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HISTORY 


OF      T  H  ^ 


ENGLISH      LA  W. 


VOL.       I. 


r/^/yjuS 


HISTORY 


O  F    T  H  E 


ENGLISH     LAW, 


FROM     THE 


TIME   of  the   SAXONS, 

TO      THE 

END  of  the  REIGN  of  PHILIP  and  MARY. 
By     JOHN    REEVES,     Efq. 

BARRISTER     AT     LAW. 


THE    SECOND    EDITION. 


IN    FOUR    VOLUMES. 
VOL.      I. 


LONDON: 

Printed    for    E.   Brooke,    Bell-Yard,    Temple-Bar, 

M,DCC,LXXXVII, 


\v 


R      E      F      A      C      E. 


J.  H  E  Hidory  which  1  now  prefume  to  offer  to 
the  profefTion  of  the  law,  is  an  attempt  to  invefti- 
gate  and  difcover  the  firft  principles  of  that  compli- 
cated fyflem  which  we  are  daily  difcufling. 

It  has  happened  to  the  law  as  to  other  produc- 
tions of  human  invention,  particularly  thofe  which 
are  clofely  connecled  with  the  tranfaclions  of 
mankind,  that  a  feries  of  years  has  gradually 
wrought  fuch  changes,  as  to  render  many  parts 
of  it  obfolete ;  fo  that  the  jurifprudence  of 
one  age  has  become  the  object  of  mere  hiftoric 
remembrance  in  another.  Of  the  numerous 
volumes  that  compofe  a  lawyer's  library,  how- 
many  are  configned  to  oblivion  by  the  revolu- 
tions in  opinions  and  piadice ;  and  w^hat  a  fmall 
part  of  thofe  which  are  (till  confidered  as  in  ufe, 
is  neceffary  for  the  purpofes  of  common  bufmefs  ! 
Notwithflanding,  therefore,  the  multitude  of 
Books,  the  refearches  of  a  lawyer  are  confined 
to  writers  of  a  certain  period.,  According  to  the 
prefent  courfe  of  fludy,  very  few  indeed  look 
further  tlian  Coke  and  Ploiuden.  Upon  the  fame 
fcale  of  inquiry,  the  l^car-Books  are  confidered 
rather  in  the  light  of  antiquities ;  and  Glanvrlle, 
Bracfon,  and  Flcta^  as  no  longer  a  part  of  our  law. 

It 


iv  PREFACE. 

9 

It  is  in  fuch  a  flate  of  our  jurifprudence  that 
a  hiftory  of  the  caufes  and  fleps  by  which  thefe 
revolutions  in  legal  learning  have  been  effeQed, 
becomes  curious  and  ufeful.  But,  notwith (land- 
ing the  inquifitive  fpirit  of  the  prefent  age  has  given 
birth  to  hiflories  of  various  fciences,  we  have  no- 
thing of  this  kind  upon  our  law,  except  Sir  Mat- 
THEW  Hale's  Hiftory  of  the  Common  Law^  pub- 
lifhed  from  a  pofthumous  manufcript  at  the  begin- 
ning of  the  prefent  century.  There  have  not, 
however,  been  wanting  hiftorical  difcourfes,  which 
have  incidentally,  and  in  a  popular  way,  examined 
the  progrefs  of  certain  branches  of  the  law,  and 
during  certain  periods ;  fuch  as  thofe  of  Bacon, 
Sullivan,  Dalry?npley  Henry^  and  others. 

Sir  Matthew  Hale,  as  a  writer  upon  Eng- 
lifh  law,  poflefTes  a  reputation  which  can  neither 
be  increafed  nor  diminifhed  by  any  thing  that  may 
be  faid  of  his  Hiftory.  We  may  therefore  freely 
obferve,  that  it  is  only  an  imperfeft  fketch,  contain- 
ing nothing  very  important  nor  very  new.  What 
feemed  moft  to  be  expct^eci.  namely,  an  account  of 
the  changes  made  in  the  rules  and  maxims  of  the 
law,  is  very  lightly  touched.  In  fliort,  the  early 
period  to  which  this  work  is  confmcd,  and  the  cur- 
fory  way  in  v*'hich  that  period  is  treated,  fcarcely 
ferve  to  give  a  tafte  cf  what  a  hiftory  of  the  lav/ 

might  be. 

Sir  William  Blackstone,  though  in  a 
fmaller    compafs,    Iras    given   a  plan  of  a  much 

better 


PREFACE.  V 

better  hiftory  than  the  former;  and  if  the  one  excit- 
ed a  wifh  for  fomething  more  complete,  the  other 
feems  to  have  traced  out  a  fcheme  upon  which 
it  might  be  executed.  It  was  the  chapter  at  the 
end  of  the  Commentaries  which  perfuaded  me  of 
the  utility  of  fuch  a  work,  if  filled  up  with  fome 
minutenefs  upon  the  outline  there  drawn.  It 
feemed,  that  after  a  perufal  of  that  excellent 
performance,  the  fludent's  curiofity  is  naturally 
led  to  enquire  further  into  the  origin  of  the  law, 
with  its  progrefs  to  the  ftate  at  which  it  is  now 
arrived. 

The  plan  on  which  I  have  purfued  this  at- 
tempt at  a  Hiftory  of  our  Law,  is  wholly  new. 
I  found  that  modern  writers,  in  difcourfmg  of 
the  antient  law,  were  too  apt  to  fpcak  in  modern 
terms,  and  generally  with  a  reference  to  fome  mo- 
dern ufage.  Hence  it  followed,  that  what  they 
adduced  .was  too  often  diflorted  and  mifrepre- 
fented,  with  a  view  of  difplaying,  and  account- 
ing for,  certain  coincidences  in  the  law  at  different 
periods.  As  this  had  a  tendency  to  produce  very 
great  miftakes,  it  appeared  to  me,  that,  in  or- 
der to  have  a  right  conception  of  our  old  jurif- 
prudence,  it  would  be  neceffary  to  forget  for  a 
while  everv  alteration  which  had  been  made 
fmce,  to  enter  upon  it  with  a  mind  wholly  un- 
prejudiced, and  to  perufe  it  with  the  fame  atten- 
tion that  is  beflowed  on  a  fyflem  of  modern 
law.  The  law  of  the  time  would  then  be  learned 
in  the  languaire  of  the  time,  untinclured  with  new 
opinions ;   and  when  that  was  clearly  underftood, 

the 


71  PREFACE. 

the  alterations  made  therein  in  fubfequcnt  pe- 
riods might  be  deduced,  and  exhibited  to  the 
mind  of  a  modern  jurifl  in  the  true  colours  in 
which  they  appeared  to  perfons  who  lived  in  thofe 
refpe^live  periods.  Upon  the  fame  reafoning,  it 
appeared  to  me,  that  if  our  ftatutes,  and  the  in- 
terpretation of  them,  with  the  variations  that  have 
happened  in  the  maxims,  rules,  and  do6lrines  of 
the  law,  were  prefented  to  the  reader  in  the  order 
in  which  they  fucceflively  originated ;  fuch  a 
hiftory,  from  the  beginning  of  our  carliefl  memo- 
rials down  to  the  prefent  time,  would  not  only 
convey  a  jufl  and  complete  account  of  our  whole 
law  as  it  ftands  at  this  day,  but  place  many  parts 
of  it  in  a  new  and  more  advantageous  light,  than 
could  be  derived  from  any  inflitutional  fyflem; 
in  proportion  as  an  arrangement  conformable 
with  the  nature  of  the  fubjedt,  furpafles  one  that 
is  merely  artificiaL 

The  following  volumes  are  written  upon  this 
idea;  and  being,  in  that  view,  an  introductory 
work,  they  will,  I  trull:,  be  as  intelligible  to  a  perfon 
unacquainted  with  law-books,  as  to  thofe  of  the  pro- 
felTion.  It  was  partly  with  this  defign  that  I  have 
contented  myfelf  with  a  fimple  narrative,  making 
few  allufions  to  what  the  law  became  in  later 
times,  but  leaving  that  to  be  mentioned  in  its  pro- 
per place.  Many  inferences  and  difcuiTions  which 
feem  to  be  fuggefted  by  our  antient  laws  have 
not  entirely  efcaped  me ;  but  are  referved  for  a 
place  to  which,  agreeably  with  the  plan  of  this 
Hiftory,  I  thought  them  better  adapted.     Every 

one 


PREFACE.  vii 

t 

one  who  looks  into  our  old  law,  feels  a  ftrong 
propenfity  for  remarking  on  the  changes  it 
has  fince  undergone ;  but  when  the  feveral  fteps 
which  led  to  thofe  changes  are  traced  in  a  con- 
tinued narrative  down  to  the  prefent  time,  fuch 
obfervations  would  be  premature,  unneceflary, 
and  irkfome. 

My  objed  being  jurifprudence,  and  not  anti- 
quities, I  have  confined  my  refearches  to  certain 
printed  books  of  eftablifhed  reputation  and  autho- 
rity, where  alone  I  could  hope  to  find  the  juridical 
hiftory  of  the  times  in  which  they  were  written.  It 
may  not,  perhaps,  be  unfatisfadory  to  the  reader, 
who  knows  what  refpe£l  is  due  to  the  venerable 
remains  of  our  ancient  law,  to  be  told,  that  the 
whole  of  Glanville,  and  what  feemed  to  be 
the  mod  interefling  part  of  Bracton,  is  incorpo- 
rated into  this  work. 

A  FEW  obfervations  may  be  neceflfary  to 
prevent  the  reader  being  difappointed  in  that 
part  of  the  following  work  which  treats  of 
the  ftatutes.  The  old  flatutes  have  long  been 
confidered  in  a  remote  point  of  view ;  being 
rarely  taken  into  the  courfe  of  a  {Indent's  read- 
ing, but  referred  to  as  occafion  requires,  and 
are  then  underflood  by  the  help  of  notes  and 
commentaries.  It  might  be  expeded,  that  a 
lliitory  of  the  Law  fliould  furnifh  more  notes 
and  more  commentaries  upon  this  fubjeft,  as  the 
only  known  means  of  illuftration :  on  the  con- 
trary, the  laws  of  Henry  III.  and  Edward  I.  are 
here  very  little  more  than  clearly  flated,  in  a  Ian- 

guage 


viii  PREFACE. 

guagc  fomewkat  more  readable,  if  I  may  ufe  the 
exprelTioii,  than  that  of  the  Statute-Book. 

What  was  before  faid  upon  the  general  de- 
fign  of  the  work,  will,  I  hope,  fatisfy  the  reader 
that  nothing  further  was  requifite  on  this  fubjeft. 
As  an  account  of  the  revolutions  in  our  law  an- 
tecedent to  the  making  of  thofc  flatutes,  mull,  all 
together,  contain  an  account  of  the  law  as  it  flood 
when  they  were  made,  it  follows,  that  the  reader 
enters  upon  tliem  with  a  previous  information, 
which  will  enable  him  to  comprehend  their  import, 
on  the  bare  ftatement  of  their  contents.  As  to 
the  opinions  and  principles  that  were  founded  on 
thofe  ftatutes  in  after-ages,  to  take  any  notice  of 
them  would  not  only  exceed  the  plan  of  the  work, 
but  very  often  anticipate  the  materials  which 
are  to  contribute  towards  the  fubfequent  parts 
of  the  Hidory, 

The  text  of  our  old  flatutes  was  tranflatcd 
in  the  time  of  Henry  VI II.  The  ear  of  a  lav/yer, 
by  long  ufe  and  frequent  quotation,  has  been 
fo  familiarized  to  the  lanr^uage  of  this  tran- 
flation,  that  it  lias  obtained  in  fome  mcafure 
the  credit  of  an  original.  Conformably  with  the 
general  deference  paid  to  this  tranflation,  1  have 
moilly  followed  the  words  of  it,  except  where  I 
found  it  deviated  from  the  text,  or  the  matter  re- 
quired to  be  treated  more  clofely,  or  more  para- 
phradically. 

There  is  one  point  of  juridical  hidory  which 
has  been  greatly  mifconceived  by  many.  It  has 
been    apprehended,    that    much    light    might    be 

thrown 


PREFACE.  ix 

thrown  on  our  (latutes  by  the  civil  hiilory  of  the 
times  in  which  they  were  made ;  but  it  will  be 
found,  on  enquiry,  that  thefe  expectations  are 
rarely  fatisfied.  The  /^jr-hiflorians,  like  the  body 
of  the  people,  were  as  unconcerned  in  the  great 
revolutions  of  legal  learning  in  thofe  days,  as  in 
ours :  and  we  now  fee  a  flatute  for  enclofmg  a 
common,  or  ere«Sling  a  work-houfe,  make  no 
fmall  figure  in  the  debates  of  parliament ;  while 
an  a£i:  for  the  amendment  of  the  law^  in  the  moll 
material  inflances.  Hides  through  in  filence.  Yet 
the  latter  would  become- an  important  fad  to  the 
juridical  hiflorian,  while  the  former  was  pafTed 
by  unnoticed.  I  believe  little  is  to  be  acquired 
by  travelling  out  of  the  record ;  I  mean,  out  of 
the  (latutes  and  year-books,  the  parliament-rolls, 
and  law-tracls. 

The  following  Hiftory  to  the  end  of  Edvv^ard  I. 
was  publifhed  in  one  volume  in  quarto,  in  March 
1783;  the  remainder,  as  far  as  the  end  of 
Henry  VII.  in  March  1784.  Thefe  two  volumes 
have  undergone  a  revifion,  and  have  received 
fome  confiderable  additions.  I  have  alfo  fub- 
joined  the  reigns  of  Henry  VIII.  Edward  VI. 
and  queen  Mary,  or,  as  it  is  more  properly  (tiled 
by  lawyers,  Philip  and  Mary.  This  brings  us 
to  the  clofe  of  that  period,  which  appears  to  be 
almoft  wholly  abandoned  to  the  refearches^of  the 
juridical  hiflorian.  Vv^c  have  pailcd  the  times  of 
the  Year-Books,  and  of  their  appendages,  Fitzher- 
bert  and  Brooke,  the  manuals  of  pradicers  in 
former  times :    w^e  have  even  touched    on   thofe 

materials, 


X  PREFACE. 

materials,  to  which  the  pradicers  of  the  prefent 
day  do  not  difdain  to  owe  obligations.  Dyer  and 
Plowden  Hand  among  the  earliefl  of  thofe  autho- 
rities that  are  vouched  in  Bacon^  in  Viner^  and  in 
Comynsy  who  rarely  refer  to  any  antecedent  to  the 
reign  of  Elizabeth. 

At  this  jundure  in  our  legal  annals,  between 
the  law  of  former  days  and  that  of  the  pre- 
fent, we  may  be  permitted  to  paufe  for  a  while. 
A  new  order  of  things  feems  to  commence  with 
the  reign  of  Elizabeth,  which  flrikes  the  imagi- 
nation as  a  favourable  point  of  time  for  re- 
fuming  this  hiftorical  enquiry  afrefh. 

In  purfuing  the  changes  in  our  laws  thus  far, 
it  is  hoped,  that  if  nothing  is  added  to  the  flock 
of  profeflional  information,  fomething  is  done 
towards  giving  it  fuch  illuftration  and  novelty 
as  may  aflifl  the  early  enquiries  of  the  fludent. 
The  invefligation  here  made  into  the  origin  of 
Englifh  tenures,  the  law  of  real  property,  the  na- 
ture of  writs,  and  the  antient  and  more  fmiple 
practice  of  real  adions,  may,  perhaps,  facilitate 
the  fludent*s  pafl'age  from  BIack/ione*s  Commen- 
taries to  Coke  upon  Littleton^  and  better  qualify 
him  to  confider  the  many  points  of  ancient  law 
which  are  difculTed  in  that  learned  work. 


Jan.  25,  J.   R 

1787. 


CONTENTS 


OF     THE 


FIRST      VOLUME, 


HAP.        I. 

X        O        N 


X  HE  Laws  of  the  Saxons — ^Thainland  and  Rcveiand 
— Freemen — Slaves — The  Tourn — County  Court — 
Other  inferior  Courts — ^The  Wittenagemote — Nature  of 
Landed  Property — Method  of  Conveyance — Decennaries 
— Criminal  Law — Were — Murder — Larceny — Deadly 
Feuds — San6luary — Ordeal — Trials  in  Civil  Suits — 
Alfred's  Domboc — Compilation  made  by  Edward  the 
Confefibr — Saxon  Laws. 

CHAP.  IL 

WILLIAM  the  CONQUEROR  to  JOHN. 

The  Conqueft — Saxon  Laws  confirmed — ^The  Laws  of 
William  the  Conqueror — Trial  by  Duel  in  Criminal 
Queflions — Eftablifliment  of  Tenures — Nature  of  Te- 
nures— Different  Kinds  of  Tenures — Villenage — Of 
Efcuage— Confequences  of  Tenure — Of  Primogeniture 

—Of 


CONTENTS. 

— Of  Alienation — Of  Judicature — The  Curia  Regis — 
Juftices  Itinerant — The  Bench — The  Chancery — Judica- 
ture of  the  Council — Of  the  Spiritual  Court — Of  the 
Civil  and  Canon  Law — Do6lrines  of  the  Canon  Law — 
Probate  of  Wills — Conftitutions  of  Clarendon — Of 
Trial  by  Duel  in  Civil  Qu.eftions — Of  Trial  by  Jury — 
by  the  AfTife — Of  Deeds — A  Feoffment — A  Fine— Of 
Writs — Of  Records. 

C     HA     P.         m. 

WILLIAM  the  CONQUEROR  to  JOHN. 

Of  Villains — Dower Alienation '*  Nemo  poteft  cffc 

H?eres  et  Dominus" — Of  Defcent — Of  Teflaments — 
Of  Wardfliip — Marriage — Of  B'aflardy — Ufurers — 
Of  Efcheat — Maritagium — Homage — Relief — Aids — 
Adminiftration  of  Juftice — A  Writ  of  Right — Eflbins 

Of   Summons — Of  Attachment Counting  upon 

the  Writ—The   Duel The     AlTife — Vouching    to 

Warranty — Writ  of  Right  of  Advowfon — Of  Prohibi- 
tion to  the  Ecclefiaftical  Court — The  Writ  de  Nativis — 
Writ  of  Right  of  Dower — Dower  unde  Nihil. 

CHAP.       rv. 

WILLIAM  the  CONQUEROR  to  JOHN. 

Of  Fines — Of  Records — Writ  de  Homagio  recipicndo 
— Purprefture — De  Debitis  Laicorum — Of  Sureties — 
Mortgages — Debts  ex  empto  et  vendito — Of  Attornies 

Writ  of  Right  in  the  Lord's  Court — Of  Writs  of 

Juflicies — Writs  of  Replevin — and  of  Prohibition — 
Of  Recognitions — Aflifa  Mortis  AntecefToris — Excep- 
tions to  the  Aflife — Aflifa  Ultimae  Prsefcntationis — Afiifa 
Novje  DifTeifinje — Of  Terms  and  Vacations — The  Cri- 
minal 


CONTENTS. 

minal  Law — Of  Abjuration — Mode  of  Profecutlon — 
Forfeiture — Flomicidc — Rape — Proceeding  before  Juf- 
tices  Itinerant  —  The  King  and  Government — The 
Charters — The  Characters  of  thefe  Kings  as  Legiflators 
— Laws  of  William  the  Conqueror — Of  the  Statutes — 
Domefday  J3ook — Glanville — Mifccllaneous  Fac^A. 

CHAP.        V. 

HEN       R      Y  III, 

Magna  Charta — Tenures — Alienation — Mortmaiii — Com- 
munia  Placita  non  fequantur  Curiam  noftram — Juftices 
of  Aflife — Amercements — Nullus  liber  Homo,  Sec. — 
Praecipe  in  Capite — SherifFs  Criminal  Judicature — The 
Writ  de  Odio  et  Atia — Charta  de  Forefta — The  Judica- 
ture of  theForeft — Punifhments — Charters  confirmed — 
Statutum  Hibernix — Statute  of  Merton — Of  Commons 
— Of  Special  Baftardy — Ranks  of  Perfons — Of  Ville- 
nage — Of  Free  Services — Of  Serjeanty — Scutagiuni — 
Homage  and  Fealty — Of  Wardfliip  and  Marriage — Of 
Gifts  and  Land — by  whom — to  whom — Of  Simple  Gifts 
— Of  Conditional  Gifts — Eftates  by  the  Courtefy — Of 
Reverfions — Gifts  ad  Terminum — Livery — Rights — 
Teftaments — Ecclefialtical  JurifdiClicn  therein — Of  De- 
fcent — De  Partu  Suppofito — Of  Partition — Dower. 

CHAP.         VL 
H      E      N      R      Y^        in. 

Of  Aaions— Of  Courts— Writs— Of  DiiTcifin— AOlfe  of 
Novel  Difleifm — Form  of  the  Writ — Proceeding  thereon 
— Of  the  Verdi£l — Exceptions  to  the  Alhfe — AfTifa  ver- 
titur  in  Juratam — Quare  ejccit  infra  Terminum — AfCfe 
Common — Of  Nuifance — Aflifa  Ultimae  Prxfentationis 
— Exceptions  thereto — Of  Quare  Impedit— Quare  non 

Permittat 


CONTENTS. 

Permittat — Afiifa  Mortis  Antcccflbris — Vouching  of 
Warrantor — Where  this  Writ  would  lie — Writ  de 
Confanguinitate — Quod  Permittat — AfTifa  Utrum — Of 
Convi6fions — and  Certificates — Of  different  Trials — 
Dower  unde  Nihil — Writ  of  Right  of  Dower — Of 
Wafte— Of  Writs  of  Entry— Different  Kinds  thereof. 

CHAP.  VIL 

HENRY  III. 

Writ  of   Right  in   the  Lord's  Court — Procefs  in  Real 
A£tions — Summons — Of  EfToins — De  Malo  Le£^i — 
Defaults — Magnum  Cape—Warrant  de  Servitio  Regis 
— Parvum  Cape — Writ  of  Quo  Warranto — The  Count 
— Tender  of  the  Demi  Mark — Defence — Of  granting  a 
View — Vouching   to  Warranty — Nature  of  Warranty 
—Proof  of  Charters- -Warrantia  Chartse — Of  Pleading 
— Of   Prohibitions — Attachment    fur   Prohibition— Of 
Jurifdi£tion — Abatement    of   the   Writ — Pleas   to   the 
Perfon— Of  Baftardy — Writ  to  the  Ordinary— Of  Mi- 
nority— Excommunication — Parceners — Pleas  to  the 
A£lion — Non  Tenure — Majus  Jus — Releafe — Fine  and 
Non  Claim — Of  Perfonal  Adions — Attachment — Exe- 
cution of  the  Writ. 


HISTORY 


»i—a«Mapa———aBMtBMaM—g^Bgaaay -'"•""'' Bi»a 


Cl/.-'/L   >1 


HISTORY 


OF      THE 


ENGLISH*     LAW, 


SAXONS. 


T  H  E    S    A    X     O    N    S. 

^he  Laius  oftheSaxoJU> — ThatJilafid and  Revelafid — FreempK 
— Slaves — The  Tourn^County  Court- — Other  inferior 
Courts^^The  JVittenagemote — Natur£  of  Landed  Property 
— Method  of  Conveyance — Decennaries- — CrintinalLaiv — 
U^ere-r-Murder''-~Larceny^^^Deadly  Feuds —  SanEluary^- 
Ordeal — Trials  in  Civil  Suits-"- Alfred^ s  Domboc — Coi7i^ 
pilation  made  by  Ednvard  the  CotfeffoV' — Saxon  Laws. 

A  H  E  Law  of  England  is  conftituted  of  acls  of  parlia-     C  H  ^  P.    I. 
ment  and  the  cuflora  of  the  realm ;  on  both  vhich  courts 
of  juftice  cxercife  their  judgment;  giving  conRru6tion  and 
effect  to  the  former;  and,  by  their  interpretation,  declaring 
what  is  and  what  is  not  the  latter. 

We  poflefs  many  of  thefe  ads  of  parliament  from  Magna 
Charta  9.  Hen.  IIL  to  the  time  of  Edward  IIL  and  from 
thence  in  a  regular  feries  to  the  prefent.time.  Theftatutes, 
except  fome  very  few,  enabled  by  the  legiflaturc  before 
that  period,  are  loft;  though,  no  doubt,  many  of  the  regu- 
lations made  by  them,  having  blended  themfclves  with  the 
cuftom  of  the  realm,  have  httn  received  under  that  deno- 
mination, fince  the  evidence  of  their  parliamentary  origin 
is  deftroyed.  The  cuftom  of  the  realm,  or  the  common 
VojL.  L  B  iaiu^ 


2  H  I  S  T  O  R  Y      O  F     T  H  E 

CHAP.  I.  laioy  confids  of  thofe  rules  and  maxims  concerning  the 
SAXONS  perfons  and  property  of  men,  that  have  obtained  by  the 
tacit  afient  and  ufage  of  the  inhabitants  of  this  country ; 
being  of  the  fame  force  with  a6ls  of  the  legiflature  :  the 
only  difference  between  the  two  is  this;  the  confent  and 
approbation  of  the  people  with  refpe£t  to  the  one,  is  fignified 
by  their  immemorial  ufe  and  praclice*,  their  approbation  of, 
and  confent  to  the  other  is  declared  by  parliament,  to  the 
acls  of  which  every  one  is  confidered  as  virtually  a  party. 

The  common  law,  like  our  language,  is  of  a  various  and 
motley  origin-,  as  various  as  the  nations  that  have  peopled 
this  country  in  difrcient  parts  and  at  different  periods. 
Some  of  it  is  derived  from  the  Britons,  and  fome  from  the 
Romans,  from  the  Saxons,  the  Danes,  and  the  Normans. 
To  recount  what  innovations  were  made  by  the  fuccelhon 
of  thefe  diflerent  nations,  or  eftimaie  what  proportion  of 
the  cuftoms  of  each  go  to  the  compofing  of  our  body  of 
common  law,  would  be  impofTible  at  this  diftance  of  time. 
As  to  a  great  part  of  this  period,  we  have  no  monuments 
of  antiquity  to  guide  us  in  our  enquiry ;  and  the  lights 
which  gleam  upon  the  other  part  aiTord  but  a  dim  profpe6l. 
Our  conjedlures  can  only  be  afllfted  by  the  hiftory  of  the  re- 
volutions efFe^bed  by  thefe  feveral  nations. 

Certain  it  is,  that  the  Romans  had  eflabllfhments  in 
this  ifland,  more  or  lefs,  from  the  time  of  Claudius ;  that 
they  did  not  finally  leave  it  till  the  year  448,  A.  D.  and 
that  during  great  part  of  that  period  they  governed  it  as  a 
Roman  province,  in  the  enjoyment  of  peace,  and  the  culti- 
vation of  arts.  The  Roman  laws  were  adminiftered  as 
the  laws  of  the  country;  and,  at  one  time,  under  the  pre- 
feclure  of  that  diftinguifhed  ornament  of  them,  Papinian, 
When*  thefe  people  were  conflirained  to  defert  Britain,  and 
sttend  to  their  domeftic  fafety,  the  Pitls  and  Scots  broke  in 
upon  the  peaceable  inhabitants  of  the  fouthern  parts;  who, 
unable  to  refift  the  attack,  at  length  applied  to  the  Saxons 
for  afTiftance.  Several  tribes  of  Saxons  landed  here,  and 
firft  drove  the  northern  invaders  within  their  own  borders; 

then 


ENGLISH      LAW. 


CHAP.     I. 


then  turned  their  arms  againft  the  Britons  themfelves-,  and 
having  forced  great  numbers  of  them  into  the  mountains    YaxOnT. 
of  Wales,  fubjeded  the  reft  to  their  dominion,  which  gra- 
dually fubfided  into  feven  independent  kingdoms. 

The  circumftances  of  this  revolution  are  related  to  be 
of  a  kind  differing  from  moft  others.  The  Saxons  are  de- 
fcribed  as  a  rude  and  bloody  race;  who,  beyond  any  other 
tribe  of  northern  people,  fet  themfeWes  to  exterminate  the 
original  inhabitants,  and  deftroy  ^ver.y  monument^nd  re- 
mains of  their  eftablllhment.  In  fo  general  a  ruin,  it  can- 
not be  imagined  that  the  cuftoms  of  the  native  Britons,  or 
the  laws  ingrafted  upon  them  by  the  Romans,  could  meet 
with  any  favour. 

The  kingdoms  of  the  Heptarchy  were,  for  a  time,  in- 
dependent of  each  other ;  and  though  a  like  ftate  of  fo- 
ciety  and  manners  prevailing  in  all  of  them  muft  of  courfc 
have  produced  the  like  fpirit  and  principle  of  legiflatlon 
in  common,  yet  their  laws  muft  have  been  fpecifically 
different.  Hence  grew  a  variety  of  laws  among  the 
Saxons  themfelves.  In  the  reign  of  Alfred,  the  Danes, 
who  had  long  harrafled  the  kingdom,  were  by  folemri 
treaty  fettled  in  Northumberland  and  the  country  of  the 
Eaft  Angles,  belides  great  numbers  fcattered  all  over  the 
realm.  The  Danes  were  after  this  confidered,  in  fome 
meafure,  as  a  part  of  the  nation.  They  were  fuffered  to 
enjoy  their  own  laws  within  their  diftri£l;  and  thefe,  when 
their  own  kings  fat  upon  the  Englifh  throne,  pervaded, 
in  fome  degree,  all  parts  of  the  country. 

From  thefe  various  caufes  it  happened,  that  towards  J^-^^^o^ths 

^'  Saxons. 

the  latter  part  of  the  Saxon  times,  the  kingdom  was  go- 
verned by  feveral  different  laws  and  local  cuftoms.  The 
moft  general  of  all  thefe  were  the  three  following ;  the 
Mercian  LniUj  the  JVefi-Saxofi  LaWj  and  the  Danifi  Law, 
If  any  of  the  BrItKh  or  Roman  cuftoms  ftill  fubCfted,  they 
were  funk  into,  and  loft  in  one  of  thefe  laws ;  which  go- 
verned the  whole  kingdom,  and  have  fince  received  the 
general  appellation  of  The  Common  Law. 

B  2  The 


HISTORY      OF     THE 

The  bldory  of  this  body  of  common  law,  with  the  di- 
vers alterations  and  improvements  which  its  rules,  its  prin- 
ciples, and  its  pra6lice,  have  received  at  different  times 
by  a£ls  of  parliament,  and  by  the  decifions  of  courts,  we 
(hall  endeavour  to  inveiligate  and  deduce  in  the  following 
Hiftory. 

The  great  obfcurity  in  which  all  enquiries  concerning 
thefe  times  are  involved,  renders  it  impoflible  to  trace  the 
hiftory  of  laws  with  much  certainty.  For  the  prefent  we 
muft  be  content,  if  we  can  collect  what  were  the  outline 
and  ftriking  features  of  the  Saxon  jurifprudence  in  gene- 
ral; without  entering  into  any  nice  difcuflion  about  the 
time  and  manner  of  the  particular  changes  it  might  un- 
dergo during  the  long  period  before  the  Conqueft. 

If  the  law  of  a  country  is  circumfcribed  m  its  extent  by 
the  bounds  of  a  realm,  much  of  its  influence  and  ope- 
ration depends  on  the  internal  divifions  of  it ;  and  a  hif- 
tory of  the  law  would  be  incomplete  without  noticing  the 
parts  of  a  kingdom  -,  fo  far,  at  leaft,  as  the  procefs  of  legal 
proceeding  is  affecled  by  provincial  limits. 

The  divifion  of  England  into  counties  is  very  ancient; 
but  is  faid  to  have  been  reduced  to  its  prefent  appearance  by 
Alfred.  That  great  Prince  carried  his  fcheme  yet  further; 
and  fubdivided  counties  into  hundreds^  and  hundreds  again 
into  tythings.  This  parcelling  out  of  the  kingdom  into 
fmall  dlftricls,  was  made  fubfervient  to  the  well-ordering 
of  the  police,  and  the  due' adminiftration  of  juftice;  as 
will  be  feen  prefently.  There  was  another  divifion  purely 
ecclefiailical.  Parijhcsy  and  even  mother-churches,  were 
knov/n  fo  early  as  the  time  of  king  Edgar,  about  the  year 
970 ;  for  the  confecratlon  of  tythcs  before  that  time  being 
arbitrary^  it  was  ordained  by  a  law  of  that  king%  that 
all  tythes  (hould  be  paid  ccchjta  ad  qunm  parochia  pertinet. 
Befidcs  thefe  divifions,  there  was  another  that  had  refe- 
rence to  the  conditions  under  which  the  land  of  every  one 

'  Leg    Eadg.  cap.    I. 

was 


ENGLISH      LAW. 

was  pofiefled ;   a  divifion  which  regarded  the  nature,  de-     CHAP. 
fcription,  and  incitlents  of  landed  property.     On  this,  to-     saxo  N  S 
gether  with  that  of  counties,  depended  the  bounds  and 
extent  of  judicature. 

The  lands  of  the  Saxons  were  divided  into  tha'wlatid  Thainland  «nd 
and  reveland.  Land  granted  to  the  thahiSy  or  lords,  was  ^'^^*^'*"**- 
called  thainland :  That  over  which  the  king^s  officer 
(called  in  their  languagey^/;v;Ti;^,  fince  fhcriff)  had  jurif- 
di61ion,  was  called  reveland.  Again,  the  former  being 
held  by  charter,  was  otherwife  called  bocland,  or  boohlaiid : 
Land  of  the  other  kind,  being  held  without  writing  (pro- 
bably by  thofe  who  remained  of  the  firft  inhabitants  of  the 
country)  was  otherwife  called  folcland;  a  diftiniftron, 
which,  after  the  feudal  law  was  ellabliflied,  received  other 
appellations  of  a  fimilar  import.  That  within  the  jurif- 
dicliion  of  the  flieriif,  was  then  called  allodial :  That  held 
of  \orAsi  feudal.  The  pofleflbrs  of  fuch  as  has  fmce  been 
called  allodial,  were  Riled,  in  the  laws  of  thofe  times, 
liheri ;  being  fubje£l  to  the  king  alone  in  his  political  ca- 
pacity; in  contradiftinftion  to  tenants  under  the  dominion 
of  the  thains,  who  were  called  vajfals,  being  fubjedt  to  the 
controul  alfo  of  their  lord. 

The  civil  ftate  of  the  Saxons  was  of  this  kind.  The 
whole  nation  confilled  oi freemen  ^ndjlai'es.  Th^  freemen  Freemen. 
were  divided  into  two  orders,  the  nollej  and  the  ccorls. 
The  nobles  were  called  thanes,  and  were  of  two  kinds ; 
the  king^s  thanes  and  the  lefer  thanes.  The  diftincf^ion 
between  them  feems  to  be,  that  the  former  were  next  in 
rank  to  the  king,  and  independent :  the  latter  were  depen- 
dent on  the  king's  thanes,  and  feem  to  have  occupied 
lands  of  their  gift,  for  which  they  paid  rent,  fervices,  or 
attendance  in  war  and  peace.  Noble  defcent  or  pofTefficn 
of  land  were  the  two  qualifications  that  raifed  a  man  to  the 
rank  of  thane.  The  inferior  rank  of  freem.cn,  called  ceorls, 
were  chiefly  employed  in  hufbandry ',  fo  much  fo,  that  a 
ceorl  and  t  hufbandman  became  almofl  fynonimous. 
Thefe  perfons  cultivated  the  farms  of  the  nobility,   for 

which 


HISTORY    OF    THE 


CHAP.     I. 


SAXONS. 


Slaves. 


tt 


K 


The  toura. 


which  they  paid  rent ;  and  they  feem  to  have  been  remov- 
able at  pleafure  ''.  The  next  order  of  people,  and  a  very 
numerous  body  they  were,  was  that  of  the  JInvesy  or  viU 
Jains ;  a  lower  kind  of  ceor/s  c,  who  being  part  of  the  pro- 
perty of  their  lords  **,  were  incapable  of  any  themfelves. 
Thefe  arc  the  perfons  who  are  defcribed  by  Sir  William 
Temple,  as   "  a  fort  of  peonle  who  were  in  a  condition  of 

downright  fervitude,  ufed  and  employed  in  the  moll  fer- 

vile  works  *,  and  belonging,  they,  their  children,  and 
**  effects,-  to  the  lord  of  the  foil,  like  the  reft  of  the  ftock 
**  or  cattle  upon  it."  However,  the  power  of  lords  over 
their  flaves  was  not  abfolute.  If  the  owner  beat  out  a 
flave's  eye  or  teeth,  the  flave  recovered  his  liberty*  :  if  he 
killed  him,  he  paid  a  fine  to  the  king^  Thefe  Haves  were 
of  two  kinds,  prjedial  and  domeftic. 

We  {hall  next  take  notice  of  the  judicature  of  the 
Saxons,  which  depended,  as  we  before  faid,  on  the  divi- 
fion  of  land.  In  the  thainland,  the  thain  himfelf  was  the 
judge  :  fo  the  judge  of  the  reve-land  was  the  reve,  or 
Jbire-reve 'j  whofe  great  court  was  called  the  reve-mote, 
or  Jhire-mote,  and  at  other  times  the  folc-niote-.  The 
limits  between  the  official  judicature  of  the  king*s  courts 
and  the  court  belonging  to  the  lord,  were  ftri<5lly  preferv- 
ed  j  only  when  the  lord  had  no  court,  or  refufed  to  dojuf- 
tice ;  or  when  the  conteft  was  between  a  vafTal  of  one  and 
a  vaflal  of  another  j  then  the  fuit  was  referred  to  the  king's 
court,  namely  to  the  reve-mote  of  the  IherlfF. 

Though  the y2>(?ri^  earl^  or  ealdennan  (by  all  which 
names  he  was  known)  had  properly  the  government  of  the 
county,  a  biftiop  was  always  afTociated  with  him  injudi- 
cial matters.  The  biJJjop  and  fienff  ufed  twice  a  year  to 
go  a  circuit,  within  a  month  after  Eafter,  and  a  month  after 
Michaelmas ;  and  held  the  great  court,  called  the  tourn^  in 


*»  Spelm.  Feud?,  p.  14. 

*  Perfons  of  this  rank  were  called 
by  ihe  Saxons  Tleonv^  or  Thes'wmen^ 
as  appears  by  IX.  Will.  Cun(j.  65,66. 
anu  in  LL.  Hen.  I.  77,  78.  fcrvi. 


''  Spelm.  Fcuds,  p.  i^. 

«  1,1..  Air.  fee.  %o. 

'  Imd.  17. 

5  Dalr.  Feud.  Prop  p.  1 1 


every 


ENGLISH      LA  W.  7 

every  hundred  in  the  county.  This  was  the  grapJ  crimi-  CHAP.  1. 
nal  court,,  in  which  all  offences  both  ecclefiaftical  and  s^^XONS. 
civil  were  tried.  On  the  examination  of  the  form.er,  the 
bifhop  fat  as  judge,  and  the  flieriff  as  coadjutor,  to  infli<£t 
temporal  punidiments:  in  the  latter,  the  (lieriff  was  judge, 
and  the  biiliop  his  affiftant,  to  aid  his  fentences,  if  necef- 
fwy,  by  ecclefiaftical  cenfures. 

The  great  court  for  civil  bufmcfs  was  the  county  court y  County  court, 
held  once  every  four  weeks.  Here  the  (heriiT  prefrded  -, 
but  the  fuitors  of  the  court^  as  they  were  called^  that  is,  the 
freemen  or  landholders  of  the  county,  weie  the  judges;  \ 
and  the  flieriff  was  to  execute  the  judgment  •,  affifted,  if 
need  were,  by  the  bifnop.  Once  a-year,  at  the  Eafter 
tourn  or  circuit,  the  fhcriff  and  biihop  were  to  hold  alfo  a 
v'lenv  offrafik-pledge;  that  is,  to  fee  that  every  perfon  above 
twelve  vears  of  ap^e  had  taken  the  oaths  of  allegiance,  and 
found  nine  freemen  pledges  for  his  peaceable  demeanour.    , 

Out  of  the  tourn  were  derived  two  inferior  criminal 
courts,  the  A«/;i/;W  and  the  leet^  for  the  expeditious  and  com  is. 
eafy  diftribution  of  juflice,  where  a  hundred  or  manor  lay 
too  remote  to  be  conveniently  vlfited  in  the  courfe  of  the 
tourn.  The  hundred  court  -vies  held  before  fome  bailiff; 
the  leet  before  the  lord  of  the  manor's  fteward.  Both  thefe, 
though  held  in  the  name  of  a  fubje(fl:,  were  the  king's  courts. 
Out  of  the  county  court  was  derived  an  inferior  court  of 
civil  jurifdiclion,  called  the  court  baron.  This  was  held 
from  three  weeks  to  three  weeks,  and  was  in  every  refpe£l 
like  the  county  court ;  only  the  lord,  to  whom  this  fran- 
chife  was  granted,  or  his  Reward,  prefuled,   inftead  of  the 

flieriff. 

In  all  thefe  courts,  jufticc  was  adminiftcred  near  the 
homes  of  fuitors  vvith  difpatch,  and  without  much  expencc. 
Befides  thefe,  there  was  a  fuperior  court,  known  by  the 
name  of  the  'wlttenagemotey  which  had  a  concurrent  jurif-  r^^^  ^,.-,fp. 
diction  with  them.  This  court  fat  in  the  king's  palace,  nagemot<r. 
and  ufed  to  remove  with  his  perfon.  The  judges,  it  is 
faid,  were  the  great  officers  of  ftate,  together  with  fuch 
'^  Icrds 


8  H  I  S  T  O  R  Y      O  F     T  H  E 

CHAP.    T.    Jords  as  were  about  the  court.    The  bufinefs  of  this  court 
SAXONS,     confifted   in   caufes  where  the  revenue  was  concerned  j 
where  any  cf  the  lords  were  charged  with  a  crime ;  and  in 
civil  caufes  between  them.     This  was  the  ordinary  em- 
ployment of  the  court:  befides  which,  offences  of  a  very 
heinous  and  public  nature  committed  even  by  perfons  of 
inferior  rank,  were  heard  here  originally;  and  all  caufes  in 
the  inferior  courts  might  be  adjourned  hither,  on  account 
of  their  difficulty  or  importance. 
Nature  of  land-       The  next  obje£l  of  confideration  is  the  nature  of  pro- 
perty among  the  Saxons :  and  firft,  of  landed  property. 
It  has  been;  a  queftion,  long  debated  among  the  leara- 
ed,   whether   the  lands  of  tl>e  Saxons  were   fubje£t   to 
the  terms  of  feudal  tenure,  or  whether  tenures  with  all 
their  confequences  were  introduced  by  William  the  Con- 
queror.     It   would   hardly   afford   much   in{lru£lion    or 
amufement  at  this  time,  to  enter  deeply  into  an  enquiry 
which  has  been  already  fo  unfuccefsfully  difcufled,   and 
which  has  divided  fo  many  great  names*     Lord  Coke  '', 
I         Selden  *,    Nathaniel  Bacon '',    Sir    Roger   Owen,  i    and 

Tyrrell, 

*  I.  Inft   776.  futes;  who  f^cms  to  fpeak  of  it  as  a 

*  Titles  of  Honour,  510,  511'.  wo: k  that  had  difappcared,  and  which 
^  Hift,  Difc.  i6r.  was  not  known   to   be   now  extant, 

*  When  I  had  entered  upon  thrs  There  are  two  copies  of  it :  one  of 
enquiry  into  the  hiflory  of  our  law,  them  is  comprized  in  a  fofio  volume, 
I  looked  into  the  Harieian  coUcdiony  the  other  fills  three  folios;  both  of 
if  any  thing  could  be  there  found  on  them,  pariituiarly  the  lafl,  very  fair 
the  fubjeft;  and  there  I  difcovered  a  and  perfedV. 

manufcrlpt  of  Sir  Roger  Owen  on  I  turned  over  theft  volumeif,  in 

**  the  antiquity  and  excellency  of  the  hopes  of  deriving  from  thence  i'ome 

common  laws  of  England."     I  con-  lights  to  affiit  mc  in   my  refearthes  ; 

fidered  this  as  a  valuable  acq'iifitioni  bat  I  was  difappointed.     The  whole 

ind    particularly   fo,    when    I    foon-  fcemed   to  me  to  be  written  with  a 

afterwards  found  f^veral  writers  had  view  to  maintain   the  popular  argu- 

fp.oken  of  fuch  a  manufciipt,  which  ment  of  thofc  timer,  that  our  conlH- 

thcy  had   fcen,   and  which   they  re-  tation  and   laws  were   derived,    not 

gretted   had   nut  been   made  public,  from  the  Norman>,  but  the  Saxons; 

\  found  it  mentioned   fomcwhere   in  a»d    ^^at    the    Conqueror   made    no 

Tyrrell's  Bihliotheca  TAitica;   in  the  alteration  therein.  As  this  is  the  great 

collcaion  of  tcftimonies  prefixed  to-  aim  of  the  work,    it  is   confined   to 

Wingate's  edition  of  Britton  ;    and,  the    very   ea:  ly    period  of  our  law, 

laftly    iu     Mr.    Barrington's    Obfcr-  snd  confequcntly  furnifhes   very  few 

vatioas  upon  the  more  Antient  Sta-  hints  for  an  hiftorical  dedu<Slion  that 


goc 


s 


ENGLISHLAW.  9 

Tyrrell  *",  are  of  opinion,  that  tenures  were  common  CHAP.  I. 
among  the  Saxons.  Crag  ",  lord  Hale  %  Somner,  p,  (ir  g  a  X  O  N  S. 
Henry  Spelman*^,  Dr.  Brady,  and^ir  Martin  "Wright ^  arc 
of  opinion,  that  feuds  were  firft  brought  in  and  eftablilhed 
by  the  Conqueror.  After  this  difference  of  opinion,  fome 
later  writers  have  taken  a  middle  courfe.  Blackflone*, 
DalrympleS  and  Sullivan",  endeavour  to  compromife  the 
difpute,  by  admitting  an  imperfect  fyftem  of  feuds  to 
have  fubfifted  before  the  Conqueft. 

Perhaps  the  latter  of  thefe  opinions  maybe  nearefl 
the  truth.  A  fyftem  of  policy  that  had  prevailed  over  all 
parts  of  Europe,  it  is  mod  probable,  got  footing  in  Eng- 
land, inhabited  by  perfons  defcended  from  the  fame  com- 
mon (lock,  and  poflefled  of  the  country  they  then  enjoyed 
under  like  circumftances  with  th^  nations  on  the  continent. 
But  the  feudal  law,  in  the  time  of  our  Saxon  kings,  was  in 
no  part  of  Europe  brought  to  the  perfection  at  which  it 
afterwards  arrived  ;  and  in  this  country,  feparated  from 
the  world,  and  receiving  by  flow  degrees  a  participation 
of  fuch  improvements  as  were  made  in  jurifprudence  on 
the  continent,  we  are  not  to  look  for  a  complete  fyftem  of 
feudal  law.  At  the  latter  part  of  this  period,  feuds  on 
the  continent  were  very  little  more  than  in  their  infant 
ftate ;  they  were  feldom  granted  longer  than  for  the  life  , 

of  the  grantee". 

Without  engaging  in  a  controverfy  whofe  extent  and 
difficulty  have  eluded  the  greateft  learning  and  fagacity,  it 
will  be  more  fatisfa<^ory  to  notice  fuch  few  fa6ts  as  we 
really  know  refpe£ting  the  landed  property  of  the  Saxons. 
We  know  that  their  lands  were  liable  to  the  triuoda  necef- 

focs  further  down.     I  believe  I  have  "  Jiis  Feud.   lib.    i.   tit.  7. 

not    had  occafion  to  quote  it   more  »  Hift.  Com.  Law.  107. 

than  once.  ^  Gavel.  100. 

Sir  Roger  Owen  had  acquired  the  '^  Glol.  Feuilum. 

reputation  of  a  great  antiquaii^n;  he  ""  Ton.  57. 

was  a  particular  friend  ot  Whitelock  ;  »   Vol.  ii.   p.  48. 

who  quotes  him   in  his  Commentary  «  Feudal  '•  op.  7. 

on  the   Parliamentary   Writ,   vol.  i.  "  Lc£lurC  23. 

p.  ao8.    See  Baa.  Obf.  Stat.  p.  116.  *  Lib.  Feud.   i.  tit.  I. 

■»  lotrod.  vol.  a.  p.  84. 

fit  as  \ 


coavevaacf. 


lo  H  I  S  T  O  R  Y      O  F      I  H  E 

CHAP.  I.  fitas\  one  of  which  was  a  military  ferviceQw  foot;  another^ 
SAXONS  ^''^'"^  cortflru&io ;  and  another,  /<7;;.Vj  conJlruElio.  They 
were  in  general  hereditary  j  and  they  were  partible  equally 
among  all  the  fons.  They  were  alienable  at  the  pleafure 
of  the  owner ;  and  were  devifeable  by  will.  They  did  not 
efcheat  for  felony ;  and  the  landlord  had  a  right  to  feize 
the  bell  bead  or  armour  of  his  dead  tenant  as  a  heriot.  This 
is  the  principal  outline  of  the  terms  on  which  landed  pro- 
perty was  poflefTed  among  the  Saxons. 
Method  of  It  fhould  feem  that  a  legal  transfer  might  be  made  of 

lands  by  certain  ceremonies,  without  any  charter  or  writ- 
ing. Ingulphus  fays,  conferebantur  pr^fdia  nudo  vcrbof 
ahfqtie fcripto  vel  charidy  tantum  cum  domini  gladio^  vel  galea ^ 
*uel  cornuy  vel  craterey  et  plurima  tenementa  cumjlrigiliy  cum 
arcuy  et  nontiulla  cumfagitid^.  Thus  Edward  the  Con- 
feflbr  granted  to  the  monks  of  St.  Edmund,  in  Suffolk, 
the  manor  of  Biok  per  cultellutn*  y  and  holding  by  the 
horn,  by  the  fvvord,  by  the  arrow,  and  the  like,  were  com- 
mon titles  of  tenure.  However,  deeds  or  charters  were 
in  ufe.  Thefe  were  called  generally  gewritc,  i.  e. 
writings  ;  and  the  particular  deed  by  which  a  free  eftat^ 
might  be  conveyed  was  ufually  called  landbocy  libellus  dc 
terra y  a  donation  or  grant  of  land^.  The  land  fo  paflcd 
was,  as  has  been  already  obferved,  called  hocland\  and 
the  perfon  who  fo  conveyed  to  another  was  faid  to  gebocian 
him  of  it.  An  Anglo-Saxon  charter  of  land  has  alfo  been 
called  telligraphwn'' 'y  the  etymology  of  which  mongrel 
term  feems  to  imply  that  the  land  was  therein  defcribed  by 
its  fituation  and  bounds.  But  this  appellation  was  pro- 
bably adopted  after  the  Conquefl,  as  a  tranflation  of  the 
word  landbcc.  The  like  may  be  faid  of  the  term  cyro- 
graphutHy  another  name  by  which  Anglo-Saxon  charters 
were  known  :  but  thofe  denoted  by  this  name  were  of  a 
peculiar  kind  *,  fuch  as  had  the  word  cyrographum  written 

y  Hiih  Croy.  901.  Franc.  I^ol.  *  Mad.  Form.  183. 

•  Mad.  Form.  DilT.  pa.  1.  *»  From  telhs  and  yga^a;. 

ia 


SAXONS. 


ENGLISHLAW.  n 

4n  capital  letters  either  at  the  top  or  bottom  of  the  char-     CHAP.    i. 
tcr,  and  cut  thro'  or  divided  by  a  knife ^, 

Before  the  time  of  Edward  the  Confeflbr,  the  ufage 
was  to  ratify  charters  by  fubiigning  of  names  accompanied 
with  holy  crofles.  This  was  done  both  by  the  parties  and 
witnefles.  It  is  generally  believed,  that  Edward  the 
Confeflbr  was  the  firit  who  brought  into  this  kingdom  the 
cuftom  of  affixing  to  charters  a  feal  of  wax.  It  is  faid, 
that  being  in  Normandy,  at  the  court  of  his  coufm  Wil- 
liam, he  there  learned  feveral  Norman  cuftoms ;  and 
among  others  which  he  tranfplanted  hither,  was  this  of 
fealing  deeds  with  wax.  Though  the  word  figillum  often 
occurs  in  charters  before  his  time  ;  yet  fome  great  an- 
tiquarians (among  whom  is  fir  Henry  Spelman)  have 
agreed,  that  this  did  not  mean  a  feal  of  ivax^  but  was  ufed 
fynonimoufly  iox  Jignuniy  and  denoted  the  (ign  of  the  crofs 
and  other  fymbols  made  ufe  of  in  thofe  times^. 

There  is  no  evidence  that  the  Saxons  made  any  dif- 
tin£tion  between  real  and  perfonal  property  :  the  whole 
property  of  a  man  was  defcribcd  by  the  general  term, 
res ;  and  under  that  denomination  was  fubjeft  to  the  fame 
fucceffion  ab  iuteftatoy  and  might  be  given  or  difpofed  of 
by  will. 

We  are  not  to  imagine  that  the  pov/er  of  difpofing  by 
will  was  allowed  without  reftricSlion ;  for  we  have  every 
reafon  to  conclude,  from  the  prevailing  cuftom  of  the 
realm  in  tlie  next  period,  that  they  reftrained  a  man  from 
U)tally  difmheriting  his  children,  or  leaving  his  widow 
without  a  provifion.  After  fuch  duties  were  reafonably 
performed,  the  remainder  of  his  effecls  were  at  his  own 
difpofal.  Confidently  with  fuch  fentiments,  we  find  the 
law,  with  regard  to  the  ellates  of  inteftates,  delivered  in 
thefe  words',  Sive  quis  ificuridyftve  morte  repent'tnd  fuerit 
intejlatus   mortuus,    do  minus    tamen   mil  lam    rerum  fuarutn 

'  Mad.  Form.  DilT.  2.  ^  Ibid.  DiiT.  27,  «  Leg.  C*n,  c.  68. 

partem 


12  H  I  a^  I  O  R  Y      O  F     T  H  E 

CHAP.    I.     partem  (prater  earn  qua  jure  dehetur  herioti  nomine )  ftbt 
SAXONS      ^Jf^^nito,    Verum  pojfejftones  uxoriy  liberis,  et  cognatlone  prcx- 
tmtSy  profuo  cuique  jure  dijlr'ibuanttir. 

There  docs  not  appear  fufficient  in  the  monuments  of 
Saxon  antiquity  to  make  us  afTured  in  what  manner  they 
ordered  the  authentication  of  wills.  It  may,  however,  be 
conjedlured,  with  fome  probability,  that  cyrographated  or 
indented  copies  might  be  left  with  the  alderman  or  flieriff 
of  the  county,  or  with  the  lord  who  had  a  court  or  fran- 
chife,  where,  befides  the  hearing  of  caufes,  other  legal 
proceedings,  fpiritual  as  well  as  temporal,  were  ufually 
tranfa£ted.  It  is  more  clear,  that  in  this  court  was  made 
the  diftribution  of  inteftates'  effects,  according  to  the  pro- 
portions above  laid  down.  From  this  may  be  derived 
the  privilege  which  the  lords  of  fome  manors  claim  at 
this  day,  to  have  probate  of  wills  in  their  manor-court, 
without  the  controul  or  interpofition  of  the  bifliop. 

All  contrails  for  the  buying  or  bartering  of  any  thing 
were  required  to  be  made  in  the  prefence  of  witneiTcs. 
This  was  as  much  to  prevent  the  fale  of  things  ftolen,  or 
improperly  obtained,  as  to  prefcrve  the  memory  of  con- 
tra£ls  and  obligations.  A  law  of  king  Etheldred  ordain- 
ed*", that  if  there  were  no  witnefTes  to  a  contract,  the 
thing  bargained  for  fliould  be  forfeited  to  the  lord  of 
the  foil,  till  enquiry  was  made  about  the  real  ownerlhip. 

This  regulation  about  contradls  is  frequently  enforced 
in  the  Saxon  laws ;  and  the  beneficial  confequences 
of  fuch  ftridlnefs  mud  have  been  univerfally  felt.  It  had 
the  efFe£l  of  precluding  queftions  and  litigations  about 
matters  of  contra£\s,  and  keeping  the  law  of  property  in 
a  very  plain  and  intelligible  ftate. 

As  the  forms  and  circumftances  under  which  property 
could  become  a  fubje6l  of  debate  in  their  courts,  were  few 
and  fimple  j  fo  the  proceedings  mull  in  a  like  degree  have 
been  uniform  and  unembarrafTed.     While  the  objects  of 

legal 


ENGLISHLAW.  13 

legal  enquiry  admitted  of  little  modification,  and  contained  CHAP.  I. 
very  little  artificial  learning,  the  freemen  or  landholders  s  ax  ON  6. 
of  the  county  were,  no  doubt,  very  competent  judges  of 
th^  matters  they  were  to  determine,  and  the  parties  them- 
felves  were  equally  qualified  to  be  their  own  advocates. 
Caufes  were  commenced  by  lo<iging  a  complaint ;  the  ad- 
miflion  of  which  by  the  officer  of  the  court,  and  giving  a 
day  to  the  parties,  conftituted,  perhaps,  all  the  practical 
knowledge  of  the  bar. 

Before  we  fpeak  of  the  criminal  law  of  the  Saxons, 
let  us  take  a  view  of  that  rem-arkable  inftitution  fo  necef- 
fary  towards  a  due  execution  of  it ;  that  Is,  the  police 
eftablilhed  by  Alfred. 

It  is  faid,  that  a  hundred  neighbouring  families  com-  DeccnnariM. 
pofed  a  hundredy  as  the  name  imports ;  ten  fuch  families  S-a  tiu^  \AuJJjJ^ 
conftituted  a  tyth'wgy  decennary ^  or  fribourg ;   over  which  "(lAu.(i^  U^yjotili^ 
an    officer    prefided,    called    the    head  of  the  fribotirg^,y\XjUCAtM.'Ulli\ 
Every   man  in    the   kingdom    was    expected   to   belong  ^ 

to  fome  decennary  j  and  thofe  who  did  not,  were 
confidered  in  the  light  of  offenders,  or  at  lead  of  fufpeded 
perfons,  and  were  accordingly  put  In  prifon,  till  they 
could  get  fome  one  to  take  them  in,  or  become  pledge  for 
their  good  behaviour.  In  thefe  decennaries,  every  man 
was  a  fecurity  for  the  reft;  pledging  himfelf  that  all  and 
every  of  them  ffiould  demean  himfelf  orderly,  and  ftand 
to  the  enquiries  and  awards  of  juftice.  It  was  from  fuch 
reciprocal  engagement  between  the  free  members  of  a 
decennary,  that  this  fort  of  community  was  commonly 
called  frank-pledge.  If  any  one  fled  from  juftice,  the 
term  of  thirty-one  days  was  given  to  the  decennary  to  pro- 
duce the  offender.  If  he  did  not  then  appear,  the  head  of 
the  fribourg  was  to  take  two  principal  perfons  of  his  own 
decennary,  and  from  the  three  neighbouring  decennaries, 
the  head  and  two  of  their  members  :  thefe,  together  witli 
himfelf,  making  twelve,  were  to  purge  him  and  his  decen- 
nary  from    any   wilfulnefs   or   privity   to    the   offender's 

*  Leg.  St.  Edw.  ao. 

crime 


14  H  I  S  T  O  R  Y     O  F     T  H  E 

CHAP.    T.     crime  or  flight :  and  if  the  head  of  the  fribourg  could  not 
SAXONS      P^^S^  ^^5  decennary  in  this  way,  he  and  his  decennary 
were,  of  themfelves,  to  make  a  compenfation  to  the  party 
injured. 

So  great  care  was  taken  that  perfons  fhould  be  well 
known  before  they  were  harboured,  that  if  any  one  took 
a  ftranger  in,  and  fufFered  him  to  ftay  three  nights  under 
his  roof,  and  the  ftranger  afterwards  committed  any  crime ; 
the  perfon  fo  harbouring  was  confidered  as  having  made 
himfelf  :i  pledge  for  him,  as  for  one  of  his  own  family  ;  and 
was,  upon  the  abfconding  of  the  offender,  to  make  amends 
to  the  injured  perfon '', 

An  cftablifliment  like  this,  contributed  more  effectually 
than  any  other  to  the  prevention  of  crimes,  as  well  as  to 
the  detection  of  offenders. 

Crimiiul  law.  ^^  ^"^^^  "o^  *^^^  ^  curfory  view  of  the  penal  code  of 

this   people.     The  Saxons  were  particularly   curious   in 
fixing  pecuniary  compenfations  for  injuries  of  all  kinds, 
without  leaving  it  to  the  difcretion  of  the  judge  to  propor- 
tion the  amends  to  the  degree  of  injury  fuffered.     Thefe 
penalties  were  more  or  lefs,  according  to  the  time  or  place 
in  which  the  wrong  was  committed,  or  the  part  of  the 
body  or  member  which  was  injured'.      The  cutting  off* 
an  ear  was  punifhed  with  the  penalty  of  thirty  fhilllngs; 
if  the  hearing  was  loff:,  fixty  fhiUings :  fo,  llriking  out  the 
front  tooth  was  puniflied  with  a  fine  of  eight  fliillings  ; 
the   canine   tooth,    four   fliillings ;    the   grinders    fixteen 
{hillings  ^ :   if  a  common  perfon  was  bound  with  chains, 
the  amends  were  ten  (hillings  j  if  beaten,  twenty  fhiliings ; 
li  hung  upy  thirty  Ihillings'. 

In  the  fame  manner  injuries  to  property  were  generally 
conffdered  in  a  criminal  light ;  and  the  fpecific  amends 
to  be  made  by  the  wrong  doer  to  the  injured  party,  were 

**  Leg.  St.  Edw.  17.  *  Leg.  Alf.  40. 

^  Lffg.  Inx,  6.     Leg.  Alf.  «3.  '  Leg.  Alf.  31. 

fixed 


ENGLISH      LAW. 

fixed  by  law.  A  man  who  mutilated  an  ox's  horn  was 
to  pay  ten-pence ;  if  that  of  a  cow,  then  only  two- 
pence :  a  like  dIftin6lion  was  made  between  cutting  oflF 
the  tail  of  an  ox  or  a  cow'".  To  fight  or  make  a  brawl 
in  the  court  or  yard  of  a  common  perfon,  was  punifiied 
with  a  fine  of  fix  (liiillngs ;  to  draw  a  fword  in  the  fame 
place,^  even  though  there  was  no  fighting,  with  a  fine  of 
three  fhillings  :  if  the  party  in  whofe  yard  this  happened 
was  worth  fix  hundred  (hillings,  the  amends  were  tre- 
ble ;  and  they  were  increafed  further,  according  to  the 
circumftances  of  the  perfon  whofe  houfe  and  domain  were 
fo  violated ".  ' 

A  SYSTEM  of  regulations  framed  on  this  principle  fccms 
to  have  converted  all  notions  of  civil  redrefs  for  injuries 
into  a  criminal  inquiry  -,  while  the  degree  and  circum- 
(lances  attending  the  faci:,  both  which  it  was  out  of  the 
power  of  legiflation  exaOly  to  reach,  made  no  part  of 
the  judicial  confidcration  ;  but  the  judge  was  to  award  the 
fame  dated  fine,  in  all  cafes  which  could  be  brought  withtn 
the  letter  of  the  legal  defcription.  However,  thefe  penal- 
ties had  fo  far  the  nature  of  a  civil  redrefs,  that  they  were 
given  in  the  way  of  compenfation  to  the  injured  perfon. 

The  notion  of  compenfation  runs  through  the  whok 
criminal  law  of  the  Anglo-Saxons  j  who  allowed  a  fum  of 
money  as  a  recompence  for  every  kiinl  of  crime,  not  ex- 
cepting the  taking  away  the  life  of  a  man.  Every  man's 
life  had  its  value,  called  a  ivere,  or  capitis  ejlimatio.  This  Were 
had  been  various  at  different  periods"  \  in  the  time,  there- 
fore, of  king  Athenian,  a  law  was  made  to  fettle  the 
ivere  of  every  order  of  perfons  in  the  ftate.  Ilie  king, 
who  on  this  occafion  was  only  diftinguifhed  as  a  fuperior 
perfonage,  was  rated  at  30,000  thrymfse^;  an  archbifhop 
or  earl,   at   15,000-,   a  bifiiop  or  ealderman,    at   8,000; 

"»  Leg.  Tnae,  59.  p   A    thrymfa^   according    to    Da 

»  Leg.  Air.  35.  Frclai,  was  worth  four  jxrnce. 

•>  Leg.  Insf,  69. 

hem 


i6  HI,STORYOFTHE 

CHAP.    T.     belli  imperator,  oxfummus  prafeBiis^  at  4,000 ;   a  prieft  or 
r'rT?l7rr!^    thane,  at  2,000 ;  a  common  perfon,  at  267  thrymfse.     It 

oAXONS.  .  ..  . 

feems  this  were  was  fometimes  different  in  different  parts 

of  the  country  «i.     When  any  perfon  was  killed,  the  fla^yer 

was  to  make  compenfation  to  the  relations  of  the  deceafed, 

according  to  fuch  valuation.      In  the  cafe  of  the  king, 

half  the  tuere  went  to  his  relations,  and  half  to  his  people. 

If  the  deceafed  was  a  (Iranger,  or  had  no  relations,  the 

ivere  was  to  be  divided  j  half  to  go  to  the  king,  and  half 

to  the  mod  intimate  companion  of  tlie  deceafed  ^ 

As  the  manners  and  notions  of  this  people  would  not 
allow  them  to  fubmit  to  any  harfher  punifhment  in  the  firfl 
inftance,  it  was  endeavoured  to  render  this  as  fevere  as 
pofTible.  The  ivere  was  not  to  be  remitted  * ;  and  to 
make  the  offender  an  example,  as  well  as  to  prevent  the 
efFufion  of  blood,  all  his  own  relations  were,  by  a  law 
of  king  Edmund ',  xiifcharged  from  the  obligation  of  abet- 
ting him  againft  the  feud^i  the  relations  of  the  deceafed ; 
whofe  deadly  refentment  he  was  to  fupport  alone^  till  he  had 
paid  the  nvere.  A  perfon  guilty  of  homi<:ide  was  alfo  ex- 
-cluded  from  the  prefence  of  the  king. 

But  this  ivere,  in  cafes  of  homicide,  and  the  fines  that 
were  paid  in  cafes  of  theft  of  various  kinds,  were  only  to 
redeem  the  offender  from  the  proper  punifliment  of  the 
law,  which  was  death  ;  and  tliat  was  redeemable,  not  only 
by  paying  money,  but  by  undergoing  fome  perfonal  pains  : 
hence  it  is  that  we  hear  of  a  great  variety  of  corporal 
punifhments.  A  perfon  often  charged  with  theft,  was  to 
lofe  his  hand  or  foot".  There  was  alfo  the  pain  of  ba- 
nifliment  and  flavery  * ;  and  at  one  time  it  was  enadled  % 
thai  houfe-breaking,  burning  of  houfes,  open  robbery, 
manifefl  homicide,  and  treafon  againfl  one's  lord,  fliould 

*»  Leg.  Athcia.  3.  <  Ca.  3. 

*  Leg.  Inx,  12.  "  Leg.  In«,  18. 

*  Lfg.  Edm.  3.  *  Leg.  Can.  6. 

'  '  Leg.  Can.  61. 

be 


ENGLISH      LAW.  17 

fhould  be  inexp'iahle  crimes j  that  is,  not  to  be  redeemed  by     C  H  A ?.    I. 
any  pecuniary  compenfation,  or  any  pain  or  mutilation.  s  A  X  o  N  s 

Thus  far  of  puni(hments.  We  come  now  to  confider 
the  notions  they  had  of  crimes,  and  their  nature.  A  per- 
fon  prefent  at  the  death  of  a  man  was  looked  on  as  particeps 
criin'misy  and  as  fuch  was  liable  to  a  fme  ^.  A  perfon  kill 
ing  a  thief,  unlefs  he  purged  himfelf  by  oath  before  the 
relations  of  the  deceafed,  relating  all  the  circumflances  of 
the  fact,  and  that  immediately,  was  to  pay  a  fine^.  If 
one  in  hewing  a  tree,  happened  to  kill  a  man,  the  relations  ' 

were  entitled  to  the  tree,  provided  they  took  it  within  thirty 
days  ^  *,  which  was  in^  the  nature,  and  might  perhaps  be  the 
origin,  of  deodands.  It  does  not  appear  that  they  made  any 
diftindion  in  the  degrees  of  homicide  •,  except  in  one  in- 
fiance,  which  deferves  particular  notice;  and  that  is,  where 
the  fine  called  mm-dnim  was  to  be  paid.  It  is  faid  that  Ca-  Murder. 
nute,  being  about  to  leave  the  kingdom,  and  afraid  that  the 
Englifh  might  take  advantage  of  his  abfence  to  opprefs  or  de- 
flroy  his  own  fubjecls,  the  Danes,  procured  the  following  ^ 

law  in  order  to  prevent  fecret  homicides  :  That  when  any 
perfon  was  killed,  and  the  flayer  had  efcaped,  the  perfon 
killed  (liould  be  always  confidered  as  a  Dane,  unlefs  proved 
to  be  Englifli  by  his  friends  or  relations;  and  in  default  of 
fuch  proof,  that  the  vill  fhould  pay  forty  marks  for  the 
Dane's  death;  and,  if  it  could  not  be  raifed  in  the  vill,  that 
the  hundred  fhould  pay  it.  This  fingular  provifion,  it  was 
thought,  would  engage  every  one  in  the  prevention  or  pro- 
fecution  of  fuch  fecret  offences  ^  It  was  upon  this  fort  of 
policy  that  prefentments  of  Engll/Jjeryy  as  they  were  after- 
wards called,  were  founded. 

Larceny,  called  by  the  Saxonsy?^/^,  might  have  been  Larceny, 
committed  by  a  child  of  ten  years  old   ;  but  afterwards  this 
crime  was  not  imputed,  unlefs  the  child  was  twelve  years 

'  Leg.  InE,  33.     Leg.  A!f.  a6.  ^  Lc?.  Confed.  15,  16. 

•  Leg.  In£,  34.  d  Lc      Im,  7. 

^Leg.  Alf.  13.  &  '/ 

Vol.  L  C  of 


i8  HISTORYOFTHE 

CHAP.  I.  of  age  e.  If  all  the  family  of  the  offender  were  privy  to  the 
SAXONS  ftealing,  they  were  all  to  be  made  flaves  ^  Where  there 
was  not  that  privity  in  a  family,  the  mul6l  was,  at  one  time, 
fixty  (liillings ;  at  another  time,  one  hundred  and  twenty 
{hillings  5.  Such  regard  was  paid  to  the  character  of  a  wife, 
and  the  fubje6lion  fhe  was  fuppofed  to  be  under  to  her  huf- 
band,  that  when  any  thing  flolen  was  found  in  their  houfe, 
the  law  confidered  her  as  no  party  in  the  ftealing,  unlefs  it 
were  manifeflly  in  her  feparate  cuftody  ^. 

The  more  atrocious  of  thefe  offenders,  when  they  came 
in  a  body  of  feven,  were  called  theof,  or  pradones ;  if  more 
than  feven,  they  conflituted  tiirma ;  if  more  than  thirty- 
five,  they  were  then  called  exercitus '.  Thefe  diftin£lions 
(hew  in  what  manner  thefe  people  carried  on  their  depreda- 
tions, in  the  times  before  Alfred  reformed  the  police. 

False  fwearing  was,  at  firft,  only  punifhabie  by  a  fine 
ef  one  hundred  and  twenty  {hillings'^.  Afterwards',  falfe 
fwearers  were  confidered  as  no  longer  intitled  to  credit,  and 
were  obliged  to  purge  themfelves,  not  by  their  own  affirma- 
tion on  oath,  but  by  the  ordeal :  they  were  fometimes  ex- 
communicated. 

Breaches  of  the  peace  were  feverely  punifhed,  as  lead- 
ing ufually  to  blood fhed  and  death.  If  a  perfon  fought  in 
the  king's  palace,  his  life  was  in  the  king's  hands,  unlefs 
he  redeemed  it  with  a  fine  "* ;  and  particular  penalties  were 
rnfli£led  on  thofe  who  fought  in  the  prefence  of  the  bifhop 
and  ealderman  " ;  or  in  the  city  or  town  where  the  bifhop 
and  ealderman  were  then  holding  their  court  °.  A  law  of 
king  Edmund's  was  fo  fevere  p,  that  if  any  one  attacked 
another  in  his  houfe,  or  broke  the  peace  there,  he  was  to 
forfeit  every  thing,  and  his  life  was  to  be  at  the  king's  dif- 
pofal.    The  great  occafion  of  violent  breaches  of  the  peace, 

«  Leg.  AthclO.  I.  '   Leg.  Edw.  3. 

*"  Leg.  Inc,  7.  "^  Leg.  Alt.  7. 

8  Leg.  Athel;V.  ».  "  Ibid.  15.  34, 

''  Leg.  Ins,  58.     Leg.  Can.  74.  "  Ibid.  36. 

'  Leg.  Ins,  13.  14,  15.  ^Leg.  Edm. 
*  Leg.  Inx,  iz. 

were 


£  N  G  L  I  S  H      L  A  W.  19 

\rere  the  deadly  feuds  by  which  people  in  thofe  times  re-     C  H  a  P.    I. 
veneed  the  death  of  a  relation.     This  method  of  profecut-     .  »  ^r/^  vt  c 
ing  offenders  had  become  fo  habitual  to  the  people,  that  it 
appeared  neccflary  even  to  make  it  a  part  of  the  penal  code;  ^ 

and  it  was  accordingly  inferted  under  reafonable  reftridli- 
oYis  in  a  law  of  Alfred  'J.  At  length  it  was  thought  expe- 
dient to  impofe  additional  checks  on  this  fingular  piece  of 
criminal  jurifprudence.  This  was  done  by  a  law  of  Ed- 
mund ^  j  which  directs,  that  fomebody,  in  the  nature  of  an 
arbiter,  fliould  be  deputed  to  the  relations  of  the  deceafed, 
and  engage  that  the  flayer  fhould  make  compenfation.  He, 
in  the  mean  time,  was  to  be  put  into  the  hands  of  this  ar- 
biter, who  was  to  fee  that  fufhcient  fureties  were  taken  for 
paying  the  n.vere  in  twenty-one  days*,  during  which  time 
there  was  to  be  peace,  by  mutual  compaft. 

Very  early  after  the  Saxons  had  been  converted  to  Sanciuary. 
Chriftianity,  places  of  public  worfliip  were  held  in  fuch  re- 
verence, that  a  criminal  flying  thither  was,  during  his  ftay 
there,  allowed  protedion,  whatever  his  crime  might  be '. 
It  was  ufual  to  fly  to  fuch  a  place  of  fecurity,  to  avoid  the 
inftant  refentment  of  the  aggrieved  party,  till  provifion 
could  be  made  for  paying  the  legal  compenfation.  In  a  ftate 
of  fociety  like  that  among  the  Anglo-Saxons,  the  immunity 
indulged  to  places  of  worfliip  was  politic,  humane,  and  ne- 
cefTary.  It  prevented  the  fhedding  of  blood,  andpreferved 
the  peace.  Accordingly  a  penalty  was  inflicSled  on  thole 
who  dared  to  violate  this  place  of  faniluary,  by  evil-treat- 
ing the  culprit  while  there ' ;  the  pax  ecclefta  being  more 
facrcd,  and  in  this  inflance  better  protected  by  law,  than 
l\\^pax  regis.  The  offender  might  ftay  there  thirty  days,  and 
was  then  to  be  delivered  to  his  relations  unhurt  and  fafe". 
Notwithllanding  this  regard  for  churches,  there  feems  to 
have  been  no  immunity  granted  to  the  perfons  of  chnrch- 

«>  Leg.  AF.  3S.  «  Leg.  Al^■,  a. 

'  Lrg.  F.dm.7.  "  Ibid.  5. 

'  Leg.  \v.T.^  5. 

C  a  men. 


ao 


HISTORY     OF     THE 

CHAP.    !.     men.  If  a  clerk  committed  homicide,  he  was  to  be  degraded 
c^iTvr^y^    lioni  his  orders,  and  was,  moreover,  to  make  his  compeu- 
fation,  or  fujfer  punifhment,  in  the  fame  mamier  as  any 
other  perfon'.  » 

The  bringing  of  criminals  to  juftice  was  very  much  faci- 
litated by  the  police  ellabliflied  in  the  reign  of  Alfred.  The 
objetis  which  next  prefent  thcmfelves,  are  the  proceeding, 
the  mode  of  trial,  and  the  proof;  all  which  were  very 
remarkable  parts  of  the  Anglo-Saxon  jurifprudence.  The 
profecutor,  or  accufor,  as  he  was  called,  made  his  charge; 
which,  it  fhould  feem,  was  fufficient  alone  to  put  the  per- 
fon  accufed  on  his  defence.  The  defence  and  anfwer  to  this 
charge  was  this  :  If  it  was  a  matter  not  of  great  notoriety, 
but  iuch  as  might  admit  of  fome  doubt,  the  party  purged 
himfelf  by  his  oath,  and  the  oaths  of  certain  perfons  (called 
thence  compurgators)  vouching  for  his  credit,  and  declaring 
the  belief  they  had  that  he  fpokc  truth.  If  the  compur- 
gators agreed  in  a  favourable  declaration,  this  was  held  a 
complete  acquittal  from  the  accufation.  But  if  the  party 
had  been  before  accufed  of  larceny  or  perjury;  or  had  any 
otherwife  been  rendered  infamous,  and  was  thought  not 
worthy  of  credit,  he  was  driven  to  make  out  his  innocence 
by  an  pppeal  to  heaven,  in  the  trial  by  ordeal.  This  was  of 
feveral  kinds.  The  two  principal  were  by  water  and  iron; 
by  Water  hot  or  cold,  and  by  hot  iron :  the  iron  was  to  be 
of  one,  two,  or  three  pounds  weight;  and  was,  therefore, 
called  fimple,  double,  or  triple  ordeal. 

The  ordeal  ^'2.%  confidered  as  a  religious  ceremony.  The 
perfon,  the  water,  and  the  iron  were  accordingly  prepared 
under  the  direcHon  of  the  priefl,  by  exorcifms  and  other 
formalities,  and  the  whole  condu£led  with  great  folemnity. 
For  three  days  before  the  trial,  the  culprit  was  ^  to  attend 
the  prieft,  to  be  conftant  at  iriafs,  to  make  his  offering,  and 
in  the  mean  time  to  fuflain  himfelf  on  nothing  but  bread, 

*  Leg.  Can.  36.  3?.  y  Ltg.  A.ihcl(l.  13. 

fait, 


ENGLISHLAW.  21 

fait,  water,  and  onions.  On  the  day  of  trial,  he  was  to  C  H  A  P.  r. 
take  the  facrament,  and  fwear  that  he  was  not  guilty  of,  or  s^xoNfi. 
privy  to,  the  crime  imputed  to  him.  The  accufor  and 
accufed  were  to  come  to  the  place  of  trial,  attended  with 
not  more  than  twelve  perfons  each,  probably  to  prevf  at 
any  violence  or  interpofition  ;  and  a  produ6lion  of  more 
than  that  number  by  the  accufed  would  have  amc.nted  to  a 
conviction.  The  accufor  was  then  to  renew  his  chuige 
upon  oath,  and  the  accufed  to  proceed  in  making  his  pur- 
gation. If  it  was  by  hot  water,  he  was  to  put  his^h^nd 
into  it,  or  his  whole  arm,  according  to  the  degree  of  the 
offence  :  if  it  was  bv  cold  water,  his  thumbs  were  tied  to 
his  toes,  and  in  this  pofture  he  was  thrown  into  it  If 
he  cfcaped  unhurt  by  the  boiling  water,  which  might 
eafily  be  contrived  by  the  art  of  the  priefts,  or  if  he  funk  in 
the  cold  water,  which  would  certainly  happen,  he  was  de- 
clared innocent.  If  he  was  hurt  by  the  boiling  water,  or 
fwum  in  the  cold,  he  was  confidered  as  guilty^. 

If  the  trial  was  to  be  by  the  hot  iron,  his  hand  was  firft 
fprinkled  with  holy  water;  then  taking  the  iron  in  his  hand, 
he  walked  nine  feet.  Tiie  method  of  taking  his  fteps  was 
particularly  and  curioufly  appointed.  At  the  end  of  the 
rtated  diftance  he  threw  down  the  iron,  and  haftcned  to 
the  altar;  then  his  hand  was  bound  up  for  three  days,  at  the 
end  of  which  time  it  was  to  be  opened ;  and  from  the  ap- 
pearance of  any  hurt,  or  not,  he  was  declared  in  the  former 
cafe,  guilty,  and  in  the  latter,  acquitted.  Another  method 
of  applying  this  trial  by  hot  iron,  was  by  placing  red-hot 
plough-ftiares  at  certain  diftances,  and  requiring  the  delin- 
quent to  walk  over  them  j  which  if  he  performed  unhurt, 
was  confidered  as  a  proof  of  his  innocence.  Thefe  trials 
by  water  and  fire  were  calledy//^/Vm  Dei. 

Another  method  of  trial  was  by  the  offa  execratay  or 
Corfned ;  which  was  that  by  which  the  clergy  were  ufed  to 

'  I.cj.  AihclO.  13. 

purge 


22  HISTORYOFTHE 

CHAP.  I  purge  themfelves,  and  v/hich  they  chofe,  probably,  as  the 
s  \  X  o  N  s  ^^'^^  likely  to  put  the  party  to  any  peril.  A  morfel  of  bread 
was  placed  on  the  altar  with  great  ceremony  and  prepara- 
tion, which  the  perfon  to  be  tried  was  to  eat :  if  it  (luck  in 
his  throat,  this  was  to  be  confidered  as  a  token  of  his  guilt. 
Thus,  in  this  inftance  and  that  of  the  cold  water,  a  miracle 
was  fuppofed  to  be  wrought,  to  prove  the  guilt  of  the  per- 
fon; in  thofe  of  the  hot  water  and  hot  iron,  the  like  divine 
interpofition  was  expe£led  to  demonftrate  his  innocence. 
Another  ordeal  was,  that  of  the  crofs.  This  was  performed 
by  placing  two  {ticks,  one  with  a  crofs  carved  upon  it,  and 
one  without;  and  making  the  culprit  chufe  one  of  them 
blindfolded.  If  he  hit  upon  that  which  had  the  crofs  upon 
it,  this  piece  of  good  fortune  was  looked  upon  as  an  evi- 
dence of  his  innocence.  Thefe  feein  to  have  been  the  me- 
thods of  inveftigating  truth  in  criminal  enquiries. 

It  may  be  obferved,  that  the  Anglo-Saxons  made  a  dif- 
tindlion  betv/een  manifeft  or  open  offences,  and  fuch  as 
were  not  fo  public ;  and  the  degree  of  punifliment  was  pro- 
portioned accordingly.  It  has  been  obferved,  that  this  im- 
plied fome  doubt  entertained  by  themfelves  of  their  methods 
of  proof**;  but  it  may  be  remembered,  that  the  Romans 
^  made  the  like  dillindl ion,  and  inflicled  only  half  the  punifli- 

ment owfurtum  noti  manifeJlutUy  which  they  did  on  that 
which  was  manlfejlum. 
Trial  in  civil  Next  as  to  civil  caufes,  and  the  manner  in  which  they 

*"*^*-  were  tried.     It  feems,  that  caufes  in  the  county  and  other 

courts  were  heard  and  determined  by  an  indefinite  number 
of  perfons  called  y^^7^/(?;v/,  or  fuitors  of  court ;  and  there 
is  no  great  reafon  to  believe  that  they  had  any  juries  of 
twelve  men,  which  was  an  invention  of  a  much  later  date. 
Thefe yi:x7(://^;vj-  ufed  to  give  their  judgment  or  verdicl:  both 
upon  the  matter  of  fa£l  and  of  law.  It  may  be  a  doubt, 
whether  they  ever  a£led  as  an  inquefh  to  make  enquiry  of 
crimes  and  delinquents,  as  juries  did  after  the  Conqueft. 

•  Littl.  HcQ.  11,  vol.  c.  292.  "^ 

In 


ENGLISH      LAW. 


23 


In  a  law  of  king  Ethelred  ^^  there  is  a  provifion  that  there     C  H  a  p.    i. 
(hoLild  be  twelve  thaneSy  or  liberi  homines  of  fuperior  confi-     c  a  v  r^  vr  o 

*■  o  A  A.  U  N  o. 

deration  and  parts,  whofe  concurrence  was  made  necelTary. 
It  fliould  feem,  however,  thefe  were  rather  afleflbrs  to  the 
judge  of  the  court,  than  a  part  of  the  fuitors,  or  indeed 
any  thing  hkc  a  jury  *^.  By  all  the  monuments  that  remain 
of  thefe  timCvS,  it  appears,  that  the  number  oi  feci  at  ores  was 
various,  according  to  the  cuftom  of  different  places ;  and 
perhaps  'a\  mofl  inflances  depended  on  chance  and  con- 
venience J  but  in  no  cafe  is  there  the  leaft  reafon  to  believe 
that  it  was  confined  to  twelve  ^.  'Tht^tfetlatdves  difcharged 
their  office,  it  is  thought,  without  any  other  obligation  for 
a  true  performance  of  it,  than  their  honour  ;  for  it  does 
not  appear  that  they  were  fivorn  to  m.ake  a  declaration 
of  the  truth  ^.  It  is  not  improbable,  that  the  thanes  in  the 
counties,  the  citizens  in  boroughs,  and  thofe  who  were 
x\iQ  feSiatores  in  other  courts,  might  determine  all  eaufes,  in 
like  manner  as  peers  of  the  realm,  at  this  day,  determine  in 
criminal  cafes,  without  an  oath.  There  is  at  leaft  a  per- 
fe£^  filence  as  to  this  fubje£t  in  the  remains  of  antiquity; 
and  the  moft  we  can  conje£lure  is,  that  they  might  perhaps 
folemnly  engage  to  fpeak  the  truth  in  all  matters  which 
fhould  come  before  them,  without  renewing  it  in  every  paj^ 
ticular  caufe  ^ 

It  is  not  unfuitable  with  what  has  been  already  faid  of  the 
modes  of  proof  ufed  by  thefe  people,  to  fuppofe  that  they 
admitted  the  oath  of  the  defendant  in  civil  eaufes,  when  that 
oath  was  fupported  by  compurgators ^  who  fwore  they  be- 
lieved what  he  faid  to  be  true.  The  laws  requiring  wit- 
neffes  to  all  contracts,  fupplied  evidence  almoft  in  all 
enquiries  about  them;  but  where  that  was  not  the  cafe, 
it  feemed  confiftent  enough  with  the  efliabliflied  order  of 
living  in  thofe  times  to  allow  credit  to  a  man's  oath,  ivhen 

^  Lcf;.  Ethel,  ca.  4.  *  Ibid.  42. 

^  Hickrs'  Tht-r.  Diir.  P.p.  34.  f  Ibid.  42. 

"  Ib!d.  33, 

fupported 


24  H  I  S  T  O  R  Y      O  F      r  H  K 

CHAP.  I.  fupported  by  the  concurring  teflimony  of  others  to  his  cr«- 
SAXONS.  ^^^*  -^^^  fmall  diftricls  into  which  the  people  were  di- 
vided, and  the  confequent  relation  which  by  law  they  bore 
to  each  other,  furniflied  abundant  opportunities  for  a  man's 
character  to  be  known;  and  declarations  of  his  neighbours 
concerning  his  credibility  might  be  received  with  no  fmall 
degree  of  confidence. 

It  cannot  be  difiembled  that  fome  learned  men  have  been' 
of  opinion,  that  the  trial  by  jury  was  in  ufe  among  the  Sax- 
ons; and  this  point,  like  fome  others,  has  been  maintained 
with  great  pertinacioufnefs  by  thofe  who  have  laboured  to 
prove  the  antiquity  of  our  juridical  conftitution. 

This  opinion  may,  probably,  have  been  founded  on  the 
limilitude  ho.X'^'Ctn  ff3aiorcs  Tin^.  jurors ;    an    appearance 
which,  on  a  fuperficial  view,  may  indeed  deceive.     How- 
*  ■  ever,  it  maybe  laid  down  with  fafety,  that  the  trial  by  jury 

did  not  at  this  time  exift  ;  and  if  the  reader  will  fufpend  his 
judgment  till  he  comes  to  thofe  times  when  the  trial  by  jury 
was  really  eftablifhed,  he  will  then  fee  diitinclly  the  eflential 
difference  hQlw^QW  ficlatcres,  cc?upurgatcres ,  'SLudJuratores; 
and  will  agree  with  us  in  declaring,  that  the  frequent  men- 
tion of  ficlatores  is  no  proof  of  juries^  properly  fo  called, 
being  known  to  our  Saxon  anceftors. 

Thus  have  we  attempted  to  give  a  (ketch  of  that  fyflem 
of  jurifprudence  which  fubfifled  among  the  Saxons.  The 
materials  which  furniih  any  knowledge  of  it  are  fo  few  and 
fcanty,  that  it  is  with  the  utmoft  difficulty  any  thing  con- 
fident can  be  colle6led  from  them.  This  mud  give  rife  to 
a  variety  of  opinions,  according  as  perfons  are  biaffed  by 
prejudices  and  different  turns  of  thinking.  Perhaps,  after 
all,  the  clearcil  opinion  that  can  be  formed  refpecling  fuch 
diflant  and  obfcure  times,  is  not  worth  defending  with 
much  obfUnacy. 

Of  this  the  reader  will  be  able  to  judge,  when,  in  the 
courfe  of  this  Hiilory,  he  finds  inftitutions  either  fo  abun- 
dantly fuperinduced  upon  the  original  ground-work,  or  fo 

entirely 


ENGLISHLAW.  25 

entirely  fubllituted  in  the  place  of  it,  that  very  little  remains  CHAP.  I. 
of  the  Saxon  jurifprudence  can.be  traced,  even  in  the  ear-  s  a  x  o  N  S. 
lied  times  of  our  known  law,  after  the  Conquefl:.  The 
parts  which  alone  furvived  that  revolution,  feem  to  have 
been  the  methods  of  trial,  fome  notions  of  criminal  law, 
and  the  fcheme  of  police.  The  others  were  gradually  fu- 
perfeded,  and  at  length  are  no  longer  known. 

It  remains  now  to  enquire  what  (leps  were  taken  by  the 
Anglo-Saxons  in  collefting  and  improving  their  laws,  and 
what  monuments  they  left  of  their  legal  polity. 

We  are  told,  that  the  great  and  good  king  Alfred,  be- 
fides  the  regulations  he  made  for  the  better  order  and  govern- 
ment of  his  people,  feeing  how  various  the  local  cuftoms  of 
the  kingdom  were,  made  a  coUedion  of  them ;  and  out  of  Alfred'* 
them  compofed  his  Dcm  Boc,  or  Liher  Judicialis.  It  fcems  "^^  °^* 
this  was  intended  as  a  code  for  the«governmcnt  of  his  whole 
kingdom  ;  and  it  obtained,  with  great  authority,  during 
feveral  reigns  j  being  referred  to,  in  a  law  made  by  king 
Athclftan,  as  an  authoritative  guide  '. 

However,  this  work,  valuable  as  it  was,  had  probably 
the  defeds  of  all  original  attempts.  On  that  account,  as 
well  as  on  account  of  the  irruption  and  fettlement  of  the 
Danes,  and  the  confequent  prevalence  of  their  cuftoms,  it 
was  found  necefiary  in  the  days  of  king  Edgar  to  revife  this 
compilation,  or  make  another  more  full  and  more  fuitablc  ^       ... 

^  '  1  •  1    r     Compilaticn  by 

to  the  then  ftate  of  the  law.  But  this  undertaking  was  left  Edward  the 
unfinifhed  •,  fo  that  the  grand  defign  of  making  a  complete 
code  of  Englifh  law  fell  to  the  part  of  Edward  the  Confef- 
for  •,  who  is  faid'^  to  have  collected  from  the  Mercian,  Weft 
Saxon,  and  Danifh  law,  an  uniform  body  of  law  to  be  ob- 
ferved  throughout  the  kingdom  ^  From  this  circuniftnnce, 
the  character  of  an  eminent  legiflator  has  been  conferred  on 
Edward  the  Confeflbr  by  pofterity;  who  have  endowed  him 


i  Ca,  5.  35  to  36-  Lamb.  p.  149. 

^  Hovcdcn,  Hco.  II.  Lfg.  St.  EJw.         ^  1.  Ela.  66. 


with 


26  HISTORY      OF     THE 

CHAP.    I.     with  a  fort  of  praife  nearly  allied  to  that  of  Alfred  :  for  as 
SAXONS,     ^"^  ^^  dignified  with  the  title  of  legtmi  Anglicafiarum  Conditory 
the  other  has  been  called  legum  Anglicanarum  Rejlltutor. 

It  is  faid,  that  the  Dom  Boc  of  Alfred  was  in  being  about 
the  time  of  Edward  IV. ;  but  we  hear  nothing  of  the  fate 
attending  the  volume  compiled  by  Edward  the  Confeflbr. 
As  to  the  nature  of  the  work  •,  it  feems  probable,  that  as  the 
Danes  had  now  become  incorporated  into  the  body  of  the 
people,  their  laws  were  melted  down  into  one  mafs  with  the 
Mercian  and  Wefl:  Saxon ;  and  all  together  compofed  a  fet 
of  laws  to  govern  both  people.  This,  mod  likely,  was  done 
with  equable  qualifications  of  all  thefe  laws,  fo  as  to  render 
fubmiflion  to  them,  by  both  nations,  neither  ftrange  nor  op- 
preflive.  It  fhould  feem,  there  was  throughout  that  book  a 
conftant  intimation  what  was  Saxon,  Mercian,  or  Danifh  ; 
as  we  find  in  the  laws  of  William  the  Conqueror,  which 
were  defigned  to  make  certain  alterations  in  thofe  of  Ed- 
ward, frequent  mention  of  them  by  their  refpective  names, 
as  different  fubfifting  laws. 

As  the  coile^lion  of  Edward  the  GonfefTor  comprized  in 
it  the  whole  law  of  the  kingdom,  it  contained  not  only  the 
unwritten  cuftoms,  but  the  laws  and  ftatutes  made  by  the 
feveral  kings.  By  the  lofs  of  this  volume,  we  are  left  very 
much  in  ignorance  as  to  the  extent,  fcope,  and  nature  of 
thefe  cuftoms.  It  is  not  fo  with  the  written  laws  of  thefe 
times  \  for  we  have  many  of  thefe  ftill  remaining.  Thefe 
remains  of  Saxon  legiflation  give  us  fome  infight  into  the 
nature  of  their  jurifprudencc. 

As  laws,  if  not  made  to  create  fome  new  regulation,  are 
defigned  to  reftricl,  amend,  or  enlarge  fome  pre-exiilent 
cuftom,  or  law ;  they  always  enable  us  to  make  fome  con- 
je£lures  refpe£ling  the  fubjecl  upon  which  they  are  intended 
to  operate.  From  thefe  Saxon  laws  we  may  pronounce,  that 
matters  of  judicial  enquiry  were  treated  with  great  plainnefs 
and  fimplicity.     Like  the  laws  of  a  rude  people,  they  are 

princi- 


ENGLISHLAW.  27 

principally  employed  about  the  ordering  of  the  police ;  and     chap.    I. 
accordingly  contain  an  enumeration  of  crimes  and  their  pu-     r  a  x  o  N  s 
iiiihments.    As  this  makes  the  greater  part  of  the  Saxon  laws 
now  exifting,  it  may  fairly  be  concluded  that  the  Dom  Boc 
of  Alfred  and  the  compilation  of  Edward  the  ConfefTor  were 
moftly  filled  with  the  fame  kind  of  matter. 

The  firfl;  of  the  Saxon  laws,  now  in  being,  are  thofc  of  ^*''<*"  hiv^, 
king  Ethelbert.  Thefe  are  the  moft  antient  laws  in  our 
realm,  and  are  faid  to  be  the  moil  antient  in  modern  Eu- 
rope. This  king  reigned  from  561  to  636.  The  next 
are  the  laws  of  Hlothaire  and  Eadric,  and  of  Wihtred,  all 
kings  of  Kent.  Next  arc  thofe  of  Ina,  king  of  the  Well 
Saxons.  After  the  Heptarchy  we  have  the  laws  of  Alfred, 
Edward  the  Elder,  Athelftan,  Edmund,  Edgar,  Ethelred, 
and  Canute.  Bcfides  thefe,  there  are  canons  and  conftitu- 
tions,  decrees  of  councils,  and  other  a£ts  of  a  public  na- 
ture. Thefe  are  in  the  Saxon  language,  and  were  fome  of 
them  colleiSled  in  one  volume  in  folio,  by  Mr.  Lambard,  in 
the  time  of  queen  Elizabeth,  and  publlfhed  under  the  title 
of  Af;)(;a»ovo/xta ;  /ive^  de  prifcis  Anglorum  legibus.  To  tliib 
additions  have  fmce  been  made  by  Dr.  Wilkins.  Thefe 
remains  compofe,  all  together,  a  body  of  Anglo-Saxon  laws 
for  civil  and  ecclefiaftical  government. 

We  have  refrained  from  mentioning  fome  laws  which 
have  gone  under  the  name  of  Edward  the  Confeflbr,  as 
they  have  been  reje<£led  for  fpurlous*,  upon  the  fulled  con- 
fideration  of  antiquarians.  Tiiey  are  in  Latin,  and  bear 
evident  internal  marks  of  a  later  period.  They  are  fup- 
pofed  to  have  been  written,  or  collecSled,  about  the  end  of 
the  reign  of  William  Rufus ;  and  are  to  be  found  in  the 
collections  of  Lambard  and  Wilkins. 

*  Sptlman  voce  Ballivu'-. 

CHAT. 


28  HISTORYOFTHE 

CHAP.  II. 

WILLIAM  the  CokqUEROR  to  JOHN. 

The  Conquejl — Saxon  Laws  confirmed — The  Laws  ofWiUliun 
the  Conqueror — Trial  by  Duel  in  Criminal  ^lefions — EJla- 
blijhment  of  Tenures — Nature  of  Tenures — Different  Kinds 
of  Tenu res —  Villenage —  Of  Efcuage —  Confcquences  of  Te- 
nure— Of  Primogeniture — Of  Alienation — Of  Judicature 
— The  Curia  Regis — Jujlices  Itinerant — The  Bench — The 
Chancery — Judicature  of  the  Council — Of  the  Spiritual 
Court — Of  the  Civil  and  Canon  Law — DoElrines  of  the 
Canon  Law — Probate  of  Wills- —  Coffitutions  of  Clarendon 
—Of  Trial  by  Duel  in  Civil  ^.ef  ions -^Of  Trial  by  Jury 
.  -^by  the  Affize—Of  Deeds— A  Feoffment— A  Fine— Of 
Writs — Of  Records, 

^^  ^"-  1  H  E  accefTion  of  William  of  Normandy  to  the  En- 
WILLIAM     S^^^  throne  makes  a  memorable  epoch  in  the  hiftory  of 

CONQUEROR  ^^^  municipal  law.  Some  Saxon  cuftoms  may  be  traced 
to  by  the  obferving  antiquary,  even  in  our  prefent  body  of 

law ;  but  in  the  eftablifhment  made  in  this  country  by  the 
Normans,  are  to  be  feen,  as  in  their  infancy,  the  very  form 
and  features  of  the  Englifh  law.  It  is  to  the  conqueft  and 
to  the  confcquences  of  that  revolution  that  the  juridical  hif- 
torian  is  to  direct  his  particular  attention.  A  new  order  of 
things  then  commenced.  The  nature  of  landed  property 
was  entirely  changed  •,  the  rules  by  which  perfonal  property 
was  dire6led,  were  modified;  a  new  fyftem  of  judicature 
was  erected ;  new  modes  of  redrefs  conceived  ;  new  forms 
of  proceeding  were  devifed  *,  the  rank  and  condition  of  in- 
dividuals became  entirely  new ;  the  whole  conRitution  was 
;iltered*,  and,  after  fluctuating  on  a  fingular  policy,  pregnant 
with  the  mod  oppofite  confcquences  of  freedom  and  flavery, 
by  degrees  fettled  into  peace  and  orderly  government.     In 

fhort. 


ENGLISH      LAW.  29 

fliort,  a  ftate  of  things  then  took  place,  from  which,  after     CHAP.  ii. 
innumerable  alterations,  arofe  the  prefent  frame  of  Englilh     william 

jurifprudence.  _       ^'^^ 

•*        ^  .  .  CONQIJEROR 

It  has  long  been  a  debated  quellion,  in  what  manner  10 

"William  was  the  conqueror  of  this  ifland  *,  nor  has  the  dif-      •' 
cuiTion  been  confined  to  hiftorians  and  antiquaries  :  the  ad- 
herents of  modern  parties  did,  at  one  time,  warmly  intereft 
themfelves  in  the  decifion  of  a  point,  which  they  confidered 
as  involving  confequences  very  material  to  the  political  opi- 
nions they  avowed.  The  lovers  of  high  monarchical  autho- 
rity thought  they  derived  a  very  ancient  and  rightful  title 
to  all  kinds  of  prerogative  in  the  king,  by  maintaining  that 
William  made  the  people  of  this  country  lubmit,  as  a  con- 
quered nation,  to  his  abfolute  will.     The  friends  of  liberty,  ^^^  Coaqucft. 
admitting,  as  it  ftiould  feem,  in  fome  meafure,  the  confe* 
quences  of  fuch  a  claim,  contended  as  firmly  that  William 
never  aflhmed  fuch  powers,  and  was  in  truth  no  conqueror. 
Attempts  have  been  made  to  explain  the  term  conquejl  in 
fuch  a  manner  as  to  get  rid  of  any  unfavourable  conclufions 
from  the  word.   It  is  faid  to  have  been  a  conqucft  over  Ha- 
rold, and  not  over  the  kingdom  •,    that  conquefl  fignifies 
acquej},  or  new-acquired  feudal  rights'";  with  other  explica- 
tions of  the  like  defign  and  import  •,   fo  important  a  matter 
was  it  efteemed  to  afcertain  the  true  nature  of  this  event  in 
our  hiftory;  as  if  the  tyranny  of  a  prince  who  lived  feven 
hundred  years  ago,  could  be  a  precedent  for  the  oppreflions 
of  his  fuccelTors ;   or  any  length  of  time  could  eftablifli  a 
prefcription   aganift    the   unalienable    rights  of  mankind. 
The    prefent    prevailing  notions  of  free  government  are 
founded  on  better  grounds  than  the  examples  of  former 
ages,  when  our  conllitutlon  was  agitated  by  many  irregular 
and  violent  movements :  they  are  founded  on  a  rational 
confideration  of  the  ends  of  all  government,  the  good  of 


k 


In  the  law   of  Scoll;.ail,    at  this     ftus  cf  Conclufst       £r(k.    Prin. 
day,  feuda   no'va^    or,   as  wc   Call    it,       b    3.  tit.  8.  iVct.  6. 
lands  takcti  by  purthalV,  arc  tcimcd 

the 


30  H  I  S  T  O  R  Y      O  F     T  H  E 

CHAP.   II.  the  whole  community.     To  leave  fuch  ufelefs  difquifitlons, 

WILLIAM  ^^^^^  fuffice  to  relate  the  htt  j  that  William  put  off  the  cha- 

the  ra£ler  of  an  invader  as  foon  as  he  conveniently  could;  and 

to  took  all  meafures  to  quiet  the  kingdom  in  the  enjoyment  of 

JOHN.  jfg  Q^fj  laws,  and  a  due  admiiniftration  of  juflice. 

Saxon  laws  ^^  ^^^  ^°^^>  ^^^^  ^"  ^^^  fourth  year  of  his  reign,  at  Berk- 

woafirmcd.  bamftead,  in  the  prefence  of  Lanfranc  archbifhop  of  Can* 

terbury,  he  folemnly  fwore  that  he  would  obferve  the  good 
and  approved  antient  laws  of  the  kingdom,  particularly 
thofe  of  Edward  the  Confeffbr;  and  he  ordered,  that  twelve 
Saxons  in  each  county  fhould  make  enquiry,  and  certify 
what  thofe  laws  were. 

When  the  refult  of  this  enquiry  was  laid  before  Wil- 
liam, and  he  had  fet  himfelf  to  confider  the  different  laws 
of  the  kingdom  more  particularly ;  he  (hewed  a  difpofition 
to  give  a  preference  to  the  Danifli,  as  more  conformable 
with  thofe  of  Normandy;  being  fprung  from  the  fame  root, 
and  better  fuited  to  the  genius  of  his  own  fubjeds.  This 
alarmed  the  Enghtli,  who  wifhed  to  have  no  more  of  that 
law  impofed,  than  what  had  been  incorporated  into  their 
cuftoms  by  Edward  the  Confeflbr.  They  befecched  him 
not  to  recede  from  his  folemn  engagement;  and  conjured 
him  by  the  foul  of  Edward,  who  had  bequeathed  him  his 
prefent  fovereignty,  to  confirm  the  Englifli  in  poffeffion  of 
their  laws  as  they  flood  at  the  death  of  the  Confeffor.  To 
this  William  at  length  confented,  and,  in  a  general  coun- 
cil ',  folemnly  ordained,  that  the  laws  of  Edward,  with  fuch 
alterations  and  additions  as  he  himfelf  had  made  to  them, 
fhould  in  all  things  be  obferved. 

In  this  manner  was  the  fyftem  of  Saxon  jurifprudence 
confirmed  as  the  law  of  the  country ;  and  from  thenceforth 
it  continued  the  bafis  of  the  common  law,  upon  which  every 
fubfequent  alteration  was  to  operate. 

*  Leg.  Conq.  63. 

Though 


CHAP.    11. 

WILLIAM 

the 

CONQUEROR 

to 

JOHN. 

ENGLISHLAW.  31 

Though  thefe  alterations  foon  grew  very  confiderable, 
yet  the  dire£t  and  open  change  by  pofitive  laws  was  not 
great.  The  laws  of  William  are  in  pari  materia  with  thofe 
that  remain  of  the  Saxon  kings;  except  fuch  as  introduced 
the  feudal  conflitution,  and  the  trial  by  duel.  But  a  revo- 
lution was  efFe^led  through  other  means,  and  that  by  flow 
and  imperceptible  degrees.  The  Normans  brought  over 
with  them  a  difpofition  to  favour  the  inftitutions  to  which 
they  had  been  ufed  in  their  own  country  ;  and  the  compa- 
rative (late  of  the  two  people  enabled  them  to  fucceed  in  the 
attempt.  Having,  from  their  continental  fituation,  had 
greater  opportunities  of  improving  their  polity  and  manners, 
they  had  very  far  furpafled  the  Saxons  in  knowledge  and 
refinement.  This  was  difcoverable  in  their  laws ;  which 
were  conceived  and  explained  with  fomc  degree  of  artificial 
reafoning.  Though  this  jurifprudence  was  fimple,  com- 
pared with  what  it  grew  to  in  after-times,  it  was  conceived 
on  principles  fufceptible  of  the  inferences  and  confequenccs 
afterwards  really  deduced  from  it. 

The  doftrine  of  tenures  being  once  ellablifhed  by  an 
exprefs  law,  all  the  foreign  learning  concerning  them  of 
courfe  followed.  The  other  parts  alfo  of  the  Norman  ju- 
rifprudence, their  rules  of  property  and  methods  of  pro- 
ceeding, foon  began  to  prevail  :  they  were  referred  to  and 
debated  upon  as  the  native  cuftom  of  this  realm,  or  very  fit 
to  be  ingrafted  into  it ;  and  being  once  introduced  and  dif- 
cuflcd  in  the  king*s  courts,  which  were  framed  upon  the  Nor- 
man plan,  and  prefided  over  by  Norman  lawyers,  they  gra- 
dually became  a  part  of  the  common  law  of  England. 

The  revolution  cfieded  by  thefe  means  was  very  im- 
portant indeed.  Befides  tenures,  with  all  their  incidents 
and  properties,  the  aula^  or  curia  regis  was  eftabliflied; 
as  was  the  law  of  eftates,  the  ufe  of  fealed  charters,  the 
trial  by  a  jury  of  twelve  men,  and  the  feparate  jurifdi£lion 
of  the  ecclefiaflical  judge.  Thefe  were  almoft  inflant  con- 
fequenccs 


32  HIS  T  O  R  Y      OF     THE 

c  H  A  P.  II.     fequences  of  the  Conqueft.     The  other  branches  of  the 

WILLIAM     Norman  law  foon  followed  upon  the  like  tacit  admiffion, 

the  that  thev  conOituted  a  part  of  the  common   law  of  the 

CONQt'EROR  ,  '  * 

to  realm. 

JOHN. 

We  {hall  now  confider  thofe  laws  which  were  made  by 
The  laws  of        William  the  Conqueror,  and  have  conftantly  gone  under 

William  the  ,  .  ^n,  .  i     i         i     r    i  r  rL 

Conqueror.  his  name,     i  he  regulations  made  by  theie  laws  leem,  molt 

of  them,  very  little  worthy  of  curiofity,  as  differing  in  no- 
thing from  the  fubje6i  of  many  Saxon  conftitutions.  They 
make  fome  alterations  in  the  value  of  luere gilds  and  penal- 
ties. They  fometimes  merely  enforce  or  re-ena61:  what 
was  before  the  law  of  the  realm ;  taking  notice  of  the  dif- 
ferences obferved  by  the  three  great  governing  polities,  the 
Weft-Saxon,  Danifh,  and  Mercian.  The  parts  of  thefe 
laws  which  are  moft  material  are  the  following. 

The  reliefs  or  confideration  to  be  paid  to  the  fuperior 
upon  fucceeding  to  the  inheritance,  was  fettled  in  the  cafe 
of  an  earl,  baron,  and  vavafor ;  the  firft  at  eight  horfes, 
the  fecond  at  four,  and  the  laft  at  one  j  thefe  were  to  be 
caparifoned  with  coats  of  mail,  helmets,  (hields,  and  other 
warlike  accoutrements"^.  The  relief  of  thofe  who  held  by 
a  certain  rent,  was  to  be  one  year's  rent " ;  and  that  of  a 
Have,  or,  as  he  was  now  called,  a  villalu,  was  to  be  his  heft 
beaft°.  It  was  directed,  that  if  a  man  died  inteftate,  his  chil- 
dren ihould  divide  the  inheritance  equally  p.  It  was  llridlly 
enjoined,  that  no  one  omit  paying  the  due  fervices  to  his  lord, 
on  pretence  of  any  former  indulgence''.  A  regulation  was 
made  refpe£ling  nam'nim,^  or,  as  it  has  fince  been  called,  a 
dijlrefs ;  a  kind  of  remedy  which,  according  to  fome,  was 
introduced  by  the  Normans,  and  according  to  others  was 
before  in  ufe  here.  It  was  dire<Sled  %  that  a  nam'mm  (liould 
r*ot  be  taken  till  right  had  been  demanded  three  times  in 


*"  219  Conq    i2»  23,  24. 

MS- 

"40. 

M4- 

"  29. 

Ml- 

the 


CONQUEROR 

to 


E  N  G  L  I  S  H      L  A  W.  33 

the  county  or  hundred  court;  and  if  the  party  did  not  ap-    CHAP.   ir. 
pear  on  the  fourth  day  appointed,   that  the  complainant     will  I  AM 

fhould  have  leave  of  court  to  take  a  namiiim  or  diftrefs  fuf-    the 

ficient  to  make  him  full  amends.  Thus  this  fummary  re- 
medy was  confidered  only  in  the  light  of  a  compulfory  pro-  JOHN. 
cefs,  and  was  therefore  called  difiriciio  (and  thence  in  after- 
times  di/Irefs)  from  dijirnigere^  which,  in  the  barbarous  la- 
tinity  of  thofe  days,  fignified  to  compel.  The  remarkable 
law  made  by  Canute  in  protection  of  his  Danes  was  adopted 
by  William,  in  favour  of  his  own  fubjccts.  He  ordained  * 
that  where  a  Frenchman  '  was  killed,  and  the  people  of  the 
hundred  had  not  apprehended  the  flayer  and  brought  him  to 
juflice  within  eight  days,  they  fhould  pay  forty-feven  marks, 
which  fine  was  called  murdrum.  By  virtue  of  this,  pre- 
fentments  of  EngUJhery^txz  made;  and  all  the  former  law 
upon  the  fubjedt  was  continued,  with  the  fingle  difference 
of  putting  frenchman  in  the  place  oiDane.  William  forbad 
all  punifhments  by  hanging,  or  any  other  kind  of  death  ' ; 
and  fubftituted  in  the  place  of  it  feveral  kinds  of  mutila- 
tion; as  the  putting  out  of  eyes,  cutting  off  the  hands  or 
feet,  and  caflration.  This  alteration  was  made,  fays  the 
law,  that  the  trunk  may  remain  a  living  mark  of  the  offen- 
der's wickednefs  and  treachery. 

There  are  fome  laws  of  William  which  eftablifh  the 
trial  by  dud^  and  (ketch  out  certain  rules  for  the  application 
of  it  *.  By  one  law,  the  fame  liberty  is  given  to  an  Eng- 
liihman,  which  every  Frenchman  had  in  his  own  country, 
to  accufe  or  appeal  a  Frenchman,  by  duel,  c/  theft,  homi- 
cide, or  any  other  crime,  which  before  that  time  ufcd  to 
be  tried  either  by  the  ordeal  or  duel.  If  an  Englilhman 
declined  the  duel,  then  the  Frenchman  was  at  liberty  to 
purge  himfelf  by  the  oaths  of  witneffes,  according  to  the 
law  of  Normandy.     On  the  other  hand,  if  a  Frenchman!^ 

»  a6.  *  68. 

'   Fiaiicief na.  ■  "^  69. 

"  azj.  Conq.  67. 

Vol.  I.  D  appealed 


34 

CHAP.    II. 

WILLIAM 

th« 

CONQUEROR 

to 

JOHN. 

HISTORY      OF     THE 

appealed  an  Englifliman  by  duel,  the  Englifhman  was  to 
be  allowed  his  eleftion,  either  to  defend  himfelf  by  duel  or 
by  ordeal,  or  even  by  witnelTes;  and  if  cither  of  them 
wcrfe  infirm,  and  could  not  or  would  not  maintain  the  com- 
bat himfelf,  he  might  appoint  a  champion.  If  a  French- 
man* was  vanquiflied,  he  was  to  pay  to  the  king  fixty  fliil- 
lings.  In  cafes  of  outlawry*,  the  king  ordained,  that  an 
Englifhman  (liould  purge  himfelf  by  ordeal ;  but  that  a 
Frenchman  appealed  by  an  Engliiliman  in  fuch  a  cafe, 
iliould  make  out  his  innocence  by  duel.  However,  if  the 
Englifhman  fnould  he  afraid^ ^  fays  the  law,  to  ftand  the 
trial  by  duel,  the  Frenchman  fliall  purge  \\\Vi\it[i pleno  jura' 
mentOy  that  is,  by  oaths  of  compurgators. 

Thus  was  the  trial  by  duel  formally  eflabliilied  in  cri- 
minal enquiries  j  but  with  fuch  qualifications  annexed,  as 
fliew  a  regard  to  the  prejudices  which  both  people  had  in  fa- 
vour of  their  own  c«ftoms.  The  trial  by  duel  in  civil 
caufes  does  not  appear  to  have  been  introduced  by  any  par- 
ticular law  \  but,  when  this  opening  was  made,  it  foon  be- 
gan generally  to  prevail;  and  indeed,  after  fuch  a  precedent, 
it  had  more  colour  of  legal  authority  than  the  numerous 
other  innovations  derived  from  that  nation. 

It  was  declared  by  a  law  of  William  %  that  all  freemen 
fliould  enjoy  their  lands  and  pofTefTions  free  from  unjt/JI  ex- 
oi  tenures.  atJions  and  talliagcs ;  fo  that  nothing  be  taken  from  them 

but  what  was  due  by  reafon  of  fervices,  to  which  they  were 
bound.  What  thofe  fervices  were,  we  are  now  going  to 
confuler. 

The  mofl  remarkable  of  William's  laws  arc  cap.  j;2. 
and  58.  The  tenor  of  the  5  2d  is  this  r  StatuimuSi  ut  orrif^es 
liberi  homines  foe  dc  re  et  facramento  aj^rme::ty  quod  intra  et  e>!- 
tr'a  univerfum  regninn  Analnz  (quod  ollfn  vocahatur  reg?ium 
Brittani^Jy  JVilhelmo  fuo  domino  fideles  cjfz  vtlint ;  terras  et 
honores  illiusjidelitate  uhique fervare  CMti  eoy  et  contra  itiimicos 

*  70.     In  thefe   and  the  other  *•  Nan  audcijt, 
paiTagcs  the  word  is  Fra^ciger.a.  *^  53. 

*  Z?<f  tmnihus  rebus  utL^aritc^  -j  i . 

Ct 


Eflabiiriiirtent 


CHAP.    IL 

WILLIAM 

the 

CONQUEROR 

to 

JOHN. 

E  N  G  L  I  S  H      L  A  W.  35 

tt  alienigenas  dtfendere,  Tlie  interpretation  put  upon  this 
law  is,  that  all  owners  of  land  are  thereby  required  to  en- 
gage and  fwear,  that  they  become  vaflaJs  or  tenants,  and 
as  fuch  will  be  faithful  to  William,  as  lord,  in  relpe£l  of 
the  domhnum  (upon  the  feudal  notion)  refiding  in  a  feudal 
lord  ^ ;  that  they  would  fwear,  every  where  faithfully  to 
maintain  and  defend  their  lord's  territories  and  title  as  well 
as  his  perfonj  and  give  him  all  poITible  afliftance  againfthis 
enemies,  whether  foreign  or  domeftic  ^.  Thefe  engage- 
ments and  obligations  being  the  fundamental  principles  of 
the  feudal  Hate,  it  was  faid,  that  when  fuch  were  required 
from  every  freeman  to  the  king,  that  polity  was  in  effecl 
fiflablifhed. 

As  the  enabling  language  of  this  law  is  in  the  firft 
perfon  plural,  J}atu\mus^  and  the  king  Is  fpoken  of  in  the 
third  perfon,  fome  vnriters  think  it  mud  be  confidered  as 
an  aft  of  the  legiflature.  A  regulation  that  was  at  once  to 
overturn  the  whole  law  of  the  kingdom  with  regard  to 
land,  could  not  well  be  hazarded  on  any  other  authority; 
and  indeed  chap.  58.  of  thefe  laws,  which  dilates  more 
largely  upon  the  fubjeft  of  this,  refers  to  it  as  ordained 
per  commune  concilium. 

The  terms  of  this  law  are  very  general;  and  probably 
it  was  purpofely  fo  conceived,  in  order  to  conceal  theconfc- 
quences  that  were  intended  to  be  founded  thereon.  The 
people  of  the  country  recdi'^d  with  content  a  law  which 
they  looked  upon  in  no  other  light  than  as  compelling  them 
to  fwear  allegiance  to  William.  The  nation  in  general,  by 
complying  with  it,  probably  meant  no  more  thr.fi  the  terms 
apparently  imported,  namely,  that  they  obliged  themfclvcs  to 
fubmit,  and  be  faithful  to  William,  as  their  lord,  or  king,  to 
maintain  his  title  and  defend  his  territory  ^  But  the  perfons 
who  penned  that  law,  and  William  who  promoted  it,  had 
deeper  views,  which  were  a  little  more  explained  in  his 
58th  law.     This  conftitution  runs  in  thefe  words  :  Statui* 

*  Wrihi  Ten.  6«.  *  Ibid  68.  *  Ibid.  79. 

D  2  wvx 


36  H  I  S  T  O  R  Y      O  F     T  H  E 

CHAP.   II.      mus  etianif  et  firmiter  pracipimus^   tit  omnes  comites  et  ba- 

^Tr  f  X  K^     rones,  et  mllites,  et  fervientes.  et  iiniverft  liberi  homines  tot'ius 
WILLIAM  '  ^      J  » 

tb€  re^n'i  nollri  trediEli  haheant  et  teneant  fe  fcmper  haie  hi  artms 

to  (t  '«  eqii'is^  lit  decety  et  oportct\   et  quid fmt  femper  promptly 

JOHN.  ^^  jj^j^g parat'i  ad fervit'ium  fincm  integrum  nobis  explenduniy 
et  peragendumy  cumftrnper  opus  fuerit,  fecundum  quod  nobis 
DE  FEODIS  dcbent  et  tenemcntis  fuis  dejurefacere,  et  ficut 
tills  Jlatuimus  per  commune  concilium  totius  regni  nojiri  pro:- 
dlBly  et  nils  dedi}?ws  et  concejftmus  infoedoyjure  hareditario. 

By  this  law  the  nature  of  the  fervice  to  be  performed  is 
exprefsly  mentioned,  namely,  knight-fervice  on  horfeback; 
and  the  term  of  each  feudal  grant  was  declared  to  be  jure 
haredltario.  This  latter  circumftance  muft  have  had  a 
very  confiderable  effect  in  quieting  the  minds  of  men,  re- 
fnecling  the  nature  of  this  new  eftabli{hment.  The  Saxon 
feuds,  being  perhaps  beneficiary,  and  only  for  life,  were  at 
once  converted  hito  inheritances;  and  the  Normans  ob- 
tained a  more  permanent  intereft  in  their  new  property^ 
than  probably  they  had  before  enjoyed  in  their  antient 
feuds. 

From  thefc  two  ftatutes  were  deduced  the  confequences 
of  tenure  ;  from  thefe  a  new  fyilem  of  law  fprung  up,  by 
which  the  landed  property  of  the  kingdom  was  entirely  go- 
verned till  the  middle  of  the  lall  century,  and  is,  in  fomc 
degree,  influenced  even  at  this  day.  The  Norman  lawyers, 
who  were  verfed  in  this  kind  of  learning,  exercifed  their 
talents  in  explaining  its  do6lrines,  its  rules,  and  its  maxims; 
and  at  length  efliabliflied,  upon  artificial  reafoning,  mod  of 
the  refinements  of  feudal  jurifprudence. 

By  the  operation  of  thefe  two  (latutes,  the  Saxon  dillinc- 
tlon  between  Bocland  and  Folcland,  charter-land  and  allo- 
dial, with  the  trinoda  necejfitasy  and  other  incidents,  was  to- 
tally abolidied ;  and  all  the  liberi  homines  of  the  kingdom,  on 
a  fudden,  became  poffefled  of  their  land  under  a  tenure 
which  bound  them,  in  a  feudal  light,  mediately  or  imme- 
diately to  the  king.     Thus,  if  A.  had  received  his  land  of 

the 


nurcs. 


E  N  G  L  I  S  H      L  A  \V.  37 

the  king,  and  B,  had  received  his  of  ^.;  B.  now  held  his     CHAP.  ir. 
land  of  A.  on  the  fame  terms,  and  under  the  fame  obliga-     william 
tions,  that  J.  held  his  of  the  king-,  each  confidering  him-  conqueror 
felf  under  the  reciprocal  obligation  of  lord  and  tenant.     In  to 

this  manner  it  became  a  maxim  of  our  law,  that  all  land      ^ 
was  held  mediately  or  immediately  of  the  king,  in  whom 
refided  the  dominium  dlreBum  ;  while  the  fubjecl  enjoyed 
only  the  doinimum  iitiley  or  the  prefent  cultivation  and 
fruits  of  it. 

This  pofition  led  to  confequences  of  the  greateft  im-  Nature  of  tc- 
portance.  Military  fervice  being  required  by  an  exprefs 
ilatute,  the  other  effects  of  tenure  were  dcdu£lions  from 
the  nature  of  that  eftablirnment.  As  all  the  king's  tenants 
were  fuppofed  to  have  received  their  lands  by  the  gift  of 
the  king,  it  feemed  not  unreafonable,  that,  upon  the  death 
of  an  anceilor,  the  heir  fhould  purchafe  a  continuance  of 
the  king's  favour,  by  paying  a  fum  of  money,  called  a  re-- 
I'lefy  for  entering  into  the  eflate.  As  he  would  be  bound 
to  the  fame  fervice  to  which  his  anceilor  was  liable,  and 
which  was  the  only  return  that  could  be  made  in  confider- 
ation  of  his  enjoying  the  property,  it  feemed  reafonable  that 
the  king  fhould  judge,  whether  he  was  capable,  by  his  years, 
of  performing  the  fervlces :  if  not,  that  he,  as  lord,  (hould 
have  the  cuftody  of  the  land  during  the  infancy,  by  the  pro- 
duce of  which  he  might  provide  himfelf  with  a  fufficient 
fubftitute,  and  In  the  mean  time  have  the  care  or  ward- 
JJjip  of  the  infant's  perfon,  in  order  to  educate  him  in  a  man- 
ner becoming  the  chara^ler  he  was  to  fupport  as  his  tenants 
If  the  ward  was  a  female,  it  feemed  equally  material  to  the 
lord,  that  (he  fliould  connect:  herfelf  in  marriage  with  a 
proper  perfon;  fo  that  the  difpofal  of  her  in  marriage  was 
alfo  thought  naturally  to  belong  to  the  lord. 

The  obligation  between  lord  and  tenant  fo  united  their 
intercfls,  that  the  tenant  was  likewife  bound  to  afford  aid 
to  his  lord,  by  payment  of  money  on  certain  emergent 
calls  refpe^llng  himfelf  or  his  family;  namely,  ivhcn  he  mav' 

r'led 


Oi  tenures. 


3a  HISTORYOFTHE 

CHAP.   II.     f'ieci  his  daughter  y  when  he  made  his  Jon  a  knight ,  or  when  he 

WILLIAM     '^^^^  ^^^^"  "  prifiner, 

tf^e  Besides  thefe  incidents,  it  was  held  that  land  fiiould  ef- 

GON'OUFROR 

to  cheaty  or  fall  back  into  the  hands  of  the  lord,  for  want  of 

J  '      heirs  of  the   tenant,   or   for   the  commiflion  of  certain 

crimes;  and,  in  cafes  of  treafon,  that  it  (houldcome  into 
the  hands  of  the  king  hy  forfeiture. 

These  were  the  fruits  and  confequenccs  the  king  ex- 
pe£l:ed  to  receive  from  the  doclrine  of  tenure;  thefe  he  de- 
manded as  lord  from  his  tenants;  and  they,  in  the  cha- 
racter of  lords,  exacted  many  of  the  like  kind  from  theirs* 
In  this  manner  was  the  feudal  bond  rivetted  on  the  landed 
property  of  the  whole  kingdom. 
DifFc  rent  kinds  Thus  far  of  the  nature  of  tenures  in  general-:  but  te- 
nure was  of  twa  kinds;  tenure  by  knight-fervicey  and 
tenure  in  foccage.  Tenure  by  knight-fervice  was,  in  its 
inftitution,  purely  military,  and  the  genuine  effeCl  of  the 
feudal  eftablifhment  in  England  ^ :  the  fervices  were  oc- 
cafional,  though  not  altogether  uncertain,  each  fervice 
being  confined  to  forty  days.  This  tenure  was  fubjefl  to 
relief y  aidy  efcheaty  ivardfJjipy  and  marriage^  Soccage  was  a 
tenure  by  any  conventional  fervice  not  military.  Knight- 
fervice  contained  in  it  two  fpecies  of  military  tenure ; 
grand  Tm.^  petit  ferjeanty.  Under  tenure  in  foccage  may  be 
ranked  two  fpecies ;  hurgagey  and  even  gavelkindy  though 
the  latter  has  many  qualities  different  from  common  foc- 
cage. Befides  thefe,  there  was  a  tenure  called  frankaU 
tnoigne.  This  was  the  tenure  by  which  religious  houfes 
and  religious  perfons  held  their  lands;  and  was  fo  called, 
becaufe  lands  became  thereby  exempt  from  all  fervice,  ex- 
cept that  of  prayer  and  religious  duties.  Such  perfons  were 
alio  faid  to  hold  ///  liber d  eleemofyndy  or  in  free  alms. 

Thus  far  of  free- tenure,  by  which  the  I iberi  homines  of 
the  kingdom  became  cither  tenants  by  knight-fervice,  or  in 
common  foccage.     It  is  thought,  that  the  condition  of  the 

s  Wright  Ten.  140.. 

lower 


ENGLISH      LAW. 

lower  order  oiceorls^,  who  among  the  Saxons  were  in  a 

(late  of  bondage,  received  an  improvement  under  this  new     \vTll7am* 

polity.     Nothing  is  more  likely  ^  than  that  the  Normans,  *^*^ 

11  r,,n  n  CONQUEROR, 

who  Were  ilrangers  to  any  other  than  a  feudal  ftatc,  mould,  to 

to  a  certain  degree,  enfranchife  fuch  of  thofe  wretched  per-  JOHN. 
Ibns  as  came  into  their  power,  by  permitting  them  to  do 
fealty  for  the  fcanty  fubfiftence  which  they  were  allowed  to 
raife  on  their  precarious  pofleiTions;  and  that  they  were 
permitted  to  retain  their  pofieifion  on  performing  the  anci- 
ent fervices.  But,  by  doing  fealty,  the  nature  of  their  pof- 
feflion  was,  in  conftru^lion  of  the  new  law,  altered  for 
the  better-,  they  were  by  that  advanced  to  the  character  of 
tenants ;  and  the  improved  ftate  in  which  they  were  now 
placed,  was  called  the  tenure  of  villcnagc.  Elevated  to  this  Vlllcnage. 
confideration,  they  were  treated  with  lefs  wantonnefs  by 
their  lords,  who,  after  receiving  \}i\€\x  fealty^  could  not  in 
honour  or  confcience  deprive  them  of  their  pofleffions, 
while  they  performed  their  fervices.  But  the  confcience 
and  honour  of  their  lord  was  their  only  fupport.  How- 
ever, the  acquiefcence  of  the  lord,  in  fuffering  the  defcend- 
ants  of  fuch  perfons  to  fucceed  to  the  land,  in  a  courfe  of 
years  advanced  the  pretenfions  of  the  tenant  in  oppofition 
to  the  abfolute  right  of  the  lord;  till  at  length  this  forbear- 
ance grew  into  a  permanent  and  legal  intcreft,  which,  in 
after-times,  was  called  copyhold  tenure  ^,  Copyholds. 

The  military  fervice  due  from  tenants  underwent  an  al- 
teration in  the  reign  of  Henry  II.  iThe  attendance  of  a 
knight  only  for  forty  days,  was  very  inadequate  to  the  grand 
purpofes  of  warj  which,  befides  the  delay  from  unavoid- 
able accidents,  often  confifted  in  many  tedious  operations, 
before  an  expedition  could  accomplifh  its  end :  while,  on 
the  other  hand,  that  (hort  fervice  was  highly  inconvenient 
to  the  tenant;  who,  perhaps,  came  from  the  northern 
parts  of  this  kingdom  to  perform  his  fervice  in  a  province 
©f  France. 

*^  P.  5.  *  Wright  T«n.  i\€.  ^  Ibid.  220. 

Sensible 


AO 


HISTORY     OF     THE 


CHAP. 


WILLIAM 

the 

CONQUEROR 

to 

JOHN, 

Of  clcuflgc. 


Confjquenccs 


Of  primojenl- 


Sensible  of  thefe  inconveniences,  Henry  II.  in  the 
fourth  year  of  his  reign,  devifed  a  commutation  for  thefc 
fervices,  to  which  was  given  the  name  of  efcuage,  orfcutage. 
He  publifhed  an  order,  that  fuch  of  his  tenants  as  would 
pay  a  certain  fum,  fliould  be  exempted  from  fervice,  either 
in  perfon  or  by  deputy,  in  the  expedition  he  then  meditated 
againft  Tholoufe.  This  fort  of  compromife  was  afterwards 
continued;  and  tenure  hy  e/cuagehec^imc  a  new  fpccies  of  mi- 
litary tenure,  fpringing  from  the  advantage  fome  tenants  by 
knight-fervice  had  taken  of  this  propofition  ^  made  by  the 
king. 

In  the  fame  reign,  a  remiflion  of  the  old  fervice,  which 
had  in  fome  degree  been  conceded  by  Henry  I.  was  ratified 
to  foccage  tenants ;  who  grew  now  into  the  habit  of  pay- 
ing a  certain  fum  in  money,  inftead  of  rents  in  kind. 

Having  fo  far  confidered  the  quality  or  conditions  of 
tenure,  as  introduced  by  the  Norman  fyftem ;  let  us  now 
examine  the  nature  of  that  e/late  or  interefl  a  perfon  might 
have  in  land,  together  with  fuch  incidents  of  ownerfliip  as 
naturally  occur  upon  refle£ling  on  property.  Tfie  polity  of 
tenures  tended  to  reftricl  men  in  the  ufe  of  that,  which,  to 
all  outward  appearance,  was  their  own.  When  the  land 
of  the  Saxons  was  converted  from  allodial  to  feudal,  as 
above  defcribed,  it  could  no  longer  be  aliened  without 
the  confent  of  the  lord,  nor  could  it  be  difpofed  of  by  will. 
Thefe,  with  other  {hackles,  fat  heavy  upon  the  pofTeflbrs  of 
land ;  nor  were  at  laft  removed,  but  by  frequent  and  gra- 
dual alterations,  during  a  courfe  of  feveral  centuries.  The 
hiftory  of  thefe  alterations  in  the  defcent,  alienation,  and 
other  properties  of  feuds,  is  wrapt  in  obfcurity  during  this 
early  period;  however,  we  will  endeavour  to  trace  fuch 
circumftances  relatmg  to  it,  as  can  be  collected  from  the 
fcanty  remains  of  antiquity. 

By  the  introdu<Sl:ion  of  tenures,  there  is  no  doubt  but 
primogeniture^  or  a  defcent  of  land  to  the  cldeft  fon,  began 
to  prevail ;  yet  it  is  found,  that  as  low  down  as  the  reign 
'  A.  D.  1159.     Vide  Spclm.  Cod.  in  Wilk.  Leg.  p.  311. 

of 


E  N  G  L  I  S  H      L  A  W.  41 

of  Hentry  I.  •",  the  right  of  primogeniture  was  fo  feeble,     chap.  it. 
that,  if  there  were  more  than  one  fon,  the  fucceflion  was     vvilliam 

divided,  and  the  eldeft  fon  took  only  the  prhnum  patrts  foe-  ihc 

,  n,.ir  ,rj         f  f  CONQUEROR 

Hum  "  *,  the  reft  bemg  left  to  delcend  to  the  younger  ion  or  to 

fons :  but  this  foon  went  out  of  ufe,  or  was  altered  by      J  ^  '^  ^'• 

feme  ftatute  now  loft ;  for  in  the  reign  of  Henry  II.  the 

eldeft  fon  was  confidered  as  fole  heir :  and  fo  fixed  was  his 

right  of  fucceHion  to  an  inheritance  held  by  his  anceftors, 

that  it  could  not  be  difappointed  by  alienation.    Thus  ftood 

the  law  with  regard  to  tenures  by  knight-fervice;  but  the 

fame  reafons  not  holding  with  refpe£l  to  foccage-lands,  they 

were  not  fubje£l  to  the  fame  law ;  for  fo  late  as  the  reign 

of  Henry  II.  the  fons  fucceeded  to  foccage-lands  in  capita 

equally ;  but  the  capital  melTuage  was  to  go  to  the  eldeft 

fon;  for  which,  however,  he  was  to  make  proportionate 

recompence  to  the  others.     But  this  partible  inheritance  in 

foccage-Iand  was  not  univerfal ;  for,  if  it  was  not  by  cuf- 

tom  divifible  <^,  the  eldeft  fon  was  heir  to  the  whole.     Both 

in  knighfs-fervice  and  foccage,  if  a  perfon  died  leaving 

only  daughters,   they  all  fucceeded  jointly  and  equally,  the 

capital  melTuage  being  given  to  the  eldeft  daughter,  upon 

the  terms  above-mentioned. 

The  t\^\.  oi  reprefetitation  in  prejudice  of  proximity  of 
blood,  though,  perhaps,  not  an  unlikely  confequence  of  the 
legal  notion  of  primogeniture,  did  not  fo  foon  eftablifh  itfelf. 
The  minds  of  men  revolted  at  a  rule  which  gave  the  inhe- 
ritance to  an  infant,  only  bccaufe  he  reprefented  the  perfon 
of  his  father,  in  exclufion  of  the  uiiele,  who  was  nearer  of 
blood  to  the  grandfather,  from  whom  the  fee  defcended  ; 
efpecially  when  regard  muft  be  had  to  tht  calls  of  military 
fervice,  which  an  infant  tenant  was  not  capable  of  perform- 
ing. If  to  thefc  confiderations  we  add  the  little  tendernefs 
that  was  ftiewn  to  the  titles  of  fuch  feeble  claimants  in  thofe 
days  of  violence  and  oppreflion,  we  can  eafily  account  for 

■>  I.eges  17.  °  Si  non  antiquitus  divifum.  Glanv. 

•»  Hale's  Hifl.  Com.  Law,  255.        lib.  7.  c.  3. 

the 


42  HISTORY     OFTHE 

CHAP.  11.     the  flow  progrefs  which  was  made  towards  cftablifhln^  the 
^:;^^^^^C^    right  of  reprcfentation. 

tho  "Wi  T  H  all  thefe  reafons  a^.unft  it,  reprcfentation  was  not 

to  admitted  as  a  rule  of  delceiit,  even  to  low  down  as  the  reign 

JOHN.  ^£  Henry  II.  Glanville  ftates  this  very  point,  as  a  matter 
concerning  which  there  was  a  variety  of  opinions  in  his 
time.  A  man,  fays  he,  dies  leaving  a  younger  fon,  and  a 
grandfon  by  his  elder  fon ;  and  it  was  a  queftion  between 
the  fon  and  the  grandfon  who  fhould  fucceed.  Glanville 
feems  to  think,  that  if  the  elded  fon  had  been  fans-fa  mi  h- 
atedy  that  is,  provided  for  by  a  certain  appointment  of  land 
at  his  own  requeft,  the  grandfon  ftiould  have  no  claim 
againft  his  uncle  refpedting  the  remainder  of  the  inheri- 
tance of  the  grandfather;  though  perhaps  the  eldeft  fon 
might  himfeli",  had  he  furvived  p. 

As  the  defcent  of  crowns  kept  pace  with  the  defcent  of 
private  feuds,  we  may,  from  this  doubt  in  Glanville,  be 
able  to  account  for  the  condu£l  of  king  John  in  excluding 
his  nephew  Arthur  from  the  throne;  and  from  the  different 
opinions  which  were  then  held  concerning  it,  we  may  col- 
lect, that  he  had  fome  colour  of  right  and  law  for  what  ht 
did ;  the  rules  of  inheriunce,  as  to  the  point  then  in  quef- 
tioH)  not  being  preciiely  afcertained  and  fettled.  In  France, 
where  the  right  of  reprcfentation  had  more  generally  ob- 
tained, that  king  was  clearly  efleemed  an  ufurper;  and  as 
fuch,  his  title  denied  and  oppofed.  In  England,  where 
that  mode  of  defcent  had  not  yet  been  fully  fixed,  he  was 
more  generally  held  to  be  in  lawful  pofleffion;  or,  at  leafl, 
the  obje6lion  to  his  right  was  fuch  as  admitted  much  debate 
and  queftion.  At  what  precife  time  thefe  doubts  were  re- 
moved, and  reprcfentation  became  unlverfally  regarded  as 
a  rule  of  defcent,  can  only  be  conjectured.  Probably,  in 
the  latter  part  of  this  very  reign,  when  fuch  a  notorious 
event  was  recent,  and  had  brought  the  fubjeft  under  exa- 
mination, our  law  of  defccnts  received  this  new  modifica- 
tion from  the  Continent  *^. 

'  Lib.  7.  c.  3,  ^  Dalr.  Feud.  11  z. 

When 


ENGLISHLAW.  43 

When  the  fucceflTionof  collaterals  firft  took  place,  and    chap.  h. 
when  reprefentation  amongft  collaterals,  is  involved  in  equal     w  I L  L I  a  M 
obfcurity ;  we  only  know,  that  in  the  time  of  Henry  II.  the  coNQUEROR 
law  was  fettled  in  this  manner.   In  default  of  lineal  defcen-  to 

dants,  the  brothers  and  fifters  came  in ;  and  if  they  were 
dead,  their  children  ;  then  the  uncles  %  and  their  children; 
and  laftly,  the  aunts',  and  their  children  j  obferving  dill 
the  above  diftinftion  between  knight's-fervice  and  foccage, 
and  between  males  and  females  ^ 

The  law  of  feuds  prevailed  in  this  country  as  a  cuftom, 
grounded  upon  the  admiflion  of  the  ^id  and  58th  laws  of 
William  the  Conqueror.  The  particular  rules  and  maxims 
of  it  gained  footing  imperceptibly,  borrowed  perhaps  from 
foreign  fyftems,  but  more  commonly  deduced  by  the  analogy 
of  technical  reafoning.  The  effc£t  of  them  upon  our  land 
is  feen  and  known-,  but  their  fource,  or  the  time  of  their  ori- 
gin, is  too  remote  and  obfcure  to  be  purfued  at  this  day  ". 

The  reftraint  on  alienation  was  a  flriking  part  of  the  of  allenatJoB. 
feudal  polity.  This  reftraint  was  partly  in  favour  of  the 
fuperior  lord,  and  partly  in  favour  of  the  heir  of  the  tenant. 
Whichfoever  of  thefe  confiderations  impofed  the  lirf^  re- 
ftriiSlion,  it  is  certain  the  firil  relaxation  of  it  contained  a 
caution  that  regarded  the  intereft  of  the  heir.  A  law  of 
Henry  I.  fays,  Acquifitiones  fuas  det  cut  tnagis  velit ;  fiBoc- 
land  autem  habeat,  quam  ei paretites  fiii  dederinty  non  m'lttat 
earn  extra  cognattotiem  fuain  ".  This  permiflion,  which  ena- 
bled a  man  to  difappoint  his  children  of  his  hnds  purchafedf 
was  qualified  in  the  time  of  Henry  II. ;  for  then  it  was  laid 
down  for  law,  that  a  man  fliould  alien,  only  part  of  his 
purchafed  land,  and  not  the  whole,  becaufe  he  (hould  not 
JH'ium  ftitim  haredem  exhteredare.  But  If  he  had  neither  fon 
nor  daughter,  he  might  then  alien  a  part,  or  even  the  whole, 
in  fee  ^      And  though  he  had  children,  he  might  alien  all 

'  /tvinCHli.  "  Ing:  edi'urque  feloy  et  caput  inter 

*  A-Iaterter/e.  nubila  ccndit. 

*  GUnv.  lib.  7.  ca.  4.  »  Leg.  Hen.  I.  70. 

y  Glanv.  lib.  7.  c.  3. 

his 


44  II  I  S  T  O  R  Y      O  F      T  H  E 

CHAP.  U.     his  purchafecl  lands ;  providfd  he  had  alfo  lands  by  inhen- 

wiLi  lAM     ^^"*^^>  out  of  which  his  children  might  be  portioned.     It 

the  was  thought  reafonable,  that  a  man  fhould  have  liberty  to 

to  difpofe  of  fuch  lands  as  he  had,  by  his  own  purchafe,  pro- 

j  O  H  N.      cured  to  himfelf;  but  the  genius  of  this  law  would  not  fo  far 

difpenfe  with  its  ufual  ftritlnefs,  as  to  allow  him  altogether 

to  difmherit  his  children. 

The  alienation  of  purchafed  lands  led  to  the  alienation 
of  lands  coming  by  defcent ;  but  this  was  under  certain 
qualifications,  and  not  without  the  like  reftraints  which 
we  have  before  mentioned  In  the  cafe  of  purchafed  lands. 
Part  only  of  an  inheritance,  which  had  defcended  through 
the  family,  could,  in  the  reign  of  Henry  II.  be  given  to 
whomfoever  the  owner  pleafed ;  fo  that,  upon  the  whole, 
a  perfon  in  his  life-time  might,  in  fome  cafes,  difpofe  of 
all  his  purchafed  lands,  and  a  reafonable  part  of  thofe  taken 
by  defcent,  but  could  give  neither  of  them  by  will  ^ 

It  is  an  opinion,  that "  alienation  firfl:  became  frequent 
in  burgage -tenures.  It  feems  as  if  the  holding  in  them 
was  never  very  ftridl ;  and,  as  perfons  living  in  that  fort  of 
fociety  fooner  got  loofe  from  an  habitual  reverence  for  te- 
nure, and,  from  their  occupation,  flood  in  need  of  a  more 
exchangeable  property,  it  is  probable,  alienations  might 
happen  there  more  early  than  among  other  tenants. 

When  alienations  had  become  eftabllfhed  in  burgage- 
tenures,  the  alienation  of  purchafed  lands  in  many  in- 
ilances,  and  of  lands  defcended  in  fome,  was  by  degrees 
permitted,  as  we  have  before  fcen.  All  thefe  alterations 
broke  in  upon  the  original  notion  of  tenure  and  its  qua- 
lities ;  and  in  the  reign  of  king  John  prevailed  to  fuch  a 
degree,  as  to  occafion  the  reftridlions  impofed  by  the 
Great  Charter.  Thus  far  of  tenures  and  their  incidents, 
of  which  we  fhall  take  our  leave  for  the  prefent  ^. 

The 

'  Glanv.  lib.  7.  c.   3.  dal  polity,  after  its  introdudlion  into 

»  Dalr.  Feud.  Prop.  99.  this  country,  gradually  affumcd.   This 

^  Such  is  the  (hapc  which  the  feu-     fingular  fyllcm    has,   of    Utc,   been 

much 


ENGLISH      LAW. 


45 


The  judicature  of  the  kingdom  was  thrown  into   a    chap.   ir. 
fyftem  conformable  to  the  new  polity.     The  objctls  which     ^y^  j  . 
firft  prefent  themfelves,  on  contemplating;  the  introdu£lion  the 

^  ^  ^  -   CONQUFROR 

of  to 

JOHN. 


much  difcuircd  by  writers  on  the  En- 
jjiifh  law  and  conllitution  ;  whd,  in 
order  to  j>i  ocure  every  light  that  could 
iilullrate  tlic  fubje£t,  have  purl'ucd 
their  inquiries  beyond  tlie  limits  of 
the  law  of  this  country  ;  have  entered 
into  the  r:fe  and  progrefs  of  feuds 
among  the  northern  nations  in  their 
different  feitlements,  particularly  in 
France  ;  have  examined  the  nature 
and  defign  of  the  fcveral  fpeclcs  of 
tenures,  and  inveAigated  with  minutt- 
nefs  their  diltinC^  incidents  and  pro- 
perties. This  has  introduced  a  new 
branch  of  ftudy  among  the  ftudents 
of  the  common  law;  which,  like 
other  novelties,  has  been  followed 
with  great  avidity  ;  and  I  am  ready 
to  admit,  that  the  knowledge  of  our 
law  and  conflitution  has  been  thereby 
greatly  pomoted.  It  is  not  then 
through  any  difapprobation  of  thefc 
purfuits  that  1  have  thus  (hortcned 
the  account  of  the  feudal  fyftem  ;  but 
for  rcafoos  that,  I  truft,  will  have 
the  fame  weight  with  the  reader 
which  they  have  had  with  me.  In  a 
hiftory  of  the  law,  a  due  portion  of 
attention  muft  be  allotted  to  each  fub- 
jedl  that  comes  under  confideration. 
Englijb  feuds  are  entitled  to  a  (hare, 
and,  taken  in  all  their  branches, 
will  be  found  to  have  a  very  large 
fhare  of  the  enfuing:  Hiftory,  The 
profpeft  of  this  heap  of  matter,  in 
addition  to  numerous  other  obje£ls, 
made  it  neceffary  that  every  thing 
extraneous  and  foreign,  every  thing 
that  might,  perhaps,  illui\rate,  but 
certainly  made  no  part  of  our  com- 
mon law,  (hould  be  dropped  intircly. 
Of  the  latter  delcription  are  the  far 
greater,  and  the  more  entertaining 
and  fplcndid  portions  of  thole  trea- 
tifes  which  have  lately  been  written 
profefTedly  «n  the  feudal  fyftem. 
To  fuch,  therefore,  I  muft  beg  to  re- 
fer thofc  who  are  more  cunous;   I 


mean,  among  othcrf:,  to  Dalrymple^ 
to  Sullivan^  and  to  ff^ri^ht  ;  and 
thoic  who  wifli  to  go  farther,  to 
Spelman^  to  Craig^  to  CirTinus,  to 
Zaf.us^  and  to  the  'I'lvo  Bsois  cf  Fendr. 

The  reader  of  the  Hiftory  of  En- 
glifti  I, aw,  pauling,  as  he  now  dors, 
at  the  period  of  the  Conqueft,  and, 
looking  down  to  the  picftnt  time, 
thro'  the  ages  of  Glanville  and  Brae- 
ton,  Biitton  and  Flcta,  the  Statures, 
the  Vear-Books,  and  the  Reporters, 
muft  feel  that  he,  as  well  as  the  writt  r, 
has  enough  upon  his  hands,  without 
engaging  in  any  curious  inquiry  about 
the  origin  and  nature  of  the  feudal 
fyftem  in  general;  he  will  alfo  per- 
ceive that  this  topic.  Compared  with 
the  numerous  and  important  objedls 
that  crowd  on  his  imagination,  is  fmall 
and  inconfiderablc. 

When  I  fay  fmall  and  inconfider- 
able,  I  beg  to  be  undeiftood  in  the 
fenfe  which  many  are  too  apt  to  give 
to  the  term  feudal  fjjfem.  Pei  fons 
who  moft  infjlt  upon  this  point  fecm 
to  exclude  from  it  every  thing  that 
is  Engtijb ;  and  it  can  be  in  no  other 
fenie  of  it  that  the  prefent  Hiftory 
has  been  thought,  as  I  am  told,  to 
contain  too  little  difcufllon  upon  the 
feudal  fyftem.  Why  the  feudal  fyf- 
tem, in  this  new-fangled  fenfc,  fl>ould 
make  fo  fmall  a  part  of  the  pefent 
Hiftory,  can  be  cafily  accounted  for 
by  the  reader  of  it. 

Feuds,  properly  fo  called,  namely 
thofc  at  the  will  of  the  lord,  were  no 
part  of  the  fyftem  eftabliftied  by  Wil- 
liam ;  his  fan^ous  law  cxprcfsly  de- 
clares, that  he  had  granted  thc:my«r^ 
hareditario.  The  uncertain  cafiialtie* 
of  tenures  werefoon  afcertained  byex- 
prcls  charters  of  liberties,  rep'jatcdiy 
granted  by  our  Norman  kings.  On 
the  death  of  the  anccftor,  the  fee  was 
cajl  upon  the  heir  by  conftiui^ion  of 
law,  who  entered  as  into  a  patrimo- 
nial. 


oXr^ 


46  HISTORYOFTHE 

CHAP,   ir.^    of  Norman  judicature,  are  the  fcparatlon  of  the  ccclefiaiU- 

W  ILL  I  AM     ^^^  ^^^^  ^^^  temporal  court,  and  the  eflablifhment  of  the 

the  curia  regis.     By  an  ordinance  of  William  the  Conqueror, 

to  the 
JOHN. 

niil,  not  t  feudal  property.     Such  lawyers  almoft  down  to  the  prefent 

was  the  law  oi  Englifh  tenurev,  ae  day  ;  and  it  is  not  to  be  much  won- 

their  earlied  appearance  ;  and  to  this  dercd,    that   pcifons    who   confider 

it  is  to  be  attributed,  that  through  all  this  fubjedt  hiltorically,   Teeing   how 

our   Law-books  and   Reports,    from  little  change  had  been  made  in  their 

Bra£\on  to  Coke,  and  further  down,  law  during  fo  many  centuries,  and 

there  is  no  allufion,  no  reafoning,  that  that  lawyers,  by  referring  continually 

bears  any  relation  to  feuds  or  feudal  to  firft  feudal  piinciplc;^,   had  rather 

law,  iathisfenfe  of  it^  and  thofe  who  been  going  backwards  than  proceed- 

have  arraigned  Lord  Coke  for  his  fi-  ing,  fhould  lay  fuch  great  Itrcls  upoa 

lence  on  this  head,  have  pafTed,  in  my  the  lludy  of  feuds  in  their  firlt  origin, 

mind,  a  very  hafty  judgment  on  the  But  they  carry  the  prejudices  of  their 

extent  of  that  great  lawyer'slcarning.  countrymen  too  far,  when  they  ex- 

Coraparing  the  above  fcnlc  of  teu-  peel  the  fame  line  to  be  taken  by  Kn- 

dal,  with  this  account  of  our  tenuref,  glifh  lawyers  who  make  fimilar  en- 

every  idea  that  is  Englifli  is  not  im-  quiries  intu.  tlie  hiftory  of  /^«r  juiif- 

properly  excluded  from  that  fyftem;  prudence. 

and  that  fyftem  is  very  properly  ex-  If  the  Scotch   law   has  been  cor- 
cluded  from  a  Hiftory  of  the  EngliOi  rupted  by  too  great  attention  to  feu- 
Law ;  the  perfons  therefore  who  hold  dal  principles,  the  only  natural  way  of 
theabovelanguage,  ought  not  to  men-  accounting  for  difficulties  ^iid  ol)fcu- 
tion  this  as  a  defeat  in  the  prefent  work,  rities  in  it,  is  by  recurring  to  the  fame 
But  this  fenfe  of  feudal  feems  to  fources.      Thofe  too  ♦vho  itudy   the 
me  too  narrow  and  partial ;  and   I  Hiitory  of  Englifli  Law,  muft  uead 
(hould  think  it  owes  its  application  in  the   footftcps  of  the   old  Englifli 
/c/l  i^^'lLcois      ""ot"*  cfpecially  to  fome  Scotch  writ-  lawyers  ;  but  tUcfe  lead  not  to  the 
CTs,  who  have  lately  taken  a  lead  in  Boeks  of  Feuds ^  much  Icfs  to  Craig  or 
hiftorical  inquiries;  and  who,  imagin-  Cariiinus.  The  lawyers  of  this  country, 
ing  they  had  brought  to  light  certain  like  the  people,  impatient  of  foreign 
principles  and  foundation-,  of  Englifli  ianovaiion.'',  foon  moulded  the  inlli- 
law,  of  which  Englifli  lawyers  were  tutions   of    Normandy    into    a    new 
ignorant,  are  never  fatisficd  with  dif-  fliape,  and  formed  a  lyftcm  of  feuds 
playing  this  fuppofed  triumph.     But  of  their  own.    The  ufage  and  cuflora 
the  want  of  diicernmcnt,   upon  this  of  the  country  became  the   guide  of 
point  of  juridical  hiitory,  is  in  them-  our  courts;   who  have  invariably  le- 
Iclves,  and  not  in  us.   It  is  indeed  true,  jelled    with    difdain   all     arguments 
that  the  Scotch  law  is  ftri£Hy  feudal,  from  the  pradlice  of  other  countries. 
It  was  fo  in  its  foundation  ;  and  it  For    a   knowledge   of   the  feudal 
fcemed  the  employment  of  lawyers  fyftem,    as   far  wi  concerns  an   En- 
to  give  a  feudal  turn  to  every  confi-  gluli  lawyer,    we  are  to  look  no  fai- 
deration  that  could  arife  on  the  modi-  ther    i\\iti    GlanvilUy    Brad»n^   and 
ficatii)ns  of  property.  New  feudal  fan-  Littleton.     And  as   far  as  it  is  to  be 
cies  were  adopted  ;  the  molt  fimplc  collected    from   the    works  of  thefe 
points  were  diftorted  to  apply  them  and  other  Englifli   lawyers,   the  feu^ 
to     feudal     principles;    matters    in  dal    Jyjltm    of    England    rel'iiefkin^ 
which   the  Englifli   and  Scotch   law  lajided  property,  is  difculTcd  in  thU 
agreed    were  disfigured    by  the   fu-  and  the  fublequent  part";  of  this  Hif- 
perindudtion  of  fome  feudal  device,  tory  (as   I  (VioukJ   think)  at  as  great 
This  afFcdlation  has  prevailed  among  length  a?  could  conveniently  be  done 

con  fill  ent 


ENGLISH      LAW. 


47 


the  bifhop,  with  all  ecclcfiaftlcal  caufes,  was  feparated  from 
the  {heriff;  and  the  eaklennan,  or  earl,  receiving  a  feudal 
character,  begun  to  hold  his  county  court  as  the  feudal  lords 
did  theirs.  This  was  done  by  the  ficriff^  w^ho,  foon 
after  the  Conqueft,  if  not  before,  grew  to  be  a  diflerent 
perfon  from  the  ^arl.  The  periodical  circuits  henceforth 
ceafed,  and  the  county  court  and  tourn  were  held  in  a 
certain  place.  In  the  former,  the  vicccotnes  or  (heriiT,  z£\- 
ing  for  the  earl,  ufed  to  prefidcj  and  the  freeholders,  us  be- 
fore, were  judges  of  the  court.  The  latter,  notwith (landing 
the  abfence  of  the  bilhop,  foon  afterwards  received  new 
fplendor  and  importance  from  a  law  of  Henry  I.  w  hich  re- 
quired all  perfons,  as  w^ell  peers  as  commoners,  clergy  as 
well  as  laity,  to  give  attendance  there,  to  hear  a  charge  from 
the  flxeriff,  and  to  take  the  oath  of  allegiance  to  the  king. 


confiftent  with  the  plan  of  fuch  a 
work,  {f  it  is  wlQicd  that  this 
fliould  be  compared  with  the  like 
fyftcm  in  Scotland^  in  France,  in 
(lornbardy,  or  clfcwhere,  I  can  only 
fay,  that  fuch  an  inquiry  does  not  fccm 
to  me  to  fuit  a  work  like  the  prc- 
fcnt,  though  X  would  Le  very  pro- 
per in  a  gtnerti  hiftory  of  feudal 
law. 

It  is  not  only  on  the  fubjc£l  of 
feuds  that  I  have  lludioufly  avoided 
any  inqwi  y  i)oyond  the  pale  of  the 
Englifli  law  J  in  many  other  in- 
ftances  vherc  the  Knglifh  fyrtem 
might  f  xm.  in  a  very  particular  man- 
ner, to  coincide  w^tn,  or  inter iV-eV  any 
foreign  fcheme  of  jurifprudencc,  I 
have  invariably  forborne  making  fuch 
©bfervations,  as  a  comparifon  of  the 
two  fubjrfVp  would  cafilyfuggelh  The 
de/ign  of  this  Hiflory  fctmed  to  make 
it  abfolutcly  neceiTary  to  adhere  to. 
this  plan.  To  invertigatc  ih*!  firft 
principles  of  our  law,  and  to  purfue 
them  through  all  the  modifications 
and  applications  all  the  additions  and 
changes  to  which  they  were  fubjc£l- 
ed  in  different  periods  of  time,  is  an 
enquiry  that  called  upon  the  writer  ra- 
ther to  reduce  ^lui  fimplit'y  his  mate- 
rials, than  to  feck  for  new  ones,  or 
extend  bis  views.    That  the  rcfult  of 


fuch  an  enquiry  might  be  delivered 
to  the  Reader  with  fidelity,  I  thought 
it  fafcr  to  abllain  altogether  from  to- 
pics of  a  foreign  nature,  confining 
myfclf  to  fuch  as  have,  in  their  turn, 
prevailed  in  our  courts,  and  among 
pia£licer9.  It  was  the  latter  up- 
on which  the  utility  of  the  prefeot 
hiftorical  procefs  was  to  depend;  and 
the  Icfs  they  were  mixed  with  the 
former,  the  dsdu6\ion  would  be  more 
cafy,  and  every  conclufionarifing  from 
it  would  be  better  foumled. 

This  had  become  more  efptcialty 
necclTaiy  with  rcfpeft  to  the  feudal 
fyftem.  The  prcfent  faf  'on  of  treat- 
ing this  fubject,  if  it  had  laught  fome- 
thing  ufeful,  had  alfo  taught  much 
that  wa<:  to  be  unlearned.  Glan-zille 
and  CfMg^  Bradcn^  and  the  Book  of 
Feuds f  hive  been  quoted  in  a  promifcu- 
ous  manner,  as  if  thofe  authors  wrote 
upon  the  fame  fyilem  of  feuds.  Thus 
is  the  lludentN  mind  bewildered  with 
accounts  of  a  polity  made  up  from  diffe- 
rentcountrics,  and  prevailing  in  none; 
and,  after  all,  is  left  uninformed  what 
is  the  genuine  nature  oi Englijb  feuds. 
It  feems,  therefore,  a  new  and  very 
material  objeft  to  a  writer  of  the  En- 
glifh  law,  to  give  an  account  of  the 
feudal  fjjlem  in  England,  from  En- 
gllfh  authors  alone. 

This 


C  H  A  K    I! 


\Vi!J.  lAM 

the 

ro 
JOHN, 
Of  iudicature. 


48  ^  HISTORY      OFTHE 

CHAP.  II.     This  obliged  the  greateft  lords  of  the  kingdom  to  fubmit 

WILLIAM     *o  frequent  remembrances  of  their  fubordinate  flation  ;  and 

^^xT^i'fT^T.^r.    fo  contributed  to  draw  clofer  the  bands  of  political  union. 

CONQUEROR  * 

to  In  other  refpe£!:s,  thefe  old  Saxon  courts  feemed  to  continue 

•'  in  their  original  ftate.     In  the  county  court  were  held  civil 

pleas  •,  and  in  the  tourn  were  made  all  criminal  enquiries. 
Every  manor  had  its  court  baron,  where  the  lord  was  to 
hold  plea  and  tranfa6l  matters  refpe6^ing  certain  rights  and 
claims  of  his  own  tenants,  and  for  the  punifhment  of  nui- 
fances  and  mifdemeanors  arifing  within  the  manor;  from  all 
which  courts,  on  failure  of  juflice,  there  lay  an  appeal  to  the 
ftieriff's  court,  and  from  thence  to  the  king's  fuprcme  court. 
Many  lords  had  franchifes  to  hold  hundred  and  other  courts, 
both  civil  and  criminal ;  and  there  arc  fome  few  inftances, 
where  the  crown  had  granted  to  a  great  lord  thtjura  regalia 
of  a  certain  diftri£l ;  erecting  it  into  a  county  palatine,  di- 
ftin6t  from,  and  exclufive  of,  all  jurifdi£tion  of  the  king's 
courts.  William  granted  the  county  of  Chefter  to  Henry 
Lupus  ;  banc  totum  comitaium  tenendum  fthi  et  haredibus  ita 
Jibere  ad  gladium,  ftcut  ipfe  rex  tenebat  Angliam  ad  coronam. 
The  like  ample  grant  was  foon  after  made  of  the  bifhopric  of 
Durham  to  that  prelate;  and  in  later  times  grew  up  the  fran- 
chife  of  Ely  and  Hexham,  the  counties  palatine  of  Lan- 
cafter  and  of  Pembroke  *. 
The  curia  regis.  The  fuprcme  court  of  ordinary  judicature  eftablifhed  by 
William  the  Conqueror,  was  the  aula  regis y  or  curia  regis \  fo 
called,  becaufe  it  was  held  in  the  king's  palace,  before  him- 
felf,  or  his  juftices,  of  whom  \kiz  fummus  jujiitiarius  totius 
Angli£  was  chief.  There  was  alfo  the  exchequer,  called 
curia  regis  ad  fcaccarium^  \  which  was  held  likewife  in 
the  king's  palace,  either  before  the  king  or  his  grand  judi- 
ciary ;  and,  though  in  effe£t  a  member  of  the  curia  regis ^ 
was  exprefsly  diftinguifhed  from  it.  In  what  manner  the 
grand  judiciary,  who  prefided  in  both  thefe  courts,  ordered 
or  diftributed  between  them  the  feveral  pleas  inftituted  there, 

*  Vid.  4  Inft.  zii.  '  Wllk.  Leg.  Sax.  z88.  p. 

or 


ENGLISH      LAW.  49 

or  in  what  manner  thefe  pleas  were  condu£led,  it  is  difficult  C  H  A-P.  ir. 
at  this  diftance  of  time  precifcly  to  determined  Refpe6l-  winTrvr 
ing  the  nature  of  this  obfolete  judicature  little  more  can  be  the 

hoped  than  fuch  conjeftiires  as  may  be  founded  on  the  few       "    j^ 
remaining  monuments  of  antiquity.  JOHN. 

The  curia  regis  confifted  of  the  following  perfons :  the 
king  himfelf  was  properly  head,  and  next  to  him  was  the 
grand  julticiary,  who,  in  his  abfcnce,  was  the  fupreme  head 
of  the  court :  the  other  members  of  this  court  were  the 
greut  olhcers  of  the  king's  palace  ;  fuch  as  the  treafurer, 
chancellor,  chamberlain,  Reward,  marlhal,  conftable,  and 
the  barons  of  the  realm.  To  thefe  were  aflbciated  certain 
perfons  called yV//?///>,  or  jujiitiayii,  to  the  number  of  five 
or  fix  j  on  whom,  with  the  grand  julliciary,  the  burthen 
of  judicature  principally  fell ;  the  barons  feldom  appearing 
there,  as  little  valuing  a  privilege  attended  with  labour,  and 
the  difcufhon  of  queftions  ill-fuitcd  to  their  martial  educa- 
tion. The  juflices  were  the  part  of  this  court  that  was 
principally  confidered,  as  appears  by  the  return  of  writs, 
which  was  coram  me  vel jujlitiis  mcis ;  unlcls  that  appellation 
may  be  fuppofed  to  include  every  member  thereof  in  his  ju- 
dicial capacity. 

All  kinds  of  pleas,  civil  and  criminal,  were  cognizable 
in  this  high  court  ^;  and  not  only  pleas,  but  other  legal 
bufmefs  arifing  between  parties  was  there  tranfa6led.  Feoff-  v 

ments,  releafes,  conventions,  and  concords  of  divers  kinds 
were  there  made,  efpecially  in  cafes  that  required  more  than 
common  folemnity^  Maily  pleas,  from  their  great  im- 
portance, were  proper  fubje6ls  of  enquiry  there;  others 
were  brought  by  fpecial  permilhon  of  the  king  and  his 
juftices. 

The  courfe  of  application  to  the  curia  regis  was  of  this 
nature.  The  party  fuing  paid,  or  undertook  to  pay,  to  the 
king  a  fine  to  have  jujhtiam  et  recium  in  his  court :  and 

^  Mad,  Ex,  57.  ''  IbiiJ.  70.  *  IL'.d.  77. 

Vol.  L  E  thereupon 


50  HISTORYOFTHE 

CHAP.   II.     thereupon  he  obtained  a  writ  or  precept,  by  means  of 
TTT^.**^      which  he  commenced  his  fuit ;  and  the  iuftices  were  au- 
the  thorized  to  hear  and  determine  his  clahn.     Thefe  writs 

Jo "  were  made  out  in  the  name  and  under  the  feal  of  the  king, 

JOHN.  |3ut  ^\{\^  ^\^Q  fpjic  of  the  grand  jufticiary ;  for  the  making 
and  ifluing  of  which  (as  well  as  for  other  offices)  the  king 
ufed  to  have  near  his  perfon  fomc  great  man,  ufualiy  an  ec- 
clefiaftic,  who  was  called  his  chancellor^  and  had  the  keep- 
ing of  his  feal :  under  the  chancellor  were  kept  clerks  for 
making  thefe  writs.  It  was  probably  this  office  of  the 
chancellor  that  rendered  him  a  neceflary  member  of  the 
curia  regis ;  to  which,  in  faiSl,  and  to  the  juftices,  and  not 
to  the  king,  fuitors  made  their  complaint,  and,  upon  pay- 
ing the  ufual  fine,  were  referred  to  the  chancellor  to  furnifh 
them  with  a  writ. 

As  the  old  eflablifhment  of  the  Saxons  for  determin- 
ing common  pleas  in  the  county  court  was  continued, 
very  few  of  thofe  caufes  were  brought  into  the  curia 
regis.  While  men  could  have  juflice  adminiflered  fo 
near  their  homes,  there  was  no  temptation  to  undergo  the 
extraordinary  expencc  and  trouble  of  commencing  a£\ionj 
before  this  high  tribunal  j  but  the  partiality  with  which 
juflice  was  adminiflered  in  the  courts  of  arbitrary  and  po- 
tent lords,  often  left  the  king's  fubjedls  without  profpe6l  of 
redrefs  in  the  inferior  jurifdi£lions  :  the  king  and  the  curia 
regis  became  then  an  afylum  to  the  weak.  It  is  not  re- 
markable, that  fuitors  coming  to  a  court  under  fuch  cir- 
cumflances  (hould  confent  to  purchafe  the  means  of  re- 
drefs by  paying  a  fine.  Upon  fuch  terms  was  the  curia 
regis  open  to  all  complainants;  and  the  inftitutlon  of  fuits 
was  eagerly  encouraged  by  the  officers  of  that  court. 

The  exchequer  was  a  fort  o{  fubaltern  court,  refembling 
in  its  model  that  which  was  more  properly  called  the  curia 
regis.  Here,  likewife,  the  grand  jufliciary,  barons,  and 
great  officers  of  the  palace  prefided.  The  perfons  who 
were  juflices  In  the  curia  regis,  a£led  in  the  fame  capacity 

here; 


E  N  G  L  I  S  H      L  A  W.  51 

here  ;  this  court  being  very  little  elfe  than  the  curia  regis     CHAP.   II. 
fitting  in  another  place,  namely,  ad  fcaccariuin ;   only  it      william 

happened,  that  the  iuftices,  when  they  fat  at  the  exchequer,  ^hc 

r     n         n   J    z  -ri         j     •    -a       •  r   CONQUEROR 

were  more  ulually  called  barons,     I  he  admniiicration  or  to 

juftice  in  thofe  days  was  fo  commonly  attendant  on  the      JOHN. 

rank  and  charafter  of  a  baron,  that  baro  znA  jujlitiarius 

were  often  ufed  fynonimoufly  ^. 

Affairs  of  the  revenue  were  the  principal  objects  of 
confideration  in  the  court  of  exchequer.  The  fuperin- 
tendance  of  this  was.  the  chief  care  of  the  judiciary  and 
barons  :  the  cognizance  of  a  great  number  of  matters  fol- 
lowed as  incident  thereto ;  as  the  king's  revenue  was,  In 
fome  way  or  other,  concerned  in  the  fees,  lands,  rights, 
and  chattels  of  the  lubje£t ;  and  ultimately  in  almoft  every 
thing  he  pofTefled. 

However,  it  is  thought  the  court  of  exchequer  was  , 

not  fo  confined  to  the  peculiar  bufmefs  afligned  it,  and  its 
incidents,  as  not  to  entertain  fuch  fuits  of  a  general  na- 
ture as  were  ufually  brought  in  the  curia  regis^  :  and  it  is 
probable,  this  ufage  of  holding  common  pleas  at  the  ex- 
chequer continued  till  the  time  when  common  pleas  were 
feparated'  from  the  curia  regis;  and  that  both  courts 
ceafed  to  hold  plea  of  common  fuits  at  the  fame  time,  and 
by  the  fame  prohibition.  Other  legal  bufmefs,  like  that 
in  the  curia  regis,  was  alfo  tranfa6ted  at  the  exchequer : 
charters  of  feoffment,  confirmation,  and  releafe,  final 
concords,  and  other  conventions,  were  executed  there 
before  the  barons  *"  ;  all  which,  added  to  the  confideration 
that  the  conftituent  members  were  the  fame,  put  the 
court  of  exchequer  very  nearly  on  an  equality  with  the 
euria  regis. 

By  the  multifarious  and  increafing  bufinefs  of  thefe  two 
courts,  the  grand  judiciary  and  his  affelTors  on  the  bench 
found  themfelves  fully  occupied ;  and  as  the  application  to 

»  Mad.  Ex.  134.  'By  the  Great  Charter. 

^  Ibu^  14-1.  i'  Mad.  E:i.  145. 

E  z  thefe 


rant 


52  HISTORY      OF     THE 

CHAP.   II.     thefe  courcs  became  more  frequent,  it  was  judged  necefTa- 

WILLIAM      '*y»  ^°^^  "^  ^'^^  °^  thcmfelves  and  in  relief  of  fuitors,  to 

•^•le  treft  fome  other  tribunal  of  the  fame  nature.     Accord- 

CONQIJEROR    .,.,..  .         ,  .  .  .        ., 

to  i^*?'y  juuiccs   were  apponited  to   go  ituiera^   or  circuits 

JOHN.  through  the  kingdom,  and  determine  pleas  in  the  feveral 
JuHices  itine-  countics.  To  thefe  new  tribunals  was  given  a  very  com- 
prehenfive  jurifdi(£lion.  As  they  were  a  fort  of  emanations 
from  the  curia  regis  and  exchequer,  and  were  fubllituted  in 
fome  meafure  in  their  place  (except  with  the  refervation  of 
appeal  thereto)  they  were  endowed  with  all  the  authorities 
and  powers  of  thofe  courts.  Thefe yV//?/Vrj"  itinerant  or  er- 
rant, in  their  feveral  itinera,  or  eyres,  held  plea  of  all 
caufes,  whether  civil  or  criminal,  and  in  mod  refpe£ls  dif- 
eharged  the  office  of  both  the  fuperior  courts.  The 
chara£lers  of  the  perfons  entruiled  with  this  jurifdidlion 
were  equal  to  the  high  authority  they  exercifed ;  the  fame 
perfons  who  were  juftices  in  the  king's  court  being, 
amongfl:  others,  juftices  itinerant.  They  aO:ed  under  the 
king's  writ  in  nature  of  a  commiflion  ;  and  they  went  ge- 
nerally from  feven  years  to  feven  years ;  though  their 
circuits  fometimes  returned  at  (horter  intervals.  Their 
circuits  became  a  kind  of  limitation  in  criminal  profecu- 
tions,  as  no  one  could  be  indided  for  any  thing  done  be- 
fore the  preceding  e'\frc. 

The  adminiftration  of  juftice  in  the  county  and  other 
inferior  courts,  notwithftanding  fome  ftriking  advantages, 
was  certainly  pregnant  with  great  evils.  The  freeholders 
of  the  county,  who  were  the  judges,  were  feldom  learned 
in  the  law  ;  for,,  although  not  only  they,  but  bifhops, 
barons,  and  other  great  men,  were,  by  a  law  of  Henry  I. 
appointed  to  attend  the  county  court  (by  which  they  might, 
after  time  and  obfcrvation,  qualify  themfelves  to  a<Sl  in  the 
office  of  magiftrates),  the  ftudy  and  knowledge  of  the 
laws  was  confined  to  a  very  few.  Again,  the  determina- 
tions of  fo  many  independent  judges,  prefiding  in  the  feve- 
ral inferior  courts  difperfed  about  the  country,  bred  great 
variety  in  the  laws,  which,  in  procefs  of  time,  would  have 

habituated 


WILLIAM 


ENGLISH      LAW. 

liabituated  clifTerent  counties  to  difTcrent  rules  and  cuiloms, 
and  the  nation  would  have  been  governed  by  a  variety  of  pro- 
vincial lavi'S.  Befides  thefe  inherent  dcfecls,  it  was  found  the 
that  matters  v/cre  there  carried  by  party  and  pafTion.  The  ^'  ^„ 
freeholders,  often  previoully  acquainted  with  the  fubje^ls  of  J  O  H  N. 
coutroverfy,  or  with  the  parties,  became  heated  and  inte- 
refted  in  caufes  j  which,  added  to  the  influence  of  great 
men,  on  whom  they  were  too  much  dependent  by  tenure 
or  fervice,  rendered  thefe  courts  extremely  unfit  for  cool 
deliberation  and  impartial  judgment.  Nor  were  thefe 
difficulties  remedied  by  the  power  of  bringing  writs  of  falfe 
judgment,  and  thereby  removing  a  caufe  into  the  curia  rcgijy 
■though  the  penalty  oi  amercement  on  the  fuitors  of  the 
county  court,  for  errors  in  judgment,  M'as  fufliclently  fevere. 
If  thefe  objections  lay  againft  the  king's  courts  in  the 
county,  much  more  did  they  againft  thofe  of  great  lords ; 
who  made  the  awards  of  juRicc  fubfcrvient  to  their  own 
fchemes  of  power  and  aggrundlfement. 

Besides  thefe,  there  were  reafons  of  a  political  nature 
which  di£lated  an  eftabliflinrient  of  this  kind :  this  was,  to 
obviate  the  mifchiefs  arifing  to  the  juil  prerogatives  of  the 
crown  from  the  many  hereditary  jurifdi£lions  introduced 
under  the  Norman  fyftem.  A  judicial  authority  exercifcd 
by  fubjedlb  in  their  own  names,  mud  confulerably  weaken 
the  power  of  the  prince  ;  one  of  whofe  mofb  valuable 
royalties,  and  that  which  moft  conciliates  the  confidence 
and  good  inclinations  of  his  people  is,  the  pov.xr  of  pro- 
viding that  juflice  fliould  be  duly  ad.mlniftered  to  every  in-  , 
dividual.  Though  the  appeal  from  the  hundred  to  the 
tourt  of  the  ilierlff  (an  officer  of  the  khig)  {o  far  kept 
a  check  upon  the  jurlfdittion  of  lords,  yet  it  was  flili 
to  be  wifiied  that  the  inconvenience  of  appeals  fficuld  be 
precluded,  and  that  juftlce  ffiould  be  adminiflered  in  the 
firft  inftance  by  judges  deriving  their  commiffion  from  the 
king'.     If  thefe   rearons  induced  the  crown  to  promote 

'  Liu    Hfo.  U.  vol.  5.  273. 

fuch 


'       HISTORY      OF     THE 

fuch  an  inftitution  as  this ;  the  ftate  of  things  in  the  coun- 
wii  I  lAM      ^^y  ^^^  fufficient  fealbn  with  the  people  to  defire,  with  the 
the  mod  ardent  wiilies,  the  occafional  vifits  of  a  regal  jurif- 

jj,  di£lion,  Hke  that  of  the  eyre, 

JOHN.  It  is  not  eafy  to  determine  the  exa£l  period  when  this 

ellablifhment  of  jtijliccs  itinerant  was  iiril  made.  It  has 
long  been  the  common  opinion,  that  they  were  firil  ap- 
pointed in  the  great  council  held  at  Nottingham,  or,  as 
fome  fay,  at  Northampton,  in  the  twenty-fecond  year  of 
Henry  II.  A.  D.  1176,  when  the  king,  by  the  advice  of 
the  great  council,  divided  the  realm  into  fix  circuits,  and 
fent  out  three  juflices  In  each  to  adminiller  juftice. 

It  is  true,  that  the  firfl:  mention  of  thefe  jullices,  in 
our  old  hiftorians  is  under  this  year  ;  but  it  has  been 
proved  from  the  authority  of  records  in  the  exchequer  '"j 
that  there  had  been  juflices  itinerant,  to  hear  and  deter- 
mine civil  and  criminal  caufes,  in  the  eighteenth  year  of 
the  reign  of  Henry  I.  and  likewife  juftices  in  eyre  for  the 
pleas  of  the  foreil.  It  alfo  appears  by  the  fame  authority, 
that  in  the  twelfth,  and  from  thence  to  the  feventcenth  of 
king  Henry  II.  A.  D.  1171,  juftices  of  both  kinds  had 
been  conltantly  fent  into  the  feveral  counties.  It  is 
thought ",  that  the  lirft  appointment  of  juftices  itinerant 
was  made  by  Henry  I.  in  imitation  of  a  like  Inftitution 
in  France,  introduced  by  Louis  le  Gros;  that  in  the 
reign  of  king  Stephen,  continually  agitated  by  inteftirlc 
comnx)tions,  this  new-adopted  improvement  was  dropped ; 
and  was  again  revived  by  Henry  II.  who  at  length  fixed 
it  as  a  part  of  our  legal  conftitution.  It  appears  from  the 
records  above  alluded  to,  that  during  great  part  of  the 
reign  of  Henry  II.  pleas  were  held  in  the  counties  by  the 
juftices  itinerant  from  year  to  year. 

The  itinera^  or  circuits  appointed  at  the  council  of 
Northampton  were  fix  ;  on  each  of  which  went  three  juf- 
tices.    The  counties  alhgned  to  each  of  thefe  circuits  were 

"^  Mad.  Ex.  96.  n  i/,tt.  Hen.  II.  vol.  4-  ^^u 

as 


ENGLISH      LAW. 

as  follow  :  In  one,   the  counties  of  Norfilhy  Suffolk^  Cam- 
bridge ^  Huntingdon,  Bedford^  Bucking  ham,  Efex,  Hertford ;      ^^ ,  ^  f,  i  a  m 
in  another,   Lincoln,  Nottingham,  Dtrby,  Stafford,  War>  coNQiJERQR 
nvich.  Northampton,  Lticejier  \  in  another^  ]>.ent^  ^urrey^  lo 

Southampton,  Sujpx,  Berks,  Oxford;   m  another,  Hereford,       ^ 
G/oce/Ier,  Worccfer,  Salop ;  m  another,  JVilts,  Dorfet,  So-      . 
me r fit,!) even,  Cornnvall',  in  another,  York,  Richmond,  Lan* 
£ajler,  Copland,  Weflmorelafid,Norihumherland,  Cumberland. 

About  three  years  after  this  (A.  D.  1 179),  fome  alter- 
ation was  made  in  this  arrangement  of  itin^r^  j  for,  at  a 
great  council  held  at  Windfor,  the  kingdom  was  parcelled 
out  into  four  circuits  only,  in  the  following  order,  in  the 
lirft  were  the  counties  of  Southampton,   Wilts,  Glocejler, 
Dorfet,  Somerfet,  Devon,  Cornivall,  Berks,  Oxford;  in  the 
fecond,    Cambridge,    Huntingdon,   Northampton,  Leicejler, 
Warwick,   Worcejler,    Hereford,    Stafford,    Salop  ;    in  the 
third,   Norfolk,  Suffolk,  Effex,    Hertford,    Middlefex    (the 
county  of  Middlefex  not  being  included  in  the  former  divi- 
fion  at  all),  Kent,   Surrey,  Sujfcx,  Buckingham,   Bedford ; 
in  the  fourth,  Nottingham,  Derby,  York,  Northumberland, 
Weflmoreland,  Cumberland,  Lancafler,     As  each  of  thefe 
itinera  contained  more  counties  than  the  former  divifion, 
they  had  alfo  more  juftices  afligned  :   the  firft  three  had 
each  five  juftices ;    and    the  laft,  which    was   much  the 
greateft  circuit,  had  fix^.     There  is  no  mention  of  any 
further  alteration  of  the  circuits  during  the  period  of  which 
we  are  now  treating. 

