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of 


'pmfcersitg  of  Storottto 


The  Harris  family 


HANDBOUND 

AT  THE 


UNIVERSITY  OF 


JL 


A     N 


HISTORICAL    TREATISE 


ON      THE 


FEUDAL     LAW, 


AND       T  H  fi 


o    p 


ENGLAND. 


LECTURES 

ON        THE 

CONSTITUTION    AND    LAWS 

O       F 

ENGLAND: 

WITH    A    COMMENTARY    ON 


AND     ILLUSTRATIONS    OF    MANY 

OF        THE 


BY      THE      LATE 

FRANCIS  STQUGHTON  SULLIVAN,  LL.  D. 

Royal  ProfeiTor  of  COMMON  LAW  in  the  UNIVERSITY  of  DUBLIN. 

THE    SECOND    EDITION. 

To  which  AUTHORITIES  are  added,  and  a  DISCOURSE 
is  prefixed,  concerning  the  LAWS  and  GOVERNMENT 
o£  ENGLAND. 

BY  GILBERT    STUART,  LL.  D. 

LONDON: 

Printed  for  F.PWARD  and  CHARLES  DIL.LY  in  the  Poultry;  and 
JOSEPH  JOHNSON  in  St.  Paul's  Church-yard* 

M,DCC,LXXVI. 


J-/V 


4  •  /  • 


To    THE    RIGHT    HONOURABLE 

FREDERICK  LORD  NORTH- 

KNIGHT  OF  THE  MOST  NOBLE  ORDER  OF  THE  CARTER, 

FIRST  LORD  OF  THE  TREASURY, 
CHANCELLOR  OF  THE  E  X  C  H  E  Q^U  E  R, 

AND 

CHANCELLOR  OF  THE  UNIVERSITY  OF  OXFORD, 

MY  LORD, 

I  AM  ambitious  of  giving  dignity  to  this  WORK  by 
infcribing  it  to  your  Lordfhip ;  and  I  conceive  that 
it  has  a  natural  claim  to  your  protection.  It  regards 
thofe  laws  and  that  conftitution  which,  at  a  moft  cri- 
tical period,  you  were  called  to  defend  ;  and  of  which 
the  important  purpofes  are  the  ftcurity  and  the  hap- 
pinefs  of  a  free  people. 

IN  this  illuftrious  rank  which  divides  your  cares 
between  prerogative  and  liberty,  and  in  which  you 
fupport  the  luftre  of  the  Crown,  while  you  guard  the 

independence 


independence  of  the  fubject ;  the  greateft  occafions  are 
afforded  to  diftinguifh  the  generofity  of  public  virtue, 
and  to  employ  a  capacity  enlarged  alike  by  reflection 
and  experience. 

BUT  it  does  not  become  me  to  fay  with  what  ho- 
nour to  yourfelf,  and  with  what  advantages  to  the 
nation,  you  fuftain  the  arduous  charge  of  government. 
To  pofterity,  which  will  not  be  fufpected  of  flattery, 
it  muft  be  left  to  celebrate  the  merits  of  an  Admini- 
ftration,  too  vigorous  to  yield  under  difficulties,  and 
of  which  the  glory  has  increafed  with  danger, 

I  am,  with  the  greateft  refpect, 
MY  LORD, 

Your  Lordlhip's 
Moft  obedient, 
And  rnoft  humble  fervanU 


GILBERT  STUART. 


[     vii     ] 


ADVERTISEMENT. 

THE  following  LECTURES  were  delivered  in  the  Univcrfit) 
of  DUBLIN,  and  procured  a  very  high  Reputation  to  their 
Author.  The  Refearches  they  contain  into  the  Nature  and 
Hiflory  of  the  FEUDAL  LAWS,  were  efteemed  cxtenfive  and  in- 
genious ;  and  the  Defcription  they  exhibit  of  the  ENGLISH 
CONSTITUTION,  will  be  allowed  to  be  particularly  interefling. 
Theie  Advantages  have  occafioned  their  Publication.  It  was 
thought,  that  Papers,  which  had  done  fb  much.  Honour  to  DR. 
SULLIVAN,  when  alive,  ought  to  illuftrate  his  Memory;  and 
that  they  might  prove  of  Ufe  to  the  prefent  Age,  and  to  Po- 
fterity. 

THE  Authorities  afligned  for  DR  SULLIVAN'S  Opinions  and 
Reafbnings  are  furnidied  by  the  EDITOR.  They  are  not,  per- 
haps, in  every  Inftance  thofe  to  which  he  himfelf  would  have 
appealed.  This  could  not  have  been  expected.  They  are 
fuch,  notwithstanding,  as  will  affift  the  Student ;  and  the  Pre- 
liminary DISCOURSE,  it  is  hoped,  will  not  be  thought  an 
ufelefs  or  improper  Addition  to  his  LECTURES.  It  will  be  a 
Pleafure  to  the  EDITOR  to  reflect  that  he  has  endeavoured  to 
pay  a  Tribute  of  RefpecT:  to  the  Writings  of  a  virtuous  Man  and 
an  ingenious  Lawyer,  whom  an  immature  Death  had  raviihed 
from  liis  Friends  and  from  Society. 


C     i 


CONTENTS. 

LEG    T    U    R    E        I. 

rUK  in  fen!  ion  and  purpcfes  of  political  fociety — Cn {loins  and  manners 
govern  men  before  the  enatfment  of  pofitive  laws — Arts  n 
-property  tbe  fources  of  legijlation — Peculiarities  attending  the  inflitu- 
lions  of  Lycurgus  and  tbofe  of  Mofes — ///  the  infancy  of  a  ftate,  laws 
arc  fiiv  and  plain — In  times  of  civility  and  refinement,  they  arc  nu- 
merous and  complicated — The  liberty  of  the  people,  a  great  canfe  of  the 
multiplicity  of  laws — The  difficulty  of  the  Jludy  of  the  Englijh  law — The 
methods  which  have  been  followed  in  the  jtudy  of  it. 

L    E    C    T.        II. 

The  plan  of  the  prcfent  undertaking — The  particulars  in  which  it 
differs  from  that  adopted  by  Mr  Blackftonc — The  different  fituations  of 
the  Universities  of  Oxford  and  Dublin — The  chief  obftruftions  which 
occur  to  the  ftudent  of  the  Englijh  laws — The  methods  which  may  be 
employed  to  remove  them — The  law  of  things   more  proper  to  intro- 
duce a  fyftcm  of  jurisprudence  than  the  law  of  perfons — The  law  of 
things,  or  of  real  property  in  England,  has  its  fource  in  the  feudal 
cuftoms — The  ncceffity  of  a  general  acquaintance  with  the  principles  of 
the  feudal  polity — The  method  in  which  it  is  propofed  to  treat  of  it. 

L    E    C    T.        III. 

An  enumeration  and  confutation  of  fever al  opinions  concerning  the 
foundation  of  the  feudal  cuftoms — The  origin  and  rules  of  the  feudal  law 
to  be  deduced  from  the  iujliturion  of  the  German  nations  before  they  in- 
vaded the  Roman  empire — The  Engli/]j   indebted  fir  this  law  to  the 
Franks — A  general  defcription  of  this  people,  with  an  account  of  the 

b  feveral 


x  CONTENTS. 

fever al  orders  of  men  into  which  they  were  divided  wink  they  continued 
in  Germany* 

L    E    C    T.       IV. 

The  companions  of  a  German  Prince — The  conftitution  of  a  German 
kingdom — The  condition  of  property  in  Germany — The  methods  followed 
there  of  diftributing  juftice,  and  the  nature  of  the  punifhments  infiiflcd  m 
criminals. 

L    E    C    T.       V. 

The  decline  of  the  Roman  empire — The  invafions  of  the  Northern  na- 
tions— The  manner  in  'which  they  fettled  in  the  Roman  provinces — The 
changes  infenfibly  introduced  among  them  in  conference  of  their  new  fitu* 
ation — The  policy  and  condition  of  the  Franks  after  they  had  fettled  in 
France — The  rife  of  the  feudal  law—Eftates  beneficiary  and  temporary* 

L    E    C    T.        VI. 

The  introduction  of  eft  ate  s  for  life  into  the  feudal  Jyftem— The  nature 
and  forms  of  inveftiture> — The  oath  of  feahy,  and  the  obligations  of 
Lord  and  tenant. 

L    E    C    T.      VII. 

Improper  feuds  or  bmefices — Grants  to  tie  Church — Grants  in  which 
the  oath  of  fealty  luas  remitted— Grants  to  which  a  condition  was  an- 
nexed that  enlarged  or  diminifhed  the  eflate-*- Grants  which  referved  cer- 
tain other  fervices,  befide  military  fervice-~-Grants  implying  feme  certain 
fervice,  as  rent,  and  not  referring  military  fervice — Grants  refeving  no 
fervicesy    but  general  fealty— ^Grand    Serjeantry — Petty    Serjeantry — • 
Grants  to  women — Grants  of  things  not  corporeal — Feudum  de  Cavena — 
Feudum  de  Camera, 

L   E    C   T. 


CONTENTS.  xi 

L   E    C   T.       VIII. 

Feudum  Soldatt — Feudum  habitations — Feudum  Guardif — Fwdum 
Gajlaldit — Feudum  mcrcedis — Incorporeal  benefices  in  England — Ad- 
voivfons — Prcfentativc  advoiufons — Collativc  advoiujons — Donatives. 

L    E    C    T.        IX. 

Tithes — The  voluntary  contributions  of  the  faithful,  the  original  re- 
venue of  the  Ctmrch — The  cftablijhment  of  regular  payments — The  ap- 
propriations of  the  Church — The  hiftory  and  general  rides  of  tithes  in 
England. 

L    E    C    T.        X.. 

The  right  of  Seignory  and  its  confequenccs — The  right  of  Reversion — 
Rent  feck — Rent  charge — The  nature  of  diftrefs,  as  the  remedy  for 
recovering  feudal  duties*  Obfervations  on  diftrefles  in  general. 

L    E    C    T.        XL 

The  manner  in  ivhich  eftates  for  life  came  to  be  enlarged  into  defect 
dible  eftates — The  nature  of  Reliefs — Feudal  oppreffions — The  admifflon 
of  allodial  lands  into  the  feudal  policy — The  extenfion  of  the  feudal  Jyftem 
in  France. 

L    E    C   T.       XII. 

Confequences  attending  the  introduflioit  of  ejhites  of  inheritance — The 
incident  cf  homage — Differences  in  England  and  the  Continent,  ivith  re- 
gard to  the  ceremonies  of  homage  and  fealty — The  fine,  of  alienation — 
Attornmcnl — Warranties — Wardfhip  in  chivalry. 

L    E    C    T.        XI1L 

WardJJnp  in  Socagc — The  nature  and  hijlory  of  the  incident  of  mar- 
riage* 

L    E    C   T. 


xii  CONTENTS, 

LEG    T.        XIV. 

The  rules  of  defcent  in  the  old  feudal  law  in  regard  to  the  fons  of  tie 
7/7/2  pojjejfor — Rcprefentation  and  collateral  fucceffion — Feminine  feuds. 

L    E    C    T.        XV. 

\ 

The  difference  between  allodial  and  feudal  lands — The  reftriftions  on 
-tie  feudal  law — Tie  decay  of  tlefe — Tie  lijlory  of  voluntary  alienations. 

L    E    C    T.        XVI. 

Involuntary  alienations  of  feudal  land — Talliagc — Edward  I,  intro- 
duces tie  firft  involuntary  attachment  of  lands — Statutes  cnacled  for  tlis 
purpofe — Their  cffefls — Tie  origin  of  eft  ate  s  Tail, 

L    E    C    T.        XVII. 

Tie  confcquences  and  HJlory  of  ejlates  Tail. 

L    E    C    T.        XVIII. 

Tlie  conftitution  of  a  feudal  monarcly—Tle  dignity  and  revenues  of 
"the  King — Ai  examination  of  Us  power  as  to  tic  raifmg  of  taxes  and 
fubpdies. 

L    E    C    T.        XIX. 

Tie  Kings  power  as  to  tie  making,  repealing,  altering,  or  difpenfmg 
'wit I  laws. 

L    E    C    T.        XX. 

