposition they made, even in those early times, to the -king’s dispensing. Nay, they carried their zeal for liberty so far, as (since<span class="pagenum"><a id="Page_314"></a>[314]</span> -they could not directly, in those days, oppose the weight of the civil law) -to quote the very passages of it that were in favour of absolute power, and -by their glosses make it speak the language of liberty. Thus Bracton quotes -that text: <i>Quod principi placet, legis habet vigorem</i>; that is, in its true meaning, -the monarch is sole legislator: but Bracton’s comment is, <i>id est, non -quicquid de voluntate regis temere presumptum fuerit, sed quod concilio magistratuum -suorum, rege auctoritatem præstante, habita super hoc deliberatione & tractatu, -recte fuerit definitum</i>; that is, the king is not sole legislator; directly -contrary to the sense of the very text he quotes. And it must be allowed, -to the honour of the common lawyers, that, with the exception of a few -venal time-serving individuals, they have, for a succession of ages, proved -themselves true friends to a rational civil liberty in the subject, and to reasonable -power and prerogative in the king<a id="FNanchor_373" href="#Footnote_373" class="fnanchor">[373]</a>.</p> - -<p>To come to the jurisdiction of this court. Its proper business, as appears -from its name, is to take cognizance of all <i>common pleas</i>, that is, all pleas -that are not pleas of the crown, or at the suit of the king. With these it -cannot meddle; for all actions at the suit of the king for criminal matters, -belong to the King’s Bench, as those for his revenue do properly to the Exchequer. -But it hath jurisdiction, and that universally, throughout England, -in all civil causes, whether <i>real</i>, <i>personal</i>, or <i>mixt</i>; the distinction of -which it will not be amiss just to point out.</p> - -<p>Real <i>actions</i> are those that are brought to recover land itself, where the -claimant has a right to an estate in it for life at least; and these, until within -these two hundred and fifty years, were the only ones used for that purpose; -but, since that time, they are gone almost entirely out of use, on account -of their nicety, their delays, their being conclusive; and their place -is supplied by mixed actions, which are easier, shorter, and may be tried again. -However, if any one was inclined, at this day, to bring such an action, -this is the court to bring it in; and therefore all <i>common recoveries</i>, -which antiently were, and still carry the form of, real actions, are suffered -in this court.</p> - -<p><span class="pagenum"><a id="Page_315"></a>[315]</span></p> - -<p>Personal <i>actions</i> are those that are brought for the recovery either of -some duty, or demand in particular, or of damages for the non-performance -of some promise or contract, entered into, or lastly such as are brought by -a man to recover a compensation in damages for some injury sustained in -his person—or property. To give but one or two instances of these last: -If my ground is trespassed on, if my person is assaulted, my reputation injured, -the remedy is by the personal actions of <i>trespass</i>, <i>assault & battery</i>, -or <i>slander</i>. All actions for breach of covenants are likewise personal actions; -for, by the common law, damages only are recoverable thereon, -and the party is not obliged to perform the covenant. Wherefore, if a -man chuses rather to have his covenant performed than receive a satisfaction -in damages, he must go into a Court of Equity, which will oblige a -man to perform in specie, what he hath specifically engaged to perform, if -the performance is possible. This court, therefore, being the proper court -for personal actions, fines of lands are levied here; for they are fictitious -actions, founded on a fictitious breach of covenant.</p> - -<p>Mixed actions are designed for the recovery of a specific thing, and also -damages, and consequently partake of the nature both of real and personal -actions. For instance: If a tenant for life, or years, or at will, commits -waste, he forfeits to the owner of the inheritance the place wherein the -waste was done, and treble damages. The <i>action of waste</i>, therefore being -brought to recover both, is a mixed action. The action of <i>ejectment</i> -also, which was originally proper to recover damages for being put out of -a lease for years, but is now the common remedy, substituted in the lieu of -real actions, is now of the same nature; because both the land itself, and -damages for the wrong are recovered<a id="FNanchor_374" href="#Footnote_374" class="fnanchor">[374]</a>.</p> - -<p>These three kinds of actions are properly the business of this court, -though, as to the two last, actions personal and mixed, the courts of King’s -Bench and Exchequer have, by fictions, gained a concurrent jurisdiction -with this court; the King’s Bench, by supposing the defendant to be in -the custody of the marshal thereof; and the Exchequer, by supposing the -plaintiff to be a debtor to the king.</p> - -<p><span class="pagenum"><a id="Page_316"></a>[316]</span></p> - -<p>The proper way of founding the jurisdiction of this writ, is by a writ out -of Chancery, returnable hither, either to begin a cause originally here, or to -remove one depending in an inferior court not of record; but, in some -cases, they proceed without any writ from Chancery, as in causes brought -by or against an officer of the court, and likewise, in granting prohibitions -to other courts that attempt to enlarge their jurisdictions.</p> - -<p>Before I conclude, I must observe, that this court, though one of the -four high courts derived out of the <i>curia regis</i>, is not, however, supreme, -but subordinate to the King’s Bench. For judgments given therein are reversible -in the King’s Bench, by a writ of error issuing from the Chancery, -suggesting the king’s being informed that manifest error has interveened, -and commanding the record to be transmitted into the King’s Bench; the -judges belonging to which, upon the face of it, and nothing else, are to affirm -or reverse the judgment; for the error must be manifest; and no error -in point of fact, but error only in point of law, can be averred against a -record.</p> - -<p>The lowest in rank of the four great courts, though from antient times -one of the greatest importance, is the court of <i>Exchequer</i>, whose business -was to collect in the several debts, fines, amerciaments, or other duties or -properties belonging or accruing to the king, and likewise, to issue money -by his orders; and this court being originally solely erected for the king’s -profit, is the reason, I presume, why it is held in rank the lowest; it being -more honourable to the crown to give precedence of rank to those courts -that were intended for the administration of justice to the subject, above -that which was intended merely for the king’s temporal advantage. Besides, -this court was, in its original, distinct from the <i>curia regis</i>, the treasurer -being the judge in this, as the <i>justiciarius Angliæ</i> was in the other; and -therefore, it was regular, that the Chancery, and Common Pleas, as having -been once part of the supreme court, should take place before this. Its -having been originally a distinct court, accounts for its independency on the -King’s Bench; for, no writ of error lies from it to the King’s Bench, as doth -from the Common Pleas, but its errors are rectified in another manner<a id="FNanchor_375" href="#Footnote_375" class="fnanchor">[375]</a>.</p> - -<p><span class="pagenum"><a id="Page_317"></a>[317]</span></p> - -<p>This court, as well as the Chancery, hath, properly speaking, two courts: -one, ordinary, proceeding according to the strict rules of the common -law; the other, by equity; for, as it is the king’s duty to render justice -with mercy, so, in this court, the rights of the king are not always exacted -with rigour; but, on circumstances of reason and equity, may be -mitigated or discharged. The court of common law in this court had antiently -much more business than of late. Originally, whilst the royal demesnes -were unalienated, they had the setting of them for years; but, -afterwards, people chusing rather the authority of the great seal, took them -in Chancery. That court, as I mentioned when treating of it, had likewise -gained the returns of inquisitions of office, and had also gained by act -of parliament, the composition of forfeitures, for the king’s tenants <i>in capite</i> -aliening their lands without license; which, otherwise, would have belonged -to this court. The erection of the <i>Court of Wards</i>, also, by Henry the Eighth, -took off that branch of its jurisdiction; and the abolishing of the military -tenures by Charles the Second took away the business of calling in their -fruits. The erecting the office of <i>the Treasury</i>, as distinct, for the issuing -of money, had the same effect; but, above all, the erecting new jurisdictions, -and appointing new judges to try causes relative to the new taxes, as -the Commissioners of the Customs and Excise, and Commissioners of Appeal, -diminished the peculiar business of the court<a id="FNanchor_376" href="#Footnote_376" class="fnanchor">[376]</a>.</p> - -<p>It will be now proper to consider the nature and extent of their present -jurisdiction. Here then are sworn the sheriffs, and other officers concerned -in the king’s revenue and duties; and here they are to return, and make up -their accounts. Here, likewise, the king sues his debtors, or even the debtor -of his debtor (for so far his prerogative extends); and here also, for enabling -his debtors to pay him, they are priviledged to sue their debtors; an allowance -that hath grown up by degrees to extend the jurisdiction of this court, -and to make it concurrent with the Common Pleas. For it is only alledging, -(and this they will not allow to be traversed or denied) that the plaintiff is -the king’s debtor, and the business is done. The court acquires an immediate -jurisdiction. The same allegation is likewise necessary, when a suit of -equity is commenced in this court; for otherwise, the suit would, on the -face of it, appear to belong to Chancery. I need scarce observe, that the<span class="pagenum"><a id="Page_318"></a>[318]</span> -officers of this court are to sue and be sued here; for that is a privilege common -to the officers of all the courts, arising from their personal attendance. -Here, likewise, the king’s attorney-general exhibits informations for concealment -of customs and seizures, informations upon penal statutes, where -there is a fine due to the king, forfeitures and breach of covenant to the -king; likewise all informations for intrusions, wastes, spoils or encroachments -on the king’s lands; in general, where the crown suffers in its -profits.</p> - -<p>In this court of common law, the <i>Barons of Exchequer</i> only are judges, -and are called <i>Barons</i>, because antiently none were judges there under that -degree. In the Court of Equity, the chancellor of the Exchequer is joined -with them, though it must be owned this officer hath seldom, of late years, -acted either in England or Ireland, in his judicial capacity, and it hath -been considered little more than as a great lucrative place. Errors in this -court are not, as I observed before, redressed in the King’s Bench, as those -of the Common Pleas are, but in another court, called the Exchequer -Chamber, consisting of the lord chancellor, lord treasurer, and chief -judges.</p> - -<p>There is another court of <i>Exchequer Chamber</i> in England, tho’ we -have none such in this kingdom, erected 27th Eliz. and composed of -the judges of the Common Pleas and barons of the Exchequer, in which -lies a writ of error from the King’s Bench, to reverse judgments in certain -suits commenced there originally. Into this court are frequently -removed, or adjourned from any of the other courts, causes that are of a -new impression, and attended with difficulty, or even such concerning -which the judges, perhaps, entertain no great doubts, but are new, and -attended with extensive consequences; and this, for the more solemn -determination, that all the judges of all the courts might be consulted about -establishing a new precedent. Antiently such causes were adjourned into -parliament, but the legislative business of that high court increasing, this -court was substituted for the above purpose of consultation<a id="FNanchor_377" href="#Footnote_377" class="fnanchor">[377]</a>.</p> - -<p><span class="pagenum"><a id="Page_319"></a>[319]</span></p> - -<p>To finish this account concerning the superior courts at once, it will be -proper to say something of the supreme judicature of all, that of parliament. -Antiently, as I have frequently observed, all causes but such as -concerned the king or peers, or those that were of great difficulty, or such -as justice could not be expected in by law, were dispatched in the county -courts, the rest by petition to the king in parliament, or, in the intervals -thereof, in the <i>curia regis</i>, which originally was but a committee thereof, -appointed by the king. Hence matters determined there, were subject to -a review in parliament; writs of error from the King’s Bench returned -there; and when the Equity courts grew up, appeals from the Chancery -and Exchequer in matters of equity. This power of judicature is peculiar -to the lords (for the parliament consisted at first only of them, and -when the commons were introduced, they sat in a distinct house) and the -parliament hears at present only matters that come from other courts by -appeal, or by writ of error, which is in the nature of an appeal, and no -causes originally. It is true, that, for a long time after the division of the -courts, many causes by petition were brought into parliament in the first -instance; but these being generally referred to the courts below, the practice -ceased, and would not now be allowed. For a long time accusations -against peers were originally admitted, but at present, and for this long -time, indictments found below are required before a peer can be tried; nor -can the trial of peers by impeachment in parliament be considered as an -original trial, for the commons are considered as the grand inquest or grand -jury of the whole nation, and therefore an impeachment by them is not only -equivalent to, but has and ought to have greater weight than any indictment -by any private grand jury.</p> - -<p>In this judicature of the lords, an impeachment there, is one singularity, -an exception to the grand rule, that every man is to be tried by his peers, -and that is, that a commoner impeached by the commons shall be tried by -the lords. The reason of this procedure seems to be, that all the commons -of England are supposed parties to the accusation, when their representatives -have accused him, and it might be dangerous to trust his life -with a common jury; but the lords are strangers to the charge, and it is -their interest to controul the commons, if they proceed with too great -violence<a id="FNanchor_378" href="#Footnote_378" class="fnanchor">[378]</a>.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_320"></a>[320]</span></p> - -<h2 class="nobreak" id="LECTURE_XXXV">LECTURE XXXV.</h2> - -<p class="center"><i>Henry II.’s dispute with Becket—The constitutions of Clarendon—The murder -of Becket.</i></p> - -</div> - -<p>Having, in a general manner, run through the jurisdictions of the -several great courts of the kingdom, which were divided from each -other about the time I am now treating of, though the division was not -compleated, nor the several limits exactly adjusted till some time after; I -shall proceed, in a summary way, with the few remaining observations I -have to make, with respect to the state of the law during the reign of -Henry the Second. And the greatest and most remarkable of these was -his dispute with Becket, archbishop of Canterbury; a contest attended with -the most fatal effects, and which makes up a considerable part of the civil -history of that reign. The particular circumstances that attended it, and -the many turns it took, I shall not dwell on; but, as it arose from the -clashing of contrary laws, I shall briefly lay open its source, and give an -account of the events.</p> - -<p>From the year of Christ one thousand, the popes had every day been -encreasing their power, and extending their pretensions. They set themselves -up, at first, as protectors of the clergy, who really had been oppressed -by the temporal princes, and in order to attach them more firmly -to their interests, they made canons in councils, and published decretal -epistles, by their own sole authority; which, in those days of superstition, -were too readily received as laws; all tending to depress the civil power, to -raise the ecclesiastical on its ruins, and, in short, to pave the way for making -the pope supreme monarch of the world, in matters temporal as well as -spiritual. The emperors, however, stickled hard, on the other hand, to -support their rights, and particularly to maintain to themselves the nomination -of the popes, as well as of other bishops, which the popes had transferred<span class="pagenum"><a id="Page_321"></a>[321]</span> -to the people of Rome first, and afterwards to the clergy alone; so that, -for a good part of this time, there was a schism in the church, and two -popes in being, the one named by the emperor, and the other elected; and -I observed before, William Rufus kept himself independent by acknowledging -neither, and was absolute master of the church. However, the -popes that were elected, generally gained ground. They had the majority -of the clergy on their side, and indeed most of the sovereign princes of -Europe, who were jealous lest the emperor, under pretence of being successor -to the Romans, might arrogate a superiority over them.</p> - -<p>It is surprizing, yet very true, that, in these contested times, the papal -power was pushed very near its greatest height. The materials, indeed, -were formed and collected some time before. A multitude of fictitious -decretal epistles had been forged in the names of the antient popes, so early -as from the year 800, all tending to exalt the bishop of Rome, as head over -the church universal; but these were not as yet generally known and received -as laws, the church being hitherto governed by collections of canons -made by private persons, out of the canons of the general or provincial -councils and sayings of the fathers. But in the reign of our Stephen, the -mighty fabrick began to be reared, and to take a regular form. Gratian, a -Roman courtier, undertook to make a new compilation of ecclesiastical laws, -and published it under the name of <i>Decretum</i>, which is now the first volume -of the canon law. This is a motely composition, digested under distinct -heads or titles, of rules and decisions, collected from the sayings of the -fathers, canons of the councils, and, above all, from the decretal epistles -of the popes, (the modern ones real, the ancient ones forged), and was put -together principally for the two great purposes, of aggrandising the See of -Rome, and exempting the clergy from lay-jurisdiction. And, for that purpose, -not only forged epistles and canons have been inserted in it, but the -real canons and writings of the fathers have been, in many places, falsified -by adding or omitting words as best served the purpose proposed; and -that this is the case of Gratian’s work, the learned Papists themselves confess, -in many instances. However, in that ignorant age, it passed easily all -for genuine. But the popes, wisely considering, that, if it was canvassed, it -would not bear a strict scrutiny, never chose to give it an authentic testimony<span class="pagenum"><a id="Page_322"></a>[322]</span> -of their authority, but contented themselves with authorising it to -be read in universities. In the interval I have mentioned, the popes began -to turn their spiritual arms of excommunication or interdict, that is, forbidding -the administration of divine offices, except in <i>articulo mortis</i>, in a -country or district, to temporal purposes, and the support of their grandeur<a id="FNanchor_379" href="#Footnote_379" class="fnanchor">[379]</a>.</p> - -<p>On this state of affairs happened the quarrel between the archbishop and -Henry, which embroiled him with the pope, embittered his life, and was -attended with consequences that brought him to the grave with sorrow. At -this time there were two popes, Victor, confirmed by the emperor, and -Alexander, the most enterprising pope the world had yet seen, supported by -the king of France. Had Henry followed the example of William, and acknowledged -neither, he might have kept both in awe, and vindicated the -rights of his crown with success. But he was prevailed upon by Lewis of -France to recognize Alexander, who was afterwards made an instrument -of humbling Henry, of whose power that monarch was jealous. For his extreme -partiality and severity is, in part, to be ascribed to the influence of -his protector, as well as to his zeal for ecclesiastical immunities. These -immunities had grown to an excessive height, and, under the pretence that -no man should be twice punished for one offence, the bishops took care to -inflict penance on ecclesiastical offenders, and then refused to suffer them -to be tried by the laws of the land; so that the most profligate ruffians -crowded into the lower order, and committed with impunity (except penance, -or rather, a pecuniary commutation for it) what murders, rapes, -and robberies, they thought fit. Henry was sensible of those enormities, -and, in hopes of curing them, by the assistance of one highly obliged to him, -got Becket, who was lord chancellor, his favourite, and indebted to him -for his grandeur, promoted to the See of Canterbury. But he soon found -how much he was mistaken in his man. Becket had been bred in his -youth in the study of the ecclesiastical laws, and, though he had in all -things hitherto complied with the king for his advancement, was, at the -bottom, strictly attached to his order and its privileges, and resolved, at -whatever price, rather to extend than diminish them.</p> - -<p><span class="pagenum"><a id="Page_323"></a>[323]</span></p> - -<p>To dazzle the people, he threw aside the pomp and expensive life of a -courtier, and assumed the character of mortification and sanctity. He began -by reclaiming the estates belonging formerly to his see, though they had -been aliened by his predecessors, with the consent of their chapters, and -upon valuable consideration; and this under pretence of a canon, made a -year or two before by Pope Alexander, in a packed council at Troyes in -France; which was plainly saying, that an ecclesiastical canon might repeal -the laws of any country, and subvert its constitution. He made an attempt -likewise on the patronages of laymen, and appointed a parson to a church, -which belonged to one of his own tenants, and afterwards excommunicated -the tenant for turning this person out, altho’ he was the king’s tenant <i>in capite</i>; -and such, by a law of the conqueror, were forbid to be excommunicated -without the king’s leave, under the penalties of treason. This was a -very necessary law; as otherwise a bishop might, by his sentence, deprive -the king of his service, and that of as many of his military tenants as he -pleased. However, in this point, when he found he was in danger of being -prosecuted on the law, he relented, and absolved the gentleman<a id="FNanchor_380" href="#Footnote_380" class="fnanchor">[380]</a>.</p> - -<p>His screening of criminals was excercised also in the most shameful manner. -A lewd clerk had debauched a young lady, and afterwards publickly -murdered her father, and this criminal was refused to be given up to be -tried. Another was guilty of sacrilege, in stealing a silver chalice out of a -church, and <i>Becket</i> would not suffer him to be tried by the laws of the land. -However, as the offence concerned the church, and was therefore of a very -heinous nature, he tried him himself; and having found him guilty, branded -him with a hot iron, in defiance both of the English and canon laws, -neither of which allow such punishments to an ecclesiastical judge. But he -knew he was too faithful a servant to the Pope, to be called to an account -even for making free with his own law.</p> - -<p>Henry, finding it necessary to stop the prelate’s career, summoned an assembly -of the bishops, and demanded of them that they should degrade all -ecclesiastical murderers, and deliver them over to the secular arm. At first -the majority seemed to think this a reasonable proposal, as they must, in -the first place, find them guilty before they were to be given up. But <i>Becket</i><span class="pagenum"><a id="Page_324"></a>[324]</span> -brought them over, by representing, that, by the canon law, they were not -to be concerned in matters of blood, and that their delivering over any criminal -to capital punishment would be infringing thereof. They therefore refused -the king. He then demanded whether they would observe the laws -and customs of the kingdom. Their answer was, in all things that did not -interfere with the rights of their order. The king left the assembly in -wrath, and at length, Becket was, by the intreaties of the other bishops, -and even of the Pope’s legate, who knew his master, being embroiled -with the antipope, was not able, at this time, to support him, prevailed -with to wait on the king, and promise to observe the laws of the land without -any reservation<a id="FNanchor_381" href="#Footnote_381" class="fnanchor">[381]</a>.</p> - -<p>Henry, sensible that such a general promise, when particular facts arose, -might be explained and evaded, was resolved that the limits of the ecclesiastical -jurisdiction should be ascertained in such a manner as would leave no -room for subterfuges; and to that end called a parliament at Clarendon, -wherein Becket and the bishops swore to observe the laws there made, called -<i>constitutions</i>, as new laws, but declared to be the old laws of the realm. -These constitutions were in number sixteen. I shall mention a few of the -principal, in order to give a notion of the points of jurisdiction then contested -between the spiritual and lay courts. First, then, it was declared, that -suits about presentations to livings belong to the king’s courts; that clergymen -should be tried for temporal crimes in the temporal courts; and that, -if they pleaded guilty, or were convicted, they should lose the ecclesiastical -privilege; that no clergyman should quit the realm without the king’s -licence, nor attain it, without giving security to attempt nothing to the prejudice -of the king or kingdom; that no immediate tenant, or officer of the -crown, should be excommunicated without the king’s licence; that appeals -in ecclesiastical causes should be made from the arch-deacon to the bishop, -from the bishop to the archbishop, from the archbishop to the king.</p> - -<p>This indeed was striking at the root of the Pope’s supremacy, and of -his profits too. It was in truth declaring the king supreme head of the -church as to jurisdiction; next, that all that held ecclesiastical dignities by<span class="pagenum"><a id="Page_325"></a>[325]</span> -the tenure of baronies, should do the duty of barons, and among the rest -sit in judgment as barons; however with this favourable allowance to them, -in consideration of their being bound by the canon law, that they might retire -when the question was to be put about loss of life or limb; likewise -that no bishop, or abbot, should be elected without the king’s consent; -nor, when elected, be consecrated till they had first done homage and -fealty; that the spiritual courts should not hold plea of debts due upon oath; -and lastly, that the spiritual and temporal courts should mutually aid each -other in carrying their sentences into execution<a id="FNanchor_382" href="#Footnote_382" class="fnanchor">[382]</a>.</p> - -<p>Such were the most material of the famous constitutions of Clarendon -drawn from the antient practice, and law of the kingdom, which the Pope -afterwards declared null and void, as contrary to the rights of the holy -church; which was plainly assuming the supreme legislature in every thing -that had the most distant relation to a church, or a churchman. But Becket, -who had sworn to obey the old laws only, for fear of personal danger at that -time, did not wait for the Pope’s condemnation of them, but instantly -shewed he was resolved to disobey, by enjoining himself penance, and abstaining -from officiating till he could obtain the Pope’s absolution. Henry, -provoked to the uttermost, was now resolved to crush him. He called -him to an account in parliament for all the king’s moneys that had passed -through his hands while he was chancellor, and for one thousand marks he -had lent him; demands that the king had never intended to have made, -but for his refractoriness; and which he well knew he was not able to pay, -having embezzled them in high living.</p> - -<p>The archbishop resolved to stand out to extremity: he offered a most -wonderful plea in a cause merely civil, that of debt, <i>viz.</i> that his being made -archbishop of Canterbury had discharged him of all former accounts and -debts, and appealed, even in this purely civil cause, to the Pope. When -reproached with contravening the constitutions of Clarendon, contrary to -his oath, he broached another curious maxim, That, in every oath a clergyman -could take, there was a <i>tacit salvo</i> for the rights of his order; he forbid -the bishop to sit in judgment upon him, under pain of excommunication.<span class="pagenum"><a id="Page_326"></a>[326]</span> -He would not hear his sentence, but told the peers that he was their father, -and they his children, and that children had no right to sit in judgment on -their father. He then departed, in contempt of the court, and went over -to France, where he was kindly received by that king; and the Pope avowed -and encouraged him in all the extravagances he had advanced, received his -appeal, and annulled all sentences against him.</p> - -<p>However, as the schism was not yet ended, he kept him in for some -time from proceeding to extremities; but as soon as the danger was over, -the Pope suffered him to thunder out his excommunications against all the -ministers of the king, and all that observed the constitutions of Clarendon. -The king himself, indeed, was spared, and the kingdom was not, on this occasion, -laid under an interdict; a circumstance then much apprehended. -The king, on the other hand, enacted, that no appeals should be made to -the archbishop, or Pope; that the lands belonging to Becket should be confiscated; -that the clergy who resided abroad should return in three months, -or forfeit their benefices; and that no letter of interdict should be brought -into England, the penalty of which last was afterwards made the same of -treason.</p> - -<p>The king was not a little uneasy at the apprehensions of personal excommunication, -or of an interdict’s issuing, as he observed the censures already -passed had but too much influence on the weakness of many of his subjects. -He therefore, to ward the blow, had recourse to negotiation, which the -Pope readily admitted, who feared, on the other hand, from the popularity -of Henry’s and the unpopularity of Becket’s conduct, that his ecclesiastical -thunders might be slighted in England. He contrived, however, in the -interim, to embroil him with the king of France, and other powers on the -continent. Matters continued on this footing for some years, in a train of -negotiation; in the course of which the moderation of the king and the insolence -of the archbishop were equally remarkable, till, at length, the former, -finding the Pope had trod down all opposition, and that his own interest -was on the decline, was obliged, I may say, to submit; for he was reconciled -to Becket; engaged to restore his and his adherent’s effects, and to -suffer him to return to England, which he did with the additional quality<span class="pagenum"><a id="Page_327"></a>[327]</span> -of legate of the Pope; and no mention was made of either side, of the subject -of the dispute.</p> - -<p>But Becket was resolved to shew the world he had conquered. He began -the exercise of his legatine power, by suspending and degrading the -clergy, and excommunicating the laity that adhered to the laws of the kingdom. -Nay, he excommunicated two of the king’s tenants for cutting off -the tail of his sumpter mule; so sacred was the beast become.</p> - -<p>Soon after he was murdered at the high altar, in consequence of a rash -speech of the king’s, in a barbarous manner, as all, any way acquainted -with the history of England, must know; and now was Henry compleatly -at the Pope’s mercy. For Becket, dead, served the See of Rome more effectually -than he ever could have done living. The bloodiness of the fact, -the sacredness of the place where it was committed, and the resolution with -which he died, filled not only all England, but all Europe, with religious -horror. Miracles in abundance he immediately wrought, and he who by -many was looked upon as a traitor, was now universally esteemed a saint -and a martyr; and so he was to the interest of the See of Rome.</p> - -<p>In these circumstances Henry was obliged to submit to be judged by the -Pope’s legates, who, at length, absolved him, on his swearing that he had -not willingly occasioned the murder, and that he felt great grief and vexation -on account of it; in which, no doubt, he was sincere. But before he -could obtain it, he was obliged to promise to be faithful to Alexander and -his successors, not to interrupt the free course of appeals to Rome in ecclesiastical -causes, and not to enforce the observance of evil customs introduced -since his accession to the throne; for so they stiled the constitutions of Clarendon, -though they were only declarations of the old law. And thus -ended this famous contest, in an absolute victory on the side of the Pope<a id="FNanchor_383" href="#Footnote_383" class="fnanchor">[383]</a>.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_328"></a>[328]</span></p> - -<h2 class="nobreak" id="LECTURE_XXXVI">LECTURE XXXVI.</h2> - -<p><i>The rebellions of Henry’s sons—He is succeeded by Richard</i> I.—<i>The steps taken -at this period towards settling the succession to the kingdom—The laws of Oleron—Accession -of John—His cruelty and oppressions.</i></p> - -</div> - -<p>Henry’s quarrel with the Pope, terminating in the manner it did, -necessarily weakened the weight and influence he ever before supported, -both in his own kingdom, and on the continent; nor could the -unwearied pains he afterwards took, in redressing grievances, and making -salutary laws, by the advice of his parliament, restore him to the consequence -he had lost. The rest of his life was spent in unfortunate wars with his rebellious -children, instigated thereto by the artful Philip of France. And the -pretence was grounded on a step that Henry had taken in favour of his children, -and I may add of his people, that of bringing the crown to a regular -course of succession, and by that means preventing contests upon a vacancy. -Hugh Capet, the first of the present race of French kings, who came to the -throne by election, in order to perpetuate it in his family, invented that -practice which his successors followed for near three hundred years, of associating -the eldest son, by causing him to be crowned in the father’s lifetime.</p> - -<p>Henry, who loved his children, and was sensible that the not following -this practice in England had occasioned the wars between William and -Henry the Conqueror’s sons, and their brother Robert, as well as those -between Stephen and himself and his mother, crowned his eldest son -Henry. But the use which the ungrateful prince made of his advancement, -was to embroil his father, by demanding the immediate cession of -Normandy, on pretence that, being a king, he should have some country -given up immediately to govern. Upon young Henry’s death, the father, -who knew Richard, with greater capacity, was equally unnatural with his -elder brother, resolved not to give him the same pretence to trouble him,<span class="pagenum"><a id="Page_329"></a>[329]</span> -and refused obstinately to have him crowned; but this refusal served itself -for a pretext for rebellion, as it gave Richard room to think, or at least to -pretend to think, that his father intended to disinherit him, and to settle the -crown on his youngest and favourite son John. In this rebellion Richard, -assisted by the king of France, and many of Henry’s subjects, who probably -suspected Henry’s design was such as was suggested, prevailed, and the -father was obliged to engage that his subjects should take the oath of eventual -allegiance to Richard, and soon after died of a broken heart, occasioned -by the undutiful conduct of every one of his sons.</p> - -<p>Richard accordingly succeeded; during whose reign we have little to -observe concerning the laws, the whole time of it being spent in a continual -state of war either in Palestine or France. Enormously heavy indeed were -the taxations his subjects laboured under, and yet they bore them with chearfulness. -For the holy war, and the recovery of the sepulchre of Christ from -the infidels, no aids could be thought exorbitant; and for his wars after his -return he was readily supplied out of affection; for the remorse he shewed -for having occasioned his father’s death, his admirable valour, the injustice -of and the cruel treatment he received in his captivity, and, above all, the -opposition between the perfidious conduct of the French king and his openness -and sincerity, endeared him to his subjects, made them shut their eyes -on his many failings, and bear their burthens with patience.</p> - -<p>Two things only passed in this reign proper for the subject of these lectures, -the steps made for settling the succession of the crown, and the -laws of Oleron. As Richard was unmarried when he set out for Palestine, -he thought it proper to prevent, if he could, any doubt that might arise, -in case he died without issue. There might, in this case, be two competitors, -Arthur, the son of Geoffry, his next brother who was dead, and -John the youngest brother, who was living. However clear the point is at -this day in favour of the nephew, it was then far otherwise. For Arthur -might be urged the right of representation. He represented his father -Geoffry; in all the fiefs in France, the law was in favour of the nephew; -nay, Glanville, who wrote in Henry the Second’s reign in -England, as to English estates, declared to the same purpose; and certain it -is that the general current of opinions at that time tended that way<a id="FNanchor_384" href="#Footnote_384" class="fnanchor">[384]</a>.</p> - -<p><span class="pagenum"><a id="Page_330"></a>[330]</span></p> - -<p>On the other side, it might be said in favour of John’s pretensions, that -the examples of fiefs could be no precedents in case of crowns. These required -more strictly, a person capable of acting in person. That this was -the very case; John was a man, Arthur a child; that, allowing Glanville -to have laid down the law right, he had made a distinction, which comes up -to this case; for he says, the uncle shall succeed, if the father of the nephew -had in his life-time been <i>forisfamiliated</i>; that Geoffry had been out of the -<i>patria potestas</i> of Henry, by being sovereign prince of Britany; that in the -Saxon times two cases, for the exclusion of infants, had happened, much -stronger than the present; that when Edmund the first died in possession of -the throne, his brother Edred succeeded, not his sons; and though Edmund -Ironside had been king, yet, after the Danish usurpation ceased, his -brother the <i>Confessor</i> was preferred to his son, though of full age, whereas -Geoffry never had the crown; that, since the conquest, three several times -had the lineal succession been set aside by parliament. So that there were -not wanting plausible arguments of each side of the question, and it is with -injustice that modern historians, considering only the maxims of their own -times, when a regular succession has been established, charge John with a -manifest usurpation of the crown of England. But that he was a manifest -usurper of the territories in France must be allowed; for, by the laws of -that country, they should have gone to the nephew.</p> - -<p>A question of this weight and difficulty should regularly have been -decided in parliament, which always hitherto had determined in such matters; -but Richard had never thought of the business till he left England, -and then it was too late to proceed in that method. He was obliged, therefore, -to content himself with declaring, by his own authority, his nephew -Arthur his successor; and, to prevent John’s traversing his design, he exacted -an oath from him not to set foot in England for three years; but from -this obligation he afterwards released him, at the request of their mother. -John used all his art to caress the nobility, and to supplant his nephew Arthur, -as he fondly hoped Richard would never return. And indeed, the -conduct of William Longchamp, bishop of Ely, Richard’s viceroy, contributed -greatly to his success; for, as to oppressions and outrages, he was not -exceeded even by William Rufus himself. This gave John a pretext for<span class="pagenum"><a id="Page_331"></a>[331]</span> -intermeddling to preserve the liberties of the people. He sent word to that -prelate, that if he did not refrain from his exorbitancies, he would visit him -at the head of an army; which for such an occasion he might easily raise.</p> - -<p>A general assembly, or parliament, was called, to compose the differences; -in which it was settled, that Longchamp should continue in the -administration, and hold the castles during the king’s life, but that, if he -died without issue, they should be delivered to John as successor; and this -agreement was ratified by the oaths of all the nobility and prelates, so that, -as Arthur had the decision of the king in his favour, John by this means -attained that of the people. Sensible how much this step must offend the -king, and of the dangerous predicaments he must stand in should he return, -he spared no pains to ascend the throne even in the life of his brother, in -which he was cordially supported by the king of France. But all his efforts -were baffled by the vigilance of the regency, who had been appointed on -Longchamp’s deposition, and was more necessary from his continuing in his -former extravagancies. John even gave out that Richard was dead, and -seized several castles, which he put in a state of defence. He was, however, -soon reduced, upon the king’s return, and all his treasonable practices -pardoned at the intercession of his mother. When Richard came to -die, he changed his mind as to Arthur, and by will appointed John his -successor: an alteration, considering his former attachments to his nephew, -who had never offended him, that could proceed from nothing but his -unwillingness to leave his dominions involved in a civil war through the -intrigues and interest of his brother.</p> - -<p>The laws of Oleron concerning naval affairs are the only specimen of -this prince’s legislative capacity. They were made at the isle of Oleron, -off the coast of France, where his fleet rendezvoused in their passage to the -Holy Land, and were designed for the keeping of order, and the determination -of controversies abroad. With such wisdom were these laws framed, -that they have been adopted by other nations as well as England. And, I -think, to this time we may, with probability enough, refer the origin of the -admiralty jurisdiction. In his reign, for the first and the last time, was -raised the feudal aid, for the redemption of the king from captivity.</p> - -<p><span class="pagenum"><a id="Page_332"></a>[332]</span></p> - -<p>Notwithstanding all the faults of this prince, his firmness against the -papal power is to be commended. Two of his bishops having a controversy, -there was an appeal to the pope, who sent a legate to determine it; but -Richard prevailed on the parties to refer it to his arbitration, and would -not suffer the legate to enter England, till he had made an end of the business; -and when he did come, the king suffered him not to excercise his -legatine power in any but one single point, and that by his express permission. -Notwithstanding all the steps taken in favour of John, in order to -pave the way for his succession, the notion of Arthur’s hereditary right had -taken such strong root in the minds of many, that, had he been in England, -and of a sufficient age to manage his affairs, he might have had a fair prospect -of success<a id="FNanchor_385" href="#Footnote_385" class="fnanchor">[385]</a>.</p> - -<p>The lower people indeed were easily prevailed on by his agents to take -the oath of fealty to John, while the prelates, and nobility in general, retired -to their castles, as deliberating what steps they should take; but, at -length, by magnificent grants, and more magnificent promises, they were -prevailed on to come in, and he mounted the throne without opposition. -But in the French provinces his usurpation met with more resistance. Arthur -had many partizans, and his cause was espoused by Philip of France, -the lord paramount, not with an intention to strip John of all; for that, -with Britany, would have made Arthur too powerful; but with a design to -divide the dominions more equally between them, and perhaps to clip off -a part for himself, as he afterwards did Normandy, as being forfeited by a -sentence of the peers of France, by John’s murder of Arthur. By the way, -I shall observe, that this sentence was notoriously unjust. By the laws of -France, Arthur was the undoubted heir of Normandy, and on his death his -sister ought to have succeeded, nor ought the duchy to have been forfeited -by the crime of a wrongful possessor. Or, taking it the other way, that -Philip had a right to choose his vassal, and, consequently, that the investiture -he gave to John was valid; then was he rightful duke of Normandy, -and Arthur, as duke of Britany, was his vassal, and had justly forfeited his -life, by rebelling and endeavouring to depose his liege lord. That John -was guilty of this crime there was no room to doubt; and truly, from the -whole of his conduct from that time, he seemed to have been infatuated by -the terrors of his conscience; for it was but little less than frenzy. He<span class="pagenum"><a id="Page_333"></a>[333]</span> -knew he was, by this cruel act, become the detestation of his subjects in -general, and that his father, in the midst of his power and popularity, had -been humbled by the Pope; and yet, at the same time, he trampled on the -liberties of the former, and oppressed them in the most outrageous manner, -and while his subjects were thus disaffected, he openly set the latter at -defiance.