The  juftlces  appointed  in  the  year  1 176,  were  diredlcd 
and  impowered  to  do,,  in  their  itinera,  all  things  of  right 
and  juftice  which  belonged  to  the  king  and  his  crown, 
whether  commenced  by  the  king's  writ  or  that  of  his  vice- 
-gerent,  where  the  property  in  queftion  was  not  mere  than 
half  a  knight's  fee ;  unlefs  the  matter  was  of  fuch  ijnport- 
ance  that  it  could  not  be  determined  but  before  the  king; 
or  the   juftices  themfelves,   on  account  of  any  difficulty 

*•  Vide  I^^.  Ang.  Sax.  p.  532,   333. 

therein^ 


S6  HISTORYOFTHE 

CHARIL  therein,  chofe  to  refer  it  to  the  king,  or,  in  his  abfencc, 

WILLIAM  ^^  ^^^^^  ^^'^^^  ^'^^^  ading  for  him.     They  were  command- 

the  ed  to  make  inqulfitlons  concerning  robbers,  and  other  of- 

to  fenders,  in  the  counties  through  which  they  went ;  they 

JOHN.  ^,^,j.g  jQ  ^^|,g  ^jjj.^  q£  ^^^  profits  of  the  crown,  in  its  landed 

eflates  and  feudal  rights  of  various  forts,  as  cfcheats,  ward- 
fliips,  and  the  like^,  they  were  to  enquire  into  caftle- 
guards,  and  fend  the  king  information  from  what  perfons 
they  were  due,  in  what  places,  and  to  what  amount ;  they 
were  to  fee  that  the  caflles  which  the  great  council  had 
advifed  the  king  to  deftroy,  were  demoliflied,  under  pain 
of  being  themfelves  profecuted  in  the  king's  court ;  they 
were  to  enquire  what  perfons  were  gone  out  of  the  realm, 
that  if  they  did  not  return  by  a  certain  day  to  take  their 
trial  in  the  king's  court,  they  might  be  outlawed  ;  they 
were  to  receive,  within  a  certain  limited  term,  from  all 
who  would  ilay  in  the  kingdom,  of  every  rank  and  condi- 
tion, (not  even  excepting  thofe  who  held  by  tenures  of 
villenage)  oaths  of  fealty  to  the  king,  which  if  any  man  re- 
fufed  to  make,  they  were  to  caufe  him  to  be  apprehended 
as  the  king's  enemy  ;  and ,  moreover,  they  were  to  oblige 
all  perfons  from  whom  homage  was  owing,  and  who  had  not 
yet  done  it,  to  do  it  to  the  king  within  a  certain  time, 
which  the  juflices  themfelves  were  to  fix. 

The  principal  part  of  thefc  iniun6lions  was  given  in 
confequeiice  of  the  late  civil  war  ^  but  fome  conflitutions 
-made  at  Clarendon,  relating  both  to  civil  and  criminal 
jullice,  were  renewed  ar.  this  fame  council  at  Northamp- 
ton; and  the  juflices  itinerant  then  appointed  were  fworn 
to  obferve  and  execute  thof^  regulations  in  every  point. 
Amongil  other  provifions  of  this  ftatute,  the  juflices  were 
to  caufe  recognition  to  be  made  whether  a  man  died  feifed 
of  land  concerninr  Vv-hich  anv  doubt  had  arifen  ;  and  thev 
'  were  likewife  to  make  recognition  cle  mvis  dijpifinjs  p. 

p  Lilt.  Hen.  I!,  voi.  4.  275.  406. 

This 


E  N  G  L  I  S  H      L  A  W.  5T 

This  was  the  whole  authority  given  to  the  juftices  iti-     c  H  ^  J^;J|- 
tieraut  by  the  ftatute  of  Northampton  ;  how  the  objects  of     william 
their   jurifdiaion  were   muItipUed  will  prefently  appear,  ^_.,_Ji'.^„_^- 
when  we  come  to  mention  thole  Ichedules,  called  capitula  t,, 

itineris,  which  ufed  to  be  delivered  to  the  juftices  for  their  J  ^^  H  N. 
direction.  In  executing  the  king's  commifllon,  the  plan 
of  this  inftitution  was  improved  ftill  further;  for,  that 
juftice  might  not  always  be  delayed  in  criminal  cafes  till 
the  juftices  itinerant  came  into  the  country,  commiftions 
ufed  to  be  occafionally  iflued,  empowering  the  juftice* 
therein  named  to  make  a  delivery  of  the  gaol  fpecified  in  the 
commiftion  *,  that  is,  they  were,  by  due  legal  examination, 
to  determine  the  fate  of  all  the  prifoners,  ordering  a  dif- 
charge  of  fuch  who  were  acquitted  upon  trial,  and  conti- 
nuing in  further  cuftody,  or  otherwife  dire(?cing  puniih- 
nients  to  be  inflicted  on  thofe  who  fliould  have  been  con- 
victed of  any  crime.  But  when  thefe  commiftions  were 
firft  brought  into  ufe,  it  does  not  appear. 

It  was  fome  time  after  the  appointment  of  juftices  iti-  ti^c  bencV. 
nerant  that  a  court  made  its  appearance  under  the  name 
of  banctimy  or  bench,  as  diftinguiftied  from  the  curia  regis. 
This  court,  like  that  of  the  juftices  in  eyre,  was  probably 
creeled  in  aid  of  the  curia  regis  ;  and  it  is  obfervable,  that 
the  curia  regis  ceafed  to  entertain  common  pleas  in  its  or- 
dinary courfc,  much  about  the  Came  time  when  the  bar.cuniy 
or  bench,  is  fuppofcd  to  have  been  eredled.  It  is  not  likely 
this  alteration  was  made  uno  iclu,  but  by  degrees.  It  had 
evidently  been  the  ufage  to  hold  pleas  in  the  bank  before 
the  charter  of  king  John,  as  jujlitiarii  nojlri  de  banco  ard 
therein  mentioned  ;  fo  that  the  claufe  declaring,  that  com^ 
munia  placita  non  ft-quantur  curiam  noJlram,fed  tenenntur  in 
certo  loco,  can  no  otherwife  be  underftood,  than  as  contri- 
buting to  fettle  and  confirm  wh^it  had  been  begun  before. 
In  truth,  the  exiftence  of  the  bench,  and  of  the  jujlitiarii 
de  banco,  appe.irs  from  records  in  the  reign  of  Richard  I.  At 
that   period  certain  defcriptions  came  in  ufe  which  were 

not 


^8  HISTORYOFTHE 

CHAP.   II.     not  before  known,  and  which  plainly  and  clearly  mark  the 

wii  1 1  AM      exiftence  of  fuch  a  court ;   fuch  as,  curia  regis  apud  Weft- 

tHe  nionajieriutriy  jtijlitiarii  regis   apud  Wedmonafterium^  or  de 

to  Wejimonajlerioy  hajicum^  and  jujlitiarii  de  hanco^  ;  from  all 

J  o  H  N.       which  it  may  be  collected,  that  common  pleas  were  at  this 

time  moving  off  from  the  curia  regis,  and  were  frequently 

determined  in  a  certain  place,  whofe  ftyle  was  meant  to 

be  defcribed  in  thofe  exprefiions. 

It  has  been  obferved"^,  that  after  the  erc6lion  of  the 
bank,  the  ftyle  of  the  fuperior  court  began  to  alter ;  and 
the  proceedings  there  were  frequently  faid  to  be  coram  rege, 
or  coram  domino  rege ;  and  in  fubfequent  times  the  court 
was  ftiled  curia  regis  coram  ipfo  rege,  or  coram  nobisy  or 
coram  do7nino  rege  ubicunque  fuerit,  &c.  as  at  tbis  day '. 
However,  it  was  ftill  called  aula  regis,  curia  regisy  curia 
nojlra,  cur'^a  magna. 

As  the  exchequer  was  a  member  of  the  curia  regis,  and 
a  place  for  determining  the  fame  fort  of  common  pleas  as 
were  ufually  brought  into  the  curia  regis,  the  feparation  of 
fucb  pleas  from  that  court  did  conGderably  affect:  the  ex- 
chequer. The  claufe  in  king  John's  charter  equally  con- 
cerned both  courts  :  curiam  nojlram  meant  th-e  exchequer, 
as  well  as  the  court  properly  fo  called. 

Thus  have  we  feen  this  grand  inftitution  of  the  Nor- 
mans dilating  its  influence  over  the  whole  kingdom,  en- 
croaching on  the  ancient  local  tribunals  of  the  people,  by 
drawing  into  its  fphere  all  defcriptions  of  caufes  and  que- 
ftions  ;  till  having  exerted,  as  it  were,  its  laft  effort,  in 
fending  forth  the  new  eftabliiliments  of  juftices  itinerant 
and  juftices  of  the  bench,  it  difappeared  by  degrees  from 
the  obfervation  of  men,  and  almoft  from  the  records  of 
.  antiquity,  having  depofited  in  its  retirement  the  three 
courts  of  common  law  now  feen  in  Weftminfter-hall ;  the 
court  coram  ipfo  rege,  fince  called  the  hng  s-bench  ;    the 

^  Mad.  Ex.  539.  546.  '   Ibid.  543,  *   Ibid.  544. 

bench. 


ENGLISH      LAW.  S9 

henchy  now  called  the  common  pleas ;  and  the  modern  court    CHAP.  II. 

oi  exchequer.  WILLIAM 

The  court  of  chancery  probably  acquired  a  feparate  ex-  the 

illence  much  about  the  fame  time.     The  bufinefs  of  the  to 

chancellor  was  to  make  out  writs  that  concerned  proceed-      J  O  H  N- 
ings  pending  in  the  curia  regis  and  the  exchequer.  He  ufed  The  chaaccrjw 
to  feal  and  fupervife  the  king's  charters,  and,  whenever 
thfere  arofe  a  debate  concerning  the  eflicacy  or  policy  of 
royal  grants,  it  was  to  his  judgment  and  difcretion  that  a 
decifion  upon  them  was  referred.     He  ufed  to  fit  with  the 
chief  JLifticiary  and  other  barons  in  the  curia  regis  and  at 
the  exchequer,  in  matters  of  ordinary  judicature  and  on 
queftions  of  revenue  \  though  it  was  to  the  latter  court  he 
feemedt moftly  allied  in  his  judicial  capacity**.     Mr.  Ma- 
dox,  obferving  that  the  rolls  of  chancery  begin  in  the  reigns 
of  Richard  and  John  to  be  di{lin£l  from  thofe  of  the  exche- 
quer (a  method  of  arrangement  not  obferved  before)  %  i$ 
inclined  to  think  that  the  chancellor  began  about  that  time 
to  a£l  feparately  from  the  exchequer.  In  this  conjecture  he 
ftrengthens  himfelf  by  a  corroborating  fa£t,  as  he  imagines. 
In  the  abfence  of  king  Richard  out  of  the  realm,  William 
de  Longchamp,  chief  judiciary  and  chancellor,  w^as  re- 
moved from  the  former  office  by  the  intrigues  and  manage- 
ment of  John  earl  of  Morton,  the  king*s  brother.     After 
this,  it  is  thought,  he  might  difcontinue  his  attendance  at 
the  exchequer ;  and  the  bufinefs  of  the  chancery,  which 
before  ufed  to  be  done  there,  might  be  transferred  by  him 
to  another  place,  and  put  into  a  new  method;  in  which  it 
might  be  judged  proper  and  convenient  to  continue  it  ever 
after,  feparate  and  independent.  "  ' 

If  this  conjecture  may  be  admitted,  concerning  an  cfta- 
bliihment  beyond  the  reach  of  hiftoric  evidence,  the  court 
of  chancery  was  erecfled  into  a  diftin£l  court  nearly  at  the 
fame  time  when  the  other  three  received  their  prefent  form 
and  jurifdi£tion;  which  will  go  a  great  way  towards  jufti- 
fying  one  part  of  the  maxim  of  the  common  lawyers,  that 

*  Mad.  Ex.  131.  *  Ibid.  132. 

the 


6o  HISTORY    OFTHE 

CHAP.   II.     the  four  courts  of  Weflminfter-hall  are  all  of  equal  antiqul- 

WILLIAM     ^y»  thought  it  r£/}//^j- the  other  part  of  it  that  they  have 

^^^  been  the  fame  as  they  now  are  from  time  immemorial. 

CONQUEROR         „,  ,  i         /r  •        •    ^  •  •        l  c  ,x 

iHE  chancery  was  the  offict»a  /u/ntJie,  the  manuiaclory. 


to 


J  J  H  N.  •£  jj.  j^^y  i^g  £q  called,  of  juilice,  where  original  writs  were 
framed  and  fealed,  and  whither  fuitors  were  obliged  to 
refort  to  purchafe  them  in  order  to  commence  a£lions,  and 
fo  obtain  legal  redrefs.  For  this  purpofe  the  chancery  was 
open  all  the  year ;  writs  iflued  from  thence  at  all  times, 
and  the  fountain  of  juftice  was  always  acceffiblc  to  the 
king's  fubje£ts.  The  manner  in  which  the  bufinefs  there 
was  conducted,  feems  to  have  been  this  :  the  party  com- 
plaining to  the  juftices  of  the  king's  court  for  relief,  ufed 
to  be  referred  to  the  chancellor  (in  perfon,  perhaps,  ori- 
ginally), and  related  to  him  the  nature  of  his  injury,  and 
prayed  fome  method  of  redrefs.  Upon  this,  the  chancellor 
framed  a  writ  appHcable  to  the  complainant's  cafe,  and 
conceived  fo,  as  to  obtain  him  the  fpecific  redrefs,  he 
wanted.  When  this  had  been  long  the  pradlice,  fuch  a 
variety  of  forms  had  been  devifed,  that  there  feldom  arofe 
a  cafe  in  which  it  was  required  to  exercifc  much  judge- 
ment j  the  old  forms  were  adhered  to,  and  became  prece- 
dents of  eftablifhed  authority  in  the  chancellor's  office. 
After  this,  the  making  of  writs  grew  to  be  a  matter  of 
courfe ;  and,  the  bufmefs  there  increafing,  it  was  at  length 
confided  to  the  chancellor's  clerks,  called  clerici  caticellnri^y 
and  fince  airfitores  cancellari^.  A  flri<St  obfervance  of  the 
old  forms  had  rendered  them  fo  facred,  that  at  length  any 
alteration  of  them  was  efleemed  an  alteration  of  the  law, 
and  therefore  could  not  be  done  but  by  the  great  council. 
It  became  not  unufual  in  thofc  tim^s  for  a  plaintiff,  when 
no  writ  could  be  found  in  chancery  that  fuited  his  cafe,  to 
apply  to  parliament  for  a  new  one. 

Thus  far  the  chancellor  feemed  to  a£l  as  a  kind  of  offi- 
cer of  juflice,  miniftering  to  the  judicial  authority  of  the 
king's  courts.     The  chancellor's  chara6ler  continued  the 

fame, 


E  N   G  L  I  S  H      L  A  W.  6i 

fame,  after  this  reparation,  as  it  hid  been  before,  without  chap.  II. 
any  prefcnt  increafe  or  diminution.  In  the  reign  of  williavi 
Henry  II.  he  was  called  the  fecond  perfon  in  the  govern-  the 

ment,  by  whofe  advice  and  direction  all  things  were  ^  j^ 
ordered.  He  had  the  keeping  of  the  king's  feal ;  and,  be-  JOHN, 
fide  the  fealing  of  writs,  fealed  all  charters,  treaties,  and 
public  inftruments.  He  had  the  condu6l  of  foreign  affairs, 
and  feems  to  have  a6^ed  in  that  department  which  is  now 
filled  by  the  fecretaries  of  ftate.  He  was  chief  of  the 
king's  chaplains,  and  prefided  over  his  chapeL  His  rank 
in  the  council  was  high  ;  but  the  great  judiciary  had  pre- 
cedence of  him ".  He  is  faid  to  have  had  the  prefentation 
to  all  the  king's  churches,  and  the  vifitation  of  all  royal 
foundations,  with  the  cuftody  of  the  temporalties  of  bifhops; 
but  thofe  writers  who  have  taken  upon  them  to  fpeak  fully 
of  the  oflice  of  chancellor,  fay  nothing  of  any  judicial  au- 
thority exercifed  by  him  at  this  time.  In  the  curia  regis 
he  was  rather  an  olTicer  than  a  judge;  but  as  he  alTifted 
there,  fo  he  was  fomctimes  aflbciated  with  the  juftices  in 
eyre  '^.  There  is  no  notice,  even  in  writers  of  a  later  date 
than  this,  neither  in  BraBoti  nor  Fleta^  that  t]ie  chancellor, 
after  he  fat  feparate  from  the  exchequer,  exercifed  any 
judicial  authority,  or  that  the  chancery  was  properly  a 
court ;  but  it  is  always  fpoken  of  as  an  office  merely,  bear- 
ing a  certain  relation  to  the  adminiltration  of  jullice,  in 
the  making  and  fealing  of  writs. 

Notwithstanding    the  hereditary   lords    abfented 
themfelves  fo  entirely  from  the  curia  re^isy  they  ftill  retained 

r  !•  1-1  r  1      t    •  Judicature  (>f 

an  inherent  right  of  judicature,  which  relided  in  them  as  the  coua.ii. 
conflituent  members  of  the  council  of  the  king  and  king- 
dom.    When  the  curia  regis  was  divided,   and  the  depart- 
ments of  ordinary  judicature  were  branched  out  in  the 
manner  we  have  juft  feen,  the  peculiar  charadler  of  this 

'^  Mad.  Ex.  41,  43.  I/it,  Hen.  11.  vol.  i.  312.  ^  MaJ.  Ex.  42. 

council, 


62  H  I  S  T  O  R  T     O  F      T  II  E 

CHAP.   II.     council,  now  fcparatsd  and  retired  within  itfelf*  became 

WILLIAM     ^^'^^^  dillinguifhable. 

^  the  This  council  was  of  two  kinds  and  capacities  :    in  one, 

i(^  it  was  the  national  alFembly,  ufually  called  viagnum  conci- 

JOHN.  liiitn^  or  co-mmune  concilium  regni\  in  the  other,  it  was  fim- 
ply  the  council^  and  confided  of  certain  perfons  felcdled 
from  that  body,  togther  with  the  great  officers  of  ftate, 
the  juflices,  and  others  whom  the  king  pleafed  to  take  into 
a  participation  of  his  fccret  meafures,  as  perfons  by  whofe 
advice  he  thought  he  {hould  be  bed  aiTifted  in  affairs  of  im- 
portance. This  lafl  afTembly  of  perfons,  as  they  were  a 
branch  of  the  other,  and  had  the  king  at  their  head,  were 
confidered  as  retaining  fome  of  the  powers  exercifed  by  the 
whole  council.  As  they  both  retained  the  fame  appella- 
tion, and  the  king  prefided  in  both,  there  was  no  diffe- 
rence in  the  flile  of  them  as  courts;  they  were  each  coram 
rege  in  concll'to^  or  coram  ipfo  rege  in  coticilioj  till  the  reign 
of  Edward  I.  when  the  term  parliament  was  firfl  applied  to 
the  national  council;  and  then  the  former  was  filled  coram 
rege  in  parliamenio. 

The  judicial  authority  of  the  barons,  which  flill 
rcfided  with  them  after  the  dilTolution  of  the  curia  regis, 
was  this  :  they  were  the  court  of  lafl  refort  in  all  cafes 
of  error;  they  explained  doubtful  points  of  law,  and 
interpreted  their  own  a<fls  ;  for  which  purpofe  the  juflices 
ufed  commonly  to  refer  to  the  great  council  matters  of  dif- 
ficulty depending  before  them  in  the  courts  below.  They 
heard  caufes  commenced  originally  there,  and  made  awards 
thereupon ;  and  they  tried  criminal  accufations  brought 
<igainfl  their  own  members. 

The  cmncil,  properly  fo  called,  feems  to  have  had  a 
more  ordinary  and  more  comprehenfive  jurifdi£lion  than 
the  commune  c&nci/ium ;  which  it  was  enabled  to  exercife 
more  frequently,  as  it  might  be,  and  was,  continually  fum- 
moned ;  while  the  other  was  called  only  on  great  emer-. 
gcjjcics.     In  the  court  held  coram   rege  in  concilio,  there 

feems 


E  N  G  L  I  S  H      L  A  W.  6i 

feems  to  have  refided  a  certain  fupreme  adminiftratlon  of    CHAP.  If. 
juftice,  ill  refpe6i:  of  all  matters  which  were  not  cogni-     william 

zable  in  the  courts  below  ;  this  iurifdiclion  was  both  civil  the 

.     .     ,        ^,  .       ,  . .  •         CONQUEROR 

and   criminal.     They   entertanied    enquiries    concerning  to 

property  for  which  the  ordinary  courfe  of  common-law  JOHN. 
proceeding  had  provided  no  redrefs,  and  ufed  to  decide 
ex  aquo  et  bonoy  upon  principles  of  equity  and  general  law. 
AW  offences  of  a  very  exorbitant  kind  were  proper  objc6ls 
of  their  criminal  animadverfion.  If  the  perfons  who  had 
taken  part  in  any  public  dilbrder  were  of  a  rank  or  defcrip- 
tion  not  to  be  made  amenable  to  the  ufual  procefs,  or  the 
occafion  called  for  fomething  more  exemplary  than  the  ani- 
madverfion which  could  be  made  by  ordinary  juftlces,  thefe 
were  reafons  for  bringing  enquiries  before  the  council  :  in 
thefe,  and  fome  other  inllances,  as  well  touching  its  civil 
as  criminal  jurifdiction,  it  acled  only  in  concurrence  with, 
and  in  aid  of,  the  courts  below. 

Thus  was  the  admlniftraticn  of  juftice  ftill  kept,  as  it 
were,  in  the  hands  of  the  king;  who,  notwithftanding 
the  diflblution  of  his  great  court,  where  he  prefided,  was 
ftill,  in  conftrudlion  of  lav»^,  fuppofed  to  be  prefent  in  all 
thofe  which  were  derived  out  of  it.  The  ftile  of  the  great 
council  was  coram  rege  in  rounlio,  as  was  that  of  his  ordinary 
council  for  advice.  The  chancery,  when  it  afterwards  be- 
came a  court,  was  coram  rcge  in  cancellaria ,  and  the  prin- 
cipal new  court  which  had  fprung  out  of  the  curia  regis^ 
was  coram  ipjo  rege^  and  coram  rege  ubicunque  fuerit  in  Ati-^ 
glid. 

The  fcparationof  ecclefiaftical  caufes  from  civil,  was  not  of  the  fpiritoil 
the  Icafl;  remarkable  part  of  tlie  revolution  our  laws  under-  ^°"^^* 
went  at  the  Conqueft.  The  joint  jurifdiclion  exercifed  in 
the  Saxon  times  by  the  bifliop  and  fherifF  was  diflblved,  as 
has  been  before  mentioned,  by  an  ordinance  of  William  ; 
and  the  bifliop  was  thenceforth  to  hold  his  court  feparate 
from  that  of  the  ftierifF^ 

y   Wilk.  Leg.  Sax.  192.     ScKl,  Tithes  413. 

This 


WILLIAM 


HISTORY      OF     THE 

This  ordinance  of  William  Is  comprifed  in  a  charter 
relating  to  the  bifhopric  of  Ivincoln  •,  and  therein  he  com- 
"thc  '  *  manded,  "  that  no  bifliop  or  archdeacon  iliould  thence- 
CONQpEROR  ^^  forward  hold  plea  de  legibus  ep'/fcopalibus  in  the  hundred 
J  O  H'N.  (c  court,  nor  fubmit  to  the  judgment  of  fecular  pcrfons  any 
"  caufe  which  related  to  the  cure  of  fouls;  but  that  who- 
"  ever  was  proceeded  againfl  for  any  caufe  or  offence  ac- 
"  cording  to  the  epifcopal  law,  fliould  refort  to  fome  place 
"  which  the  bifhop  fhould  appoint,  and  there  anfwer  to 
'^  the  charge,  and  do  what  w^as  right  ^  towards  God  and 
"  the  bifhop,  not  according  to  the  law  ufed  in  the  hun- 
"  dred,  but  according  to  the  canons,  and  the  epifcopal 
"  law."  In  fupport  of  the  biihop's  jurifdi£lion,  it  was 
moreover  ordained,  "  that  fhould  any  one,  after  three  no- 
"  tices,  refufe  to  obey  the  procefs  of  that  court,  and  make 
«  fubmiffion,  he  fhould  be  excommunicated  ;  and,  if  need 
«  were,  the  alhftance  of  the  king  or  the  fheriff  might  be 
«  called  in.  The  king  moreover  llridly  charged  and  com- 
«  manded,  that  no  {h^M^pr^pofitusfive  mimjler  regis y  nor 
"  any  layman  whatfoever  fnould  intromit  in  any  matter  of 
««  judicature  that  belonged  to  the  bifliop  \"  This  is  the 
whole  of  that  famous  charter. 

When  the  fpiritual  court  was  once  divided  from  the  tern* 
poral,  difTerent  principles  and  maxims  began  to  prevail  in 
that  tribunal.  The  bifhop  thought  it  no  ways  unfuitable,  that 
fubjeds  of  a  different  nature  from  thofe  concerning  which 
the  temporal  courts  decided,  fhould  be  adjudged  by  different 
laws ;  and,  being  now  out  of  the  influence  and  immediate 
fuperintendaiice  of  the  temporal  judges,  he  was  very  fuc- 
cefsful  in  introducing,  applying,  and  gaining  prefcription 
for  the  favourite  fyflem  of  pontifical  law,  to  which  every 
churchman,  from  education  and  habit,  had  a  flrong  par- 

*  Facia:  return,  *  W  Ik.  L-^g.  Ang.  Sax.  pa.  25a,  293. 

tiality. 


\Vl)A.lAM 


ENGLISH      LAW. 

tiallty.     The  body  of  canon  law  foon  exceeded  the  bounds 

which  a  concern  for  the  government  of  the  church  would 

naturally  affix  to  it.     Inflead  of  confininnj  their  regulations  ^^c 

^  -n        .  ,  CONQUEROR 

to  facred  things,  the  canonius  laid  down  rules  for  the  or-  to 

dering  of  all  matters  of  a  temporal  nature,  whether  civil  or      JOHN, 
criminal.     The  buying  and  felling  of  land,  leafing,  mort- 
gaging,  contrails,   the  defcent  of  inheritance  *,   the  profe- 
cution  and  punidiment  of  murder,  theft,  receiving  of  thieves, 
frauds ;  thefc  and  many  other  objccls  of  temporal  judica- 
ture are  provided  for  by  the  canon  law  ;  by  which,  and 
which  alone,  it  was  meant  the  clergy  (liould  be  governed  as 
a  diftinft  people  from  the  laity.   This  fcheme  of  diflincl  go- 
vernment was,  perhaps,  not  without  fome  example  in  the 
practice  of  the  primitive  times;  when  it  was  recommended 
that  chriflian  men  lliould  accommodate  diiFerences  among 
themfelves,  without  bringing  fcandal  on  the  church  by  ex- 
pofing  their  quarrels  to  the  view  of  temporal  judges.     For 
this  purpofe,  bifhops  had  their  epifcoporum  ecdici^  or  church' 
lawyers ;  and,  in  after-times,  their  officials,  or  chancellors  : 
and  when  the  Empire  had  become  chriftian,  the  like  pracSlice 
continued,  for  fimllar  reafons,  with  regard  to  the  clergy. 
But  this,  which  was  in  its  defign  nothing  more  than  a  fort 
of  compact  between  the  individuals  of  a  fraternity,  was 
exalted  into  a  claim  of  diflin^t  jurifdiction,  exclufive  of 
the  temporal  courts,  for  all  perfons  who  came  under  the 
title  of  clerics,  and  for  many  objecls  which  were  faid  to  be 
of  a  fpiritual  nature.     This  attempt  was  favoured  by  the 
feparation  now  made,  in  this  country,  between  the  fpiritual 
and  temporal  judges. 

In  the  gradual  increafe  of  this  clerical  judicature 
feparate  from  the  temporal  courts,  we  fee  the  means  by 
which  the  ecclefiaftics  in  after-times  were  enabled  to  per- 
fe£l  their  fcheme  of  independent  fovereignty,  in  the  midft  of 
fecular  dominion;  whereby  they  affiimed  powers  dangerous 
to  the  crown,  and  the  political  freedom  of  the  ftate. 

The  increafe  of  the  clergy  in  power  and  confequence 
was  owing  to  the  influence  of  the  civil  and  canon  law.  With 
Vol.  L  F  thefe  ' 


66  H  I  S  T  O  R  Y      O  F     T  H  E 

CHAP.  II.     thefe  inftruments  they  ventured  to  encounter  the  cftabllflied 
^"^^XLLIAM      '«i^t^ority  of  the  municipal  law,  whofe  di6tates  were  fo  op- 

^hc  pofite  to  their  grand  fchemes  of  ecclefiaftical  fovereignty. 

CONQUFROR    ^  ^.  o^.,,,'  ,r/i 

to  Such  an  entire  deftruttion  had  been  made  ot  every  cita- 

^) P  "  .!^"   ,  blifhment  by  the  Saxon  invaders,  that  the  Roman  law  was 

0^  the  civ.l  ana 

canon  law.  quite  eradicated.     The  only  remains  of  this  law  that  could 

be  picked  up  in  the  Saxon  times,  were  from  the  code  of 
Theodofms,  arid  fuch  fcraps  of  Gaius,  Paulus,  and  Ulpian, 
as  flill  exifted  in  fome  mutilated  parts  of  the  Pande6ls*'. 
Thefe  remnants  of  the  civil  law,  like  other  learning,  were 
moftly  in  the  hands  of  ecclefiaftics,  who  fludied  them  with 
diligence.  It  was  from  thefe  that  they  formed  a  ftile,  and 
learned  a  method,  by  which  to  frame  their  own  conftitutions; 
which  were  now  growing  to  fome  magnitude  and  confe- 
quence,  and  began  to  claim  notice  as  a  feparate  fyflem  of 
law  of  themfelves. 

During  the  reigns  of  William  the  Conqueror  and  Ru- 
f us,  we  hear  nothing  in  this  country  of  the  civil  law  ° ; 
though  the  inflitute,  the  code,  and  the  novels  of  Jufti- 
nian,  had  been  taught  in  the  fchool  of  Irner'mSy  at  Bologna, 
and  there  were  even  fome  imperfecl:  copies  of  the  Pandemia 
in  France ;  yet  the  ftudy  of  the  civil  law  did  not  go  on 
with  fpirit;  nor  was  that  fyftem  of  jurifpr^dence  regarded 
with  the  univerfal  reverence  which  it  acquired  afterwards, 
when  a  complete  copy  of  the  Pandedls  was  found  at  Amalfi, 
A.  D.  1 137,  at  the  time  that  city  was  taken  by  the  Pifans'^. 

The  canon  law  firft  known  in  this  country  was  formed 
by  permifllon  and  under  authority  of  the  government,  and 
'  feemed  to  be  ftipported  by  arguments  of  expediency.  The 
exiftence  of  a  church,  with  the  gradation  and  {iibordination 
of  governors  and  governed,  called  for  a  fet  of  regulations 
for  the  direcSlIon  and  order  of  its  various  fundlions.  This 
was  admittal ;  and  under  that  notion  a  body  of  canonical 
jurifprudence  had  been  fufFered  to  grow  up  for  a  long  courfe 

b  Duck  At  aut.  299.  ^  Giann.  Hifl.  N.ip.  lb.  11.  ca.  x. 

*  ibid.  307,  vol.  2,  p.  119. 

©f 


E  N  G  L  I  S  H      L  A  W.  67 

of  years.     In  a  national  fynod  held  A.  D.  670,  the  codex     CHav.   H. 
canomtm  vetus  ecclcfu?  B.Gman£  was  received  by  the  clergy ^4      WILLIAM 
It  appears  aifo  by  the  before-meiitioned  charter  to  the  bi-  '^^ 

fhop  of  Lincoln,  that  ^  William  the  Conqueror,  with  the  to 

advice  and  aflcnt  of  his  great  council,  had  reviewed  and  ^ 
reformed  the  epifcopal  laws  that  were  in  ufe  till  his  time  in 
England.  It  is  beyond  difpute  that  a  canon  law  of  fome 
kind  had  been  long  eftabliihed  here  by  the  fan(Slion  of  the 
legiilature;  as  may  be  fcen  in  Mr.  Lambard's  Colle(Stion  of 
Saxon  Conllitutions  ^.  Thefe  antient  canons  were  proba- 
bly not  fo  prejudicial  to  the  rights  of  the  fovereign  and  the 
ftate ;  for  which  reafon,  as  well  as  on  account  of  the  ap- 
pearance they  bore  of  municipal  regulations,  made  at  home 
for  the  government  of  the  church,  they  had  never  excited 
any  complaint  or  jealcufv- 

But  a  compilation  of  cancn  law  was  made  by /w  de 
Ghartresj  in  the  time  of  Henry  I.  containing  many  extra- 
vagant opinions,  calculated  to  advance  the  dominion  of 
the  pope,  and  the  pretentions  of  the  clergy.  After  this, 
and  about  fourteen  years  after  the  difcovery  of  the  Pande6t:s, 
in  the  year  1151,  a  more  complete  co He 61  ion.  of  canon 
law  was  made  bv  (Iratlan,  a  Bcnedi6Hne  Monk  of  Bo- 
logna,  and  was  publifhed  under  the  title  of  Decretum :  it 
was  made  in  imitation  of  the  Pandefts,  and  was  a  dig^Ji  of 
the  whole  pontifical  canon  law.  1  his  is  a  colleclion  of 
opinions  and  decifions,  extracled  from  fayings  of  the  fa- 
thers, canons  of  councils,  and,  above  all,  from  decretal 
epiftles  of  popes ;  all  tending  to  exalt  the  clerical  ftate,  and 
to  exempt  the  clergy  from  fccular  fubordination.  The  ap- 
plaufe  this  book  received  from  the  fee  of  Rome  and  the 
clergy,  raifcd  it  foon  above  all  former  collections;  and  it 
became  the  grand  code  of  eccleiiallical  law,  upon  which 
the  popiOi  hierarchy  refted  all  its  hopes  and  pretenfions. 

«  Seld.  Notes  to  Eadm.  «  Duck,  dc  aut.  98. 

*  WilK.  Leg.  An£.  S^x.  n.  194. 

F  2  The 


68  H  I  S  TORY      OF     T  H  E 

CHAP.    I}.         The  canon  and  civil  law  had  before  been  ftudied  and 
WILLIAM      profefTed  by  the  fame  perfons;  and  the  union  of  thefe  two 
fhc  j^^g  ^as  now  drawn  clofer.     The  canon  law  was  from 

to  the  beguming  under  great  obligations  to  the  civil ;   the 

■  very  form  in  which  it  now  appeared  was  evidently  bor- 
rowed from  thence;  and  whatever  was  moft  excellent  in  it, 
was  acknowledged  to  be  copied  from  that  model.  Thefe 
two  fyltems  now  became  fo  conne£led,  and  in  fo  near  a  de- 
gree of  relation,  that  a  learned  writer  fays,  the  one  could 
not  fubfift  without  the  other.  They  afforded  each  other  a 
mutual  fupport ;  they  had  the  fame  profeflbrs ;  and  it  was 
requifite  to  the  fame  and  preferment  of  a  churchman,  that 
he  fliould  be  both  a  civilian  and  a  canonid. 

When  thefe  two  laws  were  brought  into  this  high  re- 
pute, Vacarihs  c^LTne  into  England,  and,  A.  D.  1149,  ^°" 
wards  the  end  of  Stephen's  reign  began  to  read  le£lures, 
at  Oxford,  on  the  canon  and  civil  law.  Upon  this  an  alarm 
was  raifed,  and  the  king,  apprehenfive  of  the  confequences 
to  which  thefe  new  dotlrines  might  lead,  in  the  year  1 152, 
or  thereabouts,  is  faid  to  have  forbid  the  reading  of  books  of 
the  canon  law^  ;  a  prohibition  that  could  not  be  meant  to 
extend  to  that  canon  law  which  had  long  been  admitted 
and  ratified,  but  probably  only  to  the  novel  and  bold  opi- 
nions contained  in  the  colleclion  of  Ivo  de  ChartreSf  and 
more  particularly  in  that  lately  made  by  Gratian. 

Indeed  the  ufe  of  the  canon  law  became  now  a  fubjevSl 
of  very  ferious  confideration.  The  canons  before  admitted 
here  were  very  antient ;  many  of  them  had  received  a  Icgif- 
lative  fan6lion,  and  by  long  continuance  they  had  ingrafted 
themfelves  into  the  conllitution  of  the  country  ;  but  a  fet 
of  opinions  entirely  new  was  advanced  by  the  publication 
''  of  the  Decretufny  which,  from  the  parade  of  the  work  and 

,  the  fupport  it  received  from  the  fee  of  Rome,  had  the 

appearance  of  a  promulgation  of  laws  impofed  on  the  chrif- 

^  Job.  Saliib.  dc  nug,  curi», 

tian 


ENGLISH      LAW. 

tian  world  by  the  fole  and  fupremc  authority  of  the  pope. 
From  a  queftlon  on  the  utility,  as  it  had  been  before  in    "^hxia^m" 
forae  refpecls,  it  became  now  a  qiieftion  upon  the  cirthority        ^^  'h= 
of  thefe  laws^    The  conteft  between  the  fecular  and  eccle-  ^"^ 

fialtical  (late  was  thenceforward  more  violent,  as  the  points      J  O  H  Tn. 
upon  which  it  arofe  were  more  important. 

Notwithstanding  the  prohibition  of  king  Stephen, 
the  ftudy  of  the  civil  and  canon  law  was  univerfaliy  pro- 
moted by  the  clergy.  Educated  in  opinions  calculated  to 
promote  the  benefit  and  emolument  of  their  own  order,  it 
was  not  much  to  be  wondered,  that  they  ftruck  in  with  the 
^efigns  of  the  pope,  and  flood  firmly  upon  the  maintenance 
of  their  own  pretended  rights  and  privileges. 

The  a£Vive  fpirit  of  the  clergy  did  not  want  inflruments 
to  work  with  :  the  body  of  canon  law  lately  publiflied  by 
Gratian  fumifhed  authority  and  arguments  for  every  fpe- 
cies  of  ufurpation. 

The  doQrines  of  the  canon  law,  as  delivered  in  the  De-  Doarincs  of 
creturn^  tended  to  mark  more  ftrongly  the  dillinftion  between 
clergy  and  laity,  and  the  great  deference  due  to  the  former. 
It  is  there  laid  down,  that  a  cuftom  againll  the  decree  of  a 
pope  is  void;  and  that  all  men  muft  obferve  the  pope's  com- 
mand. It  is  made  an  anathema  to  fue  a  clergyman  before 
a  lay  judge  \  if  a  lay  judge  condemn  or  deilroy  a  clerk,  he 
is  to  be  excomm.unicated  ;  a  clerk  may  implead  a  layman 
before  what  judge  he  pleafes;  judges  who  compel  a  clerk 
to  anfwer  to  a  fuit  before  them,  Ihall  be  excommunicated  j 
a  layman  cannot  give  evidence  againft  a  clerk  ;  with  num- 
berlefs  extravagancies  of  the  fame  kind.  Such  notiont*  did 
the  canonifts  propagate  fur  law  refpecling  churchmen,  in 
the  reigns  of  Henry  H.  of  Richard,  and  of  John. 

Indeed  it  was  not  till  thefe  docflrines  had  generally 
prevailed,  that  the  feparate  eftablifluTicnt  of  ccclefiaftical 
judicature  gained  much  llrength.    It,v.as  not  till  the  publi* 

'  Litt.  Hep.  \\.  vol.  X.  471. 

cation 


?<S! 

CHAP.    11. 

WILLIAM 

the 

CONQUEROR 

to 

JOHN. 

HISTORY      OF      THE 

cation  of  the  Decreium^  and  the  frrowi ng  authority  of  the 
canons  had  giveii  feme  order,  connflence,  and  flabihty  to 
fpiritual  governm'!:nt,  that  the  ex'clufive  jurifdiftion  of  thefe 
courts  was  an  ob;e«fi  of  very  important  confideration,  or 
that  their  claims  were  urged  to  any  great  extent. 

Some  caufes,  apparently  clerical,  had  continued  to  hang 
about  the  temporal  courts,  particularly  thofe  concerning 
tithes;  which,  being  the  iilaes  of  freehold  property,  and  fo 
partaking  of  its  nature,  could  hardly  be  confidered  as 
merely  fpiritual ''.  Accordingly  fuch  pleas  were  held  both 
in  the  ecclefiadical  and  temporal  courts  till  the  time  of 
Henry  II.  After  that,  tithes  came  under  the  notice  of  our 
courts  of  common  law  only  in  an  indirect  proceeding; 
fuch  as  on  prohibitions,  writs  of  right  of  advowfon,  or  by 
fcirefacias\  an  antient proceeding  fince  abolilbed  byparlia- 
ment '".  The  prercgatives  of  the  hierarchy,  and  the  jurif- 
di<flion  of  the  ecclefiafticai  coui:^  aCifted  each  ether  in  ex- 
tending their  influence.  The  courts  grew  in  authority,  and 
the  bifhops  rofe  in  their  pretenfions. 

Amomgst  other  attempts  taaggrandife  themfelves,  the 
clergy  did  nor  omit  fo  valuable  a  fubjecl  of  acquifition  as 
benefices.  A  benefice,  being  an  eieemofynary  provifion 
for  a  perfon  who  officiated  in  the  difcharge  of  religious  du- 
ties, v/as  originally  in  the  fole  difpofal  of  the  founder,  and 
was  conferred,  like  other  donations,  by  invefclture ;  but  the 
bifhops,  as  having  the  fuperlntendence  over  fpiritual  things, 
claimed  a  right  of  controul  over  thefe  gifts.  This  occa- 
fioned  a  conteft  between  p£tro:i3  and  the  bifhops  for  many 
years ;  till  at  length  the  antlcnt  way  of  invelliture  intirely 
ceafed  about  the  reigns  of  king  Richard  and  John,  and 
lay-patrons  became  obliged  firfi.  to  prefent  their  clerks 
to  the  bifliop,  who,  ?.ccording  to  his  difcretion,  gave  them 
ifijlltution  ^.  A  like  method  of  filling  vacant  biiliopricks 
was  claimed  by  the  pope;  but  the  fpirited  refiflrnce  of  fome 

^  Selden'cT:thtr,  387.  ''  By  (tat.  F,(».  III. 

'-  Ibid.  412.  *  Scldcn's  Tithe?,  383. 

of 


E  N   G  L  I  S  H      L  A  W.  71 

of  our  kings  defeated  all  his  attempts ;  though,  as  ufual,he     ^  H  a  p.  II. 
never  receded  from  the  pretended  right.  WILLIAM 

The  appointment,  however,   to  bifhopricks  was,  to  a  i^*" 

degree,  put  under  the  controul  01  the  pope,     in  the  time  to. 

of  Henry  I.  a  bifliop  ele£l:  was  to  receive  invejliture  of  his      JOHN, 
temporalties  from  the  king,  of  whom  all  bifiiops  held  their 
lands  as  baronies.     This  was  performed  by  the  king's  de- 
livering to  the  bifhcp  a  ring  and  crofier,  as  fymbols  of  his 
fpiritual  marriage  to  the  church  and  of  his  paftoral  ofRcc  j 
and   hence   called   inveftiture  per   annulum   et    haculmn  ■; 
after  this  the  biihop  ufed  to  do  homage  to  the  king,  as  tc 
his  liege  lord.     But  that  king  finding  it  expedient  to  give  ' 
way  to  the  demands  of  the  pope,  refigned  this  power  and 
ceremony  of  inveftiture,  and  only  required  that  bifliops 
ihould   do   homage    for    their    temporalties :     and   king 
John,  to  obtain  the  protection  of  the  pope,  was  contented 
to  give  up,  by  charter,  to  all  monifteries  and  cathedrals, 
the  free  right  of  eleding  their  prelates,  whether  abbots 
or  biftiops.     He  referved  only  to  the  crown  the  cuftody  of 
the  temporalties  during  the  vacancy ;  the  form  of  grant- 
ing a  licence  to  proceed  to  eledion  (fince  called  a  conge 
d'eHre)y  on  refufal  whereof  the  electors  might  make  their 
ele£lion  without  it ;  and  the  right  of  approbation  after- 
wards, which  was  not  to  be  denied  without  a  reafonablc 
and  lawful  caufe.     This  grant  was  exprefsly  recognifed 
and  confirmed  by  king  John's  Magna  Charta;  was  again 
eftablifhed  by  (lat.  25.  Ed.  III.  ft.  6.  c.  3. ;  and  continued 
the  law  and  pra£lice  till  the  time  of  Henry  VIII. 

To  return  to  the  progrefs  of  ecclefiaftical  judicature. 
There  were  two  fubjecls  of  jurifdidion  which  the  fpiritual 
court  gradually  drew  to  itielf  and  endeavoured  to  appropri- 
ate :  thefe  were  marriages  and  iv'ilh \  which  latter  led  to  the 
cognizance  of  A'^jrw,  and  the  difpofal  of  intejlates^  effe.^s. 

Marriage,  being  a  contrail  di£lated  and  fancClioncd 
by  the  law  of  nature,  and  entitling  the  parties  to  certain 
civil  rights,  feems  to  have  nothing  in  it  of  fpiritual  cog- 
nizance j 


WILLIAM 


72  HISTORY      OFTHE 

CH  \^.  H.  nizancc;  but  the  church  of  Rome  having  converted  it  into 
a  facrament,  it  became  entirely  a  fpiritual  contract,  and  as 
fuch  fell  naturally  within  the  ecclefiaftical  jurifdi^lion,  very 

CONQUEROR   ^^^^  ^^^^^  j^^  feparation  from  the  fecular  court;  it  followed 
JOHN.       almoft  of  confequence,  that  the  fpiritual  court  fhould  like- 
wife  determine  qucftions  cf  hghimacy  and  hnftardy. 

Probate  ofwllls.  Cases  of  v/ills  and  intcftacy,  as  they  were,  in  their  na- 
ture, lefs  allied  to  the  fpiritual  function,  did  not  entirely 
fubmit  to  the  ecclefiaftical  jurifdiftion.  It  appears  from 
Glanviile,  that  in  the  reign  of  Henry  II.  the  jurifdi£lion  of 
perfonal  legacies  was  in  the  temporal  courts  0.  But  not- 
withflanding  this,  if  there  was  a  queilion  in  the  temporal 
court,  whether  a  teftament  was  a  true  one  or  not;  whe- 
ther it  was  duly  made,  or  whether  the  thing  demanded  was 
really  bequeathed;  fuch  plea  was  to  be  heard  and  deter- 
mined by  the  court  chriflian;  becaufe,  fays  our  author, 
all  pleas  ttpon  tejlaments  are  properly  cognizable  before  the 
ecclefiajlical  judge  p.  Thus  the  validity  of  a  teftament,  or  the 
bequefi:  of  a  legacy,  was  to  be  certified  by  the  fpiritual 
court :  neverthelefs,  as  in  cafes  of  bajlardy  the  court  chrif- 
tian  did  nothing  more  than  anfwer  the  mere  queftion,  whe- 
ther baflard  or  not,  and  the  confequence  of  defcent  and 
title  was  left  to  be  determined  at  common  law ;  fo  were 
the  (^onfequences  of  a  teftament,  -as  the  recovery  and  pay- 
ment of  legacies,  to  be  heard  and  determined  in  the  tem- 
poral courts. 

By  the  manner  in  which  Glanviile  fpeaks  of  iht  probate 
of  wills,  it  feems  as  if  that  courfe  of  authenticating  wills 
had  been  long  in  ufc.  The  beginning,  or  fteps,  by  which 
this  innovation  eftablifhed  itfelf,  it  is  not  eafy  to  trace  :  it 
lies  buried  in  that  obfcurity  which  involves  not  only  the 
origin  of  our  municipal  cuRoms,  but  the  incroachments 
gradually  made  upon  them  by  the  civil  and  canon  law. 
*  When  the  ecclefiaftical  court  had  once  the  probate  of 

wilh,  it  appeared  no  very  great  enlargement  of  jurifdi^lion 

»Lib.  7.  c.  6,  7.  P  Ibid. 


to 


E  N  G  L  I  S  H      L  A  W.  73 

to  add  the  power  of  enforcing  the  execution  of  thera>  in     CHAP    ir. 
payment  of  legacies.     But  there  are  no  teftimonies  of  thofe     ^  j  j  ^  i  a  M 

times  that  warrant  us  to  conclude,  that  this  had  generally  the 

u-jur         I,        •         rrjTTTn  CONCirjEROR 

obtained  before  the  reign  or  Henry  111.  %  to 

It  feems  doubtful,  whether  the  mode  ufed  by  the  Saxons      -^  "  * 

for  the  diftribution  of  the  eftates  of  'mtejlates  continued 
during  the  whole  of  this  period.  A  law  of  Henry  I. 
fays,  that  upon  a  perfon  dying  inteftate,  thofe  who  were 
intitled  to  fucceed  (hould  divide  his  efFe£ts/»ro  animd  ejus. 
This  is  the  firft  mention  in  our  law  of  a  difpofition  of  an 
inteflate's  elfe6ls  for  the  benefit  of  his  foul ;  but  there  is  no 
mention  of  the  controul  or  intermeddling  of  the  bifliop, 
either  in  this  law,  or,  even  later  than  this,  in  Glanville ; 
although  he  exprefsly  mentions  the  jurifdidion  of  the 
church  as  to  teftaments. 

In  king  John's  charter  it  was  exprefsly  provided,  that  if 
any  freeman  died  inteftate,  his  chattels  (hould  be  difpofed 
of  by  the  hands  of  his  next  of  kin,  per  v'tfum  ecclefi^y  by 
the  advice  and  dire£lion  of  the  ordinary,  faving  to  all 
creditors  their  debts.  This  claufc,  it  is  faid,  was  word  for 
word  in  the  charter  9  Hen.  III.  and  is  to  be  feen  in  feveral 
manufcripts  of  it' ;  but  being  left  out  of  the  exemplin- 
cation  of  this  charter  on  the  roll  25  Ed.  I.  from  which  is 
copied  the  Magna  Charta  in  our  ftatute  books,  it  is  not 
now  found  there.  This  provifion  was  probably  inferted 
by  the  contrivance  of  the  bifhops,  who,  with  Pandolfo  the 
pope's  nuncio,  were  with  John  at  Runnymede.  There 
was  not  wanting  colour  for  a  provifion  like  this;  for  as  the 
ilatute  of  Henry  I.  before  alluded  to,  had  exprefsly  faid, 
that  the  diftribution  v/as  to  be  pro  a?iwrd  ititejlati,  the  bi- 
ftiops  feemed,  by  their  holy  function,  to  be  beft  qualified 
to  fee  this  ofRce  performed  with  fidelity.  Hence  it  was, 
that,  in  after-times,  this  power  was  delegated  by  the  ordi- 
r.ary  to  the  next  of  kin,  in  letters  or  otherwife*,  an  autho- 

s  Scld.  Work?,  vol.  3,  1672.  '  IbiJ    1676. 

rity 


74 


HISTORY      OF     THE 


CHAP.  If.     rity  grounded  npon  thcfe  words  of  the  charter,  per  vifum 
"wn  '  lAM       ecclefm » ;  though  there  are  no  documents  that  aflure  us  this 
^''-        ^    law  was  put  in  force  durin?  the  reien  of  king  John. 
tQ  In  the  reign  of  Stephen  the  clergy  began  to  draw  mto 

^  '      the  fpiritual  court  the  trial  of  perfons  pro  Ufionejidei^  that 

is,  for  breach  of  faith  in  civil  contra61:s.  By  means  of  this 
they  took  cognizance  of  many  matters  of  contraft  which 
belonged  properly  to  the  temporal  court.  This  was  the 
boldeft  ftretch  which  that  tribunal  ever  made  to  extend  its 
authority,  and  would,  in  time,  have  drawn  within  its  ju- 
rifdiO:ion  moil  of  the  tranfa£tions  of  mankind.  The  pre- 
tence on  which  they  founded  this  claim  was  probably  this : 
that  oaths  and  faith  folemnly  plighted  being  of  a  religious 
nature,  the  breach  of  them  more  properly  belonged  to  the 
fpiritual  than  to  the  lay  tribunal. 

The  circumftances  of  the  times  tended  very  much  to 
encourage  the  clergy  in  their  fcheme  of  oppofition  to  the 
fecular  power.  The  provifion  for  the  clergy  was  in  thofe 
days  very  precarious,  and  left  them  at  the  mercy  of  their 
patrons.  Being,  in  general,  from  their  funftion,  conudered 
as  a  facred  body  of  people,  when  opprefled  and  ill-treat- 
ed by  potent  lords,  they  drew  the  compafTion  of  many, 
and  particularly  the  fupport  of  their  bifhops ;  who,  in  their 
turn,  receiving  as  little  favour  from  kings,  were  continually 
increafing  their  ftore  of  merit  with  the  fovereign  pontiif  by 
the  many  ftruggles  they  engaged  in  on  their  own  account, 
and  on  account  of  their  inferior  brethren.  The  pope,  no  un- 
grateful fovereign,  always  diflinguiflied  his  zeal  in  fupport- 
ing  his  bifliops,  as  they  did  in  fupporting  the  lower 
clergy  \  till  the  feveral  orders  of  ecclcriaftics,  united  in  a 
common  caufe,  and  (harpened  againfl:  the  laity  by  long  con- 
tention, encouraged  each  other,  by  every  motive  of  defence 
and  aggrandifement,  to  contribute  in  their  flations  to  pro- 
mote the  power  of  the  church.     The  pope  having  made 

*  Seld,  Works,  vol.  3.  1679. 

»  ufe 


E  N  G  L  I  S  H      L  A  W.  75 

afe  of  the  bifliops  to  gain  and  govern  the  clergy,  united  all     CH  \  P.  II. 
:helr  powers  to  cftablifh  a  dominion  over  the  laity;  and  no      wn  i  iam 
Dccafion  was  let  pafs  in  which  any  c^  them  could  fnatch  an  the 

advantage.  ^ 

Henry  I.  being  feated  on  the  throne  by  a  doubtful  title,  JOHN. 
thought  it  prudent  to  gain  the  clerical  part  of  his  fubjedts 
by  feme  concerTions.  Stephen,  who  owed  his  authority 
entirely  to  them,  went  further.  By  thefe  means  they  ac- 
quired fuch  confirmed  ftrength  and  habitual  reverence  from 
the  people,  that,  notwithftandiiig  all  the  power  of  Henry  II. 
and  the  fpiritwith  which  he  alTerted  his  fovereignty  and  inde- 
pendencCj  the  conteft  he  had  with  Becket  tended  to  an  ifTue 
direclly  contrary  to  that  which  he  had  promifed  himfelf ;  fo 
that,  after  fome  concefTions  and  connivance,  to  which  he 
fubmitted  in  fits  of  repentance,  his  reign  ended  in  a  firm 
eftablifhment  of  the  clergy  in  moft  of  their  extraordinary 
claims  of  privilege  and  jurifdi<Slion. 

The  contefl:  that  Henry  II.  had  with  Becket  concern- 
ing the  limits  of  ecclefiaftical  power,  fills  up  a  great  part 
of  that  king's  reign.  To  give  weight  to  his  fide  of  the 
contefl,  and,  inftead  of  debating,  to  efFe£l  a  clear  dccifion, 
Henry  procured  an  a£l  of  the  legiflature  formally  enabling 
the  principal  points  of  controverfy  for  which  he  contended. 
This  was  the  famous  Confiltutions  of  Clarendon. 

At  a  great  council  held  at  Clarendon,  A.  D.  11 64,  in  Cenaitiulons 
the  loth  year  of  his  reign,  a  code  of  laws  was  brought  ofciaitndon. 
forward  by  the  king,  under  the  title  of  the  ancient  cujloms  of 
the  realm  ;  and  as  Becket  had  folenmly  promifed  he  would 
obferve  what  were  really  fuch,  the  king  procured  the  prin- 
cipal propofitions  in  difpute  to  be  ena61ed,-and  declared  by 
the  council  under  that  denomination.  Nothing  will  enable 
us  to  judge  fo  well  of  the  pretenfions  of  the  clergy,  as  a 
perufril  of  thcfe  Conftitutions ;  they  fiiall  therefore  be  Rated 
at  lencrth.  Thev  are  contained  in  fixteen  articles  ;  ten  of 
which  were  confidered  by  the  fee  of  Rome  as  fo  hollile  to  the 
rights  of  the  clergy,  that  pope  Alexander  in  full  confiflory 


HISTORY     OF      THE 

pafled  a  folemn  condemnation  on  them  ;  the  other  fix  he 
WILLIAM      toleratedy  not  as  good^  hut  lefs  evil.     Thcfe  fix  articles  were 

CONQUEROR    ^^^  ^^'  ^^^'  ^^^^'  '3^^,  14th,  and  l6th. 

to  The  2d,  Churches  belonging  to  the  fee  of  our  lord  the 

^  *  *  king  cannot  be  given  away  in  perpetuity,  M-'Ithout  the  con- 
fent  and  grant  of  the  king.  6th,  Laymen  ought  not  to  be 
accufed,  unlefs  by  certain  and  legal  accufors  and  wltnefles, 
in  prefence  of  the  bifhop,  fo  as  that  the  archdeacon  may  not 
lofe  his  right,  nor  any  thing  which  fliould  thereby  accrue 
to  him  5  and  if  the  offending  perfons  be  fuch  as  none  will 
or  dare  accufe  them,  the  fheriiT,  being  thereto  required  by 
the  bifhop,  fliall  fwear  twelve  lawful  men  of  the  vicinage  or 
town  before  the  bifhop,  to  declare  the  truth  according  to 
their  confcicnce.  i  ith,  Archblfliops,  biiliops,  and  ail  dig- 
nified clergymen  \  who  hold  of  the  king  in  chief,  have  their 
pofleiTions  from  the  king  as  a  barony,  and  anfwer  thereupon 
to  the  king's  juftices  and  oflicers,  and  follow  and  perform 
all  royal  cuftoms  and  rights,  and,  like  other  barons,  ought 
to  be  prefent  at  the  trials  of  the  king*s  court,  with  the  ba- 
rons, till  the  judgment  proceeds  to  lofs  of  members,  or 
death.  13th,  If  any  nobleman  of  the  realm  fliall  forcibly 
refift  the  archbiOiop,  bifhop,  or  archdeacon,  In  doing  juflice 
upon  him  or  his,  the  ,king  ought  to  bring  them  to  juflice  ; 
and  \i  any  fhall  forcibly  refift  the  king  in  his  judicature, 
the  archbifhops,  bifhops,  and  archdeacons,  ought  to  bring 
him  to  juftice^  that  he  may  make  fatisfaclion  to  our  lord 
the  king.  14th,  The  chattels  of  thofe  who  are  under  for- 
feiture to  the  king,  ought  not  to  be  detained  in  any  church 
or  church-yard  agalnft  the  king's  juftice,  becaufe  they  be- 
long to  the  king,  whether  they  are  found  within  churches, 
or  without.  i6th.  The  fons  of  villains  ought  not  to  be 
ordained  without  the  confent  of  their  lord,  in  whofe  lands 
they  are  known  to  have  been  born. 

Thus  was  the  pope  pleafed  to  tolerate  fuchof  thefe  arti- 
cles as  cither  did  not  at  all  affect  the  clerical  ftate,  or  rather 

*  Souniveija  perjonah  conftrucd  by  Lord  Liuclton  in  his  Hen.  II,  vol.  4.  370. 

contributed 


E  N  G  L  I  S  H      L  A  W.  77 

contributed  to  aid  and  fupport  itj  and  were  thrown  in,     CHAP.  ii. 
probably,  to  qualify  and  temper  thofe  which  were  evidently     william 
hoftile  to  the  ecclefiaitical  fovereigmy.     The  ten  which  roNoir?ROR 
were  condemned  by  the  pope,  were  as  follow.  to 

The    I  ft,    If  any    difpute  fhall    arife  concerning    the 
advowfon  and  prefentation  of  churches  between  laymen,  or 
between  ecclefiaftics  and  laymen,  or  between  ecclefiaftics, 
let  It  be  tried  and  determined  in  the  court  of  our  lord  the 
king.     3d,  Ecclefiaftics  charged  and  accufed  of  any  matter, 
and  being  fummoned  by  the  king's  j  uftice,  ftiall  come  into  his 
court  to  anfwer  there  concerning  that  which  it  fliall  appear 
to  the  king's  court  is  cognizable  there  ;  and  fhall  anfwer  in 
the  ecclefiaftical  court  concerning  that  which  it  ftiall  appear 
is  cognizable  there;  fo  that  the  king's  juftice  ftiall  fend  to  the 
court  of  holy  church,  to  fee  in  what  manner  the  caufe 
fhall  be  tried  there  ;  and  if  an  ecclefiaftic  ftiall  be  convicted, 
or  confefs  his  crime,  the  church  ought  not  any  longer  to 
give  him  protedlion.     4th,  It  is  unlawful  for  archbiftiops, 
bifhpps,  or  any  dignified  clergymen  of  the  realm,  to  go 
out  of  the  realm  without  the  king's  licence ;  and  if  they 
go,  they  ftiall,  if  it  fo  pleafe  the  king,  give  fecurity  that 
they  will  not,  either  in  going,  ftaying,  or  returning,  pro- 
cure  any  evil  or  damage  to  the  king,  or  kingdom.     5th, 
Perfons  excommunicated  ought  not  to  give  any  fecurity 
by  way  of  depofit,  nor  take  any  oath,  but  only  find  gage 
and  pledge  to  ftand  to  the  judgment  of  the  church,  in 
order  to  abfolution.     7th,  No  tenant  in  capite  of  the  king, 
nor  any  of  the  officers  of  his  houfhold,  or  of  his  demefne, 
ftiall  be  excommunicated  ;   nor  ftiall  the  lands  of  any  of 
them  be  put  under  an  interJi6):,  unlefs  application  ftiall  firll 
have  been  made  to  our  lord  the  king,  if  he  be  in  the  king- 
dom, ami  if  not,  to  his  juftice,  that  he  may  do  right  con- 
cerning fuch  perfon  ;  and  in  fuch  manner,  as  that  which 
ftiall  belong  to  the  king's  court  ftiall  be  there  determined, 
and  what  ftiall  belong  to  the  ecclefiaftical  court  ftiall  be 
fent  thither  to  be  there  determined.     8th,  Concerning  ap- 
peals. 


7^  HISTORYOFTHE 

CHAP.  11.     peals,  if  any  fhall  arife,  they  ought  to  proceed  from  the 

WILLIAM      archdeacon  to  the  hilhop,  and  from  the  bidiop  to  the  arch- 

tbe  bifhop  :   and  if  the  archbiihop  fliall  fail  in  doin?  iufiice, 

CONQUEPv^R     ,^^„,^,,  ^-' 

f^  the  caufe  mall  at  laft  be  brought  to  our  lord  the  king,  that, 

J  '       by  his  precept,  the  difpute  may  be  determined  in  the  arch- 

bilhop*s  court ;  fo  that  it  ought  not  to  proceed  any  further 
without  the  king's  confent.     9th,   If  there  {hall  arife  any 
difpute  between  an  ecclefiaftic  and  a  layman,  or  between  a 
layman  and  an  ecclefiaftic,  about  any  tenement  which  the 
ecclefiaftic  pretends  to  hold  //;  eleemcfynay  and  the  layman 
pretends  to  be  a  lay  fee,  it  fhall  be  determined  by  the  judg- 
ment of  the  king's  chief  juftice,  upon  a  recognition  of 
twelve  lawful  m*i,  utrum  tenementum  fit  pcrtinens  ad  ehe- 
mojyrium^  five  ad  fcedum  la'icum.     And  if  it  be  found  to  be 
in  eleemofynd)  then  it  Jftiall  be  pleaded  in  the  ecclefiaftical 
court  *,  but  if  a  lay  fee,  then  in  the  king's  court,  unlefs 
both  parties  claim  to  hold  of  the  fame  biihop  or  baron  : 
and  if  they  do,  then  the  plea  fhall  be  in  his  court  j  pro- 
vided, that  by  fuch  recognition,  the  party  who  was  firft 
feifed  fhall  not  lofe  his  feifin  till  the  plea  has  been  finally 
determined,     icth,  Whofoever   is  of  any  city,  or  caftle, 
or  borough,  or  demefne  manor  of  our  lord  the  king,  if 
he  fhall  be  cited  by  the  archdeacon  or    bifhop  for  any 
offence,  and  fhall  refufe  to  anfwer  to  fuch  citation,  may 
be  put  under  an  interdict  \  but  he  ought  not  to  be  ex- 
communicated till  the  king's  chief  officer  of  the  town  be 
applied  to,  that  he  may,  by  due  courfe  of  law,  compel 
him  to  anfv.er  accordingly ;  and  if  the  king's  officer  fliall 
fail  ther-  .n,  fuch  officer  fhall  be  in  mifcricord'id  regis  ;  and 
then  Lhe  bifhop  may  compel  the  perfon  accufed  by  ecclefiafli-- 
cal  juftice.    1 2th,  Pleas  of  debt,  qua  fide  interpofitd  debcnttn-y 
veJ  ahfque  interpofttione  fdei^  whether  due  by  faith  folemnly 
pledged,  or  without  faith  fo  pledged,  belong  to  the  king's 
judicature.     15th,  When  an  archbifhopric,  or  bifhopric, 
or  abbey,  or  priory  of  royal  foundation,  fhall  be  vacant, 
it  ought  to  be  in  the  hands  of  the  king,  and  he  fhall  re- 
ceive 


ENGLISH      X.  A  \y. 

ceive  all  the  rents  and  ifliies  thereof,  as  of  his  demefne. 
And  when  fuch  church  is  iq  be  filled^  the  king  ought  ta     ^^,  .j  ham 
fend  for  the  principal  clergy  thereof,  and  the  ele£lion  ought  tf-c 

to  be  made  in  the  king's  chapel,  with  the  king's  aflent,  and       *  "^To 
the  advice  of  fuch  of  the  prelates  of  the  kingdom  as  he      JOHN. 
fliall  call  for  that  purpofe  " ;  and  the  perfon  ele£l  fliall  there 
do  homage  and  fealty  to  the  king  as  his  liege  lord,  of  lifcj^ 
limb,  and  worldly  honour  (faving  his  order),  before  he  be 
confecrated  ^. 

These  Conftitutlons  were  calculated  to  give  a  rational 
limitation  to  the  fecular  and  ecclefiallical  judicature  ;  and 
fi^rniflied  a  bafis  on  which  thefe  feparate  jurifdidlions  might 
have  been  founded,  without  any  inconvenience  to  the  na-r 
tion,  or  diminution  of  the  temporal  authority;  and  they  were 
with  that  view  confirmed,  A.  D.  1176,  at  a  council  held 
at  Northampton.  But  the  king,  overcome  with  fhamc  for 
the  murder  of  Becket,  with  which  he  was  charged,  and 
ftruck  with,  a  panic  of  fuperftition,  gave  way  to  the  torrent, 
and  endeavoured  to  reconcile  himfelf  to  the  holy  fee  by  an 
ample  concurrence  with  all  its  demands ;  at  leafl  he  defifted 
from  executing  thofe  laws  for  which  he  had  fo  many 
years  been  contending.  It  appears,  moreover,  from  a  letter 
which  he  fent  to  the  pope  by  the  hand  of  Hugo  Peirileo,  the 
legate,  that,  JiotivithJlafJcllKg  the  oppojition  of  the  greateft  and 
iv'ifejl  men  in  his  kingdom,  he  had,  at  the  intercelTion  of  the 
legate,  and  out  of  reverence  and  devotion  to  the  fee  of 
Rome,  made  the  following  conceilions :  That  no  clerk 
{hould,  for  the  future,  be  brought  perfonally  before  a  fe- 
cular judge  for  any  crime  or  tranfgrelTiQn  >"  whatfoever,  ex- 
cept only  for  offences  againft  the  foreft:  laws,  or  in  cafe  of 

"  Dehet  fieri  ehdio  ajfenfu  domini  from  the   Cottonian  manufcript    of 

regis,  it  confilio  per jcnaruni  regni  quas  Bcckcl's  Life  and  Epiftles,   which  is 

«</  h:c  faciendum  locansrit.  probably  the  moi>  ancient  and  corrc^ 

■^  Vid.  Wiik.    Ang.    Sax.  Leg.  p.  copy  of  ihcm. 
3a  1.  and  alio  in  Litt.  Hen.  H.  vol.  4.  >'  Dc  aUquc  fmi-fa^e. 

^14.  a   copy   of  thefc  Conirituiion»< 

a  lay 


CHAP.    TT. 

WILLIAM 

the 

CONCLJEROR 

to 

JOHN. 

80  HISTORY      OF     THE 

a  lay  fee  for  which  lay  fcrvice  was  due  to  the  king,  or  to 
fome  other  fecular  perfon.  He  promifed,  that  any  perfoii 
convi£led,  or  making  confefTion  before  his  juilice,  in  the 
prefence  of  the  bifhop,  or  his  official,  of  having  knowingly 
and  premeditatedly  killed  a  clerk,  fliould,  befides  the  ufual 
punifhment  for  killing  a  layman,  forfeit  all  his  land  of  in- 
heritance for  ever  *.  He  alfo  promlfed,  that  clerks  (hould 
not  be  compelled  to  fubmit  to  the  trial  by  duel ;  and  more- 
over, he  promifed  not  to  retain  in  his  hands  vacant  bi- 
fhoprics  or  abbeys  beyond  the  term  of  one  year,  unlefs  from 
urgent  neceffity,  and  evident  caufe  of  delay,  not  falfely  pre- 
tended *.  It  is  faid  ^y  that  Henry,  by  charter,  granted  to 
the  clergy  the  cognizance  of  caufes  matrimonial ;  but  nei- 
ther this  nor  any  other  of  the  foregoing  concefTions  were 
enacted  by  authority  of  parliament,  during  any  part  of  this 
king's  reign  ;  nor  did  he  himfelf  obferve  them,  except  in  not 
compelling  criminal  clerks  to  appear  before  a  lay  judge,  as 
before  ftipulated,  and  in  exempting  them  in  all  cafes  from 
the  trial  by  duel.  The  ftatutes  of  Clarendon  concerning 
ecclefiadical  matters  fubfifted  unrepealed  and  confirmed  ; 
but  were  fufpended  in  part  by  a  temporal  connivance  of 
the  executive  power  '^. 

The  eftablifhment  which  the  clergy  gained  in  this  reign 
was  not  weakened  in  thofe  of  his  fucceflbrs.  Richard  I.  was 
redeemed  from  his  captivity  by  the  aid  of  his  fubjecls  ; 
among  whom  the  zeal  of  the  ecclefiaftics,  who  readily 
converted  their  plate  and  other  valuables  to  the  ranfom  of 
their  king,  was  particularly  diftinguifhed.  This  gave 
them  every  thing  to  hope  from  the  king's  gratitude  ;  nor 
were  they  dlfappointed  in  their  expectations.  The  feudal 
fubje6lion  under  which  John  laid  his  kingdom  to  the  pope, 

«  What  extraordinary  penalty  was  ^  Sir  Roger  Owen  MSS.  p.  397. 

thir,  when  laymen,  at  that  time,  for-  '  Sir  Roger  Owen  fays,  the  k:ng 

feitcd  th<:ir  lands  in  cafes  of  felony  ?  obtained  a   parliamentary   repeal    of 

*  Wilk.  Leg.  Ang.   Sax.    p.  331.  the  Conftiiutionsof  Clarendon.  MSS. 

Litt.  Hii^  Hen.  11.  vcl.  41  265.  196.  p.  404. 

ratified 


ENGLISH      LAW.  8i 

ratified  every  clerical  innovation,  and  feemed  to  juflify  the     chap.   ii. 
di{lin6lions  before  claimed  by  the  churchmen.  WILLIAM 

In  this  manner  did  the  influence  of  the  civil  and  canon         ^  ^^^ 

CONQUEROR 

law  gradually  increafe ;  but  thefe  laws  were  not  confined  to  to 

the  ecclefiaftical  courts,  where  they  were  profeficdly  the  only  •' 
rules  of  decifion  ;  they,  by  degrees,  interwove  thcmfelves 
into  the  municipal  law,  and  furniflied  it  with  helps  towards 
improving  its  native  (lock.  The  law  of  perfonal  property 
was  in  a  great  meafure  borrowed  from  the  imperial,  and 
the  rules  of  the  defcent  of  lands  wholly  from  the  canon 
law  :  to  thefe  might  be  added  many  other  inftances  of  imi- 
tation, too  long  to  be  enumerated  in  the  prefent  work. 

These  two  laws,  as  the  Norman  had  before,  obtained 
here  by  fufferance  and  long  ufage.  Such  parts  of  them  as 
were  fitting  and  expedient,  were  quietly  permitted  to  grow 
into  pra£tice ;  while  fuch  as  were  of  an  extravagant  kind 
occafioned  clamour,  were  called  ufurpations,  and,  as  fuch, 
were  ftrongly  oppofed.  What  was  fufFered  to  eftablifh  it- 
felf,  either  in  the  clerical  courts,  or  by  mingling  with  the 
fecular  cuftoms,  became  fo  far  part  of  the  common  law  of 
the  realm,  equally  wdth  the  Norman ;  for  though  of  later 
birth,  it  had  gained  its  authority  by  the  fame  title,  a  length 
of  immemorial  prefcription  "^^ 

It 

^  This  is  all  that  1  thought  ncccf-  the  fame  ccnfure  would  be  at  Icaft  as 

}a;y  to   llate  con.ei-niug  the   prcva-  applicable  In  onr  as  in  the  other  cafs. 
lencc    or   the    civil   and    canon    law,  A    comparifun    of   our   law    v/ith 

and    the    influence    they    both    had  ihoic  two  fyllcms  or  junfprudencc, 

upon    the    common    cuftom    of    the  would,  in  my  mind,  be  an  enquiry  oc 

realms  and   I   have  heard   no  (om-  equal    cuiiofny,  and   mUth  more  to 

plaint,  as  in  the  cafe  of  fcuds,    that  the    purpofe^    of    a    hillory    t»f  the 

ihis  pHVt  of  the  work   is  at   all    dc-  KngliOi  lav/,  than   the   fame  procefs 

tec\ivc  :  indeed,   I   fhould  not  won-  when  applied  to  the  lo-much-admired 

dcr,  if  fome  thought  even  this  fhort  fyltems  of  foreign  feuds.    Thisisfui- 

fkctch  too  prolix  ;  fo  much  are  our  ficiectly  evinced   by   the  curfory  rc- 

Itudies  and   opinions  direftcd   by  fa-  marks  alicady  made  refpefling  thcfc 

fhloM.    But  it  feems  to  me,  if  the  il-  two  laws.     It  turthcr  appears  by  the 

luflration  of  ou:  ancient  law  had  been  woks  of   GlaoviUe,    Bradcn,    and 

the  folc  objcdl  of  attention,  and  not  a  other    old    authors,    who    certainly 

prcpoflTeflion    in    favour    of   a    topic  wrote  the  law  of  their  time,  and  not 

that  happened  to  be  in  vogue,  that  their  own  iavcotion?/:;}  has  been  ico 

Vol.  I.  C  oUts 


t2  HISTORYOFTHE 

c  H  A  p.  II,         It  had  been  a  very  ancient  cuftom  among  the  Normans, 

WILLIAM      ^°^^   ^"  ^^^^^*  °^^'^^  country  and  hi  France,    to  try  titles  to 
tf^e  land,  and  other  queftions,  by  d/tel.     When  William  had 

CONQUEROR         v  •       .    ,         u-  •   i         n-         r  .•  n       ,, 

lo  ordamed  that  this  martral  practice  or  his  own  country  mould 

J     ^  *"*•       be  obferved  here  in  criminal  trials,  it  became  very  eafy  to 

Of  trial  by  dutl  introduce  it  into  civil  ones;  and  being  only  ufed  in  the 

in    civil    quciti-  .  •       •     i       ,  i  i  i  •  r     i 

ons.  curia  regis,  it  had  not,  among  the  other  novelties  or  that 

court,  as  it  certainly  would  have  had  in  the  county  court, 
or  any  other  of  the  ancient  tribunals  of  Saxon  original,  the 
appearance  of  fo  fingular  an  innovation. 

With  all  its  abfurdity,  this  mode  of  trial  was  not 
without  fome  marks  of  a  rational  reliance  on  teftimony, 
and  vouchers  for  the  truth  of  what  was  in  difpute  ;  for  it 
was  never  awarded  without  the  oath  of  a  credible  witnefs, 
who  would  venture  his  life  in  the  duel  for  the  truth  of 
what  he  fwore.  "  I  am  ready,"  fays  the  party  litigant, 
."  to  prove  it  by  my  freeman  John,  whom  his  father  on 
**  his  death-bed  enjoined,  by  the  duty  he  owed  him,  that 

often  and  too  inconfidcratcly  faid  j  NotwitTiftanding  thij  clofe  affinity 
and  It  is  confirmed  by  marks  of  con-  between  the  civil  and  canon  law  and 
formity  or  imitation,  in  inftances  our  own,  I  thought,  that  to  enter 
where  no  fufpicion  of  fabrication  was  into  a  particular  comparifon  of  fuch 
ever  entertained.  parts  of  thofc  law?  as  fcemcd  mere 
The  civil  and  camn  law  frcm  In  remaikably  to  relate  to  the  common 
a  particular  manner  to  be  objetils  of  law,was  an  enquiry  not  ftridlly  with- 
curiofity  to  an  Englifh  lawyer  •,  they  in  the  compafs  of  the  prefcnt  Hiftory; 
have  long  been  domcfticated  in  this  and  therefore  I  declined  it,  for  reafons 
country;  were  taught  at  our  univer-  fimilar  to  thofe  I  have  before  given 
fities  as  a  part  of  a  learned  ediica-  with  regard  to  foreign  frud?. 
tion,  and  the  road  to  academic  ho-  1  cannot,  however,  leave  this  fub- 
Dours;  they  have  entered  Into  com-  jc<£l  without  expreffing  a  wifli,  that 
petition  with  the  common  law  ;  and,  the  early  connex-'on  of  our  law  W'th 
though  unfuccef^ful  in  the  ftrugglr,  the  civil  and  canon  law  wasmorc  fully 
were  ilill  thought  worthy  to  be  re-  invcl\igatcd  than  it  has  yet  been.  The 
tained  in  our  ecclcfiaOical  courts,  hii^ory  and  prefent  Hate  of  thofe  tv/o 
and  there  became  the  model  by  which  hws  in  this  country,  and  of  our  "wn 
our  nations!  canons  and  provincial  national  canon  law,  f'eems  alfo  to  have 
conllitutions  were  framed.  Thtlc  been  not  yet  fufficiently  developed, 
two  laws,  therefore,  Rand  in  a  much  To  this  it  maybe  anfwered,  that  there 
nearer  relation  to  the  CQmmon  law,  i<;  at  li-aft  as  great  want  of  curiofity 
than  the  feudal  law  of  Lombardy,  or  upon  thi?  topic,  as  of  inormation  ; 
of  any -foreign  country;  none  of  which  and  I  am  fare  I  do  not  pretend  to  de- 
can  boaft  any  prctenfioas  equal  to  tcrmine  which  of  thefc  is  the  caufe, 
thofe  abovcracntioned.  and  which  the  cfle^'^,  of  the  other. 


E  N  G  L  I  S  H      L  A  W.  83 

"  if  at  any  time  he  fhould  hear  of  a  fult  for  this  land,  he     chap.   h. 
"  {hould  hazard  himfelf  In  a  duel  for  it.  as  for  that  which  his     ZiTTfT^ 

VV  1  L  L  I  A  M 

"  father  had  feen  and  heard  •"."     Thus  the  champion  of  the  tht 

demandant  was  luch  a  one  as  might  be  a  ht  witneis  5  and  \r, 

on  that  account  the  demandant  could  never  engage  in  the      J  O  H  K. 
combat  himfelf:  but  the  other  party,  who  was  defendant, 
or  tenant,  in  the  fuit,  might  engage  either  in  his  own  per- 
fon,  or  by  that  of  another. 

It  is  difficult  to  fay  v/hat  matters  were,  at  one  time, 
fubmitted  to  this  mode  of  trial.  Perhaps  at  firfl  all  que- 
ftions  of  fa6t  might,  at  the  option  of  the  demandant,  have 
been  tried  by  duel.  In  the  reign  of  Henry  II.  it  was  de- 
cifive  in  pleas  concerning  freehold  ;  in  writs  of  right ; 
in  warranty  of  land,  or  of  goods  fold  ;  debts  upon  mort- 
gage or  promife  ;  fureties  denying  their  furetyfiiip  ;  the 
validity  of  charters  *,  the  manumiflion  of  a  villain  ;  que- 
flions  coiicerning  fervices  :  all  thefe  might  have  been  tried 
by  duel  ^ 

Notwithstanding  the  general  bent  of  this  people 

to  admit  the  propriety  of  a  trial  fo  fuitable  to  their  martial 
genius,  there  muft  have  been  men  of  griivity  and  learning 
amongft  them  at  all  times;  and  perfons  of  that  charadler 
would  always  reprobate  fo  inefFejflual  and  cruel  a  proceed- 
ing.    Confiderations  of  this  kind  at  lad  effeded  a  change. 

We  find  in  the  reign  of  Henry  II.  that  many  quellions  of  trial  by  jury, 
of  fa£t:  relating  to  property  were  tried  by  twelve  liberos  et 
legates  homines  j urates,  fnuorn  to  fpeak  the  truth  ;  who  were 
fummoned  by  the  flieriff  for  that  purpofe.  This  tribunal 
was,  in  fome  cafes,  called  qjfifay  from  aJifidere^  as  it  is  faid, 
becaufe  they  fat  together  ;  though  it  is  mod  probable,  and 
indeed  feems  intimated  by  the  manner  in  which  Glanvllle 
often  exprefles  himfelf,  that  it  was  emphatically  fo  called 

*  Arlollo,  in  the  true  fpirit  of  the  Col  tejlimcnioy  it  W,  che  Varme  fien«  • 

old  jurifprudence,  as  well  as  of  chi-  Che  cray   e  in  egni  lempSy  che  ti  piacCy 

valry,  makes  Rinaldo  refer  to  the  Te  n' abbiano  a  far  prova  piu  fverace. 
trial   of    arms,    as   equal    to   if    not  Orl.  Fur.  cant.  31.  ftaoz.  lox. 

Jlnnger  than  that  by  tcrtimony.  *  Claov.  pafliim. 

G  2  from 


84  HISTORY     OFTHE 

CHAP.   ir.     from  the  ajfifa  (as  laws  were  then  termed),  by  which  the 
WILLIAM      apphcation  of  this  trial  was,  in  many  inftances,  ordained. 

th-;  On  other  occafions  this  trial  was  called  iurata^  from  the 

CONQUEROR     .        ^  .        ^  .  r    i  •        V^r    u  •    •         r 

fy  juratos,  OX  juraiores,  who  compoled  it.     Of  the  origui  of 

JOHN.      xhU  trial  by  twelve  jurors,  and  the  introduction  of  it  into 

this  country,  we  Ihall  next  enquire. 

The  ix\?\ per  duodecim  juratojy  called  namhda^  had  ob- 
tained among  the  Stcanditmvians  at  a  very  early  period  •,  but 
having  gone  into  difufe,  was  revived,  and  more  firmly  efta- 
bliflicd,  by  a  law  of  RcigiicriiSy  furnamed  Lodbrogy  about 
the  year  A.  D.  820^.  It  was  about  feventy  years  after 
this  law,  that  Rollo  led  his  people  into  Normandyy  and, 
among  other  cuftoms,  carried  with  him  this  method  of 
trial  j  it  was  ufed  there  in  all  caufes  that  were  of  fmall 
importance.  When  the  Normans  had  tranfplanted  them- 
felves  into  England,  they  were  dcfirous  of  legitimating 
this,  as  th^y  did  other  parts  of  their  jurifprudence  ;  ajid  they 
endeavoured  to  fubftitute  it  in  the  place  of  the  Saxon y^^^- 
ioresy  to  which  tribunal  it  bore  fome  fliew  of  affinity. 

The  earlieft  mention  we  find  of  any  thing  like  a  jury^ 
was  in  the  reign  of  William  the  Conqueror,  in  a  caufc 
upon  a  queftion  of  land,  where  Gundulpky  biihop  of  Ro- 
chejlery  was  a  party.  The  king  had  referred  it  to  the 
county,  that  is,  to  thcfcclatoresy  to  determine  in  their  county 
court,  as  the  courfe  then  was,  according  to  the  Saxon 
eftablifliment ;  and  the  feBatores  gave  their  opinion  of  the 
matter.  But  Odoy  bifliop  of  Bnymxy  who  prefided  at  the 
hearing  of  the  caufe,  not  fatisfied  with  their  deter- 
mination, direfted,  that  if  they  were  ftill  confident  that 
they  fpoke  truth,  and  perfifted  in  the  fame  opinion,  they 
fliould  chufe  twelve  from  among  themfelves,  who  fhould 
confirm  it  upon  their  oaths  \  It  feems  as  if  the  bifliop 
had  here  taken  a  ftep  which  was  not  in  the  ufual  way 
of  proceeding,  but  which  he  ventured  upon  in  confor- 
mity with  the  practice  of  his  own  country  ;  the  general 

«  Hltk.  Thcf.  DiflT.  Ep.ft.  38,  39,  40.       ^  Trxt.  Roff.  apud  Hickr^,  ut  fup. 

law 


E  N  G  L  I  S  H      L  A  W.  S§ 

law  of  England  being,  that  a  judicial  enquiry  concerning  c.  H  a  P.  17. 
a  hCt  fliould  be  collected  per  omnes  comitatus probes  homines,  vv  I L  L I A  M 
Thus  it  appears,  that  In  a  caufe  where  this  fame  Odo  was  '^e 

one  party,  and  archbilliop  Lanfratic  the  other,   the  king  u, 

directed  totum  com'itatuni  confrdtre :  that  all  men  of  the  ^  * 
county,  as  well  French  as  Englifh,  (particularly  the  latter) 
that  were  learned  in  J:he  law  and  cuftom  of  the  realm, 
fliould  be  convened  :  upon  which  they  all  met  at  P'uundena^ 
and  there  it  was  determined  ab  o minibus  illts prohis^  and 
agreed  and  adjudged  a  toto  com'itatu.  In  the  reign  of  Wil- 
liam Rufus,  in  a  caufe  between  the  mpnaflery  of  CroyIa?id 
and  Evan  Talhois.  in  the  county  court,  there  is  no  men- 
tion of  a  jury;  and  fo  late  «s  the  reign  of  Stephcti,  in  a 
caufe  between  the  monks  of  Chrift-Church,  Canterbury,  and 
Radulph  Picoty  it  appears  from  the  a£ls  of  the  court  *",  that  it 
was  determined  p^r  judicium  totius  comitatus'. 

This  trial  by  an  indefinite  number  oifeHatores  or  fttitors 
of  court  continued  for  many  years  after  the  Conqueit : 
thefe  are  the  perfons  meant  by  the  terms  pares  curia,  and 
judicium  parium,  fo  often  found  in  writings  of  this  period 
Succeflive  attempts  gradually  introduced  jurors  to  the  ex- 
clufion  of  the  feSlator^s ;  and  a  variety  of  pracfiice,  no 
doubt,  prevailed  till  the  Norman  law  was  thoroughly  efta- 
bliflied  *.  It  was  not  till  the  reign  of  Henry  II.  that  the 
trial  by  jurors  became  general ;  and  by  that  time,  the 
king's  itinerant  courts,  in  which  there  were  no  pares  curio'^ 
had  attraded  fo  many  of  the  country  caufesj  that  the 
feclatores  were  rarely  called  into  a6lion  f. 

The  fudden  progrefs  then  made  In  bringing  this  trial  in-  or  (ria^  by  tfc.t 
to  common  ufe,  muft  be  attributed  to  the  law  enaded  by   ^^'^^' 
that  king.     As  this  law  has  not  come  down  to  us,  we  are 
ignorant  at  what  part  of  his  reign  it  was  pafled,  and  what 
-was  theprecife  extent  of  its  regulation  :  we  can  only  col- 

*^  Bib    Cott.Fauf>>nn.  A.  3,  II.  31.  bus    fuhmrvemus.     Lee.  31. 

1  Hickcs  Thcf.  Dinr.  Ep.  36.  f   Pel  Ions  of  «    nrw  chara5Ver, 

The    tollowing    lav/  o*"    H.n.    I.  under  the  name  of  'efla  ?n(\    If^la'.:- 

feems  to  be  infupport  of   the  ancient  ret,  in  a  fnhf^qiieot  pcrioil,  tn-ide  a 

•  j^^'  y"""f"''l'-'  '£»»ARKssro«  n-crlTary  p-t  of  mod  anions  brought 

j-udicandus  ejl,  et  eJH'Aem  pr:i-inctrr  ;  in  the   king's  courts,  as  will  be  feco 

FEREGRiNA  I'crQ  judkia  m:Jis  tmr.i^  hercaUer. 

lea 


86  HISTORY      OFTHE 

CHAP.   TT.     lecl  fucb  Intimation  as  is  given  us  by  cotemporary  autho- 
WILLIAM     ^^^^^s,  the  chief  of  which  is  Glanville,  who  makes  frequent 

i'^<^  allufions  to  it.     It  is  called  by  him  afftfa.  as  all  laws  then 

CONQUEROR  ,  ,.  n-       -  .         -  ,  jj 

to  were,  and  regaLs  conjiitutio ;  at  other  times,  regale  quoddam 

J  benejictumy   clementid  principis  de  coucillo  procerum  popuUs 

indultiitn.  It  feems  as  if  this  law  ordained,  that  all  qucilions 
oi fe'iftn  of  land  fliould  be  tried  by  a  recognition  of  twelve 
good  and  lawful  men,  fworn  to  fpeak  the  truth ;  and  alfo 
that  in  queilions  of  right  to  land,  the  tenant  might  ele6l  to 
have  the  matter  tried  by  twelve  good  and  lawful  knights  in- 
ftead  of  the  duel.  It  appears  that  fome  incidental  points  In  a 
caufe,  that  w^ere  neither  queftions  of  mere  rights  nor  oifeiftn 
of  land,  were  tried  by  a  recognition  of  twelve  men  ;  and  wc 
find  that  in  all  thefc  cafes,  the  proceeding  was  called /^r  ajjt' 
faniy  and  per  recngnitiofiem  ;  and  the  perfons  compofing  It 
were  called  juratores^  juratiy  recognitores  ajfiftz ;  and  col- 
lectively c[[fifa,  and  recogn'itio  :  only  the  twelve  jurors  in  que- 
ftions of  right  were  diftlnguiflied  with  the  appellation  of 
magna  ajfifa  \  probably  becaufe  they  were  hnights^  and  were 
brought  together  alfo  with  more  ceremony,  being  not  fum- 
moned  immedlatelv  bv  the  flicriiT,  as  the  others  were,  but 
defied  by  four  knights,  who  for  that  purpofe  had  been  be- 
fore fummoned  by  the  TrieriiT.  We  are  alfo  told,  that  the 
law  by  which  thefe  proceedings  were  directed,  had  ordained 
*  a  very  heavy  penalty  on  jurors  who  were  convifled  of  hav- 

ing fworn  falfely  in  any  of  the  above  inflances  '. 

Thus  far  of  one  fpecies  of  this  trial  by  twelve  men, 
which  was  called  aj/lfa.  It  likewife  appears,  that  the  oath  of 
twelve  jurors  was  reforted  to  in  other  inftances  than  thofe 
provided  for  by  this  famous  law  of  Henry  II.  and  then  this 
proceeding  was  faid  to  be  per  juratam patriay  or  v'lcinetiyper 
inquyitiQncm,  per  jur amentum  legalium  hom'inum*  This  pro- 
ceeding by  jury  was  no  other  than  thatwhichwe  before  men- 
tioned to  have  gained  ground  by  ufage  and  cuflom.  This 
was  fometimes  ufed  in  queftions  of  property  *,  but,  it  ftiould 
feem,  more  frequently  in  matters  of  a  criminal  nature. 

*  Ghn.  lib,  15.  c.  I.  lib.  a.  c.  7.  19. 

The 


ENGLISH      LAW.  ^7 

The  earlleft  mention  of  a  trial  by  jury,  that  bears  a    CHAP.  ii. 
near  refemblance  to  that  which  this  proceeding  became  in    "vfTiuTiXM 

after-times,    is  in  the  Conftitutions  of  Clarendon  before   ^    ,  ^^* 

■CONQUEROR 

fpoken  of.    It  is  there  dire^led,  that,  fhould  nobody  appear  to 

JOHN 
to  accufe  an  offender  before  the  archdeacon,  then  the  fhe- 

rifF,  at  the  requefl  of  the  bifliop,  faciei  jurare  duodecim  le- 
gales  homines  de  vlcinetOyfeu  de  villa ^  qiCzd  inde  veritatem  fe- 
cundum  coiifcientiam  fuam  inanifejiahttnt"^,  Tlie  firft  notice 
of  any  rerogmtiofiy  or  rjjifey  is  likewife  in  thefe  Conftitutions; 
where  it  is  directed,  that,  fhould  a  queftion  arife,  whetlier 
land  was  lay  or  ecclefraftical  property,  recognitione  duodecim 
legalium  hominum  per  capitalis  jttjiitia  confiderationem  termi- 
nabitury  uU-uniy  k^f.^'y  this  was  A.  D.  1164.  Again, 
in  the  ftatute  of  Northampton,  A.  D.  11 76,  (which  is 
faid  to  be  a  republication  of  fome  ftatutes  made  at  Claren- 
don, perhaps  at  the  fame  time  the  before-mentioned  pro- 
vifions  were  made  about  ecclefiaHiical  matters)  the  juftlces 
are  directed,  in  cafe  a  lord  fhould  deny  to  the  heir  the  fei- 
fm  of  his  deceafed  anceftor,  faciant  inde  fieri  recognitionem 
per  duodecim  legates  homines y  qualemfeifinam  dcfun^us  inde  ha- 
hilt  die  qud  fiut  vivus  et  mortuus ;  and  2\{o  faciafit  fieri  re^ 
cognitionem  de  dijfeifinis  faElis  fuper  a/Jtfafny  tempore-  quo  the 
king  came  into  England,  after  the  peace  made  between 
him  and  his  fon.  We  fee  here,  very  plainly  defcribed, 
three  of  the  alFifcs  of  which  fo  much  will  be  faid  hereafter ; 
the  ajjifa  utrum  fasdum  fit  laictnn  an  eccleftafiicum ;  the  ajfifa 
mortis  antecejforis  ;  and  the  ajftfa  fiov^  dljfeifinit.  Again, 
in  the  ftatute  of  Northampton  there  is  mention  of  a  per- 
fon  reclatus  de  murdro  per facramentum  duodecim  militum  de 
hundredoy  7iXi<^  per  facramentum  duodeciin  liherorum  legalium 
hominum. 

Thus  have  we  endeavoured  to  trace  the  origin  and  hi- 
ftory  oithe  trial  by  twelve  menfiuorn  tofpeah  the  truth y  down 
to  the  time  of  Glanville :  a  further  and  more  particular 

»"  Ch.  <3.  °  Ch.  9. 

account 


88  HISTORY      OF      THE 

CHAP.  II.     account  of  it  we  fhall  defer,  till  we  come  to  fpeak  more 
WILL  I A  M     rninutely  of  the  proceedings  of  courts  at  this  time. 

the  Another  novelty  introduced  by  the  Normans,  was 

CONQUf  ROR      ,  „ .  i-        ,  .         ,       ,         •  1    r    1       r  j       u 

to  the  practice  oi  makmg  deeds  with  leals  ot  wax  and  other 

JOHN.       ceremonies  *.     The  variety  of  deeds  which  foon  after  the 

'        **  Conqueft  were  brought  into  ufe,  and  the  divers  ways  in 

which  they  were  applied  for  the  purpofe  of  transferring, 

modifying,  or  confirming  rights,  defcrve  a  very  particular 

notice. 

Deeds  or  writings,  from  the  time  of  the  Conqueft, 
were  fometimes  called  chirographa,  but  more  generally 
charts :  the  latter  became  a  term  of  more  common  ufe, 
^nd  fo  continued  for  many  years  *,  the  former  rather  de- 
noted a  fpecies  of  the  chart^y  as  will  be  feen  prefently. 
Charters  were  executed  with  various  circumftances  of  fo- 
lemnity,  which  it  will  be  necefl'ary  to  confider  :  thefe  were 
the  feal,  indenting,  date,  atteflation,  and  direction,  or 
compellation. 

Charters  were  fometimes  brought  into  court;  either 
the  king's,  or  the  county,  hundred,  or  other  court,  or  into 
any  numerous  afTembly  •,  and  there  the  acl  of  making,  or 
acknowledging  and  perfecling  the  charter  was  performed. 
This  accounts  for  the  number  of  witnefles  often  found  to 
old  charters,  with  the  very  common  addition  oi  cum  mulUs 
aliis.  When  charters  were  not  executed  in  this  public 
manner,  they  were  ufually  attefted  by  men  of  character 
and  confequence  :  in  the  country,  by  gentlemen  and  cler- 
gymen *,  in  cities  and  towns,  by  the  mayor,  bailitT,  or  fome 
other  civil  officer  p. 

The  Anglo-Saxon  pratlice  of  affixing  the  crofs  ftill  con- 
tinued ;  yet  was  not  fo  frequent  as  before ;  but  gave  way 
to  a  method  which  more  commonly  obtained  after  the  Con- 
queft, namely,  that  of  affixing  a  feal  of  ivax.  Seals  of 
wax  were  of  various  colours.  They  were  commonly 
xound  or  oval,  and  were  fixed  to  a  label  of  parchment,  of 

^  Wilk,  Ler.  Sax.  aSp.  p  Mad.  Form.  DifT.  xi, 

to 


ENGLISHLAW.  89 

to  a  filk  ftring  faftencd  to  the  fold  at  the  bottom  of  the     c  h"  •  ^    II. 
charter,  or  to  a  flip  of  the  parchment  cut  from  the  bottom     ^v  i  l  l  I  a  M 

of  the  deed,  and  made  pendulous.     Befides  the  principal  tf-f 

'  ^  .  CONQUEROR 

feal  there  was  fometimes  a  counter-feal,  being  the  private  to 

feal  of  the  party.     If  a  man  had  not  his  own  feal,  or      ^ 
if  his  own  feal  was  not  well  known,  he  would  ufe  that  of 
another ;  and  fometimes,  for  better  fecurity,  he  would  ufe 
both  his  own  and  that  of  fome  other  better  known. 

The  original  method  of  indenting  was  this.     If  a  writ- 
ing confided  of  two  parts,  the  wholfe  tenor  of  it  was 
written  twice  upon  the  fame  piece  of  parchment ;  and,  be- 
tween the  contents  of  each  part,  the  word  chirographum  was 
written  in  capital  letters,  and  afterwards  was  cut  through 
in  the  midfl  of  thofe  letters;  fo  that,  when  the  two  parts 
were  feparated,  one  would  exhibit  one  half  of  the  capital 
letters,  and  one  the  other ;  and  when  joined,  the  word 
would  appear  entire.     Such  a  charter  was  called  chirogra- 
phun.     About  the  reign  of  Richard  and  Johiy  another 
fafiiion  of  cutting  the  word  chirographum  came  into  ufe ; 
it  was  then  fometimes  done  indent-ivifey  with  an  acute  or 
{harp  incifion,  injlar  dentium  ^  *,  and  from  thence  fuch  deeds 
were  called  indenture. 

Charters  were  fometimes  dated,  and  very  commonly 
they  had  no  date  at  all ;  but  as  they  were  always  executed 
in  the  prefence  of  fomebody,  and  often  in  the  prefence  of 
many,  the  names  of  the  witnefles  were  Inferted,  and  con- 
(lituted  a  particular  claufe,  called  his  teflibjis.  The  names 
of  the  witnefles  were  written  by  the  clerk  who  drew  the 
deed,  and  not  by  the  witnefles  themfelves,  who  very  often 
could  not  write.  It  feems,  that  wives  were  fometimes 
witnefles  to  deeds  made  by  their  hufbands  *,  monks  and 
ether  religious  perfons  to  deeds  made  by  their  own  houfes  ; 
even  the  king  is  found  as  witnefs  to  the  charters  of  private 
^en"";  and  in  the  time  of  Richard  and  John,  it  came  In 

*»  Marl   Form.  Dlfl".  14,  a$,  19.  '  Ibid.  31. 

prac- 


po 


HISTORY      OF     THE 


CONQUEROR 
to 


CHAP.  U.     practice  for  him  to  attcfl  his  own  charters  himfelf  in  the 

W I L.  L I A  M     words  lejle  meiffos. 

tf^e^^^^  Charters  were  ufually  conceived  in  the  ftile  of  a  letter, 
and,  at  the  beginning,  they  ha<:l  a  fort  of  dire£lion,  or  com- 
j  O  H  N.  pejlation.  Thefe  were  various.  In  royal  charters,  it  was 
fometimcs,  Gmmhus  homlnihus fu'is  Francis  isf  Anglis  :  in  pri- 
vate ones,  fometimes,  ommhtts  Ja}iclts  ccclefia:  jillis ;  but 
more  commonly,  Jc'iant  prafentes  etfiituri^  or  omnibus  ad 
qucs prafcntes  liiera,  Slc, 

Thus  far  of  the  circumflances  and  folemnities  attendin^j 
the  execution  of  charters.     Let  us  now  confider  the  dif- 
ferent kinds  of  them ;  and  it  will  be  found,  that  as  they 
were  called  chirographa^  or   indentura^  from  their  parti- 
'  cular  fafhion,  fo  they  received  other  appellations  expref- 

five  of  their  efFc61:  and  defign.  A  charter  was  fometimes 
called  convention  concordia^  Jinaiis  conco7'dia,  TLndJina/is  con- 
vention There  were  liMo  feoffment Sy  demifes  for  life  and  for 
yearsy  exchanges^  mortgages,  partitions,  releafesy  and  confir- 
mations ^ 

Con  VENT  10  and  concordia  had  both  the  fame  meaninf>", 
and  fignificd  fome  agreement,  according  to  which  one  of 
the  parties  conveyed  or  confirmed  to  the  other  any  lands, 
or  other  rights. 
Of  fcofimcnt.  Qp  ^j]  charters  the  mofl  confiderable  was  2Lfeoffnient.  After 
the  time  of  the  Conquefl:,  whenever  land  was  to  be  pafled  in 
fee,  it  was  generally  done  by  feoffment  aiid  delivery  or  livery 
of  feifm  ".  This  might  be  without  deed  j  but  the  gift  was 
ufually  put  into  writing,  and  fuch  inftrument  was  called 
charta  feoff ameiUi.  A  feoffment  originally  meant  the  grant 
oiz-feud  ox  fee ;  that  is,  a  barony  or  knight's  fee,  for  which 
certain  fervices  were  due  from  the  feoffee  to  the  feoffor : 
this  was  the  proper  fcnfe  of  the  word  :  but  by  cuflom  it 
came  afterwards  to  fignify  alfo  a  grant  of  a  free  inheritance 
to  a  man  and  his  heirs,  referring  rather  to  the  perpetuity  of 

»  Mad.  Form.  DilT.  32.  »  Ibid.  3.  "  Wilk.  Leg.  Sax.  289. 

cftate 


ENGLISH      LAW.  91 

eftate  than  to  the  feudal  tenure.     The  words  of  donation     CH  a  p.  IF. 
were  generally,    dedlfe,   coTiceffiJp,  confirmdjje,  or   dondjfe,      ^yiLLIAM 
fome  one  or  other  of  them.     It  was  very  late,  and  not  till  tj^c 

the  reign  of  Pxichard  II.  that  the  fpecific  i&rmfeoffavi  was  10     ^ 

ufed.     Thefe  feoffments  were  made/>ro  homcigio  et  fervitiof      JOHN. 
to  hold  of  the  feoffor  and  his  heirs,  or  of  the  chief  lord. 

At  this  early  period  feoffments  were  very  unfcttkd  in 
point  of  foim  J  they  had  not  the  feveral  parts  which,  in 
after-times,  they  were  expe6i:ed  regularly  to  contain.  The 
words  of  limitation,  to  convey  a  fee,  whether  abfolute  or 
conditional,  were  divers.  A  limitation  of  the  former  was 
fometimes  worded  thus  :  to  the  feoffee  et  fuis ;  or  fuis pofl 
ipfutrifjure  kareditario  perpetue  pojjideridum;  otfibi  et  h»£r€' 
d'lbus  fills  vel  ajfignatis  :  of  the  latter  thus  :  Jihi  et  hxredihus 
precede nt'ihus  ex prad'iHd  :  Richardo  et  tixori  fua  et  ha^rcdibus 
ftiis,  qui  de  eddem  veniunt :  Jihi  et  haredihus^  qui  de  illo  exi- 
bunt :  from  which  divers  ways  of  limiting  eflates  (and 
numberlefs  other  ways  might  be  produced)  it  mull  be 
concluded,  that  no  fpecific  form  had  been  agreed  on  as  ne- 
ceffarily  requifite  to  exprefs  a  fpecific  eftate ;  but  the  inten- 
tion of  the  grantor  was  colle(fled,  as  well  as  could  be,  from 
the  terms  in  which  he  had  chofen  to  convey  his  meaning''. 

It  appears,  that  a  charter  of  feoffment  was  fometimes 
made  by  a  feme  covert,  though  generally  with  the  confent 
of  the  hufband ;  and  a  hufband  fometimes  made  a  feoff- 
ment to  his  wife.  A  feoffment  was  fometimes  expreffed  to 
be  made  with  the  affent  of  the  feoffer's  wife  ^  :  or  of  fuch 
a  one,  heir^  of  the  feoffor ;  or  of  more  than  one,  heirs  of 
the  feoffor  ^ ;  though  in  fuch  cafes,  the  charter  appears  to 
be  fealed  only  by  the  feoffor.  By  the  affent  of  the  wife, 
probably,  her  claim  of  dower  was  in  thofe  days  held  to  be 
barred ;  and  indeed,  when  fuch  feoffment  was  made  pub- 
licly in  court,  it  had  the  notoriety  of  a  fine;  and  might 
confifiently  enough  with  modern  notions,  be  allowed  the 

"  Wilk.  Lfg.  Say.  5,  *  Mad.  Form.  316. 

^MiJ.  Form.  148.  *  Ibid.  319. 

cflicacv 


HISTORY      OF     THE 

efficacy  fince  attributed  to  fines  in  the  like  cafes.  The  aiTcnt 
r.r ,  t»»>,      of  the  heirs  was,  probably,  where  the  land  had  dcfcended 

WILLIAM  *  n-  r  ' 

thr.  from  the  anceftor  of  the  feoffor ;  or  where  by  ulage  it  re- 

CONQ^^  tained  the  property  of  bocland,  not  to  be  aliened  extra  cog* 

JOHN.       nationetriy  without  the  confent  of  the  heir,  where  fuch  re- 
ftri£lion  had  been  impofed  by  the  original  Infidboc. 

A  CLAUSE  of  'warranty  was  always  infcrted ;  which 
fometimes,  too,  had  the  additional  fan£lion  of  an  oath. 
The  import  of  this  warranty  was,  that  ftiould  the  feofl'ee 
be  evi£ledof  the  lands  given,  the  feoffor  (liculd  recompenfe 
him  with  others  of  equal  value  b. 

A  CHARTER  of  feoffment  was  not  a  complete  transfer  of 
the  inheritance,  unlefs  followed  by  iiv^ry  of  Jeifin.  This 
was  done  in  various  ways  \  as  perfujieniy  per  hacuhim^  per 
hafpam^  per  annulum,  and  by  other  fymbols,  either  pecu- 
liarly fignificant  in  themfelves,  or  accommodated  by  ufe, 
or  defignation  of  the  parties,  to  denote  a  tranfmutation  of 
poffeffion  from  the  f coffer  to  the  feoffee. 

This  was  the  nature  of  a  feoffment  with  livery  of  feifin, 
as  pra6lifed  in  thefc  early  times.  It  was  the  ufual  and  moft 
foiemn  way  of  paffmg  inheritances  in  land ;  but  yet  was 
not  of  fo  great  authority  as  a  Jiney  which  had  the  additional 
fan£lion  of  a  record  to  prefcrve  the  memory  of  it. 
A  inc.  The  antiquity  of  fines  has  been  fpoken  of  by  many 

writers.  Some  have  gone  fo  far  as  to  affert  their  exiftencc 
and  ufe  in  the  time  of  the  Saxons <^.  But  upon  a  flri£l  en- 
quiry, it  is  faid  there  are  no  fines,  properly  fo  called,  before 
the  Conqueft,  though  they  are  frequently  met  with  '^  foon 
after  that  period  ^. 

We  ihall  now  confider  the  manner  in  which  fines  have 
been  treated,  or,  as  it  is  now  called,  levied.  The  account 
of  fines  given  by  Glanville  does  not  enable  us  to  fix  any 

^  Mad.  Form.  7,  able  EfTay  011  Fine?:,  who  thinks,  arjd 

*  Plowd.  360.  with  great  fhew  of  reafon,  that  fines 

**  Mad.  Form.  DiiT.  ibid.  were  contrived  in  imitation  of  a  fimi- 

*■  The  origin  of  lines  is  very  fully  lar  judicial  -tranfadion  in  the  civil 

confidcrcki  by  Mr.  Cruil'e,  in  his  valu-  law.     Cruifc's  Fines,  p.  5. 

preclfe 


E  N  G  L  I  S  H      L  A  W.  93 

precife  idea  of  the  method  of  tranfadling  them.    It  only  ap-     chap,  il 
pears  from  him,  that  this  proceeding  was  a  final  concord  made      vviLU  \M 
by  licence  of  the  king,  or  his  juftices*^,  in  the  king's  court.  the 

But  the  nature  of  a  fine  may  be  better  collefted  from  the  to 

more  fimple  manner  in  which  it  was  originally  conduced.        JOHN. 

The  parties  having  come  to  an  agreement  concerning 
the  matters  in  difpute,  and  having  thereupon  mutually 
fcaled  a  chirographum^  containing  the  terms  of  their  agree- 
ment, ufed  to  come  into  the  king's  court  in  perfon,  or  by 
attorney,  and  there  recognize  the  concord  before  the  juf- 
tices  .  it  was  thereupon,  after  payment  of  a  fine,  enrolled 
immediately,  and  a  counterpart  delivered  to  each  of  the 
parties^.  This  was  the  mofl  antient  way  of  pafling  a  fine. 
In  courfe  of  time,  fines  came  to  be  pafled  with  a  chtro^ 
graphuniy  upon  a //^arr/Vwrn  commenced  by  original  writ,  as 
in  a  writ  of  covenant,  ivarrantia  chart^y  or  other  writ. 
When  the  mutual  fealing  of  a  chirographum  was  entirely 
difufed,  there  flill  remained  a  footftep  of  this  antient  prac<- 
tice ;  for  there  continues  to  this  day  in  every  fine  a  chi- 
rograph, as  it  is  called,  which  is  reputed  as  efTentially 
neceflary  to  evidence  that  a  fine  has  been  levied. 

The  defign  oi  final  concords  feems  to  have  been  anci- 
ently as  various  as  the  matters  of  litigation  or  agreement 
nmong  men.  By  fines  were  made  grants  of  land  in  fee, 
releafes,  exchanges,  partitions,  or  any  convention  relating 
to  land,  or  other  rights :  in  a  word,  every  thing  might  be 
tranfa6led  by  fine  which  might  be  done  by  chircgraphum^. 

Th  u  s  far  of  the  two  great  conveyances  in  practice  for 
transferring  eftates  of  inheritance,  namely,  feoffments  and 
fines.     The  manner  in  which  eftates  for  life  or  for  years 
(unce  called  demifes)  were  made,  was  in  the  way  of  con- 
vention or  covenant'. 

Two  other  fpecies  of  conveyance  then  ufed  were  confirm 
maticns  and  releafes.     In  thofe  unfettled  times,  when  feof- 

»  Li!>.  8.  c.  1.  •»  Mid.  Form.  Di:T.  i6,  17. 

t  Mad.  Form.  Di(T.  14.  »  Ibid.  zi. 

fees 


94 


HISTORY      OF     THE 


WILLIAM 

the 

CONQUEROR 

to 

JOHN. 


CHAT>.  II.  fees  were  frequently  difleifed  upon  fome  fuggeftion  of 
dormant  claims,  charters  of  confirmation  were  in  great 
rcqucft.  Many  confirmations  ufed  to  be  made  by  the  feof- 
for to  the  feoffee,  or  to  his  heirs  or  fucceffors.  Tenants 
in  thofe  times  hardly  thought  themfelves  {d(e  againft  grciJt 
lords  who  were  their  feoffors,  unlefs  they  had  repeated  con- 
firmations from  them  or  their  heirs.  Releafcs  were  as 
necefTary  from  hoflile  claimants,  as  confirmations  from 
feoffors.  The  words  of  conJirmaUGJi  were  dcdi^  conccjfi^ 
or  confirmavi ;  and  fuch  deeds  are  dillinguiihable  from 
original  feoffments,  only  by  fome  expreffions  referring  to 
a  former  feoffment.  Releafcs  are  known  by  the  words 
quietum  clamaviy  remifi^  relaxaviy  and  the  like. 

During  the  time  which  had  elapfed  fincc  the  Conquefi:, 
the  Norman  law  had  fufhcient  opportunity  to  mix  with  all 
parts  of  our  Saxon  cufloms.  This  change  was  not  confined 
to  the  article  of  tenures,  duel,  juries,  and  conveyances.  The 
manner  in  which  juflice  was  adminiflered  makes  a  dif- 
tinguifhed  part  of  the  new  jurifprudence.  In  the  Saxon 
times,  all  fuits  were  commenced  by  the  fimple  a£l  of  the 
plaintiff  lodging  his  complaint  with  the  officer  of  the  court 
where  the  caufe  was  to  be  heard;  and  this  flill  continued 
In  the  county  and  other  inferior  courts  of  the  old  confli- 
tution.  But  when  it  had  become  ufual  to  remove  fuits 
out  of  thefe  inferior  courts,  or  of  beginning  them  more 
frequently  in  the  king's  court  j  it  became  neceffary  to  agree 
upon  fome  fettled  forms  of  precepts  applicable  to  the  pur- 
pofe  of  compelling  defendants  to  anfwer  the  charge  al- 
ledged  by  plaintiffs.  Such  a  precept  was  called  breve; 
probably,  becaufe  it  contained  brlejly  an  intimation  of  the 
caufe  of  complaint.  It  was  directed  to  the  flicriff  of  the 
county  where  the  defendant  lived,  commanding  that  he 
fhould  fummon  the  party  to  appear  in  fome  particular  court 
of  tbe  king,  there  to  anfwer  the  plaintiff's  demand,  or 
to  do  fome  other  thing  tending  to  fatisfy  the  ends  of 
juflice. 

The 


Of  writs. 


ENGLISH      LAW. 


95 


The  neceflity  of  fuch  brevia  was  very  obvious;  for  tho*,     CHAP.  it. 
while  nioft  fuits  were  tran  failed  in  the  county  court,  it    TrT^?****''^ 

WILLIAM 

was  fuiricient  to  enter  a  plaint  with  the  officer  of  the  court ;  the 

and  the  procefs  ifluing  thereupon  being  to  be  executed  '  ^^ 
by  the  fherifF,  who  was  prefent,  or  fuppofed  to  be  pre-  JOHN, 
fent,  in  court,  as  judge,  was  not  likely  to  be  extremely 
illegal  or  irregular,  even  when  warranted  perhaps  by  no- 
thing more  authentic  than  verbal  directions ;  yet,  when 
fuIts  were  commenced  in  the  king's  court,  at  a  great  dif- 
tance  from  the  habitation  of  the  parties,  and  procefs  was  to 
iflue  to  him  merely  as  an  officer,  who  knew  nothing  more 
of  the  matter  than  "what  the  precept  explained,  it  was 
necefliirv  that  fomething  more  particular  fhould  be  exhi- 
bited to  him ;  and  therefore,  that  the  precept  fhould  be 
ivritten.     Hence  perhaps  it  is,   that   the  breve  was  called 

alfo  a  ivrit'^. 

These  ivrits  were  of  different  kinds,  and  received  dif- 
ferent appellations,  according  to  the  obje<Sl  or  occafion  of 
them.  The  dlflln^lion  betM'cen  writs  furnifned  a  fourcc 
of  curious  learning,  which  led  to  many  of  the  refinements 
afterwards  introduced  into  the  law.  The  affigning  of  a 
writ  of  a  particular  frame  and  fcope  to  each  particular 
caufe  of  adlion  \  the  appropriating  procefs  of  one  kind  to 
one  a£lion,  and  of  a  different  kind  to  another ;  thefc  and 
the  like  diftindlons  rendered  proceedings  very  nice  and 
complex,  and  made  the  condu6l  of  an  aclion  a  matter  of 
confiderablc  difficulty. 

The  cultivation  of  this  kind  of  learning  was  encou-  of  record*, 
raged  by  a  regulation  of  the  new  law,  which  was  defigned 
for  the  more  ufeful  purpofe  of  preferving  the  judgments 
and  opinions  of  judges  for  the  inllrudion  of  fucceeding 
ages :  this  was  the  pradice  of  entering  proceedings  of  courts 
upon  a  roll  of  parchment,  which  was  then  called  a  record. 

The  pradllce  of  reglftering  upon  rotul'iy  or  rolls  of  parch- 
ment, was  entirely  Norman ;  nor  did  it  obtain  to  any  great 
extent  till  long  after  the  Conqueft.    Among  the  Saxons,  the 

k  We  have  before  Jc^n  tha  deeds,  among  the  Saxons,  were  calLd  Ge'wrUt. 
Vid.  ant.  p.  lo. 

manner 


96  HISTORYOFTHE 

CHAP.   ir.     manner  of  regiftering  was  by  writing  on  both  fides  of  the 
WILLIAM     ^caf;  ^nd  this  w^LS  Cither  in  {ome  evangeltfierium J  cr  other 

^'^^  monaftic  book,  belonging  to  a  religious  houfe.    It  wiis  thus, 

CONQUEROR     ,         ,  ,        r     ,  •  i  r 

to  that  the  memory  not  only  of  pleas  ni  courts,  but  or  pur- 

JOHN.  chafes  of  land,  teftamcnts,  and  of  other  public  ads,  was 
preferved.  This  pra6lice,  like  other  Saxon  ufages,  conti- 
nued long  after  the  invafion  of  William.  "We  find  that 
Domcfday,  the  mod  important  record  of  the  Exchequer  in 
thofe  times,  confifts  of  two  large  books.  But  in  the  time 
of  Henry  I.  we  find  roiu/i  annates  in  the  Exchequer  for  re- 
cording articles  of  charge  and  difcharge,  and  other  matters 
of  accompt  relating  to  the  king's  revenue.  It  is  conjedlured 
that  the  making  inrolment  of  judicial  mutters  in  the  curia  re- 
gis was  -pofterior  in  point  of  time  to  the  fame  practice  in 
matters  of  revenue ;  and  was  di£lated  by  the  experience  of 
its  utility  in  that  important  department'.  This  innovation 
gave  rife  to  the  diftinction  between  courts  of  record,  and 
courts  not  of  record. 

A  RECORD  begun  with  the  entry  of  the  original  writ; 
rehearfed  the  ftatement  of  the  demand,  the  anfwer 
or  plea,  the  judgment  of  the  court,  and  execution  a- 
warded.  Thus  a  record  contained  a  (liort  hiftory  of  an 
a£lion  through  all  its  flages.  When  proceedings  were  en- 
tered in  this  folemn  manner,  and  fubmitted  to  the  criticifm 
and  exception  of  the  adverfe  party,  it  became  very  material 
to  each  that  his  part  of  the  record  fhould  be  drawn  with  all 
accuracy  and  precifion^.  When  this  attention  was  obferved 
in  completing  a  record,  it  became  a  very  authentic  guide  in 
fimilar  cafes.  Records  were  in  high  eftimation-,  and,  as  they 
continued  the  memorials  of  judicial  opinions,  tended  to  fix 
the  rules  and  doftrines  of  our  law  upon  the  firm  bafis  of 
precedent  and  authority. 

Such  were  the  more  confpicuous  parts  of  the  juridical 
fyftem  introduced  by  the  Normans,  and  fuch  were  the 
changes  they  underwent  during  the  period  that  elapfed 
before  the  end  of  the  reign  of  king  John. 

I  See  AylofFc*s  Airticnt  Charters,  Imrod. 


ENGLISH      LA  W.  97 


CHAP.  in. 

WILLIAM  the  CONQIJEROR  to  JOHN, 

Of  Villains — Doiuer — Alicvation — **  Nemo  pot ejl  ejfe  Hares 
€t  Dominui'—Of  Defcent—Of  Teflaments—Of  IVard^ 
JJjip — Marriage — Of  BaJIardy —  Ujurers — Of  Efcheat--^ 
Marltagium —  Homage — Relief — Aids — Admimflrction 
cf  Jufice — A  Writ  of  Right — Ejfoitis — Of  Smnmons — 
Of  Attachment — Counting  upon  the  Writ — The  Duel — 
The  Affife — Vouching  to  Warrant -j — Writ  of  Right  of 
Advowfon — Of  Prohibition  to  the  Ecclefiaflical  Court — 
The  Writ  de  Nativis — Writ  of  Right  of  Dower — Dciuer 

..  iinde  Nihil. 


N  the  former  chapter  It  was  endeavoured  to  trace  the    chap,  hi. 


WILLIAM 


I 

hlftory  of  the  principal  changes  made  in  the  law  from 
the  time  of  "William  the  Conqueror  down  to  the  reign  of  ihe 

king  John;  but  the  object  of  this  work  being  to  give  a  ^'^^^^^f^OR 
correal  idea  of  the  origin  and  progrcfs  of  our  whole  judicial  John. 
polity,  fomething  more  fatisfa£tory  will  be  expected  than 
the  foregoing  deduction.  It  will  be  required  to  fhate  fullv 
and  at  length,  what  was  the  condition  of  pcrfons  and 
property;  how  juftice,  both  civil  and  criminal,  was  ad- 
minlftered;  with  the  procefs,  proceeding,  and  judgments 
of  courts;  in  (hort,  to  give  a  kind  of  treatife  of  the  old 
jurlfprudence,  with  a  precifion,  and  from  an  authority, 
that  win  at  once  in{lru(il  the  curious,  and  have  weight  with 
the  learned.  When  this  Is  done,  it  will  be  a  foundation 
on  which  the  fuperftru6lure  of  our  juridical  hlRory  may  be 
ralfed  with  confiflence ;  every  modlhcation,  and  addition, 
being  purfued  in  the  order  in  which  It  arofe,  the  connexion 
and  dependence  of  the  feveral  parts  will  be  viewed  in  a  new 
Vol.  I.  H  light; 


98  HISTORYOFTHE 

CHAP.  in.    light;  and  the  rcafon  and  grounds  of  the  law  be  invcftlgated 
WILLIAM      ^"^  explained  more  naturally,  and  it  Is  trulled  with  more 
•  rnKorn-RnR    ^^iccefs  than  in  any  difcourfe,  or  defultory  comrnent  upon 
to  our  ancient  ftatutes,  however  copious  and  learned. 

J  In  order  to  lay  this  foundation  of  the  fubfequent  Hlftory, 

it  feems,  that  fome  point  of  time  during  the  period  be- 
tween the  Conqu€(l  and  the  reign  of  king  John  (liould  be 
chofen,  and  that  the  contemporary  law  of  that  time,  in  all  its 
branches,  Ihould  be  ftated  with  precifion  and  minutenefs. 
The  laws  of  Edward  the  Confcllbr,  confidered,  according 
^  to  the  prefent  opinion,  as  a  performance  of  fome  writer  in 

the  reign  of  William  Rufus,  and  the  laws  of  Henry  I.  are 
the  earlieft  documents  that  could  at  all  be  viewed  with  any 
hopes  of  information  of  this  kind  ;  but  thefe  throw  fo  lit- 
tle light  on  the  Norman  jurlfprudence,  that  they  furnifhed 
fmall  alTiftance,  even  in  the  hidorical  fketch  contained  in  the 
preceding  chapter.  The  new  jurlfprudence  feems  not  to 
have  been  thoroughly  eftabliflied,  or  at  lead  tolerably  ex- 
plained, till  the  reign  of  Henry  II.  when  we  meet  with 
the  treatife  of  Glanville.  The  method,  fcope,  and  extent 
of  this  venerable  book  mark  the  reign  of  Henry  II.  as  the 
moll  favourable  period  for  our  purpofe.  As,  therefore,  it 
may  be  colle<fl;ed  with  confiderable  accuracy  from  that  au- 
thor, what  the  law  was  towards  the  end  of  the  reign  of 
Henry  II.  we  (hall,  with  his  aid,  take  a  complete  view  of 
it  *,  and  having  done  that,  we  (hall  proceed  with  more  con- 
fidence to  confider  the  fubfequent  changes  made  by  parlia- 
ment and  by  courts  in  the  reigns  of  Henry  III.  Edward  I. 
and  his  fucceflbrs,  as  to  an  enquiry  that  may  be  followed 
with  eafe,  inftru6iion,  and  delight.  This  account  of  our 
.  laws  at  the  clofe  of  Henry  II.'s  reign  will  be  divided  into  the 
rights  cf  perfons,  the  rights  of  things,  and  the  proceedings 
of  courts.     We  (hall  begin  with  the  firft. 

The  people,  as  among  the  Saxons,  were  divided  into  free- 
men and  flaves;  though  the  latter  affumed  under  the  Nor- 
man polity  a  new  appellation,  and  were  called  villaniy  or 

villains. 

Of 


E  N  G  L  I  S  H      L  A  W.  99 

Of  villains,   thofe  were  called  ?7ativi  who  were  fuch  a  CHAP.  Iir. 

nativitate ;   as  when  one  was  defcended  from  a  father  and  y^^i  \  iam 

mother  who  were  both  villains  a  ttativltate.     If  a  freeman  ^^f 

married  a  woman  who  was  born  a  villain,  and  fo  held  an  to 

eftate  in  villenage,   in  her  right,   as  long  as  he  was  bound  JOHN. 

to   the  villain  fervices  due  on   account  of  fuch  tenure,    ^,-    ,1  • 

'    Ot  villain?. 

he  loft,  ipfo  facioy  his  lex  terra,  as  a  villain  a  nativ'itate. 
If  children  were  born  from  a  father  who  was  naflvus  to  one 
lord,  and  a  mother  who  was  natima  to  another  lord,  fuch 
children  were  to  be  divided  proportionably  between  the 
two  lords  *. 

A  VILLAIN  might  obtain  his  freedom  in  feveral  diffe- 
rent ways.     The  lord  might  quit-claim  him  from  him  and 
his  heirs  for  ever;  or  might  give  or  fell  him  to  fome  one, 
in  order  to  be  made  free  :   though  it  fhould  be  ohferved, 
that  a  villain  could  not  purchafe  his  freedom  with  his  own 
money;  for  he  might  in  fuch  cafe,  notwithflanding  the  fup- 
pofed  purchafe,  be  claimed  as  a  villain  by  his  lord  •,   for  all 
the  goods  and  chattels  of  one  who  was  a  nativus  were  un- 
derftood  to  be  in  the  power  of  his  lord,  fo  as  that  he  could 
'have  no  money,  which  could  be  called  his  own,  to  layout  in 
a  redemption  of  his  villenage.     However,  if  fome  ftranger 
had  bought  his  freedom  for  him,  the  villain  might  maintain 
fuch  purchafed  freedom  againft  his  lord;  for  it  was  a  rule, 
that  where  any  one  quit-claimed   a  villain  nativus  from 
him  and  his  heirs,  or  fold  him  to  fome  ftranger,  the  party 
who  had  fo  obtained  his  freedom,  if  he  could  eflabliih  it  by 
a  charter,  or  fome  other  legal  proof,  might  defend  himfelf 
againft  any  claims  of  his  lord  and  his  heirs  :  he  might  de- 
fend his  freedom  in  court  by  duel,  if  "^any  one  called  it  in 
queftion,  and  he  had  a  proper  witnefs  who  heard  and  faw 
the  manumiflion.     But  though  a  man  could  make  his  vil- 
lain nativi4S  free,  as  far  as  concerned  his  claim,  and  that  of 
hl^  heirs,  he  could  not  put  him  in  a  condition  to  be  confider- 
ed  as  fuch  by  others ;  for  if  fuch  a  freed  man  was  produced 

*  Glanv.  lib.  5.  c.  6. 

H  2  ii^ 


100  HISTORYOFTHE 

CHAP.   III.    in  court  againfi:  a  ftranger  to  deraign  a  caufe  (that  is,  to  be 

^J^^JTjam^    ^^^^  champion  to  prove  the  matter  in  queftion),  or  to  make 
thf  Viis  law  '',  or  law-wager,  as  it  has  fince  been  called,  and  it 

^^'    to'  was  objeded  to  him  that  he  was  born  in  villenage,  the 

J  O  H  N.  obje£lion  was  held  a  juft  caufe  to  difqualify  him  for  thofe 
judicial  ads;  nor  could  the  original  ftain,  fays  Glanville, 
be  obliterated,  though  he  had  fince  been  made  a  knight. 
Again,  a  villain  a  ?iativitate  would  become  ipfofacfo  free, 
if  he  had  remained  a  year  and  a  day  in  any  privileged  town, 
and  was  receivedvinto  their  gylda  (or  guild,  as  it  has  fince 
been  called)  as  a  citizen  of  the  place  ^. 

Nothing  is  faid  by  Glanville  concerning  the  different 
ranks  of  freemen  *,   we  fliall  therefore  proceed  to  the  next 
objed  of  confideration,  which  is,  the   right  to  property 
claimed  by  individuals  under  various  titles   and  circum- 
'  ftances  ;  as  dosy  or  dower,  belonging  to  a  widow,  marita- 

giunty  and  the  like  -,  after  which  we  fhall  fpeak  more  par- 
ticularly about  fucceffion  to  lands,  and  the  nature  of  te- 
nures, as  the  law  flood  in  the  reign  of  Henry  II. 

Dower.  The  term  doSy  or  dower  had  two  fenfes.     In  the  com- 

mon and  ufual  fenfe,  it  fignified  that  property  which  a  free- 
man gave  to  his  wife  ad  oftiutn  eccUfta,  at  the  time  of  the 
cfpoufals.  We  (hall  firft  fpeak  of  dos  in  this  fenfe  of  it. 
When  a  pcrfon  endowed  his  wife,  he  either  named  the 
dower  fpecially,  or  did  not.  If  he  did  not  name  it  fpeci- 
ally,  the  dower  was  underftood,  by  law,  to  be  the  third 
part  of  the  hufband's  I'lhcrum  tenemeritum ;  for  the  rule  was, 
that  a  reafonable  dower  of  a  woman  fhould  be  a  third  part 
of  her  hufband's  freehold  which  he  had  at  the  time  of  the 
efpoufals,  and  was  feifed  of  in  demefne.  If  he  named  the 
dower  efpeclally,  and  it  amounted  to  more  than  the  third, 
fuch  fpecial  dower  was  not  allowed,  but  it  was  to  be  ad- 
nieafured  to  a  fair  third ;  for,  though  the  law  permitted  a 
man  to  give  lefs  than  a  third  in  dower,  it  would  not  fuffer 
him  to  give  more ''. 

^  Legem  jacere,  ^  Clanv.  lib,  5.  c.  5.  •'  Ibiv.  lib.  6.  c.  i. 

If 


ENGLISH      LAW.  loi 

If  a  man  had  but  a  fmall  freehold  at  the  time  of  the  ef-    c  H  a  P^^J"- 
poufuls  when  he- endowed  his  wife,  he  might  afterwards     wiLLlAM 
augment  it  to  a  third  part,  out  of  purchafes  he  had  made   ^^^     '^VroR 
fince  -,  but  if  there  had  been  no  provifional  mention  of  new  i., 

purchafes  at  the  time  of  fuch  afTignment  of  dower,  although  J  ^ 
the  hufhand  had  then  but  a  fmall  portion  of  freehold,  and 
had  made  great  acquifitions  fince,  the  widow  could  not  claim 
more  than  the  third  part  of  the  land  he  had  at  the  time  of 
the  efpoufals.  In  like  manner,  if  a  perfon  had  no  land 
and  endowed  his  wife  with  chattels,  money,  or  other  things, 
and  afterwards  made  great  acquifitions  in  land,  ihe  could 
not  claim  any  dower  in  fuch  acquifitions ;  for  it  was  a  gene- 
ral rule,  that  where  dower  was  fpecially  afligned  to  a  wo- 
man ad  ojl'ium  ecclefite,  (he  could  not  demand  more  than 
what  was  then  and  there  afTigned''. 

A  WOMAN  could  malce  no  difpofal  of  her  dower  during 
her  hufband^s  life ;  but  as  a  wife  was  confidered  /;/  potejlaic 
viri,  it  was  thought  proper  that  her  dower  and  the  reft  of 
her  property  ftiould  be  as  completely  in  his  power  to  dif- 
pofe  of  them*,  and  therefore  every  married  man,  in  his  life- 
time, might  give,  or  fell,  or  alien  in  any  way  whatfoever, 
his  wife's  dower;  and  the  wife  was  obliged  to  conform  in 
this,  as  in  all  other  inftances,  to  his  will.  It  is,  however, 
laid  down  by  Glanville,  that  this  affent  might  be  with-held  : 
and  if,  notwithftanding  this  folemn  declaration  of  her  dif- 
fent^  and  difapprobation,  her  dower  was  fold,  flie  might 
claim  it  at  law  after  her  hufband's  death  •,  and,  upon  proof 
of  her  diflent,  fhe  could  recover  it  ajjainft  the  purchafer^ 
Befides,  it  muft  be  remarked,  that  the  heir  in  fuch  cafe 
was  bound  to  deliver  to  the  widow  the  fpecific  dower  af- 
figned  her,  if  he  could ;  and  if  he  could  not  procure  the 
identical  land,  he  wns  to  give  her  a  reafonable  excambium, 

^  Glanv.  lib.  6.  r,  2.  implyng     lofncthing     more     forroal 

«=  The   wonl   ufcd  by  Chnville  is  and   lulemn  than  a   comuiun  dilftuic 

ci-nittidice:  e,  whi<.h,  in  chis  and  other  and  difapprobation. 

[ilacc:,    he   iccms  tu   ulc   in   a  Icnfc  *  Glanv.  lib.  6.  c.  3. 

as 


102 


H  I  S  T  O  R-  Y     OF    THE 


CHAP.  III.    as  it  was  called,  or  recompeiice  in  value ;  and  if  he  deli- 

^■''      ^  vered  her  the  land  that  was  fold,  he  was  in  like   manner 

V/ILLIAM 

the  bound  to  give  a  recompence  to  the  purchafer  -.     If  the  al- 

CONQijEROR  ^  j^^^j^j.  ^^  ^i^g  church-door  was  in  thefe  words,  "  Do  tibi 
JOHN.  terrain  iflam  cum  omnibus pcrt'uiev.tiis ;  and  he  had  no  ap- 
purtenances in  his  demefne  at  the  time  of  the  efpoufals,  but 
he  either  recovered  by  judgment,  or  in  fome  other  lawful 
way  acqui  ed  fuch  appurtenances  j  the  wife  might,  after 
his  death,  demand  them  in  right  of  her  dower '^. 

If  there  was  no  fpecial  afTignment  of  dower,  the  widow 
was  entitled,  as  we  before  faid,  to  the  third  part  of  all  the 
freehold  which  her  hufband  had  in  demefne  the  day  of  the 
efpoufals,  complete  and  undiminifhed,  with  its  appurte- 
nances, lands,  tenements,  and  advowfons ;  fo  that  (hould 
there  be  only  one  church,  and  that  fhould  become  vacant 
in  the  widow's  life-time,  the  heir  could  not  prefent  a  parfon 
without  her  confent.  The  capital  mefTuage  was  always 
exempt  from  the  claim  of  dower,  and  was  to  remain  whole 
and  undivided  •,  nor  were  fuch  lands  to  be  brought  into  the 
divifion  for  dovi^er,  which  other  women  held  in  dower  upon 
a  prior  endowment.  Again,  if  there  were  two  or  more 
manors,  the  capital  manor, Jike  the  capital  mefluage,  was 
to  be  exempted,  and  the  widow  was  to  be  fatisfied  with 
other  lands.  It  was  a  rule,  that  the  affignment  of  dower 
fliould  not  be  delayed  on  account  of  the  heir  being  within 


age. 


If  land  was  fpecially  affigned  for  dower  ad  ojlium  ecclefiay 
and  a  church  was  afterwards  built  within  the  fee,  the  wi- 
dow was  to  have  the  free  prefentation  thereof;  fo  as,  upon 
a  vacancy,  to  give  it  to  a  clerk,  but  not  to  a  college,  be- 
caufe  that  would  be  depriving  the  heir  of  his  right  for 
ever;  however,  fliould  the  hufband  in  his  life-time  have 
prefented  a  clerk,  the  prefentee  was  to  enjoy  it  during  his 
Jife,  though  the  prefentation  was  made  after  the  wife  had 

^  Ckav.  lib.  6.  c.  13,  *'  Ibid.  c.  \%. 

been 


E  N  G  L  I  S  H      L   A  W.  103 

been  endowed  of  the  land,  and  it  might  look  like  an  anti-    CHAP.    ill. 
cipation  and  infringement  of  the  profits  and  advantage  to       ^^j^^  ^^^ 

which  fhe  was  entitled  bv  her  fpecial  afllgnment  of  dower.  if^c 

V        rL      ^J    I,     u    n        i  'i  •     r  /r  .  •  •  ,•    •  CONQUEROR 

let,  ihould  the  nulband  nmTleli  have  given  it  to  a  religious  to 

houfe,  as  this  wou^d  be  an  injury  to  the  wife  fimilar  to  that       JOHN. 

above  dated  rcfpe£ling  the  heir,  the  church  after  his  death 

was  to  be  delivered  back  to  the  widow,  that  flie  might  have 

free  prefentation  to  it;  but  after  her  death,  and  that  of  her 

clerk,  the  church  would  return  back  to  the  religious  houfe 

to  be  poflefled  for  ever. 

If  a  woman  had  been  feparated  from  her  hufband  oh  all- 
quam  Jui  corporis  turpitudinem^  or  on  account  of  blood  and 
confanguinity,  (he  could  not  claim  her  dower  ;  and  yet  in 
both  thefe  cafes  the  children  of  the  marriage  were  confi- 
dered  as  legitimate,  and  inheritable  to  their  father.  Some- 
times a  foil  and  heir  married  a  woman  ex  confenfu  pairis, 
and  gave  her  in  dowry  fome  part  of  his  father's  land,  by 
the  afT'gnment  of  the  father  himfelf.  Glanville  flates  a 
doubt  upon  this ;  whether  in  this  cafe,  any  more  than  in 
that  of  an  afiignment  by  the  hufband  himfelf,  the  widow 
could  demand  more  than  the  particular  land  afligned  ;  and 
whether  upon  the  death  of  the  hufband  before  the  father, 
fhe  could  recover  the  land,  and  the  father  be  bound  to  war- 
rant her  in  the  pofTefTion  of  it '  ? 

Thus  far  of  one  fenfe  of  the  word  dos.  It  was  undcr- 
ftood  differently  in  the  Roman  law,  where  it  properly  fig- 
nilied  the  portion  which  was  given  with  the  woman  to  her 
hufband  *,  which  correfponds  with  what  was  commonly 
called  in  our  law  maritagium :  but  we  fnall  defer  faying 
any  thing  of  maritagium  till  we  have  confidered  the  nature 
of  alienation  and  defcent,  with  fome  other  properties  of 
land. 

Respecting  the  alienation  of  land,  the  firfl  confidera- 
tion  that  prefents  itfelf,  is  the  indulgence  allowed  in  favor  of 

'  Clanv.  lib.  6.  c.  17. 
/  .  -  gifts 


I04  H  I  S  T  O  R  Y      O  F     T  H  E 

CHAP.   HI.    gife  in  maritagium.    Every  freeman,  fays  Glanville,  might 

^JTJ^JJ^Tam'    S^^^  P'^^^  ^f  ^'^  ^^^<^  ^'^^^  ^^s  daughter,  or  with  any  other 
t'le  woman,  /';/  inarhapiimK  whether  he  had  an  heir  or  not,  and 

CONQUEROR        ,,,...,.  1  u  u  A 

to  whether  his  hCir  agreed  to  it  or  not ;  nay,  though  he  made- 

JOHN.       ^i^.^j.  f^^]^.jj^j^  declaration  of  his  difTent,  which,  we  have  jufl: 
feen,  had  the  effect  of  rendering  an  aUenation  of  dower 
inetfedual  and  void  ^,   A  perfon  might  give  part  of  his  free- 
Alicnation.  ^^qIj  y^^  rcmnnerniioue}}!  fervi  fii'iy  or  to  a  religious  place  in 

free  alm.s  ;  fo  that,  fhould  fuch  donation  be  followed  by 
feifin,  the  land  would  remain  to  the  donee  and  his  heirs 
for  ever,  if  an  eftate  of  that  extent  had  been  exprelTed  by 
the  donor ;  but  if  the  gift  was  not  followed  by  feifm,  no- 
thing could  be  recovered  againfl  the  heir  without  his  con- 
fenc :  for  fuch  an  incomplete  gift  was  confidered  by  the 
law  rather  as  a  nuda prom'ijfio  than  a  real  donation.  Thus 
then,  on  the  above  occafions,  any  one  might,  in  his  life- 
time, give  a  reafonable  part  of  his  land  to  whomfoever  he 
pleafed ;  but  the  fame  permiiTioh  was  not  granted  to  any 
one  /;/  extremis ;  left  men,  wrought  upon  by  a  fudden  im- 
pulfe,  at  a  time  when  they  could  not  be  fuppofed  to  have 
full  pofTelTion  of  their  reafon,  Tnould  make  diflributions  of 
their  inheritances  highly  detrimental  to  the  intereft  and 
welfare  of  tenures.  The  prefwmption,  therefore,  of  law 
in  cafe  of  fuch  gifts  was,  that  the  party  was  infane,  and 
that  the  acl  was  the  refult  of  fuch  infanity,  and  not  of  cool 
deliberation.  However,  according  to  Glanville,  even  a 
gift  made  in  ultima  voluritate  was  good,  if  aflented  to  and 
confirmed  by  the  heir'. 

In  the  alienation  of  land  fome  dillin£lions  were  made 
between  ha:rcditas  and  qu^Jlus^  land  defcended  as  an  iuhent- 
ancey^wd.  land  acquired  by  pur  chafe.  If  it  was  an  inherit- 
ance, he  might,  as  was  faid,  give  it  to  any  of  the  before- 
mentioned  purpcfes.  Bot,  on  the  otner  hand,  if  he  had 
more  fons  than  one  who  were  mulieratosy  that  is,  born  in 

k  Glanv.  lib.  7.  c.  i.  *   IbiH. 

wedlock, 


ENGLISH      LAW. 


105 


ilie 

CONQiJEROR 

10 


wedlock,  he  could  not  give  any  part  of  the  inheritance  to  chap,  in, 
a  younger  fon  agatnft  the  confent  of  the  heir  j  for  it  might  william 
then  happen^  from  the  partiality  often  felt  by  parents  to- 
wards their  younger  children,  that,  to  enrich  them,  the  el- 
defl  would  be  llripped  of  the  inheritance.  It  was  a  queftion  J  ^  H  N 
whether  a  perfon,  having  a  lawful  heir,  might  give  part  of 
the  inheritance  to  a  baflard-fon  j  for  if  he  could,  a  baftard 
would  be  in  better  condition  than  a  younger  fon  born  in 
wedlock  ;  and  yet  it  fliould  feem  that  the  law  allowed  fucji 
donation  to  a  baftard  fon. 

If  the  perfon  who  wanted  to  make  a  donation  was  pof- 
fefl'ed  only  of  land  by  purchafe^  he  might  make  a  gift,  but 
not  of  all  his  purchafed  land ;  for  he  was  not,  even  in  this 
cafe,  allowed  intircly  to  difinherit  his  fon  and  heir :  tho*  if 
he  had  no  heir  male  or  female  of  his  own  body,  he  might 
give  all  his  purchafed  lands  for  ever  *,  and  if  he  gave  feifin 
thereof  in  his  life-time,  no  rem.ote  heir  could  invalidate  the 
gift.  Thus  a  man,  in  fome  cafes,  might  give  away,  in  his 
life-^lme,  all  the  land  which  he  had  himfelf  purchafed,  but 
not,  as  in  the  civil  law,  marke  fuch  donee  his  heir  \  for,  fays 
Glaiiville,yi?/A'j  Deiis  haredemfacere  potejl^  no?i  homo. 

If  a  man  had  lands  both  by  inheritance  and  by  purchafc, 
then  he  might  give  all  his  purchafed  land  to  whomfoever 
he  pleafcd,  and  afterwards  might  difpofe  of  his  lands  by 
inheritance,  in  a  reafonable  way,  as  before  ftated.  \i  a 
perfon  had  lands  in  free  foccage,  and  had  more  fens  than 
one,  who  by  law  fliould  inherit  by  equal  portions,  the  fa- 
ther could  not  give  to  one  of  them,  either  out  of  lands  pur- 
chafed or  inherited,  more  than  that  reafonable  part  which 
would  belong  to  him  by  defcent  of  his  father'b  inheritance: 
but  the  father  might  give  him  his  fliare. 

W  E  m?.y  here  obferve,  that  many  queftions  of 
law  arofc,  owing  to  certain  confequences  which  fome- 
times  refulted  from  this  liberality  of  fathers  towards  their 
children.      Firll,   fuppofe  a  knight,    or   freeman,   having 

four 


io5  HISTORY      OFT  HE 

CHAF^IIL    four  or  more  fons,  all  born  of  one  mother,  gave  to  his  fe- 
WILLIAM      ^^^^  ^*^">  ^o  ^^'""^  ^^^  ^is  heirs,  a  certain  reafonable  part  of 

CONQUEROR   ^^^  inheritance,  with  the  confent  of  the  eldeft  fon  and  heir 
to  (to  avoid   all  obje6lix)ns  to  the   gift),  and  feifin  was  had 

thereof  by  the  fon,  who  received  the  profits  during  his  life, 
and  died  in  fuch  feiCn,  leaving  behind  him  his  father  and 
all  his  brothers  alive;  there  was  a  great  doubt  among 
lawyers,  in  Glanvllle's  time,  who  was  the  perfon  by  law 
entitled  to  fucceed.  The  father  contended,  he  w?s  to 
retain  to  himfelf  the  feifm  of  his  deceafcd  (on,  thinking 
TiOthing  more  reafonable  than  that  the  land  which  was  dif- 
pofed  of  by  his  donation,  fliould  revert  again  to  him.  To 
this  it  might  be  anfwered  by  the  eldefl  fon,  that  the  father's 
claim  could  not  be   fupported;   for  it  was  a  rule  of  law, 

Nema patefi ejfe  qtiod nemo ejufdem  tenement'ifimul poteft e/fe  hares  et  donimus ^^ 
that  no  one  could  be  both  heir  and  lord  of  the  fame  land  : 
and  by  the  force  of  the  fame  rule,  the  third  fon  would 
deny  that  the  land  could  revert  to  the  eldeft  ;  for  as  he 
was  heir  to  the  whole  inheritance,  he  could  not,  as  before 
faid,  be  at  once  heir  and  lord  ;  for  he  would  become  lord 
of  the  whole  inheritance  upon  the  death  of  his  father,  and 
therefore  ftood  very  nearly  in  the  predicament  in  which  we 
juft  ftated  the  father  himfelf  to  be.  Thus,  as  by  law  the 
land  could  not  remain  with  him,  there  was  no  reafon,  fays 
Glanville,  why  he  fhould  recover  it ;  and  therefore,  by  the 
fame  reafoning,  it  appeared  to  Glarville,  that  the  third  fon 
was  to  exclude  all  the  other  claimants. 

Alike  doubt  arofe,  when  a  brother  gave  to  his  younger 
brother  and  his  heirs  a  part  of  his  land,  and  the  younger 
brother  died  without  heirs  of  his  body  ;  upon  which  the 

*"  In   the  times  of  Glanville  and  ment  in   fte    mai^e    a    new   tenure, 

Brafton,  the   refcrvation  of  ferviccs  and  of  courl'e  created  a  nrw  manoi  ; 

might  be  made  either  to  the  feoffor  and  fo  ihi  law  contnued  till  ftat.  quia 

or  to  the  lord  of  whom  the  fcotTor  empteres^    i8  Ed.   I.     required    feofF- 

held  ;  they  feem,   more  commonly,  mcnts  in  fee  to   be   made  with  rriVr- 

to  have   been  made    in   the  former  vation    of    the    fervices  to  the  chief 

manner :  thus  every  fuch  new  feoff-  lord. 

elder 


E  N  G  L  I  S  H      L  A  W.  107 

ekler  took  the  land  into  his  hands,  as  being  vacant  and    CHAP.  III. 
within  his  fee,  againft  whom  his  own  two  fons  prayed  an      wilham 
aihfe  of  the  death  of  their  uncle;  in  which  plea  the  eldeft  ^^« 

fon  might  plead  againft  the  father,  and  the  younger  fon  to 

againft  his  elder  brother,  as  before  mentioned.     And  here      ^ 
the  law  is  ftated  by  Glanville  to  be  this :  that  the  father 
could  not  by  any  means  retain  the  land,  becaufe  he  could 
not  fimiil  ka^res  ejje  et  dominus  ;  nor  could  it  revert  to  the 
donor,  with  the  homage  neceflarily  incident  to  it,  if  the 
donee  had  any  heir,  either  of  his  body  or  more  remote. 
Again,  land  thus  given,  like  other  inheritances,  naturally 
del'cended  to  the  heir,  but  never  afcended  :  from  all  which 
it  followed,  that  the  plea  as  between  the  father  and  eldeft 
fon  was  at  an  end,  as  having  no  queftion  in  it  •,  but  that 
between  the  eldeft  and  younger  fon  went  on,  as  before  ftated. 
And  in  this  laft  cafe  the  king's  court  had  taken  upon  it  to 
determine,  ex  a:quitatey  that  the  land  fo  given  fhould  re- 
main to  the  eldeft  fon  (particularly  if  he  had  no  other  fee) 
to  hold  till  the  paternal  inheritance  defcended  upon  him  ; 
for  while  he  was  not  yet  lord  of  his  paternal  inheritance, 
the  rule  quod  nemo  ejiifdem  teuementifimttl  poteji  hares  eJje  et 
dominus,  could  not  be  faid  to  ftand  in  the  way.     But  then 
it  might  be  afked,  whether,  when  he  became  by  fuccef- 
fion  lord  of  that  part  of  the  inheritance,  he  vi'as  not  /v/V 
alfo  of  it,  as  well  as  of  the  reft  of  the  inheritance,  and 
then  fell  within  the  meaning  of  that  rule  ?  To  this  Glanville 
anfwers,  that  it  was  a  thing  not  at  firft  certain,  whether  the 
eldeft  fon  would  be  the  heir,  or  not  -,  for  ftiould  the  father 
die  firft,  he  moft  undoubtedly  would  be  fo  ;  and  then  he 
would  ceafe  to  be  lawful  owner  of  the  laiid  he  had  acquired 
by  fuccedion  from  the  uncle,  and  it  would  revert  to  the 
younger  fon  as  right  heir  :  yet  if,  on  the  other  hand,  the 
eldeft  fon  died  firft,  then  it  was  plain  he  was  to  be  the 
heir  of  the  father  ;  and  therefore  thofe  two  requlfites  of 
this  rule,  namely,  the  jus  Imreditar'ium  and  djrninium,  did 
not  concur  in  the  fame  perfon.     Such  is  the  reafoning  of 

Glanville 


loS 


HISTORY      OF     THE 


WILLIAM 

the 

CONQITEKOR 

lo 

JOHN. 


Of  dcfcent. 


CHAP.   Til.    Glanville  upon  this  curious  point,  in  the  law  of  defcent, 
as  underftood  in  his  time  ". 

There  are  two  obfervations  to  be  made  refpecEllng  gifts 
of  land,  and  then  we  fliall  proceed  to  confider  the  law  of 
defcent  more  fully.  One  is,  that  bifliops  and  abbots,  whofe 
baronies  were  held  by  the  eleemofynary  gift  of  the  king 
and  his  anceftors,  could  not  make  gifts  of  any  part  of 
their  demefnes,  without  the  afTent  and  confirmation  of  the 
king  °  :  the  other  is,  that  the  heirs  of  a  donor  were  bound 
to  warrant  to  the  donee  and  his  heirs  the  donation,  and  the 
thing  thereby  given  p. 

Having  incidentally  alluded  to  fome  rules  which  go- 
verned the  defcent  of  lands,  it  will  now  be  proper  to  treat 
of  the  law  of  fuccefTion  more  at  large.  They  divided  heirs 
into  thofe  they  called  proximi,  and  thofe  they  confidered  as 
remoUores.  Proxim'i  were  thofe  begotten  from  the  body, 
as  fons  and  daughters  :  upon  the  failure  of  thefe,  the  rcmc- 
iiores  were  called  in,  as  the  riepos  or  7upt'is^  the  grandfon  or 
grand->daughter,  and  fo  on,  defcending  in  a  right  line  /// 
iTjJimtum  ;  then  the  brother  and  filler,  and  their  defcend- 
ants  5  then  the  avunculus  '',  or  uncle,  as  well  on  the  part  of 
the  father  as  of  the  mother  ;  and  in  like  manner  the  ma- 
tertera^  or  aunt ;  and  their  defcendants.  When  therefore 
a  perfon  died  leaving  an  inheritance,  and  having  one-^n, 
it  was  a  fettled  thing  that  the  fon  fucceeded  to  the  whole. 
If  he  left  more  fons  than  one,  then  there  v/as  a  diiTerence 
between  the  cafe  of  «  knight ,  that  is,  a  tenant  by  feodum  mi" 
litarey  or  knight's  fervice  ;  and  a  liber  fokemannusy  or  free 
foketnan.  If  he  was  a  knight  or  tenant  by  military  fervice, 
then,  according  to  the  law  of  England,  the  cldell  fon  fuc- 
ceeded to  the  father  in  totum ;  and  none  of  his  brothers  had 
any  claim  whatfoever.     But  if  he  was  a  free  fokeman, 

•*  Glanv.  lib.  f.  c.  I.  re£\ ;  avunculus  and   ma'ertera  being 

•   Ibid.  tFie  uncle  and  aunt  on   the    mother's 

>   Ibid.  c.  a.  fide  •,  a<:  the  iinrle  on  the  father's  firic 

*i  This   is  the   expreffi'in  ufed  by  wm^  pa'ruus.    Indeed  our  author,  aitcr 

GUoville  •,  which  if-  not  ft-iclly  coi-  all,  pafTesovcr  this  in  a  loofc  way. 

and 


WILLIAM 


ENGLISH      LAW. 

and  poffefTed  of  foccage-land  that  had  been  antlently  di- 

vifiblc,  then  the  inheritance  was  divided  among  all  the  fons 

by  equal  parts ;  faving  always  to  the  eldeft  fon,  as  a  mark  th^ 

of  diftinclion,  the  capital  mefluage ;   fo,  however,  as  he        '    ta 

made  a  proportionate  fatisfatStion  to  the  other  brothers  on      J  ^  "  ^"• 

that  account.     But  if  the  land  was  not  anciently  divifible, 

then  it  was  the  cuftom,  in  fome  places,  for  the  eldeft  fon  to 

take  the  whole  inheritance ;  in  fome,  the  youngefl:  fon. 

If  a  perfon  left  only  a  daughter,  then  what  we  have  faid 
of  a  fon  held  good  with  regard  to  her.     And  it  was  a  ge- 
neral rule,  whether  the  fathfer  was  a  knight  or  a  fokeman, 
that  where  there  were  more  daughters  than  one,  the  inhe- 
ritance fhould  be  divided  among  them  •,  faving,  however, 
(as  in  the  cafe  of  the  fon)  the  capital  mefluage  to  the  eldeft: 
daughter.     Where  the  inheritance  was  thus  divifible  be- 
tween brothers  or  fifters,   if  one  of  them  died  without 
heirs  of  the  body,  the  fliare  of  the  party  deceafed  was  di- 
vided amongit  the  furvivors.     It  was  a  rule.  In  thefe  di- 
vifible inheritances,  that  the  hufband  of  the  eldeft  daughter 
fhould  do  homage  to  the  chief  lord  for  the  whole  fee; 
the  other  daughters  or  their  hufbands  being  bound  to  do 
their  fervices  to  the  chief  lord  by  the  hand  of  the  ddcQ:, 
or  her  huftDand ;  and  not  to  do  homage  or  fealty  to  the 
hulband  of  the  eldeft  :   nor  were  their  heirs  in  the  firft  or 
fecond  defcent ;  but  thofe  in  the  third  tlefcent  from  the 
younger  daughters  were  bound  by  the  law  of  the  realm  to 
do  homage  and  pay  a  reafonable  relief  to  the  heir  of  the 
eldeft  daughter  for  their  tenement.     It  was  a  rule,  that  no 
hufbands  ftiould  give  away  their  wives'  inheritance,  or  any 
part  thereof,  without  the  aflcnt  of  their  heirs  ',  nor  could 
they  rcleafe  any  right  that  might  belong  to  their  heirs. 

We  have  faid  before,  that  if  a  perfon  had  a  fon  and 
daughter,  or  daughters,  the  fon  fuccecded  ///  Muw ;  and 
therefore,  if  a  man  had  more  wives  than  one,  and  had 
daughters  from  two,  and  at  length  a  fon  from  a  third,  this 
fon  would  alone  take  the  whole  inheritance  of  his  father; 

for 


no  HISTORY      OFT  HE 

CHAP.  III.    for  it  was  a  general  rule,  that  a  woman  could  never  take 

WILLIAM      P*^''^  °^  ^"  inheritance  with  a  man*",  unlefs,  perhaps,  by  the 

the  particular  and  ancient  Cuftoms  of  fome  cities  or  towns  : 

to  yet  if  a  man  had  more  wives  than  one,  and  had  daughters 

JOHN.      from  each,  they  all  fucceeded  alike  to  the  inheritance,  the 

fame  as  if  they  had  been  born  cf  the  fame  mother. 

Suppose  a  man  died  without  leaving  a  fon  or  a  daughter, 
but  had  grandchildren ;  they  fucceeded  in  like  manner  as 
children ;  thofe  in  the  right  line  being  always  preferred  to 
thofe  in  the  tranfverfe.  However,  we  have  before  feen  % 
that  when  a  man  left  a  younger  fon,  and  a  grandfon  of  his 
eldeft  fon,  who  was  dead,  there  was  great  difficulty  in  de- 
termining the  fucceflion  in  fuch  cafe  between  the  fon  and 
grandfon.  Some  thought  the  younger  fon  was  more  pro- 
%  perly  the  right  heir  than  the  grandfon ;  for  the  eldeft  fon 

not  having  lived  till  he  became  heir,  the  younger  fon,  by 
outliving  both  his  brother  and  father,  ought  properly  to 
be  the  father's  fucceflbr.     It  feemed  to  others,  that  the 
grandfon  (hould  be  preferred  to  the  uncle  •,  for  as  he  was 
heir  of  the  body  of  the  eldeft  fon,  and,  if  he  had  lived, 
would  have  had  all  his  father's  rights,  he,  it  was  faid, 
ihould  more  properly  fucceed  in  the  place  of  his  father : 
and  fo  Glanville  thought,  provided  the  eldeft  fon  had  not 
been  fons-familiated  by  the  grandfather.     A  fon  was  faid 
to  be  foris-familiated,  if  his  father  afligned  him  part  of  his 
land,  and  gave  him  feifm  thereof,  and  did  this  at  the  re- 
queft,  or  with  the  free  confent  of  the  fon  himfelf,  who 
exprefled  himfelf  fatisfied  with  fuch  portion ;   and  it  was 
clear  law,  that  in  fuch  cafe  the  heirs  of  the  fon  could  not 
demand  as  againft  their  uncle,  or  any  one  elfe,  any  more 
of  the  inheritance  of  the  grandfather  than  what  was  fo 
affigned  to  their  father  •,  though  the  father  himfelf,  had  he 
furvived  the   grandfather,    might    notwithftanding    have 
claimed  more.     Where  it  happened,  hov/ever,  that  the 

'  Glanville's  words  are  mulier  nun-  »   Vid.  ant.  41. 

quam  cum  mafcule  partem  cajiit  in  ha- 
re Jit  ate  all  qua. 

eldeft 


E  N   G  L  I  S  H      L  A  W.  iii 

eldeft  (on  had  in  his  father's  life-time  done  homage  to  the    CHAP,  iir. 
chief  lord  of  the  fee  for  his  father's  inheritance,  as  was  not      ^^^^^  j^j. 
unfrequently  the  cafe,  and  died  before  his  father,  there  it  the 

was  held  beyond  queftion,   that  the  fon  of  fuch  eldeft  fon  ^ 

fliould  be  preferred  to  the  uncle,  although  there  had  been      JOHN, 
no  foris-familiation. 

Such  was  the  law  of  defcent  in  Glanville's  time;  and 
this  will  very  properly  be  followed  by  a  Ihort  view  of  fome 
of  the  duties  incumbent  on  heirs;  with  the  incidents  of  in- 
heritance and  fucceffion  ;  fuch  as  teftaments,  wardfhip, 
baftardy,  and  efcheat. 

Heirs,  fays  Glanville,  were  bound  to  obferve  the  tefta-  of  teftaments. 
ments  made  by  their  fathers,  or  their  other  anceftors  to 
whom  they  were  heirs,  and  to  pay  all  their  debts.  For 
every  freeman,  not  incumbered  with  debts  beyond  the 
amount  of  his  effcds,  might,  on  his  death-bed,  make  a 
reafonable  divifion  of  his  property,  by  will ;  fo  as  he  com- 
pHed  with  the  cuftoms  of  the  place  where  he  lived ;  one 
of  which  commonly  was,  firft,  to  remember  his  lord  by 
his  beft  and  principal  chattel ;  then  the  church  ;  and  after 
thefe,  he  might  difpofe  of  the  remainder  as  he  pleafed. 
However  the  cuftoms  of  particular  places  might  lay  this 
reftriclion  upon  wills,  no  perfon  was  bound,  by  the  general 
law  of  the  kingdom,  to  leave  any  thing  by  will  to  any  par- 
ticular perfon,  but  was  at  liberty  to  a£l;  as  he  pleafed;  it 
being  a  rule  of  law,  that  ult'una  voluntas  ejjet  libera.  A 
woman  who  was  f//i  juris  might  make  a  will ;  but  if  (he 
was  married,  (lie  could  do  nothing  of  this  fort  without  her 
huft^and's  authority,  as  it  would  be  making  a  will  of  his 
goods.  But  Glanville  thought  it  would  be  a  proper  tcfti- 
monv  of  affeclion  and  tenderncfs,  for  a  huft)and  to  give  to 
his  wife  rationabilem  divifam^  that  is,  a  third  part  of  his 
effc£ls ;  this  being  what  flie  would  be  entitled  to,  if  (he 
had  furvived  him  ;  and  it  feems  that  it  was  not  unfrequent 
for  huft)ands  to  give  a  fort  of  property  to  their  wives  in  this 
third  part,  even  during  the  coverture. 

The 


112  HISTORY     OF     THE 

CHAP.   in.        The  pafTage  in  Glanvllle  from  which  t4iis  and  the  follow- 

W  ILL,  I  AM     ing  account  of  teflaments  is  taken,  throws  great  obfcurity 

^^^  upon  the  fubiei^,  and  lays  a  fouadation  for  the  doubt  that 

CONQUEROR    /,..,,,  ,  .  r     ,    ,         r     n- 

to  long  divided  lawyers,  and  is  not  yet  lettled,  relpecling  the 

JOHN.  power  of  making  wills  of  chattels,  at  common  law.  Af- 
ter having  exprefsly  laid  down,  that,  by  the  general  law 
of  the  kingdom,  no  perfon  was  bound  to  leave  any  thinsr 
by  will  to  any  particular  perfon,  and  that  the  third  part 
left  to  the  wife  was  didbated  rather  by  a  moral  than  legal 
obligation,  he  goes  on  in  the  following  remarkable  words  : 
"  When  a  perfon,  fays  he,  is  about  to  make  his  will,  if 
**  he  has  more  than  enough  to  pay  his  debts,  then  all  his 
**  moveables  (hall  be  divided  into  three  equal  parts ;  of 
"  which  one  fiiall  go  to  the  heir,  another  to  the  wife ;  the 
"  third  be  referved  to  himfelf,  over  which  he  has  the 
"  power  of  difpofal  as  he  pleafes  :  if  he  dies  without  ieav- 
"  ing  a  wife,  a  half  is  to  be  referved  to  the  te(tator^*' 
Thus  far  refpe£ling  the  law  of  teftaments  for  the  difpofition 
of  moveables;  to  which  he  adds,  conformably  with  what 
we  have  before  fliewn,  that  an  inheritance  could  not  be 
given  by  lafl  will". 

A  TESTAMENT  ought  to  be  made  in  the  prefcnce  of 
two  or  more  lawful  men,  either  clergy  or  lay,  being  fuch 
perfons  as  might  afterwards  become  proper  witnelTes  there- 
to. The  executors  of  a  teflament  were  fuch  perfons  as 
the  teftator  chofe  to  appoint  to  undertake  the  charge  of  it. 
If  the  teftator  appointed  none,  tht  propbiqul  et  cofifanguwei^ 
by  which  were  meant,  as  may  be  fuppofetl,  the  neareft  of 
kin  to  the  deceafed,  might  interpofe;  and  if  there  was 
any  one,  whether  the  heir  or  a  ftranger,  who  detained  any 
effe£l5  of  the  deceafed,  fuch  executors  or  next  of  kin 
might  have  the  following  writ  directed  to  the  fnerilF,  to 
caufe  a  reafonable  divifion  of  the   elTe^ls  to  be  made  ; 

*  The  progjcr?  of  this  doarine,  "  Glanv.  lib.  7.  c,  5. 

and  the  difcufllons  upon  it,  will  be 
Klatcd  in  the  proper  place. 

Rex 


E  N  G  L  I  S  H      L  A  W.  113 

Rex  v'icec&miti faluitem : pr<?cipio  tibi quhdjufie  etfifie  dilations    CHAP,   iif* 
facias  fiarc  rationah'dtim  divifam  N.  Jtcut  rationabiliter  moji"       yTiiXiam 
Jirari poterlt  qutd-eorinfecerlt^  et  quod  ipfajlare  deheat^  &C.^'.  il'c 

If  the  perfon,  fummoned  by  authority  of  this  writ,  faid  any  "  to 
thing  againfi:  the  vaHdity  of  the  teftament  j  that  it  was  J  ^  ^  ^' 
not  properly  made,  or  that  the  thing  demanded  was  not 
bequeathed  by  it ;  »fuch  inquiry  was  to  be  heard  and  deter- 
mined in  the  court  chriftian ;  for  all  pleas  of  teflaments, 
fays-GlanviUe,  belong  to  the  ecclefiafticiil  judge,  and  are 
there  -decided  upon  by  the  teftimony  of  thofe  who  were 
prefent  at  the  making  of  the  will  ^. 

If  a  .penfon  was  incumbered  with  debts^  he  could  not 
make  awy  difpofttion  of  his  elFecls  (except  it  \i'as  for  pay- 
merrt  of  his  debts)  without  the  confent  of  the  heir ;  but  if 
there  was  any  thing  remaining  over  and  above  the  payment 
of  his  debts,  that  refidue  was  to  be  divided  into  tliree  parts, 
as  above  mentioned  -,  and  he  mighty  fays  Glanville,  make 
,his  will  of  the  third  nart.  Should  the  eft'e6ls  of  the  dcceafed 
not  -be  fufBcient  to  ,pay  his  debts,  the  heir  was  bound  to 
make  up  the  deficiency  out  of  the  inheritance  which  came 
to  him  •,  fo  that  we  fee  the  reafon  w^hy,  under  fuch  circum- 
{lances,  the  heir's  confent  was  necefiary  towards  a  will.  It 
feems,  however,  that  the  heir  was  not  bound  to  make  up 
this  deficiency,  unlefs  he  was  of  age  '^. 

He  IRS  were  confidered  in  different  lights,  according  as 
they  were  of  full  age,  or  not.  An  heir  of  full  age  m.ight 
hold  himfelf  in  pofTefTion  of  the  inheritance  immediately 
upon  the  death  of  the  anceflor ;  and  the  lord,  though  he 
might  take  the  fee  together  with  the  heir  into  his  hands, 
was  to  do  it  with  fuch  moderation,  as  not  to  caufe  any  dif- 
feifin  to  the  heir  *,  for  the  heir  might  refifh  any  violence, 
provided  he  was  ready  to  pay  his  relief  and  do  the  other  Of  wardflilp, 
fervices.  Where  the  heir  to  a  tenant  holding  by  military 
fervice  was   under  age^  he  was  to  be  in  cuftody  of  his 

^  GUnv.  lib.  7.  c.  6.  7.  *  Ibid.  c.  8.  f  Ibul. 

"Vol.  I.  I  lord 


114  HISTORYOFTHE 

CHAP.  III.    lord  till  he  attained  bis  full  age;   which,  in  fuch  tenure, 
J  .  J  -J      was  when  he  had  completed  the  twenty-firfi:  year.     The 
the  fon  and  heir  of  a  fokeman  was  confidered  as  of  age  when 

'    to  ^e  had  completed  his  fifteenth  year  :  the  fon  of  a  burgefs, 

JOHN.  Qj.  Qjjg  holding  in  burgage  tenure,  was  efteemed  of  age, 
favs  Glanville,  when  he  could  count  money  and  meafurc 
cloth,  and  do  all  his  father's  bufmefs  with  fkill  and  readi- 
nefs.  The  lord,  when  he  had  cuftody  of  the  fon  and  heir, 
and  of  his  fee,  had  thereby,  to  a  certain  degree,  the  full 
difpofal  thereof;  that  is,  he  might,  during  the  cuftody, 
prefent  to  churches,  have  the  marriage  of  women,  and 
take  all  other  profits  and  incidents  which  belonged  to  the 
minor  and  his  eftate,  the  fame  as  he  might  in  his  own  ; 
only  he  could  make  no  alienation  which  would  afieft  the 
inheritance.  The  heir  was,  in  the  mean  time,  to  be  main- 
tained with  a  provifion  fuitable  to  his  eftate ;  the  debts  of 
the  deceafed  were  to  be  paid  in  proportion  to  the  eftate  and 
time  it  was  in  cuftody  of  the  lord,  who  was  not  by  fuch 
liens  to  be  entirely  deprived  of  his  benefit  by  the  cuftody  : 
-with  that  qualification,  however,  lords  were  bound  de  jure 
to  anfwer  for  debts  of  the  anceftor. 

The  lord  alfo,  as  he  had  all  emoluments  belonging  to  the 
heir,  was  to  a£l:  in  all  his  concerns,  and  profecute  all  fuits 
for  recovery  of  his  rights,  where  fuch  fuits  were  not  de- 
layed by  the  ufual  exception  to  the  infancy  of  the  party. 
But  the  lord  was  not  bound  to  anfwer  for  the  heir,  neither 
upon  a  queftion  of  right,  or  of  feifin,  except  only  in  one 
cafe ;  and  that  was,  where  there  had  fallen  to  the  heir, 
fince  his  father's  death,  the  cuftody  of  fome  minor:  for 
then,  if  the  minor  came  of  age,  and  the  inheritance  was 
not  delivered  to  him,  he  was  intitled  to  have  an  aflife  and 
recognition  de  morte  antccejforts  ;  and  in  this  cafe,  as  the  re- 
cognition was  not  by  law  to  remain,  on  account  of  the 
infancy  of  the  heir,  his  lord  was  to  anfwer  for  him.  If  a 
minor  was  appealed  of  felony,  he  was  to  be  attached  by 
fafe  and  fure  pledges;  but  yet  he  was  not  bound  to  anfwer  to 

the 


E  N  G  t  I  S  H      L  A  W.  115 

the  appeal  till  he  was  of  age*.     It  was  the  duty  of  thofe    chap    iii.^ 

who  had  the  cuftody  of  heirs  and  their  fees,  to  reftore  the     a^villiaM 

inheritance  to  the  heir  in  <}:ood  condition,  and  alfo  free  from  i^f 

ji-  •  i,rr-j  urru      CONQUEROR 

debts  J  m  proportion,  as  v/as  beiore  laid,  to  the  iize  ot  the  to 

inheritance,  and  to  the  time  it  was  in  cuftody*.     If  there      JOHN, 
was  any  doubt  whether  an  heir  was  of  age  or  not,  yet  ftill 
the  lord  had  the  cuftody  of  the  heir  and  his  eftate  until  he 
was  proved  to  be  of  age  by  lawful  men  of  the  vicinage, 
upon  their  oaths. 

If  an  heir  within  age  had  more  lords  than  one,  the  chief 
lord,  that  is,  he  to  whom  he  owed  allegiance  for  his 
firft  fee,  was  to  have  the  preference  of  the  cuftody :  an 
heir,  however,  fo  circumftanced,  was  ftill  to  pay  to  the 
lords  of  his  other  fees  their  reliefs  and  other  fervices.  In 
the  cafe  of  a  holding  of  the  king  i/i  capite,  the  cuftody 
belonged  to  the  king  completely  and  fully,  whether  the  heir 
held  of  other  lords  or  not  :  for  the  maxim  was,  domifius 
rex  nullum  habere  pot  cjl  par  em  ^  multb  minus  fuperiorem.  But 
in  burgage-tenure  the  king  had  not  this  preference  to  other 
lords.  The  king  might  commit  to  any  one  fuch  cuftodies 
as  belonged  to  him  ;  and  they  were  committed  fometimes 
ple7io  jurey  and  fometimes  not.  In  the  latter  cafe,  the 
committee  was  to  render  an  account  thereof  at  the  exche- 
quer ;  in  the  former,  not :  in  the  former  cafe,  he  might 
prefent  to  churches,  and  do  other  a6ls,  as  he  might  in  his 
own  eftate  •*. 

This  was  the  law  concerning  the  cuftody  of  heirs,  in 
military  tenure.  The  heirs  of  fokemetiy  upon  the  death  of 
their  anceftors,  were,  according  to  Glanville,  to  be  in  the 
cuftody  of  their  confanguinei  propinquiy  "which  muft  mean, 
as  in  a  former  paflage,  the  next  of  kin;  with  this  qualifi- 
cation, that  if  the  inheritance  defcended  ex  parte  patris,  the 
cuftody  belonged -to  the  defcendantsf.v/>«r/^  matris ;  and  fo 
vice  verfd.  For  the  opinion  was,  that  the  cuftodv  of  a 
perfon  fhould  not,  by  law,  belong  to  one  who,   ftanding 

'  CUnville,  lib.  7.  c.  j).  ^  »  Ib'd.  •>  Ibid,  c  10. 

I  2  near 


•o^ 


ii6  HISTORYOFTHE 

CHAP.  Tir.    near  the  fucceflion,  might  be  fufpe£led  of  having  vie'vf 8 
xjrj. .    * . .       upon  the  inheritance  '^. 

the  We  fliall  next  fpeak  of  the  cuftody  of  female  heirs.     If 

CONQUEROR  -a  u     •       i  n.    j        r  u 

T;,  a  woman  was  a  minor,  Ihe  was  to  be  m  the  cuiiody  ot  her 

JO  H  N.      ]qj.(^  ^\\\  (i^g  became  of  full  age,  and  then  the  lord  was 
, ,     •  ^  bound  to  find  lier  a  proper  marriage.     If  there  were  more 

than  one,  he  was  to  deliver  to  each  her  reafonable  portion 
of  the  inheritance.  If  a  woman  was  of  full  age,  then  alfo 
Ihe  was  to  be  in  the  cuftody  of  her  lord  till  flie  was  mar- 
ried by  his  advice  and  difpofal ;  for  it  was  the  law  and 
cuflom  of  the  realm,  that  no  woman  who  was  heir  to 
land  fhould  be  married  but  by  the  difpofal  and  aflent  of 
her  lord  :  and  this  rule  operated  fo  far,  that  if  any  one  mar- 
ried his  daughter,  who  was  to  be  his  heirefs,  without  the 
aitent  of  his  lord,  he  was  by  (Iriclnefs  of  law  to  be  for  ever 
deprived  of  his  inheritance  ;  nor  could  he  retain  it  but  by 
the  mercy  and  .pleafure  of  the  lord.  Neverthelcfs,  when 
fuch  a  perfon  applied  to  the  lord  for  licence  to  marry  his 
daughter,  the  lord  was  bound  to  give  his  confent,  or  fliew 
fome  reafonable  caufe  to  the  contrary  :  if  not,  the  father 
might  even  proceed  to  marry  her  according  to  his  own 
wilh  and  inclination,  without  the  lord's  concurrence. 

UpCxNf  this  fubjecl  of  m.arrying  women  Glanville  puts  a 
cafe :  whether  a  woman  pofleffed  of  land  in  dower  might 
marry  as  fiie  pleafed,  without  the  alTent  of  her  ivarrantor^ 
that  is,  the  heir  of  her  huPjand;  and  whether  by  fo  doing 
flie  would  lofe  her  whole  dower  ?  Some  thought  (lie  ought 
not  to  lofe  her  dower,  becaufe  fuch  fecond  hufband  was 
not  by  the  law  and  cudom  of  the  land  bound  to  do  ho- 
mage to  the  warrantor,  but  only  a  {\vix^\zfcalty\  which  was 
merely,  in  cafe  the  wife  fliould  die  before  the  hufband,  to 
preferve  the  homage  from  being  entirely  lofl,  for  want  of 
fome  outward  mark  of  tenure.  But,  notwithflanding  that, 
Glanville  thou^rht  flie  was  bound  to  obtain  the  aflent  of 

«  Clanv.  lib.  7.  c.  11. 

her 


ENGLISH      LAW.  117 

her  warrantor,   or  lofe  her  dower,  unlefs  fhe  had  other    CHap,   iil 
lands,  either  by  maritagium  or  by  inheritance  v  for  then  it     wilham 

was  fufficicnt  if  (he  had  the  aflent  of  the  chief  lord  :  and   ^„.    'J',':,^^- 

CONQUEROR 

this  was  on  account  of  the  fimple  fealty  only  which  the  to 

hufband  was  bound  to  do  to  the  lord.  If  the  inheritance 
was  held  of  more  than  one  lord,  it  was  fuflficient  to  obtain 
the  aflent  of  the  chief  lord''. 

If  women,  while  in  cuftody  of  their  lords,  did  any  thing 
which  was  a  caufe  of  forfeiture,  and  this  was  made  out 
againft  them  in  a  lawful  way,  the  offender  loft  her  right 
to  the  inheritance,  and  her  fliare  accrued  to  the  reft ;  but 
if  they  had  all  incurred  a  forfeiture,  then  the  whole  inhe- 
ritance fell  to  the  lord,  as  an  efcheat. 

Widows  were  not  to  be  again  in  cuftody  of  their  war- 
rantors, though,  as  has  already  been  related,  they  were  to 
have  their  aflent  before  they  married.  Women  were  not 
to  forfeit  their  inheritance  on  account  of  any  incontinence : 
not  that  the  mzxim,  putagium  hared'itatem  nonadimity  meant 
this  indemnity  of  womew  in  cafe  of  incontinence,  for  that 
was  to  be  iinderftood  of  the  confideration  the  law  had  of  a 
fon  begotten  under  fuch  circumftances,  and  born  after. law- 
ful wedlock  i  who  was  thereby  intitled  to  fucceed  to  the 
inheritance  as  a  lawful  heir;  according  to  another  rule, 
Jilius  hares  legH'imus  ejl^  quern  tiuptU  dej?wfiftrant^. 

This  brings  us  to  confider  the  law  of  legitimacy.  It  ofbaaarjy. 
w^as  held,  that  no  hoJ}ardus\  or  baftard,  was  a  legitimate  or 
lawful  heir,  nor  any  one  not  born  in  lawful  wedlock.  If 
any  one  claimed  an  inheritance  as  heir,  and  it  was  objeded 
that  he  was  not  heir,  becaufe  he  was  not  born  in  lawful 
wedlock ;  then  the  plea  ceafed  in  the  king's  court,  and  it 
was  commanded  to  the  archbifliop  or  bifl-iop,  whichfoever 

d  Cl3nv.  lib.  7.  c.  la.  /arj/;;  anH  /7,,r.',   which  fignifies  or. 

'  i^^^^'  !u{^  or  ed'ttus.     So  wc  fiy  in  Engl  iK 

*  In   German   hajlarj -^    from  ha\  upCxM  t -^   as  it   were,  juUti  exortns. 

«ays   SpelsTian,   which   (Ipnif.es  mf-  Vid.  Spdm,  voce  BaftarJus. 

#u4f,  and  mci-phor;callyy]6a/i«;,  %m-  * 

it 


HISTORY     OF     THE 

it  might  be,  to  make  enquiry  of  the  marriage,  and  to  fignify 

'^UIWm'    ^°  ^^^  ^^^^b>   ^^  ^^^  juftices,  his  judgment  thereon;  for 

''^^  which  purpofe  there  iflued  a  writ  to  the  following:  efFe£l : 

CONQUEROR  .,.,  r-  '  ,^..^^ 

to  Rex  epifcopo  falutem  :    VeJi'iem  coram  me  iV  ,  in  curia  me  a 

•'  '      petit  verfus  R.  fratrem  fiunfi  quart  am  partem  fcedi  unius 

militis  in  villa ^  life,  ficut  jus  fuum  ;  et  in  quo  idem  R.  jus 
non  habetf  ut  IV.  dicif,  eo  quod  ipfe  bajlardusjit^  natus  ante 
matrimoniuvi  matris  ipj'orum.  Et  quoniam  ad  curiam  meam 
non  fpeclat  agnofcerc  cle  hcjiardia^  eos  ad  vos  mittOy  mandans 
ut  in  curia  chrijlianitatis  inde  faciatis  quod  ad  vos  fpeElat-. 
Et  cum  loqucla  ilia  debit  urn  coram  vobis  Jinetn  fortita  fuerity 
mihi  Uteris  vejlris  Jignijicetisy  quid  inde  coram  vobis  aclum 
fuerity  ilfc,  ^. 

Upon  the  fubje£l  of  legitimacy,  there  was  this  curious 
queftion :  If  a  perfon  was  born  before  his  father  married 
his  mother,  whether,  after  the  marriage,  fuch  child  was  to  be 
confidered  as  a  lawful  heir  ?  And  Glanville  fays,  that  tho* 
by  the  canons  and  Roman  law  (meaning  a  law  of  Juftinian 
adopted  in  a  conflitutlon  made  in  the  time  of  Pope  Alex- 
ander III.  about  thirty  years  before)  fuch  a  child  was  a  law- 
ful heir ;  yet  by  the  law  and  cuilom  of  this  realm  he  was 
not  to  be  received  as  an  heir,  to  hold  or  claim  any  inherit- 
ance. The  queflion,  whether  born  before  or  after  mar- 
riage, we  have  feen,  was  examined  before  the  ecclefiaftical 
judge,  whofe  judgment  was  to  be  reported  to  the  king  or 
his  jullices  ;  but  when  the  fpiritual  judge  had  certified  the 
anfwer  to  that  queflion,  the  king's  court  made  ufe  of  it  as 
it  pleafed,  and  denied  or  adjudged  the  inheritance  in  dif- 
pute  to  either  party,  according  to  its  own  rule  of  determi- 
nation :  (b  that  the  ecclefiaftical  court  only  anfwered  whe- 
ther the  party  was  born  before  or  after  marriage  •,  the  king's 
court  determined 'u;^o  was  heir  ^. 