Lords  of  Parliament  or  Peers — Earls  or  Barons — Tie  earlier  flate 
of  Baronies  in  England — Tie  Barones  majores  &  minores— Barons  by 
writ  and  by  letters  patent — Tie  different  ranks  of  Nobility. 

L    E    C    T.        XXI. 

Earls  or  Counts  as  diftinguifljed  from  Barons — The  office  of  Counts— 
Their  condition  after  tie  conqueft — Counties  Palatine  in  England — Coun- 
ties Palatine  in  Ireland,— Spiritual  Peers — The  trials  of  Noblemen.  „ 

L    E    C    T. 


CONTENTS.  xiii 

L    E    C    T.        XXII. 

The  fl-ar;  of  the  Commons  in  the  Lcgiflaturc — The  A'migcri  or  Gen- 
try— Ktights  Bannerets — The  nature  of  Knighihiod  altered  in  the  i 
of  James  I — Knights  Baronets — Citizens  and  Burghers — The  advance- 
ment of  the  power  and  reputation  of  the  Commons. 

L    E    C    T.        XXIII. 

The  privilege  of  voting  for  Knights  of  the  Shire — The  bufinefs  of 
the  different  branches  of  the  Lcgijlaturc,   diftinft  and  fcparatc — The 
•method  of  paffing  laivs — The  hiftory  and  form  of  the  legijlature  in  Ire- 

L    E    C    T.        XXIV. 

Villenage — The  Servi  in  Germany,  mentioned  by  Cxfar  and  Tacitus, 
lie  predcceffors  of  the  Socmen  or  foe  age  tenants  in  the  feudal  monarchy — 
Villeins  in  groft  and  villeins  belonging  to  the  land  of  the  Lord — The 
condition  of  villeins — The  different  ivays  by  which  a  man  may  become  a 
villein-— The  means  by  ivlrich  villenage  or  its  effects  may  be  fufpended. 

L    E    C    T.        XXV. 

The  methods  invented  to  deftroy  villenage — The  bent  of  the  law  of 
England  towards  liberty— -Copyhold  tenants — Tenants  in  ancient  demefnc. 

L    E    C    T.        XXVI, 

The  condition  and  flatc  of  laivs  in  England  during  the  Saxon  times — 
The  military  policy  of  the  Saxons  not  fo  perfect  as  that  of  the  Franks — 
Their  Kings  elective — The  division  of  the  kingdom  into  jbircsy  hundreds, 
find  tithings — The  adminiftration  of  j'.ijiicc — The  county  court — The  hun- 
dred court  and  court  leet—Tbe  court-baron — The  curia  regis — Method  of 
trial  in  the  Saxon  courts — The  ordeal — The  -waging  oflaiu — The  trial  by 

battle — Juries* 

L    E    C    T. 


xiy  C    O    N    T    E    N    T    S. 

L    E    C    T.        XXVII. 

The  punijbnent  of  public  crimes  and  private  'wrongs  among,  the 
Saxons — The  ranks  of  men  among  the  Saxons — The  difficulty  of  after- 
taining  the  nature  of  the  Saxon  eflates,  and  the  tenures  by  ivhich  they 
'were  held — Qbfervations  to  prove,  that  the  Saxon  lands  'were  in  general 
allodial.. 

L    E    G    T.        XXVIIL 

The  Saxons,  though  their  lands  in  general  were  allodial^  'were  not 
ftrangers  to  military  benejices  for  life — The  alterations,  introduced  by. 
William  the  Norman,  as  to  the  tenure  of  lands  in  England. 

L    E    C    T.        XXIX. 

The  alterations  introduced,  by  William,  as  to  the  administration  of  ju- 
ftice — The  Judges  of  the  Curia  Regis  are  appointed  from  among  the 
Normans — The  county,  courts  decline — The  introduction  of  the  Norman 
language — The  dijlinftion  betivecn  courts  of  record,  and  not  of  record— - 
The  Reparation  of  the  fpiritual  and  temporal  courts'— The  confequences  of 
this  meafure. 

L    E    C    T.        XXX. 

Robert  Duke  of  Normandy,  and  William  Rufus,  difpute  the  fucceflion- 
lo  the  Conqueror — The  Englijh  prefer  the  latter — The  foreft  laivs — The 
cruelty  and  oppreffions  of  William — The  advancement  of  Henry,  the  Conr 
queror's  yotmgeft  fen,  to  the  crown  of  England — He  grants  a  charter — 
The  nature  of  this  charter — His  difpute  -with  Anfelm  concerning  Invefti- 
tures — The  celibacy  of  the  clergy — State  of  the  kingdom  under  Stephen. 

LEG    TV       XXXL 

Henry  II.  fucceeds  to  the  crown — The  reformation  of  abufcs — Altera- 
tions introduced  into  the  Englifi  laiu — The  commutation  of  fervices  into 
motley — Efcuage  or  Scutage — Reliefs — Afizes  of  novel  diffeifin,  and  other, 
afiizes. 

L  E  c  T.     xxxn.. 

The  injlitution  of  fudges  itinerant,  or  Jujlices  in  Eyre — The  advan- 
tages attending  it—Thejurifdiftion  of  thefe  Judges — Their  circuits — The 

prefent 


CONTENTS.  xv 

f.rcfcnt  form  of  tranflitting  the  county  bufinefs — The  divifwn  of  the  Curia 
:s  into  four  courts—The  jurifdiclion  of  the  court  of  King's  Bench. 

I,    E    C    T.        XXXIII. 

The  juriflliftion  of  the  high  court  of  Chancery — The  chancellor,  a 'very 
considerable  officer  in  the  Curia  Regis — The  repeal  of  letters  patent,  impro- 
viJcntly  iffiicd  to  the  detriment  of  the  King  or  the  fubjetf,  a  branch  of  the 
jurifditfiun  of  the  court  of  Chancery — The  Chancery,  affijlant  to  tie  Ex- 
chequer in  matters  of  the  Kings  revenue — Other  branches  of  the  bufincfi 
of  this  court. 

L    E    C    T.        XXXIV. 

The  court  of  Common  Bench  or  Common  Pleas — The  jurifdiclion  of  ibis 
court — A  ft  ions  real,  per  final,  or  inixt — The  court  of  Exchequer — The 
juriflliftion  of  this  court — Exchequer  chamber — The  judicature  of  Parlia- 
ment. 

L    E    C    T.        XXXV. 

Henry  IPs  difpute  ivith  Becket — The  conjlitutions  of  Clarendon — The 
murder  of  Becket. 

L    E    C    T.        XXXVI. 

The  rebellions  of  Henrys  fens — He  is  fucceeded  by  Richard  L — The 
(leps  taken  at  this  period  to-war ds  fettling  the  fucceffion  to  the  kingdom— 
The  laws  ofOleron—  Accejjlon  of  John — His  cruelty  and  opprefjions* 

L    E    C    T,        XXXVII. 

Joints  difpute  ivith  the  court  of  Rome— Cardinal  Langton  promoted 
to  be  Archbijbop  of  Canterbury — Pope  Innocent  lays  the  kingdom  under  an 
inter  die! — John  is  excommunicated — His  fubmiffion  to  Innocent — The  dip 
contents  of  the  Barons — Magna  charta  and  charta  de  Forejla — An  ex- 
amination of  the  £>ueftiony  Whether  the  right r  and  liberties  y  contained  in 
thefe  charters)  are  to  be  considered  as  the  antient  rights  and  liberties  of 


XVI 


the  nation,  or  as  the  fruits  of  rebellion,  and  revocable  by  the  fuccejfirs  of 
John  ? 

L    E    C    T.        XXXVIII. 

The  minority  of  Henry  III. — Ecclefiaflical  grievances — T!K  difpenfing 
power — The  canon  law — Confirmation  of  Magna  Cbarta — A  commentary 
on  Magna  Chart  a,  in  fo  far  as  it  relates  to  what  now  is  laiv. 

L  E  C  T.     XXXIX,  XL,  XLI,  XLII,  and  XLIIL. 
Continuation  of  the  commentary  on  Magna  Cbarta*. 


A     D    I    S- 


A 

DISCOURSE 


CONCERNING      THE 


LAWS   AND   GOVERNMENT 


O      F 


ENGLAND- 


THE  lafl  conqnefl  attempted  under  the  Roman  Republic 
was  that  of  Britain.  Julius  Csefar,  on  the  pretence  that 
its  dates  had  given  affiftance  to  the  Gauls,  but  chiefly  from  a 
motive  of  glory,  carried  the  Roman  Eagles  into  a  country  from 
which  he  was  to  retreat  with  dilgrace.  It  required  a  length  of 
time,  and  a  fucceffion  of  able  Proconfuls  to  reduce  to  fubjec- 
tion  Communities  of  fierce  and  independent  warriours  ;  and 
policy  effected  what  could  not  be  operated  by  arms.  The 
Britains  were  debauched  into  a  refemblance  with  a  mod  cor- 
rupted people.  They  renounced  the  fatigues  of  war  for  the 
blanclifhments  of  peace.  They  forfook  their  huts  for  palaces ; 
affected  a  cofllinefs  of  living,  and  gave  way  to  a  feducing  volup- 
tuoufnefs.  They  funk  into  an  abject  clebafement,  without  ha- 
ving run  that  career  of  greatnefs,  which,  in  general,  precedes 
the  decline  of  nations  ;  and,  when  they  were  trained  to  an  op- 
preiTive  yoke,  the  Romans  found  it  necellary  to  abandon  them. 
The  imprellion  which  the  barbarous  tribes  had  made  upon  the 
Empire  required  the  prefence  of  the  diftant  legions  i . 

a  The 

i .  Ccefar  tie  bell.  Gal.  lib.  4,  c.  1 8.    Tacit,  vit.  Agric.   Dion  Caflius,  vit.  Sever! 


il  DISCOURSE  ON  THE  LAWS  AND 

_y 

The  liberty  which  the  Romans,  on  their  departure,  prefentecl 
to  the  Britains,  could  not  be  enjoyed  by  them.  Timid  and 
daftardly,  they  fled  before  the  Picls  and  Scots,  and  allowed 
their  country  to  be  ravaged  by  a  cruel  and  undifciplined  enemy. 
Amidft  the  fugged  ions  of  their  fear,  they  forgot  every  principle 
of  policy  and  of  prudence  ;  they  called  to  their  defence  a  fcr 
reign  valour.  The  Saxons  were  invited  to  fight  their  battles  ; 
but  they  acled  not  long  as  protectors.  They  were  allured  by 
the  profpecl:  of  compleating  a  fettlement  in  this  ifland ;  and  the 
total  ruin  of  its  inhabitants  was  projected.  Defpair  gave  a  tem- 
porary vigour  and  union  to  the  Britains.  They  were  unable, 
however,  to  refid  a  people,  accuftomed  to  viclory,  and  directed 
by  experienced  commanders.  The  valiant  and  magnanimous 
fell  by  the  fword  ;  the  ignoble  fubmitted  to  an  ignominious  fer- 
vitude  :  Wales  afforded  a  retreat  to  fame ;  and  others  found  fhel- 
ter  in  Armorica  2, 

But,  if  the  Saxon  conqueft  was  ruinous  to  the  Britains,  it  was 
yet  attended  with  confequences  which  were  lading  and  impor- 
tant. The  fun  of  liberty  reviflted  the  ifland,  and  difplayed  it- 
felf  with  uncommon  ludre.  The  Saxons,  independent  in  their 
original  feats,  fubmitted  not  to  tyrants  in  their  new  fituation. 
They  laid  the  foundation  of  a  political  fabric,  the  mod  valuable 
that  has,  at  any  time, appeared  among  men;  and  which, though 
fhaken  by  violent  revolutions,  a  train  of  fortunate  circumdances 
has  continued  down  to  the  prefent  times.  Fluctuations  have 
taken  place  between  prerogative  and  liberty  ;  but,  accident  and 
wifdom  have  dill  confpired  to  preferve  us  from  the  fate  of  the 
other  kingdoms  of  Europe. 