</p> - -<p>To this reign, however, so inglorious, and so miserable to the English of -that age, do their successors owe the ascertaining their liberties. He was, -if we except William Rufus, the first of the kings that openly professed to -rule by arbitrary power. I do not mean to deny that every one of his predecessors -from the Conquest had, in some particular or other encroached -on their people, but then there were either peculiar circumstances of distress, -that almost enforced and excused them, or one or two wrong steps -were atoned for by the greatness and goodness of their general conduct. It -is very observable, that, as England is almost the only country in Europe -that hath preserved its liberties, so was it the first wherein the kings set up -for absolute power: and the preservation of them, I apprehend, was in a -great measure owing thereto, that this claim was started there when the feudal -principles, and the spirit of independency, except only in feudal matters, -were in their vigour, and consequently raised such a spirit of jealousy -and watchfulness, as, though it hath sometimes slept, could never be extinguished; -whereas, in other countries, the progress of arbitrary power hath -been more gradual. It hath made its advances when the feudal system was -in its wane, and when the minds of men, by the introduction of the civil -and canon law, were prepared for it.</p> - -<p>What encouraged the kings of England to attempt this sooner than -other monarchs, we may judge, was the greater disparity in riches between -them and their vassals, than was in other countries; so that nothing much -less than a general confederacy could curb them; whereas, abroad, two or -three potent vassals were an overmatch for the sovereign. Besides, having -subjects on each side of the water, not knit together in any common interest, -they might hope to use the one to quell the other. But whatever was the -cause, so was the fact; and John, even before the death of Arthur, having -removed the dread of a competitor, shewed, by a most extraordinary step,<span class="pagenum"><a id="Page_334"></a>[334]</span> -what kind of sovereign he was like to prove. By the law of these days a -vassal was to pay his relief to his superior out of his own demesnes, and the -profits of his seignory, and had no right to demand aid for that purpose -from his sub-vassals; John having detached Philip from his nephew’s interest, -by ceding a part of his French territories, was to pay twenty thousand -marks for the relief of the rest; and, to receive this sum, he, by his own -authority, laid three shillings on every hide of land in England; thus -making England to pay that relief for his foreign dominions, which his -foreign subjects themselves were not obliged to pay.</p> - -<p>The next instance was in favour of the Pope, under pretence of the holy -war. Innocent had laid a tax upon the clergy, of the fortieth of their revenues, -and sent a collector to England to gather it, whom John, of his own authority, -empowered to collect it from the laity. These two impositions were -submitted to, in as much as there was no plan of opposition then formed; -but they afterwards occasioned great discontent among a people, who thought -no taxes could be raised without their own consent. Accordingly, the next -time he summoned his military tenants to attend him into France, they assembled -at Leicester, and agreed to refuse attendance, unless he would restore -their privileges; for though, by the law of the Conqueror, they were obliged -to go, they looked upon this obligation as suspended by his behaviour. -However, they had not yet sufficiently smarted, to unite them thoroughly, -and this affair was made up by his accepting a scutage.</p> - -<p>To enumerate all the exorbitancies he committed would be tedious, and -unnecessary, as the remedies prescribed in <i>Magna Charta</i> sufficiently point -out the grievances. Let it suffice to say, in general, that he oppressed his -military tenants by exacting extravagant reliefs, by disparagement of heirs, -by wasting his wards lands, by levying exorbitant scutages, by summoning -them to war, and delaying them so long at the place of transportation that -they were obliged to return home, having spent all their money; or, when -they were transported, keeping them inactive till they were obliged to return -for the same reason, and then, without trial, seizing their lands as forfeited. -The same oppressions he extended to others, seized lands and tenements<span class="pagenum"><a id="Page_335"></a>[335]</span> -at will and pleasure, imprisoned whom he pleased, laid heavy talliages -on the socage tenants and boroughs, without any regard to the privileges -they had obtained from his predecessors; and having, by these means -excited the detestation of his subjects, and forfeited his reputation by losing -Normandy by his indolence, he took it into his head that he was a match -for the Pope, and engaged in a contest with his Holiness, which subjected -him and his kingdom to the Roman See, tho’ eventually it contributed not -a little to the recovery of his subjects liberties.<a id="FNanchor_386" href="#Footnote_386" class="fnanchor">[386]</a> The manner in which this -happened shall be the subject of the ensuing lecture.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_336"></a>[336]</span></p> - -<h2 class="nobreak" id="LECTURE_XXXVII">LECTURE XXXVII.</h2> - -<p><i>John’s dispute with the court of Rome—Cardinal Langton promoted to be Archbishop -of Canterbury—Pope Innocent lays the kingdom under an interdict—John -is excommunicated—His submission to Innocent—The discontents of the -Barons—Magna Charta and Charta de Foresta—An examination of the question, -Whether the rights and liberties, contained in these charters, are to be -considered as the antient rights and liberties of the nation, or as the fruits of -rebellion, and revocable by the successors of John?</i></p> - -</div> - -<p>If Alexander the Third shewed the grandeur of the pontifical power in -humbling Henry the Second, the displaying it in its full glory was reserved -for Innocent the Third who now reigned, and who being promoted to the -papacy at the age of thirty seven, had vigour of body and mind to carry -every point he engaged in, and was resolved to push his power to the utmost. -Having tasted the sweets of English gold, in the collection made under pretence -of the holy war, he had a great desire to renew the experiment; and -that he might be able to proceed with the less opposition, was resolved to -have an archbishop of Canterbury at his devotion; and the See falling vacant, -a controverted election furnished him with an opportunity.</p> - -<p>The election belonged to the convent of Christ-church, though it was -contested with them by the suffragan bishops. The very night the archbishop -died, a faction of the younger monks resolving to have an archbishop -of their own chusing, assembled, and chose Reginald sub-prior of the -convent, and sent him off before morning for Rome, to obtain the Pope’s -confirmation, of which they did not entertain any doubt, as it would be -plucking a feather from the king’s prerogative, that of a previous licence -for proceeding to election; and Innocent had already shewn that he looked -on himself as monarch of monarchs. But as they could not expect the -Pope would take this stride in support of a clandestine election, they all -took an oath of secrecy, to be observed till the confirmation was obtained.</p> - -<p><span class="pagenum"><a id="Page_337"></a>[337]</span></p> - -<p>But Reginald’s vanity defeated the scheme, and made him divulge it, -which so provoked his electors, that they joined with the others, petitioned -the king for a license, and elected, at his recommendation, the bishop of -Norwich, and twelve of the monks were dispatched to solicit his confirmation. -The suffragan bishops opposed him, as being elected without their -concurrence, which point was determined for the convent by Innocent; -notwithstanding which, without assigning any invalidity in the second election, -he annulled it as well as the first, and recommended to the twelve deputies -to elect Stephen Langton, an Englishman and a cardinal. At -first they demurred, as having no authority; but the threat of instant excommunication -compelled them to obey. And then, as if they had done -nothing out of the way, he recommended Langton to John in a very civil -letter. The king, enraged to the highest, turned the monks of Canterbury, -who were entirely innocent, out of their convent and the kingdom, and -threatened the Pope that he would suffer no appeals. Innocent, who had -before this humbled Philip of France by an interdict, and knew the man -he had to deal with, proceeded very calmly, to order three bishops to -exhort the king to receive Langton, and recall the monks; and, in case -of non-compliance, to lay the kingdom under an interdict<a id="FNanchor_387" href="#Footnote_387" class="fnanchor">[387]</a>.</p> - -<p>The name of interdict frightened John, who knew how much he was -hated. He offered to comply, if he might be allowed to make a protestation -of a saving his dignity and prerogative; but no salvo would be allowed; -the interdict was published, Divine service ceased through the kingdom, -except in a very few places, where some clergymen were found honest and -bold enough to preach against the Pope’s proceedings. John, in revenge, -fleeced the clergy in a most horrible manner; and, what is yet more surprising, -did not desist from oppressing the laity. However, as to the points -in contest, he was not obstinate; he offered more than once to submit; -but Innocent had more extensive views. There was no remission without -he refunded to the churchmen every farthing he had extorted from them, -a thing absolutely out of his power. Then followed, after successive delays -calculated to shew that the holy father would give his undutiful son time -to repent, a sentence of excommunication by name, a bull absolving his -subjects from their oath of allegiance, and commanding all persons to<span class="pagenum"><a id="Page_338"></a>[338]</span> -avoid his company; and, lastly, a sentence of deposition, and a grant of all -his dominions to the king of France, who had been invited also by John’s -subjects, whose patience had been by this time quite exhausted with his -tyranny, and the suspension of the performance of Divine service.</p> - -<p>Philip was very ready to execute this sentence, and assembled a numerous -army. Randulf was sent, as the Pope’s legate, to see the sentence of -deposition put in execution; but, in reality, with secret instructions of a -very different nature; for it was by no means Innocent’s intention to give -England to France, but to subject it to himself. John, terrified with the -exaggerated account of Philip’s armament, and the disaffection of his subjects, -submitted in every point before in contest, and in one new one, that -no clergyman should be outlawed. But this was not sufficient to avert -the danger from Philip, and his own disaffected barons. To make -him sacred and invulnerable, he became a vassal to the Pope, resigned his -kingdom to him by a formal charter, and received it again as a favour, -under homage, and a yearly rent of a thousand marks.</p> - -<p>In consideration of this submission, John was favoured in the point of -indemnifying the clergy, which was what had so long retarded the accommodation. -Innocent took the estimating this on himself, and having got -all he wanted for the See of Rome, forgot his former clients the clergy, -and was very moderate with his new vassal. However, the interdict was -not removed, nor the king absolved from his excommunication, till Langton -was put into possession; which when done, John was obliged to renew -his homage, to swear to defend church and clergy against all their adversaries, -and to make restitution; and then he was absolved. But there -was one curious addition to this oath, which Langton, who was an Englishman, -and a lover of liberty, certainly inserted of his own head, that he -should restore the laws of the Confessor: For Innocent would never, we -may be well assured, have allowed such privileges to his vassals. John, -however, out of fear of Philip, being in an hurry to be absolved, made no -objection; and indeed he had no reason to doubt the Pope would absolve -him from his oath. But Langton and the nobles were resolved to keep -him strictly to it. Soon after, while he was in France, his regents summoned -a parliament, wherein the king’s peace was proclaimed, and the<span class="pagenum"><a id="Page_339"></a>[339]</span> -laws of Henry the First were revived. These were those he had sworn to -restore, being in truth the Confessor’s, with a few additions and alterations -by the Conqueror and Henry.</p> - -<p>John, however, went on in his old courses, being now sure of the Pope’s -protection, and indeed it was hard to charge him with a breach of Henry’s -charter, of which, though copies had been lodged in every cathedral and -great abbey in England, yet so carefully were they destroyed, that not one -appeared. At length archbishop Langton furnished them with one, which -had escaped the general calamity; and this the associated barons, who had -determined to restrain John, and recover their liberties, made the basis of -their demands, and swore to demand, and if refused, to vindicate with -the sword, at a meeting they had at Edmundsbury under pretence of -devotion. Accordingly, they waited on the king in a military dress, and -made their demands; but he, seeing they were only a party among the -nobles, and not imagining the rest were of the same sentiments, not only -refused, but with haughtiness insisted they should renounce them, by giving -under their hands and seals, that they would never make the like demand -on him or his successors. But his eyes were opened when he found -scarce two or three of those that were with him would comply. He had -recourse to procrastination, and promised them satisfaction at the latter end -of Easter. In the interim he exacted a new oath of allegiance from his -subjects; a feeble precaution; for none refused it, or thought themselves -precluded by that act of duty from vindicating their rights in what manner -they best might. To secure the clergy, he gave them a charter, confirming -their immunities, and the entire freedom of their elections; and -yet a great multitude continued zealous for the liberty of the subject against -him; but his main dependance was on religion. To render his person -sacred, he assumed the cross, as if he intended for the holy war, and implored -the protection of his Holiness, to whom the discontented barons also -represented the justice of their pretensions. Innocent, in appearance, received -them favourably, advised them to represent their hardships in a decent -and humble manner to the king, in which case he would interpose in -favour of all their just and reasonable petitions; but annulled their association, -and forbad them to enter into any new one for the future.</p> - -<p><span class="pagenum"><a id="Page_340"></a>[340]</span></p> - -<p>The barons, who sent to the Pope rather out of respect than any expectation -of favour, proceeded in the method they began. They and their -vassals assembled in array, in such numbers as to compose a formidable -army; and when they had particularly specified their demands, and were -refused, they proceeded to attack him, by reducing his castles. Against -himself, as being under the cross, they made no attempt. On this occasion, -archbishop Langton, who was at the bottom of the whole confederacy, outwitted -John; who, as they had disobeyed the Pope, was impatient to have -them excommunicated, and this the Pope promised to do as soon as the -foreign troops, which the king had brought over for his defence, had quitted -the kingdom; but when they were gone, he broke his engagement, so -that John, left defenceless, was obliged to appoint four nobles to treat with -the revolted lords; and, upon conference, some points they had insisted on -before being given up, the liberties of the nation were settled, as contained -in the two charters of <i>Magna Charta</i>, and <i>Charta de Foresta</i><a id="FNanchor_388" href="#Footnote_388" class="fnanchor">[388]</a>.</p> - -<p>The manner of obtaining these charters, and the right the people have -to the liberties contained in them, have been the subject of much controversy -between the favourers of arbitrary power and the assertors of freedom; the -one, contending that they were the fruits of rebellion, extorted by force -and fraud, from a prince unable to resist, and therefore revocable by him -or his successors; and the others, that they were the antient privileges of the -nation, which John had, contrary to his coronation-oath, invaded, and which -they therefore had a right to reclaim by arms. That they were obtained -by force, is undoubted, and that John and many of his successors looked -upon them, therefore, as of no validity, is as clear, even from the argument -lord Coke brings for their great weight, their being confirmed above twenty -times by act of parliament. To what purpose so many confirmations, if the -kings had not thought them invalid, and had not, on occasions, broke -through them; and were it as clear that they were not the antient rights of -the people, it must be owned they were extorted by rebellion. But that -they were no other than confirmations, appears very plainly from the short -detail I have heretofore given of the constitution and spirit of the monarchy -of the Saxons, and all other northern nations.</p> - -<p><span class="pagenum"><a id="Page_341"></a>[341]</span></p> - -<p>As to any new regulations introduced in them, as some there are, they -are only precautions for the better securing those liberties the people were -before entitled to, and it is a maxim of all laws, that he who has a right to -a thing, hath a right to the means without which he cannot enjoy that -thing.</p> - -<p>The friends, therefore, to absolute power, sensible that the original constitution -is against them, choose to look no farther back than the Conquest. -Then, say they, the Saxon government and laws were extinguished, the -English by the Conquest lost their rights, the foreigners had no title to -English liberties, and the Conqueror and his son William acted as despotic -monarchs. Therefore, their successors had the same right, and it was treason -to think of controuling them. But how little foundation there is for -this doctrine, may appear from what I observed on the reign of the Conqueror. -He claimed to be king on the same footing as his predecessors; he -confirmed the Saxon laws, and consequently both Saxons and foreigners, -when settled in the kingdom, had a right to them. If he oppressed the -English, that oppression did not extend to all; and to those it did, it was -not exercised as upon conquered slaves, but as upon revolted rebels. But, -for argument sake, to allow that the English became slaves, and that the -foreign lords had no right to the Saxon privileges, both which are false, -how came the king to be despotic sovereign over them? They were partly -his own subjects, freemen, according to the feudal principles, who served -him as volunteers, for he had no right to command their service in England; -or volunteers from other princes dominions, and to say that freemen and -their posterity became slaves, because they are so kind as to conquer a kingdom -for their leader, is a most extraordinary paradox.</p> - -<p>But William the Conqueror, in some instances, and his son in all, acted -as despotic princes; therefore they had a right so to do. I answer, the triumvirs -proscribed hundreds of the best Romans, therefore they had a right. -It is as unsafe to argue from matter of fact to matter of right, as from matter -of right to matter of fact. It is as absurd to say, Tarquin ruled absolutely, -therefore the Romans were rightfully his slaves, as to say the Romans -had a right to liberty under him, therefore they were free.</p> - -<p>But it may be said, the people quietly submitted, and new rights may be -acquired, and new laws made, by the tacit consent of prince and people, as<span class="pagenum"><a id="Page_342"></a>[342]</span> -well as by express legislation. I allow it where the consent is undoubtedly -voluntary, and hath continued uninterrupted for a long space of time; and -how voluntary this submission was, we may judge from the terms they -made with Henry the First, before they suffered him to mount the throne. -Besides, there are some points of liberty, essential to human nature, that -cannot, either by express or tacit laws, be given up, such as the natural -right that an innocent man has to his life, his personal liberty, and the -guidance of his actions, provided they are lawful, when the public good -doth not necessarily require a restraint. In short, never was there a worse -cause, or worse defended; and this maxim was what influenced the conduct -of the Stuarts, and precipitated that unhappy house to their ruin.</p> - -<p>John, who entertained the same sentiments, had no resource to recover -his lost rights, as he thought them, but the assistance of the Pope, and an -army of foreigners. The first very cordially espoused his interest. He was -provoked that he, who had humbled kings, should be controuled by petty -lords, and that by these privileges he should be prevented from reaping -that golden harvest he expected from England. He annulled the charters, -commanded them to recede from them, and, on their disobedience, excommunicated -them, first in general, and then, by name.</p> - -<p>About the same time arrived an army of veteran foreigners, that came -to assist John, who had, in imitation of the Conqueror, distributed to them -the estates of the barons. With these and a few English lords, he took -the field, and ravaged the country with a more than Turkish barbarity. The -confederate barons saw the liberties they had contended for annulled, their -lives and estates in the most imminent danger, and, in a fit of despair, invited -Lewis, prince of France, to the crown, who, bringing over an army, -saved them from immediate destruction. However, this strengthened John. -It was not for any to stand neuter. Few chose to embark in an excommunicated -party, and many, who saw slavery unavoidable, and nothing left -but the choice of a master, preferred their countryman for a king to a foreigner. -The loss of liberty now seemed certain, which ever prevailed; -when the haughtiness of Lewis, and his want of confidence in the English -noblemen who joined him, concurring with the death of John, and the -innocence of his infant son, providentially preserved the freedom of -England.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_343"></a>[343]</span></p> - -<h2 class="nobreak" id="LECTURE_XXXVIII">LECTURE XXXVIII.</h2> - -<p><i>The minority of Henry III.—Ecclesiastical grievances—The dispensing power—The -canon law—Confirmation of Magna Charta—A commentary on Magna -Charta, in so far as it relates to what now is law.</i></p> - -</div> - -<p>John left his minor son under the guardianship of the earl of Pembroke, -a nobleman of great abilities, and the strictest integrity. The -first step he took for the benefit of his pupil, was the confirmation of the -charters, and the next was a negotiation with the revolted lords, who began -to be discontented with the prince of France; which succeeded so happily, -that in a short time he brought them all over with very little bloodshed, -and Lewis was obliged to quit the kingdom. Peace being re-established, -the regent applied himself with all diligence to restore the peace of the kingdom, -and justice to her regular course: And had he lived long enough to -form the conduct and principles of the young king, England never had -a fairer prospect of happiness; but he soon dying, and his successors being -men of a different stamp, such principles were sown in the monarch’s mind, -as, in the event, produced bitter fruit both to him and the whole kingdom.</p> - -<p>This reign was as calamitous as the preceeding one, and rather more -shameful; and what added to the misfortune, it lasted three times as long. -As soon as Henry came of age, he revoked <i>Magna Charta</i>, as being, an act -of his nonage, soon after he confirmed it, then broke it, then confirmed it -by oath, with a solemn excommunication of all that should infringe it; -then he obtained from the Pope a dispensation of his oath, and broke it -again. And thus he fluctuated for fifty years, according as his hopes or -years prevailed. However, in general, the charter was pretty well observed. -The great point it was infringed in, was the levying money without -the parliament, and in this he frequently prevailed, being assisted by his -Lord Paramount, the Pope. They joined in levying taxes, and then divided -the spoil between them. Indeed, their Holinesses had, upon each occasion,<span class="pagenum"><a id="Page_344"></a>[344]</span> -by much the greater share; for they not only fleeced the clergy separately, -but drew vast sums from the king, on pretence of a foolish project -of making his younger son king of Sicily; all which they squandered on -their private occasions.</p> - -<p>In this reign they introduced the practice of provisorship, against which -so many acts of parliament have been made. It went on this maxim, That -the Pope was universal pastor of the church, and consequently sole judge -who should be his deputy in any particular place. The inference necessarily -followed, that the rights of patronage to livings, whether in a Bishop or -lay patron, were, strictly speaking, no rights at all, being such only where -the Pope did not chuse to interfere. But this privilege would have been of -little significance, if they could act only in the vacancy of a living; for it -would generally have been filled up before he could have notice. Bulls of -provisorships were, therefore, invented. These were charters of the Pope, -directed to the bishop, acquainting him, that he had provided for such a -person, by appointing him to such a benefice, when it should become vacant, -or the first benefice of such a value that should fall; strictly forbidding -the Bishop to admit any other person, upon any account whatsoever. -Sometimes the person provided for was not named; but notice was to be given -when the vacancy happened. In process of time a number of livings -were resolved in the same bull; nay, one went so far as to forbid any living -that should fall to be filled, till the Pope had provided for three hundred persons. -Such were the delightful consequences of John’s homage, and of -England becoming St. Peter’s patrimony; so that the monkish historians -tell us that Rome sheared all Europe; but in England they flayed off the -skin. An account was taken at one time of the value of English benefices possessed -by Italian priests, non-residents, and it was found to exceed the ordinary -revenue of the crown. All these bulls concluded with a non obstante, -that is, notwithstanding any laws, custom, privilege, right or patronage, or -any thing else whatever; and this hopeful precedent Henry the Third adopted -in his charters, thereby, if he could not repeal, at least making ineffectual -the laws of the land; and thus began the king’s claiming a <i>dispensing -power</i> over the laws<a id="FNanchor_389" href="#Footnote_389" class="fnanchor">[389]</a>.</p> - -<p><span class="pagenum"><a id="Page_345"></a>[345]</span></p> - -<p>In this meridian of the Pope’s power was the canon law introduced -into England, and it soon began to usurp considerably on the civil courts; -insomuch that, had not the common law judges exerted themselves to -check the ecclesiastical court by prohibitions, which they did even in -this reign, it would have gained the same ascendant that it has in the -Pope’s territory.</p> - -<p>The latter end of this reign was filled with a succession of troubles, occasioned -by the repeated breaches of the charters, and fomented by the ambition -of some of the great nobles; however, in the end, the king prevailed, -by the assistance of his son; but it was found expedient, even in the midst -of victory, in order to prevent future convulsions, to establish the liberties -of England, by confirming <i>Magna Charta</i>; and they have ever since stood -their ground. I shall therefore proceed briefly to speak to <i>Magna Charta</i>, -and in so doing shall omit almost all that relates to the feudal tenures, which -makes the greatest part of it, and confine myself to that which now is -law.</p> - -<p>The first chapter of <i>Magna Charta</i>, as confirmed in the 9th year of Henry, -which is that now in force, and differs from that of John in some omissions, -concerned the freedom of the church, in which was principally included -the freedom of elections to Bishopricks, which, since the reformation, -has been taken away. I shall, therefore, proceed to those that concern -the laity; the five next are feudal, and the seventh is concerning widows. -It first gives them free liberty to marry or not; whereas, before, -such as were called the <i>king’s widows</i>, that is, those who held lands, or whose -husbands held lands of the king, had been obliged to pay for license to -marry if they had a mind, or were distrained to marry, if they had no -mind, which it is unnecessary to say was a grievous oppression. It restrains -the taking any thing from the widow for her dower, or for her own land, -which her husband had held in her right. It provides for her <i>quarantine</i>, -that is, gives her leave to stay forty days in her husband’s house, unless she -had dower assigned to her before, and within that time orders the -third part of her husband’s land to be assigned her by the heir, as her -dower; and that, in the interim, she should have reasonable estovers<a id="FNanchor_390" href="#Footnote_390" class="fnanchor">[390]</a>.</p> - -<p><span class="pagenum"><a id="Page_346"></a>[346]</span></p> - -<p>The next is in favour of the <i>king’s debtors</i>, and their securities. By the -old law, the king’s profit was so highly favoured, that he could, to satisfy -his debt, seize the chattels or extend, that is, take the profits of the real -estate of his debtor, at his pleasure; or he might, in the first instance, come -on the security, without attacking the principal debtor. For remedy hereof, -it forbids the king, or any of his officers, seizing the land, while the debtor’s -personal chattels are sufficient. It forbids, also, the distraining the securities, -while the debtor’s chattels were sufficient. If they were not, the king -had the option either to seize the land of the debtor, or distrain the securities; -and if the latter was done, it provides, that the securities should have -the land, until they are reimbursed. Immediately after this, in king John’s -charter, followed the law prohibiting the king from levying any talliage or -tax on the socage tenants, or on boroughs, without assent of parliament, -which is here omitted; and this king and his son Edward asserted and exercised -the right; but the last was at length obliged to give it up, in the famous -statute <i>de tallagio non concedendo</i>, and not till then were these ranks of -the people entirely emancipated. This omission for a time rendered illusory -the next, the ninth chapter, which provides that the city of London and -all the other cities, boroughs, and ports, should enjoy all their ancient liberties -and customs; for these would be of little use whilst arbitrary taxation -remained. The tenth is in affirmance of the common law, that no person -should be distrained for more rent or services than he owed out of the land. -If he was, he had a double remedy, either by <i>a suit in replevin</i>, or by the -writ called <i>ne injuste vexes</i>. The next is for fixing the court of Common -Pleas, of which I spoke already. The twelfth was for the ease of the people, -by taking assizes in the country. But those actions are out of use -now. The thirteenth is concerning assizes too. I hasten therefore to the -fourteenth that treats of <i>amerciaments</i>.</p> - -<p>Amerciaments come from the word <i>mercy</i>, and are so called from the -words in the record, <i>sit in miserecordia pro falso clamore suo</i>, and were properly, -though the word hath been since extended, what a plaintiff or defendant -that had troubled the king’s courts should pay by way of punishment -for maintaining an unjust suit; whereas <i>fines</i>, to which they bear a resemblance, -and with which they have sometimes been confounded, were for offences,<span class="pagenum"><a id="Page_347"></a>[347]</span> -and assessed by the court; as were amerciaments also sometimes, -and very grievously, though entirely against law. This act restores the -common law; orders the amerciaments to be proportioned to the nature of -the case, and also, in regard to the man’s circumstances, so that he should -not be ruined thereby; that no freeholder should be amerced in so heavy -a manner as to destroy his freehold; no merchant, his merchandize; no -villain, his carts, whereby he would be unable to do his lord’s services; no -ecclesiastic according to the value of his benefice, but only according to his -lay property. And that this might be constantly observed, the amerciaments -were to be asserted, or settled by the man’s peers. It may be asked, -what remedy had the man, who was too severely amerced by his peers? -On this act was grounded the writ of <i>moderata miserecordia</i>, whereby this -amerciament may be tried by another jury, and moderated.</p> - -<p>The fifteenth provides, that none should be distrained to repair bridges, -or landing places, but who are bound by their tenures or custom. The -sixteenth for the free navigation in rivers, and unloading of goods. The -seventeenth takes away the power of trying pleas of the crown from sheriffs, -constables and coroners, and other inferior officers; a very necessary law, -upon account of the great value of the life of an individual, especially as -none but the king’s courts could give the benefit of clergy. However, -sheriffs and coroners can take <i>indictments</i>; for that is not <i>trying</i>, but bringing -the matter into a method of trial. The eighteenth concerns debts due -to the king where his debtor is dead. By this law, the first duty of executors -is to pay the debts of the deceased; those of the highest nature, not -as to <i>value</i>, but in <i>quality</i>, in the first place, then the lower ones: and if the -effects were not sufficient, it was in their option to pay one creditor of the -same nature without another, so that they observed the rule of not paying -the lower debtor before the higher. But the king, be his debts of what -nature they would, by his prerogative, had the preference of all creditors, -and by colour hereof his officers often seized and embezzled the effects of -the deceased, to the prejudice of other creditors and legatees. This orders -the sheriff to attach and value the goods by a jury of twelve men, to -the value of the debt, which were to remain unremoved, till the king was -paid; and then the whole, or, if not, the overplus, to be restored to the<span class="pagenum"><a id="Page_348"></a>[348]</span> -executors. The two next are feudal. The twenty-first relates to purveyorship, -which has been abolished.</p> - -<p>The twenty-second relates to the king’s right to the lands of felons. On -which there is something curious to be observed. By attainder of felony, -the goods and chattels of the felon are forfeited to the king, and the land -to the lord from whom they were holden; but in case of treason, both -were forfeited to the king. Such was the feudal law; but by the law of -England, in order to deter persons from committing felony, and to make -the lords more careful what kind of tenants they chose, the king had an -interest in the land of felons; not for his own benefit indeed, but for the -terrifying by example. He had a right to commit waste in them, to cut -down the trees, to demolish the houses and improvements, and to plow -up the meadows; and for this purpose he was allowed, by common law, -a year and a day. To prevent this destruction, the lords, to whom the -land escheated frequently, by a fine, bought off the king’s right of waste; -but if they did not, his officers would take the profits for the time, and -then hold it longer, till they had committed the waste. This act prohibits -the retaining the land longer than a year and a day, and directs that then -it should be restored to the lord. This new law was certainly intended -for the public good, to prevent this malicious wasting, which the king’s -officers would be sure to commit, if they were not properly, as they -thought, considered; and to give the king, in lieu of the waste that he -had a right to make, a lawful profit, which his officers had unlawfully, to -their own use, we may be sure, extorted before. It gives the custody of -the lands for that time, and consequently the profits. But observe the -consequence.</p> - -<p>The king now had the custody, as also the profits, by a legal title for a -year and a day, unless the lord pleased to compound with him, and so intitle -himself to the immediate possession. But this did not satisfy the greediness -of the officers of the crown. It was easy to gather the profits until -very near the time the king’s right expired, and then, for a week or fortnight -before it was out, they had it in their power to commit waste enough, -if the lord, who was intitled by the escheat, did not buy them out. This<span class="pagenum"><a id="Page_349"></a>[349]</span> -was certainly against the spirit of the law whereof we are speaking, which -was intended to give the king a real profit, instead of a right destructive -to the community in general; but the waste was not prohibited expressly, -and this was pretext enough for these officers to exact composition for not -doing it within the year. It was accordingly claimed and paid, and accounted -for as due to the king, on that old maxim, That general laws do -not change the prerogative royal, but by express words. This was the -doctrine and practice in the courts of the third Henry, and convenient -enough for him, who was always indigent. But what was the opinion of -the lawyers of that age, we may learn from Bracton, Britton, and the author -of Fleta; the first of which wrote in the latter end of this reign, -and the other two in the reign following. Bracton says expressly, that -“the king’s power over the lands of felons convicted, was because he -had a right to throw down the buildings, unroot the gardens, and plow up -the meadows; but because such things turned to the great damage of the -lords, it was provided, for common utility, that such houses, gardens, -and meadows should remain, and that the king for this should have the -advantage of the whole land for a year and a day, and so every thing -should return entire to the lord. Then he goes on, but now both is -demanded, namely, a fine for the term, likewise for the waste, nor -do I see the reason why<a id="FNanchor_391" href="#Footnote_391" class="fnanchor">[391]</a>.” Thus far Bracton. Britton says, speaking -in the person of the king, of felons, for in that manner his book is written, -“Their moveables are ours; their heirs are disinherited; and we will -have their tenements, of whatsoever holden, for a year and a day, so -that they shall remain in our hands that year and day, and that we shall -not cause to perish the tenements, nor hurt the woods, nor plow the -meadows, as hath been accustomed in time past<a id="FNanchor_392" href="#Footnote_392" class="fnanchor">[392]</a>.” Fleta talks in the -same strain, in commenting on this law of <i>Magna Charta</i>, which he expressly -quotes, that, as a mark of brand on felony, it had been antiently -provided that the houses should be thrown down, and so goes on to enumerate -the other species of waste, which I need not here repeat, as I have -mentioned them already; and then he says “because by such doings -great damage would accrue to the lords of the fiefs; for common utility -it was provided, that such hardships and severities should cease;<span class="pagenum"><a id="Page_350"></a>[350]</span> -and that the king, in consideration thereof, should, for a year and a -day, enjoy the commodity of the whole land; after which term it -should return to the lords of the propriety entirely, without waste or -destruction<a id="FNanchor_393" href="#Footnote_393" class="fnanchor">[393]</a>.” The <i>Mirror</i>, another antient law-book, joins with these; -and this book, which was written in the same reign of Edward the first, or, -at the latest, in that of his son, says, “the point of felons lands being held -for the year is disused; for by that, the king ought not to have but the -waste by right, or the year, in name, (that is, in nature) of a fine; to save -the fief from <i>estrepement</i> (that is, waste), the ministers of the king take -both the one and the other<a id="FNanchor_394" href="#Footnote_394" class="fnanchor">[394]</a>.” A melancholy consideration, that, under -his name, and in pretence of his profit, though not really to his advantage, -such a law should, for their own profit, be eluded by his ministers; as by -these testimonies, one cotemporary, and the rest immediately subsequent, -we are informed it was contrary to the intention of this chapter of <i>Magna -Charta</i>; but the practice prevailed for a long time after. I shall conclude -this lecture with the words of Lord Coke on this chapter of <i>Magna Charta</i>. -“Out of these old books you may observe, that when any thing is given -to the king, in lieu or satisfaction of <i>an antient right of his crown</i>, when -once he is in possession of the new recompence, and the same in charge, -his officers and ministers will many times demand the old also, which -may turn to great prejudice, if it be not duly and discreetly prevented<a id="FNanchor_395" href="#Footnote_395" class="fnanchor">[395]</a>”.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_351"></a>[351]</span></p> - -<h2 class="nobreak" id="LECTURE_XXXIX">LECTURE XXXIX.</h2> - -<p class="center"><i>Continuation of the commentary on Magna Charta.</i></p> - -</div> - -<p>The twenty-third chapter of <i>Magna Charta</i> prohibits <i>fish weires</i> in -rivers, which are great annoyances to navigation, and the free liberty -of fishing; and which have stood their ground in spite of all the laws that can -be made against them. The next relates to the inferior courts of Lords of -Manors, and to writs of <i>Præcipe in capite</i>; which having gone into disuse, -with the feudal tenures, I shall pass them over. The twenty-fifth orders, -that measures and weights should be one and the same through the whole -kingdom; witness the difference between Troy weight and Averdupois; -the wine gallon and ale gallon. Established customs, which of necessity -must come into daily practice, are hard to be rooted out by positive laws; -and indeed it is more prudent to let them continue. For the confusion that -such an alteration of things in daily or hourly practice would occasion, -would be more detrimental, for a considerable time at least, than the uniformity -intended to be introduced would be attended with advantage<a id="FNanchor_396" href="#Footnote_396" class="fnanchor">[396]</a>.</p> - -<p>The twenty-sixth is concerning the writ <i>De odio et atia</i>, that is, of hatred -and malice; which, though not abolished, hath long since been antiquated; -but, as it was an antient provision for restoring the liberty of the -subject, I shall take some notice of it. It was a maxim of the common -law, that no man imprisoned for any offence, which, if proved, would -touch his life or members, could be bailed out but by the supreme criminal -court, the King’s Bench; which, upon danger of death, or such other special -causes as appeared sufficient to them, had that power. Hence, in -those unsettled and oppressive times, it became a practice for malicious persons -to have a man clapped up in prison for a capital offence, without -either indictment or appeal brought against him; and there he was of necessity -to lie, until the justice in eyre came into the county to deliver the<span class="pagenum"><a id="Page_352"></a>[352]</span> -gaols, which regularly was but once in seven years; to avoid this hardship, -the writ we are now speaking of was invented, and issued out from time to -time, as occasion required, out of the Chancery. Besides, by this chapter -of <i>Magna Charta</i>, it is ordered to be granted without any purchase or reward; -whereas, before, all the original writs were purchased at the price -the chancellor pleased to set on them, which was a grievous oppression. It -ordered the sheriff to make inquisition in the county court, by the oath of -a jury, whether the imprisonment proceeded from malice or not. If they -found it did, upon its return, the person accused had a right to a writ, ordering -the sheriff to bail him by twelve <i>manucaptors</i>, or securities. But, this -was only where there was no indictment, or appeal; for these were accusations -of record, and therefore the finding the charge malicious in the county -court, which was no court of record, could not avail against them. This, -writ has gone into disuse, since justices of gaol-delivery have continued to -go into every county twice a year; a proceeding which has evidently superseded -the necessity of it<a id="FNanchor_397" href="#Footnote_397" class="fnanchor">[397]</a>.</p> - -<p>The twenty-seventh chapter restrains the unjust practice in the king, of -arrogating to himself the wardship of his socage or burgage tenants, where -they held lands by military service from others, his subjects. The whole -military system hath since been dissolved by act of parliament, and therefore -it will be unnecessary for me to explain or enlarge upon the nature of -the mischief complained of in this chapter. The next forbids any judge or -officer of the king to oblige a man to <i>wage his law</i>, that is, swear to his -innocence, except in a cause where a suit was instituted against him; but -<i>wager of law</i>, being now totally fallen into disuse, I hasten to the twenty-ninth -chapter, the corner-stone of the English liberties, made in affirmance -of the old common law<a id="FNanchor_398" href="#Footnote_398" class="fnanchor">[398]</a>.