As  a  baftard  could  have  no  heir  but  of  his  body,  this 
gave  occafion  to  a  very  particular  queftion  of  inheritance 
and  fucceflion.  If  a  perfon  made  a  gift  of  land  to  a  baftard, 

c  Glanv.  lib.  7.  c.  13,  14.  »»  Ibid.  c.  15. 

referving 


E  N  G  L  I  S  H      L  A  W.  119 

referving  a  fervjce  or  any  thing  clfe,  and  received  homage,     chap.   ill. 
and  the  baftard  died  in  feifin  of  the  land,  without  leaving      wiliiam 
any  heir  of  his  body,  it  was  a  doubt  in  Glanville's  time,  'h*^, 

who  was  to  fucceed  to  the  land ;  it  being  clearly  held  that  to 

the  lord  could  not ;  though  it  was  determined,  that  if  a  baf-       ^ 
tard  died  without  a  will,  his  goods  went  to  his  lord  ;  and  if 
he  held  of  more  than  one,  each  was  to  take  that  whicli  was 
found  within  his  fee  '. 

It  may  be  remarked  here,  that  all  the  efFeds  of  an^furer,  Ufurers. 
whether  he  made  a  will  or  not,  belonged  to  the  king :  this 
was  meant  as  a  penalty  upon  ufury,  after  the  death  of  the 
party  j  for  in  his  life-time  he  could  not  be  proceeded 
againft  criminally.  Among  other  inqulfitions  which  ufed 
to  be  made  for  the  king,  one  ufed  to  be  made  of  a 
perfon  dying  in  this  offence  (for  fo  it  was  called)  by  twelve 
lawful  men  of  the  vicinage,  upon  their  oaths  :  and  if  it 
was  proved,  all  the  moveables  and  chattels  of  the  deceafed 
ufurer  were  taken  for  the  king^s  ufe  ;  his  heir  was  difm- 
berited  ;  and  the  land  reverted  to  the  lord.  If  a  perfon  had 
been  notorioufly  guilty  of  ufury,  but  had  defifted  from  the 
practice,  and  died  a  penitent,  his  property  was  not  to  be 
treated  as  the  property  of  an  ufurer.  The  point  therefore 
was,  whether  a  man  died  an  ufurer  ;  and  only  in  fuch  cafe 
could  his  effecSts  be  confifcated^. 

To  finirti  the  fubjc^  of  defcent  to  heirs  ;  it  jiiuft  be  re-  Of  cfchcat. 
marked,  that  next  after  thofe  we  have  mentioned,  the  ulti" 
mus  hteresy  if  he  could  be  fo  called,  of  every  man  was  his 
lord  :  for  when  a  perfon  died  without  ,a  certain  heir  ',  the 

,  *   Clan.  lib.  7.  16,  cafe  orbaCla^dy,crchcat'»dto-the  lord, 

^  Ibid.  and  fo  it  does  at  this  day. 

1  Thrs  law  of  ultmus  hares,  laid  It    is  worthy  of  remark,  that    in 

down  fo   generally  by   Glauville,  is  Scotland,  where  feudal  rights  were 

laid  by  himfelf,  juft   before,   not   to  in    general   more    regarded  than    in 

take  place  where  a  baftard  died  with-  En^'iand,    the    lord    has   long    been 

out  heirs  of  his  body.    The  reafon  of  dejxrivcd   of  this   cafualty,   and  the 

this  exception    to  the  analogy  ot  te-  king  is  confidercd  as  the  w/z/waj /fc^rtfj 

nures  does  not  appear.  In  cafes  of  for-  not  only  of  the  baftard,  but  in  all  cafes 

teiturc  where   the   goods  even  went  of  failure  of  heirs  ;    upon  the  prin- 

to  the  king,  yet  the  land  cfcheated  to  ciple,   qu^d  nulliut    ejl,    cedit    d'^mir.s 

the  lord.     We  (hall  lee,  that  in  the  regi.     %.    Blackft.   %^<).   Erflc.  Prin. 

♦imc  of  Bra^yn,   the   land,   in  this  b.  3   tit.  10. 

lord 


12#  H  I  S  T  O  R  Y      O  F     T  li  E 

CHAP.  TTI.    lord  of  the  fee  might,  of  right,  fake  into  his  hands  anct 
WILLIAM      retain  the  fee,  wliether  fiich  lord  wars  the  king  or  any  other 

roNOUPROR   P^^^*^"-     Nevertheiefs,  (hould  any  one  afterwards  come  arnl 
to  fay  he  was  the  right  heir,  he  might,  either  by  the  grace 

^  '      of  the  lord,  or  at  leafl  by  the  king's  writ,  be  let  in  to  fue 

for  the  inheritance,  and  make  his  claim  out  in  court ;  vet, 
in  the  mejm  time,  the  land  remained  in  the  lord's  hands  ; 
it  being  a  rule,  that  when  a  lord  had  any  doubt  about  the 
true  heir  to  his  tenant,  he  might  hold  the  land  till  that  was 
made  out  in  due  form  of  law.  This  was  like  what  we 
have  feen  was  done,  when  there  was  a  doubt  whether  an 
heir  was  of  age  or  not ;  with  this  difference,  that  in  this 
cafe  the  land,  in  the  mean  time,  was  confidered  as  an 
efcheat,  which  was  to  all  intents  and  purpofes  the  abfolute 
property  of  the  lord ;  in  the  other,  it  was  not  looked  upon 
as  his  own,  but  only  as  de  cujlodid. 

'  Lancs  reverted  to  the  lord  by  efcheat,  not  onlv  on  fai- 

lure of  heirs,  but  by  various  caufes  of  forfeiture.  If 
any  one  was  convi£led  of  felony,  or  confelied  it  in  court, 
he  loft  his  inheritance  by  the  law  of  the  land,  and  it  went 
to  his  lord  as  an  efcheat.  Where  a  perfon  held  of  the 
king  in  capite^  in  fuch  cafe,  as  well  his  land  as  his  move- 
ables and  chattels,  wherever  they  were  found,  were  taken 
for  the  king's  ufe.  Again,  if  an  outlav/,  or  one  convi£led  of 
felony,  held  of  any  one  but  the  king,  then  alfo  all  his 
rnoveables  belonged  to  the  king,  and  his  land  was  to  re- 
main in  the  king's  hands  for  a  year  ;  but  at  the  expiration 
of  that  time,  it  was  to  revert  to  the  lord  of  the  fee  :  this, 
however,  was  cum  domorum  fuhverfione  et  atborum  ext'irpa-^. 
t'lGTie^  that  is,  according  to  the  barbarous  and  unwife  policy 
of  thofe  days,  not  till  the  king  had  flrfl  fubverted  all  the 
houies,  and  extirpated  all  the  trees  thereon. 

In  flmrt,  when  a  judgment  pafled  in  court,  that  a  man 
fiiould  be  exhizrcdatiUy  his  inheritance  reverted  to  the  lord 
of  the  fee,  as  an  efcheat.  If  any  one  was  condemned  for 
theft,  his  moveables  and  chattels  went  to  the  fheriff  of  the 

county ; 


E  N  G  I.  I  S  H      L  A  W.  rsr 

county  ;  but  the  lord  of  the  fee  took  the  land  without  wait-    chap-.  Ht. 
ing  the  year,  as  in  the  former  cafe,  becaufe  theft  was  not      ^^j^,  j^j^ 
an  offence acainil  the  kirte's  crown,  as  robbery  and  homicide  i''* 

were.    When  any  one  was  regularly  and  legally  outlawed,  to 

he  forfeited  his  lands;  and  tho'  he  was  afterwards  reftored  by  JOHN, 
the  king's  pavdon,  neither  he  nor  his  heirs  could,  by  reafoii 
of  fuch  pardon,  recover  the  land  once  forfeited,  againft  the 
lord  ;  for,  notwithftanding  the  king  remitted  the  paini  of 
forfeiture  and  outlawry  as  far  as  regarded  himfelf,  he  could 
not  thereby  infringe  the  rights  of  others  "". 

It  was  to  illuflrate  the  title  of  tnaritagium^  that  we  were 
^t  firft  led  into  this  long  digreilVon  aix)ut  the  law  of  defcent, 
legitimacy,  and  efcheat :  to  that  we  now  return  ;  and  fliall 
conclude  what  is  to  be  faid  upon  it,  by  fpeaking  of  the  te- 
nure by  which  a  tenant  /;/  maritagio  held  his  eftate. 

Maritagium  was  of  two  kinds:one  v/as  called /iZ'/fr.vw,  Maruns^cm.^ 
or  free  ;  the  other,  'ferintlo  ohnox'ium^  liable  to  the  ufual  fer- 
vices.  Liberum  maritagitdin  was  when  a  freeman  gave  part 
of  his  land  with  a  woman  in  marriage,  quit  and  freed  from 
him  and  his  heirs  of  all  fervices  towards  the  chief  lord.  Land 
fo  given  enjoyed  this  immunity  as  low  down  as  to  the 
third  heir;  and  during  that  time  no  homage  was  to  be 
done  :  but  after  the  third  heir  was  dead,  the  land  became 
fubje^l  to  its  old  fervices,  and  homage  was  again  to  be 
done  for  it.  If  land  was  given  in  maritagium  firvitio  oh- 
noxium^  that  is,  with  a  refervation  of  the  legal  fervices  *,  In 
that  cafe,  the  hufband  of  the  woman  and  his  heirs  down  to 
the  third  were  to  perform  that  fervicc,  but  yet  without 
doing  any  homage  ;  but  the  third  heir,  fays  Gianville, 
was  to  do  homage  for  the  firft  time,  arid  fo  were  all  his 
heirs  for  ever  after ;  tho',  in  cafe  of  liberum  maritagium,  we 
have  fecn  that  homage  was  not  to  be  done  till  after  the 
third  heir  was  dead.  In  all  thcfe  cafes,  however,  where  no 
homage  was  done,  yet  a  fealty  was  to  be  performed  by 
the  woman  and  her  heirs,  either  by  folemn  promife  or  by 


>n 


Ghr.v.  lib.  J.  c.  17. 

oath. 


122  HISTORY     OFT  HE 

CHAP.  III.    oath,  almoft  in  the  fame  form  and  words  in  wliich  homage 

VHTil^    was  done. 

«♦»«  When  a  man  havlne  land  fjiven  him  //;  maritazium  with 

to  a  woman,  had  by  that  woman  an  heir  born,  whether  male 

JOHN.  ^^  female,  who  was  heard  to  cry  within  four  walls,  claman- 
tern  et  auditum  infra  qiiatuor  parietes,  as  they  exprefled  it, 
and  furvived  his  wife,  then,  whether  the  heir  lived  or  not, 
the  maritagiinn  remained  to  the  hufband  during  his  life,  and 
after  his  death  reverted  to  the  donor  or  his  heirs  :  but  if 
he  had  no  heir  of  his  wife,  then  the  nmr'itagmm  reverted 
to  the  donor  or  his  heirs,  immediately  upon  her  death.  And 
this  was  a  fort  of  reafon  why  homage  was  not  ufually  re- 
ceived for  thefe  maritagia.  For  when  land  was  given  in 
any  way,  and  homage  was  received  for  it,  the  ef)'e£t  of  ho- 
mage was  fuch  that  the  land  could  not,  by  law,  return  to 
the  donor  or  his  heirs  :  which  would  be  contrary  to  the  in- 
tention of  thefe  gifts  in  maritagium.  If  the  woman  who 
had  land  thus  ^iven //;  wrtr//^^z7/?«  had  furvived  her  huf- 
band, and  married  a  fecond,  the  law  was  the  fame  as  to  his 
retaining  the  land  in  cafe  he  furvived,  whether  the  firft  huf- 
band left  an  heir  or  not ". 

If  land  was  to  be  claimed  either  by  the  wife  or  her  heir, 
as  having  been  given  /';/  maritagiumy  there  was  a  difference 
between  fuch  a  claim  when  againll  the  donor  and  his  heirs, 
and  when  againft  a  ftranger.  If  it  was  againll  the  donor 
and  his  heirs,  then  it  might  be  in  the  ele6lion  of  the  de- 
mandant to  fuc  in  the  court  chriftian,  or  in  the  fecular 
court.  A'br  queftions  of  maritagium  were  confidered  as  be- 
longing to  the  ccclefiaftical  judge,  if  the  demandant  pleafed 
to  rcfort  to  him,  on  account  of  the  mutual  promifcs  made 
by  the  man  and  woman  at  the  time  of  the  efpoufals.  But  if 
the  fuit  was  againft  a  flranger,  then  it  was  to  be  determined 
in  the  lay  court,  in  the  fame  way  as  other  fuits  about  lay- 
fees.  It  muft  be  obferved,  that  fuch  a  fuit,  like  a  plea 
of  dower,  was  not  to  be  conducted  without  the  prefcnce  of 

a  Glan.  lib.  7.  c.  18. 

the 


12^. 


E  N  G  L  I  S  H      L  A  W.  ,23 

the  warrantor  j  and  as  far  as  concerned  the  warrantor,  every    chap.  hi. 
thins  was  to  be  ordered  as  in  an  action  for  dower ;  all    ^^"^    nt^*^ 

,  1        1    .         ,  .       ,       -    ,  WILLIAM 

which  will  be  made  plain  when  we  come  to  fpeak  of  that  the 

proceeding:  only  this  mull  be  remembered,  that  the  third  CONQpEROR 
heir,  after  he  had  performed  his  homage,  might  go  on  with       JOHN, 
the  fuit  without  the  authority  of  his  warrantor  °. 

The  fubjecSl  of  homage  and  relief  deferves  further  con-  Homac 
fideration,  and  will  properly  enough  follow  what  has  jull 
been  faid.   Upon  the  death  of  the  father  or  other  anceftor, 
the  lord  of  the  fee  was  to  receive  the  homage  of  the  right 
heir  whether  he  was  of  age  or  not,  fo  as  the  heir  was  a 
male  ;  for  women  could,  by  law,  do  no  homage,  thtjugh 
they  fometin^es  ufed  to  do  fealty  ;  yet,  when  they  married, 
their  hufbands  were  to  do  homage  for  them,  in  cafes  where 
it  was  due  for  the   fee  they  held.     If  a  male  heir  was  a 
minor,  the  lord  could  not  have  cuftody  of  the  fee  nor  of 
the  heir  till  he  had  received  homage  ;  it  being  a  general 
rule,  that  a  lord  could  command  no  fervice,  relief,  or  any 
thing  elfe  from  the  heir,  whether  he  was  of  age  or  not,  till 
he  had  received  homage  for  the  fee  in  refpect  of  which  he 
claimed  fuch  relief  or  fervice  *,  and  this  was  on  account  of 
the  prote£tion  the  heir  could  claim  of  his  lord  after  homage, 
but  not  before.     A  perfon  might  do  homage  to  different 
lords  for  different  fees ;  but  one  of  thefe  was  to  be  the 
chief  homage,   and  diftinguilhed  above  the  reft,  by  being 
accompanied,    fays    Glanville,   with  allegiance  ^ ;    which 
was  to  be  performed  to  that  lord  of  whom  the  homager 
held  his  chief  freehold. 

Homage  was  to  be  done  in  this  way  :  the  perfon  was  to 
profefs,  "that  he  became  homo  do7tiini  fuiy  the  man  of 
"  his  lord,  to  bear  him  faith  for  the  tenement  in  re- 
"  fpe£l  of  which  he  did  homage  ;  to  preferve  his  terrene 
<*  honour  in  all  things,  faving  only  the  faith  he  owed  to  the 
*'  king  and  his  heirs."     From  this  it  is  clear  that  it  would 

•  Clanv.  lib.  7.  «.  1%,  9  Cum  lij^eerda  failum, 

be 


124  HISTORY      OF     THE 

CHAP.  IIT.    be  a  breach  of  faitb  and  oF  homage  for  a  v>affal  to  do  any 

^  thine  to  the  damage  of  the  lord  <3,  unlefs  in  his  own  defence, 

WILLIAM  °  ° 

the  or  at  the  command  of  the  king,  when  his  lord  had  taken  up 

j^  '  ^        arms  againft  his  fovereign  lord  the  king  :  and,  in  general, 
ji  o  H'  N.      jt  would  be  a  breach  of  faith  and  of  homage  to  do  any 
Of  deeds.  thing  ad  exharedationem  domini  fid,  vel  dedecus  corporis  fuL 

If  then  feveral  lords,  to  each  of  whom  a  tenant  had  done 
homage,  fhould  make  war  on  each  other ;  it  was  the  te- 
nant's duty  to  obey  the  commands  of  his  chief  lord,  and  to 
go  with  him  in  perfon,  if  he  required  it,  againft  any  of  the 
reft  ;  notwitkftanding  which,  in  all  other  refpe6ls,  the  fer- 
vices  owing  to  fuch  other  lords  were  ftill  to  be  duly  ren- 
dered by  the  tenant.  The  penalty  of  doing  any  thing  to 
the  diftierifon  of  a  lord,  was  for  the  tenant  and  his  heirs  to 
lofe,  for  ever,  the  fee  held  of  him :  the  fame,  if  the  tenant  put 
violent  hands  upon  him,  to  hurt  or  do  him  any  atrocious 

injury '. 

Glanville  makes  it  a  queftion,whether  a  tenant  could 
be  put  to  anfwer  in  his  lord's  court,  for  default  in  any  of  the 
above  particulars,  and  whether  the  lord  could  d'ljirain  him, 
by  judgment  of  his  court,  without  the  command  of  the 
king  or  his  juftices ;  or  without  the  king's  writ,  or  that 
pf  his  chief  juftice.  And  he  thought  that  the  law  allowed 
a  lord,  by  the  judgment  of  his  court,  to  call  upon  and 
diftrain  his  homager  to  come  to  his  court ;  and  if  the  ho- 
mager could  not  purge  himfelf  againft  the  charge  of  his 
lord  tcrt'id  inanu,  by  three  perfons,  or  as  many  more  as  the 
court  might  require,  he  fhould  be  in  mifericordid  domini  to 
the  amount  of  the  whole  fee  he  held  of  him.  Glanville 
puts  another  quellion  \  whether  a  lord  could  diftrain  his 
homager  to  appear  in  his  court  to  anfwer  for  the  fer- 
vice  of  which  the  lord  complained  he  deforced  him,  or 
made  default  in  payment ;  and  he  thought  that  the  lord 
mi^ht,  without  the  command  of  the  king  or  his  juftices  ; 

<  Dimimin  Juum  ir-Jrfare.  '  *  Glanv,  lib.  5.  C  i. 

aud 


ENGLISH      LAW. 


125 


and  that  in  fuch  a  proceeding  the  lord  and  his  homager    CHAP.  in. 
might  come  to  the  duel,  or  the  great  aflife,  by  means  of       william 
any  one  of  the'  pares  who  chofe  to  make  himfelf  a  wit-  the 

nefs  that  he  had  i^tn  the  tenant  or  his  anceftors  do  to  the  t  <> 

lord  and  his  anceftors  the  fervice  in  difpute,  which  he  was  JOHN, 
ready  to -deraign  or  prove;  and  that  if  the  tenant  was  in  this 
manner  convi6led,  judgment  fhould  be  for  him  to  lofe  the 
whole  fee  which  he  held  of  the  lord.  Where  a  lord  found 
he  could  not  in  this  rmnncr  jiifiitiarey  or  compel  his  tenant 
to  appear  in  his  court,  he  was  obliged  to  refort  to  the  pro- 
cefs  of  the  curia  regis ' ;  that  is,  to  the  command  or  writ 
of  the  king,  or  his  juftices.  ^ 

Homage  might  be  done  by  every  freeman,  as  well  thofe 
within  age  as  thofe  who  were  of  full  age,  whether  clergy 
or  lay.  Yet  bifliops  confecrated  could  not  do  homage  to 
the  king,  though  they  *held  their  bifhoprics  as  baronies,  but 
only  fealty  ;  and  this  they  performed  with  an  oath.  It  was 
ufual  for  bifhops  eletl,  to  do  homage  before  their  confecra- 
tion  ^ 

It  is  to  be  underftood,  that  homage  was  not  a  mere  per- 
fonal  thing.  It  was  done  in  refpe£l:  of  fome  benefit  de- 
rived from  property  or  pofleflion.  It  was  due  in  refpecl 
of  lands,  tenements,  fervices,  rents  in  certain,  whether 
in  money  or  other  things ;  but  without  fome  of  thefe  caufes 
no  homage  was  due  to  a  lord,  though  it  might  be  due  to  the 
king.  Again,  homage  was  not  due  in  refpec^:  of  all  lands ; 
for  it  was  not  due  on  account  of  dower,  nor  free  marriage, 
nor  from  the  eldeft  fifter  on  account  of  the  fees  of  younger 
fifters,  till  after  the  third  defcent;  nor  of  a  fee  given  in  free 
alms  ". 

Homage  might  be  received  by  any  free  man  or  woman, 
whether  of  age  or  not,  as  well  clergy  as  lay.  If  homage 
had  been  done  to  a  woman,  and  fhe  married,  it  was  to  be 
done  over  again  to  the  hufband  ;  yet,  in  a  cafe  fome  what 
fimilar,  namely,  when  a  perfon,  by  a  final  concord  made 

•  Glanv,  lib.  9.  c.  u  *  Ibid.  -  Ibid.  c.  2. 

In 


126  H  i  S  T  O  R  Y     O  F     T  H  E 

P^AP^nr    in  court,   recovered   land   for  which  a  relief  had   been 
WILLIAM      P^^^  ^^  ^^^  ^^^^^  ^^^^f   ^^  ^^s  a  quellion,  whether  the  per- 

CONQUEROR  ^"^^  recovering  was  bound  to  pay  a  relief,  upon  his  coming 
to  into  pofleffion  thereof*. 

In  confcquence  of  homage  being  performed,  there  arofe 
a  mutual  relation  between  the  parties;  according  to  the  rule, 
quantum  homo  debet  domino  ex  homag'wy  tantum  tlli  debet  domi- 
nus  ex  dominio  ;  prater  folam  reverentiam.  Therefore,  when 
land  was  given  for  the  fervice  and  homage  of  the  tenant, 
and  any  one  afterwards  inftituted  a  fult  for  that  land,  the 
lord  was  bound  to  warrant  it  to  him,  or  to  give  him  in 
lieu  thereof  competens  excambiiim^  an  equivalent  in  value. 

Relief.  When  an  heir  who  had  been  in  cuflody  came  of  age, 

the  inheritance  was  reflored  to  him  without  paying  a  re- 
lief; that  being  remitted  in  confideration  of  the  profit  the 
lord  had  derived  from  the  cuftody.  A  female  heir,  whe- 
ther of  age  or  not,  was  continued  in  cuflody  till  fhe  was 
married  by  the  advice  of  her  lord.  If  {he  had  been  within 
age  when  (he  firfl  came  into  the  lord's  cuflody,  then  upon 
her  marriage  the  inheritance  was  quit  of  all  relief;  but  If 
flie  was  of  age  when  flie  firfl  came  Into  the  lord's  cuflody, 
though  fhe  continued  fome  time  in  cuflody  before  mar- 
riage, yet  her  hufband  was  to  pay  a  relief  upon  the  mar- 
riage ;  and  a  relief  once  paid  by  the  hufband,  was  an  ac- 
quittal both  to  hufband  and  wife,  during  their  feveral  lives, 
for  any  relief  on  account  of  the  inheritance  :  fo  that  nei- 
ther the  wife  nor  her  fecond  hufband.  If  fhe  had  one,  nor 
the  firfl  hufband,  fhould  he  furvlve  her,  could  be  called  up- 
on to  pay  any  reliefs. 

If  the  male  heir  was  of  age  when  his  anceflor  died,  and 
was  well  known  to  be  the  heir,  hd  might  hold  himfelf  in 
the  inheritance  even  againfl  the  will  of  the  lord,  as  we  be- 
fore faid ;  provided  he  made  a  tender  of  his  homage,  and  a 
xeafonable  relief,  in  the  prefencc  of  credible  perfons.     The 

="  Glanv.  fib.  9.  c.  3.  v  Ibid.  c.  4. 

relief 


E  N  G  L  I  S  H      L  A  W.  127 

relief  of  one  knight's  fee,  according  to  the  cuftom  of  the    c  H  a  p.  nr. 
realm,  was  faid  to  be  reafonable  at  a  hundred  ftiillings.      wiLLiAM 
The  relief  in  foccace-tenure  was  one  year's  value  of  the  the 

land.     As  to  baronies,  nothmg  certani  was  hxed  concern-  ro 

ing  their  relief;  but  the  relief  they  were  to  pay  was  mea-      JOHN, 
fared  by  the  pleafure  and  mercy  of  the  king  alone,  to  whom 
it  was  due.     The  law  was  the  fame  in  ferjeanties"^. 

When  the  lord  and  the  heir  had  come  to  an  agreement  ^-^j,^ 
refpe£ling  what  was  to  be  paid  for  relief,  the  heir  might 
exa6t  reafonable  aids  from  his  homagers;  always  proportion- 
ing this  demand  to  their  circumftances,  and  the  fize  of  their 
fees ;  that  it  might  not  become  fuch  a  grievous  impofi- 
tion  as  would   intirely  deftroy  their  contenement,   or,  to 
ufe  an  Englifh   term   which   has  been   formed   from  it, 
their  countenajuey  and  appearance  in  the  world :    and  no 
other  meafure  was  fettled  for  afccrtalning  thefe  aids  but 
this  regard  to  facts  and  circumftances.     With  the  above 
precautions,   a  lord,   in  other  cafes,  might  exa6l  fimilar 
aids  of  his  tenants ;  as  when  he  made  his  fon  and  heir 
a  knight,  or  when  he  married  his  eldeft  daughter.     Glan- 
ville  made  a  queftion,  whether  lords  could  demand  thefe 
aids  of  their  tenants  to  enable  them  to  carry  on  their  wars  ? 
The  pradice,  at  leaft,  was  for  them  never  to  attempt  to  di- 
ftrain  for  aids  on  this  occafion,  but  to  leave  them  to  the  vo- 
luntary generofity  of  their  tenants.     For  the  other  aids,  fo 
long  as  they  were  reafonable,  lords  might,  by  judgment  of 
their  courts,   without  ^^^.^  precept  or  command  of  the  king 
or  his  chief  juftice,   diftrain  their  tenants  by  the  chattels 
that  were  to  be  found  on  their  fees,  or,  if  need  were,  by 
the  fees  themfelves ;  fo,  however,  that  the  proceeding  was 
had  regularly  by  the  judgment  of  the  court,  and  confiftent 
with  the  reafonable  cuftom  thereof.    If  a  lord  could  diftrain 
his   tenants  for  payment  of  thefe  reafonable  aids,   much 
more,  (iiys  Glanville,  might  he  make  diftrefs  for  payment 
of  his  relief,  and  for  fuch  fervice  as  was  due  to  him  on 

*  Olmv.   !ib.  p.  c.  4. 

account 


CONQUEROi^ 
to 


158  H  I  S  T  O  R  Y     O  F     T  H  E 

CHAP.  TIT.    account  of  the  ke\     Thus  wc  fee  the  remedy  by  diflrefs 
WILLIAM      ^*^*^^'  "'^  Glunville's  time,  become  a  procefs  firft  agalnll  tl>c 
the  chattels  j  and  only  fi  opus  fuerit.  was  there  recourfe  to 

the  fecitfejf  i  though  it  is  probable,  that  in  the  origin  of 
J.O.H  N.      j}^j.  funiiaiary  method  of  compeliinig  tenants  to  do  their  fer- 
vices,  it  was  ufual  to  take  the  whole  fee  into  the  lord's 
hands  as  a  forfeiture,  to  enable  him  to  do  that  juftice  to 
himfeli  which  his  tenant  refufed  j   but  this  rigorous  .pro- 
ceeding was  by  <icgrees  foftened  down  to  one  againil  the 
ittoveables  -,  and  only  in  default  of  them,  againil  the  land. 
AJminiaiaLion         Having  taken  this  view  of  the  nature  of  tenures  ^nd 
at  juitac.  eftates,  it  .feems  neceflary  to  confider  the  order  of  admini- 

ilering  juftice,  with  the  procefs  and  modes  of  proceeding 
in  obtaining  redrefs  for  any  injury  to  property  or  to  the 
perfon  j  aii  enquiry  not  lefs  interefling  than  the  former,  as 
it 'Contains  in  it  the  firft  outline  of  that  courfc  of  judica- 
ture which  prevails,  with  confiderable  alterations  indeed,  at 
this  day.  In  purfuing  this,  there  will  be  occafion  to  no- 
tice fuch  parts  of  the  law  concerning  private  rights  as  have 
not  already  been  mentioned. 

Pleas  were  divided  into  civil  znd  cnmuial.  Criminal 
pleas  were  again  divided  into  fuch  as  belonged  ad  coronam 
domiiii  regis y  and  fuch  as  were  within  the  jurifdiclion  of  the 
fheriif.  The  picas  belonging  to  the  king's  crown  were, 
the  crimen  Ufa  tnajejiatis,  as  the  death  of  the  king,  or  any 
fcdition  touching  his  perfon  or  the  realm  ;  pleas  concern- 
ing the  fraudulent  concealment  of  treafure  trove ;  .pleas  de 
pace  domini  regis  infraBd;  pleas  of  homicide,  burning,  rob- 
bery, rape,  and  the  crimen  falft ;  all  which  offences  were 
puniftied  with  death,  or  the  lofs  of  limbs.  Only  the  crime 
of  theft  was  excepted,  which  was  within  the  cognizance 
of  the  flierifT,  and  determinable  in  the  county  court.  The 
fheritF,  in  like  manner,  in  cafes  where  the  lord  of  a  franchife 
negle£leil  to  do  juftice,  had  cognizance  of  medkta:^  as  they 
were  then  called,  vcrhera^  znd  p/ag^j  unlefs  the  party  com- 

»  Clanv.  c.  8. 

plaining 


ENGLISH      LAW.  "^113 

plaining  added,  as  he  might  If  he  pleafed,  an  allegation,    CHAP.   Ilf. 
de  pace  domim  regis  infractd,  namely,  that  it  was  againft      v/ILLlAM 
the  kinjr's  peace  ^.  the 

Civil  pleas  were  divided  in  the  lame  way;  lome  being  i„ 

entertained  in  the  king's  court,  and  others  in  that  of  the  JOHN. 
iherifF.  In  the  king's  court  were  determined  pleas  concern- 
ing baronies ;  that  is,  manors  held  of  the  king  vi  capite  ; 
pleas  concerning  advowfons,  villenage,  dower  11  fide  Jiihil ; 
complaints  for  breach  of  final  concords  made  in  the  king's 
court;  queftions  of  homage,  reliefs,  and  purpreftures ; 
pleas  of  debt  owing  by  lay  perfons,  or,  as  they  were  called, 
placita  de  debitis  laicorum  ^. 

The  following  civil  pleas  belonged  to  the  flierlff's  court: 
pleas  of  right  to  freehold,  when  the  court  of  the  lord  of 
whom  the  land  was  held,  had  made  default  in  determining 
the  right ;  and  queftions  upon  villenage  ;  and  thefe  pleas 
were  always  commenced  by  the  king's  writ. 

Besides  thefe,  which  were  all  dc propr'ietate^  there  were 
o^htx  ^\Q2isfuper  pojjejfiofie^  which  were  decided  by  recog- 
nition of  jurors.  Of  all  thefe  we  fliall  fpeak  in  their 
order. 

First,  of  pleas  in  the  king's  court,  or  curia  regis ^  as  it 
was  then  called.  When  any  one,  fays  Glanville,  com- 
plained to  the  king  or  his  juftlces  concerning  his  fee  or 
freehold,  if  "  the  matter  was  fuch  as  was  proper  for  that 
**  tribunal,  or  fuch  as  the  king  pleafed  fhould  be  examinetl 
"  there,  the  party  had  a  wTit  of  fummons  to  the  fherilF, 
**  direcling  him  to  command  the  wrong  doer  to  reftore  the 
*'  land  of  which  he  had  deforced  the  complainant;  and  un- 
*'  lefs  he  did,  to  fummon  him  by  good  fummoners  to  ajp- 

•^  la  this   Hinin<S^ion   between  the  and  "  the  peace;"  this  lafl  exprefllon 
fherifF's  jurifdiction  and  that  Oi    the  being  I'ufncicnt,   after  "■  the  peace  cf 
king,' we  fee  the  reafon  of  the  alie-  "  thePeriff"'^  had  ceafcd  to  be  di- 
lation   in    modern    indidlments-    and  llin>^u'fiied  as  a  fcparate  JurifdiiStion. 
writs,  •:;/<•/ arra.f  or"*' the  king's  crown  Glanvilie,  lib.  l.  c.  I,  z. 
♦«  and  dignity,"  «'  the  kinj;':.  peace,''  <"  GUnv.  lib.  i.  c.  3. 

Vol.  I.  K  "  pear 


CHAP. 

IIL 

WILLIAM 

the 

CONQUEROR 

to 

J  0  H 

N. 

A  writ  of 

right. 

114  H  I  S  T  O  R  Y     O  F     T  H  E 

"  pear  before  the  king  or  his  juilices,  at  fuch  a  day,  to 
"  (hew  wherefore  he  refufed  fo  to  do."  The  following 
was  the  form  of  the  writ :  Rex  vicecomiti  falutcm  :  Precipe 
A.  quod  ft 71  c  d'llatione  reddat  B,  unam  h'ldam  terra  in  villa 
(naming  it)  tmde  idem  B.  qiieritur^  quod pradicius  A.  ei  de^ 
forceat :  et  iiifi  fecerity  fummone  eum  per  bonos  fumtnctiitoresy 
quod  fit  ibi  coram  mc  vel  jujlitiariis  meis  in  crajVwo  pojl  ocla- 
bas  clauji  Pafcha  apud  (naming  the  place  where  the  court 
fat)  ojlenfurus  quare  non  fecerity  et  habeas  ibi  fummoni- 
toresy  et  hoc  breve,  Tejie  Ranulpho  de  Glanvilla  apud  Cla- 
tendon ''. 

At  the  appointed  day  the  party  fummoned  either  came 
or  not,  or  fent  a  meflenger  to  ejfoin  ^  him,  that  is,  to  make 
an  excufe  for  his  not  coming.  If  he  neither  came,  nor 
fent  an  eflbin,  the  demandant  was  to  appear  in  court,  and 
wait  his  adverfary  for  three  days.  If  he  did  not  appear  at 
the  fourth  day,  and  the  fummoners  offered  to  prove  they  had 
duly  fummoned  him,  another  writ  of  fummons  iflued,  ap- 
pointing his  appearance  in  fifteen  days  at  lead ;  and  this 
writ  required  him,  as  well  to  anfwer  upon  the  merits  of 
the  complaint,  as  for  his  contempt  in  difobeying  the  firft 
fummons.  When  three  writs  in  this  form  had  iflued,  and 
he  neither  appeared  nor  fent  any  one  to  eflbin  him,  his 
land  was  taken  into  the  king's  hands,  and  fo  it  remained 
for  fifteen  days  -,  and  if  he  did  not  appear  within  that  time, 
the  feifin  of  it  was  adjudged  to  the  complainant,  nor  could 
the  owner  have  any  remedy  to  recover  it,  but  by  writ  of 
right :  yet  if  he  appeared  within  thofe  fifteen  days,  and 
was  willing  to  replevy  the  land,  he  was  commanded  to  come 
again  on  the  fourth  day,  and  right  fhould  be  done ;  when, 
if  he  appeared,  the  feifin  was  reftored.  Indeed,  if  he  had 
appeared  at  the  third  fummons,  and  acknowledged  all  the 

^  Glanv.  lib.  I.  c.  6.  rivation,  than  t^oixwcrt'cti-^  though  it 

*  Ejftr.iuriy  or  Excrium,  fays  Spel-  fhould  ligniry  to  exxrule  by  means  of 

man  :  tfjf  privativum,  ct /c/n^,  cura ;  an  oath  ;  which,  to  be  lure,  is  the  prc- 

ab   angudia,  cura,   vel  labore   libc-  cife  nature  of  an  cffoin.    Vid.  Spclm.^ 

rare;  which  is  a  more  probable  de-  voce  ElToniarc. 

former 


ENGLISH      LAW.  u^ 

former  fummonfes,  he  would  lofe  the  felhn  of  his  land,    CHAP.  in. 
unlefs  he  could  produce  a  writ  from  the  king  to  the  juftices,     vv  i  L  L I A  M 

declaring  he  had  been  in  the  king*s  fervice  at  the  time  ap-  the 

,;,  .  ,.         tin,.  CONQUEROR 

pomted  by  the  court,  and  commandnig  th^  he  fliould  not  to 

be  held  as  a  defaulter,  nor  fufFer  as  fuch  ^  JOHN. 

If  the  party  denied  that  he  was  fummoned,  he  was  to 
fv/ear  it  duodeciuid  manu;  and  at  the  appointed  day,  fhould 
any  of  the  jurors  who  were  to  fwear  it,  fail,  or  any  be  law- 
fully excepted  to,  and  no  other  put  in  his  place,  that  very 
inftant  the  defendant  loft  the  feifni  of  his  land,  as  a  defaulter. 
If  he  difproved  the  fummons  in  the  above  way,  he  was, 
the  fame  day,  to  anfwer  to  the  aclion. 

Thus  far  of  appearance  and  non-appearance:  next  as  EiToias. 
to  effhifis.  If  the  party  did  not  appear  at  the  lirft  fummons, 
but  fent  a  reafonable  eflbin,  it  would  be  received  :  and  he 
might,  in  like  manner,  eflbin  himfelf  three  times  fuccef- 
fively.  The  caufes  of  excufe,  called  eflbins,  allowed  in  the 
king's  court,  were  many.  The  principal  eflbin  was  that 
de  itifinnitate.  This  was  of  two  kinds  :  one  was,  de  injir- 
mitate  veniendi i  the  other,  de  hijirm'itate  refeantifa ;  of 
which  the  firft  was  called  afterwards,  de  malo  veniendi;  the 
latter,  de  malo  leEt'i. 

If  at  the  firft  fummons  the  eflbin  de  lufirmitate  veniendi 
was  caft,  it  was  in  the  ele6lion  of  the  complainant  upon  his 
appearing  in  court,  to  demand  from  the  ejJoniatGr^  or  per- 
fon  who  made  it,  a  lawful  proof  of  the  eflbin,  on  the  very 
day;  or  that  he  ft-jould  find  pledges^;  or  make  a  folemn  en- 
gagement to  bring  a  warrant  or  proof  of  the  eflbin,  that 
is,  the  principal  fummoned,  at  a  day  appointed.  And  in 
this  manner  might  the  tenant  be  eflbin^d  three  times  fuc- 
ceflTively.  If  he  did  not  come  at  the  third  day,  nor  fend 
an  eflbin,  the  court  awarded,  that  he  fliould  appear  on  ano- 
ther day,  in  perfon,  or  by  a  fufBcient  attorney  (or  rcfponfaltSy 
as  he  was  then  called),  who  would  be  received  ad  lucran- 

« 

*  Clanv.  lib.  T.  c.  7,8.  ^  ClanviMt'5  words  are,  'vcl  'fh- 

K  2.  dum 


n6  HISTORYOFTHE 

CHAP.   III.  dum  vel  perdendum  in  his  place.     If  the  party  fummoned 

vvTmTTm  appeared  on  the  fourth  day,  after  three  eflbins,  and  avowed 

the  them  all,  he  was  required  to  prove  the  truth  of  them  by 

CONoyL  ^.^  ^^^  ^^^  ^^^  ^^^  ^^  another,  and  on  the  fame  day  was 

J  o  H  N.  ^^  anfwer  to  the  acflion  :  and  if  he  did  not  appear  at  the 
fourth  day,  nor  fend  his  attorney,  his  land  was  taken  into 
the  king*s  hands,  as  before  mentioned.  There  iflued  alfo 
an  attachment  againft  the  eflbniators  ianquamfalfarios,  for 
not  performing  the  engagement  they  had  made  for  their 
principal  -,  and  in  the  mean  time  the  principal  was  fum- 
moned, to  {hew  caufe  why  he  did  not  avow  and  make  good 
what  his  eflbniator  had  engaged  for  in  his  name :  a  fum- 
mons  went  alfo  againft  the  pledge  put  in,  as  above  men- 
tioned, by  the  eflbniator,  to  ftiew  caufe  why  he  did  not 
produce  the  principal  to  make  good  the  eflbin  \ 

If  the  principal  appeared  within  the  fifteen  days,  and 
was  willing  to  replevy  the  land,  a  day  was  given  him  ;  and 
if  he  then  gave  his  fureties,  he  recovered  his  feifin.  If  he 
denied  all  the  fummonfes,  and  difproved  them  duodecimd 
manu ;  or  if  he  admitted  the  firft>  avowed  his  three  eflbins, 
and  on  the  fourth  day  produced  the  above-mentioned  writ, 
teftifying  that  he  was  in  the  king's  fervice ;  he  could  in  that 
cafe  recover  feifm  of  the  land :  but  if  he  did  not  appear 
within  the  fifteen  days,  the  feifni  was  adjudged  to  the  com- 
plainant, as  before  mentioned.  The  direction  in  the  writ 
to  the  fherlff  for  taking  the  land  in  the  cafe  of  the  king  was, 
capias  in  maniim  meam  j.  and  of  that  for  giving  poflcflion  of 
it  to  the  complainant  w^Syfc'l/ias  M.  de  tantd  terrdy  &c. 

In  the  fame  manner  a  man  might  eflbin  himfelf  three 
times  de  Injirmitate  re/cant ifce,  or  de  malo  leBi ;  and  if  the 
party  appeared  not  at  the  third  fummons,  the  judgment  of 
the  court  was,  that  it  be  feen  whether  the  infirmity  be  a 
languor,  or  not.  For  this  purpofe  a  writ  iflued,  com- 
manding the  ftieriff"  to  fend  four  lawful  men  of  his  county 

^  CUav,  lil>.  I.  c.  12,  13,  14,  \i,t 

to 


ENGLISH      LAW.  ny 

to  view  the  party:  and  if  they  faw  that  it  w^as  languor,    chap.  hi. 
they  were  to  appoint  him  to  appear,  or  fend  his  attorney,    ^'^JJ^JJ^^J^^j^J^ 

in  a  year  and  a  day  ;  but  if  they  thought  it  riot  to  be  a  the 

^         ,  ^  .    ^  ^  •     J  r  CONQUEROR 

languor^  they  were  to  appoint  a  certain  day  ot  appearance  7^, 

for  him  or  his  attorney,  at  which  time  the  four  viewers      JOHN. 

were  lilcewife  to  appear  and  teftify  their  view.   Two  eflbni- 

ators  were  neceflary  to  make  this  eflbin  K 

Perhaps  the  firfl  two  eflbins  might  be  njejiiendi,  and  the 
third  de  rcfeantifd ;  in  which  cafe,  perfons  were  to  be  fent  to 
view  whether  latiguor  or  not  :  but  if  the  firfl  two  were 
de  refeant'ifd,  and  the  third  vefiiend'i,  they  were  adjudged  as 
if  all  were  veniendi :  for  it  was  a  rule,  always  to  judge  ac- 
cording to  the  nature  of  the  laft  efToin ''. 

We  have  feen  that  the  land  of  a  perfon  who  did  not 
appear,  was  taken  into  the  king's  hands.  It  was  alfo  the 
pra6lice,  if  a  perlbn  had  appeared  and  anfwercd,  and  a  fu- 
ture day  was  given,  and  at  that  day  he  neither  came  nor 
fent  his  attorney,  that  his  land  lliould  be  taken  into  the 
king's  hands ;  but  Glanville  ftates  this  material  difference, 
that  he  could  not  in  this  cafe  replevy  it.;  he  was  alfo  fum- 
moned  to  hear  the  judgment  of  the  court  upon  his  default: 
however,  whether  he  appeared  or  not,  he  loft  his  feifm 
for  the  flrft  default,  unlefs  he  could  avoid  the  fummons  by 
the  before-mentioned  writ  defervitio  regis.  A  perfon  who 
had  anfwcred  in  court  and  departed  in  a  lawful  way,  might 
recur  to  the  three  efToius,  unlefs  there  was  any  agreement 
to  waive  them. 

If  a  perfon  had  efToined  himfelf  once,  and  at  the  fccond 
day  he  neither  came  nor  efToined  himfelf,  we  have  feen  that 
a  writ  ifTued  to  the  fherifl'  to  attach  the  efibniator  ianquam 
falfariuniy  as  before  mentioned'.  That  the  efToniator 
might  be  treated  with  a  reafonable  fairnefs,  he  alfo  was 
allowed  to  elToin  himfelf.  Thus,  if  any  obftacle  happen- 
ed to  retard  bim  in  going  to  effoin  his  principal,  fo  that 

'  Gfanv.  lib.  I.e.  i3,  ^^.  "  Ibid.  c.  ao.  i  Ibid.  c.  20,  ii. 

he 


Ii8  H  I  S  T  O  R  Y      O  F     T  H  E 

CHAP.  III.    he  could  not  get  to  the  court  at  the  appointed  day,  he 
vvil  LI\M      ^'^^  ^^^^  the  fourth  day,   as   his  principal  had;  and  if  any 

the  one  came  within  that  time  to  efloin  him,  he  was  received 

CONQUEROR    ....  x,        n-     •  r    i  •      •      i  n-       o^u 

t<,  m  like  manner  as  the  elloniator  ot  the  prmcipal    .     1  he 

JOHN.  principal  might  alfo,  if  he  pleafed,  fend  a  fecond  efToniator, 
who  was  to  (late  to  the  court  the  excufe  of  the  principal, 
that  he  fent  that  c^cufe  by  an  efToniator  who  was  detained 
by  accidents  on  the  road,  and  that  he  would  prove  this  as 
the  court  fliould  award  ".  In  all  cafes  of  elToins,  if  the  ad- 
verfe  party  had  departed,  upon  a  day  having  been  given  by 
the  efToniator,  the  appearance  of  the  principal  within  the 
the  fourth  day  fignified  nothing  :  for  the  day  given  by  the 
efToniator  rnufl  flill  be  obferved  o. 

Th  u  s  far  of  the  eiToins  dd  ittfrwitate  vetiiendi,  and  de 
inJirmitaU  refeantifis;  or,  as  they  have  fmce  been  called,  de 
malo  veniendt^  and  dc  malo  lecli,  Glanville  mentions  feveral 
others;  as  that  de  ultra  mare  ;  upon  which  the  party  had 
at  leafl  forty  days.  Another  was,  fuh'ita  aquarum  hmnda- 
tioy  or  the  like  unexpe£led  accident,  which  was  allowed  to 
fave  the  four  days".  Another  was  cdWcd per  fervitiu);i  regis ; 
and  in  that  cafe  the  plea  was  put  without  a  day,  till  the 
party  returned  from  the  fervice  he  was  on  :  wherefore  this 
was  never  allowed  to  thofe  who  were  conflantly  in  the 
fervice  of  the  king,  fuch  perfons  being  left  to  the  ordinary 
courfe  of  the  court.  This  efToin  de  fervit'to  regis  lay  only  for 
perfons  in  the  king's  fervice  before  the  plea  was  commenced. 
If  any  went  into  the  king's  fervice  after  the  plea  com- 
menced and  eiibined  himfelf,  there  was  this  diflerence, 
whether  he  was  there  ^^r  viandatum  regis  ex  necejjitatey  or 
ex  voluntate^  without  any  mandate.  In  the  former  cafe, 
the  above-mentioned  order  was  obferved,  and  the  plea  was 
put  fine  die :  in  the  latter,  it  was  not.  Another  diftinc- 
tion  was  made,  whether  the  fervice  was  ultra  mare,  or 
citra  7}iare  :  if  the  former,  he  had  the  ufual  forty  days,  and 

^  Clanv.  |lb.  i.  c.  j^l,  zi,     ^-  Ibid.  c.  z:.     •  Ibid.  c.  t\.      ^  Ibid.  c.  25,  t6. 

was 


ENGLISH      LAV/. 


119 


was  expecled  at  the  expiration  of  them  to  appear  and  fliew  chap.  hi. 
the  king's  writ,  as  we  have  before  feen :  in  the  latter,  it  '"wiluaiT' 
was  at  the  difcretion  of  the  iuftices  to  give  a  lefs  or  a  greater  the 

time,  as  they  thought  it  belt  luitcd  the  kmg  s  fervice ''.  to 

There  was  an  efibin/^r  infirmitatem,  which  infirmity  JOHN, 
mufh  be  fuch  as  had  happened  fince  the  party  arrived  in  the 
town  where  the  court  was.  In  this  cafe  the  court  ordered, 
that  he  fhould  appear  the  next  day,  and  fo  on  for  three  days 
fucceflTively  *,  and  if  he  made  the  fame  excufe  the  third  day, 
then  four  knights  were  directed  by  the  court  to  attend  and 
fee  whether  he  was  able  to  make  his  appearance  or  not: 
if  not,  and  they  teftified  the  fame  in  court,  he  -had  a  refpitc 
for,  at  leafc,  fifteen  days '. 

Another  efToin  was  de  ejfe  in  peregrhmticne.  There 
was  a  diflindion  in  this  cafe,  as  in  that  of  the  king's  fer- 
vice, whether  the  party  had  commenced  his  journey  before 
the  fuit,  or  fince.  If  he  had  been  fummoned  firft,  the 
proceeding  took  its  courfe,  as  before  dated ;  if  not,  then 
there  was  a  difference,  whether  his  journey  was  towards 
Jerufalem,  or  otherways.  In  the  former  cafe,  he  had  a 
refpite  of  a  year  and  a  day,  at  leaft  •,  in  other  cafes,  the 
refpite  lay  in  the  difcretion  of  the  ju{lices% 

Having  confidered  the  circumftances  relating  to  the  offummon„ 
tenant's  appearance  in  court,  let  us  paufe  a  while,  and 
look  back  to  the  nature  of  the  writ  which  was  to  compel 
this  appearance,  and  the  method  taken  for  its  execution. 
The  writ  of  fummons  had  in  it  this  claufe  addrefTcd  to  the 
flicriff,  "  et  habeas  ih'i  funnnGii'itores^  et  hoc  breve  :""  in  con- 
fequence  of  which  the  firft  inquiry,  when  the  demandant 
offered  himfelf  at  the  appointed  day  in  court,  was,  whether 
the  fherifi'  had  there  the  writ  and  the  fummoners.  If  he 
liad,  and  the  fummons  was  proved,  they  proceeded  as  be- 
fore mentioned ;  but  if  the  fherifF  did  not  appear  within 
the  fourth  day,  (which  was  allowed  alfo  to  the  tenant)  then 

1  Glanv.  lib.  1.  c.  a;.  '  Ibid.  c.  28.  •  Ibid.  c.  49. 

there 


to 
OH  N. 


123  H  I  S  T  O  R  Y      O  F     T  H  E 

CH  A  P.  HI.     there  iflued  a  writ  de  fecund  a  fummoniiione^  directing  him 
WILLIAM      ^^  fummon  the  tenant,  and  to  appear  himfelf  and  fhew 

^^^  caufe  why  he  did  not  fummon  him  upon  the  firft  writ. 

CONQaEROR    .^,  .  •       ,    1      r   o        •      rr  vu  .u       av.' 

This  contanied  the  nrit  writ  of  lummons,  with  the  addition 

of  this  claufe :  et  tu  ipfcfts  ihi  ojlenfuriis  quare  illam  fummoni" 
tioficj7i  el  nonfecerisy  Jiriit  tibi  praceptum  fuit  per  aliud  breve 
meutn,  et  habeas  ibi  hoc  breve^  et  illud  aliud  breve.  If  the 
{lieriiT  came  at  the  day,  and  conieffcd  that  he  had  not  ex- 
ecuted the  writ,  he  was  then,  as  they  termed  it,  /;/  miferi- 
cord'id  regis,  that  is,  he  was  amerced ;  the  demandant  loft 
a  day  without  effe6l,  and  the  tenant  was  to  be  fummoned 
ao-ain  :  but  if  the  flieriif  averred  that  he  commanded 
lawful  fummoaers  to  make  the  firfl  fummons,  and  they, 
being  prefent,  admitted  it,  they  as  well  as  the  flierifF  were 
amerced,  if  they  had  not  obeyed  it.  But  if  they  denied 
that  the  fheritF  gave  them  charge  of  the  fummons,  then 
there  was  a  dillintlion,  whether  the  fheriiF  gave  it  in  the 
county-court  or  not.  Such  matters  ought,  properly,  to  be 
tranfafted  in  that  court  j  and  if  the  plea  was  commenced 
fomc  time  before  the  county-court,  Glanville  fays,  attachia- 
hitur  nfque  ad  comitattim,  and  then  a  complete  fummons  was 
to  be  made.  If,  then,  the  fummoners  had  been  enjoined  in 
the  county,  and  it  was  fo  proved,  the  fummoners  were 
amerced  •,  for  this  was  a  folemn  a6i:,  which  they  would  not 
be  allowed  to  deny  :  if  out  of  the  county,  and  they  denied 
the  command,  then  the  flieriff  alone  was  amerced,  for  exe- 
cuting the  writ  in  a  private  and  improper  manner :  for  all 
public  a£ls,  fuch  as  enjoining  fummons  to  be  made,  taking 
pledges  of  profecuting,  and  pledges  de  J}a?nlo  ad  reclum, 
ought  to  be  tranfacled  in  a  public  manner,  that  there  might 
be  no  debate  concerning  fuch  prefatory  procefs ;  a  circum- 
flance  which  would  lead  to  great  impediments  in  fults.  If 
the  fummoners  were  not  prefent  at  the  appointed  day,  but 
fent  their  eflbniators,  who  eflbined  them ;  and  added,  that 
they  had  properly  fummoned  the  party ;  in  that  cafe,  the 
firft  day  wao  confidered  as  not  loft  to  the  demandant,  and 

the 


E  N  G  L  I  S  H      L  A  W.  ,121 

the  fummoners  wt:re  amerced  for  not  appearing  and  proving    chap.   iir. 
the  fummons,  as  was  enjoined  them,  unlefs  they  could  ex-      william 
cufe  themfelves  by  the  king's  writ  defervitio.     It  (hould  be  the- 

remembered,  that  one  or  other  of  the  fummoners  might  to 

excufe  himfelf  at  the  firft  day ;  and  in  that  cafe,  the  firft      JOHN, 
day  was  not  confidered  as  loft:  to  the  demandant  \ 

Such  was  the  proceeding  where  the  tenant  was  fimply  of  attachment; 
fummoned,  without  any  pledges  being  given.  It  may  be 
proper  to  mention  in  this  place,  what  the  procefs  would  be, 
when  an  attachment  was  necedary.  If  the  fuit  was  of  a 
kind  to  make  it  neceffary  for  the  tenant  to  find  pledges 
ie  Jlando  ad  re5inm  for  his  appearance,   (as  was  the  cafe  in  ( 

pleas  for  breach  of  a  final  concord  made  before  the  king  or 
his  jufticcs,  and  for  novel  diiTeifin)  and  thefe  pledges  had  been 
recorded  in  the  county  court,  or  before  the  juftices;  then  if 
the  tenant  did  not  appear,  nor  eflbin  himfelf,  the  pled- 
ges were  adjudged  to  be  amerced,  and  further  pledges  were 
required,  to  engage  for  his  anfwering  to  the  fuit.  This 
was  to  be  done  three  times ;  and  if  he  did  not  come  at  the 
third  fummons,  his  land  was  taken  into  the  king's  hands, 
in  like  manner  as  before  mentioned  \  and  the  pledges  like- 
wife  were  amerced,  and  fummoned  to  appear  in  court  at 
a  certain  day,  in  order  to  hear  the  judgment.  This  was 
the  courfe  of  attachment  in  civil  caufcs :  but  in  criminal 
ones,  as  in  thofe  pace  de  dc?nbn  regis  irtfi-aEfdy  if  the  party 
did  not  appear  at  the  third  fummons,  there  iffued  a  capias 
to  take  the  body,   the  pledges  being  amerced  as  in  the 

former  cafes ". 

Thus  far  of  the  default  of  the  tenant.  If  the  demand- 
ant did  not  appear  at  the  firft  day,  he  nilght  eflbin  himfelf 
in  like  manner  as  the  tenant.  If  he  negle£led  both,  the 
tenant  was  difmifled  ^///^  die ;  fo,  however,  as  that  the  de- 
mandant mljrht  inftitute  another  fuit  for  the  fame  caufe  of 
adion.  But  as  to  this,  and  the  confequence  of  the  tenant's 
default,  there  was  a  diverfity  of  opinions  in  Glanville's  ■ 

'  Claov.  lib.  I.  c.  3«,  3*.  "   Ibid.  C.  31. 

time. 


122  H  I  S  T  O  R  Y      O  F     T  H  E 

CHAP.   in.    time.     Some  held  that  he  only  loft  his  firft  writ,  with  his 

WILLI  \M      ^^^^  ^^^  expences,  but  not  his  a6lion;  fo  that  he  was  at 
the  liberty  to  commence  another :   others  thought  he  loft  his 

'    j^  a£lion  totally,  without  any  right  of  recovery ;   and  that  he 

JOHN.  fhould  be  amerced  for  his  contempt  of  court.  Others 
were  of  opinion,  that  he  lay  at  the  king's  mercy,  whether  he 
fliould  be  admitted  to  bring  his  adion  again.  In  either 
cafe,  if  the  demandant  had  found  pledges  de  clamor e fuo  pro- 
fequendoi  as  was  the  cafe  in  fome  fuits,  his  pledges  were 
likewife  to  be  amerced.  Glanville  further  adds,  that  in 
criminal  matters  and  thofe  relating  to  the  peace,  where 
the  king  had  an  intereft,  as  he  was  bound  to  profecute, 
his  body  was  t©  be  taken,  and  kept  in  cuftody  until  he 
profecuted  his  appeal:  befides  which,  his  pledges  were 
ilill  to  be  amerced  *.  If  both  demandant  and  tenant  were 
abfent  at  the  day,  it  was  in  the  difcretion  of  the  king  or  his 
juftices  to  proceed  againft  both ;  againft  the  tenant  for  con- 
tempt of  court,  and  the  demandant  for  falfe  claim  ^. 

When  obedience  had  been  paid  to  the  writs  of  fummons, 
and  both  parties  were  in  court,  the  demandant  made  his 
demand  of  the  land  in  queftion  \  and  then  the  tenant  might, 
if  he  pleafed,  pray  a  view  of  the  land.  If  the  tenant  had 
no  other  land  in  the  fame  viil,  the  view  was  made  without 
delay ;  but  if  he  had,  the  tenant  was  refpited,  and  another 
day  given  in  court.  "When  he  departed  in  this  manner 
from  court,  he  might  claim  three  effoins;  and  a  writ  was 
direded  to  the  fheniiF  to  fend  liberos  et  legales  homines  (not 
fpecifying  any  number)  of  the  vicinage  of  the  vill  to  view 
the  land  in  queftion,  and  to  have  four  of  them  to  certify 
their  view  to  the  court '. 

After  the  three  eflbins  accompanying  the  view,  and 
after  both  parties  had  appeared  in  court ;  then  the  demand- 
ant was  to  fet  forth  his  claim  in  the  following  manner  : 
Peto^  &c.  "  I  demand  againft  B.  one  hide  of  land  in  fuch 
"  a  vill  (naming  it),  as  my  right  and  inlieritance,  of  which 

*  Ghnv.  lib.  I.  c.  3Z.  y  Ibid.  33.  ^  Ibid.  lib.  *..  c  i,  2. 

my 


E  N  G  L  I  S  H      L  A  W.  -  123 


"  my  father  (or  grandfather,  as  it  might  be)  was  feized  in  chap,   iil 

*'  his  demefne  as  of  fee,  in  the  time  of  Henry  I.  (or  after  w^lliam 

"  the  firft  coronation  of  the  king,  as  it  might  be),  and  ^^^ 

"  from  which  he  received  produce  to  the  value  ot  ntty  thil-  to 

"  lings  at  lead  (as  in  corn,  hay,  and  other  produce) ;  and  this  ,,  ^  ^ 

o  ^  .  .  Counting  upon 

"  I  am  ready  to  prove  by  this  my  free  man  John  j  and  if  any   die  wi  it^ 

**  thing  fhould  happen  to  him ;  by  him,  or  him"  (for  he  could 

name  feveral,  though  only  one  could  wage  battle)  "  who 

"  fawand heard  this."   Or  he  might  conclude  in  this  form: 

"  and  this  I  am  ready  to  prove  by  this  my  free  man  John, 

**  whom  his  father,  on  his  death-bed,  enjoined,  by  the  faith 

"  a  fon  owes  a  father,  that  if  he  ever  heard  of  any  pleabe- 

"  ing  moved  concerning  this  land,  he  would  deraign  (or 

"  prove)  this**,  as  what  his  father  had  feen  and  heard '\" 

This  was  the  manner  in  which  the  demandant  fprcad  out 

the  fubftance  of  his  writ ;  and  his  reliance  was  always  upon 

the  teftimony  de  vifu  et  auditu. 

After  the  demandant  had  thus  made  his  claim,  it  was  -r  i,c  Ja  i. 
in  the  ele6lion  of  the  tenant,  whether  he  would  defend 
himfelf  by  duely  or  avail  himfelf  of  the  privilege  granted  by 
the  king's  late  ftatute,  and  demand  that  a  recognition  fhould 
be  made,  which  of  the  two  had  the  greatell  right. to  the 
land.  If  he  chofe  the  duel,  he  was  to  defend  his  right  de 
verho  in  verhum^  as  the  demandant  ha.d  fet  it  forth  ;  eitlier 
in  perfon,  or  by  fomc  fit  champion.  It  was  a  rule,  that 
when  the  duel  was  once  waged,  the  tenant  could  not 
claim  the  benefif  of  the  new  law. 

After  the  duel  was  waged,  the  tenant  might  eflbin 
himfelf  three  times,  as  for  himfelf;  and  in  addition  to 
thefe,  three  times  in  refpeil  of  his  charhpion.  "When  all 
thefe  cflbins  were  elapfed,  the  demandant  was  to  bring  his 
champion  into  court,  ready  for  the  engagement  v  the 
champion  was  to  be  the  fame  perfon,  upon  whom  he  put 
the  proof  in  his  claim ;  nor  could  he  put  any  one  in  hit 

*  Clanville'!^  words  are  :  U:c  dirati-     et  audfvit. 
tnar-e*^  Jicut  id  quid  patfr  Juui  itdit^  ^  Clan.  lib.  2.  c.  3. 

place 


124  HISTORYOFTHE 

CHAP.  III.    place  after  the  duel  was  once  waged.     If  he  who  waged 
WILLIAM      *^^  ^^^^  happened  to  die,  and  that  was  declared  by  the 

^^^  voice  of  the  vicinage,  he  midit  recur  to  one  of  the  others 

CONQUEROR  i-.,.  n  -rin 

to  named  in  the  claim  ;  or  even  a  itranger,  it  that  Itranger 

JOHN.       ^,^g  qualified  to  be  a  proper  witnefs  ;  for  that  qualification 

was  always  required  in  the  champion  of  the  demandant. 

But  this  was  only  where  the  champion  died  by  a  natural 

death  j  for  if  it  happened  by  any  fault  or  negle6i:  of  his 

own,  no  other  could  be  fubftituted  in  his  place,  and  the 

demandant  loft  his  fuit.     Glanville  ftates  it  as  a  queftion, 

whether  the  demandant's  champion  himfelf  could  nominate 

any  one  in  his  place  ;  and  he  thought,  that  by  the  old 

and  eftablifhed  cuftom  of  the  realm,  he  could  not  appoint 

any  one,  except  his  fon  born  in  lawful  wedlock. 

As  we  before  faid,  the  champion  of  the  demandant  muft 
be  a  perfon  who  could  be  a  proper  witnefs  of  the  matter  in 
queftion  per  vifum  et  auditum ;  the  demandant  of  confe- 
quence  could  not  be  his  own  champion  ;  but  the  tenant 
might  defend  him.felf,  either  in  perjon^  or  by  another  fit 
champion.  If  the  champion  of  the  tenant  died,  it  was 
a  queftion  what  was  to  be  done  ;  whether  the  tenant 
might  defend  himfelf  by  fome  other,  or  was  to  lofe  his 
fuit,  or  only  feifin  of  the  land  :  Glanville  thought  it  was  to 
be  ordered  exactly  as  in  cafe  of  the  demandant's  champion 
dying. 

It  fometimes  happened,  that  the  champion  was  a  per- 
fon hired  for  a  reward.  This  was  a  good  caufe  of  excep- 
tion ;  and  if  the  adverfe  party  offered  to  prove  it  by  one 
who  faw  the  reward  given,  he  was  to  be  heard  to  this  point; 
and  the  duel,  in  the  mean  time,  was  deferred.  If  th6 
champion  of  the  demandant  was  convi6lcd  of  this  charge, 
or  was  vanquiflied  in  the  duel  upon  the  point  of  right,  the 
demandant  loft  his  fuit,  and  the  champion  loft  his  legem 
terra ;  that  is,  he  was  never  after  to  be  received  as  a  wit- 
nefs to  wage  duel  for  any  one;  though  he  might  in  a  caufe 
of  bis  own,  either  as  defendant  or  appellant,  in  matters  of 

the 


E  N  G  L  I  S  H      L  A  W.  125 

the  peace  and  of  perfonal  injury  ;  he  might  alfo  defend  by  CH  A  p.  ni. 
duel  his  own  right  to  a  fee  and  inheritance.  In  addition  williaM 
to  the  lofs  of  his  law,  he  was  to  be  fined  in  the  penalty  of  „^^  '^f__^„ 

-   -  .  CONQUEROR 

fixty  {hillings,  nomine  recreantifiZy  on  account  or  his  cow-  to 

ardice.  If  the  champion  of  the  tenant  was  conquered,  his  J  ^  **  N- 
principal  loft  the  land  in  queftion,  with  all  the  fruits  and 
produce  found  on  it  at  the  time  of  the  feifin,  and  was 
never  to  be  heard  in  a  court  of  juftice  concerning  the  fame  ; 
for  it  was  a  rule,  that  whatever  was  once  determined  in 
court  by  duel,  remained  ever  after  fixed  and  unalterable. 
There,  accordingly,  iflued  a  writ  to  the  (heriff,  quod  ft  ne 
dilatione  feifias  M.  de  una  hidd  terra ^  ^c. — quia  ea  hida  terra 
adjudicata  eji  in  curia  med  per  Jidem  duelli.  When  the 
champion  of  the  demandant  was  conquered,  as  before 
mentioned,  the  tenant  was  quit-claimed*^  from  any  right  of 
the  demandant  to  recover  againft  him. 

This  was  the  courfe  of  proceeding,  when  the  tenant, 
in  a  writ  of  right,  chofe  to  defend  his  right  by  dueH. 
But  the  tenant  might  avail  himfelf  of  the  provifion  lately 
made  by  Henry  II.  and  put  himfelf  upon  the  aflife ;  to 
which  the  demandant  might  confent,  and  put  himfelf  alfo 
upon  the  aflife. 

If  the  demandant  had  expreflcd  before  the  juftlces  in  ofiheaffife. 
open  court  "  his  confent  to  put  himfelf  on  the  aflife,  he 
was  not  allowed  to  retract,  but  muft  fl:and  or  fall  by 
the  aflife,  unlefs  he  could  fliew  fomc  good  caufe  why  the 
aflife  fliould  not  pafs  between  them.  One  caufe  which 
might  be  fliewn,  was,  that  they  were  of  the  fame  blood, 
and  defcended  from  the  fame  ftock  whence  the  inherit- 
ance came.  If  this  was  admitted  by  the.other  party,  the 
aflife  was  waived,  and  the  queftion  v/as  argued  and  deter- 
mined by  the  court  j  it  being  a  point  of  law,  which  was 

«^  Rictus  clamabatur  de  ejus  da-  that  in  the  time  of  Glanville,   there 

v:e9.  were  j unices  Je  banco^  in  tlic  inodera 

■^  Glanv.  lib.  2.  c.  4,'  <.  feni'e  oi  thofc  words;  a  conllrudioa 

'  So    [   conllrue  coram  jujlitit!   in  which  this  palTagc  will  ccrtainl)'  noe 

ianco  jedeniibus^   tho'  this  phral'e  has  wtvraQt. 

been  quoted  by  fome  peifons  tg  fiiew 

the 


126  HISTORYOF    THE 

CHAl\ni.    the  nearcft  to  the  firft  flocTc,  and  the  heir  with  the  better 
WILLIAM     ^''^^^*     In  this  manner  the  nearefl  heir  obtained  the  land, 

CONQi'EROR    ""^^'^^  ^^  ^°"^^  ^^  ^^^^^'"  ^^^^  ^^^  ^'^  ^^^  anceftor  had  any  way 
to  loll  it,  fold  it,  made  a  gift  of  it,  changed  it,  or  by  any  other 

J  "       means  had  parted  with  it ;  and  if  the  caufe  was  reded  upon 

any  of  thefe  points  of  fa(fl,  it  might  be  determined,  fays 

Gianville,  by  the  duel. 

Suppose  the  perfon  who  had  put  himfelf  on  the  afTife, 

had  denied  this  impediment  of  reJationfliip;  fuch  aqueftion 

was  tried  by  calling  into  court  the  common  relations  of 

both  parties.     If  thefe  agreed  unanimoufly  that  they  were 

related,  it  was  ufual  to  abide  by  this  declaration  ;  but  if  one 

of  the  litigants  ftill  continued  to  deny  it  to  be  fo,  the  lafl 

refort  was  to  the  vicinage ;  and  if  they  agreed  with  the 

relations,  this  complete  teftimony  was  acqulefced  in.  Should 

the  relations  difFer  in  their  teftimony,  the  vicinage  was  in 

like  manner  called  in,  and  their  verdidt  was  decifive.     If, 

upon  this  inquifition  being  made,  it  appeared  to  the  court 

and  juftices  that  the  parties  were  not  defcended  from  the 

fame  ftock,  the  perfon  who  made  the  exception  was  to 

lofe  his  fuit.     If  there  was  no  exception  taken,   then  the 

affifc  proceeded,  and  its  determination  was  as  final  as  that 

by  duel  ^ 

Before  we  enter  on  the  procjeeding  of  the  afllfe,  let  us 

refle6l  with  Gianville  upon  the  nature  and  defign  of  this 

innovation  upon  the  old  method  of  trial.     "  The  aflifc," 

fays  that  author  ^,  "  is  a  royal  benefit  conferred  on  the  na- 

^  Glanv.  lib.  z.  c.  6.  ^r^/7/ (T^r<:  and  other  aflifes  had  grown 

t  The    words   o!"    Gianville    arc  :  famihar  among  lawyers.     This  cor- 

EJl  autem  ajfija  regale  qucddam  bene-  ruption    of   the   ttxt    in   fo    lemark- 

fcium  clementia  principle ^  de  coucilio  able   a    paiTagc   as  the    prcfcnt,    has 

frocerum  p:pulis  indnhum.      I   quote  had  the  efffct  of  enablifhing  a  vul- 

this  from  the  Uft  edition  of  GhnviUc,  gar  opinion,  that  the  alteration  made 

adhering  to  the  reading  which  is  war-  by    Htmy    11.    related    only    to    the 

ranted   by   the   confent  of  the  Har-  trial  in  the  writ  of  right ;  an  opinion 

leian^  Cottanian^   and  Bodleian  manii-  which  is  not  warranted  by  the  hiRory 

fcript?,  in  oppofttion  to  the  old  printed  of  this  revolution,   and  which  is  left 

text,  which  reads  magna  aJfiJa^   &c.  without  any  fupport,  as  it  fhould  fecm, 

an  epithet  which,  I  am  clear,  has  been  when  the  concuri  ing  teftimony  of  thefe 

interpolated  in  this  and  other  paffages  three  MSS.  is  againll  the  infeiti»n  of 

of  Gianville  by  a  later  hand  at  a  pc-  this   epithet  in  molt    of   the    places 

riod  when  the  dillinJtion  between  the  where  it  is  ufed. 

"  tion 


<( 


ENGLISH      LAW.  127 

tioii  by  the  prince  in  his  clemency,  by  the  advice  of  his  chap,  hi, 
"  nobles,  as  an  expedient  whereby  the  lives  and  interefts  of  ^^^i^TTf?^^^ 
"  his  fubje£ls  might  be  preferved,  and  their  property  and  the 

"  rights  enjoyed,  without  being  any  longer  obliged  to  ^^-^'^^^O^ 
"  fubmit  to  the  doubtful  chance  of  the  duel.  After  this  JOHN, 
"  (continues  he)  the  calamity  of  a  violent  death,  which 
"  fometimes  happened  to  champions,  might  be  avoided, 
**  as  well  as  that  perpetual  infamy  and  difgrace  attendant 
"  upon  the  vanquifned,  when  he  had  once  pronounced 
**  the  infejlitm  et  itwerecufidum  verhum^  The  horrible 
word  here  alluded  to  was  craven  ;  by  which  the  champion 
fignified  that  he  yielded,  and  fubmitted  himfelf  to  all  the 
confequences  attending  fuch  a  defeat.  "  This  legal  infti- 
"  tution,  fays  Glanville,  is  founded  in  the  greatefl,  equity, 
"  and  the  fulleft  defire  of  doing  juftice.  For  a  queftion 
**  of  right,  which,  after  many  and  long  delays,  can  hardly 
"  ever  be  made  out  by  duel,  is  inveftigated  with  difpatch 
"  and  eafe,  by  the  benefit  of  this  conftitution.  The 
'*  aflife  itfelf  is  not  clogged  with  fo  many  eflbins  as  the 
**  duel.  By  this  the  expences  of  the  poor  are  fpared,  and 
"  the  labour  of  all  is  fhortened.  In  fine,  as  the  credit  of 
"  many  fit  witnefles  has  a  greater  influence  in  judicial  en- 
"  quiries  than  that  of  one  only  *,  fo  this  conftitution  con- 
**  tains  in  it  more  juftice  than  the  duel.  The  duel  pro- 
"  ceeds  upon  the  teftimony  of  one  witnefs  only  ;  this 
"  conftitution  requires  the  oaths  of  at  leaft  twelve  law- 
"  ful  men  **."  Such  is  the  manner  in  which  Glanville 
fpeaks  of  the  inftltution  of  the  affife. 

The  proceeding  by  aflife  was  thus  :  The  party  who  had 
put  himfelf  upon  the  aflife,  fued  out  a  writ  de  pace  hahetidcU 
This  was  to  prohibit  the  lord  (if  the  fuit  was  in  the  lord's 
court)  from  entertaining  any  fuit,  in  which  the  duel  had 
not  been  already  waged,  between  the  fame  parties  for  the 
fame  land,  becaufc  one  of  the  parties  had  put  himfelf  upon 
the  king's  afTife,  and  had  prayed  a  recognition  to  be  made, 

*•  Glanv.  lib.  z,  c,  7, 

who 


CONQUEROR 
to 


128  HISTORYOFTHE 

CHAP.  HI.  who  had  the  moft  right'.  Upon  this,  the  demandant 
WILLIAM  ^^"^^  *^  *^^^  court,  and  prayed  another  writ,  whereby  four 
the  lawful  knights  of  the  county  might  be  directed  to  chufe 

twelve  lawful  knights  of  the  vicinage,  who  fliould  fay  upon 
JOHN.  their  oaths,  which  party  had  mod  right  to  the  land  in 
queflion.  As  this  is  the  firft  procefs  for  the  return  of  jurors, 
of  which  we  have  any  mention,  it  may  be  proper  to  infert 
it  at  length.  It  ran  in  thefe  words  :  Rex  vicecomiti  falii- 
tern,  Summone per  bono s  Jummon'ii ores  quatuor  legales  m'llites 
de  vicineto  de  Stoke ^  quod  ftnt  ad  claufum  Pafcha  coram  me 
veljujlitiis  meis  apud  Weftmonajleriiim  ad el'tgendum  fuper  fa- 
cr amentum fuum  duodec'im legales  milites  de  eodem  vicineto,  qui 
melius  veritatemfciant,  ad  recognofcendum  juper  jacramentum 
fuum  ^irum  M,  aut  R,  mnjus  jus  habeat  in  una  hida  terrts  in 
Stoke  quam  AI.  clamat  verjus  R.  per  breve  jneum,  et  unde  R. 
qui  tenens  eji^  pofuit  Je  in  ajftfcim  meam^  et  petit  recognitionem 
fieri y  quis  eorum  majus  jus  habeat  in  terra  illd^  et  nomina 
eorum  inbrev':  art  facias .  Et  j'uiiuncne  per  bonos  fununonitores 
R.  qui  terra?n  illam  tenet,  quod  tunc  fit  ibi  auditurus  illam 
eU£lionem^  et  habeas  ibi  fummonitores,  ^zq. 

At  the  day  appointed  the  tenant  mi^ht  eflbin  himfclf 
three  times  ;  for  it  was  a  rule,  that  as  often  as  either  party 
appeared  in  court,  and  did  what  he  was  commanded  by  the 
law  to  do,  he  might  again  recur  to  his  three  efToins.  But 
if  this  was  allowed,  the  confequence  would  be,  that  as 
many  or  more  elToins  would  intervene  in  the  proceeding  by 
aflife  than  by  duel,  which  would  ill  agree  with  what  we 
have  juft  faid  about  the  concifenefs  of  this  new  method. 
For  fuppofe  the  tenant  eflbined  himfelf  three  times,  on  the 
eleftion  of  the  twelve  knights  by  the  four ;  afterwards, 
when  he  appeared  in  court,  fome  or  other  of  the  four 
knights  might  eflbin  himfelf  j  and  then,  after  thefe  eflbins, 
the  tenant  might  again  eflbin  himfelf  afrefh  j  fo  that  the 
aflife  would  hardly  ever  be  brought  to  any  efl?e6l :  it  was 

>  Glanv,  lib.  ».  c.  8,  p. 

therefore 


E  N  G  L  I  S  H    L  A  W.  129 

therefore  neceflary  to  defeat  the  operation  of  the  above    CHAP.  iii. 
rule,  in  this  inftance!  A  conftitution  was  accordingly  pafled,      william 

enabling  the  court  to  make  order  for  removing  thefe  ob-  ^^e 

6  ...  .  .         ^  ^  -   CONQUEROR 

ftacles,  and  expediting  the  proceeding ;  in  purfuance  of  10 

whicb,when  the  four  knights  appeared  at  the  appointed  day  ^ 
in  court,  ready  to  chufe  the  twelve  knights,  they  were  au- 
thorized, whether  the  tenant  appeared  or  not,  to  proceed  to 
the  eleftion.  If  he  had  been  prefent,  he  might  make  a  law- 
ful exception  to  any  of  the  tweFve  ;  and  therefore  the  court 
would,  in  his  abfence,  dire6l  more  than  twelve  to  be  ele£l- 
ed,  that  when  he  appeared,  he  might  have  a  greater  chance 
to  find  twelve  unexceptionable  jurors.  Jurors,  fays  Glan- 
ville,  might  be  excepted  againft  in  the  fame  manner  as  wit- 
nefles  were  rejecled  in  the  court  chriftian ;  jurors  being  in 
fa6t  only  witnefTes,  and  the  teflimony  of  witnefles  being 
always  confidered  as  a  matter  of  canonical  regulation. 

So  defirous  were  they  of  avoiding  delay,  that  upon  the 
tenant  appearing,  if  all  the  four  knights  did  not  appear, 
yet  by  the  advice  of  the  court,  and  aflent  of  parties,  one 
of  the  knights,  taking  two  or  three  others  of  the  county- 
then  in  court,  though  not  fummoned,  might  proceed  to 
clecft  the  twelve :  though,  to  avoid  all  cavil,  and  in  order 
to  have  enough  to  make  the  ele6tion,  they  ufually  had  the 
caution  to  call  fix  or  more  knights  to  court.  In  all  fuch 
points,  the  difcretion  of  the  court  was  fuffered  to  govern 
the  eftabliflied  courfe  of  proceeding  ;  which,  fays  Glan- 
ville,  the  king  or  his  jufticcs  might  temper  and  accommo- 
date to  the  equity  of  the  cafe  then  before  them*^. 

When  the  twelve  knights  were  elected,  they  were 
fummoned  by  the  following  writ :  Rex  vicecomiti  falutem, 
Summone  per  honos  fummonitorei  illoi  duodectm  milites^  fcili' 
cet,  A.  B.  isc.  quod  fint  die y  isc.  coram  me  vel  jujiitiis  meif 
ad^  isfc.  parati facra?nento  recognofcere  utrum  R.  vel  N,  majus 

^  CUn.  lib.  4.  c.  II. 

Vol.  L  L  jus 


I30  HISTORY      OF      THE 

CHAP.   III.    jus  haheat  in  una  hi  da  terra^  qua?n  pradiSius  R.  qui  cla- 
WII I  lAM       "''^'  verjus  pradl^urn  N.  et  unde  pradiS'ius  N.  qui  rem  illam 

t^«  tenet  pofult  fe  in  afjifam  no/iram^  et  petlit  inde  recopnltlonem^ 

CONQUEROR  .  ^      .     -^^     ,    /      .  ^    .    ,  .         . 

to  quis  eorum  mnjus  jus  habeat  tn  re  petita\  et  interim  terram 

JOHN.  illam,  unde  exigitur  fervltium^  vldeant :  et  fummone  per  honos 
jummomtores  N.  qui  rem  ipfam  tenet,  quod  tunc  fit  ibi  audi" 
tiirus  illam  recognitio7iem.  At  the  day  appointed  for  the 
knights  to  make  their  recognition,  no  eflbin  could  be  caft 
by  the  tenant,  nor  was  his  prcfence  neceflary :  as  he  had 
once  put  himfelf  upon  the  aflife,  he  had  now  nothing  to 
fay  why  the  recognition  (liould  not  proceed.  It  was  dif- 
ferent with  regard  to  the  demandant ;  for  if  he  eflbined 
himfelf,  which  he  might  do,  the  aflife  remained  for  that 
day,  and  another  day  was  given  :  for  it  was  a  rule,  that 
though  any  one  might  lofe  by  his  default  of  appearance,  yet 
no  one  (hould  gain  any  thing  if  not  prefent  in  court.  Per- 
dere  poteji  quis  propter  defaltam^  lucrari  vero  nemo  poteji 
omnlnh  abfem  '. 

The  aflife  being  about  to  make  their  recognition,  it  is 
next  to  be  confidered  how  they  were  enabled  to  do  It.  Now, 
fome,  or  all,  might  know  the  truth  of  the  matter,  or  all 
might  be  ignorant  of  it.  If  none  of  them  knew  any  thing 
of  the  matter,  and  they  teftified  the  fame  in  court,  upon 
their  oaths ;  the  court  reforted  to  others,  till  they  found 
thofe  who  did  know  the  truth.  If  fome  were  acquainted  with 
the  faft,  and  fome  not,  the  latter  were  rejeded,  and  other* 
called  in,  till  twelve  at  leafl;  were  found  who  could  aorcc. 
Again, ,  if  fome  were  for  one  of  the  parties,  and  fome  for 
the  other,  freih  jurors  were  to  be  added  till  twelve  were 
found  who  agreed  in  opinion  for  one  of  the  parties.  It 
is  to  be  obferved,  that  all  who  were  called  in,  were  to 
fwear  that  they  would  not  fpeak  what  was  falfe,  nor  know- 
ingly be  filent  as  to  what  was  true ;  and  the  knowledge 
they  were  cxpeded  to  have  of  the  matter,  mufl:  have  been 
from  what  they  themfelves  had  feen  or  heard,  or  from  dc- 

^  Glan.  lib.  i.  c,  rs,  i6. 

clarations 


E  N  G  L  I  S  H      L  A  W.  131 

claratlons  of  their  fathers,  and  fuch  evidence  as  claimed    CHAP.   III. 
equal  credit  with  that  of  their  own  ears  or  eyes.     Per  pro-     wn  liaM 

pr'ium  vifum  fuum  et  aiiditum  vel  per  verba  patrum  fuorum^  the 

.  .      /i-         -L       ri       .  .       7    ,  f  ••  n,  CONQUEROR 

et  per  talta  quibus  jidem  te?ieantur  habere  nt  propriis^.  to 

"When  the  twelve  knights  were  agreed  in  the  truth,  JOHN, 
they  then  proceeded  formally  to  recognife,  whether  the  de- 
mandant or  tenant  had  mod  right  in  the  thing  in  que- 
ftion.  If  they  faid  the  tenant  had  moft  right,  or  faid  that 
which  fatisiied  the  king  or  his  juftices  that  he  had  moft 
right,  then  the  judgment  of  the  court  was,  that  he  fliould 
go  quit  of  the  demandant  for  ever,  fo  as  the  demandant 
fhould  never  be  heard  again  in  court  with  effect ;  for  a  fuit 
once  lawfully  determined  by  the  king's  great  afTifc,  could 
never  be  ftirred  again  on  any  occafion  whatever.  If 
the  affife  were  of  opinion  for  the  demandant,  and  the  court 
gave  judgment  accordingly,  then  the  adverfary  loft  the  land 
in  queftion,  with  all  its  fruits  and  profits  found  there  at 
the  time  of  the  feifm  ". 

Upon  this  there  iffued  a  writ  of  execution,  quod  feiftas 
N,  de  una  hiddy  isfc.  quia  idetn  N.  diratiotiavit  terram  illayn 
in  curia  med  per  reccgniiionem^  ^r.  «  reciting  the  mode  of 
trial,  as  the  before  mentioned  writ  of  feifm  did  the  duel. 
We  may  here  notice,  that  the  duel  and  affife  had  become 
fo  co-extenfive  in  their  confequences,  as  for  it  to  grow 
into  a  rule,  that  the  duel  fliould  not  be  where  the  affife 
was  not  allowed,  nor  the  affife  where  there  was  no  duel  ^.  • 

Affifes  lay  concerning  fervices,  land,  demands  of  fervice, 
rights  of  advowfon,  and  that  not  only  againft  a  ftranger, 
but  even  againft  a  lord  '^. 

The  regal  conftitution  by  which  the  aflife  was  appointed, 
had  alfo  ordained  a  punifhment  for  jurors  temere  jurandum^ 
or  who  fwore  falfely.  If  any  were  proved,  or  confeffed 
themfelves,  guilty  of  perjury,  they  were  to  be  fpoiled  of 
all  their  chattels  and  moveables,  which  were  forfeited  to 


Wt 


Glanv.l  b.  a.  c.  17.  "Ibid.  c.  i8.  °  Ibid.  c.  20.  '  Ibid.  c.  19.   •'Ibid,  c,  13. 

L  2  the 


132  HISTORYOFTHE 

CHAP.  III.    the  crown  ;  but  they  were  permitted  by  the  clemency  of 
WILLIAM     ^^^^  ^"^g  ^°  retain  their  freeholds  ;  they  were  to  be  thrown 

t''^  into  prifon,  and  be  there  detained  for  a  year  at  leaft  :  they 

CONQUEROR  ,   /    t.     /  •         u  j      •  i. 

to  were  to  lole  the  legejn  terra,  or,  m  other  words,  incur  the 

J  '      brand  of  perpetual  infamy  ^ 

It  was  a  quefllon  in  Glanvillc*s  time,  what  was  to  be 
done,  if  no  knights  could  be  found,  of  the  vicinage  or  of 
the  county,  who  knew  the  truth  of  the  matter  j  whether 
the  tenant  was  therefore  to  prevail,  as  the  pcrfon  in  poflef- 
fion  ;  or  the  demandant  to  lofe  his  right,  if  he  had  any. 
Suppofe,  fays  he,  two  or  three  lawful  men,  or  any  other 
number  lefs  than  twelve,  who  were  witnefles  of  the  fa6l, 
offered  thcmfelves  in  court  ad  dirationandtnny  and  faid  and 
did  every  thing  in  court  proper  for  the  occafion,  could  they 
or  could  they  not  be  heard  *  ? 

Vouching  to  This  was  the  order  of  proceediner,  when  the  prefencc 

warranty.  i  o  i 

of  the  tenant  only  was  neceflary,  and  no  one  elfe  was 

brought  in  to  anfwer.  There  were  many  cafes  where  it 
was  requifite  to  call  in  a  third  perfon ;  as  when  the  tenant 
declared  in  court,  that  the  thing  in  queftion  was  not  his 
own,  but  that  he  held  it  ex  commodatOy  or  ex  locato,  or  /;/  va- 
dltnny  that  is,  in  gnge  or  pledge,  or  committed  to  his  cuf- 
tody,  or  in  fome  other  way  intruded  to  him  by  the  real 
owner ;  or  if  he  fhould  declare  the  thing  was  his  own,  but 
that  he  had  fome  one  to  ivarrant  it,  as  the  perfon  who  made 
a  gift  of  it,  or  fold  it,  or  gave  it  in  exchange  :  or  fhould  he 
declare  in  court,  that  the  thing  was  not  his,  but  belonging 
to  another  perfon,  that  perfon  was  to  be  fummoned  by  fome 
other  fimilar  writ ;  and  fo  the  fuit  was  to  be  carried  on  afrefh 
againft  him,  Wlien  he  appeared  in  court,  he,  in  like  man- 
ner, might  admit  the  thing  to  be  his,  or  not.  If  he  faid 
it  was  not  his,  the  tenant  who  had  faid  it  was,  ipfo  faHo 
loft  the  land  without  recovery,  and  was  fummoned  in  order 

'  Cbnv.  lib.  X.  c.  19.  •   Ibicl.  c.  »I- 

,  ■  '  to 


E  N  G  L  I  S  H      L  A  W.  133 

to  hear  the  judgment  of  the  court  to  that  effecSl  ;  and  whe-    C  H  a  p.   ill. 
ther  he  came  or  not,  the  adverfary  recovered  feifin.  will i an; 

When  the  tenant  called  a  perfon  for  any  of  the  above  tiie 

reafons  to  ivarratit  the  land,  a  day  vras  given  him  to  have  to 

In  court  his  warrantor;  and  upon  this  he  was  entitled  to  J  ^  "  -*^* 
three  eflbins  refpe6ling  himfelf,  and  three  others  rcfpe£l- 
ing  the  perfon  of  his  warrantor.  At  length  the  warrantor 
appearing  in  court,  he  either  warranted  the  land  or  not. 
If  he  would  enter  into  the  warranty,  the  fuit  was  from  thence 
carried  on  with  him,  and  everything  went  under  his  name, 
in  lieu  of  the  tenant ;  not  but  that  the  tenant,  if  he  had 
ciToincd  himfelf,  would  be  confidered  as  a  defaulter,  if  ab- 
fent.  If  the  warrantor,  being  prefent  in  court,  declined 
entering  into  the  warrant,  the  fuit  was  to  be  carried  on  be- 
tween the  tenant  and  him  ;  and  after  allegations  on  both 
Tides,  they  might  come  to  the  duel,  although,  perhaps,  the 
tenant  might  not  be  able  to  fhew  a  charter  of  warranty, 
but  could  only  produce  a  fit  wltnefs  to  deraign  it.  The 
obje£l  of  all  this  was,  to  prove  the  warrantor  to  be  bound 
to  the  warranty,  which  would  make  the  tenant  entirely  fafe; 
for  ftiould  the  land  be  recovered  from  him,  the  warrantor, 
if  able,  was  bound  by  law  to  give  him  an  excamhiutn^  as 
they  called  It,  or  an  equivalent  in  reconipence. 

As  this  was  the  effefl  of  a  warranty  when  proved,  it  of- 
ten happened  that  a  perfon  called  to  warranty  was  fhy  of 
coming  to  court :  at  the  prayer  of  the  tenant,  therefore, 
the  court  would  think  it  advifeable  to  compel  him,  by  a  writ 
of  fummons  ad  luarratitlzatidum  ^ 

At  the  day  appointed,  this  perfon,  like  all  others  who 
were  fummoned  to  appear  in  court,  might  eflbin  himfelf 
three  times.  At  the  third  eflbin  the  court  would  award, 
that  at  the  fourth  appointed  day  he,  or  fomc  attorney  for 
him,  ihould  appear;  but  if  he  did  not,  there  feems  to 
have  been  a  doubt  what  (hould  be  done  to  punifh  the  con- 
tempt :  for  if  the  land  in  queftion  was  taken  into  the  king's 

*  rian   lib.  3.  c  i,  2,  3. 

hands. 


1^4  HISTORY      OF     THE 

CHAP.  III.     hands,  this  would  feem  unjufl:  to  the  tenant,  who  had  not 

WILLIAM     been  adjudged  in  default ;  and  yet  if  it  was  not  done,  there 

t'^e  feemed  to  be  a  want  of  iuftice  to  the  demandant,  whofe 

CONOUFROR 

to  fuit  was  delayed.   Indeed  Glanville  thought,  that,  notwith- 

J  O  H  N.  {landing  thefe  reafons,  the  law  and  cuftom  of  the  realm 
required  the  land  to  be  taken  ;  for  no  hardfhip  would  fall 
on  the  tenant ;  it  being  a  rule,  that  wherefoever  a  perfon 
loft  his  land  through  the  default  of  his  warrantor,  the  war- 
rantor fnould  make  him  a  recompenfe  in  value  ". 

It  fometimes  happened,  that  a  tenant  negle£led  to  call 
in  the  perfon  on  whom  he  had  a  claim  of  warranty,  and 
defended  the  right  himfelf.  In  this  cafe,  if  he  loft  it,  he 
-^could  have  no  recovery  againft  his  warrantor.  It  was  by 
fome  made  a  queftion,  whether,  upon  the  liime  principle 
as  the  tenant  might  defend  his  right  by  duel  without  the  af- 
fent  and  prefence  of  his  warrantor,  he  might  put  himfelf 
upon  the  king's  great  alTife  without  his  aflent  and  prefence ; 
but  Glanville  thought  that  the  fame  reafon  fliould  prevail 
in  both  cafes  ^» 

A  SUIT  was  fometimes  impeded  by  the  abfence  of  lords; 
as  when  the  demandant  claimed  the  land  as  belonging  to 
the  fee  of  one,  and  the  tenant  as  belonging  to  the  fee  of 
another  lord.  In  this  cafe,  each  lord  ufed  to  be  fummoned 
to  appear  in  court,  that  the  plea  might  be  heard  and  deter- 
mined in  their  prefence,  left  any  injury  might  otherwife  be 
done  to  their  rights.  The  lords  when  fummoned  might 
eflbin  themfelves  three  times,  as  was  ufual  in  other  cafes. 
If  the  lord  of  the  tenant  had  had  his  three  eflbins,  and  the 
court  had  directed  him  to  appear,  or  fend  his  attorney,  and 
he  made  default,  the  judgment  then  was,  for  the  tenant  to 
anfwer  and  take  upon  him  the  defence :  and  if  he  prevailed, 
he  retained  the  land,  and  for  the  future  did  his  fuit  and  fer- 
vice  to  the  king,  the  lord  having  loft  it  by  his  default,  till 
he  appeared  and  did  as  the  law  required.  In  the  fame  man- 
ner the  lord  of  the  demandant  might  eflbin  himfelf  three 

"  Chnv.  lib.  3.  c.  4.  *  Ibid.  c.  5. 

times ; 


CHAP.    III. 

WILLIAM 

the 

CONQUEROR 

to 

JOHN. 

ENGLISH      LAW.  13^ 

times ;  and  if,  after  that,  he  abfented  himfelf,  it  was 
Glanville*s  opinion,  that  his  eflbniators  and  the  per- 
fon  of  the  demandant  fhould  be  attached  for  contempt  of 
court,  and  in  that  manner  be  compelled  to  appear  y. 

When  ,the  two  lords  had  appeared,  and  the  lord  of  the 
tenant  faid  that  the  land  was  in  his  fee,  he  might  take  upon 
him  the  defence  of  the  fuit,  or  intruft  it  to  the  tenant ;  and  in 
cither  cafe,  fhould  they  prevail,  their  feveral  rights  were  fe- 
cured  :  but  if  they  loft  the  fuit,  the  lord  loft  his  fervlce,  as 
well  as  the  tenant  his  land,  without  any  recovery.  If  the 
"tenant's  lord,  being  prefent  in  court,  failed  of  the  warranty, 
and  the  tenant  maintained  that  he  was  bound  to  the  war- 
ranty, becaufe  he  or  his  anceftors  had  done  fuch  and 
fuch  fervice  to  him  or  his  anceftors,  as  lords  of  that 
fee-,  and  he  could  produce  thofe  who  had  heard  and  feen 
this,  or  a  proper  witnefs  to  deraign  it,  or  other  fit  and  fuf- 
ficient  proof,  as  the  court  fhould  award :  if  the  tenant 
could  fay  this,  then  he  and  the  lord  might  interplead  with 
each  other*.  If  the  demandant's  lord  entered  into  the 
warranty,  and  they  failed  in  the  fuit,  the  lord  in  like  man- 
ner loft  his  fervice.  But  the  fate  of  the  demandant  was 
different  from  that  of  the  tenant,  if  his  lord  would  not  en- 
ter into  the  warranty  ;  for  he  was  amerced  for  his  falfe 
claim'; 

Thus  has  the  reader  been  conducted  through  the  pro- 
ceeding in  a  writ  of  right,  with  all  its  incidents  and  appen- 
dages, when  profecuted  for  the  recovery  of  land.  Thi* 
relation  has  been  fomewhat  long  and  minute;  but  as  it  con- 
tains in  it,  with  fome  fmall  alteration,  the  fcheme  of  procefs 
and  proceeding  in  moft  other  a£lions,  it  was  indifpenfably 
neceflary  to  trace  it  with  fome  exaftnefs.  After  this,  the 
remainder  of  our  enquiry  into  the  courfe  of  judicial  reme- 
dies will  be  more  eafy,  and  the  matter  will  be  more  various 

f  Clan"   1=^^  3  f .  6,  ='  Ibid,  c.  7.  *  Ibid.  c.  i. 

and 


136 


HISTORY      OF     THE 


CHAP.  in. 

WILLIAM 

the 

CONQUEROR 

to 

JOHN. 

Writ  of  right 
e  advowruQ. 


and  entertaining.  We  fliall  now  proceed  to  fpeak  of  other 
methods  of  recovering  property  :  and  firil  of  advowfons. 

An  acflion  for  the  advowfon  of  a  church  might  be  brought 
either  while  the  church  was  full,  or  when  it  was  vacant. 
If  the  church  was  vacant,  and  any  one  obftrucled  the  per- 
fon  who  thought  himfelf  the  patron,  in  prefentlnp^  a  clerk, 
and  claimed  the  prefentation  to  himfelf,  there  was  a  dif- 
ference to  be  made,  whether  the  contefl  was  for  the  advow- 
fon J  that  is,  upon  the  right  of  prefcnting ;  or  upon  the  lafl 
prefentation^  that  is,  the  feifin  of  the  right  of  prefcnting. 
If  it  was  upon  the  lad  prefentation,  and  the  perfon  claiming 
it  faid,  that  he  or  fome  anceftor  of  his  maile  the  laft  donation 
or  prefentation  *,  then,  fays  Glanville,  the  pica  is  to  be  con- 
du£led  according  to  the  late  ordinance  ^  about  the  advow- 
fons of  churches;  and  an  aflife  was  fummoned  to  make 
recognition  ivhat  patron^  in  time  of  peace,  prefcnted  the 
lajl  deceafed  perfon  to  the  church  :  of  which  aflife  more 
will  be  faid,  when  we  come  to  fpeak  of  other  recognitions. 
For  the  prefent  it  will  be  enough  to  remark,  that  he  who 
recovered  by  fuch  an  aflife,  recovered  feifin  of  the  prefen- 
tation fo  as  to  prefent  a  proper  perfon,  with  a  faving  of  the 
demandant's  claim  as  to  the  right  of  the  advowfon. 

If  the  right  of  advowfon  only  was  demanded,  the  de- 
mandant mud  add  fomething  as  to  the  lafl;  prefentation, 
either  that  "  he  or  one  of  his  ancefl;ors  had  it ;"  or  that  the 
tenant  or  one  of  his  ancellors  had  it,  or  that  fome  fliranger 
bad  it,  or  that  he  was  ignorant  who  had  it.  Which  foe  ver 
of  thefe  allegations  it  might  be,  if  the  other  party  claimed 
tlie  laft  prefentation  as  his  own  or  his  anceilor's,  the  recog- 
nition was,  notwithftanding,  to  proceed  upon  the  right  of 
prefenting,   except  only  in  one  of  the  above-mentioned 

*  Perhaps  Glanville  here   alludes  llkfly,    that  the  many  aflifes   which 

to  the   famou;;  rtatute  about  aHiles ;  grew  into  ufc  in  the  time  of  Henry  II. 

or,    from   the    exprefllon,    it    fccmi  wtrc  introduced  at  different  times, 

more   piohablc,  a   llatutc  had   been  according  as  thi^  mode  of  pi oceeding 

ordained  fincc  that,   which  direcfted  was  recommended  by  expciicncc  of 

rec<tgnitions  to  be  made  in  cafe  of  it?  benefits. 
lail   prelentacion?.      It    is    not  un< 

cafes  9 


ENGLISH      LAW. 


^37 


cafes;   that  was,  where  the  demandant  admitted  that  the    CHAP.  III. 
tenant,  or  one  of  his  anceitors,  had  the  laft  prefentation  j      ^,jj  ^^^ 
fur  then,  without  eoing  to  the  recognition,  he  was  to  pre-  the 

fent  at  leaft  one  perfon.     NVhen,  however,  the  lalt  prefen-  to 

tation  had  been  decided  ^  by  the  aflife,  as  before  mentioned  JOHN. 
or  in  any  other  lawful  way,  and  a  perfon  was  prefented 
accordingly  by  the  fuccefsful  party;  then  the  party  who 
was  refolved  to  try  the  right  of  advowfon  might  go  on 
with  the  fuit,  and  have  the  following  writ  ^ :  Rex  viceco- 
niti  Jalutem,  Pracipe  N.  quod jujje  ei  fine  dilatione dimiitat 
R.  advocatlone?n  ecclefta:  in  villa,  tH^c.  quam  clarnat  ad  fe 
pertinere^  et  unde  queritur  quod  ipfe  hijujie  ei  deforceat :  et 
nifi  fecerit^  fummone  per  bonos  fuTP.monitores  eum  quid  fit 
diCy  i^c.  Hi  coram  nobis  veljujiitiis  nojirisy  oJJenfurus  quart 
non  fecerit,  tffc,  *, 

The  perfon  fummoned  had  the  fame  cflbins  as  were  be- 
fore mentioned  in  a  pica  of  land ;  and  if,  after  thefe,  he 
did  not  appear  at  the  fourth  appointed  day  in  perfon,  or  by 
attorney,  Glanville  thought  the  next  procefs  was  for  taking 
into  the  king's  hands  feifin  of  the  prefentation.  The  llie- 
riff  was  to  execute  his  writ  of  capias  in  manu  in  the  fol« 
lowing  way  :  he  was  to  go  to  the  church,  and  there  de- 
clare publicly,  in  the  prefencc  of  fome  honeft  men,  that  he 
feifed  the  prefentation  into  the  king's  hands :  the  feifin  re- 
mained in  the  king's  hands  fifteen  days,  with  a  liberty  to 
the  tenant  to  replevy  it  within  the  fifteen  days,  as  was  be- 
fore ftated  '*.  In  fhort,  after  all  the  eflbins  were  run  out, 
if  one  or  both  the  parties  abfented  themfelves,  the  courfc 
was  ordered  as  in  a  plea  of  land. 

When  both  parties  appeared  in  court,  the  demandant 
propounded  his  right  in  thefe  words  :  Pefo,  Sec.  "  I  dc- 
**  mand  the  advowfon  of  this  church  as  my  right,  and  ap- 
"  pertaining  to  my  inheritance,  of  which  I  (or  one  of  my 
"  ancellors)  was  feifed  (in  the  time  of  Henry  I.  or)  fmcc 

•  Dirathnata.  *  Clanv.  lib.  4.  C.  %.  ViJ.  «nt.  1 14. 

^  Glanv,  lib.  4.  c.  1.  •*  Ibid.  c.  3,  4,  5. 

"the 


13S  HISTORYOFTHE 

CHAP.  Iir.    "  the  coronation  of  the  king;   and  being  fo  feifed,  I  prc- 
W ILL! AM     **  fented  a  perfon  to  that  church  (at  one  of  the  before-men- 

the  it  tioned  times) ;  and  fo  prefented  him  that  he  was  infti- 

CONQUEROR    ^^  1         r  j-  r  •  j   -f 

to  •*  tuted  parlon  according  to  my  prelentation  :  and  11   any 

^         ^  •      «  one  will  deny  this,  I  have  here  fome  honefl  men  *"  who 

**  faw  and  heard  it,  and  are  ready  to  prove  it  ^,  as  the  court 

**  fliall  award ;   and  particularly  this  ^.  and  this  B."^* 

When  the  claim  of  the  demandant  was  thus  fet  forth, 
the  tenant  might  defend  himfelf  by  the  duel,  or  put  himfelf 
upon  the  aflife ;  and  in  both  cafes  it  would  be  ordered  as 
before  mentioned  ^. 

This  was  the  manner  of  contefting  a  right  of  advow- 
fon  when  the  church  was  vacant.  It  might  alfo  be  con- 
teiled  when  the  church  was  full  ;  as  if  the  parfouy  or  he 
who  called  himfelf  parfon,  in  the  church  claimed  his  title 
by  one  patron,  and  another  claimed  the  advowfon,  the  lat- 
ter might  then  have  the  following  writ  againft  the  parfon  : 
Rex  vicecomiti  falutem,  Summtne  per  honos  Jumtnonitora 
dericum  ilium  AL  p^rfonam  ecclefia^  Sec,  quod  Jit  coram  me 
vel  jujiitiis  meis  apud  W ejimonaflerium  ad  diem ^  hue,  oflen» 
furus  quo  advocato  Je  tenet  in  ecckfid  illdy  cujui  advocationeni 
miles  ille  M»  ad  Je  clamat  pertinere.  Summone  etiam  per 
bonos  Jummonitorei  ipfum  N.  qui  advocationem  illi  d^forceatj 
quod  tunc ^t  ibiy  ojl^njurus  quare  advocationem  ipjam  ei  de- 
force at,  \^c.  ^ 

If  the  clerk  did  not  appear  according  to  the  fummons, 
nor  fend  any  to  eflbin  him  ;  or  if  after  the  three  ellbins  he 
did  not  come,  or  fend  his  attorney;  Glanville  thought, 
that  having  no  lay  fee  by  which  he  might  be  diftrained, 
the  bifhop  (or  his  official,  in  cafe  the  fee  was  vacant) 
{hould  be  commanded  to  diflrain  him,  or  punifh  his  default 
by  taking  the  church  into  his  hands,  or  ufing  fome  other 
lawful  means  of  compulfion  ^. 

*  Probes  homines.  •'  Clanv.  lib.  4,  c.  7. 

^  Dirationare.  '  Ibni.  c.  8. 

».Glanv,  lib.  4.  c.  6.  *  Ibid.  c.  j. 

When 


E  N  G  L  I  S  *H      L  A  W.  ,39 

When  the  clerk  appeared  in  court,  he  would,  perhaps,  CHAP,  iir, 
admit  the  demandant  to  be  the  patron,  and  would  fay,  that  hrTT^'T'^r^ 
he  was  inllituted  upon  his  prcfentation,  or  that  of  fomc  of  the 

his  anceftors:  if  fo,  the  plea  went  on  no  farther  in  the  to 

king's  court  j  for  if  the  demandant  denied  the  prefentation,  C  o  H  N. 
he  was  to  maintain  this  controverfy  with  the  clerk  before  the 
ecclefiaflical  judge.  Perhaps  the  clerk  faid  the  advowfon 
belonged  to  the  party  fummoned :  now  fuch  party  was  dealt 
with  in  this  manner  :  If  he  came  at  none  of  the  three  fum- 
monfes,  nor  fent  any  elToin ;  or  having  eflbined  himfelf, 
neither  came  nor  fent  his  attorney  at  the  fourth  day  ;  the 
advowfon  of  the  church  in  quellion  was  feifed  into  the 
king's  hand,  and  fo  it  remained  for  fifteen  days ;  and  if 
he  did  not  appear  in  thofe  fifteen  days,  then  feifin  thereof 
was  given  to  the  demandant.  In  the  mean  time,  it  was  a 
queftion,  what  was  to  be  done  with  the  clerk,  whettier  he 
was  ipfofaclo  to  lofe  his  church,  or  not.  But  fuppofmg  the 
party  fummoned  appeared,  and  difclaimed  all  right  in  the 
thurch,  the  fuit  in  the  king's  court  ceafed,  and  the  patron 
and  clerk  contefted  their  claims  in  the  court  chriftian.  , 

Should  the  church  happen  to  become  vacant  pendente  litCy 
Glanville  thought,  if  there  was  no  queftion  but  that,  the 
perfon  againft  whom  the  right  of  advowfon  was  demanded, 
had  the  laft  prefentation,  either  in  himfelf  or  his  anceftors, 
that  he  (hould  be  allowed  to  prefent  a  clerk,  at  leaft  till  he 
had  loft  the  feifin  :  confiftently  with  which  he  thought, 
that  ftiould  a  vacancy  happen  while  the  advowfon  was  in 
the  king's  hands  for  fifteen  days,  the  patron  did  not  lofe 
that  prefentation.  If  the  party  fummoned  (hould  fay  the 
right  of  advowfon  was  his,  it  was  tried,  as  we  before  faid  of 
land.  If  he  prevailed,  he  and  his  clerk  were  freed  from 
the  claim  of  the  demandant ;  if  he  failed,  he  and  his  heirs 
loft  the  advowfon  for  ever  '. 

When  the  right  of  advowfon  was  in  this  manner  deter- 
mined, it  became  a  queftion  what  was  to  be  done  with  the 

^  Clanv.  lib.  4.  c.  9. 

clerk. 


WILLIAM 


HISTORY      OF     THE 

clerk,  who  admitted  in  court  that  he  had  the  incumbency 
of  the  church  by  prefentation  of  the  unfuccefsful  party. 
the  As  the  king's  court  could  proceed  no  further  than  the  right 

^  ^^  of  advowfon  between  the  two  patrons,  the  party  who  had 

JOHN.  jjQ^  recovered  the  advowfon  was  to  proceed  againft  the 
clerk  before  the  bifhop,  or  his  official :  yet  after  all,  if  at 
the  time  of  the  prefentation  the  perfon  prefenting  was  be- 
lieved to  have  been  the  patron,  he  was  left  in  pofleiTion  of 
the  church  during  his  life ;  for  in  the  reign  of  this  king,  at 
the  Council  at  Clarendon,  a  flatute  had  been  made  con- 
cerning clerks  who  had  enjoyed  churches  by  the  prefenta- 
tion of  patrons  pro  tempore^  which  ordained,  that  clerks 
who  had  violently  intruded  themfelves  into  churches  during 
time  of  war,  (hould  not  lofe  fuch  livings  during  their  lives  '^. 
This  provifion  falved  the  titles  of  many  beneficed  clerks 
at  that  time.  Neverthelefs,  in  fuch  cafe,  after  the  incum- 
bent's death,  the  prefentation  returned  to  the  lawful 
patron". 

The  following  points  might  arife  upon  what  has  been 
faid  concerning  the  right  of  advowfon  and  the  laft  prefen- 
tation. When  a  patron  had  recovered  an  advowfon  by  de- 
raignment  in  court,  and  afterwards,  in  procefs  of  time,  the 
parfon  died  ;  it  might  be  afked,  whether  the  patron  againft 
whom  the  advowfon  had  been  recovered,  could  maintain 
an  aflife ^^  ultima prafentat'wne ;  and  what  anfwer  could,  in 
that  cafe,  be  given  to  it  by  the  adverfe  party.  For  fuppofe 
the  perfon  bringing  the  affife  had  not,  but  fome  of  his  an- 
ceftors  had  had  the  laft  prefentation ;  and  it  was  objected 
to  him  that  he  ought  not  to  have  a  recognition,  becaufe 
he  had  loft  the  advowfon  to  the  tenant  in  the  affife,  by  a  fo- 
lemn  judgment  of  the  court,  whether  this  would  be  a  bar 
to  the  affife  ?  It  ffiould  feem,  fays  Glanville,  that  it  would: 
becaufe,  as  he  had  not  the  laft  prefentation,  he  never  had 
feifin  of  the  advowfon  :  but,  it  fliould  feem,  fays  he,  that 

•     **  Viti  ant.  p    54,  55.  »  Clanv.  lib,  4.  c.  10. 

he 


ENGLISH      LAW. 


141 


he  might  well  go  upon  the  feifin  of  his  father,  notwith-    chap.  hi. 

{landing  what  had  been  determined  refpe£ling  the  right  of    ^J^j^j^ 

advowfon.    And  yet  if  a  queflion  could  be  thus  ftarted  up-  the 

on  the  laft  prefentation,  it  looks  like  invalidating  the  judg-       ^    t^ 

ment  of  the  king's  court,  before  given,  upon  the  right      JOHN. 

of  advowfon  •,   for  when  that  had  been  folemnly  adjudged, 

it  fhould  hardly  feem  that  he  ought  by  law  to  recover  any 

feifin,  particularly  as  againft  him  who  had  before  recovered 

the  advowfon,  unlefs  fome  new  caufe  had  arifen  which  would 

entitle  him  to  be  heard  again.    Indeed,  if  an  aflife  was  fum- 

moned  for  that  purpofe,  it  would  be  barred  by  this  anfwer 

to  it :   that  the  complainant  or  his  anceftors  had,  it  was 

true,  the  lad  prefentation ;  but  if  he  or  his  anceftors  had 

any  right,  they  loft  it  by  a  folemn  judgment  in  court : 

and  this  being  proved  by  the  record  of  the  court,  the  fuit 

would  be  loft,  and  the  complainant  amerced  °. 

We  have  juft  feen,  that  queftions  about  p/jfentations 
belonged  to  the  bifhop's  court,  though  the  right  of  advow^ 
fon  was  cognizable  only  in  the  king's  court.  It  fometimes 
happened  that  when  one  clerk  fued  another  clerk  in  the 
court  chriftian,  they  claimed  a  church  by  two  different  pa- 
trons. One  of  thefe  patrons,  not  chufing  to  have  a  que- 
ftion  upon  his  right  agitated  before  that  tribunal,  might 
pray  a  writ  to  prohibit  the  court  from  proceeding,  till  the 
right  of  advowfon  was  decided  in  the  king's  court.  As 
this  is  the  (irft  mention  we  have  of  a  prohibition  to  the  ec- 
clefiaftical  court,  it  may  be  proper  to  give  this  writ  at  length. 
ItwzssiS^oWows:  Rex ji/didbusy  SiC.ecc/eJia/Iicis/a/utejn.  In- 
D  ic  A  V  IT  nobisR.  qmdcum  J,  ctericusfuus  tematecclefiam^hiz,  to  the  ecdcfiai- 
in  villa^  &c.  per  [nam  prefentationem^  quiz-de  fua  advocation  '■'^*^  '•■°""- 
eji^  ut  duit,  N.  clericus  eandem  pttens  ex  advocatione  AL 
miiitisy  ipjum  J.  coram  vobis  in  curia  cbrijiianitatis  inde 
trahit  in  placitum.  Si  vero  prafatus  N,  ecclejiam  illam 
dirationarct  ex  advocatione  pradi^i  M.  palam  eji  quod  jam 

•  Clanv.  lib   4.  c.  \\. 

di^us 


HISTORY     OF     THE 

di^us  R.  ja^iuram  inde  incurreret  de  advocatlone  fua.     Et 
\VIL  L I  AM     9^°^^^^  ^''^^  ^^  advccationibus  ecclefiarum  ad  coronam  et  dig  - 

the  nttatem  meam  pertinent^  vobis  trohibec.  ne  in  caufd  ilia  pro- 

CONQUEROR  J  '  \  .  ..        .      ^  ^ 

to  ccaatis,  donee  dirattonatum  juerit  tn  curia  mea^  ad  quern  illo' 

J  *  •       rum  advocatio  illius  ecclejia  periineat,   ^c.      If  ihey  pro- 

ceeded In  the  caufe  after  this  prohibition,  then  the  judges 
were  fummoned  to  appear  in  the  king's  court  by  the  follow- 
ing writ  P  :  Rex  vicecomiti  falutem.     Prohibe  judicibuSy  &c. 
ne  teneant  placitum  in  curia  chrijlianitatis  de  advocatione  ec- 
clefits^  &c.    unde  R.   advocatus  illius  ecclefia  queritur  quid 
N,  inde  eum  traxerit  in  placitum  in  curia  chrijiianiiatis ; 
quia  placita  de  advocationibus  ecclefiarum  ad  coronam  et  dig' 
nttatem  meam  pertinent,    Et  fummone  per  bonosfummonitores 
ipfos  judicesy   quod  fint  coram  me  vel  jujiitiis  meis  dicy  &c. 
ejlenfuri  quare  placitum  illud  tenuerunt  contra   dignitatem 
meam  in  curia  chrijlianitatis,     Sum7none  etiam  per  bonos  jum- 
monitor es  pi dcfatum  N .  quod  tunc  fit  ibi  oJUnfurus  quare  pne- 
fatum  R.  inde  traxerit  in  placitum  in  curia  chrijlianitatis y  ^r. 
The  next  a6lion  that  demands  our  attention,  is  that  in 
which  queftions  concerning   a   man's  condition  or   ftate 
were  agitated  *,  as  when  one  claimed  a  perfon  to  be  his 
villani ;  or  when  one  in  a  ftate  of  villenage  claimed  to  be  a 
The  wrlt</tf  na-   free  man.     When  one  claimed  a  man  who  was  before  in 
^*'^"'  villenage,  as  his  villain  nafivus,  he  had  a  writ  de  nativis 

direfted  to  the  fheriff ;  and  fo  contefted  before  the  fherifF 
the  matter  with  the  other  who  was  then  in  pofTeflion  of  the 
villain.  If  the  queftion  of  villenage  or  not  villenage  was 
not  moved  before  the  (heriff,  then  the  plea  de  nativis  went 
on,  as  will  be  more  fully  (hewn  prefently.  But  if  the  vil- 
lain faid  he  was  a  free  man,  and  he  gave  pledges  to  the 
fherifF  that  he  would  demonftrate  it,  then  the  fuit  in  the 
county  court  ceafed,  becaufe  the  (heriff  was  not  allowed  to 
determine  that  point ;  and  if  the  flierifF  perfifted  in  going 
on  to  hear  the  caufc,  the  villain  was  to  make  his  claim  to 

»*  Clanv.  lib.  4-  c.  13. 

.  the 


ENGLISH      LAW.  143 

the  juftlces,  and  would  then  obtain  the  king's  writ,  as    CHAP.  ill. 

follows  :   Rex  vie,  l^c,   ^lefius  ejl  m'lhi  R.  quod  N.  trahit      VVILLIAM 

eum  ad  vtllenagium  de  ficut  ipje  ejl  liber  homoy  ut  dicit*     Et  t'^« 

••/•  -  J  r  •  J         r>y        •  r  ,      ,        CONQUEROR 

tdeo  pracipiQ  ttbtt  quod p  idem  K.  jecerit  te  Jecurum  de  cla-  to 

morefuo profequendoy  tunc  p  o  N  a s  loquelam  illaiti  coram  me  vel      -' 

jujiitiis   meis  die,   tffc,    et  interim  eum  pacem   inde  habere 

facial:  etjummone per  bonos fummonitorei pr<£di6ium  N.  quod 

tunc  fit  ibi  oflenjurus  quare  trahit  eum  ad  vtllenagium  injufie^ 

Sec.     It  may  be  remarked,  that  this  is  the  firft  writ  of 

pone  we  have  yet  met  with  'i. 

The  perfon  who  claimed  the  party  as  his  villain,  was 
alfo  fummoned  by  the  fame  writ,  and  a  day  was  fixed 
for  him  to  profecute  his  claim.  At  the  day  appointed,  if 
the  villain  did  not  come  nor  fend  a  meflenger  or  eflbin, 
they  then  proceeded  as  we  before  mentioned  in  pleas' 
where  attachment  lay.  If  he  who  claimed  the  party  to  be 
his  villain,  neither  came  nor  fent,  the  other  was  difmiffed 
the  courty?;/^  die.  In  the  mean  while,  he  who  was  claimed 
by  both  parties  as  his  villain,  was  put,  as  Glanville  ex- 
prefles  it,  \wX.o  fciftn  of  his  freedom*  \  that  is,  as  in  pleas  of 
land,  a  feifm  of  the  land  in  queftion  was  given  as  a  pro- 
ccfs  of  contempt;  fo  in  this  inftance,  an  inchoate  tempo- 
rary pofleflion  of  his  freedom  was  given  to  the  villain,  till 
the  parties  could  appear  in  court,  and  the  queftion  of  right 
was  fairly  heard  and  determined. 

If  both  parties  appeared  in  court,  the  freedom  was  to  be 
made  out  in  the  following  way.  The  perfon  who  claimed 
to  be  free,  was  to  bring  into  court  his  neareft  relations, 
defcended  from  the  fame  ftock  with  himfelf ;  and  if  their 
freedom  was  recognifed  and  proved  in  coUrt,  this  was  con- 
ftrued  in  his  favour,  fo  as  to  free  him  from  the  yoke  of  fer- 
vitude.  But  if  the  free  ftatc  of  thofe  who  were  produced 
was  denied,  or  there  was  any  doubt  concerning  it,  recourfc 
was  had  to  the  vicinage,  and  according  to  their  verdict  it 

^  Glanv.  lib.  5.  c.  1,  *.  •  Clanv.  lib.  5.  c.  3. 

*  Per  pltgio!  attachiatis.     Vid.  ant.  lil. 

was 


144  H  I  S  T  O  R  Y     O  F     T  H  E 

CHAP.   III.    was  adjudged  by  the  court.     In  (hort,  if  there  arofe  any 

VrTrTTTvT'    doubt  concerning  the  declaration  of  the  relations,  every 

the  doubt  or  difficulty  of  this  kind  was  to  be  folved  by  the  vi- 

CONQUJCROR       .  , 

to  cinage'. 

JOHN.  When  the  freedom  of  the  party  was,  by  one  or  other  of 

thefe  ways,  fairly  made  out,  he  was  immediately  releafed 

from  the  claim,  and  was  adjudged  free  for  ever.    But  if  he 

failed  in  his  proof,  or  if  he  was  proved  by  the  adverfary  to 

be  a  villain  nativus,  he  was  accordingly  adjudged  to  belong 

to  his  lord,  together  with  all  his  goods  and  chattels.    There 

was  the  fame  form  and  courfe  of  proceeding  in  cafe  of  a  fup- 

pofed  villain  claiming  his  freedom,  and  a  freeman  being 

claimed  as  a  villain.    The  perfon  whofe  freedom  was  in 

queflion  applied  for  a  writ,  to  bring  the  fuit  into  the  king*s 

court,  and  then  it  went  on  as  has  jufti  been  ftated.    It  muft 

be  remarked,  that  the  duel  was  not  allowed  in  a  fuit  to  prove 

a  man  free  ^  nativitate ". 

Writ  of  right  The  ncxt  adlion  that  comes  under  our  con fi deration,  is 

the  remedy  a  woman  had  to  recover  her  dower.     On  the 

death  of  the  hufband,  the  dower,  if  it  was  a  parcel  of  land 

named  and  fpecificd,  was  either  vacant  or  not.     If  it  was 

vacant,  the  widow,  with  the  aflent  of  the  heir,  might  take 

pofleflion  thereof,  and  hold  herfclf  in  feifin.     If  part  of  it 

only  was  vacant,  (he  might  take  pofleflion  of  that,  and  for 

the  remainder  fhe  might  have  her  writ  of  right  diredled  to 

her  warrantor,  that  is,  the  heir  of  the  hufband.     The  writ 

was  as  follows  ;  Rex  M.  faJutevt.     Pracipio  tibi  quod  fttie 

dilatione  plenum  return  teneas  A.  qua  fuit  uxor  E.  de  una  hida 

terra  in  viliA,  iffc,  quam  clamat  pertinere  ad  rationabilem 

dotem  fuam^  quorn  tenet  de  te  in  eadern  villa  per  liberum  fer- 

vitium  decern  foUdorum  perannum  pro  emni  fervitio,  quam  N. 

ei  deforceat,    Et  nififeceris^  vicecomes  faciat^  ne  oporteat  earn 

amplius  inde  conqueri  pro  defeSJu  reSfi,  &c  *. 

In  purfuance  of  this  writ,  the  plea  went  on  in  the  lord's 

court,  till  proof  was  made  of  that  court's  failure  in  doing 

'  Glanv.  lib.  5.  c.  4,  "  Ibid,  c,  4.  »  Ibid.  lib.  6.  c.  4,  5. 

juftice; 


E  N  G  L  I  S  H      L  A  \Y.  145 

jufticc  ;  upon  which  it  was  removed  to  tlie  county  court,   CHAP.    ill. 

tind  fo  to  the  king's  court,  if  it  feemed  proper  to  him  or  his      \vILLIA^4 

chief  jiiftice.    The  writ  to  remove  it  into  the  king's  court  „^^,  '^-^^^ 

was  a  tone,  and  was  as  follows  :   Rex   vicecomiti  falutem.  to 

.  T  O  H  N. 

P'jne  coram  me  vcl  jujiitiis  me's  dk^  k:Sc.  bquelam  qua  ejl  in       •' 

com'itotu  tuo  inter  A.  et  N.  de  unu  hidci  tsrrx  in  villa y   &c, 

quam  it>fa  /I,  clamat  verjus  pradi^tiiTt  iV.  ad  rationabilem 

dotejn  [uam,    Et  fumrnone  per  bjKes  fummonitores  pradiSfum 

N.  qui  terram  iUam  tenet ^  qujd  tunc  fit   ihi   cum  loqueld, 

Iffcy 

This  plea,  as  well  as  fome  others,  might  be  removed 
from  the  county  court  to  the  ci/ria  regis ^  for  many  caufes  ; 
as  well  on  account  of  doubts  which  might  have  arifen  in 
the  countv,  and  which  they  did  not  knov/  how  to  decide 
upon  (and  on  fuch  caufe  of  removal  both  parties  were  to 
be  fummoncd)  as  at  the  prayer  of  one  of  the  parties  ;  and 
then  it  was  fuflicient,  if  only  the  party  not  removing  it  was 
fummoned.  If  the  fuit  was  removed  by  the  afient  and 
prayer  of  both  parties,  being  prefent  in  court,  then  there 
needed  no  fummons,  for  both  of  them  mufl  know  the  day 
appointed. 

If  either, or  both  parties  were  abfcnt  at  the  day  appointed, 
they  proceeded  as  before  mentioned.  When  both  parties 
appeared,  the  widow  fet  forth  her  claim  in  the  following 
words :  Peto,  &c.  "  I  demand  that  land,  as  appertaining 
"  to  fuch  land  which  was  named  for  me  in  dower ;  of 
"  which  my  hufband  endowed  me  nd  ojlium  eccJcfity  on 
"  the  day  he  efpoufed  me,  as  that  of  which  he  was  inverted 
"  and  feifed  at  the  time  v/hen  he  endowed  me."  To  this 
claim  the  adverfe  party  might  make  various  anfwers :  he 
might  deny  or  admit  that  flie  was  endowed  of  the  land. 
But  whatever  was  the  anfwer  given,  the  fuit  ought  not 
to  proceed  without  the  widow's  warrantor,  that  is, 
the  heir  of  the  hufband  \  he  was  therefore  fummoned  by 

y  Chnv.  lih.  6.  c.  6, 7.  * 

Vol.  I.  M  the 


246  HISTORYOFTHE 

CHAP.   HI.    the  following  writ :   Rex  vicecomitl  jalutem.     Summone  per 

WILLIAM       honos  funim'jri'tores  N.  filiuin  et  haredem  E.  quod  fit  coram 

^^vT^t'f  o    r.    '/^^  "^tV  juf^ltiis  meis  ed  die.  i^c.  ad  ivarrantizandum  A.  qua 
CONQUEROR         .  ,  ,  ^  ■' 

to  fu'tt  uxar  ipfius  E.  patris  fui  unam  hidam  terra  in  viiia,  i^c. 

^  '       quam  clatnut  pertinere   ad  ratiomibilem  dotem  Juam  de  dono 

tpfius  E.  viri  fui  verjus  N.  et  unde  placitmn  efl  inter  eos  in 
curia  tncd  ft  terra?n  i^lam  ei  warrantizare  voluerit,  vel  ad 
olhndendum  ei  quare  id  facer  e  non  debet  ^  l^c.  If  the  heir 
did  not  appear  nor  eflbin  himfelf,  and  was  in  contempt, 
there  was  a  doubt  what  was  the  precife  way  for  compelling 
him.  Some  thought,  he  was  to  be  diftrained  by  his  fee  ; 
others  thought,  he  was  to  be  attached  by  pledges  ^. 

If  the  heir,  w^hen  he  appeared,  admitted  what  the  widow 
alledged,  he  was  bound  to  recover  the  land  againft  the  tenant 
in  pofleflion,  and  deliver  it  to  the  widow,  and  for  this  pur- 
pofe  the  fuit  was  continued  between  him  and  the  tenant. 
If  he  declined  profecuting  the  fuit,  he  was  bound  to  give 
her  an  equivalent  in  recompenfe;  for  in  all  events  the  wi- 
dow was  to  be  no  lofer.  If  he  denied  what  was  alledged 
by  the  widow,  the  fuit  went  on  between  him  and  her ;  and 
if  (he  could  produce  thofe  who  heard  and  faw  the  endow- 
ment at  the  church-door,  and  was  ready  to  deraign  it  againft 
the  heir,  the  matter  might  be  decided  by  the  duel :  and  if 
fhe  prevailed,  he  muft  irr  that  cafe  alfo  deliver  to  her  the 
land  in  queflion,  or  a  fufficient  equivalent.  It  was  a  rule, 
that  no  woman  could  maintain  any  fuit  concerning  her 
dower  without  her  warrantor  ". 
,^  ,  This  was  the  courfe  for  a  widow  to  take,  when  flie  was 

"ihiU  obliged  to  fue  for  part  of  her  dower  :  but  when  flie  could 

get  pofleflion  of  no  part  of  it,  and  was  put  to  fue  for  the 
whole,  the  fuit  was  commenced  originally  in  the  curia 
regis f  and  the  perfon  who  with- held  her  dowry  was  fum* 
moned  by  the  following  writ,  called  a  writ  of  dower  unde 
nihil  kabet :  Rex  vicecomiti filutem.    Fracipc  N.  quod jujle 

'  CLnv.  lib.  6.  c.  8,  9,  10.  *  Ibid.  c.  11. 


E  N  G  L  I  S  H     L  A  W.  147 

et fine  iVdatione fac'iat  habere^  A,  quce fuit  uxor  E,  rati07ia'     CHAP.  lir. 

bilem  dotem  fuam  in  vULi^   t5'c.    quam  clamat  habere  de  dono      WILLIAM 

ipfius  E.  viri  fui^  UNDE  nihil  habet,  ut  dlcit  j  et  wide   CONQUEROR 

queritur  quod  ipje  ei  injidjie  dejorceat :  et  nift  fecerit^  fimi-  to 

mone  eurn  per  bonos  JuTnrnonltore<  quod  fit  die^  i^c.  coram  nobis       ■' 

vel  jufitiis     nojiris^     ofienfurus     quare    non    lecerity     kffc. 

Whoever  was  in  pofleflion  of  the  land,  whether  the  heir, 

or  any  other  perfon,  the  pre  fence  of  the  heir,  as  was  above 

laid  down,  was  always  neceflary-    If  a  ft  ranger  was  in  pof- 

feflion,  he  was  fummoned  by  this  writ,  and  the  heir  by  the 

above  writ  of  fummons  ad  ivarrantixatidum  **.     The  fuit 

between  the  heir  and  widow  might  be  varied,  according  as 

the  heir  pleafed.     It  fhe  claimed  a  certain  afiigned  dower, 

he  might  deny  any  aflignment,  or  deny  that  to  be  the  land 

alligned.     In  both  cafes  the  proceeding  was  as  above  de- 

fcribed.    If  only  a  reafonable  dower  was  demanded,  a  third 

part  was  to  be  allotted  her  by  the  heir  ".     If  more  was  af- 

figned  to  her  than  a  third  part,  a  writ  might  be  had  direcl- 

ed  to  the  iherifF,  commanding  him  to  admcafure  it  ^, 

I'Glanv.  lib.  6.  u  14,  15,  j6.         Mbld.  c.  17.         ^  Ibid,  c  17,  iS. 


M  2  CHAP. 


48  HISTORYOFTHE 


C        H        A        P.  IV. 

WILLIAM  the  CONQUEROR  to  JOHN. 

Of   Fines — Of  Records — Writ   de    Homagio   recipiendo — 
Ptirprefiure — De  Debitis  Laicorum — Of  Sureties — Mort- 
gages— Debts  ex  empto  et  vendito — Of  Attortiies — Writ  of 
Right   in    the  Lord's    Court — Of  Writs   of  Jujlicies — 
Writs    of    Replevin — and    of  Prohibition — Of    Rscog^ 
nitions — AJJif^   Mortis   Aiitectfforis — Exceptions    to     the 
Affife — Afftfa  Ultima   Prafentationii — JJftfa  Nova  Dif 
feifina. — Of  Terms  and  Vacations — The  Criminal  Law — 
Of  Abjuration — Mode  of  Profecution — Forfeiture — Ho- 
micide — Rape — Proceeding    before    Jufices    Itinerant — 
The  King  and  Government — The  Charters — The  Cho" 
raBers  of  thefe  Kings  as  Legiflators — Laws  of  William 
the    Conqueror — Of   the     Statutes — Domefday    Book — 
Glanville — Mifcellafieous  FaBs. 


CHAP.   IV. 


VY  E  have  hitherto  been  fpeaking  of  compulfory  mc- 
WlLuiAivi      thods  of  recovering  and  confirming  rights;  but  it  often 

CONQUEROR  happened;,  as  Glanville  exprefles  it,  that  pleas  moved  in  the 
T  O^H  N.      king's  court  were  determined  by  an  amicable  compofition 

Of  fiaes.  and  final  concord  :  this  was  always  by  the  confent  and 

licence  of  the  king  or  his  juftices  ;  and  was  done  as  well  in 
pleas  of  land  as  other  pleas.  Such  a  concord  ufed  fome- 
times,  by  the  aflent  of  parties,  to  be  reduced  into  a  writing 
of  feveral  parts  :  from  one  of  thefe  was  the  agreement  re- 
hearfed  before  the  juftices  in  open  court  •,  and,  in  the  pre- 
fence  of  the  juftices,  there  was  given  to  each  party  his 
part,  exadly  agreeing  with  the  other's.  The  following  is 
a  fpecimen  of  fuch  an  inftrument,  literally  tranflated  from 
one  in  the  reign  of  Henry  II.  "  This  is  a  final  concord 
«  made  in  the  court  of  our  lord  the  king,  at  Weftminfter, 


<*  on 


E  N   G  L  I  S  H      L  A  W.  149 


«'  on  the  vigil  of  the  bleffed  Peter  the  apoftle,  in  the  thirty-    chap.   iv. 

<*  third  year  of  the  reign  of  Henry  II.  before  Ranulph  de     vvilliam 

*'  Glanvilla,  judiciary  of  our  lord  the  king,   and  before  f^*-^ 

•*  H.  R.  W.  and  T.  and  other  faithful  and  trufty  perfons  of  to 

•*  our  lord  the  king,  then  there  prefent  -,  between  the  prior      JOHN. 

"  and  brethren  of  the  hofpital  of  St.  Jerufalem,  and  W.  T. 

"  the  fon  of  Norman,  and  Alan  his  fon,  whom  he  appointee! 

"  as  attorney  in  his  ftead  in  the  court  of  our  lord  th€  king, 

"  ad  lucrandusn  £t  perdendu77t  refpe£ling  all  the  land  which 

**  the   faid  W.  held,  with   its  appurtenances,  except  one 

"  oxland  and  threes  tofts.     Of  ail  which  land  (except  the 

"  faid  oxland  and  three  tofts),  there  was  a  plea  between 

"  them  in  the  court  of  our  lord  the  king ;  to  wit,  that  the 

**  faid  W.  and  Alan  concede  and  attefl;  and  quit-claim  all 

•*  that  land  from  them   and  their  heirs  to  the  hofpital  and 

**  aforefaid  prior  and  brethren  for  ever,  except  the  faid  ox- 

"  land  and  three  tofts,  which  remain  to  the  faid  W.  and 

"  Alan,  and  their  heirs,  to  be  held  of  the  faid  hofpital,  and 

"  the  aforefaid  prior  and  brethren,  for  €ver,  by  the  free 

**  fervice  of  four-pence  per  antu  for  all  fervice ;  and  for 

"  this  conceflion  and  atteftation  and  quit-claim,  the  aforc- 

**  faid  prior  and  brethren  of  the  hofpital  have  given  to  the 

"  faid  W.  and  Alan  an  hundred  fhillings  fterling^" 

A  CONCORD  or  agreement  of  this  kind  was  called  firial **, 
becaufc^//f;«  imponit  negotio ;  fo  that  neither  of  the  parties 
could  recede  from  it.  If  one  of  the  parties  did  not  per- 
form what  he  was  thereby  bound  to  do,  and  the  other 
party  complained  of  it;  the  flieriff  would  be  commanded 
to  put  him  by  fafe  pledges,  fo  as  that  he  appeared  before 
che  king^s  juftices,  to  anfwer  why  he  did  not  keep  the  fine ; 
that  is,  if  the  complainant  had  previoufly  given  fecurity  to 
the  (herifF  for  profecuting  his  claim.  The  writ  was  as 
follows  :  Precipe  N.  quodju/ie  et  fine  dilattone  teneat  finem 
fa^um  In  curia  med  inter  ipjum  et  R.  de  una  hida   terra 

*  Clanv.  lib.  8,  9.  i ,  i.  ^  Vd.  ant.  91. 


15°  '  HISTORY      OF      THE 

CHAP.    IV.     In  ij{//('i^  ^c  unrh  placitum  fuit   inter  illos   in   curia  mea: 

WIl  LIAM       et  nifi  fecerit^   et  pradiclus    R.  fecerit   te  jecnrum   de   da- 

rv^T7Rnn    ^ore  fuo  projequendo^   tunc  pone  cum   per    vadium  et  falvos 

to  plegios,  quod  fit   coram   re  vel  iulht'iii  meis^  ojUnfurui  die^ 

J  O  H  N.        cv  ^       •.    c^     I 

tJt.  quare  non  fecerit^  oc.  ". 

If  he  did  not  appear,  nor  eflbin  himfelf ;  or  after  the 
three  eflbins,  if  he  did  not  appear,  nor  fend  his  attorney, 
they  were  to  proceed  as  was  before  fliewn  in  cafe  of  fuits 
profecuted  by  attachments.  When  ihey  both  appeared  in 
court,  if  both  parties  acknowledged  the  writing  containing 
the  concord ;  or  if  the  concord  was  ftated  to  be  fuch  by 
the  juflices  before  whom  it  was  taken,  and  this  was  tefti- 
tied  by  their  record  ;  then  the  party  who  had  broke  it  was 
to  be  in  the  king\  mercy,  and  to  be  fafely  attached 
till  he  gave  good  fecurity  to  perform  the  concord  in  future ; 
that  is,  either  the  fpecific  thing  agreed  on,  if  it  was  poffible; 
or  otherwife,  in  fome  inftances,  what  was  equivalent  :  for 
it  was  invariably  expelled  of  every  one  who  had  acknow- 
ledged or  undertaken  any  thing  in  the  king's  court,  in  pre- 
fence  of  him  or  his  juftices,  ever  after  to  obfcrve  fuch  ac- 
knowledgment and  undertaking.  Moreover,  had  the  final 
concord  been  mad?  in  a  plea  of  land,  then  he  who  was  con- 
victed of  breach  of  the  fine,  if  tenant  of  the  land,  was 
ipfo  faElo  to  lofe  the  land.  If  one  or  both  the  parties  de- 
nied the  chirogrnphum,  then  the  juftices  were  to  be  fum- 
inoned  to  appear  and  record^  fays  Glanville,  in  court  the 
rcifons  M'hy  fuch  a  plea,  between  fuch  parties  of  fuch  land, 
ceafed  ;  and,  if  the  parties  came  to  a  concord  and  agree- 
ment by  their  nflent,  what  the  form  of  that  concord  was. 
As  to  the  method  of  making  this  record,  there  was  this 
J.  xJifTerence  obferved  between  a  concord  made  in  the  king's 
chief  court  and  that  before  the  juflices  itinerant :  if  in  the 
latter,  then  the  juflices  were  fummoned,  that  they,  with 
certain  difcreet  knights  of  the  county  where  the  concord 

^  Glanv.  lib,  8.  c,  3,  4. 

was 


E  N  G  L  I  S  H      L  A  W.  151 

was  made,  who  were  prefent  at  making  the  concord,  and    CHAP.  'IV. 
knew  the  truth  of  the  matter,  (hould  appear  in  court,  there      ^^,jj^  ^^^ 
to  make  a  record  of  the  plea.     Accordingly  a  writ  to  that  'he 

^^  ,•       ^      1  ,         n        -/T-  r  L       .     n-  CONQUEROR 

efFecfb  was  dire6ted  to  the  Iheritt  to  fummon  the  juftices  to 

and  knights  ^  Befides  this,  the  flieriff  of  the  county  JOHN. 
where  the  plea  had  been,  was  commanded  to  have  the 
record  of  the  plea  then  before  the  king  or  his  juflices  by 
four  difcreet  knights  of  the  county.  This  is  the  6rft  men- 
tion we  have  of  the  writ  of  recordariy  fo  named  from  the 
words  of  it  :  Pracipio  tibi  quod  facias  RECORDARI  ///  coini- 
tatii  tuo  loqueJam^  ^c.  ^  When  the  juflices  appeared,  and 
had  agreed  upon  the  record,  that  record  was  to  be  abided 
by,  neither  party  being  allowed  to  make  any  exception  to 
it ;  only,  if  fuch  doubts  fliould  arife,  which  there  was  no 
polTibility  of  removing,  then  the  plea  might  be  recom- 
mertced,  and  proceeded  in  afrelh  ^ 

Having  faid  thus  much  of  records  of  courts,  it  may  be  Of  recordE. 
proper  on  this  occafion  to  enquire  a  little  further  concern- 
ing thefe  muniments  of  judicial  proceedings.     No  court 
had,  generally  and  regularly,  fuch  remembrances  of  its 
proceedings  as  were  called  and  efteemed  records,  except 
the  king's  court,  that  is,  as  it  (hould  feem,  the  court,  where 
the  king's  juftices  fat;  though,  by  what  we  have  juft  related, 
it  fliould  feem  that  the  juftices  itinerant  had  not  regularly  a 
court  of  record.     In  other  courts,  if  any  one  had  faid  that  - 
which  he  would  not  willingly  own,  he  might  be  permitted 
to  deny  it,  in  oppofition  to  the  whole  court,  by  the  oaths 
of  three  pcrfons,  alhrming  that  he  never  faid  it ;  or  by  more 
or  iefs,  according  to  the  cuftom  of  difTerent  courts. 

In  fome  fpecial  inftances,  however,  ^county  ami  other 
inferior  courts  had  records  \  and  that,  as  we  are  informed 
by  our  great  authority  Glanville,  by  virtue  of  a  law  made 
by  the  council  of  the  realm  ^     Thus,  if  in  any  inferior 

«■  Clanv.  lib.  8.  c.  5,  6.  not  know;  nor    is  it  mcniioned  any 

J  Ibid.  c.  6,  7.  where,  that  I  know  o'",   but  in  this 

*  Ibid.  c.  8.  paffagc  oi' Glanville. 

^  When  this  law  was  made,  we  do 

court 


152  H  I  S  T  O  R  Y      O  F      T  H  E 

CHAP.   IV,    court  duel  was  waged,  and  afterwards  the  plea  was  removed 

iir  .  I  i^xA      into  the  kinjr's  court,  then  the  claim  of  the  demandant,  the 

'he  defence  of  the  tenant,  the  form  of  words  in  which  frl^e  duel 

CONQUEROR  ,',         .  irniri.  i.j  j 

to  was  awarded  and  waged  ;  or  all  theie  the  court  had  a  record, 

JOHN.  vvhich  was  acknowledged  as  fuch  by  the  king's  court.  But 
it  had  a  record  of  nothing  elft^,  except  only  of  the  change 
of  a  champion  :  for  if,  after  the  removal  of  the  plea  into 
the  king's  court,  another  champion  th^m  he  who  had  waged 
duel  in  the  inferior  court  was  produced,  and  a  queftion 
arofe  upon  it ;  in  this  cafe  alfo  it  was  decided  by  the  record 
of  the  inferior  court,  according  to  the  direction  of  the  fta- 
tute  before  alluded  to.  Befides,  any  one  might  obje£l  to  the 
record  of  an  inferior  court,  declaring  that  he  had  faid  more 
than  was  now  to  be  found  in  the  record;  and,  that  what  he 
had  fo  faid  he  would  prove  againft  the  whole  court  by  the 
oaths  of  two  or  more  lawful  men,  according  as  the  ufage 
of  the  court  required ;  for  no  court  was  bound  either  to 
maintain  or  defend  its  record  by  duel ;  this,  therefore,  wa'5 
the  only  proof  that  could  be  had.  We  are  informed  by 
Glanville,  that  a  particular  laws  had  been  made,  ordaining 
that  no  one  fliould  except  to  a  record  /'«  part,  and  admit 
the  remainder ;  though  he  might  deny  the  whole  by  oath,  as 
juft  dated*. 

The  king  might  occafionally  confer  on  any  court  the 
privilege  to  have  a  record.  Thus,  upon  fome  reafonablc 
caufe  being  fliewn,  he  might,  as  has  juft  been  obfei^ved, 
diredl  a  court  to  be  fummoned  to  make  a  record  of  a  mat- 
ter for  the  infpeclion  of  his  own  court ;  fo  that,  if  the  king 
pleafed,  there  could  be  no  contradi£lion  admitted  to  fuch 
record.  It  often  happened  that  a  court  was  fummoned  to 
have  the  record  of  fome  plea  before  the  king  or  his  juftices, 
althouah  it  had,  in  truth,  no  fuch  record.     In  this  cafe, 

s  Of  this  law  alfo,  and  the  time    /membraucc  but  this  flight  "ntimation. 
when  it  w.'>  maflf,  there   T?  no  ic-  *  Glanv.  lib.  8.  c.  9. 

the 


ENGLISH      LAW.       ^ 

the  parties,  by  admiOion  and  confent,  might  fettle  a  re- 
cord of  the  matter  between  them.     The  writ  on  this  occa-     "vviluam" 

(ion  ufed  to  be  of  the  following  kind  :  Rex  v'lcfcomiti  falu-  the 

.  ,  ^  .     -'  CONQUEROR 

tern.    Prrecipio  tib:  quod  FACIAS   RECORDARi  in  comi-  to 

tatu   tuo    loquetam  qure    eji   inter  J.  et  B,  de  tevr.'i^  ^c.  in       ■' 

v'iiay  &c.   et  habeas   recordum  illius   loqnelds  coram  me  vel 

jujfitijs  meis   ad  terminum^  i^c.  per  quatuor  legales  milites, 

qui  inter fuerunt^  ad  recordum  id  faciendum.     Et  fummone 

per  bonos  fum?)>onitores  A.    qui  t  err  am   illam   clamat^   quod 

tunc  fit  ibi   cum  loqueld  fud^   et  B.  qui  t  err  am  illam  tenet  ^ 

quod  tun^  ftt  ibi  ad  audiendum  iilud,  i^c.  ^. 

Again,  inferior  courts  had  occafionally  records  of  what 
was  done  there,  which  were  tranfmitted  to  the  king's 
court :  as  when  a  lord  had  a  plea  in  his  court  of  fome 
doubt  and  difficulty,  which  could  not  be  well  determined 
there  \S\tVi\\QVC^\'^y\'^  curiam  fn  am  poncre  in  curiam  domini 
regis,  as  they  called  it,  or  adjourn  the  matter  into  the 
king's  court,  to  have  the  advice  of  that  tribunal  what  was 
proper  to  be  done  •,  an  affi (lance  which  the  king  owed  to 
all  his  barons.  When  a  lord  was  in  this  manner  certified 
what  was  advifeable  to  be  done,  he  returned  with  the  plea, 
and  proceeded  to  determine  upon  it  in  his  own  court. 
County  courts  had  a  record  of  pledges,  or  fureties  taken 
there,  and  of  fome  few  other  matters  \ 

We  before  faid,  that  courts  were  not  bound  to  defend 
their  records  by  duel  -,  but  they  were  obliged  to  defend 
their  judgments  in  that  manner  :  as  if  any  one  fhould  de- 
clare againll  a  court  for  pafhng  a  falfe  judgment  againfthim, 
and  fliould  ftate  it  to  be  therefore  falfe,  becaufe  when  one 
party  faid  thus,  and  the  other  anfwered  thus,  the  court  gave 
a  falfe  judgment  thereon  in  fuch  and  fuch  words,  and  pafled 
that  judgment  by  the  mouth  of  N.  and  (hould  conclude, 
that  if  it  was  denied,  he  was  ready  to  prove  it  by  a  lawful 
witnefs  there  ready  to  deraign  it  5  in  this  cafe,  the  que- 

^  Glan.  Hb.  8.c.  9,  10.  *  Ibid,  c  ix. 

(lion 


HISTORY      OF      THE 

ftion  might  be  declcled  by  the  duel.     But  there  were  fome 
^v^IUIam'    ^^^^^^^  whether  the  court  was  to  defend  its  judgment  by 
t'^-^  one  of  his  own  members,  or  by  fome  ftranp-er.     Glanville 

CONQUEROR     ^  ,  ,  rir  -     -  r  ^         r 

leems  to  nave  been  ot  the  lormer  opmion ;  tor,   he  lays, 


t'> 


JOHN.  ^i^g  defence  was  to  be  by  the  perfon  who  pafled  the  judg- 
ment. If  the  court  was  convi<Sled  in  this  manner,  the  lord 
of  the  court  was  in  the  king's  mercy,  and  loll  his  court  for 
ever-,  and  befides  this,  the  whole  court  was  in  the  king's 
mercy  ". 
v/r,t  Jehma-  "VVe  fliall  HOW  fpcak  of  the  remedy  the  law  allowed  to 

^19  red  if  end:.  i        i        i  •  i        i  r  i  •  i     r 

compel  a  lord  to  receive  the  homage  oi  his  tenant,  and  lo 
enable  him  to  claim  the  protection  confequent  thereon  '.  If 
a  lord  would  not  receive  the  homage  of  the  heir,  nor  a 
reafonable  relief;  then  the  relief  was  to  be  kept  ready,  and 
to  be  repeatedly  tendered  to  the  lord  by  good  men  :  and  if 
he  would  not  at  any  rate  accept  it,  the  heir  might  complain 
of  him  to  the  king  or  his  juftices,  upon  which  he  would 
have  this  writ :  Precipe  N.  quodjujle  etfine  dilat'ione  reci- 
plat  homagium  et  rat'ionahUe  relcvium  K.  de  lihero  tenemento 
quod  tenet  in  villdy  ^c,  et  quod  de  eo  tenere  clamat.  Et 
tjift  fecerit ,  fuinmone,  t^'c. 

The  procefs  againft  the  defendant  was  the  fame  as  has 
often  been  mentioned  before  in  cafes  of  fummons.  If  he 
appeared  and  acknowledged  the  complainant  to  be  the  heir, 
and  confeffed  he  had  tendered  his  homage  and  relief,  he  was 
to  receive  it  inflantly,  or  appoint  a  day  for  doing  it.  The 
fame  was  to  be  done,  if  he  denied  the  tender,  but  admitted 
the  complainant  to  be  the  heir  -,  but  if  he  denied  he  was 
the  heir,  then  the  heir,  if  he  was  out  of  fcifin,  might  have 
an  afTife  againfl  the  lord  de  morte  atitecejforis ;  if  he  was 
in  feifin,  he  might  hold  himfelf  in,  till  it  pleafed  the  lord 
to  accept  his  homage ;  for  the  lord  was  not  to  have  the  re-r 
lief,  till  he  had  accepted  homage.  But  if  the  lord  doubted 
whether  he  was  the  lawful  heir  or  not,  and  it  had  appeared 

^  Glanv.  lib.  8.  c.  9.  lord  fliouKl  receive  his  homage,  Vid. 

*   Wc  have  before   fccn  how  im-      ant.  I2j. 
portant  it  was  for  the  heir  that  the 

to 


E  N  G  L  I  S  H      L  A  W.  155 

to  the  vicinage,  that  be  was  not,  the  lord  might  then  take    C  H  a  p.  iv. 
the  land  into  his  own  hands,  till  it  was  made  appear  whether      wh.liam 
he  was  the  heir.     And  this  was  the  way  in  which  the  king  the 

always  dealt  with  his  harons  :   for  the  king,  upon  the  death  to 

of  a  baron  holding  of  him  in  chief,  immediately  retained  the       J 
barony  in  his  own  hands,  till  the  heir  gave  fecurity  for  the  re- 
lief; and  this,  notwithftanding  the  heir  was  of  full  age  \ 

Lords  might  defer  receiving  homage  and  relief,  upon 
reafonable  caufe  fhewn;  as  fuppofe  fome  other  perfon  than 
the  heir  pretended  a  right  to  the  inheritance,  or  any  part  of 
it;  for  while  that  fuit  depended,  he  could  not  receive  ho- 
mage or  relief.  Another  caufe  was,  when  the  lord  thought 
he  had  a  right  to  hold  the  inheritance  in  demefnc.  In  fuch 
cafe,  if  he  commenced  a  fuit  by  the  king's  writ,  or  that  of 
his  juftices,  againfh  the  perfon  in  feifin  of  the  land,  the 
tenant  might  put  himfelf  upon  the  king's  great  affife,  which 
proceeded  much  in  the  way  wc  before  flated,  as  will  appear 
by  the  following  writ :  Rex  vicecomtti  falutem,  Summone 
per  bonos  fuminomiores  qujtuor  legales  millles  de  vicintto 
viUce^  I3c,  quod  fint  coram  me  vel  jufiltin  ?neis  die,  ^'V. 
ihi,  (ul  eligendum  fuper  j'acr amentum  fuum  duodec'wi,  tffc. 
qui  melius  rei  veritatem  fc  ant,  et  dicer e  velint^  ad,  faci- 
endam  re^Qgnitionem,  iitrum  N,  majus  jus  Inibet  teuendi 
unam  lida?n  terra,  in  villa ^  i^c.  de  T.  z-cl  ipfe  R.  tener.di  earn 
in  dciminicQ  Juo,  quam  ipfe  R.  pe^it  per  breve  meum  verjut 
pr(vdifium  N.  et  unde  N.  qui  tcrram  illam  tenet,  pofuit  fe 
in  ajjifam  meam,  et  petit  reiOgnitionem  fieri,  utrim  iile  vn - 
jus  jus  habeat  tenendi  terram  illam  in  dofninico,  vel  pn^- 
diclus  N.  tenendi  de  eo.  Et  fummone  per  bonos  fummom  ■ 
tores  prdedidlu?n  N,  qui  terram  illam  ienef,  quod  tunc  tbi  fit 
auditurus  illam  eleSIionem^  i^c.  ^. 

If  a  lord  could  not,  by  diftrefs  or  otherwlfe,  compel 
his  tenant  to  render  his  fervices  and  cufloms  legally  due ; 
rccourfe  was  then  had  to  the  king  or  his  chief-jullice, 

'  Glanv.  lib.  9.  c.  4,  5,  6.  "  I^''J-  f-  6,  7- 

.  from 


156  HISTORYOFTHE 

CHAP.  IV.    from  whom  he  might  obtain  the  following  writ  to  the  (he- 
WILLIAM      ^^^'  dire6^ing  that  he  himfelf  fliould  fee  juftice  done  to  the 

tne  complainant ;  which  is  the  firfb  inflance  we  have  yet  men- 

CONQUEROR      .         ,       r    1        r  r  -       c    -    a'  '  d        -.'        i' 

to  tioned  of  the   form  of  a  writ  or  jujiuies.     rracipto  ttht 

JOHN.  ^^>^  jUSTiciES  N,  qttod  jufle  et  fine  dilation^  facial  R, 
confuetudines  et  re5la  fervitia  qu<t  et  fa  cere  debet  de  tene- 
mento  fuo  quod  de  eo  tenet  in  villa,  ^c.  ficut  rationahiliter 
monjlrare  poterit  eum  fihi  deberi^  ne  oporteat  eum  amplins 
inde  conqueri  pro  defeciu  veBi^  Is'c.  In  purfuance  of  this 
writ,  the  fherifF,  in  his  county  court,  held  a  plea  of  the 
matter  in  queflion,  and  the  party  complaining  might  therein 
recover  his  fervices  and  dues,  according  to  the  cullom  of 
the  county.  If  he  made  out  his  right,  the  other  party,  he- 
fides  rendering  what  was  due,  was  in  the  mercy  of  the 
flierifF :  for  the  m'lfer'icordia  or  amercement  which  afofe  out 
of  any  fuit  in  the  county  court,  always  went  to  the  fherilT. 
The  quantum  of  this  was  afcertained  by  no  general  law,  but 
depended  on  the  cuftom  of  different  counties,  and  the  opi- 
nion of  the  perfons  who  aflefled  it ". 
Purpreaufc.  Next,  as  to  the  remedy  to  be  parfued  in  cafe  of  purpre- 

flures.  Purprejlure,  or  according  to  Glanville  porpreflure^ 
was,  when  any  unlawful  encroachment  was  made  upon 
the  king;  as  intruding  on  his  demefnes,  obflru6ling  the 
public  ways,  turning  public  waters  from  their  courfe,  or 
building  upon  the  king's  highway  <^ :  in  (hort,  whenever  a 
nuifance  was  committed  upon  the  king's  freehold,  or  the 
king's  highway,  a  fuit  concerning  fuch  nuifance  belonged 
to  the  king's  crown  and  dignity.  Thefe  purpreftures  were 
enquired  of  either  in  the  chief  court  of  the  king,  or  before 
the  king's  juft ices,  who  were  fent  into  different  parts  of  the 
kingdom  for  the  purpofe  of  making  fuch  inquifitions, 
by  a  jury  of  the  country,  or  of  the  vicinage  p.  Who- 
foever  was  convicted  by  a  jury  of  having  committed  fuch 
purpreftures,  was  in  the  king's  mercy  for  the  whole  fee  he 

"  Glanv.  li^.  9.  c.  8,9,  10.  ^    Per  juratam  patria  five  lici- 

•  Regiam  pla'eam.  neli. 

held 


E  N  G  L  I  S  H      L  A  W.  157 

held  of  the  king,  and  was  obliged  to  reftore  what  he  had    CHAP.  iv. 
Incroached  upon.     If  the  purpreflure  confided  in  building      vvilliam 

in  fome  city  upon  the  king's  ftreet,  the  edifice,  fays  Glan-  ihc 

^      ^  r     r  •      ,  11-  1  CONQUEROR 

ville,  fo  built,  was  forfeited  to  the  king,  and  the  party  re-  to 

mained  in  the  king's  mercy.  The  mifericordla  domini  JOHN. 
regisy  which  has  been  fo  often  mentioned,  is  explained  in 
this  paflage  ty  Glanville  to  be,  when  any  one  is  to  be 
amerced  by  the  oaths  of  twelve  lawful  men  of  the  vicinage; 
fo,  however,  ne  aliquid  defuo  honorabili  contenemento  amittat^ 
as  not  to  lofe  his  countenance ^  or  appearance  in  the  world. 
When  any  purprefture  was  committed  againft  a  private 
perfon,  it  was  conGdered  in  a  different  way.  If  it  was 
againft  the  lord  of  the  fee,  and  not  within  the  provifions 
of  the  (latute  about  alTifes,  then  the  tranfgreffor  was  made 
to  appear  in  the  lord's  court,  provided  he  held  any  tenement 
of  him.  This  was  by  the  following  writ :  Rex  vicecomiti 
Jalutenu  Pracipio  tibi  quod  jujiicies  N.  quod  fine  dilatione 
veniat  in  curia  I.  domini  fiii^  et  ibi  Jiet  ei  ad  return  de  li- 
hero  tenemento  fuo  quod  Juper  eum  occupavit^  ut  dicit,  ne 
oporteatj  iffc."^.  If,  upon  this  writ,  he  was  convi£led  of 
the  purprefture  in  the  lord's  court ;  he  loft,  without 
recovery,  the  freehold  he  held  of  the  lord. 

If  he  held  no  freehold  of  the  lord,  then  the  lord  might 
implead  him  by  a  writ  of  right  in  the  court  of  the  chief 
lord.  In  like  manner,  if  any  one  committed  a  purpre- 
fture upon  a  perfon  not  his  lord,  and  the  fa61:  did  not  come 
within  the  provifion  about  aflifes,  he  might  be  impleaded 
in  a  writ  of  right.  But  if  it  was  within  that  law,  then 
there  ftiould  be  a  recognition  upon  the  novel  diffeifin  to 
recover  feifin  *,  of  which  proceeding  we  fball  have  occafion 
to  fpeak  more  hereafter.  In  thefe  purpreftures  it  ufually 
happened,  that  the  boundaries  of  lands  were  broke  in 
upon  and  confounded ;  upon  which,  at  the  prayer  of  any 
of  the  neighbours,  the  following  writ  might  be  iflued  : 
Rex   vicecomiti  falutem,       Pracipio  tibi   quod  jujle    et  fine 

1  Clanv.  lib   9.  c.  ii,  u. 

dilatione 


WILLIAM 


rum. 


HISTORY      OF     THE 

dilatione  facias  ejfe  rationabiles  divifas  inter  terram  R.   in 
villa,   i5fc.  et  terram  Ade  de  Byri  ficut  cjje  dehent^  et  ejja 

the  folent,  et  ficut  fuerunt  tempore  re^is  Henrici  avi  mei.  unde 

CONQUEROR   '  /         \  ,   jj  ■    ,3-       .    r       ■    J-  ■ 

to  -ti,   querttur  quod  Adam   tnju/ic^   et  fine  judicio,   occupavit 

JOHN.  p[j^^  jjj^g  quam  pertinet  ad  liberum  tencmcntutn  fuum  de 
Byri 'j  ne  amplius  inde  clamor  em  audiam  pro  defied  u  jujll- 
tiiSy  iffc.  ^ 

"VVe  have  hitherto  treated  of  the  remedies  in  ufe  for  vin- 
dicating a  right  to  land,  and  its  appendant  fervices  and 
profits.  "We  fhall  now  take  leave  of  this  fubjc6t  for  a 
while,  and  confider  the  nature  of  perfonal  contra6ls ;  fuch 
as  buying,  felling,  giving,  lending,  and  the  like ;  upon 
De  dehi'.is  laic:-  -which  there  arofe  debts  and  obligations  to  pay.  This  fub- 
je£t  is  intitled,  in  the  language  of  this  period,  de  debitis 
laicorumy  to  diftinguifh  it  from  thofe  debts  and  dues  that 
were  recoverable  in  the  ecclefiaflical  courts,  as  being 
things  of  a  fuppofed  fpiritual  nature  ;  fuch  as  money  due  by 
legacy,  or  upon  promife  of  marriage ». 

Pleas,  therefore,  de  debitis  laicorum  belonged  to  the 
king's  crown  and  dignity.  If  any  one  complained  to  the 
curia  regis  of  a  debt  owing  to  him  which  he  was  defirous 
fhould  be  enquired  of  in  that  court,  he  had  the  following 
writ  of  fummons :  Rex  vicecomiti  faluiem.  Pracipe  N. 
quod  jujTe  et  fine  dilatione  reddat  R.  centum  marcas  quas 
ei  debet ^  ut  dicit^  et  unde  queritur  quod  ei  deforceat.  Et 
nifi  fecerit^  fummone  eu?n  per  bonos  fummonitores,  quod  fit 
coram  me  veljufiitiis  meis  apud  IVeJimonafiertum,  d  claufo 
Pafcha  in  quindecim  dies,  ojienfurus  quare  non  fecerit^  ^c. 
This  was  the  form  of  the  writ  of  debt. 

The  manner  of  enforcing  an  appearance  to  this  writ, 
was  as  in  other  cafes  of  fummons.  It  fhould  be  obferved 
here,  that  it  was  not  ufual  for  the  curia  regis  in  any  cafe 
to  compel  obedience  to  a  writ  by  diftraining  the  chattels ; 
therefore,  even  in  a  plea  like  this,  the  defendant  might  be  di- 

r  Glaar.  lib.  9.  c.  13,  14.  »   For  this  vide  Fleta,  p.  131. 

ftrained 


ENGLISH      LAW. 

ftrained  by  his  fee  and  freehold,  or,  as  in  fome  other  fults, 

by  attachment  of  pledges ^  WILLIAM 

When  they  were  both  in  court,  then  it  was  to  be  con-  the 

;       ,  ,         r         rrni  •         •   ,     1         r         •  CONQUEROR 

fidered  how  the  demand  arole.     J  his  might  be  of  various 


to 


kinds ;  as  ex  caujd  mutui^  upon  a  borrowing  *,  ex  caufd  ven-  ]  O  n  ,  . 
(iitionisf  upon  a  fale  ;  ex  coinmodntOy  upon  a  lending ;  ex  lo^ 
catOf  upon  a  hiring;  ex  depofito^\  upon  a  depofit ;  or  by 
fome  other  caufe  by  which  a  debt  arofe :  for,  at  this  time, 
all  matters  of  perfonal  contrail:  were  confidered  as  bind- 
ing, only  in  the  light  oi  debts :  and  the  only  means  of  re- 
covery, in  a  court,  was  by  this  action  of  debt. 

A  DEBT  arofe  ex  mutuoy  when  one  lent  another  any 
thing  which  confided  in  number,  weight,  or  meafure.  If 
a  perfon,  upon  fuch  a  lending,  received  back  again  more 
than  he  lent,  it  was  ufury ;  and  if  he  died  under  the  repu- 
tation of  an  ufurer,  we  have  feen  the  infamy  with  which 
his  memory  was  ilained.  A  thing  was  fometimes  lent 
Cub  plegiorum  datione ;  that  is,  fome  one  was  furety  for 
the  reftoration  of  it ;  fometimes,  fub  vadii  pofitiotiey 
that  is,  a  pledge  was  given ;  fometimes,  fub  fidei  interpofi- 
tiofie,  when  a  bare  promife  was  made  for  the  return ; 
fometimes,  fub  charta  expofitioncy  when  a  charter  was 
made  acknowledging  fuch  lending ;  and  fom.etimes  with  all 
thefe  fecurities  together. 

When  any  thing  was  owing  yj/*^  plegiorum  datione  offuretlei, 
only,  if  the  principal  debtor  had  not  wherewithal  to  pay, 
recourfe  was  had  to  the  fureties  by  the  following  writ: 
Rex  vicecomiti  falutem.  Pracipe  N.  quod  jujie  et  fine  di^ 
hit  ion  e  acquietet  R.  de  centum  marc  is  verfus  N.  unde  eum 
applegiavity   tit   dicity  et   unde  queritur  quod  eum   non   ac' 

'   Gliiav.  lib.  10.  ».•.  1,  2,  3.  bears   qo   rLicmbUnce    to  the   impc- 

"    It   is  almoll   uniiccclVaiy  lo  re-  rial  jurilprudencc.    This  is  one  Itrong 

ma  k,    that  thelc   c>[>rel1ions  are  all  and  very  rerr>arkable  cirtumftance  to 

borroweil    Trora   Uie    civil  law;    the  fhcw,   that  the  ufc  made  of  the  Ro- 

lime  may  be  laid  of  the  definitions  man  law  by  our  old   writers  was  not 

hereafter  given  of  thrfe  difTercnt  ob-  to  cmruf^ty  but  to  adorn  and  elucidate 

ligytioiis;  but,  notwithlUndiag  this,  our  municipal   tuftoms.     Vide   Inll. 

the  matter  of  GlanviUc'ii  difcourle  up-  lib.  3.  tit.  15. 
'in  the  r^ibjcdt  of  debt  5-  and  obligations 

quiet  a  vis 


i6o 


HISTORY     OF     THE 


CHAP.    IV. 


WILLIAM 

the 
CONQUEROR 

to 
JOHN. 


quietavit   inde.      Et   n'lft  fecerit,  fummone    eum  per  honos 
fummonitores^   ilfc.  ^.      If  the  furetles  appeared  in  court, 
and  confefTed  the  furctyfhip,  they  were  then  obliged  to  pay 
the  debt  at  certain  times  affixed  in  court,  unlefs  they  could 
(hew  that  they  were  releafed  from  their  engagement,  or 
had  in  fome  way  fatisfied  the  demand.     Sureties,  if  more 
than  one,  were  held  to  be  fcverally  bound  for  the  whole 
(unlefs  there  had  been  fome  fpecial  agreement  to  the  con- 
trary), and  they  were  both  to  be  proceeded  againfl  for  fa- 
tisfa£tion  :  therefore,  fhould  any  of  them  be  infufficient, 
the  remainder  were  to  be  anfwerable  for  the  deficiency. 
If  the  fureties,  however,  had  fpecially  engaged  for  particu- 
lar parts  of  the  payment,  it  was  otherwife.     There  might 
arife  a  difpute  between  the  creditor  and  the  fureties,  or  be- 
tween the  fureties,  upon  this  point.     In  like  manner,  if 
fome  of  the  fureties  engaged  for  the  whole,   and   fome 
for  parts  only,  then  the  former  would  have  a  queftion  to 
debate  with  the  latter.     In  what  manner  all  thefe  points 
were  to  be  proved,  will  be  feen  prefently.     When  the 
fureties  had  paid  what  was  due,  they  might  rcfort  to  the 
principal  by  a  new  aclion  of  debt,  as  will  be  fliewn  here- 
after.    However,   it  fhould  be  remarked,  if  any  one  had 
become  furety  for  a  perfon's  appearance  in  a  fuit,  and  he 
had  fallen  into  the  king's  mercy  for  the  default  of  the  prin- 
cipal, he  could  not  recover  by  atlion  of  debt  againft  the 
principal  what  he  had  fo  paid  *,  for  it  was  a  rule,  that 
fhould  any  one  become  furety  for  a  perfon's  nnfwering  in 
the  king's  court,  in  any  fuit  belonging  to  the  king's  crown 
and  dignity,  as  for  breach  of  the  peace,  or  the  like,  he  fell 
into  the  king's  mercy,  if  he  did  not  produce  the  principal ; 
but  he  was  thereby,  notwith (landing,  releafed  from  the  enr 

^  This  writ  wa??,   in  after-time?!,  creditor  againft  the  furety.     F.  N.  B. 

ciWcd  Je  plegits  ac(fuieranjis,  and  ufcd  It  mu'^  be  confefTed,  the  wording  of 

to  be  brought  by  the  fureties  againll  it  in  Clanvillc  fcems  moie  aiiapted  to 

the  principal   debtor  ;  though   in  the  the  modern  than  the  anticnt  ?ppli- 

timc  of  GUnvillc  we  find  it  lay  for  the  cation  of  the  writ. 

gagcment. 


E  N   G  L  I  S  H      L  A  W.  i6i 

gagement,  as  a  furety,  and  therefore  there  could  be  no    chap.  iv. 
further  proceeding  inltituted  thereon ''.  wiu.iam 

If  fome  of  the  furetles  denied  thev  were  furetles,  and  ^^^ 

'  CONQUEROR 

fome  confefled  it,  then  the  queftion  would  be,  as  well  be-  lo 

tween  the  creditor  and  the  fureties,  as  between  the  fureties  ** 
themfelves.  There  was  a  doubt  what  fliould,  in  this  cafe, 
be  the  mode  of  proof  *,  whether  by  duel,  or  whether  the 
fureties  were  to  deny  their  engagement  by  the  oaths  of 
fuch  number  of  perfons  as  the  court  fheuld  require.  Some 
thought  that  the  creditor  himfclf,  by  his  own  oath,  and 
that  of  lawful  witnefTes,  might  make  proof  of  it  againft 
the  fureties,  unlefs  the  fureties  could  avoid  his  oath  by 
any  lawful  objection  :  and  if  fo,  fays  Glanville,  they  muft 
refort  to  the  duel  /. 

Things  were  lent  fometimes //^  vadii  pojiilone ;  and 
then  either  moveables,  as  chattels,  or  immoveables,  as 
land,  tenements,  and  rents,  were  given  in  pledge.  A 
pledge  was  given  either  at  the  time  of  lending,  or  not. 
It  was  given,  fometimes  for  a  certain  term,  fometimes 
without  any  fixed  term,  fometimes  in  mortuo  vadlcy 
fometimes  not.  Mortuum  vadium^  or  mortgage^  was, 
when  the  fruits,  or  rent  arifing  therefrom,  did  not  go  to- 
wards paying  off  the  demand  for  which  it  was  pledged. 
When  moveables  were  pledged,  and  feifm  thereof,  as  it  is 
called,  given  to  the  creditor  for  a  certain  term,  the  law 
required  that  he  (hould  fafely  keep  it,  without  ufmg  it  fo 
as  to  caufe  any  detriment  thereto ;  and  if  any  detriment 
happened  to  it  within  the  term  appointed,  it  was  to  be  fet 
off  againft  the  debt,  according  to  the  damage  fuftained.  If 
the  thing  pledged  was  fuch  as  neceflariiy  required  fome 
expence  and  coft,  as  to  be  fed  or  repaired,  perhaps  there 
would  be  fome  agreement  between  the  parties  about  it, 
and  that  agreement  was  to  be  the  rule  of  fuch  contingent 
expences.     It  was  fometimes  agreed,  that  if  the  pledge 

'^  Glanv.  lib.  10.  c.  3,  4,  5.  y   Ibid.  c.  6.  *  Ib-d.  c.  7. 

Vol.  I.  N  was 


WILLIAM 


1(52  H  I  S  T  O  R  Y     O  F     T  H  E 

CHAP.   IV'.    was  not  redeemed  at  the  term  fixed,  it  (hould  remain  to 

the  creditor,  and  become  his  property.     If  there  was  no 

the  Aich  agreement,  the  creditor  might  quicken  the  redemp- 

fo  tion  by  the  following  writ :  Rex  vicecomitt  falutem,     Pra* 

JOHN,       ^;^^  ^^  quodjujie  et  fine  dilatione  acquietet^    &c.   quam  in* 

vadiavii  R,  pro  centum  marcis  ufque  ad  terminum  qui  pra- 

teriitf  ut  dicity  et  unde  queritur  quod  earn  nondum  acquie- 

tavit :  et  nift  fecerit^   l^c.  ' 

It  was  doubted  by  Glanvillc,  in  what  manner  the  de- 
fendant was  to  be  compelled  to  appear  to  this  writ  \  whe- 
ther he  was  to  be  diftraincd  by  the  pledge  itfelf,  or  in  what 
other  way-  This,  it  fcems,  was  left  to  the  difcretion  of 
the  court ;  and  might  be  effected,  either  by  that  or  fomc 
other  method.  He  ought,  however,  to  be  prefent  in  court 
before  the  pledge  was  quit-claimed  to  the  creditor,  for  he 
might  be  able,  perhaps,  to  (hew  fome  reafon  why  it  (hould 
not.  If  he  then  confefled  his  having  pledged  the  thing,  as 
he  thereby  in  efFe£i  confefled  the  debt,  he  was  commanded 
to  redeem  it  in  fome  reafonable  time ;  and  if  he  did  not, 
the  creditor  had  licence  to  treat  the  pledge  as  his  own  pro- 
perty. If  he  denied  the  pledging,  he  muft  either  fay 
the  thing  was  his  own,  and  account  for  its  being  tranf- 
ferred  out  of  his  poflefTion,  as  lent  or  intrufted  to  him  v 
or  deny  it  to  be  his ;  and  then  the  creditor  had  licence  to 
confider  it  as  his  own  property.  If  he  acknowledged  it 
was  "his,  but  denied  thd  pledge  and  debt  both ;  then  the 
creditor  was  bound  to  prove  both  :  and  the  manner  of 
proofs  where  pledges  denied  their  furetyfhip,  we  have 
before  mentioned.  But  the  debt  could  not  be  demanded 
before  the  expiration  of  tl>e  term  agreed  upon ". 

If  the  pledge  was  made  without  mention  of  any  parti- 
cular term,  the  creditor  might  demand  hrs  debt  at  any 
time.  When  the  debt  was  paid,  the  creditor  was  bound 
to  rcftorc  the  pledge  in  the  condition  he  received  it,  or 

•  Glanv.  lib.  lo.  c.  8.  •  Ibid.  c.  8. 

make 


ENGLISH      LAW.  163 

m:\ke  fatisfacllon  for  any  injury  that  It  had  received :  for  it    C  H  A  P.  IV. 
was  a  rule,  that  a  creditor  was  to  reftore  the  pledge,  or     williaM 

make  fatisfaclion  for  it  •,  if  not,  he  was  to  lofe  his  debt  ^.  ihe 

,      ,  ,  ,  ,.  ,  ,       ,  ,.  CONQUEROR 

When  it  happened,  that  a  debtor  did  not  make  dehvery  to 

of  the  pledge  at  the  time  of  receiving  the  thing  lent,  Glan-      J  O  H  K*. 

ville  doubts  what  remedy  there  was  for  the  creditor,  as  the 

fame  thinj;  might  be  pledged,  both  before  and  after,  to  fe- 

veral  perfons  •,   for  it  mud  be  obfcrved,   fays  our  author, 

that  it  was  not  ufual  for  the  i-oi/rt  of  our  lord  the  king  to 

give  protection  to,  or  warrant  private  agreements  about 

giving  or  receiving  things  in  pledge,  or  about  other  matters, 

if  made  out  of  court,  or  if  made  in  other  courts  than  that  of 

our  lord  the  king  :   and  therefore,  when  fuch  conventions 

were  not  obferved,  the  curia  regis  would  not  entertain  any 

fuit  for  the  eitablilliment  of  them.     The  debtor,  therefore, 

could  not  be  put  to  anfwer  about  the  priority  of  pledging ; 

and^  the  perfon  who  was  the  lofer  by  it,  mud  content  him- 

felf  with  the  confequence  of  his  own  negligence. 

When  a  thing  immoveable  was  put  in  pledge,  and  feifin   Morf{»a?es. 
thereof  given  to  the  creditor  for  a  certain  term,  it  was  ge- 
nerally agreed  between  them  whether  the  rents  and  profits 
Ihould,  in  the  mean  time^  go  towards  the  difcharge  of  the 
debt,  or  not.     An  agreement  of  the  firtt  kind  was  con- 
fidered  as  juft  and  binding-,  the  latter  as  unjufl  and  diflio- 
neft,   and  was  the  wortuum  vadiuw,  or  r/iort-gnge  before 
mentioned.      Though  this   was  not  wholly  prohibited  by 
the  king's  court,   yet  it  was  reputed  as  a  fpecies  of  ufury, 
and  punifliable  in  the  way  before  mentioned.     In  other  re- 
fpe6ls,  the  rules  of  law  refpecting  this  pledge  were  the 
fame  as  thofe  before  dated  in  the  cafe  of  a^moveable,  when 
pledged.     It  mud  be  added,  that  diould  the  debtor  pay  the 
debt,  and  the  creditor  dill  detain  the  pledge,   the  debtor 
might  have  the  following  writ  to  the  dieriff:   Precipe  iV. 
quod  juj}e  et  fitie  di!atio?:e  reddat  R.  tot  am  terram  illam  in 

^  GUnv.  lib.  10.  c.  8.  «  Ibid.  c.  8. 

N  2  njillay 


1^4  H  I  S  T  O  R  Y     O  F    T  H  E 

CHAP.    IV.     villa,    isfc.  qiiam  e'l  invadiavit  pro  centum  marcis  ad  tci" 
WILLIAM     ^if^^^n  qui prateriit,  ut  dicit,  et  denarios  fuos  inde  recipiat ; 

'^^  OR,  quam  ei  acquietavity  ut  dicit ;   et  nifi  fecerit.  fummone 

CONQUEROR  ,  ^      a  .  J  J  *  J 

to  eum  per  bonos,  cs'r.  °.     The  creditor,  upon  his  appearance 

•'■  *      in  court,  would  either  acknowledge  the  land  to  be  given  in 

pledge,  or  would  claim  to  hold  it  in  fee.  In  the  firfl  in- 
ftance,  he  ought  to  reftore  it,  or  (hew  a  reafonable  caufe 
why  he  fhould  not.  In  the  fecond,  it  was  put  either  at  the 
prayer  of  the  creditor  or  debtor,  upon  the  recognition  of 
the  country,  whether  the  creditor  had  the  land  in  fee,  or  in 
pledge  ;  or  whether  his  father  or  any  of  his  anceftors  was 
feifed  thereof,  as  in  fee  or  in  pledge,  on  the  day  he  died ; 
and  fo  the  recognition  might  be  varied  many  ways,  accor- 
ding as  the  demandant  claimed,  or  the  tenant  anfwered  to 
that  claim.  But  if  a  recognition  was  prayed  by  neither 
party,  the  plea  went  on  upon  the  right  only  ^. 

If  the  creditor  by  any  means  loft  his  feifin,  whether 
through  the  debtor  or  through  any  one  elfe,  he  could  not 
-  recover  feifin  by  any  judgment  of  the  court,  nor  by  a  recog- 
nition of  novel  difleifin  ;  but  if  he  was  dilTeifed  of  his 
pledge  unlawfully,  and  without  judgment  of  any  court,  the 
debtor  himfelf  might  have  an  aflife  of  novel  difTeifin  :  and 
fhould  he  have  been  difleifed  by  the  debtor  himfelf,  he  had 
no  way  of  getting  pofl'effion  again  but  through  the  debtor ; 
for  he  muft  refort  to  the  principal  plea  of  debt,  to  com- 
pel the  debtor  to  make  him  fatisfaclion  ^. 

Thus  far  of  proving  a  debt  by  fureties  and  by  pledge  j 
but  where  the  creditor  had  neither  of  thefe  to  prove  his  de- 
mand, nor  any  other  proof,  but  only  the  faith  or  promife 
of  the  debtor,  this  was  held  no  fuflicient  proof  in  the 
king's  court;  but  he  was  left,  fays  Glanville,  to  his  fuit  in 
the  court  chriftian  de  fdai  Lvfiofie  vel  tranfgrejfione,  for 
breach  of  promife.  Though  the  ecclefiaftical  judge  might 
take  cognizance  of  this  as  a  criminal  matter,  and  infli£l  a 

^  Glanv,  lib.  lo.  c.  8,  9.  *  Ibicl.  c.  10.  *  Ibid,  c.  11. 

penance 


E  N  G  L  I  S  H      L  A  W.  165 

penance  upon  the  party,  or  enjoin  him  to  make  fatisfa£lion ;     c  H  a  P.  i v. 
yet  we  have  ken,  that  he  was  prohibited  by  one  of  the      v/illiam 

Conftitutiohs  of  Clarendon,  to  draw  into  that  jurifdi6lion,  the 

.  ^.  .       ,        ,  1  CONQUEROR 

and  determnie  queftions  concerning  lay-debts  or  tenements,  to 

upon  pretence  of  2iXiy  promife  having  been  made  refpe£ting       J  o  H  l^- 
them^. 