During 

2.  Bede,  lib.  i. 


GOVERNMENT  OF  ENGLAND.  iii 

During  the  exigence,  however,  of  the  Heptarchy,  the 
kern  to  have  departed  little  from  their  original  condition  of  So- 
ciety. The  ferocious  picture  which  Tacitus  lias  drawn  of  the 
Germans,  is,  with  u  few  exceptions,  characterise  of  them.  If 
we  admire  their  heroifin,  we  are  fhocked  with  their  cruelty  ; 
and  if  we  are  in  love  with'  their  democratical  maxims,  we  ninit 
fbmetimes  regret  their  contempt  of  juflice  and  of  order.  The 
molt  important  innovation  introduced  into  their  manners  dur- 
ing this  xra  was  their  convcrfion  to  chriflianity.  But  their  ac- 
quaintance with  this  mode  of  faith  failed  to  be  productive  of 
beneficial  consequences.  As  they  received  it  from  the  corrupted 
fburce  of  the  Church  of  Rome,  it  involved  them  in  endlefs  and 
idle  difputes.  It  detracted  from  the  vigour  of  their  understanding, 
by  turning  their  attention  from  civil  precautions,  and  the  arts  of 
policy,  to  the  relics  of  faints,  and  the  feverities  of  religious  dif- 
eipline.  The  power  derived  from  it  intoxicated  ecclefiaflics  : 
They  prefumed  to  interfere  in  affairs  of  ftate ;  and,  a  founda- 
tion feemed  already  to  be  laid  for  Subjecting  the  ifland  to  the 
dominion  of  the  Roman  Pontiffs* 

When  the  Saxon  kingdoms  were  confblidated  into  one  ftate 
under  Egbert,  improvements  were  made  in  civility  and  know- 
ledge. The  incurfions  of  the  Danes,  and  the  difbrders  refult- 
ing  from  them,  called  forth  the  ability  and  the  wiSclom  of  the 
Anglo-Saxon  Princes.  Alfred,  notwithstanding  the  other  im- 
portant transactions  of  his  reign,  found  leifiire  to  frame  into  a 
code  the  laws  of  his  predeceflbrs,  and  thofe  Germanic  cuftoins 
which  had  retained  their  influence.  King  Edgar  has  likeways 
come  down  to  us  with  the  character  of  an  able  legiflator.  The 
eftabliShment  of  the  Danes  in  England  gave  occaf Ion  to  new 
uSages  and  new  laws  ;  but  thefe  were  neither  many,  nor  confi- 

derable. 

3.  Bede,  lib.  3.  and  5,. 


iv  DISCOURSE  ON  THE  LAWS  AND 

derable  4.  The  ability  of  Canute  did  not  allow  him  to  make 
difiindtions  between  Ms  Danifh  and  his  Englifh  fubjefts  ;  and 
the  fceptre  was  not  long  in  returning  to  a  prince  of  the  Saxon 
line.  No  Monarch  was  ever  more  acceptable  to  a  State  than 
Edward  the CoiifefTbr ;  and,  though  he  had  rather  the  qualities  of 
a  faint  than  thofe  of  a  king,  his  laws  have  been  highly  extolled. 
They  were  ftrenuoufly  contended  for  during  the  adminiflration 
of  the  earlier  Norman  princes  ;  they  kept  their  ground  in  op- 
pofition  to  the  clergy  and  the  imperial  inftitutions  ;  and  they 
furniflied  the  foundation  of  what  is  termed  the  Common  Law 
of  England  5. 

In 

4.  The  division  of  laws,  during  the  Anglo-Saxon  period,  into  Weft-Saxon-lage, 
Mercen-lage   and  Dane-lage,   was  not  of  any  importance.     Thefe   differed   not 
ellentially  from  one  another.     "  Our  Saxons,  fays  Sir  Henry  Spelman,  though  di- 
t(-  vided  into  many  kingdoms,  yet  were  they  all  one  in  effect,  in  manners,  laws  and 
"  language  :  So  that  the  breaking  of  their  government  into  many  kingdoms,  or 
"  the  reuniting  of  their  kingdoms  into  a  monarchy,  wrought  little  or  no  change 
"  amongft  them  touching  laws.     For,  though  we  talk  of  the  Weft-Saxon-law,  the 
"  Mercian- law  and  the  Dane-law,  whereby  the  weft  parts  of  England,  the  middle 
"  parts,  and  thofe  of  Norfolk,  Suffolk  and  the  north,  were  feverally  governed  ;  yet 
"  held  they  all  an  uniformity  in  fubftance,  differing  rather  in  their  mulfls  than  in 
"  their  canea ;  that  is,   in  the  quantity  of  fines  and   amerciaments,   than  in  the 
"  courfe  and  frame  of  juftice."     Rel'tg.  Spelrn.  p.  49. 

5.  King  Ed  ward's  laws  were  compiled  from  thofe  of  former  princes,  and  aboliih- 
ed  any  little  peculiarities  which  difiinguUhed  the  Weft-Saxon,  Mercian  and  Daniih 
laws,  fubjeding  the  whole  kingdom  to  a  common  law.     His  code,  accordingly,  was 
termed  lex  Anglic,   or  lex  terra.     No  correct  copy  of  it  has  defcended  to  us. 
Thofe  regulations,   which  pafs  under  his  name  in  the  editions  of  the   Saxon-laws 
by  Lambard  and  Wilkins,  have  evidently  fome  interpolations.     Traces  of  them 
are  to  be  feen  in  Hoveden  and  Knyghton ;  and  remains  of  them  are  likeways  to  be 
found  in  the  laws  of  William  I.     From  the  time  of  this   Prince  to  that  of  King 
John,  they  Continued,  with  the  addition  of  fome  Norman  laws  and  cufioms,  the 
law  of  the   land.     Prxciplmus,   fays  William,   ut  omnes  habeant  et  teneant  leges 
Ed-war di  regls  In  omnibus  rebus }  adauflls  his  quas  conftituimus  adirtllitatem  'Anglvrum. 

Leg. 


GOVERN  M  K  N  T  OF  E  N  CJ  L  AND.  v 

In  no  portion  of  the  Anglo-Saxon  period  docs  the  power  of 
the  Sovereign  appear  to  have  been  exorbitant  or  formidable. 
The  enaction  of  Laws,  and  the  iiipreinc  fway  in  all  matters, 
\vln  •:!;<!•  fivil  or  eccldiaflical,  \\nv  v<  (Ud  in  tht'Wittenagcmrt, 
or  great  National  Allembly  6.  This  council  confifled  of  King, 
Lords,  and  Commons,  and  exhibited  a  fpecies  of  government, 
of  which  political  liberty  was  the  neccflary  confeqncnce  ;  as  it-, 
component  parts  were  mutually  a  check  to  one  another.  The 
free  condition  of  the  northern  nations,  and  the  peculiarity  of 
their  lituation  when  they  had  made  conqueils,  gave  rife  to  this 
valuable  iiheme  of  admin  iftration,  and  taught  the  politicians  of 
Europe  uhat  was  unknown  to  antiquity,  a  diftmclion  between 
clelpotilhi  and  monarchy. 

The  executive  power  remained  with  the  crown  ;  but  it  was 
the  united  aflent  of  the  three  eftates  which  conflituted  the  legiP 
lature.  The  Lords  were  fpiritual  as  well  as  temporal  ;  for  not- 
withftanding  that  the  Ecclefiaftics  preached  humility,  and  the 
contempt  of  private  intereft,  they  had  been  feized  with  ambi- 
tion and  the  love  of  fuperiority  7.  The  people  exercifed  an 

authority 


.  Guliel.  ap.  Wilkins,  p.  229.  By  the  influence  of  the  Barons  tmd'er  the  laft 
Prince,  they  were  drawn  up  in  the  form  of  Magna  Chart  a.  For  the  great  charter 
was  not  what  fome  partial  writers  have  reprefentecl  it,  a  concefllon  of  privileges 
extorted  by  violence,  but  a  declaration  of  the  principal  grounds  of  the  antient  and 
fundamental  laws  of  England,  and  a  correction  of  the  defers  of  the  common  law. 
See  Lord  Coke  2  /«/?.  and  Lord  Lytteltori's  hift.  of  Henry  II.  vol.  /.  p.  42.  526. 

6.  Wtftenagemst,  imports  a  council  of  wife  men  ;  the  Saxon  word  luitta  figni- 
fying  a  wife  man  ;  and  the  Britiih  word  gemot  exprefling   a  fynod   or  council. 
During  the  Heptarchy,  each  kingdom  had  its  Jl'lttt-nagemot. 

7.  The  lay  lords  were  the  earls,  thanes,  and  other  nobility  of  the  kingdom. 
The  fpiritual  lords  were  the  biihops  and  dignitaries  of  the  church,  whole  pofleffi! 
ons  were  held  in  Frankalmoigne.     After  the  conqueft,  they  were  fubjecled  to  mi- 

litary 


vi  DISCOURSE  ON  THE  LAWS  AND 

authority  that  was.  important  and  ample.  The  counties  ap- 
peared by  their  knights,  and  the  cities  and  boroughs  by  their 
citizens  and  burgefles  ;  the  Commons,  as  at  this  day  conilitu- 
ted,  being  included  under  the  appellation  of  the  ivites  or  fapien- 
tes,  who  are  always  mentioned  as  a  part  of  the  Anglo-Saxon 
parliament  8.  The  aflertors  of  prerogative,  indeed,  have  affirm- 
ed 

litary  fervice  and  held  by  barony.  What  may  feem  extraordinary,  Abefles  were 
alfo  in  ufe  to  fit  in  the  Saxon  Wrttenagemots.  In  Wightred's  great  council  at 
Beconceld,  anno  694.  the  Abefles  fat  and  deliberated,  and  feveral  of  them  fubfcrib- 
ed  the  decrees  made  in  it.  Spel.  cone.  vol.  /.  The  abefTes  appeared  alfo  in  Ethel- 
wolf's  parliament  at  Winchefter  anno  855.  Ingulph,  edit.  Savil.  862.  And  king 
Edward's  charter  to  the  abbay  of  Croyland  was  fubfcribed  by  an  abbefs.  Even 
in  the  time  of  Henry  III.  and  in  that  of  Edward  I.  it  appeacs  that  four  ab- 
belles  were  fummoned  to  parliament ;  thofe  of  Shaftfbury,  Berking,  St.  Mary  of 
Winchefter,  and  of  Wilton.  Tit.  bon.  p.  729.  and  Whit  clock's  notes  upon  the  king's 
ivritfor  chwjing  members  of  Parliament,  vol.  I.  p.  479.  480. 

8.  The  preambles  of  the  Saxon  laws  exprefs  an  anxiety  to  pleafe  the  people^ 
and  allude  to  their  confent  in  enacting  them.  The  laws  of  king  Ina  begin  thus  : 
Ego  Ina  Dei  gratia  Occiduorum  Saxonum  Rex,  cum  conjilio  et  cum  doffrina  Cenred<e 
patris  mei,  et  Heddx  Epifcopi  met,  et  cum  omnibus  meis Jenatoribus,  et  fenioribus  S.A.- 
PIENTIBUS  POPULI  MEI,  et  multa  etiam  focietate  miniftrorum  Dei,  confultabam  de 
falute  anima  noftr<ey  et  de  fund  amenta  regnt  noftri,  ut  jufta  leges,  et  jufta  ftatuta  per 
ditionem  noftram  ftabilita  et  conftituta  ejfent,  ut  nullus  fenator  necfubditus  mfter  poft 
hxc  has  noftras  leges  infringeret.  See  LL.  dnglo-Saxon,  ap.  Wilhms,  p.  14.  The 
preambles  to  the  laws  of  the  other  princes  are  nearly  fimilar ;  and  thofe  of  Ed- 
gar, Ethelred  and  Canute,  may  ferve  as  additional  examples,  i.  Leges  Eadgari 
regis.  Hoc  et  inftitutum  quod  Eadgarus  cum  SAPIENTUM  SUORUM  conjilio  infiituit 
in  gloriam  Dei,  et  fibi  ipfi  in  dignitatem  regiam,  et  in  ut  Hit  at  em  omni  populbfuo.  2. 
Leges  ^Lthelredi  regis.  Hoc  eft  confilium  quod  JEthelredus  rex,  et  SAPIENTES  EJUS 
confultaverunt  ad  emendationern  pacts  omni  populo  Wodftvci  in  regione  Merciorum,  fe- 
cundum  Angl'ne  leges,  3.  Leges  Cnuti  regis.  Hoc  eft  conjilium  quod  Cnutus  rex, 
tot  ins  Anglix  et  Danorum  et  Norwegorum  rex,  cum  SAPIENTUM  SUORUM  conjlliofan- 
civit,  in  laudem  Dei,  et  fibi  ipfi  in  ornamentum  regium,  et  ad  utilitatem  populi ;  et  hoc 
eratfacris  natalibus  domini  noftri  Wintoni*.  See  Wilkins,  p.  76.  102.  126. 