</p> - -<p>By the bare reading of this chapter we may learn the extravagances of -John’s reign, which it was intended to redress. It consists of two parts. -The first runs thus: <i>Nullus liber homo capiatur, vel imprisonetur, aut disseisetur, -de libero tenemento suo, vel libertatibus vel liberis consuetudinibus suis, aut<span class="pagenum"><a id="Page_353"></a>[353]</span> -utlagetur aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec -super eum mittimus, nisi per legale judicium parium suorum, vel per legem terræ.</i> -First, then, to see to whom this act extends: the words <i>liber homo</i>, in antient -acts of parliament, is, in general, rightly construed <i>freeholders</i>, and so it -means here, in the second branch which prohibits disseisins; for none but -a freeholder is capable of being disseised, no others being said to have a -seisin of land. But it must not, throughout the whole of this act, be confined -to this limited sense. The first branch speaks of the restraint of liberty; -the third, of unjust outlawries; the fourth, of unjust banishment; -the fifth, of any kind of destruction, or wrongs; which, offered to an innocent -person, are against the natural rights of mankind, and therefore, -the remedy must extend to all: and so it hath always been understood; -for women are included in it, and so are villeins, for they are free men -against all but their lord.</p> - -<p>Let us next consider the end of this part, which is an exception running -through the whole; <i>nisi per legale judicium parium suorum, vel per legem terræ</i>. -That is, by the common law, which doth not, in all these cases, require a -trial by peers; a thing indeed impossible, where the party doth not appear; -in which case there is a necessity of proceeding to judgment another way. -Coke observes, the words <i>legale judicium parium suorum</i> include the trial both -of lords and commons, the finding of the latter being upon oath, and called -<i>Veredictum</i>, and in which all must be unanimous; wherein it differs from -the trial of lords, for they find not upon oath, but upon honour; and it is -not necessary that all should agree, the majority, provided that majority -consists of twelve, being sufficient<a id="FNanchor_399" href="#Footnote_399" class="fnanchor">[399]</a>.</p> - -<p>Upon this a question may be put, who are the peers of a woman of quality? -If she be noble by blood, that is, a peeress, (for I speak not of the -nobility by courtesy, which is merely nominal) there is no doubt but the -barons and other noblemen; if she be ennobled by marrying a peer, she -becomes in law one person with her husband, and therefore must have the -same peers with him, which right continues after her husband’s death, unless -she marries a commoner; for then, being one person with him, she becomes -a commoner; whereas a peeress, in her own right, marrying a<span class="pagenum"><a id="Page_354"></a>[354]</span> -commoner, forfeits not her dignity, though she becomes one person with -him. She was not ennobled by her own act, and therefore, by no act of -her own can destroy that nobility she has by the gift of God, or the king, -by means of her blood, which she cannot alter.</p> - -<p>Two exceptions, however, there are to the rule of every Englishman’s -being tried for offences by his peers; but neither of them against the purport -of this statute. First, the statute speaks in the disjunctive, <i>per legale -judicium parium suorum, aut per legem terræ</i>: now the <i>lex terræ</i>, the common -law, in the universal practice of it, allows these exceptions; nor will they -be found to be against the letter; for the words are <i>nec super eum ibimus</i>, -<i>nec super eum mittemus</i>, speaking in the person of the king; which shews -that it is meant of the accusation or other suit of the king. Now these exceptions -are not at his suit. One of these exceptions I mentioned in a former -lecture. It is where a commoner is impeached by the commons in -parliament; and the reason I then gave, is, I think, plain and satisfactory, -that every jury that could be summoned is supposed a party to the charge -brought by their representatives, and therefore, as the man is accused as an -enemy to the king by the body of the people, that there may not be a -failure of justice, the lords, as the only indifferent persons, must be the -judges.</p> - -<p>The other exception may seem more extraordinary. It is that a lord of -parliament appealed, that is, accused of a crime, by a private person, not -for the satisfaction of public justice, but of his own private wrong, shall not -be tried by his peers, but by a jury of commoners. When this law was -introduced, the lords were few in number, immensely rich and powerful, -linked together frequently by alliances, almost always by factions. In this -towering situation, they looked down on the lower ranks with disdain; frequently -injured and oppressed them; and little prospect would the poor -commoner have of redress, were the criminal to be tried by those of his -own rank, several of them his relations, most of them liable to be suspected -of the same offences; especially, as the law will not allow a lord to be -challenged. Neither did the lord run any extraordinary risk of being unjustly -condemned. The lower rank of people in all countries and ages<span class="pagenum"><a id="Page_355"></a>[355]</span> -have been used to look with respect on persons possessed of great wealth -and power, invested with titles of honour, and dignified by blood of an antient -descent. But, in those military ages, such veneration was highly encreased -by that valour and personal bravery, which distinguished every one -of the nobility, and than which no virtue is more apt to captivate, in general, -the hearts of mankind. Besides, that the lord had his advantage of -challenging suspected jurors; whereas, if tried by his peers, he had not such -privilege of exception, though they were ever so notoriously his enemies. -Every commoner almost, how great soever, was, in those days, under the -influence of some one or other of the lords, and there could be little -doubt but that influence would be exerted, and successfully too, unless the -guilt was too clear and evident.</p> - -<p>It may here be asked, When a civil suit is depending between a lord -and a commoner, how the issue is to be tried, whether by the lords alone, -or by commoners only, or by a jury composed of an equal number of each; -in the same manner, as, when an alien is tried, it is by a jury half natives, -half aliens? The answer is, it shall be tried by a jury of commoners; only, -on account of the dignity of the lord, there must be a knight on the jury. -I need not enlarge on the reason, as it is the same with the former, the -lesser danger of partiality.</p> - -<p>I now come to the other part of the disjunctive, <i>aut per legem terræ</i>; -and it will be necessary to point out in general (for to descend into particulars, -would carry me a great deal too far) the principal cases, where this <i>lex -terræ</i> supersedes the trial <i>per pares</i>. First, then, if a man accused of a crime -pleads guilty, so that there is no doubt of the fact, it would be an absurd -and useless delay to summon a jury, to find what is already admitted: accordingly, -by the <i>lex terræ</i> judgment is given on the confession. So in a -civil action, if the defendant confesses the action, or if he appears, and afterwards, -when he should defend himself, makes default, and will not -plead (which case is equivalent to confession) no jury is requisite. So, if -both parties plead all the matters material in the case, and a demurrer is -joined, that is, the facts agreed on both sides, and only the matter of right, -depending on the facts already allowed, in contest, the judges shall try by<span class="pagenum"><a id="Page_356"></a>[356]</span> -demurrer, and give judgment according to <i>law</i> without a jury. The general -rule is, that a jury shall try <i>facts</i>, and the judges the <i>law</i>; for it would -carry a face of absurdity to expect from a common, or indeed, from any -jury, a decision of a point of law that is controverted between the lawyers -of the plaintiff and defendant, who have made that science their particular -study. Besides, as the law inflicts so heavy a punishment on jurors who -give a false verdict, it would be the utmost cruelty to force men unpractised -in law to run such a hazard, where it must be supposed an equal chance, -at least, they may mistake. The same dangers that the jurors would run -by mistaking the law, hath, in points complicated both of law and fact, -introduced <i>special verdicts</i>, that is, the finding of all the facts by the jury, -and the leaving the matter of right to be judged by the court, who best -know the law: but this by way of digression.</p> - -<p>All the proceedings of courts to bring causes to a hearing previous to -the impannelling a jury, and the carrying judgments into execution, are -<i>per legem terræ</i>, or, as my Lord Coke expresses it, the due process of the -law is <i>lex terræ</i>. The inflicting of punishment by the discretion of courts -for all contempts of their authority, without the intervention of a jury, is -also, I think part of the <i>lex terræ</i>, and founded in the necessity of enforcing -due respect and obedience to courts of justice, and supporting their due -dignity. The outlawing a person who absconds, and cannot be found, -so as to oblige him to answer a charge against him, whether civil or criminal, -is one of these proceedings <i>per legem terræ</i> without a jury; of which, as I -have now occasion, it will not be amiss to give a short account, as it is in -daily practice<a id="FNanchor_400" href="#Footnote_400" class="fnanchor">[400]</a>.</p> - -<p>By the very antient law of England, the consequence of outlawry was -very troublesome. Not only a seizure of the person, lands and goods, was -lawful, but he was looked upon, not, merely, as one out of the protection -of the law, but also as a publick enemy; for whoever met him had a right -to slay him. This barbarous law undoubtedly proceeded hence, that no -person was then ever outlawed but for a felony; that is, a crime whose punishment -was death; but it was a most absurd thing to allow every private -person to execute the offender, who by refusing to answer has confessed<span class="pagenum"><a id="Page_357"></a>[357]</span> -himself guilty: and the absurdity became more glaring, when, about Henry -the Third’s time, process of outlawry began to be extended to all trespasses -committed <i>vi et armis</i>, when the consequences were so dreadful. Such -extension seems surprising; yet the turbulent condition of the times will, in -some measure, account for it; when, under pretence of dormant titles, forcible -possessions, not without frequent bloodshed and murders, were daily -taken by the adherents of the king or barons, as their respective parties -prevailed. But when the times grew peaceable, this bloody maxim wore -out, and in the beginning of Edward the Third’s reign, it was resolved by -all the judges, that the putting any man to death, except by the sheriff, -and even by him without due warrant in law, however outlawed and convicted, -was murder; and since the forementioned times, as the number of -people encreased, and the opportunities of concealment and absconding -along with them, it has been found necessary to grant the process of -outlawry in many civil actions.</p> - -<p>I shall briefly point out the proceedings therein, to shew the abundant -care the law of England takes, on the one hand, to do justice to the plaintiff, -if the defendant absconds, and will not appear; and, on the other, -that the defendant may have all possible opportunity of notice before the -outlawry be pronounced against him. First, there issue three writs successively, -to take the body of the defendant, if found in his bailywick or -county, and to bring him to answer. The first is called a <i>capias</i>, from that -mandatory word in the writ. When the sheriff cannot find him in his -bailywick, he returns a <i>non est inventus</i> on the back of the writ, on which -there issues a second <i>capias</i>, called an <i>alias</i>, from its reciting that <i>alias</i>, or -before this, the like writ had issued. On the same return of <i>non est inventus</i> -to this (for if upon any of the processes the defendant is taken, or comes -voluntarily in, so as to answer, the end is obtained, and no further proceedings -to outlawry go on), the third writ issues called a <i>pluries</i>, because it recites -the sheriff had been <i>pluries</i>, that is, twice before, commanded to take -him. The sending these three writs, one after the other, in order to bring -in the party is, I presume (as, undoubtedly many of the antient practices -in our courts of law are) borrowed from the civil law; for by that law -they issued three citations, at the distance of ten days, one after another, to -call in the party to answer.</p> - -<p><span class="pagenum"><a id="Page_358"></a>[358]</span></p> - -<p>But as, upon a return of a <i>non est inventus</i> on the third <i>capias</i>, the personal -apprehending the defendant may well be despaired of, the law proceeds -another way; in order, if possible, to give him notice, that is by issuing -the writ of <i>exigent</i>, so called from the Latin word <i>exigere</i>, to <i>require</i>, -or <i>call upon</i>. This writ commands the sheriff to call the defendant in his -county-court, where all the persons of the county are supposed to have -business, or at least some that can inform him might have. The words -are, <i>We command you that you cause such a one to be required from county-court -to county-court, until, according to the law and custom of our realm, he be outlawed -if he doth not appear. And if he do appear, him to take, and safely keep, -and so forth.</i> Now the law and custom of the realm requires, in this case, -that the party should be called on five different county-court days, one -after another, before he can be outlawed; and these courts being held at -the distance of four weeks from each other, the interval amounts to sixteen -weeks, besides the time of the three previous <i>capias’s</i>; a time so abundantly -sufficient, as it is scarce to be presumed possible a person living in the county -should not have notice; and consequently, on his not appearing in the -fifth court, the coroners of the county, whose duty it is, give judgment of -outlawry against him.</p> - -<p>Such is the care the common law takes to prevent outlawries by surprize. -But the act of the thirty-first of Elizabeth in England, enacted here in the -eleventh of James, had superadded another caution, namely three publick -proclamations. The reason of this superadded caution was, I presume, on -account of the dwindling of the business in the county-courts, and, in consequence, -their being not so well attended. This writ, commanding the -sheriff to make proclamation, issues with the <i>exigent</i>, and recites it, and -the cause for which the proceeding to an outlawry is, and directs him to -proclaim the party three several days; first in the county-court, secondly at -the quarter-sessions, a court of more resort, and lastly on a Sunday immediately -after Divine service, at the most usual door of the church of the parish, -where the person dwelt at the time the <i>exigent</i> issued; or if no church, -in the church-yard of the parish; or if no parish, at the nearest church,<span class="pagenum"><a id="Page_359"></a>[359]</span> -and all outlawries in personal actions, where these solemnities are not observed, -are declared void.</p> - -<p>I have been the more particular on this head, to shew the abundant care -the law has taken in these proceedings, and to vindicate it from the common -complaint, of outlawries being obtained surreptitiously, and without -notice. I am sensible such complaints are generally without foundation; -but if in any case they are just, the fault is not in the law, but in man, -in the laws not being duly executed; and if we are to complain of the -best laws, until they be in all cases perfectly and uprightly executed, we -shall never cease complaining while human nature is what it is, weak and -corrupt<a id="FNanchor_401" href="#Footnote_401" class="fnanchor">[401]</a>.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_360"></a>[360]</span></p> - -<h2 class="nobreak" id="LECTURE_XL">LECTURE XL.</h2> - -<p class="center"><i>Continuation of the commentary on Magna Charta.</i></p> - -</div> - -<p>Having mentioned the several kinds of proceeding to judgment -without the intervention of juries, practised by the courts of common -law, and authorised under the words of this statute, <i>per legem terræ</i>, -it will be proper, before I quit this head, to say something of other kinds -of courts which do not admit this method of trial; which, yet, have been -received, and allowed authority in England; and whose proceedings, however -different from those of the common law, are justified by the same -words, <i>per legem terræ</i>. These are the courts <i>ecclesiastical</i>, <i>maritime</i>, and -<i>military</i>.</p> - -<p>If we trace back the origin of ecclesiastical jurisdictions, we shall find -its source in that advice of St. Paul, who reproves the new christians for scandalising -their profession, by carrying on law-suits against each other before -heathen judges, and recommends their leaving all matters in dispute between -them to the decision of the <i>Ecclesiæ</i>, or the congregation of the -faithful. In the fervour of the zeal of these times, this counsel was soon -followed as a law. The heathen tribunals scarce ever heard of any of their -controversies. They were all carried before the bishop, who, with his -clergy, presided in the congregation; and who, from the deference the laity -paid them, became at length the sole judges, as, in after ages, the bishop -became sole judge, to the exclusion of his clergy. These judges, however, -being, properly speaking, only <i>arbitrators</i>, had no coercive power to enforce -their judgments. They were obliged, therefore, to make use of that -only means they had of bringing the refractory to submission, namely, excluding -them from the rights of the church, and warning other Christians -against their company, and indeed, it was an effectual one; for what could -a Christian, despised and abhorred by the heathen, and shut out from the -commerce of his brethren, do, but submit? Besides, if he was really a<span class="pagenum"><a id="Page_361"></a>[361]</span> -Christian, this proceeding seems founded on the words of the Apostle, “He -that will not hear the <i>ecclesia</i>, the congregation, let him be unto thee as -an heathen<a id="FNanchor_402" href="#Footnote_402" class="fnanchor">[402]</a>.”</p> - -<p>Thus was <i>excommunication</i> the only process in the primitive church to -inforce obedience, as it is in ecclesiastical courts at this day; though, considering -the many petty and trifling occasions on which they are, of necessity, -obliged to have recourse to these arms, having no other, and the many -temporal inconveniencies it may be attended with, it has been the opinion -of many wise and learned, as well as of many pious men, that it would -not be unworthy the attention of the legislature to devise some other -coercive means for the punishment of contempts, and to restrain excommunication -to extraordinary offences only. Though, if we consider that the -jealousy which the temporal courts, and the laity in general, so justly conceived -of these judicatures in the time of popery, hath not even yet entirely -subsided, there is little prospect that this or any other regulation, to amend -their proceedings, and others they do want, will be attempted.</p> - -<p>When the empire became Christian, these courts and their authority were -fully established in the minds of the people. However, that the temporal -courts might not be stripped of their jurisdiction, and churchmen become -the sole judges, a distinction was made between matters of spiritual and -temporal cognizance; not but several matters, originally and naturally temporal, -were allowed, by the grants of the emperors, to the ecclesiastical -jurisdiction; and even, of such as were not allowed them, they might take -cognizance, if both the parties agreed thereto. This was called <i>proroguing</i> -the jurisdiction, that is, extending, by the consent of the litigants, its -power to matters that do not properly belong to it. A practice our law -has most justly rejected; for it would introduce confusion, and a perpetual -clashing of courts, if it was in the power of the private persons to break -down the fences that the constitution has so wisely erected ta keep every -judicature within its strict bounds. And indeed this practice was one of -the great engines the churchmen made use of, in their grand scheme of -swallowing up all temporal jurisdiction and power. The method of trial in -these courts was by the depositions of witnesses; and upon them the judge -determined both the law and the fact.</p> - -<p><span class="pagenum"><a id="Page_362"></a>[362]</span></p> - -<p>Trials by jury were entirely unknown to the Romans, though indeed -their <i>centumviral court</i>, in the early times, bore some resemblance to them; -and even when the northern nations, who were the introducers of the trial -<i>per pares</i>, became Christians, the ecclesiastical courts on the continent proceeded -in their old manner. But in England, during the times of the -Saxons, both spiritual and temporal courts, though their business was distinct, -sat together, and mutually assisted each other, as I observed under -the Conqueror’s reign. But whether the matter of fact in ecclesiastical -causes was then tried by a jury, I will not pretend to affirm, though, from -the peculiar fondness the Saxons had, above the other northern nations, for -that method of trial, it may seem not improbable. However, this is certain, -that from the time William, who, to gratify the court of Rome, and -to shew his own political purposes, separated the courts, the proceedings of -the spiritual ones in England have been conformed to the practice of those -courts abroad, and to the canon law. The alteration, if indeed there was -any, was sufficiently authorised by the king and pope; and indeed as all -the bishoprics were filled by Normans, they knew not how to proceed in -any other manner. By the time of John, the proceedings of these courts, -and their trial of causes without jury, had been universally fixed, and -received as a part of the <i>lex terræ</i>, and, as such, is confirmed by the words -of this statute.</p> - -<p>The next court that the law of the land allows to proceed to sentence -without a jury is the Court of <i>Admiralty</i>, and that for absolute necessity; -for as its jurisdiction is not allowed as to any thing that happens within the -body of a county, except in one particular instance, <i>contracts for sailors -wages</i>, but extends only to things done on the sea, or at most to contracts -made in foreign countries (though this last is denied by the lawyers of our -days to belong to them) there is no place from whence a jury can come. -For the jury of the county, where the cause of suit arose, are the triers, -but here, it arose in none. Besides, the great excellency of this method of -trial consists in this, that the jury, from their vicinity, have opportunities of -knowing something of the nature of the case, and of being acquainted with -the characters and credit of the witnesses, neither of which can be supposed -in this case. In this court the judge determines both matter of law and -fact.</p> - -<p><span class="pagenum"><a id="Page_363"></a>[363]</span></p> - -<p>The same was the case of the Constable’s and Marshal’s Court, formerly -of great power, but now next to antiquated. Its jurisdiction was, first, -<i>martial law</i>, over the soldiers and attendants of the camp. Now the trial -of offenders in this kind, by a jury, whether taken out of the army, or out -of the county, if in the kingdom, would have effectually destroyed that -strict subordination, which is the soul of military enterprises. Secondly, -they had the trials of treasons and felonies done by the king’s subjects in -foreign kingdoms. Here there could be no trial by jury, for the same -reason as given already for the Court of Admiralty. The last part of their -jurisdiction was as to precedence, arms, and marks of dignity, which flowing -immediately from the grace of the crown, the sole disposer and judge -of them, were not supposed to be in the cognizance of jurors, but proper -to be determined by the king’s judges, who had the keeping of the memorials -of his grants in this kind. Besides, these honorary distinctions are -not local, but universal through the realm; so that there is no particular -county from whence a jury should come<a id="FNanchor_403" href="#Footnote_403" class="fnanchor">[403]</a>.</p> - -<p>Such are the reasons assigned why these two courts proceed <i>per legem -terræ</i>, and not by juries; but, to speak my own opinion truly, when I -consider that their methods are formed upon the proceedings of the civil -law, I suspect a farther design. The discovery and revival of this law happened -in the reign of our Stephen. I have already had occasion to observe -how greatly the princes, in every part of Europe, were flattered by the -tempting bait of unlimited power it set before them, and particularly the -kings of England, who were the first that set out in pursuit of this delusive -object; and that their being less successful than others was, very probably, -owing to their beginning the career too early. When I consider then that -these two courts, where trials by juries prevail not, dealt in matters that -were of the resort of the prerogative, and that, in consequence, the modelling -of them was left to the king; when I see all the parts of these models -taken from the imperial law; when I reflect on the notoriously avowed and -unjust preference the weakest of them gave to that against the common -law, and the kind patronage the wisest and most moderate of them shewed -to it, and its possessions, down to the reign of Charles the Second, I cannot<span class="pagenum"><a id="Page_364"></a>[364]</span> -help suspecting a deeper design. And, indeed, the common lawyers -seemed to take the alarm, and decried and despised every part of this law, -though most of it is founded on good reason, merely out of the apprehensions, -that giving it the least countenance, might, in time, open a door for -the absolute authority of the prince, and the rapaciousness of his <i>fisc</i> or treasury, -and thereby overturn the constitution.</p> - -<p>But there are other courts, besides those already named, that proceed -upon the deposition of witnesses, and not by jury, I mean the courts of -Equity; which, in imitation of the civil and canon laws, oblige a party to -answer upon oath to his adversary’s charge. This practice, though not -allowed by common law, is founded in very good reason. For, as the -proper business of a court of equity is to detect fraud and surprize, these -things being done in private, and endeavoured to be as much concealed as -possible, it is but reasonable that the plaintiff should have power to sift the -conscience of his adversary, and to examine not to a single point, as the -<i>issues</i> at common law are, but to many separate facts, from which, taken -together, the fraud, if any, may appear. Such matters, therefore, being -of nice discussion, and of a complicated nature, are not fit for the decision of -a jury, and indeed would take up more time than they could possibly employ -in the examination. The court, therefore, go upon <i>depositions</i>, and judge -both of the law and fact. However, if a matter of fact, necessary for the -decision of the cause, appears on the deposition doubtful; or if any matter -arise which these courts have no power to try, they direct an issue, wherein -the point is tried by jury, in a court of common law; and thus, these -courts have the advantage of both methods of trial, as well that of the civil, -as that used by the common law; namely the oath of the party, and depositions -from one, and the trial by jury from the other.</p> - -<p>This method, however, of trial by deposition, has been objected to, as -productive of enormous expence and delays; and it cannot be denied, that, -as affairs are now conducted, there is too much reason for the objection. Yet -to this it may be answered, that if examiners were more careful, and would -set down nothing but what is evidence, and were the rules of court, to cut off -delays, always strictly inforced, the damage arising from both these heads -would be considerably lessened. To cut off all delays, and to reduce the -proceedings to as summary a method as that of the courts of common law<span class="pagenum"><a id="Page_365"></a>[365]</span> -would, (considering the matters they are conversant about are of different -proof, and require the most acute examination) instead of preventing frauds -in most instances, by a hurried manner of trial, serve to defend and encourage -them. The policy of the common law was to reduce the matter in -question to a single fact, which the jury might, with ease and convenience, -determine within a convenient time. And it must be owned that the lawyers -and judges of latter days, by admitting the trial of titles to lands in personal -actions, have deviated much from the simplicity of the law, and weakened -the excellence of the trial by jury. The present practice, of determining the -title to land by an action of trespass, will serve as an instance; where the -enquiry is, whether a man’s entering upon lands was a trespass or not; if he -had right to enter in, it was no trespass; if he had not, it was otherwise. -Now, as the right may depend upon twenty different matters of fact, beside -matters of law, all which must be settled and weighed, before the bare -question of trespass can be determined, it is easy to see to what lengths trial -by juries may be now spun; to how short a time the examination of the most -material points must be confined; how imperfect, consequently, the examination -must often be; to say nothing of the danger of a jury’s erring -when both body and mind is wearied out with long attendance, and the -attention consequently enfeebled.</p> - -<p>If it be asked, how came this deviation, which has been attended with -so many inconveniencies? The true answer is the best, that it sprung from -the advantage of practitioners, and the litigiousness of suitors. By the -common law, no man could bring two actions of the same nature for the -same thing. If I am entitled to the possession of lands, I may bring my <i>writ -of entry</i>, or an <i>assize</i>, to recover it; but if I am foiled, I cannot bring a -second. So, if I am entitled to the propriety of the land, I may bring my -writ of right, and if I recover not therein, my right is gone for ever. -The litigiousness of suitors, who had a mind to gain a method of trying -the same thing over and over again, where they miscarried, introduced -this method I am speaking of. For every new entry was a new trespass, and -could not be said to have been tried before; though whether it was a trespass -or not, depends on what had been tried before, and the avarice of practitioners, -who desired frequent suits, encouraged it. But when once it was -allowed, notwithstanding all the complaints of Coke and his co-temporary -judges, it became universally followed, and is now so established, and the<span class="pagenum"><a id="Page_366"></a>[366]</span> -higher actions so much out of use, that I question whether there is a lawyer -living who would be able, without a great deal of study, to conduct a cause -in one of those antiquated real actions. The inconveniencies of these frequent -trials introduced, for the obviating them, a new practice, the applying -to the court of chancery, after two or more verdicts consonant to one -another, for an injunction to stop farther proceedings at law; which, -though a new, was become a necessary curb, after the common law-courts -had allowed the former method.</p> - -<p>Besides these courts already mentioned, there are many other judicatories, -which, by particular acts of parliament, have particular matters entrusted -to their determination, without the intervention of juries; as the -several matters determinable summarily by one or more justices of the peace; -the affairs of the revenue by the commissioners; and suits by civil bills for -limited sums by judges of assize; though in these last the presiding judge -may, and ought, in matters of difficulty, to call a jury to his assistance; -and it must be owned in this poor country the alteration of the law in this -last particular, has been attended with very good consequences. The expediency -of the two former changes, indeed, has been much disputed; but -that being a question of <i>politicks</i>, not of law, I shall not enter into it.</p> - -<p>Thus much I have observed, in a summary way, concerning the several -methods of trial, differing from that <i>per pares</i>, which are authorised by -these words of <i>Magna Charta, per legem terræ</i>.</p> - -<p>I shall next proceed to the point of the <i>personal liberty of the subject</i>; but -as it will be proper to take all that together, in one view, I shall here conclude -the present Lecture.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_367"></a>[367]</span></p> - -<h2 class="nobreak" id="LECTURE_XLI">LECTURE XLI.</h2> - -<p class="center"><i>Continuation of the commentary on Magna Charta.</i></p> - -</div> - -<p>Having explained the import of the words <i>per legale judicium parium -suorum, vel per legem terræ</i>, which refer to, and qualify all the preceeding -parts, it will be proper to mention those preceeding articles, and to -make some observations upon them. They then consist of six different -heads. The first relates to the personal liberty of the subject; the second -to the preservation of his landed property; the third is intended to defend -him from unjust outlawry; the fourth to prevent unjust banishment; the -fifth prohibits all manner of destruction; and the design of the sixth is to -regulate criminal prosecutions at the suit of the king. I shall briefly treat of -all these particulars in the order in which they stand.</p> - -<p>The first clause tending to secure personal liberty, runs in these words; -<i>Nullus liber homo capiatur vel imprisonetur</i>. <i>Liber homo</i>, as I before observed, -here extends to all the subjects, and is not to be taken in its more restrained -sense, of a freeholder. We see the words are not barely against wrongful -imprisonment, but extend to arresting, or taking, <i>nullus capiatur</i>. This -act extends not only to prevent private persons, particularly the great men, -from arresting and imprisoning the subjects, but extends also to those from -whom, on account of their extraordinary power, the greatest danger might -be apprehended, I mean the king’s ministerial officers, his council, nay -himself, acting in person. “No man,” (says my Lord Coke, commenting -on this point,) “shall be taken, that is restrained of liberty, by petition or -suggestion to the king, or his council; unless it be by indictment, or presentment -of good and lawful men, where such deeds be done.” For in -that case it is <i>per legale judicium parium</i>; though an indictment found, or -a presentment made by a grand jury, in one sense, cannot properly be called -<i>judicium</i>, as it is not conclusive; but the fact must be after tried by a petty<span class="pagenum"><a id="Page_368"></a>[368]</span> -jury; yet for the purpose of restraining and securing a person accused upon -record, that he may be forthcoming on his trial, it is <i>judicium parium</i>. -Otherwise the most flagrant offenders might escape being tried and convicted<a id="FNanchor_404" href="#Footnote_404" class="fnanchor">[404]</a>.</p> - -<p>In the fifteenth chapter of Westminster the first, enacted in the third -year of Edward the First, and ordained to ascertain for what offences a man -might be detained in prison, and to make effectual provision for the bailing -out persons upon their giving security to abide a trial, those accused of the -slighter offences, persons detained <i>per maundement de roy</i> by the command of -the king, are mentioned as not bailable; and this may seem to contradict -the law I have now laid down. Yet, when rightly understood, it doth -not. For as judge Gascoigne rightly said, the king hath committed all his -power judicial to divers courts, some to one, some to another; and it is a -rule in the construction of statutes, that when any judicial act is referred -to the king, it is to be understood to be done in some court of justice, according -to law. The command of the king, therefore, doth not mean the -king’s private will, but a legal command, issued in his name, by his judges, -to whom his judicial power is intrusted. Accordingly, Sir John Markham, -chief justice, told Edward the Fourth, that the king could not arrest any -man for suspicion of treason, or felony, as any of his subjects might; and -he gave a most excellent reason for it: Because, says he, if the king did -wrong, the party could not have his action. In the sixteenth of Henry the -Sixth, it was resolved by the whole court, That if the king command me to -arrest a man, and I do arrest him, he shall have his action of false imprisonment -against me, although I did it in the king’s presence.</p> - -<p>The maxim, then, is, that no man shall be taken and committed to prison, -but by <i>judicium parium, vel per legem terræ</i>, that is, by due process of -law. Now to understand this, it is necessary to see in what cases a man -may be taken before presentment or indictment by a jury; and in the enquiry -it is to be considered, that process of law, for this purpose, is two-fold, -either by the king’s writ, to bring him into a court of justice, to <i>answer</i>, -or by what is called <i>a warrant in law</i>. And this is, again, two-fold,<span class="pagenum"><a id="Page_369"></a>[369]</span> -<i>indeed</i>, by the authority of a legal magistrate, as a Justice of Peace’s <i>mittimus</i>, -or that which each private person is invested with, and may exercise.</p> - -<p>First then, for making a <i>mittimus</i> a good warrant, it is previously necessary, -that there should be an information on oath, before a magistrate having -lawful authority, that the party hath committed an offence; or at least -of some positive fact, that carries with it a strong and violent presumption -that he hath so done: Next, then, the <i>mittimus</i> must contain the offence in -certain, that it may appear whether the offence charged is such an one as -justifies the taking; whether it is bailable, or such as the law requires the detention -in prison. A warrant without the cause expressed, is a void one, and -imprisonment on it illegal, and so it was adjudged in Charles the First’s -reign, though done by the secretaries of state, by the king’s authority, with -the advice of his council; thirdly, the warrant must not only contain a lawful -cause, but have a legal conclusion, <i>and him safely to keep until delivered by -law</i>; not until the party committing doth farther order, for that would be -to make the magistrate, who is only <i>ministerial</i>, <i>judicial</i>, as to the point of the -liberty of the subject; from whence might redound great mischief to the -party on one hand, or to the king and public on the other, by letting an -offender escape.</p> - -<p>Let us see how far the law warrants a private person to take another, -and commit him to prison. First, then, if a man is present when another -commits treason, felony, or notorious breach of the peace, he hath a right -instantly to arrest and commit him, lest he should escape if any affray be -made, to the breach of the peace, any man present may, during the continuance -of the affray, by a warrant in law, in order to prevent imminent -mischief, restrain any of the offenders; but if the affray is over, so that the -danger is perfectly past, there is a necessity of an information, and an express -warrant; so, if one man wounds another dangerously, any person may -arrest him, that he be safely kept, until it be known whether the party -wounded shall die or not. Suspicion, also, where it is violent and strong, -is, in many cases, a good cause of imprisonment. Suppose a felony done, -and the hue and cry of the country is raised, to pursue and take the offender, -any man may arrest another whom he finds flying; for what greater<span class="pagenum"><a id="Page_370"></a>[370]</span> -presumption of guilt can there be, than for a person, instead of joining the -hue and cry as his duty prompts him, to fly from it? His good character -or his innocence, how clear it may after appear, shall not avail him. His -imprisonment is lawful.</p> - -<p>Another lawful cause of arresting and imprisoning upon suspicion is, if -a treason or felony is certainly done; and though there is no certain evidence -against any person as the perpetrator, yet if the public voice and fame -is, that A is guilty, it is lawful for any man to arrest and detain him. So, -if a treason or felony be done, and though there be no public fame, any -one that suspects another for the author of the fact may arrest him. But -let him that so doth, take care his cause of suspicion will be such as will bear -the test; for otherwise he may be punishable for false imprisonment. The -frequent keeping company with a notorious thief, that is, one that had been -convicted, or outlawed, or proclaimed as such, was a good cause of imprisonment. -Lastly, a watchman may arrest a night-walker at unseasonable -hours by the common law, however peaceably he might demean himself; -for strolling at unusual hours was a just cause of suspicion of an ill intent. -With respect to persons arrested by private authority, I must observe, that -the law of England so abhors imprisonment, without a certain cause shewn, -that if there is not an information on oath sworn before a magistrate, and -his commitment thereon in a competent time, which is esteemed twenty-four -hours, the person is no longer to be detained<a id="FNanchor_405" href="#Footnote_405" class="fnanchor">[405]</a>.</p> - -<p>Such is the law of England with respect to the personal liberty of the -subject. Let us now see the remedies the law provides for those that suffer -by its being infringed: the writ of <i>odio & atia</i> I have already mentioned, -and that it is long since out of use: the most usual way then to remedy this, -and to deliver the party, is the writ of <i>habeas corpus</i>, in obedience to which, -the person imprisoned is brought into court by the sheriff, who is the keeper -of the prison, together with the cause of his caption and detention, that the -court may judge whether the first taking was lawful; and if it was, whether -the continuance of the imprisonment is such; and this is brought in the -name of the party himself imprisoned.</p> - -<p><span class="pagenum"><a id="Page_371"></a>[371]</span></p> - -<p>The next is the writ <i>de homine replegiando</i>, of replevying a man, that is, -delivering him out upon security, to answer what may be objected against -him. This is most commonly used when a person is not in the legal prison, -but perhaps carried off by private violence, and secreted from his friends, -and therefore may be brought by a near friend having interest in the person’s -liberty, as by a father, or mother, for their child, or a husband for his -wife. These are the remedies for restoring a person unjustly deprived of -liberty, to the enjoyment of that invaluable blessing. But very deficient -would these remedies be, if there were no provisions made for the punishment -of a person offending against his natural right, nor any relief for the -person unjustly aggrieved.</p> - -<p>For the point of punishment, an indictment will lie at the king’s suit, -against the false imprisoner, grounded on this statute, for the vindication of -the public justice of the nation; and the party, if found guilty, shall be -punished by fine and imprisonment. For the relief of the person injured, -he may have an action of false imprisonment, wherein he shall recover damages; -or an action on the case grounded on this statute, wherein he shall -have the same remedy. For Coke observes on this statute, that it is a general -rule, where an act of parliament is made against any public mischief or -grievance, there is either given expressly, or else implied by the law, an -action to the party injured.</p> - -<p>Such is the antient original law of England with respect to liberty; and -so different from that of other nations of Europe, at least, as their laws are -understood and practised at present, where a man may be imprisoned without -knowing his crime or accuser, or having any means, except of humble -petition, to be brought to his trial. It is therefore no wonder that the people -on the continent envy much the situation of the subjects of these islands, -when they contemplate their own.</p> - -<p>The next branch of the statute is, <i>Nullus liber homo disseizetur de libero -tenemento suo, vel libertatibus, vel liberis consuetudinibus suis</i>. Here it may be -thought the word <i>liber homo</i> should be restrained to freeholders, because -none others can be disseized; but the following words, <i>libertatibus</i> and <i>consuetudinibus</i>, -lead, by their import, to a more enlarged construction, and<span class="pagenum"><a id="Page_372"></a>[372]</span> -take in all the subjects; so that <i>disseizetur</i> must not be taken in its limited -peculiar sense, but rather in general for <i>deprivetur</i>. First, then, no freeholder -shall be disseized of his freehold, but by verdict of a jury, or by the -law of the land, as upon default, not pleading, or being outlawed. It was -made to prevent wrongful entries, by such as had right or pretended right -to the land, in order to avoid breaches of the peace and bloodshed, which -often ensued thereon; but it was not intended to take away the entry of a -person who had a right to enter given him by law, for that the law could -never construe a <i>disseizen</i>, which is a wrongful diverting of the freehold.</p> - -<p>To understand this, it is necessary to observe, that a man may have right -to the lands, and yet no right to enter upon them; or he may have both; -and in the last case it is no disseizen. If A disseizes B, he shall never, by -his own wrongful act, deprive B of the right of possession; but he may of -his own authority enter at any time, during A’s life, provided he doth it -without breach of the peace. But if A is dead, now the lands being thrown -by the law upon A’s heir, who had no hand in the wrong, and who is answerable -to the Lord Paramount for the services due from the land, B has, -by his own negligence, in not entring, or if he could not enter, claiming, -during A’s life, lost the right of possession; it is transferred to A’s heir, -and B must recover his right by a suit at law.