If  then  the  creditor  had  neither  fureties  nor  pledge,  he 
was  driven  to  find  fome  other  proof.  He  might  make  out 
the  matter  either  per  tejiem  idoneum^  per  duellutny  or  per 
cartaniy  i.  e.  by  a  fit  witnefs,  or  by  the  duel,  or  by  a  char- 
ter. If  the  debtor's  charter  or  that  of  his  anqeftor  was 
produced,  and  he  did  not  acknowledge  it,  he  might  con- 
trovert it  feveral  ways.  Perhaps  he  might  admit  it  to  be 
his  feal,  but  deny  that  the  charter  was  made  by  him  or  with 
his  aflent ;  or  he  might  deny  the  charter  and  feal  both.  In 
the  firft  cafe,  if  he  acknowledged  publicly  in  court  the 
feal  to  be  his,  fo  great  regard  was  had  to  a  feal,  that  he  was 
thereby  confidered  as  having  acknowledged  the  charter 
itfelf,  and  was  bound  to  obferve  the  covenants  therein  con- 
tained j  it  being  his  own  fault,  if  he  fufFered  any  injurv  for 
want  of  taking  care  of  his  own  feal.  In  the  latter  cafe,  the 
charter  might  be  proved  in  the  duel  by  a  fit  witnefs,  parti- 
cularly by  one  whofe  name  was  inferted  as  a  witnefs  in  the 
charter.  There  were  other  ways  of  eftabliihing  tlie  credit 
.of  a  charter ;  as  by  (hewing  other  charters  figned  with  the  ^ 

fame  feal,  which  were  known  to  be  the  deeds  of  the  perfon 
who  denied  this;  and  if  the  feals,  upon  comparifon,  ap- 
peared exactly  the  fame,  it  was  held  as  a  clear  proof;  and 
the  party  againft  whom  it  was  to  operate  loft  his  fuit,  whe- 
ther it  related  to  debts,  land,  or  any  other  matter  :  and  he 
was  moreover  to  be//;  mifericordid  to  the  king;  for  it  was 
a  general  rule,  that  when  a  perfon  had  faid  any  thing  in 
<iourt  or  in  a  plea  which  he  again  denied,  or  which  he  could 
not  warrant,  or  bring  proof  of,  or  which  he  was  compelled 

*  ^laav.  lib.  10.  c.  12.     Vid.  ant.  78. 

to 


1 66 

CHAP. 

IV. 

S.-- — N^ 

--w^ 

WILLI 

M 

the 

CONQUKROR 

to 

J  O  H 

K. 

HISTORY     OF     THE 

to  gamfay  by  contrary  proof,  he  always  remained  in  'mife" 
rlcordia.  If  a  pcrfon  had  given  more  fecurities  than  one 
for  a  debt,  they  might  all  be  reforted  to  at  oiice;  otherwife 
many  fecurities  would  not  be  of  more  benefit  than  one  ^. 

We  have  hitherto  been  fpeaking  of  lending  and  borrow- 
ing ;  we  come  now  to  a  debt  arifing  ex  coinmodato :  as  if 
one  lent  another  a  thing  luithout  any  gratuity,  to  ufe,  and 
derive  a  benefit  from  it ;  when  that  ufe  and  benefit  was  at- 
tained, the  thing  was  to  be  rcllored  without  detriment-,  but 
if  the  thing  periihed,  or  was  damaged  in  his  keeping,  a 
recompence  was  to  be  made  for  the  damage  fullained :  but 
how  this  damage  was  to  be  valued,  and  if  the  thing  was 
lent  for  a  certain  term,  or  to  be  ufed  in  a  certain  place,  how 
a  recompence  was  to  be  made,  fhould  he  exceed  that  term 
and  deviate  from  that  piace;  or  how  that  excefs  was  to  be 
proved,  or  whofe  property  the  thing  was  to  be  confidered, 
Glanville  fignifies  his  doubts;  only  as  to  the  property,  he 
thought  that  retaining  the  thing  beyond  the  Hated  time  and 
place  could  not  well  be  calledy//r///w,  or  flealing;   becaufc 
he  had  poffeirion  of  it  originally  through  the  right  owner. 
Glanville  alfo  doubted,  whether  the  owner,  if  he  had  any 
ufe  for  it  himfelf,  might  demand  his  thing  fo  lent  before  the 
time  was  expired,  or  before  any  breach  of  the  agreement  as 
to  the  place '. 

Next  as  to  debts  arifing  ex  ewpto  et  vevdito,     A  falc 

was  confidered  as  efFcclually  completed  when  the  price  was 

agreed  upon,  fo  as  there  was  a  delivery  of  the  thing  fold,  or 

the  price  paid,  in  part  or  in  the  whole,  or  that  at  leaft  ear- 

neft  was  given  and  received.    In  the  fird  two  cafes,  neither 

of  the  contra(fting  parties  could  recede  from   the  bargain, 

unlefs  on  a  juH  and  reafonablc  caufe ;  as  if  there  had  been 

an  agieement  at  firft  that  either  might  declare  off  within  a 

certain  time ;  for   in  this  cafe,  the  rule  of  law  operated, 

that  convejitio  vhicit  legem.     Again,  if  the  thing  was  fold 

*>  GUnv.  lib.  10.  c.  II.  *  Ibid,  c  13. 

as 


E  N  G  L  I  S  H      L  A  W.  167 

as  foun({  and  without  fault,  and  afterwards  the  buyer  could     chap.   iv. 
prove  the  contrary,  the  feller  was  bound  to  take  it  back  -,     william 
however,  it  would  be  fufficient  if  it  was  found  at  the  time   rf^xrouROQi^ 
of  the  contract,  whatever  might  afterwards  happen :  but  to 

Glanvllle  had  a  doubt  within  what  time  complaint  was  to  ^ 
be  made  of  this,  particularly  where  there  was  no  fpeclal 
agreement  about  it.  Where  earned  was  given,  the  pur- 
chafer  might  be  oiF  his  bargain,  upon  forfeiting  his  ear- 
ned :  but  if  the  feller,  in  this  cafe,  wanted  to  be  off,  Glan- 
ville  doubted  whether  he  might,  without  paying  fome  pe- 
nalty, for  otherwife  he  would  be  in  a  better  condition  than 
the  purchafer;  though  it  was  not  eafy  to  fay  what  penalty 
he  was  to  pay.  In  general  all  hazard  rcfpeding  the  thing 
fold  was  to  reft  with  him  who  was  in  pofTeffion  of  it  at  the 
time,  unlefs  there  was  fome  fpecial  agreement  to  the  coa° 
trary  ^. 

In  all  fales  of  immoveables,  the  feller  and  hislieirs  were 

* 

bound  to  warrant  the  thing  fold  to  the  purchafer  and  his 
heirs,  and  upon  that  warranty  he  or  his  heirs  were  to  be 
impleaded,  in  manner  as  wti  before  ftated.     And  if  any 
moveable  was  demanded  by  a£lion  againft  the  purchafer,  as 
being  before  fold  or  given,  or  by  fome  other  mode  of  tranf- 
fer  conveyed  to  another  (fo  as  no  felony  was  charged  to 
^ave  been  committed  of  it),  the  fame  courfe  was  obferved, 
fays  Glanville,  as  in  cafe  of  immoveables  :  bat  if  it  was  de- 
manded of  the  purchafer  ex  caufd  furiiva^  he  was  obliged 
to  clear  himfelf  of  all  charge  of  felony,  or  call  a  pcrfon  to 
warrant  the  thing  bought.     If  he  vouched   a  certain  ¥/ar- 
rantor  to  appear  within  a  reafonable  time,  a  day  was  to  be 
fixed   in   court.     If  the  warrantor  appeared,   but  denied 
his  warranty,  then  the  plea  went  on  between  him  and  the 
purchafer,   and  they  might  come  to  the  decifion  of  the  duel. 
Glanville  made  aqueftion,  whether  fuch  a  warrantor  might 
call  another  warrantor  *,   and  if  fo,  what  limit  was  to  be 
fet  to  this  vouching  to  warranty.     In  this  cafe  of  calling  a 

^  G.anv.  lib.  lo.  c,  t^. 

ctrtain 


i68  H  I  S  T  O  R  Y      O  F     T  H  E 

CHAP.   IV.     certain  warrantor,  when  a  thing  was   demanded  ex  caufd 
WlLiJAM     furtivdy  the  warrantor  ufcd  not  to  be  fummoned,  as  in  other 

#-,>M/->'AlorM>    cafes  of  warranty  j  but  on  account  of  the  particular  nature 
u)  of  this  charge,  he  was  attached  by  the  following  writ  to  the 

"*  '       flierifF:  Pr^dpio  tib'iy   quod  fine  dilatione  attachiari  facias 

per  falvos  et  fecuros  plegios  N.  quod  fit  coram  me  vel  jufitiis 
meis  die,  isfc.  ad  luarrantizandiim  R.  illani  rem  quam  H, 
clamat  adverfiis  R.  id  furtivamy  et  unde  pradiclus  R,  eum 
traxit  ad  luarrantttm  in  curia  medj  vel  ad  oflende?jdu7n  quare 
ti  luarrantizare  non  deheat^  l^c.  ', 

This  was  the  proceeding  if  he  called  a  certain  warran- 
tor whom  he  could  name.  But  if,  in  the  phrafe  of  that 
time,  he  called  un  uncertain  warrantor;  that  is,  if  he 
merely  declared  that  he  bought  the  thing  de  legitimo  mer- 
catti  fuo,  fairly  and  honeftly,  and  could  produce  fufhcient 
proof  thereof,  he  was  cleared  of  the  charge  of  felony,  as  far 
as  he  might  be  affe6led  criminally;  not  fo,  however,  but 
that  he  might  lofe  the  thing  in  queltion,  if  it  was  really 
ftolen,  though  not  by  the  defendant.  This  was  the  method 
of  proceeding,  if  any  of  thefe  fpecial  circumftances  arofe ; 
but  if  it  reded  upon  the  mere  debt,  that  is  whether  ex 
ewptOy  or  ex  comniodatoy  it  was  made  out  by  the  general 
mode  of  proof  ufed  in  court,  namely,  fays  Glanville,  that 
bv  writing  or  by  duel  •". 

A  DEBT  ex  locato  and  ex  condnclo  accrued,  when  one  lett 
out' a  thing  to  another  for  a  certain  time,  at  a  certain  re- 
ward :  here  the  pcrfon  letting  was  bound  to  impart  the  ufe 
of  the  thing  letten,  and  the  hirer  to  pay  the  price.  In  this 
cafe,  the  former  might,  at  the  expiration  of  the  time,  take 
pofTeffion  of  the  thing  letten  by  his  own  authority  folely : 
but  Glanville  made  it  a  queftion,  whether,  if  the  price  was 
not  paid  according  to  the  agreement,  he  might  deprive  the 
hirer  of  poireifion  by  his  own  authority  ?  But  all  thefe  being 
what  were  then  called  private  contrails,  lying  in  the  know- 
ledge of  the  parties  only,  without  any  evidence  to  teftify 

1  Glanv.  III?.  10.  c.  15,  i6,  '*'  Ibid.  c.  17. 

their 


E  N  G  L  I  S  H      L  A  W.  169 

£heir  exiftence,  were  fuch,  as  was  before  obferved  *,  of  chap,  iv^ 
which  the  king's  court  did  not  ufually  take  cognizance :  wiit  [am 
others,  which  were  quaft  privai^y  hardly  met  with  more  the 

r  1        1  •        J  ^r>i  •      r  ^  CONQUEROR. 

conlideration  from  the  kmg  s  court ".     i  his  leems  to  have  i„ 

been  a  remarkable  part  of  the  jurifprudence  of  thefe  times;      JOHN, 
and  to  have  flood  in  need  of  the  improvement  afterwards, 
though  very  flowly,  adopted,  in  a£lions  upon  promifes. 

Thus  have  we  gone  through  thofe  aftions  which  were 
commenced  originally  in  the  curia  regis ;  all  which  weri 
called  a6l:ions  de  proprietate.  As  thefe  might  be  attended 
by  the  parties  themfelvcs,  or  by  their  attornies,  it  feems 
proper  in  this  place  to  fay  fomething  upon  the  law  refpett- 
ing  attornies.  Thefe  pleas,  as  well  as  fome  other  civil  ofattomies. 
pleas,  might  be  profecuted  by  an  attorney ;  or,  as  he  was 
called  in  thofe  times,  rejponfalis  ad  lucrandum  vel perdendum. 
A  perfon,  when  he  appointed  fuch  rejponfalis^  or  attorney, 
ought  to  be  prefent,  and  make  the  appointment  in  open 
court  before  the  juflices  fitting  there  upon  the  bench;  and 
no  attorney  ought  to  be  received  otherwife  than  from  the 
principal  then  in  court ;  though  it  was  not  necefiary  that 
tbe  adverfe  party  fliould  be  prefent  at  the  time,  nor  even 
the  attorney,  provided  he  was  known  to  the  court.  One 
perfon  might  be  appointed  attorney,  or  two,  jointly,  or 
feverally;  fo  as  if  one  was  not  prefent  to  a^l,  another 
might;  and  by  fuch  an  attorney,  a  plea  might  be  com- 
menced and  determined,  whether  by  judgment  or  by  final 
concord,  as  efledually  as  by  the  principal  himfelf.  It  was 
not  enough  that  any  one  was  appointed  bailiff  or  fleward 
for  the  management  of  another's  eflate  and  affairs,  to  in- 
title  him  to  be  received  as  his  attorney  in  court ;  but  he 
muft  have  a  fpccial  authority  for  that  particular  purpofe,  to 
acl  in  that  particular  caufe,  ad  lucrandum  vel  perdendum 
for  him  in  his  flead.     It  was  the  pratllce  to  appoint  in  the  , 

curia  regis  an  attorney  to  a£l  in  a  caufe  depending  in  fome 

*  Vid.  ant.  163.  "  GUnr.  lib,  lO.  c.  18. 

other 


I70  HISTORYOFTHE 

CHAP.  IV.    other  court ;  and  there  then  iffiicd  a  writ  of  the  following 
'rJ^^YiTrr'    l^ind,  commanding  the  perfon  appointed  to  be  received  as 

the  fuch  :  Rex  vicecomiii  (or  whoever  prefided  in  the  court) /2i- 

CONQUEROR  ^.  .  ^  j  -kj^  r  '.  (  -a:-  J 

to  lutem  :  betas  quod  JN.  pojuit  coram  me  (or,  jujtitiis  meis  j 

JOHN.  jj^  i^^Q  jj^Q  ^^  lucrandum  vet  perdendum  pro  eo  in  placito^ 
l^c.  quod  ejl  inter  eum  et  R.  de  una  earueatd  terra  in  villa ^ 
tsfc;  et  ideo  tibi  pracipio  quod praditlum  R.  loco  ipfius  N. 
in  placito  illo  recipias  ad  lucrandum  vcl  perdendum  pro  eoy 

"When  a  perfon  was  appointed  attorney,  he  might  cafl 
eflbins  for  the  principal  (and  for  him  only,  not  for  himfelf) 
till  his  appointment  was  vacated.  When  an  attorney  was 
appointed,  and  had  a£led  in  a  caufe,  Glanville  puts  a  que- 
ftion,  whether  his  principal  could  remove  him  at  his  plea- 
furc  and  appoint  another,  particularly  if  there  had  arifen 
any  great  difagreement  between  them  ?  And  he  thought 
that  the  principal  had  that  power ;  an  attorney  being  put 
in  the  place  of  another,  only  in  his  abfence :  and  the  prac- 
tice was  to  remove  an  attorney  at  any  part  of  a  caufe,  and 
appoint  another  in  court,  in  the  form  above-mentioned  **• 

A  FATHER  might  appoint  his  fon  his  attorney,  an  in- 
ftance  of  which  wc  faw  in  the  finp  above  dated,  and  fo 
vice  verfd ;  and  a  wife  might  appoint  a  hufband.  When 
a  hufband  a6led  as  attorney  to  his  wife,  and  loft  any  thing 
in  a  plea  of  maritagium  or  dower,  or  gave  up  any  right  of 
the  wife*s,  whether  by  judgment  or  final  concord ;  it  was 
made  a  qucftion  by  Glanville,  whether  the  wife  could  af- 
terwards inftitutc  any  fuit  for  it,  or  was  bound,  after  her 
hufband's  death,  to  abide  by  what  he  had  done  ?  And  it 
{hould  feem,  fays  he,  that  fne  ought  not,  in  fuch  cafe,  to 
lofe  any  thing  by  the  ^€t  of  her  hufband;  becaufe,  while 
(he  was  in  potejlate  viri,  (lie  could  not  contradicl  him,  or 
contravene  his  a£ls ;  and  therefore  could  not,  unlefs  be 
pleafcd,  attend  to  her  own  property  and  concerns  ;  and 

•  GIebv.  lib.  I  J.  c.  I,  2.  9  Ibid.  c.  3, 


ENGLISH     LAW.  i^i 

yet,  adds  our  author,  it  might  be  faid  on  the  other  fide,     c  H  A  P.  iv. 

that  whatever  is  tranfaded  in  the  king's  court  ought  to  be     ^^^'^'V""***-' 

...  WILLIAM 

held  firm  and  inviolable  •?.     Abbots  and  priors  of  canons  the 

regularly  ufed  to  be  received  as  attornies  for  their  focieties,  of       'to         t 

courfe,  without  letters  from  their  convent :  other  priors,       JOHN. 

whether  of  canons  or  monks,  if  they  were  cloiftered,  even 

tho'  they  were  aliens,  were  never  received  in  court  without 

letters  from  their  abbot  or  chief  prior.     The  mafler  of  the 

Temple  and  the  chief  prior  of  the  hofpital  St.  John  of  Jeru- 

fiilem  were  received  of  themfelves ;  but  no  inferior  perfons  of 

their  order.     When  one  or  more  were  appointed  attornies 

in  the  above  manner,  it  was  made  a  queftion  by  Glanville, 

whether  one  might  appoint  his  colleague  to  a6l  for  him,  or 

fome  third  pcrfon,  ad  lucraridum  vel perdendum  *". 

The  principal  might  be  compelled  to  fulfil  every  thing 
that  was  done  by  his  attorney,  whether  by  judgment  or 
final  concord  ;  though  it  was  fettled,  beyond  a  queftion  or 
doubt,  that  upon  the  default  or  inability  of  the  principal, 
the  attorney  was  not  liable  '.  When  it  is  faid,  that  the 
principal  muft  be  prefent  in  court  to  appoint  his  attorney, 
it  muft  be  remembered  what  was  before  laid  down  •,  name-  *» 
ly,  that  if  a  tenant  did  not  appear  after  the  third  cflbin, 
but  fent  an  attorney,  fuch  attorney  (hould  be  received : 
but  this  was  allowed  for  the  neceflity  of  the  thing,  as  he 
was  compelled  by  the  judgment  of  the  court,  or  by  procefs 
of  diftrefs,  to  put  fome  one  in  his  place  ad  lucrandum  vfl 
perdendum. 

The  foregoing  writs  of  right  were  commenced  directly 
and  originally  in  the  curia  regisy  and  were^here  determined. 
There  were  fome  writs  of  right  which  were  not  brouglit 
there  originally,  but  were  removed  thither,  when  it  had 
been  proved  that  the  court  of  the  lord  where  they  were 
brought,  had  de  rcBo  defeciffe^  as  it  was  called,  or  failed 
in  doing  juftice  between  the  parties;  and,  in  that  cafe, 

«  GUnvillc,  lb.  1 1,  c.  3.  '  IbM.  c.  5.  »  Ibid,  t.  4. 

fuch 


172  HISTORYOFTHE 

CHAP.  IV.    fuch  caufes  might  be  removed  into  the  county  court,  and 
WILLIAM     ^^^om  thence  into  the  curia  regis y  for  the  above  reafon  ^ 
the  When,  therefore,  any  one  claimed  freehold  land,  orfer- 

to  vice,  held  of  fome  other  perfon  than  the  king,  he  had  a  writ 

JOHN.  ^£  right  dire(3:ed  to  his  lord,  of  whom  he  claimed  tb  hold 
Writ  of  right  in  the  land,  to  the  following  effect :  Rex  comiti  W.  falutem* 
Pracipio  tibi,  quod  fine  dilatione  teneas  pletiu7n  re£lum  N. 
de  decern  hidis  terra  in  Middleton^  quam  clamat  tenere  de  ie 
per  liberum  fervitium  foedi  unius  mi/ilis  pro  omni  ferviiio, 
Et  nift  fecerisy  vicecotnes  de  Northamptcne  faciaty  nc  am* 
plius  hide  clamorem  audiam  pro  defeclu  jujliti^y  ts'c.  The 
form  of  thefe  writs  was  capable  of  infinite  variety,  accord- 
ing to  the  fubje6l  and  circumftances  of  the  demand  ". 
Glanville  fays  nothing  upon  the  order  and  courfe  of  con- 
dufling  thefe  pleas  in  the  lord's  court,  except  intimating 
that  they  depended  on  the  cuftom  of  the  particular  court"^ 
where  they  were  brought. 

The  way  of  proving  a  court  de  reclo  defecijpy  to  have 
failed  in  doing  juftice,  was  this  ■  The  demandant  made 
his  complaint  to  the  flierifF  in  his  county  court,  and  there 
fliewed  the  king's  writ :  upon  this  the  iheriff  fent  fome 
officer  of  his  to  the  lord's  court,  on  the  day  appointed  by 
the  lord  for  the  parties  to  appear,  that  he,  in  the  prefence 
of  four  or  .more  lawful  knights,  who  were  to  be  prefent 
by  the  fheriff's  command,  might  hear  and  fee  the  demand- 
ant make  proof  that  the  court  de  recto  defecijfe :  this 
proof  was  to  be  by  his  own  oath,  and  the  oaths  of  two 
others  fwearing  with  him  to  the  fa6l.  By  this  folemnity 
were  caufes  removed  out  of  many  courts  into  the  county 
court,  and  were  there  heard  over  again,  and  finally  de- 
termined, without  the  lord  or  his  heirs  being  allowed  to 
make  any  claim  for  recovery  of  their  judicature,  as  far  as 
concerned  that  caufe.  Should  a  caufe  be  removed  before 
it  had  been  proved  in  the  above  manner  that  there  was  a 

«  Glanv.  lib.  la.  c.  i.  "  IbiH.  c,  3,  4,  5.  "  Ibid.  c.  6. 

failure 


E  N  G  L  I  S  H      L  A  W.  173 

failure  of  jufllce,  the  lord  might,  on  the  day  appointed  for    CH  a  p.   iv. 
hearing  the  caufe,  make  claim  of  cognizance,  and  for  re-      v^ilham 

ftoration  of  his  court;  but  this  was  never  done  in  the  the 

,    r   ,      1      1     ,   •         1    •      .1.  1         1     r  •       CONQUEROR. 

curta  regis,  unlets  he  had  claimed  it  three  days  beiore,  in  ^^ 

the  prefence  of  lawful  men ;  it  not  being  fuitable  to  the      J  ^  K  t:. 

dignity  of  that  court  to  be  ouiled,  upon  flight  grounds,  of 

the  cognizance  of  a  caufe  once  entertained  there.     If  no 

day  was  appointed  in  the  lord's  court,  and  therefore  proof 

of  failure  of  juftice  could  not  be  made  in  the  above  way, 

the  complainant  might  falfare  curiam,  falfify  the  court,  or 

deprive  it  of  its  cognizance,  ^by  making  that  proof  any 

where  within  the  lord's  fee,  if  the  lord  did  not  refide 

ufually  there  *,  for  though  a  lord  could  not  hold  his  court 

without  his  fee,  he  might  by  law  have  it  any  where  within 

it ;  if  he  did  refide  there,  it  was,  probably,  to  be  made  at 

his  manfion-houfe  ''. 

The  writ  of  right,  of  which  we  have  juft  fpoken,  was  to 
be  directed  to  the  lord,  of  whom  the  demandant  claimed  to 
hold  immediately  •,  not  to  the  chief  lord.  But  it  might  fome- 
times  happen  that  the  demandant  claimed  to  hold  the  thing 
in  queftion  of  one  lord,  and  the  tenant  claimed  to  hold  of 
another  :  in  this  cafe,becaufe  one  lord  {hould  not  be  enabled 
to  difpollcfs  another  of  his  court  and  franchife,  the  fuit  of 
necelhty  belonged  to  the  county  court  *,  and  from  thence 
it  might  be  removed  to  the  curia  regis,  where  both  lords 
might  be  fummoned,  and  their  feveral  rights  difcufled  in 
their  prefence,  as  we  before  mentioned  in  cafes  of  war- 
ranty y. 

We  have  faid,  that  the  above-mentioned  writs  of  right  of  writs  of 
belonged  to  the  IhcrifF,  upon  failure  of-  the  lord's  court. 
To  the  (herifF  alfo  belonged  feveral  other  fuits,  one  of 
which,  namely,  that  de  nativis^,  we  have  already  mentioned. 
In  (hort,  all  caufes  where  the  writ  of  the  king  or  his  juftices 
diredled  him  to  do  right  between  the  parties  (called  fmce 

*  Glanv.  lib.  ii.  c.  7.  ^  Ibid,  c  S.  *  Vid.  ant.  141. 

writs 


174  H  I  S  T  O  R  Y     O  F     T  H  E 

CHAP.  IV.     writs  o(Jt//liciesJ,  and  fuch  as  contained  the  proviHonal 
WII  I  I  AM     ^^^^^^  quod  ft  non  rcElum  fecer'it^  tunc  ipfe  facias  y    v5*r.  ali 

t'l*-  thefe  gave  the  fhcriff  a  judicial    authority   to   hear   and 

CONQUEROR     ,  .  ,„,     ^  .  r  r 

to  determine  '.     1  hclc  writs  were  very  numerous  :   lome  or 

JOHN.  them  are  mentioned  by  Glanvillc,  from  whom  may  be  ex- 
tra6tcd  a  fhort  account,  that  will  give  an  idea  of  this  pro- 
vincial judicature.  There  was  a  writ  directed  to  a  lord, 
commanding  him  ne  injufe  vexes,  by  demanding  more  fer- 
vices  than  were  due ;  and  unlefs  he  defiftcd,  the  ftierift' 
was  commanded  to  fee  right  done  ^.  This  is  the  only 
provifional  writ ;  the  reft  are  all  peremptory,  directed  to 
the  fherifF  folely.  One  was  to  give  poiTeflion  of  a  fugi- 
tive villain  and  his  chattels " ;  for  admeafurement  of  pafture 
which  was  fuperoncrated  **  j  quod  permiitat  habere  certain 
eafements  '^ ;  to  make  rationabiles  divifas  ^  ,•  to  obferve 
a  rationahilem  divifam  of  chattels,  that  had  before  been 
made  s  ;  to  refpite  a  recognition  directed  to  be  taken  by 
the  juflices  ^  ;  2^  facias  habere  rationahilem  dot  em  ;  to  take 
care  of  a  deceafed  man's  chattels  for  payment  of  his  debts ' ; 
and  to  give  pofieflion  of  chattels  that  had  been  taken  at  a 
difTeifin  of  the  land,  after  the  land  had  been  recovered  in  an 
aflife  of  novel  difleifin ''.  To  thefe  we  mud  add  writs  of 
replevin y  and  two  of  prohibition  to  the  ecclefiaftical  court, 
which  deferve  to  be  mentioned  more  at  length. 

In  the  former  part  of  this  inquiry  into  judicial  proceed- 
ings, we  have  feen  that  when  land  was  feifcd  into  the 
king's  hand  for  default  or  contempt  of  the  tenant,  he 
might  within  a  certain  time  replevy  his  land,  upon  per- 
forming what  was  required  of  him  by  the  court.  The 
power  of  diftraining,  which  lords  exercifed  over  their  te- 
nants, required  a  fimilar  qualification  ;  either  that  the 
tenant  fhould  perform  what  was  due ;  or,  at  leaft,  till  it 

■  Gltnv.  lib.  IX.  c,  9.  '  \h\A.  c.  16. 

*  Ibid.c.  10.  «  Ibid.  c.  \j. 

*  Ibid.  c.  11.  **  Ibid.  c.  19. 

*  Ibid.  €.13.  «   Ibid.  c.  40. 

*  Ibid.  c.  14.  k  Ibid.  c.  18. 

was 


E  N  G  L  I  S  H      L  A  W.  175 

was  afcertained  by  judgment,  whether  any  thing,  or  what    chap.  iv. 

was  due,  he  (hould  replevy  ;  that  is,  have  a  return  of  his     ^jlh^j^ 

goods  upon  pledges   given  as   a   fecurity   to  ftand  to  the  the 

award  of  juftice  in  the   matter,     la  order  to  efFedt  this,  to 

feveral  writs  of  repkgiare^  or  replevin  were  devifed.     One      J  O  ^  N. 

was  in  this  form,  and  feems  to  approach  neareft  to  the 

modern  writ  of  replevin.     Rex  vicecomiti  falutem.  Pracipio 

t'lhiy  quod  jujle  et  fine  dilatione  FACIAS  HABERE  G.  AVE- 

RIA  SUA  PER  VADIUM  ET  PLEGlUMj  unde  queritur^quod 

R,  EA  CEPIT  ET  DETINET  la^nsT^  pro  confuetudinibus 

quas  ab   eo  exigit,    quas  ipfe    non   cognofcit  fe   debere ;    et 

ipfum  prMerea   inde  juJle  deduct  facias,   ne  oporteat  eum^ 

l2fc, '.     The  next  is  in  the  nature  of  a  prohibition,  as  well 

as  a  writ  of  replevin;  tho'  it  is  not  properly  a  prohibition, 

which  was  always  to  prohibit  a  judicial  proceeding.     It  is 

as  follows:  Rex  vicecomiti  falutem,     Prohibeo  tibi  ne  per^ 

mitt  as  quod  R.  injujle  exigat  ab  S.  de  libera  t  en  e  men  to  fuo 

quod  tenet  de  N.  de  foedo  ipfus  R.  in  villa ,  ^c.  plus  fervitii 

qu^m  pertinet  ad  illud  liberum  tenementum  quod  tenet  ;   et  * 

AVERIA  SUA  QJJ^  CAPTA  SUNT/ro  Hid  demanddy  quam 

Hie  non  cognofcit  ad  liberum  tenementum  fuum,  quod  tenet y 

pertinere,  ei  REPLEGIari  facias  donee  loquela  ilia  coram 

nobis  audiatur,  et  fciatur  utrum  illud  fervitium   debeat  vet 

non,  i^c.  ^. 

To  thefe  may  be  added  the  two  writs  of  prohibition  to  ^nJ  of  proLibi- 
the  eccleliaftical  court,  juft  alluded  to.  Rex,  l^fc.judi- 
cibus  ecclefiajHcis  falutem.  Prohibeo  vobis  ne  ten  eat  is  pla^ 
a  turn  in  cur  id  chrijlianitatis  quod  ej}  inter  N.  et  R.  de 
laico  foe  do  pradicli  R.  unde  ipfe  queritur  quod  N.  eum 
trahit  in  placitum  in  airid  chrijlianitatis  -coram  vobis,  quia 
placitum  illud fpe5f at  ad  coronam  et  dignitatem  meam,  ^r.", 
Befides  this  writ  to  the  judges,  there  went  alfo  an  attach- 
ment againft  the  party  fuing  in  the  court  chriftian,  to  the 
following  effect:  Rex  vicecomiti  falutem.  Prohibe  i?. 
ne  fequatur  placitum  in   curia   chrijlianitatis  quod  ejl  inter 

^  GUnv.  lib.  iz.  c.  la.  *  Ibid,  c,  15.  «»  Ibid,  c  zt. 

N. 


176  HISTORY     OF     THE 

CHAP.  IV.     N.  et  ipfum  de  laico  foedo  ipftus  pradi&i  N.  in   villa,  i^'c, 
\^^!^^rf7^z!     ^f^de  ipfe  querituVy  quod  prafatus   R.  inde  emn  traxit  in 
the  placitum  in  curia  chrijliamtatis  cot'am  judicibus  i/Iis.     £ijt 

to  prafatus  N,  fecertt  te  fecurum  de  clamore  fuo  profequendc^ 

JOHN,  fj^f^^  PONE  PER  VADIUM  ET  SALVOS  FLRGIOS  pradiffutf? 
R,  quod  fit  coram  me  vel  jujlitiis  meis  die,  ^c.  ojlenfurus 
quare  traxit  eum  in  placitum  in  curia  chrijVianitatis  de  laico 
fcedo  fuo,  in  villa,  ^c.  defeat  illud  placitum  fpeElat  ad 
coronam  et  dignitatem  meam,  ilfc.  °.  The  manner  of  or- 
dering the  before-mentioned  fuits  in  the  county-court, 
depended  on  the  cuftoms  of  different  counties :  for  which 
leafons,  as  well  as  becaufe  it  was  not  {lri£tly  within  the 
defign  of  his  work,  there  is  no  notice  in  Glanville  ••. 

Before  we  leave  the  fubje£l  of  writs  of  right,  it  will 
be  proper  to  add  fome  obfervations  refpeding  the  form  of 
writs  and  of  the  proceedings  thereon.  The  form  of  words 
in  which  a  title  to  land  was  flated  by  the  demandant,  was 
called  his  petition  *  or  demand,  from  the  word  peto,  with 
which  it  begun.  It  fometimes  happened,  that  the  writ 
contained  more  or  lefs  in  it  than  the  petitio  dated  to  the 
court,  as  to  the  appurtenances  of  the  land,  or  particular 
circumftances  of  the  cafe.  Sometimes  there  was  an  error 
in  the  writ,  as  to  the  name  of  the  party,  or  the  quantum  of 
fervice,  or  the  like.  When  the  writ  contained  lefs  than  the 
petition,  no  more  could  be  recovered  than  was  ftated  in  the 
writ ;  but  when  the  writ  contained  more  than  the  petition 
'  went  for,  the  furplus  might  be  remitted,  and  the  remain- 
der might  well  be  recovered  by  the  authority  of  that  writ. 
If,  however,  there  was  any  error  in  the  name,  then  by  the 
ftriclnefs  of  law  another  writ  fliould  be  prayed :  again,  when 
there  was  an  error  in  Hating  the  quantum  of  fervice,  the 
writ  was  loft.  Suppofe  a  writ  of  right,  directed  to  the  lord, 
ftated  the  land  to  be  held  by  lefs  fervices  than  were  really 

**  Glanv.  lib.  la.  c.  »t.  civil  and  canon  law,  whfre  it  i-;  uffd 

'   Ibid.  c.  23.  in  a    limilar  rcnl'c.      The  petitio  is 

♦  This  term  is  borrowed  from  the     called  count  in  our  law  Freuth. 

due. 


ENGLISH      L  A  AV.  i77 

due,  Glanville  thougkt  that,  in  fuch  cafe,  the  lord  could    ^^^^,1^:.^ 
not  refufe  to  receive  the  writ,  and  proceed  upon  it,  under     william 
pretence  of  his  being  concluded  thereby,  and  fuffering  a  de-   conqueror 
triment  to  his  fervice ;  but  he  was  left  to  make  good  his  to 

claim  of  fervice  ac^ainft  the  demandant,  (hould  he  recover 
againfl  the  tenant^.  This  is  all  that  is  to  be  colle6led  from 
Glanville  on  the  formal  part  of  Pleading ;  a  branch  of  our 
law  which  grew,  in  after-times,  to  fuch  a  fize,  and  was 
confidered  with  fo  much  nicety  and  refinement. 

It  had  become  the  law  and  cuilom  of  the  realm,  fays 
Glanville,  that  no  one  (liould  be  bound  to  anfvver  in  his 
lord's  court  concerning  his  freehold,  without  the  precept 
or  writ  of  our  lord  the  king,  or  his  chief  juftice,  if  the 
queftion  was  about  a  lay  fee ;  but  if  there  was  a  fuit  be- 
tween two  clerks  concerning  a  freehold  held  in  frankal- 
molgne,  or  if  a  clerk  fliould  be  tenant  of  ecclefiallical  land 
held  in  frankalmolgne,  whoever  might  chance  to  be  demand- 
ant againft  him,  the  plea  concerning  the  right  ought,  in 
fuch  cafe,  to  be  in  foro  €cclefiaj}ico ;  unlefs  it  fhould  be 
prayed  to  have  a  recognition,  utrum  foedum  ecclefiajlicum 
fit  vel  laicum,  whether  it  was  an  ecclefiaftical  or  lay  fee,  of 
which  we  flvall  fay  more  hereafter ;  for  then  that  recogni- 
tion, as  well  as  all  others,  was  had  in  the  king's  court  ^ 

We  have  now  difmiflTed  the  proceedings  for  the  recovery 
of  rights,  with  all  their  incidents  and  appendages,  as  far  as  of  recognition?, 
any  intimation  upon  this  fubje6l  has  come  down  to  us. 
The  next  thing  that  prcfents  itfelf  to  our  confideration, 
is  the  method  of  recovering  fiifn,  or  mere  pofielTion. 
The  remedies  for  recovery  of  feifin  feem  to  be  founded  on 
the  policy  of  preferving  peace  and  quiet  in  matters  of  pro- 
perty. As  feifir;  was  the  primd  facie  evidence  of  right, 
the  law  would  not  allow  it  to  be  violated  on  pretence  of 
any  better  right  j  and  had  provided  many  ways  of  proceed- 
ing to  vindicate  the  feifm,  fometimes  in  oppofition  to  the 

1  Glanv.  i;h.  12.  c.  r%.  '   lb:..*,  c.  25. 

Vol.  I.  O  mere 


the 

CONQUEROR 

to 


T78  HISTORY      OF      THE 

CHAP.  IV.    mere  right.    As  queftions  concerning  feifm  came  within  the 
WILLIAM     benefit  of  the  late  ftatiite  of  Henry  II.  to  which  we  have 
fo  often  before  alluded,  and  were  accordingly  in  general  de- 
cided by  recogniUoriy  we  fliall  therefore  fpeak  of  the  differ- 
^  cnt  kinds  of  recognitions  *. 

One  of  thofe  recognitions  was  called  de  morte  antecejjo* 
rh ;  another,  de  ultima  pr^fentatiotie ;  another,  tttrum  te^ 
nementum  Jit  feed ttm  ecclefiajliciim  vel  la'icum ;  another,  whe- 
ther a  perfon  was  feifed  at  the  day  of  his  death  ///  de  faedo^ 
or  ut  de  vadio  ;  another,  whether  a  perfon  was  within,  or 
of  full,  age  j  another,  whether  a  perfon  died  feifed  ut  de 
foedof  or  ut  de  luardd ;  another,  whether  a  perfon  made 
the  laft  prefentation  to  a  church  by  reafon  of  being  feifed 
in  fee  or  in  ward;  and  the  like  queltions,  which  often  arofc 
in  court  between  parties ;  and  which,  as  well  by  the 
confent  of  parties  as  by  the  advice  of  the  court,  were  di- 
rected to  be  enquired  of  in  this  way,  to  decide  the  fa£l  in 
difpute.  There  was  one  recognition  which  ftood  diftin- 
guifhed  among  the  reft,  and  was  called  de  nova  dijfeiftndy 
of  novel  dii^eifm^  We  fliall  fpeak  of  all  thefe  in  their 
order.  ■*- 

^r         .  First,  of  the  recognition  de  morte  antecejjhris,  which 

antecejforis.  fecms  to  be  a  proceeding  particularly  calculated  for  the  pro- 

te£lion  of  heirs  againft  the  intrufion  made  by  their  lords, 
upon  the  death  of  the  anceftor  laft  feifed.  If  any  one  died 
feifed  of  land,  and  was  feifed  /;/  domimcofuoftcut  dc  fasdofuo; 
that  is,  had  the  inheritance  and  enjoyment  thereof  to  him 
and  his  heirs  j  the  heir  might  demand  the  feifm  of  his  an- 
ceftor by  the  following  writ :  Rex  viceconuti  falutcm.  Si 
G.  fit  us  T.  fecerlt  te  fecurufn  de  clamor  e  fuo  profcquendo^ 
tunc fummofie  per  boHOS  Jufiiniouitores  duodecim  liberos  et  Ugales 
homines  de  vtctneto  de  villa^  i^c.  quod fint  coram  me  vel  jujii' 
tits  meis  die^  l5c.  paraii  facromento  rccognofcerc^  fi  T.  pater 
pradi^i  G.  fuit  feifitus  in  dominico  fuo  ficut  de  fcedo  juo^  de 

*  Glanv,  i;b.  13.  c,  I.  *  Ibid.  c.  2. 

una 


ENGLISH      LAW. 


179 


una  virgata  terra  in  •villa^   iyc,   die  qua  obiit ;  Ji  ohiit  poft     CHAP.   IV. 
primam  coronation  cm  mcam^  et  fi  ille   G,  probinquior  hares       „,,,,.    ., 

'  -^  r      r      1  WILLIAM 

ejus  eft.     Et  interim  terrain  illam  videant^  ts'  ncmina  eorum  the 

-,..^.  r.      .  ,  ,  .  „      CONQUEROIl 

t?nUrevtari  Jaciai,     Lt  jununone  per  honos  fummomtcres  K,  ^3 

qui  terrani  lUam  tenet^  quod  tunc  fihi  auditurus  il!a?n  re-       JOHN. 

cognitioneiiL.     Et  habtas  ib'i  jufumonitores^  life.     This  writ 

was  varied  in  Tome  parts  of  it,  according  to  the  circum- 

flances  under  which  the  perfon  died  feifed ;  as,  whether  he 

was  leifed  the  day  lie  undertook  a  peregrination  to  Jerufalem, 

or  St.  Jago,  in  which  journey  he  died ;  cr  the  day  he  took 

upon  him  the  habit  of  rehgion,  the  latter  being  a  civil  death, 

which  intitlcd  the  heir  to  fucceed  immediately".     If  the 

heir  was  within  age,  the  claufe  "  /?  G.  filius  T.  fecerit  te 

jecurum  de  clamor e  juo.  pr&Jequendo^^  was  left  out,  the  infant 

not  being  able,  by  law,  to  bind  himfelf  in  any  fecurity ;  as 

was  alfo  the  claufe,  ftT.  pater  pr<tdicti  G.  obiit  po/i  primarn 

coronationem  me  am  */' 

When  the  flieriff  had  received  this  writ,  and  the  de- 
mandant had  given  fecurity  in  the  county  court  for  profe- 
cuting  his  claim  ^j  they  proceeded  to  make  an  afPife  in 
this  way  :  Twelve  free  and  lawful  men  of  the  vicinage 
were  chofen,  according  to  the  direclion  of  the  writ.  This 
was  in  the  prefence,  perhnps,  of  the  parties;  though  it 
might  be  in  the  abfence  of  the  tenant,  provided  he  had 
been  properly  fummoned  to  attend:  for  he  fliould  always  be 
once  fummoned,  to  hear  who  were  chofen  to  make  the 
recognition  ;  and,  if  he  pleafed,  he  might  except  to  fome, 
'upon  any  reafonable  caufe.  If  he  did  not  come  at  the  firft 
fummons,  they  did  not  wait  for  him  ♦,  but  the  twelve 
jurors  were  elected  in  his  abfence,  and  Tent  by  the  flierifF 
to  view  the -land  or  tenement  whofe  feifm  was  in  difpute  : 
and  Glanville  fays,  that  the  tenant  was  to  have  one  fum- 
mons more.     The  fi-ierifF  caufed  the  names  of  the  twelve 

'  CJUnv.  i:b.  i;.  c.  ?,  3,  ^,  6.  >"  De.cIa'^Kre fits prtfeq::(rJ:. 

'•   Ibit!-  c.  5. 

O  ^  to 


i8o  HISTORYOFTHE 

CHAP.  TV.    to  be  inferted  in  a  writ^ ;  then  fummoned  the  tenant  to  be 
WILLI  \M      pi'c^cJ^t  ^t  t^i^  ^^y  appointed  by  the  writ,  before  the  king  or 
the  his  juflices,  to  hear  the  recognition.   The  tenant  might  eflbin 

Xi  himfelf  at  the  firfi:  and  fecond  day  (provided  the  demandant 

J  o  H  N.  ^yas  nx)t  an  infant),  but  there  was  no  eflbin  allowed  him  at  the 
third  day ;  for  then  the  recognition  was  taken,  whether  he 
came  or  not;  it  being  a  rule,  that  no  more  than  two  eflbins 
fliould  be  allowed  in  any  recognition  upon  a  feifin  only,  and 
in  a  recognition  upon  a  novel  difleifin,  there  was  no  eflbin  at 
all.  At  the  third  day,  then,  the  aflTife  was  taken,  whether  the 
tenant  came  or  nof.  If  the  jurors  declared  for  the  demand- 
ant, the  feifin  was  adjudged  to  him,  and  a  writ  of  the 
following  kind  went  to  the  (herifF  to  give  execution  thereof: 
Scias  quod  N.  diratiotiavit  in  curia  med  feifmain  tanta  terra 
in  villa,  i=fc.  per  recognitionem  de  morte  antecejjoris  Jui  verjui 
R.  et  ideo  tibi  pracipio  quod  3EJ:SINAM  illam  ei  fine  dilatione 
HABERE  FACIAS,   ^^.  *, 

By  force  of  this  writ  he  recovered  not  only  feifin  of 
the  land,  but  feifin  of  all  the  chattels  and  every  thing  elie 
which  was  found  upon  the  fee  at  the  time  of  feifin  being 
made  by  the  flierifl^  When  the  feifin  was  in  this  manner 
recovered,  the  perfon  who  lofl:  might  afterwards,  notwith- 
ftanding,  conteft  the  right,  in  a  writ  of  right ;  but  Glan- 
ville  doubted,  how  long  after  the  feifin  fo  delivered,  he 
might  purfue  his  remedy  for  the  right''.  If  the  oath  of 
the  jurors  was  in  favour  of  the  tenant,  and  he  was  abfent, 
the  feifin  remained  to  him,  without  the  adverfe  party  hav- 
ing any  power  to  recover  it :  though  this  did  not  take 
^way  his  caufe  of  a£lion  for  the  right,  as  in  the  former 
cafe  ;  nor,  on  the  other  hand,  did  a  fuit  depending  upon 
the  right  to  a  tenement,  extinguiih  a  recognition  upon  the 
feifin  of  one's  anceflor,  unlefs  the  duel  was  waged  upon 
the  right ;  though  the  purfuing  fuch  a  recognition  was  a 
fort  of  contempt  of  court ;  the  punifhment,  however,  of 
which  Glanville  feems  to  think  was  not  afcertained  «^. 

*  fmbre^itf'i.        »  Glanv.  lib.  13.  c.  7,  8.       ^  Ibid.  c.  9.       '^  Ibid.  c.  7. 

When 


E  N  G  L  I  S  H      L  A  W.  i8i 

When  both  parties  appeared  in  court,  it  ufed  to  be    chap.   iv. 
afked  of  the  tenant,  if  he  could  fay  any  thing  why  the      ^villiam 

alTife  ftiould  remanere.  as  they  called  it  \  that  is,  fliould  tHe 

.        Tv/T  1  r  •    1       1        CONQUEROR, 

be  barred,  or  not  proceed.     Many  good  caules  might  be  to 

fliewn  why  the  aflife  fliould  remain.  If  the  tenant  con-  JOHN. 
feflcd  in  court,  that  his  anceftcr,  whofe  feifin  was  in  que-  l;'^",^!!""'  ^" 
ftion,  was  feifed  in  his  denxefne  as  of  fee,  the  day  he  died, 
with  all  the  circumftances  exprelTed  in  the  writ,  there  was 
no  need  to  proceed  in  the  aflife;  but  if  he  confefled  the 
feifin  only,  and  denied  all,  or  fome  circumllances,  the 
aflife  proceeded  upon  thofe  circumftances  which  were  ^lot 
admitted. 

There  were  many  other  caufes  upon  which  the  affife 
mortis  aiitecejjhris  ufed  to  remain.  The  tenant  might  ad- 
mit, that  the  demandant  was  feifed  after  the  death  of  his 
father,  or  fome  other  anceflor  (whether  fuch  anceftor 
was  feifed  the  day  of  his  death  or  not);  and  that  being 
in  fuch  feifin,  he  did  fuch  or  fuch  an  a6t  which  deprived 
him  of  the  benefit  of  the  aflife ;  as  for  inftancc,  that  he 
fold  the  land  to  him,  or  made  a  gift  of  it,  or  quit-claimed  it, 
or  made  fome  other  lawful  alienation  thereof :  and  upon 
thefe  points,  fays  Glanville,  they  might  go  to  the  trial  by 
duel,  or  any  other  kind  of  proof  which  was  ufually  allowed 
by  the  court  in  queftions  of  right.  In  like  manner,  the  te- 
nant might  fay,  that  the  demandant  had  heretofore  com- 
menced a  fuit  againfl;  him  concerning  the  fame  land,  and 
that  there  was  then  a  fine  made  between  them  in  the 
king's  court;  or  that  the  land  fell  to  him  upon  a  final  dc- 
cifion  by  duel,  whether  the  duel  was  in  the  king's  court  or 
any  other ;  or  that  it  was  his  by  the  judgment  of  fome 
court,  or  by  quit-claim  folemnly  made.  Villenage  might 
he  objected  againft  the  demandant;  and  if  proved,  it 
took  away  the  aflife ;  as  did  alfo  the  exception  of  baflardy, 
and  the  king's  charter  confirming  to  the  tenant  the  land  in 
queflion ;  the  conjimclion  of  more  heirs  than  one,  as  of 
women  in  a  mili^;^rv  Wq^  and  of  men  and  women  together 

in 


i82  H  i  S  T  O  R  Y      O  F     T  H  E 

CHAT*.   IV.    ill  free  foccagc.     Again,  if  it  were  admitted,  that  the  an- 

WILLlAM       ceflor  whofc  feifin  was  in  queftion  bad  a  feifin  of  fome  fort 

^^*'  or  other,  namely,  that  he  had  it  from  the  tenant  or  his  an- 

CONQUEROR         n  •  y        -      \    j  j  i  r     -i 

to  ccltor,  either  m  pledge,  or  ^.v  coinwouato,  or  by  any  nmilar 

JOHN.  nicans;  in  thefe  caf's,  the  aflife  was  to  remain,  and  the 
plea  to  proceed  in  fome  other  way.  Confanguinity  was  an 
exception  which  took  aw^ay  the  afTife. 

Where  it  happened,  as  we  before  mentioned  in  fpeak- 
ing  of  frank-marriage,  that  the  eldeft  brother  gave  part  of 
his  land  to  his  younger  brother,  who  died  without  heirs  of 
his  body ;  in  fuch  cafe,  the  allife  would  remain,  on  ac- 
count of  the  rule  before  Rated,  that  nemo  poteji  hcoresftmul 
ejfe  ejufdem  tencmenti  et  dom'uius.  In  like  manner,  if  the 
demandant  either  confeiTed,  or  was  proved  to  have  been 
in  arms  againfl:  the  king,  any  alhfe  which  he  might  bring 
againft  another  would,  ipfo  fadto^  remain.  We  are  told 
alfo  by  Glanviile,  that  by  force  of  a  particular  law*^,  bur- 
gage-tenure  was  a  good  exception  to  caufe  the  affife  to  re- 
main. When  none  of  thefe,  nor  any  other  caufe  was  dated 
why  the  aflife  fhould  remain,  the  recognition  proceeded 
inform;  and  both  parties  being  there  prcfent,  the  feifin 
was  tried  by  the  oaths  of  the  twelve  jurors,  and,  ac- 
cording to  their  verdid,  was  adjudged  to  one  party  or  the 
other  ^. 

When  the  demandant  in  this  adife  was  an  infant,  and 
the  tenant  was  of  full  age,  the  tenant  was  not  allowed  an 
effoin,  and  the  recognition  proceeded  the  firll  day,  whe- 
ther the  tenant  appeared  or  not.  It  was  fo  ordered  for 
this  never-failing  reafon,  that  wherefoever  the  tenant,  if 
prefent  in  court,  could  fay  nothing  why  the  affife  fliould 
remain,  the  recognition  ought,  by  law,  to  proceed,  with- 
out waiting  for  the  appearance  of  the  adverfe  party. 
Now,  in  this  cafe,  if  the  tenant  was  prefent,  the  allegation 

^  This  is  another  b\v  allu'icd  to         *  Gianv.  lib.   13.  c.  \\. 
by  Glanviile,  of  which  v/c  ficd  no 
oth^r  mention, 

of 


the 
CONQULROR 


E  N  G  L  I  S  H      L  A  W.  183 

of  the  demandant's  infancy  would  be  no  caufe  for  the  aflife    C-H  a  P.  iv, 
to  remain,  and  therefore  the  recognition  was  to  proceed  of     wiu.iam" 
courfe;  but  if  reftitution  was  made  to  the  infant  by  the  re- 
.  cognition,  the  minor's  coming  of  age  was  to  be  expected,  "to 

before  he  could  be  made  to  anfwer  upon  the  queflion  of       -^ 
right,  (hould  any  be  moved  agalnft  him.     The  courfe  was 
the  fame  where  both  parties  were  minors  ^ 

But  where  the  demandant  was  of  full  age,  and  the  tCr- 
nant  a  minor,  it  was  different ;   for  there  the  minor  might 
eflbin  himfelf  in  the  ufual  way  :  and  when  he  appeared,  he 
might  pray  that  the  recognition  might  not  be  taken  till  he 
was  of  full  age;  and  thus  the  recognition  de  morte  antecef- 
foris  often  remained,  on  account  of  the  age  of  one  of  the 
parties.     To  procure,  however,  this  delay,  the  minor  muft 
fay,  that  he  was  in  fcifm  of  the  tenement  in  queflion ;  and 
alfo,  that  his  father  or  fome  other  anceftor  died  feifed  :  for 
neither  a  recognition,  nor  a  fuit  upon  the  right,  would  re- 
main as  againft  a  minor,  if  he  himfelf  had  acquired  felfm 
of  the  tenement,  and  he  held  it  by  no  other  right  than  what 
he  had  fo  made  to  himfelf.     But   fliould  it  be  replied  to 
what  the  minor  had  faid,  that  true  it  was  his  anceftor  died 
feifed  of  the  tenement  in  queflion,  yet  it  was  not  ut  de 
fcedoj  but  only  ut  de  luarda  ;  then,  though  the  pjincipal 
recognition  would  remain  on  account  of  the  age  of  the 
minor,  yet  a  recognition  would  proceed  on  that  point,  and 
a  writ  of  fummons  would  accordingly  iUue  for  twelve  jurors 
to  the  foUow^ing  effect  :  Rex  vicecomiti,  iffc.  Sumfnone  per 
bcnos  jutnmomtores  duodecim  itheros  et  le^ala  homines  oe  v'ui- 
neto  de  vi/ia,  iffc.  qmd fmt  coram  we  vel  jujiltlis  meis  .adicr- 
rrnnum,  t^'c.  parati  facamento  recognofcers  fi  R,  pai.  r  N, 
qui  infra   atatem  ej}y  feifttus  fuit  in  d-minicQ  fuo  de  una 
caiucata    terra  in   lilld,    tsfc.    urde    Ai.   filus    et    ha:res 
T.   petit  recognitionem  de  morte  ipftus  T.  patris  Jui  ver- 
fus  ipfum  N.  ut    de  fcedo  fuo    die  quci  obiit^    vel  ut  de 
warda,     Et  interim  terram  illam  videanty  et  no?nina  eorum 

'  CUn.  lib.  13.  c.  u. 

i?nhreviari 


i84  H  I  S  T  O  R  Y      O  F      T  H  E 

CHAP.    IV.     imbreviari  facias.  Et  j'limmone  per  boms  fummmitores  pr/g- 
WILl  lAM       ^^^^^"  ^-  ^"^  terram  lUani  tenei^  quod  fit  ibi  auditurus  illam 
ti-,;'  recognitionem^  ^c.  ^ , 

to  In  triis  cale  tne  proceeding     lomewhat    ditrered  from 

JOHN.  other  inflanccs  of  recognitions;  for  if  a  day  had  been  given 
to  both  parties,  there  was  then  wo  fumiTions  to  the  tenant 
to  hear  the  recognition;  but  it  proceeded  without  delayj 
and  according  to  the  verdicl:  of  thofe  tweh^e  jurors,  deli- 
vered upon  their  oaths,  it  was  declared  what  fort  of  feifin 
the  anccilor  had ;  and  if  it  was  only  ut  de  ivardd,  the  de- 
mandant recovered  againll  the  minor.  But  Glanville 
doubts,  whether  this  was  enough  to  entitle  the  demandant 
to  recover;  for  as  yet,  it  did  not  appear  that  his  anceftor 
died  felfed  in  his  demefne  as  of  fee,  nor  that  he  was  the 
next  heir ;  and  he  puts  it  as  a  queftion,  whether  recourfe 
was  to  be  had  to  the  principal  recognition  upon  that  point. 
However  that  might  be,  yet  in  cafe  it  had  been  proved  by 
the  oaths  of  the  twelve  jurors,  that  the  anceftor  of  the  mi- 
nor died  feifed  as  of  fee,  then  the  /eiiln  was  to  remain  to 
the  minor  till  he  attained  his  full  age ;  but  after  he  was 
come  of  age,  the  other  party  might  bring  in  queftion  fhe 
right  cither  againft  him  or  his  heirs.  It  (liould  be  remem- 
bered, that  it  was  only  in  the  above  cafe  that  a  recognition 
was  allowed  to  proceed  againft  a  minor ;  for  it  was  a  ge- 
neral rule,  that  a  minor  was  not  bound  to  anfwcr  in  any 
fuit  by  which  he  might  be  difinherited,  or  lofe  his  life  or 
member  :  except,  that  he  was  obliged  to  anfwer  to  fuits  for 
his  debts,  and  alfo  for  a  novel  difleifm.  If,  in  the  above 
cafe,  the  feifin  had  been  adjudged  to  the  demandant,  refti- 
tution  was  to  be  made  in  the  form  before  mentioned ;  and 
he,  in  like  manner,  could  not  be  compelled  to  anfwer  the 
minor  upon  the  right  till  he  was  of  full  age.  Such  mutual 
permiftion  to  ftir  queftions,  after  a  determination,  was 
grounded  upon  this  prevailing  reafon,  that  whatever  was 

t 

5  Clanv.  lib.  13.  c.  13,  i^. 

tranfa£led 


'ENGLISH       LAW.  '      185 

tranfacled  with  perfons  under  age,  in  pleas  of  this  fort,    CHAP.  iv. 
ought  not  to  remain  fixed  and  unalterable^.  ^^j^j  ^.^ 

If  a  perfon  claimed  the  privilege  of  a  minor,  and  it  was  tii-- 

,•-^1        u-        u       u  ecu  1-  .uj        CONQUEROR 

objecled  to  him  that  he  was  or  lull  age,  this  was  to  be  de-  to 

cided  by 'the  oaths,  not  of  twelve,  but  of  eight  free  and  JOHN, 
lawful  men,  who  were  fummoned  by  a  fimilar  writ  with 
thofe  we  have  fo  often  mentioned  fbr  fummoning  jurors: 
o£7o  lihercs  et  legaUs  hcmincs  de  'uicineto  de  vilidy  ^c,  tsc. 
recognojcare,  uirum  N,  qui  ciamat  unam  hida?n^t3'c,  fit  tain 
iftatisy  quod  inde  piaatare  pojjtt  et  debeat.  Et  interim  ierram 
illam  videanty  et  nomina  coruin  ^c.  \^c.\  If  he  was 
proved  by  this  recognition  to  be  of  full  age,  they  proceeded 
to  the  principal  recognition,  as  in  other  cafes.  Here 
Glanville  makes  a  queilion,  whether  he  was  thencefor- 
ward to  be  efteemed  of  full  age,  fo  as  to  lofe  his  privilege 
of  age  as  againfl  all  other  perfons :  and  again,  fuppofe  he 
had  been  found  a  minor,  whether  that  was  fufficicnt,  with- 
out more,  to  entitle  him  to  the  privilege  in  all  other 
fuits  ^. 

The  next  recognition  is  that  de  iiltlma  prafcntatiom.  yiftfaulu'n^ 
-  When  a  church  was  void,  and  a  difpute  arofe  about  the  i''''%.  «''""•  "^^  • 
prefentation,  the  controverfy  might  be  determined  by  this 
recognition,  at  the  prayer  of  eidier  party.  The  writ  in 
fuch  cafe,  was  of  the  following  kind  :  Summone^  isfc.  duo- 
decim  liberoi  et  legaUs  homines  de  vicineiOy  &c.  &c.  parati 
Jacramento  recogyiofcere^  quii  advocatus  prtejmtavit  ultimafn 
perfonam,  qu^e  obiit  ad  ecclefiam  de  villuy  &c.  qua  vacans  ejiy 
ut  dicitury  et  unde  N.  ciamat  advocationem.  Et  nomina  eorum 
imbreviar  I  facias.  Et  fummomeper  bonos  jummonitores  R.  qui 
prafentationem  ipfani  deforceat^  quod  tun:  fit  ibi  auditur  us  il- 
lam recQgnitioncjTiy  &c  J  What  the  eflbins  were  in  this  recog- 
nition, may  be  colle£led  from  what  has  gone  before.  The 
perfon  to  whom  or  to  whofe  anceftors  the  lafb  prefentation 

**  CUnv.  lib.  13.  c.  15.  ^  Ibi<1.  c.  17, 

•  Ibid.  e.  15,  lO.  ^   Ibid,  c,  l8,  19. 

was 


i86  HISTORYOFTHE 

CHAP,  rv 


WILLIAM 


was  adjudged  by  the  recognition,  was  confidered  as  having 

thereby  obtained  feifin  of  the  advowfon ;  fo  that  he  was  to 

the  prefent  to  the  firft  vacancy,  and  his  narfon  was  to  hold  the 

CONQUEROR    ^       -  .  .      .         ,.,.%•  ,  ,      r   o     i 

,o  prelcntation  during  his  hie,  whatever  was  the  fact  about 

JOHN.       fj^g  right  of  advowfon  \  for  the  perfon  who  loft  the  laft  prc- 

fentation  by  a  recognition,  might  yet  move  a  queftion  upon 

the  right  of  advowfon"^. 

The  tenant  might,  in  this  as  well  as  the  foregoing  writ, 
flate  fome  reafon  why  the  aftife  fliould  not  proceed.  He 
might  fay,  that  he  admitted  the  anceftor  of  the  demandant 
made  the  laft  prefentation,  as  the  real  lord  and  heir ;  but 
that  afterwards  he  transferred  the  fee,  to  which  the  ad- 
vowfon was  appendant,  to  the  tenant  or  his  anceftors,  by  a 
good  and  lawful  title  :  upon  which  allegation  the  aflife 
would  remain,  and  either  party  might  pray  a  recognition 
upon  the  truth  of  this  exception.  Again,  either  party 
might  admit  that  he  or  his  anceftors  made  the  laft  prefen- 
tation, but  that  it  was  ut  de  ivarddy  not  ut  dcfoodo ;  upon 
which  a  recognition  might  be  prayed,  which  would  be 
fummoned  by  a  writ  fimilar  to  the  many  we  have  men- 
tioned:  duodecim  liber os^  ^c,  recognofcerc^  ft  R.  gui  pr^s- 
fentav:t^  iffc.  fecerit  illam  prccfentationem  ut  de  fcedo,  vel 
ut  de  'iVarJ/iy  ^'c.  And  if  the  recognition  declared  the  laft 
prefentation  was  made  ///  de  ivardd^  the  advowfon  of  the 
prefentation  was  at  an  end,  and  thenceforth  belonged  to 
the  other  party ;  if  iit  defoedoy  the  prefentation  remained 
to  him  ■. 

We  come  now  to  the  recognition  concerning  a  tene- 
ment, tit  rum  fit  laic  um  vel  eccleftajlicum^  which  might  be 
had  upon  the  prayer  of  either  party.  For  funimoning  fuch 
a  recognition,  there  ilTucd  a  writ  like  the  former;  recog- 
nofcere^  utmrn  una  hida  terra  quam  N.  perfona  ecclefift  de 
villeiy  ^c.  clamat  ad  Hbera7n  ileemofinat?!  ipfius  ecclcfia  futs 
verfui  R.  in  villd^  i^c,  fit  laicum  fcedum  ipfius  R.    an  fee- 

*"  Glanv.  lib.  13.  c,  20.  »  Ibid.  c.  20,  ii,  *z. 

dum 


ENGLISH      LAW. 

dtnn  ecclefiaft'icum,  Et  t?7terim  f errant  videanf,  ^c  o.  It  was 
a  rule  in  this,  andindeed  in  all  others,  except  the  greataflife, 
that  no  more  than  two  effoins  fliould  be  had ;  for  the  third  was 
never  admitted,  but  where  the  court  could  be  certified  of 
the  party's  illnefs,  whether  he  was  languidus  or  not ;  and  as 
this,  fays  Glanville,  was  not  ufually  done  in  recognitions, 
they  always  were  without  a  third  efToin.  This  recog- 
nition proceeded  in  the  fame  way  as  the  former  ;  and  if  it 
was  proved  by  the  recognition  that  the  tenement  was  cccle- 
fiaftical,  it  could  not  afterwards  be  confidered  as  a  lay  fee, 
though  it  might  be  claimed  as  holden  by  the  church  for  a 
certain  fervicc  p. 

The  next  was  the  recognition,  whether  a  per fon  died 
feifed  tit  de  focdo^  vel  ut  de  vad'io.  If  a  perfon  claimed  a 
tenement  as  having  been  pledged  by  him  or  his  anceftors, 
and  the  other  party  claimed  it  not  as  a  pledge,  but  in  fee, 
then  a  recognition  was  reforted  to,  and  was  fummoned  as 
in  other  cafes  :  recognojcere^  utrurn  N.  teneat  unam  carw 
catam^  ^c.  in  fcedo^  an  in  vadio^  <Sfc.  or  it  might  be 
utnim  ilia  carucata^  &l.  fit  fcedum  vel  hesreditas  ipftus  N, 
an  invadiata  ei  ah  ipjo  R,  vel  ab  ipfo  H.  antecejfore  ejus. 
Et  interim  terram  videant^  &c^.  Sometimes,  when  a 
perfon  died  feifed  ///  de  vadioy  the  heir,  upon  fuch  feifin, 
would  bring  a  writ  de  morte  antecejjoris  againft  the  true 
heir,  who  had  by  fome  means  got  feifin  of  the  land  j  and 
then,  if  the  tenant  admitted  the  feifin  of  the  demandant's 
ancefi;or,  but  faid  it  was  ut  de  vadio,  and  not  ut  de  fosdo  ; 
a  recognition  was  fummoned  in  the  following  form ;  re- 
cognojcere^  utrum  N.  pater  R.  fuer'^t  Jeifitus  in  dominico  fuo 
ut  de  foedo^  an  ut  de  vadio^  de  una  carucata^  i^'c.  die  qua 
ebiit,  t^c  \ 

If  it  was  proved  by  the  recognition  to  be  a  pledge  only, 
and  not  an  inheritance,  then  the  tenant  who  claimed  it  a» 


wnxiAM 

the 

CONQUEROR 

to 

JOHN. 


°  Clanv.  lib.  13.  c.  23,  24. 
'   ibid.  c.  25. 


1   Ibid.  c.  16,  27. 
'  Ibid.  c.  18,  a^. 


his 


fS8  HISTORY      OF     THE 

CHAP.  IV.    his  inheritance  loft  the  tenement  -,  fo  that  he  could  not  even 
VrjTyTJ^    make  ufe  of  it,  in  the  manner  we  mentioned  concerning 
the  actions  of  debt,  for  the  recovery  of  the  debt  for  which  it 

^    jjj  was  a  pledge.     If,  on  the  other  hand,  it  was  recognized  to 

JOHN.  be  an  inheritance  in  the  tenant,  the  demandant  could  reco- 
ver it  no  other  way  (if  at  all)  than  by  a  writ  of  right. 
Glanville  makes  a  quellion,  whether  in  this,  or  any  other 
recognition,  the  warrantor  was  to  be  waited  for,  particularly 
if  he  was  vouched  after  two  eflbins  had  been  had  '. 

The  nature  of  the  recognitions  which  remain  to  be  men- 
tioned, may  partly  be  collecled  from  thofe  of  which  we 
have  already  treated,  and  partly  from  the.  terms  of  the 
award  made  in  court  for  their  being  taken,  and  the  alle- 
gations of  both  parties,  which  were  to  be  tried.  Indeed, 
fome  of  them  have  been  already  noticed  j  as  that  for  trying 
whether  a  perfon  was  of  age '  •,  that  for  trying  whether  a  per- 
fon  died  feifed  ut  defoedoy  or  ut  deivardd"^ ;  that  for  trying 
whether  a  prefentation  was  made  in  right  of  the  inheritance, 
or  only  in  right  of  a  wardfhip'':  all  thefe  recognitions 
were  conducted  as  the  others,  in  refpe6l  of  eflbins,  and 
they  proceeded  or  remained  for  the  fame  realbns  as  pre- 
vailed in  the  relt  ^, 

It,  muft  be  obferved  of  thefe  ajjlfes  (for  fo  they  are 
fometimes  called  by  Glanville,  but  more  commonly  recog- 
nitions),  that  they  are  not  all  of  the  fame  kind  ;  that  d^ 
morte  a?iteceJforis  being  evidently  an  original  proceeding, 
independent  of  any  other ;  the  reft  (not  excepting  that  de 
idthnd prajentatione'^y  and  that  ittrum  la'iciim  feodum  vel 
eccleftajhcum )  being  merely  for  the  decifion  of  fa6ls  which 
arofe  in  fome  original  action  or  proceeding.  Thus,  the 
writs  for  fummoning  recognitions  of  the  latter  kind  were 
fimple  writs  of  fummons  :  they  mention  that  a  plea  was 

»  Glanv.  lib.  13.  e.  30.  tattone  was  fuch,  fee  whiit  we  have 

»  Ibid.  c.  i^,  16,  17.  before    laid,    p.    iio,   in    the    plea 

'^  Ibid.  c.  13,  14,  15.  upon   a    right   of   advowfon,    where 

*  Ibid.  c.  ao,  li,  2».  this  writ  is  awarded  to  try  a  coUate- 
y   Ibid.  c.  31.  ral  matter,  arifing  in  a  writ  of  right 

*  That  the  aflifc  de  ultima  pr a feri'  of  advowlon. 

depending 


E  N  G  L  I  S  H      L  A  W.  189 

depending  in  court  by  the  king's  writ  ;  and  they  were    CHAP.  iv. 
granted  at  the  prayer  of  either  party  ;  fo  that  they  feemed    *"willkm^ 

to  be  reforted  to  by  the  aflent  of  parties,  for  fettling  an  in-  the 

n-  u-  1.     u  I     JIT  u.  CONQUEROR. 

cidental  queltion,  on  which  they  put  the  difpute  between  co 

them.  On  the  other  hand,  the  WTit  de  morte  anteccjjoris  JOHN, 
has  all  the  appearance  of  an  original  commencement  of  a 
fuit.  It  iflued  only  upon  condition  the  demandant  gave 
fecurity  to  profecute  it,~si  Cfilhis  T.fecerit  tejectirum  de 
clamore  fuo  profeqtiendo^  TUNC  fiimmone^ — and  made  no 
mention  of  a  plea  depending.  Of  the  fame  kind  was  the 
writ  de  Jiovd  diffeifindy  which  will  be  mentioned  prefently. 
Thus,  then,  of  all  the  affifes  in  ufe  in  Glanville's  time, 
it  was  only  that  de  morte  atitecejjoris^  and  that  de  nova  dif- 
feiftJidy  that  were  original  writs.  AVhether  there  were  any 
recognitions  for  trying  collateral  fads,  befides  thofe  men- 
tioned in  Glanville,  it  is  difficult  to  determine  ;  this  being 
one  of  the  many  circumftances  of  which  we  mull  remain 
ignorant,  for  want  of  knowing  the  terms  of  the  famous  law 
made  by  Henry  II.  about  affifes. 

We  (hall,  laftly,  fpeak  of  that  which  was  called  the  jj^r^  ^^  ^j^- 
recognitio  de  nova  dijfeifmd.  When  any  one  difleifed  ano-  «^#iA''«. 
ther  of  his  freehold  unjuftly,  and  without  any  judgment  of 
law  to  authorife  him,  and  the  fa6l  was  within  the  kmg's 
affife ;  that  is,  if  it  was  fince  the  laft  voyage  of  the  king  to 
Normandy  %  which  was,  it  feems,  the  time  limited  for 
this  purpofe  in  the  famous  law  fo  often  alluded  to ;  he  might 
then  avail  himfelf  of  the  benefit  of  that  law,  and  have  the 
following  writ  to  the  {heriff:  Quest  us  est  mihi  N,  quod 

*  ThiswasA.  D.  1184/inthc  30th  ing  of  this  pafTage  may  be,  that  the 

year  of  Henry  If.  •,   fo  that  the  time  period  (the  tinmnus  <J  quo)  being  fix- 

of  limitation,  during  that  reign,  was  ed,   it  mufl  neceffarily,  by 'the  lapfc 

never  more  than  about  four  yeurs>  of  time,  be  lengthening  everyday. 

Iq  the  printed  text  of  Glanville,  After  all,  the  pafTage  lies  under  fomc 

there  are  thtfe  words  between  brack-  fufpicion  of  interpolation,  and  was, 

Cts  :     ^od  ^iiar,doque   majus  quand:-  perhaps,  for  that  rmfon  put  betwcca 

que  minus  cenfetur  ;  whicn  pafTage  has  bracki  ts  by  the  editor.     This  voyage 

been    thought   to    import,  that  the  Into  Normandy  is  referred  to  by  later 

iimc  ot  limitation  was  often  varied  writers,  as  the  limitation  before  tfae 

in  thit  king's  reigB.     Another  mean-  ftaiutc  of  Mcrtoa  altcr-d  h. 

JR.  in^ 


WILLIAM 


HISTORY      OF      THE 

R.  irjujie   et  fine  judicio  dljjeijwlt  eum  de  lihcro  tencmcnto 

Juc  in  Villa^  i^c»  pojl  ultiinam  tramfretationeni  meant  in  Nor- 

t'^e  /namiiam  :  et  ideo  tihi  preecibio^   quod  1. 1  P  R  iE  F  a  T  U  s  N. 

CONOUEROR 

To  FECERITTESECURUMDECLAMORESUOPRO- 

J  O  H  N.  5  £  Qjj  E  N  D  o ,  tunc  facias  tenenienturn  illud  reUifiri  de  caial- 
lis  qua  in  eo  capta  fuerunt^  et  ipfuui  cum  catallis  ejje  jacias 
in  pace  ujque  ad  claujujn  Pajcha:.  Et  interim  facias  duodecim 
libei'os  et  Icgales  homines  de  vicineto  videre  terrain  illam  ;  vt 
nomina  eorum  imhreviari  facias,  Et  fuymnone  illos  per  bcnos 
fummonitores,  quod  tunc  fmt  coram  me  vel  jufiitiis  meis,  para- 
ti  inde facer e  recognitionem.     Et  pone   per  vadium 

ET  SALVOS  PLEGIOS  PREDICT  UM  R.  VEL 
BALLIVUM  SUUM,SI  IPSE  NON  FUERlT  INVEN- 
TUS, qulid  tunc  fit  ibi  audiiurus  illam  recognitionem^  15  c.  ^, 
These  writs  of  novel  difleifm  were  of  clifFcrent  forms, 
according  to  the  nature  of  the  freehold  in  whofe  prejudice 
the  difleifin  was  made.  There  is  one  in  Glduvillc  for 
razing  or  proftrating  a  dyke  ad  nocmnentuni  liberi  tcnementi; 
another  for  razing  a  mill-pool  ad  nocumentum  liberi  teue- 
menti  ',  another  for  a  common  of  pafture  appertaining  ad 
liberum  tenementum  ^  Thefe  are  all  the  writs  of  novel 
difleifm  mentioned  in  Glanville. 

In  this  recognition  no   eiToin  was  allowed,  but  the  re- 
^  cognition  proceeded  at  the  hrfl  day,  whether  the  dilleifor 

appeared  or  not ;  for  here  no  delay  was  fulfered  either  on 
account  of  minority,  or  a  vouching  to  warranty  ;  unlefs 
a  perfon  would  in  court  firil  acknowledge  the  difleifm, 
and  then  he  might  vouch  a  warrantor,  and  the  recognition 
would  remain  •,  the  dilfeifor  would  be  in  the  king's  mercy  -, 
the  warrantor  was  fummoncd  ;  and  the  proceeding  went 
on  between  him  and  the  difleifor,  who  vouched  him.  It 
muft  be  obferved,  that  in  this  recognition,  whoever  loft 
his  fuit,  whether  the  demandant  or  tenant,  or,  as  Glan- 
ville terms  them  (with  a  view  perhaps  to  there  being  a  fort 
of  criminality'*  in  a  difleifm),  the  appellor  and  the  appealed, 

''  Clanv.  lib.  13.  c.  31,  33.  intrufion  into  an  ecclcfiaftical  benefice 

«  Ibitl.  c.  34,  35,  36,  37.  is  conllruetl  laftna.    Corv.  Jus  Can. 

^  In   the  canon   law,  a  forcible     lib.  4.  til.  24. 

be 


E  N  G  L  I  S  H      L  A  W.  i^i 

he  was  in  the  king's  mercy.  If  the  appellor  did  not  pro-  C  H  a  p.  iv. 
fecute,  by  keeping  the  day  appointed,  his  pledges  alfo  were  TTTT*'^  ' 
in  the  king's  mercy  ;   and  the  like  happened  to  the  other  the 

party,  if  he  made  default.     The  penalty  ordained  by  the   ^"^'"^'Q^ueror 
conftitution  which  eflabhfhcd  this  proceeding  was  only      JOHN, 
the  m'lfericordia  regis,  fo  often  mentioned.     It  often  hap-  *■ 

pened  in  this  recognition,  that  the  demandant,  after  he  had 
proved  the  difleifm,  wanted  a  writ  to  the  (heriff  to  be  put 
in  poiTelTion  of  the  produce  and  chattels  upon  the  land,  the 
form  of  which  writ  we  have  before  fliewn  '\  It  fliould 
be  remarked,  that  this  writ  to  recover  the  chattels  purfued 
the  original  writ  of  novel  difleifm,  which  directed  the 
party  to  be  refeifed  of  the  chattels  :  in  no  other  recogni- 
tion was  there  any  mention  in  the  judgment  de  fru^ihus 
et  catallis  *. 

Having  taken  this  view  of  the  divers  manners  in  which   Of  terms  and 

_  .  vacatioQS. 

juftice  was  obtained,  it  feems  to  follow  that  fomething 
fhould  be  faid  of  the  times  which  were  allotted,  at  this 
early  period,  for  the  regular  adminiftration  of  it.  T^e 
divifion  of  the  year  into  term  and  vacation  has  been  the 
joint  work  of  the  church  and  riccejjlty.  The  cultivation  of 
the  earth,  and  the  collection  of  its  fruits,  necelfarily  re- 
quired a  time  of  leifure  from  all  attendance  on  civilaffairs; 
and  the  laws  of  the  church  had,  at  various  times,  aflJigned 
certain  feafons  of  the  year  to  an  obfervance  of  religious 
peace,  during  which  all  legal  Itrife  was  ftri£lly  interdi(Sled. 
What  remained  of  the  year  not  difpofed  of  in  this  manner, 
was  allowed  for  the  adminiftration  of  juftice.  The  Anglo- 
Saxons  had  been  governed  by  thefe  two  reafons,  in  diftin- 
guiftiing  the  periods  of  vacation  and  te^-m  ;  the  latter  they 
called  dies  pads  regis ;  the  former  dies  pads  Dei  et  fancla 
eccleft£  ^  The  particular  portions  of  time  which  the 
Saxons  had  allowed  to  thefe  two  feafons  were  adhered  to 
by  the  Normans,  together  with  other  Saxon  ufages  \  and 
their  term  and  vacation  were  as  follow. 

^Clanv.  lib.  13.  c  38,  39.         *  Ibid.  c.  38.         *  Leg.  Coftfcf.  c.  9. 

It 


HISTORY      OF      THE 

It  feems  that  Hilary  term  began  Oclnbis  Epiphania  ; 
w'lLLi  \M     *^^^  ^^'  ^^^  ^3^^  °^  J^^^^ry,  and  ended  on  Saturday  next 
t!;e  before  Septuajrefima ;  which  bein;T   moveable,  made   this 

CONQIJEROR  I  .       r  t  ^  i'\ 

lo  term  longer  m  lome  years  than  others,     hajter  term  be- 

J  O  H  N.       g3j^  Ocfabts  Pafchtt  (nine  days  fooner  than  it  now  docs),  and 
ended  before  the  vigil  of  Afcenfion  (that  is,  fix  days  fooner 
than  it  now  does).     Trinity  term  began  Oclahis  Fetttecofles  ; 
to  which  there  docs  not  fcem  to  have  been  any  precife 
conclufion  fixed  by  the  canon  which  governed  all  the  reil ; 
it  was  therefore  called   terminus  fine  termino  :  it  feems  to 
have  been  determined  by  nothing  but  the  prefFmg  calls  of 
hay-time  and  harvefl,  and  the  declenfion  of  bufmefs,  very 
natural  at  that  feafon.     But  the  conclufion  of  it  was  fixed 
afterwards  by  parliament :  by  flat.  5 1  Hen.  III.  it  was  to 
end  within  two  or  three  days  after  quindenafanEii  Johannis ; 
that   is,  about  the   12th   of  July.      In   latter  times,  by 
ftat.   32  Hen.  VIII.  Trinity  term  was  to  begin  CV^?/;/^ 
fancfx  Trinitatis.      Michaelmas  term  began  on  Tueiday 
next  after  St.  Michael,  and  was  clofed  by  Advent ;   but  as 
Advent-Sunday  is  moveable,  and  may  fall  upon  any  day 
between  the  26th   of  November  and   4th  of  December  ; 
therefore  the  28th  of  November,  as  a  middle  period,  by 
reafon  of  the  feafl  and  eve  of  St.  Andrew,  was  appointed 
for  it.     Thus  were  the  terms   in   the   latter  part  of  the 
Saxon  times,  and  during  this  period,  almofl  in  the  fame 
(late  we  have  them  now;  and  by  them  the  return  of  writs 
and  appearances  were  governed  ^. 
The  criminal  Having  gone  through  the  law  of  private  rights,  and 

the  fevcral  remedies  furniflied  for  the  recovery  and  protec- 
tion of  property  ;  it  remains  to  fay  fomething  of  the  cnmi- 
nal  law,  as  it  Rood  in  the  latter  end  of  the  reign  of  Henry  II. 
But,  previous  to  this,  it  may  be  proper  to  take  a  view  of 
fome  few  regulations  that  had  been  made  on  the  fubje£l  of 
crimes  and  punifhments  antecedent  to  the  time  of  which 
we  are  now  writing.     We  have  feen  that  a  law  was  m.ade 

*  Spclman  Or-g.  of  Terms. 

by 


law 


WILLIAM 


ENGLISH      LAW. 

by  William  the  Conqueror,  which  took  away  all  capital 
punifhmetits,  and,  Inltead  thereof,  directed  various  kinds 
of  mutilation.     This   law  was    repealed  in  one  inftance,  the 

A.  D.  I  io8,  in  the  9th  year  of  Henry  L  when  it  was  enad-  ^^^'^^^^^^^ 
cd,  that  any  one  taken  infurto  vel  latroc'mio  (hould  be  hang-  J  ^  ^^  ^^• 
ed,  without  allowing  any  pecuniary  w^r^  to  be  paid,  as  a  re- 
demption ^'.  The  law  of  William,  however,  ftill  operated 
in  other  cafes  :  the  punifiiment  of  crimes  confifted  in  mu- 
tilations of  various  kinds ;  and  it  will  prefently  be  feen  that 
this  law  of  Henry  I.  was  difpenfed  with,  or  repealed. 

Some  provilions  refpc<£lirxg  the  adminiftration  of  cri- 
minal juftice  had  been  made  by  the  ilatutesof  Clarendon, 
that  were  republifhcd  at  Northampton.  It  was  thereby  di- 
rected, that  any  one  chargerd  before  the  king's  juftices  with 
the  crime  of  murder,  theft,  robbery,  or  receipt  of  fuch 
offenders,  of  forgery,  or  of  malicious  burning,  by  the  oatha 
of  twelve  knights  of  the  hundred  \  if  there  were  no  knights, 
by  the  oaths  of  twelve  free  and  lawful  men,  and  by  the 
oaths  of  four  out  of  every  vill  in  the  hundred  ;  that  any 
one  fo  charged,  fliould  fubmlt  to  the  water  ordeal ;  and  if 
he  failed  in  the  experiment,  he  fliould  lofe  one  foot ;  and 
afterwards  at  Northampton  it  was  added,  in  order  to  make 
the^punifhmcnt  more  fevere,  that  he  fliould  lofe  his  right  • 

hand,  as  well  as  one  of  his  feet;  and  alio  that  he  jfliould 
abjure  the  realm,  and  leave  it  within  forty  days;  and  Of  abjuration. 
even  if  he  was  acquitted  by  the  water  ordeal,  that  he 
fhould  find  pledges  to  anfwer  for  him  ;  and  then  he  might 
remain  in  the  realm,  unlefs  he  was  charged  with  a  murder, 
or  fome  other  heinous  felony,  by  the  commonalty,  and 
lawful  knights  of  the  country.  If  he  was  charged  with 
any  of  thole  crimes,  notwithllanding  his  acquittal  by  the 
ordeal,  he  was  to  leave  the  kingdom  within  forty  days, 
and  carry  all  his  goods  with  him  (with  a  faving  of  all 
claims  his  lord  might  huve  on  them),  and  fo  abjure  the 
realm,  and  be  at  the  king's  mercy,  as  to  any  permifiion  to 

^  Wilk.  Lej.  Anp.  Sax.  p.  304. 

Vol.  I.  P  return. 


CHAP.    W. 

WILLIAM 

the 

CONQUEROR 

to 

j  O  H  Nv 

194  HISTORYOFTHE 

return.  This  regulation  was  to  be  in  force  fi  long  as  the 
king  pleafed,  in  all  cafes  of  murder,  treafon,  and  mali- 
cious burning;  and  in  all  the  before-mentioned  crimes, 
except  in  fmall  thefts  and  robberies  committed  during  the 
war  (which  was  ]u(l  concluded),  in  taking  horfes,  oxen,- 
and  the  like. 

Thus  an  ofiender  was^  fubjecEted  to  a  trial,  by  which,  if 
convided,  he  was  to  lofe  a  limb,  and  be  baniftied ;  if  ac- 
qjiitted-,  he  was  likewifc  to  be  baniftied.  Such  a  method 
of  proceeding  can  be  imputed  to  nothing  but  fomc  doubt 
entertained  of  the  j^uftnefs  of  this  trial  by  ordeaL  It  is  rc- 
bted,  that^  before  this,  William  Rufus  having  caufed  fifty 
Englifhmen  of  good  quality  and  fortune  to  be  tried  by  the 
hot  iron,  they  efcaped  unhurt,  and  were  of  courfe  acquitted ;. 
upon  which  that  monarch  declared  he  would  try  them  again 
by  the  judgment  of  his  court,  and  would  not  abide  by  thi» 
pretended  judgment  of  God,  luhtch  was  made  favourable 
or  unfavourable  at  any  man*s  pleafure.  The  king  looked 
upon  thi«  tri^l  to  be  fraudulently  managed,  as  no  doubt  it 
was ;  and  Henry  II.  convinced  ©f  the  fraud,  would  not 
allow  fuch  an  acquittal  to  have  its  full  eflPe^l  ^  \  though  it 
is  a  ftrong  mark  of  the  barbarifm  and  prejudices  of  thefe 
times,  that  a  pra61:ice  liable  to  fuch  fufpicion  was  ftill  fuf- 
fered  to  continue  as  a  judicial  proceeding  y  and  that  they 
would  rather  panifli  thofe  who  were  lawfully  acquitted  by 
it,  than  altogether  abandon  fuch  an  abominable  proceeding.. 

Another  provifion  made  by  the  ftatute  of  Northamp- 
ton>  related  to  the  old  law  concerning  decennaries.  It  de- 
clared that  na  one,  in  a  borough  or  vill,  ihould  entertain 
any  ftrangegucft  in  his  houfe  more  than  one  night,  tin!efs 
he  would  engage  to  anfwer  for  his  appearance*,  or  fuch 
gueft  had  feme  rcafonable  excufc  for  flaying,  which  his  hoft 
was  to  make  known  to  the  vicinage ;  and  when  he  went 
away,  it  was  to  be  by  day,  and  in  the  prefence  of  the  vici- 
nage.    Another  ordinance  was,  to  fecure  the  puniflimeiit 

*  Litt.  Hen.  II.  vol  4. 179. 

©f 


E  N  G  L  I  S  H      L  A  W.  19^ 

ol  criminals  who  had  been  profecuted,  and  appealed  before   CHAP.     iv. 
the  inferior  maeiftrates,  in  order  to  a  final  trial  before  the      .x/ir  ■  .  ^ » . 

o  '  WILLIAM 

king's  juftices  :  it  declares,  that  any  one  taken  for  murder,  the 

theft,  robbery,  or  forgery,  and  confefTmg  himfelf  guilty  be-  10 

fore  the  chief  officer  of  the  hundred  or  borough,  or  before      JOHN. 
certain  lawful  men,  fhould  not  be  permitted  to  deny  the 
fa£t,  when  brought  before  the  juftices  ^. 

Such  is  the  fubftance  of  certain  ftatutes  made  for  the 
improvement  of  criminal  procceillngs,  in  this  and  the  pre- 
ceding reigns.  We  (hall  now  fpeak  of  the  penal  law  in 
general,  and  the  way  of  profecuting  offenders,  as  pra6lifed 
towards  the  end  of  the  reign  of  Henry  II.  But  in  this, 
we  fhall  confine  our  enquiries  to  fuch  objedls  as  relate  to 
the  curia  regis  only,  contenting  ourfelves  with  fubjoining 
a  fhort  account  of  the  proceedings  before  juftices  itine- 
rant. 

When  a  perfon  was  infamatus.  as  Gianville  terms  it.   ^"'^^  °^  ^^^^'^' 

*  ^  '    cution. 

or  accufed  of  the  death  of  a  man,  or  of  any  fedition  moved 
in  the  realm  or  army,  it  was  either  upon  the  charge  of  a 
certain  accufor,  or  not.  If  no  certain  accufor  appeared,  / 
but  he  was  accufed  only  by  the  voice  of  public  fame,  or, 
as  Gianville  fays,  fatna  tantlimmodo  puhlica  accufat  (which 
fignified  probably  nothing  more  than  what  the  ftatute  of 
Northampton  calls  per  facrawentum  legaiium  hominum)  ; 
he  was  immediately  to  be  fafely  attached,  either  by  proper 
pledges,  or  by  a  much  fafer  fecurity,  that  is,  per  careens 
iticluftofiem.  Then  the  truth  of  the  matter  was  inquired 
before  the  juftices,  by  many  and  various  inqulfitions  and 
interrogations  •,  every  probability  was  to  be  weighed,  and 
every  conjedlure  to  be  attempted,  from  facSts  and  circum- 
ftances,  which  could  be  thought  to  make  either  on  one 
fide  or  the  other.  In  conclufioii,  the  criminal  was  either 
♦  to  be  entirely  acquitted,  upon  fuch  inquiry,  or  was  to  be 
put  to  purge  himfelf  per  legem  apparentem ;  that  is,  by  a 
number  of  compurgators.     If  upon  this  trial  p^r  legem  he 

*  W  Ik,  Lf  fj.  Ang,  Sax.  p.  330 

r  2  was 


196  HISTORY     OF     THE 

* 

CHAP.  IV.    was  convicted,  his  life  and  members  depended  upon  the 
\J^^{7^    judgment  of   court,    and  the  grace  of    the  king,    as    in 
the  other  cafes  oi felony ;  for  fo  Glanville  calls  this  offence  of 

to  feaitto  regm  vet  exerctius  . 

JOHN.  jp  jj  certain  accufor,  or,  as  he  i«  cometimes  called  by 

Glanville,  and  was  afterwards  more  commonly  called,  an 
appellor,  appeared  at  firft,  he  was  to  be  attached  by  pledges, 
if  he  could  find  any,  for  profecuting  the  fuit ;  if  he  could 
not  find  pledges,  he  was  trufted  upon  his  folemn  promifc 
and  engagement  to  profecute  :  and  this  was  the  more  com- 
mon fecurity  far  profecuting  felonies  ;  left  binding  by  too 
fcvere  an  obligation,  might  deter  perfons  from  affifting  in 
bringing  offenders  to  juflice. 

When  the  accufor  had  given  fecurity  for  profecuting, 
then  the  pcrfon  accufed,  as  in  the  former  cafe,  ufed  to  be 
attached  by  fafe  pledges^  and  if  he  had  none,  was  committed 
to  prifon :  and  it  was  a  rule,  that  in  all  pleas  of  felony, 
except  homicide,  the  accufed  perfon  was  to  be  difcharged 
upon  giving  pledges. 

Then  a  day  was  appointed,  upon  which  the  parties 
might  have  their  lawful  eflbins.  At  length  the  accufor 
would  propofe  what  charge  he  had  to  make.  He  might 
perhaps  fay,  that  he  faw,  or  would  by  fome  other  means 
prove,  the  accufed  to  have  attempted  or  done  fomething 
againft  the  king's  life,  or  towards  moving  fedition  in  the 
realm  or  army;  or  to  have  confented,  or  given  aid,  or 
counfel,  or  lent  his  authority  towards  fuch  an  attempt;  and 
add  that  he  was  ready  dirationarey  to  deraign  or  prove  it, 
as  the  court  fhould  award  :  and  if  to  this  the  perfon  accufed 
oppofed  a  fiat  denial,  then  the  whole  was  decided  by  the 
duel.  When  the  duel  was  once  waged  in  fuits  of  this  fort, 
neither  party  could  decline  or  go  back,  under  pain  of  be- 
ing efteemed  pro  v'lElo^  and  fuffcring  all  the  confequencci 
attending  fuch  a  defeat ;  nor  could  they  be  reconciled,  or 

'  Ghnv.  lib.  14.  c.  i. 

the 


ENGLISH       LAW.  197 

the  queflion  between  them  be  compromifed,  any  otherwife    chap.   iv. 
than  by  the  licence  of  the  king  or  his  juftices.  William 

If  the  parties,  at  length,  engaged  in  the  duel,  and  the  thr 

11  -n.    J    1.  u      •         T    ■       j-^         ■        CONQUEROR 

appellor  was  vanquilhed,  he  was  to  be  in  imjencordia  regis ;  to 

ill  addition  to  which  lie  incurred  perpetual  infamy,  and      JOHN. 

Forfeiture. 

certain  difabilities  which  always  attended  the  being  van- 
quifhed  in  a  judicial  duel.  If  the  party  accufed  was  van- 
quifhcd,  he  fufTered  the  judgment  of  life  and  limb  above- 
mentioned  ;  and  befides  that,  all  his  property  and  chattels 
.were  confifcated,  and  his  heirs  were  difinherited  for  ever. 
A'  remarkable  difference  is  here  to  be  obferved  between  a 
conviclion  per  legem  apparenteniy  and  by  duel:  on  .the  for- 
mer, which  was  a  remnant  of  the  old  Saxon  jurifprudence, 
a  felon  fufFered  only  the  pains  of  death  j  but  if  convicted 
on  the  latter,  which  was  a  mode  of  trial  introduced  by  the 
^Normans,  he  fufFered  the  additional  penalty  of  forfeiture. 

Every  freeman,  being  of  full  age,  might  be  admitted 
to  this  fort  of  accufation,  or  appeal ;  yet  fliould  a  perfon 
within  age  appeal  any  one,  he  was  neverthelefs  to  be  at- 
tached in  the  manner  jull  mentioned.  A  ruflic  (by 
which  it  may  be  fuppofed  that  Glanville  means  a  perfon 
not  free)  might  bring  fuch  an  appeal ;  but  a  woman  was 
not  admitted  to  profecute  an  appeal  of  felony,  except  in 
fomc  particular  cafes,  which  will  be  hereafter  mentioned. 
The  party  accufed  might  decline  the  duel,  in  fuits  of  this 
•fort,  on  account  of  his  age,  or  fome  mayhem  received  5 
that  is,  if  he  was  fixty  years  of  age ;  or  if  he  had 
broke  a  bone,  or  had  fufFered  in  his  head,  either/)^;-  incl- 
fionem^  or  per  abrafionem ;  for  fuch  only  were  confidered  as 
mayhems.  And  in  thefe  cafes,  the  party  accufed  was  to 
purge  himfelf /)fr  Dei  judicitijn  ;  that  is,  by  the  hot  Iron, 
or  by  water,  according  to  his  condition :  if  he  was  hotno 
libery  a  free  man,  by  the  former ;  if  a  ruftic,  or  not  free, 
by  the  latter  '". 

*■•    Glior.  lb.  14   c.  I. 

A    SUIT 


198  HISTORYOFTHE 

CHAP.  IV.         A  SUIT  for   the  fraudulent  concealment  of  treafure- 
w  ILL  I  AM     ^^^'^  ^*^^  carried  on  as  above  flated,  where  there  appeared 

the  a  certain  accufor.     But,  upon  a  charce  of  this  crime,  like 

CONQUEROR      ,  ,  „    ,        , ,.       ^  1      ,         j-  ,  •       1 

to  that  above  called  publtca  famay  the  law  did  not  permit  that 

JOHN.  jiny  Qj^g  fhould  be  put  to  purge  himfelf  per  legem  apparent 
terriy  unlefs  he  had  been  before  convicSled,  or  had  confefled 
in  court,  that  he  had  found  and  taken  fome  fort  of  metal 
in  the  place  in  queftion;  and  if  he  had  been  convidled 
thereof,  the  prefumption  then  was  fo  much  againft  him, 
that  he  was  obliged  to  purge  himfelf  per  legem  apparen- 
iem,  and  ftiew  that  he  had  not  found  or  taken  any  more. 
It  fhould  feem,  from  Glanville,  that  a  particular  law  had 
been  made  to  authorize  the  court  to  compel  fuch  a  purga- 
tion, even  where  there  was  not  the  prefumption  before 
mentioned  ". 

When  any  one  was  accufed  of  homicide,  it  might  be 
in  the  two  ways  dated,  and  the  proceeding  in  either  was  as 
has  been  juil  feen.  Only  it  fliould  be  obferved,  that  the 
accufed  was  never  difcharged  upon  giving  pledges,  unlefs, 
fays  Glanville,  by  the  interpofition  of  the  king's  particular 
prerogative  and  pleafure ;  by  which  it  has  been  generally 
thought  '^,  that  Glanville  alludes  to  the  writ  de  alio  et  atiay 
of  which  writ,  however,  we  forbear  to  fpeak  particularly, 
till  we  arrive  at  a  period  when  we  are  certain  that  it  was 
in  ufe. 
Homicide.  There   were  two  kinds  of  homicide  :  one  that  was 

called  murdrum',  which,  in  the  words  of  Glanville,  was 
q'lod  nulla  vidente,  nulla  fciente,  clam  perp'tratur^  pr<fier 
folum  intcrfe^loremy  ct  ejm  compluei ;  ita  quod  max  nan  ajfe^ 
quatur  clamcr  popularis^  juxta  affilam  fuper  hoc  proditam  ; 
fuch  a  fecret  killing,  without  the  knowledge  of  any  but 
the  offenders,  as  prevented  a  hue  and  cry,  ordained  by  fta- 
tute  to  be  made  after  malefactors.  In  an  accufationor  ap- 
peal far  this  crime  of  murder,  none  was  admitted  to  pro- 

«»  Gjan   life.  14.  c.  j.  •  l  Inft.  42. 

fecutc, 


ENGLISH      LAW.  19$^ 

fecute,  except  one  who  was  of  the  blood  of  the  deceafed ;    C  H  a  p.   iv. 
and  a  nearer  relation  might  exclude  a  remoter  from  de-     william 
raiejnin^  the  appeal.     Tlie  other  kind  was  that  which  was  ^    .  ^^*  „    ^ 
i^diAtdfimple  hotntcide..     In  this  crime  alfo  no  one  was  ad-  to 

mitted  to  become  appellor,  and  make  proof,  unlefs  he  was 
allied  to  the  deceafed  by  blood,  or  by  homage,  ox  by  domi- 
nion, and  could  fpeak  of  the  death  upon  the  teftimony  of 
his  own  eyes.  Thus  we  fee  the  qualification  of  the  perfon 
to  become  appellor  In  fimple  homicide,  extended  further 
than  in  cafes  of  murder ;  though  it  was  required  of  him  in 
this  cafe,  that  he  Ihould  have  been  an  eye-witnefs,  which 
could  not  be  in  the  former  from  the  very  defcription  of  ithe 
crime,  nullo  vidente ;  and  therefore  the  zeal  and  piety  of 
the  relation  who  charged  a  man  with  the  crime,  feems  to 
have  been  taken  inftead  of  proof.  Again,  in  this  fuit  a 
woman  might  be  heard  as  accufor,  if  it  was  for  the  dej^^i 
of  her  hufband,  and  (he  coukl  fpeak  of  what  fhe  ;h€;i:felf 
iaw.  It  will  be  fhewn  prefently,  that  a  woman  might 
bring  an  appeal  of  an  injury  done  to  lief  own  perfon,  and, 
according  to  Glanvillc,  it  was  only  upon  the  confideration 
.of  man  and  wife  being  one  flefh,  that  flie  was  allowed  this 
appeal  of  the  death  of  her  hufband.  In  thefe  cafes,  the 
perfon  accufed  might  chufe,  either  to  let  it  reft  upon  the 
proof  made  by  the  woman,  or  purge  himfelf  from  the  im- 
puted crime  per  Dei  judicium.  Sometimes  a  perfon  charged 
'  with  fimple  homicide,  if  he  had  been  taken  in  flight,  with 
a  crowd  purfuing  him,  and  this  was  legally  proved  in 
<*ourt  by  a  jury  of  the  country,  was  obliged  to  undergo  the 
legal  purgation,  without  any  other  evidence  being  brought 
againft  him''. 

The  crimen  incendiiy  or  burning,  was  profecuted  and 
tried  in  the  fame  way ;  as  was  alfo  the  crimen  roheria,  ox 
robbery '". 

^  T!ic  txpreiTTon  iiiClanvllIe  which,.    '^  C!anv.  I'b.  14.  c.  3. 
•is  hcr^  comtrurd  cbe-grd  hn^aTu:,        *   Ibid,  c,  4,  5. 


HISTORY      OF     THE 

The  crimen  raptuSy  fays  Glanville,  was,  when  a  woman 
declared  herfelf  to  have  futTered  violence  from  a  man  in  the 
the  king's  peace;  by  which  latter  circumdance  nothing  more 

^^^^^"^^^    '<^•as  meant,  than  that  the  offence  was  fuch  as  was  cogni- 
J  O  H  N.      £^^|g  jj^  the- king's  court  only.     The  law  directed,   that 

Rape.  when  a  woman  had  fuHained  an  injury  of  this  kind,  (he 

fliould  go,  while  the  facl:  was  recent,  to  the  next  village, 
and  there  'injur'uimjib't  illaiam proh'ts  hovmi'ibiis  oflefiderey  ei 
fanguhicm^  ft  qiiis  fucr'it  cffi/fus^  et  i)ej}iuni  fcijjlones  ;   (he 
was  to  do  the  fame  to  the  chief  olhcer  of  the  hundred  ; 
and,  ladly,  was  to  make  a  public  declaration  of  it  in  the 
firft  county  court;   after  which   'i!i\^  was  to  inftltute  her 
plaint,  which  was  proceeded  in  as  in  other  cafes  ;  a  woman 
being  fufFered  to  profecute  her  appeal  in  this,  as  in  all  other 
inllances  of  an  injury  done   to  her  perfon.     It  fliould  be 
remembered,  as  we  before  laid,  that  it  was  in  the  ele£Vion 
of  the  perfon  accufed,  either  to  fubmit  to  the  burthen  of 
making  purgation,  or  leave  it  upon  the  evidence  of  the  wo- 
man herfelf.     The  judgment,  in  this  crime,  was  the  fame 
as  in  thofe  before  mentioned.     It  was  not  enough  for  the 
offender,  after  judgment  pafTed,  to  offer  marriage  ;  for  in 
that  manner,  fays  Glanville,   men   of  a   fervile  or  inferior 
condition  would  be  enabled  to  bring  difgrace  upon  women 
of  rank,  not  for  cnce,  but  for  ever ;  and,  on  the  other 
hand,  men  of  rank  might  bring  fcandal  on  their  parents 
and  relations  by  unv/orthy  marriages.     We  are  informed, 
however,  by  the  fame  authority,  that  it  was  cuftomary,  be- 
fore judgment  paffed,  for  the  woman  and  the  man  to  com- 
promifethe  appeal,  and  marry,  provided  they  had  the  coun- 
tenance of  the  king's  licence,  or  that  of  his  juftices,  and  the 
affent  of  parents '. 

The  crimen  falf: y  in  a  general  and  large  fenfe,  contained 
Jn  it  many  fpecies  of  that  crime  ;  the  making  of  falfe 
charters,  falfe  meafures,  falfe  money,  and  other  falfilica- 
«:lons ;  the  manner  of  profccuting  which  appeals  was  the 

*  Glan.  lib.  14.  c.  6# 

fame 


E  N  G  L  I  S  H      L  A  W.  201 

fame  as  tbofe  we  have  juft  mentioned.  A  diftinclion,  how-    chap.  iv. 
ever,  was  obferved  between  forging  royal  and  private  char-      ^^  jlliam 
ters:  if  the  former,  the  party  was  fentenccd  as  in  cafe  of  the 

Ixfe  majeily  :  if  the  latter,  the  offender  was  dealt  more  j^, 

tenderly  with,  as  in  other  cafes  of  fmaller  forgeries ;  which       JOHN, 
were  pmiiflied  only  by  the  lofs  of  limbs'. 

Of  the  crimen  furU^  or  theft,  and  other  pleas  which  be- 
longed to  the  flieriff's  jurifdi£tion,  Glanville  gives  no  ac- 
count, as  they  did  not  come  within  the  defign  of  his  work, 
which  was  confined  to  the  curia  regis.  The  profccution 
of  them  was  ordered  differently,  according  to  the  ufagc  and 
practice  of  different  counties  ". 

Th  u  s  flood  the  law  of  crimes,  and  the  method  of  pro-   P'  occeding-  It- 

j.  -  toie  iuiliccs  iti- 

ceedmg,  as  far  as  related  to  the  fuperior  court.  What  was  orram. 
the  office  of  the  juflices  itinerant  in  the  reign  of  Henry  II. 
we  have  before  ftated  fiom  the  flatute  of  Northampton, 
when  this  eflablifhment  was  revived.  The  jurlfdidion  of 
thefe  juftices  was  confiderably  encreafed  foon  after  ;  as  may 
be  coUecled  from  certain  capitula,  or  articles  of  enquiry, 
which  were  delivered  to  the  juflices  itinerant  in  the  year 
1 194,  which  was  the  fifth  year  of  Richard  I.  According 
to  thofe  dire£lions,  they  were  to  begin  by  caufing  four 
knights  to  be  chofen  out  of  the  whole  county,  who,  upon 
their  oaths,  were  to  eled  two  lawful  knights  of  every  hun- 
dred or  wapentake ;  and  thofe  two  were  to  chufc,  upon 
their  oaths,  ten  knights  in  every  hundred  or  wapentake, 
and  if  there  were  not  knights  enough,  then  free  and  lawful 
men.  Thefe  tv/elve  together  were  to  anfwer  to  all  the  ca^ 
pitula  which  concerned  that  hundred  or  wapentake. 

When  that  was  done,  the  juflices  were  to  enquire  of  and 
determine  both  w^iy  and  old  pleas  of  the  crown,  and  all 
fuch  as  were  not  determined  before  the  king's  juHIces;  alfo 
all  recognitions,  and  all  pleas  which  were  fummoned  before 
the  juflices  by  the  king's  writ,  or  that  of  his  chlef-jufllce, 
or  fuch  as  were  fent  to  them  from  the  king's  chief  court. 

«  Glaav,  li'-.  14.  c.  2.  "  Ibd.  c.  8. 

Thf/ 


^oz  HTSTORYOFTHE 

CHAP.  IV.  They  were  to  enquire  of  efcheats,  prefentations  to  churches, 
wiiLiwi  wardfhips,  and  marriages,  belonging  to  the  king.  They 
the  were  to  enquire  of  malefactors,  and  their  receivers  and  en- 

to  couragersj  or  forgers  of  charters  and  writnigs;  ot  the  goods 

JOHN.  ^f  ufurers ;  of  great  aflifes  concerning  land  worth  loo  (hil- 
lings a-year,  and  under  j  aiui  of  defaults  of  appearance  in 
court. 

They  were  to  chufe,  or  caufe  to  be  chofe^^,  three  knights 
and  one  clerk  in  every  county,  who  were  to  be  cujlodes  pla- 
citorum  ci)ron/e ;  the  fame,  probably,  who  were  afterwards 
called  coronatores ;  but  they  are  not  mentioned  by  that  name 
in  this  reign.  They  were  to  fee  that  all  cities,  boroughs, 
and  the  king's  demefnes,  were  taxed.  They  were  to  en- 
quire of  certain  rents  in  every  manor  of  the  king's  de- 
mefnes, and  tiie  value  of  every  thing  on  thofe  manors^  and 
how  many  carucates  or  ploughlands  they  contained.  They 
were  alfo  to  fwear  good  and  lawful  men,  who  were  to  chufe 
others  in  different  parts  of  the  county,  to  be  fwom  to  fee 
the  king's  efcheats  and  wardlands,  as  they  fell  in,  well- 
ftocked  with  all  neceflaries.  Befides  thefe,  there  were  fe- 
veml  articles  relating  to  the  Jews,  which  were  occafioned 
by  the  outrages  that  had  lately  been  committed  by  the  po- 
pulace againft  that  people ;  as  alfo  concerning  the  lands 
and  goods  of  John  earl  of  Morton,  who  had  incurred 
great  forfeitures  to  the  king*. 

In  the  year  1198,  being  the  loth  year  of  this  king,  the 
juftices  itinerant  had  certain  capiiula  delivered  in  charge  to 
them,  fomew'hat  different  from  the  preceding.  As  a  view 
of  fuch  articles  is  the  only  means  of  gaining  a  true  idea  of 
the  commiffion  and  office  of  thefe  juflices,  it  will  be  pro- 
per jufl  to  mention  its  contents.  They  were  diredcxl  to 
hear  and  determine  all  pleas  of  the  crown,  both  new  and 
old,  which  had  not  been  determined  before  the  king's 
juftices;  and  all  afTifes  de  morte  anteccjforh^  de  mvd  dif- 
feifindy  and  ^f  magnis  ajftfis  concerning  lands  of  lol.  by 
the  year  and  under  ;  and  of  advowfons  of  churches.    They 

-«  *  Wilk.  Leg.  Ang.  Sax.  p.  46,  &  fccj. 

were 


E  N  G  L  I  S  H     L  A  W.  203 

were  to  enquire  of  vacant  churches,  wards,  efcheats,  and  CH  a  p    iv. 

marriages,  as  in  the  former  capitula ;  of  ufury ;  of  thofe     w  j  i  t  1  a  m 

in  mifericordia  rejris ;  of  purpreftures  ;  of  treafure-trove  ;  ^^'^ 

r        ,    r   r.  .    ,     .  •  rr      •  •  f       •   u       CONQUEROR 

01  maleiactors  and  their  receivers;  ot  fugitives ;  of  weights  to 

and  meafures,  according  to  the  late  aflife  made  thereon      J 
the  preceding  year  ;  of  cuftoms  received  by  ofhcers  of  fea- 
ports;  laftly,  of  thofe  who  ought  to  appear  at  the  iUr, 
but  neglecled  their  duty  ^. 

This  fame  year,  and  before  the  itinera  of  the  juftices 
were  over,  the  king  appointed  his  juftices  of  the  foreft  to 
hold  an  iter^  which  was  as  fulemn  a  proceeding  as  the 
other  ;  but  carried  with  it  more  terror,  and  a  degree  of  op- 
preirion,  on  account  of  the  grievous  nature  of  the  inllitu- 
tion  of  forefts  in  all  its  parts.  Thefe  juftices  were  com- 
manded to  fummon,  in  every  county  through  which  they 
went,  all  archbiftiops,  bifliops,  earls,  barons,  and  all  free 
tcnantSj  with  the  chief  officer  and  four  men  of  every 
town,  to  appear  before  them  ad  placita  foref.£y  and  hear 
the  king's  commands  *- 


It  does  not  come  within  the  fcope  of  this  Hiftory  to  en-  ^^^  y^  ^.^^ 
tcr  minutely  into  a  detail  of  the  conftitution  and  political  t'"^^'*^^"'"*^"'- 
events  in  the  government  of  this  and  the  fucceeding  times. 
A  hiftory,  however,  of  our  jurifprudcnce  would  be  im~ 
perfe£l  without  giving  fome  fmall  confideration  to  this 
fubje£l,  fo  far,  at  leaft,  as  it  is  connected  with  the  forma- 
tion and  adminiftration  of  our  laws. 

In  the  firft  ages  of  civil  foclety,  while  laws  are  few, 
and  the  execution  of  them  feeble,  much  muft  be  left  to 
the  authority  of  the  fovereign  power.  As  the  experience 
of  later  times  points  out  the  deficiencies  of  former  laws, 
and  particular  remedies  are  applied,  the  exerclfe  of  this 
fovereign  power  feems  fo  far  to  be  abridged.     The  prero- 

*"  Wilk.  Leg.  Ane.  S-^x.  j».  350.       fore  the  juOIcc;,  fee  WiU".  Lf  5.  Aug. 
'  Ibi'1,     For  the   aflife   of  the  fo-     Sax.  P-  351. 
reft,  and  the  angles  of  encjuiry  be- 

gative 


2C4  H  I  S  T  O  R  Y      O  F     T  11  E 

CHAP^^iv^    gativc  of  the  princr,  and  the  dominion  of  the  laws,  in 

WILLIAM     this  manner  occafionally  take  place  of  each  other;  upon 

.  Nvr/^rf.o^n    ^^^  incrcafe  of  the  latter,  the  former  eives  way  and  re- 

to  tires,  colle<51inp;  all  its  powers  for  the  fole  purpofe  of  aid- 

-*        *  ■"  *      ing  and  enforcing  a    due    obfcrvancc   of  the  eftablifhcd 

Jaw. 

The  jufl:  and  requifitc  prerogative  of  the  crown  was  per- 
haps very  extenfive  in  the  Saxon  times ;  but  after  the  Con- 
queft  there  concurred  a  number  of  circumflances,  all  tend- 
ing to  increafe  the  power  of  the  fovereign  beyond  the  mere 
exigencies  of  orderly  government. 

The  revolution  efFeded  by  William  did,  in  its  confe- 
quences,  render  that  prince  powerful  beyond  all  the  fove- 
reigns  of  his  time,  and  all  that  have  reigned  fince  in  this 
kingdom ;  for  it  threw  the  greateil  part  of  the  nation  into 
a  ftate  of  dependence  on  him  for  their  lives  and  eftates. 
The  novelty  of  his  reign,  and  the  peculiar  fituation  in 
which  the  prince  flood,  drove  him  upon  every  exertion  of 
which  his  authority  was  capable  ;  and,  notwith (landing  he 
confirmed  to  the  nation  the  enjoyment  of  all  their  cufloms 
and  laws,  he  made  thofe  laws  themfelves  occafionally  fubmit 
to  the  controul  of  his  power,  whenever  the  neceffities  of 
his  government  demanded  it.  So  much  was  the  whole 
kingdom  awed  by  his  greatnefs,  that  no  infringement  of 
their  laws  was  refented  by  the  people  during  his  reign. 

What  had  been  by  force  acquired  to  the  Conqueror, 
continued  in  his  fucceffor  through  the  fame  force,  or  the 
prevalence  of  an  eflablifhed  government  •,  and  though  fome 
ConcefTions  were  relu£lantly  made  by  fubfequent  monarchs, 
as  will  be  feen  hereafter,  and  the  high  claims  of  the  crown 
were,  in  fome  degree,  relaxed  in  favour  of  the  people, 
they  had  no  lading  •tS't£i  :  the  exercife  of  an  extenfive 
prerogative  continued  in  the  crown  through  all  thefe  reigns, 
and  rendered  the  condition  of  the  fubjcd  extremely  preca- 
rious and  miferable. 

The 


E  N  G  L  I  S  II      L  A  W.  205 

The  crown  was  afiifted  in  the  exercife  of  this  preroga-  chap.  iv. 
tlve  by  the  manner  -in  which  the  Norman  law  was  intro-  ^^ —  '^  *^' 
•duced.   The  Enghfh,  who  had  feen  the  laws  of  their  Anglo-  the 

Saxon  anceftors  confirmed,  had  the  fulleft  confidence  that  ^^NQ^EROR 
they  fliould  be  governed  by  them  in  all  quellions  concern-  J  O  H  N. 
ing  their  perfons  and  property.  In  the  mean  time,  the 
Normans,  who  had  taken  fole  pofl'elTion  of  the  king*s 
court,  had  the  debate  and  determination  of  all  queftions 
there  agitated  5  and,  continually  recurring  to  the  notions 
and  principles  of  law  in  which  they  had  been  bred,  de- 
termined conformably  with  that  law  moft  points  of  doubt 
and  difficulty.  Thus  the  Englifh,  while  they  pofleffed  the 
letter  of  their  law  inviolate,  faw  all  their  old  cuftoms  ex^ 
plained  away  j  or  fo  cramped  and  modified,  as  to  amount 
almoft  to  an  abrogation  of  them. 

In  this  conflict  between  the  Norman  and  Englifh  laws, 
the  prerogative  of  the  king  mufl  neceiTarily  have  found 
occafions  of  enlarging  its  pretenfions.  While  the  rules  of 
property  and  methods  of  proceeding  were  yet  fluctuating 
and  unfettled,  every  chafm  was  fupplied,  and  every  impe- 
diment removed  by  the  great  power  of  the  crown  ;  the 
only  fubfifting  authority  which  could  reconcile  the  two 
contending  polities.  While  the  rights  of  perfons  and  of 
property  were  not  prccifely  defined,  and  it  was  not  un- 
animoufty  agreed  by  what'fet  of  rules  and  principles  they 
were  to  be  judged,  the  crown  took  every  advantage,  and 
interfered  and  dictated  abfolutely  in  moll  judicial  enquiries. 

It  was  during  this  precarious  ftate  of  our  laws,  that 
the  people  were  cpnflrained  to  purchafe  the  favour  of  the 
crown,  in  order  to  obtain  juflice  in  the  king's  courts*. 
Fines  were  paid  for  the  exprefs  purpofe  of  having  juflice 
«nd  right.  Prefcnts  of  a  confiderable  value  were  made 
by  fuitors  to  obtain  the  opinion  of  the  king's  juftices  in  a 
caufe  depending  J  for  writs,  pleas,  trials,  judgments.    Somc- 

•  Madox  Exthc'^.  293. 

times 


CONQUEROR 
to 


206  H  I  S  T  O  R  Y     O  F     t  U  E 

CHAP.  IV.     times  part  of  the  debt  in  contcft   was  proffered  to  the 
WILLIAM      crown  for  a  favourable  decifion.     Thus  was  the  common 

the^ ^^    courfe  of  juftice  made  h'ablc  to  the  interference  and  con- 

troul  of  royal  authority, 
JOHN.  This  is  only  one  inflance,  among  many  others,  of  the 

fcope  given  to  the  cxercifc  of  fupreme  authority,  while 
the  (late  of  our  law  was  fo  unfettled,  and  its  efforts  fo 
feeble.  Befides  the  uncertain  condition  of  our  legal  po- 
lity, other  caufes,  rooted  in  the  conflitution  of  the  go- 
vernment, contributed  to  arm  the  king  with  extraordinary 
powers.  The  ftri£t  feudal  fubmifiion  of  a  vafl'al  to  his 
liege  lord  encouraged  the  notion  of  an  entire  obedience 
in  all  things  to  the  king,  who  being  fupreme  over  all  the 
lords  in  bis  kingdom,  was,  of  courfe,  to  furpafs  them  in 
the  petty  prerogatives  which  they  themfelves  claimed 
within  their  own  demefnes.  Thefe  various  caufes  con- 
curring with  the  immenfe  authority  pofTefled  by  the  firll 
Norman  king,  enabled  this  race  of  monarths  to  afTume 
prerogatives,  and  exercife  afts  of  fovereignty,  to  the  lall 
degree  oppreflivc  and  tyrannical. 

Besides  the  exertions  of  prerogative,  the  law  itfelf, 
which  had  been  framed  under  fo  baneful  an  influence,  was 
arbitrary  and  cruel.  Tenures  and  ihtforejl  lanvs  were  the 
fource  of  cndlefs  jealoufies  and  difcontents,  and  occafioned 
nioft  of  the  public  diforders,  which  broke  out  with  fuch 
violence  in  thefe  times.  The  foreil  laws  were  firft  intro- 
duced by  the  Conqueror,  to  prote(fl:  his  favourite  diverfion 
of  hunting.  It  was  not  fufHcient  that  this  mighty  hunter 
aflTigned  certain  trails  of  land,  the  property  of  his  fubjecls, 
to  be  converted  into  foreft ;  that  he  difpeopled  and  made 
defolate  whole  diftritls  of  cultivated  country ;  but,  to  fe- 
cure  the  full  enjoyment  of  it,  he  caufed  regulations  to  be 
framed,  calculated  to  rellrain  and  punifh  with  feverity 
every  minute  invafion  of  this  new  inftitution.  The  oeco- 
nomy  of  the  foreft  occafioned  a  number  of  grievous  pe- 
nalties •  offences  refpcding  vert  and  venifon  were  puniflied 

with 


ENGLISH      LAW. 


Z07 


with  barbarous  mutilations;  and  other  delinquencies  with    chap.  iv. 
fine  and  imprlfonment.     A  regular  feries  of  courts  was    ^^^^^^^    ' 

r»      1         lilt         n         1  •     1         •  WILLIAM 

eredted  to  be  held  at  Itated  periods ;  in  one  of  which  the  the 

judges  obtained  the  diftinguifhed  ftyle  of  Jujlices  h  Eyre,     ^^^^f/^^^^^ 

The  fruits  and  confequences  of  the  feudal  conftitutioii  J  o  "  ^'• 
made  another,  and  no  fmall  part  of  the  grievances  then 
complained  of,  and  were  borne  with  great  impatience  by 
both  people.  The  Englifh,  who  had  voluntarily  confented 
to  the  introduction  of  tenures,  principally  as  a  fi^ion  af- 
fording a  bafis  for  a  national  militia,  ill  endured  the  op- 
preflive  conclufions  drawn  from  that  eftablifliment ;  con- 
clufions  which,  with  refpe£l  to  them,  had  no  foundation  in 
rcafon  or  truth.  Poflefled  of  their  land  long  before  Wil- 
liam entered  the  country,  they  revolted  with  indignation 
at  the  obligations  by  which  they  were  now  faid  to  be  bound 
to  their  lords.  Feeling  the  burthens  of  this  new  ftate, 
they  fighed  after  that  freedom  which  they  had  enjoyed  un- 
der their  Saxon  kings  j  and,  in  their  difcourfes  with  the 
Normans,  inflilled  into  them  a  perfuafion,  that  other  con- 
ditions of  fociety,  and  other  inftitutions  than  thofe  which 
they  laboured  under,  would  confifl  with  a  well-ordered 
government.  Nor  were  the  Normans  themfelves  fatisfied 
with  the  increafing  burthens  of  their  own  polity,  which 
had  accumulated  much  beyond  their  original  defign  in 
eltablifliing  it.  It  was  little  recompencc  to  a  great  lord, 
that  he  could  cxercife  the  like  fovereignty  over  his  tenants 
which  he  himfelf  fufFered  from  the  king ;  while  the  rear 
vaflals,  who  were  moftly  Englifh,  without  any  power  to 
compenfate  themfelves,  were  in  a  ftate  of  fociety  truly  de- 
plorable. Thefe  confiderations  united  the. nation  in  a  com- 
mon caufe.  The  cry  was  for  a  reftoration  of  the  laws  of 
Edward  the  Confeflbr,  as  a  concife  way  of  repealing  all 
the  late  innovations. 

But  the  abolition  of  a  fyftem  to  which  the  kingdom   The  chmerj. 
had  conformed  for  fome  years,  could  hardly  be  obtained ; 
10  procure  fome  alterations  that  would  temper  and  abate 

the 


2o8  'HISTORY      OF     THE 

CHAP.   IV.    the  extreme  evils  complained  of  was  as  much  as  conld  be 
vvii  LI  AM      expelled.     This  was  done  by  charters  granted  by  feveral 

tiic  of  our  kings. 

CONQUEROR  .  .    , 

to  Henry  I.  being  poflefied  of  the  throne  by  a  precarious 

-'  "  '      title,  endeavoured  to  conciliate  the  people  by  conceflions 

of  this  kind.  A  formal  charter  was  figned  by  the  king. 
In  this  he  abrogated,  in  general  words,  all  abufes  that  had 
lately  crept  in;  and  declared,  that  no  reliefs  fliould  be 
taken  but  fuch  as  were  juft  and  lawful.  He  difclaimed 
any  right  to  exa£l  money  from  his  barons  for  licence  to 
marry  their  daughters,  or  other  females ;  and  engaged  to 
give  all  female  wards  in  marriage  by  the  advice  of  his  ba- 
rons. The  dower  of  widows  was  fecured;  and  the  king 
engaged  not  to  give  them  in  marriage  without  their  con- 
fent.  The  widow  or  fome  other  relation  was  to  have  the 
cuftody  of  the  lands  and  perfons  of  their  children.  All 
barons  were  enjoined  to  a£t  in  the  like  manner  towards 
their  vaflals. 

Having  made  thefe,  with  other  ordinances  relating  to 
crimes  and  puniflmients,  he  exprefsly  confirmed  the  laws 
of  Edward  the  Confefibr,  cum  illh  enmidatiojiihus  quibus 
pater  mens  eas  emendavit  cGncilio  barofium  fuoriim  '*.  Thus 
were  fome  branches  of  the  feudal  law,  in  a  degree,  check- 
ed in  their  growth,  while,  the  body  remained  firmly  rooted 
and  flourifliing. 

This  charter  was  confirmed  by  Stephen  %  who  granted 
another,  merely  to  fecure  the  liberties  of  churchmen ;  to 
which  order  he  had  been  moflly  indebted  for  the  poflcffion 
of  the  crown  ^.  The  charter  of  Henry  I.  was  alfo  con- 
firmed by  Henry  II.  *. 

This  charter,  however,  did  not  reach  all  the  mifchiefs 
that  prevailed  in  the  kingdom ;  nor  were  the  provifions 
which  it  did  contain  faithfully  obfcrved.  They,  with 
all  the  rights  of  the  people,  were  trampled  on  by  fucceed- 

'»Blac.  Tra^s,  vol.  2.  p.  8.  ^  Ibid.  p.  lo. 

*Ibid.  p.  9.  •  Ibic*.  p.  II. 

ing 


ENGLISH      LAW.  209 

in"'  monarcbs.  The  unftable  nature  of  government  in  thefe  chap.  iv. 
times  made  the  condition  of  the  people  depend  very  much  wh.liam 
on  the  charai^er  of  their  kings;  a  circumllance  which  was  ^  ^■■'■^ 

happily  experienced  in  the  reign  of  John.     With  all  that  i„ 

violence  which   hurried  him  on  to  fport  with  the  liber-      J  ^' 

ties  of  a  people,  this  prince  wanted  the  firmnefs  neceiTary 
to  command  refpecl  and  obedience  •,  and  while  he  excited 
their  refcntment  by  a  wantonnefsof  tyranny,  he  encouraged 
'  their  refinance  by  his  pufillanimity.  Exafperatcd  at  re- 
peated infults,  his  barons  aflcmbled,  and  with  arms  in  their 
hands  demanded  of  him  a  charter  which  might  fccure  their 
property  and  perfons  from  future  invafions  of  power.  A 
convention  was  foon  held  between  the  king  and  his  people 
in  an  open  field,  called  Runnymede,  near  Staines,  in  all  the 
terror^^,  of  martial  preparation.  Tiie  king  encamped,  with 
fomc  few  adherents,  on  one  fide ;  the  barons  on  the  other. 
After  fome  days  of  debate  and  confideration,  the  barons 
drew  up  a  fet  of  capitiday  containing  the  heads  of  griev- 
ances, grounded  upon  the  charter  of  Henry  L  Thefe, 
with  fome  fmall  qualifications  to  which  they  acceded,  were 
then  thrown  into  the  form  of  a  charter-,  to  which  the  king 
affixed  his  feal. 

This  charter  of  king  John,  ufually  called  Afagra 
Charia,  and  the  Charter  of  Liberties,  is  more  full  and 
explicit  than  that  of  Henry  1.  In  this  reliefs  were 
fixed  at  a  certain  fum;  many  regulations  were  made  con- 
cerning wardOiip  and  marriage,  the  rights  of  perfons,  and 
the  adm.iniftration  of  juflice;  all  which  will  be  confidercd 
in  the  fucceeding  reign,  when  Magna  Chart  a  was  con- 
firmed, with  fome  alterations,  by  Henry  III.  :  this  of 
Henry  IlL  being  the  Great  Charter,  which  is  always 
referred  to  as  the  bafis  of  our  law  and  conftltution  ;  while 
the  charter  of  John  is  only  remembered  as  a  monument  of 
antiquity.  One  very  (Iriking  provifion  of  John's  charter, 
which  is  omitted  in  that  of  Henry  III.  defervcs  our  no- 
tice. It  is  there  declared,  that  no  fcutage  or  aid  (l/hll 
Vol.  L  Q^  be 


2IO  HISTORYOFTHE 

CHAP.  IV.     be  levied  on  the  fubjecft   luft  per  commune  concilium  regm 
WILLIAM       JisJIr'i;  except  in  the  three  cafes  in  which  a  feudal  lord  was 

^^^  entitled  to  the  afTiftance  of  his  vaflal  j   namely,  on  mar- 

CONQUEROR      .  .  i  •      i        i  i-        i-    r  i     •    u.         j. 

to  riage  of  his  daughter,  on  maknig  his  ion  a  knight,  and  to 

JOHN.  redeem  his  perfon  from  captivity  •,  a  reftriclion  that  was 
declared  by  the  charter  to  hold  good,  not  only  between  the 
king  and  his  tenants,  but  betVv'een  every  lord  and  his  te- 
nants. In  order  to"  aflemble  the  commune  concilium  regni 
to  all'efs  fuch  fcutages  and  aids,  the  king  engaged  to  fum- 
mon  all  archbifliops,  bifliops,  abbots,  carls,  and  greater 
barons,  ftgillatim  per  liter  as  \  et  praterea^  fays  he,  facie- 
mus  fummoneri  in  generali  per  vicecomites^  et  ballivos 
nojlrosy  omnes  illos  qui  de  nobis  tenent  in  capite ;  a  paflagc 
that  feems,  beyond  all  controverfy,  to  point  out  the  confti- 
tuent  members  of  the  great  council  of  the  kingdom  in  thofe 
days* 

Several  originals  of  this  charter  were  executed  by  the 
king.  It  is  faid  that  one  was  depofited  in  every  county, 
or  at  lealt  in  every  diocefe.  In  purfuance  of  one  of  the 
provifions  in  the  charter,  twenty- five  barons  were  ele£led 
as  guardians  of  the  liberties  of  the  people,  who  were  to  fee 
the  contents  of  it  properly  executed ;  but  the  troubles  that 
foon  followed,  from  the  want  of  faith  in  the  king,  prevent- 
ed this  fcheme  of  reformation.  The  king  died  in  the  next 
year,  and  left  the  kingdom  in  all  the  horrors  of  a  civil 
war. 
Characters  of  We  fliall  iK)w  confidcr  the  kings  whofe  reigns  fall  within 

le<>iJktorf. '  "^  ^^^^  period,  in  their  charatler  as  Icgiflators.  We  have  be- 
fore feen,  that  William  the  Conqueror,  befides  confirming 
the  laws  of  the  ConfeiTor,  made  fome  himfelf,  which  ef- 
fected no  inconfiderable  alteration,  by  introducing  tenures, 
and  the  trial  by  duel  in  criminal  queflions.  Befides  thcfc 
exprcfs  ordinances,  he  contrived  all  means  of  ingrafting 
the  laws  of  Normandy  upon  the  common  law  :  for  this 
purpofc,  he  appointed  all  his  judges  from  among  his 
Norman  fubjecls^   and  made  that  language  be  taught  in 

fchools. 


E  N  G  L  I  S  H      L  A  W.  211 

fchools'.      By  the  conftitution  of  his  courts  of  juftlce,    CHAP.  iv. 
and  every  a£l  of  his  adminiftrntion,  he  did  all  in  his  power      WILLIAM 
to  change  the  jurifprudence  of  the  country.  cokoitror 

We  hear  nothing  of  Rufus  as  a  lec;iflator ;  nor  are  there  to 

any  lav/s  of  Henry  I.  except  his  charter;  but  there  is  every 
reafon  to  believe  that  the  latter  of  thcfe  princes  paid  great 
regard  to  the  improvement  of  the  law.  He  was  himlelf  a 
man  of  learning,  and  had  a  difpofition  to  quiet  the  minds 
of  his  fubjccls  by  a  good  adminiflration ;  the  laws,  there- 
fore, which  go  under  his  name  may  be  confidered  as  a 
compilation,  at  leaft,  made  in  his  reign,  and  as  an  inftance 
of  his  attention  to  the  fubje6l  of  Icgiflation. 

The  reign  uf  Stephen  was  a  period  of  continual  war 
and  difturbance,  and  of  courfc  gave  little  room  for  im- 
provement in  legal  eftablifliments.  The  introdudlion, 
however,  of  the  books  of  canon  and  civil  law  muft  have 
contributed  to  the  great  advances  made  in  the  time  of  his 
fucceflbr,  Henry  II. ;  for  though  there  was  always  an 
extreme  jealoufy  in  the  praclifers  of  the  common  law,  with 
refpect  to  thofe  two  fyftems,  it  went  no  further  than  to  an 
exclufion  of  their  authority  as  governing  laws  :  they  were 
flill  cultivated  by  them  as  branches  of  the  fame  fcience,  and 
had  a  great  effedl  in  polidiing  and  improving  our  municipal 
cuftoms. 

The  wife  adminiflration  of  Henry  II.  operating  on  the 
advantageous  circumftances  concurring  in  the  latter  end  of 
his  reign,  when  all  things  were  reduced  to  peace,  contri- 
buted more  to  advance  our  legal  polity  than  all  the  pre- 
ceding times  from  the  Conqueit  put  together.  Without  re- 
capitulating what  has  been  before  related,  let  any  one  com- 
pare the  work  of  Glanville  with  the  laws  (or,  as  it  miglu 
more  properly  be  called,  the  treatifc  of  lazu  i/i  the  t'ww) 
of  Henry 'I.  the  great  regularity  in  the  order  of  proceed- 
ing, and  the  refinement  with  which  notions  of  property 

2  Wilk.  Leg.  Sax.  p.  zSp. 

0^2  are 


212  H  I  S  T  O  R  Y     O  F     T  H  E 

CHAP.  IV.    are  treated,  and  he  will  fee  the  fuperiorlty  of  the  later 
\VILLI\M     ^^^g^^  ^^^  point  of  knowledge.      It  is  probable,   that  the 
the  additions  and  amendments  made  in  the  law  of  this  king- 

to  com  were   by  this  prmce  tranfplanted   into   Normandy, 

JOHN.  jjj^ j  occafioned  a  flili  further  improvement  in  the  law  of 
tenures;  as  lawyers  were,  by  thefe  communications,  en- 
gaged in  a  kind  of  competition  to  enlarge  and  polifli  the 
fame  fubjeft  of  enquiry.  The  whole  of  our  municipal  law 
was  improved  to  a  high  degree  during  the  reign  of  Henry 
II.  and  afforded  an  ample  foundation  for  the  fuperflruc- 
ture  raifed  on  it  in  the  time  of  Richard  and  John,  and 
more  particularly  in  the  reign  of  Henry  III. 

It  does  not  appear,  that  Richard  took  any  part  himfelf 
in  contributing  to  further  the  great  defigns  of  his  father, 
in  matters  of  municipal  regulation,  but  left  things  to 
the  courfe  they  had  been  put  in  by  him.  This  prince, 
however,  {lands  very  high  in  the  hiftory  of  maritime  jurif- 
prudence.  Upon  his  return  from  the  Holy  Land,  while  he 
was  in  the  Illand  of  Oleron,  on  the  coafl:  of  France,  he 
compiled  a  body  of  maritime  law.  This  was  defigned  for 
the  keeping  of  order,  and  the  determination  of  contro- 
verfies  abroad ;  and  the  wifdom  with  which  it  was  framed, 
has  been  evinced  by  the  genera!  reception  it  has  obtained  in 
other  nations".  King  John  did  nothing  memorable  in  the 
way  of  legiHation  in  this  kingdom;  though  he  has  the 
praife  of  having  firft  introduced  the  Englilli  laws  into  Ire- 
land, where  he  inflituted  flieriffs  and  other  officers  to  inter- 
pret and  execute  them.  He  likewife  appointed  a  grand 
jufliciary  to  prefide  over  the  adn'iiniftration  of  juftice  in  that 
kingdom ''. 

The  monuments  which  remain  of  the  jurifprudence  of 
thefe  times  are  not  very  numerous.  They  confifl  of  fome 
laws,  charters,  records,  and  law-treatifes. 

2  Black,  vol.  ;v.  p.  423.  ^  Tyrr.  vol.  ii.  p.  809, 

Of 


E  N  G  L  I  S  II      L  A  W.  213 

Of  the  laws  of  William  the  Conqueror,  fome  arc  in    c  H  a  p.   iv. 
Norman-French,  and  fome  in  Latin.  The  firft  fifty  capitula  \\\\a 

in  Norman-French  are  what,   Ingulphus  favs,  he  brou2;ht  the 

down  to  his  abbey  or  Lroyland,  as  thole  which  the  king  t„ 

had  confirmed  and  commanded  to  be  obferved  throughout      JOHN. 
England  '.  •  Though  the  time  when  they  were  enacted  is  !"^^^  °^  ^''' 

00  1  liam  ihe  Coa- 

not  mentioned,  it  is  tolerably  clear,  that  it  was  not  long  qucroi. 
after  Ingulphus  went  to  London  on  the  affairs  of  his  mona- 
ftery,  in  the  fixteenth  year  of  William's  reign.  Thefe 
therefore  were,  probably,  fuch  alterations  and  additions  as 
he  chofe  to  make  in  the  laws  of  Edward,  which  had  been 
allowed  in  the  fourth  year  of  his  reign  ^..  There  follow 
fome  other  laws  of  William  in  the  form  of  a  charter ;  and 
as  the  firft  moftly  concern  the  criminal  code,  thefe  latter 
conftitute  fome  alterations  in  the  civil.   Thefe  are  in  Latin,  ' 

and  go  from  the  fifty-firft  chapter  to  the  fixty-feventh  in- 
clufive.  There  are  alfo  fome  others  in  the  form  of  a  charter, 
which,  together  with  the  preceding,  make,  in  all,  eighty- 
one  capitula  of  laws  of  William  the  Conqueror. 

There  are  no  laws  remaining  of  William  Rufus,  if  any 
were  made  ;  nor  of  Henry  I.  excepting  his  charter.  Thofe 
that  ufually  go  under  the  title  of  laws  of  this  king,  and 
are  entered  in  the  Red  Book  of  the  exchequer,  feem  to  have 
been  reduced  into  that  form  by  fome  perfon  of  learning,  as 
containing  a  fketch  of  the  common  law  then  in  ufe;  a  man- 
ner of  entltuling  treatifes  not  then  uncommon  \  for  there  is 
now  to  be  feen,  in  the  Cottonian  colle£l:ion,  a  manufcript 
of  Glanville,  which  bears  the  title  oi  Laius  of  Hcfiry  II.  1 
There  is  no  evidence  that  thefe  laws  were  enacted  bv  the 
great  council,  or  granted  by  any  charter.  Triey  contain 
ninety- four  capitula,  and  are  to  be  found  in  the  collecllon 
of  Lamhard  and  W ilk  ins. 

We  h.avc  no  remains  of  legination  in  the  time  of  Ste- 
phen.    The  laws  of  Henry  II.  arc  the  Conftitutions  made 

•  Ingulph.  *  Tyri-.  vol   ii.  p.  69.  '  Clawl  D.  z. 

at 


WILI.IAN4 


HISTORY     OF     THE 

TXClarendofu  anno  1 164,  and  the  ftatutes  made  at  Northamp- 
ton^ anno  1  1 76.     The  firfl:  fourteen  of  the  Conftitutions  of 
the  Chirendon  made  feveral  alterations  in  the  civil  and  crimmal 

,0  part  of  our  laws^  the  remaining  fixteen  concern  ecclelialti- 

•J  ^  ^  ^-  cal  affairs,  and  contain  thofe  points  which  were  difputed  be- 
tween Henry  and  Becket,  and  between  this  kingdom  and 
the  fee  of  Rome. 

Besides  laws,  there  remain  fome  public  acls  of  this 
reign  :  as,  articles  of  enquiry  concerning  the  extortion  and 
abiifes  offjcriffs,  and  the  ajftfe  of  arms.  During  the  reigns 
of  Pvichard  and  John,  there  are  no  laws  which  can  be  pro- 
perly fo  called  ;  but  there  are  commilTions  and  ordinances 
of  a  public  nature  refpeding  the  adminiftration  of  juftice. 
In  the  reign  of  tliC  former  there  are  fome  articles  of  the 
crown ^  with  the  forms  of  proceeding  in  thofe  pleas  ;  and  di- 
reBions  for  preferving  the  laws  of  the  forejl  ^. 

Besides  the  laws  of  thefe  kings  which  have  been  men- 
tioned, there  are  many  other  provifions  made  in  thefe  reigns, 
which  may  be  found,  arraigned  in  the  order  of  time  in 
which  they  pafled,  in  the  Codex  Legum  Veterum  intended 
for  publication  by  Spelman,  and  now  annexed  to  the  end  of 
Wilkins's  Anglo-Saxon  Laws ". 

The  great  monuments  of  this  period  are  the  charters. 
Under  this  title  might  indeed  be  reckoned  thofe  laws  of 
William  the  Conqueror,  which  we  have  juft  noticed  to 
have  paiTed  in  that  form.  But  the  charters,  properly  fo 
called,  and  which  have  become  fo  famous  on  account  of 
the  objecl:  they  all  had  in  view,  namely,  the  removal  and 
redrefs  of  certain  grievances,  are  the  following  :  The 
charter  of  Henry  I.  containing  eighteen  chapters;  that 
cf  Stephen,  containing  thirteen  chapters;  that  of  Hen- 
ry II.  containing  only  two  chapters,  and  exprefled  in  very- 
general  terms  -,  the  Capitula  Baronum,  being  thofe  heads 
of  grievances  which  were  propofed  by  the  barons  to  John  to 

^  Tyrr.  vol.  ii.  f.  578,  °  S/:c  the  Prcfac:  to  Wiik.  Ang.  Sax.  Laws. 

be 


ENGLISH      LAW.  ^15 

be  redrcfTed  ;   and  the  Magna  Charta  of  that  king,  drawn     CHAP.    IV. 
up  in  purfuance  of  them:  thefe  are  all  to  be   found   in  the     vviLLlAM 

late  Mr.  Tuftice  Black  Hone's  correal  edition  of  the  charters^,  the 

1  u  r  r      rn    1        1  •  •      CONQUEROR 

where  that  great  ornament  01  Lngliln  law  has  given  a  cri-  10 

tical  and  very  curious  hiftory  of  thefe  valuable  remains  of      J  ^ 

antiquity. 

The  laws,  or  njfif.t^  as  they  were  called,  made  at  Ofthe  ilaiutes, 
this  early  period,  deferves  a  little  further  confideration. 
It  has  been  before  obferved,  that  our  law  is  compofed  of  the 
cuftom  of  the  realm,  or  leges  twn  fcr'ipLey  and  the  ftatutcs, 
or  leges  fcnpta.  Our  lawyers  have  made  a  diftinclion 
among  ilatutes  thcmfelvcs  j  they  have  diftinguiilied  be- 
tween ftatutes  made  before  the  time  of  memory,  and  thofe 
made  fince.  The  time  of  memory  has  been  fixed  in  con- 
formity with  a  provifion  made  in  the  time  of  Edward  L 
for  fettling  the  limitation  in  a  writ  of  right ;  which  was, 
by  (lat.  I  Weft.  c.  39.  fixed  at  the  beginning  4Df  ihe  reign 
of  Richanh  Though  the  limitation  in  a  writ  of  fright 
has  been  fince  altered,  this  period  has  been  chofen  a3  a  dif- 
tance  of  very  high  antiquity,  at  which  has  been  fixed  tie 
time  of  memory,  as  it  is  called  ;  fo  that  every  thing  before 
that  period  is  faid  to  have  happened  before  the  time  of 
memory. 

Those  ftatutes  which  were  made  before  the  time  of 
memory,  and  have  not  fince  been  repealed  nor  altered  by 
contrary  ufage,  or  fubfequent  acls  of  parliament,  are  con- 
fidered  as  a  part  of  the  leges  fwn  feripia ;  being,  as  it  were, 
incorporated  into,  and  become  a  part  of,  our  common 
law  :  and  notwithftanding  copies  of  them  may  be  found, 
their  provifions  obtain  at  this  day,  not  as  acls  of  parliament, 
but  by  immemorial  ufiige  and  cuftom-,  of  which  kind  is, 
no  doubt,  a  great  part  of  our  common  law  ■". 

Laws  were  termed  fomctimcs /t^^^,  fometimes  coiflitu- 
iknes.     Though.the  moft  folenni  and  ufual  way  of  ordaiur 

•  BI-itk.Tialsj.V)!.  if>.  -  ^  Ha't  Hill.  3,  :j. 


2i6  HISTORY    OF    THE 

ft 

CH  A  ^.   W.     ing  laws  was  to  get  the  concurrence  of  the  commune  conc'i- 

WIl  LiMvi      ^^"^^'  f'^g^'^)  if  lliould  fecm,  that  in  thefe  times  the  king  took 

f^*"  upon  himfelf  to  do  manv  leeiilative  a(Bs,  which,  when  con- 

CONQUl  ROR    /         ,  ,         ...         ^    urn      1         ,         r    i.-  j'l 

to  formabJe  with  tlie  etlabhihcd  order  of  things,  were  readily 

J  OH  N.  acquicfccd  in,  and  became  the  law  of  the  land.  The  very 
frame,  indeed,  of  fuch  laws  as  were  fan£lioncd  with  all 
poflVole  formalities,  carried  in  them  the  ftrongeft  appear- 
ance of  regal  aifls :  if  a  law  pafTed  coficilio  haroinnn  fiiorum^ 
it  was  ftill  rt'.v  conjVitiilt,  Of  the  laws  of  "William  the 
Conqueror,  though  in  fome  parts  they  feem  to  have  the 
authority  of  the  great  council,  Jlatu'imus^  volumus,  pr^vci- 
phnus ;  yet  in  others  they  fpeak  of  the  perfon  of  the  king 
only,  hoc  quoqu.c  pvuicipio^  et  prohiheo ''-.  The  form  of  a 
charter,  in  which  the  king  is  confidered  as  a  perfon  grant- 
ing, was  a  very  common  way  of  making  laws  at  this 
time ',  and  this  carries  in  it  the  ftrongcfl:  proof  of  the 
fentiments  entertained  in  thofe  ages  concerning  legiflation  : 
neverthelefs  it  is  to  be  remarked,  that  fome  of  thefe  charters, 
from  the  folemnities  attending  the  execution  of  them,  might 
be  regarded  as  havin;;j:  all  the  validity  of  laws  ;  as  the  char- 
ter of  king  John,  to  which  the  barons  of  the  realm  were 
parties.  There  were,  however,  feveral  other  charters 
V.  hich  feem  to  have  no  authority  but  that  of  the  fovereign. 
Indeed  feveral  laws,  or  ajjif^e,  even  fo  low  down  as  Henry 
II.  and  the  reigns  of  Richard  and  John,  vouch  no  other 
fa  nation  but  rex  conflilu'it^  or  rex  prczcepit^  for  every  thing 
they  command  or  dire6l. 

There  is  no  way  of  accounting  for  this  extraordinary 
appearance  of  the  old  ftatutes,  but  by  fuppofmg  the  ftate 
of  our  conftitution  and  laws  to  have  been  this  :  That 
the  judicature  of  the  realm  being  in  the  hands,  and  under 
the  guidance  of  the  king  and  his  juflices,  it  remained  with 
him  to  fupply  the  defecls  that  occalionally  appeared  in  the 
courfe  and  order  of  proceeding  \  which  being  founded  ori- 

«:  Wilk,  a  17,  ai8. 

glnally 


E  N  G  L  I  S  H      L  A  W.  217 

pnally  on  cuftom   and  ufage,   was,    in  its  nature,   more    CHAP.   IV. 
fufceptlble  of   modification  than   any   pofitive   inftitution,     willIam 
that  could  not  be  eafily  tampered  with,  without  a  manifeil        vA'^f  ror 
difcovory:  -of  the   change.      In  an  unlettered  age,   it  was  to 

convenient  and  beneficial  that  the  king  ihould  exercife 
fuch  a  fuperintendance  over  the  laws,  as  to  declare,  ex- 
plain, and  direct,  what  his  juftices  fliould  do  in  particular 
cafes  -,  fuch  directions  were  very  readily  received  as  pofi- 
tive laws,  always  to  be  obferved  in  future ;  and,  no  doubt» 
numbers  of  fuch  regulations  were  made,  of  which  we  have 
at  prefent  no  traces.  While  this  fupreme  authority  was 
exercifed  only  in  furtherance  of  juftice,  by  declaring  the 
law,  or  even  altering  it,  in  inftances  which  did  not  much 
intrench  upon  the  interefl  of  the  great  men  of  the  king- 
dom, it  was  fuffered  to  aCl  at  freedom.  But  no  alteration 
in  the  law  which  affected  the  perfons  or  property  of  the 
barons,  could  be  attempted  with  fafety,  without  their  con- 
currence in  the  making  of  it ;  as,  indeed,  it  could  not 
always  be  executed  without  the  affiftance  of  their  fupport. 
Thus  it  happened,  that  when  any  important  change  was 
meditated  by  the  king,  a  commune  convU'ium  vi'as  fummoned, 
where  the  advice  of  the  magnates  was  taken;  and  then 
the  law,  if  palTed,  was  mentioned  to  be  pa  fled  with  their  . 
concurrence.  On  the  other  hand,  had  the  nobles  any  point 
which  they  wanted  to  be  authorifcd  by  the  king's  parlia- 
mentary concurrence,  a  commune  concilium  was  called,  if 
the  king  could  be  prevailed  on  to  call  one ;  and  if  the  mat- 
ter was  put  into  a  law,  the  king  here  was  mentioned  to 
have  commanded  it,  at  the  prayer  and  requclt  of  his  barons; 
fo  that,  one  way  or  other,  the  king  is  mentioned  in  all  laws 
as  the  creative  power  which  gives  life  and  effect  to  the 
whole. 

As  laws  made  In  the  folemn  form  bv  a  commune  conc'tUum 

4 

were  upon  points  of  great  importance,  and  often  the  fub- 
je6ts  of  violent  contefl ;  they  were  in  the  nature  of  con- 
cords or  compacts  between  the  parties  intcrelted,  and  were 

fomctime's 


218  H  I  S  T  O  R  Y      O  F      T  H  E 

c  H  A  P.   IV.     fometlmes  pafled  and  executed  with  the  ceremonies  fiiitable 
WILIIAM     ^^  ^"^^   ^  tranfaclion.     The  Conilitiitions   of  Clarendon 

t'^*:  (which  too  were  called  the  ancient  law  of  the  kingdom, 

C0NQI'1:R()R  ,,j.  ,  111,1  -iriN 

lo  and  therctore  only  to  be  declared  and  recognrzed  as  lucn;, 

j  (3  H  N.       ^vere  palTed  in  that  way.     Becket  and  all  the  biihops  took 

an  oath  to  obferve    thofe  laws ;   and  all,   except  Becket, 

figntd,  and  put  their  feals  to  them.    The  laws  were  drawn 

in  three  parts.     One  counterpart,  or  authentic  copy,   was 

given  to  Becket,  another  was  delivered  to  the  archbilliop 

of  York,   a  third  was  retained  by  the  king  himfelf,   to  be 

enrolled  among  the  royal  charters  '.      The  Ma^na  Charta 

of  king  John  was  executed  with    fimilar  folemnity,   and 

bore  a  fimilar  appearance  of  a  compact  between  the  king 

and  his  nobles.     It  was  not  uncommon  that  the  people,  as 

well  as  the  makers,  (hould  be  fvvorn  to  obferve  laws  ;  the 

aJjifiE  Jlatiddey  et  juratc?,  are  mentioned  by  Braclon   as  an 

article  of  enquiry  before  the  juflices  in  eyre  in  the  reign  of 

Henry  III. 

The  rottili  annalesy  or  great  rolls  of  the  pipe,  in  which 
the  accounts  of  the  revenue  were  ftated,  are  the  mofl  an- 
tient  rolls  now  remaining,  and  the  feries  of  them  is  perfect 
DomcfuavBook  ^fom  the  firft  year  of  Henry  II.  Befides  this  there  is  ftill 
remaining  in  the  fame  archives,  a  great  or  pipe  roll,  which 
has  been  fuppofed  to  belong  to  thi^  fifth  year  cf  king  Stephen, 
but  has  been  proved  by  Mr.  Prynne  and  Mr.  Madox  to  be 
intitled  to  an  earlier  date ;  indeed,  to  belong  to  fome 
year  of  Henry  I. ;  and,  according  to  Mr.  Prynne,  to  the 
1 8th  of  that  king. 

The  plea  rolls  of  the  Exchequer,  now  remaining,  do  not 
,  begin  till  the  reign  of  Edward  1.     The  oldeft  rolls  of  the 

curia  regis  now  extant  begin  with  the  firft  year  of  Richard  I. 
as  do  the  aJ/Jje  rolls  of  the  juftices  itinerant.  Thofe  of 
the  hancum  begin  with  the  tlrft  year  of  king  John,  which 
is  very  near  the  firft  eftabliftiment  of  that  court.  There  are 

'  Liu.  Hen.  II.  vol.  iv.  p.  i6,  •  Mad.  Hift.  Dif.  Epiil. 

charter 


E  N  G  L  I  S  H      L   A  W.  219 

charter  rolls  of  the  chancery,  of  the  firft  year  of  king    CHAP.   iv. 
John,  and  clofe  rolls ^fi tie  rolls,  patent  rolls,  liberate  rolls ^  and       ^y,j  j  i^j^.i 
Norman  rolls,  of  the  fecond,  third  and  fixth  year  of  that  kins.  t'^*-* 

All  the  betore-mentioned  rolis,  except  the  great  rolls  of  the  to 

pipe,  are  faid  to  be  now  in  the  Tower  of  London,  and  are  ^^  ^^  "  ^' 
the  earlied  fpecimens  of  records  that  have  been  fpared  by 
the  joint  deftru6lion  of  time,  wilfulnefs,  and  neglect.  The 
cruel  havock  made  by  thefe  enemies,  has  occafionally  ex- 
cited a  temporary  attention  to  this  important  article,  and 
meafures  have,  in  confequence,  been  purfued  for  preferving 
fuch  muniments  as  remained.  Such  events,  in  the  hiilory 
of  our  records,  will  be  mentioned  in  their  proper  places*. 

Among  the  records  and  valuable  remains  of  anti- 
quity we  mud  not  forget  the  famous  Dcmefclny  Book, 
which,  though  not  ftridly  a  monument  of  a  legal  nature, 
yet  has  this  connexion  with  the  HiRory  of  our  Law,  that  it 
is  faid  to  have  been  made  with  a  view  to  the  eflablifl)- 
mcnt  of  tenures.  This  book  contains  an  account  of  a!i 
the  lands  of  England,  except  the  four  northern  counties ; 
and  defcribes  particularly  the  quantity  and  value  of  them, 
with  the  names  of  their  pofll-flbrs.  King  Alfred  is  faid  to 
have  compofed  a  book  of  this  kind  about  the  year  pco,  of 
which  this  was  in  fome  meafure  a  copy.  This  work  was 
begun  in  ic8o,  and  completed  in  fix  years.  It  has  always 
been  efteemed  of  the  higheft  authority,  in  queflicns  of  te- 
nure ;  and  is  confidered  by  antiquarians  as  the  mod  an- 
tient  and  moil  venerable  record  that  now  exifts  in  this  or 
any  other  kingdom.  The  Black  and  Red  Book  of  the 
Exchequer^  feem  very  little  more  connected  with  our  an- 
cient 

*  See  Ayloru"*.^  Ancient  Ch:<'ters,  Introil. 
»  Domrfday  Book  Is  a  <1ocumfnt  qnaMo  f3mp!-.lft,  lntitle(1,  J  Jhjrt 
belonging  to  the  Rtccipt  of  the  yJccount  if  ■cme  Particulays  concerning 
King's  Exchrquer,  a\u\  is  in  the  D ^ncfdaj  Bci,  ivitb  a  Fieiv  cf  tts 
Ci-.aptfr-hoiife  at  Wcftminfler.  It  is  beinr  pubiijhed.  Bj  a  Member  cf  the 
in  two  V(.l>imr<!.  For  a  more  fatif-  S:ctefy  cf  Ant/quannvu  This  is  a 
faf^ory  nccount  of  this  anticnt  re-cord  pci  roimantc  of  iVIr.  Webb,  and  was 
we  inurt  relVr  the  Reader  to  a  fmall     read  at  the  Society  in  the  ycai  1755. 

!a 


220 


HISTORY      OF     THE 


CHAP.    IV. 

Wli.l.lAM 

iht 

CONQUEROR 

to 

J  O  H  K. 


cicnt  laws  than  the  foregoing  work,  except  that  in  both 
of  them  was  found  a  tranfcript  of  a  law-treatife,  which  will 
be  mentioned  prefently. 

There  are  two  treatifes  written  in  the  reignof  Henry  II. 
which  contribute  greatly  to  iHuftrate  the  ftate  and  hiftory 
of  our  law :  the  one  is  the  Dialogus  de  Scnccario^  before  al- 
luded to  *,  the  other  is  the  Traciaius  de  Legtbus  Atigl'iiCy  by 
Olanville. 

The  Dialogus  de  Scacc^rio,  has  generally  pafled  as  the 
work  of  Gervafe  ofTilhury ;  but  Mr.  Madox  thinks  it  was 
written  by  Richard  Fitz-Nigel  bifliop  of  London,  who 
fucceeded  his  father  in  the  oflice  of  treafurer,  in  the  reign 
of  Richard  I.  and  was  therefore  well  qualified  for  fuch  an 
undertaking.  This  book  treats,  in  the  way  of  dialogue, 
upon  the  whole  eftablifluncnt  of  the  exchequer,  as  a  court 
and  an  office  of  revenue;  giving  an  cxa£l  and  fatisfacSlory 
account  of  the  officers  and   their  duty,   with  all  matters 


In  this  little  effay  is  brought  tog-^i'ner 
in  ont  view  all  that  had  been  {a'A  by 
former  hidoiians  and  antiquarians 
on  the  fubjc£\  of  Dotnefday. 

By  the  munificence  q\  parliament, 
Tfcinei'day  liat  jufl  been  pnnti.d  ;  but 
we  mufi  regret  that  this  laudable  re- 
gard of  the  legiilature  towards  our  an- 
t'cnt  record?  has  not  been  fecon^led 
by  the  common  attention  which  has 
been  paid  to  every  other  publication 
bnce  the  earlieft  times  of  printing. 
The  reader  will  be  lurprifcd  when 
he  is  told,  that  this  book  has  no  pre- 
fatory difcourfe,  or  index,  not  even 
X  tille-page,  or  the  name  of  the  prin- 
ter •,  it  is  a  mtvc  Jac-fi.iiile^  conlli- 
tut.ng  a  very  large  tolio,  full  of  ab- 
breviations: and  rtgns,  that  cannot  be 
underflood  without  a  key,  and  much 
previous  information. 

'  Liber  Ruber  and  Liber  Niger  Scac- 
earii  are  two  mifccilancous  collec- 
tions of  cha'trrs,  trratifr";,  conven- 
tions, the  number  of  hides  of  land  in 
i^veral  counties,  cfcuagcs,  and  the 
Ike  ;  many  of  which,  as  well  as  the 
Diahgas  de  Scaccario,  are  to  be  found 


in  both  thofc  hooks.  The  Liber  Niger 
has  been  printed  by  Hcarne,  together 
with  fome  other  things,  in  two  vo- 
lumes 8vo  ;  of  v;hich  the  Liber  Ni- 
ger fills  about  400  pages.  He  entitles 
it,  Exemplar  "vctujii  coiicis  MS.  (ni- 
gra 'uelamine  ccoperti )  in  Scaccarto^ 
&c.  The  coUcflor  of  the  contents 
oi  the  Liber  Ruber  ir  fuppofrd  by  iVlr. 
Madox  to  have  been  Alexander  de 
Swerefcrd^  archdeacon  of  Shrewl- 
bury,  and  an  officer  in  the  Exche- 
quer in  the  latter  end  of  Hrnry  II. 

It  fecms  as  if  the  Diab.gus  de  Scat- 
eario  had  been  confidertd  as  the 
whole  of  the  Liber  Niger,  till  the  pu''- 
lication  of  Heatn ;  and  fince  Mr. 
Madox  has-  pronounced  Richard  F.tz- 
Nigel  to  be  the  author  of  the  Dia- 
logue, and  not  Gervafe  of  Tilbury, 
the  whole  of  tbe  Liber  Niger  has 
been  g'ven  to  Oeivafc,  though  it  does 
not  app-ar  for  what  rcalon.  Tbe 
Dia!:rj:'  de  Sc^icca-  i:  is  publifhed  by 
Mr.  Madox,  at  the  end  of  his  HiJ- 
tory  of  the  Exchequer.  See  Nichol- 
fon's  Ene.  Hifl.  lib.  .  p.  173.  Hcain's 
Liber  Niger y  p.  17. 


concerning 


ENGLISH      LAW. 


22f 


concerning  that  court,  during  its  higheft  grandeur,  in  the    C  H  ap.   iv. 
reisrn  of  Henry  IL     This  is  done  in  a  (Ivle  fomewhat  fupe-     — ""Nf'""'**^ 

.    .  "*  WILLIAM 

rior  to  the  law-Latinity  of  thofe  days.  the 

Glanville's  book  is  of  a  very  different  fort:   this  is  7^     ' 

written  without  any  of  the  freedom  or  elegance  difcoverable      JOHN". 
in  the  other ;  and  has  all  the  formality  and  air  of  a  profcflional   ^'anviUe. 
work.     It  is  entitled,   T!raEtatits  cle  Legibus  et  Confuetudi" 
nihus  Regn'i  Anglia ;  but,   notwithftanding   this   general 
title,  it   is  confined   to    fuch  matters   only   as    were  the 
obje£ls  of  jurifdidion  in  the  curia  regis.     Having  ftated 
this  as  the  limit  of  hi^s  plan,  the  author  very  rarely  travels 
out  of  it.     Glanville's  treatife  confifts  of  fourteen  books  ; 
the  firft  two  of  which  treat  of  a  writ  of  right,  when  com- 
menced originally  in  the  curia  regis,  and  carry  the  reader 
through  all  the  ftages  of  it,  from  the  fummons  to  the  appear- 
ance, counting,  duel,  or  afTife,  judgment  and  execution.  • 
In  the  third,  he  fpeaks  of  vouching  to  warranty;   w'hich, 
being  added  to  the  two  former  books,  compofes  a  very 
clear  account  of  the  proceeding  in  a  writ  of  right  for  reco- 
very of  land.     The  fourth  book  is  upon  rights  of  advow- 
fon,  and  the  legal  remedies  relating  thereto.     The  fifth  is 
upon  actions  to  vindicate    a  man's  freedom  ;   the  fixth, 
upon  dower.     The  feventh  contains  very  little  concerning 
a£i:ions  •,  but  confiders  the  fubje6^s  of  alienation,  defcent, 
fuccefhon,  and  teflaments.     The  eighth  is  upon  final  con- 
cords i     the   ninth,   upon   homage,    relief,   and   fervices  -, 
the  tenth,   upon  debts,   and  matters  of  contrail;   and  the 
eleventh,  upon  attornies.      Having  thus  difpofed   of  ac- 
tions commenced  originally  in   the   curia   regis,    in   his 
twelfth  book  he  treats  of  writs  of  right  brought  in  the 
lord's  court,   and    the  manner  of  removing   them   from 
thence  to  the  county  court  and  curia  regis ;  which  leads 
him  to  mention  fome  other  writs  determinable  before  the 
(licrifF.     In  his  thirteenth  book  he  fpeaks  of  affifes   and 
difleifins.      The  lafl   book   is  wholly   upon   pleas  of  the 
crown. 

The 


CONQi'EROR 


222  H  I  S  T  O  R  Y      O  F     T  H  E 

CHAP.  IV.         The  fubje£l  of  this  treatife  is  all  along  illuflrated  with 
wii  I  T\M      ^^^  forms  of  writs  ;  a  fpecies  of  learning  which  was  then 
ii">^  new  ;  was,  probably,  brought  into  order  and  confiflency  by 

Glanville  himfelf ;  and  firfl  exhibited  in  an  intelligible  way, 
J  ^  '^  ^''       and  with  fvftem,  in  this  book. 

The  method  and  (lyleof  this  work  feem  very  well  adapt- 
/    cd  to  the  fubjecl  :   the  former  opens  the  matter  of  it  in  a 
natural  and  perfpicuous  order  ;   while  the  latter  delivers  it 
with  fufficient  fimplicity  and  clcarnefs.     The  latinity  of 
it,  however,  may  not  fatisfy  every  tafte  ;  the   claflic   ear 
revolts  at  its  ruggednefs  ;   and  the  curfory  reader  is  per- 
petually impeded  by  a  new  and  harfli  phrafeology.     But 
the  language  was   not  adopted   without   defign  ;    the  au- 
thor's own  account  of  it   is  this  :  Jlylo   vulgaris  et  verbis 
cuvialibus  utenSy  ex  itidi/JIr'idy  ad  tiofitiam  comparatidam  eisy 
qui  hujiijmod'i  vulgaritate  minus  funt  exercitati  ".     The  au- 
thor feems  not  to  be  difappointed  in  his  defign  even  at  this 
diflance  of  time ;  for  a  perfon  who  reads  the  book  thro',  can- 
not fail  of  finding  in  one  place  an  explanation  of  fome  diffi- 
culty he  may  have  met  with  in  another :  the  recurrence  of 
the  fame  words  and  modes  of  fpeaking  makes  Glanville  his 
own  interpreter.     When  the  (lyle  of  Glanville  is  maftered 
in  this  way,  it  will  appear  that  many  obfcure  fentenceshave 
been  rendered  fuch,  through  too  great  an  anxiety  to  exprefs 
the  author's  meaning ;  and  perhaps  it  will  not  be  an  affec- 
tation of  difcernment  to  fay,  that  the  plain  Englifh  which 
it  is  thus  attempted  to  convey,  may  be  {<itt\\  through  the 
aukward  drefs  which  this  Latinifl  has  fpread  over  it. 

If  Glanville  confines  himfclf  to  a  part  only  of  our  law, 
he  treats  that  part  with  fuch  concifenefs,  and  fometimes  in 
fo  defultory  a  way,  that  his  book  is  to  be  looked  upon  ra- 
ther as  a  compendium  than  a  finiftied  traft ;  notwithfland- 
ingf  which,  it  mud  be  confidered  as  a  venerable  monument 
of  the  infant  Hate  of  our  laws  ;  and  as  fuch  will  always 
find  reception  with  the  juridical  hiilorian,  when  thrown 
afide  by  the  pra£lifing  lawyer. 

"  Prolog,  ad  finena. 

It 


ENGLISH      LAW. 


223 


It  has  been  a  general  perfuafion,  that  the  writer  of  this  chap.   w. 

hoo\i  •w?i%  Ramilpkus  de  Glanvilldy   who  was    great  jufti-  ^^J\\\  iav* 

ciary  to  Henry  II.     This  great  officer,  though  at  the  head  ff^e 
of  the  law,  united  in  himfelf  a  political  as  well  as  a  judi 


1- 


CONQliEROR 


cial  chara61er;  and,  it  feems,  that  Ghnville  wag  likewife  a  J  ^  ^^  '^■ 
military  man,  for  he  led  the  king's  armies  more  than  once, 
and  was  the  commander  who  took  the  king  of  Scots  pri- 
foner.  It  might  therefore  be  doubted,  whether  a  perfon 
of  this  defcription  was  likely  to  be  the  author  of  a  law- 
treatife  containing  a  detail  of  the  practice  of  courts  in  con- 
du(^ing  fults.  There  was  a  Ranulphus  de  Glanvilld  who 
was  a  juilice  itinerant  %  and  who,  ic  is  faid,  was  a  juRice 
in  the  king's  court  towards  the  clofe  of  this  reign.  If 
the  author  was  really  of  this  name,  it  may  be  doubted 
whether  he  was  not  the  latter  of  thefe  two  perfons.  Per- 
haps, after  all,  this  work  might  be  written  by  neither,  but 
may  be  afcribed  to  the  great  judiciary  for  no  other  reafon 
than  becaufe  he  prefided  over  the  law  at  the  time  it  was 
written,  and  might  be  the  promoter  of  the  work,  and  patron 
to  its  author.  Whatever  doubt  there  may  be  concerning 
the  author,  there  is  no  qucftion  but  it  was  written  in  the 
reign  of  Henry  II.  there  are  many  internal  marks  to  prove 
it  to  be  of  that  period  ;  and  from  one  paflage,  it  feems  to 
have  been  written  ^  after  the  thirty-third  year  of  that  king. 
If  Clan v  111c  is  the  earliell  writer  in  our  law,  from  whom 
any  clear  and  coherent  account  of  it  is  to  be  gotten;  this 
book  is  alfo  faid  to  be  the  firft  performance  that  has  any 
thing  like  the  appearance  of  a  treatife  on  the  fubje£l:  of  ju- 
rifprudence  fince  the  dlflblutlon  of  the  Roman  empire  ^ 

When  this  book  is  confidered  with  a  view  to  the  pro- 
grefs  of  our  law,  it  makes  a  remarkable  event  in  the  hiflory 
of  the  new  jurifprudence.  Notwithftandlng  the  attempts 
of  William  the  Conquefor  to  introduce  the  Norman  laws, 

y  Vld.  Lcc:.  Ang.  Sax.  the    crown    in    1 1 54,    and    Clanvillc 

*  C;Unv.  lib.  8.  t.  a.  3.  being   written   after  the   thirty-third 

»  Bair.  Ant.  Stat,    This  i*  nottruc  year  of  his  icign,   could   not  appear 

if  the  /^cTrc'/ziw  i?  to  he  conlule-ffd  as  till    I187.      Now    ihc  Deaa/um    was 

a    iicatilcj   foi    Ilvury    11.   '.amc  to  pviblifhcd  b)  G.atian  in  1 149. 

and 


224  /  H  I  S  T  O  R  Y      O  F      T  H  E 

CHAP.  IV.     and  the  tendency  in  the  luperlor  courts  to  encourage  every 
^'^''''"^'^7'***^^     innovation  of  that  kind,  not  much  had  yet  been  done  of  a 

WILLIAM  ,  r  1  1  • 

the  pubHc  and  authoritative  nature  to  confirm  that  law  ni  op- 

CONQ^^LROR  pofjtioj,  to  the  Saxon  cuftoms.  The  laws  of  William,  ex- 
JOHN.  cepting  thofe  concerning  tenures  and  the  duel,  were  in  the 
fpirit  and  Ryle  of  the  Anglo-Saxon  laws;  the  fame  maybe 
faid  of  thofe  which  go  under  the  name  of  Henry  I.  It  is 
obferved,  that  the  Conftitutions  of  Clarendon,  made  about 
the  eleventh  year  of  Henry  II.  are,  in  the  fcope  of  them,  as 
well  as  the  (lyle  and  language,  more  entirely  Norman,  than 
any  laws  or  public  atls  from  the  Conqueft  down  to  that 
time  ^.  It  was  not,  then,  till  the  reign  of  this  prince  that 
the  Norman  law  was  completely  fixed  here ;  and  when  it 
was  firmly  ellabliflied  by  the  praclice  of  this  long  reign, 
and  had  received  the  improvements  made  by  Henry,  then 
was  thisfliort  tra£l  drawn  up  for  public  ufe.  It  is  probable 
this  was  done  at  the  king's  command,  in  order  to  perpetuate 
the  improvement  he  himfelf  had  made,  and  to  efFecTt  a  more 
general  uniformity  of  law  and  pra6llce  throligh  the  king- 
dom. The  work  of  Glanville,  compared  with  the  Anglo- 
Saxon  laws,  is  like  the  code  of  another  nation  ;  there  is  not 
the  lead  feature  of  refemblance  between  them. 

While  the  Norman  law  waseftablilhing  itfclf  here,  that 
nation  gradually  received  an  improvement  of  their  own 
polity  from  us.  The  two  nations  had  fo  incorporated 
themfelvcs,  that  the  government  of  both  was  carried  on  up- 
on the  like  principle,  and  the  laws  of  each  were  reciprocally 
communicated ;  a  confequence  not  at  all  unnatural,  while 
both  people  were  governed  by  one  prince.  Much  more 
had  been  done,  of  late,  in  this  country  than  in  Normandy, 
for  the  promotion  of  legal  fcience.  It  v/as  not  till  after 
the  publication  of  Glanville,  and  even  of  Bra^lon  and 
Britton,  tliat  the  Normans  had  any  treatife  upon  their 
law.    One  was  at  length  produced  in  the  Grand  Cot»/}uniier 

^  Mad.  Excb.  123, 

-      •  "f 


ENGLISH      LAW.  225 

of  Normandy^  \  a  work  fo  like  an  Engllih  performance,  that  chap.  iv. 
fhould  there  remain  any  doubt  of  Its  being  formed  upon  our  vv  '  l  L I  a  M 
motlels,  there  can  be  none  of  the  ereat  fimllarity  between  the 

.      ,  r    ^  ■  1  •      •  CONQUEROR 

the  laws  or  the  two  nations  at  this  time.  to 

There  are  fome  antient  treatifes  and  fbatutes  in  the  J  o  *^  N. 
law  of  Scotland,  which  bear  a  (lill  nearer  refemblance  to 
our  Englifh  law.  The  clofe  agreement  between  Glanville 
and  the  Regiam  Majeflatem  leaves  no  room  to  doubt  that 
one  is  copied  from  the  other*,  though  the  merit  of  originality 
between  them  has  occafioned  fome  difcuflion.  An  EfTay 
has  been  written  exprefly  on  this  fubje^l,  In  which  it  is  faid 
to  be  clearly  proved,  by  the  Internal  evidence  of  the  two 
books,  that  Glanville  is  the  original.  It  is  obferved  by 
that  writer,  that  Glanville  is  regular,  methodical,  and  con- 
fiflent  throughout ;  whereas  the  Regiam  Alajejlaietn  goes 
out  of  Glanville's  method  for  no  other  aiTignable  reafon 
than  to  difguife  the  matter,  and  Is  thereby  rendered  con- 
fufed,  unfyftematlcal,  and,  in  many  places,  contradlcSlory**. 
To  this  obfervation  upon  the  method  of  the  Regiam  Ma- 
jejlatem  it  may  be  added,  that,  on  a  comparifon  of  the 
account  given  of  things  in  that  and  in  Glanville,  it  plainly  v 

appears,  that  the  Scotch  author  is  more  clear,  explicit, 
and  defined ;  and  that  he  writes  verv  often  with  a  view  to 
explain  the  other,  in  the  fame  manner  in  which  the  -waiter 
of  our  Fleta  explains  his  predecellor  BraCton.  This  is 
remarkable  in  numberlefs  Inflances  all  through  the  book, 
and  is  perhaps  as  decifive  a  mark  of  a  copy  as  can  be.    The 

*  The  Coufiumier  of  Nonrtandj^  ac-  buted  to  fome  ether  cauf;  ihiyi  ^^^'H 

Cording  to  Bafnagc,  could   not  have  a  I'mall  fpace  o*"  time  as  could  by  any 

been  compofed  till  the  rclgn  of  Phi-  pjdibility     inteivenc     between     the 

lip  the    Hardy,    who   came   to   the  writing  of  thcfe  two  book<:,     Oeu^/res 

throne  in  127a,   and   reigned  fifteen  de  Htnri  BafragCy  Avert ijfement. 
years;   and  our  Edward  I.   came    to  **  The    EiTay   here   alluded    to    is 

the    throne    in     layz.       Upon    this  written  by   Mr.  Davidion,  of  Edin- 

ftatement  of  datee,   it  is  poffible  that  burgh.    OfthisTraft  I  have  not  been 

it  might  be  written  after  the  time  of  able  to  get  a  fight,  and  am  oMiged  to 

Britten.   The  language  fecms  to  have  the    preface    to    the   new  edition  of 

a  more  modern  form  than  that   of  Glanville'for  this  account  of  it. 
Bi  itton  •,  though  thi;;  mult  be  attri- 

VoL.  L  R  other 


226  H  I  S  T  O  R  Y    O  F    T  H  E 

CHAP.  IV.    other  Scotch  laws,  which  follow  the  Regiam  Majejlatcm  in 
WiLl  iAM       Skene's  colkclion^   contribute  greatly  to  confirm  the  fuf- 

tfi^  picion.     Thefe,   as  they  are  of  a  later  date    than  feveral 

CONQUEROR    1,        .^    „  r      .  •        i 

lo  Englifli  ftatutes  which  they  refemole,  muil  oe  admitted  to 

J  '       be  copied  from  them  ;  and  fo  clofely  are  the  originals  fol- 

lowed, that  the  very  words  of  them  are  retained.  This  is 
particularly  remarkable  of  the  reign  of  Robert  II.  in  which 
is  the  itatute  (luia  ewptores,  and  others,  plainly  copied  from 
pur  laM'^s,  without  any  attempt  to  conceal  the  imitation. 
Thefe  laws,  at  lead,  can  impofe  upon  no  one  \  and  when 
viewed  with  the  Regiatri  Majejlatem  at  their  head,  and 
compared  with  Glanville  and  the  Englifli  ftatute-book, 
they  feem  to  declare  very  intelligibly  to  the  world,  that  this 
piece  of  Scotch  jurifprudence  is  borrowed  from  ours=. 

The  Ri'giam  Majejlatem  is  fo  called,  becaufe  the  volume 
opens  with  thofe  words :  the  prologue  to  Glanville  begins 
Regiam  PoteJJatem,  This  whim  of  imitation  is  difcoverable 
among  our  own  writers.  Fleta  begins  his  Prcoemium  in  the 
fame  way,  and  goes  on,  for  feveral  lines,  copying  word 
for  word  from  Glanville.  Indeed,  the  leading  idea,  in  all, 
is  taken  from  the  Prouemium  to  Juflinian's  laftitutes. 

*   It  fe?ms  nnneceffsry  to  contend  pcrfocs    of  proftfllonal    learning    to 

io\  \.ht  or\g\n^\\iy  o\  xh^  Regicm  Ma-  be    part   o'i  their   law   and   cu!tom«» 

jejiatcmy  while  a  dov'.bt  of^  much  more  anti  ihould  be  as  pofitiv«-ly  rejc<£Ved 

importance    remains   unfctlled  ;    tliis  hv  ottiers,    is  a  vcrv  fingular  contro- 

if^,   whether  that  tr^atifc,   as  well   as  vcrfy    in    the   juiidical    hi'.lory   of  a 

the  others  in  the  pu'ulication  of  (S-JfK?,  coujitry  ;  nor  is  it  lefs  ilnt;ular,  that 

are  now,  or  ever   were,   any  part  or'  thi-  volume  Should  bear  I'uch  a  clofe 

the    law    of    Scotland.       ^[lon     this  fimiJitUtle    y/ich    certain    liws    of   a 

point,    fome    of   the    moft    eminent  neighbouring  fiate,  whon*  legiflatiirc 

Scotch  lawyers  ar-  divided.    We  find  had  no  power  lo  give  it  fanilion  and 

Craig  and   Lord  S-dr  very   explicit  authority.      V/hile  a  fad  o""  thi';  fort 

in    their  declarations     againfl;    thefe  continues  unaroeiia  ned,   the  hiftory 

Ijws,   as  a  fabiication,   and   palpable  of  the  law   of  Scotland   mull  be   in- 

impofition  ;     on     the     other     hand,  volved     in     great     obfcuriiy.        See 

Skstte  the   editor  is  foliowed,    among  Cfaigii    Inft.    Feud.    lib.    i.    tit.    8. 

others,  hy  Erfiim,  Lord  Kaiv.s^   and  fcc^.    7.      Staii's  Inli.    fo.   3.    tit.  4. 

Dalrymple^    who  coniiiiually  refer  to  fed.  27,     Skene's  Preface  to  the  Re- 

them,  as  compiizin?  the  genuine  law  giam  Majeftatem.     Erfklne's  Princ. 

o\  Scotland   informer   times.     That  Kaim's    H  florical  Law  Trads  ;  and 

a  large   voluire    of  laws,    and    law  Dalrymplc's    Feudal    Property   paj- 

trcatifcs,   (hould  be  pronounced  by  ftm. 