In  the  8th  law  of  Edward  the  Confeflbr  we  read,  H<ec  conceffafunt  a  rege,  baro- 
nibus  et  POPULO  ;  and  in  his  35^1  law  we  have  the  following  words:  Hoc  enim 

fatfum 


GOVERNMENT  OF  ENGLAND. 

cd  that  thcie  were  judges  or  men   Skilled  in  the  law;  but 

opinion 

fjflinn  fu'it  per  COMMUNE  CONSILIUM  et  ASSP.NSUM  omnium  epifcoporum,  prim  i- 
pnm,  procerum,  comitttm,  ft  omnium  SAPIKNTU\T  fcniorum  et  POPULORUM  totiur 
n't,  ft  per  prteceplum  regls  hue  pr*difli.  See  Wilkins,  p.  198.  The  law*  of 
Kd  \sard  arc,  I  know,  to  be  read  with  diftruft;  but  they  are  allowed  to  contain 
genuine  relics  of  that  prince ;  and,  in  the  prefent  cafe,  there  feems  no  rea- 
fun  for  fulpicion.  Their  appeal tf  confequence  to  the  ajjent  of  the  people  muil  be 
allowed  to  be  of  authority.  For,  if  fuch  ajjent  was  not  known  and  believed  in 
that  age,  how  is  it  poflible  that  they  could  appeal  to  it  ?  The  advocates  for  the 
late  origin  of  the  houfe  of  commons  will  not  furely  fuppofe,  that  the  ConfeiTor 
alluded  prophetically  to  tranfactions  wliich  were  not  to  happen  till  the  reigns  of 
Henry  III.  and  Edward  I. 

In  the  Jlirroire  de  Jufilces,  it  is  exprefsly  faid,  that  no  king,  during  the  Saxon 
times,  could  change  his  money,  nor  enhance  nor  impair  it,  nor  make  any  money 
but  of  filver,  without  the  fiffcnt  of  the  Lords  and  all  the  COMMONS.  Part  of  thi 
book  is  conceived  by  Sir  Edward  Coke  to  have  been  written  before  the  conqueft ; 
and  additions  were  made  to  it  by  Andrew  Horn  in  the  reign  of  Edward  I.  from 
old  MSS.  the  authors  of  which  muft  have  feen  ancient  rolls  and  records.  Mat- 
ter, alfo,  from  more  exceptionable  materials,  it  is  to  be  thought,  was  fuperadded 
by  him.  The  book  is  notwithstanding  of  confidera'ole  weight  and  authority. 
Mirroire  des  Jujiices,  cap.  i.  feel.  3.  Atkyns  on  the  power  of  parliament . 

Concerning  the  high  antiquity  of  the  commons,  Sir  Edward  Coke  is  clear  and 
explicit ;  and  he  has  founded  chiefly  his  opinion  on  the  ancient  tract,  which  bears 
this  title  :  Modus  quomodo  parliamentum  regis  Angl't*  et  ANGLO  RUM  QUORUM  ,teneba- 
lur  TEMPORIBUS  REGIS  EoWARDi,  ///'/'  REGIS  Ethelredi,  qui  modus  recltatus  fult 
per  difcretiofes  regni  cor  am  U'iUlelmo  duce  Normannl*  conqueftore  et  rege  Angltx, 
ipfo  conqucfiore  hoc  pr<ecJpiente,  et  per  ipfum  approbatus,  et  fuis  temporibus  et  tem- 
ponbus  fuccejjorum  fuorum  regum  Angli*  ujhatus.  Other  authors  befide  Lord 
Coke  have  paid  great  refpeft  to  this  treatife.  It  is  to  be  acknowledged,  however, 
that  Mr  Selden  has  demonftrated  that  this  traft  could  not  poffibly  be  of  the  age  of 
the  Confefibr,  from  its  employing  terms  which  were  not  in  ufe  till  lonp  after. 
But  this  does  not  wholly  derogate  from  its  force  as  to  the  point  in  queftion. 
For,  allowing  it  to  have  been  written  in  the  reign  of  Edward  III.  the  period  whicli 
with  great  probability,  fome  writers  have  affigned  to  it,  it  yet  proves  that  the  fenfe  of 
that  period  was  full  and  ftrong  with  regard  to  the  antiquity  of  the  conftitution,  as 
confiding  of  king,  lords  and  commons  ;  a  circumftance  which  muft  have  great 
weight  in  oppofition  to  thofe,  who  would  make  us  believe,  that  our  conftitution, 

as 


vni  DISCOURSE  ON  THE  LAWS  AND 

opinion  they  fupport  by  very  exceptionable  evidence  9  :  And  it 

has 

as  fo  formed,  was  unknown  till  the  times  of  Henry  III.  and  Edward  I.    4  Inftitute^ 
p.  2.  12.     Sehlen,  tit.  hon.  p.  739.  743. 

"  In  the  time  of  king  Canutus,  fays  Whitelocke,  to  a  charter  then  graunted  to 
"  the  monaftery  of  St.  Edmond's  Bury  (probably  in  a  publique  councell)  after  the 
"  fubfcriptions  of  the  queen  and  dukes,  followes,  f  Oflaus,  KNIGHT,  /  Thored, 
"  KNIGHT,  /  Thurkell,  KNIGHT,  and  fo  of  others.  How  many  thefe  were,  or  how 
"  for  feveral  counties,  doth  not  appear;  nor  in  that  parlement  of  the  fame  king 
"  (for  fo  is  teftified  by  the  difcription  of  it)  where  it  is  fayd,  that  the  king  calling 
"  all  the  pr (flats  of  his  kingdoms,  and  the  nobles,  and  great  men  to  his  parlement, 
"  there  were  prefent  biihops,  abbots,  dukes,  carles,  with  many  MILITIBUS,  butte 
"  the  certain  number  is  not  extant;  nor  of  thofe  which  are  mentioned  in  the  par- 
"  lenient  of  Edward  the  Confeflbr,  where  after  the  king,  queen,  archbiihops,  bi- 
"  fliops,  abbots,  king's  chapleins,  Thames,  KNIGHTS  are  reckoned  in  that  parle- 
u  ment."  Notes  upon  the  king's  writ,  vol.  i.  p.  437. 

Lambard,  Dugdale,  and  other  antiquaries,  produce  a  very  ftrong  evidence  of  .the 
antiquity  of  the  reprefentation  of  boroughs,  by  evincing,  "  That  in  every  quarter 
"  of  the  realm,  a  great  many  boroughs  do  yet  fend  burgefles  to  parliament,  which 
"  are  neverthelefs  fo  ancient,  and  fo  long  fmce  decayed,  and  gone  to  nought,  that 
"  it  cannot  be  mewed  that  they  have  been  of  any  reputation  at  any  time  fmce  the 
"  Conqueft;  and  much  lefs  that  they  have  obtained  this  privilege  by  the  grant  of 
"  any  king  fucceeding  the  fame.  So  that  the  interell  which  they  have  in  parlia- 
"  ment  groweth  by  an  ancient  ufage  before  the  Conqueft,  whereof  they  cannot 
"  ihew  any  beginning."  Lambard  Arcbeiw,  p.  256.  257.  Coke  Epift.  9.  Rep. 
Dugdale,  Jurld.  p.  15. 

This  matter  receives  confirmation  from  what  we  are  told  of  the  boroughs  of  an- 
cient demefne.  "  Thefe,  lays  Whitelocke,  were  tenants  of  the  demefne  lands  of 
"  William  I.  and  of  Edward  the  Confeflbr ;  who  (to  the  end  that  they  might  not 
"  be  hindered  from  their  bufinefs  of  hulbandry  of  the  king's  lands)  had  many  pri- 
"  vileo-es,  whereof  one  was,  that  they  ihould  not  be  compelled  to  ferve  in  parlia- 
"  ment.  Another  was,  that  they  ihould  not  contribute  to  the  wages  of  KNIGHTS 
"  OF  THE  SHIRE.  Which  privileges  they  flill  enjoy,  and  had  their  beginning  in 
"  the  times  of  William  I.  and  of  the  Confelfor,  whofe  tenants  they  firit  were,  as 
"  appears  in  the  book  of  Dome fd ay,  and  is  a  flrong  proof,  that  KNIGHTS  and  BUK- 
*'  GESSES  were  then  in  parliament."  Notes  upon  the  Kings  Writ,  vol.  u.  p.  139. 
See  alfo  the  22d  note  to  the  prefent  tracl. 
9.  The  law  was  not  then  a  particular  profeflion* 


GO*   ; :  R  N  M  E  N  T  OF  E  N  G  L  A  N  D. 

has  !H(,I  c  o  :ijet  -lured,    with   no  meaiure  of  propriety,    by  fonie 
npromifing  writers,  that  all  the  more  cbhfiderable  proprietors 
of  land  hail  a  title,  without  any  election,  to  ^ivc  their  %otes  ill 
the  Wittenagemot  I0. 

In  inferior  nilemblies,  and  in  the  forms  of  judicial  proccc -d- 
i-.iarks  arc  alfo  to  be  traced  of  the  power  of  the  people, 
and  of  a  limited  adminiflration.  The  hundred  and  county 
courts  were  admirably  calculated  for  the  protection  of  the  fub- 
jcvt.  They  were  compolcd  of  freeholders,  who  were  bound,  un- 
der a  penalty,  to  aflcmble  at  Hated  times  ;  and  who,  with  the 
hundreder,  carl  and  bifhop,  gave  decifion  in  all  matters  of  civil, 
criminal,  or  ecclcflaflical  import.  A  very  powerful  obftruclion 
was  thus  created  to  the  opprelfions  of  the  great.  And,  in  the 
im'litution  of  ajw/j,  our  anceitors  poflefled  a  bulwark,  the  mofl 
efficacious  and  noble  that  human  wifdom  has  ever  deviled  for 
the  fecurity  of  the  peribns  and  poflellions  of  menu. 

£  Nor 

10.  On  the  following  record  in  the  regifter  of  Ely,  this  notion  feems  to  be 
founded.  Abbas  H'ulfrlcus  habitlt  fratrem,  Guthmundum  vocabuh  ;  cui  fliam  pr<c- 
potentis  viri  in  matrlmonlum  cwjungi  par  aver  c.t  ;  fed  qwnlam  Hie  XL.  hidaritmterrx 
dwnnium  minus  obtineret,  licet  nobilis  ejjlt,  inter  proceres  TUMC  nuncvparl  non  pot  fit. 
It  is  fomcwhat  remarkable,  that  Mr  Hume  is  among  thofe,  \\'ho,  retting  on  this 
foundation,  would  make  us  conceive,  that  a  perfon  \vho  had  40  liides  of  land, 
could,  without  being  noble,  give  his  voice  in  the  -Wittenagemot.  /////.  of  Eng. 
vol.  I.  p.  145.  The  paflage, however,  properly  underflood,  ferves  to  iLew,  dmt,  in  the 
courfe  of  time,  the  attendance  of  the  Nobles  in  parliament,  having  been  deemed  an 
expenfive  fervice,  a  law  was  made  to  relieve  thofe  of  them  from  it  who  were  not 
pofleffed  of  40  hides  of  land.  The  reader  may  confult  hijt.  Elienf.  c.  36.  40.  ap. 
Gale,  the  authority  appealed  to  by  Mr  Hume. 

ii.  It  is  perhaps  impofiible  to  afcertain  the  sera  of  this  invaluable  inftitu- 
tion.  It  lofes  itfelf  in  a  diftant  antiquity.  The  Saxon  laws  mention 
it  as  a  known  invention.  See  L  /,.  Ethelr.  c.  4.  Senat.  Crmfult.de  Mrmt.  Wai. 
c.  3.  ap.  H'ilkins.  See  alfo  Nicolfon,  Pr*fat.  ad  Leg.  Jnglo-lax.  Speln?:  Gk{f. 
and  Coke's  ift  Inftltute.  Olaus  Wormius  traces  it  to  a  remote  age  amcng  the 

Danes  ; 


x  DISCOURSE  ON  THE  LAWS  AND 

Nor  was  the  condition  of  thofe  times  fo  entirely  deilitute  of 
grandeur  as  (bme  hiftorians  have  been  fond  to  aflert.  Ever* 
in  the  age  of  Tacitus,  London  was  a  port  not  unknown  to  navi- 
gators and  traders  J^;  and  we  have  the  authority  of  Bede,  that 
England  abounded  at  an  early  period  with  cities  which  were 
wealthy  and  populous  J3.  Alfred  was  particularly  attentive  to 
encourage  induftry,  trade  and  manufactures  ;  and  even  import- 
ed the  luxuries  of  life  from  the  moil  diftant  countries  *4.  It 
was  a  law  of  Athelftane,  that  the  merchant,  who  had  perform- 
ed at  his  own  expence  three  long  and  hazardous  voyages,  mould 
be  invefled  with  nobility  15.  Civility  and  knowledge,  commerce 
and  wealth  increafed  under  Edgar,  whofe  ability  and  affable 
manners  allured  many  foreigners  to  his  court ;  and  affairs  did 
not  degenerate,  nor  was  England  lefs  refpeclable  under  the 
peaceful  and  fortunate  adminiilration  of  Edward  the  Confeflbr. 