</p> - -<p>To see what is meant by <i>libertatibus</i>. It comprehendeth, in the first place, -the laws of the realm, that every man should freely enjoy such advantages -and privileges as these laws give him. Secondly, it signifies the privileges -that some of the subjects, whether single persons, or bodies corporate, have -above others, by the lawful grant of the king; as the chattels of felons or -outlaws, and the lands and privileges of corporations. Hence any grant -of the king, by letters patent to any person, which deprives another subject -of his natural right and free liberties, is against this branch of <i>Magna -Charta</i>, as are all monopolies, which were so plentifully and so oppressively -granted in the reigns of Elizabeth and James the First, and here in Ireland, -in that of Charles the First. We must, however, except such monopolies -as are erected by act of parliament, or by the king’s patents, pursuing the -directions of an act made for that purpose<a id="FNanchor_406" href="#Footnote_406" class="fnanchor">[406]</a>.</p> - -<p><span class="pagenum"><a id="Page_373"></a>[373]</span></p> - -<p>Lastly, <i>Consuetudinibus</i> takes in and preserves those local customs in -many parts of England, which, though they derogate from the common law, -are yet countenanced and acknowledged as part of the general system of -law. It also extends to any privileges which a subject claims by prescription, -as wreck, waif, stray, and the like<a id="FNanchor_407" href="#Footnote_407" class="fnanchor">[407]</a>.</p> - -<p>The next clause is, <i>aut utlagetur</i>; of which having spoken already, I -shall pass on to the fourth, <i>aut exuletur</i>. No man shall be banished out of -the realm, <i>nisi per legem terræ</i>; for the <i>judicium parium</i> is out of this clause, -there being no crime of which a man is convicted, whose sentence is banishment. -The <i>transportation</i> now commonly used for slighter felonies is not -like it; for that is by the free consent of the criminal, who desires to commute -a heavier punishment for a slighter. Now <i>per legem terræ</i> a man may -be exiled two ways, either by act of parliament, as some wicked minions of -our former kings were, and particularly Richard the Second’s corrupt judges -into Ireland; or by a man’s abjuring the realm when accused of felony, -that is, swearing to depart out of the kingdom, never to return; which -latter is long since fallen into disuse. Coke says, that the king cannot send -any subject against his will to serve him out of the realm, and the reason is -strong; for if he could under pretence of service, he might tear him from -his family and country, and transport him to the remotest corner of the -earth, there to remain during the whole of his life<a id="FNanchor_408" href="#Footnote_408" class="fnanchor">[408]</a>. But what shall we -say as to the military tenants, who by the very tenure of their grants were -obliged to serve the king in his wars out of the realm? Certainly, whilst -the feudal system retained its pristine vigour, and personal service was required, -they were an exception to this rule; but when the commutation of -<i>escuage</i> was established, they were considered as under it. Indeed their general -readiness to attend their king’s service in person, gave no occasion for -this question’s ever being decided. The famous case on this point was in -Edward the Third’s reign; that prince had made many grants to Sir Richard -Pembrige, some for <i>servitio impenso</i>, others for <i>servitio impendendo</i>. The -king commanded him to serve in Ireland, as his Lord-deputy, which he positively -refused to do, looking upon the appointment as no better than an<span class="pagenum"><a id="Page_374"></a>[374]</span> -exile; and for this refusal the king seized all that had been granted to him -<i>pro servitio impendendo</i>; and the question came on in court, whether the -seizure was lawful. The judges clearly held the refusal lawful, and therefore -would not commit him to prison; but as to the seizure, in consequence -of the words <i>pro servitio impendendo</i>, without specifying where, they thought -it justified. But Coke says, “it seemeth to me that the seizure was unlawful.” -For <i>pro servitio impenso</i>, and <i>impendendo</i>, must be intended of lawful -service within the realm. The last time this act was violated was in the -reign of the misguided James the First, in the case of the unfortunate Sir -Thomas Overbury; who for refusing to go ambassador to Muscovy, was -by that prince sent to the Tower, in which place he was afterwards barbarously -poisoned; and for his murder the favourite Somerset and his countess -were both condemned to die<a id="FNanchor_409" href="#Footnote_409" class="fnanchor">[409]</a>.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_375"></a>[375]</span></p> - -<h2 class="nobreak" id="LECTURE_XLII">LECTURE XLII</h2> - -<p class="center"><i>Continuation of the commentary on Magna Charta.</i></p> - -</div> - -<p>The fifth branch of this statute is in very general terms; it is, <i>aut -aliquo modo destruatur</i>. “<i>Destruction</i>” is a word of very general import. -Coke, in the first place, explains it by saying, “no man shall be fore-judged -of life or limb, or put to the torture or death, without legal -trial.” But he shews, afterwards, by his instances, that it is much more -extensive: For he observes, that “when <i>any thing</i> is prohibited, <i>every thing</i> -is prohibited which necessarily leads to it.” Every thing, therefore, -openly and visibly tending to a man’s destruction, either as to life, limb, or -the capacity of sustaining life, is hereby directly forbid: So that, <i>torture</i>, -as it endangers life and limbs, and may prevent a man from earning his -livelihood, is, on all these three accounts, unlawful, though common among -all other nations of Europe, who have borrowed it from the old Roman law -with respect to slaves; a plain indication in what light the introducers of it -looked on their subjects. It cannot be said that this hath never been violated -in England in arbitrary times; (as what nation is there, whose fundamental -laws have not been, on occasion, violated?) yet, in five hundred -years, I do not believe the English history can afford ten instances<a id="FNanchor_410" href="#Footnote_410" class="fnanchor">[410]</a>.</p> - -<p>For the same reason, “judging a man, either in a civil or criminal cause, -without calling him to answer and make his defence,” is against this provision. -So likewise is “the not producing the witnesses, that the party -may have an opportunity to cross-examine them,” I believe, if they may -be had. For in the case of death, or absence in a foreign country, that -they cannot be produced, there is an exception, for very necessity’s sake; -and in that case, the examination of such person, taken before a proper magistrate, -is good evidence, tho’ thereby the party loses the cross-examination -or information against the murderer. But whenever this happens, the<span class="pagenum"><a id="Page_376"></a>[376]</span> -jury should consider that the party has lost the benefit of the cross-examination, -and have that in their contemplation, when they are preparing to -give their verdict. Directly contrary to this fundamental law, and to common -justice, was the trial of Sir Walter Raleigh, conduced by Coke, attorney-general, -upon the depositions of people who might be brought face -to face. For, notwithstanding the perfect knowledge of that great lawyer -in the laws of England, he was a most time-serving minister of the crown. -The people of these nations are much indebted to him for his excellent -writings on the law, and more for demonstrating the antient right of the -people of England to the liberties they claimed: But, if we consider that -he was then in disgrace at court, I fear this panegyric must be confined to -his behaviour while a judge, which was without reproach; nor did he hesitate -to forfeit the favour of the crown, by opposing incroachments on the -law of England.</p> - -<p>As <i>tending to destruction</i>; it is likewise unlawful to amerce or fine a man -convicted of a crime, beyond what he has a possibility of paying; for that -would tend to perpetual imprisonment, and disabling him from maintaining -himself and family. Neither is it lawful, tho’ a man be indicted of treason -or felony, for the king to grant, or even to promise, the forfeiture of his -lands or goods; for this would be throwing a temptation in the way of -others to suborn witnesses to his destruction. These I mention, only as particular -instances, to open the import of this law; but the words are, <i>aliquo -modo destruatur</i>, taking in “every thing that directly tends to destruction.” -And it must be observed that these words, <i>aliquo modo</i>, are not in any other -branch of this act.</p> - -<p>I come now to the last clause of this first part, <i>nec super eum ibimus, nec -super eum mittemus, nisi per legale judicium parium suorum, aut per legem terræ</i>. -I observed before, from the words here being in the first person, that they -refer to the suit of the king; and they relate not only, by the latter words, -to a legal trial, as to matter and form, but also to a trial in a proper and legal -court. The words <i>nec super eum ibimus</i> belong to the King’s Bench, where -the suits of the king, the <i>placita coronæ</i>, are properly handled, and where -the king is always supposed to be present. The words <i>super cum mittemus</i><span class="pagenum"><a id="Page_377"></a>[377]</span> -refer to other courts sitting for the same purposes, as Justice of gaol-delivery, -for instance, under the king’s commission. But when those words -are coupled with the following ones, <i>per legem terræ</i>, they carry a farther -import; not only that the courts, trying the king’s causes should proceed -according to the law of the land, but that the courts themselves should be -such as the <i>lex terræ</i> authorizes; that is, either the common law, from time -immemorial, or acts of parliament. So that the king hath no power, of his -own authority, to form new criminal courts, as he may civil ones. In some -cases, he appoints, indeed, the judges of the courts of common law, and -issues commissions, and appoints the commissioners in criminal courts authorized -by parliament; but no farther doth his power extend.</p> - -<p>To this it may be objected, that the king may create a county palatine, -and consequently new criminal courts; but let this be considered: Counties, -and duchies, such as we call <i>palatine</i>, were, I may say, indeed of the essence -of a feudal kingdom, as ours originally was; that is, the king might dismember -a part of his kingdom from the immediate subjection to the crown, -transfer a subordinate degree of the legal rights to a subject; and when a -county of that kind was created, without saying any more, all the courts, -not new ones, but the same that were at common law through the whole -kingdom, followed as incidents; in the same manner as by erecting a new -county, not palatine, it had its county-court, and the sheriff’s tourne. -These are not erecting, properly speaking, new courts, so much as bringing -the old ones home to the doors of the people of that district.</p> - -<p>As I observed at the beginning, this law naturally divides itself into two -parts, the first ending at the words <i>per legem terræ</i>. Having made such observations -as have occurred to me as necessary or material for the understanding -thereof, I now proceed to the latter part of this statute, which -runs in these words: <i>Nulli vendemus, nulli negabimus, aut deferemus justitiam, -vel rectum</i>. Some have imagined that, by these words, in the disjunctive, -are meant common law and equity; but courts of equity, and proceedings -in cases of equity in those courts, were not known in times so early; and -the legal signification of <i>rectum</i> in old statutes, and law-books, is either the -right that a man hath to a thing, or the law of the land, the means of attaining -the possession and enjoyment of that right; and in that sense it is<span class="pagenum"><a id="Page_378"></a>[378]</span> -here to be taken; as Coke says, <i>justice</i> is the end, <i>rectum</i> the means, namely, -due process of law; neither of which is to be sold, denied, or delayed -to the subject. In order to understand this, it will be necessary to point -out some of the mischiefs that were before this act, which is the surest way -to expound the meaning of any law<a id="FNanchor_411" href="#Footnote_411" class="fnanchor">[411]</a>.</p> - -<p>For this purpose it is to be remembered, that, in the Saxon times, almost -all suits, except between grandees, were expedited in the county-courts. -I have observed before, that the Conqueror and his successors discouraged -these, and encouraged suits in the <i>Aula Regis</i>, or king’s courts; and that the -subjects were fond of suing there; but still it was a matter of favour, where -the cause properly belonged to the country jurisdictions, and could not be -demanded as a right. As a matter of favour, it might be denied by the -king, or his chancellor, who was the issuer of the original writs, unless a -sum of money was paid, such as they demanded. This was <i>selling</i> justice. -Or, if the person to be sued was a favourite of the king, or chancellor, the -writ might be denied; this was <i>denying</i> justice. Or, if it was granted, as -the proceedings were <i>ex gratia</i>, the party might, <i>ad libitum</i>, be delayed by -the judges, or the cause might be stopped by order of the king, and this -was the <i>deferring</i> of justice, meant by this act, which was intended for the -giving every subject a right, in all cases, and against all persons, to have -justice administered to him in the king’s courts. The chancellor now is -hereby obliged instantly to issue all original writs, and the judges of the several -courts, where causes depend, to issue the proper judicial ones without -fee or reward. This, however, is not so to be understood, as to prohibit -the moderate and accustomed fees, which, from time immemorial, have -been paid to the officer, for his trouble in making them out, or to the -judge, for putting the seal; for these are a part of their livelihood, but only -those arbitrary sums which were before taken, and which the state properly -calls the <i>selling</i> of justice. So likewise the judges are obliged, in -every cause before them, to proceed with expedition, and to suffer no delays, -but such as the law allows, and requires, for giving each party an opportunity -of defence, and of laying his cause fully before the court.</p> - -<p><span class="pagenum"><a id="Page_379"></a>[379]</span></p> - -<p>However, notwithstanding this act, the evil was often repeated, and -many suits stopped by the command of the king, and others, as appears by -four several acts of parliament, made to enforce and explain this one, the -substance of which acts, is summoned by Coke in these words: That “by -no means common right, or common law, should be disturbed or delayed; -no, though it be by command, and under the great seal, or privy -seal, order, writ, letters, message, or commandment whatsoever, either from -the king, or any other; and that the justices shall proceed, as if no -such writs, letters, order, message, or other commandment, were come -to them.” However, this is not to be understood so strictly, but that -the king may stop his own civil suit that he hath instituted for his own benefit, -as a <i>capias</i> for a fine, because <i>quisque juri suo renunciare potest</i>; and -this stoppage, in truth, is for the benefit of the subject. It is otherwise in -criminal accusations, unless he can shew good cause to the court to put it -off. For every man accused has a right to be brought to his trial<a id="FNanchor_412" href="#Footnote_412" class="fnanchor">[412]</a>.</p> - -<p>Neither are legal protections within the prohibition of this law; these -were granted to stop suits against any man that was personally employed in -the service of the king, and were founded on this presumption, that such -service was for the public benefit, to which all private regards must give -way. But then these protections, must be legal ones, such, and none other, -as are found in the Register, the antientest book of the law, and not ones -newly devised, and for new-fangled causes. These protections, however, -were greatly abused in the sequel; favourites, and their dependants, frequently -obtaining them, to hinder others of their just rights, under pretence -of serving the king; where in truth, there was no such thing. It is therefore -recorded, highly to the honour of Elizabeth, that she first discontinued -the granting them; and her laudable example has been followed by all her -successors. I shall, therefore, not dwell upon them, it being sufficient to -have mentioned that such things there are, or at least <i>were</i> in our law.</p> - -<p>I hope the prolixity with which I have treated of <i>this</i> chapter of <i>Magna -Charta</i>, the care I have taken to open the true meaning and force of every -word in it, and the many tacit exceptions each part of it is subject to, will -be excused, when it is considered, that it not only contains great variety of<span class="pagenum"><a id="Page_380"></a>[380]</span> -matter, but is the most important, and of more general consequence and -concern, than any other law of the land. It is the guardian of the life, the -liberty, the limbs, the livelihood, the possessions, and to the right to justice -of every individual, and therefore it concerns every man to know it, and -fully to understand it.</p> - -<p>The thirtieth chapter is in favour of commerce and merchant strangers. -Certain it is, that, in antient times, the kings of Europe, and their military -subjects, looked on merchandize as a dishonourable profession; as did the -Romans also, in the military ages of that republic. By the old laws of -England, no merchants alien were to frequent England, except at the four -great fairs; and then were permitted to stay but forty days at a time, that -is, an hundred and sixty days in the whole year. But now this act has -altered the former law, and is very favourable to persons engaged in commerce, -who before were little better than at sufferance. It commands, that -all merchants, namely, merchant strangers, whose sovereign is in amity -with the king, unless publicly prohibited, that is, says Coke, by Parliament, -which is true, as the law hath since stood, (but before, I conceive the -king himself had the power to prohibit) shall have safe and sure conduct in -seven things. First, to depart out of England without licence, at their -will and pleasure. Secondly, to come into England in the same manner. -Thirdly, to continue in England without limit of time. Fourthly, to go -and travel through any part of England at their pleasure, by land or water. -Fifthly, free liberty to buy and sell. Sixthly, without any manner of evil, -tolls or taxes; but only, Seventhly, by the old and rightful customs, that -is, by such duties as were of old time accustomed to be paid, and are therefore -called <i>Customs</i>. By this law the king is prohibited from laying any new -taxes on the imports or exports of merchant strangers. And as now they -gained a general licence to continue in the realm, from hence arose that -privilege of merchant strangers to take leases for years, of houses for their -dwelling, and warehouses for their goods, which they continued in England; -for, regularly, all acquisitions of aliens, in lands or tenements, belong -to the king<a id="FNanchor_413" href="#Footnote_413" class="fnanchor">[413]</a>.</p> - -<p><span class="pagenum"><a id="Page_381"></a>[381]</span></p> - -<p>The second branch of this act is a very equitable one. It concerns -merchant enemies, or rather such merchant strangers as came in friends, -and afterwards became enemies, by a war’s breaking out between the sovereigns -while they are in England. It provides that, on a war’s so breaking -out, the persons and effects of such merchants should be seized, and -safely kept till it should be known how the English merchants had been -treated in the enemy’s country; and that, if they were well treated, these -should be so too. This regulation, however, is not put in use; because, by -the treaties made between the sovereigns of Europe, it is stipulated, that, -on the breaking out of war, the merchants in each others country should -have a certain number of days to withdraw themselves and their effects. -But if a merchant enemy comes into the country, after war declared, he is -to be treated as an enemy; to which, by the old law, now antiquated, there -was a very humane exception, that of persons driven into England by stress -of weather.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_382"></a>[382]</span></p> - -<h2 class="nobreak" id="LECTURE_XLIII">LECTURE XLIII.</h2> - -<p class="center"><i>Continuation of the commentary on Magna Charta.</i></p> - -</div> - -<p>As I have dwelt on the twenty-ninth chapter of <i>Magna Charta</i> so long, -and treated of it and every part of it so minutely, I shall, in this lecture, -dispatch the remaining part thereof with more expedition. Indeed, -of the thirty-first I would have said no more, than merely to observe, that it -related to the military tenures now abolished, were it not proper to remark, -that it was made to enforce the old feudal law, then the law of England, -with respect to landed estates, and to restrain John’s successors from the -violences he had introduced in favour of the royal prerogative, to the detriment -of the immunities and privileges of the subjects. It has been already -observed in these lectures, that by the feudal law, especially as established -by the Conqueror in England, the king was very amply provided for with -a landed estate, to support his dignity and expences, which was at that time -looked on all over Europe as unalienable, except during the life of the -king in being; and that the rest of the land was to be the property of the -free subjects of the realm, subject to the services imposed, and the other -consequences of his seignory as feudal lord.</p> - -<p>One of these consequences was the escheat on the failure of heirs, either -by there being none, or by the blood being corrupted by the commission -of felony, which in law amounted to the same thing; as no son, uncle, -nephew, or cousin, could by law claim as heir by descent to a person -attainted. For the legal blood, the title to the inheritance, failed in him -the last possessor, by his breach of fealty; and every heir lineal or collateral -by the law of England being obliged to claim as heir to the person last -seized, must be excluded, when the legal blood inheritable failed in the -last possessor.</p> - -<p>In consequence of these escheats, which often happened in those times, -both by corruption of blood, and failure of heirs inheritable, (for, as I<span class="pagenum"><a id="Page_383"></a>[383]</span> -have observed before, the granting <i>feuda antiqua ut nova</i> was introduced -only by Henry the Second, the father of John, and were not at this time -become universal, as they since have been) John introduced this new maxim, -that when an earldom or barony fell to the crown by escheat, he held it in -the right of his crown, as it was originally derived from thence; and consequently, -that the tenants of the former lord, being now, instead of <i>intermediate</i>, -become <i>immediate</i> tenants of the crown, held of him <i>in capite</i>, as it -was called; that is, that he, by this escheat, obtained privileges over the -tenants of the former lord, which he, the former lord, never had, or could -have, but which he claimed as king, <i>in jure coronæ</i>. These privileges were -many in number; but it will be sufficient to mention only two of them, to -shew into how much worse a state the tenants of these escheated lordships -were thrown, by being considered as tenants <i>in capite</i>.</p> - -<p>First, then, the king had from his tenants <i>in capite</i>, who came into possession -of their lands at full age, instead of <i>relief</i>, to which subject lords -were intitled, and which was only one fourth of the value of the lands, his -<i>primeir seizin</i>, which was the whole year’s value. Another grievance was -with respect to the wardship of military tenants under age. As to the tenants -<i>in capite</i>, the king had, by his prerogative, a right not only to the -wardship of the person of his minor tenant, and of the lands he held of him -<i>in capite</i>, but also of all other lands held by knight-service of any other person. -For as to socage lands, they were to be in the hands of the next of -kin, to whom the inheritance could not descend, who, at the infant’s full -age, was to be accountable for the profits: and under the pretence of such -tenants, upon the superior lord’s escheat, becoming tenants <i>in capite</i>, John -claimed and exacted the privilege, to the detriment of the other lords. -These and other mischiefs, for others there were, as I observed before, and -some of them are mentioned in this statute, are remedied by the general -provision which restored the feudal law, that the king should hold all such -escheated lordships in the same right they were before held, and have no -other privilege, but what the lord by whose escheat they fell to him had: -in a word, that he should hold them as lord of that lordship, not as king<a id="FNanchor_414" href="#Footnote_414" class="fnanchor">[414]</a>.</p> - -<p><span class="pagenum"><a id="Page_384"></a>[384]</span></p> - -<p>The thirty-second chapter relates to the alienation of lands, and gives a -qualified power of that kind. By the feudal law, as it was introduced at -the Conquest, no lord could alien his seignory without the tenants consent, -so neither could the tenant his tenancy, without approbation of the lord. -These strict rules were first broken into, in those superstitious times, in favour -of churchmen; afterwards, in Richard the First’s time, to raise money -for the holy war. Not but the subjects, by their insisting on Edward -the Confessor’s laws, of which free alienation was a part, seemed to be -fond of it. However, the kings, in all their grants of the old English laws, -were careful to preserve the feudal system, in guarding against the alienation -of the military tenures. Coke, on commenting in this statute, in order to -the better understanding thereof, makes three observations relative to -what was the common law before this statute; in the last of which I apprehend -he is mistaken, as the law then stood; and that what he asserts therein -to have been law did not become (so though often in practice) till after -the statute <i>quia emptores terrarum</i>, in Edward the First’s reign.</p> - -<p>His first observation is, that the tenant might have made a feoffment of -the whole, or a part of his tenancy, to hold <i>of himself</i>; and no doubt but -he might. This was the usual case of subinfudation, by which the lord -was in no sort prejudiced; for his seignory remained entire, and he might -distrain in any part for his whole service; and in such case, if the under -tenant was aggrieved, he was to have his remedy against his immediate -landlord the <i>mesne</i>, (or middle person), as he is called in our law.</p> - -<p>The second observation is, that the tenant could not alien in fee <i>apart</i> of -the tenancy, to hold, not of himself, but of the lord, than which nothing -could be more reasonable; for it would have been against these old rules -also, for a tenant to bring in another, as immediate vassal to the lord, without -his the lord’s consent. The tenant would by that means dismember -the seignory, which he received, entire, and so deprive the lord of his -right of distraining in the whole, and confine him merely to that part remaining -in his own hands, as original tenant. For as to the part of the -<i>allienee</i>, he could not distrain that for his service, there having been no feudal -contract between them. Such alienation, therefore, unless when the -lord accepted the <i>allienee</i> as a tenant, was a breach of fealty, and against -the old feudal principles, and consequently unlawful in England.</p> - -<p><span class="pagenum"><a id="Page_385"></a>[385]</span></p> - -<p>The third observation Coke makes on this statute, is, that by the common -law the tenant might have made a feoffment of the whole tenancy, -to be holden of the lord. For, says he, that was no prejudice at all to the -lord<a id="FNanchor_415" href="#Footnote_415" class="fnanchor">[415]</a>. But though this certainly prevailed as common law, long before either -Coke or Littleton wrote, I cannot help thinking, both because it was -contrary to the old feudal law, and also from the words of the statute <i>quia -emptores terrarum</i>, that it was first introduced by that act of parliament, the -words of which are, <i>de cætero liceat unicuique libero homini terras suas, seu tenementa -sua vel partem, inde vendere</i>. Here the alienating the whole is declared -from henceforth lawful; which words had been nugatory, if this -had been common law before.</p> - -<p>The chapter of <i>Magna Charta</i> of which we are speaking, was, then, the -first positive law that allowed the free alienation of lands. It, in one sense, -enlarged, whilst in another it expressly restrained, the power of the tenant; -whereas, before, he might alien the whole, or part of his tenancy in fee, -but subject to the distress of the lord. Now, by this statute, he was confined -to an alienation only for so much, that, out of what remained, the lord -might have sufficient distress for his entire service, and the part conveyed -was in the <i>alienee</i>’s hands, free from any future distress by the lord, or service -due to him, fealty only excepted. But it not being specified, how much -of the land was a sufficiency, though the half, or what was the half in value, -was, in common estimation, reputed such, the tenants, under this pretence, -would alien more; which gave occasion to many disputes and suits, -and the propensity to general alienations continuing, the law called <i>quia emptores -terrarum</i>, already mentioned, was at length made, which gave a general -licence to alien the whole, or a part at pleasure, to hold of the superior -lord; and this put an end, in the law of England, to subinfudation of fee -simples. For, since the passing that law, if a man infeoffs another of the -whole or part of his land, there is no tenure between the feoffer and feoffee, -but the feoffee holds of the feoffer’s lord. But as to lower estates, as fee -tail estates for life, years, or at will, subinfudation remains; because the -whole estate is not out of the donor, or lessor, but a reversion remains in -him; wherefore the tenure, in such case, is of the donor or lessor.</p> - -<p><span class="pagenum"><a id="Page_386"></a>[386]</span></p> - -<p>By the statute of <i>Magna Charta</i>, in case of alienation of part, to hold of -the lord, the residue remaining in the original tenant’s hands, was to answer -the services, and the <i>alienee</i> held of the lord, by fealty only. But now by -the second chapter of the forementioned statute, the services were to be apportioned, -that is, divided in proportion to the value of the lands. If half -of the lands, not in <i>extent</i>, but <i>value</i>, was aliened, the <i>alienee</i> paid half: if -one third, the like quantity. I have observed before, on this statute of -<i>quia emptores</i>, that the king, not being named, was not bound by it. For -his tenant <i>in capite</i> to alien without licence was a forfeiture, until, in the -reign of Edward the Third, a fine for alienating was substituted in the place -of the forfeiture, which fine continued until the restoration, when it was -abolished.</p> - -<p>The thirty-third chapter provides, that the patrons, that is, the heirs -of the founders of abbeys, who, by title under the king’s letters patent, or -by tenure, or antient possession, were intitled to the custody of temporalities, -during the vacancy of the abbey, should enjoy them free from molestation -of any person, or of the king, under the pretence of the prerogative<a id="FNanchor_416" href="#Footnote_416" class="fnanchor">[416]</a>.</p> - -<p>The thirty-fourth chapter is relative to appeals of murder, brought by -private persons. When a man is murdered, not only the king, who is -injured by the loss of a subject, may prosecute the offender, but also the -party principally injured, that is, the widow of the deceased, if he had one; -for she, as having one person with him, stands intitled to this remedy in -the first place; but if he left no widow, his heir at law might pursue it. It -follows, therefore, that a female heir might, by the common law, have -brought an appeal of murder, as the daughter, or the sister, if there had -been neither children or brother. But this statute alters the common law, -and takes away the appeal, in such case, from every woman, except the -widow; so that, at this day, if a man be murdered, leaving no widow, -and his next heir be a female, no appeal of murder can be brought. But -this disability is personal to women; for though a daughter or sister, -living, can bring no appeal, though heir, yet, if they be dead before the -murder, leaving a son who is heir, he may bring it<a id="FNanchor_417" href="#Footnote_417" class="fnanchor">[417]</a>.</p> - -<p><span class="pagenum"><a id="Page_387"></a>[387]</span></p> - -<p>I shall now make a few observations on the right of the widow’s bringing -such appeal. First, then, the man slain must be <i>vir suus</i>, as the statute -expresses it. If, therefore, they had been divorced, the marriage being -dissolved, she could not have an appeal. It was otherwise, if they had -been only separated <i>a mensâ & thoro</i>; for then he still continued her husband. -He ceases likewise to be <i>vir suus</i>, if she ceases to be his wife, or -widow. Therefore, by her marrying again, her appeal is gone, even -though the second husband should die within the year, the time limited for -bringing it. This is carried so far, that though she brings an appeal while -a widow, yet if she marries while it is depending, it shall abate for ever. -So if she has obtained judgment of death against the <i>appellee</i>, if she marries -before execution, she can never have execution against him. In one -point the heir is less favoured in appeals than the widow; for if the person -murdered had been attainted of high treason, or felony, so that his blood -was corrupted, the heir could not have it; for the civil relation between -them was extinguished, by the ancestor’s civil death: but the relation of -husband and wife depends on the law of God, who has declared the bond -indissoluble; therefore no law of man can make him cease to be <i>vir suus</i>, -and, in such case, she shall have an appeal.</p> - -<p>The thirty-fifth chapter treats of the county-courts<a id="FNanchor_418" href="#Footnote_418" class="fnanchor">[418]</a>; but having already, -in a former lecture, mentioned what appeared to me sufficient on that subject, -I shall proceed to the next, viz. the first law made to prevent alienations -in mortmain. Lands given to a corporation, whether spiritual or lay, -are said to fall into <i>mortmain</i>, that is, into a dead hand, an hand useless and -unprofitable to the lord of the fee, from whom he could never receive the -fruits. There could be no escheat, either for want of heirs, or felony, because -the body never died, nor was capable of committing felony. For the -same reason of its never dying, there could be no wardship, or relief; neither -could there be marriage. But besides the loss to the lords, the public -also suffered; for the military service the lands were subject to, were often -withdrawn, or, at least, very insufficiently performed.</p> - -<p>These alienations, without the consent of the superior lord, were directly -against the feudal polity; yet such was the power of the clergy, who were<span class="pagenum"><a id="Page_388"></a>[388]</span> -the principal gainers thereby, in those ages, and so great their influence, -that they were not only tolerated, but universally practised, through all -Europe; for the founding of a monastery was the usual atonement for the -most atrocious crimes. In England, particularly, from the accession of the -Conqueror to that of John, containing one hundred and thirty-four years, -there were no less than an hundred and four monasteries founded, many of -them very richly endowed, besides particular benefactions made to them -and the old ones. No wonder, then, it was found necessary, by laws, to -put a stop to the growing wealth of the church; but the reign of John, a -vassal to the Pope, was not a time to expect a remedy. Accordingly, this -act goes no farther than to remedy a collusive practice, by which a vassal, -to defraud his lord of the fruits of his seignory, made over his lands to a -convent, and took it back to hold from them; and to that end, the statute -declares the land, in such case, forfeited to the lord.</p> - -<p>I shall say no more on this point, nor of the many cunning practices -churchmen, in after times, put in use by the advice of the most learned -lawyers they could procure, in order to creep out of this, and every other -statute made to restrain them, and for employing which, Coke says, they -were much to be commended. But he has forgot to tell us whether he -thought those great lawyers deserved commendation, for finding means to -elude the most beneficial laws of the land. It will be enough here to say, -that, from these devices, arose, in time, the wide-spreading doctrine of <i>uses -and trusts</i>, which have over-run our whole law, and that the judicial powers -of courts of equity have grown with them<a id="FNanchor_419" href="#Footnote_419" class="fnanchor">[419]</a>.</p> - -<p>The next chapter was made to restrain the intolerable exactions of <i>escuage</i> -which John had introduced, and forbids the assessing it, in any other manner -than was used in the time of Henry the Second, his father, that is, as -I observed under that reign, very moderately; so that every man had his -option, whether he would serve in person, or pay it<a id="FNanchor_420" href="#Footnote_420" class="fnanchor">[420]</a>.</p> - -<p>Next comes the thirty-eighth, which is the conclusion. First, it saves to -the subjects all other rights and privileges before had, though not mentioned<span class="pagenum"><a id="Page_389"></a>[389]</span> -herein. Coke observes, that there is no saving for the <i>prerogative of -the king</i>, or his heirs; for that would have rendered all illusory. Secondly, -it ordains that the king and his heirs should observe it. Thirdly, that all -the subjects should. Fourthly, it recites, that, in consideration hereof, the -king received from the subjects a grant of the fifteenth of their moveables. -For <i>Magna Charta</i> is not merely a declaration of the old laws, but alters -them in many instances; for which favourable alterations the subjects made -this grant, and thereby became purchasers of them. Fifthly, it prohibites -the king, and his heirs, from doing any thing whereby these liberties might -be infringed or weakened; and declares all such doings null and void. -Lastly, comes the alteration of twelve bishops, and nineteen abbots, and -thirty-one earls and barons<a id="FNanchor_421" href="#Footnote_421" class="fnanchor">[421]</a>.</p> - -<hr class="chap x-ebookmaker-drop"> - -<div class="footnotes"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_390"></a>[390]</span></p> - -<h2 class="nobreak" id="FOOTNOTES">FOOTNOTES</h2> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_1" href="#FNanchor_1" class="label">[1]</a> Cæsar de bell. Gal. lib. 4. c. 18. Tacit. vit. Agric. Dion Cassius, vit. Sever.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_2" href="#FNanchor_2" class="label">[2]</a> Bede, lib. 1.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_3" href="#FNanchor_3" class="label">[3]</a> Bede, lib. 3. and 5.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_4" href="#FNanchor_4" class="label">[4]</a> The division of laws, during the Anglo-Saxon period, into West-Saxon-lage, -Mercen-lage and Dane-lage, was not of any importance. These differed not -essentially from one another. “Our Saxons, says Sir Henry Spelman, though divided -into many kingdoms, yet were they all one in effect, in manners, laws and -language: So that the breaking of their government into many kingdoms, or -the reuniting of their kingdoms into a monarchy, wrought little or no change -amongst them touching laws. For, though we talk of the <i>West-Saxon-law</i>, the -<i>Mercian-law</i> and the <i>Dane-law</i>, whereby the west parts of <i>England</i>, the middle -parts, and those of <i>Norfolk</i>, <i>Suffolk</i> and the north, were severally governed; yet -held they all an uniformity in substance, differing rather in their <i>mulcts</i> than in -their <i>canea</i>; that is, in the quantity of fines and amerciaments, than in the -course and frame of justice.” <i>Relig. Spelm.</i> p. 49.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_5" href="#FNanchor_5" class="label">[5]</a> King Edward’s laws were compiled from those of former princes, and abolished -any little peculiarities which distinguished the West-Saxon, Mercian and Danish -laws, subjecting the whole kingdom to a common law. His code, accordingly, was -termed <i>lex Angliæ</i>, or <i>lex terræ</i>. No correct copy of it has descended to us. -Those regulations, which pass under his name in the editions of the Saxon-laws -by Lambard and Wilkins, have evidently some interpolations. Traces of them -are to be seen in Hoveden and Knyghton; and remains of them are likeways to be -found in the laws of William I. From the time of this Prince to that of King -John, they continued, with the addition of some Norman laws and customs, the -law of the land. <i>Præcipimus</i>, says William, <i>ut omnes habeant et teneant leges -Edwardi regis in omnibus rebus, adauctis his quas constituimus ad utilitatem Anglorum</i>. -<i>Leg. Guliel. ap.</i> Wilkins, p. 229. By the influence of the Barons under the last -Prince, they were drawn up in the form of <i>Magna Charta</i>. For the <i>great charter</i> -was not what some partial writers have represented it, a concession of privileges -extorted by violence, but a declaration of the principal grounds of the <i>antient</i> and -fundamental laws of England, and a correction of the defects of the common law. -See <i>Lord Coke 2 Inst.</i> and <i>Lord Lyttelton’s hist. of Henry II. vol. I.</i> p. 42. 526.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_6" href="#FNanchor_6" class="label">[6]</a> <i>Wittenagemot</i>, imports a council of wise men; the Saxon word <i>witta</i> signifying -a wise man; and the British word <i>gemot</i> expressing a synod or council. -During the Heptarchy, each kingdom had its <i>Wittenagemot</i>.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_7" href="#FNanchor_7" class="label">[7]</a> The lay lords were the earls, thanes, and other nobility of the kingdom. -The spiritual lords were the bishops and dignitaries of the church, whose possessions -were held in Frankalmoigne. After the conquest, they were subjected to military -service and held by barony. What may seem extraordinary, Abesses were -also in use to sit in the Saxon Wittenagemots. In Wightred’s great council at -Beconceld, <i>anno</i> 694. the Abesses sat and deliberated, and several of them subscribed -the decrees made in it. <i>Spel. conc. vol. I.</i> The abesses appeared also in Ethelwolf’s -parliament at Winchester <i>anno</i> 855. <i>Ingulph, edit. Savil.</i> 862. And king -Edward’s charter to the abbay of Croyland was subscribed by an abbess. Even -in the time of Henry III. and in that of Edward I. it appears that four abbesses -were summoned to parliament; those of Shaftsbury, Berking, St. Mary of -Winchester, and of Wilton. <i>Tit. hon. p. 729, and Whitelock’s notes upon the king’s -writ for choosing members of Parliament, vol. I. p. 479. 480.</i></p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_8" href="#FNanchor_8" class="label">[8]</a> The preambles of the Saxon laws express an anxiety to please the people, -and allude to their consent in enacting them. The laws of king Ina begin thus: -<i>Ego Ina Dei gratia Occiduorum Saxonum Rex, cum consilio et cum doctrina Cenredæ -patris mei, et Heddæ Episcopi mei, et cum omnibus meis senatoribus, et senioribus <span class="smcap">sapientibus -populi mei</span>, et multa etiam societate ministrorum Dei, consultabam de -salute animæ nostræ, et de fundamento regni nostri, ut justæ leges, et justa statuta per -ditionem nostram stabilita et constituta essent, ut nullus senator nec subditus noster post -hæc has nostras leges infringeret</i>. See <i>LL. Anglo-Saxon, ap. Wilkins, p. 14.</i> The -preambles to the laws of the other princes are nearly similar; and those of Edgar, -Ethelred and Canute, may serve as additional examples. 1. Leges Eadgari -regis. <i>Hoc et institutum quod Eadgarus cum <span class="smcap">sapientum suorum</span> consilio instituit -in gloriam Dei, et sibi ipsi in dignitatem regiam, et in utilitatem omni populo suo</i>. 2. -Leges Æthelredi regis. <i>Hoc est consilium quod Æthelredus rex, et <span class="smcap">sapientes ejus</span> -consultaverunt ad emendationem pacis omni populo Wodstoci in regione Merciorum, secundum -Angliæ leges</i>. 3. Leges Cnuti regis. <i>Hoc est consilium quod Cnutus rex, -totius Angliæ et Danorum et Norwegorum rex, cum <span class="smcap">sapientum suorum</span> consilio sancivit, -in laudem Dei, et sibi ipsi in ornamentum regium, et ad utilitatem populi; et hoc -erat sacris natalibus domini nostri Wintoniæ</i>. See <i>Wilkins</i>, p. 76. 102. 126.</p> - -<p>In the 8th law of Edward the Confessor we read, <i>Hæc concessa sunt a rege, baronibus -et <span class="smcap">populo</span></i>; and in his 35th law we have the following words: <i>Hoc enim -factum fuit per <span class="smcap">commune consilium</span> et <span class="smcap">assensum</span> omnium episcoporum, principum, -procerum, comitum, et omnium <span class="smcap">sapientum</span> seniorum et <span class="smcap">populorum</span> totius -regni, et per præceptum regis Inæ prædicti.