The 


ENGLISH      LAW.  say 

The  law-language  of  thefe  times  was  Latin  or  Frenchy  chap.  iv. 
but  more  commonly  the  former.  The  only  laws  of  this  ^vn^i^l^^f^ 
time  now  fuhfifting  in  Norman-French,  are  thofe  which  ^^^ 

compofe   the  firil   coIlc(Stion  of  William   the   Conqueror,  lo 

All  the  other  laws  from  that  time  to  the  time  of  Edward  L       •' 
are  in  Latin.     There  are  fome  few  charters  of  .the  firll 
three  Norman  kings  which  are  either  in  Anglo-Saxon  or 
in  Latis,  with  an  Englifh  verfion ;  of  which  fort  there  are 
feveral  now  remaining   in  the  Gottonian  and  other  col-    ■ 
led  ions  ^ 

Without  doubt  the  Norman  laws  of  William  were 
proclaimed  in  the  county  court  in  Anglo-Saxon,  for  the 
information  of  the  Englifli,  who  ftill  continued  to  condutfb 
bufinefs  there  in  their  own  language,  as  they  did  in  all  in- 
ferior courts;  but  in  the  curia  regis  and  ad fcaccarium 
William  obliged  them  to  plead  in  the  Norman  tongue,  as 
moll  confiftent  with  the  law  .there  difpenfed,  and  that 
which  was  bell  underftood  by  the  juftices.  However,  not- 
withftanding  this  language  was  ufed  in  pleading  and  arpu- 
mcnt,  all  proceedings  there,  when  thrown  into  a  record, 
were  inroUed  in  a  more  durable  language,  the  Latin.  This 
was  the  language  in  which  all  writs,  laws,  and  charters^ 
whether  public  or  private,  were  drawn  :  fo  that  the  Nor- 
man tongue  was  of  novextenfive  ufc  here;  nor  was  it  till 
the  time  of  Edward  I.  that  French  became  of  common 
ufe  in  the  laws,  parliamentary  records,  and  law-books ; 
and  this  was  not  the  provincial  dialecl  of  Normandy,  but 
the  language  of  Paris.  • 

It  is  believed  that  few  were  learned  in  the  laws  before   Mlfctilaneous 
the  Conqueft,  except  the  clergy.     The  warlike  condition 
in  which  that  people  lived,  and  the  extreme  ignorance  which 
univerfally  prevailed  among  the  laity,  left  very  little  ability 
for  the  management  of  civil  aftairs  to  any  but  the  clergy, 

who  poffeflcd  the  only  learning  of  the  times ;  in  the  reign 

• 

f  Tyrrell,   v.  lol. 

^^  2  therefore 


228  HISTORYOFTHE 

» 

CHAP.   IV.    therefore  of  the  Conqueror,  in  the  great  caufe  between 
WILLIAM     Lanfranc  and  Odo  bifliop  of  Baieux,  it  was  Agelric  bifliop 

the  of  Chichefler  to  whom  they  looked  for  direction.     He  was 

CONQL^EROR    .  .        r  •  -.      <.     -  i-  -/in 

to  brought,  lays  an  antient  writer  %  \n  a  chariot,  to  inltrutt 

JOHN.       them  in  the  antient  laws  of  the  kingdom,  ut  legum  tei'ra: 
fapierit'ijfimus.     It  was  the  fame  long  after  the  Normans 
fettled  here. 

In  the  time  of  Rufus,  one  Alfwin,  reclor  of  Sutton, 
and  feveral  monks  of  Abingdon  were  perfons  fo  famous 
for  their  knowledge  in  the  laws,  that  they  were  univerfally 
confulted,  and  their  judgment  frequently  fubmitted  to  by 
perfons  reforting  thither  from  all  pans'*.  Another  clergy- 
man, named  Ranulphy  in  the  fame  reign  obtained  the  cha- 
racter of  inviBus  caujtdictis.  So  generally  had  the  clergy 
taken  to  the  practice  of  the  law,  at  that  time,  that  a  co- 
temporary  writer  fays,  nullus  clericus  mft  caufidicus.  The 
clergy  feem  to  have  been  the  principal  pra£licers  of  the 
law,  and  were  the  perfons  who  mollly  filled  the  bench  of 
juftice. 

S  Texius  Roff,  ^  Dug.  Orig.  p.  zi. 


CHAP. 


ENGLISH      LAW.  ^229 


CHAP.        V. 
HENRY  IIL 

Jllagna  Chart  a — Tenures — Alietiatlon — Morttnain —  Coni' 
munia  Placita  non  fequantiir  Curiam  nojlram — Jujlices  of 
Jijfife'-^ Amercements — Nullus  liber  homoy  isfe. — Pracipe 
in  Capite — Sheriff^s  Criminal  Judicature — The  IVrit  de 
Odio  €t  Atid — Chart  a  de  Fcrejld — The  Judicature  of  the 
Forejl — Punijhments — Charters  confirmed — Statutum  Hi' 
hernia — Statute  of  Merton — Of  Commons — Of  Special 
Bajlardy — Ranks  of  Perfons — Of  Villenage — Of  Free 
Services — Of  Serjeanty — Scufagium — Homage  and  Feal" 
ty — Of  WardJJjip  and  Marriage — Of  Gifts  of  Land — 
hy  whom — to  whom — Of  Sijnple  Gifts — Of  Conditional 
Gifts — EJlates  by  the  Courtefy — Of  Reverfions — Gifts 
ad  Terminum  — JLivery  — Rights  — Teflaments — Eccleft^ 
ajlical  Jurifdiclion  therein — Of  Defcent — De  Partu 
Suppofito — Of  Partition — Dower, 

JtIaVING  travelled  through  the  early  periods  of  CHAP.  v. 
our  law,  through  the  profound  darknefs  of  the  Saxon  ^ENRY  in 
times,  and  the  obfcure  mifl  in  which  the  Norman  confti- 
tutions  are  involved,  we  approach  the  confines  of  known 
and  eftabliflied  law.  In  the  reign  of  Henry  III.  begins 
the  order  of  ftatutes  on  which  legal  opinions  may  be 
founded  with  certainty.  Whatever  ftatutes  were  paiTed 
before  this  reign,  and  whatever  remembrance  we  may 
have  of  them  in  annals  and  hiitories  of  the  time,  they  are 
confidered  as  little  more  than  the  remains  of  antiquity,  that 
illuftrate  indeed  the  enquiries  of  the  curious,  but  add  no- 
thing to  the  body  of  legal  learning.     Magna  Chavtay  and 

the 


230  H  I  S  T  O  R  Y      O  F     T  H  E 

CHAP.  V.  the  flatutes  of  Mcrton  and  Marlbrldge,  paiTed  In  tlils 
^J^^J^^pJ^  reign,  lie  within  the  pale  of  the  Engliih  law,  as  now  un- 
derftood  ;  an4  furnifh  topics  for  argument,  and  grounds 
for  judicial  decifion.  From  this  time,  the  hiftory  of  our 
law  becomes  mors  authentic  and  certain.  The  conftitu- 
tions  now  made,  produced  determined  efFe£ls ;  we  can 
trace  in  what  manner  they  were  afterwards  altered  and 
modified j  can  generally  fix  the  sera  of  fuch  alterations; 
and  can  always  reft  fecure  in  the  probability  of  our  deduc- 
tions, while  we  behold  tl"ie  confequences  of  them  in  the 
prefent  ftate  of  our  law. 

If  the  ftatutcs  furniih  authentic  documents  on  which  wc 
may  rely  with  confidence,  the  grounds  and  principles  of 
the  law  are  inveftigated  and  difcufled  by  an  author  of  this 
reign,  whofe  work  may  be  confidered  as  the  bafis  of  all 
legal  learning :  the  treatife  of  Bracton  will  enable  us  to 
fpeak  decidedly  and  fully  upon  every  title  in  the  law,  whe- 
ther civil  or  criminal.  The  fketch  we  have  juft  given 
from  Glanville  will  now  be  filled  up,  and  its  deficiencies 
fuppHed ;  many  of  the  obfcure  hints,  the  doubts,  and  am- 
biguities with  which  that  author  abounds,  will  be  eluci- 
dated ;  and  the  whole  of  our  law  explained  with  confiftency^ 
and  upon  undeniable  authority.  Thefe  are  the  materials 
from  which  the  juridical  hiftory  of  this  king^s  reign  is  to 
be  collected.  For  the  matter  which  they  furnifh,  it  may 
not  be  raifing  the  expeftations  of  the  reader  too  high,  to 
promife  him  a  full  gratification  of  his  thirft  for  legal  antl« 
quities,  and  the  knowledge  of  judicial  proceedings  in  all 
their  branches.  It  is  rather  to  be  feared,  that  every  one 
may  not  intlrely  aflent  to  the  reafons  which  induced  us  to 
enter  fo  minutely  Into  the  detail  of  things-,  it  is  thought, 
however,  that  it  would  be  Icfs  pardonable  to  give  a  fcanty 
relation,  where  the  fort  of  information  which  is  moll  likely 
to  engage  the  curlofity  of  a  lawyer  depends,  very  often, 
upon  circumftances  and  paffages  apparently  trifling. 

The 


E  N  G  L  I  S  H      L  A  W.  231 

The  reign  of  this  king,  and  the  remainder   of  this     chap 
Hillory,  will  be  divided,  conformably  with  the  nature  of    yi£i>jRY 
the  materials  from  which  it  is  formed,  into  the  alterations 
made  by  flatute,  and  thofe  made  by  ufage  and  the  decifions 
of  courts.     Thefe  two  fources  of  variation  will  be  purfued 
feparately,   and  the  amendments  made  by   either   dated  ' 
diftinclly,  and  by  themfelves.     We  fliall  firll  confider  the 
ftatutes,  and  then  the  decifions  of  courts.     In  the  prefent 
reign,  we  begin  with  Magna  Charta^  9  Hen.  III.  that  be- 
ing the  earlicft  ftatute  we  have  on  record. 

Henry  III.  in  the  firft  year  of  his  reign,  on  the  I2tli 
of  November  12 16,  being  then  ohly  nine  years  old,  by 
the  advice  of  Gualo  the  pope's  legate  and  of  the  earl  of 
Pembroke,  in  the  grand  council  of  the  realm  renewed  the 
Great  Charter  which  had  been  granted  by  his  father,  to- 
gether with  fuch  alterations  and  amendments  as  the  cir- 
cumflances  of  the  times  had  made  necefTary  .  In  the 
September  or  November  following,  a  new  Alagna  Charta 
was  fealed  by  the  pope's  legate  and  the  earl  of  Pembroke, 
with  fevcral  additional  improvements^  at  which  time  the 
claufes  relating  to  the  Forefl  were  firft  dirown  into  a  fepa- 
ratc  charter,  making  the  Charta  de  ForeJId  ^, 

When  the  king  was  declared  ©f  age,  it  was  thought 
that  fo  important  an  a£l  of  his  infancy  as  this,  fliould  be 
confirmed  ;  accordingly,  in  the  ninth  year  of  his  reign  he 
confirmed  the  a6l  of  the  pope's  legate  and  the  earl  of 
Pembroke  j  and  granted  Magna  Charta  and  Charta  de 
ForeJId  in  the  form  in  which  they  had  fealed  it,  and  as  we 
now  have  them  ^ 

Thus  was  the  text  of  Magna  Charta  and  Charta  de 
ForeJId^  after  many  alterations,  finally  fettled  ;  nor  has 
there  in  fucceeding  times  been  any  amendment  made 
therein.  The  folicitude  of  later  ages  was  to  obtain  fre- 
quent confirmations,  and  a  ftridl  obfervance  of  thcfe  grand 

»  2  Bla.  Traas,  li.  Intr.  42,.         ^  \\,\.\^  p.  ^j,  go.         c  ibid.  p.  69. 

pillars 


232  HISTORY      OF     THE 

CHAP,  v.^  pillars  of  our  conllitutlon  ;  by  occafional  interpretations 
HENRY  III.  ^^  explain  any  difficulties  which  might  appear  in  the  con- 
ftruclion  of  them  ;  and  to  enlarge  the  benefits  they  were 
defigned  to  confer.  What  were  the  benefits,  liberties,  and 
advantages  fccured  to  the  people  by  thefc  famous  charters, 
a«d  what  is  the  form  and  flyle  in  which  they  are  conceived, 
it  is  now  our  bufinefs  to  enquire. 

The  copy  of  Magna  Charta  in  our  flatute-book  is 
taken  from  the  roll  of  25  Ed.  I.  and  is  only  an  Infpeximtis 
of  the  charter  of  the  ninth  of  Henry  III.  fo  called  from 
the  letters  patent  prefixed  in  the  name  of  Edward  I.  In- 
SPEXIMUS  Alagnam  Chartatndomhii  Henrici quondam  regis 
Anglia  pair  IS  nojiri  de  lihcrtatihus  Ajiglia^  in  hac  verba. 
Then  follows  Magna  Charta  nearly  in  the  form  of  that 
granted  by  Henry  III. 

Magna  Charta  contains  fifty- feven  chapters,  com- 
pofing  a  rhapfody  of  ordinances  for  the  fettling  or  amend- 
ment of  the  law  in  divers  particulars  at  that  time  anxi- 
oufly  contended  for.  The  whole  is  flrung  together  in  a 
diforderly  manner,  with  very  little  regard  to  the  fubje£t 
matter.  If  we  were  to  judge,  from  the  face  of  the  inftru- 
ment  itfelf,  of  ihe  chief  defign  of  the  barons  in  obtaining 
this  charter,  we  might  be  inclined  to  think,  that  their  great 
obje«£t  was  to  afcertain  the  fervices  and  burthens  arifing 
from  tenures  j  for  the  firft  fix  chapters  are  wholly  confined 
to  that  fubjecl,  and  many  others  relate  incidentally  to  the 
fame  point*,  the  confequence  of  which  is,  that  many  parts 
of  this  famous  charter  have  become  obfolete,  and,  to  a 
modern  reader,  almoft  unintelligible.  Other  parts  of  it, 
however,  are  extremely  worthy  of  notice,  even  at  this 
day;  as  they,  at  the  time,  contributed  to  confirm,  if  not 
cftablifli,  certain  branches  of  our  juridical  conftitution  ; 
and,  what  is  more  important,  to  lay  down  certain  general 
principles,  which  have  had  an  extenfive  influence  on  our 
law  in  all  its  branches  ever  fince  ;  as  our  civil  liberty  and 
private  rights  became  thereby  better  defined,   and  were 

confidered 


ENGLISH      LAW. 

confidcred  as  fettled  on  the  firm  bafis  of  parliamentary 
recognition.  ^  ^^^^^.  „j^ 

To  explain  in  what  manner  this  was  done,  it  will  be  jviagoa  Charu. 
proper  to  ftate  at  length  the  fubftance  of  Magna  Charta  ; 
which  we  (hall  attempt  in  an  order  differing  from  that  in 
which  the  text  appears,  but  which  will,  perhaps,  bring  the 
contents  of  it  into  a  clearer  light  than  the  original  appears 
in.  We  {hall  firll  fpeak  of  fiich  provifions  as  arc  of  a  more 
general  or  mifcellaneous  nature  ;  then  of  thofe  which  relate 
to  tenures  and  property ;  after  which  will  follow  the  regu- 
lations ordained  for  the  adminiftration  of  juflice. 

Th  e  addrefs  and  general  preamble  to  the  charter  are  de- 
ferving  notice,  as  they  (hew  the  form  in  which  thefe  folemn 
a£ls  were  ufually  authenticated :  it  is  addrefled  in  the  name 
of  the  king.  **  To  all  archbifliops,  bifhops,  abbots,  priors, 
**  earls,  barons,  fherifFs,  provofts,  officers ;  and  to  all  bai- 
**  lifFs,  and  other  our  faithful  fubje^ls,  who  fliall  fee  this 
"  prefent  charter,  greeting.  Know  ye,  that  we,  unto  the 
"  honour  of  Almighty  God,  and  for  the  falvation  of  the 
"  fouls  of  our  progenitors  and  fucceflbrs  kings  of  England, 
**  to  the  advancement  of  holy  church,  and  amendment  of 
"  our  realm,  of  our  mere  and  free  wilH,  have  given  and 
"  granted  "-  to  all  archbifhops,  bifliops,  abbots,  priors,  earls,  ■ 
"  barons,  and  to  all  freemen  of  this  our  realm,  thefe  liber- 
"  ties  following,  to  be  kept  in  our  kingdom  of  England 
"  for  ever." 

Such  is  the  manner  in  which  the  provifions  of  Magna 
Charta  are  introduced  ;  after  which  comes  the  firft  chap- 
ter, containing  a  general  grant  in  the  following  terms : 
"  Firit,  we  have  granted  to  God,  and  by  this  our  prefent 
**  charter  have  confirmed,  for  us  and  our  heirs  for  ever, 
"  that  the  church  of  England  fhall  be  free,  and  fhall  have 
"  all  her  whole  rights  and  liberties  inviolable.  We  have 
"  granted  alfo  and  given  to  all  the  freemen  of  our  realm, 

*   Sf'ontanei  et  bortu  lo/unfate  ncRra.  *  DcJimui  et  oncejpm-is. 

"  for 


234  HISTORYOFTHE 

CHAP.  V.     *<  for  us  and  our  heirs  for  ever,  thefe  liberties  under- 
HENRY  111.    "  written,  to  have  and  to  hold,  to  them  and  their  heirs,  of 
**  us  and  our  heirs  for  ever.'*     What  thefe  liberties  were 
we  (hall  now  enquire. 

It  was  ordained,  that  the  city  of  London  fhall  have  all 
the  ancient  liberties  and  cuftoms  which  it  had  been  ufed  to 
enjoy ;  and  that  all  other  cities  and  towns,  and  the  barons 
of  the  cinque  or  other  ports,  (liould  poflefs  all  their  liber- 
ties and  free  cuiloms  ^  As  many  exa£lions  had  been  made 
during  the  reigns  of  Richard  and  John  for  erecting  bul- 
warks, fortrefles,  bridges,  and  banks,  contrary  to  law  and 
right ;  it  was  declared,  that  ^  no  town  or  freeman  {hould 
be  diftrained  to  make  bridges  or  banks,  but  only  thofe  that 
were  formerly  liable  to  fuch  duty  in  the  reign  of  Henry  II.  a 
period  which  was  often  referred  to,  as  an  example  for  cor- 
rection of  enormities,  and  the  due  obfervance  of  the  laws. 
For  the  fame  reafon,  none  were  to  appropriate  to  them- 
felves  a  fevcral  right  in  the  banks  of  rivers,  fo  as  to  ex- 
clude others  from  a  paflage  there,  or  from  iifliing,  except 
fuch  as  had  that  right  in  the  reign  of  Henry  II  ^.  All  weirs 
in  the  Thames  and  Medway,  and  all  over  England,  were 
to  be  deftroyed,  except  fuch  as  were  placed  on  the  coall  ^ 
One  ftandard  of  weights  and  meafurcs  was  cftabliflied  ^ 
throughout  the  kingdom. 

A  PROVISION  was  made  refpecling  merchant-flrangers, 
which  evinces  how  very  early  a  regard  was  had  to  the  inte- 
refts  of  trade.  Before  this,  it  fhould  feem,  that  merchant- 
ftrangers,  though  in  amity,  ufed  to  be  laid  under  certain 
prohibitions ' ;  for  it  was  now  provided "",  that  all  mer- 
chants, unlefs  they  were  before  publicly  prohibited,  fliould 
have  fafe  and  fure  conduft  in  the  feven  following  inflances : 
I  ft,  to  depart  out  of  England;  adly,  to  come  into  Eng- 


*  Mag.  Chait.  ch.  9. 

»^  Ch.  25. 

s  Ch.  IS. 

^  z  Inlt.  57. 

fa  Ch.  16. 

««  Ch.  30. 

»  Ch.  13. 

land 


ENGLISH      LAW. 


235 


land;  3 dly,  to  tarry  here ;  4thly,  to  go  through  England,  CHap.  v. 
as  well  by  land  as  by  water  ;  5thly,  to  buy  and  fell ;  6thly,  ™!]^y 
without  any  manner  of  evil  tolls ;  7thly,  by  the  old  and 
rightful  cuftoms.  But  this  was  only  while  their  fovereign 
was  in  amity  with  our  nation ;  for,  in  time  of  war,  mer- 
chant-ftrangers,  being  enemies,  who  were  here  at  the  be- 
ginning of  the  war,  were  to  be  attached,  without  harm  of 
their  body  or  goods,  till  it  was  made  known  to  the  king  or 
his  chief  jufticiar  "  how  our  merchants  were  treated  in 
the  enemy*s  country,  and  they  were  to  be  dealt  with  accord- 
ingly. 

These  are  the  provifions  of  the  Great  Charter  that  arc 
net  eafily  reducible  to  any  of  the  following  heads,  to  which 
we  are  now  proceeding.  We  (hall  firft  fpeak  of  the  regu- 
lations relating  to  tenures.  If  any  earl,  or  baron,  or  other 
perfon  holding  of  the  king  in  chief  by  knight  fervice,  died, 
and  at  the  time  of  his  death  his  heir  was  of  full  age,  it  was 
ordained,  that  he  fliould  have  his  inheritance  upon  paying 
the  old  relief ;  that  is,  the  heir  of  an  earl  was  to  pay  for  his 
earldom  lool.  the  heir  of  a  baron  for  his  barony  100  marks, 
and  the  heir  of  a  knight  100  (hillings  for  every  knight's  fee; 
and  fo  in  proportion  °. 

Notwithstanding  thefe  reliefs  of  baronies  and  earl- 
doms are  called  the  old  relief,  we  have  before  feen,  that  in 
the  time  of  Glanville  fuch  reliefs  were  not  fixed  by  law,  but 
depended  on  the  pleafure  of  the  prince,  and  therefore  mufl 
have  been  a  ground  of  continual  difcontent ;  the  knight's 
relief  here  prefcribed  is  the  fame  as  it  was  in  Glanville's 
time  P. 

In  cafes  where  the  heir  was  within  age  at  the  death 
of  his  anceflor,  it  was  provided  "^j  that  the  lord  fiiould 
not  have  the  ward  of  him,  nor  of  his  land,  before  he 
had  taken  homage  of  him.  This  was  in  confirmation 
of    the    common    law  ftated   by    Glanville  ',  and    was 

'^  Caf'ilali  jujiiciarti  njlro.  i  Ch.  3. 

o  Ch.  2.  *  Vid.  ant.  1x9. 

I' Vid.  ant.  117. 

now 


ZS6  HISTORYOFTHE 

CHAP.  V.     now  enabled  for  better  fecurity  of  heirs  againfl  their  lords ; 

HENRY  III  namely,  that  before  the  lord  fliould  have  benefit  of  the 
wardfhip,  he  fhould  be  bound  to  two  things  :  ift,  to  war- 
rant the  land  to  the  heir  j  2dly,  to  acquit  him  from  fervicc, 
and  other  duties  to  be  done  and  paid  to  all  other  lords*,  both 
which  the  lord  was  bound  to  do,  if  he  had  accepted  homage 
of  his  tenant.  It  was  moreover  declared,  in  confirmation 
likewife  of  the  common  law,  that  when  fuch  a  v/ard  came 
of  age,  that  is,  to  twenty-one  years,  he  fhould  have  his  in- 
heritance without  relief,  and  without  fine.  Notwithftand- 
ing  fuch  heir  within  age  was  made  a  knight,  and  fo  might 
be  judged  fit  to  do  the  fervice  of  a  knight  himfelf,  it  was 
provided,  that  though  this  might  difcharge  his  perfon  from 
ward,  yet  his  land  fliould  remain  in  the  cuftody  of  his  lord 
till  he  came  of  ajje  ^. 

The  obligation  to  rcftore  the  inheritance  to  the  heir, 
without  deftru<flion  or  wafle,  was  afcertained  more  pre- 
cifely,  though  in  the  fpirit  of  the  old  common  law  ^  It 
was  enjoined ',  that  the  keeper  of  the  land  (that  is,  the  guar- 
dian of  fuch  an  heir  within  age)  fliould  only  take  reafonable 
ifiues,  and  reafonable  cufl;oms  and  fervices,  without  making 
deftrucStion  and  waRe  of  his  men,  his  villains,  or  his  goods. 
Where  a  committee  of  the  cuftody  of  the  king's  ward,  whe- 
ther he  was  the  flieriif,  as  was  then  ufual,  or  any  c;Lher 
perfon,  was  guilty  of  wafle  or  deflru£lion,  he  was  to 
make  rccompence  ;  and  the  land  was  to  be  committed  to 
two  difcrcet  men  of  that  fee,  who  were  to  account  for  the 
ilTues.  Likewife,  where  the  king  gave  or  fold  the  cufl:ody, 
and  'v^afte  was  done,  the  cuftody  was  to  be  forfeited,  and 
to  be  committed  to  two  perfons  of  that  fee,  as  before  men- 
tioned. It  was  alfo  directed,  that  thofe  who  had  the  cufto- 
dy of  the  land  of  fuch  an  heirS  fliould,  out  of  the  ifiiies 
and  profits  thereof,  keep  up  the  houfes,  parks,  warrens, 
ponds,  mills,  and  other  things  appertaining  to  the  land, 

•i  Mig.Chatl.  ch.  3.  *C!i.4. 

'  Vid.  ant.  114,  1 15.  *  CI..  5, 

and 


ENGLISH      LAW. 


237 


and  fliould  deliver  to  the  heir,  when  be  came  of  full  age,  CHAP.  v. 
all  his  land,  ftored  with  ploughs  and  other  implements,  at  ^^^^^"3**^^/ 
leafl;  in  as  good  condition  as  he  received  it  in.  It  was  pro- 
vided, that  all  the  above-mentioned  regulations  fhould  be 
obferved  in  the  cuftody  of  archbillioprics,  biflioprics,  abbfes, 
priories,  churches,  and  dignities  vacant  that  belonged  to  the 
king ;  with  this  exception,  that  the  cuftody  of  thein  was  ne- 
ver to  be  fold.  As  to  abbies  not  of  the  king's  fonnda- 
tion,  it  was  declared  ',  that  the  patrons  of  them,  if  they  had 
the  king's  charters  of  advowfon,  or  had  an  ancient  tenure 
or  polTeflion,  were  to  have  the  cuftody  of  them  during  their 
vacancy. 

In  addition  to  thefe  provifions  it  was  moreover  declared, 
as  it  had  been  before  held  at  the  common  law,  that  heirs 
fliould  be  married  without  difparagement  ^. 

Several  abufes  of  purveyance  as  well  as  of  tenures  were 
removed  or  corre£l:ed.     No  conftable  of  a  caftle  or  bai]ifF« 
was  to  take  corn  or  cattle  of  any  one  who  was  not  an  inha- 
bitant of  the  town  where  the  caftle  was,  but  was  to  pay  for 
the  fame ;  and  even  if  the  owner  was  of  the  fame  town,  it 
was  to  be  paid  for  in  forty  days.     No  conftable  of  a  caftle 
was  to  diftrain  a  knight  to  give  money  for  keeping  caftle- 
guard,  if  he  would  do  it  in  perfon,  or  caufe  it  to  be  per- 
formed by  fome  other  who  was  able,  and  he  could  ftiew  a 
reafonable  excufe  for  his  own  omifTion;  if  a  perfon  liable  to 
caftle-guard  was  in  the  king's  fervice,  he  was,  for   the 
time,  to  be  free  from  caftle-guard  /.     No  ftieriff"  or  bailiff 
of  the  king  was  to  take  any  horfes  or  carts  for  the  king's 
ufe  but  at  the"  old  limited  price ;  i.  e.  fays  the  ftatute,  for 
a  carriage  and  two  horfes,  lod.  per  day-;  for  three  4iorfes, 
1 4d.  per  day  :  the  demefne  cart,  however,  or  fuch  as  was 
for  the  proper  and  neceflary  ufe  of  any  ecclefiaftical  perfon, 
or  knight,  or  any  lord,  about  his  demefne  lands,  was  to 

«  Maj.  Char.  ch.  33.  =^  Ch.  19. 

•  Ch.  6.  Vid.  ant.  116.  '^  Cli  ao. 

remain 


23S  HISTORYOFTHE 

CHAP.  V.     remain  exempt,  as  had  been  by  the  ancient  law.     Again, 
,,r,.T«,,  TTT     neither  the  kine  nor  his  bailiffs  or  officers  were  to  take  the 

HENRY    111.  *^ 

wood  of  any  perfon  for  the  king's  caftles,  or  other  necef- 
faries  to  be  done,  but  by  the  licence  of  the  owner  ^  Thefe 
limitations  upon  ferviccs  of  tenure  and  upon  purveyance 
were  great  benefits  to  the  fubje6l,  and  fo  far  protected  him 
againft  thefe  arbitrary  claims. 

Certain  declarations  were  made  as  to  the  nature  of 
tenure,  in  fomc  inftances.  The  king's  prerogative  in  cafes 
of  ward  was  declared  in  the  following  manner.  If  any 
held  of  the  king  in  fee-farm  ^,  or  by  foccage,  or  in  burgage, 
N  and  held  lands  of  another  by  knight's  fervice,  the  king  was 
not,  by  reafon  of  fuch  fee-farm,  foccage,  or  burgage-tenure, 
to  have  the  cuflody  of  the  heir,  nor  of  the  land  holden  of 
the  fee  of  another  j  nor  was  he  to  have  the  cuftody  of  fuch 
fee-farm,  foccage,  or  burgage,  except  knight's  fervice  was 
due  out  of  the  faid  fee-farm  ;  nor  was  the  king,  by  occafion 
of  any  petit  ferjeanty,  by  a  fervice  to  pay  a  knife,  an  arrow, 
or  the  like,  to  have  the  cuflody  of  the  heir,  or  of  any  land 
he  held  of  any  other  perfon  by  knight-fervice '' ;  all  which 
feem  to  be  only  more  explicit  declarations  of  what  the  com- 
mon law  was  thought  to  be  before  ^» 

It  was  deemed  proper  to  guard  againft  fuch  conclufions 
as  might  be  founded  on  the  above,  or  on  any  other  prero- 
gative,  in  cafe  of  baronies  efchcating  to  the  crown  ;  it  was 
therefore  declared,  that  if  any  man  held  of  an  efcheat, 
as  for  inftance,  of  the  honour  (for  fo  it  was  in  fuch  cafe 
called)  of  W^dlingfordy  Nottirigha?)i,  or  any  other  efcheat, 
being  in  the  king's  hands  and  being  a  barony,  and  died, 
his  heir  fhould  give  no  other  relief  to  the  king  than  he  did 
to  the  baron,  when  it  was  in  his  hands ;  nor  fhould  he  dp 

*  Mag.  Chart,  ch.  ZI.  fame  land  had  been  I<  tt  to  farm. 

*  Th^t    is,    an   inheritance  v/iih  a  "  Ch.  27. 

rent  refervr^H  m  fee,  equal  to,    or  at  c  yid.  ant.  1 15. 

icart  a  fourth  ot  that  for  which  the    • 


any 


E  N  G  L  I  S  H      L  A  W.  239 

any  other  fervice  to  the  king  than  he  fhouU  have  done  to  CHAP.  v. 
the  baron.  The  king  was  to  hold  the  honour  or  barony  as  uj^sjn y  11 1 
the  baron  held  it,  that  is,  of  fuch  eftate,  and  in  fuch  man- 
ner and  form,  as  the  baron  held  it ;  and  he  was  not,  by 
cccafion  of  fuch  barony  or  efcheat,  to  have  any  cfcheat  but 
of  lands  holden  of  fuch  barony ;  nor  any  wardship  of  any 
other  lands  than  what  were  holden  by  knight's  fervice  of 
fuch  barony,  unlefs  he  who  held  of  the  barony  held  alfo  of 
the  king  by  knight's  fervice  in  capite  ^ ;  from  which  it  ap- 
pears, that  he  who  held  of  the  king  muft  hold  of  the  per/on 
of  the  k'wgy  and  not  of  any  honour,  barony,  manor,  or 
feignory  ^. 

These  provifions  about  tenures  were  followed  by  one 
which  was  defigned  for  the  prefervation  of  tenures  in  their 
priftine  vigour  and  importance.  We  have  i^tn  ^  what  altera- 
tion had  gradually  taken  place  in  the  original  ftri£lnefs  with 
which  alienation  of  land  had  been  reftraiaed ;  fo  that  as  the 
law  now  flood  where  the  tenure  was  of  a  common  perfon, 
the  tenant  might  in  many  cafes  make  a  feoffment  of  part 
thereof,  either  to  hold  of  himfelf,  or  of  the  chief  lord.  A 
feoffment  of  the  latter  kind  feemed  no  way  prejudicial  to 
the  lord,  who  ftill  faw  the  land  in  poffeffion  of  a  perfon  who 
was  his  homager  :  but  when  the  tenure  was  referved  to  the 
feoffor,  the  homage,  as  far  as  regarded  that  portion  of  the 
land,  paffcd  from  the  lord  to  the  feoffor.  Thefe  fubinfeu- 
dations,  as  they,  in  a  degree,  ftript  the  mefne  lord  of  his 
abihty  to  perform  his  fervices,  were  found  very  prejudicial 
to  the  obje(i!ls  of  the  feudal  inftitution  ;  a;ad  therefore  the 
following  regulation  was  made  P,  namely,  that,  for  the  fu- 
ture, no  freeman  fhould  give  or  fell  any  more  of  his  land, 
than  fo  as  what  remained  might  be  fufficient  to  anfwer  the 
fervices  he  owed  to  the  lord  of  the  fee. 

In  whs.t  manner  this  prohibition  affe£ted  tenants  in 
capite^  has  been  fomewhat  doubted.  Some  have  held, 
that  the  law  rtever  allowed  tenants  in  capite  to  alien  with- 


•*  Ma?.  Chart,  ch.  31,  '  VI-'.  ant.  43    104,  1'^%- 


cut 


240  HISTORY      OFTHE 

CHAP.  V.     out  a  licence  from  the  king,  and  paying  a  fine :   fome,  that 

HENRY  III  ^^^^^  ^^^^  ^^>  ^^"^  ^^  aliened  without  licence  was  forfeited 
to  the  king.  Others  again  held,  that  the  land,  in  fuch 
cafe,  was  not  forfeited,  but  was  feifed  in  the  name  of  a 
diftrefs,  and  a  fine  was  thereupon  paid  for  the  trefpafs ;  of 
which  latter  opinion  is  lord  Coke.  This  queftion  remained 
undetermined  for  the  fpace  of  one  hundred  years,  when  It 
was  fettled  by  flat,  i  Ed.  III.  c.  12.  which  declares  that  the 
king  fhould  not  hold  fuch  land  as  forfeit,  but  that  a  reafon- 
able  fine  fhould  be  paid  in  the  chancery. 

But  in  the  cafe  of  common  perfons  who  aliened  in  vio- 
lation of  this  prohibition,  the  law  was  different ;  for  it  is 
the  common  opinion,  that  the  a6:  was  interpreted  in  this 
manner  ;  when  a  tenant  aliened  part  of  his  land  contrary 
to  this  aiSt,  the  feoffor  himfelf,  during  his  life,  could  not 
avoid  It ;  but  his  heir,  after  his  deceafe,  might  avoid  it  by 
force  of  this  aft  ;  but  if  the  heir  had  joined  with  his  an- 
ceflor  in  the  feoffment,  or  had  confirmed  it,  neither  he  nor 
his  heirs  could  ever  avoid  it ;  and  if  the  heir  had  entered 
under  the  fanftion  of  this  aft,  the  alienee  of  part  might 
plead,  that  the  fervice  whereby  the  land  was  holden,  could 
be  fulHciently  provided  for  out  of  the  refidue  ;  upon  which 
iiTue  might  be  taken.  There  are  many  precedents  where 
this  provifion  had  been  fo  tried,  before  the  ftatute  of  quia 
gmptoresy  18  Ed.  i.  which  repealed  this  prohibition,  and 
gave  every  one  free  liberty  to  alien  his  land  In  part,  or  in 
the  whole '^j  with  a  refervation  of  the  fervices  to  the  chief 
lord. 

Mortmain.  Otiier  mcans  by  which  the  end  of  tenures  was  de- 

feated, were  alienations  in  mortmain ;  for  in  confequcnce 
of  thefe,  the  military  fervice  decayed,  and  lords  loft  their 
fruits  of  tenure.  Lands  given  to  religious  houfes  continued 
in  an  unchangeable  perpetuity,  v/ithout  defcent  to  an  heir ; 
and  therefore  never  produced  the  cafualties  of  wardfliips, 

^  z  In'X.  66. 

cfcheats. 


E  N  G  L  I  S  H      L  A  W.  241 

cfcheats,  relief,  and   the   like.      On    this  account  many    CHAP.  V. 

landholders  would  infert  a  claufe  in  the  deed  of  feoffment,    henry  ill. 

quod  llcitum  fit  donatori   rem  datam  dare,   vel  vendere  cut 

voluerit)  exceptis  viRisRELiGiosis'.     It  was  now  endea-. 

voured  to  put  a  (top  to  thefe  gifts  by  a  general  provifion ; 

which  was  conceived  in  a  way  beft  calculated  to  meet  the 

devices  then  made  ufe  of  to  elude  the  force  of  reftriftions, 

like  that  juft  mentioned.     It  was  ordained  that  ^  it  fhould 

not,  for  the  future,  be  lawful  for  any  one  to  give  his  land 

to  a  religious  houfe,  and  to  take  back  again  the  fame  land 

to  hold  of  that  houfe ;  nor,  on  the  other  hand,  Ihould  it 

be  lawful  for  a  religious  houfe  to  take  lands  of  any  one, 

and  leafe  them  out  to  the  donor.     Moreover,  if  any  one 

was  convi£led  of  giving  his  land  to  a  religious  houfe,  the 

gift  was  to  be  void,  and  the  land  was  to  accrue  to  the  lord 

of  the  fee.     This  provifion  is  abridged,  and  the  effeft  of  it 

declared  by  the  ilatute  of  mortmain  in  the  next  reio^n  '. 

"  Of  late,"  fays  that  acl,   "  it  was  provided,  that  religious 

"  men  Ibould  not   enter    into  the  fee«  of  any,   without 

*'  licence  and  will  of  the  chief  lord  of  whom  fuch  fees  be 

**  holden   immediately  ;"  bccaufe  if  they    did,    the   lord 

would  claim  them  as  forfeit.     It  is  plain  from  this  chapter 

of  Aiagfia  Charta,  particularly  from  this  expofition  of  it, 

that  gifts  of  land  to  religious  houfes  were  thereby  prohibited 

generally,  that  is,  even  in  cafes  where  the  religious  houfe 

did  not  give  the  land  back  to  hold  of  the  houfe,  but  kept  it 

to  themfelves  in  their  own  hands  '^, 

Among  other  feverities  attending  the  condition  of 
tenures,  that  which  related  to  the  dower  and  marriage  of 
widows  was  not  the  lead.  It  fcems  from  the  following 
palTages,  that  fome  impedunents  were  thrown  in  the  way 
of  their  juft  rights,  which  arc  not  noticed  in  any  docu- 
ment we  have  hitherto  met  with.     It  was  declared,  that  a 

>  Braa.  tol.  13.  '7  E.i.  r. 

^  Ch.  36.  "^  %  Inft.  74,  75, 

Vol.  I.  S  widow, 


242 


HISTORY      OF     THE 

CHAP.  V.  widow",  immediately  after  the  death  of  her  hufband, 
rrrr^f^^^  fliould,  without  any  difficulty,  have  her  maritagium  '^,  and 
inheritance  j  and  fliould  give  nothing  for  her  dower,  her 
marriage,  or, her  inheritance,  which  her  hufband  and  fhc 
held  the  day  of  her  hufband's  death  ;  by  which  mull  be 
meant  fome  eflatc  in  franh-marr'iage^  or  conditional  fee. 
She  was,  moreover,  to  continue,  if  fhe  pleafed,  in  the  chief 
houfe  of  her  hufband,  unlefs  it  was  a  caftle,  for  forty  days 
(called  her  quarantine)  after  his  death  j  within  which  time 
her  dower,  if  not  alfigned  before,  was  to  be  afTigned 
to  her :  and  when  (he  departed  from  the  caftle,  a 
competent  houfe  was  forthwith  to  be  provided  for  her, 
where  ihe  might  have  an  honourable  refidence  till  the 
aflignment  •,  and  in  the  mean  time  fhe  was  to  have 
reafonable  eftovers  of  common.  For  her  dower  fhe  waa 
to  have  affigned  to  her  a  third  part  of  all  the  lands  of  her 
hulband  which  were  his  during  the  coverture,  milefs  where 
it  happens  that  flie  was  endowed  of  lefs  at  the  church-door. 
By  this  defcription  the  widow's  dower  was  enlarged  >  for 
in  tlae  time  of  Glanvillc,  it  was  to  be  a  third  of  fuch  land 

°  Ch.  7.  **  cafe  of  a  common  perfon  was  due 

<*Lord  Coke  interprets  this  pafiTage  ''  by  cullom,  piefcription,  or  fpecial 

thus:   *•  Widows  are  without  diffi-  *■'■  tenuie;   and  this  expofiti  vi   is  ap- 

**  culty  to  have  their  marriaa^c  (that  "  p  ovtd   by  conft^int   and  continual 

**  is,  to  marry  where  they  will,  with-  *'  uU-  and  experience,   et  tptimus  in. 

*'  out  any  licence  or  altent  of  their  *'  tsrpres  kgum  corjuetudo.""    (z   IniL 

*■' lords)  and  their  inheritance,"  &c.  18.)       Ihe    latter  pofition    I    admit 

a  conrtruStion  which  has  two  ftioug  moll  fully,   and  beg  leave,   upon  the 

rcafons  againft  it.     For,  (irlt,  martta-  authority   of  it,    to  oppofe  th?  tcft-- 

gium  is  generally  ufed  by  the  writers  mony    of    Bradon    and     Biitton    to 

of  this  period  foi'  an  eftatc  in  frank-  that  of  our  author.      It  is  la  d  down 

marriage^  and  coupled  as  it   here    is  by  both  of  thofe   Wi  iter--,  as  will  be 

with  hdsreditaSy  it  feems  to   rc(|u»re  flicwn  in  its  proper  place,  that  th'S 

that  fenfe.     idly.  This  conlhuftion  v/as  the  general  law  ot  the  land;  tho' 

is  directly  contrai  y  to  the   latter  part  I  do  not   mean   to  difpute,   hut   that 

of  this  Very  chapter  of  vT/irr^wrt  C(6a//<2,  the    law    in    hrd   Cch's   time   might 

where   it   is   exprdsly  declared  that  b«    as    he    has    dtlivered    it   in   this 

•v/'xAo'Vis,  Jhall  not  marry  v/ithout   the  place.     This  is  one  itiong  inftancc, 

affent   or   their   lord.       Indeed,,    lord  among   many    others,    that  our  bcft 

Coke  found  it  convenient  to  comment  writers  have  fallrn  into  the  error  of 

away    the    meaning    of  this    paffage  canvalling  points  of  ancient  law  up- 

alfo,    which   he    has   done    in    thel'c  on   principles  and    ideas  wholly  «> 

word"; :   "  That  is  to  be  underltood  dern. 


•*  where  fuch  licence  of  marriage  in 


only 


E  N  G  L  I  S  H      L  A  W.      .  243 

only  as  the  hii{bainl  had  at  the  time  of  the  efpoufals  ".  C  H  a  p.  v. 
It  was  ordained,  that  no  widow  fliould  be  diftrained  to  henRY  III. 
marry,  if  fhe  chofe  to  live  fmgle ;  provided  fhe  would 
give  fecurity  not  to  marry  without  the  licence  and  aflent 
of  the  king,  if  flie  held  of  the  crown ;  nor  without  the 
aiTent  of  her  lord,  if  flie  held  of  a  common  pcrfon:  which 
laft  provifion  was  in  conformity  with  the  fpirit  of  the  com- 
mon law  '^. 

These  points  concerning  tenures,  and  the  incidents  of  - 
landed  property,  were  afcertained  by  the  Great  Charter. 
The  remainder  of  this  ancient  piece  of  legillation  is  taken 
up  in  reforming  the  modes  of  redrefs,  and  regulating  the 
adminiftration  of  juftice. 

Nothing  more  required  mitigation  than  the  rigour  with 
which  the  king's  debts  were  in  thofe  times  exa61:ed  and 
levied.  This  made  it  neceflary  to  declare  p,  that  neither  the 
king  nor  his  bailiffs  fhould  feize  any  land  or  rent  for  a 
debt,  fo  long  as  the  goods  and  chattels  v/ere  fufficient,  and 
the  debtor  was  ready  to  fiUisfy  the  demand.  P\irther,  the 
pledges  of  fuch  a  debtor,  fays  the  ftatute,  fliall  not  be  di- 
llrained,  fo  long  as  the  principal  is  of  fufficient  ability  ; 
they  are  only  to  be  anfwerable  in  his  default ;  and  they 
may.  if  they  pleafe,  have  the  lands  and  rents  of  the  debtor 
to  reimburfe  themfelves  whatever  they  have  paid  for 
him. 

Where  the  king's  debtor  dies,  the  king  is  to  be  pre- 
ferred in  payment  of  debts  by  the  executor.  If,  fays  the 
charter,  any  one  that  holds  of  the  king  a  lay  fee  'i  fliould 
die,  and  the  iheriff  or  bailiff*  fliews  the  letters  patent  of 
the  king's  fummons  for  a  debt  due  to  the  king,  the  flierifF 
or  bailiff'  may  attach  an4  inventory  all  the  goods  and 
chattels  of  the  deceafed  that  are  found  within  the  fee,  to 
the  value  of  the  debt,  by  the  viciu  ""of  lawful  men ;  fo 
that  nothing  may  be  removed  till  the  king  is  fatisfied  j  and 

"^  Vid.  aot.  100.  P  Ch.  8.  1  Ch.  18. 

"  Vid.  ant.  Ijy.  ^   Per  vijum  It'ialiuw  hsminum. 

S  2  after 


244  HISTORY      OF     THE 

CHAP.  V.  after  that,  the  refidue  is  to  remain  to  the  executors,  to 
HENKY  111  perform  the  will  of  the  deceafed  :  if  nothing  is  due  to  the 
king,  then  all  the  chattels  are  to  go  to  the  ufe  of  the  de- 
fandl  (that  is,  to  his  executors  or  adminillrators),  faving, 
fays  the  ftatute,  to  his  wife  and  children  their  reafonable 
parts  *,  the  latter  part  of  which  provifion  does  not  feem 
to  remove  any  of  the  difficulties  which  were  before  no- 
ticed in  the  text  of  Glanville  upon  the  fubje£t  of  tefta- 
ments  ^ 

A  VERY  plain  rule  of  the  common  law  was  enforced  by 
a  declaration  %  that  no  man  fhould  be  diflrained  to  do  more 
fervice  for  a  knight's  fee,  or  for  any  freehold,  than  was  pro- 
perly due.  This  provifion  would  not  have  been  neceffary, 
unlefs  the  remedy  by  diflrefs  had  been  lately  abufed,  to 
compel  a  compliance  with  unjuft  demands. 

The  mofl  interefting  part  of  this  famous  charter,  as 
viewed  by  a  modern  reader,  are  the  provifions  for  a  better 
and  more  regular  adminiftration  of  juftice.  The  effe£ls 
of  thefe  are  feen  even  in  the  prefent  fhape  of  our  judicial 
polity,  to  the  formation  of  which  they  contributed  very 
confiderably. 
Comnunia  placi-       The  firft  of  tlicfe  regulations  ordains,  that  communia 

ta  n:n  jequantur  _  . 

fufHim  mjlram.  placita  tion  feqiiantur  curiam  nojlram^  fed  teneantur  in  ali" 
quo  certo  loco^ ;  the  fenfe  of  which  ordinance  is,  that  fuits 
between  party  and  party  fhall  no  longer  be  entertained  in 
the  curia  regis  (whofe  ftile,  during  this  reign,  was  properly 
placita  quis  fequuntur  regent),  which  always  followed  his 
perfon,  and  might  be  held  in  feveral  different  places  in  the 
fpace  of  one  year,  to  the  great  inconvenience  of  fuitors, 
jurors,  witneffes,  and  others;  but  fhall  be  debated  in 
fomc  certain  ftationary  court,  where  perfons  concerned 
may  refort  at  all  times  for  profecuting  and  defending  their 
fuits. 

The  operation  of  this  provifion  muff  havehad  an  immedi- 
ate influence  upon  the  two  great  courts  of  the  king-,  namely, 

»  Vid.  ant.  \i\,\i%.  »  Ch.  lo.  »  Ch.  ii.  Vid.  ant   57. 

that 


ENGLISH      LAW.  7,45 

that  held  hefore  himfelf,  and  that  which,  though  a  part  of  C  H  a  p.  v, 
it,  was  called  the  exchequer ;  for  as  both  thefe  attended  jj£N^-p y  ill. 
the  king  wherever  he  refided,  all  fuits  there  between  par- 
ties were  interdi<Sled  by  the  words  of  this  law  ;  and  the 
former  remained  a  tribunal  for  difcuflion  of  criminal  mat- 
ters only ;  the  latter  for  the  cognifance  of  caufes  concerning 
the  revenue ;  while  common  pJeas,  as  they  were  to  he  held 
in  fome  certain  place,  feemed,  naturally  enough,  to  devolve 
upon  the  benck^  or  jujlitiarii  de  banco,  which  had  been 
lately  eilabliflied  at  Wellminfter,  in  aid  of  the  two  former 
courts,  as  we  have  before  fccn.  From  this  period,  tlie 
bench,  or,  as  the  return  was,  coram  juftitiariis  nojlris 
apiid  WeJlmQnaJlenum  (to  diilinguifn  it  from  the  king's 
court,  which  fat  at  the  Tower,  and  removed  with  his  per- 
fon),  grew  into  more  confideration  ;  and  in  after-times,  as 
it  became  the  fole  and  proper  jurifdiclion  for  communia  pla^ 
c'tta,  was  thence  denominated  the  common-pleas.  In  what 
manner  the  other  two  courts  recovered  a  fort  of  cognifance 
in  common  fuits  between  parties,  by  means  of  ditTerent 
fi£lions,  will  be  feen  hereafter. 

It  was  endeavoured  to  render  the  proceeding  by  affife  J-fliceEofafTifr. 
dill  more  expeditious,  by  ordaining  juflices  to  go  a  circuit 
once  every  year  to  take  aflifes,  initead  of  waiting  till  the 
juflices  itinerant  came ;  which  latter  were  perhaps  not 
very  regular,  or,  at  leafl,  not  wiflied  by  the  great  barons 
to  be  very  regular  in  their  circuit,  as  they  exercifed  a  ju- 
rifdicllon  of  a  magnitude  and  extent  that  controuled  the 
franchifes  of  lords  who  had  inferior  courts.  The  ilatute  " 
dlre6ls,  that  aflifes  of  novel  dijfe'ifin  and  of  mortaumcjlor 
ihall  not  be  taken  but  In  their  (lilres ;  whereas  wc  have 
feen,  that  writs  of  aflifc  and  mortaunceflor  were  return- 
able In  Glanville's  time  coram  me  vei  jnjlitiis.  n:eis''\  in 
the  curia  regis,  or  court  before  the  king;  but  this  was 
now  altered,  and  they  were  for  the  future  to  be  taken  in 
the  following  manner.  The  king,  or,  in  his  abfence  out 
of  the  realm,  the  chief  juftlciar,  was  to  fend  juflices  into  ' 
every  county  once  a-ycar;   and  thefe,  together  with  tlie 

^  Ch.  iz,  "  Vid.  ant.  178.  150, 

knights 


246  HISTORY      OF     THE 

knights  of  the  county,  were  to  take  the  afhlts  there  '^,  Such 
matters  as  tlie  juftices  could  not  determine  on  the  Ipot,  were 
to  be  finiilied  in  fome  other  part  of  the  circuit;  and  fuch  as, 
on  account  of  their  difficulty,  they  could  not  determine  at 
all,  were  to  be  adjourned  before  the  juftices  of  the  bench, 
and  there  decided.  This  is  faid  to  be  the  firfl  appointment 
of  juftices  cf  ajjtfe ;  in  corifequence  of  which  thefe  writs 
were  ever  after  made  returnable  coram  jnjlitiariis  noftris  ad 
njfifis^  cum  in  partes  illas  i^efierinf^  tifc.  Alfifcs  de  ultima 
prajentatione  '',  which  hitherto  had  been  taken  in  the  king's 
courts,  that  is,  coram,  nic  vel  jujiitiis  meisy  were,  for  the 
future,  to  be  heard  before  the  juftices  of  the  bench  only, 
and  there  finally  determined ;  a  provifion  which  may  be 
thought  to  be  founded  in  abundant  caution,  when  it  had 
been  before  declared,  that  common  pleas,  of  which  this 
was  certainly  one,  (liould  not  follow  the  king's  court. 

While. order  was  taken  for  afcertaining  and  governing 
the  king's  courts,  fome  attention  was  given  to  the  jurifdic- 
tlon  of  the  (lieriff,  where  matters  of  lefs  moment  were 
agitated  with  fome  folemnity.  The  county  court  was  to 
be  held  >' only  from  month  to  month,  that  is,  not  more 
frequent  than  once  a  month;  and  in  counties  where  the 
interval  of  its  fitting  had  been  greater,  that  was  ftill  to 
continue.  The  flierifF  or  his  bailiff  was  not  to  hold  his 
tourn  in  the  hundred  more  than  twice  a-year,  namely, 
after  Eafter  and  Michaelmas,  and  that  in  the  ufual  and 
accuftomed  place ;  and  the  view  of  frank-pledge  was  to 
be  held  by  the  fheriff"  at  Michaelm-is.  This  lafl  provifion 
was  in  order  to  keep  up  the  old  conftitution  fo  admirably 
contrived  for  prefcrvi ng  the  peace,    and  the    due  order 

*  By    the   charter    of   John,    the  have  been  confidcred  as  the  reprelVn- 

knights   ajfcciated  wah    the  jullices  tativc  or"  fuch  antient  tiibunal-,  for  in 

wcie  to  be  four,  chofcii  by  the  coun-  the  Cap'.tula  Baronum  thty  P.iiiulateri, 

ty ;  and  the  afl'ifes  were  to  be  taken  that  none  elle  (except  the  jurors  and 

on  the  day,   and  at  the  place   of  the  parties)  (hould  be  furnmoned   to  the 

county  court.  This  delegation  of  four  taking  of  fuch  afllfes  ||.     This  is  pro- 

by  the  county  reminds  us  of  the  an-  bably  the  origin  of  the  prefent  ajfo- 

tient  practice,  when  judgments  were  ciatton  in  the  commiflion  of  afllfe. 
given /■fr  otnnes  cotnitatui  probos  homi'  *  Ch.  13, 

Kr;§.     The  hter  pradlice  fecmed  to  ^   Ibid.  35. 

§"  Vid.  ant.  84,  ||  Vid.  Black.  Chart,  vol.  II.  Cap.  Bar.  8. 

of 


ENGLISH      LAW. 

of  the  decennaries.  It  was  enjoined,  that  all  men's  liber- 
ties fhould  be  maintained  as  in  the  reign  of  Henry  II. ; 
and  that  the  fheriff  (liould  take  no  more  for  his  frankpledge 
than  was  allowed  in  that  reign.  It  is  cautioned,  in  this 
fame  chapter,  that  the  fherirT  (liould  feek  no  occafion  or 
pretence  either  for  holding  his  court  oftener  than  is  there 
direded,  or  taking  any  unreafonable  fees.  Thefe  injunc-  • 
tions  about  the  flieriff's  court  were  dictated  probably  by 
the  jealoufy  that  lords  of  franchifes  entertained  concerning 
their  own  courts,  with  which  the  {herifF.too  much  inter- 
fered. 

The  practice  of  courts  was  confidered,  and  the  ufage   Amtri-emcnt^ 
of  the  common  law  in  fome  inftances  was  adjufted  and 
confirmed.      It  was   endeavoured,   by  declaring   the  law 
more  fully  on  that  fubjecl,  to  prevent  all  abufe  of  the  nii/eri- 
cordia^  or  amercement,  that  ufed  to  be  inflicted  oxiJectcUores.^ 
or  fuitors,  who  were  guilty  of  default  or  mifcondu6b  m 
caufes.      A   freeman,    fays    the    ftatute  ^,    (liall   not    be 
amerced  for  a  fmall  default  but  after  the  manner  of  the 
default  \  and  for  a  greater  in  proportion  thereto,  faving  to 
him,   in  the  language   of   Glanviile,   his   cojitenement^  or 
countenance :  with  refpecl  to  a  merchant,   faving  to  him, 
in  like  manner,  his  merchandize ;  and  to  a  villain,  except 
he  was  the  king's  villain,  his  wainage  :  from  which  pro- 
vifions  it  appears  to  have  been   the  intention  that  thefe 
amercements  fliould  not  be  the  complete  ruin  of  a  man. 
For  the  fame  reafon  alfo  it  was  declared,  that  none  of  the 
faid  amercements  (hould  be   aflefled  but  by  the  oaths  of 
honeft  and  lawful  men  of  the  vicinage.     Earls  and  barons, 
favs'the  charter,  are  not  to  be  amerced  but  by  their  peers 
(which  was  done  either  by  the  barons  of  the  exchequer, 
or  in  the  court  coram  rege^  in  both  which  the  judices  were 
peers  of  the  realm '),  and  according  to  their  default''  -,   nor 
is  a  clerk  to  be  amerced  in  proportion  to  his  fpiritual  be- 

'  Ch.  14.  *  Braa.  fol.  116.  b.  *»  Deli^a. 

nefice. 


HISTORY      OF     THE 

nefice,  but  after  his  lay-tenement,  and,  in  like  ir.anner, 
only  according  to  his  default  *".  All  thefe  provifions'^  were 
only  to  affirm  and  give  a  fanclion  to  ancient  ufages,  feme 
of  which  have  been  before  mentioned :  upon  this  claufe, 
however,  was  afterwards  framed  the  writ  de  moderata 
mifericordid,  for  giving  remedy  to  a  party  who  w^as  excef- 
fively  amerced. 

The  form  of  trial  was  intended  to  be  adjufted  by  the 
following  regulation,  though  the  precifc  meaning  of  it  has 
occafioned  fome  doubt  :  Julius  hallivus  de  catero  ponat 
aliquein  ad  legem  manifejlairiy  nee  ad  jttramentum  ftmpUci 
loquela  Jiia^  fine  tejVihiis  fidellhus  ad  hoc  ivduElis  '^.  Whe- 
ther this  means,  that  the  defendant  (liould  not  difcharge 
himfelf  by  his  own  oath  alone,  without  the  oaths  of  other 
perfons  fwearing  to  their  belief  of  his  aflcrtion ;  or,  that 
no  defendant  Ihould  be  put  to  wage  his  law,  unlefs  the 
plaintiff  fupported  his  loquela,  or  declaration,  by  credible 
winefles,  or,  as  they  were  afterwards  C2i\\t<\,  feaatores ; 
has  been  a  quellion  with  fome  writers.  Several  paflages 
in  Bra^lon  feem  to  favour  the  latter  opinion  ;  and  Fleta 
explicitly  declares  this  to  be  the  meaning  of  the  provi- 
fion^ ;  if  fo,  molt  probabl/  the  pradlce  of  bringing  into 
court  the  feclatores  of  the  plaintitT,  was  eftabliflied  by  this 
claufe.  The  defendant  making  his  law  by  the  oaths  of  others 
fwearing  with  him,  was  an  old  ufage  %  in  criminal 
cafes  at  leait,  and  as  fuch  is  mentioned  by  Glanville; 
but  it  is  not  fpoken  of  at  all  by  that  writer  as  a 
mode  of  proof  for  a  defendant  in  civil  fuits ;  thou-h  we 
(hall  have  occafion  to  mention  it  frequently  in  that  light 
upon  the  authority  of  IJradon.  From  the  manner  in 
which  the  latter  author  fpeaks  of  a  defence  per  leoem.  it 
feems  to  have  been  long  in  ufe;  and  from  this  paffage  in 
Mag;m  Charta,  we  mult  conclude  that  it  had  been  adopted 
from  criminal  to  civil   adtions  fhortly  after  the  time  of 

'^.Deliai.     A  Vi.i.  ant.  157..    '  Ch.  a8.     ^  Flct.  137.   e  Vid.  ant.  195.  198. 

Glanville. 


ENGLISH      LAW. 

Glanville.  The  feBatores^  in  this  fenfe,  confliitute  ano- 
ther novelty,  of  which  there  is  no  mention  in  Glanville. 
When  it  had  become  the  practice  to  ■A(\v[ntfeclatoreSy  for  fo 
they  alfo  were  called,  to  make  the  defence,  it  appeared  rea- 
fonable  enough  to  require,  as  Magna  Charta  here  does, 
that  certain  perfons  fhould,  in  like  manner,  be  brought  to 
make  out  the  plaintiff's  cafe.  It  may  be  conje£lured  from 
the  name,  that  both  thefe  fets  of  perfons  were  originally 
chofen  from  the  fedfatoresy  or  fuitors  of  court,  who  were 
there  prefent,  ready  to  tranfa^l  fuch  bufinefs  of  the  court 
as  might  arife. 

Of  all  the  provifions  made  by  this  charter  for  the  fecu-  N-JlusUhtr 
rity  of  the  perfon  and  property  of  the  fubje(£l:,  none  has  '"""''  ^' 
fo  much  engaged  the  attention  and  claimed  the  reverence 
of  pollerity  as  chap.  29,  which  contains  a  very  plain  and 
explicit  declaration  as  to  the  prote£lion  every  man  might 
expedl:  from  the  laws  of  his  country.  "  No  freeman  (hall 
"  be  taken  or  imprifoned ;  or  be  diffeifed  of  his  freehold, 
"  or  liberties,  or  free  cuftoms  ;  or  be  outlawed,  or  exiled, 
"  or  any  otherwife  deftroyed  ;'*  ^^  nor  will  we  pafs  upon 
**  him"  (fays  the  ftatute,  in  the  name  of  the  king),  that 
is,  he  fliall  not  be  condemned  in  the  court,  coram  rege ; 
**  nor  will  we  fend  to  him,"  that  is,  he  fliall  not  be  con- 
demned before  any  other  commiflioner  or  judge ^j  7ijfi  per 
legale  judicium  parium  fiwrinii^  vel  per  legem  terra ,  that  is, 
by  a  lawful  trial :  either  that  by  jury,  which  it  was  in- 
tended to  promote  and  patronize ;  or  by  the  ancient  modes 
long  known  to  the  law  of  the  land ;  namely,  thofe  men- 
tioned juft  before,  per  legem  maiiifcjlam^  per  jurameti' 
tum^  per  duellum^  or  whatever  it  might  be:  thoup;h,  in  a 
larger  fenfe,  per  legem  terra  may  comprehend  every  lawful 
procefs  and  proceeding,  in  contradiftinclion  to  that  of  trial 
by  jury.  The  ftatute  goes  on  and  fays,  nulli  veridemusy 
nulli  negahimuSy  aut  di^eremus  re&um  vel  jiijlitiam ;  where- 

^'SolordC.ik    inteipret<;  the  words,       mittemuj.     a  Infl.  46. 
r.tc  fu^tr  cum  ibimut^   r.ec  fufer  turn 

hy 


»   s 


HISTORY     OF     THE 

by  the  king  in  his  own  perfon  declares,  that  he  will  neither 
fell,  deny,  or  delay  to  any  man  a  due  adminiftration  of  the 
law'. 

Among  the  regulations  for  the  adminiftration  of  juftice, 
muft  be  mentioned  that  refpedling  the  writ  of  precipe  in 
capite ;    breve   quod  dicitur,   fays   the  charter,   Pra:dpe  in 
Fracitie  in  ca-      ^^p^^^  de  catero  noH  fiat  alicui  de  aliquo  liber o  tenemento^  unde 
/*'«•  liber  homo  perdat  curiam  fuam.     We   have  feen,  that,   in 

Glanville's  time  ^^  the  regular  way  was,  that  for  land  held 
of  a  private  lord  fuits  fhould  be  commenced  in  the  lord's 
court,  and  that  only  writs  concerning  land  held  iji  capite 
ftiould  be  returnable  in  the  king's  court.  This  courfe 
feems  to  have  been  fometimes  not  adhered  to,  and  a  writ 
of  Frcecipe  for  lands  held  of  a  private  lord  ufed  to  be 
brought  fometimes  in  the  curia  regis^  as  if  the  land  was 
held  in  capite.  It  was  to  prevent  this  prejudice  to  the 
lord's  court,  that  the  above  provifion  was  made ;  and  fincc 
that,  all  writs  of  right  of  land  held  of  any  other  than  the 
king,  have  been  invariably  brought  in  the  lord's  court, 
though  they  might  afterwards  be  removed  by /)o//f.  That 
this  provifion  was  aimed  only  at  writs  of  right,  and  not 
at  other  precipes,  is  exprefsly  declared  by  Braclon  '. 

These  were  the  regulations  ordained  for  the  fettlement 

.  and  improvement  of  our  law  relating  to  property,  and  the 

adminiftration  of  civil  juftice.     Some  few  provifions  were 

made  regarding  our  criminal  law,  though  not  of  the  fame 

magnitude  with  the  former. 

.  ^     .   .  As   the  diftribution  of  juftice,  particularly  that  which 

naijudicatuie.     conccms  the  lives  and  perfons  of  individuals,  fhould  be  in 

the  hands  of  perfons  not  only  of  difcretion  and  judgment, 

but  alfo  well  verfetl  in  the  law,   it  was  thought  proper  to 

ordain  ™,  that  no  ftieriff,  conftable,   coroner,   or  other  bai- 

'  Eyr#£.7.vOT,  acrtir.ilDgtolcrdCoke,  great   end   to  he    attained    by   thoie 

is  fignificd  examination  and  enquiry,  mcan^.      »  Inft.  56. 
being  a  mean,  a  right  line,  by  which  ''  Vid.  ant.  172. 

men  were  to  be   directed;  hy  jujii-  i  Bra^.  fol.  281. 

/law,   a  compulfory  method  of  cxf-  "*  Ch.  17. 

cutiBg  the  jiKigmems  of  law,-  or  the 

liff 


ENGLISH      LAW. 

HfF  of  the  king,  lljould  hold  pleas  of  the  crown  ;  it  is 
held,  that"  by  this  provlfion,  the  authority  of  the  (he- 
riff  to  hear  and  determine  theft  and  other  felonies  was 
entirely  taken  away.  But  this  alteration  could  not  have 
been  made  by  force  of  this  ftatute  alone;  it  mull:  be  remem- 
bered, that,  in  the  time  of  Glanvillc,  theft  was  not 
among  the  placita  coro7ia^  but  was  tried  by  the  flieriff''. 
In  the  time  of  Brafton,  we  find  k  was  reckoned  among 
the  placita  corona;  and  this  change  of  its  nature  was 
neceffary,  before  the  prcfent  claufe  of  Magna  Charta  could 
have  the  effe£l  of  removing  it  from  the  jurifditSlion  of  the 
fheriff,  as  a  plea  of  the  crown.  Whether  this  new  deno- 
mination took  place  before  or  after  the  pafllng  of  Magna 
Charta^  or  in  what  period  between  the  times  of  GlanviJle 
and  Bracton,  it  is  not  eafy  or  neceffary  to  determine. 
This  provifion  has  been  conflrued  to  apply  only  to  hearing 
and  determining;  and  therefore  it  was  held,  that  the  flie- 
riff's  power  to  take  indictments  of  felonies  and  mifde- 
meanors,  as  v/ell  as  the  coroner's  to  take  appeals,  dill 
remained  unimpeached;  and  in  truth  both  were  exercifed  for 
many  years  after,  till  a  particular  ftatute  i"  was  made  to 
abolifh  the  laft  remains  of  the  criminal  jurifdi6tion  belongs 
ing  to  thefe  ancient  commcfn-law  judges. 

It  was  declared,  that  a  woman  fhoukl  not  bring  any  ap- 
peal of  death,  except  of  the  death  of  her  hufband,  in  the 
following  words °-  :  "  No  one  fhall  be  taken  or  imprifoned 
"  on  account  of  the  appeal  of  a  woman  brought  for  the 
"  death  of  a  man,  except  for  the  death  of  her  hufband \' 
which  is  one,  among  many  other  articles  of  this  ftatute, 
that  is  only  a  confirmation  of  the  common  law'. 

n   2  jnft.  It.  \izvz   an  afptral  of  tlie   death  of  any 

o  Vid.  ant.  128.  of   her   ances'.ors;    but  this    opinion 

P    I  £(j,  IV.  c.  a.  fcems   to   have    no    foundation,    anil 

^  Ch.  14.  what   has   been  laid    before  the  rea- 

M^or'dCokc,  in  his  Commentary  on  dcr  in  another  place,  fh^ws  the  law 

this  chapter,  has  laid  it  down,  that  a  to  have  been  quite  otherwife.     Vid. 

f/omaa   before    tbii    ftatute    might  ant.  199,  100,     x  \\-Si    68. 

The 


HENRY   III. 


252  H  I  S  T  O  R  Y     O  F     T  H  E 

CHAP.  V.         The  v/rit  de  odio  et  ati a  was  rendered  more  attainable 
htrT^v  II.     than   it  had    hitherto  been.     It  was  ordained   that  this 

HENRY    111. 

The  writ  de  cdio  writ,  in  futurc,   (hould    iflue   gt'ciiisy    and   fhould   never 
'^''"''  be   denied'.     This   is  the  firft  mention  of  this  writ  by 

name,  though  it  has  been  alluded  to  in  a  former  part  of 
this  Hiftory'.  This  writ  was  one  of  the  great  fecu- 
rities  of  perfonal  liberty  in  thofe  days.  It  was  a  rule, 
that  a  perfon  committed  to  cullody  on  a  charge  of  homi- 
cide, fhould  not  be  bailed  by  any  other  authority  than  that 
of  the  king's  writ;  but  to  relieve  a  perfon  from  the  mif- 
fortune  of  lying  in  prifon  till  the  coming  of  the  jultices  in 
eyre,  this  writ  ufed  to  be  diredled  to  the  flierifF  command- 
ing him  to  make  inqmftUony  by  the  oaths  of  lawful  men, 
whether  the  party  in  prifon  was  charged  through  malice, 
vtrum  rettatus  fit  odio  et  atid ;  and  if  it  was  found  that  he 
was  accufed  odio  et  attdy  and  that  he  was  not  guilty,  or  that 
he  did  the  fact  fe  defendeftdo^  or  per  infortunium ^  yet  the 
{heriff,  by  this  writ,  had  no  authority  to  bail  him ;  but  the 
party  was  then  to  fue  a  writ  oitradas  in  balliuin,  directed  to 
the  fherilF;  whereby  he  was  commanded,  that,  if  the  pri- 
foner  found  twelve  good  and  lawful  men  of  the  county 
who  would  be  mainpernors  for  him,  then  he  Ihould  deliver 
him.  in  bail  to  thofe  twelve.  The  writ,  or  inquifition  ^f 
odio  et  atid  had  a  claufe  in  it,  nifi  indiElatus  vel  appellatus 
fuerit  coram  jufitiariis  ultimo  itinerantibus ;  fo  that  the 
inquifition  was  not  in  fuch  cafe  to  be  taken '.  We  fee 
how  important  it  was,  that  this  writ  fhould  be  attainable 
with  as  little  expence  and  trouble  as  polTible,  to  avoid  the 
oppreflfion  of  malicious  profecutors. 

As  to  the  forfeiture  and  efcheat  of  lands  for  felony,  it  was 

declared,  that  the  king  would  not  hold  them  for  more  than 

a  year  and  a  day,  and  then  they  fliould  go  to  the  lords  of  the 

*  fee";  which  was  nothing  more  than  the  language  of  the 

law  before  *. 

*  Ch.  a6.  "  Ch.  2z. 

'  Vid.  ant.  198.  *  Vid.  ant.  izo. 

*  Bra<St.  !iz,  b.  1x3,  a.  b. 

It 


ENGLISH      LAW.  253 

It  was  declared,  that  efcuage  flibuld  be  taken  y  as  it  was  chap.  v. 
wont  in  the  reign  of  Henry  II.  This  is  the  laft  provifion  j^£j^g^Y  ui. 
of  this  famous  charter ;  and  is  followed  by  fome  general 
declarations  and  renunciations  dictated  by  the  folemnity  of 
the  occafion.  The  liberties  and  free  cuftoms  belonging  to 
all  perfons,  fplritual  or  temporal,  are  faved ;  and  the  king 
declares,  that  "  all  the  cuftoms  and  liberties  aforefaid, 
"  which  we  have  granted  to  be  holden  within  this  our 
"  realm,  as  much  as  appertaineth  to  us  and  our  heirs,  we 
"  fliall  obferve ;  and  all  men  of  this  our  realm,  as  well 
"  fpiritual  as  temporal,  as  much  as  in  them  is,  ftiall  obferve 
"  the  fame  againft  all  perfons  in  like  wife."  For  this 
grant  of  their  liberties,  the  barons,  bifhops,  knights,  free- 
holders, and  other  fubjefts,  granted  a  fubfidy ;  and  then, 
fays  the  king,  "  we  have  granted  to  them,  for  us  and  our 
"  heirs,  that  neither  we  nor  our  heirs  fhall  attempt  to  do 
"  any  thing  whereby  the  liberties  contained  in  this  char- 
**  ter  may  be  infringed  and  broken.  And  if  any  thing 
"  (hould  be  done  by  any  one  contrary  thereto,  it  fhall  be 
"  held  of  no  force  or  efFeft." 

To  thefe  folemn  and  repeated  declarations  refpeding  the 
fan6tity  of  this  charter  of  liberties,  is  added  hiis  tejlibusy 
containing  a  lift  of  the  greateft  names  in  the  kingdom : 
for  as  in  thefe  times  no  grant  of  franchifes,  privileges, 
lands,  or  inheritances  paiTed  from  the  king  but  by  the  ad- 
vice of  his  council,  exprelTed  under  hiis  tejiibus,  this  was 
thereby  rendered  an  aO:  of  the  king,  attended  with  every 
formality  that  could  poITibly  render  it  binding.  In  this 
confideration  of  it,  it  is  properly  charta,  or  a  charter; 
though  in  that  form  it  received  likewife  the  authority  of 
parliament.  To  the  end  of  the  charter,  as  it  flands  in 
the  ftatute-book,  is  fubjoined  the  confirmation  of  it  before 
mentioned  to  hav^  been  made  in  the  25th  year  of 
Edward  1.  » 

V  Ch.  37.  '  * 

The 


S54  HISTORYOFTHE 

^"^^l^^^  The  Charta  dc  Forejla  is  llkcwife  taken  from  the  roll 
HENRY  III.  ^^  25  Edward  I.  and  has  a  confirmation  of  that  date  prefixed 
KftT^  "*'  ^"'  *°  ^^'  fimilar  to  that  prefixed  to  Magna  Charta,  This 
charter,  though  of  infinite  importance  at  the  time  it  was 
made,  contains  in  it  nothing  interefting  to  a  modern  law- 
yer, any  further  than  as  it  gives  fome  fpecimen  of  the  na- 
ture of  the  inflitution  of  Foreft  Law,  and  the  burthens 
thereby  brought  on  the  fubjecl.  In  this  light,  the  Charter 
of  the  Foreft  is  a  curious  remain  of  antient  legiflation.  It 
contains  fixteen  chapters. 

The  firft  chapter  of  this  charter  dire£led  that  all  forefts 
which  had  been  afforefted  by  Henry  II.  {hould  be  viewed 
by  good  and  lawful  men ;  and  if  it  was  proved  that  he  had 
any  woods,  except  the  demefne,  turned  into  foreft,  to  the 
prejudice  of  the  owner's  wood,  it  was  to  be  forthwith  dif- 
afForefted ;  but  the  royal  woods  that  had  been  made  foreft 
by  that  king,  were  ftill  to  remain,  with  a  faving  of  the 
common  of  herbage,  and  other  things  which  any  one  was 
before  accuftomed  to  have  ^.  This  was  the  provifion  in 
relation  to  the  forefts  made  by  Henry  II.  As  to  thofe  made 
by  the  kings  Richard  and  John,  they,  unlefs  they  were  in 
^  -    the  king's  own  demefnes,  w^ere  to  be  forthwith   difaffo- 

refted^  The  charter  diredcd,  that  all  archbiftiops,  bi- 
fhops,  abbots,  priors,  earls,  barons,  knights,  and  free  te- 
nants, having  woods  in  forefts,  fhould  have  them  as  they 
enjoyed  them  at  the  firft  coronation  of  Henry  II.  and  fliould 
be  quit  of  all  purpreftures,  walles,  and  aflarts,  made  therein 
before  the  fecond  year  of  Henry  III.  ^  Thus  hr  were  li- 
mits fixed  to  the  extent  of  forefts ;  and  after  thefe  provi- 
fions  a  claufe  is  added,  by  which  all  offences  therein  were 
pardoned. 

In  point  of  regulation  it  was  ordained,  that  regarders,  or 

rangers,  ftiould  go  through  the  foreft  to  make  their  regard, 

,       or  range,  as  was  the  ufage  before  the  firft  coronation  of 

*  Ch.  I.  »  Ch.  3.  b  ch.  4. 

Henry 


E  N  G  L  I  S  H      L  A  W.  '      '^SS 

Henry  11/  The  inquifitlon,  or  view  for  the  /awing  or  ?x-  C  H  a  p.  v. 
peditation  of  clogs,  was  to  be  had  when  the  range  was  made,  henry  III 
that  is,  from  three  years  to  three  years ;  and  then  it  was  to 
be  done  by  the  view  and  tedlmony  of  lawful  men,  and  not 
otherwife.  A  perfon  whofe  dog  was  found  not  lawedy  was 
to  pay  three  fhillings.  No  ox  was  to  be  taken  for  laiuingy 
as  had  been  before  cuftomary ;  but  the  old  law  in  this  point 
of  expeditation  was  to  be  obferved,  namely,  that  three 
claws  of  the  fore-foot  (hould  be  cut  off  by  the  Ikin :  and, 
after  all,  this  expeditation  was  to  be  performed  only  in  fuch 
places  where  it  had  been  cuftomary  before  the  firfl  coro- 
nation of  Henry  II.  ^  It  was  ordained  that  no  forefter, 
or  bedel,  (liould  make  fcotal,  or  gather  gerbe,  oats,  or  any 
corn "  whatever,  nor  any  lambs,  or  pigs ;  nor  make  any 
gathering  at  all,  but  upon  the  view  and  oath  of  twelve 
rangers,  when  they  were  making  their  range.  Such  a 
number  of  forefters  was  to  be  affigned,  as  fliould  be  thought 
neceffary  for  keeping  the  foreft  ^  It  was  permitted  to  every 
freeman  to  agift  his  own  wood,  and  to  take  his  pannage 
within  the  king's  foreft;  and  for  that  purpofe  he  might  free- 
ly drive  his  fwine  through  the  king's  demefne  woods ;  and 
if  they  fliould  lye  one  night  in  the  foreft,  it  ftiould  be  no 
pretence  for  exa£ling,  on  that  account,  any  thing  from  the 
owner'.  Befides  the  above  ufe  of  their  own  woods,  freemen 
were  permitted  to  make  in  their  woods,  land,  or  water  within 
the  foreft,  mills,  fprings,  pools,  marlpits,  dikes,  or  arable 
grounds,  fo  as  they  did  not  inclcfe  fuch  arable  ground,  nor 
caufe  a  nuifance  to  any  of  their  neighbours''  :  they  might 
alfo  have  ayries  of  hawks,  fp arrow-hawks,  falcons,  eagles, 
and  herons;  as  likewife  the  honey  found  in  their  own 
woods'.  Thus  was  a  degree  of  relaxation  given  to  the 
rigorous  ordinances  of  William  the  Conqueror,  who  had 

«  Ch.  5.  s  Ch.  9. 

^  Ch.  6.  **  Ch.  1%. 

Bladum  *  Ch.  13.  • 


<  Ch.  7. 


appropriated 


2^6  H  I  S  T  O  R  Y     O  F     T  H  E 

C  H  A  P.   V.     appropriated  the  lands  of  others  to  the  purpofe  of  making 
hrrrrX^*rr/    them  forefl ;  the  owners  thereof  were  now  admitted  into  a 

MLIVKY     Hi. 

fort  of  partial  enjoyment  of  their  own  property. 

It  was  permitted  that  any  archbifhop,  bifhop,  earl,  or 
baron,  coming  to  the  king,  at  his  command,  and  paffing 
through  the  foreft,  might  take  and  kill  one  or  two  of  the 
king's  deer,  by  view  of  the  forefter  if  he  was  prefent ;  if 
not,  then  he  might  do  it  upon  the  blowing  of  a  horn,  that 
it  might  not  look  like  a  theft.  The  fame  might  be  done 
when  they  returned  •".  No  forefter,  except  fuch  as  was  a 
forefter  in  fee,  paying  a  ferm  for  his  bailiwick,  was  to  take 
any  chiminage,  as  it  was  called,  or  toll  for  paffing  through 
the  foreft;  but  a  forefter  in  fee,  as  aforefaid,  might  take  one 
penny  every  half-year  for  a  cart,  and  a  halfpenny  for  a 
horfe  bearing  a  burthen ;  and  that  only  of  fuch  as  came 
through  by  licence  to  buy  buflies,  timber,  bark,  and  coal, 
to  fell  again.  Thofe  who  carried  brufti,  bark,  and  coal 
upon  their  backs  were  to  pay  no  chiminage,  though  it  was 
for  fale,  except  they  took  it  within  the  king's  dcmefnes'. 
The  judicature  Part  of  this  charter  corififted  of  matters  relating  to  the 
judicature  of  the  foreft.  It  was  ordained,  that  perfons 
dwelling  out  of  the  foreft  fliould  not  be  obliged  to  appear 
before  the  juftices  of  the  foreft,  upon  the  common  or 
general  fummons  ;  but  only  when  they  were  impleaded 
there,  or  were  pledges  for  others  who  were  attached  for  the 
foreft "'.  SiuaifiTnoies  (which  were  the  courts  next  below 
thofe  of  the  juftices  of  the  foreft)  were  to  be  held  only 
three-times  in  the  year ;  that  is,  the  firft  at  fifteen  days  be- 
fore Michaelmas y  when  the  agiftors  came  together  to  take 
agiftment  in  the  demefne  woods ;  the  fecond  was  to  be 
about  the  feaft  of  St.  Martin^  when  the  agiftors  were  to  re- 
ceive pannage :  and  to  thefe  two  fwainmotes  were  to  come 
the  forefters,  verderors,  and  agiftors,  and  no  others.  The 
third  fwainmote  was  to  be  held  fifteen  days  before  St.  John 

^  Ch.  II,  1  Ch.  14.  ^  Ch.  a. 

Bapt'ijli 


ENGLISH     LAW. 

BaptiJ} ;  and  this  was  pro  fcciiatior.e  bcflinritm ;  to  this 
were  to  come  the  verderors  and  forefters,  and  no  other; 
and  the  attendance  of  fuch  perions  might  be  compelled  by 
diftrefs.  It  was  moreover  dire£}:ed,  that  every  forty  days 
throughout  the  year,  the  forefters  and  verderors  fhould 
meet  to  fee  the  attachments  of  the  foreft  tarn  de  v'lridi 
quam  de  venationey  as  well  for  vert  as  venifon,  by  the  pre- 
fentment  of  the  fame  forefters. 

Swainmotes  were  to  be  kept  in  thofc  counties  only 
where  they  had  ufed  to  be  held  ".  Further,  no  conftable, 
caftellan,  or  other,  was  to  hold  plea  of  the  foreft,  whe- 
ther of  vert  or  venifon  (which  was  a  prohibition  ftmi- 
lar  to,  and  founded  on  a  like  policy  with  one  in  Magjia 
Charta  about  theft)  •,  but  every  forefter  In  fee  was  to  at- 
tach pleas  of  the  foreft,  as  well  for  vert  as  venifon,  and 
prefent  them  to  the  verderors  of  provinces;  and  after  they 
had  been  inroUed  and  fealed  with  the  feal  of  the  verde- 
rors, they  were  to  be  prefented  to  the  chief  forefter,  or,  as 
he  was  afterwards  called,  the  chief  juftice  of  the  foreft, 
when  he  came  Into  thofe  parts  to  hold  the  pleas  of  the  fo- 
reft, and  were  to  be  determined  before  him ".  The  pu-  purviHimcnts. 
nlihments  for  breach  of  the  forsft  law  were  greatly  miti- 
gated. It  was  ordained,  that  no  man  fiiould  thenceforth 
lofe  either  life  or  llmbpyir  hnnthig  deer;  but  if  a  man 
was  convi£led  of  taking"  venifon,  he  was  to  make  a  grie- 
vous fine;  and  If  he  had  nothing  to  pay,  he  was  to  be  Im- 
prlfoned  a  year  and  a  day,  and  then  difcharged  upon 
pledges  ;  which  if  he  could  not  lind,  he  was  to  abjure 
the  realm".  Such  were  tlie  tender  m.ercies  of  the  foreft 
laws  !  Bcfides  fuch  qualifications  of  this  rigorous  fyf- 
tem,  it  was  ordained,  that  thofe  who,  between  the  time 
of  Henry  II.  and  this  king's  coronation,  had  been  out- 
lawed for  the  foreft  only,  ftiould  be  In  the  king's  peace, 

^  Ch.  8.  P  Pri  vetiatiitii. 

«  Ch.  16.  '•  Cli.  10. 

Vol.  I.  T  without 


258 


HISTORY      OF      THE 


HENRY    III. 


CHAP.  V.  without  any  hinderance  or  danger,  fo  as  they  found  good 
pledges  that  they  would  not  again  trefpafs  within  the 
foreft''.  »^ 

These  were  the  regulations  made  by  the  Charter  of 
the  Foreft;  w^hich  concludes  with  a  faving  claufe  in  fa- 
vour of  the  liberties  and  free  cufloms  claimed  by  any  one^ 
as  well  within  the  foreft,  as  without,  in  warrens  and  other 
places,  which  they  enjoyed  before  that  time.  To  the 
whole  is  fubjoined  a  like  confirmation  as  that  to  Magna 
Charta,   in  the  25th  year  of  Edward  I. 

Many  copies  of  the  Great  Charter  and  Charter  of 
the  Foreft  were  put  under  the  great  fcal,  and  fent  to  the 
archbiiliops,  biihops,  and  other  dignified  ecclefiaftics,  to 
be  fafely  kept;  one  of  wliich  remained  in  I^ambeth  pa- 
lace till  a  very  late  period  %  It  is  faid,  however,  that  Hen- 
ry, when  he  ca-me  of  age,  cancelled,  in  a  folemn  manner, 
both  thofe  charters  at  a  great  council  held  at  Oxford  \ 
and  that  he  did  this  by  the  advice  of  Hubert  de  Burgh, 
chief  jufticiary,  who,  of  all  the  temporal  lords,  was  the 
firft  witnefs  to  both  the  charters.  Notwithftanding  this,  we 
find  in  the  38th  year  of  this  reign,  A.  D.  1254,  a  folemn 
aflembly  was  held  in  the  great  hall  at  Weftminfter,  in 
the  prefence  of  the  king;  when  the  archbifliop  of  Can- 
terbury and  the  other  biihops,  apparelled  in  their  ponti- 
ficals, with  tapers  burning,  denounced  a  fentence  of  ex- 
communication againft  the  breakers  of  the  liberties  of  the 
church  and  of  the  realm,  and  particularly  thofe  contained  in 
the  Great  Charter  and  Charter  of  the  Foreft ;  and  not  only 
againft  thofe  who  broke  ihtm^  but  alfo  againft  thofe  M'ho 
made  ftatutes  contrary  thereto,  or  who  fliould  ohjerve  them 
when  made,  or  prefume  to  pafs  anv  judgment  againft 
them  ^  all  which  perfons  were  to  be  confidered  as  ipfo 
faElo  excommunicated  :  and  if  any  ignorantly  offended 
therein,   and,  being  admoniflied,  did  not  reform  within 


Charters   con- 
firmed. 


Ch.  15.  to  have  been  among    the    p'pcrs  of     * 

Ic  Is  mcntioneil  by  b'lliop  Burnit     an!nbi(ho|t  l.aud. 

fifteen 


ENGLISH      LAW. 


259 


fifteen  days,  and  make  fatisfa(fHon  to  the  ordinary,  he  was     CH  ap    v. 

to  be  invoked  in  that  fentence^     We  (hall  fee,  in  the  fuc-     u.-xTnir  1.. 

'  HLNRY   111. 

ceeding  reigns,  how  often  thefe  two  charters  were  folemnly 
recognized  and  confirmed  both  by  the  king  and  parha- 
ment. 

The  firfl:  pubh'c  a6l  which  prefents  itfelf  in  the  ftatute-  ^'/ttutum  Hiber- 
book  after  the  two  charters,  is  the  Jlatutum  Hihcrnia  de 
cohiSredibuSf  14  Hen.  ill.  which,  from  a  confideration  of 
the  matter  and  manner  of  it,  has  been  pronounced  not  to  be 
a  ftatute ".  In  the  form  of  it,  it  appears  to  be  an  inftruc- 
tion  given  by  the  king  to  his  jufticcs  in  Ireland,  dire6ling 
them  how  to  proceed  in  a  certain  point  where  they  en- 
tertained a  doubt.  It  feems,  the  juftices  itinerant  in  that 
country  had  a  doubt,  when  land  defccnded  to  fifters,  w^he- 
ther  the  younger  fiftcrs  ought  to  hold  of  the  eldeft,  and  do 
homage  to  her  for  their  feveral  portions,  or  of  the  chief 
lord,  and  do  homage  to  him ;  and  certain  knights  had  been 
fent  over  to  know  what  the  practice  was  in  England  in 
fuch  a  cafe.  The  following  is  ftated  as  the  ufage  of  Eng- 
land at  that  time,  agreeing  with  what  is  laid  down  both  by 
Glanville  and  Braclon'^.  If  any  one  holding  in  capite  died, 
leaving  daughters  co-heirefles,  the  king  had  always  re- 
ceived homage  of  all  the  daughters,  and  every  one  of  them 
held  /;;  capite  of  the  king ;  and  accordingly,  if  they  were 
within  age,  the  king  had  ward  and  marriage  of  every  one. 
And  again,  if  the  deceafed  was  tenant  to  any  other  lord,  and 
the  fifters  were  within  age,  the  lord  was  to  have  the  ward 
and  marriage  of  every  one  j  but  with  this  difference,  that 
the  eldi'ft  otily  was  to  do  homage  for  herfdf  and  her  lifters  •, 
and  when  the  younger  fifters  came  of  age,  they  were  to  do 
their  fervice  to  the  lord  of  the  fee  by  the  hands  of  their  eldeft 
fifter:  the  eldeft,  however,  was  not  on  that  account  to 
exa£l  of  the  younger  homage,  ward,  or  any  other  mark 
of  fubje6lion  j  for  they  were  all  equal  in  confideration  of 

«  Vld.  Pickering's  Statutes.  *  Vid.  ant.  89. 

"  OW  Abr;dg.  Tit.  Homaec. 

T  2  law, 


Q.6o  HISTORYOFTHE 

CHAP.  V.  law,  and  deemed  a&  one  heir  anty  to  the  inheritance: 
MENRY  in  "^^^^  fhould  the  eldeft  have  homage  of  her  fifters,  and  de- 
mand ward  (hip,  the  inheritance  would  be  in  a  manner  di- 
vided ;  fo  that  the  eldcfl  fifter  would  he/tmi//  et  fern  el  feig- 
niorcfs,  and  tenant  of  the  inheritance,  that  is,  heircfs  of  her 
own  part,  and  feignxorefs  to  her  fifters  j  which  could  not 
well  confift  together;  the  liw  allowing  no  other  diftin£tion 
to  the  eldeft  fifter  but  the  chief  manfjon.  Befides,  if  the 
eldeft  fifter  Hiould  receive  homage  of  the  younger,  fhe  would 
be  feigniorefs  to  them  all,  and  ftiould  have  the  ward  of  them 
and  their  heirs ;  which  was  always  guarded  againft  by  the 
pohcy  of  the  law,  that  never  entrufted  the  pcrfon  or  eftatc 
of  a  minor  to  the  cuftody  of  a  near  relation ;  which  is 
the  very  reafon  given  by  Bra£lon  /  why  the  younger  fifters 
fliould  not  be  in  ward  to  the  eldeft^. 

The  other  ftatutes  made  in  this  reign  are  the provijionesy 
or  J} at  lit  tun  de  Mertofiy  20  Hen.  III.  and  the  ftatute  de  an- 
m  hiJfextiUy  21  Hen.  III.  after  which  there  appears  none 
till  the  51ft  year  of  this  king. 
Fratute  of  Mer-  The  ftatute  of  Mcrton  contains  eleven  chapters,  which 
are  arranged  with  as  little  order  as  thofe  of  Magna  Chart  a. 
The  feveral  alterations  or  confirmations  of  the  law  thereby 
made  were  as  follow.  We  have  juft  feen  what  provifion 
had  been  made  on  the  fubje6l  of  ward  and  marriage  by 
Magna  Charia :  To  fecure  lords  in  this  valuable  cafualty, 
it  was  now  further  ordained,  that  when  heirs  were  forcibly 
led  away,  or  detained  by  their  parents  or  others,  in  order  to 
marry  them,  every  layman  'tv  ho  fhould  fo  marry  an  heir, 
fhould  reftore  to  the  lord  who  was  a  lofer  thereby  the  value 
of  the  marriage ;  tliat  his  body  fhould  be  taken  and  im- 
prifoned  till  he  had  made  fuch  amends  j  and  further, 
till  he  had  fatisfied  the  king  for  the  trefpafs.  This  provi- 
fion  related  to  heirs  wkhin  the  age  of  fourteen :  as  to  thofe 

^  Braft.  88.  made  there,    may  very  properly  be- 

•  The  Introtiuclion  of  the  Enclifh      come    an   objedt   of  coDfuicration  in 
law  into  Ireland,  and  the  progrtfs  it     »nothcr  place. 

of 


ton. 


E  N  G  L  I  S   H      L  A  W.  261 

of  fourteen,  or  above,  and  under  full  age,  if  fuch  an  .heir  chap.  v. 
married  of  his  own  accord  without  his  lord's  licence,  to  henry  III 
defraud  him  of  his  marriage,  and  his  lord  offered  him  rea- 
fonable  and  convenient  marriage  without  difparagement  i 
it  was  ordainod  that  the  lor<l  fliould  hold  the  land  beyond 
the  term  of  his  age  of  twenty-one  years,  till  he  had  received 
the  doable  value  of  the  marriage,  according  to  the  eflima- 
tion  of  lawful  men,  or  according  to  the  value  of  any  mar- 
riage that  might  have  been  bona  jide  oiFercd,  and  proved  of 
a  certain  value  in  the  king's  court. 

Thus  far  the  intereft  of  lords  was  fecured.  The  fol- 
lowing provilion  was  to  prateil  infants  againfl;  an  abufe  of 
this  authority  in  their  lords.  If  any  lord  married  his  ward 
to  a  villain  or  burgefs  where  fhe  would  be  difparaged,  the 
ward  being  within  the  age  of  fourteen,  and  fo  not  able  to 
confent,  then,  upon  the  complaint  of  the  friends,  the  lord 
was  to  lofe  the  wardfliip  till  the  heir  came  of  age  ;  and  the 
profit  thereof  was  to  be  converted  to  the  ufe  of  the  heir, 
under  the  direction  of  her  friends.  But  if  the  heir  was 
fourteen  years  old  and  above,  fo  as  to  be  by  law  of  capacity 
to  confent  to  the  marriage,  then  no  penalty  was  to  enfue*. 
Again,  if  an  heir,  of  whatever  age,  would  not  confent  to 
marry  at  the  rcqueit  of  his  lord,  he  was  not  to  be  compelled ; 
but  when  he  came  of  age,  and  before  he  received  his  land, 
he  was  to  pay  his  lord  as  much  as  any  v/ould  have  given  for 
the  marriage ;  and  that,  whether  he  would  marry  or  not:  for 
as  the  marriage  of  an  heir  within  «ge  was  a  lawful  profit 
to  the  lord,  he  was  not  to  be  wholly  deprived  of  it,  but 
was  to  be  recompenfed  in  one  way  or  other  **. 

Some  further  provifion  was  made  lefpecting  dower.  It 
was  provided  by  Magna  Charta^  that  widows  fliould  give 
nothing  for  their  dower  :  in  order  flill  further  to  fecurc  to 
them  a  ready  alhgnment  of  dower,  it  was  now  ordained, 
that  perfons  convicled  of  deforcing  widows  of  their  dower, 

•  Ch.  6.  ^  Ch.  7. 

fl^ouy 


262  HISTORY      OF      THE 

fhould  pay  in  damages  the  value  of  the  dower,  from  the 
death  of  the  hufband  up  to  the  tinte  of  giving  judgment 
for  recovery  thereof  j  and  they  were  moreover  to  be  In  mi- 
ferlcordla  to  the  king  S  Becaufe  it  had  been  doubted,  whe^ 
thcr,  as  a  widow  received  her  dower  in  the  condition  it  was 
when  her  hulLand  died,  flie  fliould  not  leave  it  in  Hke  man- 
ner to  the  reverfioner  in  the  condition  it  was  at  her  death ; 
to  remove  this  doubt,  it  was  ordained,  in  favour  of  widows, 
that  they  might  bequeath  the  crop  upon  their  lands  held  in 
dower,  as  well  as  that  upon  their  other  lands  ^. 

Usury,  which  vi^e  have  before  feen  ^  was  treated  with 
—  little  lenity  by  our  old  law,  was  now  put  under  a  particular 

'  reftraint.      It   was   provided,    that   ufury  fhould    not  run 

againft  any  perfon  within  age,  from  the  death  of  his  anceflor, 
\vhofe  heir  he  was,  until  he  arrived  at  his  full  age  :  a  provi- 
fion  which  was  didlated,  no  doubt,  by  the  confideration  that 
the  profits  of  the  infant's  lands  went  to  his  guardian  during 
the  wardfhip,  and  that  he  was  thereby  difabled  from  paying 
the  annual  intereft.  This  new  regulation  was  to  be  without 
any  prejudice  to  the  principal  and  the  intcrefl  which  had 
accrued  in  the  life-time  of  the  anceftor. 
Of  cOtnmons.  -^  PROVISION  made  about  commons  of  pafture  was  of 

great  importance  to  lords  of  manors.  When  a  lord,  hav- 
ing great  extent  of  wafte  ground  within  his  manor,  infeolfed 
any  one  of  parcels  of  arable  land,  it  was  ufual  for  the  feoffee 
to  have  common  in  fuch  wailes,  as  incident  to  his  feoff- 
ment :  and  this  was  upon  very  good  reafons :  for  as  the 
feoffee  could  not  plough  and  manure  his  ground  without 
beafts,  and  they  could  not  be  fuftained  without  pafture ; 
the  tenant  ufed  to  have  this  allowance  of  common  for  his 
beads  of  the  plough  as  appendant  to  his  tenancy  ;  and  from 
thence  arofc  common  appendant.  Right  of  common, 
therefore,  was  founded  upon  the  general  intereft  of  agri- 
jculture,  and  the  particular  one  of  the  lord,  whofe  land  was 
thereby  cultivated  and  improved.     We  have  feen  s,  that  a 

«^  Ch.  I,         ^  Ch.  *.         «  Ant.  pa,  86.         '  Ch.  5.         «  Ant.  p.  149- 

remedy 


E  N  G  L  I  S  H      L  A  \\\  263 

remedy  by  afTife  had  been  devifed  to  maintain  tenants  in  CHAP.  v. 
pofTeflion  of  this  right :  but,  it  feems,  this  remedy  had  been  HENRY  III. 
pufhed  too  far,  and  be;^an  to  encroach  upon  the  dcmefne 
and  original  right  of  the  lord ;  who,  having  fuffered  his 
tenants  to  range  at  large  over  his  waftes  for  which  he  had 
not  yet  found  any  ufe,  could  hardly  appropriate  any  part 
thereof  without  the  imputation  of  encroachment  on  his 
tenants,  and  being  liable  to  an  affife  of  dilTeifin  of  common 
of  pafture.  To  prevent  fuch  ufurpations  upon  the  lord, 
and  adjuft  the  reafonable  claims  both  of  lord  and  tenant, 
the  following  regulation  was  made :  that  when  fuch  feof- 
fees brought  an  afTife  of  novel  dineifm  for  the  common 
of  paflure,  and  it  was  therein  recognized  before  the  juftices, 
that  they  had  as  much  pafture  as  was  fufficient  for  their 
freeholds  *^,  and  that  they  had  free  ingrefs  and  egrcfs  from 
their  freehold  to  their  pafture ;  then  the  perfon  againft 
whom  the  aftifc  was  brought  fhould  go  quit  for  all  the 
lands,  waftes,  woods,  or  pafture,  which  he  had  converted 
to  his  own  ufe.  But  fliould  it  be  alledged  that  they  had 
not  fufticient  pafture,  nor  fufficient  ingrefs  or  egrefs,  the 
truth  thereof  was  to  be  enquired  of  by  the  affife  j  and  if  it 
was  found   as  alledged,   then  they  were   to  recover  their  • 

Icifm  by  view  of  the  jurors,  and  the  diftelfcr  was  to  be 
amerced,  as  in  other  cafes  '^. 

The  adminiftration  of  juftlce  was  aided  by  a  law  con- 
cerning repeated  diflelfins,  or,  as  they  were  afterwards 
called,  re'dijpifins.  It  was  ordained,  that  when  any  per- 
fon recovered  feifin  of  his  freehold,  before  the  juftices  in 
eyre,  by  affife  of  novel  dilleifin,  or  by.ccnfcffion  of  the 
difleifors,  and  felfin  had  been  delivered  by  the  flierilF;  if  the 
lame  diflcifors  again  difieifcd  the  fame  tenant  of  the  fame 
freehold,  and  were  convi6lcd  thereof,  they  ftiould  forthwith 
be  committed  to  prifon,  till  they  were  difchargcd  by  the 
king  upon  payment  of  a  fine.  The  way  of  bringing  fuch 
contemners  of  the  law  to  puniffiment  is  thus  diredled  by 

^  Ad  tcn:mcnta  fua,  S  Chap.  4, 

the 


264  HISTORYOFTHE 

^  "  "^i^Zj    ^^^^  ^atiite  :  Wlien  complaint  was  made  at  the  king's  court, 
HENRY  III.    ^^^  parries  injured  were  to  have  the  king's  writ  direded  to 
the  Oicriff,  in  which  a  relation  was  to  be  made  de  dipifina 
facia  fuper  (JiJJeifinam,  of  a  dlfleifm   upon  a  difieifm  ;  and 
the  flieriffwas  to  be  thereby  commanded,  that  he,  taking 
v/ith  him  the  keepers  of  the  pleas  of  the  crown  i^,  and 
other  lawful  knights,  fhould  go  to  the  place  in  queftion, 
and  there,  in  their  prefcnce,  by  the  firft  jurors  and  other 
neighbours  and  lawful  men,  make  diligent  inquifition   of 
the  matter :  and  if  ttic  party  M-as  convicted,  he  was  to  be 
dealt  with  as  before  mentioned;  if  not,  the  plaintiff  was  to 
be  amerced.     The  flicrirF  was  not  to  entertain  fuch  a  plaint 
/  without  the  king's   fpecial   command,   namely,   by   writ. 

What  is  here  fald  of  lands  recovered  in  aflife  of  novel  dif^ 
feifin,  extended  to  thofe  recovered  by  aflife  of  mortauHi- 
cellor,  or  in  any  iprocetdmg  per  jin-atajn  \ 

An  alteration  was  raade  in  the  limitation  of  time  for 
bringing  certain  writs.  In  a  writ  of  right,  as  the  law  had 
been  for  fome  years,  a  defcent  might  be  conveyed  a  tempore 
Henrici  regis  fenior is  ;  but  it  was  now  orc^ained,  that  there 
fliould  be  no  mention  of  fo  diftant  a  time,  ;but  only  a  tem^ 
pore  Henrici  regis  avi  nojlri.  Writs  of  mortauncejlory  de 
?iativisy  and  de  iiigrelfii^  (a  writ  which  had  lately  fprung  up, 
and  of  which  more  will  be  faid  hereafter)  were  not  to  exceed 
ultimum  rcddltum  domitii  regis  Jchafuiis patris  nojlri  in  Aug" 
Ham,  king  John's  lad  return  from  Ireland  into  England  ^ 
nor  writs  of  novel  dilTeifin,  priinam  transfretationem  dojnifii 
regis  Henrici f  qui  nunc  ejl,  in  Vajconiam  ^, 

^  Vid.  ant.   where  tlv  !>  are  fiip-  cony  for  the  firft  time  in  the  5th  year 

pofcii  to  be  the  fflroA^rrj  of  the  lounty.  of  his  reicn;   fo  thst  there  were  a- 

'  Ch.  ;5.  hout  fii'teen  year";  between  that  and 

^  Ch.  8.  the-  (latute  o^  Mcrton.     [z   Init,  94, 

Henry    I.    bepan   hi;    re.pn   A.   D.  91;.]    Wilts  of  moi  Munctftor  before 

» roo.        Hcniy    il.     A.     D.     1154.  t\\'\f  iOt  v:cxt  pojl  primam corciatior.em 

K'nt'  John    went   to    IielanJ    in   the  Henrici  II.   v/hlch  was  zoth  Ot*.ober» 

azih  ytar  of  hir  rclin,  and  returned  !i;4.     Thofe  of  novfi  diffeifir.  were 

the  fame  year;  between  that  and  the  feji  ultimam  trcnsftetati:ttem  £egis  in 

aoth    Heniy    III.     were    about    25  A'tfrw/an^r/^iw,  which  wa^.  in  i  li?^.,  the 

}'car«:.      Hcn'y  HI.    went  into  Gaf-  3Cth  year  of  his  reign.  Vid.  ant.  189. 

Before 


E  N  G  L  I  S  H      L  A  W.  265 

Before  another  chapter  of  this  ftatute  is  mentioned,  it  c  H  a  p.  v. 
may  be  convenient  to  recolle£l,  that  there  were  two  kinds  u.-kid^t  11 
of  fuits  ;  fult  real,  as  it  was  afterwards  called,  and  fuit 
fervice.  Suit  real  was,  in  refpe£l  of  refidence,  due  to  a 
Jcet,  or  tourn  ;  fuit  fervice  was,  by  rcafon  of  tenure  of 
land,  due  to  the  county,  hundred,  wapentake,  or  manor 
whereunto  a  court  baron  was  incident.  Every  one  who 
held  by  fuit  fervice,  was  required  to  appear  in  perfon,  becaufc 
the  fuitors  were  judges  in  thofe  courts;  and  if  he  did  not, 
he  would  be  amerced ;  which  was  a  heavy  grievance ;  for 
it  might  happen  that  he  had  lands  within  divers  of  thofc 
feigniories,  and  the  courts  might  all  be  kept  in  one  day ; 
therefore,  as  he  could  attend  perfonally  only  at  one  place, 
it  was  provided  by  this  a£l,  that  every  freeman  who  owed 
fuit  to  the  county,  trithing  "",  hundred,  wapentake  ",  or  to 
the  court  of  his  lord,  might  freely  make  his  attorney  to  do 
fuit  for  him  ^,  This  permKTion  did  not  enable  him  to  do 
the  fame  at  the  leet,  or  tourn,  becaufe  he  could  not  be 
within  two  leets,  or  two  tourns  p. 

It  is  recorded  in  the  ftatute  of  Merton,  that  the  que-      ,  ,    .  . 

0\  fpeoal 
flion  about  the  legitimacy  of  children  born  before  wed-   bafUrHv. 

lock  was  ftill  agitated  between  the  clergy  and  common 
lawyers  ;  the  former  maintaining  their  legitimacy,  accord- 
ing to  the  conftitutlon  of  pope  Alexander ;  the  latter  al- 
ledglng  this  to  be  contrary  to  the  common  law ;  as  hath 
been  mentioned  before  ^.  The  blQiops  now  urged  in 
council,  that  when  the  king's  writ  of  baftardy  was  diredled 
to  them,  to  enquire  whether  a  perfon  born  before  wedlock 
was  entitled  to  the  inheritance,  they  neither  could  nor 
would  give  any  anfwer  thereto,  becaufe  the  queftion  was 
put  in  a  fpecial  way,  and  not  in  the  form  required  by  the 
church,  which  was  general,  whether  baftard  or  not ;  and 
therefore,  to  make  an  end  of  the  controverfy,  and  the  dlffi- 


m 


A  dlftricl  containing  three  hun-         °  Ch.  lo. 
d'-'iis  P  2  Infl.  99. 

^  Another  name  for  a  hundred,  ^  Vid.  ant.  85 


culty 


266  HISTORY      OF     THE 

CHAP.  V.     culty  at  once,  they  ,prayed  the  nobles  to  confent,  that  all 
HENRY  111     ^^^^  "^^  were  born  before  matrimony  Ihoukl,  confidently 
with  the  law  of  the  church,  be  deemed  legitimate,  and  be 
intitled  to  fucceed  to  the  inheritance,  equally  with  thofe 
J Cf^j  born  within  wedlock  ^    But  the  ftatute  (lays,  omnes  comiies 

et  haroties  una  voce  -refponderurit^  quod  fiolunt  leges  Af:gli£ 
mutariy  qiut  htictifque  ufitat^  f^^^^U  ^^  approbata:  *.  This 
point  of  difference  between  the  canon  law  and  the  law 
of  the  land  did  not  reft  here.  In  the  fame^ycar,  a  folemn 
agreement  was  made  between  the  king,  bifliops,  and 
barons  in  council  aOembled,  and  by  this  the  practice  was 
fettled,  as  will  be  fliewn  when  we  come  to  fpeak  more 
particularly  on  the  fubjecl  of  baftardy.  The  nobles,  who 
refifted  the  inclination  of  the  ecclefiaftics  with  fuch  firm- 
nefs,  had  pofcruple  to  pfopofe  an  innovation  which  had  no 
object  but  to  accommodate  thefe  potent  landholders,  at 
the  expence  of  the  liberty  of  the  fubjed  ;  but  In  this  they 
were  oppofed  by  the  king,  who  refufed  his  confent :  the 
propofal  was,  that  they  might  imprifon  in  a  prlfon  of  their 
own  all  perfons  that  were  found  trefpafling  in  their  parks 
,       and  vivarles  ^ 

In  the  next  year,  there  follows  in  the  ftatute-book  a 
public  inftrument  which  is  intitled,  the  ftatute  de  Atuio 
Bifextili,  21  Hen.  III.  ;  but  which  is,  in  truth,  nothing 
more  than  a  fort  of  a  writ,  or  direction,  to  the  juftlces  of 
the  bench,  inftrudting  them  how  the  extraordinary  day 
in  the  leap-year  was  to  be  reckoned,  in  cafes  where  perfons 
had  a  day  to  appear  at  the  diftance  of  a  year,  as  on  the 
eflbin  de  malo  leEli^  and  the  like.  It  was  thereby  dlrc£led, 
that  the  additional  day  fliould,  together  with  that  which 

'  This    piece    of  canon'cal   juiif-  fin^-d    to   the    cafe    of  fiuh   womfn, 

prudence    is  a<SliulIy  a(1o|>tc(1  in   the  whom    the    .'aihcr,    at    ih:  t    pcrioii. 

law  of  Scotiinil.     They  tor     jcr  the  might  have  ma.ncd.   Erik.  Prin.  b.  i. 

lublcquciu  maiiiat;e   as  having  been  tit.  7.,it£i.  37. 

entered     into    when    the    child    was  *  Ch.  o. 

begotten;    and   therefore  it    is  con-  '  Ch.  II. 

went 


ENGLISH      LAW. 

went  before,  be   reckoned  only  as  one,  and  fo  of  courfe 
within  the  preceding  year. 

After  this,  there  are  no  ftatutes  (except  the  confirma- 
tion of  the  charters  38  Henry  IIL  which  has  been  men- 
tioned already)  till  the  fifty-firft  year  of  this  king.  Dur- 
ing this  interval  of  thirty  years,  great  progrefs  was  made 
towards  bringing  the  law  to  that  ftate  of  confiftency  and 
learning  to  which  it  arrived  in  this  reign  ;  there  is  alfo  ihe 
flrongeft  proof "  that  the  treatife  of  Brac^on  was  written 
within  this  fpace  of  time  •,  and  that  the  account  of  the 
law  given  by  that  author,  does  not  include  the  alterations 
made  therein  by  the  ftatutes  pafled  in  the  51  ft  and  52d 
years  of  this  king.  It  feems  therefore  the  mod  natural 
order,  to  poftpone  the  confideration  of  thofe  ftatutes  till 
we  have  taken  a  view  of  the  previous  flate  of  the  law ;  from 
whence  we  may  proceed  to  the  alterations  made  therein  by 
thofe  ftatutes. 

This  view  of  the  law,  as  it  ftood  towards  the  end  of 
the  prefent  reign,  will  include  in  it  not  only  a  fuller  account 
of  what  has  been  before  delivered  from  the  authority  of 
Glanville,  but  likewife  the  numerous  additions,  variations, 
and  improvements  that  had  been  made  fince  his  time. 
This  will  be  extracted,  as  we  promifed,  from  that  great 
ornament  of  our  antient  jurifprudencc,  the  treatife  of 
Bradton,  from  which  fuch  parts  will  be  felecled  as  are 
thought  bcft  fuited  to  the  defign  of  this  Hiftory  of  our  ju- 
dicial polity.  As  the  plan  we  here  propofe  will  lead  us  to 
reconfidcr  all  or  moft  of  the  topics  which  were  examined 
in  the  reign  of  Henry  II.  it  will  be  very  difficult  to  avoid 
the  appearance  of  repetition.  This' will  be  rruardcd  agaiiilt 
as  much  as  poflible  ;  and  we  trull  that  t'ue  reader  will 
be  fatlsfied  that  no  fubjecl  is  brought  before  him  a  fecond 
time,  but  where  the  nature  of  the  enquiry  and  the  progrefs 
of  the  Hiftory  made  it  abfolutcly  neccflary. 

^  Vide  poll. 

We 


funs 


26S  HISTORYOFTHE 

CHAP.  V.  We  fhall  begin  our  fliort  view  of  the  law  in  this  reign 
HENRY  in  ^^^^  ^^"^^  obfervations  on  the  rights  of  perfons.  The 
Ranks  of  per-  ranks  of  freemen  are  dated  by  Braclon  to  he  thefe  ;  dukes, 
earls,  barons,  magnates^  or  vavafors,  knights,  and  thofe 
who  were  plain  freemen.  Vavafors,  he  fays,  were  perfons 
tnagn<e  dignitatis ^  and  were  fo  called  tanquam  ^ k%  fortitum 
^^VALETUDiNEM*.  The  Condition  oifervi^  or  villani^ as 
they  were  commonly  called,  is  more  particularly  defcribed 
by  this  author  than  by  Glanville,  and  the  nature  of  that 
flate  may  be  tolerably  well  collected  from  his  account  of  it. 
The  fervus,  though  he  was  generally  confidered  as  ///  po- 
tejlate  domini,  and  not  fui  juris  ;  yet,  as  to  life  and  limb, 
.  he  was  intitled  to  the  protection  of  the  law.  The  lord 
might  take  from  his  villain  every  thing  he  had,  even  his 
principal  piece  of  property,  which  was  ufually  his  wayjia- 
gium,  or  implements  of  hufbandry  ;  the  rule  being,  that 
quicquid  per  fervum  acqiiiritur^  id  domino  acquiritury.  Thefe 
fervi  did  not  efcape  from  their  condition  by  going  off  the 
land  of  the  lord,  if  they  continued  in  the  habit  of  return- 
ing ;  and  fometimes  they  ufed  to  be  permitted  to  abfent 
themfelves  for  a  length  of  time  from  the  lord's  lands,  and 
employ  themfelves  in  trade,  upon  paying  to  the  lord  a  fine 
called  chevagiuW)  or  chiefage,  -as  an  acknowledijment  of 
their  fubje£lion  and  villenage.  But  if  they  left  the  lord's 
land  without  returning  regularly,  or  ceafed  to  pay  their 
chevagiuniy  they  were  then  confidered  as  fugitives;  and 
when  they  were  once  become  fugitive,  they  were  to  be 
purfued  and  demanded  by  the  lord,  both  within  liberties 
and  without ;  for  which  purpofe  the  aid  of  the  king's  offi- 
cers might  be  had  ^  :  and  after  fuch  claim  had  been  made, 
the  ferviiSy  though  he  was  not  taken  till  after  a  year  hud 
elapfed,  might  be  detained;  but  if  no  fuch  claim  had  been 
made,  then,  at  the  end  of  a  year,  the  fervus  would  be 
privileged,  and  confidered  as  free.     So  ftriflly  was  claim 

•  »  Braa.  5.  b.  v  Ibid.  5.  '  Ibid.  6.  b. 

required 


E  N  G  L  I  S  H      L  A  W.  269 

required  to  be  made,  that  if  the  lord,  after  the  lapfe  of    C  H  A  p.  v. 
three  or  four  days  only,  without  making  any  claim,  had    ^J^J^y  IIL 
taken  him  any  where  extra  inllenagium  *,  beyond  the  limits 
of  his  villenage,  he  would  have  been  liable  to  an  a£tion 
for  the  imprifonment. 

It  feems,  that  villains  in  the  king's  demefnes  were  of  dif- 
ferent kinds.     There  were  thofe  who  had  been  fuch  before 
the  Conqueft,  and  who,  in  confequence  of  the  polity  then 
eftabliihed,  were  permitted  to  hold  their  land  in  villenage  •*, 
by  villain  and  uncertain  fervices,    and  who  were  to  do 
every  thing  which  their  lords  commanded  them.     But  in 
the  diforder  of  that  revolution,  many  freemen  were  dif- 
pofleffed  of  their  lands  by  the  lords  to  whom  they  were 
allotted,    and  were   afterwards    permitted  to   hold   them 
in  villenage,    with    the   burthen    of   doing   fome    villain 
offices,  which  however  were  certain  and  fpecified.     Thefe 
perfons  were,  according  to  Bra£lon,  fometMnes  called  gleba 
ad/criptiiii,  becaufe,  fo  long  as  they  did  the  appointed  fer- 
vices, they  had  the  privilege  not  to  be  removed  from  the 
land  j  and  were  indeed  freemen  :  for  though  they  did  vil- 
lain fervices,  yet  it  was  not  in  their  own  perfonal  right, 
but  on  account  of  their  tenement,  which  was  held  in  vil- 
lenage, though,  fays  Braclon,  a   fort  of  privileged  ville- 
nage ^     "  There  was,"  fays  the  fame  authority,  **  another 
**  holding  in  the  king's  demefne  manors,  which  was  by 
**  the  fame  villain   cuftoms  and  fervices  as  the  former, 
**  and  yet  was  not  villenage  j  nor  were  the  tenants  y^rw*  ; 
"  nor  did  they  derive  their  title  from    the  Conqueft,    as 
**  the  former  did,  but  by  covenant  with  their  lords  ;   fo 
•*  that  fome  of  them  had  charters,  and  fome  not ;  and 
**  thefe,   if  eje£ied,  might  recover  feifm  by  aflife,  which 
"  none  of  the  former  could.     Befides  thefe,  there  were 
**  alfo  tenures  by  foccage,  and  knight's  fervice,   in  the 

*  Extra  Ti/ienagiiim^  that  i?,  **  out  ^  Vide  ante,  p.  tj. 

*'  of  his  iUtc  o''  vill.nage,"  ir  be-  ^  Biaft.  7. 

youd  the  lord's  villain-territory. 

**  king's 


J 
HENRY  III. 


HISTORY     OF     THE 

"  king's  clemefnes."  Thefe  latter,  fays  Bra£lon,  were  ex 
novo  feojfamento  ^in^X  pojl  Coitqueflum ;  by  which  he  feems 
to  intimate  his  opinion  as  to  the  origin  of  the  two  principal 
tenures,  thofe  in  foccage,  and  by  knight-fervice  **. 

A  VILLAIN  might  alfo  become  free  by  manumiflion ; 
which  was  a  folemn  and  exprefs  a£l  of  declaring  him  free. 
There  were  other  adls  of  the  lord  which  were  conflrued 
to  amount  to  a  declaration  of  a  villain's  liberty,  becaufe 
they  put  him  into  a  condition  incompatible  with  a  ftate  of 
fervitude.  Thus,  if  a  lord  was  to  receive  homage  of  his 
villain,  or  (liould,  without  any  exprefs  manumiffion,  give 
land  to  his  villain,  habendum  et  tenendum  I'lhere  to  him  and 
his  heirs,  though  no  homage  was  done,  fuch  gift  was  con- 
fidered  as  an  intimation  that  the  donee  fhould  become  a 
freeman.  Neverthelefs,  if  a  gift  was  made  to  hold  per 
liherum  fervitium,  it  was  otherwife ;  there  being,  accord- 
ing to  Bra(Slon,  a  difference  between  holding  libere  and.  per 
Itberum  fervitium ;  for  as  a  tenure  in  villenage  would 
not  make  a  freeman  a  villain,  fo  a  holding  by  free  fervice 
would  not  make  a  villain  free,  unlefs  it  was  preceded  by 
homage  ^. 
or  vintage.  Bract  ON  fpeaks  of  two  orders  of  villains:  namely,  thofe 

who  held  in  pure  villenagey  and  thofe  who  held  in  villain 
foccage.  In  the  former,  the  fervice  was  uncertain  and  in- 
determinate ;  fo  that  the  villain,  according  to  his  exnref- 
fion,  did  not  know  in  the  evening  what  was  to  be  done  in 
the  morning,  but  was  to  do  every  thing  that  was  com- 
manded him  ;  in  the  latter,  the  fervice  was  certain;  and 
yet  the  holding  was  not  liherum  tenementuni,  or  freehold. 
Neither  of  thefe  could  alien  their  lands,  as  freeholders 
could  ;  and  if  they  did,  it  might  be  recovered  at  law  ^ : 
but  the  way  in  which  a  villain  fockman  was  to  make  a 
transfer  of  his  eftate,  was  this :  he  was  firll  to  make  a 
furrender  of  it  to  the  lord,  or,  if  he  was  not  prefent  him- 

^  Braa.  7.  b.  e  Ibid.  14.  b.  »  Ibid.  a5. 

felf, 


ENGLISH     LAW. 


271 


felf,  to  his  fteward",  and  from  his  hands  the  conveyance     CHAP,  v, 

was  to  be  made  to  the  purchafer  ;  and  this  was  confidered    ^^T^T^yTT^ 

.  HENRY    III. 

as  the  gift  of  the  lord,  m  whom,  and  not  in  the  villain 
fockman,  the  freehold  refided^.  Bra£lon  does  not  fay 
whether  thofe  who  held  in  pure  villenage  had  even  the 
power  of  transferring  their  lands  in  this  limited  way;  and 
it  fhould  feem,  they  had  not  yet  obtained  fuch  privilege. 

We  are  enabled  to  fpeak  more  particularly  of  tenures  Of  free  fervices. 
than  we  did  in  the  reign  of  Henry  IL ;  they  had  now  be- 
come more  defined,  were  better  underflood,  and  treated 
with  much  more  refinement.  Tenure  depended  on  the 
fervices  referved  at  the  time  of  the  feoffment ;  and  there- 
fore, to  underftand  the  nature  and  variety  of  tenures,  it 
will  be  neceflary  to  confider  more  particularly  the  claufe 
of  reddendum,  by  which  the  fervices  were  referved  in  deeds 
of  feoffment.  When  a  donation  was  made  by  a  private 
per  Ton,  it  was  ufual  to  exprefs  in  the  deed,  with  fome  pre- 
cifion,  whatfoever  was  to  be  rendered  to  the  donor  in 
compenfation  for  the  thing  given.  Thus  a  gift  was  made 
fometimes  pro  homagio  et  fervit'io,  for  homage  and  fer- 
vice ;  fometimes  for  fervice  only,  without  homage.  If  it 
was  intended  to  create  a  knight's  fee,  the  proper  referva- 
tion  would  be  pro  homagio  et  fervitio  ;  but  in  the  creation 
of  a  foccage-tenure,  it  would  not  be  fo  proper  j  as  fealty 
only,  and  not  homage,  was  due  for  foccage-land :  and  in- 
deed (hould  homage  have  really  been  done,  yet  this  would 
not  entitle  the  chief  lord  to  wardfliip  and  marriage  ;  for 
ward  and  marriage  did  not  fo  properly  follow  the  homage, 
as  the  fervice,  which  in  fa 61,  and  which  alone,  made  a 
tenure,  either  military  or  foccage.  Thus  it  often  happened 
that  homage  was  not  required  even  in  military  tenures;  as 
where  one  made  a  gift  to  his  eldefl  fon  and  heir,  or  a  bro- 
ther to  a  younger  brother,  fuch  gifts  were  ufually  made 
without   referving  homage,  left  the  donor  fliould  be  ex- 

-  ^  e  Seizien/t.  ^  B-a^.  46, 

eluded 


ayz  H  I  S  T  O  R  Y      O  F     T  H  E 

CHAP.  V.  eluded  from  fuccccding  to  the  Inheritance  by  the  rule,  fiem9 
HENRY  HI  P'^^ift  ^  dom'inus  et  hccres.  For  the  fame  reafon,  gifts, 
•when  made  to  a  younger  fon,  ufed  to  be,  pro  fervitio  tail' 
ium^  tenendam  de  me  tot  a  vita  med  fibi  et  haredibus  fuisy  et 
po/i  mortem  meam  de  cap'italihus  dominis  pro  fervitio  quad 
ad  illam  terram  pertinet.  When  the  fervice  was  referved 
in  this  way,  the  elder  fon  might  be  lieir  to  the  younger, 
becaufe  there  was  no  homage  to  conflitute  a  dominium  :  if 
the  gift  had  been  te}te?idam  de  capitalihus  dominis^  it  would 
have  excluded  him  from  the  wardfhip  alfo.  In  like  man- 
ner, if  a  gift  was  made  by  the  father  to  the  eldefl  fon, 
whether  it  vjtls  pro  fervitio  or  pro  homagio^  if  it  was  to  hold 
of  the  chief  lord  of  the  fee,  and  he  died  in  the  life  of  the 
father,  the  younger  brother  would  fuccecd,  and  the  father 
be  excluded  from  the  warddiip ;  if  he  was  a  minor,  the 
ward  and  marriage  would  belong  to  the  chief  lord,  and  if 
of  full  age,  the  relief  likewife  \ 

The  refervation  was  fometimes  reddendo  fo  much  per  an- 
num at  certain  times,  oxfaciendo  fuch  and  fuch  fervices  and 
cuftoms,  pro  cmni  fervitioy  confuetudine  feculariy  exaEiione^ 
et  demandd ;  by  which  all  fecular  demands  that  belonged 
to  the  lord  in  right  of  the  tenement  were  remitted. 
It  muft  be  obferved  of  fervices  and  cuftoms,  that  fome  be- 
longed to  the  lord  of  the  fee,  and  fome  to  the  king,  cor- 
refponding  with  the  diflinction  beforementioned  between 
{uit  fervice  and  fuit  reai^.  Of  the  latter  kind,  fays  Bra£lon, 
wcTcfeSla  ad  jujlitinm  facie ndamy  as  in  writs  of  right  •,  ad 
pacem,  to  fit  in  judgment  on  a  thief  j  and  pro  aforciamento 
curia.  To  the  donor  of  the  land  belonged  fuc;h  fervices 
as  were  due  in  recompencc  of  the  thing  given,  as  rents, 
,  whether  in  gold  or  filver,  in  monies  numbered  ;  as  if  it  ran 

reddendo  inde  per  anrium  decern  aureos^argenteos ;  or  whether 
it  confifted  in  fruits  and  profits  of  the  ground,  reddendo  inde 
per  anfium  decern  coros  tritici,  four  quarters  of  barley,  four 

•   Biaft.  34.  b.  ^  Vid.  ant  465. 

barrels 


ENGLISH      LAW.  273 

barrels  of  oil,  or  the  like.     Sometimes  the  refervation  was    F\^J^Ji^^ 

made   optionally  ;    as   reddendo   inde  per  annum  (b   many    henry  III. 

gilt  fpurs,  or  fixpence,  or  a  pound  of  pepper,  or  cumin,  or 

wax,   or  a  certain  number  of  gloves;   in  which  cafes  it* 

was  at  the  option  of  the  tenant  which  of  them  he  would 

pay.     Some  fervices  were  to  be  performed  to  the  lor<l  of 

the  fee,  and  confided  in  doing  fome  act  at  certain  feafons : 

unlefs  fuch  fervices  were  f^xicified,  they  would  not  be  de- 

mandable ;   as  where  it  was  faid,  et  faciendo  hide  feci  am  ad 

curiam   dom'ini  fui^   et  hizredum  fuorum^    de   quindend   in 

quindenamy   ^c.  or,  fac'ietido  hide  fo  many  ploughings  or 

reapings,  and  the  like ;  all  which  belonged  to  the  lord  of 

the  fee,  and  were  due  out  of  and  in  right  of  his  farms 

and  tenements,  and  therefore  were  not  perfonal,  but  feudal 

or  predial  fervices. 

A  PERSON  might  InfeofF  another  to  hold  by  ferjeanfy^  Oi"  fci jeanty. 
which  was  of  different  kinds  ;  fome  fuch  fervices  belonged 
to  the  lord  who  infeoffed ;  fome  to  the  king.  Thus,  for 
inftance,  when  a  perfon  was  to  hold  by  the  fervice  of  riding 
with  his  lord '",  or  of  holding  the  lord's  pleas,  or  ferving 
his  writs  within  a  certain  diftri£l,  or  feeding  his  dogs  or 
hounds,  keeping  his  birds,  finding  him  in  bows  and  ar- 
rows, or  carrying  them,  and  innumerable  like  fervices ; 
all  thefe  were  called  ferjeanties.  Services  being  divided  into 
fuch  as  were  called  forinftc  and  fuch  as  were  denominated 
intrinfiCy  all  the  abovementioned  they  confidered  in  a  parti- 
cular manner  as  intrinfic^  becaufe  they  were  of  neceflity  to  be 
exprcfled  in  the  charter;  and  they  were  likewife  referved  to 
the  lord  of  the  fee,  and  had  not  any  reference  to  the  king's 
army  or  the  defence  of  the  realm :  in  fuch  tenure  no  ward 
or  marriage  accrued  to  the  lord,  any  more  than  in  foccage. 
Thefe  were  ufually  called  petit  ferjeantyy  to  diftinguifli 
them  from  fuch  as  related  to  the  king  only.    A  ferjcanty  of 

'  Erafl.  35.  -  m  Which   tenant?,   fays    Bradlon, 

were  uTually  called  Red  Kmgl.Ks. 

Vol.  I.  U  this 


HISTORY     OF     THE 

tills  latter  kind  was",  when  a  perfon  was  infeofFed  by  the  fer- 
vlce  of  finding  one  or  more  men  to  go  with  the  king  upon 
any  military  expedition  with  feme  kind  of  accoutrement; 
and  from  fuch  a  ferjeanty,  whether  held  of  the  king  or  a 
private  perfon,  there  were  due  to  the  chief  lord  the  ward 
and  marriage  of  the  heir  '\ 

It  was  before  faid,  that  the  above  fervices  which  were 
fpecified  in  the  deed  were  called  mirinfic.  This  term  and 
its  oppofite  were  not  wholly  confined  to  exprefs,  that  fer- 
vices were,  or  were  not  in  the  charter;  for  fome  other  fer- 
vices, though  exprefly  named  in  the  charter  of  feoffment, 
were  xzxvaz^fonnftc^  becaufe  they  belongjed  to  the  king,  and 
not  to  the  chief  lord.  Thefe  were  performed  without 
the  tenant  appearing  in  perfon,  for  he  might  fatisfy  the 
king,  fome  way  or  other,  for  the  fervice:  they  were  due  as 
accident  or  neceffity  made  them  requifite,  and  were  called 
by  various  names.  They  were  not  only  termed  generally 
forinfic,  as  they  belonged  to  the  king,  but  had  various 
other  names  of  a  more  fpecific  import.  They  were  fome- 
times  called  yt/////^///;;/,  [omttnT\Q%  fervitium  domini  regis; 
the  meaning  of  which  was  this ;  they  were  called  forinfiCy 
becaufe  the  fervice  was  done  fcris  abroad,  that  is,  extra 
Jervititnn  due  to  the  chief  lord;  fcutagium^  becaufe  it  x^- 
\2itGA  ad  fcuttiirif  and  the  n\\\'it.zry  \QXY\ct\  fervid um  r^gisy 
becaufe  it  belonged  to  the  king,  and  not  to  the  lord ;  and  a 
feoffment  by  either  of  thefe  latter  appellations  was  con- 

'^  It  might  br  cxp';£\cd  that  Erac-  accordiag  to  fome.  It  was  a  grcjt  fcr- 

ton     fhould   call     this    latter    magna  jeanty  if  valued  at  lOo  fhillings;  and 

jtrjeantia,     to    diilingn  fH     it     from  thofc,   fays  he,    might  be  called  pettt 

the  other  kind;  but  he  does  not.      Irj  J^fj/ortty  that  were  worth  hajf  a  mark, 

another  part  of  his  book  we  are  told  (87.  b  )  Whatever  difference  of  opi- 

by  this  author,  that  ferjeanty  was  dt-  nion  there  v/as  about  the  name?,  there 

vided   into   magna   and  parvoy    with  fcems  to   have   been  none   about   the 

refpeft  to  its -yu/tf^,  and  as  it  fhould  confequence    of   the    rcfp;6tive    fer- 

fcem  act   with    any   dillinQion    be-  vice?,  namely,   in    v/hat   cafes  ward 

tween  a   fervice    performed    to    the  and  marriage  wa-;  dcmandable  by  the 

king,  and  to  a  common  pcrlbn.     This  lord,  and  in  what  not, 

value  appears  not  to  have  been  very  <>  Bra£l.  25.  b. 
**;curately  defined.      He   lay%  that 

fidered 


ENGLISH      LAW. 


275 


fidered  as  the  fame   thing:   yet  if  a  diarter  gave   land     CHap    v. 
facie ndo  i?ide forinfecum  fervitiumy    isfc.   the  fervice,   or  the     urvRY 
fubftitLite  for  fervice,  was  to  be  exprefled ;   as  by  the  fer- 
vice of  one  knight^s  fee,  or  morcj  by  the  icutage  of  a  hun- 
dred (hillings ;  and  the  like  p. 

There  were  other  cuftoms  and  dues  which  were  nei- 
ther intrlnfic  nor  forinfic,  but  were  rather,  fays  Bra£lon, 
conccmitants  of  fervices  regal  or  military,  and  of  homage. 
Thefe  were  relief,  marriage,  and  wardfhip,  which  need 
not  be  exprefled  in  the  charter ;  becaufe  if  homage  and 
regal  fervice  preceded,  it  followed  that  thefe  belonged  to 
the  chief  lord,  whether  it  was  a  knight's  femce,  or  a  fer- 
jeanty  relating  to  the  army.  There  were  other  cuftoms 
and  dues  which,  Bra£lon  fays,  were  not  called  fervices, 
nor  the  concomitants  of  fervices  j  as  reafonable  aid  to  make 
the  eldeft  fon  a  knight,  or  marrying  his  eldeft  daughter  j 
which  aids  were  de  gratia,  and  not  dejure'^^  and  were  in 
confideration  of  the  lord's  neceflTities ;  for  they  were  only 
to  be  demanded  of  his  freemen  in  cafes  of  iicceflity,. 
Thefe  aids,  too,  were  confidered  as  perfonal,  and  not  pre- 
dial -,  for  they  refpe£led  the  perfon,  and  not  the  fee,  as 
may  be  colle£led  from  the  terms  of  the  king's  writ  whidi 
ufed  to  iflue  to  the  (lierifF,  commanding  him,  quod  jitflg 
et  fine  dilaiione  habere  faciat  tali  rationabile  auxilium  de 
mi  lit  ib  us  libere  tenentibus  fuis  ifi  ballivd  fuciy  Ijfc.  As 
thefe  aids  were  not  to  be  levied  at  the  pleafure  of  the  lord, 
refpeft  was  to  be  had,  in  aflcfling  them,  to  the  circum- 
ftances  both  of  the  tenant  and  lord,  fo  as  the  lord  might  be 
relieved  without  oppreffmg  the  tenant;  or,  as  Bradton  fays, 
quod  auxilium  accipietiti  cederet  ad  commodiwiy  et  dafiti  ad 
honor  em'' , 

A  MAN  might  be  infeoffcd  by  divers  kinds  of  fervices;  as, 
by  the  fervice  of  one  penny,  and  rendering  fcutage  (that  is, 
when  demanded  for  particular  oceafions,  as  before-men* 

f  Braa.  36.  U.  "  Vid.  anf,  117.  ^  BrafV.  36.  b. 

U"  2  tioncd. 


HENRY   III. 


276  HISTORYOFTHE 

CHAP.  V.  tioned),  and  by  one  or  more  of  the  ferjeanties  above 
noticed.  If  the  render  was  to  be  only  in  money,  without 
any  fcutage,  or  ferjeanty  •,  or  if  two  fervices  were  required 
optionally,  as  to  give  fome  certain  thing  pro  omfii  fer- 
'jitioy  or  a  certain  fum  of  money;  fuch  a  holding  was 
called  foccage  :  but  though  it  was  only^  for  the  payment  of 
one  farthing,  if  fcutage  and  regal  fervice  were  added 
thereto,  or  if  any  ferjeanty  was  referved,  it  was  confidered 
as  knight-fervice'.  The  creation  of  all  thefe  tenures  de- 
pended on  the  pleafure  of  the  feoffor ;  for  whatever  might 
be  the  fervice  he  was  bound  to  perform  towards  his  feoffor, 
he  might  exacl  either  more  or  lefs,  upon  making  a  feoff- 
ment to  another.  Thus  a  tenant  by  knight's  fervice  might 
infeoff  another  in  foccage,  or  make  a  grant  in  villenage. 
Again,  he  might  require  knight's  fervice,  though  he  held 
only  in  foccage  ^  :  and  in  fuch  cafe,  as  well  as  in  others, 
the  tenant  was  prote£led  againft  the  chief  lord  by  the  war- 
ranty of  the  mcfne,  who  Itood  between  them. 

The  different  kinds  of  tenure  appear,  from  the  above 
enquiry,  to  be  thefe  :  fome  were  by  military  fervice,  fince 
called  knight's  fervice,  others  by  ferjeanty ;  for  which  ho- 
mage was  to  be  done  to  the  chief  lord,  becaufe  of  the  fo- 
rinfic  and  regal  fervice,  and  of  that  which  related  ad  feu-- 
tutfiy  and  the  military  calls  for  the  defence  of  the  country. 
Another  was  a  holding  in  fodagio  liberoy  in  free  foccage^ 
where  the  fervice  to  the  chief  lord  conriued  in  money, 
and  nothing  was  due  ad  fcutum  et  fervitium  regis:  this 
was  called  foccage  from  foccusy  a  plough  ;  becaufe  the  te- 
nants thereof  were  deputed,  as  it  fhould  feem,  merely  to  be 
cultivators  of  the  ground.  In  this  tenure  the  ward  and 
marriage  belonged  to  the  neareft  relations ;  and  though 
homage  fliould  de  faFlo  be  done  for  fuch  land,  as  it  fome- 
times  was,  the  chief  lord  was  not  on  that  account  intitled 
to  the  ward  and  marriage,  as  thofe  cafualties  did  not  always, 

•  Braa.  37.  b.  «  Ibid.  36. 

though 


ENGLISH      LAW. 

though  they  ufually  did,  follow  homage.  There  was  ano- 
ther kind  of  foccage,  called  villain  foccage,  where  homage 
was  never  done,  but  only  the  oath  of  fealty  was  taken ; 
the  lord  being  interefted  to  fee  that  his  villain  did  not,  by 
any  furprize,  become  his  homager  ". 

We  are  next  to  confider  the  circumftances  of  tenure,  Homaf^e  and 
the  principal  of  which  were  homage^  fealty^  and  relief. 
Much  ftrcfs  was  laid  on  homage,  to  which  was  afcribed 
greater  efficacy  than  to  any  other  part  of  this  fyftem,  as  it 
was  the  tie  of  feudal  connection  between  lord  and  tenant. 
Homage  is  therefore  defined  by  Bradon,  to  be  that  legal 
bond  by  which  a  lord  is  held  and  bound  to  warrant,  defend, 
and  quiet  his  tenant  in  his  feifm  againll  all  mankind,  for  a 
fervice  performed  by  him,  as  exprelfed  in  the  deed  of  gift; 
and,  on  the  other  hand,  that  obligation  by  which  a  te- 
nant was  equally  bound  to  preferve  his  faith  towards  his 
lord,  and  to  do  his  proper  fervice  ;  which  conneclion,  as 
has  been  before  {hewn,  is  thus  exprelTed  by  Glanvllle  •, 
tantum  debet  donwius  tene?itiy  quantum  teneus  domincy  pva^ 
ter  folam  reverentiam  ^. 

Homage  was  to  be  done  at  the  time  of  the  gift  being 
made,  either  before  or  after  feifm :  if  feifin  was  not 
delivered,  the  homage,  fays  Braclon,  had  no  effedl ''. 
Homage  was  to  be  done  fevcral  times  by  the  fame  tenant 
to  the  fame  lord,  if  for  different  freeholds.  It  was  due  for 
all  lands,  tenements,  and  rents  -,  and  for  every  thing  elfe 
which  was  held  by  any  of  the  tenures  before- mentioned  ^. 
Homage  was  not  due  for  a  tenenicnt  that  was  held  only  for 
a  term,  (which  included  an  eftate  for  term  of  life)  but 
fealty  only.  The  pcrfon  wh.o  was  to  do  homage,  fays 
Braclon,  was  to  feek  his  lord  wherever  he  could  be  found  j 
he  was  to  approach  him  with  reverence,  and  put  both  his 
hands  between  thofc  of  his  lord  :  by  which  was  meant  to 
be  figiiified  on  the  part  of  the  lord,  protedion,  defence, 

"  I  Braa.  77.  b.         »  Ibi.l  78.  b.         -^  IL.iJ.  79.         ^  IbiJ.  79.  b. 

and 


^']^  HISTORYOFTHE 

c  H  A  P.  V.  and  warranty  ;  on  the  part  of  the  tenant,  reverence  and 
HENRY  111.  fiihje6lIon  •,  and  he  was  to  pronounce  in  that  pofture  thefc 
words :  Devenio  homo  vejler  de  tenemento  quod  de  vobis 
teneoy  et '  tenere  deheo^  et  jidem  vohh  portabo  de  vita  et 
membris  et  terreno  honore^  contra  omms  genteSy  falva  fide 
deh'ita  domino  regi^  et  haredibus  fuis  ;  which  agrees  in 
fabftance  with  the  form  in  Glanville's  time  *.  After  this  he 
was  to  take  his  oath  of  fealty,  the  form  of  which  is  not 
mentioned  by  Glanville,  and  is  as  follows  :  Hoc  audis^ 
domine  N.  quod  FiDEM  vobis  portabo  de  vita  ^  membris^ 
eorpore  et  catallis^  et  terreno  honore  :  fic  me  Deus  adjuveiy 
et  hac  fanfla  Dei  evangelia.  The  difference  between 
homage  and  fealty  was  this ;  that  in  the  oath  of  fealty, 
which  was  the  lefler  obligation,  the  tenant  engaged  to 
bear  his  faith  to  his  lord ;  in  the  other,  he  in  addition 
thereto  faid,  Devenio  vefler  homo,  that  is,  he  became  his 
homager. 

Homage  was  not  to  be  done  in  private,  but  in  fome 
public  place,  where  every  body  had  accefs ;  as  in  the 
county  or  hundred  court,  or  in  the  court  of  the  lord,  in 
the  prefence  of  many  perfons,  that  the  lord  might  have 
witnefles  of  the  tenant  being  bound  to  him.  Again,  it 
was  requifite  that  a  diligent  examination  fhould  be  made  at 
the  time,  whether  the  perfon  doing  homage  was  intitled  to 
the  land  j  as  whether  he  was  right  heir  to  the  perfon  laft 
feifed  j  what  was  the  kind  and  fize  of  the  freehold  ;  whe- 
ther he  held  it  in  demefne,  or  in  fervice ;  or  what  part 
thereof  in  one  or  the  other  * ;  all  which  was  to  prevent 
either  the  lord  or  the  tenant  being  deceived.  The  effeft  of 
homage  was  fuch,  that  this  caution  feemed  highly  ncceflary ; 
for  when  a  perfon  had  done  homage  to  one  ^\\q  turned 
out  not  to  be  his  true  lord,  yet  he  could  not  recede  from 
the  obligation  of  homage,  without  the  judgment  of  fome 
court,  fo  long  as  he  held  the  land  for  which  he  did  it. 

•  Vid.  ant.  \%\.  '  Braft,  80. 

There 


ENGLISH      LAW. 


•79 


There  were  many  ways  in  which  the  homage  was  dif-  chap.  v. 
folved  :  as,  if  either  lord  or  tenant  did  any  thing  to  the  jjc^vjot  ,., 
difherifcn  of  the  other  ;  in  the  former  cafe,  the  lord  was 
to  lofe  his  dominium  ;  m  the  latter,  the  tenant  was  to  lofe 
his  tenement.  Again,  Ihould  the  lord  die  without  heirs, 
the  homage  on  his  part  was  gone,  but  it  revived  in  the 
perfon  of  the  next  fuperior  lord,  and  ftill  continued  in  the 
perfon  of  the  tenant :  the  fame,  if  the  lord  committed  fe- 
lony. In  thefe  cafes,  the  fuperior  lord  could  not  waive  the 
homage  which  was  to  commence  between  him  and  the  in- 
ferior tenant ;  for  the  tenant  would  then  be  deprived  of  his 
warranty.  Befides,  it  might  happen  that  by  the  feottment 
the  tenant  was  bound  only  to  the  fervice  of  a  penny,  while 
the  fuperior  lord  was  bound  by  the  feoffment  he  had  made 
to  the  mefne  lord,  to  the  warranty  of  a  hundred  librates  of 
land  J  and  there  is  no  doubt,  but,  In  fuch  cafe,  a  lord 
would  gladly  renounce  his  claim  of  homage,  if  the  law 
would  permit  him.  Nor  would  it  avail  the  lord  to  fav, 
that  the  tenant  was  not  infeofFed  by  him,  and  that  he 
claimed  nothing  in  the  homage  ;  for  as  there  might  be  fe- 
veral  fuperior  lords,  fo  there  might  be  feveral  tenants  one 
below  another ;  and  the  chief  lord  of  all  held  the  lowcft 
tenant  bound  to  him  by  the  ties  of  homage,  becaufe  he 
was  within  his  fee,  though  per  medium ;  and  when  that 
mediuSy  or  mefne  lord  was  taken  away  for  any  caufe  what- 
foever,  the  connection  between  the  chief  lord  of  all  and 
the  inferior  tenant  became  immediate ;  fo  that,  one  wav 
or  other,  the  inferior  tenant  was  within  the  homage  of 
the  fuperior  lord  *.  To  illuftrarc  this  by  an  inftance  :  if 
I  infeofF  A.  and  A.  iiifeoffs  B.  and  B.  infeoffs  C.  and  fo 
on  ;  then  every  tenant,  from  the  firfl  to  the  laft,  would 
be  my  tenants,  and  I  their  lord ;  the  only  difference  being, 
that  the  firlt  would  be  immediate  tenant,  the  others  io 
per  medium. 

»  Br»a.  So.  b. 

We 


28o  HISTORYOFTHE 

;^ .   A  P.  V.         We  have  been  (liewing  how  the  obligation  of  homage 
•"*^.  ,  xr  ,,,      might  ceafe  in  the  perfon  of  the  lord,  and  remain  in  the 

:  .i^NRY    III.  o  * 

perfon  of  the  tenant.  In  like  manner  might  the  homage 
eeafe  in  the  perfon  of  the  tenant  and  continue  in  that  of 
the  lord :  as  where  the  tenant  parted  with  the  whole  inhe- 
ritance, and  infeoffed  another  to  hold  of  the  chief  lord, 
then  the  tenant  was  abfolved  from  the  homage ;  that  is, 
the  homage  was  wholly  extinguiflied  as  to  him,  whether 
the  lord  contented  or  not,  and  commenced  in  the  perfon  of 
the  alienee,  who  now  was  bound  to  the  lord  ;  and  fhould 
the  feoffee  re-infeofF  the  feoffer  to  hold  of  the  fame 
chief  lord,  the  homage  of  the  tenant  would  thereby  be 
revived.  The  homage  would  ceafe  alfo  when  the  tenant 
died  without  heirs,  or  committed  any  felony  ;  in  which 
eafes  the  tenement  ejcheated  to  the  chief  lord.  The  tie  of 
homage  and  fealty  was  likewife  diflblved,  when  the  tenant 
difavowed  the  fervices  by  which  he  held,  or  denied  that 
he  held  of  the  lord  at  all ;  in  which  cafe  the  lord  had  two 
remedies  ;  he  might  either  waive  the  forfeiture  of  the  te- 
nement, and  proceed  for  the  recovery  of  the  fervices  ;  or 
avail  himfelf  of  the  tenant's  default,  and  demand  the  te- 
nement by  a  writ  of  efcheat,  or  ''by  a  writ  of  right. 
Should  the  tenant  do  any  atrocious  injury  to  his  lord,  or 
fide  with  his  enemy,  by  giving  advice  or  affiflance  againfl 
his  lord  (except  it  was  with  the  king,  or  the  fuperior  lord 
of  all,  to  whom  he  had  done  allegiance),  or  do  any  thing 
to  the  diflierifon  of,  or  put  violent  hands  on,  his  lord ; 
all  thefe  were  breaches  of  faith  which  difTolved  the  homage 
on  the  p^rt  of  the  tenant.  It  muft  be  obfcrved,  that 
homage  remained  in  force  between  lord  and  tenant  as  long 
as  the  heirs  of  both  parties  continued  (which  tenure  was 
therefore,  in  after-times,  called  homage  auncejirell) ;  but 
upon  the  failure  of  any  of  them,  the  homage  ccafed,  and 
could  be  revived  in  the  perfons  of  others  only  by  fome  new 

»»  Braa.  81. 

caufc. 


HENRY  m. 


E  N  G  L  I  S  H      L  A  W.  zSi 

caufe.     A  tenant  might  decline  holding  his  tenement,  and     CHAP.  v. 
(o  diflblve  the  homage  :  he  might,  lays  Bra£lon,  alfo  fur- 
render  the  tenement  and  homage  to  the  lord  propter  capi- 
tales  hihnicitiaSy  and  fo  diflblve  the  homage,  that  he  might 
be  at  full  liberty  to  profecute  an  appeal  againil  him. 

It  feems,  that,  in  general,  the  lord  could  not  attorn,  as 
they  called  it,  or  transfer  to  another  the  homage  and  fer- 
viccs  of  his  tenant  againfl  his  confent,  particularly  the 
homage  j  for  by  fo  doing  he  might  fubjed  him  to  a  perfon 
who  was  his  declared  and  inveterate  enemy.  A  flight 
enmity,  however,  was  not  an  objedion,  where  the  law 
allowed,  as  it  did  in  fome  cafes,  fuch  an  attornment  even 
againfl:  the  tenant's  confent.  The  moft:  ufual  way  of 
attorning  the  homage  was,  on  a  fine  in  the  king's  court, 
where  the  homager  was  to  be  fummoned  to  fhew  caufe 
why  the  homage  fhould  not  be  done  to  the  other  perfon ; 
and  if  he  could  not  fliew  fufficient  reafon  to  the  contrary, 
it  would  be  attorned  without  his  concurrence  ^,  There 
were  other  infl:ances,  where  homage  might  be  attorned  ;  as 
when  land  was  given  in  marriage  ;  when  land  was  fold  for 
redemption  of  the  lord's  perfon  -,  in  both  which  cafes  it 
might  be  attorned,  unlefs  any  particular  reafon  could  be 
{hewn  to  the  contrary.  This  refl:raint  upon  the  attorn- 
ment of  homage  was  founded  on  other  reafons  befides  thofe 
beforementioned  ;  as  homage  was  the  bond  by  which  the 
tenant  claimed  the  warranty  and  excambiutn  of  his  lord, 
it  was  right  that  the  lord  (liould  not  have  the  power  of 
transferring  this  obligation  to  another,  who  might  be  in- 
digent, and  not  able  to  anfwer  the  warranty.  This  re-r 
llriftion  was  wholly  in  favour  of  the  tenant,  for  whofe 
benefit,  indeed,  homage  feemed  principally  calculated;  and 
if  it  was  jufl:  that  a  lord  fliould  not  be  at  liberty  to  decline 
the  homage  of  the  tenant,  it  was  equally  fo  that  he  (hould 
not  attorn  it  without  his  aflent. 

'  Biaa,  8i.  l>. 

Although 


282  HISTORYOFTHE 

CH  \  p.  V.  Although  the  lawimpofed  this  reftralnt  as  to  homage, 
HENRY  III  y^^  fervice  might  be  attorned  in  all  cafes  without  requir- 
ing the  aflent  of  the  tenant  j  and  the  perfon  to  whom  it 
was  attorned  might  diftrain  for  it,  without  the  tenant  being 
able  to  make  any  refiftance  thereto**.  In  fuch  cafes,  fome 
thought,  that  fliould  the  diflrefs  be  for  the  homage  and  fer- 
vice both,  it  ought  to  ceafe  as  to  the  homage,  though  it  held 
good  as  to  the  fervice ;  diftrefs  being  incident  to  fervice, 
and  belonging  of  courfe  to  the  perfon  who  was  entitled  to 
the  fervice.  Yet  a  tenant  was  not  to  be  opprefled  bv  an 
attornment  of  fervice,  any  more  than  by  an  attornment  of 
homage  ;  it  was  advifeable  therefore  for  the  tenant,  in  or- 
der to  fecure  himfelf  from  any  unreafonable  demands  of 
his  new  lord,  to  get  from  him  a  charter,  granting,  that  he 
would  not  demand  more  fervices  than  were  due,  and  charg- 
ing himfelf  with  a  warranty  and  excambiumy  in  the  fame 
manner  as  the  firft  lord  was  bound. 

If  the  lord  refufed  to  receive  the  homage,  the  tenant 
had  feveral  remedies.  In  the  firit  place,  the  fervice,  which 
the  tenant  was  not  bound  to  without  homage,  was  loft  to 
the  lord  ;  and  fhould  homage  be  forced  upon  the  lord  by  a 
judgment  of  court,  the  arrears  of  fervice  were  ftill  loft. 
If  the  homage  was  refufed  publicly  by  the  lord,  the  tenant 
might  attorn  himfelf  to  the  next  fuperior  lord  ;  and  if  he 
refufed,  to  the  next ;  and  fo  on  to  the  king,  who  was  the 
chief  lord  of  all  -,  and  if  they  all  refufed,  the  tenant  was 
quit  of  all  demands  for  fervice.  But  ftiould  any  of  them 
accept  it,  the  immediate  lord,  who  had  refufed  it,  could 
never  recover  the  homage  or  fervice ;  though  he  would,  on 
account  of  his  wilful  refufal,  be  ftill  bound  to  warranty, 
notwithftanding  the  perfon  to  whom  the  tenant  did  homage 
had  the  fervice  *". 

When  a  mefne  lord  had  accepted  the  homage  and  fealty 
of  his  tenant,  and  received  the  fervice,  but  had  applied  it 

^  Braa.  8z.  «  Ibid.  82.  b. 

to 


E  N  G  L  I  S  H      L  A  W.  283 

to  his  own  ufe  without  acquitting  him  from  the  demands  CHAP.  v. 
of  the  fuperior,  and  this  was  proved  in  the  prefence  of  upMoy  m 
good  and  lawful  men ;  he  might,  in  future,  without  any 
breach  of  law,  fatisfy  the  chief  lord  with  his  own  hands, 
by  doing  his  fervice  to  him  j  and  yet  the  mefnc  lord  would 
not,  on  that  account,  be  difcharged  from  his  warranty  \ 
The  remedy  againft  the  mefne  lord,  in  fuch  cafes,  was  by 
writ  de  medio. 

After  homage  was  performed,  the  next  thing  for  the  Relief. 
heir  to  do,  was  to  pay  the  relief;  fo  called,  fays  Bra£lon, 
becaufe  thereby  the  tenement  and  inheritance  which  was 
in  the  hands  of  the  anceflor,  et  qua  ] ACEt^s  foit  per  ejus 
decejfum^  relevatur  in  manu  haredis.  The  fums  to  be 
given  on  thefe  occafions  were  fettled  by  Magna  Charta  *, 
except  in  tenure  by  ferjeanty,  which  was  ftill  left  to  the 
difcretion  of  the  lord  ^.  A  relief  was  to  be  paid  only  in 
cafes  of  fucceflion,  and  never  upon  a  change  of  tenant 
by  buying  or  felling,  or  any  other  fort  of  purchafe  ^.  It 
was  to  be  paid  to  the  next  immediate  lord,  and  no  other : 
it  was  to  be  paid  only  once,  and  not  upon  the  change  of 
the  lord  ;  for  though  homage  might  be  done  feveral.  times, 
relief  was  to  be  paid  only  once  ' ;  fo  that  the  doubts  ex- 
prefled   by  Glanville    on    this  head  no  longer  cxiftcd  ^,  * 

Another  gift  was  to  be  made  to  a  lord  by  the  heir  when 
he  fucceeded  his  anccftor,  which  was  called  a  heriot. 
This  was,  however,  in  nothing  like  a  relief;  for  it  was 
given  by  all  tenants,  as  well  villain  as  free,  and  it  rather 
came  from  the  deceafed  than  the  heir  :  it  was,  fays 
Bra£ton,  when  a  man  remembered  his  lord  by  the  befl: 
bead,  or  fecond  befl  bead  he  died  poffefled  of,  according 
to  the  cuftom  of  different  places,  and  was  rather  de  gratia 
than  dejure\  and,  in  fa^:,  it  related  not  at  all  to  the  inhc- 


'  Biaa.  84.  b. 
^  Vid.  ant.  I2r. 
I  Braci.  86. 

The 


ritance '. 

f  Braa 

.  S4. 

*  Vi,1. 

ant. 

235. 

B  I5raa, 

8*. 

^  Vid. 

ant. 

»*5> 

126 

2^4  H  I  S  T  O  R  Y      O  F     T  H  E 

CHAP.  V.         The  fubjecl  of  ward  and  marriage  is  treated  by  Glan- 

HENRY  111     v^^'^>  ^"^  ^y  Bra<n:on,  principally  in  the  fame  way,  and 

fometimes  in  the  fame  words;  we  fhall  therefore  touch 

Of  wanifliip 

and  marriage.      upoH  fuch  parts  only  as  are  dated  fomewhat  difFerently>  or 
are  difcourfed  upon  more  at  large  by  Bradlon. 

The  age  of  female  w^ards  was  contended  by  fome  to  be 
at  fifteen  years  complete,  both  in  military  and  foccage  te- 
nure *,  for,  as  to  the  former,  they  faid,  that  fhe  might  have 
a  hufband  who  was  equal  to  perform  the  military  fervice"; 
and  therefore  fhe  might,  with  propriety,  be  reckoned  of 
age  before  flie  was  twenty-one  years  of  age.  But  this 
opinion  is  combated  by  Bra£lon,  who  fays,  that  the  fame 
principle  might  make  her  of  age  at  an  earlier  period ;  and 
he  therefore  lays  it  down,  that  there  is  no  diftin6lion  be- 
tween male  and  female  wards,  in  the  refpeclive  tenures ; 
and  that  it  was  only  in  the  latter  that  females,  (as  we  have 
before  (hewn  of  males)  were  to  be  confidered  as  of  age  at 
fifteen  years  *,  at  which  time,  fays  Bra£lon,  a  woman  is 
able  to  manage  her  domeftic  concerns  ";  which  is  a  fimilar 
defcription  to  that  given  by  Glanville  ^y  and  adopted  by 
Bra6lon,  of  the  qualifications  of  an  heir  in  burgage-tenure : 
and  the  latter  author  mentions  fifteen  as  the  proper  age  for 
the  infancy  of  a  tenant  in  foccage  to  ceafe,  becaufe  he  was 
then  able  to  attend  to  affairs  of  agriculture. 

It  is  laid  down  pofitively  by  Glanville,  that  if  a  pcrfon 
married  his  daughter  and  helrefs  without  the  aflent  of  his 
lord,  he  fiiould  forfeit  his  inheritance ;  and  that  a  widow 
who  married  without  her  lord's  aflent,  Ihould  in  like 
manner   forfeit  her  dower?.    Thefe  two  points  are  re- 

»"  Brac)oa    fays,    another    r^r.foa  Saxensce    ejl    calculus  •,    Kite, 

was  ^ivcn  in  favour  of  this  early  li-  cLAVis  ;  quaji  eo  jpeSlaret  kic  Iccus^ 

beration     from     pupillage  :     Fcemina  ut    fcemira     cangru^     irtatis     habe- 

magt!  dili  capax  ejl  quant  mafculus^  et  retttt,,  ft  computum  et  clates</j- 

maturi'.ra  j'uni  vote  multens  quam  li'  i.  mefltcai  raleret  twrar^Sptlman,  voce. 

^  To  this.  Biadon  adds,   that  fiie  Bract.  86.  b. 
might /f-fl^^rf  CO  I.N  F.  ^'  KLEYKv  which  "   Vid.  ant.  H4. 

isthuscJiplaincdbySpcIman-.CoLNB  p   Vid.  ant.  1 16,  i  1 7. 

cognifed 


E  N  G  L  I  S  H      L  A  W.  285 

cognlfed  by  Bra£ton  as  remnants  of  the  old  law,  which  had     chap.  v. 
gone  out  of  ufe.     "We  have  before  feen  what  notice  was    ^pj^rj^y  m 
taken  of  this  cruel  piece  of  law  by  Magna  Charta  \  and  it 
was  now  laid  down  by  Bra£ton,  that  in  both  cafes  the 
lord  was  only  intitled  to  a  penalty  ;  the  meafure  of  which, 
however,  he  does  not  mention  1, 

When  an  infant  fucceeded  to  inheritances  that  were  held  ^ 

of  different  Idrds,  the  cuftody  of  the  lands  belonged  to  the 
refpe6live  lords  of  whom  they  were  held ;  but  the  cullody 
of  the  heir's  perfon,  and  the  marriage,  which  was  the  great 
fource  of  emolument  to  the  lord,  could  belong  to  one 
only ;  and  there  was  fome  difficulty  in  afcertaining  who 
that  perfon  (hould  be.  It  is  laid  down  generally  by  Glan- 
ville,  that  this  fhould  be  the  chief  lord  of  whom  the  heir  held 
his  firft  fee  "■  *,  and  that  the  king,  by  his  prerogative,  was 
intitled  to  certain  preferences.  The  manner  in  which  both 
thefe  claims  were  adjufted  is  more  fully  explained  by 
Bratlon. 

As  an  exception  to  the  prerogative,  which  gave  to  the 
king  the  cuftody  of  the  heir  and  his  lands  of  whomfoever  ^ 

they  were  held  by  knight-fervice,  it  is  laid  down,  that  if 
any  held  of  the  Wx^gper  fcedi  firmam^  or  in  foccage,  or  in 
burgage,  or  hy  ferjeanty^  to  perform  the  fervice  of  finding 
him  knives,  or  darts,  or  the  like,  the  king  fliould  not  have 
cuftody  either  of  the  heir,  or  of  the  lands  he  held  of  any  one 
elfe-,  nor  if  he  held  of  the  king  as  of  an  honor  or  efcheat; 
it  being  provided  by  Magna  Charta ',  that  the  tenure  in 
fuch  cafe  ftiould  remain  the  fame  as  it  was  when  in  the 
hands  of  the  former  pofleOor-,  though,  even  in  cafe  of 
efcheats,  if  the  heir  held  under  a  new  grant  from  the  king, 
the  king's  prerogative  to  wardfhip  would  prevail.  This  pre- 
rogative of  the  king,  therefore,  prevailed  in  refpe£l  only  of 
a  tenant  who  held  of  him  :';;  capite  by  military  tenure,  or 
by  a  ferjeanty  to  attend  the  king's  perfon ;  and  it  only  ex- 

1  Braa.  88.  »  Vid.  ant.  115.    .  *  Viii.  ant.  138. 

tended 


286  HISTORYOFTHE 


HENRY   III. 


CHAP.   V.     tended  to  fubje£l  lands  held  by  military  tenure  to  the  ward 
of  the  crown  \ 

In  foccage-tenure  the  wardship  belonged  to  the  next  of 
kin,  and  not  to  the  lord ;  and  therefore,  in  general,  if  an 
heir  had  inheritances  held  in  foccage  of  different  lords, 
there  could  arife  no  queftion  about  priority  of  feoffment, 
to  afcertain  the  right  of  wardfhip,  as  in  military  tenures  ,• 
though  it  is  faid  by  Bra£ton,  that  by  fpecial  cuftom  in  fomc 
places,  and  amongfl  others  in  the  bifhopric  of  Winchefter, 
the  lord  had  the  wardfhip  in  foccage  tenure,  and  in  fuch 
cafes,  recourfe  muft  of  neceffity  be  had  to  priority  to  de- 
termine who  was  chief  lord  ;  yet  this  preference  was  only 
againft  lords  whofe  tenures  lay  within  the  reach  of  the  cuf- 
tom, and  not  againft  other  perfons". 

The  firft  fee  in  many  cafes,  which  conftituted  a  perfon 
chief  lord,  and  gave  him  the  priority,  was  the  fee  that  was 
firft  delivered  to  the  heir.  The  lord  was  not  to  receive 
homage  before  he  had  delivered  the  inheritance  to  the 
heir :  the  wardfhip  and  marriage  could  not  be  demanded 
from  the  infant  heir,  any  more  than  relief,  or  any  fervice 
could  from  the  heir  of  full  age,  before  homage ;  the  de- 
livery, therefore,  of  the  inheritance  was  the  firft  flep  to- 
wards acquiring  a  right  to  the  wardfhip  and  marriage,  and 
the  receiving  of  homage  completed  the  claim.  It  follows 
from  hence,  that  as  long  as  the  homage  of  the  anceftor 
had  continuance,  no  delivery  was  to  be  made  of  the  inhe- 
ritance, and  that  homage  <jontinued  during  the  anceftor's 
life,  unlefs  he  had  made  any  transfer  of  the  land  which 
broke  the  homage.  Every  transfer  had  not  that  effe£l. 
Thus,  if  a  perfon  holding  by  military  fervice  and  homage, 
granted  the  land  to  his  fon  and  heir  for  life,  to  hold  either 
of  himfelf  or  of  the  chief  lord,  the  homage  flill  conti- 
nued between  the  father  and  the  chief  lord ;  but  it  would 

«  Bradi.  87  b.  "  Ibid.  88. 

have 


E  N  G  L  I  S  H      L  A  W.  287 


HENRY    Hi. 


"have  been  broken,  if  the  father  had  parted  with  the  whole     chap.  v. 
inheritance. 

The  ceafmg  of  the  homage  and  the  deHvery  of  the  in- 
heritance will  be  better  undcrftood  by  confidering  the  fol- 
lowing cafes.  Suppofe  A.  having  an  inheritance,  mar- 
ried B,  having  one  alfo ;  both  held  of  the  fame  lord. 
They  have  a  fon.  A,  dies,  leaving  his  wife  B,  alive :  the 
inheritance  of  A,  might  be  delivered  to  the  heir  by  the 
lord,  who  would,  in  confequence,  be  entitled  to  homage, 
ward,  and  marriage.  But  if  ,5.  the  wife  had  died,  leaving 
A.  alive,  it  would  be  otherwife ;  becaufe  the  homage  done 
by  A.  in  the  name  of  his  wife  dill  continued;  for  it 
could  not  be  diiTolved  during  his  life,  as  he  was  intitled  to 
hold  the  land  per  legem  Auglia  :  the  heir  of  A.  therefore 
continued  in  the  power  of  th<;  father,  during  whofe  life  he 
owed  no  homage  to  the  lord ;  as  two  homages  could  not 
be  done  for  the  fame  land.  And  fo  it  was,  where-ever  the 
heir  was  defcended  both  from  the  hufband  and  wife ;  but  it 
was  otherwife,  where  there  was  a  fccond  marriage,  and 
he  was  defcended  only  from  one.  As  for  initance,  if  the 
wife  only  had  an  inheritance,  and  the  hufband  died  firft, 
leaving  an  heir,  the  inheritance  could  not  be  delivered  dur- 
ing the  life  of  the  wife  *,  and  of  courfe  the  lord  would  not 
have  wardfliip  and  marriage  :  (0  if  flie  married  one  or  more 
hufbands,  there  was  ftill  to  be  no  delivery;  and,  of  courfe, 
no  ward  or  marriage,  as  long  as  (lie  or  any  of  her  hufbands 
lived  :  the  fame,  if  the  wife  died,  leaving  any  hufband 
alive  :  but  as  foon  as  the  furviving  hufband  died,  then  the 
inheritance  might  be  delivered  to  the  heir  of  the  deceafed 
wife  by  her  liril  hufband,  and  ward  and  marriage  would 
follow. 

Thus,  as  the  preference  depended  upon  the  delivery  of 
the  inheritance,  ar\d  that  upon  the  death  of  the  perfon  in 
fcifm,  if  mieht  happen  that  the  death  of  the  hufband  and 
wife  might  fall  fo.  near  as  to  leave  a  difficulty  in  determin- 
ing which  died  firft.'    In  fuch  cafe  they  ufed  to  recur,  as 

•»•  in 


288  HISTORY     OF     THE 

CHAP.  V.  in  Glanvllle's  time,  to  the  firfl  feoffment,  and  dlfregard 
HENRY  III  ^^^  priority  of  delivery ;  and  fo  they  did,  when  the  inhe- 
ritance on  the  part  of  the  father  and  that  on  the  part  of 
the  mother  were  held  of  different  lords,  and  were  united 
in  the  perfon  of  the  heir  ^. 

The  guardian  in  foccage  had  the  marriage  of  the  heir 
and  all  other  cafualties  and  profits  of  wardihip  the  fame  as 
the  guardian  in  military  tenure  ;  and  what  is  very  remark- 
able, the  right  of  the  guardian  in  foccage  was  fo  much 
confidered,  that  the  law  allowed  the  apparent  next  of  kin 
to  take,  notwithftanding  he  was  abaflard  and  illegitimate'^. 
This  made  a  guardianfhip  in  foccage  as  great  an  obje£l 
as  that  In  military  tenure,  and  the  ftruggle  for  the  mar- 
riage of  the  heir  did  not  lie  only  between  the  different 
lords  of  whom  he  held  In  military  tenure,  but,  If  he  alfo 
held  any  foccage  lands,  there  might  be  a  contefl  between 
the  lord  In  military  tenure,  and  the  perfon  who  was  intitled 
to  be  guardian  in  foccage.  When,  therefore,  land  in  mili- 
tary tenure  defcended  from  the  father,  and  land  in  foccage 
from  the  mother,  or  vice  verfdy  and  they  both  centered 
in  the  fame  heir,  the  marriage  of  the  heir  was  decided,  fays 
Bra£lon,  by  priority.  In  the  manner  before-mentioned  ^. 
But  if  lands  in  foccage  and  in  military  tenure  defcended 
from  the  fame  anceflor ;  then,  notwithftanding  the  foccage 
might  be  of  the  prior  feoffment,  yet  the  privilege  of  mi- 
litary tenure  prevailed,  and  the  lord  of  thofe  lands  would  ex- 
clude the  next  of  kin,  and  have  the  ward  and  marriage^. 

Thus  was  the  perfon  of  the  infant  heir  made  a  property 
of  either  by  his  guardian  in  chivalry  or  In  foccage  ;  the  dif- 
pofal  of  the  heir  in  marriage  might  be  fold  to  the  befl  pur- 
chafer,  like  the  fruits  and  profits  of  his  lands.  "We  fliall 
foon  fee  *,  that  the  leglflature  made  fome  provifion  againfl 
this  oppreffjon.  In  the  cafe  of  guardians  in  foccage  •,  but 
the  others  were  rather  fecured  in  their  rights  by  another 

•  Buft.  89.  b.      «  IbU?.  8S.      ->  Ibid.  88.  b,       •  Hid.  91.      *  Stat.  Mas  lb. 

provifion 


E  N  G  L  I  S  H      L  A  W.  289 

provlfion  of  this  reign,  which  made  void  all  conveyances    CHAP.  v. 

of  the  inheritance  to  the  heir  in  the  hfe  of  the  anceflor;     „     ,,-„.., 

.  .  HBIsRY  III. 

a  pra6^ice  by  which  tenants  in  chivalry  endeavoured  to 
avoid  the  claim  of  ward  and  marriage  ^, 

Having  confidered  the  terms  and  conditions  on  which  Of  g.ftsof  land: 
landed  property  might  be  held,  the  next  obje£^  which  na- 
turally prefents  itfclf,  is,  the  manner  of  acquiring  a  title  to 
property:  and  this  was  of  three  kinds;  hy  gi/ty  hy  fuc- 
cejjluij,  and  by  luilL  We  fhail  confider  thcfe  three  in 
their  order,  beginning  with  the  nrfl:  ^.  A  gift  of  land  might 
be  confidered  in  various  ways ;  either  as,  what  is  called 
by  Bra^on,  libera  et  pur  a  donGtic,  or  that  which  was  fub 
co/iditlsfie  s  and,  in  another  refpe^l,  fuch  as  was  abfoluta 
et  larga^  or  that  which  was  Jlvlcla  et  coarSlata  to  certain 
particular  heirs,  with  an  exclufion  of  ethers.  Thefe  will 
be  treated  of  more  minutely  hereafter  \  when  we  have  firft 
enquired  what  perfons  were  capable  of  making  gifts  of 
land,  and  what  not. 

The  perfon  who  was  regularly  and  properly  Intitled  to  By  whora: 
make  a  gift  of  his  land,  was  he  who  was  feized  in  fee ;  but 
yet  fome  others  who  had  an  inferior  intereft,  could,  to  a 
certain  degree,  make  a  gift ;  as  any  one  who  bad  a  free-, 
hold,  though  only  for  life  ;  and  even  fuch  as  had  no  free- 
hold \  as  one  who  had  a  term  for  years,  or  the  wardfhip  of 
land:  and  indeed  thofe  who  had  no  lawful  title ;  as  one 
who  was  in  feifin  by  intrufion  or  by  diffeifin,  might,  fays 
Bra6lon,  convey  a  freehold,  though  it  was  not  a  complete 
and  indefcafible  one.  A  gift  made  by  a  minor,  or  a  mad- 
man, would  be  good,  if  confirmed  after  the  one  was  of 
age,  and  the  other  had  become  of  fane  mem(5ry^  Thofc 
who  could  not  make  a  gift,  were  fuch  as  had  not  a  ge- 
neral and  free  difpofal  of  their  property  :  fuch  was  the 
condition  of  minors,  who  were  fub  tuteld  vel  curd ;  yet 
thefe  could  accept  a  gift  with  confent  of  their  tutor,  a;^  the 

»  Vivl.  poft.  Stat.  Marlb.  ^  jjraiV.  TO,  b.  *  IbiJ.  Ji.  b. 

VoT..  I.  X  ,  law 


/ 


HISTORY      OF     THE 

law  allowed  them  to  mdiorate  their  condition,  though  not 
HENRY^uT.    ^^  leflen  it  by  making  a  gift,  even  with  confent  of  their 
tutor  :  the  fame  of  a  perfon  deaf  and  dumb  ;   a  perfon 
taken  prifoner  by  an  enemy,  while  in  the  enemy's  cuftody ; 
or  a  leper  removed  from  the  converfe  of  mankind.    Others 
were  incapacitated  fub  modo.     Thus  archbifliops,  bifhops, 
abbots  and  priors,  could  not  make  gifts  without  the  aflent 
of  the  chapter  J  nor  the  chapter  without  the  alTent  of  the 
king,  or  other  patron,  whoever  he  might  be  ;  the  con- 
currence of  all,  whofe  intereft  was  concerned,  being  ab- 
Tolutely  requifite.     R  colors  of  churches,  as  they  poflefTed 
nothing  but  in  the  name  of  their  churches,  could  make  no 
alienation  thereof  but  by  confent  of  the  bilhop  or  patron*'; 
nor  even  make  any  change  therein  for  the  better  ^.     Brac- 
ton  lays  it  down,  that  a  baftard  could  not  give  his  land 
unlcfs  he  had  heirs  of  his  body,  or  he  had  made  lawful 
afTigns  thereof,  conformably  with  the  terms  of  the  dona- 
tion.    This  reftriQion  on  the  alienation  of  a  baftard  feems 
to  have  been  impofed  in  favour  of  the  lord,  who,  as  the 
law   now  ftood  (though  it  was  otherwife   in   Glanville's 
time),  would,  on  failure  of  heirs,  fucceed  by  efcheat.    For 
a  {imilar  reafon  no  one  charged  with  felony  could  alien  his 
land  with  effect,  though  the  gift  would  hold  ////  he  was 
convicted,  and  if  he  was  acquitted  would  be  valid.     All 
cifts  between  a  hufband  and  wife  were  void  *  ;  nor  could  a 
hufband  give  his  land  to  another,  to  be  conveyed  by  the 
donee  tcr  his  wife  in  his  life-time,  or  after  his  death,  as  that 
would  be  a  fraud  upon  the  letter  of  the  law. 
To  7/hom.  Thus  far  of  the  perfons  who  might  make   a   gift  of 

land ;  next  of  thofe  to  ivhom  a  gift  may  be  made.  A 
gift,  as  has  been  before  faid,  might  be  made  to  a  minor ; 
and  in  fuch  a  cafe,  a  tutofy  or  curator^  ufed  to  be  appointed 
to  accept  and  take  care  of  fuch  gift ;  but  the  law  did  not 

*  So  Brat^on   reaH^       Qucre,    if  •     *  Bra£V.  12. 
jt  fliould  liOt  be  tfii  *  *    Vid.  iint.  91.  III. 

allow 


ENGLISH      LAW. 

allo^v  the  feoiTor  to  appoint  fuch  tutor  ^;  for  that,  lays 
BravSlon,  would  feem  like  a  continuance  of  the  feifin,  in- 
ftead  of  making  a  feotFment  of  it.  A  gift  might  be  made 
to  a  Jew,  unlefs  the  original  charter  had  a  claufe  which 
forbid  fuch  an  alienation  -,  it  being  very  common  in  thofc 
days  to  add  to  the  claufe  of  afTignment  exceptrs  viris  reli" 
'nofis^  et  Judx'is  :  it  feems,  that  Jews  were  not  by  law  in- 
\  capacitated  from  taking  gifts  of  land,  except  in  thefe  parti- 
cular cafes  ^.  If  a  gift  was  made  by  a  man  to  his  wife  and 
liis  children,  or  her  children  begotten  of  another  hufband, 
the  gift,  though  void  as  to  the  wife,  would  hold  as  to  the 
others. 

It  has  before  been  faid,  that  a  perfon  might  give  what  he 
iiad  in  fee,  for  life,  or  for  years;  to  which  may  be  added,  that 
he  had  this  power,  whether  he  was  feifed  to  himfelf  folely, 
or  in  common  with  another.  He  might  alfo  give  that 
which  he  had  in  expectancy  after  the  death  of  his  anceftor, 
who  held  it  in  fee.  He  might  give  what  he  had  granted 
before  to  another  for  a  term  of  years,  with  a  faving  to  the 
farmer  of  his  term  ;  becaufe  thefe  two  poflefTions  could  very 
well  confifl  with  each  other,  fo  as  one  fhould  have  the  free- 
hold, and  the  other  the  term.  " 

It  has  before  been  fhewn,  that  thefe  gifts  might  be  of 
greater  or  lefs  extent  and  duration  ;  they  might  be  in  fee, 
for  life,  in  fee  farm,  for  term  of  life,  or  for  term  of  years. 
Where  a  gift  was  for  life,  whatever  the  circumftances 
rnieht  be,  the  donee  had  immediately  Uherum  tenementuniy 
or,  as  it  has  fincc  been  called,  a  freehold  mierejl^  fo  as  to 
have  an  affife,  if  he  was  ejedled;  and  fuch  a  donee  might, 
as  has  before  been  faid,  make  an  imperfc^  donation  in  fee, 
or  for  life ;  fo  great  confideration  did  the  law  beflow  on  a 
freehold  of  any  fort  ^. 

*^  Bra£V.  iz.  h.     It  !s  to  be  reerstt-  te5\    prrperty    given  to   an   iafant   is 

ft\  that  Bratlon  has  nut  in  ormed  us  adopted  from  the  lame  fourcc.      Inl'. 

by  whom  he  was  to  be  appointed.  lib.  i.  tit.  13.  ct  lequfnt. 

Thefe  terms  of  ^utor  and  Curator  e   nra<5l.  13. 

are    borrowed   from  the    civil   law,  ^^   Ibid.  13.  b. 

and  tiiC  appointment  of  them  to  pro- 

X  -  To 


29^ 


HISTORY      OF     THE 


HENRY 


CHAP.  V.         To  afccrtain  that  gifts  were  a£lually  made  by  the  parties 
whofe  names  were  to  the  deed  of  gift,  and  that  they  were  in 
a  capacity  to  manage  their  affairs,  a  writ  was  framed  requir- 
ing the  flieriff  to  make  inquifition  whether  the  donor  was 
compos  Jul ;  which  writ  was  either  to  be  executed  before  the 
fheriff,  and  guardians  of  the  pleas  of  the  crown,  or  before 
the  jufliices  at  Wedminlkr  '\      There  was  another  writ, 
to  enquire  if  it  was  the  donor's  feal,  or  was  really  affixed 
to  the  charter  by  him  ;    and  if,  upon  enquiry,    any  one 
was  charged  with  a  fraud  refpeding  the  gift,  he  was  fum- 
moned  to  anfwer  for  it  •".     All  gifts  (hould  be  free,   and 
without  compulfion  \  and  therefore,  fliould  it  be  proved 
that  any  coercion  was  ufed  with  the  donor,  the  gift  was 
revoked  j  but  if  the  donor  diffembled  the  force,  and  did 
not  complain  of  it  till  fome  length  of  time,  he  would  not 
be  permitted  afterwards  to  invalidate  the  gift  by  fuch  a 
fuggeftion.     If  it  was  in  time  of  war,  he  was  to  make  a 
declaration  thereof  as  foon  as  peace  was  reftored ;  if  in  time 
•   of  peace,  then,  fays  Bradon,  as  foon  as  he  had  efcaped  from 
the  durefs,  he  was  to  raife  a  hue  and  cry  after  the  parties ; 
and  in  either  of  thefe  cafes,  he  would  be  confidered  by  the 
law  as  having  done  all  in  his  power  '. 
Or  fimplc  gift!.       HAVING  premifed  thefe  obfervations  concerning  the  ca- 
pacity of  perfons  to  become  donors  and  donees  j   the  next 
fubje61:  is  the  donation  itfelf.     It  has  been  faid  that  dona- 
tions were,  fome  of  them,  fimple  and  pure  ;  that  is,  where 
no  condition  or  modification  was  annexed.     The  following 
is  a  pure  and  fimple  gift  of  land,  and,  as  it  was  the  com- 
mon form  of  gifts  or  feoffments  at  this  time,  is  very  well 
worthy  of  notice  ;  Bo  iali  ta?2iain  t  err  am  in  villa  tali,  pr9 
hcmagio  et  fervitio  fuOy   hahendam  et   tcncndam  eidem  tali  et 
haredihus  Juis  dc  mCy  ct  bizrcdihus  vieis  tantum^  ad  tales  ter^ 
minoSy  pro  omni  fervitio y  et  conjiietudine  feculariy  et  demandd ; 
et  ego  ct  hairt'des  mei  luarrantizabimus ,  acquietahinit^y  et  de^ 

'  Braa.  u.  b.  ^  IbiJ.  15.  '   IbiJ.  16.  b. 

fendnnu: 


ENGLISH      LAW. 