But  the  beautiful  pre-eminence  on  the  fide  of  the  people,, 
enjoyed  during  the  Saxon  times,  was  foon  to  be  violated.  The 
mvafion  of  the  duke  of  Normandy  was  about  to  introduce  fan- 

guinary 

Danes;  and  Stiernhook  among  the  Swedes.     Monument.  Dan.  lib.  i.e.  10.     DC 
Jure  Sueon.  et  Goth,  vetufto.  c.  4. 

12.  Annal.  lib.  14*  c.  33.     Copid  negotiatorunt  et  commeatuum  maxime  cekbre. 
The  city  of  London  in  the  Danifh  times  was  able  to  pay  L.  11,000  as  its  propor- 
tion of  L.  70,000,  a  tax  then  impofed  on  the  nation.     After,  in  the  life  of  Alfred, 
refers  to  above  1 20  cities,  boroughs  and  villages. 

13.  Lib.  i.     See  alfo  Holingh.  Chron.  p.  192. 

14.  Spelman,  life  of  Alfred,  b.  2.  p.  28.     Malmefb.lib.  2.  c.  4.     A  writer  in 
Du  Chefne  having  occafion  to  mention  the  firft  return  of  duke  William  to  Nor- 
mandy, after  his  invafion  of  England,   has  the  following  paflage  :  Attitlit  quan- 
tum ex  ditione  trium  Galllarum  vix  colligeretur  argentum.  atque  aurum  :   Chart  metalli 
abundantia  multtpliciter    Gallias  terra  ilia    \_Anglia~\    vincit.      Gejl.  Gul.  Conquef.. 
p.  210. 

15.  LL.  Anglo-Saxon,  ap.  Wilkins,  p.  71. 


GOVERNMENT  OF  ENGLAND.  xi 

guinary  and  oppiv'!i\c  liim ••;.  Y\V  niull  not,  however,  with  a 
multitude  of  authors,  be  deceived  into  the  opinion,  that  t 
\\arriourand  {lateihian  atchieved  a  conqueft  over  the  conflitution 
and  the  people  of  England.  He  made  effectual  by  arms  his 
right  of  facceffibn  to  Edward  ;  but  he  received  the  crown  with 
all  its  inherent  properties.  He  took  the  oath  which  had  b< 
prefcribed  to  the  Saxon  princes  ;  he  acknowledged  himlelf  to 
be  equally  under  reflraint  and  limitation  ;  and  he  engaged 
to  preferve  the  immunities  of  the  church,  and  to  aft  according 
to  the  laws.  The  victory  he  obtained  at  HaOings  \\  as  over  the 
peribn  of  Harold,  and  not  over  the  rights  of  the  nation16. 

His 

1 6.  The  ConfefTor  dying  without  iflue,  the  competitors  for  the  crown  were 
Edgar  Atheling,  Harold,  and  duke  William.  The  firft  had  not  capacity  to  fway 
the  fceptre  ;  and  the  fuccefliori  of  kings  was  not  yet  directed  by  veiy  regular 
maxims.  Harold  was  a  fu^ject,  and  in  pofailion  of  no  legal  claim.  William  was 
related  to  Edward,  and  urged  the  deftination  of  that  prince  to  fucceed  him.  On 
thefe  grounds  he  invaded  England  ;  and  by  oppofmg  Harold,  he  meant  to  fecure 
what  was  his  right  of  fucceilion.  His  victory  accordingly  gave  him  the  capacity  of 
a  fucceflbr,  and  not  of  ii  conqueror.  That  the  quarrel  was  perfonal  with  Harold 
may  be  even  conceived  from  the  circumitance  that  duke  William  offered  to  decide 
their  difpute  by  (ingle  combat.  Hale,  hi/L  of  the  com.  law,  ch.v.  Cook,  argument, 
antinonn. 

With  regard  to  William's  right  of  fucceflion,  the  beft  account  appears  to  be  that 
which  is  found  in  Ingulphus,  William  of  Poidiers,  William  Gemetenfis,  and  Orde- 
ricus  Vitalis,  who  were  all  of  them  his  contemporaries.  Thefe  authors  inform  us, 
that  king  Edward  fent  Harold  into  Normandy  to  allure  duke  William  of  his  ha- 
ving dellined  him  to  be  his  fucceflbr  to  the  crown  of  England  ;  a  deilination  which 
he  had  before  obferved  to  him  by  Robert  Archbilhop  of  Canterbury ;  and  which 
appears  to  have  been  made  with  the  content  of  the  national  council.  And  of  this 
relation  there  remains  a  very  curious  and  decilive  -confirmation.  It  is  a  tapeflry 
found  at  Bayeux,  and  fuppofetl  to  be  work  of  Matilda  the  wife  of  duke  William, 
and  of  the  ladies  of  her  court,  in  which  Harold  is  reprefented  on  his  embafly.  See 
A  defcripliin  of  this  tap'ftry  by  Smart  Letbieullier,  E/q:  ftp.  Du  Carrel's  /Jngh-Nor- 
man  antiquities.  It  is  furpriiing,  when  thefe  particulars  are  confidered,  that  Mr 

Hume 


xii  DISCOURSE  ON  THE  LAWS  AND 

His  accelfion,  at  the  fame  time,  it  will  be  allowed,  was  a 
fburce  of  inquietude  and  confufion.  Dominion  is  ever  confe- 
quent  on  property  ;  and  the  forfeited  eftates  of  the  nobility  and 
the  landed  proprietors  who  had  alfifted  Harold,  or  who  had  af- 
terwards joined  in  infurrecYions,  having  been  bellowed  by  him. 
on  his  officers  ;  and  the  high  rank  of  many  of  thefe  requiring 
very  ample  retributions,  a  great  proportion  of  territory  was  nc- 
ceflarily  vetted  in  the  hands  of  a  few.  Nor  was  it  favourable 
to  the  fpirit  of  democracy,  that  the  donations  of  William  were 
governed  by  the  more  extended  notions  of  the  feudal  law.. 

This  polity,  which  was  common  to  the  northern  tribes,  had  not 
been  unknown  to  our  Saxon  anceftors  ;  but,  though  they  were 
familiar  with  grants,  which  were  precarious,  or  which  endured 
for  a  term  of  years,  or  during  the  life  of  the  feudatory,  they 
had  leen  few  examples  of  the  perpetuity  of  the  fief.  They  had 
not  been  accuflomed  to  the  laft  flep  of  the  feudal  progrefs  ; 
but  a  tendency  to  its  eftablifhment  was  obfervable  among  them ; 
and,  if  the  invaflon  of  William  had  never  taken  place,  the  in- 
flitutions  of  this  law  had  yet  arrived  at  their  higheft  point.  He 
only  haftened  what  the  conrfe  of  time  was  about  to  produce  by 
How  degrees  :  It  was  a  refult  of  his  administration,  that,  before 

the 

Hume  mould  have  given  his  fanction  to  the  opinion  that  William's  right  was  en- 
tirely by  war,  and  that  he  mould  have  conceived  that  thofe  'who  refufe  to  this 
prince  the  title  of  Conqueror  mould  reft  folely  or  chiefly  on  the  pretence  that  the 
word  conqueror  is  in  old  books  and  records  applied  to  fuch  as  make  an  acquifition 
of  territory  by  any  means.  Hift.  of  Eng.  vol.  i.  />.  200.  It  is  true,  that  Sir  Henry 
Spelman  and  other  antiquaries  have  Ihown,  that  conqueftus  and  conquijitio  were 
in  the  age  of  duke  William  fynonymous  with  acquijitio;  but  it  is  no  lefs  true, 
that  the  authors  who  refufe  to  duke  William  the  title  of  Conqueror,  reft  on  much 
fuperior  evidence.  It  is  not  with  pleafure  that  I  differ  from  this  great  authority  ; 
but,  no  man  has  a  title  to  enquire  who  will  not  think  for  himfelf ;  and  the  moft 
perfect  productions  of  human  wit  have  their  errors  and  their  blemilhes. 


GOVERNMENT  OF  ENGLAND.  xiii 

the  ciul  of  the  reign  of  Henry  II.  fiefs,   in   their  more  enlarged 
condition,  had  fpreacl  thernlelvcs  over  England1/. 

This  plan  of  political  law,  which  had  been  propitious  to  li- 
berty and  conqueft  in  its  rile,  was  prejudicial  to  both  in  its  de- 
cline ;  and  the  fame  inftitutions,  which  in  one  fhuation,  con- 
dueled  to  greatnefs,  led  the  way  in  another  to  confufion  and 
anarchy18.  The  advantages  which  di/lingiuflicd  their  earlier 
(late,  were  unknown  when  they- had  attained  the  ultimate  flep 
of  their  progreis.  When  fiefs  had  become  hereditary,  the  aflb- 
ciation  of  the  chief  and  the  retainer,  or  the  lord  and  his  vaflal, 
had  no  longer  for  its  fupport,  any  other  tie  than  that  of  land  *9; 
and,  if  the  poflcflbr  of  a  fief  was  lefs  attached  to  his  followers, 
he  was  lefs  dependent  on,  and  lels  connected  with  his  prince. 
The  fyftem  had  loft  the  rircumftances,  which  formerly  had  fit- 
ted it  fb  admirably  for  war  ;  and  the  few  regulations  it  includ- 
ed with  regard  to  peace  and  domeftic  policy,  were  rather  calcu- 
lated for  the  narrow  circle  of  a  nafcent  community,  than  for  the 
complicated  fabric  of  an  extenfive  empire.. 

The  exorbitant  grants,  which  it  was  neceflary  that  duke  Wil- 
liam fliould  make,  the  full  eilablifhment  of  the  perpetuity  of  the 
fief,and  the  confequent  inveftment  of  offices  of  rank  and  of  digni- 
ty in  particular  families,introduced  all  the  difordersof  ariftocracy. 
The  moft  princely  dominion  was  in  general  claimed  and  exer- 
cifed  by  the  great  2°.  They  afliimed  the  right  of  declaring  war 

againft 

17.  See  farther,  an  Historical  Diflertation  concerning  the  antiquity  of  the  Engli/h 
confutation.     Part  2. 

1 8.  Ibid. 