</i> See Wilkins, p. 198. The laws of -Edward are, I know, to be read with distrust; but they are allowed to contain -genuine relics of that prince; and, in the present case, there seems no reason -for suspicion. Their <i>appeal</i> of consequence to the <i>assent</i> of the <i>people</i> must be -allowed to be of authority. For, if such <i>assent</i> was not known and believed in -that age, how is it possible that they could appeal to it? The advocates for the -late origin of the house of commons will not surely suppose, that the Confessor -alluded prophetically to transactions which were not to happen till the reigns of -Henry III. and Edward I.</p> - -<p>In the <i>Mirroire de Justices</i>, it is expressly said, that no king, during the Saxon -times, could change his money, nor enhance nor impair it, nor make any money -but of silver, without the <i>assent</i> of the <i>Lords</i> and all the <span class="smcap">Commons</span>. Part of this -book is conceived by Sir Edward Coke to have been written before the conquest; -and additions were made to it by Andrew Horn in the reign of Edward I. from -old MSS. the authors of which must have seen ancient rolls and records. Matter, -also, from more exceptionable materials, it is to be thought, was superadded -by him. The book is notwithstanding of considerable weight and authority. -<i>Mirroire des Justices</i>, cap. 1. sect. 3. <i>Atkyns on the power of parliament.</i></p> - -<p>Concerning the high antiquity of the <i>commons</i>, Sir Edward Coke is clear and -explicit; and he has founded chiefly his opinion on the ancient tract, which bears -this title: <i>Modus quomodo parliamentum regis Angliæ et <span class="smcap">Anglorum suorum</span>, tenebatur -<span class="smcap">temporibus regis Edwardi</span>, filii <span class="smcap">regis</span> Ethelredi, qui modus recitatus fuit -per discretiores regni coram Willielmo duce Normanniæ conquestore et rege Angliæ, -ipso conquestore hoc præcipiente, et per ipsum approbatus, et suis temporibus et temporibus -successorum suorum regum Angliæ usitatus.</i> Other authors beside Lord -Coke have paid great respect to this treatise. It is to be acknowledged, however, -that Mr Selden has demonstrated that this tract could not possibly be of the age of -the Confessor, from its employing terms which were not in use till long after. -But this does not wholly derogate from its force as to the point in question. -For, allowing it to have been written in the reign of Edward III. the period which, -with great probability, some writers have assigned to it, it yet proves that the sense of -that period was full and strong with regard to the antiquity of the constitution, as -consisting of king, lords and <i>commons</i>; a circumstance which must have great -weight in opposition to those, who would make us believe, that our constitution, -as so formed, was unknown till the times of Henry III. and Edward I. <i>4 Institute</i>, -<i>p.</i> 2. 12. <i>Selden</i>, <i>tit. hon.</i> <i>p.</i> 739. 743.</p> - -<p>“In the time of king Canutus, says Whitelocke, to a charter then graunted to -the monastery of St. Edmond’s Bury (probably in a publique councell) after the -subscriptions of the queen and dukes, followes, <i>I Oslaus, <span class="smcap">knight</span></i>, <i>I Thored, -<span class="smcap">knight</span></i>, <i>I Thurkell, <span class="smcap">knight</span></i>, and so of others. How many these were, or how -for several counties, doth not appear; nor in that parlement of the same king -(for so is testified by the discription of it) where it is sayd, that <i>the king calling -all the prælats of his kingdome, and the nobles, and great men to his parlement</i>, -there were present bishops, abbots, dukes, earles, <i>with many <span class="smcap">militibus</span></i>, butte -the certain number is not extant; nor of those which are mentioned in the parlement -of Edward the Confessor, where after the king, queen, archbishops, bishops, -abbots, king’s chapleins, Thaines, <span class="smcap">knights</span> are reckoned in that parlement.” -<i>Notes upon the king’s writ</i>, vol. I. p. 437.</p> - -<p>Lambard, Dugdale, and other antiquaries, produce a very strong evidence of the -antiquity of the representation of boroughs, by evincing, “That in every quarter -of the realm, a great many boroughs do yet send burgesses to parliament, which -are nevertheless so ancient, and so long since decayed, and gone to nought, that -it cannot be shewed that they have been of any reputation at any time since the -Conquest; and much less that they have obtained this privilege by the grant of -any king succeeding the same. So that the interest which they have in parliament -groweth by an ancient usage before the Conquest, whereof they cannot -shew any beginning.” <i>Lambard Archeion</i>, <i>p.</i> 256. 257. <i>Coke Epist.</i> 9. <i>Rep. -Dugdale, Jurid.</i> <i>p.</i> 15.</p> - -<p>This matter receives confirmation from what we are told of the <i>boroughs of ancient -demesne</i>. “These, says Whitelocke, were tenants of the demesne lands of -William I. and of Edward the Confessor; who (to the end that they might not -be hindered from their business of husbandry of the king’s lands) had many privileges, -whereof one was, that they should not be compelled to serve in parliament. -Another was, that they should not contribute to the wages of <span class="smcap">knights -of the shire</span>. Which privileges they still enjoy, and had their beginning in -the times of William I. and of the Confessor, whose tenants they first were, as -appears in the book of Domesday, and is a strong proof, that <span class="smcap">knights</span> and <span class="smcap">Burgesses</span> -were then in parliament.” <i>Notes upon the Kings Writ</i>, vol. <span class="allsmcap">II.</span> p. 139.</p> - -<p>See also the <a href="#Footnote_22">22d note</a> to the present tract.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_9" href="#FNanchor_9" class="label">[9]</a> The law was not then a particular profession.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_10" href="#FNanchor_10" class="label">[10]</a> On the following record in the register of Ely, this notion seems to be -founded. <i>Abbas Wulfricus habuit fratrem, Guthmundum vocabulo; cui filiam præpotentis -viri in matrimonium conjungi paraverat; sed quoniam ille XL. hidarum terræ -dominium minus obtineret, licet nobilis esset, inter proceres <span class="smcap">tunc</span> nuncupari non potuit</i>. -It is somewhat remarkable, that Mr Hume is among those, who, resting on this -foundation, would make us conceive, that a person who had 40 hides of land, -could, without being noble, give his voice in the Wittenagemot. <i>Hist. of Eng. -vol. I. p. 145.</i> The passage, however, properly understood, serves to shew, that, in the -course of time, the attendance of the Nobles in parliament, having been deemed an -expensive service, a law was made to relieve those of them from it who were not -possessed of 40 hides of land. The reader may consult <i>hist. Eliens. c. 36. 40. ap. -Gale</i>, the authority appealed to by Mr Hume.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_11" href="#FNanchor_11" class="label">[11]</a> It is perhaps impossible to ascertain the æra of this invaluable institution. -It loses itself in a distant antiquity. The Saxon laws mention -it as a known invention. See <i>LL. Ethelr. c. 4. Senat. Consult. de Mont. Wal. -c. 3. ap. Wilkins</i>. See also <i>Nicolson, Præfat. ad Leg. Anglo-Sax. Spelm. Gloss. -and Coke’s 1st Institute</i>. Olaus Wormius traces it to a remote age among the -Danes; and Stiernhook among the Swedes. <i>Monument. Dan. lib. 1. c. 10.</i> <i>De -Jure Sueon. et Goth. vetusto. c. 4.</i></p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_12" href="#FNanchor_12" class="label">[12]</a> Annal. lib. 14. c. 33. <i>Copia negotiatorum et commeatuum maxime celebre.</i> -The city of London in the Danish times was able to pay L. 11,000 as its proportion -of L. 70,000, a tax then imposed on the nation. Asser, in the life of Alfred, -refers to above 120 cities, boroughs and villages.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_13" href="#FNanchor_13" class="label">[13]</a> Lib. 1. See also Holingh. Chron. p. 192.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_14" href="#FNanchor_14" class="label">[14]</a> Spelman, life of Alfred, b. 2. p. 28. Malmesb. lib. 2. c. 4. A writer in -Du Chesne having occasion to mention the first return of duke William to Normandy, -after his invasion of England, has the following passage: <i>Attulit quantum -ex ditione trium Galliarum vix colligeretur argentum atque aurum: Chari metalli -abundantia multipliciter Gallias terra illa [Anglia] vincit. Gest. Gul. Conques. -p. 210.</i></p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_15" href="#FNanchor_15" class="label">[15]</a> LL. Anglo-Saxon. ap. Wilkins, p. 71.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_16" href="#FNanchor_16" class="label">[16]</a> The Confessor dying without issue, the competitors for the crown were -Edgar Atheling, Harold, and duke William. The first had not capacity to sway -the sceptre; and the succession of kings was not yet directed by very regular -maxims. Harold was a subject, and in possession of no legal claim. William was -related to Edward, and urged the destination of that prince to succeed him. On -these grounds he invaded England; and by opposing Harold, he meant to secure -what was his right of succession. His victory accordingly gave him the capacity of -a successor, and not of a conqueror. That the quarrel was personal with Harold -may be even conceived from the circumstance that duke William offered to decide -their dispute by single combat. <i>Hale, hist. of the com. law, ch. v. Cook, argument. -antinorm.</i></p> - -<p>With regard to William’s right of succession, the best account appears to be that -which is found in Ingulphus, William of Poictiers, William Gemetensis, and Ordericus -Vitalis, who were all of them his contemporaries. These authors inform us, -that king Edward sent Harold into Normandy to assure duke William of his having -destined him to be his successor to the crown of England; a destination which -he had before observed to him by Robert Archbishop of Canterbury; and which -appears to have been made with the consent of the national council. And of this -relation there remains a very curious and decisive confirmation. It is a tapestry -found at Bayeux, and supposed to be work of Matilda the wife of duke William, -and of the ladies of her court, in which Harold is represented on his embassy. See -<i>a description of this tapestry by Smart Lethieullier, Esq; ap. Du Carrel’s Anglo-Norman -antiquities</i>. It is surprising, when these particulars are considered, that Mr. -Hume should have given his sanction to the opinion that William’s right was entirely -by war, and that he should have conceived that those who refuse to this -prince the title of <i>Conqueror</i> should rest solely or chiefly on the pretence that the -word <i>conqueror</i> is in old books and records applied to such as make an acquisition -of territory by any means. <i>Hist. of Eng. vol. 1. p. 200.</i> It is true, that Sir Henry -Spelman and other antiquaries have shown, that <i>conquestus</i> and <i>conquisitio</i> were -in the age of duke William synonymous with <i>acquisitio</i>; but it is no less true, -that the authors who refuse to duke William the title of Conqueror, rest on much -superior evidence. It is not with pleasure that I differ from this great authority; -but, no man has a title to enquire who will not think for himself; and the most -perfect productions of human wit have their errors and their blemishes.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_17" href="#FNanchor_17" class="label">[17]</a> See farther, an Historical Dissertation concerning the antiquity of the English -constitution. Part 2.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_18" href="#FNanchor_18" class="label">[18]</a> Ibid.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_19" href="#FNanchor_19" class="label">[19]</a> Ibid.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_20" href="#FNanchor_20" class="label">[20]</a> It is a very curious fact, that even some of the Anglo-Saxon nobles had all -the prerogatives of earls-palatine. Alfred, we are told, put to death one of his -judges for having passed sentence on a malefactor for an offence which had been -committed <i>where the king’s writ did not pass. Mirroire de Justices, ch.</i> v. And in -Selden we meet with earls who had entirely the civil and criminal jurisdiction in -their own territories. <i>Tit. Hon. part 2. ch.</i> v. If there were no other proofs -than these, they would be sufficient to evince the reality of fiefs among the Anglo-Saxons.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_21" href="#FNanchor_21" class="label">[21]</a> Madox, hist. of Excheq. <i>Erant in Anglia quodammodo</i>, says an old writer -concerning the age of Stephen, <i>tot reges vel potius tyranni, quot domini Castellorum. -Gul. Neubrigens.</i></p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_22" href="#FNanchor_22" class="label">[22]</a> <i>Civitas London. habeat omnes <span class="smcap">antiquas libertates</span> et <span class="smcap">liberas consuetudines -suas</span> tam per terras quam per aquas. Præterea volumus et concedimus -quod <span class="smcap">omnes aliae civitates</span> et <span class="smcap">burgi</span> et <span class="smcap">villae</span> et <span class="smcap">portus</span> habeant <span class="smcap">omnes libertates</span>, -et <span class="smcap">liberas consuetudines suas</span>.</i> <i>Magna charta ap. Blackstone, -Law Tracts, vol. III. p. 21.</i></p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_23" href="#FNanchor_23" class="label">[23]</a> They had suffered considerably, even from the time of the Confessor to that -of Domesday-book. Authors ought therefore to be cautious in reasoning back -from that monument to the Saxon period. It is a pity, that the survey of the -kingdom taken by Alfred did not yet remain. The comparison of it with that of -William would lead to very curious discoveries.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_24" href="#FNanchor_24" class="label">[24]</a> The first summons of knights extant on record is supposed to be in the 49th -of Henry III. But this, though it were true, does not prove that knights were not -known till that time. The writ does not say so; nor can it be gathered from it, -that <i>knights of the shire</i> were then <i>newly</i> established. If there remained, indeed, -an uniform series of records from the earliest times, in which there was no mention -of <i>knights</i> till the age of Henry III. there might thence arise a strong argument -against their antiquity. But this is not the case; and it happens, that in the -15th year of king John, there is a writ to the sheriff to summon <i><span class="smcap">four</span> knights -of the county</i>; <i>15. Jo. Rs. rot. claus. pt. 2. m. 7. dorso. 4 discretos milites, de comitatu -suo, ad loquendum nobiscum</i>. There is also similar evidence, that in the 32d and -42d years of Henry III. <i>knights</i> made their appearance in parliament. <i>Whitelocke, -Notes, vol. I. 438. vol. II. 120.</i> In the close roll, also, of the 38th year of Henry III. -there is extant a writ of summons directed to the sheriffs of Bedfordshire and Buckinghamshire, -requiring <i><span class="smcap">two</span> knights</i> to be sent for each of these counties. <i>Lyttelton, -Hist. Henry II. notes to the 2d book, p. 70. 79.</i> In ancient times, it was usual -to summon sometimes <i><span class="smcap">four</span> knights</i>, sometimes <span class="smcap">three</span>, sometimes <span class="smcap">two</span>, and even -sometimes <i><span class="smcap">one</span> knight</i>. But from the reign of Edward III. it has been the constant -practice for the sheriff to return <i><span class="smcap">two</span> knights</i> for each county. <i>Whitelocke, vol. I. 439.</i></p> - -<p>The first summons directed to the sheriff for the election of <i>citizens</i> and <i>burgesses</i>, -is supposed to be in the 23d of Edward I. But in the sixth year of king -John, says Whitelocke, there is extant on record a writ to the sheriff, which mentions -“Bishops, earls, barons, and <i>all our faithful people in England</i>; by whose -assent, lawes were then made.” <i>6. Jo. regis, rot. claus. m. 3. dors. et rot. pat. -m. 2. Assensu archiepis. &c. et omnium fidelium nostrorum Angliæ. Notes on the -king’s writ, vol. II. p. 120.</i> An ordinance in this year of king John, directed <i>to all -the sheriffs</i> in England, is mentioned from the records by Sir Robert Cotton, and -has these words: <i>Provisum est <span class="smcap">assensu</span> Archiepiscoporum, comitum, baronum, et -<span class="smcap">omnium fidelium nostrorum Angliae</span>.</i> <i>Cotton. posth. p. 15.</i></p> - -<p>In the <i>conventio inter regem Johannem et barones</i> the people are stated as parties; -a circumstance which would not have happened if they had not been represented. -<i>Hæc est conventio facta inter dominum Johannem regem Angliæ ex una parte, et Robertum -filium Walteri Marescallum, &c. <span class="smcap">et liberos homines totius regni</span> ex -altera parte</i>. Blackstone’s Edition of the charters, ap. Law Tracts, vol. II. -p. 39. 40. And what confirms this notion is, that we find the <i>mayor of London</i> -and the <i>constable of Chester</i> in the list of those who were chosen conservators of the -public liberties in consequence of the great charter. Other proofs, likeways, -of the antiquity of the commons are to be found in the great charters. See -Lyttelton, Hist. Henry II. Notes to the 2d book, p. 71.</p> - -<p>It is also worthy of notice, that the 25th of Edward I. which confirms the great -charter, observes, that it was made by the <i>common assent of all the realm</i>: And -the 15th of Edward III. observes, that it was made <i>par le roy, ses piers, et la communalté -de la terre</i>.</p> - -<p>Nor must it be omitted, that the 5th of Richard II. has this remarkable passage: -<i>The king doth will and command, and it is assented in the parliament, by the prelates, -lords and <span class="smcap">commons</span>, that all and singular persons and commonalties, which from -henceforth shall have the summons of the parliament, shall come from henceforth to the -parliaments in the manner as they are bound to do, and have been accustomed within -the realm of England <span class="smcap">of old times</span>. And if any person of the same realm, which -from henceforth shall have the said summons (be he archbishop, bishop, abbot, prior, -duke, earl, baron, banneret, <span class="smcap">knight</span> of the shire, <span class="smcap">citizen</span> of city, <span class="smcap">burgess</span> of -borough, or other singular person, or commonalty) do absent himself, and come not at -the said summons (except he may reasonably and honestly excuse him to our lord the -king) he shall be amerced, and otherwise punished, according as <span class="smcap">of old times</span> hath -been used to be done within the said realm in the said case. And if any sheriff of the -realm be from henceforth negligent in making his returns of writs of the parliament; -or that he leave out of the said returns <span class="smcap">any cities or borough which be bound -and of old time were wont to come to the parliament</span>, he shall be amerced, -or otherwise punished in the manner as was accustomed to be done in the said -case</i> in times past. <i>Stat. 2. cap. 4.</i></p> - -<p>The expression “of old time,” so often used here, must doubtless carry us farther -back than the 23d of Edward I. or even the 49th of Henry III. The space -of two or even three reigns does not make a period of antiquity. We do not say, -that the accession of George I. was in <i>ancient times</i>.</p> - -<p>I know well, that the expressions <i>commonalty</i>, <i>communitas regni</i>, <i>baronagium Angliæ</i>, -<i>magnates</i>, <i>nobiles</i>, <i>proceres</i>, <i>&c.</i> have been considered as solely applicable to -barons and tenants <i>in capite</i>. But one must beware of giving credit to this opinion. -The great charter of king John bears to have been made <i>per regem, barones -et liberos homines totius regni</i>; a certain proof that it was not made by the king -and the barons only; yet Henry III. speaking of this parliament, calls it <i>baronagium -Angliæ</i>. The <i>magnates</i> and <i>proceres</i> are said to have made the statute of Mortmain; -but it is well known, that the parliament which gave authority to this act -consisted of king, lords and <i>Commons</i>. In the 35th of Edward I. the expression <i>cum -comitibus, baronibus, proceribus, nobilibus, ac communitatibus</i>, evidently refers to -<span class="smcap">knights</span>, <span class="smcap">citizens</span> and <span class="smcap">burgesses</span>: And in the 14th of Edward III. <i>commonalty</i> -and <i>Commons</i> are used as synonymous. See farther, <i>Whitelocke, vol. II. ch. 81</i>. -<i>Coke, 2nd Inst. 583.</i> <i>Petyt, Rights of the Commons.</i> <i>Atkyns, on the power and jurisdiction -of parliament.</i></p> - -<p>Mr Hume, I am sensible, strenuously asserts the late origin of the Commons; and -one would almost imagine, that his history of England had been written to prove -it. His reasonings, however, on constitutional points, do not appear to me to be -always decisive; and it is with pain I observe the respect which this great man has -paid to the opinions of Dr Brady; a writer who is known to have disgraced excellent -talents, by pleading the cause of a faction, and giving a varnish to tyranny.</p> - -<p>The brevity which was necessary to this tract, has permitted me rather to hint -at, than to treat the antiquity of the Commons. In a work which I hope one day -to lay before the public, I shall have an opportunity of entering into it at greater -length.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_25" href="#FNanchor_25" class="label">[25]</a> Hist. Dissert. concerning the antiq. of the Engl. constitut. part 2.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_26" href="#FNanchor_26" class="label">[26]</a> <i>Madox, Hist. of the Excheq. Bar. Angl.</i> The granting of supplies to the -sovereign, naturally suggested to the people the petitioning for redress when under -the pressure of any grievance; and the crown, where it expected much, would -not naturally exercise a rigorous severity.</p> - -<p>The term <i>petitioners</i> indeed, has, by some authors, been considered as reproachful -to the <i>Commons</i>; but how a petition, as the spring of a law, could have -meanness in it, is inconceivable. Even in the free age of Charlemagne, this mode -of application was employed. <i>Baluz. capit. reg. Franc. tom. 1.</i> The behaving -with reverence to the sovereign is very different from acting with servility. And -as to the petitioning against grievances, it is to be remembered, that respectful requisitions -of ancient and constitutional privileges, which had suffered invasion, are -not to be considered as mean solicitations for acts of favour.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_27" href="#FNanchor_27" class="label">[27]</a> <i>Conf. Cart. an. 25. Ed. I.</i> It is singular, that even after the times of Edward -I. some writers will not allow, that the Commons were any essential branch -of the legislature; yet the writ of summons expresses in strong terms their right of -assent: <i>Ad audiendum et faciendum et consentiendum</i>; and a multitude of examples -may be produced of their actually consulting and determining about peace and -war and other important matters of state.</p> - -<p>There is evidence that Edward I. called a parliament, and consulted with the -Lords and <i>Commons</i> about the conquest of Wales; and that on receiving information -that the French King intended to invade some of his dominions in France, he -summoned a parliament <i>ad tractand. ordinand. et faciend. cum prælatis, proceribus -et aliis incolis regni quibuslibet, hujusmodi periculis et excogitatis malis sit objurand</i>. -Inserting in the writ these memorable words, <i>Lex justissima, provida circumspectione -stabilita</i>: <span class="smcap">Quod omnes tangit, ab omnibus approbetur</span>.</p> - -<p>Edward II. consulted with his <span class="smcap">people</span> in his first year <i>pro solemnitate sponsalium -et coronationis</i>; and in his sixth year he consulted them, <i>super diversis negotiis statum -regni et expeditionem <span class="smcap">guerrae Scotiae</span> specialiter tangentibus</i><a id="FNanchor_A" href="#Footnote_A" class="fnanchor">[A]</a>.</p> - -<p>Edward III. summoned the peers and <i>Commons</i> in his first year to consult them, -Whether they would resolve on peace or war with the Scottish king. In his sixth year, -he assembled the lords and <i>Commons</i>, and required their advice, Whether he should -undertake an expedition to the Holy Land. The lords and <i>Commons</i> consulted accordingly; -and while they applauded his religious and princely forwardness to the -holy enterprize, advised a delay of it for that season. In his thirteenth year, the -parliament assembled <i>avisamento prælatorum, procerum, necnon <span class="smcap">communitatis</span></i> -to advise <i>de expeditione <span class="smcap">guerrae</span> in partibus transmarinis</i>; and ordinances were made -for provision of ships, arraying of men for the marches, and defence of the isle of -Jersey. In his fortieth year, the Pope demanding the tribute of king John, the -parliament assembled, where, after consultation apart, the prelates, lords and <i>Commons</i> -advise the refusal of it, <i>although it be by the dint of the sword</i>.</p> - -<p>Richard II. in the first year of his reign, advised with the peers and <i>Commons</i>, How -he should best resist his enemies? In the second year, he consulted his <i>people</i> how to -withstand the Scots; who had combined against him with France. In the sixth -year, he consulted the parliament about the defence of the borders; his -possessions beyond sea, <i>Ireland</i> and <i>Gascoyne</i>, his subjects in <i>Portugal</i>, and safe -keeping of the seas; and whether he should proceed by treaty or alliance, -or the duke of Lancaster by force? The lords approved the duke’s intention for -Portugal; and the <i>Commons</i> advised, that Thomas bishop of Norwich, having the -Pope’s <i>croiceris</i>, should invade France. In his fourteenth year, this prince advised -with the lords and <i>Commons</i> for the war with Scotland, and would not, without -their counsels, conclude a final peace with France. And the year ensuing the -<i>Commons</i> interested the king to use moderation in the law of provisions, and proposed -that the duke of Aquitaine should be employed to negotiate the peace with -France.</p> - -<p>With regard to the power of the <i>Commons</i> as to <i>judicature</i> in the times of which -we speak, there are not wanting decisive proofs. In the reign of Edward II. the -peers and <i>Commons</i> gave consent and judgment to the revocation and reversement -of the sentence of banishment of the two Spencers<a id="FNanchor_B" href="#Footnote_B" class="fnanchor">[B]</a>. In the first year of Edward III. -when <i>Elizabeth</i> the widow of <i>Sir John de Burgo</i> complained in parliament, that -Hugh Spencer the younger, Robert Baldock and William Cliffe his instruments, had -by duress forced her to make a writing to the king, in consequence of which she -was despoiled of her inheritance, sentence was given for her by the prelates, lords -and <i>Commons</i>. In the 4th year of Edward III. it appears by a letter to the pope, -that to the sentence given against the earl of Kent, the <i>Commons</i> were parties as -well as the peers, for the king directed their proceedings in these words: <i>Comitibus, -magnatibus, baronibus, et aliis de <span class="smcap">communitate</span> dicti regni ad parliamentum -illud congregatis injunximus, ut super his discernerent et <span class="smcap">judicarent</span> quod rationi et -justiciæ conveniret</i>. When in the first year of Richard II. William Weston and -John Jennings were arraigned in parliament for surrendering certain forts to the -king; the <i>Commons</i> were parties to the sentence against them, as appears from a -writing annexed to the record. In the first year of Henry IV. although the <i>Commons</i> -refer by protestation, the pronouncing the sentence of deposition against -King Richard II. to the lords, yet they were equally interested in it, as is evident -from the record; for there were made proctors or commissioners for the whole -parliament, one bishop, one earl, one abbot, one baronet, and two knights. “And to -infer, says a learned and accurate author<a id="FNanchor_C" href="#Footnote_C" class="fnanchor">[C]</a>, that because the lords pronounced the -sentence, the point of judgment should be only theirs, were as absurd as to conclude -that no authority was left in any other commissioner of <i>oyer and terminer</i> -than in the person of that man solely that speaketh the sentence.” In the -second year of Henry V. the petition of the Commons imported no less than a -<i><span class="smcap">right</span> to act and assent to all things in parliament</i>; and the king allowed that they -possessed this right.</p> - -<p>These examples of the importance of the people are striking; and they are supported -by the authority of the parliament-rolls, or by records above exception. -The curious reader may see them, and other proofs to the same purpose, in the -posthumous pieces of Sir Robert Cotton.</p> - -<div class="sub-footnotes"> - -<p><a id="Footnote_A" href="#FNanchor_A" class="label">[A]</a> In his history of this prince, Mr Hume has the following very strange assertion: “The Commons, -though now an estate in parliament, were yet of so little consideration, <i>that their assent was never -demanded</i>.” Vol. II. p. 139.</p> - -<p><a id="Footnote_B" href="#FNanchor_B" class="label">[B]</a> The share the <i>Commons</i> had in this act, Sir Robert Cotton authenticates from the parliament rolls. -<i>Cottoni posthuma, p. 348.</i> Yet Mr Hume, in the most positive terms, denies that the <i>Commons</i> had any -concern in it. Vol. 2. p. 140.</p> - -<p><a id="Footnote_C" href="#FNanchor_C" class="label">[C]</a> Sir Robert Cotton.</p> - -</div> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_28" href="#FNanchor_28" class="label">[28]</a> <i>Hale, hist. of the com. law, ch. vii.</i> It has been sometimes insisted upon, -that much improvement was brought to England by the canon and civil laws. I -cannot, however, but imagine, that these laws, have, on the whole, been rather -attended with disadvantage. For tyrannical maxims do not suit a limited government. -They may have assisted, indeed, the invention, and extended the views of -some lawyers; but they have filled the heads of more with illiberal prejudices.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_29" href="#FNanchor_29" class="label">[29]</a> The reader, who is desirous of seeing proofs of the consideration of the -people during the wars between the Houses of York and Lancaster, may consult -Cotton’s abridgment of the records; and Bacon on the laws and government of -England. Part II.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_30" href="#FNanchor_30" class="label">[30]</a> In the year 1546, there were 126 boroughs that returned members to parliament; -and the greatest number of these were wealthy and populous. <i>Brown -Willis, notit. parliam. vol. I.</i> In the reign of Edward VI. 23 new boroughs were summoned -to send burgesses to parliament. Philip and Mary added 13 more, Elizabeth -30, James the 2 universities and 12 boroughs, Cha. I. 8 boroughs, and -Cha. II. the county of Durham and 2 boroughs. <i>Ellys on temporal liberty.</i> Anciently -the king might incorporate any town, and enable it to send burgesses to -parliament; but this privilege remains not at present with the crown. If the -king was now to venture on the creation of a parliamentary borough, it would rest -with the house of commons whether they would receive the members.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_31" href="#FNanchor_31" class="label">[31]</a> “As for her government, says a great authority, I assure myself I shall not -exceed, if I do affirm, that this part of the island never had 45 years of better -times; and yet not all through the calmness of the season, but through the wisdom -of her regiment.” <i>Lord Bacon.</i></p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_32" href="#FNanchor_32" class="label">[32]</a> “She loved not to be tied, but would be knit unto her people. Of 13 -parliaments called during her reign, not one became abortive by unkindness; -and yet not any one of them passed without subsidy granted by the people, but -one wherein none was desired. And sometimes the aid was so liberal, that she -refused the one half, and thanked the people for the remnant; a courtesy that -rang loud abroad, to the shame of other princes. She never altered, continued, -repealed, nor explained any law, otherwise than by act of parliament, whereof -there are multitudes of examples in the statutes of her reign.” <i>Nat. Bacon, -Discourse on the laws and government of England, part 2.</i></p> - -<p>I do not mean to say, that Elizabeth, and the princes who preceded her, never -acted against the spirit of our government. Her reign, and those of many of her -predecessors, were doubtless stained with bold exertions of authority. But bold -exertions of authority must not be interpreted to infer despotism in our government. -We must separate the personal qualities of princes, and the principles of -the constitution. The government of England, and the administrations of its chief -magistrates, are very different things.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_33" href="#FNanchor_33" class="label">[33]</a> <i>Hume, Hist. of England, vol. V. p. 462.</i> This historian, the most accomplished, -perhaps, who has written in modern times, has attempted to vindicate both -James and Charles; but he has done nothing more than to produce evidence to -shew, that in some respects they acted from precedents of administration in former -princes; and this, if taken even in the fullest extent, is insufficient to justify them. -Charles, however, it will be allowed, exceeded every violation of liberty, of which -there had been any example; and when he had consented to reduce the exorbitancy -of the regal power, his conduct created a suspicion of his sincerity. But -on the supposition that he did not advance his authority beyond the practice of former -times, he is not therefore to be vindicated. It is no exculpation of a crime -in one individual, that it has been committed by others. The advantages of a free -government belonged to the people of England; and they were the proper judges -when to enforce their privileges against an invader. They might pardon in one -sovereign what they would punish in another. They might overlook in Elizabeth -what they did not wish to excuse in Charles. The doctrine of resistance is delicate. -In a free constitution, like that of which we speak, the prince and the people -will often fall into situations where they seem to encroach, or actually do so, on the -rights of one another. But it is never on slight grounds that the people will be -prevailed upon to take arms against their chief magistrate. After all, had England -been an absolute monarchy, Was it thence proper and just that it should remain in -that situation? There are rights which it is impossible that men can either lose or -forfeit. No authority and no precedent, no usage and no law, can give a sanction -to tyranny.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_34" href="#FNanchor_34" class="label">[34]</a> Lord Clarendon applies to him, with great propriety, what was said of Cinna, -<i>ausum eum, quæ nemo auderet bonus; perfecisse, quæ a nullo, nisi fortissimo, perfici -possent</i>.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_35" href="#FNanchor_35" class="label">[35]</a> Bill of rights, toleration act, act of settlement.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_36" href="#FNanchor_36" class="label">[36]</a> L’Esprit des Loix, Liv. xi. ch. 3.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_37" href="#FNanchor_37" class="label">[37]</a> Plut. Vit. Lycurg.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_38" href="#FNanchor_38" class="label">[38]</a> Spencer, Dissert. de ratione Leg. Usuram prohibentis.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_39" href="#FNanchor_39" class="label">[39]</a> Lindenbrogius, codex legum antiquarum.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_40" href="#FNanchor_40" class="label">[40]</a> Conringius de Antiquitatibus Academicis. Bruckerus, Hist. Philos. Giannone’s hist. of -Naples, lib. 1. chap. 10. § 1. and 11. lib. 11. chap. 6. § 1.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_41" href="#FNanchor_41" class="label">[41]</a> Præfat. ad Glossar.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_42" href="#FNanchor_42" class="label">[42]</a> P. 55.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_43" href="#FNanchor_43" class="label">[43]</a> Corvini jus feudale.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_44" href="#FNanchor_44" class="label">[44]</a> See Craig, de Feud. lib. 1. dieg. 5. and Selden’s Titles of Honour, part second, chap. 1. -§ 23. Basnage, Coutume reformée de Normandie, tom. 1. p. 139.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_45" href="#FNanchor_45" class="label">[45]</a> Selden. Ibid. Craig, lib. 1. dieg. 5.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_46" href="#FNanchor_46" class="label">[46]</a> This Emperor, says Lampridius, gave the territories gained on the frontiers, limitaneis -ducibus et militibus, ita ut eorum essent si hæredes illorum militarent, nec unquam ad -privatos pertinerent; dicens attentius eos militaturos si etiam sua rura defenderent. Addidit -sane his et animalia et servos; ut possent colere quod acceperunt, ne per inopiam hominum -vel per senectutem possidentium defererentur rura vicina barbariæ, quod turpissimum -esse dicebat. See also Molin. in consuet. Paris. tit. 1. de Fiefs, and Loyseau, des Off. -lib. 1. chap. 1.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_47" href="#FNanchor_47" class="label">[47]</a> De bell. Gall. lib. 4. chap. 22.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_48" href="#FNanchor_48" class="label">[48]</a> Montesquieu, L’esprit des loix, liv. 30. chap. 2. and 6.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_49" href="#FNanchor_49" class="label">[49]</a> Lib. Feud. 1. tit. 1.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_50" href="#FNanchor_50" class="label">[50]</a> L’esprit des loix, liv. 31. chap. 31.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_51" href="#FNanchor_51" class="label">[51]</a> Tacitus de moribus Germanorum. Cæsar de bell. Gall. lib. 6.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_52" href="#FNanchor_52" class="label">[52]</a> Servis, non in nostrum morem descriptis per familiam ministeriis utantur. Suam -quisque sedem, suos penates regit. Frumenti modum dominus, aut pecoris, aut vestis, -ut colono injungit; et servus hactenus paret. Tacit. de mor. Germ. cap. 25.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_53" href="#FNanchor_53" class="label">[53]</a> De mor. Germ. cap. 24.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_54" href="#FNanchor_54" class="label">[54]</a> De mor. Germ. cap. 11.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_55" href="#FNanchor_55" class="label">[55]</a> Ibid. cap. 7.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_56" href="#FNanchor_56" class="label">[56]</a> L’esprit des loix, liv. 31.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_57" href="#FNanchor_57" class="label">[57]</a> Mably, Observations sur l’histoire de France, liv. 1. cap. 3.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_58" href="#FNanchor_58" class="label">[58]</a> De mor. Germ. cap. 13. and 14.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_59" href="#FNanchor_59" class="label">[59]</a> L’Esprit des loix, liv. 31.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_60" href="#FNanchor_60" class="label">[60]</a> De mor. Germ. cap. 7. 12. and 14.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_61" href="#FNanchor_61" class="label">[61]</a> Ibid. cap. xi.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_62" href="#FNanchor_62" class="label">[62]</a> Muratori, Antiq. Ital. vol. 4. p. 160. et Seq. Mably, Observations sur l’histoire de -France, tom. 2. p. 96. et Seq. Madox, Firma Burgi, cap. 1. sect. 9.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_63" href="#FNanchor_63" class="label">[63]</a> Tacit, de mor. Germ. c. 13. Spelman’s Glossary, voc. Miles.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_64" href="#FNanchor_64" class="label">[64]</a> Tacit, de mor. Germ. cap. 12.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_65" href="#FNanchor_65" class="label">[65]</a> Hi cuique sanctissimi testes, hi maximi laudatores. Tacit. de m. G. c. 7. Consult -also c. 5. and c. 18.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_66" href="#FNanchor_66" class="label">[66]</a> It is to be wished, that our ingenious Professor had here entered more at large into -the history of property in land. The subject is important and little understood. The -conceptions entertained by the antient inhabitants of Germany and Gaul concerning property -have been explained and illustrated in a book, intituled, “An Historical Dissertation -concerning the Antiquity of the English Constitution.” The author of this -treatise seems to be the first who has remarked that land is originally the property of -nations, and has attempted to account for the manner in which it comes to descend to individuals. -See his Dissert. part 1. sect. 3. See also Professor Millar’s valuable work on -the Distinction of Ranks in Society, p. 165. et seq. 2d edition.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_67" href="#FNanchor_67" class="label">[67]</a> Cæsar, de bell. Gall. lib. 4. c. 1. Lib. 6. c. 22. Tacit. de mor. Germ. c. 26.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_68" href="#FNanchor_68" class="label">[68]</a> Du Cange, Glossarium voc. Juramentum. Georgisch, corp. juris Germanici antiqui.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_69" href="#FNanchor_69" class="label">[69]</a> Spelman, Gloss. voc. Lada et Ladare. Struv. Hist. jur. criminal. sect. 9.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_70" href="#FNanchor_70" class="label">[70]</a> L’Esprit des loix, liv. 28. ch. 17.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_71" href="#FNanchor_71" class="label">[71]</a> Georgisch, corp. juris Germanici antiqui, p. 347. and p. 368.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_72" href="#FNanchor_72" class="label">[72]</a> Du Cange, Gloss. voc. Duellum. Spelman, voc. Campus. Selden’s Duello, or Treatise -on Single Combat, ch. 5.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_73" href="#FNanchor_73" class="label">[73]</a> Georgisch, corp. juris Germanici antiqui, p. 980, 1063, 1223, 1267, 1270.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_74" href="#FNanchor_74" class="label">[74]</a> Selden, Analecta Anglo-Britannica, lib. 2. cap. 8.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_75" href="#FNanchor_75" class="label">[75]</a> Brady’s Hist. of England, p. 65.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_76" href="#FNanchor_76" class="label">[76]</a> Mr Barrington has remarked, that “the last trial by battle in England was in the -time of Charles I. and that it did not end in the actual combat.” Observations on the -Statutes, 3d edition, p. 202. The last instance which occurs of the judicial combat in the -history of France, was the famous one between M. Jarnac and M. de la Chaistaignerie, -A. D. 1547. Dr. Robertson’s Charles V. vol. 1. p. 298.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_77" href="#FNanchor_77" class="label">[77]</a> Tacit. de mor. Germ. cap. 12. and 25.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_78" href="#FNanchor_78" class="label">[78]</a> Lindenbrog. Cod. Leg. Antiq. p. 1404. Tacit. de mor. Germ. c. 21. LL. Wal. by -Wotton, p. 192. 194. LL. Anglo-Saxon, ap. Wilkins, p. 18. 20. 41. Hickes. Dissert. -Epist. p. 110. Georgisch, corpus jur. Germ. antiq.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_79" href="#FNanchor_79" class="label">[79]</a> Montesquieu on the Rise and Decline of the Roman Empire. Dr. Geddes, in his -Tract concerning the Nations which overturned the Empire of the Romans, p. 21.-26.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_80" href="#FNanchor_80" class="label">[80]</a> Selden’s titles of honour, part 1. chap. 5. § 1.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_81" href="#FNanchor_81" class="label">[81]</a> Procop. de bel. Goth. ap. script. Byz. Jornandes, Paulus Warnefridus, Gregory of -Tours. Mably, observations sur l’histoire de France, tom. 1. chap. 1.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_82" href="#FNanchor_82" class="label">[82]</a> Giannone’s hist. of Naples, lib. II. cap. 4.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_83" href="#FNanchor_83" class="label">[83]</a> Bouquet, le droit public de France, èclairci par les monuments de l’antiquité, p. 6.-10. -Montesquieu, l’Esprit des loix, liv. 30. chap. 6, 7, 8, 9.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_84" href="#FNanchor_84" class="label">[84]</a> Reliq. Spelm. p. 2.-7.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_85" href="#FNanchor_85" class="label">[85]</a> Potgiesser, de stat. servorum, lib. 2. cap. 1. Montesquieu, l’Esprit des loix, liv. 30. -chap. 14. Du Cange, voc. Servus.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_86" href="#FNanchor_86" class="label">[86]</a> Spelman reliq. 12, 14, 248. Muratori antiq. Ital. vol. 5. p. 712.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_87" href="#FNanchor_87" class="label">[87]</a> Brussel, usage des fiefs, liv. 2. Selden’s tit. of honour, part 2, cap. 1. § 23. and -§ 33.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_88" href="#FNanchor_88" class="label">[88]</a> Mably, observations sur l’histoire de France, liv. 1. chap. 5. and 6.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_89" href="#FNanchor_89" class="label">[89]</a> Gregor. Turonen. lib. 2. cap. 27. Usage des fiefs, par Brussel, liv. 2. cap. 6. -Dissertation on the antiq. of the English constitution, part 3. § 2.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_90" href="#FNanchor_90" class="label">[90]</a> Lib. feud. 1. tit. 1. Hume appendix, 2. Dalrymple, Essay on feudal property, -cap. 5. § 1.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_91" href="#FNanchor_91" class="label">[91]</a> Coke on Littleton, lib. 2. chap. 4.