V 

293 


femlemus  in  pei'pefuum  pradtclinn  talem^  et  haredes  fuoSy  C  H  A  P.  V. 
i)erfus  omnes  gentes  per  pradicfu??i  fervitlumy  ilfc.  A  gift  ii£NRy  jn. 
like  this,  tili  et  haredibits  fuisy  was  to  be  underftood  in  the 
large  fenfe  of  the  term  hxresy  and  as  comprehending  all 
heirs,  hcth  near  and  remote "".  Another  way  of  enlarging 
this  claufe  was,  tali  et  haredihus  fiiisy  vel  cui  terrain  illam 
dare  vel  ojfignare  voliterit,  with  a  claufe  of  warranty  co- 
extenfive  with  fiich  a  donation.  In  fuch  cafe,  if  the 
donee  alhgned  and  died  without  heirs,  the  donor  was 
bound  to  warrant  the  aflignce ;  which  could  not  be  with- 
out fuch  an  exprefs  engagement  in  the  deed  of  gift ;  fo  that 
the  exprefs  mention  of  alTignees  feemed  necefiary  to  pive  a 
complete  power  of  alienation.. 

As  a  gift  might  be  made  largely,  fo  it  might,  as  before 
dated,  be  coarclata^  and  confined  to  particular  heirs  ;  as, 
tenendam  fihiy  et  hctrcdibus  fuis  Qjjos  de  carne  stja  et 

UXORE  SIBI  DESPONSATA  PROCREATOS  HABUERITj 
or,  tali  et  uxori  fiiity  or  cum  tali  filid  mea^  isfr.  tenendamfibi 
ft  haredibus  fuis  de  came  talis  uxorisy  or  JiHit  exeuntibuSy 
{3fc,  In  thefe  cafes  the  inheritance  defcended  to  the  par- 
ticular heirs  there  fpeclfied,  to  the  exclufion  of  all  others. 
If  a  perfon  fo  infcoffed  fliould  infeoff  any  other,  the  heir* 
would  be  bound  to  warranty ;  for  though  fome  had  endea- 
voured to  maintain  that  they  took  together  with  their  an- 
ccllor,  yet  Bra£l:on  denies  it,  and  fays,  they  only  took  by 
dcfcent.  And  fhould  the  perfon  {o  infcoffed  have  no  fuch 
heirs,  or  they  fnould  fail,  the  land  would  revert  to  the 
donor  by  a  tacit  condition,  without  any  mention  thereof  i^'^ 
the  gift. 

The  conftru^lion  of  law  upon  the"  eft  ate  and  intereft 
of  fuch  donees  was,  that,  in  the  firft  of  the  above  cafes, 
fhould  there  be  no  heir,  the  land  given  would  be  a  free- 
hold in  the  donee,  but  not  a  fee  j  in  the  fecond,  It  would 
be  a  freehold  till  heirs  were  born,  and  then  it  would  be- 
come a  fee  i  and  when  they  failed,  it  would  again  become 

*"  R.acV.  17. 

only 


HISTORY      OF     THE 

only  a  freehold.  Thus,  we  fee,  it  was  at  the  pleafure  of 
hTnry  Til  ^^^  donor,  at  the  creation  of  the  gift,  to  modify  it  as  he 
pleafed,  however  contrary  to  the  general  difpofition  the 
law  would  make  thereof;  in  which  inftances  the  maxim, 
that  canventio  vlncit  legem^  was  the  principle  which  go- 
verned :  and  this  was  not  only  in  prcfcribing  what  heirs 
fliould  inherit,  but  alfo  in  the  fervice  to  be  performed  \ 
which,  as  has  been  itzw  before,  was  in  the  breaft  of  the 
feoffor  to  order  as  he  liked,  fo  as  he  warranted  his  tenant 
againft  the  chief  lords  ". 
Of  conditional  We  havc  hitherto  fpoken  of  the  heirs  that  were  pointed 
out  bv  the  will  of  the  donor  to  fucceed  to  the  inheritance. 
We  (liall  next  take  notice  of  the  conditions  and  modifica- 
tions under  which  the  inheritance  was  to  be  enjoyed  \  and 
thefe  imported  fometimes  a  burthen,  fometimes  a  benefit, 
to  the  donee,  and  were  of  different  kinds.  Thus  a  gift 
might  be,  tenendutn  fihi  et  haredibus  Juts,  si  haredes  ha^ 
buer'it  de  corpore  ftio  frocrsaios  :  where,  if  the  donee  had 
heirs  of  his  body,  though  they  afterwards  failed,  yet  he  had 
fatisfied  the  condition,  and  all  his  heirs,  without  diflindtion, 
became  entitled  to  inherit :  but  if  no  fuch  heir  had  been 
born,  the  land  given  would  have  been  only  a  freehold,  and 
would  return  to  the  donor,  to  the  exclufion  of  the  heirs 
general,  becaufe  the  condition  had  not  been  fulfilled.  If  a 
gift  was  "Siro  et  uxori,  et  haredibus  uxoris ;  or,  vjro  ct  ux- 
orif  et  haredibus  viri ;  or,  viro  et  uxori  et  har.'dibus  ccm- 
munihtis^  SI  tales  exiiterint,  vet  si  NON  extitsrir.ty  tunc 
ejus  haredibus  qui  aiiuvi  fupervixerit ;  ihel'e  were  ail  jub 
fnodo.  Others  were  fwb  modc,^  and  alfo  adjeEfa  anditrjie  ; 
as,  Do  t.:!:  tariiim  terrani^  ut  del  rnihi  tantur.i  ,-  or,  .v' 
f)]ihi  invcnlnt  necejfaria.  Thefe  gifts,  though  n'^t  \vhol)} 
gratuitous,  yet,  Bra£^on  fays,  w-txc  fimplcx  et  pura  ;  and 
if  livery  w?.5  given  thereon,  they  could  not  be  revoked, 
though  the  condition  was  not  perfornied,  unlcfs  there  hnd 

^  BiaO,  17.  I. 

>«  been 


ENGLISH      LAW. 

been  an  exprcfs  covenant  entitling  the  donor  to  enter  for 
breach  of  the  condition  °. 

The  limitation  of  eftates  went  much  farther  than  '^'hzt 
has  yet  been  dated.  A  perfon  would  make  a  gift  to  his 
elded  fon  A.  tenendum  fihl  et  hceredibus  fuis  de  cc?'pore  fiio 
procreatis ;  and  if  he  had  no  fuch  heirs,  or  they  fhould 
/  fail,  then  to  his  fecond  fon  B.  to  whom  he  dire£led  it  to 
revert,  to  have  and  to  hold  to  him  in  the  fame  manner  j 
and  upon  like  failure  to  C.  his  third  fon,  in  the  like  way; 
and  fo  on :  and  if  the  faid  ji.  B.  and  C.  all  died  without 
fuch  heirs,  the  land  to  revert  to  the  donor  and  his  heirs ; 
which  laft  was  unnecelTary,  as  the  law  would,  of  courfe, 
give  the  reverter  to  him.  Other  gifts  were  as  large  as  the 
former  was  confined  j  as,  tenendum  tlhi  et  haredibus  tuis, 
vel  cut  dure,  vel  ajjlgtiare  in  vita,  vel  in  morte  hgave  vc- 
lueris,  A  reifard  to  the  will  of  the  donor  induced  them  to 
fupport  fuch  gifts  i  for  Bradton  lays  it  down,  that  if  the 
legatee  got  the  feifin,  and  an  affife  was  brought  againil  him 
by  the  heir,  he  might  plead  the  form  of  the  gift,  and  it  would 
be  a  bar  p  :  fo  that  the  reftraint  upon  gifts  of  land  by  will, 
which  feemed  one  of  the  dridlell  points  in  the  law  of  landed 
property,  might  be  difpenfed  with  by  the  fpecial  form  of 
the  original  gift. 

Innumerable  were  the  conditions  upon  which  gifcs 
might  be  made.  Some  of  thcfe  were  conditions  precedent, 
and  fome  fubfecjueni,  to  the  vefting  of  the  eilate  given :  fomc 
of  them  were  fupported  by  law,  and  fome  not;  and 
various  were  the  reafons  given  why  they  fliould  not  be  fup- 
ported. A  few  inftances  of  this  kind  will  ferve;  as,  Do 
tihi  talem  terratn,  ft  Titius  voluerit ;  Ji  fiavis  venerit  ex 
Afid  ;  ft  titius  venerit  ex  'Jeriifalem  ;  ft  mihi  decern  aureos 
dederis ;  fi  coeliim  digito  tetigeris  ;  and  the  like  ^  ;  fome  of 
which  were  accompanied  with  an  exprefs  condition  of  re- 
verter on  failure  in  performing  the  terms  on  which  the  gift 
was  made,  and  fome  net. 

*  Erai>.  i8.  a.  b.  '  IbiJ.  iS.  b.  «  Ibid.  19. 

The 


HISTORY      OF     THE 

The  courfeofdefcent  was  entirely  under  the  controul  of 
the  donor  in  making  the  gift.     A  gift  was  fometimesmade 
to  a  perfon  for  a  term  of  years,  and  after  that  term  to  revert 
to  the  donor ;  with  an  agreement  that  if  the  donor  died 
within  the  term,  the  hmd  Tnould  remain  to  the  donee  for 
life,  or  in  fee,  as  it  might  happen.     Thus  a  freehold  and 
fee   might  be  raifed  by   a   condition  ;    and   in  the   fame 
manner  might  be  changed  into  a  term  •,  for  when   a  gift 
was  made  for  life,  it  might  be  added  as  a  condition,   that, 
(hould  the  tenant  die  within  a  certain  time"",  his  heirs,  te- 
nants, affigns,  or  executors,    fliould  retain  the  land  for  a 
certain  term  after  his  death.     When   land  was  given  to  a 
creditor  in  vadium,  it  was  fometimes  agreed,  that  if  the 
money  was  not  paid  at  an  appointed  day,  he  fliould  hold  it 
to  him  and  his  heirs.     Gifts  were  often  made  for  a  terrji  of 
years,  yet  fo  as  to  be  reftored  to  the  donor,  if  he  ever  re- 
turned into  the  kingdom  ;  but  if  he  died  in  his  voyage,  or 
did  not  return,  to  remain  to  the  termor  in  fee ;  upon  the 
performance  of  which  condition  the  term  ceafed,  and  the 
fee  commenced  *. 

In  all  gifts  in  maritagiumy  or  to  a  hajlardy  there  was  an 
exprefs  or  tacit  condition  of  reverter.  If  land  was  given 
to  a  ballard  in  marriage  with  a  woman,  it  was  always 
either  to  them  et  karedibus  eonim  commiinihusy  or,  hcvredi' 
hur  ipfius  uxoris  iantum.  In  the  former  cafe,  there  was,  by 
a  tacit  condition  in  the  gift,  a  reverter  to  the  donor,  upon 
failure  of  common  heirs  :  in  the  latter,  if  flic  had  heirs  by 
the  baftard,  the  land  went  to  them :  if  (lie  had  none,  it 
defcended  to  other  heirs  of  the  wife,  whether  born  of  ano- 
ther hufband,  or  collateral.  Suppofe  land  v^-as  given  to  a 
baftard  folely,  without  his  wife,  ei  et  kared'ilnts  fiiis,  or  ci 
et  aJfignaL'is  fuis ;  in  the  former  cafe,  upon  failure  of  heirs, 
whether  homage  had  been  done  or  not,  the  land,  contrary 
to  the  ufage  in  GIanville*s  time  ^,  efcheated  for  want  of 

""  Braft.  icj.  fe.  s  Ibid.  jc.  «  VIu    ant.  1 19. 

heirs; 


HENRY   IIL 


ENGLISH      LAW.  297 

heirs;  in  the  latter,  if  he  had  made  an  alienation,  it  was     chap.   t. 
good,  though  there  was  a  failure  of  heirs '.     If  a  baltard 
had  a  brother,  that  brother  could  not  take  from  him  by 
dcfcent. 

Land  was  fometimes  given  before  the  efpoufals  by  fomc 
relation  of  the  wife  to  the  huitand  with  his  wife,  or  to  both 
of  them  ;  as,  tali  viro  et  uxori  fme,  et  eoriim  haredihus^ 
or  aliai'i  miiUeri  ad  fe  viaritandum,  or  fimply,  without 
any  mention  of  marriage ;  but  if  there  was  mention  of 
marriage,  then  the  land  fo  given  was  called  maritagwm. 
A  maritagium  ufed  to  be  given  either  before,  or  at  the 
time  of,  or  after,  the  matrimonial  contraQ.  Maritagium 
was,  as  has  been  faid  before'^,  of  two  kinds  :  it  wtls  free^ 
or  mt  free ;  the  particulars  of  which  diflindion  were  now 
more  minutely  fet  forth,  than  in  the  time  of  Glanvillt. 
Liberum  maritagium  was,  where  the  donor  was  willing 
that  the  land  fhould  be  quit  and  free  from  all  fecular  fer-~ 
vice  "f  belonging  to  the  lord  of  the  fee,  fo  as  to  perform  no 
fervice  down  to  the  third  heir  inclufive,  and  the  fourth 
degree.  The  degrees  were  computed  in  this  way  :  the 
donee  made  the  firfl:,  his  heir  the  fecond,  his  heir  the 
third,  and  the  heir  of  the  fecond  heir  the  fourth.  The 
heirs  were  computed  thus  :  the  fon  or  daughter  of  the  do- 
nee was  the  firft,  the  fon  or  daughter  of  them  the  fecond, 
and  their  fon  or  daughter  the  third ;  which  third  heir  was 
to  do  homage  and  perform  the  fervice.  As  there  was  a 
reverter  to  the  donor,  on  failure  of  heirs,  there  was  to  be 
no  homage  in  thefe  gifts;  but  fliould  thofc  i:i  the  right 
line  fail,  the  land  would  go  to  the  remoter  heirs,  if  the  form 
of  tliC  gift  allowed  it  ^. 

These  gifts  were  m.ade  in  difierent  ways.  I:  land  was 
given  talifiUa  me.t  ad  fe  marita7idum^  without  mention  of 
heirs,  this  conveyed  only  a  freehold,  and  not  a  fee;  and 
therefore,  after  the  death  of  the  wife,  it  reverted  to  the^do- 

'  B;a''>.  zo,  \\  Vii^  ar*.  -290.     ■*  V';d.  ant.  11 1.     ^  BracV.  ir.     '^  Ibii!.  %\.h. 

*  nor 


298  H  I  S  T  O  R  Y    O  F    T  H  E 

CHAP.   V.     nor  ;  nor  had  the  hufband  any  claim  upon  it  per  legem  An- 

^- ^^^^7^    glJ'^  '•     If  it   was  ad  fe  maritandam^   et  tenendam  fibi  et 

haredihiis  fuis,  generally ;  then,  though  fhc  had  no  heirs 
of  her  body,  the  remoter  would  be  called  in,  and  the  huf- 
band would  pofTefs  it  per  legem  Anglia.     If  it  was  confined 
to  particular  heirs,  it  reverted  on  failure  of  fuch  heirs. 
Thus,  if  it  was  to  the  common  heirs  of  the  hu{band  and 
wife,  and  they  had  a  daughter,   and  the  hufband  died,  and 
the  widow  married  again  and  had  a  fon,  the  daughter 
would  be  preferred  to  the  fon ;  though  it  would  be  other- 
wife,  had  the  gift  been  to  the  wife  only,  and  the  hei^s  of 
her  body  ^. 
Eftatt?  by  couv-       The  right  of  a  hufband  to  retain  the  land  of  his  deceafed 
^^^y-  \v\it  per  legem  Angliay  is  defined  by  Glanville   and  Brac- 

ton  in  the  fame  manner,  except  that  the  former  *  ftates  it 
as  if  confined  to  eflates  given  with  the  woman  in  marita- 
gium  :  if  fo,  this  claim  had  now  extended  itfelf  *,  for  Brac- 
ton  fays,  the  hufband  fhould  have  the  land  if  he  married  a 
Vfon\2i\\habentem  k^reditaiemy  vel  mar'itagtum^  vel  aliqnam 
terram  ex  eaufd  dofjalionis,  having  any  inheritance,  whether 
a  maritngium  or  other  gift  of  land^  He  agrees  likewifc 
with  Glanville,  that  the  fecond  hufband  was  equally  inti- 
tled  with  the  firfl.  It  fcems,  one  Stephanus  de  Segrave^ 
whofe  name  we  find  among  the  juflices  itinerant  in  this 
reign,  had  written  a  treatife,  in  which  he  had  combated 
this  opinion,  as  founded  on  a  mifconception  of  the  mean- 
ing and  defign  of  this  fort  of  eflate.  He  thouglit  there 
was  an  injuflice  in  giving  an  eftate  per  legem  Anglia  to  the 
fecond  hufband,  mure  efpecially  when  there  were  children 
alive  of  the  firfl  marriage.  / 

The  crying  of  the  child,  which  was  a  necefTary  circum- 
{lance  towards  eftablifliing  a  title  to  this  eflate,  was  to  be 
^rovtf^  per  feclam  fuJJicicHteviy  coafifting  of  perfons  who 
heard,  with  their  own  ears,  the  cry;  and  not  by  thofe  who 

*  BraG.  12.  b.  *»  U.  ibici.  •  Vid.  ant,  I2t.  *  Ibid.  437.  b. 

had 


ENGLISH      LAW. 

had  it  by  hearfay.  The  cry  was  only  an  evidence  of  the 
child  being  bom  alive ;  but  this  evidence  was  more  re- 
garded than  any  teflimony  of  midwives  or  nurfes,  who 
might  be  induced,  by  various  motives,  to  give  falfe  tefti- 
mony ;  and  no  proof  of  the  child  being  born  alive,  and 
chrillened  as  fuch,  would  be  received  in  lieu  thereof.  So 
risi;id  were  the  lawyers  of  thofe  days  in  exa£ling  this  only 
proof  of  life,  that  where  the  child  was  born  deaf  and  dumb, 
they  pronounced,  tanien  clamorem  emittere  debet,  five 
mafculiis  five  fcemina ;  which  expeftatlon  had  been  thrown 
by  the  lawyers  of  thofe  days  into  a  fingular  monkifh  verfe*. 
If  the  child  was  a  monfter,  and,  inftead  of  a  clamory  ut- 
tered a  rugitus,  as  Braxton  expreifes  it,  it  would  not  fa- 
tisfy  the  requifite  of  the  law,  much  lefs  would  a  birth  that 
was  fuppofititious  "'. 

The  tenant  per  legem  Anglice  was  to  have  all  incidents 
that  happened,  whether  in  fervices,  wards,  reliefs,  or  ►the 
like,  during  his  life;  but  if  any  land,  or  inheritance,  fell  in 
after  the  death  of  the  wife,  fuch  accefiion  went  to  the 
heir,  if  of  age  ;  if  not,  to  the  chief  lord  who  had  cuftody 
of  him ;  as  likewife  did  the  wards  and  the  like;  it  being 
a  rule,  that  the  hufband  fliould  retain  nothing  that  did  not 
accrue  in  the  life-time  of  the  wife. 

Among  other  impediments  to  the  hufband  claiming 
this  eftate,  Bracfon  reckons  that  of  having  machinatus  in 
mortem  uxoris  ;  anil  this,  he  fays,  would  be  a  good  plea 
to  bar  him  of  his  right.  If  no  heir  was  born  of  the 
marriage,  and  the  hufband  held  polfeflion  by  force,  af- 
ter the  death  of  the  wife,  the  next  heir  might  have  the  fol- 
lowing writ,  which  is  recorded  to  have  ^been  framed  for 
one  Raniilphus  dc  Dadefomb  by  IV.  de  Ralegh^  a  name 
often  found  among  the  jultices  of  this  period.     Rex  v'lce^ 

com'xt'i  falutem.      Oflendit  nobis  A.  quid  cu7n  B.  et  C.  uxor 
t 

•  The  vcrff-  is  as  follows  : 
-  Nam  diciint  e  vfl  a  qujtqutt  njfcuntur  al  Eva. 
«»  Biaa.  438. 

ejus 


30O  H  I  5  T  O  R  Y     O  F     r  H  E 

CHAP.  V.     rjus  ienuiffent  taniam  Urranty  t5fc.  utjus,  et  hareditatein  ip- 

HENRY  HI     J^^*^  ^'  ^'^^  nuper  oh'iit  fine  hairede  de  corpore  fuo  procreato 

(ut  diciturjf  unde  terra  ilia  defcetidere  debuit  ad  praditlum 

A.  ftcut  ad  propiiiquior^fn  haredcm   ipfius  C.  quia  praditla 

C.  fine  hairede  de  corpore  fuo  procreato  decejjit ;   idem  B. 

pojl  mortem  pradiEla  C   uxoris  fu^  contra  legem  et  cofifue- 

tudinem  regni  twjlri  awi  vifudfe  tenet  in  eddeniy  it  a  quod 

pradiElus  A.  in  pradiBam  terram,  ut  in  jus  et  hareditatevi 

fuam^  ingrcjfum  habere  non  poteji.     Et  idea  tibi  pr^ecipimuSy 

quod  fi  pradicius  A.  fecerit  te^    l^c.  tunc  fummoneas,   ^c. 

pradiclum  B.  quid  fit  coram  jufliiiariisy  is'c.  ojlenfurus  quare 

deforceat  eidem  A.  pr^zdiJlam  terram^  et  habeas  ibiy   ^c. " 

which  feems  to  be  the  mod  fimple  form  of  a  writ  of  entry; 

a  fpecies  of  writs  which  had  lately  grown  into  vogue,  and 

of  which  more  will  be  faid  in  the  proper  place. 

Having  faid  thus  much  of  eftates  which  reverted  to  the 
donor  upon  a  condition  cxprefled  or  implied,   it  may  be 

Of  reverfion?.  rcquifitc  to  confider  the  effect  and  confequcnce  of  fuch  a 
reverter  or  reverfion.  The  reverfioner,  fays  Bradlon,  was 
confidercd  neither  pro  harede  nor  loco  hceredis ;  nor  was  he 
bound  to  warrant  any  thing  done  by  the  donee,  except  the 
appointment  of  dower  ;  and  this  only  where  the  donation 
was  pure,  without  any  condition  or  modification  whatever. 
Land  reverted  not  only  for  a  failure  of  heirs  or  ailigns,  but 
in  cafe  of  felony  committed  by  the  tenant,  which  threw  a 
perpetual  impediment  in  the  way  of  defcent ;  in  which  in- 
ftancc,  it  might  happen  that  the  donor  had  made  a  refer- 
vation  of  the  fervices  to  himfelf,  which  made  him  lord,  and 
then  he  took  it  as  an  efcheat.  In  fuch  cafe  he  was  deemed 
in  loco  haredisy  and  was  accordingly  bound  to  warrant  what- 
ever was  completed  by  the  donee  before  the  felony  ;  as  any 
gift  or  demife  for  a  term,  provided  the  a6l  w^as  complete ; 
for  if  it  was  not,  as,  from  the  nature  of  the  thing,  was  the  cafe 
in  dower,  it  would  not  avail  after  a  convidion  for  felony  j 
nor  was  the  donor,  though  he  came  in  loco  haredisy  bound 
to  warrant  it  ^ 

*^Eraa.  43J.  b.  '  Ibifi.  13. 


E  N  G  L  I  S  H      L  A  W.  301 

We  have  hitherto  been  fpeaking  of  cftates  given  to  a    chap,  v, 
man  and  his  heirs;  but  land  was  fometimes  given  ad  ter-    ^i^^^x  lii. 
m'lnum  or  ad  tempus,  for  a  term ;  as  for  a  s  term  of  life,   (.jf^^  ^j  ^^^^^, 
or  years ;  that  is,  the  life  of  the  grantor,  or  grantee :  or  ««"»• 
for  a  time ;  as  where  a  gift  was  "  till  provifion  was  made 
for  the  donee."    In  gifts  of  this  kind  it  was  important  whe- 
ther there  was  only  mention  that  the  donor  fliould  make 
provifion,  without  faying  any  thing  of  his  heirs,  or  both 
the  donor  and  his  heirs  were  included  ;   and  whether  it 
was  to  be  for  the  donee  only,  or  the  donee  and  his  heirs. 
If  the  donor's  heirs  were  not  included,  and  no  provifion 
was  made  in  the  life  of  the  donor  or  donee,  the  land  re- 
mained in  fee  to  the  donee ;  but  if  provifion  was  made  in 
their  lives,  the  land  reverted  to  the  donor  by  the  form  of 
the  gift.    If  the  heirs  of  the  donor  only  were  included,  and 
not  thofe  of  the  donee,  and  neither  the  donor  nor  his  heirs 
provided  for  the  donee  in  his  life,  the  land  remained  to  the 
donee  and  his  heirs  in  fee,  although  the  heir  of  the  donor 
or  the  donor  himfelf  was  ready  to  provide  for  the  heirs  of 
the  donee,  after  the  donee's  death.     But  if,  on  the  other 
hand,  the  heirs  of  the  donee  and  thofe  of  the  donor  were 
mentioned,  and  the  donor  provided  for  the  donee,  or  his 
heirs,  the  land  reverted  to  the  donor ;   and  ihould  the  do- 
nor have  made  no  provifion  in  his  life-time,  it  was  not  fuf- 
ficient  that  his  heirs  were  ready  to  do  it,  becaufe  the  form 
of  the  gift  required  it  to  be  othervvifc.     If  there  was  no 
mention  of  heirs  at  all,  then  llioulil  the  donor  make  no 
provifion  for  the  donee  during  their  joint  lives,  the  law 
was,   that  the  hind  Ihould  remain  in  fee  to  the  donee.     If 
land  was  given  for  the  life  of  the  donee,  and  not  of  the  do- 
nor, nor  in  fee,  then  it  was  confidered  as  a  freehold  in  the 
donee  :  if  the  reverfe,  then  the  law  confidered  it  as  the  free- 
hold of  the  donor,  and  not  of  the  donee,  becaufe  it  might, 

e  Th''!  was  called  a  hoMing  c</_^r-     aWzAfrmani.   /'^^mr,  in  ihc  Iial.'an, 
mam^  itud  the  pciron?  To  |joJiJin»  wcrc      figoifiei  a  bargain  oj  tcntracl, 

if 


HISTORY      OF     THE 

if  the  donor  died  firft,  be  revoked  in  the  life  of  the  donee, 
and  revert  to  the  heirs  of  the  donor.  Again,  if  a  gift  was 
made  for  the  life  of  the  donor  to  the  donee  and  his  heirs, 
then,  ftiould  the  donee  die  firft,  his  heirs  would  hold  it  for 
the  life  of  the  donor,  and  they  could  recover  in  an  aflife  of 
mortaunceftor,  ftating  that  their  anceftor  died  feifed  as  of 
fee  ^ :  and  if  the  donor  died  firft,  then,  for  the  reafon 
above  given,  it  became  the  freehold  of  the  donor  and  net 
of  the  donee.  If  there  was  no  mention  of  heirs  of  the 
donee,  yet  the  land  needed  not  immediately,  in  fuch  cafe, 
revert  of  courfe  to  the  donor;  for  the  donee  might,  if 
he  pleafed,  make  a  teftament  of  it,  as  of  any  chattel; 
and  fuch  a  will,  according  to  Bradon,  was  good  in 
law. 

If  a  gift  was  made  by  a  man  for  him  and  his  heirs  with- 
out naming  the  heirs  of  the  donee,   and  without  faying 
cxprefsly  it  (hould  be  for  life,  yet  the  land  became  ihtfree* 
hold  of  the  donee  as  long  as  he  lived.     But  (hould  a  gift 
be  made  ad  iermhium  atJtionwiy  for  a  term  of  years,  how- 
ever long,  even  though  it  exceeded  the  ufual  length  of 
man's  life,  yet  the  donee  did  not  by  fuch  a  gift  obtain  a 
freehold;  becaufe  a  term  of  years  was  a  certain  and  deter- 
minate period,  and  the  term  of  life  uncertain ;  the  uncer- 
tainty of  the  determination  of  the  eftate  being  what  Brac- 
ton  feems  to  confider  as  abfolutely  neceflary  to  conftitute 
a  freehold-intereft.     A  term  of  years  was  treated  as  an 
intereft  that  did  not  at  all  impede  any  further  difpofitlon  of 
the  land  fo  held  -,  for  the  perfon  who  let  It,   might  within 
the  term  make  a  gift  of  the  land  to  another,  or  to  the 
fame  perfon  in  fee.     If  it  was  to  the  farmer,  one  fort  of 
pofiefiion  v>'Ould  be  thus  changed  into  another ;   if  to  ano- 
ther, the  poiTellion  of  the  farmer  would  ftili  remain  un- 
impaired; for  a  term  and  a  feoffment  of  the  fame  land 
might  corGft    \ery  well  together.      In   fuch  cafe,   there 

would 


ENGLISH      LAW. 

would  be  different  and  dlftin£l  rights.  To  the  feoffee 
would  belong  the  property  of  the  fee  and  the  freehold ; 
the  farmer  could  claim  nothing  but  the  ufufru^l,  that  is, 
to  ertjoy  the  ufe  and  produce  freely  during  his  term,  with- 
out any  obftru£lion  from  the  feoll'ee. 

Land,  fays  Braxton,  might  be  given  at  the  ivill  q{  the 
giver,  and  fo  on  as  long  as  he  pleafed,  de  tertnino  in  termi' 
num,  and  de  anno  in  annum ;  under  vvhich  leafe  the  perfon 
taking  had  no  freehold  •,  the  owner  of  the  proprietas  could 
at  any  time  reclaim  it,  as  being  nothing  in  law  but  a  pre- 
carious poffcflion '. 

Another  fort  of  gifts  was  to  cathedral,  conventual,  and 
parochial  churches,  and  religious  men.  Thcfe  were  faid 
to  be  in  liberam  eleemojyiam.  They  were  fometimes  in 
iiheram  et  perpetuam  eleemofynam ;  in  which  cafes,  the  do- 
nee was  not  excufed  from  the  burthen  of  fervice :  but  if 
the  gift  was  what  they  termed  in  Iiheram^  puramy  et  per- 
petuam ekemcfynamy  then  he  was  *,  and  the  donor  and  his 
heirs  were  bound  to  warrant  the  donee  againft  all  claims 
of  the  chief  lord  ^. 

The  next  fubje£l  is  the  confideration  the  law  had  of  the  Livery 
fevcral  before-mentioned  gifts ;  all  which  were  imper- 
fect, till  poffefTion  or  feifm  was  given  to  the  donee.  The 
degrees  of  pofrcffion  made  a  fubjecl  of  very  minute  diflinc- 
tion  and  refinement  at  this  time,  and  is  difcourfed  on  by 
Bra£lon'  at  length.  It  is  fufficient  to  fay,  that  the  com- 
pletefl  poffeffion  which  could  be  had,  was,  when  they///, 
2i\\Afeiftna,  the  title  to  the  land,  and  the  feifm  of  it,  went 
together;  for  the  donee  had  then  juris  et  feijina  con-^ 
junclio ;  the  highcft  of  all  titles""'.  But  this  could  not  be 
obtained  without  a  formal  iradiiioy  or  livery ;  for  land  was 
not  transferred  by  homage,  nor  by  executing  charters  or 
inftruments,  however  publicly  they  might  be  tranfa£ted, 
but  by  the  donor  giving  full  and  complete  feifin  thereof  to 

'  B,aa.  Z7.  b  "   Id.  ibid.  ^   Id.  38.  b  ="  IH.  39   b. 

the 


HISTORY     OF     THE 

tke  donee,  either  in  perfon  or  by  attorney.  This  was  by 
publicly  reading  the  charter  (and  if  livery  was  made  by  at- 
torney, by  reading  the  letters  of  attorney)  in  prefence  of 
the  neighbours,  who  were  called  together  for  that  particular 
purpofe ;  upon  which  the  donor  retired  from  the  pofleflion, 
both  corpore  et  animo,  without  any  intention  of  returning 
to  it  as  lord ;  and  the  donee  was  put  into  the  vacant  pofTef- 
fion,  aiiimo  et  ccrporcy  with  a  refolution  of  retaining  pof- 
feflion ;  in  (hort,  one  party  ceafed,  and  the  other  began  to 
pofiefs  it :  for  the  donor  never  ceafed  to  podefs  till  the 
donee  was  fully  in  feifm ;  it  being  a  rule  of  law,  that  the 
feifm  could  not  remain  vacant  for  the  minuted  fpacc  of 
time.  This  is  the  account  given  of  livery  by  Bra6lon, 
who  adds  this  definition  of  it :  de  re  corporali  de  pcrjond  in 
perfonam  de  niatiu  propria  vel  aliend  (that  is,  of  an  attor- 
ney) in  alterius  tnanum  gratuita  tranjlatio.  And  if  livery 
was  thus  made  by  the  true  owner  of  the  land,  the  donee 
had  immediately  the  freehold  by  reafon  of  the  Juris  et  fei- 
Ctna  conjunciio ". 

There  were  fome  cafes  where  livery  was  not  necefTary, 
and  any  expreflion  of  the  owner's  will,  that  the  property 
fliould  be  changed,  had  the  fame  efFecl  as  livery:  thus, 
where  land  was  lett  for  a  term  of  life,  or  years,  and  after- 
wards the  donor  fold  or  gave  it  wholly  to  the  donee,  it 
became  the  property  of  the  donee  immediately  :  the  fame 
where  a  perfon  was  in  polTelTion  by  diffeifin  or  intrufion  ° ; 
the  law  allowing,  in  thefe  cafes,  a  fiction  to  fupply  the  fact 
of  the  land  having  really  paifcd  out  of  one  hand  into  the 
other. 

When  a  livery  was  made,  it  had  the  effecl:  of  convey- 
ing to  the  perfon  to  whom  it  was  made,  every  thing  the 
maker  of  it  had :  whether  he  had  a  mere  right  and  property 
of  the  fee,  a  freehold,  or  ufufrucl;,  it  all  belonged  to  the 
donee.     But  for  this  purpofe,  it  was  not  fufficient  that  the 

donee 


ENGLISH      LAW. 


3^5 


donee  came  into  the  occupation  of  part  of  the  land;  for  chap.  v. 
if  any  perfon  belonging  to  the  donor  remained  on  another  ulmuy  ht 
part,  he  thereby  retained  the  whole,  notwithilanding  the 
livery  :  and  it  was  abfolutely  neceflary  towards  completing 
the  livery,  that  the  donor  and  every  one  belonging  to  him 
fliould  leave  the  land.  If  the  perfon  making  livery  had 
only  the  ufufru61:,  yet  he  thereby  gave  to  his  feoffee  a  free- 
hold, as  far  as  concerned  himfelf,  and  all  others  who  had 
no  right,  though  not  as  againfl  the  true  owner.  If  he 
had  nothing,  nothing  he  could  give  \  yet  if  a  perfon  was 
only  in  pofleflion,  let  that  be  as  inferior  as  might  be,  it  is 
clearly  laid  down  by  Bracton,  that  he  could  give  a  preca- 
rious fee  and  freehold  by  livery  ^.  As  livery  might  be 
made  either  by  the  donor  in  perfon  or  his  attorney,  fo  it 
might  be  accepted  either  by  the  donee  pr  by  his  at- 
torney ^5. 

Land  might  be  transferred  not  only  by  a  legal  title, 
and  livery  thereon,  but  without  title  or  livery  at  all, 
namely,  per  ufucaptmiem  j  that  is,  by  continual  and  peace- 
able poiTeiTion  for  a  length  of  time  ;  yet  what  length  of 
time  was  neceflary  to  give  fuch  a  right,  was  not  defined 
by  the  law,  but  was  left  to  the  difcretion  of  the  jullices '". 
Thus  all  intrudors,  diiTcifors,  farmers  holding  over  their 
term,  perfons  continuing  in  poflelfion  contrary  to  a  cove- 
nant or  the  original  form  of  the  gift,  if  they  were  fuffered 
to  remain  in  that  condition  without  any  interruption  for  a 
length  cf  time,  gained  a  right  and  freehold.  Thou^rh  this 
was  the  law  amongfl  fubjedls,  in  order  to  avoid  dormant 
and  litigious  claims,  yet  in  the  cafe  qf  the  king  it  was 
other  wife ;  the  maxim  of  Jiulluni  t  embus  occiirrit  regi  hav- 
ing already  obtained  in  bis  favour '. 

P   It    is   worthy  of    remark,     that  Kiiii^'ji    B^nch.       ViJ.    Buir.     Rep, 

this   piece   of   o!d    law    was    re  ron-  60. 
fiicred,    and    after     long     dikufllon  1  Bra£l.  41.  b. 

confirmed,     500     years    aftrr    Brae-  '   Ibid.  51.  I', 

ton   wrote,  in   ^  lamous  cafe  in  the  *   Ibid.  52  arid  103. 

Vot.  L  y  We 


HiLNRV 


^06  H  I  S  T  O  R  Y      O  F     T  H  E 

CHAP.  V.         We  have  kitherto  been  fpeaking  of  corporeal  tbwgs.     It 
follows,  that  fomething  (hould  be  faid  of  incorporeal^  and 
the  methods  of  transferring  them.     Thefe  were  ciWtd,  jura 
and  fervitutes,  or  rights ;  and  being  things  neither  vifible 
'^ '  '  nor  tangible,  could  not  pafs  by    livery ;  they   therefore 

pafled  by  agreement  of  the  parties  contrafling  %  and  by  a 
view  of  the  corporeal  thing  to  which  they  belonged ;  thus, 
by  a  fi£lion  of  law,  they  became  what  was  called  qitaff 
poflefled  •,  and  he  who  was  fo  in  poflefllon  by  fi6lion  of 
law,  had  a  quafi-nit  till  he  loft  the  pofreffion  by  violence  or 
by  non  ufer  :  for  as  pofTeflion  of  a  corporeal  thing  could  be 
loft  by  non  ufer,  fo  could  a  quafi-^o^t{[\on  of  an  incorpo- 
real thing.     But  when  there  was  an  acflual  ufer  of  an  in- 
corporeal thing,  the  pofleflion  was  retained  by  the  ufer, 
and  became  real,  inftead  of  fictitious  \  and  when  a  per- 
fon  had  thus  made  ufe  of  his  right,  he  might  transfer  the 
right  and  the  ufe  to  another,  which  before  ufer  he  could 
not.     If  a  perfon,  however,  who  had  an  incorporeal  right 
to  him  and  his  heirs,  died  without  any  ufer  thereof,  the 
title  would  defcend  to  his  heirs. 

These  rights  were  generally  confidered  as,  and  were 
called,  appurtenances  to  fome  corporeal  thing,  as  to  a  farm 
or  tenement  *,  and  were  commons,  rights  of  advowfon, 
and  the  like".  An  advowfon  and  common  were  fometimes 
not  appurtenant  to  any  thing,  but  fubfifted  as  independent 
rights'^.  Of  a  nature  fimilar  to  thefe  were  other  incorpo- 
real things,  which  were  given  by  the  king  only,  as  liberties 
and  franchifes ;  fuch  as  jurifdi6lion  and  judicature,  trea- 
fure-trove,  waifs,  tolls,  exemption  from  tolls,  and  imm- 
berlefs  other  royalties,  which  were  granted  by  charter  from 
the  king  to  the  fubje61:  >'. 

Besides  the  gifts  above-mentioned,  which  being  tranf- 
5i£lions  between  man  and  man,  were  to  take  effe£l  imme- 
<iiately,  there  was  another  fort,  which  was  to  take  efte£l 

*  Braa.  93.  b.         "  Ibid.  54.         *  Ibid.  54,  b.         v  Ibid.  55.  b. 

after 


ENGLISH      LAW. 

after  the  donor's  death  :  fuch  a  gift  was  called  donatio  mortis 
catifa.  A  gift  of  this  kind  was  generally  made  by  a  per-  ^TT^j^y 
fon  in  ficknefs,  or  going  upon  a  voyage,  and  had  in  itr  a 
tacit  condition,  that  it  fhouid  be  revocable  upon  the  reco- 
very or  return  of  the  giver.  Should  a  gift  not  be  accompa- 
nied with  this  condition,  it  was  a  do?iatio  inter  vivos ; 
and  therefore,  if  made  between  hufband  and  wife,  was 
void.  A  donatio  mortis  canfd  was  confirmed  by  the  death 
of  the  giver. 

The  principal  gift  of  this  kind  was  by  teflament ;  and  Tcftamerts. 
this  did  not  take  place  till  after  the  death  of  the  giver  ^. 
The  whole  law  of  teftaments  ftated  by  Glanville,  is  de- 
livered by  Bra£lon  as  law,  and  fometimes  in  the  ^^ery 
words  of  that  author  ;  it  will  therefore  be  unnecefTary  to 
do  more  than  notice  fuch  parts  as  are  more  explicitly 
treated  by  Bra6lon,  together  with  fuch  additions  as  he  has 
made  to  Glanville's  account  ^.  He  fays,  that,  generally,  a 
wife  could  not  make  a  will  without  the  confent  of  her 
hufband  ;  yet  that  it  had  been  ufual  (as  was  intimated  by 
Glanville  ^)  for  the  wife  to  make  a  will  of  the  rationahilis 
pars  which  would  come  to  her  if  {lie  furvived  her  huiband, 
and  particularly  of  fuch  things  as  were  given  her  for  the  drefs 
and  ornament  of  her  perfon,  as  her  clothes  and  jewels,  all 
which  might  mod  properly  be  called  her  own. 

Glanville  fays,  that  the  adminiflration  of  Inteftates' 
effec^^s  belonged  to  the  neareit  of  kin  ;  but  Bra6lon  favs» 
that  in  fuch  cafe,  ad  ecclefiarn  et  ad  amicos  pertinehit  exe^ 
futio  honorum.  The  law  upon  the  fubjcct  of  teftaments 
is  thus  laid  down  by  our  author.  The  expences  of  the 
funeral  were  to  be  allowed  out  of  the  effects,  and  the 
widow  was  entitled  to  receive  all  necelTaries  thereout  till 
her  quarantine  was  expired,  unlefs  her  dower  was  afiigned 
before.  If  the  deceafed  left  no  moveables,  the  heir  was 
to  be  burthened  with  all  the  debts  ^5  as  far  as  the  inheri- 

:'  B.af>.  60.         »  Vl.J.  ant.  80.         ^  Vi.!.  aat.  UK         "  Sra^.  60.  b. 

Y  2  tance 


3o8  HISTORYOFTHE 

CHAP.  V.     tance  went,  and  no  further.    There  were  particular  cti- 


HENRY  111. 


Horns  which  dire£led  a  difpofition  of  the  effects  fomewhat 
differing  from  the  general  law :  this  was  In  fome  cities, 
boroughs,  and  towns.  Among  thefe,  the.  city  of  London 
had  a  cuftom,  that  when  a  certain  dower  was  appointed, 
whether  in  money  or  other  chattels,  or  in  houfes,  which 
were  confidered  as  chattels,  the  widow  could  demand  no- 
thing, beyond  that,  out  of  the  effects,  unlefs  by  the  fpecial 
favour  of  the  hufband,  who  might  leave  her  more  :  and 
again,  the  children  could  not  demand,  by  pretence  of  any 
euftom,  more  than  was  left  them  by  the  teftator,  if  he 
made  a  will.  Braclon  fays,  that  a  man  could  not  make  a 
will  of  a  right  of  action,  nor  of  debts  not  judicially  afcer- 
tained,  but  that  actions  for  fuch  things  belonged  to  the  heir; 
yet,  when  thefe  were  once  reduced  into  judgments,  they 
became  part  of  the  bona  tejlatoris^  and  belonged  to  the 
executors,  under  the  direction  of  the  ecclefiaftical  court  **. 
Ecclefiaiticai  WHATEVER  doubt  there  might  have  been  whether  the 

therein/  ecclefiaftical  court  entertained  fuits  for  the  recovery  of  le- 

gacies in  the  time  of  king  John  ^^  it  is  beyond  a  queftion, 
that  in  the  beginning  of  Henry  III.  that  branch  of  jurif- 
di6lion  was  firmly  fettled  ^  It  is  probable,  that  legacies 
were  a  fubje^t  mixti  fori^  in  the  fame  manner  as  tythes 
long  were,  before  they  became  entirely  confined  to  the 
fpiritual  court ;  but  it  appears  that  the  temporal  courts  in 
this  king's  reign  fo  far  gave  up  their  claim,  as  not  to  pro- 
hibit the  ecclefiaftical  judges.  This  article  of  jurifdIcSlion 
might  be  thought  not  a  very  unlikely  confequence  to  fol- 
low from  the  power  of  granting  probates ;  but  it  is  con- 
jectured by  a  canonift  of  great  authority  '^,  that  it  took  its 
rife  out  of  thofe  laws  in  the  code  which  made  the  bifiiop 
prote61:or  over  legacies  given  in  pios  ufus.  It  is  confiftent 
enough  with  the  ufual  pradice  of  churchmen  in  particular, 
and  conformable  with  the  inclination  of  courts  ( avipUare 

•^Braa.  6r.     •  Vui,  ant.  72.     ^  z  Hm.  HI.  Tit.  Pro.  15.     e  Lindcwoode. 

juriJd]Ltionem)y 


ENGLISH      LAW. 

jurifdiBlonem ) y  to  fappofe  that  the  ecclcfiaftlcal  court 
might  have  gradually  gained  jurifdiclion  over  all  perfonal 
legacies,  under  colour  of  fuch  as  w^ere  given  hi  pios  nfus  ^. 
This  might  have  been  the  firft  ftep  towards  it ;  but  it  is 
mod  probable,  that  there  was  a  dire£t  authority  for  this  in- 
novation derived  from  the  canon  law.  For  although  the 
Decretals^  where  it  is  fet  forth  as  a  general  lav',  were  not 
publiflied  by  Gregory  IX.  till  the  24th  year  of  Henry  lU. 
the  canon  which  warrants  this  point  of  judicature  was 
much  more  ancient,  and,  without  doubt,  had  travelled  hi- 
ther long  before  the  collection  of  Gregory  was  made  ;  and 
the  authoritative  promulgation  by  that  pope,  might  give 
new  fan£lion  to  an  ufage  which  had  obtained  feme  tim.c 
before. 

The  granting  admin iftration  of  inteftates'  effe£ls  by  the 
ordinary,  though  eftablifhed  on  a  more  folid  foundation, 
the  exprcfs  law  of  this  country,  by  the  charter  of  king 
John,  and  confirmed  by  that  of  Henry  III.'  did  not  pre- 
vail univerfally.  It  feems  that  lords  in  fome  places,  iu 
maintenance  of  their  former  right,  flill  exercifcd  ibrae  ju- 
rifdi6lion  in  the  difpofition  of  inteftates*  goods,  m  Dppofi- 
tion  to  the  authority  of  the  bifliops.  The  power  hereby 
intruded  to  the  biihops  was  abufed  in  a  very  fhameful 
manner ;  for  inftead  of  taking  order  for  a  due  diRribution 
of  fuch  goods,  when  they  had  once  got  pofleiTion  of  them, 
they  committed  the  adminillration  of  them  to  tbeii  own 
ufe,  or  the  ufe  of  their  churches,  and  fo  defrauded  thofe, 
to  whom,  by  right  of  fucceflion,  they  belonged  \  and  thi> 
they  did  with  the  pretence  of  law  and  confcience  on  their  fide, 
affecting  that  this  difpofition  of  them  bi  pios  ufus  very  fully 
fatisfied  the  requif.tion  of  law.  This  practice  grew  to  fuch  a 
height,  as  to  occafion  a  conflitution  in  this  king's  reign,  en- 
joining that  they  fhould  not  dilpofe  of  them  othervvifs  than 

^  3  Scld.  1675.  Ed-  i.  and  fo  is  not  in  the  corr.moQ 

'  This  i-lauff,  as  bpfore  obfcrved,     p-iatcJ  tiaarlcrs. 
^vas  left  out   of  t'lt    ('•/(■exirtiusy  25 

according 


310  H  I  S  T  O  R  Y     O  F     T  H  E 

CHAP.  V.  according  to  the  Grertt  Charter,  that  is,  to  the  next  of  kin ; 
HKN'RV  111  "otwith (landing  which,  the  practice  ftill  continued,  and 
the  right  of  fuccelhon  was,  hy  degrees,  in  a  manner  al- 
tered. It  was  even  dated  by  the  canons,  as  the  law  of  the 
land  ^f  that  a  third  part  of  inteftatcs'  effe6ls  fliould  be  di- 
ftributed  for  the  benefit  of  the  church  and  the  poor  '  ', 
which  was  in  effe£t  the  whole  that  properly  belonged  to  the 
intefliate,  alter  the  partes  ratic?mbilcs  of  the  wife  and  chil- 
dren. Thefe  abufes  of  ecclefiallical  judges  gave  occafion 
to  two  (latutes,  made  in  the  reign  of  Edv/ard  I.  and  Ed- 
ward III. 
Of  dei'ceiu.  The  laft  mode  of  acquiring  property  was  hy  fuccejfion. 

The  law  of  defcent  in  the  time  of  Glanville  continued,  with 
fome  fmall  variation.  We  have  feen  that  in  Glanville's 
time  the  eldeft  fon  was  the  fole  heir,  in  knight^s  fervice, 
and  in  mod  in  fiances  in  foccage  '^  •,  but  it  was  now  laid 
down  by  Bra£lon,  generally,  that,  in  both  cafes,  jus  de- 
fcend'it  ad prhnoge.nitum''.  It  was  alfo  now  held,  that  all 
defccndants  hi  hifimtum  from  any  perfon  who  would  have 
been  heir,  if  living,  were  to  inherit  jure  repriffentaiionis. 
Thus  the  eldefl  fon  dying  in  the  life-time  of  his  father, 
and  leaving  iiTue,  that  ifiue  was  to  be  preferred,  in  inherit- 
ing to  the  grandfather,  before  any  younger  brother  of  the 
father ;  which  fettled  the  doubt  that  had  occafioned  fo 
much  debate  in  the  time  of  Henry  II.'* 

The  rule  of  defcent  was,  that  the  neared  heir  fliould 
fucceed  ;  prophiqmor  excludit  propinqituniy  prop'niquus  re- 
motum^  remotus  remotiorem.  Sometimes  the  right  of  blood 
condituted  a  particular  fort  of  propinquity,  to  the  prejudice 
of  the  male  heir,'  who,  in  other  indanccs,  is  fo  much  fa- 
voured in  our  law  ;  as  in  the  following  Cafe  :  A  man  had 
a  fon  and  daughter  by  one  wife,  and  after  her  death  mar- 
ried another,   and  had  a  fon  and  daughter  by  her,   the  fon 

'^  Decretal,  lib.  5.  t.  3.  c.  42.  »  Brn(!l.  64.  b. 

1   3  Scld.  16S1.  "  Vid,  am.  79. 

^  Vid.  ant.  78. 

of 


E  N  G  L  I  S  H      L  A  W.  311 

of  the  fecond  marriage  made  z  purchafe  of  land,  and  died  CM  A  P,  v. 
without  children :  in  this  cafe,  fays  Bra(Ston,  the  fifler  by  j^£j^tj, y  \u 
the  fecond  wife  would  take,  in  exclufion  of  the  other  bro- 
ther and  fifter.  Some  were  of  opinion,  that  this  piece  of 
law  was  entirely  confined  to  cafes  of  purchafed  lands,  but 
that  it  was  otherwife  in  cafes  of  inheritance;  for  there 
refpe6l  was  always  to  be  had  to  the  common  anceftor  from 
whom  the  inheritance  defcended;  and  the  right  fhould  never 
come  to  a  woman  fo  long  as  there  was  a  male,  or  one  de- 
fcended  from  a  male,  whether  from  the  fame  father  and  mo- 
ther,  or  not  p.  Bra6lon,  however,  feems  to  think,  that  this 
rule  of  defcent  was  to  be  obferved  in  inheritances^  as  well 
as  in  purchafed  lands ;  becaufe  every  one,  as  he  came  into 
felfin,  made  -^Jlipes  and  a  firil  degree  ^  ;  and  fo  it  was  fet- 
tled in  the  next  reign,  -when  this  opinion  of  BracSlon  was 
adopted  in  the  maxim,  feifina  facit  Jlipitem,  The  impedi- 
ment thrown  in  the  way  of  defcent  by  the  rule,  nemo  potejl 
ejfe  hares  et  dominusy  Hill  continued,  though  it  was  avoided 
by  many  devices;  the  mod  common  of  which  was  that  of 
infeofling  to  hold  of  the  chief  lord,  and  not  of  the  feoffor  \ 
for  this  avoided  the  neccllity  of  doing  homage  to  the  elder 
brother  '. 

The  law  had  provided  a  preventive  againft  impofing  De  tariu  fufpe- 
fuppofitltious  children,  to  exclude  thofe  who  were  next  in-  •'''**■ 
titled  to  the  inheritance.  If  a  woman,  either  in  the  life 
of  her  huiband,  or  after  his  death,  had  pretended  to  be 
pregnant  when  it  was  thought  flie  was  not,  in  order  to 
dinnherit  the  heir ;  the  heir  might  have  a  writ  commanding 
the  fherlff  to  caufe  the  woman  to  come  before  him,  and 
before  the  guardians  of  the  pleas  of  the  crown,  or  before 
fuch  perfon  as  the  king  (hould  authorife  to  judge  therein, 
and  caufe  her  to  be  infpe£l:ed  by  lawful  and  dlfcreet  wo- 
men, in  order  to  inquire  of  the  truth  *  ;  and  (he  was  put 
in  a  fort  of   free  cuftody  during  her  pregnancy,  that  the 

P  Braff.  65.  Mb^d.ej.  b.  Mb\^.  6?.a.  b.  MblJ.  69,  70.  a.  b. 

im~ 


312 


HISTORY      OF     THE 


O;  Partition. 


CHAP.  V.  impofture,  if  any,  might  not  efcape  deteaion.  This  was 
HENRY  III.  ^^^  ^^'^y  ^^^  which  a  woman  was  dealt  with,  when  ftie 
faliely  pretended  to  be  pregnant.  If  the  hufband  and  wife 
agreed  together  in  educating  a  fuppofititious  child  as  their 
own,  the  right  heir  might  have  a  writ  quod  habeas  corpora 
of  the  hufband  and  wife  before  the  jufticcs,  where  the  truth 
w^ould  be  examined.  Another  perfon  who  had  a  tempta- 
tion to  play  this  trick  upon  the  next  heir,  was  the  chief  lord, 
who,  when  he  had  an  heir  in  ward,  and  it  died,  would 
fometimes  fet  up  another,  in  order  to  continue  the  cuftody 
of  the  land  j  in  which  cafe,  there  was  a  writ  and  proceed- 
ing fimilar  to  the  former  ^ 

When  an  inheritance  defcended  to  more  than  one  heir, 
and  they  could  come  to  no  agreement  among  themfelves  con- 
cerning the  divifion  of  it,  a  proceeding  might  be  inftituted 
to  compel  2.  partition.  A  writ  was  for  this  purpofe  directed 
to  four  or  five  perfons,  who  were  appointed  juftices  for  the 
occafion,  and  were  to  extend  and  appreciate  the  land  by  the 
oaths  of  good  and  lawful  perfons  chofen  by  the  parties, 
who  were  called  exieufores\  and  this  extent  was  to  be  re- 
turned under  their  feals,  before  the  king  or  his  juflices  : 
when  partition  was  made  in  the  king's  court,  in  purfuance 
of  fuch  extent,  there  iOued  ^  fiifmam  habere  facias^  for  each 
of  the  parceners  to  have  pofielhon". 

It  remains  only  to  fay  a  few  words  on  the  claim  of 
dower,  and  then  we  fhall  have  finiflied  this  part  of  our 
fubjeft,  namely,  the  title  of  private  rights.  Dower  is  de- 
fined by  Bra6lon,  not  in  the  words,  but  upon  the  ideas  of 
Glanville  ^.  Dower,  fays  he,  mull  be  the  third  part  of  all 
the  lands  and  tenanents  ivhich  a  man  had  in  his  dcinejne^ 
and  in  feCy  of  ivhich  he  could  etidoiu  his  ivife  on  the  day  of 
the  efpoufals^  :  fo  that,  according  to  Bra£lon,  the  claim  of 
jclower  was  (till  limited  to  the  freehold  of  which  the  hufband 


Dower. 


*  BracV.  70.  b.  71. 

•  ^bid.  71.  b.  to  77.  Ij, 


^  Vide  int.  7*. 
V  BraiV.  92. 


was 


ENGLISH      LAW. 


313 


was  feifed  at  the  time  of  the  efpoufals,  notwithflianding  the  CHAP.  v. 
provlfioii  of  Magna  Charta^  which  feemed  to  extend  it  to  upmry  III 
all  the  land  that  belonged  to  the  hufband  during  the  cover- 
ture ^.  The  regular  aflignment  of  dower  had  been  fecured 
to  widows  by  the  chapter  of  Magna  Charta]u{i  alluded  to, 
and  it  was  rendered  more  effedtual,  by  a  provifion  in  the 
ftatute  of  Merton  *.  More  will  be  faid  of  dower  when  we 
come  to  the  remedies  which  the  law  had  furnifhed  for  recg- 
very  of  it. 

Thus  far  concerning  the  law  of  private  rights,  as  it 
ftood  in  the  time  of  Henry  IIL 

»  Vid.  ant.  242.  *  Vid  act,  lit. 


CHAP, 


314  HISTORY     OF     THE 


CHAP.  VI. 

HENRY  III. 

Of  Aaions-^Of  Courts-^Writs—Of  Difeifw'-Afife  of 
Novel  Dijfeiftn — Form  of  the  Writ — Proceeding  thereon 
— Of  the  Verdict — Exceptions  to  the  Affife — Affifa  verti- 
tur  in  furatain — ^mre  ejecit  infra  Terminum — Afffe 
cf  Common — Of  Nuifnnce — AJJifa  Ultiime  Prafeniationis 
— Exceptions  thereto — Of  ^lare  Impedit — ^lare  non 
Permittat — Afffa  Mortis  Antecejforis — Vouching  of 
Warrantor — Where  this  IVrit  ivould  lie — Writ  de  Con- 
fanguinitate — ^ibd  Permittat — AJJifa  Utrum — Of  Con- 
viBions — and  Certificates — Of  different  Trials — Doiver 
unde  Nihil— Writ  of  Right  of  Dower— Of  Wcfle—Of 
Writs  of  Entry — Different  Kinds  thereof 

CHAP.  VF.  X  HE  whole  courfe  of  judicial  proceeding,  fincc  the 
time  of  Glanville,  had  become  a  bufmefs  of  much  learning 
and  refinement;  the  writ,  the  procefs,  the  pleading,  the 
trial,  every  part  of  an  aclion  was  treated  as  a  fubje£l  of  in- 
tricate difcuiTion.  While  thefe  changes  were  made  in  the 
old  remedies,  new  ones  were  invented,  as  more  peculiarly 
adapted  to  certain  cafes  than  thofe  before  in  ufe.  Of  all 
thefe  we  fhall  treat  in  their  order. 

Of  aaioos.  Actions  are  divided  by  Bra£lon  into  fuch  as  were  in 

revfiy  or  in  perfonaviy  or  mixt ;  that  is,  real,  perfonal,  or 
mixt  ^.  Perfonal  a(fl:ions  were  for  redrefs  in  matters  ex 
coniraciuy  and  ex  maleficio,  as  the  Civilians  termed  it ;  and 
alfo  in  fuch  as  they  called  quafi  ex  contracfuy  and  quaft  ex 
maleficio.     It   follov/s,  that  of  perfonal  adlions  arifmg  ex 

■  B:aa.  loi.  ^ 

nwlefcioy 


HENRY   III, 


E  N  G  L  I  S  H      L  A  W.  315 

maleficiOy  fome  were  r/W,  and  fome  criminal.  Real  a£lIons  CHAP.  vi. 
are  for  the  recovery  of  fome  certain  thing ;  as  a  farm,  or  hJJ^^^^ 
land :  they  were  always  brought  againft  the  perfon  then  in 
poiTeilion  of  the  thing,  and  were  for  the  recovery  of  it  /«- 
fpecie,  and  not  for  an  equivalent  in  damages  **.  A\'Tien  an 
aftion  was  brought  for  any  moveable,  fome  thought  that 
it  fhould  be  confidered  as  a  real  a£lion,  as  well  as  perfonal, 
becaufe  the  perfon  pofTefied  of  it  was  to  make  reftitution  of 
the  thing  in  queftion  j  but,  fays  Bra£ton,  this  was,  in  truth, 
only  perfonal;  for  the  defendant  was  not  obliged  fpccifi- 
cally  to  reftore  the  thing  demanded,  but  was  only  bound  to 
the  alternative  of  reftorLng  the  thing,  or  its  price ;  and 
therefore,  in  fuch  an  action,  the  price  of  the  thing  ought 
always  to  be  defined.  A  mixed  a£tion  was  fo  called,  be- 
caufe it  was  tain  in  perjonam^  quam  in  renjy  having  a  mixt 
caufe  on  which  it  was  founded  j  as  the  proceeding  de  par^ 
/i//5//^  among  parceners,  2inA  de  proparte  fororum -,  that  for 
fettling  of  bounds  between  neighbours  and  baronies /<7r  r^- 
tionahiles  divifas^  or  per  peramhidationes  j  in  which  each 
party  feems  to  have  been  plaintiff  and  defendant,  though 
he  alone  was  properly  plaintiff  who  commenced  the  fuit. 

Real  a£lions  were  divided  into  fuch  as  were  to  recover 
pojjcjfr.n^  and  fuch  as  were  to  recover  the  property^  a  dif- 
tinclion  which  will  be  very  ftri£l:iy  obferved  in  all  we  have 
to  fay  on  thefe  aclions,  and  was  rigidly  adhered  to  in  apply- 
\\v;f  them  •,  it  being  a  rule,  that  though  a  perfon  who  had 
failed  in  any  proceeding  for  the  poflelTion,  might  refort  to 
the  next  fuperior  remedy,  yet  he  could  never  defcend.  He 
might  have  an  aiTife  of  novel  difTeifiii;  and  if  he  failed  in 
that,  he  might  have  a  writ  of  entry  (a  new  writ,  of  which 
we  Ihall  foon  fay  more),  and  laflly  a  writ  of  right ;  but 
having  begun  with  a  writ  of  right,  he  could  not  avail  him- 
fclf  of  the  other  remedies  «. 

^  Cracl.  lot.  •■  Ibid.  104. 

Some 


315  HISTORY     OFTHE 

CHAP.  VF.  Some  actions  were  permitted  bylaw  to  be  brought  at 
HENRY  III  ^"y  diftance  of  time ;  but,  in  general,  actions  were  limited 
to  be  brought  within  a  certain  period,  on  account  of  the 
defeat  of  proof  which  would  happen  in  a  courfe  of  years  ''. 
Suits  which  were  to  recover  fuch  things  as  belonged  to  the 
king's  crown,  might  be  brought  at  any  diftance  of  time;  on 
which  privilege  of  the  king  was  founded  this  rule,  that  nullum 
ietnpus  currit  contra  regem,  or  nullum  tcmpus  occur rit  regi : 
and  it  fliould  fcem  from  Bra6ton's  manner  of  exprcfling 
himfelf,  that,  inafmuch  as  the  fuits  of  private  parties  were 
limited,  becaufe,  beyond  a  certain  period,  they  could  hardly 
be  able  to  bring  proofs ;  the  king,  in  concurrence  with  the 
privilege  of  inftituting  his  fuits  without  any  limitation  of 
time,  (hould,  in  queftions  of  antiquity,  be  intitled  to  throw 
the  onus  probandi  on  the  defendant;  and  on  his  failing, 
fhould  recover  without  bringing  any  proof  at  all  *^. 
Ofcc'urt!!.  Before  we  enter  upon  the  proceeding  and  condu£t  of 

actions  then  in  ufe,  it  may  be  convenient  to  premife  a 
fhortview  of  the  courts  in  which  civil  and  criminal  juftice 
was  adminiftered  :  and  firil  of  criminal  fuits.  Criminal 
fuits,  where  a  corporal  pain  was  to  be  infli£led,  ufed  to  be 
<ietermined  ///  curia  domini  regis,  in  the  king's  court; 
which  general  expreflion  is  explained  in  Bradlon  by  fay- 
ing, that  if  the  offence  concerned  the  king's  perfon,  as  the 
crime  of  lefe  majedy,  it  was  determined  coram  ipfo  rege, 
by  which  was  meant  the  great  fuperior  court,  of  which  fo 
much  has  bee^  already  faid  ;  if  it  concerned  a  private  per- 
fon, it  was  coram  jujlitiariis  ad  hoc  fpecialiter  qjfignntis  \ 
that  is,  we  may  fuppole,  either  the  jufliccs  in  eyre  or  of 
gaol  delivery.  The fe  were  all  equally  the  king's  courts; 
and  as  the  lives  and  limbs  of  his  fubjccSls  were  in  the  king's 
hands,  either  for  prote6lion  or  punifhment,  it  was  proper 
they  (hould  be  fubject  to  his  decifion  only,  unlefs  in  the 

*Braa:,  102.  b,  e  Ibid.  I03. 

few 


E  N  G  L  I  S  H     L  A  W.  317 

few  inftances  where  perfons  enjoyed  the  franchifc  of  hold-  CHAP.  vi. 
ing  a  criminal  court ;  as  the  f ranch ifes  of  Toll  and  Temy  HE^^j^^Y**Jjf 
oi  Infangthef  Tind.  Outfangthef^ . 

The  courts  for  the  determination  of  civil  fuits  were  as 
follow  :  Real  actions  might  be  commenced  in  the  lord's 
court  of  whom  the  demandant  claimed  to  hold  his  land ; 
from  whence  they  might  be  transferred,  upon  failure  of 
juftice,  to  the  (lieriff's  court,  and  from  thence  to  the  fupe- 
rior  one  ^  •,  but  if  fuch  a  fuit  was  not  removed  for  fome 
caufe  or  other,  it  might  be  determined  in  the  court  baron. 
In  the  county  court  were  held  pleas  upon  writs  oljiijlicies^ 
as  de  fervitiis  et  cotifuetudinibusy  of  debt,  and  an  infinitude 
of  other  caufes ;  among  which  were,  fuits  de  ijetlto  namioy 
and  picas  de  nativisy  unlcfs  it  became  an  ilTue,  whether 
free  or  not,  and  then  the  enquiry  ftood  over  till  the  coming 
of  the  king's  juilices ;  the  quellion  of  a  man's  liberty  being 
thought  of  too  high  confideration  to  be  intruded  to  an  in- 
ferior jurifdiftion. 

Such  civil  adlions,  whether  perfonal  or  real,  which 
were  determinable  in  the  king's  court,  were  heard  before 
juftices  of  different  kinds.  The  different  courts  which 
were  called  the  king's  are  thus  defcribed  by  Bradon  :  Cu^ 
riariun  hahet  iinam  propriamy  ficut  aiilam  regimUy  et  jiifli- 
tiai'ios  capitalesy  qui  proprias  caiijas  regis  terminanty  et 
nliorum  omniumy  per  querelairiy  vel  per  privilegium  'five 
lihertatem ;  the  latter  part  of  which  defcription  he  explains 
by  inftancing  one  who  had  a  grant  not  to  be  impleaded  any 
where  but  coram  ipfo  domino  rege ;  though  it  might  be 
doubted  whether  per  querelam  is  thereby  explained,  and 
whether  that  expreffion  does  not  mean  a  diflind  method  of 
proceeding  by  complaint y  fimilar  to  what  we  fee  at  this  day 
in  the  modern  king's  bench,  and  of  which  we  iliall  have; 
occafion  to  fay  more  hereafter.  Thus  far  of  the  aula  regir. 
Our  author  proceeds,    and   fiys,    haht  eiiam    curiam,   et 

*   Bra  a.  104.  b,  t  JJ  maguam  curiam.     B.avll,  lo;. 

Jujlitiarios 


3i8  HISTORY     OF     THE 

CHAP.  VI.  jujiitianos  in  banco  rejtdentes^  qui  coguofcunt  de  omnibus 
HENRY  III  plciciiis^  de  quibus  authoritatem  hahent  cognofcendi\  et  fine 
ixjarranto  jurifdiEiiomm  non  habent^  nee  CQercio?icm ;  in 
which  he  feems  to  defcribe  the  betich  as  having  no  autho- 
rity but  by  the  writs  returnable  there.  He  goes  on  to 
mention  the  juftices  itinerant  through  the  counties;  fome- 
timcs  ad  omnia  placita ;  fometimes  ad  qucEdum  fpecialia  ; 
as  to  take  aflifes  of  novel  difleifin,  of  mortaunceflor,  and 
ad  gaolas  deliberandas^  to  deHver  one  or  more  particular 
gaols.  As  caufes  were  fometimes  removed  from  the  court 
baron  to  the  county,  fo,  as  appears  from  Braclon,  and 
as  was  hinted  above,  were  they  removed  before  the  juftices 
itinerant,  and  from  thence  into  the  bench,  or  coram  rege  \ 
Thefc  are  all  the  courts  fpoken  of  by  Bradon  ;  and  there- 
fore it  mull  be  concluded,  that  the  court  of  exchequer  was 
ftill  confidered  as  identically  the  fame  with  the  aula  regis ; 
and  that  the  proprias  caufas  regis  particularly  meant  the 
government  of  the  revenue  ;  which  is  perfe£lly  confiflent 
with  the  account  before  given  ^  of  this  great  court  in  its 
firft  origin,  and  before  the  bench  had  any  exiftence. 

Besides  this  exprefs  account  of  courts,  there  are  feat- 
tered  up  and  down  Braflori's  work  feveral  paflages  which 
give  us  intimation  of  the  nature  of  thefe  courts ;  the  prin- 
cipal of  which  are  the  returns  of  writs.  A  comparlfon  of 
fuch  exprelTions,  as  they  occur  in  the  courfc  of  this  chap- 
ter, will  throw  a  nev/  light  on  the  judicature  of  the 
time. 
Writs.  The  fubjeil  of  writs  feems  to  have  been  iludied  \\'ith 

great  diligence  ;  writs  had  been  devifed  for  a  greater  va- 
riety of  occafions  than  in  Glanville's  time,  and  they  v/ere 
difcufled  with  more  prccifion  and  fyftem.  Bradlon  divides 
writs  into  different  kinds,  in  this  way.  He  fays,  there 
were  fome  which  were  formaia  fuper  certis  cafibus,  de 
CURSU,  et  de  commuui  conJiUo  totius  regni  concejfa  et  apprO' 

^  Brac\,  105.  b.  '  Vid.  ant.  48,  <Jo,  6cc. 

baia ; 


E  N  G  L  I  S  H      L  A  W.  3,^ 

hata ;  and  thefe  could  not  be  changed  without  the  confcnt    CHAP.  vr. 
of  the  fame  power  that  framed  them.     There  were  others    lj£xt« y  ni 
which  he  calls  inagiflraliay  and  which  were  varied  according 
to  the  variety  of  cafes  and  complaints.     Thefe  mag\ftralia 
brevia,  it  fhould  feem,  from  Bra£lon*s  account  of  them, 
were  dillinguifhed  from,  and  put  in  contraft  with,  the  hre-  , 

viaformatay  as  being  changeable  without  the  permiflion  of 
the  legiflature*^.  Thofe  which  gave  origin  and  com- 
mencement to  a  fuit^  were  called  brevia  originaliaf  and 
were  called,  fome  of  them  aperta^  or  patentia,  and  fome 
c/aufa ;  fuch  as  arofe  out  of  thefe  were  called  judicialia  : 
thefe  were  varied  according  to  the  pleadings  between  the 
parties,  and  the  particular  purpofe  which  they  were  to  an- 
fwer. 

In  difcourfing  on  the  nature  of  civil  a<rtions,  we  (hall 
begin  with  thofe  that  were  called  real.  In  order  to  under- 
ftand  the  defign  of  the  various  real  remedies  which  the  law 
furnifhed,  it  will  be  neceflary  to  attend  to  the  manner  in 
which  they  confidered  the  occupation  of  land  and  its  ap- 
purtenances, under  the  circumftanccs  of  a  more  or  lefs 
complete  enjoyment. 

Of  land,  a  man  might  have  either  what  they  called/^ 
fejfwny  or  what  they  called  jus,  or  proprietas,  Poflcflion 
was  of  various  forts,  and  divided  by  very  nice  diftinflions. 
One  was  faid  to  be  quadam  ntida  pedum  pofitio,  which  they 
called  intrufion\  and  this  contained  in  it,  fays  Brafton, 
minimum  pojjejjionisy  and  nihil  juris,  being  fomewhat  of 
the  nature  of  a  difTeifm  :  in  both  it  was  a  nuda  poffijjio, 
till  it  received  a  vejlimentum  by  length  o£  time.  Another 
was  a  precarious  and  clandefline  pofleflion,  attended  with 
violence,  which  acquired  no  vejlimentum  by  length  of 
time  ;  and  this,  fays  the  fame  authority,  had  parum  pojfej' 
Jionis,  and  nihil  juris.  A  pofleiTion  for  term  of  years,  as 
it  gave  nothing  but  the  ufufrudl,  was  confidered  in  a  dc- 

*'  Braa.  413.  b.  i  lUiJ.  414.  b. 

grce 


History    of    the 

grce  higher,  as  having  aliquid  ■pojfcjfioms^  but  nihil  jurii. 
The  next  was  for  life,  as  dower,  or  the  like  ;  and  this 
being  a  flep  higher,  was  faid  to  be  multum  pojjejpofiisy  but 
ftill  mhil juris.  The  next  degree  was,  where  a  perfon  had 
the  freehold  and  fee  to  him  and  his  heirs  *,  and  then  he 
was  faid  to  havc^//^j'  pojjljfionisy  et  multum  juris  :  and  he 
who  had  the  freehold,  fee,  and  property,  united  in  him- 
felf,  had  plurimum  pojjejftonisy  and  plurimum  juris ^  which 
was  called  droit  droits  and  contained  the  highefl  degree  of 
property  and  pofleffion ;  except  that,  even  then,  fome 
other  perfon  might  haveyV/fj-  majus^  or  greater  right'". 

We  fliall  fpeak  of  the  remedies  applicable  to  thefe  fevc- 

ral  kinds  of  pofleffion  in  the  order  fuggefted  by  the  above 

dI{lln£lions,  beginning  with  the  writ  of  iutrufio?i.    Intrufiou 

was,  when  a  perfon,  not  having  the  lead  fpark  of  right, 

came  into  a  vacant  pofleffion  \  as,  after  the  death  of  the 

anceftor,  before  the  heir  or  the  lord  entered.     The  perfon 

entitled  to  the  reverfion,  in  fuch  cafe,  might  have  a  writ, 

which  had  been  invented  fmce  the  time  of  Glanville,  and 

refulted  from  fome  of  the  artificial  notions  which  we  have 

juft  ftated,  concerning  pofleffion.     The  form  of  this  writ 

varied  according  to  the  circum (lances  under  which   the 

perfon  bringing  it  claimed ;  whether  he  was  the  lord  or  the 

heir  j  whether  he  claimed  upon  the  death  of  an  anceftor, 

of  a  tenant  in  dower,  ox  per  legem  AngUiHy  or  for  life.    The 

following  was  a  more  general  form  of  it :  Rex  vicecomiti 

Jalutem,    Fane  per  vadium  et  falvos  plegios  A.  quod  fit  ioranij 

t]fc,   ad  rejpondendumy  or  ojhnfurus  quare  intrufit  Jc  in  ter- 

ram,  tsfc.   quaTn  B.   qui  nuper  ol/iit^  tcnuit  de  eodcm  C.  ad 

vitam  fuam  tantum^  et  qua^  poji  mortem  ejufdtm  B.  ad  eun- 

dcm  C  reverti  dehuit,  ut  idem  C.  dcit :  et  habeas^   ^e. 

Possession  created  a  fort  of  right;  it  was  advifeablc 
therefore  for  the  heir  to  ejefl  the  intrudor  within  a  year, 
or  at  the  end  of  that  time  have  rccourfe  to  this  writ  j 
for  it  is  laid  down  by  Bra6lon,  that  no  one  could  be  put 

"*  Brai5l.  159.  b.  160. 

to 


E  N  G  L  I  S  H      L  A  W.  321 

to  anfwer  for  an  intrufion  of  longer  (landing.  Refpeft-  CHAP.  vi. 
ing  this  time  of  limitation,  Bra£lon  feems  not  very  precife;  henry  III. 
for  he  afterwards  fays,  at  fartheft,  not  at  the  diftance  of 
ten  or  twelve  years,  as  was  determined  in  this  reign " ; 
but  the  claimant  was  then  driven  to  his  writ  of  entry, 
grounded  upon  the  intrufion  " ;  a  writ  lately  invented,  of 
which  more  will  be  fald  in  its  proper  place. 

The  next  thing  to  be  confidered  is,  that  v^Tongful  pofTef-  Of  difTcifin. 
fion  which  was  obtained  bv  difleifin,  and  the  method  of  re- 
drefs  the  law  directed  to  be  purfued.  Difleifin  was  now 
confidered  in  a  very  large  fenfe,  and  much  beyond  the  idea 
to  which  it  was  firft  applied.  It  was  not  only  when  the 
owner,  or  his  agent,  or  family,  who  were  in  feifin  in  his 
name,  were  ejeiSled  from  the  freehold  unjuftiy  and  violently, 
without  judgment  of  law  ;  but  alfo,  when  a  houfe  had 
been  left  without  any  o!ie  therein,  and  the  owner,  his 
agent,  or  family,  returning  from  his  bufinefs,  was  denied 
admittance  by  one  who  had  taken  pofi^elTion,  it  was  a  dif- 
feifin  ;  if  a  man  was  obflru^led  in  a  free  ufe  of  his  freehold, 
that  was  a  difleifin ;  for  though  he  might  remain  in  poflef- 
fion,  the  full  extent  of  that  pofl^eflion  was  not  enjoyed.  If 
any  one  dug,  or  put  flieep,  or  otherwife  intruded  upon,  land, 
under  claim  of  an  eafement  (for  if  it  was  without  a  claim  of 
right  it  was  only  a  trefpafs) ;  or,  if  a  perfon  made  impro- 
per ufe  of  an  eafement  he  had  a  right  to ;  this  was  a  dif- 
feifin.  Again,  if  a  perfon  was  in  feifin  for  life,  or  for 
years,  or  as  guardian,  or  otherwife,  and  infeofi'ed  another, 
in  prejudice  of  the  right  owner;  if  a  perfon  diftrained  for 
fervices  not  due,  or  where  they  were  due,  exceeded  the 
bounds  of  a  reafonable  diflrefs ;  thefe  were  difleifins.  In 
fliort,  if  one  claimed  to  partake  with  the  right  owner,  or 
raifed  an  unjufl:  contention  againfl  him,  it  was  a  diflx:ifin 
of  the  freehold  p. 

The  above  were  difleifins  without  violence ;  others  were 
faid  to  be  violent ;  but,  in  order  to  undcrftand  what  the 

»   16  Hen.  III.  •  Brad.  160,  i6i.  a,  p  Ibid.  161.  b.  262. 

Vol.  I.  Z  law 


HI  STORY     OF     THE 

law  confideFcd  as  a  violent  difleifin,  we  muft  fee  what  the 
nature  of  vis  was.  Vis  was  of  two  kinds,  according  ta 
Bra£lon :  thus,  there  was  vis /implex  and  vis  armata.  If 
is  not  difficult  to  conceive  what  was  faid  to  be  vis  nrmata : 
it  was  not  only  the  coming  with  weapons  of  any  fort,  or 
finding  them  at  the  place  where  they  were  ufed ;  but  if  a 
pcrfon  came  with  arms,  and  made  no  ufe  of  them,  the 
terror  of  them  might  be  thought  fo  to  have  operated,  as 
to  make  the  diiTeifm  feem  to  have  been  cuvi  armis.  Vis 
Junplex  is  defined  by  Bra^lon  to  be  quotiens  quis,  qiiodjihi 
videri  puiat^  mn  per  jiidicem  repofcit ;  that  is,  wherever 
a  perfon  took  the  law  into  his  own  hands.  This  diftinc- 
tion  of  vis  aim  armis  and  vis  fine  arwis,  was  important,  as 
the  penalty  upon  difleiflbrs  was  proportioned  thereto''. 

Whatever  was  the  way  in  which  the  diffeifm  was 
committed,  the  law  not  only  allowed  but  required  the  dif- 
feifee,  i?icontinenter,  flagrante  dijjeifind  et  malejiczoy  to  ex- 
pel the  wrong-doer.  What  was  meant  by  incontinentery 
Braxton  thinks  was  pointed  out  by  the  term  of  fifteen  days 
allowed  to  a  tenant  fummoned  in  a  writ  of  right.  If  the 
owner  was  prefent  at  the  time  of  the  dilTeifin,  he  was  to 
eje£t  the  diffeifor  that  very  day,  if  pofTibie,  or  on  the  mor- 
row, or  the  third  or  fourth  day;  and  beyond  that  time,  pro- 
vided he  had  uninterruptedly  continued  his  endeavours,  by 
calling  in  the  afliftance  of  his  friends,  and  refuming  the 
attack. 

If  he  was  abfent  when  the  difleifin  was  committed,  then 
a  diftinQion  was  to  be  made  according  to  the  diftance ;  a 
reafonable  time  was  allowed  for  his  getting  information  of 
the  fa6l,  and  for  his  arrival ;  and  if  he  purfued  his  attack 
upon  the  difleifor  within  the  ftated  time  after  fuch  arrival, 
the  law  confidered  it  as  done  incontinenter.  As  for  in- 
ftance,  if  he  was  out  of  the  kingdom  in,  what  was  called, 
/implex  peregrinatio  to  St.  Jago,  or  in  the  king's  fervice 

1  Bra£l.  i6i. 

in 


ENGLISH      LAW.  ^  323 

in  Gafcony,  he  had  forty  days,  and  two  floods  and  one  CHAP.  Vf. 
€bb;  which  latter  indulgence  was  for  the  delay  occaGoned  henry  in. 
by  the  fea :  and  then  he  had  the  fifteen  days  after  he  return- 
ed, and  alfo  the  four  days  above-mentioned,  to  refume  the 
attack.  If  he  was  in  -^  firnplex  peregrhiatio  to  the  Holy 
Land,  he  had  a  year  allowed  him,  together  with  the  fifteen 
and  four  days ;  but  if  he  was  in  what  they  called  a  genc" 
ral pajpige  to  the  Holy  Land,  the  time  was  three  years,  to» 
gether  with  the  fifteen  and  four  days. 

Such  was  the  time  allowed  by  the  law,  for  a  man  to  rc- 
drefs  the  injury  he  had  fuffcrcd;  but  if  he  permitted  a  lon- 
ger period  than  that  to  elapfe,  he  gave  up  this  right,  and 
loft  both  his  natural  and  civil  poflefTion,  as  they  called  it, 
which  were  thenceforward  in  the  difTeifee^  who  could  not  CT^y^ 
afterwards  be  ejecled  btit  by  judgment  of  law^ 

As  to  the  power  of  redrefsby  the  acl  of  the  party  in- 
jured, and  the  fituation  in  which  recourfe  muft  be  had  to 
the  alTife,  the  law  may  be  fhortly  ftated  in  this  manner. 
For  inftance,  I  eje(Sl  you  from  your  freehold  ;  you  may 
have  an  alfife.  Again,  I  eject  you,  and  you  me,  inconti- 
nently, Jlagrafiie  diJJl'ifiJid ;  I  cannot  have  an  aflife,  be- 
caufe  I  only  fuffer  what  I  had  before  done  myfclf.  Again, 
I  ejecl  you,  and  you  ejecl  me,  incontinently,  and  I,  again, 
incontinently  ejecl  you;  ftlll  you  may  have  an  alTife,  and 
fo  in  infinitum;  for  the  true  poiTellbr  may,  bylaw,  eje61:,  in- 
continently, the  wrong  doer,and  an  affife  fiiall  not  be  brought 
againft  him  for  it:  but  fhould  the  true  pofieflbr  be  negligent, 
after  the  diiTcifin,  in  purfuing  the  injury,  he  loft,  as  was  be- 
fore fiiid,  both  his  civil  and  natural  polTcfTion,  and  had  no  re- 
drcfs  but  by  the  allife  '. 

If  the  diifeifor  transferred  the  land  on  the  day  of  the  dif- 
feifm,  or  the  day  after,  the  donee  might  be  ejeiSled,  incon- 
tinently, by  the  true  owner,  the  fame  as  the  principal  dif- 
feifor :  in  like  manner  alfo,  the  alTife  might  be  brought    . 

^  Erafl.  163.  *  Ibid.  1S4. 

Z  2  againft 


324 


HISTORY     OF     THE 


-CHAP.    VI. 


HENRY  III. 


Affif*  of  novel 
diilciiin. 


agalnfc  both  ;  againft  the  firft  ad  poetmmy  and  agalnft'thc 
fecond  ad  poefiam  and  ad  reJ}itutionem.  If  a  long  inter- 
val had  palTed  between  the  difTelfin  and  the  transfer,  the 
fecond  would  not  have  been  liable  ad  pcenam^  but  only  to 
make  reflitution  ^  Again,  if  the  firft  wrong-doer  was 
difTeifed  by  another,  the  true  owner  might  either  inconti- 
nently eje6l  the  lafl  dilTeifor,  or  bring  an  alTife  againft  him  ; 
and  if  he  deferred  doing  it,  the  firft  difleifor  might  do  either. 
In  all  thefe  cafes  of  recovering  pofleflion  by  force,  the  fhd- 
riif,  though  not  bound  to  interfere  ex  ojfficioy  might  aflift  at 
the  requeft  of  the  difleifee ;  yet  he  was  to  take  care  how  he 
a£led,  as  he  would  be  fubje6l  to  an  aftlfe,  in  like  manner 
as  the  perfon  whom  he  meant  to  aflift  :  he  might  take  a 
part  in  thefe  matters,  either  as  a  private  friend,  or  officially 
as  ftierifF,  to  keep  the  king's  peace  "• 

When  the  party  difleifed  had  negle£led  to  avail  himfelf 
of  the  authority  the  law  gave  him  to  recover  pofleflion 
while  the  injury  was  frefh,  he  was  then  to  recur  to  the  re- 
cognition of  aflife  \  that  compendious  way  for  recovering 
pofleflion,  which  became  now  more  pra£lifed  than  ever. 

Every  body  who  was  tenant  of  a  freehold  nomine  fuo 
proprioy  might  have  this  remedy  by  afllfe;  thofe  therefore 
who  were  in  pofleflion  nomine  al'ieno^  as  a  guardian,  an 
agent,  the  family  of  a  man,  or  his  fervant ;  a  fimmrmsy 
or  fru£luary  (not  being  ^  foedi  jirmnrius) ;  an  ufurer,  or 
gueft  ;  one  who  held  from  day  to  day,  or  from  year  to 
year ;  or  an  ufufrucluary  who  held  for  a  term  of  years ;  none 
of  thefe  could  bring  an  aflife  ;  but  that  remedy  was  left  to 
him  who  was  the  dominus  pyoprietaiis,  out  of  whofe  fee  all 
thofe  interefts  iflued.  It  is  laid  down  gravely  by  Bra6lon, 
that  fhould  a  man  be  ejected  from  his  fliip,  quafi  de  libera 
tenefnetitoy  he  was  no  more  entitled  to  an  aiTife  than  if  he 
had  been  dragged  from  his  horfe  or  carriage ;  though  he 
makes  a  queftion  concerning  an  ejectment  from  a  wooden 


*  Eracl.  164. 


"  Ibid. 


houfc 


E  N  G  L  I  S  H      L   A  W.  325 

houfe :  to  which  he  anfvvei-s,  that  if  it  ftood  on  his  own  CHAP.  vr. 
land,  whether  adhering  to  the  foil  or  not,  an  afrife  would  upxru  y  hi 
lie ;  but  if  on  the  land  of  another,  and  there  h?id  been  any 
prohibition  or  injunQion  againft  the  building,  or  removal, 
the  perfon  on  whofe  land  it  was  built  might  have  an  alTife ; 
if  there  had  been  none,  and  it  had  been  remaved  without 
any  conteft,  he  could  not  have  an  afiife  ^. 

An  afrife  lay  not  only  againft  the  djfieifor,  but  againfl  all 
his  aiders  and  abettors,  whether  prefent  or  not ;  not  only 
againft  thofe  who  did  the  hCi,  but  againft  thofe  in  wiiofe 
name  it  was  done ;  or  who,  after  it  was  done,  concurred 
in  or  approved  it  5  as  by  this  avowal  and  ratification,  they 
feemed  to  make  themfelves  parties  ^.  It  only  lay  againft 
thofe,  who  were  in  fome  of  the  above  ways  parties  to  the 
fa6l ;  and  therefore  not  againft  an  heir,  or  fucceflbr  to  the 
difleifor  ;  who,  though  liable  to  make  reftitution,  were  not 
to  undergo  a  penalty  for  the  dilTeifin  ^.  Neverthelefs,  where 
any  of  the  parties  died,  or  the  afllfe  had  not  been  brought 
with  fuch  diligence  as  the  law  required,  and  the  matter 
was  not,  by  commencement  of  fome  proceeding,  become 
litigiousy  as  the  lawyers  called  it  •,  in  fuch  cafes  recourfc 
was  to  be  had,  not  to  a  writ  of  right  as  formerly,  but  to 
a  remedy  which  had  been  lately  invented,  called  a  writ  de 
ingrejfuy  or  writ  of  entry ;  which  has  been  lb  often  alluded 
to,  and  of  which  more  will  be  faid  hereafter  ^. 

The  form  of  the  writ  of  novel  difteifin  difPered  from  that   n         -  . 

1  ^rm  o:  the 

in  Glanville's  time  in  nothing  but  in  the  return  :  the  limita-  ^^"t.^ 
tion  was  ftill,  notwithftanding  the  ftatute,  pojl  nUimum  redi- 
turn  domlni  regis  de  BritaJimd  in  Angliavi  *  j  but  the  return 
was  iijq\  adprimnm  ajfifarn  cum  jiijllt'uirii nojlri  cd partes  illas 
venertnt  \  according  to  the  appointment  of  juftices  of  aflifc, 
as  direfted  to  be  made  by  Magna  Ckaita.  It  feems,  that 
upon  this  writ  pledges  of  profecution  were  to  be  taken  by 
the  liicriff*  only  in  cafe  they  had  not  been  found  in  the 

*  Riaa,  167,  iCS.  »  Ibl<I.  17c,  176. 
^   lbi(^.  I  •  '.                                              *  Vjd.  ant.  3164. 

*  Ibid.  17*. 

king'^ 


326  H  I  S  T  O  R  Y      O  F     T  H  E 

CHAP.  vr.  king's  court,  or  a  promife  given,  which  ufed  in  fome  in- 
HE  vY  III  ^^^J^ces  to  be  accepted  inflcad  of  pledges.  The  pledges 
were  to  be  two  at  lead,  and  fuch  as  were  fufFicIent  to  pay  the 
nvfericordia  to  the  king,  if  the  complainant  fliould  retra£lj 
or  not  profecute  his  fuit.  If  a  huihand  and  wife  were  com- 
plainants, two  pledges  were  enough  ;  and  it  was  the  prac- 
tice to  be  contented  with  two,  when  there  were  more  com- 
plainants than  one ;  though  it  was  thought  fafer  that  each 
fhould  find  two.  Notwithftanding  the  claufe  commanding 
the  fherifr  quod  fac'iat  tenementum  rejViftr'i  de  catallisy  was 
ilill  continued,  this  part  of  the  writ,  fays  Bra6lon,  was 
never  executed ;  but  thefe  were  left  to  be  eflimated  in  the 
damages  by  the  recognitors  ''. 

The  other  dire6tions  of  the  writ  were  to  be  executed  as 
follow :  in  purfuance  of  quod  tencuientum  fac'iat  ejfc  i?i  paccy 
i^c.  the  fherifF  was  to  fee  that  the  difleifor  did  not  convey 
the  land  to  any  one,  and  that  the  difleif^e  made  no  entry 
thereon  ;  and  if  an  entry  w^as  made  by  any  one,  under  any 
pretence  whatever,  he  was  to  reftore  it  to  the  true  owner, 
fo  to  remain  till  the  next  aflife.  As  to  fending  the  recog- 
nitors ad  iiivendum  tenemeniuyn^  he  was  to  caufe  a  view  to 
be  had,  not  by  one  or  two,  but  by  the  whole,  if  pollible, 
or,  at  Icait,  by  feven  •,  for  an  aiTife  could  not,  fays  Bra<Slon, 
be  taken  by  lefs  than  feven,  though  it  might,  for  particular 
reafons,  be  taken  by  more  than  twelve. 

The  reafon  of  a  view  w-as,  that  there  might  be  a  cer- 
tainty about  the  matter  in  queftlon,  both  for  the  guide  of 
the  jurors  in  fwe?.ring,  and  the  judge  in  giving  judgment. 
The  jurors  were  to  fee  what  the  freehold  was;  whether  it 
was  land  or  rent ;  whether  it  was  confecrated  to  the  church 
or  not;  whether  it  was  held  folely,  or  in  common.  They 
were  to  fee  that  the  complainant  did  not  put  more  in  view 
than  he  had  claimed  in  his  writ,  for  then  he  would  be 
amerced ;  though  he  might,  if  he  pleafed,  put  lefs.     They 

J'BraiSt.  179. 

were 


E  N  G  L  I  S  H      L  A  W-  3^7 

were  to  fee  in  what  vlll,  in  what  locusy  in  what  part  of  the    chap.  vr. 

locus,  and  within  what  bounds,  the  freehold  lay.     If  it    Hj-i^rj^Y  ill. 

was  a  rent,  they  were  to  fee  the  land  out  of  which  it  ifTued 

(an  affife  being  the  remedy  for  rents,  in  fome  cafes  where 

a  diflrefs  failed) :  the  like  of  common  of  pafture.     They 

were  to  view  not  only  the  land  where  the  common  lay,  but 

alfo  that  to  which  it  was  appurtenant  *=  ;  and  thus,  in  all 

cafes,  the  jurors  were  to  have  a  view  of  the  thing  in  quet 

tion,  for  their  better  information*'. 

It  was  the  complainant's  duty  to  attend  and  point  out 
all  the  above  circumflances  to  the  jurors  ;  and  if  he  could 
not,  and  appeared  totally  ignorant  of  the  matter,  the  writ 
of  affife  was  loft,  and  the  affife  aclii  in  ferambulatio}2t'my 
as  they  called  it ;  that  is,  became,  by  confent  of  the  par- 
ties, a  perambulation  to  make  a  general  enquiry  concern- 
ing the  locality,  the  metes  and  bounds  of  the  land  *^.  It 
was  a  rule,  that  could  the  complainant  point  out  the  locus, 
but  not  the  precife  part  thereof,  it  was  fufficient  if  he  was 
proved  by  the  oaths  of  the  recognitors  to  have  feifin  any 
where  in  the  locus  aUedgedo 

If  either  of  the  parties  failed  to  appear  at  the  day  ap-  Proceed  ng 
pointed  before  the  juftices,  his  pledges  were  /;/  imfericordid ;  '  ^'^'^°'^* 
if  neither  of  them  appeared,  the  affife  was  void,  and  all, 
both  principals  and  pledges,  were  /;;  vufericorduu  If  the 
dlffieifor  appeared  and  confeiTed  the  difleirin,  as  in  fo  doing 
he  acknowledged  an  injury  M'hich  was  againft  the  peace, 
he  was  to  be  commited  to  gaol.  If  the  difilifar  was  ab- 
fent,  and  the  complainant  prefent,  together  with  the  recog- 
nitors, though  no  one  was  prefent  for  the  diflelfor,  the 
affife  was  ftill  to  proceed /)rr  defaltavi ;  it  being  a  rule,  that 
the  affife  (hould  on  no  account  be  delayed  •  in  fuch  cafe, 
however,  the  complainant  was  always  examined  as  to  the 
ground  of  his  demand  ^.  The  complainant  might,  at  the 
time  of  appearance,  make  a  retraxit  of  his  complaint  \  for 

«=  Buc^,  I  So.  J  Ibid.  *  Il»;d,  '  Ibid.  i8i.  183. 

whicji 


HISTORY      OF     THE 

which  his  pledges,  as  was  before  fald,  would  be  amerced, 
uulefs  he  obtained  the  licence  of  the  court  for  fo  doing  ?. 

When  both  parties  appeared  in  court,  the  writ  was  to 
be  read,  and  the  matter  of  complaint  enquired  into.  Brae- 
ton  blames  fome  judges,  who  immediately,  after  hearing 
the  writ  read,  would  proceed  to  aCc  the  party  complained 
of,  what  he  could  fay  againll  the  alhfe :  he  thought  it  hady 
and  premature  to  put  a  perfon  to  anfwer,  before  the  mat- 
ter of  the  complaint  was  properly  examined  and  efta- 
blifhed ;  for  It  was  not  yet  known  whether  the  proceeding 
was  to  be  by  an  ajf:fe  or  by  '^jin-y  (the  diftln^lion  between 
which  will  be  (ttn  prefently),  whether  the  fact  was  a  tref- 
pofs  or  a  dijfeifin  :  he  thought,  therefore,  that,  as  in  a 
queftlon  concerning  the  proprietas,  the  demandant  was  to 
ihew  by  what  right  he  claimed  ;  in  like  manner,  in  this 
fuit,  it  was  not  fufhcient  barely  to  propound  a  complaint, 
but  to  fliew  the  Jus  querela-^  and  how  the  complainant  was 
entitled  to  make  it. 

The  juftices,  therefore,  for  their  own  information,  and 
to  inftru6t  the  jurors,  were  to  interrogate  as  to  the  parti- 
culars of  the  complainant's  cafe ;  oF  what  freehold  he  was 
difieifed,  whether  land  or  rent,  whether  for  life  or  in  fee, 
whether  by  defcent  or  purchafe  ;  of  a  rent,  whether  it 
iiTued  out  of  a  chamber  or  a  freehold,  whether  for  life  or  in 
fee ;  of  the  boundaries  and  fize  of  the  freehold,  whether 
there  was  any  ejectment  from  the  freehold,  whether  it  was 
by  day  or  night,  with  arms  or  without,  with  robbery  or 
without ;  and  Innumerable  other  clrcumilances  which 
might  conftitute  the  merits  of  the  cafe  **. 

When  thefe  enquiries  had  been  made,  then,  and  not 
till  then,  was  the  tenant  to  be  alked,  if  he  could  fay  any 
thing  why  the  aflife  ought  to  remain.  The  matter  of  fuch 
obje£llon  might  be  found  in  the  above  interrogatories  put 
to  the  complainrint.    If  the  tenant  could  (hew  no  caufe  why 

s  Biaf^.  i8a.  b.  ^  Ibid.  1S4. 

the 


ENGLISH      LAW. 

tlie  alTifc  (hould  remain,  but  at  once  denied  he  had  com- 
mitted any  difleifm  ;  he  (imply  put  himfelf  upon  the  afhfe,  henry 
and  the  aflife  proceeded,  as  they  called  it,  //;  modvm  ajfif<z^ 
that  is,  upon  the  fimple  queftion  of  difleifm  ;  and  if  the 
jurors  were  prefent,  or  feven  of  them  at  leaft,  againft 
whom  there  was  no  caufe  of  exception,  they  proceeded  to 
take  the  afhfe  ;  if  they  were  not  prefent,  the  aflife  was  de- 
ferred to  another  day,  when  they  were  to  appear,  and  the 
aflife  was  to  proceed. 

If  the  jurors  appeared  at  the  next  day,  then  the  exceptions 
to  them  were  to  be  fl:ated.     Thefe  were  of  various  kinds. 
Bradon  fays,  that  was  a  good  exception  to  a  juror,  which 
would  be  a  good  one  to  a  witnefs.    One  rendered  infamous 
by  having  been  convicted  of  perjury,  could  not  be  a  juror,  ac- 
cording to  the  rule  exprefled  in  the  Englifli  of  thofe  days ; 
*'  He  ne  es  othes  wort  he  that  es  enes  gylty    of  oth  brokei  .^* 
Any  enmity  againft  a  party,  any  friendfliip  with  him,  was  a 
good  exception.     Being  a  fervant,  familiarity,  confangui- 
nity,  affinity,  unlefs  the  connexion  was  equally  with  both 
parties ;  being  of  the  fame  table  or  family  •,   under  the 
power  of  a  party,  fo  as  to  be  benefited  or  hurt :  owing  fult 
or  fervice*,  being  counfel  or  advocate;  all  thefe,  and  many 
others,  were  good  caufes  of  exception  to  jurors.     When  Ofihcvcrdia. 
the  parties  had  at  length  agreed  upon  a  juror,  they  could 
not  afterwards  rejedl  him ;  and  when  the  number  was  com- 
plete, the  adife  proceeded,  the  firft  juror  having  taken  the 
following  oath  :  "  Hear  this,  ye  juftices,  that  I  will  fpeak 
"  the  truth  of  this  aflife,  and  of  the  tenement  of  which  I 
"  have  had  a  view  by  the  king's  writ"  (altering  thefe  words 
where  the  fubje£t  was  a  rent,  a  common,   and  the  like), 
**  and  in  nothing  will  omit  to  fpeak  the  truth.     So  help 
"  me  God,  and   thefe    holy  gofpels."      After  this,    the 
other  jurors,    in   order,   repeated   the  following  words: 
«*  That  oath  which  the  foreman  here  hath  taken  *,  1  will 

^   Talis  frimus  hie. 

"  keep 


n 


30  HISTORYOFTHE 


HLNRY   III. 


CHAP.  Vf.    "  keep  on  my  part,  fo  help  me  God,  and  thefe  holy  gof- 
*    ^         '    "  pels''." 

After  the  oath  was  taken  in  the  foregoing  manner, 
the  prothonotary,  for  the  information  of  the  jurors,  was  to 
rehearfe  the  efFe£l  of  the  writ,  in  the  following  way :  "  You 
**  fhall  fay,  upon  the  oath  which  you  have  taken,  whether 
**  N.  unjuRly,  and  without  a  judgment,  difTeifed  B.  of 
*'  his  freehold  in  fuch  a  vIU,  after  the  lafl  return  of  the 
"  king,  &:c.  or  not."  In  this  fituation  of  things  the  juf- 
tices  were  to  fay  nothing  towards  initrutling  the  jurors, 
becaufe  nothing  had  been  faid  by  way  of  exception  againil 
the  aflife ;  but  the  jurors  were  to  retire  into  fome  fecret 
place,  and  there  to  converfe  with  one  another  upon  what 
they  had  in  charge  ;  and  no  one  was  to  have  accefs  to  them, 
or  talk  with  them,  till  they  had  given  their  verdidl ;  nor 
were  they,  on  the  other  hand,  by  figns  or  words,  to  give 
the  lead  intimation  w^hat  their  verdicl  was  to  be. 

There  often  happened  a  difference  of  opinion  between 
the  jurors;  in  which  cafe  the  court  ufed,  as  it  was  called, 
to  afforce  the  alFife  ;  that  is,  others,  according  to  the  num- 
ber of  dilTentlng  voices,  were  added  to  the  major  part  of  the 
afFife ;  and  if  they  happened  to  agree,  their  verdi£):  was  held 
good;  and  the  diifenting  jurors  were  to  be  amerced  qiiaft 
pro  trcwfgrejjtoncy  fays  Bra6lon,  as  guilty  of  a  fort  of  offence, 
in  obftinately  maintaining  a  diiference  of  opinion. 

When  the  verdi6l  was  given,  judgment  was  delivered 
according  to  it ;  unlefs  the  jurors  fliould  have  exprefled 
themfelves  obfcurely,  and  the  juftices  were  difpofed  to  exa- 
mine further  into  the  matter :  and  fhould  the  jurors,  or  thofe 
who  were  added  by  afforcement,  dill  be  unable  to  declare 
plainly  and  fully  what  their  meaning  was,  the  method  was 
either  to  get  the  parties  to  agree  the  matter, or  the  judgment 
was  adjourned  Into  the  great  court,  where  it  was  finally  to  be 
determined.     Another  way  of  putting  a  point  of  doubt  and 

k  Biail.  1S4,  b.  18s. 

obfcurlty 


ENGLISH      LAW. 


331 


obfcurity  into  a  courfe  of  examination,  was  by  certificaUy    CHAP.  vi. 
the  nature  of  which  will  be  explained  hereafter.     When    T^'^^Z^T^T^, 

.  .    .  HIiNRY   111, 

the  aflife  failed  to  give  a  plain  and  intelligible  verdi£t,  it 
was  the  office  of  the  juftices  to  endeavour  to  elucidate  it 
by  interrogation  and  difculTion.    If  the  jurors  were  entirely 
ignorant  of  the  matter,  then,  as  in  the  former  cafe,  others 
were  to  be  atkled  who  knew  the  truth ;  and  if,  after  that, 
the  truth  could  not  be  got  at,  they  were  to  give  their  ver- 
dict upon  the  bell  of  their  belief,  according  to  their  con- 
fcicnces'.     Though  it  was  commonly  faid,  that  truth  was 
the  province  of  the  juror,  and  juftice  and  judgment  that  of 
the  judge ;   it  feems,  fays  Bracton,  that  judgment  belongs 
to  the  jurors,  inafmuch  as  they  are  to  fay  upon  their  oath, 
whether  one  man  difleifed  another.     But  yet,  as  the  judge 
is  to  give  a  jufl  judgment,  it  becomes  him  diligently  to 
weigh  and  examine  what  is  faid  by  the  jurors,  to  fee  whe- 
ther it  contains  any  trath,  that  he  may  not  himfelf  be  mif- 
led  by  their  miftakes^. 

If   judgment  was  given  for  the  complainant,  the  land 
was  to  be  reflored,  with  all  Its  produce,  received  and  to  be 
received,  from  the  difleifm  to  the  time  of  the  judgment  j  and, 
as  the  flierifFwas  commanded  to  keep  the  land  in  peace  till 
the  aflife  was  taken,  the  difleifee  was  to  recover  damages 
for  any  unjuft  abufe  or  mifufe  of  the  land  in  that  interval. 
The  dilTeifor  was  to  fuffer  certain  penalties.     He  was  to 
be  /'//  mift'rtcordia  regis,  in  proportion  to  the  nature  of  the 
difleifin  ;  as,  whether  it  was  cum  arjuis  or  without,  fo  as 
the  mifericordia  was  never  Icfs  than  the  damages :  befidcs 
this,  he  fuffered  a  penalty  for  the  peace,  if  it  had  been  vio- 
lated.    Again,  if  he  had  committed  rcbbery  with  the  dif- 
feifin,  he  fuflercd  a  triple  penalty  ;  for  the  difleifni,   the 
rn'iftncord'ia  ;   for  the  peace,   imprifonment ;   and  for  the 
robbery,  as  it  is  termed  by  Braclon,  a  heavy  redemption  : 
he  did  not,  however,  lofe  life  or  limb,  as  the  robbery  wa« 

»  Biaft.  185.  b.  186.  b.  *"  Ibid.  186.  b. 

not 


332  HISTORYOFTHE 

CHAP.  VI.  not  profccnted  criminally.  The  difleifor,  if  he  was  the 
HENRY  III  principal  in  the  fad,  was  alfo  to  give  to  the  fherifP,  on 
account  of  his  difleifin,  an  ox  and  five  (hillings ;  but  thofc 
who  were  only  in  aid,  force,  or  counfel,  did  not,  in  gene- 
ral, pay  this  mulfb  to  the  fherifF,  though  in  fome  counties 
they  did.  The  difleifor  was  alfo  to  render  damages,  to  be 
eflimated  by  the  oath  of  the  jurors,  and  further,  if  need 
were,  or  the  jurors  had  been  excefTive,  to  be  taxed  by  the 
juftices.  But  the  juftices  were  not  to  eftimatc  the  damages 
at  a  larger  fum  than  the  jurors  had,  unlefs  it  was  a  very  clear 
cafe,  that  the  jurors  had  taxed  them  much  lower  than  was 
reafonable  or  proper ". 

This  liberty  of  incrcafmg  the  damages  was  allowed  to 
the  judges,  in  order  that  difleifins  might  never  efcape  the 
proper  punifliment  of  the  law  ;  for,  in  thofe  times  of  dif- 
order  and  oppreflion,  there  were  many  great  men  who 
would  commit  difleifins  for  the  mere  purpofe  of  making 
the  mod  of  the  fruits  and  profits  during  the  time  they 
could  keep  their  unlawful  pofl^eflion  :  and  when  they  had 
raifed  great  fums  thereby,  they  could  generally  efcape  with 
a  fmall  mifericordln,  through  the  ill-placed  lenity  of  jurors; 
who,  when  they,  by  their  verdict,  took  from  a  difl'eifor  the 
land,  were  unwilling  to  load  him  befides  with  heavy  dama- 
ges. For  thefe  reafons,  it  was  expelled  that  the  jufl:ice$ 
lliould  examine  very  carefully  into  the  change  that  had  been 
made  on  the  land  fince  the  difleifin,  either  through  the 
wilfulnefs  or  negle61:  of  the  difleifor,  or  any  otherwife;  all 
which  he  was  to  be  compelled  to  make  good,  notwith- 
ftanding  much  of  the  damage  might  have  happened  by 
death  of  cattle  and  other  accidents,  which  it  was  out  of  his 
power  to  govern  :  nor  was  any  allowance  to  be  made  to  a 
wrong-doer  for  improvements  ". 
Exception?  to  Tkis  was  the  manner   of   proceeding,  when  nothing 

chc  affile,  ,.   .  ,  .      n       1  ^  r  ^'  1  1-1. 

was  faid  agamft  the  aflife,  nor  any  exception  taken  why  it 

•  Brafit.  i86.  b.  187.  •  Ibid.  187. 

ought 


ENGLISH      LAW. 

ought  to  remain^  as  it  was  called  ;  but  if  the  tenant  did 
not  chufe  to  put  himfelf  upon  the  aflife,  he  might  except^ 
or  plead  fuch  matter  as  would  caufe  it  to  reviawy  that  is,  de- 
fer it  for  the  prefent,  or  perhaps  entirely  deftroy  it.  Thefc 
exceptions  were,  to  the  writ,  to  the  perfon  of  the  com- 
plainant or  tenant,  and  to  the  alTife.  Some  exceptions  to  the 
writ  deferred  the  alTife,  butdid  not  deftroy  it:  fome  exceptions 
to  the  perfon  of  the  complainant  entirely  deftroyed  the  aflife : 
fome  exceptions  were  peremptory  as  to  one  perfon,  and  de- 
ferred the  judgment,  but  were  not  peremptory  as  to  another; 
as  where  the  complainant  was  not  entitled  to  the  a6lion,  but 
fome  one  elfe.  The  order  of  ftating  exceptions  was  this  : 
if  the  writ  was  not  good,  there  could  be  no  further  pro- 
ceeding ;  but  if  that  was  good,  then  they  reforted  to  the 
perfon  of  the  complainant,  to  fee  whether  he  was  entitled 
to  the  complaint ;  then  to  the  perfon  of  the  tenant,  to  fee  if 
he  was  the  perfon  againft  whom  the  complaint  fliould  be 
made  \  and  laft  of  all  to  the  aflife,  to  try  fi  tenens  injujU  et 
fine  judicio  dijfeifiverit  ipjutn  querentem  de  I'lhero  teemmto 
Clio  in  fuch  a  vill,  after  fuch  a  period  of  time  p. 

Thus,  after  the  jurifdi£lion  of  the  court  waseftabliflied, 
the  tenant  was  to  take  his  exceptions  to  the  writ.  Ex- 
ceptions to  the  writ  were  many  ;  if  there  was  any  thing 
faulty  therein ;  a  fpurious  feal  ;  a  rafure  in  a  fufpicious 
part,  as  where  the  names  of  the  perfons,  or  places,  or 
things,  M^re  written  (for  a  rafure  in  the  legal  part  was 
not  fo  important  as  in  thefe  points  of  fa61:);  if  the  date  was 
at  all  changed;  if  the  complainant  had  had  a  former  writ 
of  mortaunceftor,  of  entry,  or  of  right,  and  fo  had  not 
obferved  the  order  of  writs.  Again,  any  error  deftroyed 
a  writ,  though  it  did  not  deftroy  the  aflife.  It  was  error, 
if  the  writ  was  againft  one  who  was  poflefied  nomine  alieno^ 
as  Tifirmarius.  The  aflife  could  not  proceed  if  there  was 
an  error  in  the  name,  as  Heuricus  for  IVilhelmus  ;  and 
fo  in  the   cognomen,   as  Hubertus  Roherti  for  Huhcrius 

P  Braa.  187.  b. 

V/alter'i ; 


334  HISTORY      OF      THE 

CHAP.  Vf.  Jfalteri ;  fo  in  the  name  of  a  viil  whence  a  pcrfon  took  his 
HENRY  ]U  defcrlption,  as  London  for  Wincheller  :  even  If  the  error 
was  In  a  fy liable,  as  Henry  de  Brocheton^  for  Henry  de  Brae- 
ton  ;  nay,  even  in  a  letter,  as  de  BraBhoUy  for  de  BraBon  : 
again,  in  a  name  of  dignity,  as  Henry  de  Bracfon  prcccentor, 
when  he  was  decanus ;  fo  of  a  thing,  as  v'lneam  for 
ecclejtam  ^. 

Then  followed  exceptions  to  the  perfon  of  the  com- 
plainant; once  of  which  was  villenage,  and  its  confequences; 
excommunication  ;  that  he  had  not  a  freehold  ;  that  he 
ftiould  diftrain  inftead  of  bringing  this  writ ;  and  many 
others.  The  tenant  might  next  except  to  his  own  perfon , 
as  for  inftance,  that  the  adion  Ihould  have  been  agalnft 
his  anceftor  or  predecefTor,  and  not  againll  him  ^  And 
laft  of  all,  having  gone  through  exceptions  to  the  writ  and 
to  the  perfon,  he  might  except  to  the  aflife,  upon  the  cir- 
cumftances  of  the  cafe,  by  difputing  how  far  the  operative 
words  of  the  writ  were  juliified  in  facl ;  how  far  he  injuj}'^ 
et  Jine  judicio — dijfeifivit  eiim — de  I'lhero  tenemento  fuc — in 
tali  villa  ;  every  term  of  which  charge  was  open  to  a  vari- 
ety of  remarks  and  objections  *. 

All  thefe  exceptions,  whether  they  were  peremptory 
or  dilatory,  were  equally  out  cfthe  affife  (which  was  m.ercly 
to  try  the  difleifin),  and  collateral  to  it ;  and  therefore 
could  not  be  determined  by  the  recognitors  of  afTife.  We 
have  feen,  that  in  Ghnville's  time '  fuch  incidental  matters 
were  in  general  tried  by  duel,  there  being  very  few  IfTues 
which  are  fald  by  that  author  to  have  been  ufually  tried  by 
recognition  j  of  which  one  was,  infra  atatem  vcl  non  j 
another  was,  whether  feifed  tit  de  vadio,  or  ut  de  fcedo,  and 
fome  others;  as  that  of  villenage,  which  was  to  be  tried 
by  the  relations,  and  if  they  could  not  agree,  by  the  vici- 
nage ;   the  gift  of  a  fee,  after  a  grant  of  the  advowfon  ", 

"  Bra£l.  188,  189.  t  Vlfl.  ant.  146. 

■  Ibid,  from  190  to  304.  u  Glanv.  lib.  13.  c.  zo. 

*  Ibid,  fiom  204  to  m.  b. 

and 


ENGLISH      LAW. 

and  others  that  may  be  feen  in  that  reign ;  but,  in  general, 
points  in  debate  that  did  not  make  the  diredl  queftion  of 
feifm,  were  tried  by  the  duel.  Since  that  time,  the  good 
fenfe  of  mankind  concurring  with  the  flatute  made  by 
Henry  IL  concerning  trials  by  recognitors,  had  fo  far 
prevailed  over  the  habits  of  their  anceflors,  that  fuitors 
ufcd  commonly,  when  a  fa£l  was  in  litigation  between 
them  in  a  caufe,  to  confent  that  the  truth  thereof  Jhould  be 
enquired  of  by  a  JURATA,  or  jury^  in  preference  to  a 
trial  by  duel ;  and  they  accordingly  ufed  to  pray  the  court 
that  it  might  be  fo  ;  with  which  prayer  courts  had  been 
fo  long  ufed  to  comply,  that  a  jury  had  become  the  regular 
mode  of  trying  a  fact  in  difpute  in  a  judicial  proceeding. 
Thus  there  had  gradually  arifen  a  new  fort  of  trial  by 
recognitors  or  jurors,  denominated  a  jurota  ;  which  was 
a  tribunal  chofen  b}  confent  of  the  parties  themfelves,  and, 
on  that  account,  differed  fomewhat  in  its  conflitution, 
defign,  and  effe£l:,  from  the  aj/ifr. 

To  mention  only  one  mark  of  their  difference,  and  leave 
the  reft  to  be  obferved  as  occafion  prefents  them :  the 
jurors  in  -^jurata  were  not  liable  to  convi£i;ion  for  perjury, 
nor  to  the  infamous  judgment  as  the  jurors  in  the  afffa 
were  ;  the  reafon  for  which,  according  to  Bra^lon,  was, 
becaufe  the  jurata  was  a  trial  which  the  parties  had  them- 
felves prayed  to  have,  and  therefore  they  had  no  reafon  to 
complain  of  its  determination  j  while  the  afTife  (to  follow 
his  idea)  was  a  fpecific  remedy  in  a  fpecial  cafe,  to  which 
and  which  only  the  parties  were  by  .the  law  confined  for 
obtaining  redrefs ;  and  if  the  ends  of  juftice  were  difan- 
pointed  by  thofe  recognitors  who  were  ^iefigned  by  the 
conftitution  to  further  it,  they  deferved  a  very  fevere  ani- 
madverfion.  But,  with  fubmifTion,  the  reafon  of  the  con- 
viction being  allowed  in  one  cafe,  and  not  in  the  other, 
was  not,  it  fliould  feem,  owing  to  any  particuhir  ditTerence 
in  thefe  two  trials,  as  pra£lifed  in  the  time  of  Henry  III.  but 
becaufe  the  Conftitution  of  Henry  II.  had  provided  that 

puniftiment 


335 


33^ 


CHAP.  VI. 


HENRY    III. 


^JJifa  "jertitur 
in   juratam. 


HISTORY     OF     THE 

punifiiment  for  recognitors  in  the  particular  aj/ifes  only, 
which  were  then  invented.  The  devolving  of  queftiong 
upon  recognitors  to  be  tried  by  the  confent  of  parties,  was 
a  pradice  that  originated  afterwards,  and  therefore  was  not 
within  that  provifion :  nothing  can  be  a  ftronger  mark  of 
this  trial  not  owing  its  exiilence  to  that  fanious  law  of 
Henry  11.  than  the  appellation  of  Jurata. 

The  difference  between  qffi/a  and  jurata  was  a  very 
common  piece  of  learning  in  this  reign.  This  diftin£lion  was 
always  obferved,  and  was  never  more  nicely  attended  to, 
than  when  it  happened,  as  it  fometimes  did,  for  an  ajfifa 
to  be  called  upon  to  difcharge   the  office   of  a  jurata  j 
and,  inftead  of  deciding  the  direft  point  in  the  a6lion,  to 
enquire  of  fome  collateral  matter.      For  when  any  iffuc 
arofe  upon  a  fa£l  in  a  writ  of  novel  difleifin,  mortaunceflor, 
and  the  like  a6lions,  which  fa6l  the  pLirties  agreed  fliould 
be  enquired  of  by  a  jurata  y  nothing  was  more  natural, 
nor  indeed  more  commodious,  than,   indead  of  fummon- 
ing  other  recognitors,  as  in  Glanville's  time  ^^  that  the 
ajjtfa  fummoned  in  that  action  fhould  be  the  jurors  to 
whom  they  might  refer  the  enquiry.     This  was  generally 
the  cafe ;  and  then  the  lawyers  faid,  cadit  ajftjay  et  vertitur 
in  juratam  I  the   affife  was  turned  into  a  jury,   and  the 
point  in  difpute  was  determined  by  the  recognitors,  not  in 
modum  ajpf£y  but  in  modum  jurats. 

Thus,  then,  the  exceptions  mentioned  above  would 
in  this  reign,  as  they  were  out  of  the  aflife,  be  determined, 
not  in  modum  ojjif^y  but  /';/  modum  juratii ;  as  it  were, 
favs  Bra6lon,  by  confent  of  the  parties ;  where  one  al- 
ledged  one  thing,  and  the  other  the  contrary,  and  each 
prayed  that  the  truth  of  what  he  faid  might  be  enquired 
of.  And  in  this  cafe,  fays  he,  there  is  no  conviclion  j 
for  if  the  other  party  would  controvert  the  faying  of  the 
jurors,  the  law  gave  him  full  liberty  to  fay  that  the  proof 


*  Glan.  lib.  13.  c.  zo. 


ivas 


E  N  G  L  I  S  H     L  A  W.  337 

wasfalfe  ;  the  verdi£^  of  the  jurors  in  this  cafe  behig  only    CHAP.   vr. 
^  proof  of  the  exception;  every  one  being  to  prove  the  truth    henry  III 
of  his  exception,   and  the  perfon  who  replied  to  it  being 
alfo  bound  to  prove  his  replication,  in  which  recourfe  was 
had  to  the  jurors,  merely  for  want  of  other  proof. 

This  will  be  made  clearer  by  giving  an  inftance.  Sup- 
pofe  the  complainant  ftated  his  cafe  by  faying,  that  he  mar- 
ried a  wife  having  an  inheritance,  and  after  her  death  he 
was  in  feifin  till  fuch  a  one  unjuftly  diffeifed  him,  and  fo 
was  in  feifin  per  legem  Anglia^  for  he  and  his  wife  had 
children  between  them.  If  the  tenant  did  not,  in  anfwer 
to  this,  deny  the  dilTeifin,  and  put  himfelf  on  the  afTife,  to 
try  whether  he  difleifed  him  or  not ;  he  might  deny  fome 
of  the  circumftances  which  the  complainant  had  ftated  as 
making  his  title  :  he  might  except  that  they  had  no  child; 
or  if  they  had,  that  it  died  in  the  womb ;  or  if  it  was  born, 
that  it  was  a  moniler,  and  not  a  child  -,  or  if  it  was  a  child 
and  born  alive,  that  it  was  not  heard  to  cry  between  four 
walls :  when  the  complainant  to  fuch  a  plea  replied  the  con- 
trary, the  truth  of  the  allegation  w-as  then  to  be  enquired 
of  by  the  aflife  in  modum  juratiX,  In  the  former  cafe,  of 
the  general  iflue  dijfaftvit  vel  non,  the  jurors,  if  they  fwore 
falfely,  would  be  liable  to  conviction ;  in  the  latter,  they 
would  not  >'. 

The  inftances  in  which  an  aflife  might  be  turned  into 
a  jury,  vt^ere  as  numerous  as  the  exceptions  that  might  be 
taken  to  the  complaint.  We  Oiall  content  ourfelves  with 
adding  one  more  example  to  thofe  already  given ;  and 
this,  being  a  very  particular  one,  deferves  our  notice. 
An  aflife  was  fometimes  turned  into  a  jury  propter  tranf- 
gre£ionemy  on  account  of  a  trefpafs  :  as  where  a  perfon 
made  ufe  of  another*s  land  againft  the  owner's  will;  or 
where  he  ufed,  as  his  own,  the  land  of  a  perfon  holding  iu 

>  Brail.  115.  b.  ii6. 

Vol.  I.  A  a  common 


33*  H  I  S  T  O  R  Y    O  F    T  H  E 

CHAP.  vf.  common  with  him;  thefe  might  be  difleifins  and  trefpafles 
HENRY  III.  ^°^^  »  ^^^  every  difleifm  was  a  trefpafs,  though  not  every 
trefpafs  a  difleifm.  If  then  the  entry  upon  the  ftranger's 
land  was  without  any  claim  of  right,  it  was  not  a  difTeifin, 
but  a  trefpafs.  But  as  it  was  uncertain  quo  ammo  this  was 
done;  the  complainant  ufed  generally,  in  fuch  cafe,  to  bring 
an  aflife  as  for  a  diffeifni,  and  then  the  judge  was  to  exa- 
mine whether  it  was  done  with  a  claim  of  right :  fo  that, 
if  it  fhould  turn  out  that  he  made  the  entry  through  a  pro- 
bable error  and  ignorance,  and  under  fuch  miftake  cut 
down  trees,  or  the  like,  and  did  not  do  it  in  the  name  of 
feifin,  he  was  cleared  of  the  imputation  of  a  diffeifm,  and 
it  was  confidered  rather  as  a  trefpafs ;  for  which,  if  he  ac- 
■   ■  knowledged  the  fad):,  he  was  to  make  amends  \  if  he  de- 

nied it,  the  affife  was  turned  into  a  jury  to  enquire  of  the 
trefpafs  ^. 

An  aflTife  was  fometimes  turned  into  ?i\\!C['^ propter  tranf- 
grejjionem  dijlnclionis,  on  account  of  a  trefpafs  committed 
in  diftraining  ;  for  a  diflrefs  fometimes  amounted  to  a  dif- 
feifm, fometimes  was  only  a  trefpafs  ;  and  was  accordingly 
determined,  in  the  former  cafe  ///  modum  ojjifie,  in  the  lat- 
ter in  modum  jurata.  When  an  aflife,  therefore,  was 
brought  upon  an  injury  fulFered  by  a  difl:refs,  if  it  could  not 
be  maintained  as  an  aflife  to  determine  the  difieifin,  it  might 
be  maintained  as  a  jury  ta  determine  the  trefpafs  *. 

From  what  is  here  faid,  and  the  little  mention  there  is 
in  Bradlon  about  any  original  fpecific  proceeding  in  cafe  of 
trefpafs,  it  fhould  feem,  that  though  there  might  be  a  writ 
of  trefpafs,  it  was  rarely  brought  for  entries  upon  land  \ 
but  the  ufual  way  of  confidering  fuch  matters  was  in  an 
aflife,  where  the  complainant  was  fure  of  inflicting  fome 
penalty  on  the  wrong-doer,  either  as  a  diflelfor  or  a  tref- 
paflbr.  It  fhould  feem  that  the  writ  of  trefpafs  was  a 
late  invention  not  wholly  approved  by  Bradlon ;  for  it  is 

'  BraQ.  2j6.  b.  »  Ibi(!.  117. 

faid 


E  N  G  L  I  S  H      L  A  W.  339 

faid  in  another  part  of  this  author's  work,   that  the  writ,    CHAP.  vi. 
quare  vi  et  armis  a  perfon  entered  land,  would  be  bad,  he-    henry  III. 
caufe  it  would  be  making  a  queftion  of  the  mode  of  the  tref- 
pafs,  when  it  fliould  be  for  the  trefpafs  fimply. 

To  return  to  the  aflife  of  novel  diiTeifih  ;  This  afTife,  ac- 
cording to  Bra6lon,  had  three  confiderations :  it  was  pcr- 
fonal,  propter  faElum ;  penal,  propter  injiiriairii  and  third- 
ly, it  was  for  reflitution  of  the  thing  taken.     xA.s  far  as  its 
obje6l  was  penal  (^.nd  poena  fieos  tenere  debet  a  u  tores  J  ^  it  did 
not  lie  for  the  heir  of  the  diiTeifee,  nor  againll;  the  heir  of 
the  diOeifor,  if  he  died  in  the  life  of  the  diffeifee ;  for  the 
penalty  was  extinguifhed  with  the  perfon,  and  the  heir  was 
not  to  be  puniOied  for  the  offence  of  his  anceftor  :  nor, 
in  like  manner,   would  an   aclion  lie  for  the  heir  of  the 
diffeifee  ;  for  as  between  him  and  the  diffeifor  there  was  no 
obligation   quoad poenaniy  though  there  was  quoad  rejl'itu- 
tiouem ;    but  his  remedy  was  by  a  writ  de  ingrejfuy  fmce 
called  a  ivrit  of  entry.     As  to  this  writ  of  entry,  and  when 
it  lay  in  the  nature  of  an  affife*of  novel  diffeifin,  for  an  heir 
to  recover  poffeffion,  it  was  to  be  feen  whether  the  anceftor 
had  been  properly  diligent  in  procuring  and  profecuting  his 
fuit  fo  as  to  have  got  a  view,  and  the  jurors  fworn;  for  then, 
by  fo  doing,  the  affife  of  novel  diffeifin,  in  cafe  of  his  death, 
was  faid  to  be  perpetuated ;  that  is,  the  right  of  a6lion  for 
the  diffeifin,  fo  far  as  concerned  the  reflitution,  continued 
to  the  heir  of  the  diffeifee  againfl  the  diffeifor  and  his  heirs. 
Some  were  of  opinion,  that,  in  this  cafe,  the  a£tion  would 
hold  quoad poenam  likewife  againfl  the  diff;;ifor  j  and  though 
the  affife  was  not  profecuted  fo  far  as  the  view,  and  eled:- 
m    ing  the  jurors,  yet  if  as  much  diligence  as^poffible  had  been 
ufed,  though  no  a6lion  was  commenced,  the  writ  of  entry 
was  neverthelefs  continued  to  the  heir  of  the  diffeifee  quoad 
reJlUut'ionem  ^. 

The  form  of  the  writ  of  entry,  when  brought  after  an 

»»  Brad^.  218.  b. 

A  a  2  affife. 


34^ 


HISTORY     OF     THE 


CHAP.   VI.    afiife,  was  as  follows :  Pracipe  A.  quhd  juJTe^  ^c.  reddat  B, 
HENRY  III      ^^^^^^  terra  cum  pertinentiis  in  vil/dy  iffc,  in  quam  non  ha- 
bet  ingrejjum  ntfi  per  C.  patrem  ipftus  A,  cujus  hares  ipfe 
ej}^  qui  pradi^um  B.  inde  injujle  et  fine  judicio  dtjfeijivity 
et  poJ}quam,  iffc.  et  tinde  ajfifa  nova  dijfeiftna  fummonita  fuit 
coram  jujl it: aril s  nojiris  ad  primam^  i^e.  et  vifus  terra  cap- 
tuSf    et   %t'manftt  ajftfa  capiendo^  to  quod  pradi^us  C,  obiit 
ante  captimem  illius  ajjija  (or,  antequam  jujlittarii  nojlri  in 
partes  illas  *venerint),     Et  niji  fecerit^   ^C.     Thefe  writs 
of  entry  grounded  upon  a  difleifm,  varied  according  to 
the  circumftances  which  had  happened  fmcc  the  difleifm. 
One  was,  in  quam  ingrejfum  non  halet  nifi  per  C.  filium  et 
haredem  D,    qui  terram  illam  ei  dtmijit  pojiquam  idem  D. 
injure  et  fine  judicio  dijfeiftverit  ipfum  B.   ^'r.      Another 
was,  in  quam  non  habtt  ingrejfum^  nifi  per  talem^  qui  injujie 
et  fine  judicio  diffeiftvit  talem  pojiquam  idem  talis  dijfeifiverat 
querentem '. 

In  this  writ  the  heir  of  the  difl^ifor  might  have  almofl:  all 
the  anfwers  and  defences  which  the  difleifor  himfelf,  if  he 
had  lived,  might  have  had  againfl  the  aflife  of  novel  dif- 
feifin ;  inafmuch  as  this  writ  was  in  the  nature  of  an  afTife 
of  novel  difleifm  in  all  refpedls  that  regarded  reftitution, 
though  not  quoad  pcenam  \  and  all  fuch  matters  would  be 
determined  by  a  jury.  Bra(^on  fays  exprefly,  that  no  cor- 
poral pain  was  to  be  inflidled  by  this  a6lion,  on  account  of 
the  diflTeifin  of  the  anceftor ;  nor  damages  \  nor  was  the 
cuftomary  ox  to  be  given  to  the  ftieriff^  • ;  but  only  the  mi" 
Jericordia  was  to  be  paid  for  the  unjufl  detention  ^. 

This  writ  of  entry  grounded  upon  a  difleifm,  like  other 
writs  of  entry,  was  an  invention  fmce  the  time  of  Glan- 
ville,  and  was  the  refult  of  that  refinement  which  had 
pervaded  all  parts  of  the  law  relating  tofeifin  and  property. 

*  Bra<f^.  119.  for  every  diffeifin  proved. 

^  It  feem*  that  there  was  a  cuftcm  •  )&rz&.  xxo, 

for    the    fherifF   to    dtmacd    an    ox 

The 


ENGLISH      LAW. 


341 


Tlie  earlieft  mention  of  thefe  writs  is  in  the  third  year  of  chap.  vr. 
this  king;  when  they  are  fpoken  of  as  in  common  ufe,  and  hlnry  til 
therefore  It  is  probable  that  they  were  introduced  not  long 
after  Glanvllle's  time  ^  We  fhall  have  occafion  to  treat 
more  particularly  of  thefe  new  writs  in  their  proper  place. 
The  writ  which  next  prefents  itfeif  is  another  remedy  con- 
<:erning  pofTeflion,  which  alfo  had  been  contrived  fince 
Glanvllle's  time,  and  has  fince  been  called  the  writ  of 
^lare  ejecii  infra  termhmm. 

Such  v/ere  the  notions  concerning  land,  that  while  one  ^"^'''  n"^^**"- 
perlon  had  a  freehold  ni  a  tenement,  another  might,  fays 
Bra£lon,  have  at  the  fame  time  the  ufufruft,  the  ufe,  and 
the  habitation  5.  As  we  have  been  {hewing  how  a  man 
was  to  be  reftored  to  his  freehold  if  he  was  ejeded,  we  fliall 
now  fee  what  was  to  be  done,  if  a  perfon  was  eje6led  before 
the  expiration  of  his  term  in  the  ufufru£l,  ufe  or  habita- 
tion of  a  tenement  which  he  held  for  term  of  years.  Such 
perfons,  when  eje6led  within  their  term,  ufed  fometimes 
to  bring  a  ivrit  of  covenatii ;  but  as  that  only  lay  between 
the  perfon  taking  and  perfon  letting,  (who  alone  were  par- 
ties to  be  bound  by  the  covenant)  and  the  matter  could  not 
be  determined,  if  at  all,  but  with  great  difficulty  in  that 
way  •,  provifion  was  made,  fays  Braf^on,  by  the  wifdom  of 
the  court  and  council  ^  for  a  farmer  againft  all  perfons 
whatfoever  who  ejeded  him,  by  the  following  writ :  Pra- 
cipe  A,  quod  jufie  et  fine  diiattone  reddat  B.  tantum  terrtc 
cum  pertinentils  in  vi/Ia,  iffc.  qunm  idem  A.  qui  dimifit^  i^i, 
or  thus  :  Si  talis  fecerit  te  fecurum^  6"V.  oflenfurus  quart 
deforceat^  ^c.  tantum  terrct  cum  pertmentiis  in  villa^  ^V. 
quod  talis  dimifit  ipjiy  i^c.  ad  tcrminum  ^ii  nondum  prateriity 
I'fra  quern  tcrminum  pradiSfus,   isfc,    illud  ver.didity  ts'c^ 

*  Bra£>.  aip.  on  to  each  other,  as  they  are  placed 

t  Thefe  terms  ufusfru^^ui^  ufus  and  in   he:e.     Infl.  lih.  %.  Tit.  4.  5. 

hahi'.atioy  are  borrowed  from  the  civl  ^  Dc  CfrciUo  curia  prci'tfurr:. 

la-^, and  ihi'reOand  in  as  acar  a  relnil- 


occafti 


'lone 


HISTORY      OF      THE 

ocafione  cujus  venditioni s  Ipfe,  &c,  po/i!nodu?n^  isfc.  de  pra- 
didiu  terra  ejait,  ut  dicit ;  et  habeas  ibi^  ^c.  or.  Si  A. 
fccerit  te  fecurum^  i:^c.  tunc  fuinmone  B.  quod /it  cora?n^  isfc. 
ad  refpoyidendu?n  eide?n  A.  quare  injujle  ejecit  eum  de  tanto 
terra^  ^c.  quam  C.  ei  dimijit  ud  tenninum  qjii  nondufn  pne- 
teriity  infra  quern  terminu?n^  ^:. 

If  this  writ  lay  againft  a  ftranger  propter  veiiditiouewy 
much  more  ought  it  to  lie  agalnft  the  peribn  himfelf  who 
demifed  the  land,  if  he  ejected  his  own  farmer.  In  fuch 
cafe  the  writ  was,  quam  C.  de  N,  ei  dijnifit  ad  termimtm 
qui  nondum  prateriity  infra  quern  tcrminum  praditlus  C.  de ' 
eadem  firma  fud  injujfe  ejecit ^  ut  dicit  ;  et  nifi  fecerity  l^c. 
and  this  was,  Vv'Ith  little  variation,  the  more  common  form 
in  cafe  of  eje(Slment  by  a  ftranger.  Thefe  writs  were 
drawn  in  two  ways,  both  of  which  we  have  noticed  in  the 
above  inftances  *,  the  one  of  2.  praci^e-y  the  other  two  of  a 
ft  te  fecerit  fccurum.  The  precipe  was  thought  the  beft 
and  moft  compendious  proceeding,  on  account  of  the  pro- 
cefs  of  caption  of  the  land  into  the  king's  hands,  which  lay 
upon  that  writ ;  and  the  avoiding  the  tedioufnefs  and  de- 
lay of  attachments,  which  was  the  procefs  upon  the  writ 
of  fi  te  fecerit  fecuruniy  ^c.  though  we  {hall  fee,  in  after- 
times,  that  the  latter  became  the  moft  common  and  beft 
knov/n  of  the  two,  being  that  which,  from  the  words  of  it> 
was  called  a  quare  ejecit  infra  terminum  *. 
Afljfeofcom-  Thus  wc  have  gone  through  the  remedies  which  the 

^'^^'  law  had  provided  where  an  injury  was  done  to  a  man's 

feifm  of  a  freehold.  It  follows  next  in  order,  to  fpeak  of 
injuries  done  to  a  feifm  of  things  appurtenant  to  a  free- 
hold, fuch  as  common  of  pafture,  and  the  like.  We 
have  feen,  that  in  Glanville's  time  there  was  an  aflife  of 
common  of  pafture,  by  which  the  complainant  might 
recover  his  feifin  of  a  common,  the  fame  as  feifm  of  his 

land  \ 


E  N   G  L  I   S  H       L   A  W.  343 

land  ;  and  that  there  was  a  writ  directing  an  admeafurcment  CHAP.  v[. 
of  paftureto  be  made, where  anyone  had  furcharged  the  land,  henry  III. 
The  forms  of  thefe  two  writs  were  the  fame  now  as  in  his 
time  ^.  The  writ  of  admeafurement  was  executed  by  the 
fherifF,  who  was  to  go  in  perfon  to  the  place  where  the 
common  lay,  and  caufe  the  hundredors  and  all  who  were 
intereRed  in  the  admeafurement  to  meet ;  and  there,  in 
prefence  of  the  parties  to  the  writ,  if  they  obeyed  the  fum- 
mons  to  appear,  and  after  hearing  their  allegations,  he  was 
to  make  inquiry,  by  the  oaths  of  fuch  neighbours  by  whom 
the  truth  could  bcft  be  known,  and  by  the  infpe6lion  of 
charters  and  inftruments,  how  the  right  was;  and,  accord- 
ing to  that,  he  was  to  admeafure  and  allot  the  common  K 
This  was  the  writ  upon  which  admeafurements  were  ufu- 
ally  made.  But  where  a  perfon  overcharged  his  common 
beyond  what  his  anceftors  had  ever  claimed,  the  admea- 
furement ufed  to  be  made  by  a  writ,  invented  fince  Glan- 
ville's  time,  to  the  following  efFe£l :  Si  A.  fecerit^  ^c. 
iuncy  ^c.  qi{od  fit  coram  jujlitiariis  ad  pr'imam  ajfifamy 
ojlenfurus  qtmre  fnperonerat,  ^c.  al'iter  quam  C.  pater  rpfius 
B.  cujus  hi^res  ipfe  efl^  coufuevit :  upon  which  the  juftices 
were  to  proceed  as  the  ilierifF  in  the  former  inftance  did, 
and  a  fummary  inquifition  was  made  concerning  the  matter 
in  difnute  "*. 

Another  writ  had  been  Introduced,  called  a  writ  de 
quo  jure.  Where  a  perfon  had  recovered  feifm  of  a  com- 
mon )n  an  afTife,  grounding  his  title  upon  ufiige  and  fuf- 
ferance  merely ;  as  this  determined  only  the  feifm,  the 
chief  lord  might  bring  this  writ  to  make  the  tenant  fiiew 
QUO  JURE  exlgit  communlam pajlura^  ISc  dejicut  tile  nul- 
lum commiiniam  habety  isfc.  fiec  fervitium  ei  facit  quare, 
isfc-  habere  debeaty  ^c  ". 

The  writ  in  Glanville  to  the  flierifF,  conimanding  him, 
t\\7itpri£cipias  R.  quody   ^c.  permittat  habere  H.  a'lftamenta 


^  Vivi  snt.  190. 

Biaa 

.  214  and 

>    Ibif*.  229.           "   Ibid.  229.  b. 

Z29. 

/ 

"  Ibid.  229.  b.  230. 

344 


HISTORY      OF     THE 


CHAP.  VI.   fua^  l^c  0.  was  preferved,  with  fome  fmall  difference  m  the 


HENRY  11!. 


Of  nuilancf. 


form.  He  was  dire£ied,  xhd^t  jujiicies  R,  quod^  Uc.  fer- 
mittat  H,  habere  ratlonahile  ejioverium^  Uc.  as  the  cafe 
might  be,  of  M^ood,  turbary,  and  the  Hke  ^, 

As  a  nuifance,  being  an  injury  to  a  freehold,  was  con- 
fidered  in  the  nature  of  a  difleifm,  and  like  that  might  be 
redreffed  by  an  aflife  ;  fo  alfo,  like  that,  it  mighty  Jlngra/ite 
Jai^Of  be  removed  by  the  party  injured,  without  any  cere- 
mony of  appHcation  to  the  law  :  but  after  the  party  had  laid 
by,  he  had,  as  in  cafe  of  a  diffeifin,  no  redrefs  but  by 
writ  ^. 

There  is  no  mention  in  Glanville  of  any  other  writ  of 
nuifance  than  the  aflife.  We  find  now  feveral  writs  to  the 
(heriff  upon  quellions  of  nuifance.  One  of  thefe  was, 
J^ejius  ejl  nobis  talis ^  quod  talis  injujie  et  fine  judicio  leva- 
vit  quendam  murmn  (or  whatever  it  might  be)  ad  nocumen  • 
turn  liberi  tenemtnti  fui,  fef.  pojt  i\ditiim  nojlrum  de 
Brittannia  in  AngViam  ^  :  Et  idea  tibi  pr<£cil>imuSy  quod  lo- 
quelarn  illam  audias^  et  po/iea  eum  inde  ju/ie  deduci  facias ^ 
ne  amplius^  ^V.  In  the  fame  manner  writs  might  be 
formed,  quare,  ^c.  projlravit  injujie  ad  nocumentum  liberi 
tenemenii  ;  quare^  tffc.  viam  obftruxit^  &c,  quare  divertit 
curfum  aqucc,  i^c.  and  fo  on,  in  numberlefs  cafes  of  injury 
iind  nuifance  to  a  man's  freehold  *.  Thefe  lall  writs  autho- 
rized the  flieriff  to  hear  and  determine  the  matter;  and  fo 
were  to  all  intents  and  purpofes  writs  oi  jujliciesy  though 
that  word  was  introduced  only  in  the  following  :  Jujiicies^ 
<ffc,  qtiodj  Cfff.  permittat  H,  habere  quondam  vi  :m  in  terra 
fuay  i5\.  The  writ  of  affife  of  nuifance  did  not  differ  in 
form  from  thofe  in  Glanville,  except  in  the  return  now 

<»  Clanv.  lib.  12.0.14.     Vid.  ant.  e/lir.ya[cor.iam.   Vid.  ant.  264.   Vot- 

1^4.  withftanding  wh'-ch,  we  finH  Braf^on 

f  Bra£V.  231.                                .  dates  tbi.s  writ  with   a  different  I, mi- 

1   Ibid.  Z3I,  b.  tation.     It  is  not  cafy  to  account  for 

^  We  have   before   feen  that  by  this  want  of  agreement  between  our 

the  Stat.  Mert.  writs  of  novel  dif-  author  and  the  rtatutc.   Vid.  ant,  375. 

feilin  were    not  to  exceed  primatn  *  Brad.  233. 

irafJifretati'.r.im  dimini  regis  qui  nunc 

ufcd 


ENGLISH     LAW.  345 

ufed  ill  all  afllfes,  coram  jujlitiarih  nojlris  ad  proxlmam     C  H  A  P.  Vf. 
aJftfamK     The  proceedings  upon  this  writ  were  the  fame    ^p^j^j^Y  jn^ 
as  in  an  aflife  of  novel  dilTeifm  of  a  freehold.     So  much 
were  afTifes  of  common  and  of  nuifance  confidered  in  the 
fame  light  as  aflifes  of  freehold,  that  where  either  of  the 
parties  died  after  the  injury  done,  and  the  writ  was  to  be 
brought  bv  or  a^ainfl:  the  heir,  we  find  a  fort  of  writ  of 
entry  was  formed,  in  the  nature  of  thofe  we  before  men- 
tioned for  recovery  of  lands  :  Precipe  quod,   ^c.  reddj.t 
B.  communiam  pajiur^y    ^c.     Pracipe  quod,    ^e,  I'eUvari 
Faciat  et  reparari  quoddam  foffatum,   ISc      Precipe  quod 
perm'ittat  talem  relevare,  \^c "  •*  adapted,  in  the  words  of 
them,  to  the  nature  of  the  cafe,  without  any  mention  of  an 
entrv,  which  indeed  would  have  been  incoherent  and  ab- 
furd. 

A  NUISANCE  was  fo  much  in  the  nature  of,  and  ap- 
proached fo  near  to,  a  difleifin,  that  fometimes  it  might  be 
confidered  in  either  light ;  and  it  wis  difficult  to  fay  which 
it  properly  M^as.  Suppofe  a  perfon  caufed  water  to  over- 
flow y  if  it  rofe  upon  the  complainant*s  own  freehold, 
which  it  moft  probably  would  if  he  had  land  on  both  /ides, 
this  was  thought  rather  a  diffeifin  than  a  nuifance  ;  but  if 
it  rofe  only  on  the  freehold  of  the  wrong-doer,  and  from 
thence  incommoded  that  of  the  complainant,  it  was  then 
only  a  nuifance,  becaufe  the  fa6t  was  all  in  the  wrong- 
doer's land.  But  if  part  was  in  one,  and  part  in  the  other, 
and  the  water  run  over  both  grounds ;  then,  for  one  part, 
he  might  have  an  aflife  of  novel  difleifin  of  freehold  ;  for 
the  other,  an  aflife  of  nuifance ;  fo  that  here  would  be  two 
afllfes  on  account  of  the  fame  land  ;  iu^which  cafe,  of  the 
two  remedies,  if  one  was  to  be  chofen,  Brafton  advifcs 
the  aflife  of  nuifance,  as  the  moft  likely  to  remove  the  whole 
mifchief  for  the  aflife  0/  novel  difleifin,  as  it  was  confined 
to  the  freehold,  could  not  correal  the  nuifance  which  was 
upon  the  other's  land  *,  while  the  aflife  of  nuifance,  by  re- 


«  B.aa.  133.  b,  "  Ibid.  135.  b.  136. 


moving 


346  HISTORY      OFTHE 

CHAP.   VI.    moving  the  caufc,  efFe£led  both".     A  man  might  commit 


HENRY   III. 


a  diiTeifin  and  two  nuifances,  by  doing  one  fa£t  on  his  own 
ground.  If  he  eut  a  ditch  acrofs  a  road  which  led  to  a  paf- 
ture,  he,  at  once,  committed  a  difleifm  of  the  common  j 
caufed  alfo  one  nuifance  by  obftrucling  the  way,  and  ano- 
ther by  diverting  the  water  from  its  proper  channel  ^. 

Among  other  nuifances,  a  liberty  or  franchife  might  be 
a  nuifance  to  another  liberty  or  franchife  ;  as  where  the 
liberty  of  holding  a  market  was  granted,  fo  as  not  to  be- 
come a  nuifance  to  a  neighbouring  one.  Now,  a  market 
■was  faid  to  be  vicinum,  or  neighbouring,  if  it  was  fix  miles 
and  a  half  S  and  one-third  of  the  other  half  diftant  from 
another ;  which  diftance  was  computed  with  a  view  to  the 
following  confiderations  :  fuppofing  a  day's  journey  to  be 
twenty  miles,  and  the  day  was  divided  into  three  parts,  the 
firfl  part  would  fufhce  for  the  journey  thither  ;  the  fecond, 
for  buying  and  felling  ;  and  the  third,  for  returning  home 
in  reafonable  time  before  night.  A  market,  if  raifed 
within  this  diftance,  was  to  be  put  down  ;  yet  a  market  to 
be  held  two  or  three  days  after  another,  though  within  that 
diftance,  could  not  be  faid  to  be  injurious;  and,  accord- 
ingly, a  market  was  not  confidercd  as  a  nuifance  ^,  unlefs 
it  was  held  before  or  at  the  time  of  another. 

Before  we  take  leave  of  alhfes  of  novel  diflbifin,  it  will 
be  neceflary  to  remark  two  or  three  particulars  relating  to 
them  in  general.  If  a  difleifm  happened  infra  fummoniti- 
onem  jufitiariorum^  there  was  no  need  of  applying  to  the 
curia  regis  for  a  writ ;  but  the  itinerant  juftices  would  make 
one  themfelves,  in  this  form  :  Talis  de  tali  Igco^  et  focii  fui 
jufitiarii  itinerantes  in  tali  comitatu  tali  falutem.  ^eftus 
eft  nobisy  and  fo  on,  as  in  other  writs ;  only  inftead  of  the 
term  of  limitation,  thefe  words  were  inferted,  by  way  of 

"*■   Bra(5\.  234.  b.  le.ca   fignifics  a  mile.      Sptl.  voce 

y   VM,  Lcuca. 
'  Sex    lencte.       Spilman  fays,  that  *  Bra£l.  235. 

in   Domefday,    an^i    our    old    writers, 

giving 


347 


ENGLISH      LAW. 

giving  jurifdi£lion  to  the  court,  infra  fummonitionem  itine'    CHAP.   VI. 

We  have  i^t.\\  what  provifion  was  made  by  the  ftatute 
,  of  Merton  in  cafe  of  re-difleifin^  If  a  perfon  recovered 
feifin  by  judgment  of  the  juftices  itinerant,  and  was  put  in 
feifm  by  the  (lieriff,  and  was  afterwards  difleifed  by  the 
fame  dilTeifors  j  they,  being  convicled  thereof,  w^re  to  be 
taken  and  detained  in  gaol,  till  releafed  by  the  king  or 
otherwife  ;  and  for  the  purpofe  of  taking  the  offenders  there 
ilTued  the  following  writ  to  the  flieritf:  Monjlravit  ?iobis 
talis,  quod  cam  ipfe  recuperdjfet ;  mentioning  tlje  aflife, 
and  fo  on  ;  ipfe  talis,  ilfc.  iterum,  isfc.  diffeifivit  :  H  idea 
tibi  pra:ripimus,  quod  njfitmptis  tecum  cujiodihus  placitonnn 
corona  uojlra,  et  iz  tarn  militibus  qi/am  aliis  liberis  et  lega- 
libus  homitiibus,  l2fc.  diligentem  facias  inqufitionetHy  ^c, 
Et  tunc  ipfum  capias,  vS"  in  prifond  noflrd  falvo  cufodias, 
donee  aliud  inde  praceperimus,  et  inde  tali  feifnam  fuam 
rehabcre  facias,  ^c.  And,  in  like  manner,  in  all  cafes 
where  feifin  was  recovered  in  court,  whether  by  alTife, 
recognition,  jury,  judgment,  concord,  or  otherwife,  and 
the  recoverer  was  turned  out,  a  writ  of  monjlravit  to  this 
efFeft  might  be  had  '^. 

Next,  as  to  the  writ  of  execution  to  give  feifin  to  the 
complainant.  When  an  afTife  happened,  as  it  fometimes 
did,  to  be  taken  out  of  the  county,  and  the  perfon  who 
brought  the  alTife  complained  in  the  county  that  he  had  not 
yet  got  his  feifin,  there  ilTued  a  writ  to  the  following 
€fFe£i:  to  the  (hcriff:  Scias  quod  A.  i^c.  recovered  by  aflTife; 
et  ideo  pra:cipimus ,  quod  per  vifum  recogniiorum  ejufdem 
cjftfie,  ^c.  plenariam  feifnam  habere  facias,  ^c.  the  writ 
he'in^  ftill  varied,  according  as  the  difleifin  was  confefied, 
or  otherwife.  To  every  writ  was  added  this  claufe  :  Et 
etiam  pro  damnis  ei  adjudicatis  i?ifra  quindenam  facias  ei 
decern  folidos  habere,   ne  inde    clamorem  audiamus  pro   de^ 

'^  Braa.236.  W.  «Vid.  ant.  «»  Braa.  136.  b.  237. 

feau^ 


AJJi'^a  ultima 
prajevtatimis. 


348  HISTORY      OF      THE 

CHAP.  VI.  feSfu^  ^c.  If  feifin  had  been  recovered  before  the  jufticcb 
HENRY  III  ^"  ^^  county,  and  the  complainant  was  hindered  from 
getting  poflefRori  by  the  power  of  his  adverfary,  he  might 
have  the  following  writ  to  the  (lieriff :  ^ejlus  efl  nobis^ 
tsfc.  quod  cum  in  curia  noflrii  recuperajjet  feiftnam^  &c. 
idem^  t^c.  non  pennittit  eum  uti  feifmd  fud ;  or,  jeifmam 
fuam  nondum  habety  fecundum  quod  ei  fuit  adjudicata,  Et 
ideo  tihi  pracipimus,  quod  diligent er  inquiras  qui  fuerunt 
recognitor  ei  ejufdem  ajjifes^  et  per  eorum  vifum^  l^c,  plena- 
riam  feifinam  ei  habere  facias.,  et  ipfum  in  feifmd  fud  ma" 
nuieneas^  et  defendas  \  or  thus,  non  permittas,  quod  talis  ei 
molejUam  inferat.,  v el  gravamen ^i  quominus  idem.,  l^c,  uii 
po[ftt  feifmd  fud.,  ne  ampltus^  l^c^. 

We  have  hitherto  fpoken  of  fuch  remedies  as  were  fur- 
niihed  when  a  perfon  was  difleifed  of  his  freehold,  or  of 
fome  eafement  and  right  appurtenant  to  his  freehold,  and 
arifing  out  of  that  of  a  flranger.  We  are  now  to  treat  of 
appurtenances  and  rights  which  arife  in  a  man*s  own 
ground  ;  as  of  the  feifin  of  a  prefentation ;  and  when  a  per- 
fon was  impeded  in  the  ufe  and  enjoyment  of  his  own  fcifm 
thereof,  or  that  of  his  anceftor.  When  a  perfon  prefented 
to  a  vacant  church,  to  which  himfelf  or  his  anceftors  had 
before  prefented  tempore  pads  (for  every  one  muft  have  a 
feifin  of  his  own,  or  of  his  anceftor  who  lad  prefented), 
and  was  impeded  or  deforced  by  any  one  who  contefted  the 
prefentation  •,  this  was  to  be  determined  by  an  aj/ifa  ultima 
pra:fentationisy  as  we  before  mentioned  in  the  reign  of 
Henry  II  ^  As  this  aflife  could  only  be  brought  by  one 
who  had  had  feifin  himfelf,  or  whofe  anceftors,  to  whom 
the  advowfon  had  belonged,  had  had  feifin,  thofe  who  held 
by  feoffment,  and  not  by  defcent,  could  not  maintain  it, 
unlefs  they  had,  in  fa6V,  made  one  prefentation  :  for  they 
could  not  claim  of  the  feifin  of  thofe  whofe  heirs  they  were 
not,  in  an  affife,  any  more  than  they  could  in  a  writ  of 


«  Bra£V.  237. 


*  ViJ.  ant.  185. 


right ; 


ENGLISH      LAW. 


349 


right  •,  nor  could  one  who  held  for  life,  as  In  dower,  or  chap.  vr. 
the  like  ;  all  which  perfons  were  redrefled  by  another  fort  henry  nu 
of  writ^. 

The  qffifa  ultimo  prd:fentat'ioniSy  or  the  writ  of  darrein 
prefentmenty  as  it  was  afterwards  more  ufually  called,  dif- 
fered in  one  or  two  particulars  from  that  in  Glanville*s 
time.     Tlje  prefent  began,  Si  talis  te  fecerii  fecurum^  ^r, 
the  former  was  a  (imple  fummons.    The  prefent  was  made 
returnable  ;  fometinics,  according  to  Bra£ton,  coram  jujli" 
t'ttiriis  nojlris  ad proxlmam  ajfijam  (notwithflanding  the  pro- 
vifion  of  Magna  Charta  to  the  tbhtrary)  ^  \  fometimes  apud 
Wejlmonajlerium.  ^  v 

The  procefs  on  this  writ  was  as  follows  :  At  the  firfl: 
day  each  party  might  eflbin  himfelf,  if  he  pleafed.    If  both 
made  default,  the  fuit  failed,  and  the  writ  was  loft.     If 
the  difturber  only  of  the  prefentation  was  prefent,  the  judg- 
ment was,  quod  recedat  fine  die.     If  the  complainant  only 
was  prefent,  then  it  was  firft  to  be  feen,  whether  the  dif- 
turber had  been  fummoned,  or  not :  if  he  had,  and  the 
fummons  was  teftified  by  the  proper  fummoners,  then  he 
was  to  be  re-fummoned  •,  but  if  he  had  not  been  fummoned, 
or  the  fummons  was  not  proved,  or,  upon  appearing,  he    * 
objeOicd  that  he  had  not  been  fummoned,  or  the  fummons 
was  not  a  reafonable  one,  another  day  was  given  him; 
and  at  that  day,  if  the  fummons  was  proved,  or  not  de- 
nied, there  ifTued  a  writ  of  re-fummons,  by  which  he  was 
fummoned  to  hear  the  recognition  that  had  been  arraigned, 
with  the  addition  of  this  claufe,  et  ad  ofiendendinn  quare 
non  fuit  coram,  isfc.  ft  cut  fummonitus  fuit,   l^c.     At  the 
day  appointed,  if  he  made  his  appearance,  he  was  not  per- 
mitted to  take  fuch  objection  to  the  fummons  as  would  de- 
lay the  aflife,  whether  the  firft  or  fecond  fummons  was 
proved  or  not,  as  the  day  had  been  appointed  before,  and 
he  knew  he  was  to  be  fummoned  ;  and  if  he  did  not  come, 

6  Bra,iV.  237.  b.  438.  ^  Vid.  ant.  14c. 

the 


35^ 


HISTORY    OF    THE 

CHAP.  vr.    the  alFife  was  taken  by  default,  provided  the  jurors  were 

HENiiY  III     prefent.     If  they  were  not  prefeiit,  then  there  iflued  to  the 

iherlfF  a  writ,  which  fomttimes  was,  quod  venire  faciasy 

*      lafc,  fometimes  quid  habeas  corpora^    ^c  ^  for  the  jurors 

to  be  prefent  at  another  day  ;  at  which  time  if  he  did   not 

appear,  the  affife  would  be  taken  by  default. 

Again,  if  at  the  firft  day  of  fummons  the  tenant 
eflbined  himfelf,  and  had  another  day  given,  and  did  not 
appear  at  it,  the  afTife  was  immediately  taken  by  default, 
without  any  re-fummons ;'  alfo,  if  he  appeared,  and  the 
jurors  not,  there  was  always  one  cflbin  on  account  of  the 
appearance. 

In  this  manner  was  a  re-fummons  allowed  when  the 
affife  was  taken  out  of  the  county,  or  before  thejuftices 
fpecially  alTigned.  But  before  the  juftices  itinerant  in  that 
coMuiy  ad  077i}iia  placitay  no  re-fummons,  nor  the  delay  of 
fifteen  days  were  allowed,  if  the  tenant  M-^as  in  the  fame 
county  with  the  church  in  queftion  at  the  time  of  the  iter ; 
but  the  affife  was  taken  by  default,  the  fame  as  an  affife  of 
novel  diffieifin  ^.  Again,  a  re-fummons  was  not  allowed  as 
againft  a  perfon  withm  age,  nor  a  minor ;  nor  where  the 
tenant  had  been  {>;:Qn  in  court,  and  had  contumaciouHy 
gone  away.  In  fhort,  in  every  affife  but  that  of  novel  dif- 
fcifin,  there  was  at  the  firll  day  cither  an  effioin  or  a  re- 
fummons  -,  but  at  another  day,  there  was  no  re-fummons 
after  an  eflbin  ;  nor,  on  the  contrary,  an  effi^in  after  a  re- 
fummons  -,  but  the  aflife  was  immediately  taken  by  default, 
as  fome  faid  :  and  I3ra6lon  was  further  of  opinion,  that 
even  the  eflbin  de  fervitio  rcgisy  though  it  lay  after  an 
eflbin  and  re-lummons  in  every  affife  M'here  they  lay, 
would  not  hold  in  this  affife  ultiina prafentationis,  which, 
as  well  as  an  affife  of  novel  diffcifin,  was  excepted  from  this 

*  It  does  not  appear  from  Bra£\on  kcheas  corpora  never  ifTued  but  after 

■what  rule  governed  in  the  ap'plication  the  •venire  facias^  as  was   the  courk 

ot  one   or  the  other  of  thelV  writs  ;  in  later  times, 
much  Itit  can  it  be  colJctTled  that  the  ^   Brad.  23S. 

cffoin, 


ENGLISH      LAW. 

eflbln,  for  the  fake  of  expedition  and  difpatch.  Wc  have 
been  more  particular  in  this  account  of  the  pra£l:ice  in  re- 
fummons,  becaufc  it  is  applicable  to  all  the  remaining 
aflifes  of  which  we  (hall  have  to  treat '. 

If,  after  thefe  fummons,  re-fummons,  and  eflbins,  the 
fe  deforceant  did  not  come,  would  not  anfwer,  or  contuma- 
cioully  left  the  court ;  the  aflife,  as  we  faid  before,  was 
taken  by  default.  If  he  appeared,  and  could  fay  nothing 
why  the  aflife  fliould  remain,  it  proceeded  at  once ;  the  de- 
forceant, in  this  aflTife,  being  allowed  to  call  no  warrantor, 
becaufe  the  aflife  was  taken  generally,  for  him  who  had  the 
right  of  prefenting  "". 

When  the  complainant  and  deforceant  appeared,  and 
the  latter  was  difpofed  to  fay  fomething  againfl;  the  aflife, 
then,  fays  Bra6lon,  it  became  the  complainant  to  fl:ate  his 
cafe  (or,  profundare  intejit'ionem^  as  it  was  called),  and 
fhew  what  title  he  had  to  the  adlion  ;  after  which  the  defor- 
ceant was  to  fl:ate  his  exceptions  to  the  intentio  of  the  com- 
plainant, and  {hew  why  the  aflife  fhould  remain.  The 
matter  of  the  intention  and  exception  was  what  con- 
ftituted  the  merits  of  the  title,  and  was  ccllecled  from  the 
efFe6live  words  of  the  writ  :  ^lis  advocatus — tempore 
pads — prafetitavit — ulthnam  perjonam — qua.  morttta  ejl — 
ad  eccleftani  talem — qUi2  vacat^  cujus  advocationem  d'lcit  ad 
fe  pertinere :  that  is,  who  was  the  real  patron  and  owner 
of  the  advowfon,  and  that  he  was  not  a  guardian  or  farmer, 
or  tenant  for  years,  who  poflTcfled  nomine  alieno,  or  for  life, 
or  by  intrufion,  or  dlfleifin  ;  who,  befides  not  being  properly 
owners,  had  never,  perhaps,  prefentcd,  aiid  therefore  never 
had  gained  feifin  of  the  prefentation: — whether  he  obtained 
this  right  in  times  of  quiet  ^ndipeacey  and  not  by  ufurpation 
and  opprelTion  : — whether  the  prejentation  was  rendered 
complete  by  inftitution ;  for  fiiice  the  Confl-itution  of  the 
Council  of  Lateran,  ordaining  that  prefentations  fliould 

^   Braa.  239.  "   Ibid, 

?apfe 


tQcrcto. 


352  HISTORY     OFTHE 

CHAP.  VI.    lapfc  to  the  bifhop  if  the  patron  did  not  prefent  in  fix 
HENRY  III     nionths,  had  been  adopted  in  our  law,  it  oftener  happened 
.   that  prefentations,  not  being  in  time,  were  difputed : — 
whether  it  was  a  parfcn  that  was  prefented ;  for  an  aflifc 
did  not  lie  of  a  vicarage  or  prebend,  nor  of  a  chapel : — 
whether  his  death  was  natural  or  civil,  as  by  entrance  into 
religion,  refignation,  or,  what  was  the  fame,  marriage,  or 
any  other  a<Sl  which  difabled  him  from  holding  his  church  ; 
and  whether  it  was  vacant.    The  queftion  of  vacant,  or 
not,  was  to  be  determined  by  the  ordinary,  who  was  the 
proper  and  legal  judge  thereof  ". 
Fxcfptioas  From  the  above-mentioned  articles  of  the  writ  might  be 

extra£led  exceptions,  both  to  dellroy  and  defer  the  aflife  ; 
but  fhould  the  deforceant  admit  them  all,  he  might  ftill  ex- 
cept againft  the  aflife  in  various  ways.  He  might  fay, 
that  the  complainant  who  grounded  his  aflife  upon  the  feifin 
and  prefentation  of  his  ancefl:or,  after  that  prefentation 
made  a  gift  of  the  advowfon,  either  by  itfelf,  or  with  the 
freehold  to  wh'rch  it  was  appendant,  to  the  deforceant  him- 
felf,  by  a  charter,  which  he  there  produced  ;  and  therefore, 
that  though  the  anceftor  might  prefent,  yet  he  could  not 
for  that  reafon  prefent  after.  To  this  the  complainant 
might  reply,  that  after  the  charter  mentioned  he  prefented 
N.  who  was  admittedj  fo  that  the  charter  was  void,  and 
the  gift  null ;  and  this  he  could  prove  by  the  aflfife  taken  /';/ 
modumjurata^  unlefs  the  deforceant  chofe  to  make  a  tripli' 
catioy  or  rejoinder,  and  fay,  that  though  that  charter  might 
be  void,  and  the  gift  null,  by  fuch  fecond  prefentation  of 
the  donor ;  yet  after  fuch  fecond  prefentation,  he  made 
another  charter  to  him  confirming  the  former,  which  had 
been  invalidated  by  the  fecond  prefentation :  and  this  he 
might  oflcr  to  prove  by  the  aflife  and  witnefs  named  in  the 
charter,  if  the  other  party  fimply  denied  the  charter  and 
confirmation,  and  did  not  chufe  to  go  on  by  a  quadrupli- 

'^  Bract,  from  240  to  241. 

catid^ 


ENGLISH      LAW. 


353 


>catky  or  furrejolnder,  and  fay,  that  after  all  which  was  flatedj  C  H  A  P.  vi. 
he  had  fince  made  another  prefentation  Q.  The  fenfe  of  all  henRY*^ 
this  pleading  was,  that  the  lad  exercife  of  right  by  prefen- 
tation overbalanced  every  confideration  arifing  from  the 
right  to  make  that  prefentation ;  and  fo  flood  the  law,  con- 
formably with  that  deference  which  was  univerfally  fnewn 
our  old  jurifprudence  to  fcifin,  or  polTeflion,  whatever  the 
right  of  that  feifm  and  poffefiion  might  be. 

It  might  be  excepted,  that  the  complainant  had  aliened 
the  land  to  which  the  advowfon  was  appendant,  cutii  omni- 
bus  pertinefitiis ;  or  that  he  had  not  in  his  hands  any  part  of 
the  freehold  to  which  it  was  appendant,  but  had  lofl  it  all 
by  judgment  or  by  difleifin :  for  though  he  might  have  a 
right  to  the  freehold  and  its  appurtenances,  he  was  firft  to 
recover  that,  before  he  could  prefent  ?.  Thefe  and  many 
other  matters  might  be  excepted  againft  the  affife. 

Nothing  can  better  fiiew  the  nature  of  this  alTife, 
"how  far  it  had  t^cO:,  and  where  it  failed,  than  fome  cafes 
determined  in  this  reign.  In  one  of  thefe  it  was  held,  that 
when  it  could  not  be  proved  wbo  made  the  lad  prefenta- 
tion, nor  the  next  before,  nor  the  next  before  that,  the  plea 
(hould  proceed  upon  the  mere  right  and  property,  by  that 
fame  writ  of  aflife,  without  recurring  to  any  writ  of  right : 
a  narratio  therefore,  or  count,  was  immediately  to  be  made 
of  the  feifin  of  an  anceftor,  and  of  the  right  defceuding  to 
the  demandant,  as  if  it  had  been  ah  initio  a  fuit  upon  the 
right  j  and  the  tenant  might,  as  he  chofe,  put  himfclf  upon 
the  great  alTife,  or  defend  himfclf  by  duel.  Another  cafe 
was  this;  Suppofe  a  man  had  an  advowfon  of  a  church, 
and  being  in  feifin  of  the  prefentation,  gave  it  In  marriage, 
and  afterwards,  before  he  made  any  prefentation,  the 
donee  gave  it  again  to  another,  and  then  the  church  for  the 
firft  time  became  vacant  \  upon  which  the  donor,  the  firft 
donee,  and  the  fecond  donee,  all  prcfentcd :  in  this  cafe, 

»  Eraa.  2^7  b.  p    Ibid.  147.   '     243. 

VoL.L  El>  ihc 


354 


HISTORY      OF      THE 


HENRY   111. 


CHAP.  VI.  the  donor  would,  in  an  affife  for  the  prefentation,  be  pre- 
ferred to  the  other  two ;  for  the  firil  donee  had  no  true 
feifin,  fo  as  to  transfer  the  advowfon  to  another;  nor  could 
the  fecond  donee  receive  what  the  firfl  could  not  give  him: 
and  fo  it  w^as  determined  in  more  cafes  than  one,  that 
where  a  perfon,  to  whom  an  advowfon  was  given,  con- 
veyed  it  away  before  he  had  prefented  to  it,  the  convey- 
ance was  null,  becaufe  there  was  no  remedy  to  give  it 
efFea  "•. 

Oi quart smpedit.  As  perfons,  in  the  foregoing  inftances,  having  prefen- 
tations,  could  not  go  upon  any  feifin  of  their  own  or  their 
anceilors ;  and  in  all  cafes,  as  thofe  who  had  by  any  lawful 
means  acquired  a  right  of  prefentation,  whether  by  gift  or 
by  judgment,  for  life  or  in  perpetuity,  would,  if  they  had 
not  prefented  before,  have  been  unable  to  maintain  their 
right  in  an  afftfa  ultima  prcpfentationisy  or  a  writ  of  right  of 
advowfon ;  remedies  had  been  devifed  fome  time  in  this 
reign  by  two  writs,  one  called  quare  impedit^  the  other 
quare  non  permittit ;  for  fo  Bra(flon  calls  it,  though  the 
words  of  the  writ  are  quod  perniittat.  The  difference  be- 
tween thefe  two  writs  of  quare  imped'tt  and  quare  non  per^ 
mittity  is  thus  explained  by  BracSton :  Impedlre  ejl  ponere 
PEDEM  IN  Jus  aHejiunty  quod  quis  habet  hi  jure  prttjentandu 
When  a  right,  whatever  it  might  be,  was  accompanied  not 
v/ith  a  proper  feifin,  but  a  quajt  fsifina^  in  fuch  cafe  the 
remedy  was  by  quare  imped'it.  But  if  the  perfon  prefent- 
ing  had  not  even  this  quaft  fcifina,  but  clearly  none  at  all ; 
as  where  a  right  of  prefentation  accrued  by  donation,  or  by 
reafon  of  a  tenement  hoiden  for  life,  as  in  dower,  ox  per 
legem  terra ;  or  to  a  farmer  by  reafon  of  his  farm  *,  to  a 
creditor  by  reafon  of  a  pledge,  where  no  feifin  nor  qunfi 
feifin  was  had  ;  there,  as  no  one  could  be  {Aidi  pi^iu^re  pedem 
in  jus y  or  in  a  quafi  feifin  (which  the  perfon  in  facl:  never 
had),  a  quare  impedit  would  not  hold,  but  recourfe  muft  be 

^  Bra(^.  245.  b.  246. 

had 


E  N  G  L  I  S  H      L  A  W.  355 

had  to  the  quare  non  permittit ;  which  purported  that  the  f^^:^' 
perfon  who  had  the  property,  or  proprittas,  did  not  permit  h^jstj^y  III. 
him  who  was  in  pofleflion  to  ufe  his  jus  pojfejfionis. 

The  writ  of  quare  i?npedit  vf^xs  as  follows:  ^da  A, 
fecit  nos  fecuros  de  clamore^  bV.  pone  per  vadium,  tfc,  ad 
refpondendum  eidem  A.  QUARE  imped  IT  cundem  A.  pra- 
fentare  idoneam  perfonam  ad  ecclefiara  de  M,  cujui  ecclefia 
advocaUonem  idem  A.  nuper  iti  curia  nojird  coram  jujlitiar In 
n  (Ins  apud  JVe/i:nonaJhriu?n  recuperavit  verfus  eundem  B, 
per  judicium  curi^  nofiree  ;  unde  idem  A.  queritur  quod  pra- 
dicius  B.  injujTe  et  contra  coronam  nojlram^  or  in  cont€7nptum 
curies  nojl res  eum  inde  impedit  :  if  habeas^  b?c.  This 
was  the  form  of  the  writ  of  quare  imptdit,  which  has  rather 
the  appearance  of  a  writ  of  execution,  or  at  lead  a  judicial 
procefs  to  enforce  a  judgment  in  fome  a£lion,  than  an  ori- 
ginal writ.  The  writ  of  quare  non  permittit  was  as  fol- 
lows :  Fracipe  ^.  QJJ  6  D  jujie  et  fine  dilation  e  permittat  su^rt  ntn  per- 
B.  prafentare  idoneam  ■perfonam  ad  eccleftam,  iJc.  qu<£  "•''" 
vacate  et  ad  fuam  fpeSfat  donationem,  ut  dicit  ;  et  undi>  que- 
ritur  quad  pradicius  A.  eum  injujle  impedit,  Et  nifi  fecerit^ 
et  idem  B.  fccerit  te  fecurum^  kfc.  tunc  fununone^  iJc,  quod 
ft  coram  jufitiariis  no/Iris^  ijfc,  oftcnfurus  quare  non 
fecerit^  ifc.  From  the  comparing  of  thefe  writs,  it  feems, 
fays  Bra6lon,  that  the  quare  impedit  and  quare  tion  permittit 
come  to  the  fame  thing  ' ;  in  which  obfervation  later  tinics 
have  agreed  with  him  *,  for  the  writ  of  quare  impedit^  which 
feems  to  have  been  very  recently  introduced,  and  in  a  very 
unfinifhed  (late,  foon  became  obfolete  %  and  the  quare  non 
permittit  was  continued,  and  is  ftill  in  ufe,  under  the  name, 
however,  of  quare  impedit. 

The  procefs  in  this  writ  was  as  follows:  If  the  party 
did  not  appear  to  the  fummons  on  the  firft  day,  nor  eiloin 
himfelf,  then  the  old  praclice  (before  the  Council  of  La- 

f  Bra£^.  247.  pra'Jrn:a:i:r.is,  an  1  qnare  i;rpeJit^  are 

•   V:cl.    2   We;^.    I?   F,<^.  T.   <-.    ^.     mentioned  as 'the  on'y  ori^jinal   wiils 
wlitrc  a  Will  Of    rig^^t,  or   ultntet-     to  recover  advuwion. 

B  b  ?,  tcran^ 


HI. 


35^  H  I  S  T  O  R  Y      O  F     T  H  E 

CHAP.  VI.  teran,  when  no  time  run  In  cafe  of  vacancy  of  churches) 
HENRY  Ul.  ^^^  ^^  attach  the  impeders  by  pledges,  and  fo  on  by  better 
pledges,  and  to  run  through  the  whole  foJemnity  of  the 
procefs  by  attachment :  but  fince  that  time,  the  courts  had 
got  into  the  ufage  of  proceeding  with  more  difpatch  ;  in  a 
way,  fays  Braxton,  not  warranted  by  law,  yet,  as  he  ad- 
mits, fuch  as  was  excufed  by  the  nccelfity  of  the  cafe,  which 
required  that  a  lapfe  fliould  be  prevented,  if  poifible.  This 
was,  in  the  firll  inftance  to  diltrain  the  impeder,  eitlier  by 
dire£ling  the  fheriff,  qi^od  habeat  corpus  ejuSy  or  quod  dijlrin- 
gat  eum  per  terras  et  catalla^  quod  inamis  mn  appoimt,  or 
quod  fac'iat  eum  vetiire,  Hocy  fays  Bra6lon,  prove7nt  mn 
per  judicium,  fed  per  conjilium  curia,  to  difappoint  and 
punlfli  the  malice  of  thofe  who  hindered  prefentatlons  in 
order  that  lapfes  might  happen".  It  feems  this  procefs 
was  warranted  by  the  order  of  the  court  merely,  and  it  is 
fpoken  of  by  Bra£lon  as  an  intrenchment  on  the  regular 
courfe  of  proceeding,  that  was  to  be  excufed  by  the  nature 
of  the  cafe.  The  Icgiflature  at  length  interpofed  to  autho- 
rize this  proceeding,  and  fettled  it  fomewhat  in  the  manner 
it  is  here  dated  '^. 

If  the  Impeder  was  within  age,  and  had  nothing  by  which 
he  might  be  diflrained,  then  the  perfon  in  whofe  hands  he 
was,  and  by  whofe  advice  he  was  diredled,  was  to  be  fum- 
moned  :  Ihi  habeas  B.  qui  ejl  infra  atatem,  et  in  cujlodia 
iudy  Iz^c.  ad  refpond.  ^c. 

It  was  the  opinion  of  fome,  that  the  patron  only  was  to 
be  fummoned,  and  not  the  clerk,  bccaufe  he  claimed 
nothing  in  the  advowfon.  But  in  truth,  fays  Bradon,  it 
was  firft  to  be  fcen,  whether  it  was  the  patron  or  the  clerk 
that  caufed  the  impediment ;  for  both  might  be  Impeders  at 
different  times  ;  the  patron  before  he  loft  the  prefentatlon 
by  judgment,  and  the  clerk  by  afterwards  infifting  on  it  : 
and  in  this  cafe,  the  clerk  was  to  be  fummoned  as  a  princi- 

»>  nraft.  24;.         ^  By  the  Stat.  Marlb.  52  Hen.  III.  c.  12.  Vid.  pof>. 

pai 


E  N  G  L  I  S  H      L  A  W.  357 

pal  impeder,  and  the  patron  only  incidentally,  to  flic\r  CHAP.  vr. 
what  right  he  could  claim  in  a  prefentation  which  he  had  n^xRY  HI 
once  loft  by  judgment  of  law.  If  a  patron  caufed  a  clerk, 
properly  inftituted,  to  be  fummoned  for  impeding  his  prc- 
fentation,  he  might  anfwer,  that  the  church  was  not  vacant; 
which  would  be  tried  by  the  bifliop ;  or  he  might  fav,  that 
he  claimed  nothing  in  the  advowfon,  nor  impeded  any  one 
by  prefenting,  but  that  he  himfelf  was  already  in  pofTeffion, 
and  therefore  that  the  church  was  not  vacant. 

Lest  thebifhop  fhould  put  an  incumbent  into  the  church 
pendente  lite^  before  the  fix  months  elapfed,  there  ufed  to 
go  an  inhibition  ne  incumbraret,  or,  ne  clericum  admittety  ^c, 
fo  that  the  bifliop  could  not  afterwards  admit  any  one,  till 
the  fuit  depending  was  determined.  If,  however,  the  lad 
prefentation  was  determined  in  one  fuit,  and  another  was 
depending  upon  the  right,  the  bidiop  was  to  admit  a  clerk 
prefented  by  him  who  had  the  laft  prefentation,  notwith- 
llanding  the  prohibition". 

When  a  perfon  recovered  feifin  by  alTife  or  darrein  pre- 
fentment,  by  quart  hnpedity  or  quare  non perm'ittity  there 
went  a  writ  to  the  bifhop  ad  admittendum  clericum^  which 
ufually  ftated  the  record  and  judgment  in  the  action.  When 
thefe  writs  were  occafioned  by  either  of  the  two  laft  a£lions, 
there  was  a  claufe  inferted,  which  was  left  out  in  that 
which  ifliied  after  an  aftife  -,  and  as  this  fhews  a  remarkable 
difference  between  thefe  a<^ions,  it  may  be  worth  noticing. 
In  the  cafe  of  a  quare  impedity  and  quare  non  perm'ittity  a 
claufe  was  inferted  in  this  writ,  which  directs  that  the  clerk  ' 

(hould  be  admitted  non  ohjlante  reclamatione  ialisy  naming 
the  unfuccefsful  party.  Now,  as  a  qjmre  impedit  and 
quare  non  per  wit  tit  were  acftions  between  certain  parties, 
who  were  to  abide  the  judgm.ent  given  between  them, 
neither  ought  to  refift  the  execution  thereof,  and  fuch  a 
claufe  was  very  proper.  But  in  an  aiFife  of  darrein  prefent- 

•  B.aa.  147.  b.  Z48. 

ment 


3S5 


HISTORY     OF     THE 


CHAP.    VI. 


HENRY    III. 


j^Jfila  mortis 
tintecejforis. 


ment  it  was  otherwife ;  for  though  the  fuit  was  between 
certain  parties,  yet  the  aflife  was  not  only  to  enquire  of 
their  right,  but  of  that  of  any  other  perfons  whatfoever ;  the 
writ  dire6ling  the  jurors  to  recognife  generally  quis  advoca- 
tuSy  luhoy  and  not  whether  either  of  the  parties  only,  made 
the  lad  prefentation  j  and  therefore  it  would  be  in  vain  to 
fay,  noji  rcclamante  the  perfons  named  in  the  writ,  when 
any  other  perfon  might  refill  it,  if  the  aflife  declared  for 
him,  though  he  was  not  named  in  the  writ ''.  When  this 
aflife  was  taken  in  modum  juratay  the  iflue  in  fuch  cafe  not 
being  quisy  isfc.  but  on  a  collateral  fa6l,  then  this  claufe 
was  inferted. 