19.  Ibid. 

20.  It  is  a  very  curious  facl,  that  even  fome  of  the  Anglo-Saxon  nobles  had  all 
the  prerogatives  of  earls-palatine.     Alfred,  we  are  told,  put  to  death  one  of  his 

judges 


xiv  DISCOURSE  ON  THE  LAWS  AND 

againft  each  other  of  their  private  authority  ;  they  coined  mo- 
ney ;  and  they  affeded  to  exert  without  appeal  every  fpecies  of 
jurifdiction.  But  while  they  difputed  in  the  field  the  prize  of 
military  glory,  or  vied  in  difplays  of  magnificence  and  gran- 
deur, their  tenants  and  vaflals  were  opprefled  to  fupply  their 
neceffities  ;  and,  amidft  the  unbounded  rapine  and  licentioui- 
neft  which  arofe,  no  legal  protection  was  afforded  to  indivi- 
duals21. There  was.  no  fafety  for  the  helplefs  but  in  aflpciations 
with  the  powerful ;  and  to  thefe  they  paid  attention  and  fervice. 
The  tribunals  of  juftice  became  corrupted  ;  and  deciiions  were 
publickly  bought  from  the  judges.  New  fources  of  opprelfion 
were  thought  of;  and  none  were  infamous  enough  to  be  rejefl- 
ed.  The  feudal  cafualties  were  exacted  with  the  moft  rigorous 
feverity  ;  and,  while  the  kingdom  appeared  to  be  divided  into 
a  thoufand  principalities,  the  people  were  nearly  debafed  into  a 
(late  of  fervility. 

On  a  fuperficial  view,  one  would  be  apt  to  imagine,  that,  in 
regard  to  competition,  the  nobles  of  thofe  times  were  coniider- 
ably  an  overmatch  for  the  prince.  But  Barons,  whofe  chief  re- 
commendations were  the  military  virtues,  who  were  haughty 
and  independent,  and  often  inflamed  againft  each  other  with 
the  fierceft  animofity,  could  not  always  aft  in  a  body,  or  by  fix- 
ed and  determined  maxims.  It  was  not  fb  with  the  fovereign  : 

The 

judges  for  having  patted  fentence  on  a  malefaftor  for  an  offence  which  had  been 
committed  where  the  king's  -dirit  did  not  prtff.  Mirrtire  de  JuJ>  ires,  ch.  v.  And  in 
Selden  we  meet  with  earls  who  had  entirely  the  civil  and  criminal  jurifdicliori  in 
their  own  territories.  Tit.  Hon.  part  2.  ch.  v.  If  there  were  no  other  r  roofs 
than  thefe,  they  would  be  fuiScient  to  evince  the  reality  of  fiefs  among  the  Anglo- 
Saxons. 

21.  Madox,  hift.  of  ^xcheq.  Brent  in  /IngUa  quvdammodo,  fays  an  old  writer 
concerning  the  age  of  Stephen,  tot  reges  vel  potius  tyranni,  quot  dominl  Caftelhrum. 
GuL  Neubrigcnf. 


0  O  V  E  R  x\  M  E  N  T  OF  E  N  G  L  A  N  D.  xv 

The  mafter  of  operations,  which,  dep< 

ulau-  iii  lilenec,  ant!  watch  the  opportimirics  of  action,    'i 
advantages  he  clc-ri\ccl   from  his  iituation  were  powerful.      Not 
to  mention    his  prerogatives   and  me  ;  the   returns  of 

feudal  lerviee  reminded  the  nobility  of  their  fnbjccYion  to  him  ; 
and  the  inferior  orders  of  men,  regarding  theie  as  their  imme- 
diate oppreflbrs,  looked  up  to  him  as  to  their  guardian. 

Amidft  the  lawlefs  confufion  introduced  by  the  ftrugglcs  be- 
tween regal  and  ariftocratical  dominion,  the  conititutional  rights 
of  the  Commons  feem  to  have  received  a  temporary  interruption, 
and  to  have  been  inful  ted  with  a  temporary  diiregard.  Their 
aflembling  in  parliament  grew  to  be  lets  frequent  and  left  effec- 
tual ;  and  for  a  leaibn,  perhaps,  was  altogether  fufpendecl.  But 
notwithflanding  the  difbrder  occafioned  by  thefe  ftruggles,  they 
were  in  time  productive  of  effecls  which  were  beneficial  to  the 
people.  For  if  the  charter,  confirming  their  ancient  liberties, 
which  was  granted  by  Henry  I.  renewed  by  Stephen,  and  con- 
tinued by  Henry  II.  had  remained  without  a  due  and  proper 
force  ;  the  confederacy  of  the  barons  produced  under  king 
John  and  Henry  III,  the  revival  and  the  exercife  ot  the  mod  im- 
portant privileges.  The  MAGNA  CHART  A  brought  back,  in 
fbme  meafure,  the  golden  times  of  the  Confeflbr.  It  appeared 
to  the  barons,  that  they  could  not  expecl  the  affiftance  of  the 
people,  if,  in  treating  with  John,  they  fhould  only  act  for  their 
own  emolument ;  they  were  therefore  careful  that  ftipulations 
fliould  be  made  in  favour  of  general  liberty.  The  people  were 
confidcrcd  as  parties  to  tranfactions  which  mod  intimately  con- 
cerned them.  The  feudal  rigours  were  abated  ;  and  the  privi- 
leges, claimed  by  the  more  dignified  pofleflbrs  of  fiefs,  were  com- 
municated to  inferior  vaflals.  The  cities  and  boroughs  re- 
ceived a  confirmation  of  their  ancient  immunities  and  cu- 

ftoms. 


xvi  DISCOURSE  ON  THE  LAWS  AND 

items'*2.  Provisions  were  made  for  a  proper  execution  of 
juftice  ;  and  in  the  reftraints  affixed  to  the  power  of  the  king 
and  the  nobility,  the  people  found  protection  and  fecurity. 

The  fbvereign,  no  lefs  than  the  nobles,  was  an  enemy  to  pu- 
blic liberty  ;  and  yet  both  contributed  to  eftablifli  it.  Stephen 
gave  the  example  of  a  practice,  which  as  it  ferved  to  enfeeble 
the  ariftocracy,  was  not  forgotten  by  his  fucceilors.  In  the 
event  of  the  reverfion  to  the  crown  of  a  great  barony,  he  gave 
it  away  in  different  divifions  ;  and  the  tenants  in  capite  produ- 
ced in  this  manner,  threw  naturally  their  influence  into  the  (bale 
of  the  commons.  The  partitions,  alfb,  which  the  extravagance 
of  the  nobility,  and  the  failure  of  male-heirs,  introduced  into 
great  eftates,  contributed  to  reftore  the  democracy.  It  was  a 
remit,  likeways,  of  the  madnefs  of  the  Crufades,  that  many  ad- 
venturers to  the  eaft  returned  with  more  cultivated  manners, 
and  more  improved  notions  of  order  and  liberty  ;  and  the  ro- 
mantic glory  of  acquiring  a  renown  there,  had  induced  many 
potent  barons  to  difpofe  of  their  polJedions.  The  boroughs 
haftened  to  recover  the  (hock,  which  they  had  received  durin^ 

o 

the  violent  administrations  of  William  and  of  Rufus23;  and,   if 
charters  of  corporation  and   community  were  granted  feldom 
during  the  reigns  of  Plenry  I.  and  of  Stephen,    they  were  fre- 
quent 

22.  Civltas  London,  habeat  omnes  ANTIQUAS  LIBERTATES  et  LIBERAS  CONSUE- 
TUDINES  SUAS  tain  per  terras  quam  per  aquas.     Prxterea  volumus  et  concedimus 
.quid  OMNES  ALIAE  civiTATFS  et  BURGi  et  viLLAEet  PORTUS  habeunt  OMNES  LI- 
BERTATES,   et  LIBERAS   CONSUETUDINES   SUAS.      Magna  charta  ap.  £lackjlonet 
Law  Trafls,  vol.  II L  p.  21. 

23.  They  had  fufFered  confiderably,  even  from  the  time  of  the  Confeflbr  to  that 
of  Domefday-bodk.     Authors  ought  therefore  to  be  cautious  in  reafoning  back 
from  that  monument  to  the  Saxon  period.     It  is  a  pity,  that  the  furvey  of  the 
kingdom  taken  by  Alfred  did  not  yet  remain.     The  comparifon  of  it  with  that  of 
William  would  lead  to  very  curious  difcoveries. 


C  O  V  E  R  X  M  E  N  T  OF  E  N  G  L  A  N  D. 

nt  Under  Henry  II.   Richard  I.    king  John,   and  Henry  III. 
Durin  jly,  of  the  laft,  and  during  d 

<>f  '  -11.  the  aci|iiilitions  G  i  by  the  Commons  app( 

cd  io  considerable,  that  their  afleinbling  in   parliament  bee; 

.T  or  greater  regularity,  and  they  rofe  to  their  ancient  ini- 
poit.mce  from  the  diibrder  into  which  they  had  been  thrown 
during  agitated  and  turbulent  times. 

The  49th  year  of  flenry  III.  and  the  23d  year  of  Edward  I. 
which  io  many  writers  confider  as  the  elates  of  the  eflablifli- 
nicnt  of  the  Commons,  were,  of  confequence,  nothing  more  than 
memorable  epochs  in  their  hiflory  24. 

c  Under 

Thefirflfummons  of  knights  extant  on  record  is  fuppofed  to  be  in  the  4pth 
of  Henry  III.  But  this,  though  it  were  true,  does  not  prove  that  knights  were  not 
known  till  that  time.  The  writ  does  not  fay  fo  ;  nor  can  it  be  gathered  from  it, 
that  knights  oftbejbire  were  then  newly  eflabliihed.  If  there  remained,  indeed, 
an  uniform  feries  of  records  from  the  earliefl  times,  in  which  there  was  no  me.i- 
tion  of  knights  till  the  age  of  Henry  III.  there  might  thence  arife  a  flrong  argu- 
ment againft  their  antiquity.  But  this  is  not  the  cafe  ;  and  it  happens,  that  in  the 
j 5th  year  of  king  John,  there  is  a  writ  to  the  Jheriff  to  fummon  FOUR  knights 
of  the  county-  15.  Jo.  Rs.  rot.  clauf.pt.  2.  m.  7.  dorfo.  4  difcretos  milites,  de  comi- 
tatufuo,  adhquendum  nohifcum.  There  is  alib  fimilar  evidence,  that  in  the  32d  and 
4 2d  years  of  Henry  III.  knights  made  their  appearance  in  parliament.  Jf'hitehcke, 
fr'otes,vol.  L  438.  vol.  If.  120.  In  the  clofe  roll,  alfo,  of  the  38th  year  of  Henry  III. 
there  is  extant  a  writ  of  fnmmons  directed  to  the  flieriffs  of  Bedfordlhire  and  Buck- 
inghamlhire,  requiring  TWO  knights  to  be  fent  for  each  of  thefe  counties.  Lyt- 
telton,  Htft.  Henry  II.  notes  to  the  id  book,  p.  70.  79.  In  ancient  times,  it  was  ufual 
to  fummon  fometimes  FOUR,  knights,  fometimes  THREE,  fometimes  TWO,  and  even 
fometimes  ONE  knight.  Bnt  from  the  reign  of  Edward  III.  it  has  been  the  conllant 
practice  for  the  Ihenff  to  return  TWO  knights  for  each  county.  Whiteloc&e,  vol.  J.  439. 

The  firft  fummons  directed  to  the  meriff  for  the  election  of  citizens  and  bur- 
gtffis,  is  fuppofed  to  be  in  the  23d  of  Edward  I.  But  in  the  fixth  year  of  king 
John,  fays  Whitelocke,  there  is  extant  on  record  a  writ  to  die  iheriff,  which  men- 
tions "  Bilhops,  earls,  barons,  and  all  our  faithful  people  in  England ;  by  whofe 
"  affent,  lawes  were  then  made."  6.  Jo.  regls,  rot.  clauf.  m.  3.  dors,  et  rot.  pat. 
r>".  2.  dffenfu  archiepif.  &c.  et  omnium  fdeliurn  noftrorum  Angllx.  Notes  on  the 

king's 


xviii  DISCOURSE  ON  THE  LAWS  AND 

Under  Edward  I.    the    conftitution    received   a   {lability  to 
which  it  was  no  lefe  indebted  to  his  military  than  his   civil  ca- 
pacity. 

king's  wit,  vol.  II.  p.  120.  An  ordinance  in  this  year  of  king  John,  directed  to  all 
the  /heriffs  in  England,  is  mentioned  from  the  records  by  Sir  Robert  Cotton,  and 
has  thefe  words  :  Provifum  eft  ASSENSU  Archiepifcoporum,  comitum,  baronum,  et 

OMNIUM  FIDELIUM  NOSTRORUM  A.NGLI  AE.       Cotton,  pofth.  p.  15. 