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_92" href="#FNanchor_92" class="label">[92]</a> Montesquieu, l’Esprit des loix. liv. 30. chap. 13. Du Cange, voc. Alod. Schilteri -Thesaur. voc. Alod.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_93" href="#FNanchor_93" class="label">[93]</a> Heinnec. Elem. jur. Germ. lib. 3. § 26. Selden’s tit. of hon. part 2. chap. 1. -Spelman, voc. Comites.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_94" href="#FNanchor_94" class="label">[94]</a> Ripuar. L. L. tit. de diversis interfectionibus, p. 160, 161. ap. Georgisch, corp. -jur. Germ. Du Cange, voc. Faida.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_95" href="#FNanchor_95" class="label">[95]</a> Bacon’s Discourse on the Laws and Government of England, p. 11.-27. Monast. -Anglican, passim. Mezeray, abr. chronol. tom. 1. p. 172.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_96" href="#FNanchor_96" class="label">[96]</a> Montesquieu, l’Esprit de Loix, liv. 30. chap. 21. liv. 31. chap. 9. 10. 11.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_97" href="#FNanchor_97" class="label">[97]</a> Lib. 1. Feud. tit. 1. Hanneton, de jur. feud. p. 139. Du Cange, voc. Fideles et Fidelitas.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_98" href="#FNanchor_98" class="label">[98]</a> Mably, Observations sur l’histoire de France, liv. 1. chap. 6. Du Cange voc. Beneficium.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_99" href="#FNanchor_99" class="label">[99]</a> Spelman’s Gloss. voc. Feodiem. Dalrymple on Feudal-Property, chap. 1. Hume, -Append. 2.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_100" href="#FNanchor_100" class="label">[100]</a> Du Cange, voc. Investitura. Spelman, voc. Pares Curiæ. Craig de feud. lib. 2. -dieg. 2.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_101" href="#FNanchor_101" class="label">[101]</a> Bracton, lib. 2. cap. 17. Spelman, voc. Fidelitas, et Seisina. Fleta, lib. 3. cap. 15.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_102" href="#FNanchor_102" class="label">[102]</a> Spelman, Gloss. p. 266. Feud. lib. 2. tit. 6. Littleton, lib. 2. chap. 2. Basnage, -contume reformée de Normandie, tit. Des fiefs et droits Feodaux, art. 107.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_103" href="#FNanchor_103" class="label">[103]</a> Coke on Littleton, book 2. chap. 1. Du Cange, voc. Vassaticum. Wright on tenures, -p. 55, 56.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_104" href="#FNanchor_104" class="label">[104]</a> Feud. lib. 2. tit. 23. and 24. Dalrymple on Feud. property, chap. 2. Wright on -tenures, p. 72.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_105" href="#FNanchor_105" class="label">[105]</a> Madox, Antiquities of the Exchequer, vol. 1. p. 653. Coke on Littleton, lib. 2. -chap. 2.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_106" href="#FNanchor_106" class="label">[106]</a> Du Cange, voc. Auxilium. Madox, Antiq. Excheq. chap. 15.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_107" href="#FNanchor_107" class="label">[107]</a> Feud. lib. 2. tit. 25.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_108" href="#FNanchor_108" class="label">[108]</a> Bracton, lib. 3. p. 130. Spelm. voc. Escheata. Glanville, lib. 7. cap. 17. Dalrymple -on feud. property, p. 62. Ed. 1757. Hengham Parva, chap. 6. Coke on Littleton, -b. 1. chap. 1.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_109" href="#FNanchor_109" class="label">[109]</a> Craig, de feud. lib. 2. dieg. 207.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_110" href="#FNanchor_110" class="label">[110]</a> Craig, de feud. lib. 1. dieg. 11. and 12.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_111" href="#FNanchor_111" class="label">[111]</a> Ibid.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_112" href="#FNanchor_112" class="label">[112]</a> Ibid.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_113" href="#FNanchor_113" class="label">[113]</a> Reliq. Spelm. p. 3, 7, 33, 43. Gervas. de Tilb. Dialog. de Scaccar. lib. 1. -cap. 7. Madox, Antiq. Excheq. vol. 1. p. 272.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_114" href="#FNanchor_114" class="label">[114]</a> Fortescue de Laud. leg. Angl. p. 99. Ed. 1737. Coke on Littleton, b. 2. chap. 7.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_115" href="#FNanchor_115" class="label">[115]</a> Carte, hist. of England, vol. 2. p. 169. The reign of Edward I. in Kennet’s collect. -of English historians, p. 197.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_116" href="#FNanchor_116" class="label">[116]</a> Coke on Littleton, lib. 2. chap. 8. Madox, Antiq. Excheq. vol. 1. p. 321, 326.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_117" href="#FNanchor_117" class="label">[117]</a> Madox, hist. of Excheq. vol. 1. p. 51.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_118" href="#FNanchor_118" class="label">[118]</a> Ib. p. 40. 41.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_119" href="#FNanchor_119" class="label">[119]</a> Ib. p. 43.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_120" href="#FNanchor_120" class="label">[120]</a> It may not be improperly remarked in this place, that about the 18th year of Henry -II. Geoffrey Martell held in England the office or serjeanty of Pincernaria, or Butlership. -See Madox, hist. Excheq. vol. 1. p. 50.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_121" href="#FNanchor_121" class="label">[121]</a> Lib. 2. cap. 9.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_122" href="#FNanchor_122" class="label">[122]</a> Feud. lib. 1. tit. 8.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_123" href="#FNanchor_123" class="label">[123]</a> Brussel, usage des Fiefs, tom. 1. p. 41. Du Cange, voc. Cavena and Canava.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_124" href="#FNanchor_124" class="label">[124]</a> Spelman, and Du Cange, voc. Camera, et voc. Feudum. Craig, de Feud. lib. 1. -Dieges. 10.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_125" href="#FNanchor_125" class="label">[125]</a> Du Cange, voc. Soldata, et voc. Feudum. ædificii.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_126" href="#FNanchor_126" class="label">[126]</a> Coke on Littleton, lib. 2. chap. 4.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_127" href="#FNanchor_127" class="label">[127]</a> Du Cange, voc. Gastaldus.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_128" href="#FNanchor_128" class="label">[128]</a> Gibson, Cod. Jur. Eccles. Anglican, tit. 23.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_129" href="#FNanchor_129" class="label">[129]</a> Montesquieu, l’Esprit de Loix, liv. 31. chap. 11. Bacon, hist. and polit. disc. on the -laws and government of England, ch. 59. Inett’s hist. of the English Church, vol. 2. -ch. 2.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_130" href="#FNanchor_130" class="label">[130]</a> Gibson, Cod. Jur. Eccles. Anglican. tit. 23.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_131" href="#FNanchor_131" class="label">[131]</a> Ibid.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_132" href="#FNanchor_132" class="label">[132]</a> Ibid. and tit. 30.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_133" href="#FNanchor_133" class="label">[133]</a> Gibson, Cod. Jur. Eccles. Anglican, tit. 34.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_134" href="#FNanchor_134" class="label">[134]</a> Gibson, tit. 1. and 2.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_135" href="#FNanchor_135" class="label">[135]</a> Father Paul on beneficiary matters, ch. 2. and ch. 6. Selden’s history of tithes, -ch. 4. sect. 1. Spelm. larger work of tithes, ch. 6.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_136" href="#FNanchor_136" class="label">[136]</a> Selden’s hist. of tithes, ch. 6. and 7. Spelm. larger work of tithes, ch. 29.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_137" href="#FNanchor_137" class="label">[137]</a> De non temerand. Eccles. tract. Spelm. p. 3.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_138" href="#FNanchor_138" class="label">[138]</a> Montesquieu, l’Esprit des loix. liv. 31. chap. 12. Selden of tithes, ch. 7. Father -Paul of benefices, ch. 11.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_139" href="#FNanchor_139" class="label">[139]</a> Father Paul of benefices, ch. 14.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_140" href="#FNanchor_140" class="label">[140]</a> Giannone’s hist. of Naples, b. 19. chap. 4. § 2.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_141" href="#FNanchor_141" class="label">[141]</a> Selden on tithes, chap. 8. Bacon, hist. and polit. disc. on the Laws and Government -of England, chap. 59. L. l. Angl. Sax. ap. Wilkins.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_142" href="#FNanchor_142" class="label">[142]</a> Brady, Appendix to his hist. p. 15. Carte, hist. of England, vol. 1. p. 441.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_143" href="#FNanchor_143" class="label">[143]</a> Selden on tithes, chap. 14.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_144" href="#FNanchor_144" class="label">[144]</a> Carte’s hist. of England, vol. 3. p. 135, 143, 148, 149. Lord Herbert’s life and -reign of Henry VIII. p. 186. et seq. ap. Kennet.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_145" href="#FNanchor_145" class="label">[145]</a> Gibson, Cod. Jur. Eccles. Anglican. tit. 35. Hume, vol. 1. p. 51.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_146" href="#FNanchor_146" class="label">[146]</a> Wood, Institute of the Laws of England, fol. 161. et seq.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_147" href="#FNanchor_147" class="label">[147]</a> Madox, Baronia Angl.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_148" href="#FNanchor_148" class="label">[148]</a> 4. Instit. 268. Scroggs of Courts Baron, p. 56.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_149" href="#FNanchor_149" class="label">[149]</a> Coke on Littleton, lib. 2. chap. 12. § 215.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_150" href="#FNanchor_150" class="label">[150]</a> Madox, Antiquities of the Excheq. vol. 1. p. 652.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_151" href="#FNanchor_151" class="label">[151]</a> Coke on Littleton, lib. 2. chap. 12.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_152" href="#FNanchor_152" class="label">[152]</a> Ibid.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_153" href="#FNanchor_153" class="label">[153]</a> Coke, ut supra.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_154" href="#FNanchor_154" class="label">[154]</a> Madox, Antiq. of the Excheq. chap. 13. The Statutes at Marlebridge, ap. Ruffhead, -vol. 1. p. 30.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_155" href="#FNanchor_155" class="label">[155]</a> Ruffhead, vol. 1. p. 37.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_156" href="#FNanchor_156" class="label">[156]</a> Glanvil, lib. 9. c. 8. lib. 10. c. 3. lib. 11. c. 4.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_157" href="#FNanchor_157" class="label">[157]</a> Houard, Anciennes loix des François conservées dans les coutumes Angloises, tom. 1. -p. 32. et seq. Craig, lib. 1. dieg. 4.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_158" href="#FNanchor_158" class="label">[158]</a> Bracton, lib. 2. c. 36. Hume, append. 2. Du Cange, voc. relevium. Spelman, -voc. relevamen. Reliq. Spel. p. 32, 33.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_159" href="#FNanchor_159" class="label">[159]</a> Fleta, lib. 3. c. 77. Feud. lib. 1. tit. 1. Dalrymple on feudal property, ch. 5. -Madox, antiq. of the Exchequer, ch. 10. § 4.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_160" href="#FNanchor_160" class="label">[160]</a> Wright on tenures, p. 95. 96.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_161" href="#FNanchor_161" class="label">[161]</a> LL. Hen. 1. c. 1.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_162" href="#FNanchor_162" class="label">[162]</a> Lib. 9. c. 4.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_163" href="#FNanchor_163" class="label">[163]</a> Madox, antiq. of the Exchequer, ch. x.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_164" href="#FNanchor_164" class="label">[164]</a> Ruffhead, vol. 1. p. 2.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_165" href="#FNanchor_165" class="label">[165]</a> Bracton, lib. 2. fol. 86.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_166" href="#FNanchor_166" class="label">[166]</a> Montesquieu, l’Esprit de Loix, liv. 31. chap. 1.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_167" href="#FNanchor_167" class="label">[167]</a> St. Amand on the legislative power of England, p. 27. Montesquieu, l’Esprit des -loix, liv. 31. ch. 8. Dr Robertson’s Charles V. vol. 1. p. 222.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_168" href="#FNanchor_168" class="label">[168]</a> Mably, observations sur l’histoire de la France, tom. 1. l. 1. ch. 5. and 6. Montesquieu, -l’Esprit des loix, liv. 31. ch. 9.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_169" href="#FNanchor_169" class="label">[169]</a> Spelman on feuds and tenures. Mably, observations sur l’histoire de France, -tom. 1. l. 2. ch. 3, 4, 5, 6. Montesquieu, l’Esprit des loix, liv. 31. ch. 28, 29, 30, 31. -Houard, anciennes loix des François, liv. 1. ch. 1. Basnage, coutume de Normandie, -tom. 1. p. 146.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_170" href="#FNanchor_170" class="label">[170]</a> See the authorities quoted above, and Selden’s titles of honour, part 2. chap. 5.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_171" href="#FNanchor_171" class="label">[171]</a> Coke on Littleton, lib. 2. ch. 1.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_172" href="#FNanchor_172" class="label">[172]</a> Houard, anciennes loix des François, liv. 2. ch. 1. Du Cange, voc. Hominium. -Spelman, voc. Homagium.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_173" href="#FNanchor_173" class="label">[173]</a> Wright on tenures, p. 154. et seq. Dalrymple on feudal property, chap. 2. § 2. -Millar on the distinction of ranks in society, second edit. p. 215.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_174" href="#FNanchor_174" class="label">[174]</a> Wright on tenures, p. 172.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_175" href="#FNanchor_175" class="label">[175]</a> Coke on Littleton, lib. 3. chap. 13.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_176" href="#FNanchor_176" class="label">[176]</a> Houard, anciennes loix des François, liv. 3. chap. 13. Coke, ut supra.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_177" href="#FNanchor_177" class="label">[177]</a> Wright on tenures, p. 168, 169.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_178" href="#FNanchor_178" class="label">[178]</a> Wright on tenures, p. 186.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_179" href="#FNanchor_179" class="label">[179]</a> Fortescue de laud. leg. Angliæ, cap. 44. Glanvil, lib. 2. chap. 9. Spel. reliq. -p. 25, 26. Du Cange, voc. Warda.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_180" href="#FNanchor_180" class="label">[180]</a> Craig, de feud. lib. 2. dieg. 20. Wright on tenures, p. 86. et seqq. Dalrymple -on feud. property, chap. 2. § 2.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_181" href="#FNanchor_181" class="label">[181]</a> Ruffhead’s Statutes, p. 2, 3. Basnage, Coutume de Normandie, tit. des gardes.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_182" href="#FNanchor_182" class="label">[182]</a> Coke on Littleton, lib. 2. ch. 5. sect. 123. Houard, anciennes loix des François, -liv. 2. ch. 5.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_183" href="#FNanchor_183" class="label">[183]</a> LL. Henry 1. c. 1. Bracton, lib. 2. c. 37. sect. 6. Craig, de feud. lib. 2. Dieges. -21. Du Cange, voc. Maritagium. Glanvil, liv. 7. c. 12.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_184" href="#FNanchor_184" class="label">[184]</a> Wright on tenures, p. 97.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_185" href="#FNanchor_185" class="label">[185]</a> Ruffhead’s statutes, fol. p. 19.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_186" href="#FNanchor_186" class="label">[186]</a> Ibid. p. 6.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_187" href="#FNanchor_187" class="label">[187]</a> Coke’s institutes, part 2. p. 440. Ruffhead, vol. I.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_188" href="#FNanchor_188" class="label">[188]</a> 32 Henry VIII. c. 46. 12 Car. II.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_189" href="#FNanchor_189" class="label">[189]</a> Craig, de feud. lib. 2. Dieges. 13. Dalrymple on feudal property, ch. 5. sect. 1.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_190" href="#FNanchor_190" class="label">[190]</a> Craig de feud. lib. 2. dieges. 14.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_191" href="#FNanchor_191" class="label">[191]</a> Basnage, coutume de Normandie, tit. De partage d’heritage. LL. Hen. 1. 70.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_192" href="#FNanchor_192" class="label">[192]</a> Dalrymple on feud. property, chap. 5. § 1. Hume, appen. 2.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_193" href="#FNanchor_193" class="label">[193]</a> Hale’s hist. of the common law, chap. 5. Bacon’s hist. and polit. discourse on the -laws and government of England, part 1. chap. 45, 55, and 56.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_194" href="#FNanchor_194" class="label">[194]</a> Id. chap. 57. See also Tyrrel’s history, and Kennet’s historians.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_195" href="#FNanchor_195" class="label">[195]</a> Glanvil, lib. 7. cap. 3. Craig de feud. lib. 2. dieges. 15. Dalrymple on feudal -property, chap. 5. § 2.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_196" href="#FNanchor_196" class="label">[196]</a> Lib. Feud. 2. tit. 12.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_197" href="#FNanchor_197" class="label">[197]</a> Lindenbrogius, cod. leg. antiq. p. 679.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_198" href="#FNanchor_198" class="label">[198]</a> Dalrymple on feud. property, chap. 5.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_199" href="#FNanchor_199" class="label">[199]</a> Craig. de feud. lib. 2. dieges. 14.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_200" href="#FNanchor_200" class="label">[200]</a> Hale, hist. com. law, chap. 9.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_201" href="#FNanchor_201" class="label">[201]</a> Giannone’s hist. of Naples. Selden’s tit. hon. part 2. chap. 9.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_202" href="#FNanchor_202" class="label">[202]</a> Bouquet, le droit public de France, p. 30.-36.—Allodium, proprietas quæ a nullo -recognoscitur. Tenere in allodium, id est, in plenam et absolutam proprietatem. Habet -integrum ac directum dominium quale à principio de jure gentium fuit distributum et -distinctum. Du Moulin, de l’ancienne coûtume de Paris, art. 46.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_203" href="#FNanchor_203" class="label">[203]</a> Dalrymple on feud. property, ch. 3. sect. 1.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_204" href="#FNanchor_204" class="label">[204]</a> Lib. 4. feud. tit. 34. Ruffhead’s statutes, v. 1. p. 122.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_205" href="#FNanchor_205" class="label">[205]</a> Gibson, cod. jur. eccles. Anglican, tit. 28.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_206" href="#FNanchor_206" class="label">[206]</a> Kennet’s collection of historians, vol. 1. p. 116. Carte, hist. of England, vol. 1. -p. 469. 555.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_207" href="#FNanchor_207" class="label">[207]</a> Hume, hist. of England, vol. 1.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_208" href="#FNanchor_208" class="label">[208]</a> LL. Hen. 1. cap. 70.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_209" href="#FNanchor_209" class="label">[209]</a> Lib. 7. c. 1.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_210" href="#FNanchor_210" class="label">[210]</a> Glanvil, ut supra. Ruffhead’s statutes, vol. 1. p. 8.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_211" href="#FNanchor_211" class="label">[211]</a> Britton, c. 18. Wright on tenures, p. 163. 164.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_212" href="#FNanchor_212" class="label">[212]</a> Staunford, de prerog. Reg. cap. 7.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_213" href="#FNanchor_213" class="label">[213]</a> An. 27. Hen. VIII. cap. 10. ap. Ruffhead, vol. 2. p. 226.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_214" href="#FNanchor_214" class="label">[214]</a> Madox, hist. of Exchequer, ch. 17. Firma burgi.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_215" href="#FNanchor_215" class="label">[215]</a> Du Cange, et Spelman, voc. Tallagium. Madox, antiq. of the Exchequer, ch. 17.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_216" href="#FNanchor_216" class="label">[216]</a> Hume’s hist. of England, appendix 2. Madox, Firma burgi, ch. 1.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_217" href="#FNanchor_217" class="label">[217]</a> Ruffhead, vol. 1. p. 115.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_218" href="#FNanchor_218" class="label">[218]</a> An. 13. Ed. I. c. 18. apud Ruffhead, append.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_219" href="#FNanchor_219" class="label">[219]</a> An. 23. Henry VIII. cap. 6. ap. Ruffhead, vol. 2. p. 167.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_220" href="#FNanchor_220" class="label">[220]</a> An. 13. Eliz. c. 7. An. 1. James I. cap. 15. 21. James I. cap. 19. 5. George II. c. 30.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_221" href="#FNanchor_221" class="label">[221]</a> Coke on Littleton, book 1. chap. 2. § 13.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_222" href="#FNanchor_222" class="label">[222]</a> Wright on tenures, p. 186. et seq.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_223" href="#FNanchor_223" class="label">[223]</a> Coke’s institutes, part 2. p. 332. Ruffhead, vol. 1. p. 79.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_224" href="#FNanchor_224" class="label">[224]</a> Coke’s institutes, part 2. p. 336.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_225" href="#FNanchor_225" class="label">[225]</a> Hume’s hist. of England, vol. 1. Carte’s hist. 382, 383, 384, 420. Brady’s hist. -append.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_226" href="#FNanchor_226" class="label">[226]</a> Selden, tit. hon. part 2. chap. 5. § 3.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_227" href="#FNanchor_227" class="label">[227]</a> Ibid. § 8. and 9.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_228" href="#FNanchor_228" class="label">[228]</a> Coke on Littleton, lib. 3. chap. 13. § 703, 709.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_229" href="#FNanchor_229" class="label">[229]</a> Lib. 3. chap. 13. § 720.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_230" href="#FNanchor_230" class="label">[230]</a> Saintgerman, cap. 50.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_231" href="#FNanchor_231" class="label">[231]</a> Bacon, voc. Fine and Recovery. An. 4. Hen. VII. c. 24. ap. Ruffhead, vol. 2. -p. 79.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_232" href="#FNanchor_232" class="label">[232]</a> An. 32. Hen. VIII. c. 36. ap. Ruffhead, vol. 2. p. 296.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_233" href="#FNanchor_233" class="label">[233]</a> Ruffhead, vol. 2. p. 216.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_234" href="#FNanchor_234" class="label">[234]</a> Hottoman. Franco-Gall. Boulainvilliers on the antient parliaments of France. -Fortescue de laud. leg. Angl. cap. 34. 36.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_235" href="#FNanchor_235" class="label">[235]</a> Craig, de feud. lib. 1. dieges. 16. Du Cange voc. Dominicum.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_236" href="#FNanchor_236" class="label">[236]</a> Madox, hist. Excheq. Carte’s hist. of England, vol. 1. p. 423.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_237" href="#FNanchor_237" class="label">[237]</a> Carte, ibid. Hume, append. 2. Madox, antiq. of the Excheq. passim.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_238" href="#FNanchor_238" class="label">[238]</a> Firma Burgi, ch. 4. 5. 11.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_239" href="#FNanchor_239" class="label">[239]</a> Bibliotheca politica, Dial. 5. and 10.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_240" href="#FNanchor_240" class="label">[240]</a> Biblioth. polit. 320. 330. 333. 339. 356. 357. 370.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_241" href="#FNanchor_241" class="label">[241]</a> L’Esprit des loix, liv. 11 chap. 6.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_242" href="#FNanchor_242" class="label">[242]</a> Asser, de Gestis Alfredi. Tyrrel, gen. introduct. to the hist. of England.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_243" href="#FNanchor_243" class="label">[243]</a> Lib. 3. cap. 9. fol. 107.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_244" href="#FNanchor_244" class="label">[244]</a> Giannone’s hist. of Naples, lib. 11. chap. 2. Hume’s hist. of England, vol. 2. -p. 441.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_245" href="#FNanchor_245" class="label">[245]</a> Dissertatio Seldeni ad Fletam, cap. 7.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_246" href="#FNanchor_246" class="label">[246]</a> Bacon, hist. and polit. discourse on the laws and government of England, part 2. -ch. 1. and 2. The reign of Rich. II. in Kennet’s collection of historians.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_247" href="#FNanchor_247" class="label">[247]</a> Hume’s hist. of England, vol. 2.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_248" href="#FNanchor_248" class="label">[248]</a> Camden’s reign of Elizabeth, passim.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_249" href="#FNanchor_249" class="label">[249]</a> Wilson’s life and reign of James I. ap. Kennet.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_250" href="#FNanchor_250" class="label">[250]</a> Bibliotheca politica, dial. 11. Bacon, hist. and political discourse, part 1. chap. 64.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_251" href="#FNanchor_251" class="label">[251]</a> Madox, Antiq. of the Exchequer, vol. 1. p. 197, 198. Baronia Anglica, book 1. -chap. 1. Spelman, voc. Baro.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_252" href="#FNanchor_252" class="label">[252]</a> Brady’s introduction, in append. Baronia Anglica, p. 33.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_253" href="#FNanchor_253" class="label">[253]</a> Selden’s titles of honour, part 2. chap. 5. Baronia Anglica, book 1. chap. 2.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_254" href="#FNanchor_254" class="label">[254]</a> Camden, Britan. p. 122.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_255" href="#FNanchor_255" class="label">[255]</a> Selden, tit. Honour, part 2. chap. 5. § 21.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_256" href="#FNanchor_256" class="label">[256]</a> Baronia Anglica, book 2. chap. 1. Selden’s tit. Hon. part 2. chap. 5. § 22.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_257" href="#FNanchor_257" class="label">[257]</a> Coke on Littleton, lib. 2. chap. 8. § 159. Baronia Anglica, p. 164. et seq.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_258" href="#FNanchor_258" class="label">[258]</a> Coke on Littleton, p. 166. St. Amand on the legislative power of England, p. 193.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_259" href="#FNanchor_259" class="label">[259]</a> Selden, tit. Hon. part 2. chap. 5. § 27. and 28.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_260" href="#FNanchor_260" class="label">[260]</a> Camden’s Introd. to his Britan. p. 234. et seq. Baronia Anglica. Selden, tit. hon. -part 2. chap. 5. § 29. 30. 31.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_261" href="#FNanchor_261" class="label">[261]</a> Selden, tit. hon. part 2. ch. 1.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_262" href="#FNanchor_262" class="label">[262]</a> Du Bos, hist. critique de L’etablissments de la monarchie Françoise, tom. 3. 497, &c. -Mascou’s hist. of the antient Germans, b. 16. § 36.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_263" href="#FNanchor_263" class="label">[263]</a> Spelman’s treatise of Feuds and Tenures.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_264" href="#FNanchor_264" class="label">[264]</a> Selden, tit. hon. part 2. ch. 5.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_265" href="#FNanchor_265" class="label">[265]</a> Selden, tit. hon. part 2. ch. 5. § 10.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_266" href="#FNanchor_266" class="label">[266]</a> Baronia Anglica, p. 150, et seq. Selden, tit. hon. part 2. chap 5. § 8. Bacon, hist. -and polit. discourse on the laws of England, part 1. ch. 29.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_267" href="#FNanchor_267" class="label">[267]</a> Coke on Littleton, lib. 2. § 135. Selden, tit. hon. part 2. ch. 5. § 19.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_268" href="#FNanchor_268" class="label">[268]</a> Robertson’s hist. of Scotland, book 1. p. 68. Essays on Brit. Antiq. Ess. 2.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_269" href="#FNanchor_269" class="label">[269]</a> Gibson, cod. jur. eccles. Angl. vol. 1. p. 143.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_270" href="#FNanchor_270" class="label">[270]</a> Privileges of the Baronage, by Selden, ch. 2. p. 1537 of the edition of his works by -Wilkins. Coke’s institute, second part, p. 49. and 50.; third part, p. 26.-31.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_271" href="#FNanchor_271" class="label">[271]</a> Spelman, voc. Armiger. Du Cange, voc. Armigiri.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_272" href="#FNanchor_272" class="label">[272]</a> Selden, tit. hon. part 2. ch. 5. § 33. Camden’s introd. to his Britan, 242.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_273" href="#FNanchor_273" class="label">[273]</a> Selden, tit. hon. part 2. ch. 5. § 39.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_274" href="#FNanchor_274" class="label">[274]</a> Spelm. reliq. dissert. de milite. Coke’s inst. part 2. p. 593.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_275" href="#FNanchor_275" class="label">[275]</a> Selden, tit. hon. part 2. ch. 5. § 46. Cotton’s posthumous works.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_276" href="#FNanchor_276" class="label">[276]</a> Madox, Firma Burgi, ch. 1.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_277" href="#FNanchor_277" class="label">[277]</a> Madox, Firma Burgi, ch. 2. Ruffhead, vol. 1. p. 4.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_278" href="#FNanchor_278" class="label">[278]</a> Ruffhead, vol. 1. p. 156.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_279" href="#FNanchor_279" class="label">[279]</a> Gurdon’s history of Parliament. Tyrrel’s introduction to his history. L. L. Anglo -Saxon, ap. Wilkins.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_280" href="#FNanchor_280" class="label">[280]</a> History of the common law of England, p. 107.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_281" href="#FNanchor_281" class="label">[281]</a> Biblioth, polit. dial. 6, 7, 8. Hume, vol. 1.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_282" href="#FNanchor_282" class="label">[282]</a> Ruffhead, vol. 1. p. 544.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_283" href="#FNanchor_283" class="label">[283]</a> Spelman, voc. Parlamentum. Hales on Parliaments. Ellys on Temporal Liberty.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_284" href="#FNanchor_284" class="label">[284]</a> Elsringe, on the method of passing bills in Parliament. Gurdon’s hist. of Parliament.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_285" href="#FNanchor_285" class="label">[285]</a> Ruffhead’s preface to the statutes.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_286" href="#FNanchor_286" class="label">[286]</a> Kennet’s English Historians, vol. 2. p. 587, 606. Carte, vol. 2. p. 828. Hume, -vol. 2. and 3.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_287" href="#FNanchor_287" class="label">[287]</a> Lord Bacon’s life of Henry VII. ap. Kennet, vol. 2. p. 612.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_288" href="#FNanchor_288" class="label">[288]</a> Irish statutes, vol. 1. p. 23. Coke, 4. instit. chap. 76.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_289" href="#FNanchor_289" class="label">[289]</a> Irish Statutes, p. 48.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_290" href="#FNanchor_290" class="label">[290]</a> Irish Stat. vol. 1. p. 143.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_291" href="#FNanchor_291" class="label">[291]</a> Coke on Littleton, lib. 2. ch. 11. § 172.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_292" href="#FNanchor_292" class="label">[292]</a> Bracton, lib. 4. cap. 28.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_293" href="#FNanchor_293" class="label">[293]</a> Reliq. Spelm. 251. Barington on the statutes 270. et seq. Gurdon’s hist. of Court-Baron -and Court-Leet, p. 573.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_294" href="#FNanchor_294" class="label">[294]</a> Coke on Littleton, lib. 2. chap. 11.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_295" href="#FNanchor_295" class="label">[295]</a> Lib. 2. § 194.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_296" href="#FNanchor_296" class="label">[296]</a> Littleton, § 187, 188.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_297" href="#FNanchor_297" class="label">[297]</a> Littleton, § 174.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_298" href="#FNanchor_298" class="label">[298]</a> Coke on Littleton, lib. 2. ch. 11.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_299" href="#FNanchor_299" class="label">[299]</a> Cap. 42.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_300" href="#FNanchor_300" class="label">[300]</a> Wilkins, Leg. Anglosax.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_301" href="#FNanchor_301" class="label">[301]</a> Formulare Anglicanum, tit. Grants and -Manumissions of Villeins.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_302" href="#FNanchor_302" class="label">[302]</a> Hickes. dissert. epist. p. 13. et seq. Brady’s hist. p. 82. Fitzherbert’s natura -brevium, p. 187, 189, 190. Cowell’s interpreter, voc. copiehould. Coke on Littleton, -lib. 2. chap. 11.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_303" href="#FNanchor_303" class="label">[303]</a> Carte, hist. of England, vol. 2. p. 844. 845. 846.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_304" href="#FNanchor_304" class="label">[304]</a> Fitzherbert’s natura brevium, p. 28. Kitchen on Courts.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_305" href="#FNanchor_305" class="label">[305]</a> Coke on Littleton, lib. 1. chap. 8.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_306" href="#FNanchor_306" class="label">[306]</a> Madox, Hist. of the Excheq. vol. 1. p. 295. Cowell’s Interpreter, voc. Demaine. -Spel. Gloss. voc. Dominicum.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_307" href="#FNanchor_307" class="label">[307]</a> Bacon’s discourse on the Laws and Government of England, part 1. chap. 16.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_308" href="#FNanchor_308" class="label">[308]</a> Tyrrel’s general Introduction to his Hist. of England. Hume, append. 1.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_309" href="#FNanchor_309" class="label">[309]</a> Spelm. Gloss. voc. Comitatus, hundredus, et trithinga. Tyrrel’s introduction to his -Hist. Carte’s Hist. vol. 1. p. 310. Spelm. life of Alfred. Gurdon’s Hist. of Court -Baron and Court Leet.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_310" href="#FNanchor_310" class="label">[310]</a> Gurdon’s hist. of Court Baron and Court Leet. Cowel’s Interpreter, voc. Frank-pledge. -Bacon’s Discourse on the Laws and Government of England, part. 1. chap. 23.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_311" href="#FNanchor_311" class="label">[311]</a> Bacon, chap. 24.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_312" href="#FNanchor_312" class="label">[312]</a> Bacon’s discourse on the Laws and Government of England, chap. 25, 26.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_313" href="#FNanchor_313" class="label">[313]</a> Dugdale’s Origines Juridiciales, chap. 9, 10, 11, 12, 13, 14, 15.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_314" href="#FNanchor_314" class="label">[314]</a> Madox, Hist. of Exchequer, chap. 1.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_315" href="#FNanchor_315" class="label">[315]</a> Madox, Hist. Excheq. Dalrymple on Feudal Property, ch. 7. § 1.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_316" href="#FNanchor_316" class="label">[316]</a> Dugdale, orig. Jurid. ch. 25. 26. Nicholson, præfat. ad leg. Anglo. Sax. Du Cange, -voc. Duellum et Juramentum. Spel. voc. Campus et Judicium Dei. Muratori antiq. Ital. -Dissertat. 38.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_317" href="#FNanchor_317" class="label">[317]</a> Stiernhook de jure vetusto Sueonum et Gothorum. c. 4. Dissert. on the antiquity of -the English Constitution, part. 4. § 4.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_318" href="#FNanchor_318" class="label">[318]</a> Mirroir des Justices, chap. 2.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_319" href="#FNanchor_319" class="label">[319]</a> Tacit. de Mor. Germ. c. 21. L. L. Wal. p. 192. 194. L. L. Anglo, Sax. ap. Wilkins -p. 18. 20. 41. Hickes. dissert. Epist. p. 110. Lindenbrog, p. 1404.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_320" href="#FNanchor_320" class="label">[320]</a> Selden’s tit. of Hon. part 2. ch. 5. Hume, vol. 1.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_321" href="#FNanchor_321" class="label">[321]</a> 1 Inst. 76. Bacon on the Government of Engl. p. 75. Saltern de antiq. leg. Brit. c. 8.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_322" href="#FNanchor_322" class="label">[322]</a> Spelman on Feuds and Tenures. ch. 6.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_323" href="#FNanchor_323" class="label">[323]</a> Taylor and Somner on Gavelkind, and Harris in his Hist. of Kent, p. 457.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_324" href="#FNanchor_324" class="label">[324]</a> Spel. gloss. voc. Burghbote et Brughbote.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_325" href="#FNanchor_325" class="label">[325]</a> Tyrrel’s Introd. p. 120. Spel. Reliq. p. 22.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_326" href="#FNanchor_326" class="label">[326]</a> Dr. Brady’s Glossary to his Tracts, p. 3. Spelman on Feuds and Tenures, p. 17. -and 18.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_327" href="#FNanchor_327" class="label">[327]</a> Madox, Hist. of the Exchequer, vol. 1. chap. 10. § 4.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_328" href="#FNanchor_328" class="label">[328]</a> Spelm. on Feuds and Tenures, chap. 21.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_329" href="#FNanchor_329" class="label">[329]</a> Wright on tenures, chap. 2.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_330" href="#FNanchor_330" class="label">[330]</a> Hale’s hist. Com. Law, chap. 5, and 7.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_331" href="#FNanchor_331" class="label">[331]</a> Bacon’s hist. and polit. discourse, chap. 44, 45. &c. Tyrrel’s hist.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_332" href="#FNanchor_332" class="label">[332]</a> LL. Anglo Saxon, ap. Wilkins, p. 228. Wright on tenures, p. 66.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_333" href="#FNanchor_333" class="label">[333]</a> P. 69.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_334" href="#FNanchor_334" class="label">[334]</a> LL. Anglo. Saxon. ap. Wilkins. Wright on tenures, p. 72.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_335" href="#FNanchor_335" class="label">[335]</a> Madox, Baronia Angl. p. 25. Seld. tit. hon. part 2. ch. 5.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_336" href="#FNanchor_336" class="label">[336]</a> Dugdale’s orig. jurid. c. 34. Madox, hist. of Excheq. ch. 2. La coutume de Normandie.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_337" href="#FNanchor_337" class="label">[337]</a> Baron Gilbert’s hist. of Excheq. p. 55. Lord Littleton’s hist. of Henry II. 4to. -vol. 1. p. 43. 457. Carte, vol. 1. p. 419. 420.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_338" href="#FNanchor_338" class="label">[338]</a> Madox, Excheq. ch. 1. Bacon on the laws and government of England, part 1. -ch. 59. and 66. Brady, Carte and Tyrrel.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_339" href="#FNanchor_339" class="label">[339]</a> Hale, hist. com. law, ch. 7. Bacon, hist. and polit. discourse, p. 129. &c.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_340" href="#FNanchor_340" class="label">[340]</a> Tyrrel’s Introduct. to his hist.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_341" href="#FNanchor_341" class="label">[341]</a> Carte, vol. 1. p. 452, 453.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_342" href="#FNanchor_342" class="label">[342]</a> Kennet’s historians, and Carte.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_343" href="#FNanchor_343" class="label">[343]</a> Hale, hist. com. law, chap. 7. Carte, vol. 1. p. 480. et seq.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_344" href="#FNanchor_344" class="label">[344]</a> Carte; and Kennet’s historians.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_345" href="#FNanchor_345" class="label">[345]</a> Kennet’s historians. Hume, vol. 1. p. 243.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_346" href="#FNanchor_346" class="label">[346]</a> Bacon, hist. and polit. disc. p. 103, &c. Carte, vol. 1. p. 525. et seq.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_347" href="#FNanchor_347" class="label">[347]</a> Kennet’s historians.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_348" href="#FNanchor_348" class="label">[348]</a> Hale, hist. com. law, chap. 7. Carte.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_349" href="#FNanchor_349" class="label">[349]</a> Gervas. de Tilbury, dial. de Scaccario.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_350" href="#FNanchor_350" class="label">[350]</a> Madox, hist. of Excheq. ch. 16.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_351" href="#FNanchor_351" class="label">[351]</a> Lib. 9. c. 4.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_352" href="#FNanchor_352" class="label">[352]</a> Coke on Littleton, fol. 153.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_353" href="#FNanchor_353" class="label">[353]</a> Ibid.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_354" href="#FNanchor_354" class="label">[354]</a> Bracton, lib. 4.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_355" href="#FNanchor_355" class="label">[355]</a> Hale’s hist. Com. Law, chap. 7. Dugdale, orig. jurid. p. 27. Hoveden, p. 590.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_356" href="#FNanchor_356" class="label">[356]</a> Hale’s hist. Com. Law, ch. 7.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_357" href="#FNanchor_357" class="label">[357]</a> Fitzherbert, Nat. brev. p. 41.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_358" href="#FNanchor_358" class="label">[358]</a> Dugdale, orig. jurid. chap. 20. Madox, hist. of Exchequer, chap. 3. § 10. -Bracton, lib. 3. chap. 10, 11. M. Paris, an. 1176.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_359" href="#FNanchor_359" class="label">[359]</a> 4. Instit. p. 184, 266. Hale, hist. com. law. chap. 7.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_360" href="#FNanchor_360" class="label">[360]</a> 2. Instit. p. 24. et seq. 4. Instit. p. 162. Selden’s notes on Hengham.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_361" href="#FNanchor_361" class="label">[361]</a> Dugdale, orig. jurid. chap. 17.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_362" href="#FNanchor_362" class="label">[362]</a> 4. Institute, p. 70. et seq.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_363" href="#FNanchor_363" class="label">[363]</a> d’Anver’s abrigement, vol. 2.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_364" href="#FNanchor_364" class="label">[364]</a> 4. Institute, p. 79.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_365" href="#FNanchor_365" class="label">[365]</a> Dugdale, orig. jurid. ch. 16. 4. Inst. p. 80.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_366" href="#FNanchor_366" class="label">[366]</a> 4. Inst. p. 79. 80. 84. 88.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_367" href="#FNanchor_367" class="label">[367]</a> Ibid. p. 225. 113. 80. 76.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_368" href="#FNanchor_368" class="label">[368]</a> 4. Inst. p. 155. 79. 206.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_369" href="#FNanchor_369" class="label">[369]</a> 4 Inst. ch. 8. Bacon, hist. and polit. discourse, part. 2. ch. 18.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_370" href="#FNanchor_370" class="label">[370]</a> Baron Gilbert’s history of the Court of Common Pleas. Madox, hist. Excheq. ch. 2. -sect. 9. 2 Institute, p. 53. 407. 4 Institute, ch. 8.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_371" href="#FNanchor_371" class="label">[371]</a> 2 Institute, p. 405.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_372" href="#FNanchor_372" class="label">[372]</a> 2. Institute, p. 21, 22.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_373" href="#FNanchor_373" class="label">[373]</a> Bracton, lib. 1. cap. 1. Fortescue de laud. leg. Angliæ, cap. 34.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_374" href="#FNanchor_374" class="label">[374]</a> Baron Gilbert, Hist. of the court of Com. Pleas. 4. Inst. ch. 10.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_375" href="#FNanchor_375" class="label">[375]</a> 2d. Inst. p. 196. 