If  the  clerk  of  the  patron  who  loft  in  the  aflife,  inftituted 
any  fuit  againft  the  other  clerk  in  the  fpiritual  court,  there 
went  a  prohibition  to  (lop  it,  as  we  before  faw  in  Henry  II/s 
reign  ^.  Should  the  bifliop  negledl  to  obey  the  writ  ad  ad- 
mit tendum  clericumy  there  iflued  another  oi  quare  noti  admiftty 
upon  which  lay  the  procefs  of  attachment:  and  upon  this, 
enquiry  might  be  made  into  the  reafons  and  propriety  of 
the  delay  ^.  Thus  far  of  thefe  writs  of  pofTeffion  concern- 
ing prefentations.  The  writ  of  right  of  advowfon  belongs 
to  another  place. 

And  now  we  have  gone  through  the  remedies  the  law 
provided,  where  a  man  was  difturbed  by  violence  or  other- 
wife  from  his  oijn  proper  feifin.  We  are  next  to  fpeak  of 
the  feifin  of  another ;  the  principal  of  which  is,  that  of  an 
anceftor  :  in  fuch  cafe,  the  method  in  which  the  next  heir 
might  recover,  was  by  nffifa  mortis  antecejjoris. 

The  writ  oi  mortis  antecejforis  preferved  now  the  form 

it  had   received   in   Glanvllle's  time  *,    with   the  fuigle 

variation  of  the  return,  and  limitation.     The  limitation, 

according  to  the  alteration  made  by  the  Stat.  Merton,  was, 

Ji  chiit  pojl  ultiinum  reditum  ngis  Jchannis  patris  tiojlri  de 


>»  Braft.  2'+S.  b. 
*lb:d.  450.  b.  Vid. 


ant.  14!. 


''  Bra(fV.  251.  b. 
*  Vid.  ant,  178. 


Hibernia 


ENGLISH     LAW.  359 

Hibernid  in  Auglinm ;  the  return  was,  coram  juftitiarus  CHAP.  vr. 
nojiris  ad  pr'ininm  njftfam^  cum  in  partes  illas  venerint  :  ^ijtjsjry  III' 
though  to  thefe  variations  it  may  be  added,  that  whereas  in 
Glanville's  time  it  feems  to  have  been  onlv  on  a  father^s 
dying  feifed,  it  v/as  now  extended  further,  to  the  death  of  a 
mother,  brother,  filler,  uncle,  and  aunt  \  Thefe  were  the 
degrees  within  which  an  a'lTife  was  limited ;  for  a  proper 
writ  of  mortaunceflor  never  was  allowed  fo  high  as  the 
grandfather  (though  there  was  a  writ  de  ntorte  aviy  and  avi^, 
which  BracTton  calls  partly  a  mortaunceftor,  and  partly  a 
writ  dd  confanguinitatejy  nor  in  tlefcent  fo  low  as  the  grand- 
fon  5  no  affife  being  allowed,  of  the  <leath  of  one  or  of  the 
other,  though  a  grandfon  might  have  an  afTife  of  the  death 
of  liis  uncle  or  aunt,  as  before  fald.  Again,  this  alhfe 
would  not  lie  inter  conjunclas  pcrfonaSy  as  brothers  and 
fillers,  grandfons  and  grand-daughters  ^.  '\Vc  fliall  after- 
wards fee  how  the  writ  dc  cofifunguinitate  was  framed  to 
fupply  fome  of  thefe  defedls. 

In  an  alfife  of  mortaunceftor  the  procefs  was  a  re-fum- 
mons,  in  the  fame  manner  as  was  before  mentioned  in  the 
affife  of  darrein  prefentment  •,  and  if  at  length  the  parties 
appeared,  but  the  jurors  did  not,  then  there  was  an  award, 
that  ponatur  ajjifa  in  refpe  Burn  pro  defeclu  jurat  on  im  ;  and 
they  were  called  together  again  by  a  habeas  corpora  jurato-^ 
rum^  juft  as  was  ftated  in  that  aflife  ^.  It  appears  in  Glan- 
ville's time  that  the  tenant  was  not  to  be  waited  for  after  the 
firil  fummons. 

When  both  the  demandant  and  tenant  appeared  in  court,  Vooching  a 
the  tenant  might  call  a  warrantor  ;  a  privilege  which  Glan-  '^■*'""^*^'"' 
ville  does  not  mention  as  allowed  in  this  writ  *,  upon  which 
there  iflued  a  fummons  ad  luarrantizandum.  If  at  the  day 
the  demandant  and  tenant  appeared,  but  the  warrantor 
made  default,  then  the  auife  was  taken  by  the  default  of  the 
warrantor  5  nor  was  any  procefs  of  diilrefs  by  caption  of  his. 

-  Braa.  'i54,  261.  |..  s  Ibid.  ^  Ibid,  t^-^c,.  155.  b.  156. 

land. 


36o  HISTORY     OF     TH'E 

CHAP.  VI.    land,  or  otberwife,  allowed  againft  the  warrantor,  till  thrj 
KENRY  IIL    affife' was  taken,  and  it  was  known  whether  the  tenant  loft: 
or  retained  his  land,  and  fo  whether  he  needed  any  recom- 
pence  from  his  warrantor  :  and  even  (hould  the  aflife  not 
be  taken  on  that  day  for  want  of  jurors,  or  for  any  other 
caufe,  and  the  warrantor  appeared  before  it  was ;  yet,  not- 
withftandrng,  he  would  not  be  heard  till  the  aflife  had  firft 
been  taken.     If  the  tenant  loft  by  the  aflife,  they  proceeded 
againft  the  warrantor,,  and  diftrained  by  the  writ  of  cape 
in  mantim  domini  regis^  ^c.  de  terra  ipjtus  A.  ad  valentiam 
terra,  ^c.  quia  B,  recuperavit  verfus,   ^c.     If  the  war- 
rantor appeared  in  obedience  to  this  compulfory  procefs,  hs 
either  entered  into  the  warranty,  or  pleaded  he  was  not 
bound  to  give  a  recompence  in  value ;  for  this  obligation 
of  his  warranty  was  the  only  point  which  he  could  now 
deny,  it  being  in  vain  to  fay  any  thing  about  the  other  of 
defending  him  in  his  feifm,  that  being  loft  by  the  aflife.     If 
he  could  not  defend  the  recompence  in  value,  he  was  im- 
mediately to  make  the  ufua^l  fatisfa6tion  to  the  tenant. 

If  the  warrantor  appeared  at  the  firft  day,  he  either 
entered  into  the  warranty,  or  ftiewed  why  he  did  not.  If 
he  entered  into  the  warranty,  he  might  make  all  the  anfwers 
and  exceptions  the  tenant  might ;  and  he  became,  in  fa6l, 
the  very  tenant ;  he  might  call  others  to  warrant  him  ;  and 
if  the  iaft  warrantor  could  not  deny  his  warranty,  or  the 
aflife  was  taken  by  his  default,  he  was  to  give  a  recompence 
in  value  to  his  feoffee,  and  that  feofi^ee  to  his,  and  fo  on,  to 
the  tenant  in  the  a61:ian'. 

When  the  warrantor  denied  that  he  was  bound  to 
warrant,  no  other  penalty,  as  we  faid  before,  was  inflicled 
on  the  tenant^  but  that  the  alfrfe  was  taken  by  default ; 
and  this  was  the  great  difference  between  the  fituation  of  a 
tenant  under  thefe  circumftances  in  an  aflrfe  of  mortaun- 
ceflxir,  and  in  a  writ  of  right :  and  with  reafon  ;  for  in 
the  aflife,  the  warrantor  was  only  to  defend  againft  the 
aflife,  by  faying  fomcthiug  to  flicw  that  it  ought  to  re- 
main i 


E  N  G  L  I  S  H      L  A  W.  361 

main ;  and  if  he  could  not  fay  any  thing  to  that  effe£l,  CHAP,  vr 
the  aflife  proceeded  of  courfc,  and  the  queftion  was  only  heNRY  111. 
upon  the  pofleflion  :  whereas  in  a  fuit  de  proprietate,  the 
warrantor  was  called  to  anfwer  to  the  demand,  and  defend 
the  very  right ;  and  he  was  bound  to  (hew  that  the  de- 
mandant had  no  right ;  and  if  he  could  not  do  this,  there 
was  a  judgment,  that  the  land  {hould  be  loft  for  want  of 
a  defence '. 

When  the  demandant  ftated  his  intenUo^  he  was  then  to 
eftablifh  and  prove,  by  the  aflife  in  modum  ajfijaty  all  the 
articles  of  the  writ,  namely,  quod  talis  antecejfor^  of  whofe 
feifin  he  claimed,  fuit  feifitus  in  dominico  fuo^  ut  de  foedoy 
die  quoobiity  zndpo/I  terniinumy  ^c.  which  was  the  limita- 
tion in  thefe  writs ;  and  if  he  failed  in  one  of  thefe  articles, 
the  aflife  was  as  much  loft  as  if  he  had  failed  in  all  ^.  To 
all  or  fome  of  thefe  the  tenant,  if  he  could  not  call  a  war- 
rantor, as  before  ftated,  might  anfwer  and  make  his  ex- 
ceptions, (hewing  why  the  aflife  fhould  not  proceed  ;  and 
for  proof  of  what  he  faid,  was  (as  in  the  other  aflifes)  to 
put  himfelf  upon  the  aflife  in  modu?n  q//ife,  or  ///  modiwi 
juratay  according  to  the  nature  of  the  allegation  :  for  this 
aflife,  as  well  as  that  of  novel  difleifin,  was  fometimes 
turned  into  a  jury,  to  try  the  truth  of  fuch  collateral  facts  as 
might  be  alledged  againft  the  aflife  proceeding.  The  fort 
of  fa£l:s  which  would  occafion  this  change,  and  the  manner 
in  which  it  was  conducted,  it  would  now  be  unneceflary  to 
enumerate  particularly,  after  what  has  been  faid  on  the 
aflife  of  novel  difleifin.  The  writ  oifeifinam  habere  facias 
was  various,  according  to  the  circumftances  of  the  pro- 
ceeding in  court  :  whether  the  recovery  was  by  the  aflife, 
by  judgment,  by  confefllon,  it  was  always  fo  mentioned  : 
ZciaSy  quid  A.  Ijfc.  recuperavity  ijfc.  per  ajjifam,  ^r'. 

We  fliall  therefore  conclude  what  we  have  to  {'xy  upon 
the  writ  of  mortis  antecejforisy  by  fliewing  between  what   ^vrit  W3ui(<  li-. 

•  Bracl.  257.  b,  to  261.  ^   Ibid.  261.  b.  '   ILid.  256. 

perfons 


HENRY   III. 


362  HISTORYOFTHE 

CHAP.  vr.    perfons  it  would  hold,  and  adding  a  few  remarks  upon  the 
injlances  where  it  was  not  allowed.     The  reafon  of  con* 
fining  this  writ  within  certain  degrees  was  an  anxiety, 
left,  by  extending  it  further,  queftions  de  proprietate  might 
be  fometim.es  determined  by  an  affife,  which  was  a  pro- 
ceeding only  defigned  for   difputcs  about  the  pofTefTion. 
This  writ  would   not  lie  between  conjun^as  perfonasy  as 
co-heirs,  vv^hether  they  were  parceners,  that  is,  capable 
of  taking  an  inheritance  defcending  from  a  common  ancef- 
tor,  or  not  capable  j  for  if  they  were  co-heirs  capable  of 
taking,  that  is,  if  the  inheritance  was  partible,  as  among 
daughters,   or,  by  particular  cuflom,    among  the  fons; 
recourfe  was  to  be  had  to  the  writ  de  pr opart e  ;  and  if,  in 
fuch  cafe,  an  afTife  was  brought,  it  would  be  loft  by  the 
exception  of  the  mere  right ;  as  each  of  them  was  the  hares 
pYopinquior  to  his  own   Ihare,  compared  with  thofe  in  a 
remoter  degree.      And  again,  where  they  were  co-heirs 
(who  were  by  law  confidered  quoad  Jeiji nam  msjujii  et  pro- 
pinqui)y  though    not    parceners,    or   capable  to  take,   as 
above  fuppofed,  but  one  of  them,  to  whom  the  jus  meruin 
defcended,  was  preferred  to  the  others ;  yet,  even  in  this 
cafe,  the  aflife  would  not  lie,  as  it  only  would  determine  the 
poflefllon  and  feifin,  refpecftlng  which  they  were  confidered 
all  equally  jufa  et  proplnqui ;  but  recourfe  was  to  be  had 
to  the  writ  of  right,  which  determined  both  the  feifm  and 
the  mere  right  "^ 

As  this  writ  would  not  lie  between  co-heirs  that  were 
legitimate,  capable  or  not  capable,  fo  neither  would  it 
between  legitimate  and  natural  children  ;  for  if  it  was  ob- 
jected to  a  natural  brother  that  he  was  a  baftard,  or  a  villain, 
though  he  fliould  prove  himfelf  legitimate  and  free,  he 
would  not  thereby  prove  himfelf  h(zres  propitiquior,  which 
muft  be  done  before  the  right  could  be  decided  j  and  there- 

^  Sctjtnavi  et  meruin  jus, 

fore. 


E  N  G  L  I  S  H      L  A  W.  363 

fore,  as  that  could  not  be  in  this  aflife,  they  mull  refort  to    c  H  a  p.  vl 

the  writ  of  right ".  ^  ^  I^ienrTui! 

It  had  been  faid  by  Glanville,  that  this  aflife  would  not 
lie  in  burgage  tenure «,  on  account  of  a  particular  law ; 
the  effect  of  which  law  we  may  guefs  at,  when  we  learn 
from  Braxton,  that  the  reafon  of  this  was,  becaufe  many 
boroughs  had  a  particular  cuftoni,  which  enabled  the  bur- 
gefles  to  make  wills  of  land  ;  and  where  that  prevailed,  it 
was  to  no  purpofe  to  enquire  by  this  writ,  whether  the 
anceltor  died  feifed.  He  fays,  that  the  freemen  of  London  ^ 
and  burgefles  of  Oxford  could  make  wills  of  their  land,  as 
of  a  chattel,  whether  they  had  fuch  land  by  purchafe  or 
defcent.  In  fome  places,  this  cuftom  was  confined  to  land 
purchafed  'J. 

We  have  feen,  that  the  aflife  of  mortauncefl:or  was  limit-  a.  writ  di  c«k- 
ed  within  certain  degrees,  and  lay  only  againil  certain  per-  ./'"'^"'w/a/c. 
fons,  on  the  death  of  certain  perfons,  beyond  which 
recourfe  was  to  be  had  to  a  writ  of  right.  To  prevent 
this,  in  quefl:ions  of  feifin  which  could  be  proved  de propria 
vifu  et  audittiy  there  had  lately  been  contrived,  in  aid  of 
this  aflife,  the  writ  de  confanguimtatfy  which  was  to  deter- 
mine quefl:ions  of  poflTeflion  in  fuch  degrees  and  perfons 
to  which  the  aflife  did  not  extend  within  the  time  of  limita- 
tion prefcribed  to  the  aflife.  This  writ  lay  only  of  fuch 
things  as  the  deceafed  died  feifed  of  in  dominico  fuo,  id  de 
foedoy  and  not  thofe  he  died  feifed  of  ut  de  mero  jure ;  it 
being  defigned  to  go  only  upon  the  poflefllon,  to  avoid  the 
hazard  of  the  duel,  and  of  the  great  afl'ife.  As  this  writ 
came  in  the  place  of  the  aflTife,  and  had  for  its  objed  the 
feifin  of  the  ancefl:or,  there  was  every  reafon  why  it  fliould 
purfue  the  nature  of  its  original,  as  nearly  as  poflible.  It 
therefore  obferved  the  time  of  limitation  in  the  old  writ, 
and  was  confined  to  the  fame  perfons  to  which  that  was. 
Thus,  though  this  writ  exceeded  the  degrees  of  the  aflife, 

"  Bj-act.  478.  b.       °   Vid.  snt.  xgi.        p  Baror.es  L^nJhii.      "■  Uia^.  aiJ. 

as 


364  H  I  S  T  O  R  Y     d  F     T  H  E 

CHAP.  Vf.  as  it  extended  to  the  grandfather,  great-grandfather,  and 
HENRY  III  ^^g^^  "^  ^^^  afcending  line  5  and  in  the  defcending,  to  the 
grandfon,  great-grandfon,  and  lower  ;  it,  neverthelefs,  did 
not  lie  between  fuch  perfons  as  the  aflife  did  not,  as  between 
co-heirs  and  the  like  ;  according  to  the  rule,  inter  quaf- 
cunque  perj'onas  locum  hab^t  ajfifa  infra  fuos  liuiites,  inter 
eajdein  locum  habet  confauauinitas ;  and  vice  verfa  ^  And 
if  the  time  exceeded  the  limitation  in  a  writ  of  mortis  ante' 
cejforisy  the  writ  of  confanguinity  would  not  hold ;  as  the 
demandant  could  not  by  poflibility,  at  fuch  a  length  of 
time,  prove  the  feifin  de  vifu  et  auditti  proprioy  but  only 
alienoy  that  is,  of  the  father  of  the  witnefs,  who  faw  it,  and 
enjoined  the  fon  to  witnefs  it  thereafter ;  which  fort  of  tef- 
timony  could  only  be  received  in  a  writ  of  right '. 

This  was  the  origin  and  the  nature  of  the  writ  de  con- 
fangninitate  ;  the  form  of  which  was  as  follows  :  Praecipe 
J.  quod  jujle  et  fine  diiatisne  reddat  B.  terram^  iffc.  cum  per- 
tinentiis  in  villdy  ^t .  de  qua  C.  confanguineus  (or  it  might  be 
exprefled  fpecially,  as  avu:^  or  nepos)  ipfius  B.  cujus  hares 
ipje  ejly  fuit  feif.tus  in  dominico  fuo^  ut  de  fcedoy  die  quo  obiit, 
lit  dicit.  Et  nift  fecerit.  ^  B.  fecerit  te  fecurum^  &c,  tunc^ 
t^'c,  Isfc.  After  the  eflbins,  and  both  parties  appeared  in 
court,  the  demandant  was  to  propound  his  intentio  in  this 
way  :  B,  petit  verjus  A.  taritam  terrani  cum  pertinentiis  in 
tali  villa,  ut  jus  Juum,  et  unde  talis  conjanguineus  Juus^ 
cujus  bares  ipfe  ejl ,  fuit  feifAus  in  dominico  juOy  ut  de  feeds, 
die  quo  obiit  ;  et  de  ipfo  tali  defcendit  jus  pr(edi£i<e  terrte 
cuidam  tali  filio  et  hcsredi :  and  thus  he  was  to  deduce  the 
defcent,  as  in  a  writ  of  right,  down  to  himfelf  •,  and  then 
add,  et  quod  tale  fit  jus  Juum,  et  quod  talis  conjanguineus  ita 
fuit  feifitus,  offer t^  ts'c  he  made  an  offer  to  prove  :  to  which 
the  tenant  anfwered  in  this  way  :  Et  A.  venit,  et  defendit 
jus  fuum^  isc,  et  dicit,  quod  nan  debet  ad  hoc  breve  refpondere, 
quod,  ijfc^.  which  fcrap  of  pleading  may  be  noticed,  as 

»  Braa.267,  »  Ibid.  »8i.  *  Ibid. 

well 


£  N  G  L  I  S  H      L  A  YV\  .      3^5 

well  for  illuftrating  the  acSlion  we  are  now  upon,  as  to    chap.  vi. 

give  the  firil  inftance  that  occurs  of  the  formal  parts  of  a    jj^^y  hi 

record  :  many  fuch  will  prefent  themfelves  before  we  have 

done  with  this  reign.     It  muft  be  remembered,  that  Brac- 

ton  fays,  this  a6lion  was  an  aflife,  and  might,  like  others, 

be  occafionally  turned  into  a  jury.     AH  thofe  exceptions 

might  be  made  to  it,  which  lay  in  the  affife  of  mortaun- 

ceftor. 

It  is  ftated  as  a  qucftion  by  Braclon,  whether  this 
writ  could,  by  means  of  the  narratio,  or  counting  upon  it, 
be  turned  into  a  writ  of  right,  as  a  writ  of  entry  might : 
^s  for  inftance,  if  the  demandant  in  a  writ  cle  cofifangultiitate^ 
in  counting  his  defcent,  ci  nude  talis  cotifanguineus  fuus 
ohiit  fcifittis  in  dominico  fuoy  ut  defoedoy  fhould  then  add,  ei 
de  jure ;  this,  Bra£lon  fays,  would  be  going  from  the  pof- 
feflion  to  the  propriefas  :  for  in  faying,  talis  ohiit  feifitus  in 
dominico  Juo<i  ut  defosdo,  \\\cjus  pojjtjjlonis  only  was  brought 
in  queftion  j  and  when  he  adds  de  jurcy  he  brings  like- 
wife  in  judgment  the  jus  proprictatisy  which  made  the 
jus  duplicatumy  or  droit  droit ".  But  as  the  writ  de  confan- 
guinitate  was,  in  its  nature,  only  a  pofieiTory  remedy, 
the  demandant,  by  counting  of  the  mere  right,  would  go 
beyond  the  defign  of  it ;  and  therefore  the  writ  would  be 
deftroyed,  and  the  party  have  no  remedy  left  but  the  writ 
ot  right.  Again,  by  the  fame  reafon,  a  writ  of  right 
could  not,  by  the  way  of  counting,  be  turned  into  a  writ 
de  confanguinitate ;  as  a  perfon  who  had  once  commenced 
a  fuit  upon  i.he  right,  with  efFccl,  could  never  go  back  to 
an  a£lion  upon  the  polTefTion  only.  But  a  writ  of  entry, 
as  it  was  /'/  jure  proprietatisy  might  fometimes  become  a 
writ  of  right,  on  account  of  the  entrybeing  too  ancient  to 
be  proved  prcprio  vifu  et  auditu  :  and  again,  a  writ  of  right 
might  become  a  writ  of  entry,  when  the  entry  could  be 

"  Vi(?,  ant.  3^0 

proved 


HISTORY     OF     THE 

proved  propria  vifu  et  audita.  But  of  this  we  {hall  have 
occafion  to  fay  more  hereafter  ^, 

An  affife  of  mortaunceilor  did  not  lie  for  a  right  of  com- 
mon, of  the  feifm  of  an  anceftor ;  in  lieu  of  it,  therefore, 
^od  permittat.  a  Writ  of  quod permittat  had  been  formed  :  Pracipe,  ^c. 
quod,  iffc.  PERMITTAT  talem  habere  communiain  pajlura^ 
l^c.  de  qua  talis  patei\  or  avunculus,  or  conjanguineus^ 
cujus  hares  ipfe  ejl,  juit  feifitus  de  foedo  tanquam  pertinente, 
^c.  And  in  like  maimer  for  a  fucceflbr  :  Precipe,  bfc, 
quod,  ^c.  permittat  A.  reclorem  talis  ecclefia:,  l^c,  Thefe 
two  writs  were  poiTeflbry,  as  well  as  the  former ;  and  the 
mere  right  could  not  be  difcufled  in  them  ^.  They  were 
likewife  always  determined  by  a  jury,  and  not  in  the  way  of 
an  alhfe. 

Thlr-E  was  a  writ  which  partook  of  the  nature  of  an 
aflife  of  mortis  antecejforis  and  of  novel  diffeifin,  to  fum- 
mon  a  perfon  ojiendendum  quo  warranto  fe  teneat  in  tantd 
terra,  is'c.  quam  A,  pater  ipftus  B.  recuperavit  verfus  eun- 
dem  C.  ^c»  et  de  qua  fuit  feifitus  ut  de  focdo^   die  quo  ohiit, 

^c.     The  like  in  cafe  of  a  common  ^. 

* 

It  was  not  the  practice  to  allow  damages  to  be  reco- 
vered in  an  aflife  of  mortaunceftor  ;  which  Bra6lon  laments 
as  an  encouragement  to  chief  lords  to  commit  wafte  and 
deftrudlion  on  lands  which  they  feized  at  the  juncture  of  a 
tenant's  death.  We  have  before  feen,  that  a  chief  lord 
was  more  commonly  an  obje£l  of  this  afTife  than  perfons  of 
any  other  defcription  S 
/iJfJJa  uttum.  The  next  and  lad  remaining  aflife  was  the  ajjifa  utrlwiy 

to  try  whether  a  fee  was  lay  or  ecclefiafl:ic.  But  before  we 
enter  upon  this,  let  us  turn  back  for  a  while,  and  review 
thefe  aflifes,  in  the  flrft  mention  of  them  by  Glanville,  and  as 
they  were  now  treated  by  Bra6lon.  This  proceeding  was  in 
Glanville's  time  called  rccognitio  ;    and,   in  fpeaking  of  the 

^Bia:'^.  285.  b.  a?4.       ^  Ibid.  284  284.  b.       Mbid.  285.      »  Vid.  ant.  17S. 

remedies 


E  N  G  L  I  S   H       L  A  W.  367 

remedies  upon  feifin,  he  enumerates  the  recognitions  then    CHAP.  vi. 

in  ufe  in  the  followinp^  v/ay.     There  were,  fays  he,  the  re-    /rt!^^,,  ,„ 

,    ,  '       ;  '  Hi.NR\    111. 

cognition  iIs  morte  anteccjjiris  ;  that,  de  ultima  prafenta- 
tione  \  that,  utriim  al\ quod  tenementum  fit  fcedmn  ecclefiajii" 
cum  vellaicurn  \  that,  uirum  aliquis  fucrit  Jeijitus  de  aliquo 
libera  tenemento  die  qua  obiit,  ut  de  fcedo^  vel  ut  de  vadio  : 
that,  utruin  aliquis  ft  infra  atatem  vel  plenum  habuerit  cria. 
tern  ;  that,  utrutn  aliquis  obierit  feiftus  de  aliquo  libera  tene- 
mento^ ut  de  foedo,  vel  ut  de  wurd/i ;  that,  utriim  aliquis 
prrefentctverit  ultimam  perj'onam  an  ecclefam^  occafune  fcedi 
vel  ward.-t.  Thefe  he  fpeaks  of  hy  name  ;  and  then  adds, 
"  and  if  any  fimilar  queftions  (as  many  might)  arife  in 
court  during  the  prefence  of  the  parties,  it  was  often 
awarded,  as  well  by  confent  of  parties  as  by  the  advice  of 
the  court,  to  decide  the  controverfy  by  a  recognition:"  and 
then  he  mentions  the  recognition  de  nova  dijfeifmd  ^, 

Thus  did  Glanville  confider,  not  only  all  thofe  above 
fpecified,  but  all  pofTible  recognitions  had  by  confent  of 
parties  upon  the  fame  footing,  of  the  fame  nature,  and  at- 
tended with  the  fame  legal  confequences  :  as  they  were  all 
recognitionsy  fo  were  they  all  ajftfes  ;  thofe  terms  be- 
ing, at  that  time,  convertible.  We  have  before  obferyeJ, 
that  a  recognition  taken  by  confent  of  parties  was  after- 
wards called  Tijuratay  and  that  a  diRin6lion  arofe  between 
an  affife  and  a  jury.  In  confequcnce  of  this,  many  of  the 
iflhes  which  in  Glanville's  time  were  tried  by  an  ajjtfe,  were 
now  tried  by  "^jury  ;  and  of  all  thofe  alTifes  enumerated  by 
him,  there  remained  at  the  time  of  which  we  are  writing, 
only  that  of  tiovel  diffefin^  iiliim£  prafentationis^  mortis 
ajiteceforisj  and  this  q/jifa  utruni.  The  firfl  tliree  of  thefe 
furvived,  no  doubt,  becaufe  they  were  remedies  by  which 
property  might  be  recovered,  being  attended  with  compul- 
fory  writs  of  execution  and  the  like  ;  and  therefore,  as  they 

*»  Glanv.  lib.   13.  c.  2-      Vui.  ant     I4S. 

were 


368  HISTORYOFTHE 

CHAP.  VI.  were  continued  for  the  fame  purpofes  for  which  they  were 
HENRY  III  ^^^^^^9  ^^^cy  retained  their  original  appellation,  with  their 
original  ufe:  while  the  others,  being  to  try  iffues  which  were 
of  little  importance,  except  when  conne6led  with  fome 
principal  queflion  of  right,  and  which  now  might  be  tried 
by  a  jury,  or  by  the  aflife  in  the  caufe  turned  into  a  jury, 
went  out  of  pradlice  as  original  aflTifes,  if  indeed  they  ever 
had  been  fuch.  And  it  is  to  be  wondered,  how  the  affi/a 
utrhn  efcaped  the  fame  fate ;  having  nothing  in  it  like  an 
original  commencement  of  a  fuit,  but  feeming  to  be  rather 
calculated  for  the  trial  of  an  incidental  queflion,  not  of  im- 
portance except  as  it  was  involved  in  fome  other. 

In  later  times,  thofe  who  wanted  to  account  for  thefe 
a£lions  being  denominated  afllfes,  have  ufually  faid  that  they 
were  called  fo,  becaufe  the  jurors  were  fummoned  in  the 
firft  inftance  by  the  original  writ ;  which  did  not  happen  in 
any  other  a£lion.  How  far  this  might  be,  ilri^lly  fpeaking, 
a  reafon  for  the  appellation,  after  what  has  here  been  faid 
of  thehiftory  of  alTifes  and  juries,  the  reader  may  form  fome 
judgment. 

To  return  to  tlie  affifa  uirum.  This  aflife  is  faid  by 
Bra6lon  to  have  multum  pojfejfioms  et  jurisy  which  is  more 
than  could  be  faid  of  any  other,  as  it  determined  both  the 
pofleflion  and  the  right;  for  there  could  be  no  queftion 
raifed  about  the  right  after  this  afTife,  tho'  the  perfon  who 
had  more  right  might,  notwithftanding,  conteft  his  claim 
upon  the  merum  jus.  In  this  aflife,  recognition  was  to  be 
made,  whether  the  tenement  in  queflion  was  the  lay  fee  of 
the  tenant,  or  was  held  vi  libera  eleemofynd^  belonging  to 
fome  church.  This  aflife,  fays  Bra£lon,  might  be  brought 
either  by  a  layma«  or  clerk ;  and  fo  the  praclice  had  been 
cllabliflied  in  the  time  of  the  famous  jufl:ice  PateJImll ;  tho* 
he  afterwards  himfelf  altered  his  opinion,  and  held  It  would 
only  lie  in  the  perfon  of  a  reclor.  But  in  the  time  of  Br^c- 
ton,  they  returned  to  the  pradice  firft  cflabliflied  by  Pete- 

JJjull, 


ENGLISH      LAW. 

fmlli  and  it  was  held  good  both  for  clergy  and  lay.  This 
writ  belonged  only  to  rectors  of  parifli -churches,  and  not 
to  vicars. 

The  v/rit  in  this  aflife  was  much  the  fame  as  In  Glan- 
ville's  timcj  only  it  was  returnable  before  the  juftices  ad 
prhnatn  ajjtfam.  In  this  alTife,  the  tenant,  whether  clerk 
or  lay,  might  vouch  to  warranty,  as  In  the  aiTife  of  mortis 
a'fitecejpiris.  This  alhfe  would  not  lie  of  land  given  to  ca- 
thedral and  conventual  churches,  tho'  given  m  Uberam  pU" 
ra?n,  et  perpetuam  eUemofynam  ;  the  reafon  was,  bccaufe 
the  gift  was  not  to  the  church  folely,  but  alfo  to  a  perfon, 
to  be  held  as  a  barony  ;  as,  Dec  et  ecclefi<t  tai'i^  et  priori^  et 
monach'is  ibidem  Deo  f  rvientibus^  or  epifcopo  tali^  i^c.  :  and 
therefore  fuch  perfons  might  have  all  thofe  remedies  which 
laymen  might,  as  writs  of  novel  difleifin,  of  entry,  and  of 
right;  and  confequently  were  not  to  avail  themfelves  of  a 
remedy  devifed  merely  for  a  parfon  claiming  land  in  right 
of  his  church,  and  who  could  claim  no  otherwife :  for  in 
cafes  of  parochial  churches,  gifts  were  confidered  not  as 
made  to  the  parfon,  but  to  the  church.  This  aflife,  like 
others,  might  be  turned  into  a  jury  :  and  It  may  be  noted 
here,  that  in  all  aififes,  when  the  aflife  paflcd  ifi  ynodmn  af- 
Jif^y  the  entry  on  the  roll  was,  ajjifa  vejiit  recognitiiraj  ^c. ; 
when  in  inodum  jwatcf^  the  entry  was  conformably,  y«;-rt/(j 
venii  recognitura,  td'c. 

It  may  be  obferved,  that,  bcfides  this  aflife,  a  parfon 
might  have  many  remedies  to  which  laymen  were  entitled. 
He  might  have  an  aflife  of  novel  dlfleifin,  and  a  writ  of 
entry  ;  an  aflife  of  mortauncefl:or,  from  the  nature  of  the 
parfon's  eftate,  could  not  be  brought  by  him.  If  a  writ 
of  right  was  brought  againfl:  the  parfon,  he  might,  like  ano- 
ther perfon,  vouch  to  warranty,  and  then  the  fuit  would 
go  on  between  the  demandant  and  the  warrantor  to  the  du- 
el, or  the  great  aflife.  But  if  he  had  no  warrantor,  and  had 
fome  one  who  could  teftify  de  proprio  vifu  et  auditif,  theii. 
Vol.  I.  C  c  fays 


37» 


HISTORY      OF     THE 


HENRY  111. 


CHAP.  VI.  fays  Bra£lon,  he  might  put  himfelf  upon  a  jury  to  try, 
utrum  terra  petita  fit  libera  eleemofync^^  k^c»  an  laicujn  fee- 
dum,  Uc.  as  if  a  layman  had  originally  brought  the  ajjifa 
uirum  ;  which  is  a  very  happy  and  pointed  inftancc  of  the 
remark  we  made  before,  concerning  the  iffues,  formerly  tri- 
able by  aflifes,  being  devolved  on  juries.  If  he  chofe  to  de- 
fend himfelf  by  the  duel,  or  great  alTife,  for  want  of  fomc 
witnefs  de  propria  vifu  et  auditu  ;  he  might  do  it  from  the 
neceffity  of  the  cafe,  provided  he  had  licence  from  the  or- 
dinary, and  the  concurrence  of  his  patron.  If  land  fell  to 
his  church  by  efcheat,  there  was  a  writ  for  the  redlor  to  re- 
cover it :  Precipe  qubd^  l^c.  reddat  tali  reSlori^  t^c,  quam 
clamat  effejus  ecdefia^  et  qucd^  ^c.  reverti  debet^  tanquam 
efchata. 

As  this  afllfe  determined  the  right  as  well  as  the  feifin, 
k  was  made  a  queftion  by  fome,  whether  a  conviction 
would  lie  againft  the  jurors;  and  Bra^lon  was  clear,  from 
fome  determinations  in  this  reign,  that  it  would,  if  the  af- 
fife  was  taken  in  modum  afftfeZy  and  if  the  writ  of  convic- 
tion was  prayed  before  a  long  interval  had  paffed  from  the 
taking  of  the  affifc.  A  convi£lion  had  been  denied,  where 
fixteen  years  had  elapfed  ^. 

As  we  have  gone  through  all  the  alTifes  now  in  ufe,  it 
follows,  that  fomething  (hould  be  faid  on  the  conviElion^  or 
attaint^  as  it  was  called  in  later  times,  for  perjury ;  to  which 
the  recognitors  were  liable  if  they  fwore  falfely.  This  is 
treated  very  fhortly  by  Glanville,  who  only  mentions  the 
punifhmcnt ;  and  from  the  paflage  where  he  fpeaks  of  it, 
one  might  be  led  to  think  it  belonged  only  to  the  great  af- 
fife*^.  We  (hall  find,  that,  on  the  contrary,  tho*  in  Glan- 
ville's  time  it  might  lie  in  the  great  aflife  as  well  as  others, 
-yet  now  it  lay  in  all  others,  but  not  in  the  great  affife. 

When,  therefore,  the  jurors  in  any  of  the  foregoing 
afldfes  had  fworn  falfely,  and  fo  committed  perjury,  they 


Of  corvvlftion. 


*  Brafl:.  fiom  285.  b.  to  28S. 


^  Vid.  ant.  107. 


might 


E  N  G  L  I  S  H      L  A  W.  371 

STilght  be  convided  of  that  perjury  by  the  perfon  who  had    C  H  a  p.  vi. 

loft  by  the  afTife.     And  that  might  be  eflecled  feveral  wavs;     ^TC^C^ 

^  '    '      HhNRY   III. 

either  by  the  oaths  of  twenty-tour  other  jurors;  or  out  of 

their  own  mouths  by  the  examination  of  the  judge,  with- 
out recourfe  tc  the  jury  of  twenty-four ;  or  by  their  own  free 
confeffion,  in  which  they  acknowledged  their  ofi-'ence,  and 
put  themfelves  on  the  king's  mercy ;  and  in  thefe  different 
cafes,  the  penalty  was  accordingly  different. 

ir  they  were  to  be  conviclcd  by  another  jury,  it  was 
tiiH  to  be  feen,  how  many  jurors  were  in  the  afTife  (for 
they  were  not  always  the  fame  number);  each  juror  was 
to  have  at  leaft  two  to  convi6l  him :  and  the  jurors  on  the 
conviction  were  to  be  at  lead  of  as  good  condition,  if  not 
better,  than  thofe  on  the  afRfe. 

When  it  was  in  agitation  to  proceed  to  conviction  in 
this  manner,    it  was  firil  to  be  confidered  who  was  in 
fault,  whether  the  judge  or  the  jurors  ;   for  which  purpofe 
the  record  was  in  the  iirft  place  to  be  infpecled  :  for  if  the 
judge  ihould  not  have  diligently  made  that  examination 
which  it  was  his  duty  to  do,  he  himfelf  might  have  negli- 
gently left  occafion  of  perjury  to  the  jurors;  and  thus  both 
would  be  in  fault;  perhaps  it  might  lie  with  one  of  them 
only.     By  the  record  it  would  alfo  appear,  whether  the  af- 
fifc  was  taken  in  vioduvi  cjfifa^  or  in  inodum  jurata.     If  ia 
the  former  way,  the  jurors  were  to  try  whether  the  verdict 
was  true  ox  falj'e  :  if  it  was  true,  then  it  remained  in  force ; 
if  falfe,  the  jurors  were  to  be  puniflied  for  their  falfe  fwear- 
ing.  According  to  Bradion,  a  diflinflion  was  made  between 
a  verdicl  that  wzisfu/fum,  and  one  which  was  called /<;//////// • 
as  for  inftance,  if  they  gave  their  verdid^generally,  and  it 
was  not  true,  then  it  was  what  they  properly  calledj^^w,- 
but  if  they  gave  a  reafon  together  with  their  verdi(!i^,  and 
it  was  not  true,  this  was  called  verediBuni  fatuum  ;  being 
only  a  wrong  conclufion  of  the  jurors ;  and  fo  rather  a  falfe 
reafoning,  than  a  falfe  fwearing.     The  judge  might  fome- 

Q  c  7,  times 


372^  H  I  S  T  O  R  Y     O  F     T  H  E 

CHAP.  VI.    times  go  contrary  to  the  verdi£l  of  the  jurors,  when  they 
HE\U<Y  111     ^po^^  ^^^  truth,  and  gave  their  reafon  for  fo  doing.     If,  in 
fuch  cafe,  he  knowingly  deviated  therefrom,  the  fault  lay 
with  him. 

If,  upon  view  of  the  record,  it  appeared  that  the  jurors,, 
having  declared  themfelves  obfcurcly,  had  not  been  pro- 
perly and  diligently  examined  by  him,  or  had  anfwcred  his 
interrogatories  not  fully,  or  doubtfully ;  or  feemed  to  have 
been  mifled  by  fome  miftake  *,  or  to  have  fpoken  the  truth 
only  in  part  *,  in  fuch  cafes,  the  remedy  was  by  certificate, 
and  not  by  conviction ;  the  certificate  being  a  proceeding 
whofe  obje61:  was  to  render  certain  and  true,  that  which 
was  before  dubious,  erroneous,  and  uncertain  :  of  this  wc 
fhall  fay  more  hereafter. 

In-  order  to  the  convi£lion,  as  wc  before  fald,  it  mull 
firft  be  feen  whether  the  aflifc  was  taken  in  modum  ajftfc?^ 
or  //;  modtim  jurat£»  When  the  complainant  or  deman- 
dant propounded  his-  intentioy  and  maintained  all  the  arti- 
cles of  the  writ  \  and  the  tenant  excepted  to  both,  by  de- 
nying them  in  part,  or  in  the  whole ;  the  complainant  was 
thSti  to  prove  them  by  the  affife :  and  as  this  was  in  modum 
ajfifity  a  conviction  would  He.  But  where  the  exception 
was  of  fuch  a  kind,  that,  admitting  both  the  m.atter  of  the 
writ,  and  the  ifitcjitioy  yet  it  deftroyed  the  a6lIon,  as  a  co- 
venant, or  the  like  ;  then  the  aflife  was  taken,  as  has  been 
often  before  mentioned,  in  modum  jurata,  and  the  convic- 
tion would  not  lie.  Yet  if  the  affife  was  taken  in  the  ab- 
fence  of  the  tenant,  and  they  found  fuch  matter  as  would 
have  been  good  fubje£l  of  exception  to  the  a61:ion  ;  as  a  co- 
venant for  inflance,  or  the  like  •,  then  the  affife  being  taken 
in  modum  cijjifj:^  a  conviclion  would  lie  •*. 

A  CONVICTION,  as  we  before  faid,  lay  in  all  alfifes,  ex- 
cept the  great  afiife  ;  and  the  reafon  given  by  Bra£lon  why 
it  did  not  lie  there,  is,  becaufe,  w^hen  the  tenant  had  the 

*  Bract,  288.  b.  2?9,  490. 

choice 


ENGLISH      LAW.  373 

(jholce  between  the  duel  and  the  aflife,  and  he  had  volunta-    chap.  vr. 
rily  betaken  himfelf  to  the  latter,  he  fhould  not  be  allowed    j^^ivj^y  IIL 
to  reje£l  their  determination,  any  more  than  when  a  perfon 
had  chofen  to  put  himfelf  on  a  jury  ^ ;  and  therefore  a  con- 
viction which  was  with  a  view  to  overthrow  and  quefllon 
fuch  determination,  was  denied  in  both  cafes.     However, 
there  was  an  exception  in  favour  of  the  king ;  for  when  a 
jury. had -found  any  thing  againfl  the  king,  Bra6lon  fays,  that 
there  might,  in  fome  cafes,  be  a  conviCtion.    There  was  no 
convi<51ion  for  damages,  but  the  remedy  in  cafe  of  exccflivc 
damages  was  by  certificate.    The  fame  perfons  who  brought 
an  aiTife,  or  againfl:  whom  it  was  brought,  might  have  a 
conviction  *,  and  it  was,  in  general,  to  be  heard  before  the 
judge  who  tried  the  aflife,  he  being  befl  able  to  judge  of  the 
truth  thereof^.    The  authority  to  take  an  aflife  was  thought 
€0  nomine  to  carry  with  it  that  of  taking  convidtions  and 
certificates,  without  which  an  aflife  might  fometimes  not 
i)e  completely  taken  j  therefore  it  was,  that  a  convIClion 
was  tohe ftaiim  et  recenter  after  the  caption  of  the  aflife;  and 
it  could  not  be  had  at  a  difl:ance  of  time  but  by  the  fpeciai 
command  of  the  king-''. 

Tke  writ  of  conviction  was  to  the  following  effeCl  r 
Si  A,  fecerit^  ifc,  tunc  fummorieas^  ^f.  24.  legates  tnilites  de 
vicineto  de  viila^  l5c,  quod  fint  coram  jujlitiariii  nojlris  ad 
primam  ajfijam^  i5c,  recognofcere  fi  ialis^  ^j.  dijfeijivity 
tffc,  as  in  the  writ  of  aflife ;  unde  J,  queritur,  qubd 
juratores  ajjifce  novo:  dijje'ifina  qua  inde  fuw.t'ionita  fuit  <S^ 
€apta  inter  eos  coram  jujiiliariii  nojiris  ultimo  itinerantiiui 
in  comitatu^  ^c.  foljujn  feceruni  facr amentum.  Et  interim 
diligenter  inquiras,  quifucrunt  'uratcrcs  iflius  ajjifa,  et  eos 
habeas  ad  praf.  ajpfam  coram  pra-f.  b'c.  Et  fummoneas 
B.  quod  fit y  Uc.  auditurus  illam  recognitionem^  ^V*. 
Nothing  could  be  objeClcd  agninft   this   inquiry   when  the 

*  yjd.  aut.  335.  2  B:aa.  190.  b.  ''  ItkJ.  191.  '  H^'tJ- 

jury 


374  H  I  S  T  O  R  Y      O  F     T  H  E 

CHAP.  VI.  jury  appeared,  they  were  fworn,  not  as  an  afiTue,  but  as 
HENKy  111.  other  juries:  "  Hear  this,  yejufticcs,  that  I  will  fpeak  of 
"  that  which  you  require  of  me,  on  the  part  of  our  lord 
**  the  king,"  &c.  Then  the  judge  proceeded  to  charge  the 
jurors,  as  in  other  cafes.  The  entry  upon  the  roll  was 
thus:  Jurat  a  viginti  quatnor  ad  convincendum  12  'venit 
recognitura^  ft  A,  injujU  et  fine  judicio^  k3c.  according  to 
the  form  of  the  v/rit  •,  and  then  the  narratio  followed  :  Et 
unde  talis  queritur^  quod  jurat  ores  talis  fijffce  capta  coram 
jujiiiiariis^  izc.  falfum  inde  fecerunt  faa  ainentum^  eo  quod 
dixerunt  quod  prceditius  talis  difjtifivit  talem  inju/le^  ^V. 
and  fo  on  through  the  narratio  and  exceptiouy  if  any*^. 
Upon  this  writ  of  convi6lion  it  may  be  remarked,  as  a 
rcafon  why  it  fhould  not  lie,  when  the  aflife  was  taken  in 
modum  jurats ^  that  the  form  of  the  original  writ  in  the  aflife 
was  fo  inferted,  as  to  confine  the  enquiry  to  the  articles  of 
that  writ' ;  whereas  the  point  tried  by  the  aiTife  iji  mcdiim 
juratce  was,  generally,  fomething  collateral  to  the  v/rit, 
which  arofe  upon  the  pleading. 

As  thefe  twenty- four  could  not  be  convidled  if  they  fpoke 
falfely,  and  as  the  confequences  of  a  conviction  would  be 
very  penal  to  the  twelve ;  great  care  was  taken  to  examine 
the  jurors  diligently  as  to  all  the  circumftances  upon  which 
they  meant  to  proceed.  If  there  was  a  difference  of  opinion 
amongft  them,  they  might  be  afforced  like  the  aflife.  If 
they  were  flill  doubtful,  or  declared  plainly  that  they  knew 
nothing  of  the  matter,  things  were  left  to  remain  as  they 
were.  If  they  confirmed  what  the  twelve  had  done,  the 
judgment  was  entered  thus:  Confideratum  f/7,  quod  iijnra- 
iores  bene  juraverunty  et  quod  tenens  remaneat  in  feijind^  et 
qiicrens  cufiodiatur,  to  be  redeemed  by  fome  heavy  pecuniary 
penalty.  If  they  found  againft  them,  the  entry  was,  Co//- 
fideratum  efi^  quod  pradi^i  12  juratores  male  juravcrint, 

*■  BracV.  29a,  *  Ibid.  191.  b. 

et 


ENGLISH      L  A  V.^  j75 

tt  quod  querc?7S  recuperet  feifitiam  fu am ^  et  tile  teneris  in  CHAP.  VI. 
mifericordid^  et juratores  (if  they  were  prefent)  cujlodlantury  hj-nry  111. 
if  not  capiantur.  If  the  twelve  had  not  been  unanimous 
in  their  verdi£^,  the  twenty-four  might  convict  thofe  who 
were  on  the  wrong  fide,  and  acquit  the  others '.  After 
the  verdidl  of  the  twenty-four,  there  ifTued  writs  of 
execution,  either  to  confirm  the  former  feifm,  or  to 
alter  it'". 

The  punidiment  of  the  convi£led  jurors,  though  in 
fubftance  the  fame,  is  more  particularly  ftated  by  Bratflon 
than  by  Glanville ".  They  were  to  be  thrown  into  prifon^ 
their  lands  and  goods  were  to  be  taken  into  the  king's 
hands,  till  they  were  ranfomed  at  the  king's  pleafure ;  they 
were  to  be  branded  with  perpetual  infamy ;  to  lofe  the 
legem  terra y  fo  as  never  more  to  be  received  as  jurors 
(being,  as  they  then  called  it,  no  longer  othefivorth),  nor 
witnefles.  A  difference  was  made  between  the  offence  of 
jurors  j  for  thofe  who  iwoxt  fa  ho  vifu,  not  having  made 
it ;  thofe  who  were  added  to  the  affife  at  the  time  of  taking 
it,  who  could  not  poffibly  have  made  it ;  thofe  who,  foon 
after  the  taking  of  the  affifc,  had  fignified  a  wifli  to  amend 
what  they  had  done,  and  put  themfelves  on  the  king's  mer- 
cy"; all  fuch  were  not  to  be  branded  with  infamy,  though 
they  were  to  fuffer  the  other  part  of  the  judgment. 

This  was  the  manner  of  proceeding,  if  there  was  no 
exception  offered  to  the  convi£lIon.  The  exceptions  that 
might  be  offered  were  many.  One  was,  if  the  perfon  who 
recovered  in  the  affife  had  not  had  feifin  according  to  the 
verdicl ;  another  was,  if  the  perfon  ferving  the  convi«£lioa 
had  made  a  diffelCn  of  the  identical  land  in  quei'llon.  It 
feems,  that  a  conviction  was  often  profccuted  not  out  of 
any  hopes  of  convicting  the  twelve,  and  recovering  feifin, 

'>    Bra£>.  291.  b.  *   Vld.  ant.  131. 

t"   Ibul.  z^2.  b.  193.  •  Bra^.  29*.  b. 

but 


HISTORY      OF      r  H  E 

but  merely  to  extinguifh,  or  at  leaft  defer  payment  of,  the 
mifericordia  due  In  the  alfifeP. 

Having  faid  thus  much  of  co?iviBicfis,  it  remains  to 
Of  certihcatej.  fliew  what  was  the  nature  of  a  certijicate  -,  which  was  the 
other  method  of  re-confidering  the  decifion  of  the  jurors  in 
aflire,  and  which  was  fomctimes  an  introdu6lion  to  the  for- 
mer. The  writ  to  fummon  jurors  ad  ccrUficandum  was  of 
the  following  import :  Pracipimiis  tihiy  quod  habeas  coram 
jujiitiariis^  i^c.  corpora  A.  B,  C.  i5c.  reco^enitorum  novcs  dif- 
jeifina  jutnnion'itjey  etcaptce coram^  i^c,  j^certificandum 
prtsfatos  jujiiilarios  noftros^  isc.  defacramento  quod  indefe-, 
cerunt,  Ei  interim  prcediSium  ttnementum  in  manum  nojirum 
cape^  ^c.  Pracipimus  etiam  quod  habeas^  l^c.  corpus 
talis  ad  audlendum  inde  confiderationem  curi^^  i^fc^  A  cer- 
tificate was  fometimes  had  in  order  the  better  to  underftand 
the  record  in  alhfe  ;  and  after  that,  it  might  be  thought 
proper  to  refort  to  a  convi6tion.  If  the  twenty-four  were 
doubtful  or  obfcure  in  delivering  their  verdift,  there  might 
alfo,  after  all,  be  a  certificate  of  their  record '^.  A  convic- 
tion might  be  brought  by  the  heir,  if  the  anceflor  died  after 
the  caption  of  the  affife  "■. 

We  have  before  taken  notice  of  the  lenity  fliewn  to  fuch 
jurors  as  widied  to  amend  the  falfe  verdicSl:  they  had  once 
given.  This  had  the  ciTeO:  of  taking  off  fome  of  the  con- 
fequence  of  their  perjury.  To  this  it  may  be  added,  that 
the  jurors,  of  right,  might  change  their  verditl  before 
judgment  was  given  j  but  afterwards,  the  only  remedy  was 
to  proceed  againfl;  them  in  a  convidlion  *. 

Of  diifercat  As  wc  havc  now  done  with  affifes,  and  arc  proceeding  to 

fuch  actions  as  were  triable  by  jury,  and  otherwife;  it  may 
be  proper,  before  we  enter  upon  this  part  of  our  fubje£t,  to 
fay  a  few  words  on  the  different  trials  now  in  ufe ;  which, 
though  apparently  very  fimilar,  were  foeflentiallydiilinguifli- 

P  Bra£^.  t^z.  b.    «»  Ibid.  493.  b.  194.    '  Ibid.     »  Ibid.  196. 

ed. 


Iriak. 


ENGLISH      LAW. 


377 


HENRY  III. 


cdj  as  to  make  it  necefTary  to  attend  to  each  of  them  with    CHAP.  VI. 
accuracy. 

It  muft  be  obfervcd,  that  there  were  ajjifes,  of  which 
enough  has  already  been  [dXA-.,  juries ;  ifiqujfitionsyox enquefis; 
and  purgations  ;  as  when  a  crime  was  imputed  to  any  one» 
a  purgation  amounted  to  a  proof  of  his  innocence.     Be- 
fides  thefe,  fays  Bra£lon,  there  was  a  defence  or  denial 
oppofed  to  a  prefumption  raifed,  \vhich  depended  neither 
on  a  jury,  nor  an  inquifition,  nor  a  purgation  ;  but  it  was 
when  a  perfon  averred  fomething,  et  iiide  producit  feciam  ; 
upon  which  there  followed  a  defence  contra  feElaiUy  or  a 
quafi-'^xooi  oppofed  to  the  prefumption  raifed  by  the  fe5la» 
Such  defence  againfl  a  Jecla  was  called   a  defence  per 
legem;    and  confifted  fometimes  of  a  greater  number  of 
perfons,  and  fometimes  of  lefs,  in  different  cafes.      We 
have  before  feen  the  regulation  which  had  been  made  by 
Magna  Charta  upon  this  head  *.     What  was  the  nature 
of  this  Jeclay   and  of   this    defence  or   denial,   with  the 
inftances  in  which  they  were  both  recurred  to,  will  be  feen 
more  particularly  in  the  fequel  t.     For  the  prefent,  let  it 
fulBce  to  fay,  that  in  all  cafes  of  obligations,  contracts,  and 
ftipulatlons,  arihng  from  the  voluntary  confent  and  engage- 
ments of  men,  as  in  covenants,  promifcs,  gifts,  fales,  and 
the  like,  where  a  JeEla  was  produced,  which,  upon  exami- 
nation, induced  a  prefumption  only,  he  againfl:  whom  the 
<;omplaint  was  made,  might  defend  \\\TCi{t\.i per  legem;  that 
is,  he  might  produce  double  the  number  of  perfons  which 
had  been  in  xX^z  fcEla^  to  fvvear  for  him  :  for  when  they  ex- 
ceeded the  fecla  in  number,  they  induced  a  fl:rongcr  prefump- 
xion  \  and  the  ftronger  prefumption  ^always  overbalanced 
the  lefs.     But  if  rlie  complainant  had  a  proof  (for  it  muft 
be  obferved,  that  the  fecia  was  only  a  prefumption,  not  a 
proof),  as  indruments  and  fealed  charters,  there  could  be  no 
«]efence/>fr  legem  oppofed  to  fuch  proofs.   If,  therefore,  the 

•  Vid.  ant.  248.  '   Braft.  zjo.  b. 

iuftrument 


37S 


HISTORY      OF     THE 


HENRY  III. 


Dower  uuje 
Mil. 


CHAP.  VI  inftrument  was  denied,  the  credit  of  it  was  to  be  proved  per 
patriamy  et  per  tefies  ;  it  being  a  common  iflue  for  a  per- 
fon  to  put  hiTCiioMfuper  pntriam,  et  tejles  in  carta  nominatos  ". 
Again,  a  perfon  was  not  allowed  this  defence  ^^r  legem  in 
cafes  of  evident  and  notorious  trefpafs. 

We  fhall  now  begin  to  fpeak  of  fuch  a£lion$  as  were 
triable  in  one  or  other  of  thefe  ways.  The  action  of  dower 
unde  nihil  hahety  and  the  writ  de  reElo  of  dower,  were  the 
two  remedies  ftill  in  ufe  to  recover  dower,  and  feem  to  be 
confidered  by  BracClon  exactly  in  the  fame  light  in  which 
they  are  placed  by  Glanville.  The  method  of  conducting 
them  is  more  minutely  defcribed  by  Bra£lon,  who  alfo 
makes  obfervations  concerning  them,  which  are  well  worthy 
of  notice. 

The  writ  unde  nihil  was  faid  to  be  brought  in  the  king's 
court  originally,  and  there  only,  becaufe,  (liould  a  queftion 
arife,  whether  the  demandant  was  lawfully  married,  no  one 
could  write  to  the  bifliop  to  try  the  marriage,  but  the  king 
or  his  juftices.  The  writ  unde  nihil  was  at  this  time  made 
returnable,  fometimes  coram  jujliiiariis  nojlris  apud  Wejl- 
monnjltrium  \  fometimes  coram  jujlitiariis  nojlris  ad priviam 
ajftfainy  cum  in  partes  illas  -venerint  ^.  If  the  party  fum- 
moned  did  not  come  at  the  appointed  day,  nor  cflbin  himfelf, 
the  land  was  taken  into  the  king's  hands,  as  in  defaults  in  a 
writ  of  right ;  and  if  he  effoined  himfelf  at  the  firft  day,  and, 
another  being  appointed,  he  made  default,  then  alfo  his  land 
was  taken  :  fo  that,  in  both  cafes,  whether  the  default  was 
before  appearance  or  after,  the  woman  recovered  her  dower 
by  default,  either  by  the  magnum  cape  ox  parvum  cape  y. 

When  the  parties  appeared  in  court,  the  widow  was  to 
propound  her  intentio,  in  perfon,  or  by  attorney,  to  this 
effeCl :   Hoc  vobis  cjlendit  B.  qu£  fuit  uxor  C.   ^c.   recit- 


«  Bra£V.  315.  b.  the   magnum  and   parvum    cape   '<n\\\ 

X   Ibid.  296.  b.  be  explained  whrn  wc  come  to  Ipeak 

y  Ibid.     The  iliftin^liou  between     more  particularly  of  procclV. 


mg 


E  N  G  L  I  S  H      L  A  W.  379 

ing  her  title  to  dower,  in  purfuance  of  the  words  of  the  CHAP.  vi. 
writ,  concluding  it  thus:  Et  fi  hoc  cognofcere  voluerity  hoc  iJ£MRY'*in 
gratmn  erit  ei ;  etfi  noiiy  hahet  fufficuntem  difi'ationationem  ; 
or,  what  was  the  fame,  and  indeed  the  more  common  form, 
et  ifide  prodiicit  feclam  fujicientem.  When  the  demandant 
had  thus  exhibited  her  inteniio,  the  tenant  might  demand  a 
view,  by  faying,  Peio  injum  ;  and  after  ^he  eflbins  and  de- 
lays attending  that,  he  might  vouch  to  warranty,  or  anfwer 
in  perfon,  as  he  pleafed ''-. 

If  the  tenant  had  no  exception  to  the  writ,  then  he  might, 
in  the  next  place,  call  upon  the  demandant  to  produce  her 
warrantor,  as  was  the  practice  in  Glanville's  time;  it  being 
a  rule,  that  no  one  fliould  anfwer  a  woman  concerning  her 
dower,  unlefs  flie  brought  her  warrantor  to  flievi^  what 
right  he  had  to  the  other  two  parts;  and  again,  that  no  wo- 
man fliould  anfwer  without  her  warrantor.  And  therefore 
it  thould  feem,  fays  Bra61:on,  that  as  the  fon  of  a  felon  could 
have  no  right  in  the  two  parts,  the  widow  of  fuch  felon 
could  not  make  out  her  claim  to  dower  in  the  other  third ; 
nor  could  {he  come  upon  the  chief  lord,  who  held  It  as  an 
cfcheat,  pro  dcfeclu  h^redis ;  which  was  not  the  cafe  where 
he  took  the  efcheat  on  account  of  the  laft  pofleflbr  being  a 
ballard,  and  fo  not  having  any  heirs,  for  then  he  came  itJ, 
as  to  the  purpofe  of  dower,  loco  haredis ;  and  the  widow 
could  claim  her  dower  againft  him.  The  fame  might  be 
faid  of  an  aihgnee  of  the  fee,  who  being  ;;/  loco  haredis, 
dower  might  be  claimed  againft  him*. 

After  this  the  tenant  might  vouch  his  warrantor;  and 
if  he  did  fo,  and  the  warrantor  did  not  appear  to  the  writ 
oifum.  ad  ivarrafii.  nor  eilbin  himfelf,  fo  much  of  his  land 
was  taken  as  was  equivalent  to  the  third  part,  by  a  cape  ,- 
and  if  he  did  appear  after  this  diftrcfs  (for  it  was  no  more), 
the  widow  recovered  her  fcifm  of  that,  and  he  had  his  reme- 
dy againft  the  warrantor,  whom  he  vouched  ^. 

'  Bratt.  297.  *  Ibid.  157.  b.  'i  Ibid.  259.  b,  300. 

I* 


HISTORY     OF     THE 

If  no  warrantor  was  vouched,  and  the  tenant  meant  to 
2nfwer  to  the  a6lion  himfelf,  he  might  advance  by  way  of 
exception  to  the  a£lion,  fuch  matter  as  would  entirely  de- 
feat the  claim  of  dower.  One  great  exception  to  this 
action  was,  that  tlie  demandant  and  deceafed  were  not 
le'^itimo  matrimonio  copula ta,  or  ne  unque  accouples  in  loyal 
Tnntrhnon'ie^  as  it  was  afterwards  called.  In  this  -cafe,  a 
writ  iflued  to  the  bifhop,  commanding  him  to  try  fuch 
queftion,  as  a  matter  properly  belonging  to  his  cognizance. 
Upon  this,  the  bifhop  fummoned  the  tenant  to  appear,  and 
then  proceeded  to  hear  the  witnefles  produced  by  the  widow 
and  him  *,  and  fo  making  an  inquifition  in  a  fummary  way, 
he  reported  whether  the  marriage  was  lawful  or  not. 
When  it  appeared  to  the  king  or  his  juftices,  by  the  bifhop's 
letters,  that  the  marriage  was  good,  then  there  iiTued,  at 
the  inftance  of  the  demandant,  a  re-fummons  to  the  tenant"^. 
If  he  made  default,  his  land  was  taken  by  a  parvum  cape  ; 
to  which  if  he  made  no  appearance,  feifin  of  dower  was 
adjudged  to  the  demandant. 

If  the  tenant  admitted  that  the  demandant  was  efpoufcd, 
but  pleaded  that  flie  v/as  not  endowed  ;  or,  that  {he  was  ef- 
poufed  and  endowed,  but  not  ad  ojlium  eccleftcz  ;  fuch  iiTues 
were  to  be  tried  in  the  king's  court,  and  not  in  foro  ecclefiaf- 
tico  ;  for  it  would  have  been  as  improper  to  tranfmit  thefc 
to  the  ecclefiaftical  judge  to  be  tried,  as  the  fpecial  iiTue, 
whether  a  perfon  born  before  mai-riage  was  legitimate.  In 
this  cafe,  therefore,  a  writ  of  enquiry  went  to  the  flieriiF 
to  make  inquifition  of  the  inQl  in  plena  comiiatu  ^ :  for  tho* 
the  marriage  was,  in  fuch  cafe,  good,  as  far  as  concerned 
the  legitimacy  of  the  iiTue,  it  was  not,  fo  as  to  give  title  to 
dower «. 

Suppose  all  the  above  circumflances  were  admitted,  and 
the  tenant  faid  that  the  dower  was  given  in  a  different  man- 
ner than  flated  in  the  intentio  of  the  demandant ;  as  that 

'  Bia£l.  302.  303.  ^  Ibid.  303.  b.  •  Ibid.  304. 

it 


E  N  G  L  I  S  H      L  A  W.  3$i 

it  was  not  given  in  any  particular  land  by  name,  but  only  CHAP.  vr. 
the  third  part  generally  5  how  was  this  to  be  proved  ?  In  ^^j^j^ y  in 
the  firll  place,  it  became  the  widow  to  prove  her  intentio^ 
and  what  fhe  had  there  averred,  per  audlentes  et  videntes^ 
who  were  prefent  at  the  efpoufals,  and  who  were  ready  to 
confirm  by  oath  what  (he  faid.  If  thefe  were  examined, 
and  they  agreed  in  what  they  faid,  this  proof  was  abided  by, 
unlefs  the  tenant  had  fome  (Ironger  evidence  to  prove  the 
contrary.  Suppofe  th^  widow  had  no  proof,  nor  fufficient 
JeEla^  nor  even  an  inftrument  to  fupport  what  (he  had  de- 
clared ;  then  judgment  was  to  be  for  the  tenant,  though 
he  had  neither  proof  nor  prefumption  for  him,  becaufe  he 
was  already  in  poflefTion  :  yet  if  the  widow  had  a  fufficient 
JeEla^  and  the  tenant  only  his  own  voice,  he  was  not  to  be 
heard,  though  he  was  ready  to  put  himfelf  y/z/^r  patriamy 
but  the  widow  immediately  recovered  by  force  cf  the 
Jecla. 

Again,  if  the  witnefles  (that  is,  'Ci\Q,feBa)  were  produc- 
ed on  both  fides,  and  thofe  on  one  fide  declared  their 
ignorance  of  the  matter,  while  the  others  maintained  the 
point  for  which  they  were  produced ;  judgment  was  given 
for  that  fide,  as  the  one  where  the  truth  of  the  matter  lay. 
It  was  indifpenfably  neceflary,  that  the  widow  fliould  pro- 
duce a  fecla^  or  her  demand  would  be  totally  void  ;  and  if 
the  witnefTes  produced  proved  nothing,  or  acknowledged 
that  they  were  not  prefent  at  the  efpoufals,  or  knew  no- 
thing of  the  dower  or  endowment,  then  the  claim  was  lofi: 
for  want  of  proof,  and  judgment  was  for  the  tenant,  qiibd 
quietus  recedat. 

If  neither  fide  had  any  proof,  nor  could  raife  a  prefump- 
tion by  Tifecldy  and  both,  in  the  words  of  Bradon,  de  veritatr 
poiiunt fe  SUPER  PATRIAM,  pro  defeElu  feEl^y  vel  alterjtii 
probationisy  quam    ad   manum  non  hahueruit ;    then   there 

ilT'ued 


3S2  H  I  S  T  O  R  Y     O  F     T  H  E 

CHAP.  vf.  iflucd  a  writ  of  venire  faciai  to  the  {lieriff  in  this  form  ^  i 
hjrpC**Trr  iam  ex  ipjis.,  quam  ex  aliis  de  proximo  vicineto^  i^c.  ventre 
facias  coratn  jujiitiar'tis,  ^c,  duodec'un  liheros^  i^c,  ad 
recognofcendum^  i^c.  fiprjcdi^ui  A,  die  quo  ipjam  B.  defpon- 
favity  dotavit  ecnn  nominatim  de  tali  manerio^  i^c.  velfi  do- 
tavii  earn  de  tertid  parte  omnium  terrarum^  i^c.  ut  idem  D. 
dieit,  quia  tarn  pradiili  B.  qudm  procdi^ius  D.  pofueruntfe, 
^c  ^.  It  may  be  here  obferved,  that  the  iflue,  whether 
endowed  ad  o/Iium  ecclefiay  was  tried  on  a  writ  of  inquiry 
before  the  fheriff  in  pleno  comitatu ;  but  the  ifTue,  whether 
fpecial  or  general  endowment,  was  to  be  tried  before  the 
juftices  at  Weftminfter ;  as  was  alfo  the  iflue,  whether 
endowed  ex  ajfcnfu  patrisy  or  not  ^.  i\gain,  the  iflues., 
whether  the  hufband  was  (o  feifed  as  to  be  able  to  endow', 
and  whether  the  widow  had  received  any  part  of  her  dow- 
er '',  were  tried  on  a  writ  of  inquiry  before  the  fheriff.  The 
reafon  of  thefe  diftin£lions  is  not  eafily  difcovered ;  and 
perhaps  either  of  fuch  writs  were  had  at  the  election  of 
the  parties.  The  eIe6lion  of  the  parties  feems  to  have  di- 
recled  not  only  in  thefe  cafes,  but  alfo  in  the  return  of  ori- 
ginal writs,  which,  we  have  fecn,  were  fometimes  corajn. 
juftitiariis  at  Weilminflcr,  and  fometimes  ad  primam  af- 
fifam^  without  any  apparent  reafon  for  fuch  a  variety. 
They  were  fometimes  made  in  the  alternative,  and  were  re- 
turnable at  Weftminfter,  nisi  jujlitiarii  prius  venerint 
ad  ajjifam,  t^c. 

In  confequence  of  the  ftatute  of  Merton  \  widows  were 
to  recover  damages  j  and  therefore,  when  they  were  to  be 
put  into  pofleiTion,  the  writ  of  feifm  had  one  of  the  follow- 
ing claufes  infcrtcd  therein.  AktrfeJfitinm  habere  faciax^ 
they  added,  et  Jnntliter  ei  fine  dilationc  habere  facias  tot 
marcas  qu£  ei  in  eddejn  curia  nojird  adjiidicatde  funt  pro  dam- 

♦  Braa.  304,  '  Ibici.  309- 

2   Ibui.  ^   Il^i^-  3'2- 

^  lbi«1.  305.  b,  '  Ch.  I.   Vid.  ant.  26:. 

nis 


E  N  G  L  I  S  H      L  A  W.  383 

nis  fuisy  qucs  habuit  pro  injujia  detenthne^  quam  pradi^us    CHAP.   Vf. 
ei  fecit  de  pradidld  terra ^   et  dote  fud  \  or  in  this  way,  et    henrY  II! 
de  t  err  is  et  catallis  pradi^i  B,  fieri  facias  tot  denarios^   et 
illos  Jine  dilatione  haheri  facias^  ^c. 

Thus  far  of  the  writ  of  dower  unde  nihlly  Isfc,  com-  ^Y•■it  of  right 
monly  called  the  writ  of  doiuer.  If  a  perfon  did  not  reco- 
ver by  this  writ  all  (he  was  intitled  to  for  dower,  recourfe 
was  then  to  be  had  to  the  writ  of  right  of  dower  ;  which 
was  a  writ  clofey  as  they  called  it,  becaufe  directed  to  the 
warrantor  of  the  widow  where  the  plea  was  to  be  heard ; 
where  it  remained  till  that  court  was  proved  de  re  Bo  defeciffe\ 
when  it  might  be  removed  into  the  county  court,  and  fo 
to  the  fuperior  court,  as  other  writs  of  right. 

The  intentio  upon  this  writ  was  different  in  the  two 
cafes,  of  the  widow  having  never  been  in  feifm  of  the  land 
in  queftion,  and  of  having  been  dilTeifed  by  the  tenant. 
The  conclufion  in  the  former  cafe  was,  et  unde  ideniy  i^c» 
fuit  feifttus^  ^c,  ita  quod  me  inde  dotare  potuit.  Et  ft  hoc 
vellet  cognofcere^  i^c.  as  before  in  the  writ  of  unde  n'hiL 
Et  ft  noluerity  haheo  jujfi.ieniem  fcoiam.  In  the  latter  the 
conclufion  was,  talis  vie  inju/ic  et  fine  judicio  diffeifivit^ 
et  quod  ita  fui  tnde  dot  at  a,  et  jeifita  habeo  fuffjcientem  difra- 
tionatione?n^  vidclicety  talem  fe£fam^  et  talem.  Thus  this 
differed  from  the  common  writ  of  right,  which  concluded 
by  offering  to  deraign  the  matter  per  corpus  talis  hominis* 
Indeed,  it  widely  differed  from  that  writ  in  both  the  above 
inftances  in  which  it  was  applied ;  a  writ  of  right  of  dow- 
er was  for  the  recovery  of  a  life  eftate ;  and  the  latter  form 
of  it  was  grounded  upon  a  diffeifin  in  the  very  words  of 
the  writ  of  novel  difTeifm  ;  and  accordingly,  in  this  a£lion 
there  was  neither  the  great  afTife  nor  the  duel,  nor,  confe- 
quently,  the  efToin  de  malo  lecli  5  all  which  were  only  in  the 
proper  writ  of  right. 

When  the  intentio  was  thus  dated,  and  the  tenant  did 
not  chufe  to  call  3  warrantor,  he  might  except  to  the  aclion 

in 


384  HISTORY     OF     THE 

CHAP.  Vf.  in  various  ways,  and  conclude  his  exception  by  et  inde  pro^ 
HENRY  in  ^^'^'^  feBaniy  if  he  had  any ;  and,  if  there  was  occafion,^ 
\y^  ponit  fe  fuper  patriam  ;  in  which  lafl  cafe  the  truth  would 
be  enquired  of  by  the  country.  When  recourfe  was  thus 
bad  to  the  country,  in  a  plea  depending  in  the  county-court, 
by  the  tenant  putting  himfelf  on  the  inqueft,  and  the  de- 
mandant fo  like  wife,  Bradlon  fays,  fome  might  doubt, 
whether  that  court  had  power  to  proceed  to  take  the  in- 
queft, without  fome  fpecial  authority ;  but  he  thinks  the 
{heriff  had  that  and  every  other  authority  by  force  of  the 
words  in  the  original  writ,  «///,  l^c.  hoc  fecerity  tunc  vice- 
comes  hoc  faciat^  Id'c.  and  as  in  other  writs  of  right  he 
might  proceed  to  take  the  duel,  and  in  writs  of  jujliciesy 
to  try  by  jury,  fo  he  might  take  the  inqueft  in  this  writ"". 
The  reafon  of  the  above  doubt  does  not  feem  eafy  to  be  ac- 
counted for. 

In  Glanville  there  is  no  mention  of  admeafurement  of 
dower,  but  where  the  land  all  lay  in  one  county.  It  had 
now  become  the  pradice,  where  the  land  lay  in  feveral 
counties,  for  the  admeafurement  to  proceed  in  the  king's 
court  •,  and  for  all  the  lands  to  be  extended  and  valued,  as 
well  the  two-thirds  as  the  third  claimed  in  dower,  and  for 
fuch  extent  and  valuation  to  be  tranfmitted  to  the  juftices. 
Where  the  land  lay  only  in  one  county,  the  old  writ  was  di- 
rected to  the  flieriff;  upon  which  there  was  the  procefs  of 
'  capey  in  cafe  of  default;  and  the  complainant  ftated  his 

intentio,  with  an  inde  producit  feEfam  ;  to  which  there  were 
exceptions,  and  the  matter  was  at  length  tried  as  in  other 
a£iions  ". 

As  a  woman  had  not,  what  they  called,  the  proprietaSy 
but  only  the  ufe  and  enjoyment  of  the  land  for  her  life,  flic 
was  not  to  commit  wafte,  deftru6lion,  or  exile  upon  the 
freehold ;  and  therefore,  in  taking  fuch  reafonable  eftover  as 
was  allowed  her  in  the  woods,  for  the  purpofes  of  building, 

^  Bradl,  313.  b.  ■   Ibi.1.  314,  315, 

firing, 


O:-  Wallc. 


ENGLISH      LAW. 

firine,  and  inclofure,  fhe  was  to  be  careful  not  to  exceed 
fuch  liberty :  and  if  fhe  did  not  liften  to  the  remonflrance 
of  the  heir,  or  perfon  who  had  right,  there  might  iffue  a 
writ  o^  quod  71071  per7mttat  to  the  IherifF;  being  a  fort  of 
injun6lion,  or  prohibition,  not  to  permit  x}['.z  widow  quod 
facuit  vajtuyji  de  terrls  quas  tenet  in  dote^  iz' c,  ad  exhesre- 
dationem  ipftus\  l^fc.  And  if  ihe  did  not  obey  the  injunc- 
tion communicated  to  her  by  the  iheriff,  (lie  was  attached 
by  a  writ :  Pone  per  vadium  et  falvos  plegios^  bV.  quod  fit 
£6ra7n  nobis  vel  jujlitiariis  nojirisn,  "d'c.  ojienfura  q-uare  fecit 
vajiutny  td'c,  contra  prohibitionem  nojiram^  i^c.  And  if 
{he  did  not  appear  at  the  day,  the  regular  procefs  of  attach- 
ment would  iffue,  with  a  permiilion,  if  (lie  pleafed,  to 
have  one  eflbin  de  malo  veniendi  after  the  firft  attachment ; 
after  which,  and  the  appearance  of  both  parties,  the  com- 
plainant ftated  his  i7ite7vtio^  the  fame  as  in  other  adlions. 
Talis  querilur^  ut  amicus  talis^  quod  cum  talis  muUei-  tcneat 
in  villd^  tffc.  taniam  t  err  am  nomine  dotisy  tale  fecit  va/lum^ 
et  talem  dejlruilionem^  is'c,  hofcwn  et  fervos  vendidit,  gar- 
dinum  exiirpavit,  t5'c.  ad  exh<sredatio7iem  talis  haredis  ad 
valentiam  tanti^  et  inde  prcducit  feSfam,  &c.  This  was 
the  nature  of  the  inteTitio.  To  this  the  widow  might  an- 
fwer  as  follows :  £t  talis  muUer  venit,  et  dcfendit  vafiuin^ 
venditionem^  et  exilium  contra  talem^  et  fedfam  fuam :  et 
quod  nihil  inde  vendidit^  nee  aliquid  tale  fecit  ad  exhareda- 
tionem  tali:  haredis^  ^c.  She  might  acknowledge,  quid 
danus  uetujlate  cerruerit^  ^\.  tlxiA  fi  de  bojco  cepit  aliquid, 
noti  cepit  ibi  nifi  raticnabile  efioverium^  \2fc,  and  then  con- 
clude, et  quod  nihil  ampllus  cepit^  ncc  alio  modo^  ponit  fe 
fuper  pairiatn  :  for  (he  could  not  defend  herfclf  per  legem, 
fays  Bra£lon,  becaufe  when  an  injury  was  done  to  any  cor- 
poreal thing,  which  was  manifeft  to  the  view  of  every  body, 
a  perfon  was  not  permitted  to  deny  it  in  that  way,  left  the 
oath  of  his  fetJa  might  go  to  prove  the  contrary  of  that 
which  was  evident  to  every  body's  fjnfes;  and  therefore  he 
recommends,  that  in  this  aiT^Ion  there  ihoulJ  always  be  a 
Vol.  I.  Dd  regular 


386  H  I  S  T  O  R  Y      O  F      T  H  E 

CHAP,  VI.    regular  view ;  and  then  the  damage  alfo  might  be  afcer- 

liLS'KY  HI     tained  with  fome  exaftnefs". 

If  a  woman  was  convi6lcd,  by  verdicSt,  of  making  wade 
and  dcilru^lion  in  woods,  the  penalty  to  be  ii.flicled  on  her 
was,  that  flie  fl^ould  in  future  be  fo  reflrained,  as  not  to  be 
permitted  to  take  even  her  reafon^ible  ellover  but  by  the 
view  of  the  forefters  of  the  heir  :  ar.d  in  fome  cafes,  the 
court  would  appoint  a  foreder ;  for  which  purpofe  a  writ 
had  been  framed,  and  is  to  be  feen  in  Bracton  f. 

Waste  might  be  committed,  not  only  by  a  tenant  in 
dower,  but  by  a  tenant  for  life,  and  by  a  guardian.  If  a 
tenant  for  life  exceeded  the  meafure  prefcribed  to  a  reafona- 
ble  eftover,  he  went  beyond  what  he  was  entitled  to;  and 
fo  far  encroached  upon  the  proprietas ;  and  was,  therefore, 
guilty  of  wafte,  unlefs  the  wafte  was  too  fmall  to  be  worth 
an  inquifition.  Of  what  magnitude  it  ought  to  be,  to  be- 
come an  obje£l  of  judicial  enquiry,  depended,  fays  Bra£lon, 
upon  the  cuflom  of  particular  places'^.  A  guardian  coqi- 
mlttlng  wafle  was  to  lofe  the  cuftody  of  the  land*,  to  make 
amends  in  damages,  and  be  ifi  m'ljericordid  regis ;  which 
was  different  from  the  penalty  on  a  tenant  in  dower.  In 
cafe  of  wafte  by  a  guardian,  they  proceeded  as  before  dated 
of  wade  committed  by  a  tenant  in  dower ;  by  a  writ  o£ 
(liibd  tioti  pcrmiltat ;   and  after  that  by  attachment "". 

Of  thefe  terms,  waj}ey  deftruclion  and  ex'ilc^  the  two 
fxrd  fignlfied  the  fame  thing;  but  exilium  meant  fomc- 
thlng  of  a  more  enormous  nature ;  as  fpoiling  the  capital 
meiTuage ;  prodrating  or  felling  houfes  ;  prodrating  and 
extirpating  trees  in  an  orchard,  or  avenue,  or  aliout  any 
houfe  :  all  thefe  were  confidered,  fays  Brafton,  ad  maxi^ 
mam  defonnitafeni ;  and  as  they  either  drove  the  inhabi- 
tants away,  or  had  a  tendency  fo  to  do,  they  were  called 
exiliiwi\ 

"  Bra<rV.  315.  b.  316.  *   Vi<i.  ant.  236, 

1*  Ibid.  '  Brad.  317. 

*  Ibid.  316.  b.  »  Ibid.  316.  b. 

Ik 


ENGLISH      LAY/.  387 

If  the  heir  aliened  the  two-thirds  of  the  land,  and  at-    TH  ap.  vi. 
torned  the  fervice  of  the  dowrefs  ;   and  if  he  afterwards,     henry  III. 
on  the  death  of  the  tenant  in  dower,   intruded  himfelf,   or 
if  any  ftranger  did  fo,  the  vendee  might  have  a  writ  of  en- 
try, grounded  upon  fuch  intrufion''. 

We  fhall  now  treat  more  fully  of  \\-rits  of  entry,  which  of  writ?;  of 
have  been  fo  often  alluded  to  in  the  foregoing  pages.  As  ^^^^^' 
queflions  of  poiTeflion  were  determined  by  aflifes  and  recog- 
nitions, queflions  de  proprietate  were  decided,  fays  Brac- 
ton,  in  writs  of  entry  by  a  jiiryy  upon  the  teftimony  and 
proof  of  thofe  who  could  prove  the  cafe  de  vifu  fuo  proprto  et 
aud'itu.  This  was,  where  any  one  claimed  his  own  proper 
feifin,  or  that  of  his  anceftor,  which  feifm  he  had  demifed 
to  fome  one  for  term  of  years,  or  for  life,  and  which,  of 
courfe,  after  that  term,  fliculd  revert  to  him  •,  in  which 
cafe,  he  could  not  have  an  afhfe  of  novel  dilfeifin  to  recover 
it,  becaufe  he  had  not  fuffered  a  difleinn ;  nor  an  affife  of 
mortaunceftor,  becaufe,  if  the  term  had  been  for  life,  the 
anceftor  could  not  be  faid  to  have  died  feifcd  in  his  demcfne 
as  of  fee,  while  another  ^ad  the  freehold  ;  thd'  indeed  he 
might,  if  the  term  "had  only  been  for  years. 

And  this  a^^ion  lay  not  only  againft  the  perfon  himfelf 
who  had  the  term,  but  againft  all  thofe  who  had  an  entry 
within  the  degrees  an^l  the  lime  limited  to  this  aclion.  Th*^ 
action  was  allowed  within  the  third  degree  of  kindred,  and 
within  fuch  time  as  could  l'>e  teftified  de  proptio  vifu  H  du' 
dJtu.  It  held  not  only  in  the  above  cafe,  but  where  a  per- 
Ibn  had  his  eivtry /»^r  ^////w,  who  was  ferfcd  in  right' of 
fome  other,  and  fo  aliened  ;  as  where  a  canon  aliened  with- 
out aflent  of  the  chanter,  a  wife  without  afTent  of  her  huf- 
band,  a  hufband  without  afTent  of  his  wife,  and  the  like ; 
it  held  alfo  againft  thofe  who  gained  their  entry  thro'  the 
medium  of  a  guardian,  or  bailiff  only,  who  had  no  right 
to  alien. 

^   Eraa.  317.  b. 

D  d  2  Thi. 


388  H  I  S  T  O  R  Y      O  F     T  H  £ 

CHAP.  VI.  'The  mofl:  general  form  of  a  writ  of  entry  was  that 
HENRY  III.  which  fuppofed  the  perfon  agalnft  whom  it  v/as  brought, 
to  have  holden  the  land  ad  tenninum  qui  prctferiit :  upon 
which  writ  there  might  be  a  narratloy  containing  fuch 
fpccial  matter  as  conftituted  the  merits  of  the  cafe.  The 
following  was  the  form  of  this  writ :  Precipe  A.  quod  jujic 
et  fine  ddat'ione  rediat  B.  tantu?n  terr^  cum  pertincnUn  in 
viild,  ISc.  quod  idem  b.  ei  dimifit  AD  TERMINUM  QJJI 
PR^TERIIT,  «/  duit\  et  nifi  fecerit^  et  B,  fecerit  te  J(cu- 
rum  de  clamore  fuo  profequendo^  tunc  fum.  per  hon,  futn, 
praf.  A.  quod  fit  coram  jujiitiariis  nofiris  ad  primam  ajfifam 
cum  in  partes  illas  venerint^  cfienfurus  quare  nonfccerit^  l^c^^ 

The  procefs  upon  this  writ  was  the  fame  as  on  a  writ  of 
right;  except  that  the  tenant  who  might  have  the  cflbin  de 
malo  veniendiy  could  not  have  that  de  malo  leEliy  unlefs 
the  writ  of  entry  was  turned  into  a  writ  of  right  by  the 
narratio^  or  counting  upon  it,  propter  longi£imum  ingref- 
funty  on  account  of  fuch  a  length  of  entry  as  could  not  be 
proved  v'fiu  proprio  et  audituy  but  only  by  that  of  fome 
one  elfe.  If  it  was  reafonable  that  when  this  writ  of  entry 
became  a  writ  of  right,  it  fhould  have  all  the  confequences 
attending  that  writ,  whofe  nature  it  had  aflumed  by  the 
manner  of  counting ;  fo  likewife,  on  the  other  hand,  when 
a  writ  of  right  was  turned  into  a  writ  of  entry,  as  happened 
not  unfrequently,  it  intirely  ceafed  to  be  a  writ  of  right  in  all 
refpeds,  and  there  was  no  longer  therein  the  effoin  de  malo 
Uai  K 
^  Before  more  is  faid  concerning  the  change  of  a  writ  of 

entry  into  a  writ  of  right,  and  of  a  writ  of  right  into  a  writ 
of  entry,  the  reader  muft  recolle£l,  that  the  writ  of  entry 
has  already  been  fpoken  of  as  an  invention  fince  the  time 
of  Glanville;  and  was  contrived,  no  doubt,  to  avoid  the 
ncceflity  of  recurring  to  the  duel  and  great  aflife,  whofe  de- 
termination could  never  afterwards  be  re-confidered. 
Thus  this  new  WTit  was  framed  in  the  nature  of  that  for 

»^  Braa.  317.  b.  31$.  "f  Ibid.  318. 

which 


ENGLISH     LAW. 

which  it  was  to  be  an  occafional  fubftitute  ;  and  fo  great 
an  afRnity  was  ftill  difcernible  between  them,  that  we  fee, 
in  thefe  and  many  other  inflances  they  were  convertible, 
that  is,  either  of  them  might  become  the  other  to  all  in- 
tents and  purpofes.  How  that  was  cfftCtcd,  will  be  ren- 
dered clearer  by  a  few  inftances. 

When  it  was  attempted  to  convert  a  writ  of  right  into 
a  writ  of  entry  by  the  counting,  and  the  demandant  faid, 
that  he  was  ready  to  prove  it  by  a  jury  ;  yet  it  was  in  the 
eledion  of  the  tenant,  whether  he  would  put  himfelf  upon 
the  jury  to  try  the  entry,  becaufe  he  had  three  remedies  : 
for  he  might  either  defend  himfelf  by  the  duel,  or  put  him- 
felt  upon  the  great  aflife  to  try  the  right,  or  upon  a  jury  to 
try  the  entry.  Thus,  as  it  was  at  the  option  of  the  tenant  to 
chufe  which  of  thefe  he  plenfed,  the  writ  of  right  was  not 
changed  into  a  writ  of  entry  (notwithftaiiding  the  count- 
ing), till  the  tenant  had  chofen  to  put  himfelf  on  a  jury  to 
try  the  entry;  as  for  iiiftance,  if  a  writ  of  right  was  brought 
containing  tlie  words  necefl'ary  to  include  the  jus  merum  ,* 
and  then  there  was  added  this  claufe  :  Et  in  quam  non  ha- 
bet  INGRESSUM  mft  per  talem  atitecejforem  Jinnn^  qui  ter^ 
ram  illam  ei  dimiftt  ad  certum  termifiuWy  i^fc.  thouejh 
thefe  were  words  perfectly  proper  to  bring  in  queftion  the 
entry,  and  though  it  was  within  the  time  to  prove  it  prcprio 

,  vifu  ct  auditu ;  yet  a  writ  of  right  M'ould  not,  by  fo  doing, 
become  a  writ  of  entry,  but  would  continue  as  it  was,  un- 
lefs  the  tenant  voluntarily  put  himfelf  upon  a  jury  to  try  - 

.-the  entry''.         ,.^  j;- 

■V  "A  WRIT  of  entry  was  fometimes  changed  into  a  writ  of 
right,  not  by  choice,  as  in  the  above-mentioned  change, 
butthroughnecefiity;  t'whtr propter longijfnn urn  INGRESSU  M, 
the  great  diftance  of  time  at  which  the  entry  was  a  Hedged, 
gr  propter  dofium  et  fcoffanientum,  ■  That  was  called  hngif- 

*   BraA.   318    b. 

fnius 


390  HISTORY     OF     THE 

CHAP.  vf.  Jlmiis  ingrejfus,  which  could  not  be  proved  propria  vjftt  et 
^^^C^C^T^.  aud'itu,  but  was  obliged  to  be  proved  by  tradition  ;  as  dg 
'uifu  et  aiJciitupairis,  who  enjoined  his  fon  to  give  teilimony 
thereof :  in  which  cafe,  out  of  neceflity,  from  the  want  of 
proof,  the  tenant  was  forced  to  put  himfelf  upon  the  great 
aflife,  or  defend  himfelf  by  duel.  Thus,  fuppofc  an  entry 
was  laid  ^o  far  back  as  the  time  of  Henry  II.  or  later,  yet 
fo  as  not  to  be  within  the  limitation  of  a  writ  of  mortaun- 
ceftor ',  as  fuppofe  thus  :  £t  unde  J.  non  habet  ingreffum 
nifi  per  B.  qui  non  n'lfi  cujlodiajn  inde  habuity  i^c.  and  then 
;  was  added,  et  unde  pnedtttui,  i^c,  fuit  jei/itus  in  dominico 

fuOy  et  de  ficdo^  et  jure  tempore  talis  regis  capiendo  inde  ex- 
pletia^  iffc,  et  de  tali  defcendit  Jus^  isfe.  as  in  a  writ  of  right ; 
in  this  cafe,  the  tenant  was  obliged  to  put  himfelf  upon  the 
great  aflife,  or  defend  himfelf  by  duel,  for  want  of  other 
proof:  but,  would  the  diitance  of  time  allow  it,  he  might, 
if  he  chofe,  have  put  himfelf  upon  a  jury  to  try  the 
entry  *. 

Thus  far  for  the  change  propter  longijfifimm  ingreffum, 
or  the  antiquity  of  the  entry.  The  other,  propter  donum 
et  feoffamentum^  was,  where  a  feoffment  was  oppofed  to 
the  entry,  which  might  be  ftated  in  this  manner  by  the  te^ 
nant  :  Defendit  talem  ingrejjum^  et  dicit^  quod  habuit  in- 
grefJuTJi  per  aniecejforem  ilium  (de  cujus  feifma  idem  Petrus 
petiit  t  err  am  illam)  qui  de  terra  ilia  Jeoffavit  eurn  tenendum 
pro  homagio  et  fervitio  fuo,  et  quod  tale  fuii  jus  fuum  per 
fcoffamentum  et  non  per  talem  ingreffum  ponit  fe  in  magnam 
affifam  ;  upon  which  the  afTife  proceeded  to  try  the  iflue, 
whether  the  tenant  had  more  right  to  hold  the  land  for  the 
homage  and  fervice  by  reafon  of  the  feoffment,  or  the  de- 
mandant to  hold  it  in  demefne''. 

To  return  from  this  digreffion  upon  the  reciprocal 
changes  of  writs  of  entry  and  writs  of  right;  and  to  go  on 
with  the  manner  of  proceeding  in  a  writ  of  entry.     The 

*Bra6>.  318.  b.  *  Ibid.  319. 

proccfs. 


ENGLISH      LA  W.  39^ 

procefs,  as  was  before  faid,  was  the  fame  as  In  the  writ  of  CHAP.  vi. 
right,  and  therefore  need  not  be  particularly  noticed  In  henry  III. 
this  place.  When  both  parties  appeared,  the  demandant 
was  to  begin  by  dating  his  intentlo.  If  he  was  only  a 
tenant  for  life,  he  was  to  claim  the  land,  ut  jus  meum  pof- 
Jefjorhim ;  if  in  fee,  ///  hareditatem  \  and  then  go  on,  in 
quam  talis  non  habet  ijigrejfiim  n'lfi  per  talcw^  iSc.  To 
this  the  tenant  might  anfwer  by  denying  the  right  of  the 
demandant />f A*  talem^  and  fay,  that  he  had  not  an  entry /)fr 
talem  mentioned  in  the  writ,  but^ir  al'ium  talem\  and  of 
that  he  might  put  himfelf  upon  an  InqueH:.  It  appears 
from  Bra6ton,  that  this  inqueft  might  be  taken  before  the 
IherifF,  and  the  cujlcdes  placitorum  corona  in  pleno  comitatiiy 
and  then  there  liTued  a  writ  of  inquiry  to  the  fherifF;  or  it 
might  be,  coram  nobis,  or  coram  jujliiiariis  nojiris  apud 
IVeJlmonafierium  :  and  in  that  cafe,  there  was  a  writ  of 
venire  facias,  as  it  is  fince  called^.  Whether  this  matter 
was  to  be  tried  before  the  fherifF,  or  before  the  juftices,  de- 
pended probably  upon  the  return  of  the  original  writ,  which 
we  have  feen  had  fometimes  the  one,  and  fometimes  the 
other  return ;  or  it  might  perhaps  be  at  the  option  of  the 
party  to  chufe  the  (herlfTi  or  the  jufticcs  might  refcrve  only 
fuch  queftlons  as  were  thought  to  be  of  great  difficulty,  to 
be  tried  at  the  bar  of  the  court :  but  that  In  a  commune 
placitum  the  jurors  (hould  be  fummoned  to  try  fuch  an  1(1  ue 
coram  nobis,  feems  very  particular,  and  not  eafily  to  be 
accounted  for  ^»  When  a  prizcipe  was  returnable  before 
the  juftices  affigned,  the  iflue  was,  moft  probably,  tried 
before  them  alfo;  and  probably  it  refled  merely  on  the  op- 
tion of  the  demandant,  whether  the  original  writ  Paould  have 
the  one  or  the  other  return.  It  was  not  unufual  to  caufe 
a  jury,  which  had  been  fummoned  before  the  juftices  affign- 
ed, to  be  removed  into  the  fuperlor  court  at  Weftminller ; 

'  Crii5\.  315.  a,  b.  *  V;J.  ar.t.  2^4-  Mapra  Charta. 

for 


39^  HISTGRYOFTHE 

CH  A  P.  VI.    for  which  purpofe  there  ifflied  a  fpecial  venire  facias  y  and 

HENRY  III      ^^  the  jurors  made  default,   a  habeas  corpora  recogtiitoruniy 

which  had  fometimes  a  claufe  dire£ting  the  fheriff  to  fill 

up  what  vacancies  had  happened  among  the  jury  by  death 

or  otherwife ", 

We  have  above  fuppofed  that  the  ifflie  went  to  a  jury  to 
be  tried  \  but  before  this,  it  was  neceflary  that  both  parties 
(hould  take  fuch  fteps  to  prove,  or  raife  a  prefumption  in 
fupport  of  their  allegations,  as  was  required  in  other  aftions 
determinable  by  jury.  The  intentio  was  not  in  this,  any 
more  than  in  other  ad^ions,  to  be  taken  on  the/Jmp/ex  loquela^ 
of  the  demandant :  he  mud  produce  proof,  if  he  could  ;  or, 
if  he  could  not,  he  muft  raife  a  prefumption  by  a  fecloy 
which  was  open  for  the  other  fide  to  defend  per  legem.  If 
the  demandant  had  neither,  the  tenant  had  no  need  to 
anfwer  the  aftion  at  all,  and  the  writ  was  loft ;  unlefs,  fays 
Bra£lon,  as  fome  thought,  he  might,  and  ought  de  gratid 
jiijl'itiariorumy  to  be  aflifted  by  a  jury  of  the  country. 
But  this  was  to  be  only  upon  fome  good  caufe  being  fhewn : 
either  that  the  inftruments  on  which  he  relied  for  proof  of 
the  matter,  were  loft  •,  or  that  he  had  them  not  at  hand, 
or  could  not  get  them  without  difficulty,  to  make  ufe  of 
on  that  occafion.  In  fuch  cafes,  it  feems,  the  court  would 
diredl  the  matter  to  be  tried  by  a  jury ;  and  another  day 
would  accordingly  be  given  to  the  parties  ^. 

If. the  parties  did  not  go  to  ifTue  in  the  above  way,  it 
was  becaufe  the  tenant  chofe  to  except  to  the  a£lion.  The 
exceptions  he  might  make  were  many;  he  might  fay,  that 
fome  one  elfe  had  more  right  than  the  demandant ;  that 
another  made  the  demife,  and  not  the  perfon  named  in  the 
writ ',  that  the  term  was  not  expired  ;  or,  if  it  was  expired 
as  far  as  limited  by  one  inftrument,  that  it  had  been  enlarged 
by  another,  which  he  then  exhibited  ;  that  the  time  exceed- 
ed the  Hmitation  in  a  writ  of  mortaunccftor,  and  therefore 

'  «  Bract.  325.  b   316.  *  Vid.  ant.  248.  2  Braa.  320- 

the 


E  N  G  L  I  S  H      L  A  W.  393 

the  proof  would  be  defecllve.    Thefe  and  numberlefs  other    chap.  vr. 
exceptions  might  be  taken''.     The  tenant  might  vouch  to    uKvoy  in 
warranty  the  -perion  per  quern  he  had  his  entry,  and  that 
warrantor  might  vouch  another ;   and  fo  on,  to  the  fourth 
degree,  but  not  beyond. 

The  writ  of  entry  lay-properly  only  againft  a  freeholder; 
that  is,  one  who  had  an  eilate  for  life,  or  in  fee,  or  in  fee- 
farm,  and  fuch  only  was  confidered  as  properly  tenant. 
However,  in  truth,  fays  Bra£lon,  if  this  writ  was  brought 
againft  a  farmer,  it  would  not  fail,  for  he  might  call 
his  warrantor ;  and  if  he  defended  him,  the  farmer  would 
retain  his  ufufrudl  :  if  not,  he  might  have  his  refort  to 
the  warrantor,  as  far  as  his  ufufrudluary  intereftwent; 
and  the  warrantor  over  againft  his  warrantor,  as  far  as  his 
freehold  intcreft  was  concerned.  Notwithftanding  what 
Bra£lon  here  fays  concerning  a  farmer,  he  afterwards  lays 
it  down  moft  pofitively,  in  conformity  with  what  was  faid 
above,  that  a  writ  of  entry  would  not  lie  againft  one  who 
held  for  a  term  of  years,  becaufe  he  did  not  hold  the  free- 
hold in  demefne,  but  only  the  ufufru^l ;  and  much  lefs 
would  it  lie  againft  a  tenant  from  year  to  year^ 

The  writ  of  entry  ad  termifnim  qui  pr^teriity  which  I^'^e^cnt  kindu 
we  have  hitherto  been  fpeaking  of,  lay  for  that  perfon  who 
had  himfelf  made  the  demife  :  when  it  v/as  brought  by  the 
heir  of  the  demifor,  it  was  altered  accordingly  ;  as,  in  quod^ 
t5fc.  non  habet  ingrejfum  nifi  per  talcm,  ctti  talis  pater ^  or, 
whoever  the  anceftor  might  be,  illud  dimiftt  ad  tenniuum 
qui  prateriity   ^c^. 

Thus  were  writs  of  entry  varied  according  to  the  cir- 
cumftances  of  tlie  cafe  upon  which  they  were  founded  ^ 
and  fome  of  them  received  appellations  from  the  effc£live 
words  in  the  writ.  One  was  afterwards  called  a  cui  in 
vita  y  which  was  brought  by  a  widow  when  her  hufband 
had  made  a  gift  of  her  inheritance.     This  writ  was  in  the 

*"  Erad.  3Z0.  b.     '   Ibid.  321.      Vid.  ant.  30a    303.  ''   Br3£>.  32  r, 

following 


HISTORY      OFT  KL 

following  form :  Pracipe^  i^c.  quod^  k3c.  reddat  tali  qua; 
fu'it  uxor  talis ^  isfc.  quam  clamat  ejfe  jus  ib'  hcsreditatem 
fuam  ;  is^  in  quam  prcsdi^us  talis  non  habet  ingrejfum  n'lft 
per  pred.  quondam  virum  Juum^  qui  illud  ci  dimijit^  cui 
IPSA  IN  VITA  SUA  CONTRADICERE  tion  potuit,  t^ffc.K 
The  ufual  anfwer  to  this  a61ion  was,  that  the  wife  appeared 
on  fuch  a  day  perfonally  in  the  king's  court,  and  there,  of 
her  free  will  and  confent,  granted  and  confirmed  the  gift 
made  by  the  hufband  ;  for  proof  of  which  the  record  thereof 
was  to  be  infpedled,  where  there  ought  to  be  fpeclal  mention 
made  that  the  v/oman  confented :  upon  fuch  confent,  fays 
Bra6lon,  a  chirograph um  was  made,  which,  together  with 
the  record,  was  now  vouched ;  for  it  was  a  rule,  that  the 
record  without  a  chirographum  would  not  bar  the  widow*s 
adlion.  In  other  words,  this  was  a  plea  of  a  fine.  If  a 
gift  by  the  hufband  was  what  they  called  voluntary^  it  was 
not  valid  without  the  above  circumftance  of  the  woman's 
confent  fignified  in  court ;  but  if  the  gift  had  been  made,  as 
they  called  it,  in  caufd  hofiejld  et  necejfaridy  as  to  a  fon,  or 
with  a  daughter  in  marriage,  then  it  was  binding  upon  the 
wife  without  thefe  folemnities"'. 

Again,  in  cafe  of  a  voluntary  alienation  of  the  wife's 
land  by  the  hufband,  if  fhe  died  before  him,  then  the  fon 
who  was  her  heir  might  have  a  writ  of  entry  in  the  follow- 
ing words  :  In  quaui  non  habet  ingreJJ'um  niji  per  talem 
virum  ipfius  talis^  cujus  httres  ipfe  ejl^  qui  illam  ei  vendidit 
in  vita  Juii^  cui  pradi^a  talis  in  vitdfua  contradicere  non 
pGtuity  ^c ".  If  a  fecond  hufband  aliened  the  wife's  dower 
by  her  firfl  hufband,  flie  might,  after  his  death,  have  a  writ 
of  entry,  quam  clamat  eJfe  rationa-ilem^  Uc.  et  in  quam 
pradi^tus  ttdis  non  habet  ingrejjum  niJi  per  talern^  her 
fecond  hufband,  qui  illud  ei  dimijtt^  cui  ipfa  in  vita  fua  con- 
tradicere  non  potuity  tsfc.  and  the  heir  of  her  firfl  hufband, 

^  Bra(5>.  311.  b.  f"  Ibid.  321.  b.  322.  ■  Bracl.  322. 

in 


ENGLISH      LAW. 


395 


in  cafe  {he  died  before  her  fecond  hufband,  might  have  a    C  H  a  p.  vf. 

writ  of  entry  applicable  to  the  nature  of  his  claim,  whether    henry  III 

the  fecond  hufband  held  himfeJf  in  feifin,  or  the  wife  had 

aliened  :   In   quam   non   hahct  ingrejfum  nifi  per  talem^  qui 

illud  ei  dimifit<i  et  qui  illud  tenuit  in  dotem  talis  uxorisy  ^r. 

or,  niji  per  talem^  quddfuit  uxor  talis,  qua   illud  tenuit  in 

dote?n,  ^fo. 

The  cafes  in  which  a  writ  of  entry  was  the  proper  re- 
medy, were  very  numerous.  We  fhall  enumerate  fome  of 
them.  If  an  abbot,  prior,  or  biihop,  demifed  without 
aflent  of  the  chapter,  or  the  chapter  without  aflent  of  thofe 
whofe  aflent  was  required  by  law  ;  then  there  was  a  writ, 
non  habet  ingrejfum,  nifi  per  ialem  quondam  abbatem,  i2fc» 
qui  illud  ei  dimifit  SINE  ASSENSU  CAPiTULi  p,  and  the  like. 
The  writ  here  mentioned,  was  called  a  writ  of  entry  f,ne 
ojj'enfu  capituli.  So  if  a  wife  demifed  without  aflent  of  her 
hufband,  non  habet  ingrejfum  nifi  per  prad.  talem  mulierem^ 
qua  illud  ei  dimifit  fine  ajfenfu  et  voluntate  pradi^i  talis  quon- 
dam viri  fui,  ^c.  So  if  a  bailiff  demifed  without  the  con- 
fent  of  his  lord.  If  a  tenant  was  convicled  of  felony,  the 
lord  might  have  a  writ  to  recover  his  efcheat :  ISJon  habet 
ingrejfum  nifi  per  C.  de  N.  qui  earn  tenuit,  ^c.  ET  QJJ^, 
isfc.  ESSE  debet  esch^bta  propter  feloniam  de  qua  idem  C» 
i^c,  convUlus  fuit  et  damnatus^  et  quam  terram  ide?n  C, 
dimifit,  ^c.  which  was  called  a  writ  of  efcheat.  Again,  if 
any  one  had  his  entry  by  one  who  held  in  villenage  j  by 
one  who  was  non  compos  Jut  nee  fame  mentis ;  by  one  who 
held  only  for  life,  whether  in  dower,  or  per  legem  terra ; 
the  remedy  was  by  writ  of  entry.  In  cafes  of  a  writ  brought 
by  the  reverfioner  after  an  eftate  for  lif^,  the  writ,  after  ut 
dicit,  always  had  thefe  words:  unde  queritu) ,  qjjod  ipfe  talis 
injujfe  ti  DEFORCEAT,  ^f 'I  from  which  words  the  writ 
was  afterwards  named  quod  ei  deforceat. 

•  Bra£l.  323.  P  Ibid,  34a,  ^  Ibid.  343.  b. 

A  WRIT 


396  HISTORY      O  F     T  H  E 

CHAP.  VI.        A  WRIT  of  entry  lay,  if  any  one  intr'uded  Into  the  in- 

HENRY  lir      lieritancc ,  tion  habet  ingrejfum  n'lfi  per  hov^  quod  ipfe  fe 

hitrufity   l^c.     If  a  man  aliened  land  of  which  he  had  the 

cuftody  :  non  habet  ingrejjlim  n'lft  per  C.  qui  non  niji  cujlo- 

diam  inde  kahuity  Is^c.  with  fome  fmall  difference  in  the 
.  words  when  the  heir  claimed  of  his  own  fcifm,  and  when 
of  his  anceftors  \  dum  idem  B.fuit  infra  £tatem  in  ciijlodi^^ 
Isfc,  It  lay  when  a  common  of  pafture  was  demifed  ;  non 
habet  ingrejfum  nift  per  C.  ( cujus  hares  idem  B.  ejl )  qui 
pajiuram  illam  ei  dimiftt,  ad  terminum  qui  prateriit,  ^c. 
But  it  only  lay  of  a  common  in  certain  .  Thefe,  in  ad- 
dition to  fuch  writs  as  have  been  mentioned  in  the  former 
part  of  this  chapter,  are  all  the  writs  of  entry  to  be  found 
in  Bra6ton.  Thefe  are  applicable  to  very  many  cafes  of 
oufter  of  freehold  ;  and  from  the  general  conception  of  ad 
terminum  qui  prateriit,  and  the  infinitude  of  circumftanccs 
and  fituations  which  might  be  included  within  thofe  gene- 
ral words,  it  was  polTible  to  make  this  remedy  much  more 
univerfal. 

We  have  before  examined  whether  a  writ  of  entry  would 
lie  again/I  a  farmer,  or  tenant  for  a  term  of  years  \  We 
fliall  now  fee  whether  it  would  lie  for  perfons  of  that  dc- 
fcription.  It  is  faid  by  Bra^lon,  that  a  farmer  who  had 
demifed  ad  tertninuni  qui  prateriit^  might  demand  his  own 
feifin,  tho'  he  had  no  right  in  the  freehold;  for  he  had  a  pof- 
fefibry  right  of  fome  kind  or  other;  and  therefore,  according 
to  our  author,  vws  intitled  to  an  a6lion  grounded  upon  his 
own  demife,  and  his  own  a61:.  A  writ  of  entry,  however, 
brought  by  one  who  held  for  a  term  of  years,  or  for  life, 
could  never  be  turned  into  a  writ  of  right ;  it  being  a  rule, 
that  an  adion  upon  the  pofleffion,  merely,  fliould  never  be 
turned  into  an  adlion  upon  the  right,  nor  e  converfo  ^ 

Notwithstanding  what  was  before  faid,  of  a  writ 
of  ^ntry.  being  limited  to  the  time  to  which  a  writ  of  morc- 

'  Braft.  324.  324.  b.  »  Vid.  ant.  393.  '  Bra^.  326.  a.  b. 

aunceflor 


ENGLISH      LAW.  397 

aunceftor  was  confined,  there  was  a  cafe,  where,  of  necef-    chap.  vi. 

fity,  and  becaufe  no  other  a£lion  could  be  had,  this  writ    j^ej^tj^y  j^ 

would  lie  beyond  that  period  :  as  where  one  who  held  only 

for  life,  demifed  for  a  very  long  term,  which  exceeded  the 

period  of  a  writ  of  mortaunceftor  ;  and  then  as  he  had  not 

fuch  an  intereft  as  would  entitle  him  to  a  writ  to  try  the 

mere  right,  he  was  allowed  to  try  the  entry  by  a  jury ;  as 

alfo  was  a  tenant  in  fee,  in  the  like  circumftances,  who 

could  not  count  de  itfit  et  explttiisy  which  was  always  nc- 

ceflary  in  a  writ  of  right ". 

Another  limitation  of  this  adlion  was  the  "degrees 
within  which  it  was  confined.  It  never  was  allowed  be- 
yond three  degrees ;  which  were  reckoned  in  this  way.  If 
the  writ  was  of  the  kind  we  mentioned  firft,  ad  terminum 
qui  pr<£teriity  on  the  demandant's  own  demife,  this  was 
one  degree.  If  the  tenant  was  faid  to  have  his  entry  per 
fuch  a  one,  that  conflituted  two  degrees.  If  the  entry  was 
PER  fuch  a  one,  cui  the  land  in  queftion  was  demifed  by 
fome  anceflor  of  the  demandant,  this  was  in  the  third  de- 
gree ^.  A  writ  of  entry  was  not  allowed  beyond  this,  and  » 
the  party  muft,  in  cafe  his  demife  was  further  removed, 
have  recourfe  to  a  writ  of  right.  It  Is  ftated  by  Brafton  as 
a  queftion,  whether  the  pafllng  of  land  from  an  abbot  to  his 
fucceflbr  was  counted  as  a  degree,  in  like  manner  as  from 
one  heir  to  another  J  and  he  thought  not:  for  though  the 
perfon  was  changed,  yet  the  dignity  and  capacity,  which 
was  the  principal  confideration,  remained  the  fame  '". 

"  Braa.  316.  b.  f  Braa.  3x1. 

*   Flcta,  360. 


CHAP. 


398  HISTORYOFTHE 


CHAP 


C      H      A      P.  VII. 

HENRY  III. 

JVrit  of  Right  in  the  Lord's  Court — Procefs  in  Real  AclioJis 
— Summons — Of  Effoins — De  Malo  Lecli — Defaults — 
J  Alagnurn  Cape^^Warra nt  de  Servitio  Regis — Pa rvum  Cape 
. .  "-^Writ  of  ^Mo  Warranto — The  Count — Tender  of  the 
Demi' Mark — Defence — Of  granting  a  Vieiv — Vouching 
to  Warranty — Nature  of  Warranty — Proof  of  Charters 
— Warrantia  Charter — Of  Pleading — Of  Prohibitions — ; 
Attachment  fur  Prohibition — Of  furifdiclion — Abatement 
of  the  Writ-r-Pleas  to  the  Perfon — Of  Bajlardy — Writ 
to  the  Ordinary — Of  Minority^ — Excotnmunication — Par-' 
ceners — Pleas  to  the  AEiion — Non  Tenure — Majus  Jus 
— Releafe — Fine  and  Non  Claim — Of  Perfonal  ABions — 
Attachment — Execution  of  the  Writ, 


AVING  gone  through  alTifes  and  recognitions,  which 
went  upon  a  pofTefTory  right,  to  recover  a  man's  own  feifni, 
or  that  of  his  anceitor ;  and  alfo  fuits  upon  an  entry  ;  it 
remains  only  to  fpeak  of  an  a£tion  for  the  recovery  of  a 
right  and  property  grounded  either  upon  a  man's  own  fei- 
fin,  or  that  of  his  anceftor  who  did  not  die  thereof  feifed  j 
in  which  adtion,  both  the  right  of  pofleflion  and  the  right 
of  property  were  determinable  ;  and  after  judgment  there- 
in, either  upon  the  aflife  or  duel,  no  recourfe  could  be  had 
to  any  other  remedy  ;  the  judgment  being,  that  the  de- 
mandant fhould  recover  feifm  to  him  and  his  heirs  quietly, 
as  againft  the  tenant  and  his  heirs  for  ever  ^. 

'  Braa.  327.  b.  328. 

The 


ENGLISH      LAW. 


399 


The  writ  of  right  and  the  proceedings   thereon  arc   C  H  a  p.    vir. 
treated  more  fully  by  Glanville  than  any  other  aftion  ;  but    ^iCrr^T?^^ 

'  KF.NRY   III. 

this,  as  well  as  other  branches  of  learning,  had  made  great 
advances  in  improvement  fince  the  time  of  that  writer : 
thefe  are  dated  very  minutely  in  the  great  authority  by 
which  we  are  fo  much  aflilled  in  our  enquiries  during  this 
reign  ;  and  we  fliould  not  fulfil  our  duty  to  the  reader,  if 
we  withlield  fuch  further  Information  as  can  be  derived 
from  that  fource,  on  fo  important  an  article  as  the  proceed- 
ing in  a  writ  of  right.  Should  the  reader  be  a  little  retard- 
ed by  fometimes  recurring  to  what  has  been  before  faid  on 
the  fame  fubje<£t,  it  is  to  be  hoped,  that,  on  this,  as  on  other 
occafions,  his  patience  will  be  rewarded  by  the  new  lights 
which  he  will  thence  receive,  to  guide  him  in  the  future 
progrcfs  of  this  Hiflory. 

The  writ  of  right  to  the  lord's  court  underwent  no  Wr-t  of  right 
change  in  its  form  and  language,  tho'  that  in  the  king's  "."  *^.^  ^^^^** 
court  had  fome  few  words  inferted  which  were  not  in  it  in 
Glanville's  time.  The  words  which  mention  the  land  to 
be  held  of  the  king  ifj  cap'ite  were  probably  added  in  confe- 
quence  of  the  provifion  of  Adagfja  Charta  zhout  pr writes  in 
cap'ite,  with  defign  to  diew  that  the  prefent  was  a  proper 
fubje<fl:  for  the  king's  court,  and  not  within  the  prohibition 
of  that  a6t*.  The  writ  ran  thus  :  Fraclpe,  i^c.  quid,  ^r. 
reddat,  i^c.  tantum  terns,  quod  clamai  ejje  jus  et  haredha^ 
t^m  fuam,.et  tcjiere  de  tiobis  in  capite ;  et  iiiide  queritur^ 
quod,  ^c.  and  fo  on,  as  in  the  old  writ ;  only  the  return 
was  coram  jujVitiariis  nojiris  apud  Wejlmouajlerium  ^. 

Since  the  provifion  oi  Magna  Charta  hhout precipes  in 
capite,  writs  of  right  were,  of  courfe,  more  generally 
brought  in  the  lord's  court,  and  from  thence  were  removed 
to  the  county,  and  fometimes  to  the  fuperior  court.  The 
removal  to  the  county  was  allowed  only  when  the  lord  was 
proved  de  reElo  defeciffe.     Many  were  the  occafions  when 

»  Vid.  aot.  x^o.  *  E«6\.  328.  b. 

thig 


40O 


HISTORY     OF    THE 


CHAP.    vri.    this  failure  of  juftice  might  be  faid  to  happen  ;   as  when 

rrrT^.r  ,,,     the  deforceant  claimed  to  hold  of  a  different  lord  from  the 
HfeNKY    III. 

demandant ;  when  the  real  lord  had  no  court,  or  refufed  to 
hear  the  caufe,  or  no  one  was  in  court  to  hear  it  ;.jn  which 
cafes,  recourfe  could  not  be  had  to  the  chief  fupcrior  lord, 
becaufe  the  writ  directed  particularly,^,  ^c.  mn  fecerity 
WCECO^^ES  hoc  faciat .  Again,  if  a  peffon  who  lived  out 
of  the  lord's  jurifdi^lion  was  called  to  warranty  ;  if  the  de- 
forceant effoined  himfelf  de  malo  Iccli  out  of  the  limits  of 
his  jurifdidlion,  where  the  four  knights  could  not  make  the 
view  •,  if  the  tenant  put  himfelf  on  the  great  aflife ;  all 
thefe,  and  an  infinitude  of  other  matters,  were  caufes  of 
renaoval,  as  producing  a  failure  of  juftice.  The  method 
of  proceeding  in  the  lord's  court  was  different  in  different 
places  j  only  in  praying  a  view,  vouching  to  warranty,  and 
fometimes  in  pleading,  in  waging  duel,  and  in  fome  other 
matters,  the  courfe  of  the  king's  court  was  obferved  ^. 

When  the  officer,  or  ferjeant  fent  by  the  flieriff,  had  at- 
tefted  in  the  county  court,  that  there  was  a  failure  of  juftice 
in  the  lord's  court  (and  the  officer's  report  in  this  point 
was  a  record),  then  the  demandant  prayed  the  judgment 
of  the  court  thereon  ;  and  accordingly  the  tenant  was  com- 
manded to  be  fummoned  to  anfwer  at  the  next  county  court ; 
at  which  time  they  might  either  appear,  or  effoin  them- 
felves.  If  the  demandant  appeared,  but  the  tenant  did  not, 
then,  upon  the  fummoner  attefting  the  fummons,  he  was 
proceeded  againft  for  the  default,  according  to  the  cuftom 
of  different  counties,  either  by  caption  of  the  land  into  the 
king's  hands,  or  otherwife.  The  cuftom  in  the  county  of 
Lancafter,  which  is  faid  to  have  been  approved  by  the  fa- 
mous Pateftiull,  was  this:  the  tenant  was  fummoned 
twice,  and  if  he  did  not  then  appear,  and  the  fummons 
was  proved,  the  judgment  of  the  court  was,  quod  capiat ur 

<  Brait,  329.  b. 

parvum 


ENGLISH     LAW/ 


401 


farvwn  namphim  en  the  land,  in  name  of  a  diftrefs,  and  CHAP.  vif. 
t-he  tenant  was  fummoned  a  third  time  to  appear  at  the  third  j^enp  y  (u 
county,  if  he  did  not  then  come,  the  judgment  was,  quod  c  a- 
piatur  magnum  ?mmpiuirj,  that  is,  the  averia  and  chattels, 
double  the  firft,  by  way  of  afforcing  the  diftrefs,  and  he  was 
fummoned  a  fourth  time  j  when,  if  he  did  not  come,  there 
was  a  capiatur  terraivitQ  the  king's  hands,  an<i  a  fifth  fum- 
mons ;  and  if  he  appeared  not,  nor  replevied  the  land,  the 
demandant  had  judgment  to  recover  feifin  by  default  ^ 
From  this  fpecimen  of  the  pra61:ice  in  the  county  of  Lan- 
cailer,  we  are  left  to  conjctlure  what  was  the  nature  of 
that  in  other  counties. 

While  the  fuit  was  in  the  county  court,  if  a  perfon 
was  vouched  to  warranty,  that  court  could  not  fummon  the 
warrantor,  but  recourfe  was  had  to  the  king's  writ  de  ivar^ 
rantidy  which  commanded  the  perfon  to  warrant  the  land 
in  queftion  in  the  county  j  et  tiifi  fecerit,  quod  fa  in  ad^  %. 

-jentu  jujiitiariorumy  ^V.  ;  fo  that,  if  the  warrantor  did 
not  enter  into  the  warranty  in  the  county,  day  was  o^iven 
to  all  the  parties  before  the  juftic-es  in  iiincir,  where  t!ie 
plea  of  warranty  was  determined,  and  then  the  principal 
fuit  was  remanded  back  to  the  county  court,  if  the  juftices 
fo  pleafed ;  though,  that,  as  well  as  the  M'arranty,  rni^ht, 
de  gratia y  if  they  pleafed,  be  determined  before  them  with- 
out an-y  writ  of  pcne  'K 

If  the  tenant  put  himfelf  upon  the  great  afRfe,  a  day 
was  given  to  the  next  county  :  and,  in  the  mean  time,  he 
applied  for  a  writ  of  fcice  till  the  coming  of  the  julliccs 
at  the  next  aflife  •,  which  writ  he  was  to  obtain  in  perfon, 
becaufe  he  was  to  make  oath  that  he  v/::s  tenant,  and  had 
put  himfelf  on  the  afRfe.  The  writ  of  peace,  the  prohi- 
bition to  the  (lieriff,  that  for  fummoning  the  knights,  and 
the  afPife,  were  much  the  fame  as  in  Glanvllle's  time,  both 
in  the  words  and  the  pradice  .of  them  ;  only  the  jurors 
were  to  appear  coram  JuJIitiariis  ad  prima m  ajfifaruy  l^c,  -, 

•^Braa.  330.  "^  Ibid.  331.  «  l.  id.  331,  131.  b.  33*. 

Vol.  I.  Ee  Skould 


HISTORY      OF     THE 

Should  a  fult  be  removed  by /^Vi' from  the  fiicritT's 
court  to  the  court  above,  in  the  interval,  before  the  war- 
rantor appeared  before  the  juflices  itinerant,  there  was, 
however,  no  mention  of  the  warranty  in  the  writ  o( pone-y 
but  after  the  ufual  ellbins  and  delays,  the  demandant  count- 
ed afrefh,  from  the  day  on  which  the  vouching  was  in  the 
county ;  and  fo  the  tenant  was  obhged  to  vouch  again,  and 
the  day  appointed  before  the  jullices  itinerant  became 
void  ^ 

A  wpx.IT  of  pom  was  rarely  granted  on  the  prayer  of 
the  tenant,  except  for  fome  fpecial  reafon,  which  was  to 
be  exprefled  in  the  writ ;  as  thus :  Po?2e  ad petitknem  tcnen- 
iis  eh  quod  agit  hi  partibus  tranjmar'inisy  Is'c.  loquelam,  qu£ 
ejly  ^c.  If  the  tenant  could  not  appear*,  if  the  deman- 
dant was  related  to,  or  a  fervant  or  friend  to,  the  fherifF; 
if  he  was  very  powerful  in  the  county,  or  was  flieriff  him- 
felf ;  all  thefe  were  caufes  fufficient  to  entitle  the  tenant  to 
remove  the  fuit.  There  were  fome  cafes  in  which  the  de- 
mandant was  obliged  to  remove  the  fuit,  on  account  of  the 
privilege  of  the  tenant ;  as  where  he  was  a  Templar  or 
Hofpitaller,  or  of  any  other  defcription  of  perfons  who  had 
the  privilege  of  anfwering  to  no  fuit,  except  coram  rege^  vel 
ejus  capitali  jvjl'itiario.  There  were  cafes  of  neceffity,  in 
which  aifo  the  fuit  was  to  be  removed ;  as  where  baftardy 
or  any  thing  elfe  was  obje£led,  which  the  county  could  not 
legally  decide  or  try  ^. 

In  the  fame  manner  were  fuits  removed  from  the  county 
and  court  baron  to  the  juflices  in  itinere.  There  was  alfo 
another  caufe  or  removal  from  the  county  court.  This  was 
on  account  of  a  faife  judgment ;  in  which  cafe,  like  wife,  the 
removal  was  '^'j  pone  ^. 

When  the  fuit  was  thus  removed  by  pone^  the  tenant 
was  to  be  fummoned  to  appear.  '  The  fummons  of  the 
tenant  is  treated  of  by  Glanville.     Some  few  things  may 

^  Bradl.  332.  E  Ibid.  ^  Ibid. 

be 


E  N   G  L  I  S  H      L  A  W.  .         403 

be  added  to  render  his  account  more  fatisfa£\ory,   ?.s  well  C  H  A  P.   Vll, 

as  to  give  a  comparative  view  of  procefs  in  general,  whe-  henry  III 
ther  in  actions  real,  perfonal,  or  mixed. 

The   moft  common  procefs  in  life  was  t'ne  fummons;  ^'^^^"^""^inrea! 

aclions. 

and  after  that,  in  fome  cafes,  there  followed  cither  a  cap- 
tion into  the  king's  hands  for  default,  or  an  attachment, 
according  to  the  nature  oF  the  a£lion.  Another  procefs 
wa»,  what  BraiSlon  calls  a  command  or  precept  of  the  king, 
without  any  other  fummons,  cjiicdf.t  coram  £q  refponfuriis^ 
or  faciurusy  l^c,  or  that  he  fliculd  have  fuch  a  one  there, 
ud  refpondendiniiy  or  faciendum.  There  was  another  com- 
manding the  flieriff,  quldfaciat  venire,  or  quod  attachiet, 
QX  quod  haheat  corpus,  or  quod  it  a  attachict  quod  fit  fecurus 
habendi  corpus.  Many  of  thefe  have  been  noticed  in  the 
foregoing  account  of  proceedings.  We  fliall  now  confine 
ourfelves  more  particularly  to  the  fummons,  v.-hich  was 
the  ufual  procefs  in  real  atftions,  as  well  thofe  that  were 
pofleiTory  as  thofe  that  concerned  x\\z  proprietas  \  and  alfo 
in  perfonal  a£lions,  in  matters  of  contract,  or  for  any  in- 
jury. 

A  SUMMONS  was  €\Xk\tx general,  ox fpcciaJ.  There  was 
a  generul  fummons  before  the  eyre  was  held;  this  was  to 
be  in  fome  very  public  place  ;  and  might  be  followed  by 
eflbins,  to  excufe  the  abfence  of  thofe  who  ou^-ht  to  attend. 
hfpeciid  fummons  was  in  fome  particular  atflion,  to  which 
if  a  perfon  did  not  appear,  he  would  be  in  default,  alibo' 
he  waseflbined  upon  the  general  fummons'. 

What  we  have  to  fay  upon  fummons  will  be  chiefly  s^^f^^j,, 
confined  to  this  latter  kind.  It  appears  from  Braclon, 
that  if  the  party  could  be  found  any  vvlix-re  in  the  county, 
he  might  be  fummoned ;  tho'  if  the  fummoners  could  net 
fiind  him  at  his  own  houfe,  they  needed  otily  fliew  the  fum- 
mons to  fome  of  Ills  faniilv,  and  not  feek  him  further.  If 
he  had  more  hcufes  than  one  in  the  county^  the  fummons 

£  e  2.  was 


,  II  I  S  T  O  R  Y      OF      THE 

was  to  be  at  that  where  he  moflly  lived,  or  had  the  moil 
fubflance  :  if  he  had  no  houfe  nor  demefne,  it  was  to  be  at 
bis  fee.  The  fummoners  were  to  be  at  lead  two  in  num- 
ber, who  were  to  teflify  before  the  court  that  they  had  exe- 
cuted the  fummons.  A  fummons  ought  always  to  be  ferved 
fifteen  days  before  tiie  day  on  which  the  party  fummoned 
was  to  appear  :  and  if  there  were  fewer  days,  the  fummons 
was  illegal,  unlefs  in  fome  particular  cafes  where  difpatch 
was  required i  as  when  a  church  was  vacant;  when  the 
parties  were  living  in  the  county  where  the  eyre  was ;  or 
in  cafes  where  merchants  were  concerned,  who  were  enti- 
tled to  what  Era£ton  calls  jujlitia  pepoudrous.  Again,  on 
the  other  hand,  fometimes  a  longer  time  was  allowed  for 
fummoning ;  as  on  account  of  a  journey ;  and  the  time  was 
lengthened  according  to  the  length  of  fuch  journey.  But 
the  common  and  legal  funnnons,  fays  Bra6lon,  was  fifteen 
days  before  the  appearance  ^. 

A  SUMMONS  was  illegal,  if  It  was  made  only  by  one 
fummoner;  or  by  falfe  fummoners,  and  not  by  the  (hcriff 
and  his  bailiffs.  Again,  if  it  was  made  when  the  tenant  was 
beyond  fea  or  upon  his  journey,  or  even  cum  iter  arripue- 
rh^  when  he  was  jull  fet  out;  or  if  he  was  not  found  with- 
in the  county,  the  fummons  was  not  binding' ;  for  a  man 
was  i>ot  to  accept  a  fummons  at  all  times  and  places,  nor 
from  every  body,  but  only  from  thofe  who  had  a  proper 
authority. 

When  the  tenant  appeared,  he  might  obje£l  any  of  the 
above  irregularities  as  an  exception  againd  the  fummons. 
If  he  did  not  appear  at  the  day  of  the  fummons,  and  the 
(herifF  did  not  return  the  writ,  recourfe  muft  be  had  to 
another  writ,  that  being  now  out  of  date ;  but  if  the  flie- 
rilV  had  returned  the  writ,  then,  on  account  of  the  tenant's 
riefault,  if  it  was  in  a  real  aftion,  his  land  was  taken,  as  in 
Glanville's  time  ;  but  the  writ  on  this  occafion  was  now 

■*  Praa.  333.  b.  334.  ^   Ibi(1.  356.  b. 

called 


ENGLISH      LAW.  4^5 

called  magnum  cape  ;  and  if,  after  the  firfl  caption,  he  failed  CH  A  P.  VI!. 
appearing  at  another  day,  he  loll  his  feifin.  There  was  henry  in. 
another  caption  of  the  land  by  force  of  a  writ  that  was 
called  parvtnn  cape ;  in  all  defaults  after  the  fird  appear- 
ance the  caption  was  made  hy parvi/m  capCy  which  was  the 
cafe  in  which  Glanville  fays  he  could  not  replevy"'.  Thus, 
whereas  in  Glanville's  time  the  caption  was  not  till  the  te- 
nant had  been  fum^moned  three  times,  it  was  now  after  the 
firft  fummons  that  the  magnum  cape  iflued. 

If  a  perfon  was  lawfully  fummoned  and  did  not  appear, 
he  would  be  puniflied  as  a  defaulter,  unlefs  he  could  fend 
a  proper  excufe  or  eflbin.  The  lav/  of  cfToins  has  already 
been  mentioned ;  but  it  is  treated  fo  minutely  by  Bracton, 
and  was  of  fuch  importance  in  the  judicial  proceedings  of 
this  period,  that  it  dcfervcs  to  be  re-ccnfidered. 

One  principal  excufe  for  not  appearing  to  a  fummons,  Qf  rfToin'. 
was  being  ///  fervit'w  regis.  This,  however  ",  was  not 
admitted  as  an  excufe  if  the  party  had  been  fnfl  fummoned, 
becaufe  he  might  have  fent  his  attorney  to  appe«r  for  him  ; 
nor  even  then  would  it  avail,  if  he  could  conveniently 
come  himfelf,  or  fend.  But  this  is  laid  down  as  the  ftri6l- 
nefs  of  law  by  Braclon,  who  admits  that  the  king's  plea- 
fure  Ihould  prevail,  notwlthflanding  any  of  the  above  cir- 
cumllances.  The  next  eiToins  were  what  were  called  in 
Glanvillc's  tim.e,  ex  injirm'itate  vetuefuVi^  and  ex  viftrmitaie  " 
refeantif'X\  which  were  now  termed  de  malo  I'eri'icfidiy  and 
de  malo  lectl.  Befides  thefe,  there  were  feveral  others,  that 
recurred  Xti^  frequently;  as  a  peregrination,  or  anyre- 
ftraint  impofed  on  a  party ;  or  if  he  was  detained  by  ene- 
mies, or  fell  among  thieves  p  ;  or  was  topped  by  floods, 
a  broken  bridge,  or  tcmpefi:  j  unlefs,  indeed,  it  could  be 
proved  that  he  fet  out  at  an  unfeafonnble  time,  or  fufTcred 
thofe  impediments  through  want  of  proper  caution  and 
care  on  his  part.     Being  impleaded    in    the  king*s  court, 

'^'  ViJ.  am.  1 14.         '^  Bra-f).  336.  b.         «  ViJ.  ant.  1 15.  p  Braft.  337. 

was 


4o6  H  I  S  T  O  R  Y      O  F      T  H  E 

CHAP.  VI f.   was  a  good  reafon  for  not  attending  in  an  inferior  one ;  or 
^^^T^i^C^Tr    even,  according  to  Braclon's  opinion,  being  impleaded  in 
the  ecclefiailical  court  was  a  good  excufe. 

A  PERSON  having  any  of  the  beforementioncd  excufes 
©ught  to  fend  one  to  make  it  for  him.     The  form  of  mak- 
ing the  eiToin  was  to   fay,  "  that  his  principal,  as  he  was 
coming  to  the  court  (if  it  was  the  eflbin  de  nialo  veniendi) 
was  feized  with  an  infirmity  in  the  way  from  his  houfe  to 
the  court,  {o  as  not  to  be  able  to  come  either  pro  lucro  or 
pro  damnoy  and  that  he  was  ready  to  (hew  this."     It  was 
not  now  the  pra6licc,  as  it  had  been"^,  for  the  eflbniator 
to  give  any  furety  for  proving  the  truth  of  this,  but  credit 
was  given  to  his  verbal  declaration  j  though  it  feems,  that 
in  the  cafe  of  barons,  and  other  great  perfons,  who  could 
better  command  a  fecurity,  the  law  impofed  on  them  the 
burthen  of  finding  pledges.     In  common  cafes,  therefore, 
the  eflbniator  gave  his  faith,  that  he  would  produce  his  prin- 
cipal at  another  day,  to  warrant  the  eflbin,  and  prove  it "" 
upon  his  oath. 

As  in  actions,  fo  In  cafliing  eflbins,  a  certain  order  was 

to  be  obferved  :  thus,  if  a  perfon  was  detained  by  fome  ill- 

nefs,  he  would  caft  the  eflbin  de  malo  veniendi  intra  regnum^ 

and  this  might  be  followed  by  that  de  nmlo  leEli  \  after  this, 

the  party  would  not  "be  permitted  to  remove  himfelf  extra 

re^nutn.  fo  as  to  cafl:  the  efl^bin  de  ultra  ware.      The  eflbin 

de  ultra  mare  was  of  various  kinds  *,  namely,   de  ultra  mare 

Gr^vcoruniy  and,  de  citra  mare  Graccrum.     In  the  fimplc 

elToin  de  ultra  mare,  there  was  a  delay  of  forty   days  at 

leail,  and  one  ebb  and  one  flood.     If  there  was  mention 

of  any  remote  place,   accompanied  with  fome  caufe  of  ne- 

ceflary  abfence,  as  a  peregrination  to  St.  Jago,  or  being 

with  the  army  in  Germany,  or  Spain,  then  a  longer  time 

was  allowed,  according  as  it  fliould  feem  proper  to  the 

1  Vi<3.  aftt.  115.  "^  Bra£V.  337.  b. 

jullice 


s» 


ENGLISH      LAW.  407 

juflices.  The  fame  difcretion  might  be  cxerclfed  by  the  CHAP.  vri. 
jullices,  where  the  abfence  was  in  fome  didant  part  of  the  henry  m 
kingdom  ;  but  they  could  never  fhorten  the  legal  period  of 
fifteen  days.  The  efToln  ultra  mare  Gracorum^  was  ufually 
in  cafes  of  peregrination  to  the  Holy  Land.  And  here 
.  they  made  a  diiiinclion  between  2ifimplex  percgrinatiOy  and 
"^  generate  pajfagium.  In  the  former,  the  time  allowed  was, 
at  IcaPc,  a  year  and  a  day  '  :  in  the  latter,  the  plea  remain- 
ed j'?/?^  die.  This  latter  privilege  was  granted  in  favour  of 
thole  who  were  rr/.r^  y/y^/;^// ,  and  it  feems  to  have  been 
allowed  in  confequence  of  a  papal  decree  which  declared, 
that  till  the  death  or  actual  return  of  fuch  perfons,  all  their 
property  fhould  remain  intire  and  untouched. 

It  was  held,  that  a  perfon  might  have  the  eflbin  de  pere- 
grinat'ione  ad  Terr  am  ^auBam^  and  afterwards  that  du'  ultra 
mare\  and  then,  when  he  returned,  he  might  have  that  de 
malo  veniendi,  and  afterv^ards  that  de  rnalo  leEli :  but  if 
he  had  had  that  de  tnalo  venie/jdi,  he  could  not,  as  was  be- 
fore faid,  recur  to  that  de  ultra  mare  \  and  if  he  had  had 
that  de  ultra  mare  jhnpliciter ^  he  could  not  have  that  ad 
Terram  San^am  ;  the  rule  of  eflbins  being,  approximare 
pojfunt  regno,  cum  fuerint  vnplacitati^  elongare  aut m  non, 
A  perfon  who  was  abfent  upon  a  /implex  peregrinatio,  and 
(laid  beyond  the  year  and  day,  might  have  another  forty 
days,  and  one  flood  and  one  ebb,  by  reafon  of  the  cfToin  de 
Ultra  mare  fimpliiiter  ;  and  if  he  (lill  (laid,  he  might  have 
fifteen  days  at  lead,  by  an  eflbin  de  malo  veniendi  c'ltra 
mare  \  and  if  a  reafonable  caufe  could  be  ihewed,  the  juf- 
tices,  as  we  have  before  feen,  might  allow  more.  After 
this,  if  he  did  not  appear,  he  would  be  in  default '.  Indeed, 
when  a  perfon,  by  carting  the  eflbin  ''e  malo  ven'iendi^  ad- 
mitted himfelf  to  be  on  his  road  to  the  court,  there  would 
h?.ve  been  an  abfurd  corAradit'^ion  in  allowing  him  to  cait 

«   Rraa    378.  '   Ibi(<.  339. 

.  another. 


4o3  H  I  S  T  O  R  Y      O  F      T  H  E 

CHAT.    VIT.   another,  which  exprefled  that  he  was  out  of  the  kingdom. 

/rrTr^^r  ,1.      The  eflbin  de  fervitio  re^rjs  was  likewife  fometimes  /;;  re^rio^ 
HLl'IRY  III.  ^  °  ...  . 

and  fonietimes  ultramare ;  and  this  Hkcwife  was  fometimes 
followed  by  that  de  malo  venicndi^  and  afterwards  by  that 
de  malo  lefli  ^, 

The  eflbin  defeyvitio  regis,  which  was  more  peremptory 

than    any    of    them,   being   without    any    limitation  of 

time,  was   not    allowed  in  certain  pleas.     Thus,  it  was 

not  allowed  in  an  affife   ultima  prdfentationisj  for  fear  of 

the  lapfe  *,  nor  in  dower,  becaufe  of  the  confideration  due 

to  a  widow  who  had  only  a    life-eftate  ;    nor,    as  fomc 

thought  ^y  in  the  qfftfa  mortis  antecejjoris ,  in  favour  of  the 

infant.     It  did  not  de  jure  lay  for  a  perfon  not  immediately 

in  the  king's  fervice,  though  it  was  allowed  de  gratia^   as 

was  before  faid ;  nor  for  one  conftantly  in  the  king's  fervice, 

unlefs  while  he  was  a£lually  employed  in  fome  expedition  : 

it  did  not  lay  for  the  attorney,  as  a  perfon  fo  engaged  fliould 

not  be  an  attorney.     Bra£lon  repeatedly  lays  it  down,  that 

the  king's  warrant  for  this  eflbin  fliould  never  be  granted 

but  on  a  reafonablc  caufe ;  though,  on  the  other  hand,  he 

is  as  explicit  in  declaring  that,    whatever  might  be  the 

caufe,  the  juftices  fhould  not  quafii  it^  but  wait  the  king's 

determination  thereon. 

The  eflbin  de  malo  vcniendi  implied  that  the  party  was 
taken  ill  on  the  road-,  and  therefore,  if  the  eflbniator, 
upon  interrogation,  faid  he  left  him  ill  at  home,  it  would 
not  be  allowed  :  though  a  cafe  might  happen,  where,  of  ne- 
ceflTity,  it  mud  be  received ;  as  if  the  party  had  been  eflbin- 
cd  de  malo  lecli  in  fome  other  a6lion,  and  languor  was  ad- 
judged, he  mufl:,  under  that  return,  confine  himfelf  to  hij, 
houfe  •,  and  therefore,  when  fummoned  in  another  a6lion, 
and  intitled  to  the  eflbin  de  malo  vemefidi,  it  mufl  of  necef- 
fity  be  received,  though  he  was  actually  in  his  own  houfc. 
The  confinement  which  the  adjudication  of  languor  impofed 

"  Braa.  338.  b.  *   IbiJ.  339.  b. 

on 


ENGLISH      LAW.  4^9 

on  the  party  difpenfed  with  the  ftri£lnefs  otherwife  obferved   CHAP.    vil. 
in  this,  and  fome  other  cafes  ^.  hhnry  in. 

Having  thus  mentioned  generally  the  nature  and 
cffe£t  of  thefe  eflbins,  it  next  follows,  that  we  (hould  in- 
quire by  whom  and  where  they  might  be  ufed.  In  the 
firft  place,  no  minor,  when  known  to  be  fuch,  could  eflbin 
himfelf ;  nor  could  a  perfon  of  full  age  be  eflbined  againft 
him,  efpecially  in  an  aflife ;  for  a  perfon  of  full  age,  if  pre- 
fent,  could  fay  nothing  to  prevent  the  taking  of  the  aflife ) 
though  it  (hould  feem  as  if  he  might  be  eflbined  in  a  fult 
for  land,  of  which  he  was  firfl:  infeofl?ed  himfelf.  The 
reafon  given  by  Bra£lon  why  a  minor  fhould  not  be  cf- 
foined,  is,  becaufe  he  could  not  fwear,  nor  warrant  the 
eflbin.  No  eflbin  lay  for  a  difleifor,  for  though  he  did  not 
come,  his  bailiff  might ;  nor  for  the  bailiff.  This  rigid 
practice  feems  to  be  ifi  odium  fpoliatoris'^y  who  ought  not 
to  be  indulged  with  a  delay  of  fifteen  days ;  though  it  lay 
for  the  demandant,  who  was  the  perfon  fpoiled.  It  did 
not  lay  for  one  committed  corpus  pro  corpore  in  cuftody  to 
anfwer ;  nor  for  any  one  where  the  fheriff  was  commanded 
qtibd  faciat  eiim  venire,  or  quod  haheat  corpus  ejus,  if  the 
procefs  had  gone  through  the  whoX^folenjiitas  attdchiamen- 
torum ;  but  on  the  firft  day  of  attachment  the  party  might 
have  an  eiToin ;  for  it  was  a  general  rule,  that  de  jure  an 
effoin  might  follow  every  fummons,  or  attachment,  where 
a  plea  depended ;  on  the  contrary,  it  was  a  rule,  uhi  nul- 
lum placitum,  ibi  nullum  ejfonium. 

An  effoin  did  not  lay  for  a  perfon  who  had  appointed  an 
attorney,  unlefs  they  had  by  accident  both  effoined  them- 
felves ;  nor  for  one  who  had  already  eflbined  himfelf,  till  he 
appeared-,  nor  for  one  appealed  de forcid ;  nor  in  an  appeal 
de  pace,  de  plagit,  or  de  roberid;  notwithllanding  which 
it  is  laid  down  by  Bradon,  that  if  fuch  perfons  did  not  ap- 
pear, they  would  be  excufcd  by  proper  efl()in.     Sometimes 

''   VixiOi.  3^0.  *  IbliK  340. 

there 


4IO  HISTORY      OF     THE 

CHAP.    VII.    there  would  be  a  dies  datus  confcnfu  partiumfine  ejjonio  \  and 

HK\RY  111     in  fuch  cafe,  neither  would  be  permitted  to  cflbin.  Ifapeifon 

was  feen  in  court  before  the  cfibin  was  cad,  the  eflbin 

would,  nevcrthelcfs,  be  admitted.    An  eflbin  would  not  lie, 

after  a  caption  of  land  in  manus  regis  for  a  default  ^. 

If  a  writ  was  againfl  fcveral  who  held  in  comniuni fnnul 
et  pro  indi'vifo,  each  might  have  an  eflbin  de  male  venieudi 
together  on  the  fame  day,  or  one  after  another  on  diverfe 
days  **,  till  each  had  had  an  eflbin ;  and  none  fliould  have  more 
than  one  eflbin  till  all  had  appeared  together ;  fo  that  thofe 
who  were  eflbined  firft,  might  have  feveral  appearances, 
and  feveral  days,  till  all  appeared  together :  but  an  eflbin 
was  not  allowed  at  every  appearance,  on  account  of  the 
infinite  delay  this  would  occafion.  If  the  inheritance  had 
been  divided,  and  one  was  impleaded  alone  for  his  part, 
and  he  declined  anfwering  without  his  participesy  or  parce- 
ners, and  they  were  fummoned ;  each  had  one  eflbin  be- 
fore appearance,  but  not  viciJ/Jni,  till  it  was  cfl.abliflied 
that  they  were  participes,  and  then  they  eflbined  vicijfiviy 
as  beforementioned.  If  the  tenants  to  the  writ  were  not 
participesy  but  held  by  diflerent  rights,  they  could  not 
eflbin  viajfim^  becaufe  thefe  were  diflerent  pleas :  the  fame 
where  they  held/>ro  divifo.  But  hufband  and  wife  might  ef- 
iomfimul  et  vidjjinjy  like  participes ^  on  account  of  the  intirety 
of  their  rights  *,  and  if  one  made  default,  it  affected  them 
both,  which  was  not  the  cafe  even  with  participes  ^  When 
all  the  parceners  had  appeared  together,  and  it  happened 
that  one  or  more  of  them  afterwards  elToined  himfclf,  or  a 
day  was  given  to  the  parties,  if  prefent,  they  might  recom- 
mence their  eflbins,  as  at  the  firfl:  day  of  fummons.  In 
like  manner,  if  the  writ  contained  more  than  one  demand- 
ant, whether  they  were  participesy  or  hufband  and  wife, 
they  might  cffo'mjtnnd  et  vicijjtm, 

*  Brat\.  341.  ^  Simul  et  vicijftm.  ^  Biad.  341.  b. 

u 


ENGLISH      LAW.  .  411 

If  a  demandant  or  tenant,  not  chufing  to  appear  him-  chap.  vii. 
felf,  appointed  an  attorney,  then  the  eflbin  was  to  be  made  mr^'Ry  m. 
in  the  perfon  of  the  attorney,  and  not  in  that  of  the  prin- 
cipal, except,  as  will  be  feen  hereafter,  in  the  eflbin  de 
malo  k^i^.  Yet,  if  the  attorney  (hould  die,  the  principal 
might  eflbin  himfelf  and  his  attorney  Je  morte^  as  it  was 
called  5  and  he  might  remove  his  attorney  and  eflToin  him- 
felf ;  but  it  was  only  in  thefe  two  cafes  that  the  party 
could  cafl;  an  eflbin  after  appointing  an  attorney  '^. 

If  one  or  more  perfons  were  vouched  to  warranty,  before 
appearance  both  voucher  and  vouchee  might  have  an  ef- 
foin  j  and  if  the  vouchers  were  more  than  one,  they  might 
tffoinjtmul  et  vicijfim^  as  before  mentioned  \  fo  if  the  tenants 
were  more  than  one  *.  After  the  wager  of  duel,  the  cham- 
pion, as  well  as  his  principal,  might  t^o'mftmul  et  vicijfim. 

The  time  for  making  the  eflbin,  was  the  firft  day,  that 
is,  on  the  return  of  the  writ ;  and  it  was  not  fuflicicnt, 
fays  Braclon,  if  the  eflbin  was  made  on  the  fecond,  third, 
or  fourth  day,  yet,  adds  the  fame  authority,  the  perfon 
fummoned  was  to  be  expeBed  till  the  fourth  day,  in  cafe  he 
fliould  come,  or  fend  a  mefl"enger  to  excufe  his  abfencc, 
if  he  had  fuch  matter  to  alledge  as  would  conftitute  a  good 
eflToin :  and  if  he  had,  and  caufed  himfelf  to  be  eflbined  even 
on  the  fecond  or  third  day,   it  feems,  from  Bradon,  that 
the  eflbin  would  be  allowed,  and  a  day  would  be  given  him 
by  his  eflbniator ;  yet,  at  that  day,  if  the  demandant  pleaf- 
ed  to  proceed  on  the  default,  the  court  would  allow  him  fo 
to  do ;  and  if  the  tenant  could  alledge  none  of  the  excufe s 
abovementioned  fur  his  delay,  he  would  lofe  his  feifm. 

The  eflbin  was  to  be  made  in  open  court,  before  the 
jufl-ices-,  neverthelefs,  if  by  mifl-ake  it  was  made  before 
another,  it  was  allowed  a  gratidj  like  the  eflbin  cafl:  after 
the  firfl  day,  as  juO:  mentioned;  and  the  default  would  be 
fdved,  unlcfs  the  demandant  proceeded  for  judgment  on 

«  B-aa.  34Z.  d  Ibi.l.  342.  b.  *  Ibid.  343. 

the 


412  HISTORY      OFTHE 

CHAP.    VII.   the  default,  when  fuch  an  elToin  would  be  adjudged  to  be 

t'l^^J^T^H:'    null  and  void. 

An  eflbin  might  be  had  upon  every  appearance,  and  day 
given  in  court,  whether  on  praying  a  view,  vouching  to 
warranty,  or  on  a  day  ^iwtnfpe  pacisy  as  it  was  called,  at 
the  prayer  of  the  parties,  in  order  to  compromife  the  mat- 
ter in  difpute,  or  for  any  other  purpofe*^. 

De  tr.ah  lec?i.  The  ciToIn  that  occafioned  moft  difcuflion  in  the  prafllce 

of  real  acHons  was  that  de  malo  leBiy  which  commonly 
followed  immediately  upon  that  de  malo  veiilendi  j  for  where 
a  perfon,  having  been  detained  on  the  road  by  ficknefs,  and 
having  call  the  eflbin  de  malo  vffiiendiy  had  found  himfelf 
obliged  to  return  home  *,  the  order  of  eflbins,  conformably 
with  what  was  likely  to  be  the  real  faft,  led  to  the  eflbin 
de  malo  leBi.     Upon  this,  it  was  ufual  for  the  court  to  di- 
rect a  viewy  to  fee  whether  it  was,  as  they  called  it,  wj- 
lum  tranfiensy  or  whether  it  was  languor :  if  the  former, 
then  he  had  another  day,  at  the  diflance  of  fifteen  days  at 
lead ;  if  the  latter,  he  had  the  fpace  of  a  year  and  a  day. 
But  the  eflbin  de  malo  lecfi  did  not,  in  all  cafes,  follow  that 
de  malo  vemendi.     It  did  not  follow  it,  in  a  writ  of  entry ; 
unlefs  when  the  writ  of  entry  was  turned  into  a  writ  of 
right  by  the  form  of  counting  •,   fo  on  the  other  hand, 
when  a  writ  of  right  was  by  the  form  of  counting  turned 
into  a  writ  of  entry,    and  the  tenant  put  himfelf  upon  a 
jtiratay  the  eflbin  de  malo  leBi  would  not  be  allowed :   the 
fame,  if  in  a  writ  of  right  the  counting  was  of  an  inheritance 
defcending  from  a  common  fliock  to  co-heirs  ;  for  this  could 
not  be  determined  by  the  duel,  or  great  aflife.    For  the  fame 
reafon  it  was  not  allowed  in  a  writ  of  right  of  dower ;   it 
being  laid  down  as  a  general  rule  by  Brac^on,  that  where 
the  duel,  or  great  afljfe  might  follow;  and  as  long  as  tlie 
duel,  or  great  aflife  might  be  had*,  there,  and  fo  long,  this 
eflToin  would  lie  ;  and  that  where,  and  w^hen,  either  of  thofe 
trials  could  not  be  had,  it  did  not  lle^. 

'  Biail.  344.  e  IbiJ.  344,  b. 

This 


E  N  G  L  I  S  H     L  A  W.  413 

This  feems  to  be  a  better  rule  than  to  fay,  that  the  ef-  chap.  vit. 
foil!  de  malo  UB'i  lay  in  all  writs  of  pracipe ;  for  though  j^kkry  III 
it  did  lay  in  writs  of  right  as  long  as  they  retained  their  pri- 
mary nature  ;  yet,  as  this  might  be  changed  by  the  form 
of  counting,  it  became  a  lefs  certain  rule  than  the  other. 
However,  by  one  or  the  other  of  thefe  rules  it  might  eafily 
be  pronounced,  whether  both  the  eiToins  de  malo  veniendi 
and  de  malo  lecll  lay,  and  where  only  the  former  *". 

The  eflbin  de  malo  leEli  would  not  lie,  even  in  the  ac- 
tions before-mentioned,  for  any  of  the  following  perfons. 
Thus,  it  would  not  lie  for  a  demandant,  tho'  he  might  have 
that  de  malo  vcnler.di ;  but  his  pledges  would  be  exaded  if 
he  made  default  in  appearing  :  nor  for  an  attorney ;  tho', 
if  an  attorney  was  languiduSy  this  was  fuch  an  infurmount- 
able  impediment,  that  it  would,  from  neceflity,  be  admitted 
as  an  excufe,  but  not  till  the  fourth  day.  It  would  not  lis  ' 
for  a  warrantor,  till  he  had  entered  into  the  warranty  \  be- 
caufe  then  he  might  put  himfelf  on  the  duel,  or  great  afiife. 
It  would  not  lie  before  the  J ujUthrii  itineraniesy  for  a  perfon 
refidlng  in  the  fame  county,  becaufe  he  might  appoint  an 
attorney  ^ ;  nor,  for  the  fame  reafon,  where  the  tenant 
lived  in  London  ^.  Nor  would  it  lie,  where  it  was  not 
preceded,  mediately  or  immediately,  by  the  clToin  de  malo 
'uen'tetidi ;  but  an  eflbin  de  malo  letfiy  io  call,  would  be 
turned  into  that  de  malo  veniendi^  and  would  operate  only 
^%  fuch  '. 

This  elToin  ought  to  be  made  on  the  third  day  inclufively 
before  the  day  given  by  the  eflbniator  in  the  eflbin  de  malo 
'venlendiy  and  it  ought  to  be  caft  by  two  perfons,  who  were 
called,  not  eflbniators,  but  fiuntiiy  nieflengers  ;  becaufe 
they  were  fent  to  make  an  excufe,  fays  Bra£lon,  and  not  to 
eflbin  j  for  they  received  no  day,  nor  did  they  fwear  to  have 
a  warrantor  at  a  certain  day  to  prove  the  eflbin.     This  dif- 


^  Bra-^f.  346    b.  34.7,  ^   \\iu\.  35». 

*  Il)id.  345.  b.  '    Ibiu. 


t2n£^ion 


414  HISTORYOFTHE 

CHAP,    Vir.   tin£^ion  between  an  ejfoniator  and  nmitlus  was  very  mate- 

urxTTiAr  ,.t     rial,  and  was  known  in  other  inftances  than  this  of  the  ef- 
HENRY  HI.  '  ^ 

'  foin  de  malo  leB'u  An  eflbniator  mufl  come  from  the  par- 
ty ;  a  nunttus  might  come  either  from  the  party,  or  of  his 
own  head,  to  inform  the  court  of  any  impediment  that  pre- 
vented the  party's  attendance  ;  and  he  would  be  heard  fo 
late  as  the  fourth  day,  or  later,  down  to  the  time  of  judg- 
ment on  the  default "".  It  was  by  a  Jiutitius,  as  well  as  by 
an  eiToniator,  that  many  of  the  before-mentioned  excufes 
for  non-appearance  ufed  to  be  made. 

When,  therefore,  the  nuntlus  had  delivered  the  excufe, 
the  demandant  had  a  writ  de  faciendo  videre  ",  dire6led  to 
the  (herifF,  to  this  effect :  Miite  quattdor  legale s  milites  de  co- 
miiaiu  iuo  apud  villam^  ^c.  ad  v'ldendum  utrum  infirm'itas^ 
qua  A.    in   curia   nojira  coram  jpjiitiariis  nojiris  apud  JV. 
ejfoniavit  fe  de  malo  leSii  verfus  N.  de  placito  terrce^  fit  Ian- 
guar  Z'el  non.      Et  fi  fit  languor^  tunc  ponat  ei  diem  d  die 
vifus  Jui  in  unum  annum  et  unum  diem  apud  Turrim  Londi- 
niy  quod  tunc  fit  ibi  refponfurus^    vel  fuffuientcm  pro  Je  mlt- 
tat  refponfalem.    Et  fi  non  fit  languor^  tunc  ponat  ei  diem  co  -  ' 
ram  jujlitiariis  nofiris  apud  W,  ^r.  quod  tunc  ft  ibi  refpon- 
furuSy    vel  fvffidentem  pro  fe  m'ttat  refponfalem.      Et  die 
quatuor  militibus  illis  quod  fnt  coram  iifdem  jujiitiarin^  ijc. 
ad  terminum  pradicium^  ad  teflificandum   vifum  fuum^  ct 
quern  diem  el  pofuerunt  j  et  habeas  ibi  nomina  militum^  h^c  ^. 
This  writ  was  to  be  faithfully  and  literally  executed  by  the 
fheriff,  and  needs  no  other  obfervation,  except  in  that  paf- 
fage  where  a  day  is  given  at  the  Tower.   Bradon  fays,  this 
was  done  becaufe  the  conftable  was  always  prefent  there  to 
receive  the  appearance  of  parties,  who  perhaps  had  a  day 
to  appear,  when  no  juftices  were  fitting  on  the  bench  at 
Weftminfter.     However,  if  it  happened  that  the  juftices 
were  fitting,  the  party  was  ftill  to  keep  his  day  before  the 

«"  Braa.  345.  •»  Ibid.  351.  '  Ibid.  352.  b. 

conftable  ; 


ENGLISH      LAW.  415 

conHable  ;  and  the  contlablc  would  give  him  a  day,  either   CHAP.    VII. 
before  the  juftices  of  the  bench,  or,  if  the  pleas  were  ad-    j^i^j^j^y  m. 
journed  before  the  jun.iccs  itinerant,  then  at  the  eyre  p. 

If  the  four  knights,  or  any  of  them,  failed  to  appear,  to 
make  certificate  of  their  view,  proccfs  of  attachment  ilTued 
againfc  them  ;  for  neither  the  view,  nor  certificate  thereof, 
could  be  made  by  Icfs  than  the  four  knights  named ;  and 
therefore,  if  one  of  them  died,  a  new  writ  iffued  for  the 
fhcriff  to  fubilitute  another"--. 

It  was  a  rule,  that  after  the  elTom  de  mala  hell  was  re- 
ceived, the  party  (hould  not  fur^ere^  as  it  was  called,  that 
is,  not  ftir  abroad,  much  Icfs  appear  In  court,  without  hav- 
ing llceiitia  Jurgendi.     This  licence  was  to  be  obtained  by 
fending  foixic  perfon  to  inform  the  juftlces,  that  the  party 
efibined  hid  recovered  his  health.      The  ftridlnefs  with 
which  the  perfon  efibincd  was  to  obferve  the  eflbin,  as  well 
before  view  as  after  judgment  oi  Iniigti-jr  was  pronounced, 
is  very  fingular.    BratTbon  declares,  that  decinHuSy  et  fine 
braccisj  et  difcalceatiis  fe  tenerc  debet  in  leBo  ;  yet  he  adds, 
allcuhi potent  indii'i  vcJlime7iUs  fi  voliievit :  however,  if  he 
went  out  of  his  chamber,  he  was  not  to  go  out  of  his  houfe, 
under  pain,  if  found  abroad,  of  being  arrefted  by  the  de- 
mandant, and  of  lofmg  his  land  as  a  defaulter  in  breaking 
his   effoin.      Such   arreft,  indeed,    ought  properly  to    be 
made  by  the  coroners,  or  fome  ollicer  of  the  king's  court. 
When  the  oflicer  came  with  fufhcient  teflimony  of  other 
good  and  lawful  men  to    prove   that  he  had  broken  his 
eflbin,  the  party  might  endeavour  to  prove  the  contrary  j 
he  might  fiiy,  quod  cum  effet^iali  die  apud  talem  locum  et  in 
lechyficut  i/le  cui  latiguor  adjudicatus,  et  in  pace  domini  re^ 
giiy   lenit  ibi  ipfe  talis  pet  ens  f  et  nequiter,  et  in    felonia 
extraxii  eum   e  dojnofud,  et  a  leElo  fuo^  Ijf  in  roberid  ab/fu^ 
i'tt  ei  tantujn,  contra  pacem  domini  regis  ;    ^  fic  ajfcri,  tofc. 
Upon  this,  a  proceeding  would  commence,  as  in   an  ap- 

P  Er«a.  3 5 J.  *    Hid.  JS4. 

peal. 


4i6  HISTORY      OF     THE 

CHAP.    VH.    peal,  and  the  matter  would  be  determined  by  the  duel,  or 

HENRY  Hi     inquifition ;  and  according  to  the  event  of  this  trial,  one 

of  the  parties  would  lofe  for  ever ;  the  tenant,  quiajlulte 

furrexerit ;  the  demandant,  becaufe  he  malicioufly  drew  the 

party  eflbined  from  his  houfe ;  and  as  he  meant  to  gain 

Ibmcthing  by  that  proceeding,  it  was  but  reafonable,  fays 

Braxton,  that  he  fliould  likewife  be  a  lofer.     If  the  tenant 

was  arrefted  in  a  manifefl  a£l  of  breaking  his  eflbin,  the 

demandant  might  tacitly  wave  the  default  in  this,  as  in 

other  cafes,  by  doing  fome  act  which  fhcwed  he  did  not 

mean  to  proceed  on  the  default ;  as  taking  a  day,  prece 

partiutrty  or  the  like  ^ 

Although  before  the  view  the  party  eflbined  might 
obtain  licentla  furgendi,  yet  afterwards,  and  when  languor 
had  been  adjudged,  he  would  be  obliged  to  confine  himfelf 
in  the  way  above-mentioned,  without  any  I'lcentia  furgendi^ 
the  juftices  having  no  jurifdi6lion  to  grant  it ;  for  the  day 
now  flood  before  the  conftable,  whoTe  duty  it  was  to  remit 
the  plea  to  the  juftices  '.  At  the  end  of  a  year  and  a  day, 
the  party  was  to  appear  in  pcrfon,  or,  if  unable,  he  was  to 
fend  a  refpcnfalis :  no  eficin  could  now  be  had,  that  de  ma- 
lo  leEli  being  the  laft.  If  he  was  ftill  unable  to  appear, 
there  only  remained  for  the  juftices  to  atljudge  it  morbus fon- 
ticus.  Whatever  was  done,  the  conftable  was  to  make  a 
record  thereof,  and  tranfmit  it  to  the  juftices,  and  give  a 
day  before  them  in  banco.  Thus  ended  the  authority  of 
the  conftable.  If  this  eflbin  was  made  not  in  the  king's 
but  in  the  flierifF's  court,  then,  inftead  of  the  Tower  of 
London,  fome  caftle,  or  other  certain  place,  M'ithin  the 
county,  was  appointed  for  the  appearance  at  the'end  of  a 
year  and  a  day  ^  If  the  party  did  not  keep  the  day  ap- 
pointed by  the  four  knights,  his  land  was  taken  h\ par^ 
vutn  cape,  the  fame  as  if  he  had  a6lually  appeared,  becaufe 

'  Braft.  358.  '   Ibid.  358.1.  '  Ibid.  363. 

the 


HENRY   lU. 


ENGLISH      LAW.  417 

the  return  of  the  knights  was  as  a  record,  which  the  party   CHAP.    vif. 
eHbined  was  not  permitted  to  deny. 

There  was  another  efToin,"  which  was  confidered  as 
anomalous,  and  not  at  all  within  the  courfe  and  rule  by 
which  other  eflbins  were  governed.  This  was  the  eflbin 
de  nuilo  villcE  ,•  which  was,  when  the  party  had  appeared, 
but  was  afterwards,  before  any  anfwer  to  the  fuit,  taken  ill 
in  the  town  where  the  court  fat,  and  was  unable  to  attend. 
This,  like  the  efToin  de  malo  lefliy  was  fignified,  not  by 
an  eifoniator  but  a  iiuntius.  The  party  was  to  fend  two 
different  nunt'ii  every  day,  for  four  days  ;  on  the  fourth  day 
the  juftices  were  to  fend  four  knights  to  the  fick  perfon, 
CO  accept  an  attorney  from  him,  and  if  he  was  not  to  be 
found  he  would  be  in  default.  This  ^^qax\  de  malo  villa  did 
T\ot  lie  in  the  county  court,  nor  before  the  juftices  aifigned 
to  take  any  alFife,  or  jury,  nor  in  any  cafe  where  the  party 
was  not  to  be  expeded  till  the  fourth  day ". 

We  have  feen  what  was  the  method  of  cafting  an  eflbin, 
in  order  to  fave  a  default  on  the  return  of  the  writ  of  fum- 
moJiS.  We  now  come  to  fpeak  more  particularly  of  de^ 
faults,  and  their  confequenccs.  This,  like  moft  other  fub- 
jeds,  is  handled  very  fully  by  Braclon,  with  whofe  afTift- 
ance  we  may  attain  a  complete  idea  of  this  part  of  our 
ancient  judicial  proceedings'^. 

If  the  tenant  fent  no  eifoin,  nor  ^ippcared  the  firft  day, 
nor  the  fecond,  third,  nor  fourth  j  then,  provided  the  de- 
7Tiandant  obtulit  fe  on  either  of  thofe  days  before  the  fourth, 
the  land  would  be  taken  into  the  king's  hands  ;  which  cap- 
tion was  not  followed  by  any  fevere  penalty  :  for  if  the  te- 
nant appeared  within  fifteen  days  after  the  caption,  and  de- 
manded the  land  in  court  per  pUvitiam,  and  if  at  the  day 
given  he  could  do  away  the  default,  the  pofTeffion  would 
be  reftored,  or,  as  Bra<fton  calls  it,  reformed.  It  feems, 
that  if  the  tenant  failed  to  appear  the  firft  day,  and  the  de- 

-    Br: a.  363.  *   V;i1.  ant.  r  14. 

^^"L.l.  Ff  mandint 


Dc''aults, 


4i8  HISTORY     OF     T  HE 

CHAP.  vir.  mandant  did  appear;  then,  notwithftanding  the  tenant 
HENRY  in  appeared  the  day  after,  if  he  could  not  fave  his  default,  he 
would  lofe  his  feifm.  If  neither  appeared  the  firft  day,  and 
both  on  the  fecond,  one  default  was  fet  againfl  the  other, 
and  no  advantage  could  be  taken  by  the  demandant ;  and 
fo  of  the  other  days  down  to  the  fourth  :  the  fame,  if  the 
demandant  appeared  the  firft  day,  and  the  tenant  not,  and 
the  tenant  the  fecond,  but  the  demandant  not.  If  they 
both  appeared  on  the  third,  one  default  was  fet  agalnft  the 
other  y. 

During  the  four  days,  the  demandant  and  tenant  were 
allowed  to  {hew  excufes  for  their  non-appearance  ;  and  the 
tenant  might  excufe  himfelf  even  after  the  four  days,  if  the 
ground  of  his  excufe  was  fuch  an  impediment  as  really  pre- 
vented his  appearing,  and  he  had  fent  a  meflenger  to  notify 
it  within  the  four  days.  The  grounds  of  excufe  which  the 
court  would  allow,  were  fuch  as  the  following :  He  might 
fay  that  he  was  put  under  reftraint,  or  imprifonment  (pro- 
vided it  was  not  on  account  of  any  crime) ;  that  he  fell 
among  robbers,  who  bound  and  detained  him,  fo  as  to  pre- 
vent his  fending  a  ineifenger ;  that  he  was  ftopped  by  flood, 
'  fnow,  froft,  or  tempeft,  by  a  broken  bridge,  or  the  lofs  of 
a  boat,  if  there  was  no  other  fafe  paflage. 

If  within  the  fourth  day  he  neither  came,  nor  fent  fomc 
fuch  excufe  for  not  coming,  the  following  entry  was  made  : 
j1.  obtulitfe  quarto  die  verfus  B.  de  placito  quod  rcddat  ei  tan- 
tum  terra ^  iffc.  Et  B,  non  venit.  Et  fummoneas^  iffc,  Ju- 
dictum,  y<:.  that  the  land  (hould  be  taken  into  the  king's 
hands  •,  upon  which  there  ifTued  the  writ  of  Magnum  Cape^ 
as  it  was  called,  to  this  efFe6l :  Cape  in  manum  noJJram 
per  vifum  legalium  hominutn,  tffc.  quam  A.  in  curia,  i^c, 
clatnat  ut  jus  fuum  verfus  ialem  pro  defe^u  ipfius  B,  Et 
diem  captionis  fcire  facias  jujiitiariis,  ^c.  Et  fummoneas^ 
Ijc*  pradi^um   B.    quod  fit  coram  iifdem  jujiitiariis,  i^c, 

y  Braa.  364.  b. 

inde 


Magrtum  Cope. 


ENGLISH      LAW.  419 

ind^  refponfurus  et  ojlenfurus  quare  non full  cor  am  iifdemjufti-   CHAP.    VI  I. 
tiariisy  is'c.  fhut  fummonitus  fuit ;  or,  as  the  cafe  might  be,    upAjoy  m 
quare  tion  obfervavit  diem  fib't  datum  per  ejjoniatornn  *,  iffc. 
The  writ  of  magnum  cape  was  the  procefs  in  all  defaults 
before  appearance  in  court ;  or,  what  amounted  to  the  fame 
thing,  before  the  appointment  of  an  attorney. 

The  day  of  the  caption  ought  to  be  indorfed,  in  order 
to  (hew  the  time  of  fifteen  days,  within  which  the  land 
might  be  demanded  by  plevin.  The  demand  of  plevin  was 
to  be  entered  upon  the  roll  in  this  manner :  Talis  petiit  per 
talem  tali  die  terram  Juam  per  plevitwm,  quce  capta  fuit  in 
vianum  domini  regis,  per  defaltam  quam  fecit  verfus  talem^ 
coram  jujiitiariis  nojlris^  tali  die.  Upon  this  no  writ  if- 
fued,  nor  was  any  thing  done,  except  dire(5ling  the  party 
to  keep  the  day  given  him  in  the  writ  of  caption.  If  this 
plevin,  and  acceptance  of  the  day,  was  done  by  the  tenant 
himfelf,  it  feemed  to  preclude  him  from  denying  any  fum- 
mons  on  the  caption  ;  if  by  attorney,  it  was  dill  left  open 
to  him  to  deny  both  the  firfl  and  fecond  fummons.  The 
efFe£l  of  the  caption  was  not  to  deprive  the  tenant  of  the 
occupation  and  ufe  of  the  land  ;  for  if  fo,  it  would  be  ra- 
ther, fays  Bradon,  a  difleifin  than  a  dillrefs:  fliould, 
therefore,  a  church  become  vacant  in  the  mean  time,  the 
prefentation  belonged  to  the  tenant. 

After  this  dem:xnd per plevi/ia??iy  the  land  was  not  im- 
mediately replevied  to  the  tenant  before  he  appeared,  but  it 
was  firft  feen  whether  the  demandant  would  proceed  on  the 
caufc  of  adion,  or  on  the  default  :  if  the  former,  it  was  a 
relinquifliment  of  the  default,  which  immediately  became 
null,  and  the  land  was  replevied  ^  :  if  the  latter,  it  was  not 
replevied  till  he  had  faved  his  default;  in  which  if  he  failed, 
the  feifin  was  adjudged  to  the  demandant. 

'  Bracr.  365.  *  Ibid.  365.  b. 

F  f  2  Upon 


420  HiSTORYOFTHE 

CHAP.  Vii.  Upon  the  fummons  in  the  magnum  cape  the  tenant  was 
HFNRY  II'  allowed  no  eflbin,  nor  had  he  the  a^/Vj  r^2f/^«/7^i/ij-y  as  it  was 
called,  that  is,  the  indulgence  of  fifteen  days;  becaufe, 
being  in  contempt,  he  defervcd,  according  to  Braflon, 
HO  more  favour  than  in  cafe  of  a  difleifin.  The  fum* 
moners  were  to  come,  if  neccfTary,  to  teflify  the  fum- 
mons. At  the  return  of  the  magnum  cape,  if  the  tenant 
appeared,  and  the  demandant  made  choice  of  proceeding 
on  the  default,  the  tenant  might  deny  the  fummona  (and 
'  fometimes  the  eflbins  de  inalo  veniendi  and  de  malo  leBiy  if 

any) ;  and  if  the  fummons  was  teflifiedby  the  fummoners  on 
examination,  he  muft  wage  his  law  thereof  j  and  upon 
that  another  day  would  be  given  to  make  his  law,  and 
pledges  likewtfe  muft  be  found.  Upon  the  day  appointed 
for  making  his  law,  an  cfToin  lay  for  both  parties^.  If  at 
length  he  made  his  law,  he  faved  the  default,  but  was  ob- 
liged the  fame  day  to  anfwer  to  the  a£^ion,  that  no  further 
delay  might  be  added  to  the  interval  between  waging  and 
making  law.  If  he  failed  in  making  his  lav/,  he  loft,  and 
the  demandant  recovered  feifin  of  the  land  :  further,  the 
tenant,  and,  according  to  BracSlon,  the  pledges  likewifc 
were  to  be  in  mifencordid. 

If  the  tenant  did  not  appear  to  the  magnum  cape  on 
the  firft  day,  but  on  the  fecond,  third,  or  fourth,  and  the 
demandant  came  the  firft  day  and  demanded  judgment  of 
both  defaults,  the  tenant  was  required  to  defend  both  ; 
unlefs  he  had  precluded  himfelf,  with  refpetl:  to  the  latter, 
by  demanding  plevin  in  perfon,  as  before  mentioned  •,  for 
if  both  were  not  removed,  he  would  continue  in  clefault. 
Should  the  default  not  be  faved  in  fome  of  the  aforefaid 
ways,  judgment  would  be  given  for  the  demandant  to  re- 
cover feifm  of  the  land  taken  by  the  magnum  cape'' ;  upon 
which  a  writ  oi  feiftna?n  habere  facias  wonX^  iffueto  this 

^  Bjaa.  366.  «:  Ibid.  366.  b. 

effca  ; 


ENGLISH      LA  W.  4^1 

effeia  :   Scias  quod  A.  in  curia^  tffc.  per  confideratlonem  cu-    CHAP.   VII. 
rire  recuperavit  feiftnam  de  tanta  terns,  CJc.  ut  de  jure  fuo^     KILNRY  IK. 
<verfus  B.  per  def&Uam  ipfius  B.      Idea  tibl  prac'ipimus  -quod 
ipft  A.  d<i  pradi^a  terni  fme  dilatiati-e  pUnariam  feifmum 
habere  facias,    k5\. 

When  the  tenant  had  loil  in  this  manner  by  default, 
there  ftill  remained  a  remedy  for  him ;  for  he  might  reco- 
ver in  a  writ  of  right  at  any  time  till  the  duel  was  waged, 
or  the  tenant  had  put  himfelf  on  the  great  afllfe.  Some 
thought  it  was  open  to  him  till  the  four  knights  were  fum- 
moned  ;  others,  till  the  twelve  were  clcded  ;  but  it  was 
agreed,  that  no  recovery  could  be  had  of  land  taken  for 
default,  after  the  twelve  were  ele6led.  The  tenant  had  a 
remedy  likewife,  if  there  had  been  any  fraudulent  contri- 
vance in  the  demandant  to  prevent  his  being  fummoned  j 
for  when  this  was  difcovered,  there  would  be  neither  a  cap- 
tion, nor  judgment  for  a  default;  and  if  judgment  was 
-given,  and  any  thing  done  thereon,  it  ihouM  be  revoked. 
The  tenant  might  recover  likewife,  if  judgment  of  feifm 
had  pafTed  while  he  was  abroad,  and  he  had  a  t  been  pre- 
vented, as  before-mentioned,  by  the  fervice  of  a  fummons* 
Era£lon  alks,  by  what  writ  he  (hould  proceed  in  this  lafl 
,cafe  ;  for  neither  the  juflices  nor  demandant  had  been 
guilty  of  any  irregularity,  as  the  fummoners  teflified  the 
fummons  to  have  been  lawfully  made  ?  And  he  thought  that 
^he  tenant  might  proceed  by  aflife  of  novel  diflcifm  ;  for  he 
was  in  effedl  unjuftly  difleifed,  tho'  by  a  judgment  in  court, 
and  the  demandant,  fays  Bra£lon,  in  his  anfvver  to  the  af- 
fife '',  might  call  upon  the  king's  court  to  warrant  him ; 
and  then  the  court,  which  had  been/o  deceived,  would 
revoke  and  vacate  the  procefs  and  judgm.cnt. 

As  the  judgment  of  Scifin  might  be  vacated  and  revoked, 
fo  might  the  default  l^e  faved  before  fuch  judgment  was 
pafTed  ;  and  this  In  various  wav^"-. 

^  Bra-*!    ^6". 

The 


422  H  I  S  T  O  R  Y      O  F      T  H  E 

CHAP.    VII.       The  principal  of  thefe  was,  the  excufe  which  vvas  be- 
HENRY  III     ^^^^  mentioned  when  we  were  fpeaking  of  eflbins,  namely, 
a  warrant  that  he  was  in  the  king's  fervice.   This  was  figni- 
fied  by  a  writ  to  this  efFe£t.     After  reciting  that  he  was  in 
the  king's  fervice,  it  went  on :   iiJeo  vobis  maJidamusy  quod 
propter  abfentiam  fuam  ad  diem  ilium  coram  vobis  iwn  pond" 
tur  in  defaltam,  nee  in   aliquo  fit  per  dens  y  quia  diem  ilium  ei 
luarrantizamus,     A  perfon  might  be  protected  by  fuch  a 
writ  defervitio  regis  for  a  certain  term,  as  from  fuch  a  day 
to  fuch  a  day  •,  and  they  ufed  to  be  obtained  not  only  to  fave 
defaults  in  particular  a6tions,  but  to  fave  the  default  of  ap- 
pearance on  any  general  fummons,  as  that  to  appear  before 
the  juftices  at  their  eyre.     As  the  king's  fervice  was  a  fuf- 
ficient  warrant  to  difpenfe  with  attendance  in  court  •,  fo  was 
the  being  party  to  a  fuit  in  the  fuperior  court  a  fufficient  ex- 
cufe for  not  appearing  in  the  county,  court-baron,  or  other 
inferior  court,  and  a  writ  ufed  to  iffiie  to  warrant  him  in 
fuch  abfence "",     The  juftices  of  the  bench  might  fend  a 
writ  to  the  juftices  itinerant,  informing  them  that  a  party 
was  attendant  before  them,  and  this  would  excufe  his  ap- 
pearance in  the  eyre.     The  warrant  de  fervitio  regis  could 
never  be  applied  fo  as  to  enable  the  party  making  default 
to  gain  any  thing,  but  merely  to  indemnify  him  for  a  lofs ; 
nor  could  it  fufpend  a  judgment  in  any  matter  contra  pacem 
regis,  as  outlawry  or  the  like.     The  other  grounds  upon 
which  a  tenant  might  get  the  judgment  and  execution 
revoked  and  vacated,  were  fuch  as  have  been  before  ftated 
as  fufficient  to  fave  the  default  before  judgment ;  fuch  as 
imprifonment,   being   abroad  before   the   fummons,    and 
other  matters,  which  (hewed  the  abfence  to  be  not  volun- 
tary, but  of  neceifity. 

The  warrant  de  fervitio  regis  was  liable  to  be  contro- 
verted.    It  might  be  fhewn,  that  the  party  was  at  another 

*  Braa.  367.  b. 

place 


E  N  G  L  I  S  H      L  A  W.  423 

place  than  that  dated  in  the  warrant ;  or,  perhaps,  even  in  CHAP.  vil. 
court,  but  declining  to  enter  an  appearance  at  the  time  he  henry  hi. 
was  fuppofed  by  the  writ  to  be  in  fervitio  regis,  Bradlon 
is  of  opinion,  that  fuch  matter  might  be  objedled  againfl  the 
writ;  tho*  he  admits,  as  on  a  former  occafion,  that  if  a 
reprefentation  was  made  to  the  king,  and  he  perfifted  in 
continuing  the  warrant  de  fervitio,  there  was  no  remedy  \ 

Before  judgment  of  feifin,  a  default  might  be  done 
away  by  certain  a£ls  of  the  demandant  which  were  con- 
flrued  as  an  implied  renunciation  of  the  default ;  as  if  he 
accepted  a  dies  a??wris,  or  removed  the  plea,  or  cafl  an  ef- 
foin.  When  therefore  he  took  a  dies  amoris,  it  was  ufually 
accompanied  with  a  proteftation,  quodfi  amor  fe  non  capiat y 
falvus  Jit  ei  regrejfus  ad  defaltam.  A  default  might  be  re- 
leafed  either  by  a  principal,  an  attorney,  or  a  warrantor^. 