In  the  conventio  inter  regem  Johannern  et  baroncs  the  people  are  ftated  as  parties ; 
a  circumftance  which  would  not  have  happened  if  they  had  not  been  reprefented. 
ff<ec  eft  conventio  facta  inter  dominum  Johannern  regem  Anglic  ex  una  parte,  et  Ro- 
bert um  fi  Hum  Waltcri  Marefcallum,  &c.  ET  LIBEROS  HOMINES  TOTIUS  REGNI  ex 
altera  parte.  Blackftone's  Edition  of  the  charters,  ap.  Law  Tracts,  vol.  II. 
p.  39.  40.  And  what  confirms  this  notion  is,  that  we  find  the  mayor  of  London 
and  the  conftable  of  Cbefter  in  the  lift  of  thofe  who  were  chofen  confervators  of  the 
public  liberties  in  confequence  of  the  great  charter.  Other  proofs,  likeways, 
of  the  antiquity  of  die  commons  are  to  be  found  in  the  great  charters.  See 
Lyttelton,  Hift.  Henry  II.  Notes  to  the  id  book,  p.  71. 

It  is  alfo  worthy  of  notice,  that  the  25th  of  Edward  I.  which  confirms  the  great ' 
charter,  obferves,  that  it  was  made   by  the   common  aj/ent  of  all  the  realm:  And 
the  i5th  of  Edward  III.  obferves,  that  it  was  made  par  le  roy,fcs  pit-rs,  et  la  com- 
munalte  de  la  terre. 

Nor  muil  it  be  omitted,  that  the  5th  of  Richard  II.  lias  this  remarkable  paifage  : 
The  king  doth  will  and  command,  and  it  is  ajfented  in  the  parliament,  by  the  prelates, 
lords  and  COMMONS,  that  all  and  Jingular  perfons  and  commonalties,  ivhich  from 
henceforth  foall  have  thefitmmons  of  the  parliament,  foall  come  from  henceforth  to  the 
parliaments  in  the  manner  as  they  are  bound  to  do,  and  have  been  accuftwned  -within 
the  realm  of  England  OF  OLD  TIMES.  And  if  any  perfon  of  the  fume  realm,  -which 
from  henceforth  /hall  have  the  faid  fummons  (be  he  archbijhop,  bifoop,  abbot,  prior, 
duke,  earl,  baron,  banneret,  KNIGHT  of  the  JJ.nre,  CITIZEN  of  city,  BURGESS  of 
borough,  or  other  fingular  psrfon,  or  commonalty)  do  abfent  himfelf,  and  come  not.  at 
the  faid  fummons  (except  he  may  reafonably  and  boneftly  excufe  him  to  our  lord  the 
king)  he /hall  be  amerced,  and  other-wife  punijljed,  according  as  OF  OLD  TIMES  hath 
been  ufed  to  be  done  within  the  faid  realm  in  the  faid  cafe.  And  if  any  Jheriff  of  the 
realm  be  from  henceforth  negligent  in  making  his  returns  of  writs  of  the  parliament ; 
or  that  he  leave  out  of  the  faid  returns  ANY  CITIES  OR  BOROUGH  WHICH  BE  BOUMD 

AND  OF  OLD  TIME. WERE  WONT  TO  COME  TO  THE  PARLIAMENT,  he  Jhall  be  amer- 

ced,  or  otherwife  punified  in  the  manner  as  -was  accuftvmed  to  be  done  in  the  faid 
cafe  in  times  paft.     Stat.  2.  cap.  4. 

The 


GOVERNMENT  OF  ENGLAND. 

parity.      The    \\ar-;   and  expeditions  in  which  <  d,    in- 

v>l\cd  him  in  immenle  expencc  ;   and  callinu;  for  fupplic 
ilered    him    particularly  uttcntne  to    the    pe.-.ple.      "1  lie    fci. 
force  of  the  kingdom  could  not  be  employed  by  him  \\ith  cfli- 
iacy.      In  the  de-dine  of  the  gotliie  iyltcm,  the  nobles  \vere  not 
fulliciently  in  llibjci  tion  to  the    prince;   and   their    iervice   \\as 
limited  to  a  narrow  period.      In  the  reign,  indeed,  of  Henry  II. 
a  pecuniary  payment  had  been  fubfthuted  in  the   place  of  the 

perfonal 

The  exprefTion  "  of  old  time,"  To  often  ufed  here,  muft  doubtlefs  carry  us  far- 
ther back  than  the  23d  of  Edward  I.  or  even  the  4pth  of  Henry  III.  The  fpace 
of  t\u>  or  even  three  reigns  does  not  make  a  period  of  antiquity.  We  do  not  fay, 
that  the  acceflion  of  George  I.  was  in  ancient  times. 

I  know  well,  that  the  expreflions  commonalty,  communitas  regni,  baronagium  dn- 
glLe,  magnates,  whiles,  proceres,  &c.  have  been  confidered  as  folely  applicable  to 
barons  and  tenants  in  capite.  But  one  muft  beware  of  giving  credit  to  this  opi- 
nion. The  great  charter  of  king  John  bears  to  have  been  made  per  regem,  baro- 
nes  et  liberos  homines  totius  regni ;  a  certain  proof  that  it  was  not  made  by  the  king 
and  the  barons  only  ;  yet  Henry  III.  fpeaking  of  this  parliament,  calls  it  baronagium 
Anglit.  The  magnates  and  proceres  are  faid  to  have  made  the  ftatute  of  Mort- 
main ;  but  it  is  well  known,  that  the  parliament  which  gave  authority  to  this  aft 
confuted  of  king,  lords  and  Commons.  In  the  35th  of  Edward  I.  the  exprefllon  cum 
comitibus,  baronibus,  proceribus,  mlUibus,  ac  communitatibus,  evidently  refers  to 
KNIGHTS,  CITIZENS  and  BURGESSES  :  And  in  the  I4th  of  Edward  III.  commonalty 
and  Commons  are  .ufed  as  fynonymous.  See  farther,  Whitelocke,  vd.II.  ch.  81. 
Coke,  id  Inft.  583.  Petyt,  Rights  of  the  Commons.  Atkynst^n  the  power  and  jurif- 
dicJion  of  parliament. 

Mr  Hume,  I  am  fenfible,  ftrenuoufly  aflerts  the  late  origin  of  the  Commons  ;  and 
one  would  almoft  imagine,  that  his  hiftory  of  England  had  been  written  to  prove 
it.  His  reafonings,  however,  on  conftitutional  points,  do  not  appear  to  me  to  be 
always  decifive  ;  and  it  is  w  ith  pain  I  obferve  the  refpecl:  which  this  great  man  has 
paid  to  the  opinions  of  Dr  Brady  ;  a  writer  who  is  known  to  have  difgraced  ex- 
cellent talents,  by  pleading  the  caufe  of  a  fadion,  and  giving  a  varnilh  to  tyranny. 

The  brevity  which  was  neceflary  to  this  tracl,  has  permitted  me  rather  to  hint 
at,  than  to  treat  the  antiquity  of  the  Commons.  In  a  work  which  I  hope  one  day 
to  lay  before  the  public,  I  lhall  have  an  opportunity  of  entering  into  it  at  greater 
length. 


xx  DISCOURSE  ON  THE  LAWS 

perlbnal  attendance  of  the  military  vaflal ;  and  the  cuftom  had 
prevailed  of  hiring  fbldiers  of  fortune.  But,  aniidfl  the  preva- 
lence of  private  and  mercenary  views,  the  generous  principles 
which  had  given  foliclity  to  the  feudal  fabric  25.  having  totally 
decayed,  and  the  holding  by  a  military  tenure  having  ceafed  to 
be  confidered  as  an  honour  ;  vaflals  thought  of  eluding  the  du- 
ties to  which  they  were  bound  by  their  pofleflions,  and  granting 
them  away  in  fictitious  conveyances,  received  them  back  under 
the  burden  of  elufbry  or  civil  donations.  It  even  grew  to  be 
ufiial  among  tenants  to  refute  die  pecuniary  payments,  or  the 
fcutages  to  which  they  were  liable  :  They  denied  the  number  of 
their  fees  ;  they  alledged  that  the  charge  demanded  of  them 
was  not  juftified  by  their  charters  ;  and,  while  the  prince  was 
ready  to  march  againft  an  enemy,  it  was  not  convenient  to  look 
into  records  and  regifters.  The  fbvereign  deprived  of  his  fer- 
vice,  and  defrauded  of  his  revenue,  and  under  the  neceffity  of 
levying  a  military  force,  had  no  reiburce  Ib  fecure  or  abundant 
as  the  generoflty  of  the  people2^. 

The  admirable  improvements  with  which  Edward   enriched 
the  laws,  and  facilitated  the  prefervation  of  domeftic  peace  and 

order, 

25.  Hift.  Differ!,  concerning  the  antiq.  of  the  Engl.  conftitut.  part  2. 

26.  MadoXyHift.  oftheExcheq.  Bar.Angl.     The  granting  of  fupplies  to  the 
fovereign,  naturally  fuggefted  to  the  people  the  petitioning  for  redrefs  when  under 
the  preflure  ef  any  grievance  ;  and  the   crown,  where  it  expedred  much,  would 
npt  naturally  exercife  a  rigorous  fe verity. 

The  term  petitioners  indeed,  has,  by  forae  authors,  been  confidered  as  re- 
proachful to  the  Commons  •  but  how  a  petition,  as  the  fpring  of  a  law,  could  have 
meannefs  in  it,  is  inconceivable.  Even  in  the  free  age  of  Charlemagne,  this  mode 
of  application  was  employed.  Balnz.  capit.reg.  Franc,  torn.  i.  The  behaving 
with  reverence  to  the  fovereign  is  very  different  from  afting  with  fervility .  And 
as  to  the  petitioning  againft  grievances,  it  is  to  be  remembered,  that  refpedful  re- 
quifitions  of  ancient  and  conftitutional  privileges,  which  had  fuffered  invafion,  are 
not  to  be  confidered  as  mean  folicitations  for  a&s  of  favour. 


GOVERNMENT  OF  ENGLAND.     xxi 

order,  contributed  allb  witli  tlic  grcatefl  efficacy  to  advance  and 
Uvure  the  liberties  of  England.  He  eflablillud  the  limits  of 
the  different  courts  ;  he  gave  a  check  to  the  iniblence  and  en- 
croachments of  the  clergy  ;  lie  abrogated  all  inconvenient  and 
dangerous  niages  ;  and  the  great  charter,  and  the  charter  of 
the  foreft,  received  from  him  the  mod  ample  fettlenicnt'r. 

The 

ij.  Conf*  Cart.  an.  25.  Ed.  I.  It  is  fingular,  that  even  after  the  times  of  Ed- 
ward I.  foine  writers  will  not  allow,  that  the  Commons  were  any  effential  branch 
of  the  legiflature  ;  yet  the  writ  of  fummons  expreffes  in  ftrong  terms  their  right  of 
alien  t  :  Ad  aitdiendum  et  faciendum  et  confentlendum  ;  and  a  multitude  of  examples 
may  be  produced  of  their  actually  confulting  and  determining  about  peace  and 
war  and  other  important  matters  of  ftate. 

There  is  evidence  that  Edward  I.  called  a  parliament,  and  confulted  with  the 
Lords  and  Commons  about  the  conqueft  of  Wales  ;  and  that  on  receiving  informa- 
tion that  the  French  King  intended  to  invade  fome  of  his  dominions  in  France,  he 
fummoned  a  parliament  ad  tracJand.  ordinand.  et  faclend.  cum  prtlatis,  procerlbus 
tt  alits  incolis  regni  quibujlibet,  hujufmodi  periculis  et  excogitatis  malts  Jit.  objurandi 
Infertingin  the  writ  thefe  memorable  words,  Lex  jufl  iffima,  provida  circumfpeftione 
:  OUOD  OMNES  TANGIT,  AB  OMNIBUS  APPROBETUR. 