197. 255. 551.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_376" href="#FNanchor_376" class="label">[376]</a> 4th Inst. ch. xi.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_377" href="#FNanchor_377" class="label">[377]</a> 4th Inst. ch. 13.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_378" href="#FNanchor_378" class="label">[378]</a> Hales of the power and jurisdiction of Parliament. Selden of the Judicature of Parliament. -See his works vol. 3. 4. Inst. ch. 1.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_379" href="#FNanchor_379" class="label">[379]</a> Giannone’s hist. of Naples, b. 1. Bower’s hist. of the Popes, vol. 1.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_380" href="#FNanchor_380" class="label">[380]</a> Lord Lyttelton’s hist. of Henry II. b. 3.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_381" href="#FNanchor_381" class="label">[381]</a> Daniel, ap. Kennet. Carte.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_382" href="#FNanchor_382" class="label">[382]</a> Hoveden. edit. Savil. 494-549. Mat. Paris. an. 1164. Lord Lyttelton’s hist. of -Henry II. book 3. Brady’s history.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_383" href="#FNanchor_383" class="label">[383]</a> Hume, Carte, Lyttelton, &c.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_384" href="#FNanchor_384" class="label">[384]</a> Hale, hist. com. law, chap. 7.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_385" href="#FNanchor_385" class="label">[385]</a> Mare Claus. 386. Kennet’s historians. Hume. Carte.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_386" href="#FNanchor_386" class="label">[386]</a> Brady, Daniel, Tyrrel, and the general histories of England.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_387" href="#FNanchor_387" class="label">[387]</a> Kennet’s historians. Hume. Carte.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_388" href="#FNanchor_388" class="label">[388]</a> Blackstone’s discourse concerning the hist. of the charters. Gurdon’s hist. of Parliament. -Hale, hist. com. law, ch. 7.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_389" href="#FNanchor_389" class="label">[389]</a> Sir Robert Atkins on the dispensing power. Bibliotheca Politica. The general histories -of England.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_390" href="#FNanchor_390" class="label">[390]</a> Ruffhead, vol. 1.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_391" href="#FNanchor_391" class="label">[391]</a> Lib. 3. p. 129. 137.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_392" href="#FNanchor_392" class="label">[392]</a> Cap. 5.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_393" href="#FNanchor_393" class="label">[393]</a> Lib. 1. cap. 28.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_394" href="#FNanchor_394" class="label">[394]</a> Cap. 5.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_395" href="#FNanchor_395" class="label">[395]</a> 2 Inst. p. 37.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_396" href="#FNanchor_396" class="label">[396]</a> 2 Inst. 38. 41. Barrington on the Statutes, p. 15. 16.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_397" href="#FNanchor_397" class="label">[397]</a> Mirror, cap. 5. sect. 2. Glanvil, lib. 14. cap. 3. Bracton, lib. 3. p. 121. -Fleta, lib. 1. cap. 23.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_398" href="#FNanchor_398" class="label">[398]</a> 2 Inst. p. 43. 45.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_399" href="#FNanchor_399" class="label">[399]</a> 2. Institut. p. 48. 49.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_400" href="#FNanchor_400" class="label">[400]</a> 2. Institut. p. 51.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_401" href="#FNanchor_401" class="label">[401]</a> 2 Inst. p. 51. 55.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_402" href="#FNanchor_402" class="label">[402]</a> Father Paul, of beneficiary matters.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_403" href="#FNanchor_403" class="label">[403]</a> 4 Institut.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_404" href="#FNanchor_404" class="label">[404]</a> 2 Inst. p. 46.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_405" href="#FNanchor_405" class="label">[405]</a> 2 Institut. p. 51.-55.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_406" href="#FNanchor_406" class="label">[406]</a> 2 Inst. p. 47.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_407" href="#FNanchor_407" class="label">[407]</a> 2 Inst. p. 47.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_408" href="#FNanchor_408" class="label">[408]</a> Ibid.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_409" href="#FNanchor_409" class="label">[409]</a> 2 Inst. p. 48.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_410" href="#FNanchor_410" class="label">[410]</a> 2 Inst. p. 48.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_411" href="#FNanchor_411" class="label">[411]</a> 2 Institut. p. 55, 56.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_412" href="#FNanchor_412" class="label">[412]</a> 2 Institut. p. 56.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_413" href="#FNanchor_413" class="label">[413]</a> 2 Institut. p. 57. et seq. Barrington on the statutes. p. 23. 25.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_414" href="#FNanchor_414" class="label">[414]</a> 2 Institut, p. 64.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_415" href="#FNanchor_415" class="label">[415]</a> 2 Inst. p. 65.-67.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_416" href="#FNanchor_416" class="label">[416]</a> 2 Inst. p. 68. Barrington, p. 25.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_417" href="#FNanchor_417" class="label">[417]</a> Ibid. p. 68. 69.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_418" href="#FNanchor_418" class="label">[418]</a> 2 Inst. p. 69. 74.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_419" href="#FNanchor_419" class="label">[419]</a> 2 Inst. p. 74, 75. Barrington, p. 27.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_420" href="#FNanchor_420" class="label">[420]</a> Ibid. p. 76. See also Inst. lib. 2. cap. Escuage. Barrington, p. 28.-31.</p> - -</div> - -<div class="footnote"> - -<p><a id="Footnote_421" href="#FNanchor_421" class="label">[421]</a> 2 Inst. p. 76.-78.</p> - -</div> - -</div> - -<hr class="chap x-ebookmaker-drop"> - -<div class="chapter"> - -<p><span class="pagenum"><a id="Page_391"></a>[391]</span></p> - -<h2 class="nobreak" id="INDEX">INDEX.</h2> - -</div> - -<ul> - -<li class="ifrst">A</li> - -<li class="indx">Abbots, <a href="#Page_202">202</a></li> - -<li class="indx">Abeyance, <a href="#Page_136">136</a></li> - -<li class="indx">Actions of debt, <a href="#Page_40">40</a></li> - -<li class="indx">⸺ on the case, <a href="#Page_40">40</a>, <a href="#Page_310">310</a></li> - -<li class="indx">⸺ personal, <a href="#Page_301">301</a>, <a href="#Page_315">315</a></li> - -<li class="indx">⸺ real, <a href="#Page_314">314</a>, <a href="#Page_366">366</a></li> - -<li class="indx">⸺ mixed, <a href="#Page_315">315</a></li> - -<li class="indx">⸺ possessory and petitory, <a href="#Page_292">292</a></li> - -<li class="indx">⸺ to be tried by the judges itinerant, <a href="#Page_298">298</a></li> - -<li class="indx">⸺ of waste, <a href="#Page_315">315</a></li> - -<li class="indx">⸺ of ejectment, <a href="#Page_315"><i>ibid.</i></a></li> - -<li class="indx">Acts of State. See <a href="#proclamations">proclamations</a></li> - -<li class="indx" id="Admiralty">Admiralty jurisdiction, <a href="#Page_331">331</a></li> - -<li class="indx">⸺ court of, <a href="#Page_362">362</a></li> - -<li class="indx">Advowsons of Bishoprics, <a href="#Page_78">78</a></li> - -<li class="indx">⸺ right of nomination, in whom lodged, <a href="#Page_79">79</a></li> - -<li class="indx">⸺ presentative, <a href="#Page_81">81</a></li> - -<li class="indx">⸺ collative, <a href="#Page_82">82</a></li> - -<li class="indx">⸺ donative, <a href="#Page_82"><i>ibid.</i></a></li> - -<li class="indx">⸺ now subsisting in England, <a href="#Page_84">84</a></li> - -<li class="indx">⸺ how forfeited, <a href="#Page_85">85</a></li> - -<li class="indx">Ætius, <a href="#Page_46">46</a></li> - -<li class="indx">Agistment when due to the Clergy, <a href="#Page_94">94</a></li> - -<li class="indx">Aids and subsidies, <a href="#Page_174">174</a></li> - -<li class="indx">Alias writ of, <a href="#Page_357">357</a></li> - -<li class="indx">Alans, <a href="#Page_43">43</a></li> - -<li class="indx">Alarick, <a href="#Page_44">44</a>, <a href="#Page_45">45</a></li> - -<li class="indx">Alexander III., <a href="#Page_322">322</a></li> - -<li class="indx">Alexander Severus, <a href="#Page_21">21</a></li> - -<li class="indx">Alfred makes a law for the payment of tithes, <a href="#Page_90">90</a></li> - -<li class="indx">⸺ his boast of the liberty he transmitted to England, <a href="#Page_180">180</a></li> - -<li class="indx">⸺ divided England into counties, hundreds, and tithings, <a href="#Page_198">198</a>, <a href="#Page_245">245</a></li> - -<li class="indx">Alienation, <a href="#Page_66">66</a></li> - -<li class="indx">⸺ of lands, <a href="#Page_80">80</a>, <a href="#Page_81">81</a>, <a href="#Page_146">146</a>, <a href="#Page_147">147</a>, <a href="#Page_148">148</a>, <a href="#Page_149">149</a>, <a href="#Page_150">150</a>, <a href="#Page_153">153</a>, <a href="#Page_157">157</a>, <a href="#Page_161">161</a>, <a href="#Page_384">384</a></li> - -<li class="indx"><span class="pagenum"><a id="Page_392"></a>[392]</span>⸺ in mortmain, <a href="#Page_387">387</a></li> - -<li class="indx">Allodial. See <a href="#estates_allodial">estates allodial</a></li> - -<li class="indx">Allodians attach themselves to their neighbouring Lords, <a href="#Page_114">114</a></li> - -<li class="indx">Amalfi, a copy of the civil law found there, <a href="#Page_180">180</a></li> - -<li class="indx">Amerciaments, how settled by Magna Charta, <a href="#Page_346">346</a></li> - -<li class="indx">Appeals, where properly to be brought, <a href="#Page_301">301</a></li> - -<li class="indx">Appeal for murder, <a href="#Page_186">186</a></li> - -<li class="indx">Arabs, erect academies for the study of their laws, <a href="#Page_8">8</a></li> - -<li class="indx">Armigeri, <a href="#Page_206">206</a></li> - -<li class="indx">Arresting by mittimus, <a href="#Page_369">369</a></li> - -<li class="indx">⸺ persons not authorised by warrant, <a href="#Page_370">370</a></li> - -<li class="indx">Assemblies, general. The share they held in the government in the 13th century, <a href="#Page_33">33</a></li> - -<li class="indx">⸺ manner of admitting members therein, <a href="#Page_34">34</a></li> - -<li class="indx">⸺ crimes cognizable thereby, <a href="#Page_34"><i>ibid.</i></a></li> - -<li class="indx">Assessors in Germany, <a href="#Page_96">96</a></li> - -<li class="indx">Assize, trial by, <a href="#Page_250">250</a></li> - -<li class="indx">⸺ of novel disseisin, <a href="#Page_291">291</a></li> - -<li class="indx">⸺ writ of, <a href="#Page_292">292</a></li> - -<li class="indx">Athenians, their multiplicity of laws, <a href="#Page_4">4</a></li> - -<li class="indx">Ataulphus, <a href="#Page_45">45</a></li> - -<li class="indx">Athol, Duke of, <a href="#Page_193">193</a></li> - -<li class="indx">Attainder of felony, <a href="#Page_348">348</a></li> - -<li class="indx">Attornment, <a href="#Page_119">119</a></li> - -<li class="indx">Attorney-General, <a href="#Page_318">318</a></li> - -<li class="ifrst">B</li> - -<li class="indx">Bail, superior power in the Court of King’s Bench to take it, <a href="#Page_301">301</a></li> - -<li class="indx">Baron of England, its original import, <a href="#Page_187">187</a></li> - -<li class="indx">⸺ quantum of revenue to qualify for attendance in parliament, <a href="#Page_188">188</a></li> - -<li class="indx">Barons, oppose the arbitrary measures of King John, <a href="#Page_339">339</a></li> - -<li class="indx">⸺ of the Exchequer, <a href="#Page_318">318</a></li> - -<li class="indx">Barones majores & minores, <a href="#Page_189">189</a></li> - -<li class="indx">⸺ their rules of descent, <a href="#Page_193">193</a></li> - -<li class="indx">⸺ minores privileges obtained by writ of election to parliament, <a href="#Page_192">192</a></li> - -<li class="indx">Baronets, by whom first created, <a href="#Page_209">209</a></li> - -<li class="indx">Baronies by tenure, <a href="#Page_188">188</a></li> - -<li class="indx">⸺ long since worn out among the laity, <a href="#Page_190">190</a></li> - -<li class="indx">Barristers at law, <a href="#Page_313">313</a></li> - -<li class="indx">Bastards, <a href="#Page_23">23</a></li> - -<li class="indx">Becket, Thomas a, <a href="#Page_322">322</a>, <a href="#Page_327">327</a></li> - -<li class="indx">Beauchamp, John, the first peer created by patent, <a href="#Page_193">193</a></li> - -<li class="indx"><span class="pagenum"><a id="Page_393"></a>[393]</span>Benefices, or grants of land, wherefore so called, <a href="#Page_49">49</a></li> - -<li class="indx">⸺ improper, <a href="#Page_68">68</a></li> - -<li class="indx">⸺ incorporeal, <a href="#Page_78">78</a></li> - -<li class="indx">Beneficiary law, <a href="#Page_23">23</a></li> - -<li class="indx">⸺ estates, <a href="#Page_113">113</a></li> - -<li class="indx">Berytus, its famous academy, <a href="#Page_7">7</a></li> - -<li class="indx">Bishops, how chosen in the infancy of Christianity, <a href="#Page_78">78</a></li> - -<li class="indx">⸺ their ancient revenue, <a href="#Page_80">80</a></li> - -<li class="indx">⸺ allocate the tithes in aid of the glebe, <a href="#Page_81">81</a></li> - -<li class="indx">⸺ retain the general cure of souls, <a href="#Page_81"><i>ibid.</i></a></li> - -<li class="indx">⸺ their seats in parliament, whence derived, <a href="#Page_202">202</a>, <a href="#Page_203">203</a></li> - -<li class="indx">Bishop’s court, originally joined to the Sheriff’s, <a href="#Page_247">247</a></li> - -<li class="indx" id="Bishops_of_Rome">Bishops of Rome, their artful conduct; to obtain the supremacy, <a href="#Page_83">83</a></li> - -<li class="indx">⸺ dismember bishoprics, <a href="#Page_83"><i>ibid.</i></a></li> - -<li class="indx">⸺ attempt to over-rule general councils, <a href="#Page_83"><i>ibid.</i></a></li> - -<li class="indx">⸺ practise upon sovereign Princes, <a href="#Page_83">83</a></li> - -<li class="indx">⸺ encourages of the civil law, <a href="#Page_181">181</a></li> - -<li class="indx">⸺ their bull ineffectual to silence the people of England, when incensed against Richard II., <a href="#Page_182">182</a>, <a href="#Page_183">183</a></li> - -<li class="indx">⸺ assume a dispensing power, <a href="#Page_186">186</a></li> - -<li class="indx">⸺ their views respecting England, <a href="#Page_272">272</a></li> - -<li class="indx">⸺ lord it over the Kings of Europe, <a href="#Page_320">320</a></li> - -<li class="indx">⸺ compel King John to surrender his crown, <a href="#Page_338">338</a></li> - -<li class="indx">⸺ dispose of the English benefices by provisorship, <a href="#Page_344">344</a></li> - -<li class="indx">Blackstone (Judge), <a href="#Page_8">8</a>, <a href="#Page_9">9</a></li> - -<li class="indx">Bodies corporate, <a href="#Page_211">211</a></li> - -<li class="indx">Bracton, <a href="#Page_130">130</a>, <a href="#Page_180">180</a>, <a href="#Page_225">225</a>, <a href="#Page_293">293</a>, <a href="#Page_299">299</a>, <a href="#Page_314">314</a>, <a href="#Page_349">349</a></li> - -<li class="indx">Brevia testata, <a href="#Page_60">60</a></li> - -<li class="indx">Britain, Great. Whence its multiplied laws, <a href="#Page_5">5</a>, <a href="#Page_6">6</a></li> - -<li class="indx">⸺ its peculiar advantages, <a href="#Page_6">6</a></li> - -<li class="indx">Britton, <a href="#Page_180">180</a>, <a href="#Page_349">349</a></li> - -<li class="indx">Brothers, not the heirs one of another, <a href="#Page_140">140</a></li> - -<li class="indx">Brunechild, <a href="#Page_111">111</a></li> - -<li class="indx">Burghers. See <a href="#Citizens">Citizens</a></li> - -<li class="indx">Burgundians, <a href="#Page_4">4</a>, <a href="#Page_43">43</a>, <a href="#Page_46">46</a></li> - -<li class="indx">Butlerage of England, <a href="#Page_72">72</a></li> - -<li class="indx"><span class="pagenum"><a id="Page_394"></a>[394]</span>Bye-Laws, <a href="#Page_211">211</a></li> - -<li class="ifrst">C</li> - -<li class="indx">Canon law, <a href="#Page_13">13</a>, <a href="#Page_180">180</a>, <a href="#Page_203">203</a>, <a href="#Page_345">345</a></li> - -<li class="indx">Capias, writ of, <a href="#Page_357">357</a></li> - -<li class="indx">⸺ for a fine, <a href="#Page_379">379</a></li> - -<li class="indx">Capitula itineris, <a href="#Page_298">298</a></li> - -<li class="indx">Castleguard, <a href="#Page_50">50</a></li> - -<li class="indx">Castration, <a href="#Page_252">252</a></li> - -<li class="indx">Celtiberians. See <a href="#Spaniards">Spaniards</a>, <a href="#Page_22">22</a></li> - -<li class="indx">Census, a tax among the Franks, <a href="#Page_47">47</a></li> - -<li class="indx">Chancellor of England, <a href="#Page_249">249</a></li> - -<li class="indx">⸺ his ancient office, <a href="#Page_305">305</a></li> - -<li class="indx">⸺ derivation of his name, <a href="#Page_305"><i>ibid.</i></a></li> - -<li class="indx">⸺ of the Exchequer, <a href="#Page_318">318</a></li> - -<li class="indx">Chancery, court of, <a href="#Page_249">249</a>, <a href="#Page_300">300</a></li> - -<li class="indx">⸺ ordinary, <a href="#Page_304">304</a>, <a href="#Page_310">310</a></li> - -<li class="indx">⸺ extraordinary, <a href="#Page_364">364</a>, <a href="#Page_366">366</a></li> - -<li class="indx">Chapters, their origin, <a href="#Page_80">80</a></li> - -<li class="indx">Charles I. his claim of ship-money, <a href="#Page_172">172</a></li> - -<li class="indx">⸺ his conduct to the Earl of Bristol, <a href="#Page_190">190</a></li> - -<li class="indx">⸺ raises money by Knights fines, <a href="#Page_208">208</a></li> - -<li class="indx">Charles II. purchases the right of prisage of wines, <a href="#Page_73">73</a></li> - -<li class="indx">⸺ abolishes the feudal system, <a href="#Page_68">68</a>, <a href="#Page_134">134</a>, <a href="#Page_150">150</a></li> - -<li class="indx">Charles the Bald, <a href="#Page_114">114</a></li> - -<li class="indx">Charlemagne, <a href="#Page_80">80</a>, <a href="#Page_88">88</a></li> - -<li class="indx">Charters, <a href="#Page_211">211</a>, <a href="#Page_281">281</a></li> - -<li class="indx">Church benefices stiled improper feuds, <a href="#Page_68">68</a></li> - -<li class="indx">⸺ lands not secured by living evidence, <a href="#Page_60">60</a></li> - -<li class="indx">⸺ secured by brevia testata, <a href="#Page_60"><i>ibid.</i></a></li> - -<li class="indx">⸺ revenue of, how antiently distributed, <a href="#Page_80">80</a></li> - -<li class="indx">Churchmen. See <a href="#Clergy">Clergy</a></li> - -<li class="indx">Circuits established by Henry II., <a href="#Page_294">294</a>, <a href="#Page_298">298</a></li> - -<li class="indx" id="Citizens">Citizens of London, anciently stiled Barons, <a href="#Page_187">187</a></li> - -<li class="indx">⸺ their original state, <a href="#Page_209">209</a></li> - -<li class="indx">⸺ antiently no part of the body politic, <a href="#Page_210">210</a></li> - -<li class="indx">⸺ admitted to vote along with Knights of the Shires, <a href="#Page_211">211</a></li> - -<li class="indx">Civil law, <a href="#Page_12">12</a>, <a href="#Page_13">13</a>, <a href="#Page_170">170</a></li> - -<li class="indx">⸺ attempted to be introduced by the Princes of Europe, <a href="#Page_180">180</a></li> - -<li class="indx">⸺ and by the Pope, <a href="#Page_181">181</a></li> - -<li class="indx">⸺ became blended with the feudal, <a href="#Page_181"><i>ibid.</i></a></li> - -<li class="indx">⸺ destructive of freedom, <a href="#Page_181"><i>ibid.</i></a></li> - -<li class="indx"><span class="pagenum"><a id="Page_395"></a>[395]</span>⸺ opposed by the English parliament, <a href="#Page_181"><i>ibid.</i></a></li> - -<li class="indx">⸺ openly countenanced by Richard II., <a href="#Page_181">181</a></li> - -<li class="indx">⸺ obligations of a freeman to his patron thereby, <a href="#Page_234">234</a></li> - -<li class="indx">Claudian, <a href="#Page_46">46</a></li> - -<li class="indx" id="Clergy">Clergy, their wealth and importance, <a href="#Page_52">52</a></li> - -<li class="indx">⸺ their practice of redeeming slaves, <a href="#Page_53">53</a></li> - -<li class="indx">⸺ divested of their possessions by Martel, <a href="#Page_54">54</a></li> - -<li class="indx">⸺ supported by the voluntary contributions of the people, <a href="#Page_78">78</a></li> - -<li class="indx">⸺ their temporalities how derived, <a href="#Page_80">80</a></li> - -<li class="indx">⸺ feudal tenants to the bishop of their precinct, <a href="#Page_81">81</a></li> - -<li class="indx">⸺ rendered serviceable to the views of the Pope, <a href="#Page_83">83</a></li> - -<li class="indx">⸺ <span class="smcap">secular</span>, depressed under the Norman Kings, <a href="#Page_90">90</a></li> - -<li class="indx">⸺ the only lawyers in the reign of William II., <a href="#Page_91">91</a>, <a href="#Page_273">273</a></li> - -<li class="indx">⸺ banished the temporal courts, <a href="#Page_91">91</a></li> - -<li class="indx">⸺ celibacy of the, <a href="#Page_283">283</a></li> - -<li class="indx">⸺ the only people that could read and writ, <a href="#Page_273">273</a></li> - -<li class="indx">⸺ <span class="smcap">dignified</span>, their share in the legislation, <a href="#Page_267">267</a></li> - -<li class="indx">⸺ <span class="smcap">in France</span>, make one distinct state, <a href="#Page_202">202</a></li> - -<li class="indx">Clothair II., <a href="#Page_111">111</a></li> - -<li class="indx">Clovis, <a href="#Page_28">28</a>, <a href="#Page_48">48</a>, <a href="#Page_51">51</a>, <a href="#Page_52">52</a></li> - -<li class="indx">Coats of arms, <a href="#Page_206">206</a></li> - -<li class="indx">⸺ became hereditary, <a href="#Page_290">290</a></li> - -<li class="indx">Coiff of a Serjeant at law, conjecture about its origin, <a href="#Page_274">274</a></li> - -<li class="indx">Cojudge, <a href="#Page_96">96</a></li> - -<li class="indx">Coke, Lord, <a href="#Page_16">16</a>, <a href="#Page_72">72</a>, <a href="#Page_162">162</a>, <a href="#Page_190">190</a>, <a href="#Page_198">198</a>, <a href="#Page_217">217</a>, <a href="#Page_224">224</a>, <a href="#Page_233">233</a>, <a href="#Page_254">254</a>, <a href="#Page_257">257</a>, <a href="#Page_303">303</a>, <a href="#Page_340">340</a>, <a href="#Page_350">350</a>, <a href="#Page_353">353</a>, <a href="#Page_356">356</a>, <a href="#Page_365">365</a>, <a href="#Page_367">367</a>, <a href="#Page_371">371</a>, <a href="#Page_373">373</a>, <a href="#Page_375">375</a>, <a href="#Page_376">376</a>, <a href="#Page_378">378</a>, <a href="#Page_380">380</a>, <a href="#Page_384">384</a>, <a href="#Page_388">388</a></li> - -<li class="indx">Collation to a living, <a href="#Page_82">82</a></li> - -<li class="indx">Colleges, <a href="#Page_86">86</a></li> - -<li class="indx">Commons, house of, <a href="#Page_206">206</a>, <a href="#Page_319">319</a></li> - -<li class="indx">⸺ its present constitution compared with the feudal principles, <a href="#Page_211">211</a></li> - -<li class="indx">⸺ its advance in privilege and powers, <a href="#Page_214">214</a></li> - -<li class="indx">⸺ whether most inclined to popular or oligarchical influence, <a href="#Page_214">214</a>, <a href="#Page_217">217</a></li> - -<li class="indx">Common Pleas, court of, <a href="#Page_300">300</a>, <a href="#Page_312">312</a>, <a href="#Page_316">316</a></li> - -<li class="indx">Commentaries on the Laws, how multiplied by the Romans at the time of Justinian, <a href="#Page_4">4</a></li> - -<li class="indx">Commoner, his right of excepting against the Sheriffs return of a Jury, <a href="#Page_204">204</a></li> - -<li class="indx">Commerce, its effect in multiplying laws, <a href="#Page_3">3</a></li> - -<li class="indx">⸺ <span class="smcap">foreign</span>, <a href="#Page_153">153</a></li> - -<li class="indx">⸺ regarded by Magna Charta, <a href="#Page_380">380</a></li> - -<li class="indx">Commune Concilium, further the designs of William the Conqueror, <a href="#Page_264">264</a></li> - -<li class="indx"><span class="pagenum"><a id="Page_396"></a>[396]</span>Commissioners of Customs, <a href="#Page_317">317</a></li> - -<li class="indx">⸺ of Excise, <a href="#Page_317">317</a></li> - -<li class="indx">⸺ Appeals, <a href="#Page_317"><i>ibid.</i></a></li> - -<li class="indx">Companions of the King or Prince, <a href="#Page_30">30</a></li> - -<li class="indx">Constitutions of Clarendon, <a href="#Page_203">203</a>, <a href="#Page_275">275</a>, <a href="#Page_325">325</a></li> - -<li class="indx">Coutumier of Normandy, <a href="#Page_271">271</a></li> - -<li class="indx">Convocation of the Clergy, <a href="#Page_276">276</a></li> - -<li class="indx">Conrad Emperor, <a href="#Page_23">23</a></li> - -<li class="indx">Constable, High, of England, <a href="#Page_73">73</a></li> - -<li class="indx">Constantine Porphyrogenetus, <a href="#Page_22">22</a>, <a href="#Page_45">45</a></li> - -<li class="indx">Convivæ Regis, a title on whom conferred, <a href="#Page_51">51</a></li> - -<li class="indx">Copyhold tenants, <a href="#Page_324">324</a></li> - -<li class="indx">Corvinus, <a href="#Page_77">77</a></li> - -<li class="indx">Cork, kingdom of, <a href="#Page_201">201</a></li> - -<li class="indx">Covassals. See <a href="#Pares_curiae">Pares curiæ</a></li> - -<li class="indx">Councils general, <a href="#Page_83">83</a></li> - -<li class="indx">Counts, their origin and employments, <a href="#Page_51">51</a></li> - -<li class="indx">⸺ obtain grants of estates for life, <a href="#Page_57">57</a>, <a href="#Page_187">187</a></li> - -<li class="indx">Counts. See <a href="#Earldoms">Earldoms</a></li> - -<li class="indx">County court, <a href="#Page_104">104</a>, <a href="#Page_247">247</a>, <a href="#Page_248">248</a>, <a href="#Page_296">296</a></li> - -<li class="indx">Counties their origin, <a href="#Page_51">51</a></li> - -<li class="indx">⸺ <span class="smcap">Palatine</span>, <a href="#Page_199">199</a></li> - -<li class="indx">Court of wards, <a href="#Page_133">133</a>, <a href="#Page_317">317</a></li> - -<li class="indx">⸺ record, the King’s, its cognizance of covenants to alienate, <a href="#Page_149">149</a></li> - -<li class="indx">⸺ merchant, <a href="#Page_156">156</a></li> - -<li class="indx">⸺ of the constable, <a href="#Page_181">181</a></li> - -<li class="indx">⸺ admiralty, <a href="#Page_181"><i>ibid.</i></a></li> - -<li class="indx">⸺ Tourn, <a href="#Page_247">247</a>, <a href="#Page_271">271</a></li> - -<li class="indx">⸺ Sheriffs. See <a href="#Sheriff">Sheriff</a></li> - -<li class="indx">⸺ of the hundred, <a href="#Page_247">247</a></li> - -<li class="indx">⸺ Leet, <a href="#Page_247">247</a>, <a href="#Page_271">271</a></li> - -<li class="indx">⸺ Baron, <a href="#Page_271">271</a></li> - -<li class="indx">Courts of Westminster-Hall, <a href="#Page_10">10</a></li> - -<li class="indx">⸺ Ecclesiastical and temporal, their rights settled, <a href="#Page_275">275</a></li> - -<li class="indx">⸺ Martial, <a href="#Page_363">363</a></li> - -<li class="indx">⸺ of Record, what are such, <a href="#Page_271">271</a></li> - -<li class="indx">⸺ not of Record, what are such, <a href="#Page_271"><i>ibid.</i></a></li> - -<li class="indx">Craig, <a href="#Page_25">25</a></li> - -<li class="indx">Cranmer, <a href="#Page_92">92</a></li> - -<li class="indx">Creation money, <a href="#Page_199">199</a></li> - -<li class="indx">Crimes public, what among the Franks, <a href="#Page_40">40</a></li> - -<li class="indx">⸺ how punished, <a href="#Page_252">252</a></li> - -<li class="indx">Cross, sign of it used in the first written instruments, <a href="#Page_60">60</a></li> - -<li class="indx"><span class="pagenum"><a id="Page_397"></a>[397]</span>Curia Regis, judges in that court, <a href="#Page_249">249</a></li> - -<li class="indx">⸺ how appointed by William the Conqueror, <a href="#Page_270">270</a></li> - -<li class="indx">⸺ the foundation of the Lords judicature in parliament, <a href="#Page_249">249</a></li> - -<li class="indx">⸺ their pleadings entered in the Norman language, <a href="#Page_270">270</a></li> - -<li class="indx">⸺ divided into four courts, <a href="#Page_300">300</a></li> - -<li class="indx">Customs paid on merchandize, <a href="#Page_173">173</a></li> - -<li class="indx">⸺ <span class="smcap">local</span>; origin of several, <a href="#Page_297">297</a>, <a href="#Page_273">273</a></li> - -<li class="ifrst">D</li> - -<li class="indx">Danegelt, <a href="#Page_285">285</a></li> - -<li class="indx">Decretals of the Pope, <a href="#Page_320">320</a>, <a href="#Page_321">321</a></li> - -<li class="indx">Deed poll, <a href="#Page_100">100</a></li> - -<li class="indx">Demesnes, <a href="#Page_50">50</a></li> - -<li class="indx">Demurrer, what, <a href="#Page_306">306</a></li> - -<li class="indx">Derby, Earl of, <a href="#Page_193">193</a></li> - -<li class="indx">Descents by feudal law, to whom, <a href="#Page_135">135</a></li> - -<li class="indx">⸺ law of, <a href="#Page_141">141</a></li> - -<li class="indx">Dioceses, how subdivided into parishes, <a href="#Page_79">79</a></li> - -<li class="indx">Dispensing power, a prerogative claimed by the Stuarts, <a href="#Page_186">186</a></li> - -<li class="indx">⸺ distinct from a power of pardoning, <a href="#Page_186"><i>ibid.</i></a></li> - -<li class="indx">⸺ opposed by the early lawyers, <a href="#Page_314">314</a></li> - -<li class="indx">Distress, what, <a href="#Page_65">65</a>, <a href="#Page_100">100</a>, <a href="#Page_101">101</a></li> - -<li class="indx">⸺ introduced instead of actual forfeiture, <a href="#Page_97">97</a></li> - -<li class="indx">⸺ severity of English Lords in levying it restrained, <a href="#Page_101">101</a></li> - -<li class="indx">⸺ how and where to be levied, <a href="#Page_102">102</a></li> - -<li class="indx">⸺ restrictions in levying it, <a href="#Page_102"><i>ibid.</i></a></li> - -<li class="indx">Duelling, the practice whence derived, <a href="#Page_39">39</a></li> - -<li class="indx">Dukes, <a href="#Page_187">187</a></li> - -<li class="indx">Dyer’s reports, <a href="#Page_39">39</a></li> - -<li class="ifrst">E</li> - -<li class="indx" id="Earldoms">Earldoms of England, quantum of Knight’s fees assigned thereto, <a href="#Page_163">163</a></li> - -<li class="indx">⸺ how antiently held, <a href="#Page_197">197</a></li> - -<li class="indx">⸺ wherein differing from Barons, <a href="#Page_197"><i>ibid.</i></a></li> - -<li class="indx">⸺ when created, <a href="#Page_198">198</a></li> - -<li class="indx">Earls, <a href="#Page_187">187</a></li> - -<li class="indx">⸺ their authority restricted in the County court, <a href="#Page_198">198</a></li> - -<li class="indx">⸺ <span class="smcap">Palatine</span>, <a href="#Page_187">187</a></li> - -<li class="indx"><span class="pagenum"><a id="Page_398"></a>[398]</span>⸺ the first created, <a href="#Page_199">199</a></li> - -<li class="indx">Ecclesiastical Courts, <a href="#Page_271">271</a></li> - -<li class="indx">⸺ how separated from the temporal, <a href="#Page_275">275</a></li> - -<li class="indx">⸺ their right of recognizance of suits for benefices annulled by the temporal courts, <a href="#Page_276">276</a></li> - -<li class="indx">⸺ screen their members from the rigour of the law, <a href="#Page_276">276</a>, <a href="#Page_322">322</a></li> - -<li class="indx">⸺ their power of excommunication, <a href="#Page_360">360</a></li> - -<li class="indx">Edgar King, severity of the law enacted by him for payment of tithes, <a href="#Page_90">90</a></li> - -<li class="indx">⸺ division of the Sheriff’s and Bishop’s court in his reign, <a href="#Page_247">247</a></li> - -<li class="indx">Edmundsbury, meeting of the Barons there, <a href="#Page_339">339</a></li> - -<li class="indx">Edward I. his dispute concerning grand serjeanty grants, <a href="#Page_70">70</a></li> - -<li class="indx">⸺ gives in parliament a new confirmation of Magna Charta, <a href="#Page_71">71</a></li> - -<li class="indx">⸺ renounces the taking of talliage, <a href="#Page_71"><i>ibid.</i></a></li> - -<li class="indx">⸺ his action against the Bishop of Exeter respecting homage, <a href="#Page_117">117</a></li> - -<li class="indx">⸺ motives for his conduct, <a href="#Page_121">121</a></li> - -<li class="indx">⸺ the <span class="smcap">Confessor</span>, his laws, <a href="#Page_180">180</a></li> - -<li class="indx">Egypt, antient method of studying the laws there, <a href="#Page_7">7</a></li> - -<li class="indx">⸺ tithes first introduced there, <a href="#Page_87">87</a></li> - -<li class="indx">Elegit, writ of, <a href="#Page_156">156</a></li> - -<li class="indx">Elizabeth Queen, causes her proclamation to carry the force of laws, <a href="#Page_184">184</a></li> - -<li class="indx">⸺ why submitted to by the people, <a href="#Page_184"><i>ibid.</i></a></li> - -<li class="indx">⸺ her false policy in encouraging monopolies in trade, <a href="#Page_185">185</a></li> - -<li class="indx">⸺ discontinued the granting of protections, <a href="#Page_379">379</a></li> - -<li class="indx">Emma Queen, <a href="#Page_40">40</a></li> - -<li class="indx">Enfranchisement, express, <a href="#Page_234">234</a></li> - -<li class="indx">⸺ implied, <a href="#Page_235">235</a></li> - -<li class="indx">England, how divided by the Saxons, <a href="#Page_245">245</a></li> - -<li class="indx">⸺ divided into circuits by Henry II., <a href="#Page_298">298</a></li> - -<li class="indx">Escheat, <a href="#Page_98">98</a>, <a href="#Page_140">140</a></li> - -<li class="indx">⸺ of the King, <a href="#Page_298">298</a>, <a href="#Page_382">382</a></li> - -<li class="indx">Escuage, <a href="#Page_97">97</a>, <a href="#Page_289">289</a></li> - -<li class="indx">Esquires, their rank, <a href="#Page_207">207</a></li> - -<li class="indx" id="estates_allodial">Estates, allodial, <a href="#Page_51">51</a>, <a href="#Page_52">52</a>, <a href="#Page_56">56</a>, <a href="#Page_106">106</a>, <a href="#Page_144">144</a>, <a href="#Page_254">254</a></li> - -<li class="indx">⸺ of <span class="smcap">continuance</span>, <a href="#Page_57">57</a></li> - -<li class="indx">⸺ <span class="smcap">tail</span>, <a href="#Page_99">99</a>, <a href="#Page_121">121</a>, <a href="#Page_160">160</a></li> - -<li class="indx">⸺ <span class="smcap">beneficiary</span>, <a href="#Page_114">114</a></li> - -<li class="indx">⸺ <span class="smcap">feudal</span>, not liable to the debts of the feudatory, <a href="#Page_146">146</a></li> - -<li class="indx">Ethelwolf, establishes tithes by law in England, <a href="#Page_90">90</a></li> - -<li class="indx">Evidence, the kind admissible among the Franks before the use of letters, <a href="#Page_60">60</a></li> - -<li class="indx">Exchequer court of, <a href="#Page_300">300</a>, <a href="#Page_313">313</a>, <a href="#Page_315">315</a></li> - -<li class="indx">⸺ ordinary, <a href="#Page_317">317</a></li> - -<li class="indx">⸺ extraordinary, <a href="#Page_317"><i>ibid.</i></a></li> - -<li class="indx"><span class="pagenum"><a id="Page_399"></a>[399]</span>⸺ chamber, <a href="#Page_318">318</a></li> - -<li class="indx">Extent, <a href="#Page_155">155</a></li> - -<li class="indx">Eyre or circuit, omissions of places in first and second, <a href="#Page_298">298</a></li> - -<li class="ifrst">F</li> - -<li class="indx">Fealty, the oath of, <a href="#Page_61">61</a></li> - -<li class="indx">⸺ its obligations, <a href="#Page_61"><i>ibid.</i></a></li> - -<li class="indx">⸺ why not required of the Lords, <a href="#Page_64">64</a></li> - -<li class="indx">Fee simple, <a href="#Page_99">99</a></li> - -<li class="indx">⸺ tail, <a href="#Page_99">99</a>, <a href="#Page_121">121</a></li> - -<li class="indx">Females, their dowry among the Franks, <a href="#Page_35">35</a></li> - -<li class="indx">⸺ the part they bore in the State, <a href="#Page_35"><i>ibid.</i></a></li> - -<li class="indx">⸺ excluded from descent by the feudal law, <a href="#Page_135">135</a></li> - -<li class="indx">⸺ under what limitations admitted, <a href="#Page_135"><i>ibid.</i></a></li> - -<li class="indx">Feud, whence adopted into common language, <a href="#Page_118">118</a></li> - -<li class="indx">Feudal law. See <a href="#Law"><span class="smcap">Law</span></a></li> - -<li class="indx">Feuds improper, <a href="#Page_68">68</a>, &c.</li> - -<li class="indx">⸺ advowsons, <a href="#Page_78">78</a></li> - -<li class="indx">⸺ tithes, <a href="#Page_86">86</a></li> - -<li class="indx">⸺ feminine, <a href="#Page_142">142</a></li> - -<li class="indx">Feudum de cavena, <a href="#Page_75">75</a></li> - -<li class="indx">⸺ camera, <a href="#Page_75"><i>ibid.</i></a></li> - -<li class="indx">⸺ soldatæ, <a href="#Page_77">77</a></li> - -<li class="indx">⸺ habitationis, <a href="#Page_77"><i>ibid.</i></a></li> - -<li class="indx">⸺ guardiæ, <a href="#Page_77"><i>ibid.</i></a></li> - -<li class="indx">⸺ gastaldiæ, <a href="#Page_78">78</a></li> - -<li class="indx">⸺ mercedis, <a href="#Page_78"><i>ibid.</i></a></li> - -<li class="indx" id="Fiefs">Fiefs, <a href="#Page_21">21</a>, <a href="#Page_36">36</a>, <a href="#Page_55">55</a></li> - -<li class="indx">⸺ feminine, <a href="#Page_163">163</a></li> - -<li class="indx">Fine levied on entailed lands, <a href="#Page_167">167</a></li> - -<li class="indx">Fines honorary, <a href="#Page_107">107</a></li> - -<li class="indx">⸺ established as a fruit of tenure, <a href="#Page_118">118</a></li> - -<li class="indx">⸺ abolished at the restoration, <a href="#Page_118"><i>ibid.</i></a></li> - -<li class="indx">⸺ for licence to plead in the King’s court, <a href="#Page_250">250</a></li> - -<li class="indx">First fruits and tenths, <a href="#Page_84">84</a></li> - -<li class="indx">Fictions of law, <a href="#Page_304">304</a>, <a href="#Page_315">315</a></li> - -<li class="indx">Fish weires, <a href="#Page_351">351</a></li> - -<li class="indx">Fleta, <a href="#Page_180">180</a>, <a href="#Page_349">349</a></li> - -<li class="indx">Forest laws, whence derived, <a href="#Page_37">37</a></li> - -<li class="indx">Formedon, writ of three kinds, <a href="#Page_161">161</a></li> - -<li class="indx">Fortescue, <a href="#Page_180">180</a>, <a href="#Page_234">234</a></li> - -<li class="indx"><span class="pagenum"><a id="Page_400"></a>[400]</span>Frank pledge, <a href="#Page_247">247</a></li> - -<li class="indx">Franks, <a href="#Page_4">4</a>, <a href="#Page_23">23</a>, <a href="#Page_24">24</a>, <a href="#Page_31">31</a>, <a href="#Page_35">35</a>, <a href="#Page_37">37</a>, <a href="#Page_38">38</a>, <a href="#Page_41">41</a>, <a href="#Page_42">42</a>, <a href="#Page_46">46</a>, <a href="#Page_48">48</a>, <a href="#Page_55">55</a></li> - -<li class="indx">Freemen, among the Germans, the nature of the allegiance required from them to their Princes, <a href="#Page_31">31</a></li> - -<li class="indx">Free alms, <a href="#Page_202">202</a></li> - -<li class="indx">Furnivall, William, <a href="#Page_72">72</a></li> - -<li class="ifrst">G</li> - -<li class="indx">Gallway, county palatine of, <a href="#Page_201">201</a></li> - -<li class="indx">Gascoigne, Judge, <a href="#Page_368">368</a></li> - -<li class="indx">Gavel-kind, <a href="#Page_135">135</a>, <a href="#Page_255">255</a></li> - -<li class="indx">Gauls, <a href="#Page_22">22</a>, <a href="#Page_51">51</a>, <a href="#Page_111">111</a></li> - -<li class="indx">Gentry, who so called, <a href="#Page_206">206</a></li> - -<li class="indx">⸺ their peculiar privileges, <a href="#Page_206"><i>ibid.</i></a></li> - -<li class="indx">⸺ cause of their military disposition subsiding, <a href="#Page_207">207</a></li> - -<li class="indx">Gentilis homo, its ancient and modern acceptation, <a href="#Page_52">52</a></li> - -<li class="indx">Geoffry of Monmouth, <a href="#Page_22">22</a></li> - -<li class="indx">Germans, their method of deciding disputes by single combat, <a href="#Page_39">39</a></li> - -<li class="indx">⸺ Murder not punished with death among them, <a href="#Page_41">41</a></li> - -<li class="indx">Germany, its condition at the time of the Franks, <a href="#Page_32">32</a></li> - -<li class="indx">⸺ its ancient constitution nearly resembling that of England, <a href="#Page_33">33</a></li> - -<li class="indx">Gilbert, Judge, his opinion concerning the division of courts, <a href="#Page_309">309</a></li> - -<li class="indx">Glanville, <a href="#Page_109">109</a>, <a href="#Page_130">130</a>, <a href="#Page_148">148</a>, <a href="#Page_180">180</a>, <a href="#Page_288">288</a>, <a href="#Page_290">290</a>, <a href="#Page_330">330</a></li> - -<li class="indx">Glebe-land, how obtained by the clergy, <a href="#Page_80">80</a></li> - -<li class="indx">Gold and silver, their use unknown to the Franks, <a href="#Page_35">35</a></li> - -<li class="indx">Goths, <a href="#Page_4">4</a>, <a href="#Page_43">43</a>, <a href="#Page_44">44</a>, <a href="#Page_46">46</a>, <a href="#Page_47">47</a></li> - -<li class="indx">Grand assize, for what purpose invented, <a href="#Page_40">40</a></li> - -<li class="indx">Grandsons, <a href="#Page_108">108</a>, <a href="#Page_139">139</a>, <a href="#Page_140">140</a></li> - -<li class="indx">Grants, the first feudal ones, <a href="#Page_50">50</a></li> - -<li class="indx">⸺ temporary, <a href="#Page_56">56</a></li> - -<li class="indx">⸺ beneficiary, <a href="#Page_56"><i>ibid.</i></a></li> - -<li class="indx">⸺ <span class="smcap">for life</span>, how obtained, <a href="#Page_57">57</a></li> - -<li class="indx">⸺ improper, <a href="#Page_68">68</a></li> - -<li class="indx">⸺ to women, <a href="#Page_74">74</a></li> - -<li class="indx">⸺ of things not corporeal, <a href="#Page_74"><i>ibid.</i></a></li> - -<li class="indx">⸺ to indefinite generations, <a href="#Page_112">112</a></li> - -<li class="indx">⸺ laws tending to establish them, <a href="#Page_114">114</a></li> - -<li class="indx">⸺ of William the Conqueror to his followers, <a href="#Page_163">163</a></li> - -<li class="indx">⸺ of Knight’s fees, <a href="#Page_163"><i>ibid.</i></a></li> - -<li class="indx">Gregory, Pope, demands homage and Peter’s pence from William the Conqueror, <a href="#Page_274">274</a></li> - -<li class="indx">Gratian, <a href="#Page_321">321</a></li> - -<li class="indx"><span class="pagenum"><a id="Page_401"></a>[401]</span>Guardianship. See <a href="#Wardship">Wardship</a></li> - -<li class="ifrst">H</li> - -<li class="indx">Habeas Corpus, <a href="#Page_301">301</a>, <a href="#Page_370">370</a></li> - -<li class="indx">Hale, Sir Matthew, <a href="#Page_14">14</a>, <a href="#Page_213">213</a>, <a href="#Page_296">296</a></li> - -<li class="indx">Heptarchy, <a href="#Page_252">252</a></li> - -<li class="indx">Heriots, <a href="#Page_254">254</a>, <a href="#Page_257">257</a></li> - -<li class="indx">Hearth-money, <a href="#Page_134">134</a></li> - -<li class="indx">Heir in tail, <a href="#Page_160">160</a></li> - -<li class="indx">Heirs of landed inheritance, <a href="#Page_136">136</a></li> - -<li class="indx">Hengist, <a href="#Page_179">179</a></li> - -<li class="indx">Henry I. his charter in favour of the Saxon laws, <a href="#Page_281">281</a></li> - -<li class="indx">⸺ subdues Normandy, <a href="#Page_284">284</a></li> - -<li class="indx">⸺ II. payment in kind commuted into money, <a href="#Page_69">69</a></li> - -<li class="indx">⸺ his quarrel with Pope Alexander II., <a href="#Page_322">322</a></li> - -<li class="indx">⸺ his wholesome regulations, <a href="#Page_286">286</a>, <a href="#Page_287">287</a></li> - -<li class="indx">⸺ III. introduces a dispensing power into England, <a href="#Page_186">186</a>, <a href="#Page_344">344</a></li> - -<li class="indx">⸺ consequences of his neglecting to summon the Barones majores, <a href="#Page_189">189</a></li> - -<li class="indx">⸺ his illegal patent opposed by Roger de Thurkeby, <a href="#Page_186">186</a></li> - -<li class="indx">⸺ his oppressions, <a href="#Page_344">344</a></li> - -<li class="indx">⸺ VI. his mistaken conduct with regard to Ireland, <a href="#Page_220">220</a></li> - -<li class="indx">⸺ VIII. his danger upon throwing off the Pope’s supremacy, <a href="#Page_92">92</a></li> - -<li class="indx">⸺ suppresses the monasteries, <a href="#Page_92"><i>ibid.</i></a></li> - -<li class="indx">⸺ meets a court of Ward, <a href="#Page_133">133</a></li> - -<li class="indx">⸺ obtains from parliament a sanction for his proclamations to bear the force of laws, <a href="#Page_184">184</a></li> - -<li class="indx">Hereford, Earl of, his dispute with Edward I., <a href="#Page_70">70</a></li> - -<li class="indx">Homage, <a href="#Page_61">61</a></li> - -<li class="indx">⸺ when instituted, and how performed, <a href="#Page_116">116</a></li> - -<li class="indx">⸺ fealty, <a href="#Page_117">117</a></li> - -<li class="indx">⸺ warranty, a consequence of homage, <a href="#Page_119">119</a></li> - -<li class="indx">⸺ auncestrel, the import of this term, <a href="#Page_119"><i>ibid.</i></a></li> - -<li class="indx">⸺ duties arising from homage to lord and vassal, <a href="#Page_118">118</a></li> - -<li class="indx">Honorius, <a href="#Page_44">44</a></li> - -<li class="indx">Hugh Capet, <a href="#Page_23">23</a>, <a href="#Page_137">137</a></li> - -<li class="indx">Hunns, <a href="#Page_43">43</a>, <a href="#Page_44">44</a></li> - -<li class="ifrst">I</li> - -<li class="indx">James I. his arbitrary claims, <a href="#Page_183">183</a></li> - -<li class="indx">⸺ mistaken policy in encreasing monopolies, <a href="#Page_185">185</a></li> - -<li class="indx">⸺ institutes a new title of honour, <a href="#Page_209">209</a></li> - -<li class="indx"><span class="pagenum"><a id="Page_402"></a>[402]</span>Independence of the King, the idea thereof entertained by the early Franks, <a href="#Page_31">31</a></li> - -<li class="indx">Inhabitants of Europe, their propensity to the making of new laws, <a href="#Page_5">5</a></li> - -<li class="indx">Innocent III., <a href="#Page_334">334</a></li> - -<li class="indx">Inns of Court, wherefore founded, <a href="#Page_6">6</a></li> - -<li class="indx">⸺ their ancient usefulness, <a href="#Page_6"><i>ibid.