Thus  far  of  defaults  committed  by  the  tenant.  The 
law  was  nearly  the  fame  as  to  the  demandant.  Thus,  if  he 
made  default  and  the  tenant  appeared,  and  the  writ  came, 
notwithftanding  the  demandant  might  offer  himfelf  at  the 
fourth  day,  the  tenant  would  go  quit,  and  the  demandant 
would  be  in  mifcricordid*  The  demandant  had  the  fame 
excufes,  which  we  have  juft  (hewn  the  tenant  to  have,  to 
fave  his  default.  If  neither  the  demandant  nor  writ  came 
at  the  firfl;  day,  and  the  tenant  had  eflbined  himfelf,  then^ 
altho'  there  was  no  authority  for  proceeding,  yet  Braclon 
fays,  he  (hould  not  be  entirely  abfolved,  but  dicatur  ei  quid 
iatficut  venit :  the  fame,  if  the  demandant  came,  and  nei- 
ther the  writ  nor  tenant.  But  if  the  demandant  and  tenant 
both  came,  or  either  had  efibined  himfelf,  and  the  writ  did 
not  come,  yet  ftill  alius  dies  fliould  be  given  the  parties, 
and  the  demandant,  or  his  eflbniator,  would  be  com- 
manded to  caufc  the  writ  to  be  returned,  as  would  llkewife 
the  flierifF.     Again,  if  both  parties  were  prefent,  and  the 

^  Bra£\.  368.     Vul  ant.  405.  c  Brsil    369.  ^  IbiJ.  369.  b. 

writ 


424  H  I  S  T  O  R  Y      O  F      T  H  E 

CHAP     vir.   writ  not  returned,  the  tenant  nnight   demand   the  judg- 
^^'7^yl/!T^    ment  of  the  court,  whether  he  ought  to  anfwer  without  <i 

riII^JKY    111.  ^ 

writ ;  and  then  he  would  have  judgment,  quad  quietus  recedat 
de  brevi  illo. 

-  If  the  writ  was  againfl  more  than  one  tenant,  and  onp 
appeared,  one  cafl  an  efibin,  and  one  made  default,  alius 
dies  would  bff  given  to  the  two  former;  but  the  other  was 
to  be  proceeded  againil  by  cape,  taking,  if  he  rvas  one  of 
feveral  parceners,  only  his  portion  of  the  land.  If  the  fame 
default  happened  where  the  demandants  were  parceners, 
then  a  writ  would  ilTue  againft  the  defaulter,  fummoning 
him  ad  fcquendum  cum  B.  ^  C.  participibus  Juts  in  placito 
quod  efi  inter  A.  B.  C.  pcientes  et  D,  &c.  et  unde  idem  D. 
die  it  quod  non  vult  iifdem  B.  6f  C.  refpcndere  fwe  pradiSlo 
A.  l^c.  If  the  defaulter  did  not  appear  at  the  return  of 
this  writ,  neverthelefs  B.  and  C.  might  proceed,  as  for 
their  part,  if  they  pleafed  *.  If  hufband  and  wife  were  de- 
mandants, or  tenants,  they  were  not  confidered  ?i%participesy 
biit  the  fame  perfon ;  and  the  default  of  one,  was  the  fame 
as  the  default  of  both.  If  they  were  tenants,  and  the  wife 
faid  her  hufband  was  dead,  the  judgment  of  fcifin  would  be 
fufpended,  though  flie  had  no  proof  or  fecfa  to  eftabliih 
the  fa6l ;  and  a  day  would  be  given  for  the  wife  to  prove 
the  death,  and  the  demandant  the  life ;  and  it  fcems  from 
Braclon,  the  mere  di6lum  of  the  wife  was,  in  this  cafe,  held 
fuiTicient  to  throw  the  onus  probandi  on  the  demandant. 
Faf'vum  cape.  We  have  before  faid,  that,   upon  a  default,  the  caption 

of  the  land,  or  other  thing  in  queftion,  was  either  by  tnag- 
num  cape^  ox  parvuin  cape.  It  will  be  proper  to  examine 
more  particularly,  when  the  one  and  when  the  other  was 
the  proper  remedy.  Bracton  lays  it  down  as  a  general 
rule,  that  in  all  cafes  where  a  perfon  might  deny  a  fum- 
mons  per  legem^  (which  he  might  before  appearance) 
v^hether  in  the  king's  court,  in  the  county,  or  court  baron, 

'  J3;aft.  370. 

there 


K  N   G  -L  i  S  H      LA  W.  425 

there  the  caption  fliould  be  by  the  magnum  cape:  the  CHAP.  VII. 
lame,  where  on  defauh  to  a  writ  of  po?ie  for  removing  a  h£jjj^y  lir 
plea  from  the  county  to  the  king*s  court,  though  the  te- 
nant had  in  the  county  put  himfelf  on  the  great  aflife  ^,  and  > 
the  four  knights  had  been  fummoned,  if  the  tenant  made 
default  to  the  writ  of  po/ie :  (o  upon  a  removal  from  the 
court  baron  to  the  county,  on  account  of  the  lord  having 
i/e  i-ecio  dtficijje :  fo  when  all  the  pleas  in  banco  were  put 
fine  die,  on  account  of  the  iter  jujliiiarioriim,  and  were 
again  re-fummoned  \  and  fo  in  all  cafes  of  re-fummons,  ex- 
cept in  the  re-fummons  after  a  determination  of  baftardy  in 
the  ecclefiallical  court,  where  the  procefs  v^'^s parvi/m  cape; 
becaufe  there  remained  nothing  further  but  judgment  to 
be  palled,  which  was  not  the  cafe  in  the  former  inftances, 
in  all  which  the  party  might  wage  his  law  of  non- 
fummons. 

If  a  perfon  had  once  appeared  in  court,  and  had  another  / 

day,  fo  as  that  he  could  not  deny  the  day  and  fummons /^r 
legem,  or  if  he  had  done  any  thing  that  furniftied  a  pre- 
fumption  of  his  having  been  fummoned,  as  making  an  at- 
torney, in  fiiort,  Braclon  lays  it  down  generally,  that 
where  a  perfon  had  once  appeared  In  court,  and  then  made 
default,  the  caption  fhould  be  by  parvum  cape^.  The 
diilinclion  when  the  one  or  other  of  thefc  writs  Oiould  be 
ufed,  feems  very  extraordinary,  as  there  is  no  dinerence  in 
the  forms  given  by  Bradlon ;  nor  does  there  feem  to  be 
any  in  the  effe^l.  Indeed,  the  latter  is  fpoken  of  very 
nightly  by  that  writer :  he  barely  fays,  if  the  party  did  not 
come  on  the  firfi:  day  of  the  fumnions,  on  the  parvum  cape, 
he  ibould  be  expected  till  the  fourth ;  aiul  on  the  fourth,  the 
feifin  fliould  be  adjudged  to  the  demandant;  and  the  te- 
nant fliould  have  fuch  recovery  qua/e  habere  debebit ;  as  if 
he  might  recover  in  the  fame  manner,  as  had  been  before 

^  Braa.  370.  b.  *   Ibid.  J71. 

mentioned 


426 


HISTORY     OF     THE 


CHAP.   VII.   mentioned  in  cafe  of  a  magnum  cape  "*.     The  whole  of  the 
hjtJ^C**??]/    learning  which  we  have  juft  been  delivering  refped^ing  the 
nwgnum  eape^  feems  to  have  been  equally  applicable  to  the 
parvum  cape. 

We  have  been  fpeaking  of  the  proccfs  by  caption,  as 
the  regular  procefs  in  anions  real :  it  was  likewife  ufed  in 
fome  mixt  actions;  which  were  both  in  rem,  and  in perfo- 
7iam ;  where  each  party  might  be  faid  to  be  aEfor  and 
reusy  though,  in  form  of  law,  he  alone  was  aclor  who 
brought  the  writ  \  as  where  the  inheritance  was  divifible, 
cither  ratione  rei,  or  ratione  perfonarum,  and  one  part iccps 
brought  a  writ  againft  another  pro  raUonahili  parte :  fo 
where  land  was  in  commimi  to  perfons  who  were  not  co- 
heirs, and  one  brought  a  writ  for  a  divifion :  fo  where  a 
conteft  arofe  between  neighbours  for  a  boundary,  and  one 
brought  a  writ  againft  the  others  pro  rationahiUhus  divifis. 
For  if  in  either  of  thefe  three  actions,  or  in  any  fimilar  to 
them,  a  default  happened,  the  procefs  was  the  fame  as  in 
real  a£i:ions.  But  where  two  actions  were  contained  in  one 
writ,  one  being  ///  perjonam,  the  other  in  rem ;  as  where  a 
pcrfon  was  fummoned  to  fhcw  quo  ivarranto  he  held  fuch 
land,  and  then  the  writ  went  on  and  faid  quam  dominus  rex 
clamat  ejje  efchaiamfuam  ;  in  this  cafe,  as  there  would  arife 
an  appearance  of  claim  to  two  forts  of  procefs,  Bradlori' 
thought,  contrary  to  the  opinion  of  fome  others,  he  fliould 
have  that  which  carried  moft  compulfion,  namely,  the  pro- 
cefs real  by  caption.  Sometimes  thefe  two  matters  ufed 
to  be  feparated ;  and  then  upon  the  writ  which  contained 
the  quo  ivarranto,  or  quo  jure,  the  procefs  was  attachment, 
and  not  caption  of  the  land". 
Writ  of  ?»»  It  may  be  here  remarked,  that  by  this  fimple  writ  of  quo 

'warrant.  ^varrauto,  OX  quo  jure,  nothing  could  be  recovered;  for  it 

was  merely  to  call  upon  the  tenant  to  fliew  by  what  title  or 


^ 


^  BraQ.  371.  b. 


Bia£>.  37X. 


warrant 


E  N   G  L  I  S  H      L  A  W.  477 

warrant  he  held ;  and  If  he  held  by  none  at  all,  yet  this  gave  chap.  vh. 
no  title  to  the  demandant;  but  the  demandant  having  made  henry  iu 
this  difcovery,  mud  refort  to  another  writ  if  he  would  re- 
cover the  land  p.  This  writ  of  quo  ivarranto  or  quo  jure, 
by  which  a  man  might  be  called  upon  to  (hew  his  title, 
enabled  a  litigious  perfon  to  difturb  the  peace  of  any  man's 
ellate,  whenever  he  pleafed.  How  far  the  party,  fo  called 
upon,  was  required  to  difclofe  his  title,  does  not  appear. 
Bra£lon  fecms  to  fpeak,  as  if  it  went  no  farther  than  the 
title  to  pofleflion,  and  the  general  point,  whether  by  defcent 
or  purchafe;  and  he  feems  to  confider  it  as  an  ungracious 
and  unhandfome  proceeding.  From  the  inftance  given  by 
Braclon,  it  may  be  collected,  that  this  writ  of  difcovery  lay 
only  for  the  king  <i. 

After  the  eflbins,  and  other  delay,  or  at  the  firfl:  day  of  The  count, 
the  fummons,  in  the  writ  of  right,  if  the  parties  both  appear- 
ed, the  demandant  was  to  propound  his  intentio  %  as  it  was 
called  by  Bra£lon,  or  county  and  (hew  the  form  in  which  he 
meant  to  conteft  his  claim.  For  this  purpofe,  after  the 
writ  was  read,  the  demandant  or  his  advocate,  in  the  pre- 
fence  of  the  juftices  on  the  bench  was  to  declare  himfelf  to 
this  efFedt :  Hoc  oflendit  vohis  A,  quod  B,  injufie  ei  Aeforuat 
tantum  tivra  cum  pertinentiis  in  tali  villa^  et  ideo  injuftcy 
quod  quidam  antecefjor  fuu%  nomine  C.  fuit  inde  vejittus  et 
Jeifttus  in  doniiniiojuoy  ut  de  fcedo  et  in  jurgy  tempore  Henrui 

REGIS  AVI   DOMINI   REGIS,  [or  TEMPORE  K'CGIS  Ricardi 

avunculi  domini  regis,  or  tempore  johannis  regis 
PATRIS  domini  REGIS,  or  tempore  HENRICI  regis  qui 
nunc  e/i]  capiendo  inde  expletia  ad  vuUntiajn  quinq\  Joliu'f- 
rum^Jicut  in  bladis^pratis,  redditibui  et^aliis  exitihus  teme\ 
et  de  preedi^o  C,  dejcendit  jui  TERRff  ILMUS,  or  as  fomc 
cxprefied  it  descendere  debuit  cuidam  D,  ut  Jilio  et 

p  Rracl.  372.  b.  from   the    csnon-law,     a-    Clanvillft 

*»  Ibii*.  did   thf   term  petilh  liom    the    civil, 

'    BraC^OQ   here  borrow*    a    term     to  Cjoify  the  caun:. 

haredip 


HENRY  111. 


428  H  I  S  T  O  R  Y     O  F     T  H  E 

CHAP.  VTI.  h^redi,  et  de  pradiHo  D,  cut  dam  E.  ut  filio  et  haredi^  et  de 
prffdi^fo  E.  ijli  A.  qui  nunc  petity  ut  filio  et  haredi,  Et  quod 
tale  fit  jus  [uum^  ofifert  difrationare  per  corpus  talis  Uberi 
hotninis  fui^  v el  alio  modo^fiicut  curia  confideravit. 

Certain  parts  of  the  count  are  worthy  obfervation. 
Thus,  we  fee,  it  was  not  fufficlent  barely  to  fay,  peto  tan- 
tarn  terrain  ut  jus  meum,  but  this  claim  was  to  be  ground- 
ed upon  fome  fuggeftion  that  would  demonftrate  it,  and 
iliew  in  what  manner  and  by  what  degrees  the  /w/  ought 
to  defcend  to  the  demandant.  Again,  as  the  objeft  of  9 
writ  of  right  was  to  recover  as  well  the  jus  pojfejfionis  as 
the  jus  proprietatisy  upon  the  feifin  of  a  certain  anceftor,  it 
was  not  enough  to  fay  that  fuch  anceftor  was  feifed  in  do- 
m'tnico  fuoy  ut  de  libera  tenementOy  only,  but  that  he  was 
feifed  /;/  dominico  fuo,  ut  defcedo^  which  included  in  it  the 
Hheruni  teriementuniy  and  whole  jus  pojpjjiofiis :  nor  was 
it  enough  to  fay  that  he  was  feifed  in  domimco  fuoy  ut  de 
foedoy  without  adding  et  jure^  which  included  in  it  the 
jus  proprietatis .  Nor  would  the  concurrence  of  thefe  two 
rights,  thofe  of  pofTelTion  and  propriety,  called  droit  droit y 
fuITice,  unlefs  the  anceftor  named  held  the  lan-d  in  dominic9 
fuo  -,  for  if ""  it  was  in  fervitio  only,  he  would  fail,  the  writ 
of  right  being  for  a  recovery  in  dof?jinico;  for  the  demandant 
counted  on  the  feifin  of  the  anceftor ;  and  therefore  th^ 
fame  feifin  muft  be  recovered  which  the  anceftor  had. 
Again,  it  was  not  fufticient  that  the  anceftor  was  feifed  in 
dominico  fuo,  ut  de  foedo  et  jure,  unlefs  he  added,  that 
expktia  cepit.  For  though  a  perfon  may  have  a  liherum 
tenementuin  TinAfcedum  without  the  expletia  in  a  poftefTory 
action,  as  was  before  fhewn  in  the  afTife  of  novel  difteifin 
and  mortaunceftor ;  yet  the  feifm  of  t\\t  proprietas  was  re- 
quired not  to  be  fo  momentary,  but  that  there  ftiould  be 
time  to  take  the  rxpletia  ;  and  therefore  it  was  held,  if  there 
was  no  mention  of  expletia,  the  action  would  abate.     Thus, 

'  Bra£^.  3:1.  b. 

if 


ENGLISH      LAW.  429 

if  In  h^  no  exphfia  were  taken,  and  the  party  had  fuf-  CHAP,    vfi, 
fered  the  time  of  bringing  an  afTife  of  novel  diffeifin  or  mort-    henr  Y  III 
aunceftor  to  pafs,  and  brought  his  writ  of  right,  he  would 
have  no  recovery. 

Again,  it  was  required  that  a  certain  time  (hould  be 
mentioned,  that  is,  the  time  of  Ibme  king,  as  tempore  talis 
regis ;  for  a  writ  of  right,  like  other  writs,  had  a  time  of 
limitation.  Thus  in  the  time  of  Glanville  ^  it  was  not  to  ex« 
ceed  the  time  of  Henry  I.  and  now,  by  a  late  ftatute,  it  was 
not  to  exceed  the  time  of  king  Henry  II.  the  prefent  king's 
grandfather  J  the  reafon  given  for  which  was,  that  beyond  that 
period  no  one  could  fucceed  in  making  a  proof,  whatfo- 
cver  right  he  might  have  :  for  a  demandant  could  not  make 
proof,  fays  Bra6ton,  but  de  vifu  proprio^  or  that  of  his  fa- 
ther, who  enjoined  him  to  teftify  the  fact,  if  any  conteft 
fliould  arife  upon  it  •,  and  if  Braclon  wrote  towards  the  clofe 
of  this  reign,  the  above  period  of  limitation  was  perhaps  as 
far  as  this  fort  of  proof  could  well  reach.  When,  therefore, 
a  demandant  mentioned  the  time  of  Henry  I.  he  would  fail, 
for  want  of  proof. 

If  his  anceftor  happened  not  to  be  feifed  in  the  time  of  Ten.ier  of  ihc 
the  king  mentioned  in  the  writ,  although  he  was  feifed  in 
another  king's  reign,  yet  the  demandant  might  perhaps  fail 
tl^^ugh  this  error,  the  fame  as  if  he  had  never  been  feifed 
at  all.  But  the  iffue  to  be  tried  by  the  great  affife  being, 
which  of  tlpe  parties  had  mod  right ;  the  king's  time  did 
not  properly  come  within  the  confideration  of  the  recogni- 
tors ;  and  the  right  between  the  parties  might  be  decided 
with  juftice  in  favour  of  the  demandant,  although  he  had 
failed  in  the  time  of  feifm  mentioned  in  his  count :  when, 
therefore,  the  demandant  had  put  himfclf  on  the  great 
aflife,  and  the  tenant  had  fufpicion  that  the  anceflor  was 
not  really  feifed  at  the  time  mentioned  in  the  count  -,  as  per- 
haps he  was  not  born,  or  was  dead  at  the  time  -,  he  ufcd 
to  pray  that  the  time  of  feidn  might  be  inquired  of  by  the 

»  Vid.  ant.  164. 

recognitors : 


430  H  I  S  T  O  R  Y     O  F     T  II  E 

CHAP.    vrr.   recognitors  :  and  to  obtain  the  favour  of  this  extraordinary 

HENRY  III  ^^^^^n>  ^^  ^^^  t^^  pra£lice  for  the  tenant  to  give  fomething, 
darf  de  Juo^  as  Bra6lon  calls  it ;  this  being,  probably,  a 
remnant  of  the  old  cuftom  of  putting  juftice  to  fale  ;  an 
abufc  which  was  long  permitted  and  made  a  gain  of  by  our 
kings,  and  was  at  laft  provided  againft  by  a  claufe  in  the 
famous  chapter  of  the  Great  Charter '.  To  prevent  the  te- 
nant taking  advantage  of  an  error  in  mentioning  the  time, 
the  demandant  was  permitted  to  correft  it,  and  fpeak  of  the 
time  of  another  king ;  and  this  was  allowed  in  any  flate  of 
the  caufe  till  the  tenant  had  anfwcred,  and  put  himfelf  on 
*  the  great  afhfe,  or  defended  himfelf  by  duel ;  but  not  after- 

wards could  the  queftion  of  time  be  moved  by  the  te- 
nant ^  The  feifm  was  required  to  be  tempore  pacts ;  be- 
caufe,  during  wars,  like  thofe  in  the  time  of  king  John 
and  the  prefent  king,  many  perfons  were  violently  diflcifed, 
and  afterwards,  in  tim^  of  peace,  were  rcftored  to  their 
own  property. 

When  the  count  was  thus  founded,  the  demandant 
was  to  offer  to  prove  it,  as  was  before  mentioned  5  which 
offer  was  fometimes  dated  more  fully  :    Offert  difrationare 


^•"  Vid.  ant.  449,  It  is  to  be  lamented  Dat  ahquando  tenens  ie  fao  pro  haheiiiiS 

that  our  author,who  has  opened  to  the  mentione  de    tempore.      Perhapv  fome 

rnodern  reader  fo  many  fecretsof  our  reafon  might  be  given  in  thoiV  time?, 

oM  jurifprudence,   (hould  be  Icfs  ex-  to  fhew  that  the  king  might  accept 

plicit   on    a   point    that   has   caufed  this  tender  of  money  for  a^  judicial 

much  difficulty  amongltlav^yers.  77"^  grace,     without     viokting     Magna 

tender  of  the  demi-marky  as  it  was  af-  Charta.      This    perhaps    might     be 

terwards  called,   is  the  praftice  here  thought  to  rtand  on  the  fame  footing 

noticed  ;  but  this  is  done  fo  (liortly  with  the  king's  filvcr,  which   is  ftill 

as  to  throw  no  light  upon   it ;  and,  given  pro  licentia  conccrdanAi.     1  h« 

unhappily,  the  ])an'aee  is  fo  obfcured  truth  is,  that  the  charter  only  aimed 

by   the   ufe   of  a   word,  and   that  a  at  flagrant   and    enormous  partiality 

technical  one,   in  two  fcnfes,  that  it  when   oluaincd    by   corruption,    and 

IS  difficult  to  make  out  any  meaning  not  at  fuch  trifling  payments  as  were 

at  all.     Having  ufed  the  w©rd  mert'  mad«  and  accepted  of  courfe  from 

tis    to  exprefs    the    naming  of    the  every  body,   as  a  moderate    recom- 

tiroe  of  feifiB  in   the  writ,  he  after-  pence  to  the  officers  of  the  court  for 

wards  ufes   it   to  fignify  the  moving  their  labour  and  attendance, 
the  qucrtion  of  fcifin  by  the  tenant :         *  Brat^.  373. 

per 


E  N  G  L  I  S  H      L  A  W.  431 

per  corpus  talis  liber i  hemlnis  fuiy  et  talis  nomine^  qui  hoc  pa-    CHAP.  VII. 

raius  ejl  dijrationare  per  corpus  fuum,  fuut  ilk  qui  hoc  vidit^    HENRY  111. 

or  de  vifu  patrisfui  cui  pater  fuus  ciim  ejfet  agens  in  extre- 

mis  injunxit   in  fide  qua  filius  patri  tenehatur^  quod  fi  inde 

loqui  audiret  (as  before  mentioned)  quod  inde  tefiis  ejfei ;  et 

hoc  per  (orpus  fuum  difrationare  ficut  illud  quod  pater  fuus 

vidit  et  audivit.     If  any  of  the  above  clrcumftances  were 

omitted,  and  the  proceeding  had  gone  too  far  to  correal 

the  error,  the  demandant  would  lofe  his  claim  for  him  and 

his  heirs  for  ever. 

Another  material  part  of  the  count  was,  the  deducing 
the  defcent  from  the  anceftor  feifed  down  to  the  demand- 
ant. This  was  plain  and  eafy,  when  the  defcent  was  in 
the  right  line ;  but  when  it  was  necefiary  to  go  over  to  the 
tranfverfe,  or  collateral  line,  it  became  more  difficult: 
then,  inftead  of  deducing  it  from  father  to  fon,  a  tranfition 
mud  be  made  in  this  way  :  Et  quia  idefn  talis  obiit  ftne 
harede  de  fe,  revertehatur  jus  terra  illius  tali  ut  avunculo  et 
harediy  i2fc.  And  in  this  it  was  necefiary  to  obferve,  that 
thtjlipes  reforted  to  did  not  exceed  the  time  of  limita- 
tion before  mentioned.  If  a  fon  died  in  the  life-time  of 
his  father,  it  was  the  opinion  of  fome,  that  he  need  not  be 
mentioned  in  the  defcent  *,  but  Braclon  does  not  afient  to 
this,  laying  it  down  as  a  reafon,  that  no  right  defcended  to 
an  heir  from  an  anceftor,  unlefs  by  the  death  of  fome  heir; 
and  he  thought  that  fuch  deceafed  heir  fliould^be  noticed 
in  this  way  :  ^/bd  de  tali  a7HeceJfore  dejcendere  dehuit  jus 
tali  ut  filio  et  harediy  et  de  tali  ei  qui  nunc  petit  '  ut  nepoti 
et  haredi ;  fo  that  no  chafm  would  be  left  in  the  defcent:  for 
if  that  was  allowed,  then  a  fon  might  be  attainted  of 
felony  in  his  father's  life,  and,  being  left  out  of  the  com- 
putation of  defcent,  the  grandchildren  would  fuccced  nx\' 
mediately;  which,  as  Braclon  fays,  would  be  inconvenient, 

♦  Bracl.  ',74. 

and 


432  HISTORY     OFTHE 

CHAP.  VII.  and  againfl  law.  However,  when  the  eldell  fon  died  In  the 
JjJJ^'^^Tnl  life  of  his  father,  leaving  no  children,  but  leaving  brothers, 
then  it  was  not  neceflary  to  mention  fuch  eldefl  fon  in  the 
computation  of  the  defcent,  though  the  right  ought  to  de- 
fcend  to  him  *,  as  well  becaufe  the  other  brothers  were  as 
near  in  degree  to  the  felfm  of  the  father  as  the  brother  who 
died,  as  becaufe,  upon  his  death,  the  eldeft  of  the  furviving 
brothers  became  next  heir  to  the  father ',  on  which  account 
the  attainder  of  fuch  elder  brother,  in  the  life-time  of  the 
father,  would  not  afFe6l  the  other  brothers,  who  were  not 
heirs  to  him  during  the  father's  life. 

Where  an  abbot,  prior,  or  other  incorporated  perfon, 
fued  a  writ  of  right,  in  right  of  his  church,  grounded  upon 
the  felfm  of  a  predeceflbr,  there  was  no  need  to  count  from 
one  abbot  to  another,  naming  the  intermediate  ones ;  be- 
/  caufe  the  corporation  remained  the  fame,  notwithftanding 

the  changes  of  the  abbots".  They  therefore  only  faid, 
talis  ahbasy  predecejjor  fuus^  fu'it  Jeifttus^  ^a  If  land  was 
given  to  more  than  one  jointly,  the  parties  fhould  all  be 
named  in  the  computation  of  the  defcent,  thus  :  Et  unde 
A.  B.  C.  D.  fuerunt  fei/iti,  i^c.  et  ita  quod  tales  mortid 
fuerunt  fine  harede  de  fe^  accreverunt  eorum  partes  J uperjii- 
tibus^  et  ita  quod  jus  terra  illius  dcfiendtt  haredihus  eorum, 
qui  fuerunt  lupcrjhtes^fcilicet  tolihus  j  et  qma  unus  illorum^ 
fcilicet  talis,  obiit  fine  harede  de  Je^  defiendit  totum  jus  tali^ 
et  de  tali  illi  qui  nunc  petit,  tsc 

If  any  one  was  omitted  in  the  defcent ;  if  it  commenced 
with  one  who  never  was  in  feifin  ;  if  there  was  any  error  in 
the  perfon,  or  the  name  of  any  one  mentioned  in  the  def- 
cent ;  if  any  of  thofe  mentioned  in  the  defcent  was  a  villain; 
in  all  thefe  cafes,  the  a£lion  would  abate,  and  the  demand- 
ant lofe  his  fuit  *. 

^  Era<f>.  374.  b.     V  A.  ant.  397,  *  Ibid.  375. 

Wh  E  N 


ENGLISH      L  A^V.  433 

When^A?^  count  was  thus  exhibited,  it  became' tlie   chap/  vir. 
tenant  to  confider  v/hat  defence  he  could  make.     The  firfl    henry  III. 
point  to  be  confidered  was,  whether  the  court  had  jurifdic- 
tion  of  the  caufe  ;  next,  whether  the  parties  to  the  writ  were 
proper ';  and  then,  whether  the  writ  was  liable  to  any  ex- 
ception.    The  next  confideration  was,  whether  the  tenant   Defence. 
held  all  the  land  demanded,  or  only  part,  and  how  much  : 
to  afcertain  this,  the  tenant   might  pray  a  view.     When 
this  was  over,  then  the  tenant  was  to  anfwer  to  the  merits 
of  the  caufe,  either  by  himfelf  or  attorney,  unlefs  there  was 
fome  ivarrantor  whom  he  fliould  like  to  vouch.    The  nature 
of  vouching  to  warranty,  and  the  anfwers  the  tenant  might 
make,  we  fhall  defer  for  the  prefent,  till  we  have  inquired 
a  little  into  the  method  of  praying  and  making  a  vieiuy  and 
the  cafes  in  which  it  was  allowed  ^. 

A  VIEW  might  be  had  either  by  the  party  or  by  the  ju-  of  erantint  t 
rors.  Of  the  latter,  fomcthing  has  already  been  faid  In  the  ^"^'*'* 
alRfe  of  novel  diireifm.  A  view  might  be  had  alfo  fometimes 
in  inquilitions  ;  and  not  only  where  it  was  a  queflion  for  the 
recovery  of  property,  but  alfo  where  it  was  intirely  upon  a 
fact,  as  in  cafes  of  trefpafs.  What  we  have  now  to  fay, 
will  be  confined  to  a  vit-iv  when  prayed  by  the  party,  and 
granted  for  the  purpofe  of  enabling  the  court  to  pafs  a  cer- 
tain and  precife  judgment  on  the  matter  before  them.  In  or- 
der tb  underfland  this,  we  fhall  firfl  fpeak  of  cafes  where  a 
view  was  not  allowed  ;  then  of  thofe  where  it  was ;  and 
laftly,  of  the  manner  oi  making  it. 

In  a  plea  de  proparte  foronnn^  if  the  demand  of  the 
yaiiGtiiibiUs  pats  was  by  a  writ  of  niipfr  cbiity  thut  Is,  by 
Hating  tha;  the  demand  was  of  a  certain  portion  of  the 
inheritance,  of  which  their  common  anccllor  lately  died 
feijcd ;  the  latter  part  of  the  allegation  was  conflrued  to 
fpecify  the  parcel  of  land  fo  accurately,  as  to  fuperfcde  the 

y  Braa.  376. 

Vol.  I.  Og  BccefTity 


434  HISTORY      OF     THE 

CHAP.    VH.   necciTity  of  a  view  ^  ;  but  if  land  was  demanded  by  a  writ 
iiENRY  III     oi  right  ut  de proparte,  then  fi;  x'/Vw  was  allowed.     For  the 
fame  reafon  a  vieiu  was  denied  in  dower,  if  brought  for 
land  of  which  the  hufband  obiit  nuper  feifitus.     If  a  manor 
was  demanded  without  the  pertinentiay  no  view  was  al- 
lowed, a  manor  being  fufEciently  defined  by  the  name  only  : 
fo  if  the  demand  was  of  the  moiety  of  a  manor  undivided^ 
becaufe  the  demandant  being  ignorant  which  moiety  be- 
longed to  the  tenant,  could  not  inform  him  of  the  particulars 
on  taking  the  view.     But  if  it  was  divided,  and  the  perti^ 
nentta  were  claimed,  there  a  view  would  be  granted  ;  and, 
in  any  cafe,  if  the  manor  was  undivided,  he  might  have  a 
vi^w  of  the  whole.     A  view  was  denied  to  an  intrudor^  if 
the  thing  in  which  the  intrufion  was  made,  was  fpecified 
without  the  pertinentia ;   or  if  that  was  done,  which  was 
held  to  fuperfede  the  need  of  a  view,  as  before  mentioned ; 
efpecially  if  the  intrufion  was  fo  recent,  as,  within  a  year 
or  Icfs.    If  a  woman  demanded  dower  of  a  manor,  of  which 
fhe  was  fpecially  endowed,  without  naming  X^c^z  pertinentia^ 
{he  could  not  have  dower ;   fo  if  fhe  demanded  tcrtiam 
partem  ;   altho'  fhe  could  not  afcertain  her  third  part,  yet 
in  this  latter  cafe,  the  tenant  might  have  a  view  of  the 
whole  :  however,  if  the  woman  replied  that  flie  demanded 
the  third  of  that  of  which  her  hufband  nuper  ohi  it  feifitus  y 
and  that  the  tenant  held  the  whole,  no  view  would  be  allow- 
ed, for  the  reafon  above  given.   If  the  demand  was  made  in 
an  uncertain  way,  no  view  would  be  allowed  ;  as  demand- 
ing all  the  lands  holden  by  the  tenant  in  fuch  a  vill  over 
and  above  ten  acres ''  ;  though  here,  as  in  a  former  cafe, 
he  might  have  a  view  of  the  whole.     When  a  tenant  had 
had  a  view,  no  warrantor  whom  he  introduced  into  the 
a£lion  could  have  it ;  the  warrantor  knowing  by  his  charter 
what  land  he  was  to  warrant,  without  the  affiflance  of  a 
view. 

'  Braa.  376.  b.  •  Ibid.  377. 


ENGLISH      LAW. 


435 


If  a  view  had  been  refufed,  or  had  not  been  prayed  ;  CHAP.  Vir. 
yet  when  the  duel  was  waged,  and  pledges  given,  the  two  ui.^joy  m 
champions  might  and  ought  to  have  a  view,  becaufe,  by 
law,  they  were  to  fwear  de  vifu  ;  a  day  therefore  ufed  to 
be  given  them  for  that  purpofe.  After  land  had  been  taken 
into  the  king's  hands  by  default,  it  was  not  ufual  to  allow 
a  vie\v ;  becaufe  the  tenant,  when  he  demanded  it  back 
per plevifianiy  muft  have  afcertained  it  in  the  fame  manner 
as  would  be  done  by  the  demandant  on  a  view  :  which, 
therefore,  fuperfedcd  the  need  of  a  view  :  however,  for 
the  fame  rcafon  as  was  before  given,  the  champions  were 
to  have  a  view  after  a  default. 

If  the  demand  was  made  not  of  land,  but  of  fome  right, 
as  a  right  of  advowfon,  of  common,  and  the  like  ;  though 
thefe  are  invifible  in  thcmfelvcs,  yet  as  they  are  ifluing  out 
of  land,  the  land  to  which  they  belonged  might  be  afcer- 
tained either  by  view,  or  what  amounted  to  a  view.  In 
cafes  of  common  it  was  fufEcient,  if  the  place  was  viewed 
by  the  jurors ;  and  fo  it  was  in  trcfpafs,  and  in  wafle ;  for 
in  a  perfonal  action  a  view  might  not  be  prayed  by  the 
party  ^. 

A  VIEW  could  be  had  in  the  following  cafes:  of  all 
lands  demanded  in  a  writ  of  right,  or  in  any  other  writ 
in  which  the  duel  or  the  great  afTife  might  be  had :  in  fliort, 
it  lay  wherever  a  corporeal  thing  was  demanded,  that  could 
not  be  otherwife  afcertained,  either  dlreftly  by  the  naming 
of  it  without  any  pert'nietjtia^  or  indirectly  by  a  defcription, 
as  in  a  }iupcr  obiit  before  mentioned  •,  or  by  fpecifications  that 
were  adequate  •,  as,  quam  talis  nuarrafitizavit  ;  talis  tenet 
in  eddem  villa  ;  talem  qua  captafuit  iii  manus  dot?iitii  regis  ; 
talem  quam  talis  tihi  tradidit  ialern^  de  qua  dijft'iftnnm  fecijli^ 
talem  quam  tenes  de  dono  talis.  It  lay  of  incorporeal  things, 
as  in  a  writ  of  quo  ivarranto  ;  which  writ,  as  has  been  be- 

»•  Eraa.  378. 

G  g  2  fore 


426  ^  HISTORY     OF     THE 

CHAP.  vif.  fore  mentioned,  was  both  in  rem  and  in  perfofiam.  It 
HENRY  111  ^''^ig^t  be  had  of  land  out  of  which  a  rent  iffucd,  to  which 
any  one  had  common  of  pafture,  or  in  refpedl  of  which  fuit 
of  court  was  demanded.  In  all  thefe  cafes,  as  well  as  the 
former,  it  might  be  had,  unlefs  the  ncceflity  was  fuperfedcd 
by  fome  fort  of  defignation  or  defcription  that  was  equiva- 
lent to  it  ^ 

If  the  view  was  granted,  the  entry  on  the  roll  was  to 
this  efFecSt  :  j4.  petit  verfus  B.  tuniavi  terram  cum  pertinen- 
fiisy  i^c.  ^c,  Et  B.  vtviity  ft  petit  viftun  de  terrd^  undty 
K^c.  And  then  there  iffued  a  writ  to  this  efPe^l:,  directed 
to  the  iherifF :  Prcecipimus  tibi^  quod  fine  dilatione  habere 
facias  B.  vifurn  de  tantd  terra  cum  pertinentiis  in  N.  quam 
A.  in  curia  noflra  coram  ju/litiariis  nojiris  apudlV.  clamat^ 
utjusfuum^  verfus  prcsdi^um  B.  Et  die  quaiuor  militibus,  ex 
illis  qui  vifui  il/i  interfuerint^  quod fmt  coram  iifdeni  jufii- 
tiariis  noflris  apud  TVefimonafterium^  tali  die,  ts'c.  ad  tejii" 
ficandum  vifum  ilium  j  et  habeas  ibi  nomina  militum,  et  hoc 
breve^  &c.  Varying  according  to  the  form  of  the  original 
Writ  ^  ;  and  then  dies  datus  eft  eifdcfn,  ^c»  On  the  dies  datuSy 
the  demandarlt  and  tenant  might  both  caft  eflbins ;  but 
whether  they  came  or  not,  the  flierlfF  was  to  command 
the  four  knights  to  appear  and  teftify  their  view  ;  and 
when  this  was  once  done,  the  record  of  fuch  teftification 
muft  be  abided  by.  If  no  view  had  been  made,  and  the  te- 
nant appeared,  and  fhewed  it,  he  might  have  another  day. 
In  making  the  view,  the  demandant  ought  to  fiiew  to  the 
tenant,  in  all  ways  pofTible,  the  thing  in  demand,  with  its 
metes  and  bounds. 

If  the  tenant  obje£led,  that  the  demandant  had  put  in 
view  more  or  lefs  than  what  was  contained  in  the  writ, 
an  inquifition  of  the  country  ufed  to  be  made  to  find  the 
truth  '.  The  inquifition  fometimes  confided  of  four,  five, 
or  fix  perfons,  whom  the  parties  named,  together  with 

*  BraiSV.  37S.  h.  «J  i:,;j.  37^  *  IbiJ.  379.  b. 

certain 


ENGLISH      LAW. 


437 


certain  of  thofe  who  had  made  the  view.     For  this  pur-  -CHap,    vii. 

pofe  the  following  fpecial  t/^w/r^yijc/Vzj  would  iflue  :   Pra-ci-     huvtoy 

pimus  quod  venire  facias  coram  jujiitiariis  nojhis^  i^c.     A, 

fervienteiu  talis ^  td  aiiornatum  fuuw,  in  loqueid  qua  eji  inter 

€Urule7n  A.  t2c.  de  tavtii  terra,  ^c.      Et  fmiliter  cu?n  eo  B, 

C.  D,  E.  fuper  quos  pr^  liSii  tales  fe  pofuerafit,  et  prceterea 

quatuor  ex  ilUs  qui  vifui  inter fuei'int,  quern  prcsdiStus  A.  at- 

tGrnatus  petentii  fecit  tenenti  ae  prato,  i^c.  ad  certifcandum 

prdfatis  jufiitiariis  quid  et  quantum  prati^   ifc.   idem  at- 

tornatus  pcfuit  in  vifu^  et  unde  idem  tenens  dicit  quod  non 

pofuit  in  vifif,  nifi  tanium,  cfc. 

When  the  tenant  was  thus  informed  of  the  quantity  of 
land  which  the  demandant  claimed,  he  was  better  able  to 
calculate  his  defence,  whether  to  take  it  on  himfelf  by- 
pleading  any  exception,  ch-,  if  he  bad  any  w^arranty,  to 
vouch  a  warrantor  to  defend  for  him  ^ 

If  the  tenant  hzid  no  good  caufe  of  exception,  either  Vouching  to 
dilatory  or  peremptory,  and  had  any  one  to  vouch,  it  ^^""""^y* 
would  be  fafer  to  vouch  his  warrantor  to  defend  for  him. 
This  was  to  be  done  by  the  aid  of  the  court,  or  not,  accord- 
ing as  the  warrantor  was,  or  was  not,  within  the  power  of 
the  tenant  ^.  A  claufe  of  warranty  was  ufuaily  inferted  in 
every  charter,  whether  made  on  the  occafion  of  a  donation,  a 
fale,  or  exchange  of  any  land  or  tenement :  fometimcs  a 
warranty  arofe  by  rcafon  of  homage,  without  any  charter 
at  all.  As  a  warranty  was  ufuaily  made  for  the  warrantor 
and  his  heirs  to  the  donee  and  his  heirs,  the  mutual  tie 
continued  on  the  heirs  ///  infinitum  on  both  fides;  fo  it  did 
on  the  alTigns,  and  thofe  who  were  /;;  loco  haredum^  as  the 
chief  lord,  who  came  into  feifin  by  Tcafyn  of  cfcheat  ^. 
A  tenant  for  life,  as  well  as  one  in  fee,  and  even  one  who 
held  for  term  of  years,  might  either  vouch  or  be  vouched. 
A  hufband  might  vouch  his  wife ;  and,  in  cafe  of  a  gift 

^  Biaa.  38^.  e  Ibid.  *>  IbH.  \%:i.  I*. 

made 


435  H  I  S  T  O  R  Y      O  F      T  H  E 

CHAP.    VII.    made  by  her  to  him  before  marriage,  if  he  left,  (lie  was 
KlsRY  HI     bound  in  excamhium  :  the  fame,  if  the  wife  was  impleaded 
of  land  given  to  her  before  marriage  by  the  hufband  *. 

If  a  minor  was  vouched,  the  tenant  was  expecled,  at 
the  time  of  vouching,  to  fliew  the  deed  containing  the 
warranty.  This  was  to  take  ofF  the  fufpicion  of  its  being 
meant  for  delay,  the  vouching  of  minors  being  often  re- 
forted  to  for  no  other  purpofe  than  that  of  delay.  When 
the  charter  was  Inewn,  and  the  queftion  was  upon  a  fer- 
vice,  it  was  enquired,  whether  the  minor's  father,  or  any 
of  his  anceitors,  was  feifed  of  the  fervice  anno  et  die  quo 
fuit  vivus  et  mortuus  :  if  he  was,  then  the  minor  was  im- 
mediately to  enter  into  the  warranty,  but  the  plea  betMxen 
the  demandant  and  him  was  to  remain  j/5';/f  die  till  he  was 
•  of  age ;  for  he  was  not  obliged  to  anfwer,  either  to  the 
warranty  or  the  plea,  till  he  was  of  age.  But  if  the  te* 
nant  had  been  enfeoffed  of  the  land  in  quedion  during 
the  minority,  the  minor  was  to  anfwer  both  to  the  warranty 
and  the  plea :  and  in  order  to  know  this,  an  inquifition 
would  be  made,  whether  it  was  an  inheritance  by  defcent 
or  by  purchafe.  What  is  faid  above  of  fervices  applied 
alfo  to  homage  *". 

Naiiire  t)!'  war-  The  obligation  of  warranty  that  arofe  from  homage 
might,  as  was  before  faid,  be  proved  without  a  deed.  If 
the  vouchee  called  for  one,  the  tenant  need  only  fay,  "  You 
**  are  bound  to  warranty,  becaufe  ego  fum  inde  hcmo  tuus^ 
"  and  you  have  received  my  homage  for  this  land,  and  are  in 
"  feifin  of  my  fervice,  and  my  father  and  his  anceftors  inde 
*'  fuerimt  homines  antecejforum  tuorinn  ;"  of  which  he  was  to 
produce  a  fuflicient  fctia^  or  fome  one  who  was  ready,  if 
neceflary,  to  prove  it  per  corpus  fuum  :  and  if,  upon  the 
-denial  of  the  vouchee,  this  was  afterwards  proved  before 
the  juftices,    they  would  adjudge  him   to  enter  into  the 

warranty. 


E  N  G  L  I  S  H      L  A  W.  439 

warranty.  Altho*  the  tenant  might  at  any  time  make  the  chap.  vii. 
furrender  of  his  tenement,  yet  the  lord  could  not  wave  the  pi^N^'i^Y  ill 
homage,  becaufe  by  fuch  means  he  might,  at  the  expence 
of  a  fmall  fervice,  deprive  the  tenant  of  the  claim  of  war- 
ranty which  depended  upon  the  doing  of  homage.  If  the 
warranty  was  grounded  on  a  fine  and  cyrographum,  it  is 
made  a  doubt  by  Bra6lon,  whether  a  minor  (liould  not  be 
bound  to  anfwer,  though  his  anceftor  was  not  ftikddieet 
Citjno^  as  above  mentioned.  But  of  this  more  hereafter. 

A  WARRANTY  was  fometimes  conceived  fo  as  to  bind 
not  only  the  perfon  of  the  feoffor,  but  alfo  a  certain  tene- 
ment. Thus  in  the  deed  of  gift  he  might  fay,  that  he  and 
his  heirs  would  warrant  the  gift  ex  tali  tejiemento  quod  tunc 
tenet ^  to  whomfoever  that  tenement  might  afterwards  come; 
by  virtue  of  which  fpecial  warranty  that  tenement,  in 
whatfoever  hands,  would  be  liable  to  go  in  excambiinn  of 
the  land  warranted.  But  the  lav/  was  fo  favourable  to  war- 
ranty, that,  without  fuch  exprefs  fpecification,  land  was 
held  to  be  tacitly  bound  by  a  warranty ;  and  therefore,  if 
a  warrantor  at  the  time  of  making  his  warranty  ^  had  fuf- 
ficient  to  make  good  his  warranty,  the  land  he  then  had  be- 
came bound  by  the  warranty ;  and  even  if  it  went  into  the 
hands  of  the  chief  lord,  or  of  the  king,  by  efcheat,  Brac- 
ton  holds'"  it  to  be  liable  to  the  warranty,  quia  res  cum  onere 
iranfit  ad  quemcunque. 

The  king,  in  point  of  law,  was  liable  to  warrant,  the 
fame  as  a  common  perfon  5  but  he  could  not  be  vouched, 
becaufe  no  fummons  could  iflue  againfl  him  :  inilead, 
therefore  of  vouching,  the  tenant  ought  to  fay,  in  the  ftile 
of  a  remonftrance,  \\\'\X.  fins  rege  refpondcre  non  potejly  eo 
quid  hahet  chartam  fuam  de  do7iaiioneyp€r  quam^ft  amittereiy 
rex  ei  teneretur  ad  excamhium.  It  feems,  that  fuch  refpe£^ 
was  paid  to  the  king's  charter,  that  an  allegation  thereof 
was  held  fufficient  caufe  to  delay  the  proceeding-     To  re- 

mcdy 


44®  H  I  S  T  O  R  Y      O  F      r  H  E 

CHAP.  vri.     medy  this,  it  had  been  lately  provided,  that  the  king  fliouid 

HENRY  III.    "^^^^  be  named  in  this  way,  unlefs  where  he  was  bound 
ad excamb'tinn  ". 

In  vouching,  the  tenant  ought  to  name  the  warrantor 
with  all  polhble  prccifion.  Thus,  if  he  was  fon  as  well  as 
heir,  he  ihould  be  called  fon  and  heir.  If  many  claimed 
to  be  heirs,  they  fhould  be  vouched  disjunctively,  trJis  vel 
talis ^  whoever  of  them,  was  heir.  If  the  heir  was  /';;  ventre y 
and  the  wife  had  prayed  to  be  put  into  pofTeflion  mm'me 
ventns,  as  feems  to  have  been  ufual,  then  the  tenant  was 
"at  liberty  either  to  name  the  perfon  who  was  apparent  heir, 
^   .  or  him  in  ventre^  dating  in  all  fuch  cafes  the  fpecial  ground 

of  ambiguity". 

If  a  perfon  was  vouched  who  was  in  the  power  of  the 
tenant,  as  a  wife,  children,  or  others  under  his  authority, 
the  tenant  was  not  to  have  the  aihilance  of  the  court ;  but 
if  he  did  not  produce  the  vouchee,  he  was  to  lofe  his  land. 
If  the  vouchee  was  not  in  the  realm,  he  was  not  within 
the  reach  of  the  king's  writ,  and  therefore  it  would  be  in 
vain  to  pray  the  afliflance  of  the  court ;  and  if  the  tenant 
did  not  produce  fuch  warrantor,  he  would  lofe  his  land  : 
but  if  the  perfon  vouched  was  in  Ireland,  the  king's  writ 
ufed  to  iflue  to  the  juftices  there  p.  If  the  vouchee  refidcd 
within  the  power  of  the  king's  writ,  and  he  could  not  be 
produced  without  the  court's  afliftance,  then  there  iflued 
a  writ  to  this  effe£l,  addrefled  to  the  (lierifF:  Summoneas 
per  bo7ios  fummonitores  A.  quod  fit  coram  jujiitiariis  nojhisy 
<Jc.  tali  die  ad  warrantizandum  h.  tantu?n  terra  cum  per- 
tinentiis  in  tali  villa  quam  E,  in  eadevi  curia  coram  iijdem 
jujiitiariis,  &c»  clamat  ut  jus  Juum   verfus  pradi^um  B, 

"  This  provifion  is  fa!d  by  Brae-  the  Icg'flnturp,   and   is   one  o\  thofe 

ton  to  be  made  coram  ipfo  rege  in  Je-  many  adb  of  parliament   whiih  are 

d'.caibnc  ahbathi^  de  Hayles  in  pro:-  aow  lolt.     The  date  of  thi;,  provifion 

jcnUa  noTfm  epi  csporum^   et  coram  co-  is  not  mtntioiied. 

rntte  Ricbardo  et  aliis  pluribits  ctmtii-  <>   BradV.  381.  b. 

ins.    Till  ,  therefore,  was  an  ail  of  p  Ibid.  395.  b. 

ei 


ENGLISH      LAW. 


441 


jet  unde  idem  B.  in  eadem  curia  nojlra  coram  iifdcm  jujlilia-     CHAP.  VII. 
riis  nojiris  vocant  ipfum  A,  ad  warrantizandum  verfus  pra-     HuNRY  III 
dictum  E.  ^c. 

T1.IE  writ  of  fummons  ad  ivarrantizandum  always  made 
mention  of  the  fort  of  plea  depending.  If  the  warrantor 
was  a  minor,  there  was  a  writ  of  fummons  to  the  guardian 
to  appear,  and  bring  with  him  the  heir.  If  an  heir  was 
vouched  in  refpecl  of  his  mother's  land,  which  was  then 
in  pofleflion  of  his  father  as  tenant  per  legem  Anglia^  the 
warranty  was  not  deferred,  but  a  writ  iflued  to  him,  ex- 
prelTed  either  to  hear  the  judgment  of  the  court  on  the 
warranty,  or  to  warrant  together  with  the  heir  ''. 

At  the  return  of  the  fummons,  the  demandant,  tenant, 
and  warrantor,  might  all  elToin  themfelvcs.  If  the  deman- 
dant made  default,  and  the  tenant  appeared,  the  tenant 
had  judgment  to  go  quit ;  if  the  tenant,  then  there  was  a 
capiatur  in  manus  domini  regis^  as  in  common  cafes.  If  the 
demandant  and  tenant  both  appeared,  and  the  warrantor 
made  default,  then  a  writ  of  capias  ad  valentiam  iflued  to 
take  as  much  land  of  tlie  warrantor,  as  was  equal  to  the 
value  of  the  land  in  queftion.  If  the  land  of  the  warrantor 
was  in  another  county,  the  fherifFof  that  county  could  not 
judge  of  the  value  of  the  land  In  queftion  :  to  afcertain 
this,  tlierefore,  a  writ  firft  iflued  to  the  flierifl^  of  the  firft 
county,  commanding  him  by  the  oaths  of  twelve  men  of 
the  vicinage  quod  extendi  fuciat,  et  appreiiari,  the  land  in 
queftion  ;  upon  the  return  of  which  extent,  they  grounded 
a  writ  of  cape  ad  valentiam  to  the  Hierifl^  in  the  foreign 
county  ".  If  a  guardian  made  default,  the  cape  ad  valen^ 
tiam  iflued  againft  the  lands  of  the  minor:  if  either  the 
tenant />^r  legem  Anglia  or  the  heir  made  default,  the  cape 
ad  valentiam  went  againft  the  maternal  inheritance  in  the 
poflcflion  of  the  tenant />^r  legem.     If  there  was  more  than 

1  Erarl.  383.  b.  '   Ibid.  384. 

one 


HENRY    III. 


442  HISTORYOFTHE 

CHAP.  vir.  one  warrantor,  as  In  the  cafe  of  parceners,  the  cape  ad  va- 
lentiam  iflued  againft  all  rateably ;  though  if  fome  appeared, 
they  did  not  fufFer  by  the  default  of  the  others,  who  were 
proceeded  againft  feparately  *. 

The  writ  of  cape  ad  valetttiam  contained  in  it  Hkewife 
a  fummons ;  and  if  the  warrantor  after  the  caption  did 
not  appear  to  this  fummons  neither  the  firft,  fecond,  third, 
nor  fourth  day,  and  the  demandant  and  tenant  both  appear- 
ed, the  former  againft  the  latter,  and  the  latter  againft  the 
warrantor,  then  judgment  was  given  that  the  demandant 
{hould  recover  '  the  land  againft  the  tenant,  by  default  of 
the  tenant,  and  the  tenant  an  excamhium  ad  valentiam  out 
of  the  land  of  the  warrantor.  Upon  this  there  iffiicd  a 
writ  for  the  demandant,  commanding  the  ftieriff  quod  ha- 
bere facias  feifinatn  ;  and  another  for  the  tenant  de  excamhio 
againft  the  warrantor  " ;  which  latter  was  preceded  by  a 
writ  of  extent,  if  the  land  was  in  another  county,  as  in 
the  cafe  of  the  cape  ad  valentiam  before  mentioned.  If 
the  warrantor  had  appeared,  and  afterwards  made  default, 
then  there  iftued  a  cape  ad  valentiam^  which  was  th  parvinn 
cape-^  and  if  he  ^  failed  to  appear  to  the  fummons  therein 
contained,  the  demandant  had  judgment  againft  the  tenant 
by  default,  and  the  tenant  ad  valentiam  againft  the  war- 
rantor, as  in  the  former  cafe  :  and  fo  of  the  perfon  or 
perfons  making  default,  if  the  warrantor  was  more  than 
one  perfon ;  though  if  huftjand  and  wife  were  fummoncd, 
and  one  made  default,  it  was  the  fame  as  if  both  had  fo 
done,  whether  before  appearance  or  after.  If  the  warran- 
tor afterwards  appeared,  but  had  no  fufEcient  excufe  to  fave 
his  default  in  not  appearing  at  the  firft,  fecond,  third,  or 
fourth  day,  then,  in  like  manner  as  in  the  former  cafes,  the 
demandant  had  judgment  againft  the  tenant,  and  the  tenant 

»   B -a  1^.3^5-  petcnti  excamhium  ad  valentiam. 

*    Recuperat  terram  fuam  verfus  B.  "    HrsiO.  387.  b. 

per  dcfaltam  B.   et  B .  in  mUericorJia^  *   Iita6l.    3S6. 

*/  babeat  de  terra  ipftus  C.  in  loct  com- 

ovcr 


ENGLISH      LAW. 

t>ver  aeainil  the  warrantor  for  an  excambiinn  ad  valefitiam. 
\ipon  which  iilued  writs  of  habere  facias  Jeifmam  for  both 
parties  ^. 

If  the  demandant  and  warrantor  appeared  and  offered 
themfelvcs,  and  the  tenant  was  abfent  j  thei^  if  he  had  not 
entered  into  the  warranty,  \\tjiathn  recedat  quietus  de  war*- 
rantiuy  and  a  parvum  cape  would  iflhe  for  the  land  in 
quellion  •,  and  if  upon  the  return  thereof  the  tenant  did  not 
appear,  or  could  not  fave  his  default,  he  would  lofe  his  fei- 
fm.  If  the  demandant  made  default,  and  the  tenant  and 
warrantor  appeared  and  offered  themfelves,  they  both  rf- 
cedant  quieti  de  brevi  illo.  When  a  perfon  was  vouched, 
who  had  no  land  in  fee  that  might  be  taken  into  the  king's 
hands,  or  by  which  he  might  be  diilraincd,  then  a  writ  if- 
fued  to  the  Iheriif  %  quod  habeat  corpus^  to  take  the  body. 

When  the  demandant,  tenant,  and  warrantor  all  ap- 
peared in  court,  the  warrantor  either  entered  into  the  war- 
ranty, or  contended  that  he  was  not  bound  to  warrant. 
If  he  voluntarily  did  the  former,  the  original  fuit  then  pro- 
ceeded between  the  demandant  and  warrantor,  and  the  te- 
nant might  leave  the  court,  till  the  plea  between  them  wav<; 
determined.  The  demandant  was  therefore  to  propound 
his  count  to  the  warrantor,  in  the  fame  manner  as  he  be- 
fore had  to  the  tenant,  to  which  he  was  to  anfwer,  and 
defend  the  demandant's  right  by  the  duel,  or  great  aflife, 
unlefs  he  could  plead  fome  exception,  or  had  a  warrantor, 
whom  he  in  his  turn  might  call  to  defend  him;  and  thus 
they  might  go  on,  one  warrantor  vouching  another,  till 
none  was  left  to  be  vouched  :  and  if  the  lad  warrantor  loft, 
either  by  default  or  by  judgment,  he  wduld  he  liable  ad  ex^ 
cambiumy  and  fo  on  from  hand  to  hand  to  the  tenant. 

If  the  warrantors  were  C.  Z).  and  E-  and  E.  had  no- 
thin^  wherewith  an  excatnbium  could  be  made,  and  all  the 


% 


r  Braf^.  386.  b.  •  Ibid.  387. 

Others 


444  H  I  S  T  O  tl  Y      O  F     T  H  E 

CHAP.  VIT.   Others  had  fufhclent,  Bra6lon  thought  it  hard  that  the  tc- 

^'**'''''^^'""*'**^    nant  Oiould  go  without  an  excambiut?i ;  and  therefore,  in  his 
HENRY  III.         .   .        .     ^  ,        .    V,     1       T^   n.     , ,  •  1  A     J 

opinion,  It  appeared  equitable  that  JJ.  mould,  notwithltand.- 

ing,  recompenfe  C.  and  wait  for  better  times,  when  E.  could 

do  the  fame  by  him ;  fo  that  the  writ  of  feifin  would  run  : 

£i  quia  E,  nihil  hahet  uncle  excamhium  facer e  pojjit  ipft  D. 

idea  de  ierris  ipfius  D.  in  balUvd  tua  eidem   C.   excambium 

ad  valeniiam  pradi£ia  terra^  fine   dilatione   habere  facias^ 

donee  idem  E.   aliquid  haleat  unde  excambium  facer e  potejiy 

et  iliud  idem  excambium  fine  dilatione  habere  facias  pradiiio 

B*  ^V.  the  fame  was  alfo  done,  if  any  of  the  intermediate 

warrantors  were  unable  to  make  an  excambium.     If  the 

lad  warrantor  could  fatisfy  only  in  part,  the  remainder 

was  to  be  fupplied  by  the  intermediate  warrantors,  obfcrv- 

ing  the  order  in  which  they  were  vouched. 

If  a  perfon  had  infeofFed  feveral,  at  dilTerent  times,  and 
was  vouched  by  them  all,  and  loll,  without  having  fuffici- 
ent  to  make  an  excatnbium  to  each,  they  were  to  be  fatisfied 
according  to  the  priority  of  their  feoffment.  This  is  fup- 
pofmg  that  judgments  were  given  in  all  the  pleas  in  one 
day  •,  for  if  they  were  at  different  times  ^,  thofe  who  had 
the  firft  judgment  (hould  be  preferred;  and  if  they  exhaufl- 
ed  the  property  of  the  warrantor,  thofe  who  came  after, 
fays  Bra6lon,  muft  wait  for  better  times  j  for  the  warrantor, 
if  he  had  nothing,  was  not  therefore  difcharged  :  but  any 
thing  which  might  afterwards  come  to  him  by  defcent  from 
the  anceflor,  by  reafon  of  whofe  warranty  he  was  vouched, 
would  be  liable  to  be  taken  ;';/  excambium. 

Should  the  perfon  vouched,  inflead  of  entering  volun- 
tarily into  the  warranty,  contend  that  he  was  not  liable  to 
be  called  upon,  it  lay  with  the  tenant  to  make  out  the  title 
by  which  he  vouched. 

*  Bra6V.  388. 

The 


E  N  G  L  I  S  H      L  A  W.  445 

The  grounds  upon  which  warranty  might  be  founded  chap.  vir. 
have  already  been  confidered  in  part;  to  thofe  may  be  add-  h£Js^ry  III 
ed  the  following  :  One  great  ground  of  warranty  was  a 
common  gift  of  land  by  the  words  do  or  dedi ;  for  it  is  laid 
down  by  Bra6lon,  that,  in  all  charters  defimplki  donaUone^ 
the  tenant  was  intitled  to  a  warranty  from  the  donor  and 
his  heirs,  unlefs  fome  claufe  was  inferted,  fpecially  declar- 
ing that  the  donor  or  his  heirs  fliould  not  be  bound  to  war- 
ranty, or  to  make  an  excambium,  A  charter  of  confirma- 
tion, if  it  contained  the  word  do,  as  it  ufually  did,  do  et 
conjirmoy  in  like  manner  bound  to  warranty;  becaufe  it 
was  in  effect  2Ljtmplex  donatio,  as  well  as  a  confirmation*. 

Many  were  the  exceptions  which  might  be  ftated  by  the 
perfon  vouched  to  (hew  he  was  not  bound  to  warrant.  In 
the  firft  place,  he  might  avail  himfclf  of  any  error  in  the 
writ  of  warranty ;  but  he  could  not  have  a  view.  If  the 
Avarranty  was  grounded  upon  a  charter,  he  might  fliew 
that  the  charter  had  fuch  defects,  as  to  be  of  no  validity 
in  law ;  of  which  more  will  be  faid  hereafter.  If  no  ex- 
ception lay  to  the  charter,  he  might  except  to  the  gift. 
Thus  he  might  fay,  that  the  donee  had  not  feifin  in  the  life 
of  the  donor '*^ ;  that  the  donor  was  never  feifed ;  that 
the  tenant  was  not  heir  to  the  feoffee  ;  that  he  was  not  fuch 
an  heir  as  is  defcribed  in  the  original  gift ;  that  he  was  one 
of  thofe  perfons  who  were  exprefsly  excepted  in  the  war- 
ranty. 

A  WARRANTY  was  with  reafon  held  not  to  bind  a  per- 
fon to  defend  the  feoffee  againft  the  feofFee^s  own  tenant, 
but  only  againd  llrangers  who  might  claim  any  right  be- 
fore the  firll  feoffment.  If  a  perfon  had  recovered  -an  ex- 
catnbiuwy  where  he  had  loft  upon  an  a£l  of  his  own,  and 

*  So...c;time?  there  was  a  fpjcial  make  ercambium. 
charter,   exprefllng  that  the  donor,         ^  BrnIV.  389.  b. 
notwithflativiing  the  homage,  (hould         '  Ibid.  390. 
not   be  bound  to  warranty,    or  to 

]»ad 


446  HISTORYOFTHE 

CHAP.  vif.  had  no  lawful  title  to  recover  againft  his  feoffor,  as  in  the 
HENRY  III  foregoing  cafe,  the  feoffor  had  a  fpecial  writ  to  obtain  re- 
ftitution  of  the  land  fo  wrongfully  recovered  <".  Where  a 
warranty  was  extended  to  the  heirs  and  afligns,  the  affigns 
had  an  option,  whether  they  would  vouch  the  feoffee  or  the 
firft  feoffor ', 

If  the  warrantor  happened  to  die,  the  principal  aQion 
was  not  abated,  as  it  was  by  the  death  of  either  the  de- 
mandant or  tenant  ^  but  the  warranty  was  fufpended  for 
a  time,  as  in  the  cafe  of  a  minor.  We  have  before  fcen, 
that  where  the  anceftor  died  feifed  in  fee,  the  minor  was 
bound  to  anfwer  the  warranty  j  and  Bradlon  lays  it  down 
pofitively,  that  if  in  fupport  of  the  Warranty  the  tenant 
produced  a  cyrographum,  or  fine,  made  by  the  warrantor 
to  the  tenant,  the  warrantor  was  obliged  to  anfwer  though 
a  minor ;  although  he  need  not  anfwer  if  it  was  grounded 
on  a  common  charter,  on  homage,  or  on  fervice  done. 
But  yet,  as  to  the  demandant,  he  fhould  have  his  privi- 
lege not  to  anfwer  till  he  was  of  age;  unlefs,  indeed, 
where  his  anceflor  did  not  die  feifed  in  fee*^.  If  the  war- 
rantor died  at  any  time  before  judgment  paffed  between 
him  and  the  demandant,  the  plea  did  not  abate,  but  the 
heir  of  the  warrantor,  whether  a  minor  or  not,  vt'as  to  be 
vouched*,  and  if  the  warrantor  had  loft  by  judgment,  but 
had  not  made  an  excambiian,  and  died,  the  heir  was  to 
make  the  excambium  without  any  other  writ  being  fued  ^, 

There  were  Inftances  where  a  perfon  might  enter  into 
a  warranty,  though  he  was  not  vouched.  This  was  not 
In  defence  of  the  tenant's  right,  but  of  his  own  :  as  if  a 
perfon  was  tenant  for  life,  or  in  dower  of  land  which  was 
to  revert  to  the  tenant  in  fee,  and  the  tenant  in  fee  per- 
ceived that  fuch  tenant  permitted  himfelf  to  be  implead- 
ed, and  omitted  to  vouch  the  tenant  in  fee  to  defend ;  in 

*  Biaa-.  391.  b.  ,  tr  Ibid.  391. 

'  l^'iti-  35 »•  *■   Ibiii.  392.  b. 

fuch 


E  N  G  L  I  S  H     L  A  AV.  447 

fuch  cafe,  the  reverfioncr,  feeing  the  danger  his  title  was  chap.    vii. 
in,  might  appear  unvouched,  and  enter  into  the  warranty    h^js^ry  III 
to  defend  his  own  right.     It  was  confidered  as  the  duty  of 
every  tenant  for  life,  if  impleaded  for  the  land  he  held,  to 
vouch  his  warrantor  to  defend '. 

When  the  pcrfon  vouched  after  contefting  the  point, 
was  adjudged  to  enter  into  the  warranty,  the  demandant 
was  to  recommence  the  principal  a6lion  againft  him,  pro- 
pounding his  count,  as  againft  the  tenant,  with  the  additions 
which  the  change  of  pcrfons  and  circumftances  required ; 
as   quod  injujU  intrat  in  ivarrant'tam^    quia  terra  de  qua 
agitur  eji  jus  fuum^   quia  talis  antecejfor  fuus^  (3\'.     The 
plea  therefore  went  on  between  the  demandant  and  war- 
rantor •,   and  this  was  the  time  for  the  warrantor  to  vouch 
over  any  perfon  to  warrant  him  ;  upon  which  a  fummons 
ad  ivarrantjzandum  would  ifTuc  fimilar  to  that  beforemen- 
tioned.     If  he  had  none  to  vouch,  or  chofe  to  vouch  none, 
then  he  either  defended  the  right  and  feifm  of  the  demand- 
ant ^^r  corpus  liberi  hominis^  or  put  himfelf  upon  the  great 
aflife,  unlefs  he  had  any  exception  to  plead.     Of  thefe, 
fome  were  common  both  to  the  tenant  and  warrantor;  fome 
belonged  only  to  the  tenant,  and  fome  only  to  the  war- 
rantor.    No  exceptions  that  had  been  made  by  the  tenant, 
and  over-ruled,  nor  any  which  he  had  waived,  could  be 
pleaded  by  the  warrantor''.     If  the  warrantor  fucceeded 
either  in  his  defence /^r  duellinuy  or  by  the  great  aflife,   or 
in  any  exception  he  propofed,  the  tenant  remained  in  his 
feifin,  and  the  demandant  was  iti  miferlcordid :  if  he  failed 
in  either,  the  tenant  loft  his  feifm,  and  the  warrantor,  as 
before  mentioned,  was  bound  ad  exca7Jibium. 

Respecting  the  excainbium,  or  rccompence  in  value,  it 
is  clearly  and  repeatedly  laid  down  by  Bra6lon,  tbat  no 
more  could  be  demanded  than  the  warrantor  poflefled  by 
defcent   from  the  original  warrantor  ;   fo  that  property  ex 

•  Erac\.  393.  b.  ^  Ibid.  3514. 

j>arie 


448  HISTORYOFTHE 

V.  ^  .  ^ 

CHAP       fi  parte  maternd  was  not  liable  to  make  good  a  warranty  ex 

HENRY  parte paternd,  and  mce  verfd*    In  no  cafe,  was  land  taken  by 

purchafe  at  all  liable ' ;  nor  was  a  perfon  bound  to  warranty 
beyond  the  value  of  the  land  at  the  time  of  the  donation. 
Judgment  for  the  excainhium^  with  the  writ  of  feifin,  and, 
where  neccflary,  that  of  extent,  have  already  been  con- 
fidered. 

Before  we  difmifs  the  fubjec^:  of  warranty,  it  will  be 
proper  to  confider  two  points,  which  were  very  intimately 
conneclcd  with  it :  thefc  are  the  manner  of  proving  a 
charter,  and  the  proceeding  by  ivarraniia  charts.     If  a 

proof  of  charter  was  produced,  and  the  perfon  vouched  denied  the 

Charters.  -r       i 

writing,  the  feal,  and  the  gift,  then  the  perfon  producing  it 
might  maintain  the  gift  to  be  lawful,  and  the  charter  to  be 
valid;  and,  inde ponit fe fuper patriamy  et  tejles  In  chartd 
nominatos.  Upon  this,  a  writ  iflued  to  the  flierifF,  com- 
manding him  to  fummon  A.  B.  C.  tejles  in  chartd  mm'ma- 
toi  quam  D.  in  curia  nofird  coram  jujlitiariis  mjlris  proferty 
isfc.  et  praterea  duodecim  tarn  milites  quam  alios  legates^  ts'c» 
ad  recognofendum  fuper  facr amentum  juum^  Jt  pradiiiusy 
Is'c. "".  If  the  witnefies  lived  in  different  counties,  different 
writs  iffued  •,  but  the  milites  always  came  from  the  county 
where  the  land  lay. 

Suppose  the  writing  and  feal  were  admitted,  but  the 
1        '  validity  of   the   charter    was    queflioned,    becaufe    made 

while  the  donor  was  non  fana  mentis^  or  under  age ;  oi 
becaufe  extorted  from  him  by  force  and  fear  while  under 
reflraint ;  or  becaufe  obtained  through  deceit,  being  a  fe- 
offment in  fee,  when  a  term  only  was  Intended  to  be  grant- 
ed; in  all  thcfe  cafes,  it  lay  upon  the  perfon  producing 
the  charter  to  prove  the  contrary.  Sometimes  the  inqui- 
fition  was  made  by  tlie  witneffes  alone,  and  fometimes  by 
ftrangers  without  the  witneffes,   according  as  the  parties 

I  Brat^.  394   b.  »"  Bra£^.  396. 

chofe. 


ENGLISH      LAW.  449 

chofeo.  In  the  latter  cafes,  there  was  always  a  claufe  in  CHAP.  vir. 
the  writ  dire£llng  that  they  (hould  view  the  land.  Some  hfnry  HI 
of  thefe  inquifitions  were  to  be  taken  before  the  juftices  of 
the  court  where  the  fuit  depended ;  fome  before  the  Iheriflf*, 
and  the  cujhdes placiiorum  cororiit.  If  the  witnefTes  and  re- 
cognitors did  not  appear  in  court  at  the  day,  another  writ 
ifiUed  to  the  fherifF,  beginning  thus  :  Bene  recolinnu  alias 
tibi pracip'ijfe  qiiody  ^c.  and  concluding  with  this  injunc- 
tion and  caution  :  Et  it  a  te  habeas  ifi  hoc  negot'io^  fie  nos  ad 
te  graviter  caper e  debeamus^.  The  writ  of  venire  ^Xw^ys 
ftated  the  ilTue  which  was  to  be  tried,  and  was,  therefore, 
as  various  as  the  matter  which  might  become  the  fubje£t 
of  fuch  inquiry. 

When  the  w^itnefles  and  recognitors  appeared  in  court, 
the  witnefTes  having  taken  their  oath,  declared  that  they 
were  prefent  when  the  gift  was  made,  and  that  the  charter 
of  donation  was  read  and  heard,  homage  accepted,  and 
feifm  lawfully  given  to  the  ilonee  in  their  prefence,  with 
all  due  folcmnity.  Upon  this  the  charter  was  pronounced 
to  be  valid,  and  the  gift  good  in  law.  If  they  faid,  they  had 
only  heard  that  fuch  a  charter  was  made,  and  homage  ac- 
cepted, but  were  actually  prefent  when  feifm  was  given, 
and  the  donee  entered  ;  this  alfo  was  held  fufRcicnt  to 
prove  the  gift  good  :  and  if  they  faid,  they  were  prefent 
at  all  the  other  circumftances,  but  they  knew  nothing  of 
the  feifm,  then  the  charter  was  proved,  but  the  gift  was  in- 
valid. If,  fays  Bra£ion,  the  witnefTes  faid  they  were  pre- 
fent at  the  making  of  a  note  or  memorandum  to  which 
both  parties  affented,  this  was  held  fufBcient  to  prove  the 
charter,  though  they  were  not  prefent  at  the  Meriting  or 
figning  of  it. 

If  all  the  witnefles  were  dead,  or  out  of  the  realm,  fo 
that  none  appeared  to  give  teflimony  to  the  truth  of  thr 

•   Br. a.  396   b.  ^   Ibid.  397    b. 

Vol.  I.  H  h  charter  ; 


45® 


HISTORY      OF     THS 


CHAP.    VII. 


HENRY  III. 


fVarraniiai 

charts. 


charter  \  then,  of  ncceflity,  as  in  other  cafes,  recourfe  muft 
be  had  ad  pat  nam  ^. 

Yet  Bradlon  fays,  that  a  charter  might  be  proved  in 
other  ways  than  per  tefles  et  per  patriam.  The  feal 
might  be  compared  with  another  feal  of  the  fame  perfon, 
which  had  been  produced  and  proved  in  court,  or  acknow- 
ledged by  him.  If,  upon  comparifon  of  the  feals,  there  ap- 
peared an  agreement  between  them,  this  amounted  to  a 
proof  of  the  deed,  unlefs  the  charter  carried  upon  the  face 
of  it  fome  circumftances  of  manifeft  fufpicion ;  as  rafure 
in  any  part  which  contained  the  fa61;  of  the  charter  5  for  as 
to  that  which  contained  the  law  of  it,  that,  as  in  writs,  was 
not  fo  material ;  ioxjura,  fays  Bra^lon,  ubiq;  fcribi  pojfunt. 
A  diverfity  of  hands,  or  of  ink,  raifed  only  flight  prefump- 
tions,  that  might  be  done  away  by  the  teftimony  of  the 
witnefs  or  the  country  ^ 

The  proceeding  by  luarrantia  chartte  was  this  :  If  a 
man  was  diftrained  by  the  chief  lord  to  do  greater  fervices 
than  were  exprefled  in  the  charter  of  donation  ;  this  not 
being  a  plea  concernmg  the  right  of  the  land  itfelf,  he  could 
not  have  any  remedy  by  vouching  his  warrantor,  but  he 
might  fummon  him  by  the  following  writ  :  Pracipe  tali 
^^Id  fine  dilaiione  warrantizet  tali  tantum  terree^  (S^c. 
qi^m  tenet  ^  et  de  eo  tener-^  clamat^  et  unde  chart  AM  fuam 
hn^ety  ut  dicit.  Et  nifi  fecerit^  et  talis  fecer it  te  fecurum  de 
clampye^  ^c.  Upon  this  there  lay  one  eiToin  ;  and  if  he 
nei&er  appeared  nor  eflToined  himfelf,  there  followed  the 
prdcefs  of  attachment,  the  courfe  of  which  will  be  particu- 
larly mentioned  hereafter.  When  he  appeared,  he  might  con- 
ted  the  warranty,  in  the  like  manner  as  in  cafe  of  a  vouch- 
er. The  above  writ  was  the  ufual  remedy  where  the  tenant 
was  vexed  by  the  fuperior  lord,  who  was  paramount  the 
warrantor ;   but   where   the   warrantor   exacted  fervices. 


1  Bia*!>.  498. 


'  Ibid.  498   b. 


againfl 


E  N  G  L  I  S  H      L  A  W.  451 

agalnft  the  tenor  of  his  own  charter  and  warranty  •,  feme    chap.  vir. 

thought  that  a  writ  of  warrantia  chartcPy  being  for  an  injury,     hexry   III. 

was  not  a  proper  remedy  againfl  his  own  lord,  but  that 

the  proper  remedy  was  by  the  writ  de  reElo  de  fervitiis  et 

confuetudin'ihus^  which  would  lead   to  the  duel,  or  great 

affife :  however,   according  to   the   opinion   of  Braclon, 

this  action   de  injuria  was  the  proper  courfe  againfl  one, 

who  had  attempted  to  opprcfs  and  defiroy  the  perfon  whom 

he  was  bound  by  his  own  foiemn  engagement  of  warranty 

to  defend  ^ 

Perhaps  the  tenant  had  no  perfon  whom  he  could 
vouch  to  warranty  ;  or  he  might  decline  vouching,  and 
would  rather  put  in  his  exception  or  plea,  Hating  fuch 
matter  as  would  either  defeat  or  fufpend  the  demandant's 
aftlon.  The  different  exceptions  that  might  be  alledged 
by  a  tenant  are  difcuffed  at  length  by  BraQon,  from  whom 
may  be  collected  a  fhort  fyftem  of  pleading,  as  underftood 
and  praflifed  in  his  time. 

Pleas,  or  exceptions,  as  Era61on  terms  them,  were  of  of  pleading', 
two  kinds,   dilatory  and  peremptory.     Again,  of  dilatory 
pleas,   feme  were  peremptory  as  to  the  jurifdicSlion,  but  , 

only  dilatory  as  to  the  a6iion.  The  order  of  flating  excep- 
tions, or  of  pleading,  was  firfl  to  the  jurifdi6lIon,  next  to 
the  perfon  of  the  plaintiff,  then  to  the  perfon  of  the  defend- 
ant, next  to  the  writ ".  Yet  Bradon  fays,  that  fome 
lawyers  did  not  adhere  to  this  order,  but  thought  that  they 
might  plead  a  latter  plea  firft,  and  with  a  proteftation  fave 
the  benefit  of  a  former,  which  they  might  plead  afterwards, 
if  neceffary.  It  was  agreed,  however,  that  a  defendant 
might  plead  more  than  one  dilatory  plea;  but  he  could  plead 
only  one  that  was  peremptory  as  to  the  a£lion.  A  plea 
might  be  proved  many  ways  ;  by  an  inftrument,  per  pa- 
iriam^  or  by  an  inqaifition,  fays  Bra61on,  confifling  of  im- 
partial unfufpcdled  perfons,  being  neither  acquaintance'' 

*    Braa.  499.  "   Ibi(!.  399.  b.  *    FunMiarci  et  d  mejlui . 

H  h  2  nor 


452  HISTORYOFTHE 

CHAP.    VII.  nor  domeftics  of  the  party  ;  for  which  reafon  It  could  not 
HENRY  ^^  proved  hy  a  feEla^  which  might  confift  of  the  party's  ac- 

quaintance or  domeftics ;  and  on  that  account  a  feEla 
was  never  efteemed  as  a  proof,  but  only  as  inducing  a 
flight  prefumption,  which  might  be  done  away  by  a  proof 
to  the  contrary,  and  by  a  defence  per  legem  f. 

Jurisdiction,  or  the  authority  of  deciding  between 
the  parties  to  the  fuit,  depended  in  general  upon  the  maxim 
of  the  civil  law,  that  aBor  Jequ'itur  forum  rei ;  but  this  was 
controuled  by  a  variety  of  exceptions.  Thus  matters  re- 
lating to  matrimony  and  teftaments  belonged  to  the  fpiritual 
court  j  matters  of  freehold  and  crime  belonged  to  the 
king's  courts.  It  was  no  uncommon  thing,  in  thefe  times, 
as  has  been  (hewn  before,  for  a  perfon  to  bind  himfelf 
fpecially  to  be  amefnable  to  a  certain  court,  or  fuch  court 
as  the  plaintiff  fhould  pleafe  to  fue  in.  This  was  a  volun- 
tary renunciation  of  jurifdi6lion  that  was  binding  on  the 
party  fo  contra£ting. 

We  have  already  feen  the  controverfy  which  was  main- 
tained by  the  clergy  in  favour  of  the  fpiritual  jurifdiflion; 
and  it  feems,  that  in  the  time  of  Bradlon  many  had  no 
fcruple  to  contend,  that  clerks  were  not  bound  to  anfwer 
before  a  fecular  judge  in  any  plea  whatfoever,  whether  of 
freehold,  contrail,  or  crime :  but  that  venerable  author, 
who  has  been  fo  unjuftly  accufed  of  a  prepoflelTion  in  fa- 
vour of  the  civil  and  canon  law,  declares  it  as  his  opinion, 
in  oppofitlon  to  fuch  notions,  that  they  were  amefnable  in 
all  pleas  civil  or  criminal,  except  only  in  the  inflidling  of  a 
criminal  fentence  which  afi'e6led  life  and  limb;  for  there, 
though  the  fecular  judge  had  the  cognifance,  the  execution 
was  to  be  In  the  ordinary.  Yet,  as  is  obferved  by  Braflon 
with  fome  indignation,  the  practice  was  otherwife  ;  for  in 
capital  offences  the  ordinary  ufed  to  affume  the  cognifance, 

^  Bia£l.  400.  b. 

as 


ENGLISH      LAW.  453 

as  well  as  the  execution  2,  notwithflanding  he  was  bound    CHAP.   vii. 
by  the  canons  not  to  judge  in  matters  of  blood  ^.  HENRY  lil. 

When  a  fuit  was  commenced  in  the  fpiritual  court  for 
a  matter  which  was  properly  cognifable  at  common  law,  of  prohlbitiocs. 
the  party  fo  wrongfully  fued  might,  as  we  have  already 
feen,  have  a  writ  of  prohibition  to  reftrain  the  judge  and 
party  from  proceeding  further  *,  the  boundary,  therefore, 
of  thefe  two  jurifdi£lions  is  to  be  afcertained  by  a  know- 
ledge of  the  cafes  in  which  writs  of  prohibition  were  or 
were  not  allowed.  This  point  was  but  llightly  touched  by  • 
Glanville,  who  confines  what  he  fays  intirely  to  one  or 
two  writs  ^  ;  but  the  fubjedl  of  prohibitions  is  treated  very 
fully  by  Bra^lon. 

We  find  that  a  prohibition  lay  for  a  patron,  not  only 
where  the  re£lors  litigated  a  queftion  concerning  the  whole 
tithes  of  the  church,  but  alfo  where  the  fuit  was  for  a  part 
of  them  as  low  as  to  the  fixth  part  of  the  value  of  the  advow- 
fon,  but  not  lower;  any  thing  lefs  than  this  being  permit- 
ted to  be  determined  finally  by  the  fpiritual  judge  ^  There 
are  many  writs  of  prohibition  for  the  maintaining  of  the 
king's  rights  during  the  cuftody  of  the  temporalities  ;  the 
pope  and  his  partifans  endeavouring  to  encroach  on  thefe 
fecular  claims,  either  by  refufing  clerks  who  were  prefent- 
ed,  or  by  other  marks  of  oppofition^.  There  is  a  writ 
of  prohibition  to  flop  a  fuit  inflitutcd  againft  a  bailiff  of  the  ^ 

king  who  had  arrefted  a  clerk  for  a  felony  or  fome  other 
crime.  If  a  fuit  was  mftituted  in  the  ecclefiaflicai  court 
to  eftablifli  the  legitimacy  of  children,  with  view  to  a 
claim  to  hold  per  legem  A?igli<ey  a  prohibition  lay,  becaufe 
that  court  could  not  judge  of  legitimacy  quoad  h^red'ttatem 
et  fuccejfionewy  unlefs  a  plea  was  depending  in  the  king's 
court,  and  baftardy  was  objecled  \  and  then  the  trial  ufed 

*  BraifV.  401.  b.  '   Braa.  40a.  b. 

*  Ibid.  407.  **  ^t'^^^-   403'  4'^4- 
^  Y.d.  ant.  j-5. 

,   fo 


454  H  I  S  T  O  R  Y      O  F      T  H  E 

CHAP.    viT.   to  be  remitted  to  the  ecclefiaftical  judge,  as  has  been  al- 
HENRY  III     ready  frequently  mentioned.    A  prohibition  alfo  lay,  if  the 
ecclefiaftical  judge  proceeded  in  an  inquifition  of  ballardy, 
after  the  death  of  the .phintiff  or  defendants 

In  the  following  cafes,  it  is  laid  down  by  Bracfton,  that 
a  prohibition  would  not  lie  to  the  fpiritual  court :  in  all 
fpiritual  matters,  or  thofe  annexed  to  the  fpiritualty,  in  mat- 
ters matrimonial  or  teftamentary,  or  where  penance  was  to 
be  enjoined.  Thus,  f^iys  Braclon,  in  a  fuit  relating  to  any 
tenement  per pontijices  Deo  dedicatnvi,  and  fo  held  facred,  as 
abbies,  priories,  monafterles,  and  their  cemeteries  j  or 
concerning  things  quaft  facra^  becaufe  annexed  to  the 
fpiritualty,  as  lands,  common,  ellovers,  and  the  like  given 
to  a  church,  in  dotem^  as  it  was  called,  at  the  time  of  dedica- 
tion *,  if  the  church  was  fpoiled  of  thefe,  and  a  fuit  was 
brought  ill  the  fpiritual  court  for  reftitution,  no  prohibition 
lay ;  though  this  privilege  was  not  allowed,  if  the  lands 
were  in  libera  et pura  eleemofynd.  In  one  place  Bra£lon  ex- 
prefles  himfelf  as  if  a  fuit  in  the  fpiritual  court,  when  for  a 
liberty,  a  common,  and  the  like,  could  be  maintained  only 
on  a  recent  fpoliation  '^ ;  though  in  another  place  he  declares, 
that  recent  fpoliation  fliould  be  tried  by  afTife  ^. 

A-  PROHIBITION  would  He  to  the  following  fuiis  : 
to  a  fuit  de  catallis  clericorum  violcnter  ahlaiisy  or  for 
tithes;  or  for  the  value  of  them,  if  they  v/ere  fold^;  or  on 
an  obligation  of  furety  for  the  purchafe  of  tithes*,  or  a  pro- 
mife  of  money  oh  caufam  rfiatrimonii,  not  fo  if  the  promifc 
was  of  a  tenement ;  to  a  fuit  for  a  legacy,  claiming  it  ///  de~ 
biiufn  ;  or  for  the  legacy  of  a  debt  due  to  the  tcftator,  and  ac- 
knowledged and  proved  to  be  fuch  in  his  life-time,  becaufe  it 
fo  became  a  part  of  the  tefhator's  goods,  which  a  debt,  that 
had  neither  been  proved  nor  confefled  in  his  life-time,  or 
voluntarliv  confefTed  fince,  was  not.  Such  a  debt  could 
only  be  ellablilhed  by  fuit   at  common  law  ;    till   when 

«  Braf^.  4r4.  b.  ^ct^,  6  Rra£^.  406. 

*  Ibid.  40B.  ''  Ibid.  407. 

it 


E  N   G  L  I  S  H      L  A  W.  455 

it  was  no  part  of  the  goods,  and  fo  could  not  be  bequeathed ;  chap.  vif. 
itbeing  a  rule, fir{l,thata£lionsfhould  not  be  bequeathed;  fe-  ^£>^rf^Y  ,,, 
condly,that  the  ecclefiaflical  judge  fhouldnot  have  cognlfance 
of  them ;  and  thirdly,  that  executors  fliould  have  no  a£lion 
for  a  debt  which  was  not  acknowledged '  (that  is,  grounded 
upon  a  recognifance  or  judgment)  in  the  life  of  the  teftator. 
If  goods  were  bequeathed  and  fued  for ;  the  fame  of  houfes 
and  edifices  in  fome  cities  and  towns  which  the  teftator  had. 
purchafed,  thefe  being  made  qttqfi  catalla  tejiatorisy  by  his 
own  difpofition  of  them,  (though  it  was  otherwife  in  Lon- 
don, where  prohibition  would  lie) ;  if  a  nfusfruciusoi  land, 
as  a  term  for  years,  was  bequeathed ;  a  ufusfruBus  being 
only  a  chattel ;  in  all  the  foregoing  cafes,  no  prohibition 
would  lie,  in  the  time  of  Bra^lon"*;  for'as  the  fpiritual 
court  was  in  unqueftionable  pofleffion  of  caufes  matrimo- 
nial and  teftamentary,  the  abovementioned  queftions,  as 
arifing  out  of  a  teftament  or  marriage,  were  thought  natu- 
rally to  belong  to  the  fame  tribunal.  lilud  quod  prlndpale 
ejl  trahit  ad  fe  quod  ejl  accefforium. 

It  is  laid  down  very  pofitively  by  Bra£\on,  that  in  a  mat- 
ter purely  temporal  litigated  between  two  laymen,  the  ju- 
rifdidlion  of  the  caufe  could  not  be  altered  by  any  privilege 
whatfoever;  and  he  inftances  the  privilege  of  thofe  who 
were  criice  fignatl^  which  he  confiders  as  an  indulgence 
warranted  by  no  law  :  he  fays,  that  no  oath,  wo  fidc'i  interpo- 
fttio\  no  voluntary  renunciation  of  the  parties  could  change 
the  jurifdi^ion  ;  as  the  renunciation  of  the  party  could 
have  no  efre£l  beyond  himfclf,  it  could  not  reftrain  the 
king  in  prohibiting  a  foreign  jurifdi^lion  from  encroaching 
/Dn  his  crov/n  and  dignity  •". 

'  Recognitum.  comf,  in  the  early  t'mc  of  our  !iW, 

^  Bradt.  407.  b.  as  lia«;  brea  (hewn  'n  the  former  pare 

■  This  was  a  p-ctfnce  under  which  o''  this  valunif,  ViJ.  ant.  164.  loj. 
catife;:  we  re  drawn  into  the  fpiiituai  "^   B«ac>.  4^8. 'j. 


TiJE 


4)6  H  I  S  T  O  R  Y      O  F      r  H  E 

CHAP.  vn.  The  jurirdidion  of  a  caufe  depended  either  upon  the 
HENRY  III.  Parties  and  the  caufe  of  action  together,  or  on  the  caufe  of 
a6lion  fingly.  Thtis,  if  a  clerk  fued  a  layman,  or  a  lavman 
a  clerk,  in  the  ecclcfiaftical  court,  on  a  matter  purely  tem- 
poral, a  prohibition  lay  :  the  fame,  if  a  clerk  fued  a  clerk  ". 
In  thefe  cafes  it  appears,  that  the  caufe  of  action  was  the 
principal  ground  of  jurifdiclion :  but  the  caufe  of  action 
would  change  its  nature  from  fpiritual  to  temporal ;  and  fo 
back  again.  Thus  a  lay  chattel  became  fpiritual,  when 
tithed ;  and  when  the  tithe  was  fold,  it  became  again  lay.' 
Houfes  and  other  lay  fees  in  cities  and  boroughs,  if  be- 
queathed by  will,  were,  as  has  been  feen,  conftrued  to  be 
of  a  fpiritual  nature ;  but  when  the  will  was  executed,  they 
again  became  lay ;  and  fo  of  many  others  ^. 

There  were  two  writs  of  prohibition,  one  to  the  judge, 
another  to  the  party ;  the  former  run  thus  :  Prohibevms  vo- 
his  ne  placitum  teneatis  in  curia  chrijlianitatis,  \Sc.  the  lat- 
ter, Prohibemus  tibi  ne  Je quarts  placitum  in  curia  chrijliani' 
talis y  isfc.  If  the  judge  to  whom  the  prohibition  was  di- 
rected thought  it  well  founded,  he  would  decree  zfuperfc'^ 
deas  of  the  proceeding ;  if  he  doubted  ,  it  was  ufual  to  con^ 

fult  with  the  king's  juflices;  to  which  confultation  the  juf- 
tices  would  make  anfwer  by  a  writ,  fometimes  in  their 
own  name,  and  fometimes  in  the  king's ;  as  thus  :  DileBo 
in  Chrijio  tali,     InJpeEiis  Uteris  vejlris^  quas  nobis  tranfwift- 

Jlisy  et  plenius  intellctiis^  (fine  prajudicio  melioris  fententia ) 

confultationi  vejlra  duximus  refpondenduniy  quod  ft  res  ita  fe 
habetficutin  CONSULT  A  TIONe  vejlrd  nobis  expofinjlisy  vi- 
detur  nobis  quid  in  caufd  ijla  bene  potejlis  procedere,  non  ob' 

Jlante  regid  prohibitione^.  If  no  fuch  writ  of  confultation 
was  fent,  the  prohibition  remained  in  force. 

It  was  not  uncommon  for  the  ecclefiaftical  judge  to 
baffle  a  writ  of  prohibition  by  hurrying  on  the  procefs 

»  Braa    ic6,  0  Ibid.  411.  p  Ibid.  405.  b.  406. 

againft: 


E  N  G  L  I  S  H      L  A  W.  457 

againft  the  party  bringing  the  writ,  and  entangling  him  in  CHAP.  vir. 
a  fentence  of  excommunication.  When  a  perfon  had  ftood  h^nry  III. 
excommunicated  for  forty  days,  the  bifhop  ufed  to  fend  a 
writ  to  the  king  intimating  this,  and  praying  the  afTiftancc 
of  the  fecular  arm  ;  invccantes ^  quod  minus  valet  ecclejia  in 
hdc  parte^  digmtur  regia  fupplere  majejlas ;  the  defign  of 
which  was,  that  the  party  (liould  be  apprehended.  But, 
upon  fuggeftion  of  the  fraud,  the  party  might  obtain  ano- 
ther writ  dire6i:ed  to  the  (heriff^f  non  capiefido^  which  like- 
wife  commanded  the  (herifF  to  attach  the  clerical  judge, 
that  he  might  anfwer  to  the  fraud.  Any  malicious  appli- 
cation of  the  procefs  of  excommunication  might  be  com- 
bated in  the  following  manner.  •  If  a  perfon  was  rightly 
excommunicated,  and,  having  continued  fo  for  forty  days, 
was  imprifoned,  and  tendered  furety  for  being  forthcomint^ 
and  anfwering  to  the  fuit,  it  ought,  fays  Braclon,  to  be  ac- 
cepted *,  and  accordingly  a  v/rit  might  be  obtained,  com- 
manding the  fherifF,  that  if  the  ordinary  malicioufly  refufcd 
a  fuihcicnt  furety,  the  (hcriff  himfelf  fliouJd  take  it,  and 
order  the  prifoner  to  be  fet  at  large  ^. 

If,  inftead  of  the  above  device,  the  judge  and  the  party   Atud 

refufed  obedience  to  the  writ,  they  might  both  be  attached  f"'" prohibitian. 

to  appear  either  cora77i  rege,  or  his  juftices  de  bancoy  or  the 

juiliccs   itinerant,   to   anfwer    for    their  contempt.     This 

writ  of  attachment  differed  fomewhat  from  that  ufed  on  the 

fame  occafion  in   Glanville's  time  *  :  infliead  of  repeating 

the  prohibition,  as  it  did  then,  it  now  began  like  other  writs 

of  attachment:    Si  A.  fecerit  te Jecurum  de  clatjiore fuo pro- 

fequer.doy  tunc  pofie  per  vadium  et  falvos  plegios  B.  talem  or- 

diuarum,  quid  fit  coram  nobisy  as  the  cafe  might  be,   ojleti- 

furus  quare  tefiuerit  placitiim  in  curid  chrijjiamtatis  de  laico 

foedo  ipfius  A,   in   tali  villa   contra  prohibitioneni  nojlram. 

Tone  etiam  per  vadium  et  falvos  plegios  E.  quod  tunc  ftt  ibi 

1  Braa.  408,  409.  •   Vid.  aot.  175,  176. 

i^enfurus 


458  HISTORYOFTHE 

CHAP.    VII.   ojlenfurus  quare  fecutns  ejl  idem  placitum  in  eadem  curid 


HENRY  III. 


chrijtianitatis  contra  prohibiiionem  nojlram ;  et  habeas  ibi 
nomina  plcgiorum  et  hoc  breve,  isfc.  If  the  judge  and  the 
party  lived  in  different  counties,  then  there  were  feparate 
writs  for  each.  The  procefs  was  the  fame  as  in  other  per- 
fonal  attachments  •",  of  which  we  fhall  fpeak  more  particu- 
larly hereafter. 

When  the  parties  on  both  fides  appeared  in  court,  the 
plaintiff  flated  his  count,  or  declaration,  or,  as  Bracfon 
calls  it,  intentio,  in  this  way  :   £go  A,  conqueror  de  B.  quod 
me  injuJTe  vexavit,  et  gravavit  trahendo  me  in  placitum  in 
curia   chrijtianitatis  de  laico  foedo  meoy  fcilicety  ^c.   unde 
damnum  ad  valentiamy   ^c.  and  to  confirm  and  fupport 
his  declaration  he  ihould  add,  that  he  fhewed  the  writ  of 
prohibition  in  full  court,  and  that,  notwithftanding  this, 
they  proceeded  to  examine  witnefTes,  or  to  excommunica- 
tion j  and  then  he  (hould  conclude  by  producing  a  j'ccia, 
confiding  of  two  at  leaft,  and  as  many  more  as  he  could 
procure.  If  the  fecla  difagreed  in  their  teftimony,  it  was  the 
fame  as  if  none  had  been  produced ;  but  as  this  was  only  a 
failure  of  proof,  and  not  of  right,  the  defendants  ufed,  ne- 
verthelefs,  to  be  enjoined  not  to  proceed  in  the  ecclehafti- 
cal  court.     If  the  feSIa  agreed,  then  the  defendants  were 
to  anfwer  ;  and  this  might  be  done  feveral  ways.     They 
might  plead,  that  it  was  a  cafe  of  fpiritual  cognifance  where 
no  prohibition  lay ;  or  they  might  confefs  it  to  be  temporal, 
but  might,  for  plea  to  the  plaintifr  and  hisfeclay  fay,  that 
they  did  not  proceed  after  the  prohibition ;  or  that  no  pro- 
hibition was  tendered  to  them  •,  and  then  each  defendant 
might  wage  his  law  duodecimd  manu.      "When  law  was 
waged,  and  pledges  given  de  lege  facie  nddy  a  day  was  given 
to  the  parties  for  making  their  law;  at  which  day  they  might 
caft  an  efToin,  and  have  another  day  by  their  efToiners;  at 

*  Bra£l.  409, 

which 


ENGLISH      LAW. 


459 


\vhlch  day  if  they  did  not  come,  nor  caft  an  eflbin,  judg-  CHAP.    viL 
ment  was  pafled  againft  them,  and  they  were  obliged  to    henry^ui 
pay  damages  to  the  plaintiff. 

If  they  appeared,  they  were  to  produce  their  compurga- 
tors, who,  like  the/e^a,  might  confift  of  their  friends  and 
acquaintance.  The  compurgatores  not  being  required,  any 
more  than  thefeBatores,  to  be  equally  impartial  with  recog- 
nitors ;  it  was  fufficient  if  they  were  of  good  report,  and 
in  general  deferving  of  credit ;  and  they  needed  not  be  of 
the  fame  rank  and  condition  with  the  perfon  producing 
them.  The  words  in  which  the  laiv  ivas  to  be  made  were 
to  purfae  the  form  of  the  record :  if  they  varied  therein, 
the  defendant  flood  convidl: ;  and,  if  a  layman,  was  com- 
mitted to  jail,  as  guilty  of  a  mifdemeanor  againft  the  royal 
dignity,  in  the  fame  manner,  fays  Braclon,  as  if  he  had 
committed  a  crime  of  Ufa  majejias ;  if  a  clerk,  then  in  con- 
fideration  of  his  orders,  he  was,  according  to  the  fame  au- 
thority, treated  more  mildly  ;  though  he  does  not  mention 
the  fort  of  penalty :  the  damages  ufed  to  be  taxed  in  both 
cafes  by  the  juflices  according  to  the  nature  of  the  cafe. 

This  Is  the  account  given  by  Braclon  of  the  manner  of 
proceeding  on  a  writ  of  prohibition ;  and  it  may  be  pre- 
fumed,  that  the  proceeding  in  other  perfonal  writs  was  ex- 
a6tly  fimilar.  When  Braclon  comes  to  the  fubje£l:  of  per- 
fonal actions,  he  breaks  off  abruptly  without  carrying  the 
the  reader  through  the  whole  proceeding,  as  he  has  here 
through  the  proceeding  on  a  prohibition.  This  defecl:  muft 
be  fupplied,  If  pofTible,  by  what  is  to  be  picked  up  in  other 
parts  of  his  work,  and  particularly  from  the  proceeding  in 
prohibition  which  has  jufl  been  related. 

Thus  far  of   queftions  relating  to  the  jurlfdlcbion  of  orjurifdiaiou. 
fplrltual    and   temporal    caufcs.      INlany  other  exceptions 
migiU  be  made  to  the  jurifdiction  of  the  judge.     Firft,  it 
was  to  be  feen,  whether  he  had  a  proper  authority:  and 

in 


460 


HISTORY    OF    THE 


Abatemtfit 
the  writ. 


vn.  in  order  to  afcertain  this,  it  is  direO:ed  by  Bradlon,  that 
the  writ  by  which  the  juftlce  was  appointed,  after  reading 
the  original  writ,  fliould  be  read,  unlefs  the  original  writ 
made  mention  of  his  judicial  authority.  If  the  judge  de- 
legated his  authority  to  another,  the  proceeding  before  fuch 
delegated  perfon  would  be  coram  nonjudicc.  Certain  per- 
fons  had  peculiar  privileges  in  judicial  matters.  Thus, 
the  Hofpitallers,  Templars,  and  many  others,  had  the  pri- 
vilege to  be  fued  no  where  but  czram  ip/o  rege^  vel  capitali 
jujlitiario.  The  citizens  of  London  were  not  to  anfwer  to 
any  plea  out  of  the  city,  except  de  tenuris  et  contraclihus 
forinfecis.  The  barons  of  the  cinque  ports  were  to  anfwer 
no  where  but  apud  Shypwcy  ^  It  is  fald  by  Bra£lon  *,  that 
if  a  judge  was  fufpe6i:ed  of  any  partiality,  favour,  or  mahce, 
it  ought  to  be  a  ground  of  exception ;  but  this  he  feems  to 
give  as  an  opinion  of  his  OM'n  :  yet  he  lays  it  down  as  fettled 
law,  that  the  jurifdidlion  of  a  judge  might  be  declined,  upon 
a  real  caufe  ftated  •,  as  for  confanguinity  to  the  plaintiff;  or 
being  his  friend,  or  companion,  or  counfel,  or  pleader  to 
the  plaintiff,  in  the  prefent  or  any  other  caufe ;  or  if  he  was 
an  enemy  to  the  defendant.  All  thefe  are  ftated  by  Brac- 
ton  as  caufes  of  exception  to  the  judge  exercifing  his  jurif- 
diftion  to  decide  between  the  parties  '. 

When  the  jurifdiclion  of  the  court  had  been  contro- 
verted and  eftablllhed,  then  was  the  original  writ  to  be 
read  again,  and  the  tenant  was  to  make  fuch  exceptions  as 
the  law  allowed  againft  the  form  of  the  writ.  The  requi- 
fites  to  conftitute  a  legal  and  regular  writ  were  many.  It 
muft  be  adapted  to  the  caufe  of  aclion.  Thus,  faysBraclon, 
if  a  magnum  hreve  de  reElo  patens  was  brought,  when  It 
fhould  be  a  parvum  breve  claufum,  the  writ  would  abate, 
though  the  adion  remained.     Writs  fliould  be  brought  iu 


of 


»  Bra£l.  4.1 1. 

*  This  was  a  good  exception  in 
the  canon  law,   nndcr  the  name  or 


Refntatio.      C.irv.  lus.    Caaon.  %■]). 
'  Bra6r,  411.  b.  41Z. 


their 


E  N  G  L  I  S  H      L  A  W.  461 

their  proper  order.    Thus,  where  a  perfon  had  a  caufe  of  ac-  CHAP,    vii, 

tion  that  would  entitle  him  to  more  writs  than  one,  and    UT-Mo^r  ,,, 

'  HLNRY   III. 

he  brought  a  writ  of  right,  he  could  not,  generally  fpeaking, 
afterwards  bring  an  inferior  writ  to  recover  the  pofleflion ; 
though  there  were  inftances  where  a  demandant  had  gone 
fo  far  as  to  pray  a  view  in  a  writ  of  right,  and  afterwards 
was  permitted  to  fuftain  an  aflife  of  novel  dilTeifm.  A  writ 
failed,  if  it  was  grounded  on  the  mode  and  quality  of  a 
faft,  when  it  ought  to  be  grounded  on  the  fa6l  itfelf  j  as 
the  principal,  fays  Bra£ton,  fiiould  always  be  determined 
before  the  acceffary.  Thus,  as  has  been  obferved  in  ano- 
ther place ",  a  man  difTeifed  with  violence  fhould  not  bring 
a  writ  quare  vi  et  armisy  becaufe  it  only  went  to  the  quality 
of  the  difTeifm,  and  not  to  the  recovery  of  the  tenement 
difTeifed  ^. 

It  was  required  that  a  writ  fhould  contain  in  it  neither 
falfity  nor  error.  It  fhould,  upon  the  face  of  it,  appear 
free  from  all  blemifh.  This  feems  to  be  required  by  Brac- 
ton  more  particularly  in  a  writ  patent ;  and  whether  it  was 
patent  or  clofe,  it  fhould  have  no  rafure :  yet  a  difference 
was  made  between  rafures.  Thus,  if  it  was  in  Rating  a 
fa6l,  the  writ  failed,  for  names  and  fa6ts  fhould  be  ftated 
with  fidelity ;  and  if  fuch  an  error  was  made  either  by  the 
chancellor,  or  by  fome  clerk,  or  the  (heriff,  or  the  attor- 
ney, the  perfon  guilty  would,  according  to  Bra£lon,  be 
in  mifericordia  to  the  king  for  all  his  goods,  and  be  liable 
to  be  puniflied  as  for  forgery.  If  a  falfe  feal  ^  was  affixed, 
or  even  the  true  feal  falfely  applied,  that  is,  to  a  falfe  writ, 
this  was  confidered  as  an  offence  of  majefly ;  and  the 
offender,  if  a  layman,  was  puniflied  capitally ;  if  a  clerk, 
he  was  degraded  and  rendered  infamous  ^  A  writ  abated, 
if  obtained  upon  fuggeflion  of  falfchood,  or  the  fuppreffion 
of  truth. 

"   Vid.  ant.  338,  339.  y   Tanquant  falfarius. 

.    *  Bra£V.  413,  *  Brad.  413   b. 

If 


462  HISTORYOFTHE 

CHAP.  VII.  If  the  demandant  or  tenant  died,  the  writ  abated,  and 
HUNRY  III  ^^^  a£lion  too  j  but  if  they  were  more  than  one,  as  parce- 
ners having  one  right,  then,  tho'  the  writ  abated,  yet 
the  action  furvived  \  If  there  was  any  error  in  the  names 
of  perfons,  in  the  county,  or  vill,  the  writ  abated.  If 
the  tenant  held  lefs  than  the  demandant  claimed,  the  writ 
failed  j  not  fo  if  he  held  more.  If  pending  one  a£lion  the 
demandant  brought  another  writ  for  the  fame  caufe  of  a£lion, 
the  fecond  writ  abated.  We  have  before  faid,  that  the 
writ  abated  if  the  demandant  died  ;  it  was  the  fame,  if  be- 
ing a  bifhop,  or  an  abbot,  or  the  like,  he  was  depofed ; 
but  not  if  fuch  bifhop,  abbot,  or  the  like,  were  tenant  in 
the  a£lion  ;  for  then  the  a6lion  would  only  be  fufpended 
till  a  fucceflbr  was  appointed ;  efpecially  if  the  adlion  was 
civil,  and  not  penal ''  :  if  it  was  both  civil  and  petial,  the 
a£lion  would  hold  both  ad poenam  and  ad  rejl'itutionem^  as 
long  as  he  lived ;  but  if  he  died,  whether  before  or  after 
depofition,  the  penalty  was  extinguifhed  with  the  perfon  \ 
yet  an  a£tion  would  lie  againft  the  fucceflbr  for  reflitution 
by  another  writ.  A  perfonal  writ  abated  by  the  death  of 
the  tenant,  whether  fuch  death  was  civil  or  natural,  but  the 
a£lion  furvived.  A  civil  death  followed  upon  an  entry  into 
religion;  and  if  this  was  procured  fraudulently  after  the 
purchafe  of  the  writ,  it  feems  it  would  not  abate  the  writ. 
If  the  demandant  in  his  declaration  exceeded  the  limit  of 
the  writ,  as  on  a  writ  of  polTeflion  to  count  for  the  right, 
the  writ  abated. 

In  (hort,  almofl  all  exceptions,  fays  Bra£lon,  which 
could  be  alledged,  might  be  properly  ranked  among  pleas 
to  the  writ ;  becaufe,  if  they  went  to  the  adlion,  when  the 
acSlion  was  determined,  the  writ  was,  of  courfe,  at  an  end: 
whether  the  action  was  abated,  poftponed,  or  fufpended, 
fo  was  the  writ.     It  was  the  opinion  of  fome,  that  all  pleas 

»  Bra€V.  414,  ^  Ibid    414.  b. 

to 


E  N  G  L  I  S  H      L  A  W.  4<^3 

to  the  writ  muft  be  propounded,  fimu I  etfemel,  in  one  day  '^.  CHAP.  vil. 
When  the  writ  was  abated  by  reafon  of  any  defect  or  error,  henry  IIL 
and  fuch  defe£l  or  error  was  corrected,  it  was  confidered 
as  the  fame  writ  and  the  fame  adlion,  tho'  it  was  adlually 
another  piece  of  parchment  and  another  feal ;  and  there- 
fore neither  tht,  declaration  or  count,  nor  the  attorney, 
needed  be  changed  •*. 

If  the  writ  was  open  to  no  exception,  then  the  defen-  ^'^f  *°  ^^* 
dant  was  to  fee  if  there  was  any  againft  the  perfon  of  the 
plaintiff,  fo  as  that  he  could  not  at  all,  or  at  leaft  not  at  that 
time,  make  his  demand.  Thus,  it  might  be  urged,  that 
the  demandant  was  ?ifervus^  or  a  baflard,  oxftzculo  mortuus  ; 
that  he  was  mad,  and  non  fana  mentis ;  or  born  deaf  and 
dumb  •,  or  a  leper ;  that  he,  or  fome  anceftor,  had  been 
attainted  of  felony ;  that  he  was  a  minor.  If  a  perfon  was 
appealed  of  felony,  he  could  not  bring  a  civil  fuit  till  he 
had  defended  himfelf  i  nor  could  a  defendant,  under  fuch 
circumftances,  be  bound  to  anfwer.  It  was  a  good  plea 
to  fay,  that  the  plaintiff  was  in  confederacy  with  the  king's 
enemies,  or  was  in  allegiance  to  the  king  of  France  ;  or 
to  fay,  that  he  was  excommunicated".  It  might  be  faid, 
that  the  demandant  had  no  right,  but  as  parcener  with  ano- 
ther; or  in  right  of  his  wife,  fo  as  he  could  no  more  fue 
without  her  than  (he  without  him  ^  Of  fome  of  thefe 
pleas  we  ihall  now  fpeak  more  particularly. 

The  plea  of  baftardy  was  peremptory,  for,  if  proved, 
it  excluded  the  demandant  for  ever  from  making  any  claim. 
It  was  always  required,  that  the  fpecial  matters  fhould  be 
ilated  in  the  plea ;  otherwife,  there  would  be  an  obfcuritv 
and  doubt,  whether  the  baftavdy  (liould  be  tried  by  the 
ecclefiaftical  court,  or  not.  Thus,  hiiving  faid  nihil  juris 
habes  in   terra  petitu  quia  hajlardus  eSy   it   fhould  go  on, 

«   liracV.  415.  ,  a*  it  exclu'-ied  tlie  unliappy  objefl  from 

^    Ibid.  415.  b.  the  communion  of  men,   i^o  it  |>.-e*.lu- 

•  The    Icprofy    o'"  the  mind,    as  clcd  him  from  doing  any  lav.'ful  a<f>. 
Biaii^un  call?  it,  like  that  of  the  body,         *  hrzCi.  4J5.  b.  4!  6. 

quia 


464  HISTORYOFTHE 

CHAP.    VIT.   guia  pater  tuus  nunquam  defponfavit  matrem  tuam  ;  or  thus, 

TinxTn^r  ...     Qu'ia   i7iUr  pair  em  tuum  et  matrem  tuam   contra^um  fuit 
HENRY   III.     "  ...  .  A 

matrimonium  lllegitimum^  ex  quo  prius  contraxit  cum  quadam^ 

qui£  vixii  tempore^  quando  contraxit  cum  matre  tud  ;  in 
both  which  it  appears,  that  inafmuch  as  the  queflion 
arofe  upon  the  marriage,  it  muft  be  tried  by  the  ecclefiaf- 
tical  court.  But  if  it  was  thus,  quia  natus  fuijli  per  tan- 
turn  tempus  ante  fponfalia  vel  matrimonium  contra£ium  inter 
patrem  tuum^  et  matrem  tuam\  then  in  fuch  cafe,  as  the  mar- 
riage was  admitted  on  both  fides,  it  is  the  opinion  of  Brac- 
ton,  that  the  queftion,  whether  born  before  marriage  or 
after  ^,  might  very  well  be  enquired  in  the  king's  court. 

We  have  before  feen  what  fcruples  had  been  raifcd  by 
the  ecclefiaflics  upon  this  queftion  of  natus  ante  matrimo- 
niumy  and  what  a  pofitive  declaration  was  made  by  the 
king  and  barons  in  the  ftatute  of  Merton,  pafled  in  the 
twentieth  year  of  this  reign  ^,  The  matter  was  not  fuffered 
to  reft  there.  We  are  told,  that  in  the  fame  year  the  king 
held  a  council,  confifting  of  feveral  bifhops  and  lords,  and 
that  it  was  agreed  by  them  all,  that  whenever  the  iflue  of 
natus  ante  matrimonium  arofe  in  the  king's  courts,  the 
plea  ftiould  be  tranfmitted  to  the  ordinary ;  and  that  an  in- 
quifition  being  made  by  him  in  precife  words,  utrum  talis 
?7  at  us  fit  a?2te  matrimonium  vel  poji^  he  ftiould  fend  his  an- 
fwer  to  the  king's  court  in  the  fame  words  precifely,  with- 
out any  cavil ' :  that  in  taking  fuch  inquifition,  all  appeal 
fhould  ceafe,  as  in  other  inquifitions  of  baftardy  tranfmit- 
ted to  the  ordinary  •,  and  particularly,  if  there  fhould  be 
need  of  an  appeal,  that  it  fhould  not  be  made  out  of  the 
kingdom.  It  was  commanded  that  this  fhould  be  the  prac- 
tice in  future.  This  regulation  intirely  precluded  the  or- 
dinary from  giving  any  judgment  on  the  legitimacy,  and 
confined  him  to  the  fmgle  enquiry  of  the  fa<^,  which  he 

t  Brasi^.  416.  ^  Vid.  snt.  z56.  '    Sine  aliqua  caviilathtre. 

was 


E  N  G  L  I  S  H     L  A  W-  465 

was  required  to  certify  in  the  very  terms  of  the  ifluc,  leav-  chap.    vil. 

ing  the  king's  judges  to  make  their  own  conclufion  upon  it;     HtNRY  III 

which  is  precifely  what  Glanville  lays  down  as  the  law  upon 

this  fubjetSl  ''.     But,  before  this  provifion  of  the  council,  a 

practice  had  obtained,  a«  we  have  juft  faid,  of  trying  this 

fpecial  qucflion  of  bafiardy  in  the  king's  court.     Thus,  in 

the  eleventh  year  of  this  king,  in  a  writ  of  mortaunceftor, 

the  jurors  found  tliat  the  demandant  was  not  the  next  heir, 

being  born  in  adultery  before  marriage.     It  feems  to  have 

been  confidcred  as  in  the  eledion  of  the  king's  judges, 

whether  they  would  fend  fuch  an  inquifition  to  be  made  in 

the  ecclefiaftical  court,  or  would  try  the  queflion  in  their 


own  '. 


It  is  not,  however,  improbable,  that  It  depended  upon 
the  form  of  the  iflue,  which  court  (hould  be  reforted  to,  or 
finally  relied  on,  for  the  trial  of  this  queftion ;  for  if  the 
demandant  replied  generally  quod  legiiimus^  without  an- 
fwering  to  the  fpecial  matter,  and  this  obfcure  iflue  was 
fent  to  the  eccleliaftical  court,  that  court  would  probably 
certify  generally  quid  leg'ittmus ;  but  this  would  be  fuch  a 
failure  in  the  ecclefiaftical  court,  as  to  induce  the  judges 
to  caufe  an  Inquifition  to  be  made  in  the  king's  court  on  the 
fpecial  matter  :  the  fame,  if  the  reply  had  met  the  fpecial 
matter,  and  the  ecclefiaflical  court  had  certified  generally 
quod  legltimus  \  though  Bra6lon  feems  to  think,  that  fuch  a 
general  and  obfcure  reply  to  the  fpecial  caufe  of  baftardy 
would  pafs  for  no  reply  at  aH,  and  that  the  demandant 
would  be  barred  for  want  of  a  replication  ;  and  that,  if  he 
was  a  defendant,  there  would,  in  like  manner,  be  judgment 
againft:  him  for  want  of  a  defence. 

There  were  fome  queftions  of  baflardy  that  would 
not,   under  any  pretence,  be  tranfmitted  to  the  ecclefiaf- 

^  Vld.  ant.  \^%  *  Brafl.  417. 

Vol.  I.  1  i  tical 


466  HISTORYOFTHE 

CHAP.  VM.  tical  judge ;  as  in  cafe  of  a  pollhumous  •"  or  a  fuppofititiou* 
HENRY  III.  c^^^^J  °^  where  the  father  had  been  abfent  from  the  mo- 
ther abroad,  fo  as  to  leave  no  prefumption  of  legitimacy, 
which,  however,  depended  upon  the  diftance  and  the  pro- 
bability of  accefs  \  The  plea  of  baftardy  would  not  lie 
between  perfons  of  the  fame  blood,  in  a  pofleflbry  a£lion, 
(though  it  might  between  ftrangers),  nor  in  a  plea  de  con^ 
fanguhiitate^  any  more  than  in  an  ajfija  mortis  anteceJfor'iSy 
becaufe  a  queftion  of  baftardy  between  fuch  parties  was 
always  upon  the  mere  right,  if  the  inheritance  defcended 
from  a  common  anceftor  •,  and  fo  a  queftion  of  right  would 
be  agitated  in  an  a<5lion  grounded  only  upon  the  pofTeiTion. 
It  might  be  urged  that  fuch  a  plea  was  good,  by  the  above 
rule,  becaufe  a  baftard  was  in  truth  a  mere  ftranger  as  to 
the  true  heir  j  yet  Bra£lon  thought  not ;  for  it  was  at  leaft 
doubtful  whether  he  was  not  legitimate. 

When  baftardy  was  pleaded,  and  the  other  party  main- 
tained his  legitimacy,  it  feems  there  was  no  rule,  whether 
the  baftardy  or  the  legitimacy  (hould  be  proved,  except  this, 
that  the  party  who  was  extra  feifinam  fhould  prove  his  plea, 
the  perfon  who  was  in  feifin  having  no  need,  as  Bra6lon 
fays,  to  make  out  either  one  or  the  other ;  and  this  was  the 
governing  rule,  whether  the  plea  came  from  the  tenant  or 
demandant  ° :  fo  that  in  this  iflue  the  point  to  be  proved 
was,  fometimes  the  legitimacy,  and  fometimes  the  baftardy, 
according  as  the  onus  prohandi  was  impofed  by  the  above 
rule. 

The  writ  to  the  ordinary  in  cafes  of  baftardy  differed 

Writ  to  the  or-    very  little  from  that  ufed  in  the  time  of  Glanville.     It 

^^^^1'  recited  that  a  fuit  was  commenced,  and  that  baftardy  was 

obje£led  to  one  of  the  parties :    Et  idco  vobis  inandamusy 

quod  convGcatis  coram  vobis  cotivocafidis^  ret  veritatem  hide 

d'lligenter  i;jquiratisy   videlicet^   utrum  A.  ^c.     Et  inquift' 

■•Biaa.  417.  «  Ibi.-I.  418.  •  Ibid.  418.  b. 

tionemy 


ENGLISH      L  A  W.  467 

iionemy  qiuim  hide  feccrltlSi  fih'efac'iatis  nobis ^  vel jujlitl arils  CH  A  P  Vlf. 
nojlris  talihiiS  per  lit  eras  vejlras  pate /lies.  Te/le^  <3'c.  an^  hfnrY  III 
fo,  mutatis  jnutafidis^  according  to  the  fpeclal  caufe  of  baf- 
tardy.  There  was  this  dilTereiice  between  the  writ  of 
natus  ante  matrlmonium  in  the  time  of  Glaiiville,  and  that 
now  in  uf;^,  that  they  no  longer  inferted  thefe  words,^/^//^- 
niam  hujufmodi  tnqiiifttio  pertinet  ad  forum  ecclefiajlicum  \  an 
alteration  which  probably  had  taken  place  fince  the  ftatute 
of  Merton,  and  the  abovementioned  provifion  of  the  coun- 
cil on  that  fubje6l.  The  fame  was  obferved  if  the  ordinary 
was  directed,  as  he  fomelinies  was,  to  enquire  concerning 
the  legitimacy  of  a  poflluimous  child  •,  both  thefe  queftions 
being  triable  as  well  at  common  law  as  in  the  fpiritual  court. 
But  the  above  form  of  wordo  was  retained  In  all  cafes  that 
were  purely  of  ecclefiallical  cogii-ifance. 

When  the  writ  was  fent  to  the  ordinary,  the  plea  re- 
mained fuie  die  in  the  king's  court  till  the  inquifition  was 
returned.  The  ordinary  was  to  proceed  to  make  inquifi- 
tion in  the'prefence  of  the  parties,  if  they  chofe  it'',  and 
when  made,  there  lay  no  appeal.  When  the  inquifition 
was  returned,  the  plea  and  the  other  party  were  fummoned. 
The  efre£l  of  a  legitimacy  proved  In  this  way,  If  confirmed 
by  a  judgment  in  the  king's  court,  was,  that  the  party 
became  legitimate  againft  all  the  world,  unlefs  any  fraud 
could  be  proved  in  the  method  of  proving  it,  and  in  the 
inquifition.  A  fraudulent  inquifition  might  be  obtained 
in  this  way.  A  demandant  might  bring  feveral  writs  for 
recovery  of  land,  and  procure  one  of  the  tenants  to  objeiSl 
baftardy,  and  to  fuffer  an  inquifition  to  pafs  in  his  favour, 
for  want  of  contefling  the  proofs  of'  legitimacy.  Legiti- 
macy, when  regularly  proved,  was  good  againft  all  the 
v.'orld,  and  the  heir  of  fuch  perfon  was  liktwife  entitled 

**  BriO.  419. 

I  i  2  to 


468  HISTORY      OFTHE 

CHAP.  VII.  to  the  benefit  of  it.  It  was  a  rule,  that  no  perfon's  leglti- 
HENRY  III  "^^^y  could  be  queftioned  after  his  death  by  plea  pleaded, 
as  he  could  not,  fays  Bra6lon,  make  an  anfwer  to  it  j  but, 
notwithftanding,  it  might  be  inquired /^r />fl/W^w  whether 
fuch  perfon  was  a  ballard  or  not,  in  the  fame  manner  as 
the  queflion  whether  a  perfon  held  in  free  tenure  or  in  vil- 
lenage ;  although  it  could  not  be  inquired,  after  his  death, 
concerning  the  perfonal  condition  of  fuch  perfon'.  When 
profeffion,  or  entering  into  a  religious  life,  was  objected, 
this  iflue  was  always  tranfmitted  to  the  inquiry  of  the  fpi- 
ritual  court  ^ 
Gf  miaority.  The  plea  of  minority  of  the  demandant  was  only  a  dila- 
tory exception,  that  did  not  abate  the  writ,  but  fufpended 
the  a6lion  till  he  came  of  age,  at  which  time  the  plea  would 
be  re-fummoned.  There  were  fome  actions  which  a  mi- 
nor  might  bring,  and  fome  which  he  might  not.  A  mi- 
nor might  demand  his  own  feifin  by  affife  of  novel  difTeifin, 
and  the  feifin  of  his  anceftor  by  a//ifi  mortis  antecejforis ; 
but  when  he  had  fo  recovered,  he  was  not  obliged  to  an- 
fwer either  for  the  pofleffion  or  right,  till  he  was  of  age : 
yet  he  could  not  demand  land  in  free  focage  of  his  an- 
ccftor's  feifin  in  a  writ  of  right,  before  he  was  fourteen 
years  old,  nor  feud  urn  mUitare  till  he  was  completely 
twenty-one  years  old.  On  the  other  hand,  a  minor  was 
bound  to  anfwer  as  well  upon  the  right  as  upon  the  poflef- 
fion,  if  he  had  been  enfeoffed  of  the  land  in  queftion  dur- 
ing his  minority ;  and  would  have  all  the  privileges  of  ef- 
foins,  vouching  and  the  like,  except  that  he  could  not 
appoint  an  attorney,  and  confequently  he  could  not  have 
the  effoin  de  malo  lecli.  A  minor  was  obliged  to  anfwer 
for  a  fa£l  and  injury  of  his  own,  in  a  civil  or  criminal  fuit. 
Thus  he  was  liable  to  an  afTifc  of  novel  difTeifin,  and  to 
a  fuit  for  dower.    But  where  a  grandmother  had  negk£led 

'  Bra£^.  4ao.  »  Ibid,  421.  b. 

for 


E  N   G  L  I  S  H       L   A  W.  A^9 

for  ten,  twenty,  or  thirty  years,  during  the  life  of  her  fon,    CHAP.  vil. 
to  demand  dower,  and  brought  a  writ  againfl:  the  grand-    HENRY  Ul. 
fon,  flie  was  obliged  to  wait  till  he  was  of  age,  on  account 
of  the  probability  that  fhe  had  agreed  with  her  fon  and  re- 
leafed  the  claim  '. 

A  MINOR  was  obliged  to  anfwer  in  a  matter  that  con- 
cerned the  king.  For  fuch  purpofe,  an  inquifition  might 
be  made,  whether  his  anceftor  died  feifed  ///  defoedoy  with- 
out prejudicing  the  heir.  A  minor  muft  anfwer  to  a  fine, 
if  pleaded  •,  but  if  he  was  vouched  by  virtue  of  a  fine,  he 
need  not  anfwer  \  though  he  would  be  obliged  to  anfwer 
in  warratitia  carta.  A  minor  muft  anfwer  in  ajjifa  mortis 
a?iteceJforis,  and  in  every  other  plea  concerning  any  thing 
of  which  his  anceftor  did  not  die  feifed  //.•  dGmmico  ut  de 
foedo,  but  concerning  nothing  of  which  he  died  feifed  in 
dominico  id  de  fcedo.  If  a  minor  loft  by  aflife  in  a  writ  of 
poftcfTion,  he  might,  when  of  age,  recover  in  a  writ  of 
right.  A  minor  muft  anfwer  as  well  on  the  fa£l  of  another 
as  on  his  own,  fo  as  to  make  reftltution,  though  not  quoad 
poenam  ,•  as  when  a  writ  of  entry  was  brought  immediately 
after  the  death  of  the  anceftor  who  had  committed  difleifin. 
A  fingular  inftance,  where  the  privilege  of  infancy  was  dif- 
penfed  with,  is  mentioned  by  Bra£lon.  A  man  bound  hlni- 
felf  and  his  heirs  to  anfwer  whether  they  were  of  age  or 
not.  This  obligation  was  made  in  and  by  the  advice  of  the 
court,  and  the  heir  was  adjudged  to  anfwer,  though  a 
minor. 

In  the  cafe  of  inqulfitions  taken  for  the  klng_,  a  minor 
might  have  a  writ  to  the  following  efFe6l,  to  fave  himfelf 
from  being  afTe£l:ed  thereby.  Rex  vie.  falutem.  Pracipi^ 
771US  tibiy  qtihd  mn  implacites  vel  implacitari  permittas  A. 
qui  ejl  infra  atatem^  ttt  dicitury  de  lihero  tefiemetito  fuo  in 
'^ilLU    ^^'   donee   idem  A.  fit  aiatis  quid  pofftt  ^  debeat 

f 
I 

•   Brt^.  411    b.  413, 

ffcundum 


410  H  I  S  T  O  R  Y      O  F      T  H  E 

CHAP.  VII  fc'cundum  legem  ^  cof^fuetudiiuin  jringlid'  iJe  tejiewetito  refpon- 
H£NRV  III  ^'^''^  "•  ^^  ^  minor  was  vouched  to  warranty  in  the  county, 
he  might  have  the  following  writ  to  the  flierifF:  Pr/pciphnus 
t'lb'i)  quod  Hon  per  m'lttas  quod  A.  implac'itet  B,  de  taut  a  terra 
cum  pertlnenti'is  in  tali  villu,  unde  idem  A.  trahit  ad  ivar- 
ratUum  C.  qui  ejl.  infra  {vtatem^  et  \varrnntus  ejus  e(fe  debet ^ 
ut  dicity  donee  idem  C.fit  talis  plena  <Liatis  quod pojjit  et  de- 
beat  fecundum  legem  Id'  confuetudinem  Anglia  terram  ivar- 
rantizare, 

I  If  there  were  more  demandcints  than  one,   as  parceners, 

and  one  was  a  minor,  it  would  be  a  good  plea  againfl  all  : 
the  fame,  if  parceners  were  tenants.  So  if  a  man  feifed  in 
right  of  his  wife  was  tenant  to  a  writ,  together  with  her, 
and  Ihe  was  within  age,  the  plea  againll  both  would  remain 
Jine  die  till  the  was  of  age  :  not  fo  if  the  hufband  was  a  mi- 
nor ',  becaufe,  fays  Bra(!^on,  a  woman  might,  by  contriv- 
ing fuch  a  marriage,  defeat  fuits  againft  her  refpecling  her 
own  lands.  If  the  hufband  and  wife  were  demandants, 
and  llie  was  a  minor,  and  married  before  the  writ  purchafed, 
the  plea  would  remain  quoufque :  if  fhe  married  after,  the 
writ  abated,  fliould  the  tenant  fo  pleafe,  or  the  action  was 
fufpended  till  Hie  was  of  age  ^. 

Such  confideration  was  Hiewn  to  the  feeble  condition  of 
a  minor,  that  his  eftate,  whether  in  fervices  or  tenements, 
defcended  to  him  from  his  anceftor,  who  was  peaceably 
feifed  thereof  anno  et  die  quo  vivusy  et  mortuus  fuity  was 
not  to  be  called  in  queftion  till  he  was  of  full  age.  So,  on 
the  other  hand,  if  a  minor  demanded  fervices  that  were  not 
due  to  him,  and  the  tenants  alledged  ^  quieianciam  quo  die 
el  anno  anteceffcr  vivus  et  mortuusy  they  need  not  anfwer  till 
he  was  of  age.     A  minor  was  not  obliged  to  anfwer  to  any 

"  Bra€^.  421.  *  Ibid.  413.  "^  ^ietanciam^  j»accable  leifin. 

;,  charta 


E  N  G  L  I  S  H      L  A  W.  471 

chcirta  till  he  was  of  age  *.  This  held  not  only  In  fervi-  CHAP.  vil. 
ces  or  tenements,  but  in  rights  and  liberties,  by  which  the  henry  hi 
tenements  of  others  were  efFecled  ;  as  a  liberty  to  make  a 
road,  build  a  mill,  and  the  like.  Altho'  he  did  not  adlually 
ufe  thefe  eafements,  yet  he  was  confidered  in  poflefTion  there- 
of till  ejected  or  difleifed  ;  and  fuch  a  feifin  would  defcend 
upon  the  heir,  whofe  eftate  therein  was  not  to  be  changed 
during  his  minority  ^. 

To  a  plea  of  minority  in  a  writ  of  right,  or  off/fa  mortis 
antecejforis  againft  a  guardian,  the  demandant  might  reply, 
that  he  was  of  full  age,  as  appeared  by  all  his  lords  having 
rcilored  his  Inheritances  to  him  \  or  he  might  fay,  he  had 
proved  himfelf  of  age,  either  by  inquifition  per  pntrlam^ 
or  before  certain  juftices.  To  this  it  might  be  rejoined, 
that  his  inheritances  were  reftored  to  \\\vc\  per  fraudcm  ;  or 
that  the  jurors  had  fworn  falfely,  or  that  the  juflices  had 
\iZ(tvi  deceived.  The  only  fufficient  and  complete  proof 
of  full  age  was,  that  by  the  parents,  and  the  examina- 
tion of  witnefles  ;  all  others,  as  infpeftion  and  the  like, 
were  held  only  to  induce  a  prefumption:  yet,  fays  Bradton, 
if  the  juflices,  upon  fight  of  the  perfon,  judging  from  his 
ftature  and  other  circumftances,  pronounced  him  to  be  of 
age,  his  age  was  confirmed  by  judgment,  and  could  not 
be  again  difputed.  Should  the  j unices  hefitatc  to  pronounce 
jan  opinion,  then  rccourfc  was,  of  ncceiTity,  had  ad  proha- 
t'lonem  patrta  et  parent  urn.  This,  fays  Bra6lon,  was  to  be 
<lone  by  twelve  lawful  men,  or  more,  if  neceflary,  fome  of 
whom  were  to  be  ex  pareniela  of  the  perfon  who  faid  he 
'vvas  of  age,  the  reft  were  to  be  ftrangers :  all  thefe  were 
to  be  unfufpe6led,  and  were  to  declare  the  truth,  upon  their 
oaths  ^.  Another  prefumption  of  full  age  was,  a  conclu- 
fion  arlfing  from  the  party  having  brought  aclions  as  a  per- 
fon of  full  age,  which  was  an  admifTion  that  would  preclude 
him  from  pleading  his  infancy  to  any  a^llon  brought  againft 

'   Bu<£l.  423.  »  Ibid.  414.  ''  Ibid.  414.  b. 

himfelf  t 


472  H  I  S  T  O  R  Y      O  F      T  H  E 

CHAP.    VII.    himfelf ;  whereas  a  proof  of  full  age  by  jurors,  according  to- 
liENRY  III.    ^ome  opinions,  was  not  held  conclufive   againft  other  per- 
fons,  becaufe  the  jurors  might,  perhaps,  fwear  falfely. 

If  the  minor  was  demandant,  the  proof  was  made  with- 
out any  refummons ;  but  if  he  was  tenant,  and  pleaded  his 
minority,  then  the  proof  was  not  made  till  after  a  re-fum- 
mons.  This  was  fued  out  by  the  demandant ;  and  on  the 
return  if  there  was  any  doubt,  then  they  entered  upon  the 
proof  in  the  way  before  mentioned  ^. 
Excommuniea-  The  excommunication  of  the  demandant  was  only  a  di- 
latory plea.  This  was  to  be  proved  by  the  letter  of  the 
ordinary,  or  fome  judge  delegated  by  him  with  proper  au- 
thority. To  this  exception  it  might  be  replied,  that  he 
was  abfolved  upon  an  appeal,  or  that  the  caufe  of  his  ex- 
communication was,  his  not  obeying  the  ecclefiaftical  judge 
in  a  queilion  of  lay  fee,  and  the  like  '.  We  have  feen  be- 
fore, that  when  a  perfon  had  been  excommunicated  for  forty 
days  the  ordinary  ufed  to  certify  this  contempt,  and,  upon 
receipt  of  the  bifliop's  letter,  the  chancellor  would  iflue  a 
writ  to  the  following  effcSiy  dire£led  to  the  fheriff :  Signi- 
Jicavit  nob  s  venerahiLs  pater  N.  per  literas  juai  patentei^ 
quod  A,  ob  Jiiavifejiam  contumaciam  juam  excGmmunicatus 
eji^  nee  fe  vu.'t  per  cenfurarn  ecciefiajUcam  ju/iuiari.  ^uia 
verb  potejlas  regia  ja<:rojan6ice  ecclepce  in  quereds  fuis  d^ejje 
tion  debety  tibi  pracipimus^  quod  prceJidlum  A  per  corpus 
fuum  (fecundum  confuetudinem  Anglic)  jujhcieiy  donee  f aero ' 
Jantlde  ecclefire  tnm  de  contcmptu  quam  de  injuria  ei  il'atii 
Juer'it  fatisfaSium,  Tefle^  i^c.  When  the  perfon  was 
taken,  and  had  fatisfied  the  ecclefiaftical  judge,  he  might 
hz  difctiargcd,  at  the  command  of  the  biftiop,  by  the  fol- 
lowing writ  to  the  fherifF:  ^hiia  venerabdis  pater  N.  epif- 
copui  fignificavit  nobis,  quod  A.  quantum  ad  mandatum  fuum 
a  te  capi^  et  per  corpus  fuum  tanquam  contemnentem  clavcs 

■"  Bra£\.  4x6.  *  IbiJ.  4x6.  b. 

ecdefldS 


E  N   G  L  I  S  H      L  A  AV.  473 

9Cileft:£  jujiiciari  prefceperimus^  benejicium  abfolutlonis  im-  CHAP.  VII. 
pendit^  tibi  pracipimus  quad  a  prifond  nojlrd  qua  detinetur  r^^^Mj^Y  ill 
ipfum  deliberari  Jacias  quiet um^  ^c.  As  no  one  eould  be 
taken,  fo  none  could  be  difcbarged,  but  by  the  command 
of  the  biihop  •,  the  law  not  givuig  fuch  credit  to  an  arch- 
deacon, or  other  delegated  judge  5  becaufe,  fays  Bra£lon, 
rex  in  epifcopos  coerciouem  habet  propter  baroniam  :  nor  was 
the  party  to  be  di (charged  till  he  had  fatisfied  the  ecclefi- 
aftical  judge,  unlefs  where  an  excommunication  was  obtain- 
ed by  a  faJfe  fuggeftion  of  the  ordinary  himfelf,  or  the  ma- 
lice of  an  adveriary,  in  order  to  preclude  the  party  from  the 
right  to  bring  an  action  ;  in  which  cafe  a  writ  ufed  to  ifluc 
to  the  IherifF,  reciting  the  fraud,  and  commanding  him  to 
difcharge  the  injured  perfon  upoit  fureties,  nijl  captusfit£rit 
alia  occafione^  quare  deliberari  no?i  debeat.  We  have  before 
feen  that  where  fuch  malicious  proceeding  was  apprehend- "" 
ed,  the  party  might  be  beforehand  with  the  ordinary,  by 
the  writ  de  non  capiendo ', 

Participes  were  either  co-heirs  ox  parccnersy  or  fuch  Parcencu. 
as  were  afterwards  better  known  by  the  name  oijointen- 
ants.  If  an  a£lion  was  brought  by  one  of  feveral  parceners, 
it  might  be  pleaded,  quod  non  teneor  ad  hoc  breve  refpondere^ 
quia  ft  jus  habereSy  participes  habeSy  qui  taniundem  juris 
habcrent  in  fe  quantum  et  voSy  fcilicet  A,  et  B,  To  this 
it  might  be  replied,  that  all  who  could  claim  any  right  were 
named  in  the  writ^,  and  no  right  was  in  A.  becaufe  he  was 
a  baftard  ;  nor  in  B.  becaufe,  born  of  a  villain,  although 
his  mother,  from  whom  he  claimed,  was  free :  he  might 
fay,  that  the  other  parcener  was  in  ligeance  to  the  king  of 
France,  or  that  his  anceftor  committed  felony,  and  many 
other  matters  might  be  replied  to  (hew  that  the  parceners 
not  named  had  no  right  ^.  If  parceners  were  all  of  capaci- 
ty to  fue,  and  fome  brought  a  writ,  and  recovered  without 

*  Braa.  427.  e  Biac>.  AX^.  **  Ibid.  42$.  b. 

naming 


474  H  I  S  T  O  R  Y     O  F    T  H  E 

CHAP.    viT,   naming  the  others,  Bra£lon  fays,  it  was  the  duty  of  the 

HENRY  III  J^^S^  ^°  ^'^^^  ^^^^  ^^'^^  ^^^^  intereft  of  thofe  not  named,  fuf- 
fered  no  injury  by  this  fraud.  If  they  were  all  named,  and 
fome  declined  proceeding,  yet  the  writ  would  ftand  good, 
and  thofe  who  did  not  appear  would  be   fummoned,  quid 

fttit  ad  fequetidum  Jimul  with  the  other  parceners  thus  : 
Summone  per  bonos  fum,  A.  ei  B.  qiiodfuit  coram  juJUtlariis 
tiojlris  die^  ^c.  et  locoy  Isfc,  ad  fequendum  cum  C.  et  D.  de 
tanta  terra  tinde  prcedicii  C.  et  D.  clamant  duas  paries  ver~ 

fus  E.  ut  ratlcr.abilem  partem  fuamy  qua  eos  cont'ingit  de  hx- 
r edit  ate  R.  cujus  harcdes  ipftfunfy  et  unde  prad'icius  E,  die  it 
quod  mn  vult prtzdiEl'is  C,  et  D.  refpondere  ftne  praditlis  A, 
et  B.  ut  dicit  ;  et  habeas  ibiy  ^c '. 

If  the  writ  was  brought  againfl  one  parcener,  he  might, 
in  like  manner,  plead  this  to  the  writ.  But  there  was  fome 
difference,  whether  the  inheritance  was  divided  or  not ;  if 
not,  and  they  held  in  common,  each  had  the  fame  right 
to  the  whole;  not  indeed  to  himfelf,  but  only  in  common 
with  the  others ;  or,  as  they  expreffed  it,  totum  tenet ^  et  ni- 
hil tenet  ^  fcilicet  totum  in  communis  et  nihil  fcparatim  per  fe. 
If  the  inheritance  had  been  divided,   and  each  held  pro 

partCy  the  other  parceners  need  not  be  named  :  yet,  on 
the  other  hand,  fays  Bradlon,  the  tenant  was  not  bound 
to  anfwer  without  his  parceners,  and  in  prudence  he  ought 
not;  for  if  he  did,  and  he  loft  the  land,  he  could  have  no 
regrejfum  againft  his  parceners  to  obtain  a  contribution. 
The  tenant,  therefore,  if  he  pleafed,  might  have  a  writ  to 
fummon  them  :   Summone,  ^c.  quod  Jint  coram  jujlitiariis^ 

^r.  AD  RESPONDENDUM     C.    SIMUL    CUM    D.  de  tantd 

terrdy  ^c,  quam  idem  C.  in  curia  ncjlra  clamat^  klfc.  et  ftne 
quibus  pradiElus  D.  non  vult  refpondere  eidem  C.  cum  pra-- 
dicliy  ^c.  Jint  participes  ipfius  D.  de  terra  pradicluy  is'c. 
Should  they  appear,  they  might  anfwer  together  with  the 

'  Btaft.  419. 

tenant ; 


E  N  G  L  I  S  H      L  A  W.  475 

tcnnnt ;  but  if  they  declined  anfwering,  the  pica  ftill  pro-  chap,  vil 
ceeded  •,  and  whether  they  appeared  or  not,  the  tenant,  if  j^j.  j^j^y  ^^ 
he  IoH,  would  be  entitled  to  contribution.  If  the  inheri- 
tance was  not  divided,  then  all  the  parceners  mufl:  be  made 
parties ;  but  upon  a  plea  that  there  were  other  parceners, 
the  demandant  might  reply  fuch  matter  as  would  difablc 
them  from  claiming  any  right,  and  therefore  as  not  being 
perfons  who  need  be  named  in  the  writ,  the  fame  as  was 
before  faid  in  the  cafe  of  a  demandant  ^, 

If  there  was  no  plea  to  the  perfon,  either  of  the  demand-  l^^^^"  ^^' 
ant  or  tenant,  the  next  confideration  was  fuch  as  might 
arife  upon  the  matter  itfelf.     The  thing  in  demand  ought 
to  be  ftated  with  certainty;  in  which  the  count  or  declara- 
tion, or,  as  Bra£lon  calls  it,  the  intentioy  or  fiarmtio,  fliould 
correfpond  with  the  writ  '.     Perhaps  the  tenant  in  the  ac- 
tion was  not  tenant  of  the  land,  or  was  tenant  only  of  a 
part ;  or  perhaps  he  held  it  only  in  the  name  of  another. 
Thus  he  might  hold  it  in  ward,  /;/  vadium,  at  will,  or  for 
term  of  years  ;   in  either  of  which  cafes  the  writ  (liould  be 
brought  not  againft  him,  but  againft  the  perfon  in  whofe 
name  he  was  fcifed  ;  and  if  this  was  pleaded,  it   would 
abate  the  writ"".     In  fuch  cafe  he  might  plead,  generally,   j,r^,^  ^^^^^^^ 
non  tenet,  or  that  the  freehold  was  not  in  him.     If  he  put 
himfelf  upon  the  country  for  the  truth  of  fuch  a  plea,  and 
it  was  found  againft  him,  he  would  lofe  the  land  in  queftion, 
as  a  penalty  for  his  falfe  plea  :  the  fame,  if  he  faid  he  did 
not  hold  it,  but  another  did.     But  if  he  admitted  that  he 
held  part,  and  faid  that  another  held  the  reft,  and  this  was 
found  againft  him,  he  did  not  lofe  the  whole,  nor  a  part, 
en  account  of  his  falfe  plea,  but  the  fuit  went  on,  and  he 
was  to  anfwer  for  the  whole.  He  might  plead  that  he  once 
held  the  land,  but  that   he  did  not  at  the  prefent  time". 
If  this  was  owing  to  an  alienation  before   the  purchafc  of 

^  Braa.  430.  1   Ibid.  431.  *"  Ibiii.  431-  *»•  "  Ibid.  432. 

the 


HENRY   III. 


476  H  I  S  T  O  R  Y      O  F     T  H  E 

CHAP.  vir.  the  writ,  no  fraud  could  be  objected  •,  nor  indeed,  if  after 
the  purchafe,  provided  he  was  ignorant  of  the  writ.  In 
fome  cafes  the  alienation  might  be  even  after  the  fummons, 
without  being  fraudulent  *,  as  if  he  went  beyond  fea  either 
before  or  after  the  purchafe  of  the  writ,  not  being  prevent- 
ed by  the  fummons,  and  knowing  nothing  of  it,  and  there 
made  an  alienation  :  but  if  neither  of  the  beforementioned 
cafes  could  be  proved,  and  efpecially  if  the  alienation  was 
after  the  fummons  had  been  teftiiied  and  proved,  he  was 
confidered  as  the  real  pofleflbr,  and  was  to  fland  to  the 
fuit  as  tenant  °. 

He  might  plead  that  he  held  only  fo  many  acres,  whereas 
the  demandant  claimed  fo  many ;  upon  which  an  inquifi- 
tion  might  be  had  by  a  writ  to  the  (licriiF,  direOing  him  to 
fummon  four,  fix,  or  more  of  lawful  men  of  thofe  who 
made  the  view,  and  by  them  to  make  inquiry  whether  the 
tenant  held  fo  many  or  fo  many  acres.  Again,  in  a  plea 
of  non  tenety  if  the  tenant  had  before  confefled  in  the  county 
coiirt,  that  he  held  the  whole,  a  writ  went  to  the  (lierifF, 
commanding  him  to  make  a  record  of  the  plea  in  which 
fuch  confefTion  was  made  ^.  If  the  demandant,  after  a  plea 
of  non  tenety  made  a  retraxit,  and  commenced  a  fuit  againlt 
another,  the  tenant  would  not  fuffer  any  penalty  for  his 
falfe  plea  *5.  Exception  might  be  made  to  the  name  of  the 
villi  any  miftake  in  which  would  be  an  incurable  error  ^ 

Another  part  of  the  writ,  or  count,  to  vj^hich  an  ex- 
ception might  be  made,  was  the  claiming  the  land  utjus 
tneum.  To  this  the  tenant  might  anfwer,  that  he  had  majus 
ajuj  JUS.  y^^^.  ^^^  ^^jg  j^^^  would  be  tried  by  the  great  aflife,  or  duel, 
as  the  tenant  pleafed.  It  has  been  before  fhewn,  that  the 
beft  title,  in  the  law,  was  where  the  jus  pojfejfionis  and  jus 
proprietatis  were  united,  which  was  therefore  called  droit 
droit  y  and  it  was  a  maxim,  that  whoever  had  the  jus  pro- 

«   RraO.  432.  b.  ^  Ibid.  433.  «  Ibid.  433.  '  ibi.l.  434. 

prietatis 


E  N  G  L  I  S  H      L  A  W.  477 

prletoiis  ought  to  have  the  poflefTion.  Fojfejfiofequituvpro^  CHAP.  vif. 
prieiatem,  but  not  vice  verfd.  The  proprietas  might  be  henry 
feparated  from  the  peffejfw,  in  this  manner;  upon  the 
death  of  the  anceftor,  the  proprietas  immediately  defcended 
to  the  next  heir,  whether  he  was  prefent  or  not ;  but  not 
being  prefent,  tXxQpoJfeJfio  might  be  obtained  by  another,  who 
put  himfelf  into  feifm  ;  by  virtue  of  which  t\\QJup poffejjionis 
would  defcend  to  his  heirs,  through  the  negligence  of  him 
who  had  the  proprietas.  Thus,  v/hUe  the  jus  proprietatis 
defcended  on  the  elder  brother,  the  younger  brother  might 
obtain  feifm  and  die  feifed,  tranfmitting  to  his  heirs,  toge- 
ther with  the  Jus  poJ/effio»isy  which  he  himfelf  had,  a  fort  of 
jus  proprietatis' ;  fo  that  there  would  be  fwojura  propric'^ 
tatis  in  different  perfons  by  different  defcents :  but  one, 
as  the  defcendants  of  the  elder  brother,  would  have  majus 
}VsproprietatiSf  on  account  of  the  priority ;  and  thofe  from 
the  younger  brother  minus  jus ;  yet  the  poj/effio  of  the  latter 
would  prevail,  till  the  former  evicted  them  of  the  jus  pro- 
prietatis. 

Another  plea  which  the  tenant  might  plead,  was,  that 
the  demandant,  or  one  of  his  anceftors,  had  releafed  to  the 
tenant,  or  fome  of  his  anceftors  from  whom  he  derived  the  Rcltafe. 
jus  pojpjftotiisy  and  quit-claimed  for  himfelf  and  his  heirs  by 
a  fine  made  in  the  king's  courts ' ;  or  that  the  demandant  or 
fome  anceftor  loft  the  land  in  queftion,  in  judgment  in  an 
a£lion  de  proprietate,  as  by  the  great  afTife  or  duel,  or  a 
jury,  on  which  he  had  put  himfelf;  and  thefe  pleas  were  to 
be  proved  by  the  record  of  the  juftices. 

If  the  demandant  or  any  of  his  anceftors  had  been  apprif-  Fine  and  noo 
ed  of  any  litigation,  or  final  concord  made  concerning   ^  ^^"^' 
their  right,  and  had  not  put  in  their  claim,  this  filence 
might  be  pleaded  againft  the  demandant  to  a  writ  brought 
to  eftablifh  fuch  right.     The  manner  of  making  a  claim 

•  Bract.  434   b.  '  IbH.  435. 

I 

was 


478  H  I  S  T  O  R  Y      O  F     T  H  E 

C  H  A.  p.  vn.  was  fimply  by  the  words",  apponc  clameum  meum  \  or,  what 
^^^tJ^^^^^^  had  the  fame  efFeO:,  by  commencing  a  fuit ;  a  fadl  like  this 
being  a  ftronger  proof  than  a  mere  claim,  that  he  did  not 
mean  to  abandon  his  pretenfions.  This  claim  was  to  be 
made  pending  the  plea,  and  the  making  of  the  cyrographumy 
or  before  judgment,  provided  he  was  in  court  at  the  time, 
or  in  the  kingdom  within  the  four  feas ;  and  in  fuch  cafe, 
ignorance  was  no  excufe ;  nor,  fays  Brad^on,  as  it  fliould 
feem,  would  he  afterwards  be  heard  •,  for  if  it  was  a  fine, 
the  time  taken  up  by  the  pendency  of  the  a<ftion  afforded, 
at  leaft,  a  month  for  putting  in  a  claim  j  for  the  fummons 
ought  to  be  ferved  fifteen  days  at  leaft,  that  being  what  was 
called  reafonable  fummons*,  and  the  cyrographum  ufed  not 
to  be  allowed  at  the  return  of  the  writ,  but  a  day  was  given 
at  fifteen  days  at  leaft,  when  the  cyrographum  was  to  be 
taken-,  during  all  which  time  there  was  fufficient  oppor- 
tunity to  make  claim.  Indeed  a  month  was  the  period  which 
Bra6lon  fays  was  limited  for  this  ^wi'^oic,  fecundiim  commu^ 
nem  proviftonem  regni;  and  therefore  he  calls  it  the  legal 
time  for  making  the  cyrographum  \  fo  that  if  it  was  made 
before,  it  was  fraudulent,  and  no  claim  need  be  made  to  in- 
validate it ''.  The  place  to  make  claim  was  in  the  king's 
court,  at  the  time  of  pafting  judgment,  or  before. 

However,  there  were  certain  caufes  of  excufe,  which 
would  protect  a  party  from  the  confequence  of  having 
omitted  to  make  his  claim  *,  as,  if  at  the  time  of  the  fine  and 
making  the  cyrographum,  the  perfon  who  ought  to  make 
the  claim  was  within  age,  or  non  fane?  mentis ;  if  he  was  an 
ideot,  born  deaf  and  dumb,  or  the  like.  But  when  fuch 
perfon  came  to  age,  or  recovered  his  fenfes,  it  was  the 
opinion  of  fome,  that  he  ought  to  make  that  claim  then, 
which  he  could  not  make  before,  and,  according  to  feme, 
if  a  minor  did  not  do  it  v.-ithin  a  year  after  he  came  of  age, 
he  would  not  be  escufed  :  yet  Bra£lon  fays,  that  he  was  ex- 

"  Br2a.  435    b.  *   Ibid.  436. 

cufed. 


E  N  G  L  I  S  H     J.  A  W.  479 

cufed,  though  he  made  no  claim  within  that  time,  and  that  CHAP.  vir. 
a  claim  need  not  be  made  at  all,  and  would  have  no  avail  henry  hi 
'after  judgment  pafied,  or  the  delivery  of  the  cyrographum. 
A  perfon  who  was  in  prifon  at  the  time  of  the  fuit,  or  de- 
tained by  fuch  a  diforder  as  did  not  allow  him  either  to  come 
or  fend,  would  beexcufed  ;  as  would  alfo,  for  the  fame  rea- 
fon  ^,  a  perfon  who  was  reflrained  by  force,  even  out  of 
prifon.  A  married  woman,  even  though  (lie  might  fend, 
would  be  excufed,  2,%  fiih  potejlate  viri ;  fo  that  all  forts  or 
impotence  feemed  fufhcient  excufe ;  and  upon  this  idea,  a 
perfon  who  was  ultra  mare  at  the  time  was  excufed :  and 
none  of  thefe,  according  to  Bradlon,  need  make  any  claim 
after  thofe  impediments  were  removed,  if  judgment  was 
paifed,   or  the  cyrographum  delivered. 

Another  cafe  in  which  a  party  was  excufed,  though 
he  made  no  claim,  was,  where  the  fine,  according  to  the 
words  of  Braclon,  ipfo  jure  fit  millus ;  as  if  it  was  made  of 
a  tenement  in  the  polTeflion  of  another  perfon,  perhaps  of 
the  perfon  himfelf  to  whom  it  was  objected  that  he  made 
no  claim,  or  fome  anceltor,  and  not  of  him  (or  his  ancef- 
tor)  who  pleaded  the  fine^ ;  or  if  the  fine  was  made  by  any 
coUufion  or  fraud,  or  in  any  way  to  the  prejudice  of  ano- 
ther, as  that  it  ought  not  in  juftice  and  equity  to  hold  good. 
A  perfon  would  likewife  be  excufed,  if  there  was  no  cyro- 
graphum-^ or  if  a  difleifor  made  a  feoifment  and  then  a  fine, 
fuch  a  fine  might  be  revoked  and  made  void  :  fo,  if  at  the 
time  of  the  fuit,  neither  himfelf  nor  his  anceftors  had  any 
title  to  the  tenement  in  queftion ;  or  if  the  anceftor  who 
ought  to  have  made  the  claim,  was  not  an  anceflor  through 
whom  any  right  could  defcend  to  the  perfon  againft  vchom 
the  fine  was  pleaded.  Bra£lon  fays,  that  notwithftanding  a 
fine  and  cyrographum  might  feem  prhna  facie  to  be  revo- 
cable in  many  cafes,  becaufe  the  perfon   making  it  was 

*  Ubi  eadem  ratioy  ibi  idem  jus.  ^  Bra^Cl,  436.  b. 

only 


4^0  HISTORY      OF      THE 

CHAP.    VII.  only  tenant  for  life,  in  dov^r,  and  the  like,  or  becaufe  the 
^^"^^  land  in  queftion  was  held  in  villcnage ;  yet  all  perfons  were 

in  law  bound  by  this  judgment  j  and  therefore,  if  they  made' 
no  claim,  they  would  not  be  excufed.  In  ihort,  it  is  de- 
clared by  Bra(flon,  that  no  perfon  fliould  be  excufed  if  he 
was  in  the  kingdom,  itifra  quatuor  maria^  and  had  it  in  his 
power  to  come  or  fend  \  fo  that  even  a  perfon  In  languort 
•would  not  be  excufed,  becaufe  he  might  fend  *.  If  a  per- 
fon was  in  fervitio  r^gis,  fo  as  he  could  neither  come  nor 
fend,  he  was  excufed,  although  he  made  no  claim.  Thus 
ftood  the  law  upon  the  fubje£l  of  claim,  to  fufpend  the  effect 
of  a  judgment  or  fine. 

From  the  manner  in  which  Bra^lon  fpeaks  of  a  fine,  it 
(hould  feem  as  if  this  judicial  concord  was  entered  into 
after  a  proceeding  was  commenced  on  any  writ  whatfoever, 
which  was  grounded  on  tht  proprietas  y  and  that  it  was  not 
confined  to  a  writ  of  covenant,  grounded  upon  the  breach 
of  a  fuppofed  prior  agreement  and  concord :  it  feems  par- 
ticularly to  have  been  made  in  a  writ  of  right,  and  is  all 
along  mentioned  in  company  with  a  judgment  therein, 
upon  the  great  aflife  or  duel. 
Of  perfonal  We  have  now  difmifled  the  fubje<ft  of  real  a£lions,  thro' 

all  their  parts  and  kinds.  It  remains  to  add  fomething  on 
the  nature  of  procefs  in  a<5\ions  perfonal.  Thefe,  like 
real  actions,  were  commenced  by  fummons  *,  but  if  a  de- 
fendant omitted  to  appear  upon  a  lawful  fummons,  the  con- 
tempt was  treated  in  a  different  manner ;  for  they  proceed- 
ed by  attachment,  as  appeared  in  Glanville's  time''. 
Perfonal  aiSlions  differed  likewlfe  in  their  procefs,  according 
to  circumftances :  in  fome  caufes,  which  from  their  na- 
ture would  not  bear  delay ;  as  where  the  fubjccl  was  the 
fruits  of  the  earth  or  other  things,  which  were  perifhable  *, 
thcfcilenn'itns  aitachiamcntorumy  as  it  was  called,  was  dif- 

*  BracV.  437.  ^  V;d    ant.   HI. 

pcnfcd 


ENGLISH     LAW.  481 

penfed  with  •" :  fo  again,  where  the  Inpfe  of  a  benefice  was  CHAP.  vir. 
apprehended,  or  where  the  injury  was  very  atrocious,  or  the  henry^TiJ' 
plaintiff  deferved  a  particular  refpe£t  or  privilege  ;  as  noble 
perfons,  or  merchants  who  were  continually  leaving  the 
kingdom.  But  in  perfonal  aftions  which  did  not  require 
fuch  fpecial  favour,  if  the  defendant  did  not  appear  to  the 
fummons,  and  the  plaintiff  offered  himfelf  in  court  the  firft, 
fecond,  third,  and  fourth  day,  he  was  not  to  be  waited  for 
any  longer;  but,  whether  the  fummons  was  proved  or  not, 
fo  as  it  was  not  openly  denied,  he  was  to  be  attached  by- 
pledges.  Upon  which  the  entry  on  the  roll  was  thus  :  A. 
obtulit  fe  quarto  die  verjus  B.  de  placito  ;  then  the  fubftance 
of  the  writ  was  added  ;  and  It  went  on,  et  B.  non  vemt^  et 
fummonituSy  tzfc,  'Judicium^  Attachletiir  quod  fit  cornm^  is^c. 
The  writ  of  attachment  was,  Pone  per  "jadium  et  falvos  ple- 
gios  B.  quod  fit  coram,  ^c.  ad  refpondendum  de  placito  ;  and 
then  followed  the  fubftance  of  the  writ  as  upon  the  roll. 
The  following  inftances  of  fuch  entries  upon  the  roll  are 
given  by  Bra£lon  :  De  placito  quare  non  tenet  ei  conventic' 
nem  inter  eosfaclom,  ox  Ji?iem  inter  eos  faElurn  de,  ^c, — Ue 
placito  quod  ivarrafitizct  ei  tantam  terrain  cum  pertinentiisy 
l^c, — De  placito  quare  non  facit  ei  confuetudinem  et  certa 
fervitia,  qua  facere  ei  debet,  bfc. — De  placito  quod  reddat  ei 
tantam  pecuniam  quam  ei  debet  et  injufe  detitict,  l^c. — De 
placito  quare  idem  B,  fimul  cum  aliis  venit  ad  domum  fuam, 
et  Hi  did  fuch  a  trefpafs,  contra  pacam  noflram.  Thus  the  Attschmcnt. 
attachment  purfued  the  nature  of  the  original  writ ;  and  at 
the  end  was  added  this  claufc  :  Ad  ofendendum  quare  non 
fuit  coram,  l^c.ficut  fummonitus  fuit :  or  if  he  had  efToined 
himfelf  to  a  particular  day,  then,  adojlendendum  quare  non 
fervavit  diem  fibi  datum  per  effoniatorem  fu'/m,  t^c.  to 
which  he  was  to  anfwer  before  he  anlVcrcd  to  the  principal 

■■  Brta,  439. 

Vol .  T-  K  k  point  J 


482  HISTORYOFTHE 

CHAP.    VII.    point;  and  if  he  could  not  excufe  himfelf,  he  was  to  be 

HE\RY  III     ^^  tnifericordid  for  his  default. 

If  he  did  not  appear  after  this  firft  attachment,  then, 
upon  the  plaintiff  offering  himfelf,  he  was  to  be  attached 
by  better  pledges,  to  anfwer  on  another  day :  this  was  called 
aforc'iamentum  plegioruiriy  and  was  in  the  nature  of  diilrefs 
for  fervice,  where,  if  the  party  appeared  not  at  the  firfl  dlf- 
trefsj  more  cattle  were  taken  ^ro  aforciamcnto  di/lriclioms'^. 
The  entry  on  this  cccafion  was,  ^.  oktuHt  fe  quarto  die  vet-' 
fus  B.  de  placito,  ^c.  as  before  ;  et  B.  non  venity  et  alias 
fecit  dcfaltam  pojlquamfuit  fmninofiitus  ;  et  ita  quod  attachi- 
attis  tunc  fuit  per  C.  et  D.  'Judicium^  Pcnatur  per  meli- 
ores  plegios  quod  fit y  ^c.  upon  which  there  iffued  a  fecond 
attachment,  in  which  was  likewife  contained  a  fummons 
againfl  the  former  pledges,  to  fnew  caufe  why  they  did  not 
produce  the  defendant,  as  they  had  engaged  to  do.  If 
neither  the  defendant  nor  pledges  appeared  to  this  writ,  all 
the  pledges  were  in  mifericordid  and  not  the  defendant ;  but 
then  all  the  defaults  fell  upon  the  defendant,  as  if  he  had 
found  ho  pledges  at  all;  and  a  writ  ifTued,  qu\d  ft  ad  aw 
die fidum  judicium  fuuvi  de  pluribus  defaltis ;  and  from  that 
day  all  aforcement  of  pledges  ceafed.  If  the  defendant  ap- 
peared to  the  fecond  attachment,  then  only  the  lirft  (and 
not  the  fecond)  pledges  were  to  be  amerced,  unlefs  they 
fhewed  caufe  why  they  did  not  produce  him  at  the  firfl  at- 
tachment. However,  though  the  defendant  was  not  to  be 
amerced,  but  fummoned  to  hear  judgment  on  his  defaults, 
"^  yet  BracTton  thinks  it  was  otherwife  in  regard  to  a  plaintiff 

who  had  found  pledges  de  profequendoy  and  did  not  profe- 
cute  his  fuit ;  for,  according  to  him,  they  were  all  to  be 
amerced,  as  well  the  principal  as  the  pledges. 

If,  at  the  firfl  day  of  fummons  and  attachment,  neither 
defendant  nor  plaintiiT appeared,  the  plaintiff  did  not,  how- 
ever, lofe  his  writ.  When  the  demandant  had  been  attach- 
'•d  by  better  pledges,  and  did  not  come  to  his  day,  nor 

^  Bra£l.  439. 

within 


E  N  G  L  I  S  H     L  A  W.  483 

within  the  fourth  day,  and  the  plaintiff  did  e,  the  entry  was      CHAP. 

thus :  A.  obtulit  fe  quarto  die  verfus  B,  et  B.  non  venit,  ^c.  ^  '' 

et  bluresfec'it  defaltas^  ita  quod primo  attachiatus  fuit  per  C.     HENRY  III. 

et  D.  etfecundo  per  E,  et  F.  et  idea  omner  plegii  in  mifericor- 

did  ;  and  then  the  procefs  above  alluded  to  iffued  a^^aind:  the 

defendant,  commanding  the  fheriff,  quid  habeas  coraniy  ^c* 

corpus  B.  ad  refpondendum  A»  de  placito,  isfc  ad  audiendum 

judicium  fuum  de  piurihus  defaltis,   ^c*     If  he  came  at  the 

day  and  could  not  fave  his  defaults,  he  was  to  he  amerced 

for  them,  and  then  to  anfwer  to  the  a6i:ion.     If  he  did  not 

appear,  but  concealed  himfelf,  or,  as  they  called  it,  latita- 

verity  fo  that  the  (heritT  returned,  he  was  not  to   be  fcund  in 

his  bailiwick  ;  then  the  entry  was  thus  :  A  obtulit  fe  quarto 

die  verfus  B,  de  placito,  as  before  ;  et  B.  non  vinit,  etplures 

fecit  defaltaSy  ita    quod  praceptum  fuit  vicccorniti,  qucd  ha- 

beret  corpus  ejus  ;    et  vicecomes  mandavit  quod  non  fuit   in" 

ventus  in    ballivd  fudy  et  ideo  viceconies  dijlringat  cum   per 

omnes  terras  et  catalla,  quod  fit  ad^  i3c.  upon   which  there 

jfTued  a  writ  of  diflringas  againft  his   lands  and  chattels. 

If  he  did  not  appear  to  this  writ,  his  default  was  punifhed 

by  another  writ   of  diflringas^  commanding  the  {heriff  to 

diftrain   his  lands  and  goods,    et    quid  fit  fecurus  habendi 

r^r^//j  f;//j- at  another  day.     If  he   ftill  made  default,    the 

next    diflringas  was,    iia  quid  nee  ipfe-,    nee  aliquis  pro  eo, 

nee  per  ipfum  tnanum  apponat  in  terris,    tenemeniis,  bladisy 

nee  in   aliis  cataUis.     If  he   flill    made  default,   the   next 

diflringas y  if  it  could  be  fo  called,   was,   quid  capiat  omnes 

terras   et    omnia  catalla  in   manum  domini   regis,  et  capta 

in  manum  domini  regis  detineat,  quoufque  dominus  rex  aliud  ' 

inde  pncceperit,  et   quod  de  exitibus  refpondeat  domino  regi  : 

and  bevond  this  there  was   no   further   procefs  per  terras 

et  catalla  ,    they  being  both  taken  into  the  king's  hands  by 

the  Iheriff,  who  was  to  anfwer  for  the  profits  to  the  crown. 

«  Bra£t.  440. 

Vol.  I,  K  k  a  What     X* 


484 


HISTORY      OF      THE 


HENRY  ill. 


Execution  of 
the  writ. 


What  ftep  was  to  be  taken  by  the  plalntiflF  who  had 
fufFered  all  thefe  delays  ?  for  it  was  hard  that,  after  all,  he 
fhould   lofe  the  effcft   of  his  fuit.     Bra<5ton   thinks  that 
in  this,  there  was  a  difference  between  adions  upon    a 
contra6l  for  a  fum  of  money,  and  for  a  trefpafs.     In  the 
former,  he  thought  it  would  be   right  to  adjudge    to  the 
plaintiff  a  feifin  of  the  chattels  to  the  amount  of  his  demand, 
and  to  give  him  a  day,  and  fummonthe  defendant;  when, 
if  he   appeared,  the  chattels  fhould   be  reftored,  upon  his 
anfwering  to  the  a6tion  :  if  he  did  not  appear,   he   fhould 
not  be  heard  upon  the  matter,  but  the  plaintiff  fhould  be- 
come lawful  owner  thereof.     But   if  it  was  an  a6tion   of 
trefpafs  s  then  he  thought,  the  juftices  fhould  eflimate  the 
damage  fuftained ;  and  the  rents  and  chattels  of  the  fugitive 
beinrr  valued,    a  portion   fhould    be  taken  into  the  king's 
hands  to  the  amount  of  the  damage,   as  a  penalty  on  the 
defendant. 

Should  the  defendant,  however,  not  be  found,  nor  have 
any  land  or  goods,  he  did  not  wholly  efcape  the  refentmcnt 
of  offended  ju nice  ;  for  whether  it  was  an  a6i:ion  for  money, 
or  a  trefpafs,  the  defendant  was  to  be  demanded  from  county 
to  county,  at  the  fuit  of  the  plaintiff,  till  he  was  outlawed. 
Perfons  fo  outlawed  were  not,  upon  their  return,  or  being 
taken,  to  lofe  life  or  limb,  as  thofe  outlawed  for  crimes  ; 
but  were  condemned  to  perpetual  imprifonment,  or  to  ab- 
jure the  realm. 

It  fometimes  happened  that  the  fheriff  did  not  execute 
the  attachment,  nor  return  the  writ  ;  and  then,  upon  the 
plaintiff  offering  himfelf,  the  entry  was  thus  :  A.  obtuUt  fe 
quarto  die  verfus  B.  de  placito^  isfc.  et  B,  non  venit,  et  prae- 
ceptum  fuit  vicecomiti,  qu'od  aitachiaret  eutn,  quod  ejjet  ad 
talem  diem^  et  ipfe  vicecomei  inde  nihil  fecit,  nee  breve  quod 
si  inde  venit,  mi/it  ;  et  ideb  praceptum  ejl  vicecomiti y 
ficut    alias,     quod    aitachiaret    eunt,    quod  fit   ad,    ^c-    et 


^  Bradl.  440.  b. 


qu 


X. 


E  N  G  L  I  S  H      L  A  W.  485 

quod  ipfe  vice  comes  fit  ihi  audituvus  judicium  fuum  de  hoc  CHAP.  VII. 
quod pradiBum^  ^c.  non  attachiavtt^  nee  breve  quod  ei  inde  heNRY  III. 
ven'it,  tnifity  Jicut  ei  praceptum  fuit.  Upon  this  there 
ifTued  an  alias  attachment:  Pnecipimus  tibi,  ftcut  alias 
tibi praceperimusy  ^c.^.  If  the  (lierifF  did  nothing  upon 
the  writ,  nor  fliewed  any  fufficienf  excufe,  he  was  amer- 
ced for  his  contempt,  and  was  commanded  a  third  time  to 
attach  the  party:  Pracipimus  tibij  Jicut  s^Pius  pracepe- 
rimusy  isfc. 

Sometimes  the  (lierifFfent  an  excufe  for  not  executing 
the  writ.    He  would  fometimes  return,  that  the  writ  came 
too  late  to  be  executed ;  that  the  party  was  not  to  be  found 
in  his  bailiwick ;   that  he  was  wandering  from  county  to 
county,  and  had  no  certain  refidence ;  that  he  had  no  lands 
or  chattels  by  which  he  might  be  diftrained;  and  many  other 
excufes  might  be  feigned.     Again,  (hould  the  fheriff  err 
in  the  fort  of  attachment ;  as  when  he  was  to  take  pledges 
fliould  he  make  a  diflrefs;   or,   inftcad  of  taking  the  per- 
fon,  fhould  he  admit  to  bail ;  in  all  fuch  cafes  it  was  ufual 
to  make  an  entry  of  the  return,  and  to  fpecify  it  in  the 
writ  that  iflued  in  confequence  thereof :  as  for  inflance, 
et  B.  non  venity  et  vicecomes  mandavity  quod  twn.  attachiavit 
eumy  quia  red  pit  breve  tarn  tarde  quod  pricceptum  domini  re- 
gis exequi  non  potuit :  and  if  it  was  proved  that  he  received 
the  writ  in  good  time,  or  in  the  county  court,   and  might 
have  executed  it,  the  record  went  on,  Et  tejiatum  efiy  quod 
ijlud  recepit  fatis  tcmpejlive  (or,   //;  comitatu  ubi  attachian- 
dus  prafens  fnitjy   et  ideo  pracipiatur  quldy    is'c.      Upon 
this  a  writ  iflued,  commanding  him  to  attach  the  party '', 
and  appear  himfelf  to  anfvver  for  1iis  default ;   and  if  he 
failed  in  either,   he  was   in   mifericordid.     A  (lierifF  was 
fometimes  excufable  for  not  executing  procefs  by  reafon  of 
fome  liberty  which  he  could  not  enter,  becaufe  the  lord 
thereof  had  the  rctorna  brevium  therein.     In  fuch  cafe,  the 

f  Braa.  44r.  >'  IbUi.  441.  b. 

HicrifF 


486  HISTORYOFTHE 

CHAP.    VII.   IherifFwas  to  command  the  bailiff  of  the  liberty  to  execute 

HENRY  III.  ^^>  '^^^  *^  ^^  ^^^  ^^^  ^'^  ^*>  ^^^^  fljcriff  was  excufable  before 
the  juftices,  by  making  a  return,  quid preceptum  ejl  ballivo. 
When  the  bailiff  thus  failed  in  doing  his  duty,  the  fljcriff 
was  then  commanded  not  to  omit  doing  it  by  reafon  of  that 
liberty  j  under  which  fpecial  warrant  the  fheriff  had  an  au- 
thority that  did  not  generally  belong  to  him.  The  entry 
upon  the  record  was,  Et  vicecomes  mandavity  qjiod projrepit 
hallivis  lihertat'is^  et  ipft  nihil  indefecerunt,  et  ideo prjiceptum 
ftlit  vicecomiiiy  qubdnOU  OMITTAT  PROPTER  LIBEKTA- 
TEM  qui!7y  ilfc,  and  there  iffued  a  writ  quod  non  omittaSy 
containing  an  attachment,  dijlruigas,  habeas  corpus ^  or 
whatever  the  neceffary  procefs  might  be,  by  which  alfo 
the  bailiff  of  the  liberty  was  fummoned  to  ihew  caufe  for 
his  neglect  \ 

If  the  (herlff  was  refifted  in  the  execution  of  this  writ 
by  the  bailiff  or  lord  of  the  franchife,  there  ilTued  another 
7ion  omittasy  with  a  claufe  authorizing  him  to  go,  with  fome 
fui&cicnt  knights  and  free  men  of  the  county,  and  take  the 
bodies  of  fuch  as  refilled  them,  and  keep  them  in  prifon  till 
the  king*s  pleafure  was  known  concerning  them  :  the  lord 
of  the  liberty  was  likewife  attached  to  appear  and  anfwer 
for  the  offence ;  and  if  he  could  not  deny  it,  his  liberty  was 
feized  into  the  king's  hands  for  fuch  an  ubufe  of  it. 

A  SHERIFF  might  fay  that  the  perfon  was  a  clerk,  and 
claimed  the  privilege  of  a  clerk  not  to  find  pledges,  and 
that  he  had  no  lay  fee  by  which  he  could  be  diftrained.  It 
feems  from  Bra6lon,  that  in  fuch  cafe  they  did  not  proceed 
dlredlly  againfl  a  clerk,  particularly  in  trefpaffes ;  but  the 
courfe  was  to  refort  to  the  archbilhop,  bilhop,  or  other  in 
whole  diocefe  the  perfon  to  be  attached  refided,  or  had  an 
ecclefiailical  benefice,  and  require  him,  quod  faciat,  isfc. 
clericum  venire^.  If  the  bilhop  negle£i:ed  to  obey  this  writ> 
he  was  fummoned  to  anfwer  for  his  default ;  to  which  if 

»  Bract.  44*.  *  Ibid.  441,  b. 

be 


ENGLISH      LAW, 

lie  made  no  appearance,  there  run  againft  him  zll  the  folen- 
nitas  attachiamentorum^  as  in  other  diftreflcs,  and  he  was 
immediately  diftrained  by  his  barony^ :  and  If  neither  the 
bifliop  appeared  nor  the  clerk,  then  they  proceeded  by 
judgment  of  the  court  againft  the  clerk,  who  was  arrefted 
and  detained  till  he  was  demanded  by  the  bifhop.  At  any 
rate,  it  was  expeflied,  a  biihop,  who  held  a  barony  of  the 
crown,  fhould  obey  the  king's  writs ;  and  if  a  clerk  did 
not  appear,  the  bilhop  might  bring  or  fend  an  excufe,  why 
he  had  not  the  clerk  according  totherequifition  of  the  writ: 
he  might  fay,  that  he  had  no  benefice  in  his  diocefe  by 
which  he  could  be  diftrained  j  or  if  he  had  a  benefice, 
he  might  fay,  that  he  was  a  ftudent  at  Paris  beyond  the  fea, 
that  he  did  his  utmoft  in  fequeftering  him  by  his  prebend 
and  other  benefices,  and  could  do  no  more  in  the  way  of 
compulfion.  This  would  be  a  complete  jnftification  for  the 
biftiop,  and  all  proccfs  would  ceafe  till  the  clerk  returned, 
and  could  be  taken ;  and  then,  if  the  biftiop  omitted,  the 
ilieriif  might  proceed  as  above-mentioned  m. 

It  was  faid  before,  that  in  fome  perfonal  acllons  the 
jGleiviitas  attachiamentorum  was  not  to  be  obferved,  and 
this  was  in  feveral  cafes  of  privilege;  as,  in  addition  to  thofc 
that  have  been  already  mentioned,  where  the  plaintiff  was  2 
crufader  or  a  merchant,  whofe  affairs  demanded  difpatch  j 
where  there  was  fome  urgent  neceffity  ;  as  in  afTifes  of  dar- 
rein prefentment,  quare  impedlt^  and  fion  permlttit^  left  the 
plaintiff  (liould  incur  the  lapfe  of  fix  months;  where  the 
fubjeft  in  conteft  was  a  perifnablc  article,  ns  ripe  fruit ; 
or,  in  an  a£lion  of  trefpafs,  where  the  jury  was  atrocious,  l^^c^ 
and  againft  the  king's  peace ;  where  regard  was  to  be  had 
to  the  quality  of  the  perlbn  injured,  as  the  king,  queen,  or 
their  children,  brothers,  flfters,  or  any  of  their  relations  or  kin; 
in  any  of  the  above  cafes,  it  was  ufual,  in  the  firft  inftance, 
to   have  a  writ  to  the  flieriff,   quod  habcat  corpus ^  ^r.  ad 

1  Rraa.  443.  "»  Ibi.1.  443.  b. 

rtfpondendum. 


488  .  H    I    S    T    O    R    Y,      &c. 

CHAP.    VII.    refpondetidum.  But  this  writ  againft  the  body,  inftead  of  the 
HENRY  III     *^^^"^^  ^^  audiendum  judicium   de  plurihus  defaltis  (which 
would  have  been  abfurd),  had  one,  containing  the  caufe 
wherefore  the  formality  of  attachment  was  difpenfed  with; 
as,  Pracipimus  tibi,  quody  omni  cccafione  i^f  dilatione  pojlpo- 
Judy  propter  privilegium   mercatorumy  quorum  placitum  in- 
Jlantiam  dejideraty  habeasy  l^c,  and  fo  in  other  cafes.     But, 
notwith (landing  this  intention  to  avoid  delays,  the  defend- 
ant might  have  an  eflbin  de  malo  vejiiendiy   before  he  ap- 
peared ".     In  capital  cafes,   there,  was  no  attachment  but 
thzt  per  corpus  ;  and  any  one,  with  or  without  a  precept, 
might  arreft:  fuch  an  offender  o. 

In  mixt  a6tions,  as  thofe  for  dividing  a  common,  de  pro- 
parte  fororuWy  of  partitiotiy  and  the  like,  the  ufual  procefs 
was,  diftrefs  real,  and  not  diftrefs  perfonal. 

Thus  far  Bracion  fpeaks  of  the  commencement  of  mixed 
and  perfonal  a£lions ;  but,  notwithllanding  the  full  manner 
in  which  he  has  treated  the  whole  proceedings  in  real  ac- 
tions, he  leaves  thefe  without  any  further  difcufiion  ^.  The 
fmall  proportion  that  perfonal  property  bore  to  real,  in  thefe 
days,  might  be  a  reafon  why  the  remedies  provided  for  the 
recovery  of  it  fhould  have  undergone  very  little  confidera- 
tion.  Confiftently  with  the  inferior  light  in  which  perfonal 
property  was  held,  it  is  probable,  that  the  nature  of  perfonal 
actions  had  not  been  much  refined  upon  :  we  fhall  fee,  in 
the  following  part  of  this  Hiflory,  how  they  gradually  grew 
into  notice,  and,  at  length  became  equally  important  with 
real  a£lions.  It  is  to  be  lamented  that  our  author  palfes 
over  with  the  fame  filence  the  redrefs  to  be  obtained  by  a 
writ  of  error  •,  the  praclice  of  which  mud  be  colle£led  from 
authorities  of  a  later  period. 

"  BraiTr.  444,  *  Ibid.  444.  b.  P  Viii  ant.  45^ 


END  OF  THE  FIRST  VOLUME. 


V 


^ 


3ahtt  JVhamB 


N  THE  CUSTODY  Or  TME 

BOSTON     PUBLIC   LIBRARY. 


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