</i></a></li> - -<li class="indx">⸺ their present state, <a href="#Page_7">7</a></li> - -<li class="indx">⸺ Institution to a living, <a href="#Page_82">82</a></li> - -<li class="indx">Interdict laid on England by Innocent III., <a href="#Page_334">334</a></li> - -<li class="indx">Investiture proper, <a href="#Page_58">58</a></li> - -<li class="indx">⸺ improper, <a href="#Page_59">59</a></li> - -<li class="indx">⸺ its nature fixes the line of duty, <a href="#Page_69">69</a></li> - -<li class="indx">John, King, mutual hatred between him and his nobles, <a href="#Page_110">110</a></li> - -<li class="indx">⸺ his arbitrary government, <a href="#Page_154">154</a>, <a href="#Page_352">352</a></li> - -<li class="indx">⸺ claims a right of taxation, <a href="#Page_177">177</a></li> - -<li class="indx">⸺ omits summoning some of the Barones majores, <a href="#Page_189">189</a></li> - -<li class="indx">⸺ deprives the earls of the thirds of the county profits, <a href="#Page_199">199</a></li> - -<li class="indx">⸺ supplants his nephew Arthur, <a href="#Page_331">331</a></li> - -<li class="indx">Jornandes, <a href="#Page_37">37</a></li> - -<li class="indx">Ireland, peerages there recovered by petition, <a href="#Page_195">195</a></li> - -<li class="indx">⸺ erected into palatinates, <a href="#Page_200">200</a></li> - -<li class="indx">⸺ form of trial of noblemen in that kingdom, <a href="#Page_204">204</a></li> - -<li class="indx">⸺ the statutes of Edward II. abolished, <a href="#Page_209">209</a></li> - -<li class="indx">⸺ state of legislation there, <a href="#Page_218">218</a>, <a href="#Page_222">222</a></li> - -<li class="indx">⸺ influence of Poyning’s law on its government, <a href="#Page_221">221</a></li> - -<li class="indx">Issue joined, <a href="#Page_292">292</a></li> - -<li class="indx">Italian priests, the chief possessors of benefices in England in John’s reign, <a href="#Page_342">342</a></li> - -<li class="indx">Judges itinerant, <a href="#Page_294">294</a></li> - -<li class="indx">⸺ their jurisdiction, <a href="#Page_298">298</a></li> - -<li class="indx">⸺ of assize, <a href="#Page_366">366</a></li> - -<li class="indx">⸺ judgment, in what instances obtained without the intervention of juries, <a href="#Page_354">354</a></li> - -<li class="indx">Juries, trial by, <a href="#Page_251">251</a></li> - -<li class="indx">⸺ their original power, <a href="#Page_247">247</a></li> - -<li class="indx">⸺ judges of law and fact, <a href="#Page_294">294</a>, <a href="#Page_356">356</a></li> - -<li class="indx">Justice, method of administering it among the Salic Franks, <a href="#Page_37">37</a></li> - -<li class="indx">Justices of Nisi Prius, <a href="#Page_248">248</a>, <a href="#Page_299">299</a></li> - -<li class="indx">⸺ errant, <a href="#Page_299"><i>ibid.</i></a></li> - -<li class="indx">⸺ of assize, <a href="#Page_299"><i>ibid.</i></a></li> - -<li class="indx">⸺ of oyer and terminer, <a href="#Page_299">299</a></li> - -<li class="indx">⸺ of gaol delivery, <a href="#Page_248">248</a></li> - -<li class="indx">⸺ of Quarter Sessions, <a href="#Page_248">248</a>, <a href="#Page_366">366</a></li> - -<li class="indx"><span class="pagenum"><a id="Page_403"></a>[403]</span>⸺ in Eyre, <a href="#Page_294">294</a></li> - -<li class="indx">Judiciary of England, <a href="#Page_248">248</a>, <a href="#Page_300">300</a></li> - -<li class="indx">⸺ discontinued by Edward I., <a href="#Page_304">304</a></li> - -<li class="ifrst">K</li> - -<li class="indx">Kildare, county palatine of, <a href="#Page_201">201</a></li> - -<li class="indx">King’s Bench, court of, <a href="#Page_300">300</a></li> - -<li class="indx">⸺ its power in taking bail, <a href="#Page_301">301</a></li> - -<li class="indx">⸺ suits cognizable therein, <a href="#Page_300">300</a>, <a href="#Page_301">301</a>, <a href="#Page_306">306</a></li> - -<li class="indx">⸺ its peculiar distinctions, <a href="#Page_312">312</a>, <a href="#Page_314">314</a></li> - -<li class="indx">King never dies, origin of that maxim, <a href="#Page_139">139</a></li> - -<li class="indx">Kings elective among the Franks, <a href="#Page_28">28</a>, <a href="#Page_29">29</a></li> - -<li class="indx">⸺ their power, <a href="#Page_48">48</a>, <a href="#Page_49">49</a></li> - -<li class="indx">⸺ Norman, the arms borne by them, <a href="#Page_207">207</a></li> - -<li class="indx">Kings of England, their power anciently limited, <a href="#Page_71">71</a></li> - -<li class="indx">⸺ their right of service from their vassals, <a href="#Page_71"><i>ibid.</i></a></li> - -<li class="indx">⸺ possessed of donatives, <a href="#Page_83">83</a></li> - -<li class="indx">⸺ their ecclesiastical jurisdiction, <a href="#Page_84">84</a></li> - -<li class="indx">⸺ their title to supreme ordinary, whence derived, <a href="#Page_84"><i>ibid.</i></a></li> - -<li class="indx">⸺ their power by the feudal law, <a href="#Page_170">170</a></li> - -<li class="indx">⸺ executive branch of government belongs to them, <a href="#Page_171">171</a></li> - -<li class="indx">⸺ their revenue, <a href="#Page_172">172</a></li> - -<li class="indx">⸺ their supplies for foreign wars, <a href="#Page_173">173</a></li> - -<li class="indx">⸺ their authority, whence derived, <a href="#Page_175">175</a></li> - -<li class="indx">⸺ their proclamations, how far legal, <a href="#Page_183">183</a></li> - -<li class="indx">⸺ their dispensing power, <a href="#Page_186">186</a></li> - -<li class="indx">⸺ their demesnes unalienable, <a href="#Page_189">189</a></li> - -<li class="indx">⸺ their prerogative of summoning the lesser Barons to parliament, <a href="#Page_190">190</a></li> - -<li class="indx">⸺ their right of raising peers to a higher rank, <a href="#Page_196">196</a></li> - -<li class="indx">⸺ their power of settling precedency, <a href="#Page_196"><i>ibid.</i></a></li> - -<li class="indx">⸺ not one of the three estates, but the head of all, <a href="#Page_202">202</a></li> - -<li class="indx">⸺ their right of appointing peers to try an accused nobleman, <a href="#Page_204">204</a></li> - -<li class="indx">⸺ ancient concern in making laws, <a href="#Page_217">217</a></li> - -<li class="indx">⸺ their present influence in framing laws, <a href="#Page_218">218</a></li> - -<li class="indx">⸺ their style when speaking of themselves, <a href="#Page_265">265</a></li> - -<li class="indx">⸺ have no power to create new criminal courts, <a href="#Page_377">377</a></li> - -<li class="indx"><span class="pagenum"><a id="Page_404"></a>[404]</span>Kingsale, Lord, <a href="#Page_196">196</a></li> - -<li class="indx">Knights, origin of that dignity, <a href="#Page_34">34</a></li> - -<li class="indx">⸺ their advantages over the Lords with regard to feudal payments, <a href="#Page_109">109</a></li> - -<li class="indx">⸺ service, <a href="#Page_129">129</a></li> - -<li class="indx">⸺ when abolished, <a href="#Page_150">150</a></li> - -<li class="indx">⸺ fees, <a href="#Page_188">188</a></li> - -<li class="indx">⸺ their privileges by writ of election to parliament, <a href="#Page_192">192</a></li> - -<li class="indx">⸺ their rank, <a href="#Page_206">206</a></li> - -<li class="indx">⸺ their ancient dignity, <a href="#Page_207">207</a></li> - -<li class="indx">⸺ <span class="smcap">Banneret</span>, <a href="#Page_208">208</a></li> - -<li class="ifrst">L</li> - -<li class="indx">Laity, when excluded from the election of the clergy, <a href="#Page_78">78</a></li> - -<li class="indx">Lands, their property how far alienable among the Jews, <a href="#Page_3">3</a></li> - -<li class="indx">Lands, distributed to the Christians by the General Assembly, <a href="#Page_34">34</a></li> - -<li class="indx">⸺ interest of Lord and vassal therein, <a href="#Page_65">65</a></li> - -<li class="indx">⸺ Saxons, by what tenures they held their lands, <a href="#Page_254">254</a></li> - -<li class="indx">Langton, Legate, <a href="#Page_338">338</a></li> - -<li class="indx">Lateran, council of, <a href="#Page_89">89</a></li> - -<li class="indx">Lawing, <a href="#Page_280">280</a></li> - -<li class="indx" id="Law">Laws feudal, the foundation of the law of things, <a href="#Page_14">14</a></li> - -<li class="indx">⸺ the foundation of the English constitution, <a href="#Page_15">15</a></li> - -<li class="indx">⸺ method of teaching them, <a href="#Page_17">17</a></li> - -<li class="indx">⸺ their origin and progress, <a href="#Page_17"><i>ibid.</i></a></li> - -<li class="indx">⸺ succeed the Roman imperial law, <a href="#Page_19">19</a></li> - -<li class="indx">⸺ various opinions on their origin, <a href="#Page_19"><i>ibid.</i></a></li> - -<li class="indx">⸺ not derived from Roman laws and customs, <a href="#Page_21">21</a></li> - -<li class="indx">⸺ first reduced into writing by the Lombards, <a href="#Page_23">23</a></li> - -<li class="indx">⸺ their tendency to cherish the national liberties of mankind, <a href="#Page_27">27</a></li> - -<li class="indx">⸺ in <span class="smcap">England</span>, permit no Lord to be challenged by the suitors, <a href="#Page_96">96</a></li> - -<li class="indx">⸺ allow a power of appeal to the King’s court, <a href="#Page_96"><i>ibid.</i></a></li> - -<li class="indx">⸺ their doctrine of remainder, <a href="#Page_96"><i>ibid.</i></a></li> - -<li class="indx">⸺ respecting warranty, <a href="#Page_119">119</a></li> - -<li class="indx">⸺ wardship, <a href="#Page_123">123</a>, <a href="#Page_124">124</a></li> - -<li class="indx">⸺ their obligations on minors, <a href="#Page_132">132</a></li> - -<li class="indx">Laws <span class="smcap">positive</span>, or general customs, always to be found in communities however barbarous, <a href="#Page_1">1</a></li> - -<li class="indx">⸺ a knowledge of them a means of procuring respect and influence, <a href="#Page_2">2</a></li> - -<li class="indx">⸺ of things and persons, which to be first treated on, <a href="#Page_14">14</a></li> - -<li class="indx">⸺ few and intelligible in small societies, <a href="#Page_14"><i>ibid.</i></a></li> - -<li class="indx"><span class="pagenum"><a id="Page_405"></a>[405]</span>⸺ when necessarily numerous and extensive, <a href="#Page_14"><i>ibid.</i></a></li> - -<li class="indx">⸺ inconveniencies attending their multiplicity, <a href="#Page_3">3</a></li> - -<li class="indx">⸺ of what kind in Rome at different periods, <a href="#Page_4">4</a></li> - -<li class="indx">⸺ their great increase in Europe since the, 14th century, <a href="#Page_5">5</a></li> - -<li class="indx">⸺ of <span class="smcap">Normandy</span>, respecting the marriage of females in wardship, <a href="#Page_129">129</a></li> - -<li class="indx">⸺ of <span class="smcap">England</span>, advantages attending a knowledge of them, <a href="#Page_8">8</a></li> - -<li class="indx">⸺ what required by them in transferring possessions, <a href="#Page_74">74</a></li> - -<li class="indx">⸺ its maxim respecting the devising of lands by will, <a href="#Page_145">145</a></li> - -<li class="indx">⸺ how enacted, <a href="#Page_217">217</a></li> - -<li class="indx">⸺ their ancient method of passing, <a href="#Page_217"><i>ibid.</i></a></li> - -<li class="indx">⸺ their tendency to promote liberty, <a href="#Page_234">234</a></li> - -<li class="indx">⸺ alterations introduced in them by Henry II., <a href="#Page_289">289</a></li> - -<li class="indx">Lawyers, <a href="#Page_3">3</a></li> - -<li class="indx">Laymen, how far exercising ecclesiastical discipline, <a href="#Page_48">48</a></li> - -<li class="indx">⸺ tithes granted to them in fee, <a href="#Page_89">89</a></li> - -<li class="indx">⸺ by what means possessed of lands discharged of tithes, <a href="#Page_92">92</a></li> - -<li class="indx">Legates of Rome, <a href="#Page_83">83</a></li> - -<li class="indx">Leinster, county palatine of, <a href="#Page_201">201</a></li> - -<li class="indx">Letters Patent for creating of Peers, <a href="#Page_190">190</a></li> - -<li class="indx">⸺ when took place, <a href="#Page_193">193</a></li> - -<li class="indx">⸺ grants by them, how forfeited, <a href="#Page_194">194</a>, <a href="#Page_195">195</a></li> - -<li class="indx">⸺ anciently called Chartæ Regis, <a href="#Page_305">305</a></li> - -<li class="indx">⸺ repealable by the Lord Chancellor, <a href="#Page_305"><i>ibid.</i></a></li> - -<li class="indx">Lex Terræ, what, <a href="#Page_355">355</a></li> - -<li class="indx">Licences to marry, <a href="#Page_131">131</a></li> - -<li class="indx">Liberty of the subject, how advanced, <a href="#Page_313">313</a></li> - -<li class="indx">⸺ how ascertained, <a href="#Page_333">333</a></li> - -<li class="indx">Littleton, <a href="#Page_14">14</a>, <a href="#Page_15">15</a>, <a href="#Page_61">61</a>, <a href="#Page_73">73</a>, <a href="#Page_116">116</a>, <a href="#Page_124">124</a>, <a href="#Page_225">225</a>, <a href="#Page_229">229</a></li> - -<li class="indx">Livery and seizen, <a href="#Page_58">58</a>, <a href="#Page_59">59</a></li> - -<li class="indx">Locke, Mr., <a href="#Page_12">12</a></li> - -<li class="indx">Longchamp Archbishop of Canterbury, <a href="#Page_330">330</a></li> - -<li class="indx">Lords feudal, their power over minors respecting marriage, <a href="#Page_129">129</a></li> - -<li class="indx">⸺ respect paid by them to the person of their King, <a href="#Page_171">171</a></li> - -<li class="indx">⸺ their power over their villeins, <a href="#Page_224">224</a>, <a href="#Page_232">232</a></li> - -<li class="indx" id="Lords">⸺ of parliament in England, their rank, <a href="#Page_187">187</a></li> - -<li class="indx">⸺ created by writ, or letters patent, <a href="#Page_190">190</a></li> - -<li class="indx">⸺ privilege to their eldest sons, <a href="#Page_192">192</a></li> - -<li class="indx">⸺ their titles extinct on surrender, <a href="#Page_195">195</a></li> - -<li class="indx">⸺ their quality as noblemen, <a href="#Page_187">187</a></li> - -<li class="indx">⸺ spiritual, <a href="#Page_202">202</a></li> - -<li class="indx">⸺ lay, their form of trial, <a href="#Page_204">204</a></li> - -<li class="indx">Lombards, <a href="#Page_4">4</a></li> - -<li class="indx">Lupus, Hugh, <a href="#Page_199">199</a></li> - -<li class="indx"><span class="pagenum"><a id="Page_406"></a>[406]</span>Lycurgus, <a href="#Page_3">3</a></li> - -<li class="ifrst">M</li> - -<li class="indx">Markham, sir John, <a href="#Page_368">368</a></li> - -<li class="indx">Maud, <a href="#Page_282">282</a>, <a href="#Page_284">284</a></li> - -<li class="indx">Magna Charta specifies the quantum to be paid in relief, <a href="#Page_110">110</a>, <a href="#Page_290">290</a></li> - -<li class="indx">⸺ misconstrued in the right of Lords to the disposal of minor heirs in marriage, <a href="#Page_130">130</a></li> - -<li class="indx">⸺ restrains the alienation of lands, <a href="#Page_150">150</a></li> - -<li class="indx">⸺ its designs, <a href="#Page_154">154</a></li> - -<li class="indx">⸺ abolishes the right of talliage, <a href="#Page_154">154</a>, <a href="#Page_171">171</a>, <a href="#Page_175">175</a></li> - -<li class="indx">⸺ summons to parliament settled thereby, <a href="#Page_189">189</a></li> - -<li class="indx">⸺ its regulations of fines in the King’s court, <a href="#Page_250">250</a></li> - -<li class="indx">⸺ abolishes the removal of the courts of justice, <a href="#Page_312">312</a></li> - -<li class="indx">⸺ commentary thereon, <a href="#Page_343">343</a> to the end</li> - -<li class="indx">Manors how distributed by William the Conqueror to his followers, <a href="#Page_163">163</a></li> - -<li class="indx">Marriages, <a href="#Page_133">133</a></li> - -<li class="indx">Marshal, Earl, of England, <a href="#Page_72">72</a></li> - -<li class="indx">Maritime court. See <a href="#Admiralty">Admiralty</a></li> - -<li class="indx">Mascon, council of, <a href="#Page_88">88</a></li> - -<li class="indx">Master of the Rolls, <a href="#Page_310">310</a></li> - -<li class="indx">Masters in Chancery, <a href="#Page_309">309</a></li> - -<li class="indx">⸺ empowered to frame new writs, <a href="#Page_309"><i>ibid.</i></a></li> - -<li class="indx">Maxim of Law, <a href="#Page_306">306</a>, <a href="#Page_341">341</a></li> - -<li class="indx">Measures and weights, <a href="#Page_351">351</a></li> - -<li class="indx">Meath, county palatine of, <a href="#Page_201">201</a></li> - -<li class="indx">Merchant stranger, <a href="#Page_174">174</a>, <a href="#Page_380">380</a></li> - -<li class="indx">⸺ denizen, <a href="#Page_174">174</a></li> - -<li class="indx">⸺ enemies, <a href="#Page_381">381</a></li> - -<li class="indx">Military system (Old) its influence on law, <a href="#Page_4">4</a></li> - -<li class="indx">⸺ power, danger of its subverting the civil and legal authorities, <a href="#Page_95">95</a></li> - -<li class="indx">⸺ benefices, their rise among the Saxons, <a href="#Page_261">261</a></li> - -<li class="indx">⸺ tenures, their service lightened by Henry II., <a href="#Page_288">288</a></li> - -<li class="indx">⸺ abolished by Charles II., <a href="#Page_150">150</a></li> - -<li class="indx">⸺ courts, <a href="#Page_360">360</a></li> - -<li class="indx">Minor heirs male, when deemed of age, <a href="#Page_123">123</a></li> - -<li class="indx">⸺ in chivalry, when deemed of age, <a href="#Page_124">124</a></li> - -<li class="indx">⸺ in socage, when deemed of age, <a href="#Page_128">128</a></li> - -<li class="indx">⸺ female, in chivalry, when deemed of age, <a href="#Page_124">124</a></li> - -<li class="indx">⸺ their marriages, how controuled by their Lords, <a href="#Page_129">129</a></li> - -<li class="indx">⸺ when released from wardship, <a href="#Page_132">132</a></li> - -<li class="indx"><span class="pagenum"><a id="Page_407"></a>[407]</span>Mittimus, essentials to render it legal, <a href="#Page_369">369</a></li> - -<li class="indx">Modus, payment of tithes by a, <a href="#Page_91">91</a></li> - -<li class="indx">Monarchy of France, <a href="#Page_55">55</a>, <a href="#Page_56">56</a></li> - -<li class="indx">⸺ of England, its nature ascertained by the feudal laws, <a href="#Page_16">16</a></li> - -<li class="indx">⸺ how changed, by estates becoming hereditary, <a href="#Page_170">170</a></li> - -<li class="indx">Monasteries, the firmest support of papal power, <a href="#Page_83">83</a>, <a href="#Page_88">88</a></li> - -<li class="indx">⸺ tithes improperly applied to their use, <a href="#Page_89">89</a></li> - -<li class="indx">⸺ raised on the suppression of the secular clergy, <a href="#Page_91">91</a></li> - -<li class="indx">Money, its present decreased value, <a href="#Page_69">69</a></li> - -<li class="indx">Monopolies, <a href="#Page_185">185</a></li> - -<li class="indx">Montesquieu, <a href="#Page_2">2</a>, <a href="#Page_28">28</a>, <a href="#Page_31">31</a>, <a href="#Page_38">38</a>, <a href="#Page_53">53</a>, <a href="#Page_178">178</a></li> - -<li class="indx">Moses, <a href="#Page_3">3</a>, <a href="#Page_7">7</a></li> - -<li class="indx">Mowbray, Lord, <a href="#Page_192">192</a></li> - -<li class="indx">Murder, why not punished with death among the ancient Germans, <a href="#Page_41">41</a></li> - -<li class="indx">⸺ how punished by the Saxons, <a href="#Page_252">252</a></li> - -<li class="ifrst">N</li> - -<li class="indx">Neif, <a href="#Page_227">227</a>, <a href="#Page_230">230</a>, <a href="#Page_232">232</a></li> - -<li class="indx">Nisi Prius, Justices of, <a href="#Page_248">248</a></li> - -<li class="indx">Norfolk, Earl of, his dispute with Edward I., <a href="#Page_70">70</a></li> - -<li class="indx">Northern nations become formidable to the Roman empire, <a href="#Page_43">43</a></li> - -<li class="indx">Notorieties of a fact, how regarded in feudal grants, <a href="#Page_60">60</a></li> - -<li class="ifrst">O</li> - -<li class="indx">Oath of fealty, from whence to be traced, <a href="#Page_31">31</a></li> - -<li class="indx">⸺ taken by the Saxons, <a href="#Page_259">259</a></li> - -<li class="indx">Officers of Courts, where to be sued, <a href="#Page_318">318</a></li> - -<li class="indx">Officina brevium, <a href="#Page_306">306</a></li> - -<li class="indx">Oleron, laws of, <a href="#Page_331">331</a></li> - -<li class="indx">Oligarchy introduced into England, <a href="#Page_182">182</a></li> - -<li class="indx" id="ordeal">Ordeal trial among the Franks, <a href="#Page_37">37</a></li> - -<li class="indx">⸺ continued after the Norman conquest, <a href="#Page_40">40</a></li> - -<li class="indx">Ormond, Earl of, <a href="#Page_201">201</a></li> - -<li class="indx">⸺ Duke of, <a href="#Page_133">133</a></li> - -<li class="indx">Overbury, Sir Thomas, <a href="#Page_374">374</a></li> - -<li class="indx">Outlawry, <a href="#Page_356">356</a></li> - -<li class="indx"><span class="pagenum"><a id="Page_408"></a>[408]</span>⸺ proclamation to be made by statute, 31st Elizabeth, <a href="#Page_358">358</a></li> - -<li class="ifrst">P</li> - -<li class="indx">Païs des coutumes, <a href="#Page_52">52</a></li> - -<li class="indx">⸺ de loi ecrite, <a href="#Page_52"><i>ibid.</i></a></li> - -<li class="indx" id="Pares_curiae">Pares curiæ, <a href="#Page_58">58</a>, <a href="#Page_59">59</a>, <a href="#Page_96">96</a>, <a href="#Page_116">116</a>, <a href="#Page_119">119</a></li> - -<li class="indx">Paris, Matthew, <a href="#Page_186">186</a>, <a href="#Page_188">188</a></li> - -<li class="indx">Parliament of England, its ancient constitution, <a href="#Page_187">187</a>, <a href="#Page_193">193</a>, <a href="#Page_202">202</a>, <a href="#Page_213">213</a></li> - -<li class="indx">⸺ its judicature, <a href="#Page_319">319</a></li> - -<li class="indx">Patron, lay, his interest in presentative advowsons, <a href="#Page_81">81</a></li> - -<li class="indx">⸺ inverted with donatives by grants from the Pope, <a href="#Page_83">83</a></li> - -<li class="indx">⸺ possessed a power of deprivation, <a href="#Page_85">85</a></li> - -<li class="indx">Peer. See <a href="#Lords">Lords of Parliament</a></li> - -<li class="indx">Peeress, who are her peers, <a href="#Page_353">353</a></li> - -<li class="indx">Pelagius, <a href="#Page_143">143</a></li> - -<li class="indx">Pembrige, Sir Richard, <a href="#Page_373">373</a></li> - -<li class="indx">Pepin, <a href="#Page_113">113</a></li> - -<li class="indx">Persian Empire, <a href="#Page_43">43</a></li> - -<li class="indx">Pembroke, Earl of, <a href="#Page_343">343</a></li> - -<li class="indx">Philip of France, <a href="#Page_332">332</a>, <a href="#Page_338">338</a></li> - -<li class="indx">Plantagenets, <a href="#Page_209">209</a></li> - -<li class="indx">Pleas of the crown, <a href="#Page_301">301</a></li> - -<li class="indx">Pole, Michael de la, <a href="#Page_193">193</a></li> - -<li class="indx">Popes. See <a href="#Bishops_of_Rome">Bishops of Rome</a></li> - -<li class="indx"><i>Posse</i> of the county, <a href="#Page_292">292</a></li> - -<li class="indx">Possessions, corporeal, <a href="#Page_74">74</a></li> - -<li class="indx">⸺ incorporeal, <a href="#Page_74">74</a>, <a href="#Page_78">78</a>, <a href="#Page_87">87</a>, <a href="#Page_95">95</a></li> - -<li class="indx">Pounds overt and covert, <a href="#Page_103">103</a></li> - -<li class="indx">Precedence of Peers, how settled by parliament, <a href="#Page_196">196</a></li> - -<li class="indx">Primogeniture, <a href="#Page_137">137</a></li> - -<li class="indx">Prisage of wines, <a href="#Page_73">73</a></li> - -<li class="indx">Privileges of the subject, whence derived, <a href="#Page_16">16</a></li> - -<li class="indx">⸺ of the distinct parts of the legislature, <a href="#Page_217">217</a></li> - -<li class="indx">Privileged persons, how to be sued, <a href="#Page_307">307</a></li> - -<li class="indx" id="proclamations">Proclamations royal, when and how far legal, <a href="#Page_183">183</a></li> - -<li class="indx">⸺ conduct of Henry VIII. relative to them, <a href="#Page_184">184</a></li> - -<li class="indx">⸺ their force in the reign of Elizabeth, <a href="#Page_184"><i>ibid.</i></a></li> - -<li class="indx">⸺ baneful consequences attending the arbitrary use of them, <a href="#Page_185">185</a></li> - -<li class="indx">Professors of Laws, <a href="#Page_13">13</a></li> - -<li class="indx">Property, its division, <a href="#Page_35">35</a></li> - -<li class="indx">⸺ of lands, where lodged by the Franks, <a href="#Page_35"><i>ibid.</i></a></li> - -<li class="indx">Provisorship, <a href="#Page_344">344</a></li> - -<li class="indx"><span class="pagenum"><a id="Page_409"></a>[409]</span>Provosts, <a href="#Page_210">210</a></li> - -<li class="indx">Punishments inflicted by the ancient courts of law, for public and private wrongs, <a href="#Page_251">251</a></li> - -<li class="indx">⸺ for false imprisonment, <a href="#Page_370">370</a></li> - -<li class="indx">Purbeck, Lord, <a href="#Page_194">194</a></li> - -<li class="indx">Purchases new, how descendible, <a href="#Page_144">144</a></li> - -<li class="indx">Purveyance for the King, <a href="#Page_256">256</a>, <a href="#Page_257">257</a></li> - -<li class="ifrst">Q</li> - -<li class="indx">Quo Warranto, writ of, <a href="#Page_301">301</a></li> - -<li class="ifrst">R</li> - -<li class="indx">Rachat, or Repurchase, <a href="#Page_110">110</a></li> - -<li class="indx">Raleigh, Sir Walter, <a href="#Page_376">376</a></li> - -<li class="indx">Ranks of the people in the Saxon times, <a href="#Page_253">253</a></li> - -<li class="indx">Ravishment of wards, <a href="#Page_132">132</a></li> - -<li class="indx">Record, matter of, <a href="#Page_306">306</a></li> - -<li class="indx">Records of France, lost at the battle of Poictiers, <a href="#Page_312">312</a></li> - -<li class="indx">Recognizance, <a href="#Page_155">155</a>, <a href="#Page_308">308</a></li> - -<li class="indx">Rectorial tithes. See <a href="#Tithes">Tithes</a></li> - -<li class="indx">Register of writs, <a href="#Page_309">309</a></li> - -<li class="indx">Refuting the fief, <a href="#Page_145">145</a></li> - -<li class="indx">Reliefs or fines, <a href="#Page_107">107</a></li> - -<li class="indx">⸺ wherein burdensome to the tenant, <a href="#Page_109">109</a></li> - -<li class="indx">⸺ altered by Henry II., <a href="#Page_290">290</a></li> - -<li class="indx">⸺ fixed by Magna Charta, <a href="#Page_110">110</a></li> - -<li class="indx">⸺ and heriots, their difference, <a href="#Page_257">257</a></li> - -<li class="indx">Remainder derived from a reversion, <a href="#Page_96">96</a></li> - -<li class="indx">Rent charges, <a href="#Page_99">99</a></li> - -<li class="indx">Replevin, <a href="#Page_104">104</a></li> - -<li class="indx">Reversion, right of, in land, <a href="#Page_96">96</a></li> - -<li class="indx">⸺ fealty and service incidental thereto, <a href="#Page_97">97</a></li> - -<li class="indx">⸺ on contingency, <a href="#Page_97"><i>ibid.</i></a></li> - -<li class="indx">Richard I., <a href="#Page_329">329</a>, <a href="#Page_332">332</a></li> - -<li class="indx">Richard II., <a href="#Page_181">181</a>, <a href="#Page_183">183</a></li> - -<li class="indx">Right of entry for possession, <a href="#Page_59">59</a>, <a href="#Page_65">65</a></li> - -<li class="indx">⸺ action, <a href="#Page_59"><i>ibid.</i></a></li> - -<li class="indx">Rome, its famous academies, <a href="#Page_7">7</a></li> - -<li class="indx">⸺ taken by the Goths, <a href="#Page_45">45</a></li> - -<li class="indx"><span class="pagenum"><a id="Page_410"></a>[410]</span>Roman imperial law, <a href="#Page_19">19</a></li> - -<li class="indx">⸺ empire, <a href="#Page_42">42</a></li> - -<li class="indx">⸺ emperors, <a href="#Page_186">186</a></li> - -<li class="indx">⸺ estates, <a href="#Page_51">51</a></li> - -<li class="indx">⸺ patron and client, <a href="#Page_19">19</a>, <a href="#Page_20">20</a></li> - -<li class="indx">Romans, their policy respecting conquered nations, <a href="#Page_22">22</a></li> - -<li class="indx">⸺ become socage tenants to the church, <a href="#Page_54">54</a></li> - -<li class="indx">⸺ their condition under the Franks, <a href="#Page_111">111</a></li> - -<li class="ifrst">S</li> - -<li class="indx">Salic Law, <a href="#Page_52">52</a></li> - -<li class="indx">Sergeanty, grand, <a href="#Page_70">70</a></li> - -<li class="indx">⸺ various kinds, <a href="#Page_72">72</a></li> - -<li class="indx">⸺ the rank capable of performing it, <a href="#Page_72"><i>ibid.</i></a></li> - -<li class="indx">⸺ for what purposes granted, <a href="#Page_72"><i>ibid.</i></a></li> - -<li class="indx">⸺ butlerage held thereby in the family of Ormond, <a href="#Page_73">73</a></li> - -<li class="indx">⸺ <span class="smcap">petty</span>, <a href="#Page_73"><i>ibid.</i></a></li> - -<li class="indx">Satisfaction for petty crimes, how regulated by the Franks, <a href="#Page_41">41</a></li> - -<li class="indx">Saxons, the nature of their primitive laws, <a href="#Page_4">4</a></li> - -<li class="indx">⸺ their government in England, how far feudal, <a href="#Page_33">33</a>, <a href="#Page_212">212</a>, <a href="#Page_243">243</a></li> - -<li class="indx">⸺ admit the ordeal trial in determining causes, <a href="#Page_40">40</a></li> - -<li class="indx">⸺ the authority of their Kings, whence derived, <a href="#Page_179">179</a>, <a href="#Page_180">180</a></li> - -<li class="indx">⸺ their courts of law, <a href="#Page_246">246</a>, <a href="#Page_250">250</a></li> - -<li class="indx">⸺ method of trial therein, <a href="#Page_250">250</a>, <a href="#Page_251">251</a></li> - -<li class="indx">⸺ punishments inflicted, <a href="#Page_252">252</a></li> - -<li class="indx">⸺ nature of their tenures, <a href="#Page_254">254</a>, <a href="#Page_265">265</a></li> - -<li class="indx">Scire facias, writ of, <a href="#Page_219">219</a>, <a href="#Page_305">305</a></li> - -<li class="indx">Scotland, method of studying the law there, <a href="#Page_18">18</a></li> - -<li class="indx">⸺ its parliament not divided into two houses, <a href="#Page_202">202</a></li> - -<li class="indx">Seal, used in the first written instruments, <a href="#Page_60">60</a></li> - -<li class="indx">Sealing of instruments, why more strictly authenticating them than signing, <a href="#Page_273">273</a></li> - -<li class="indx">Seignory, <a href="#Page_95">95</a></li> - -<li class="indx">Sergeants at law, <a href="#Page_313">313</a></li> - -<li class="indx">Service from a tenure, how dependant on the nature of the grant, <a href="#Page_96">96</a></li> - -<li class="indx">⸺ when required by the lord, <a href="#Page_97">97</a></li> - -<li class="indx">⸺ rent, <a href="#Page_98">98</a></li> - -<li class="indx">⸺ made rent seck by statute Edward I., <a href="#Page_98"><i>ibid.</i></a></li> - -<li class="indx">Sharrburn, Edwin, his lands restored by William the Conqueror, <a href="#Page_264">264</a></li> - -<li class="indx" id="Sheriff">Sheriffs, their power in making replevins, <a href="#Page_104">104</a></li> - -<li class="indx">⸺ method of proceeding thereon, <a href="#Page_104"><i>ibid.</i></a></li> - -<li class="indx">⸺ appointed to restrain the power of the Earls, <a href="#Page_199">199</a></li> - -<li class="indx"><span class="pagenum"><a id="Page_411"></a>[411]</span>⸺ nature of their court, <a href="#Page_246">246</a></li> - -<li class="indx">⸺ nature of their court altered by William the Conqueror, <a href="#Page_272">272</a></li> - -<li class="indx">⸺ their ignorance of law, <a href="#Page_296">296</a></li> - -<li class="indx">Socage tenures, their increased value, <a href="#Page_70">70</a></li> - -<li class="indx">Socage tenants, <a href="#Page_47">47</a>, <a href="#Page_224">224</a>, <a href="#Page_289">289</a></li> - -<li class="indx">⸺ nature of the grants to them, <a href="#Page_50">50</a></li> - -<li class="indx">⸺ subject to distress instead of forfeiture, <a href="#Page_97">97</a></li> - -<li class="indx">⸺ relief paid by them to their lords, <a href="#Page_110">110</a></li> - -<li class="indx">⸺ lands granted for life, <a href="#Page_57">57</a></li> - -<li class="indx">⸺ free and common, <a href="#Page_72">72</a></li> - -<li class="indx">⸺ petty sergeanty, <a href="#Page_73">73</a></li> - -<li class="indx">⸺ its derivation, <a href="#Page_69">69</a></li> - -<li class="indx">Society political, for what purposes instituted, <a href="#Page_1">1</a></li> - -<li class="indx">⸺ the obligations which it lays on individuals, <a href="#Page_1"><i>ibid.</i></a></li> - -<li class="indx">Sons, the inheritance obtained by the eldest, <a href="#Page_137">137</a></li> - -<li class="indx">⸺ succeeded equally to the father, <a href="#Page_135">135</a></li> - -<li class="indx" id="Spaniards">Spaniards, <a href="#Page_22">22</a></li> - -<li class="indx">Special verdict, <a href="#Page_356">356</a></li> - -<li class="indx">Spelman, Sir Henry, <a href="#Page_13">13</a>, <a href="#Page_198">198</a>, <a href="#Page_258">258</a></li> - -<li class="indx">Statute of Ethelwolf, <a href="#Page_90">90</a></li> - -<li class="indx">⸺ Alfred, <a href="#Page_90"><i>ibid.</i></a></li> - -<li class="indx">⸺ Edgar, <a href="#Page_90"><i>ibid.</i></a></li> - -<li class="indx">⸺ Edward I. quia emptores terrarum, <a href="#Page_99">99</a>, <a href="#Page_146">146</a>, <a href="#Page_149">149</a>, <a href="#Page_384">384</a></li> - -<li class="indx">⸺ Edward I. de donis, <a href="#Page_121">121</a></li> - -<li class="indx">⸺ 34th Edward I., <a href="#Page_211">211</a></li> - -<li class="indx">⸺ 17th Edward II. de prerogativa regis, <a href="#Page_150">150</a></li> - -<li class="indx">⸺ for compounding a Knight’s fee, <a href="#Page_208">208</a></li> - -<li class="indx">⸺ of Marlebridge, <a href="#Page_101">101</a>, <a href="#Page_103">103</a>, <a href="#Page_104">104</a>, <a href="#Page_345">345</a></li> - -<li class="indx">⸺ respecting knighthood conferred on minors, <a href="#Page_124">124</a></li> - -<li class="indx">⸺ of Merton, <a href="#Page_131">131</a></li> - -<li class="indx">⸺ Westminster I., <a href="#Page_132">132</a>, <a href="#Page_368">368</a></li> - -<li class="indx">⸺ Westminster II., <a href="#Page_132">132</a>, <a href="#Page_159">159</a>, <a href="#Page_309">309</a></li> - -<li class="indx">⸺ Mortmain, <a href="#Page_151">151</a></li> - -<li class="indx">⸺ Merchant, <a href="#Page_154">154</a></li> - -<li class="indx">⸺ of writ of elegit, <a href="#Page_156">156</a></li> - -<li class="indx">⸺ Elizabeth concerning bankrupts, <a href="#Page_157">157</a></li> - -<li class="indx">⸺ concerning outlawry, <a href="#Page_358">358</a></li> - -<li class="indx">⸺ of William the Conqueror, <a href="#Page_265">265</a></li> - -<li class="indx">⸺ 8th Henry VI. chap. 5., <a href="#Page_216">216</a></li> - -<li class="indx">⸺ Poyning’s, <a href="#Page_221">221</a></li> - -<li class="indx">⸺ 28th Henry VIII. suspending Poyning’s law, <a href="#Page_222">222</a></li> - -<li class="indx">⸺ Philip & Mary respecting Ireland, <a href="#Page_222"><i>ibid.</i></a></li> - -<li class="indx"><span class="pagenum"><a id="Page_412"></a>[412]</span>⸺ ancient and present, manner of enacting them, <a href="#Page_217">217</a></li> - -<li class="indx">Stewardship, High, of England, <a href="#Page_72">72</a></li> - -<li class="indx">Stephen, King, <a href="#Page_284">284</a></li> - -<li class="indx">Stilicho, <a href="#Page_44">44</a>, <a href="#Page_45">45</a></li> - -<li class="indx">Strange, Baron of, <a href="#Page_193">193</a></li> - -<li class="indx">Strongbow, <a href="#Page_201">201</a></li> - -<li class="indx">Stuart, house of, <a href="#Page_183">183</a></li> - -<li class="indx">Study of the law in Great Britain, <a href="#Page_6">6</a></li> - -<li class="indx">⸺ proper method, <a href="#Page_7">7</a></li> - -<li class="indx">⸺ causes of difficulty therein, <a href="#Page_12">12</a>, <a href="#Page_13">13</a></li> - -<li class="indx">⸺ reasons for beginning with the law of things instead of that of persons, <a href="#Page_14">14</a></li> - -<li class="indx">⸺ promoted by fixing the courts of justice, <a href="#Page_313">313</a></li> - -<li class="indx">Substitute, when allowed in aid from a vassal, <a href="#Page_64">64</a></li> - -<li class="indx">Subvassals, <a href="#Page_33">33</a>, <a href="#Page_57">57</a>, <a href="#Page_65">65</a></li> - -<li class="indx">Succession royal by descent, <a href="#Page_137">137</a>, <a href="#Page_138">138</a>, <a href="#Page_139">139</a>, <a href="#Page_143">143</a></li> - -<li class="indx">⸺ collateral, <a href="#Page_139">139</a>, <a href="#Page_140">140</a></li> - -<li class="indx">⸺ to estates, how rendered hereditary, <a href="#Page_107">107</a>, <a href="#Page_110">110</a>, <a href="#Page_144">144</a></li> - -<li class="indx">⸺ of sons to the father, <a href="#Page_135">135</a></li> - -<li class="ifrst">T</li> - -<li class="indx">Tacitus, <a href="#Page_27">27</a>, <a href="#Page_28">28</a>, <a href="#Page_30">30</a>, <a href="#Page_31">31</a>, <a href="#Page_32">32</a>, <a href="#Page_35">35</a>, <a href="#Page_36">36</a></li> - -<li class="indx">Talliage, <a href="#Page_71">71</a>, <a href="#Page_153">153</a>, <a href="#Page_173">173</a>, <a href="#Page_174">174</a></li> - -<li class="indx">Taxes, how assessed, <a href="#Page_174">174</a></li> - -<li class="indx">Tenants by sufferance, <a href="#Page_50">50</a></li> - -<li class="indx">⸺ allodial, <a href="#Page_111">111</a></li> - -<li class="indx">⸺ not allowed to alienate, <a href="#Page_118">118</a></li> - -<li class="indx">⸺ copyhold, whence derived, <a href="#Page_238">238</a></li> - -<li class="indx">⸺ when subject to fines to their lord, <a href="#Page_239">239</a></li> - -<li class="indx">⸺ their power of alienation, how restricted, <a href="#Page_239"><i>ibid.</i></a></li> - -<li class="indx">⸺ in frankalmoine or free alms, <a href="#Page_267">267</a></li> - -<li class="indx">⸺ in capite, <a href="#Page_383">383</a></li> - -<li class="indx">Toga virilis, what, <a href="#Page_34">34</a></li> - -<li class="indx">Tenures feudal. See <a href="#Fiefs">fiefs</a></li> - -<li class="indx">⸺ subject to fealty, <a href="#Page_57">57</a></li> - -<li class="indx">⸺ military, how forfeited, <a href="#Page_65">65</a></li> - -<li class="indx">⸺ when abolished, <a href="#Page_68">68</a></li> - -<li class="indx">⸺ of the crown, obligations therefrom, <a href="#Page_187">187</a></li> - -<li class="indx">⸺ hereditary, <a href="#Page_65">65</a></li> - -<li class="indx">⸺ the nature of those now held, <a href="#Page_69">69</a></li> - -<li class="indx"><span class="pagenum"><a id="Page_413"></a>[413]</span>⸺ Saxon, <a href="#Page_254">254</a></li> - -<li class="indx">⸺ in ancient demesne, <a href="#Page_224">224</a>, <a href="#Page_241">241</a>, <a href="#Page_288">288</a></li> - -<li class="indx">Temple, the, granted to the practitioners of the law, <a href="#Page_313">313</a></li> - -<li class="indx">Thanes, <a href="#Page_253">253</a>, <a href="#Page_258">258</a></li> - -<li class="indx">Tipperary, its palatinate, <a href="#Page_201">201</a></li> - -<li class="indx" id="Tithes">Tithes introduced among the Franks by Charles Martel, <a href="#Page_54">54</a></li> - -<li class="indx">⸺ when established by law, <a href="#Page_80">80</a></li> - -<li class="indx">⸺ allocated from the bishop to the parish priest, <a href="#Page_82">82</a></li> - -<li class="indx">⸺ an incorporeal benefice, <a href="#Page_86">86</a></li> - -<li class="indx">⸺ originally what, <a href="#Page_87">87</a></li> - -<li class="indx">⸺ first introduced in Egypt, <a href="#Page_87"><i>ibid.</i></a></li> - -<li class="indx">⸺ how distributed there, <a href="#Page_87"><i>ibid.</i></a></li> - -<li class="indx">⸺ how rendered compulsory, <a href="#Page_87"><i>ibid.</i></a></li> - -<li class="indx">⸺ forgeries concerning them, <a href="#Page_88">88</a></li> - -<li class="indx">⸺ divided into rectorial and vicarial, <a href="#Page_89">89</a></li> - -<li class="indx">⸺ how paid in England during the heptarchy, <a href="#Page_89"><i>ibid.</i></a></li> - -<li class="indx">⸺ when made payable to the parish priest, <a href="#Page_91">91</a></li> - -<li class="indx">⸺ monastery lands exempted from them, <a href="#Page_91"><i>ibid.</i></a></li> - -<li class="indx">⸺ settled by a modus, <a href="#Page_91"><i>ibid.</i></a></li> - -<li class="indx">⸺ Cranmer’s intention concerning them, <a href="#Page_92">92</a></li> - -<li class="indx">⸺ when established in England on the footing they now stand, <a href="#Page_93">93</a></li> - -<li class="indx">⸺ their three kinds, <a href="#Page_93"><i>ibid.</i></a></li> - -<li class="indx">Transportation, <a href="#Page_273">273</a></li> - -<li class="indx">Traders and artizans admitted into the general assembly of the people in the thirteenth century, <a href="#Page_34">34</a></li> - -<li class="indx">Treasurer of England, <a href="#Page_249">249</a></li> - -<li class="indx">⸺ presided in the Exchequer court, <a href="#Page_300">300</a></li> - -<li class="indx">Trinoda necessitas, <a href="#Page_256">256</a>, <a href="#Page_264">264</a></li> - -<li class="indx">Trial, methods of, among the old Germans, <a href="#Page_37">37</a></li> - -<li class="indx">⸺ received into England, <a href="#Page_39">39</a></li> - -<li class="indx">⸺ by witness, <a href="#Page_39"><i>ibid.</i></a></li> - -<li class="indx">⸺ ordeal. See <a href="#ordeal">Ordeal</a></li> - -<li class="indx">⸺ by negative proof, <a href="#Page_40">40</a></li> - -<li class="indx">⸺ by battle, <a href="#Page_250">250</a></li> - -<li class="indx">⸺ by grand assize, <a href="#Page_251">251</a></li> - -<li class="indx">⸺ by juries, <a href="#Page_251"><i>ibid.</i></a></li> - -<li class="indx">⸺ by deposition, <a href="#Page_353">353</a>, <a href="#Page_364">364</a></li> - -<li class="indx"><span class="pagenum"><a id="Page_414"></a>[414]</span>Tudor, house of, <a href="#Page_183">183</a>, <a href="#Page_209">209</a></li> - -<li class="ifrst">U</li> - -<li class="indx">Vandals, <a href="#Page_45">45</a></li> - -<li class="indx">Vassals (military) their connections with their king, <a href="#Page_31">31</a></li> - -<li class="indx">⸺ bound by an oath of fealty for life, <a href="#Page_56">56</a></li> - -<li class="indx">⸺ immediate of the king, who, <a href="#Page_65">65</a></li> - -<li class="indx">⸺ now represented by the parliament, <a href="#Page_62">62</a></li> - -<li class="indx">Villein-land, <a href="#Page_226">226</a></li> - -<li class="indx">Villein, a name given to slaves and servants, <a href="#Page_47">47</a></li> - -<li class="indx">⸺ nature of the grants made to them, <a href="#Page_50">50</a></li> - -<li class="indx">⸺ whom reduced to that state, <a href="#Page_174">174</a></li> - -<li class="indx">⸺ feudal, <a href="#Page_224">224</a>, <a href="#Page_225">225</a></li> - -<li class="indx">⸺ their property, <a href="#Page_226">226</a></li> - -<li class="indx">⸺ when allowed to bring actions against their lord, <a href="#Page_229">229</a></li> - -<li class="indx">⸺ their right of purchasing land, <a href="#Page_227">227</a></li> - -<li class="indx">⸺ power of their lords over their property, <a href="#Page_228">228</a></li> - -<li class="indx">⸺ causes of their decrease in England, <a href="#Page_237">237</a></li> - -<li class="indx">Villenage, how destroyed and suspended, <a href="#Page_232">232</a></li> - -<li class="indx">Ulster, county palatine of, <a href="#Page_201">201</a></li> - -<li class="indx">Uncle, the heir of his grand nephew, <a href="#Page_139">139</a></li> - -<li class="indx">University of Dublin, its situation for the study of the law, <a href="#Page_12">12</a></li> - -<li class="indx">⸺ of Oxford, <a href="#Page_10">10</a></li> - -<li class="indx">Universities, <a href="#Page_7">7</a>, <a href="#Page_11">11</a>, <a href="#Page_12">12</a></li> - -<li class="indx">Voucher, appearance upon, <a href="#Page_65">65</a></li> - -<li class="indx">Uses, doctrine of, <a href="#Page_151">151</a>, <a href="#Page_241">241</a></li> - -<li class="indx">Usury, <a href="#Page_4">4</a></li> - -<li class="indx">Uses and Trust, <a href="#Page_388">388</a></li> - -<li class="ifrst">W</li> - -<li class="indx">Wager of the law, <a href="#Page_40">40</a>, <a href="#Page_250">250</a>, <a href="#Page_352">352</a></li> - -<li class="indx">Wages to members of parliament, how to be levied, <a href="#Page_101">101</a></li> - -<li class="indx" id="Wardship">Wardship in chivalry, laws respecting it, <a href="#Page_123">123</a>, <a href="#Page_126">126</a></li> - -<li class="indx">⸺ in socage, <a href="#Page_127">127</a></li> - -<li class="indx">⸺ how differing from wardship in chivalry, <a href="#Page_128">128</a></li> - -<li class="indx">⸺ obligations on the guardian, <a href="#Page_128"><i>ibid.</i></a></li> - -<li class="indx">⸺ penalty on marriage without the consent of the lord, <a href="#Page_129">129</a></li> - -<li class="indx">⸺ its evils, <a href="#Page_133">133</a></li> - -<li class="indx">⸺ not comprehended in Saxon tenures, <a href="#Page_261">261</a></li> - -<li class="indx">Warranty, <a href="#Page_119">119</a></li> - -<li class="indx"><span class="pagenum"><a id="Page_415"></a>[415]</span>⸺ collateral, <a href="#Page_164">164</a></li> - -<li class="indx">Warwick, Earl of, <a href="#Page_133">133</a></li> - -<li class="indx">Waste, committing of, <a href="#Page_66">66</a></li> - -<li class="indx">William the Conqueror, <a href="#Page_137">137</a>, <a href="#Page_163">163</a>, <a href="#Page_212">212</a>, <a href="#Page_258">258</a>, <a href="#Page_262">262</a>, <a href="#Page_264">264</a>, <a href="#Page_266">266</a>, <a href="#Page_267">267</a>, <a href="#Page_268">268</a>, <a href="#Page_270">270</a>, <a href="#Page_273">273</a>, <a href="#Page_274">274</a></li> - -<li class="indx">⸺ Rufus, <a href="#Page_278">278</a></li> - -<li class="indx">Wills and testaments, unknown to the Franks, <a href="#Page_35">35</a></li> - -<li class="indx">⸺ lands not devisable thereby, <a href="#Page_145">145</a></li> - -<li class="indx">⸺ how rendered devisable, <a href="#Page_151">151</a>, <a href="#Page_152">152</a></li> - -<li class="indx">⸺ required to be in writing, <a href="#Page_152">152</a></li> - -<li class="indx">⸺ further requisitions, <a href="#Page_152"><i>ibid.</i></a></li> - -<li class="indx">⸺ copyholds not devisable thereby, <a href="#Page_240">240</a></li> - -<li class="indx">Wiltshire, John, <a href="#Page_72">72</a></li> - -<li class="indx">Wittenagemots of the Saxons, <a href="#Page_180">180</a>, <a href="#Page_212">212</a></li> - -<li class="indx">Wright, <a href="#Page_265">265</a></li> - -<li class="indx">Writ of chancery to recover by replevin, <a href="#Page_104">104</a></li> - -<li class="indx">⸺ election to parliament, <a href="#Page_190">190</a>, <a href="#Page_191">191</a></li> - -<li class="indx">⸺ error, <a href="#Page_200">200</a>, <a href="#Page_316">316</a></li> - -<li class="indx">⸺ nativo habendo, <a href="#Page_231">231</a></li> - -<li class="indx">⸺ assize, <a href="#Page_293">293</a></li> - -<li class="indx">⸺ false judgment, <a href="#Page_297">297</a></li> - -<li class="indx">⸺ scire facias, <a href="#Page_219">219</a>, <a href="#Page_305">305</a></li> - -<li class="indx">⸺ original, <a href="#Page_308">308</a></li> - -<li class="indx">⸺ by a master in chancery, <a href="#Page_309">309</a></li> - -<li class="indx">⸺ de odio & atia, <a href="#Page_351">351</a></li> - -<li class="indx">⸺ of capias, <a href="#Page_357">357</a></li> - -<li class="indx">⸺ alias, <a href="#Page_357"><i>ibid.</i></a></li> - -<li class="indx">⸺ pluries, <a href="#Page_357"><i>ibid.</i></a></li> - -<li class="indx">⸺ exigent, <a href="#Page_358">358</a></li> - -<li class="indx">⸺ entry, <a href="#Page_365">365</a></li> - -<li class="indx">⸺ de homine replegiando, <a href="#Page_371">371</a>.</li> - 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