Edward  II.  confulted  with  his  PEOPLE  in  his  firft  year  pro  folemnitate  fponfallum 
et  coronationis  ;  and  in  hisfixth  year  he  confulted  them,fuper  diverjis  negotiis  ft  a.- 
tum  regni  et  expcdititnem  GUERRAE  ScoTiAEfpecialiter  tangentibus  *. 

Edward  HI.  fummoned  the  peers  and  Commons  in  his  firft  year  to  confult  them, 
Whether  they  would  refolve  on  peace  or  war  with  the  Scottim  king.  In  his  fixth  year, 
he  affembled  the  lords  and  Commons,  and  required  their  advice,  Whether  he  fliould 
undertake  an  expedition  to  the  Holy  Land.  The  lords  and  Commons  confiilted  ac- 
cordingly ;  and  while  they  applauded  his  religious  and  princely  forwardnefs  to  the 
holy  enterprize,  advifed  a  delay  of  it  for  that  feafon.  In  his  thirteenth  year,  the 
parliament  affembled  avifamento  pr<elatorum,  procerum,  necnttn  COMMUNTITATIS 
to  advife  de  e  xpedlttone  GUERRkEinpartibus  tranfmarlnis  ;  and  ordinances  were  made 
for  provifion  of  ihips,  arraying  of  men  for  the  marches,  and  defence  of  the  ifle  of 

Jerfey. 

•  In  his  hiftory  of  this  prince,  Mr  Hume  has  the  following  very  ftrange  aflertion  :  "  The  Commons, 
"  though  now  an  eftate  in  parliament,  were  yet  of  fo  little  confideration,  that  their  affent  Wtis  never 
o  demanded."  Vol.  II.  p.  1  39. 


xxii  DISCOURSE  o»  THE  LAWS  AND 

The  fagacity  of  his  precautions  and  policy  procured  to  him 
mod  deiervedly  the  name  of  the  Engli/h  Juftinian  ;  and  it  may  be 

mentioned 

'  Jerfey.  In  his  fortieth  year,  the  Pope  demanding  the  tribute  of  king  John,  the 
parliament  afTembled,  where,  after  confultation  apart,  the  prelates,  lords  and  Com- 
mons advife  the  refufal  of  it,  although  It  be  by  the  dint  ofthefivord. 

Richard II.  in  the  firft  year  of  his  reign,  advifed  with  the  peers  and  Commons,  How 
he  Ihould  beft  refift  his  enemies  ?  In  the  fecond  year,  he  confulted  hispeople  how  to 
withstand  the  Scots ;  who  had  combined  againft  him  with  France.  In  the  fixth 
year,  he  confulted  the  parliament  about  the  defence  of  the  borders  ;  his 
poflefTions  beyond  fea,  Ireland  and  Gafcoyne,  his  fubjefts  in  Portugal,  and  fafe 
keeping  of  the  feas ;  and  whether  he  Ihould  proceed  by  treaty  or  alliance, 
or  the  duke  of  Lancafler  by  force  ?  The  lords  approved  the  duke's  intention  for 
Portugal ;  and  the  Commons  advifed,  that  Thomas  bilhop  of  Norwich,  having  the 
Pope's  croiceris,  Ihould  invade  France.  In  his  forteenth  year,  this  prince  advifed 
\vith  the  lords  and  Commons  for  the  war  with  Scotland,  and  would  not,  without 
their  counfels,  conclude  a  final  peace  with  France.  And  the  year  enfuing  the 
Commons  interefted  the  king  to  ufe  moderation  in  the  law  of  provifions,  and  pro- 
pofed  that  the  duke  of  Aquitaine  ihould  be  employed  to  negotiate  the  peace  with 
France. 

With  regard  to  the  power  of  the  Commons  as  to  judicature  in  the  times  of  which 
•we  fpeak,  there  are  not  wanting  decifive  proofs.  In  the  reign  of  Edward  II.  the 
peers  and  Commons  gave  confent  and  judgment  to  the  revocation  and  reverfement 
of  the  fentence  of  banimment  of  the  two  Spencers  * .  In  the  firft  year  of  Edward  III. 
when  Elizabeth  the  widow  of  Sir  John  de  Burgo  complained  in  parliament,  that 
Hugh  Spencer  the  younger,  Robert  Baldock  and  William  ClifFe  his  inftruments,  had 
by  durefs  forced  her  to  make  a  writing  to  the  king,  in  confequence  of  which  ilie 
was  defpoiled  of  her  inheritance,  fentence  was  given  for  her  by  the  prelates,  lords 
and  Commons.  In  the  4th  year  of  Edward  III.  it  appears  by  a  letter  to  the  pope, 
that  to  the  fentence  given  againft  the  earl  of  Kent,  the  Commons  were  parties  as 
well  as  the  peers ;  for  the  king  diredted  their  proceedings  in  thefe  words  :  Comiti- 
bus,  magnatibus,  baronibus,  et  aliis  de  COMMUNITATE  di&i  regni  ad  parliamentum 
illud  congregatis  injunximus,  utfuper  his  difcernerent  et  JUDICARENT  quod  rationi  et 
juftici*  conveniret.  When  in  the  firft  year  of  Richard  II.  William  Wefton  and 

John 

»  The  Ihare  the  Commons  had  in  this  a<5t,  Sir  Robert  Cotton  authenticates  from  the  parliament  rolls. 
Cattoni  pofthuma,  p.  348.  Yet  Mr  Hume,  in  the  molt  pofitive  terms,  denies  that  the  Commons  had  any 
concern  in  it.  Vol.  2.  p.  140. 


XX.H1 

mcntii/  a  com  hieing  proof,  both  of  his  genius,  and  of"  his 

having  fludied  the  wellare  of  his  people-,  that,  to  the  form  in- 
to which  he  modelled  the  common  law,  as  to  the  adminiflration 
of  common  juftice,  the  wildom  of  fuccecding  times  has  not 
been  able  to  add  any  conliderablc  improvements**. 

The  crown  of  Edward  I.  but  not  his  talents,  clcfcended  to 
F.dward  II.  The  indolence,  however,  and  the  incapacity  of 
the  lall  prince,  joined  to  his  abfurd  pallion  for  favourites, 
though  they  rendered  his  reign  tumultuous  and  unhappy,  were 
no  lets  favourable  to  the  dignity  of  parliament,  and  the  power 

of 

John  Jennings  were  arraigned  in  parliament  for  furrendering  certain  forts  to  the 
king  ;  .the  Commons  were  parties  to  the  fentence  againH  them,  as  appears  from  a 
•writing  annexed  to  the  record.  In  the  firft  year  of  Henry  IV.  although  the  Com- 
mons refer  by  proteftation,  the  pronouncing  the  fentence  of  depolition  again/I 
King  Richard  II.  to  the  lords,  yet  they  were  equally  interefted  in.  it,  as  is  evident 
from  the  record ;  for  there  were  made  proctors  or  commiflioners  for  the  whole 
parliament,  one  biihop,  one  earl,  one  abbot,  one  baronet,  and  two  knights.  "  And  to 
a  infer,  fays  a  learned  and  accurate  author  *,  that  becaufe  the  lords  pronounced  the 
"  fentence,  the  point  of  judgment  mould  be  only  theirs,  were  as  abfurd  as  to  con- 
"  elude  that  no  authority  was  left  in  any  other  commifTioner  of  oyer  and  termlner 
li  than  in  the  perfon  of  that  man  folely  that  fpeaketh  the  fentence."  In  the 
fecond  year  of  Henry  V.  the  petition  of  the  Commons  imported  no  lefs  than  a 
RIGHT  t-)  afland  afftnt  to  all  things  in  parliament  ;  and  the  king  allowed  that  they 
pofleiTed  this  right. 

Thefe  examples  of  the  importance  of  the  people  are  ftriking  ;  and  they  are  fup- 
ported  by  the  authority  of  the  parliament-rolls,  or  by  records  above  exception. 
The  curious  reader  may  fee  them,  and  other  proofs  to  the  fame  purpofe,  in  the 
poflhumous  pieces  of  Sir  Robert  Cotton. 

18.  Hale,  hi/I,  of  the  com.  law,  ch.  vii.  It  has  been  fometimes  infifted  upon, 
thatTnuch  improvement  was  brought  to  England  by  the  canon  and  civil  laws.  I 
cannot,  however,  brrt4magme,  that  thefe  laws,  -have,  on  the  whole,  been  rather 
attended  with  diiadvantage.  For  tyrannical  maxims  do  not  fuit  a  limited  govern- 
ment. They  may  have  aflifted,  indeed,  the  invention,  and  extended  the  views  of 
fome  lawyers; but  they  have  filled  the  heads  of  more  with  illiberal  prejudices. 

*  Sir  Robert  Cotton. 


•xxiv  DISCOURSE  ON  THE  LAWS  AND 

of  the  ^people,  than  the  excellent  adminiftration  of  Edward  III. 
and  the  neceflities  to  which  he  was  fubjecled  by  his  ambition 
and  his  prowefs.  A  weak  prince  may  lofe  the  prerogatives 
tranfmitted  to  him  ;  but  will  never  be  the  founder  of  a  defpo- 
tifm.  A  high-^irited  monarch,  dependent  for  refources  on 
his  people,  may  carry  cleftruclion  and  ruin  into  the  country  of 
an  enemy,  but  will  not  eafily  be  induced  to  attack  the  liberty 
and  the  profperity  of  his  own  kingdom. 

The  fbns  of  Edward  III.  had  contributed,  while  he  lived,  t& 
his  grandeur,  and  that  of  the  nation  ;  but  no  fooner  was  he  laid 
in  his  grave,  than  they  excited  commotions.  The  ambition  of 
their  poflerity  was  flill  more  peflilent  and  fatal.  The  wars  be- 
tween the  Houfes  of  York  and  Lancafter  deluged  England  with 
blood.  The  paffions  of  men  were  driven  into  rage  and  phrenzy ; 
and  in  the  maflacres,  rather  than  the  battles  that  enfued,  con- 
queft  or  death  feemed  the  only  alternative.  But  while  we  turn 
with  Ibrrow  from  this  bloody  period  of  our  ftory,  our  fympa- 
thy  is  foftened  by  the  recollection,  that  the  contending  princes 
brought  acceflions  to  liberty,  by  adding  to  the  weight  of  the 
Commons.  The  favour  and  countenance  of  the  people  were 
anxioufly  fblicited  by  both  factions  ;  and  their  influence  failed 
not  to  grow,  while  the  means  of  extending  it  were  offered, 
and  while  they  were  courted  to  feize  them  29. 

The  nation,   when  Satiated  with  the  calamities  of  civil  war, 
thought  of  uniting  the  claims  of  the  two  hoflile  families.     Hen- 
ry VII.  the  heir  of  the   Houfe  of  Lancafter,   was   married  to 
Elizabeth,  the  heirefs  of  the  Houfe  of  York.     This  prince  affec- 
ted 

29.  The  reader,  who  is  clefirous  of  feeing  proofs  of  the  confideration  of  the 
people  during  the  wars  between  the  Houfes  of  York  and  Lancafter,  may  confult 
Cotton's  abridgment  of  the  records ;  and  Bacon  on  the  laws  and  government  of 
England.  Part  II. 


G  O  V  E  I  E  N  T  OF  E  N  G  L  A  N  D.  xxv 

ted  to  he  profound,  and  lie  has  obtained  that  chanut'  r.  But 
the  condition  of  Europe  at  the  time  in  which  lie  lived,  and  the 
fltuation  in  which  he  found  liimfelf,  j)ointed  out  to  him 
drain  of  conduct.  He  was  more  myfterious  than  wile  ;  more 
prudent  than  cntcrpri//mg  ;  and  more  a  flave  to  avarice  than 
ambition.  Without  having  intended  it,  he  placed  the  gran- 
deur of  the  Commons  on  the  molt  folid  foundation*  In  the  li- 
berty which  he  granted  to  the  nobility  of  breaking  their  en- 
tails, he  faw  only  the  degradation  of  that  order.  The  civil 
wars  had  involved  them  in  great  expence  ;  and  the  growing 
commerce  and  refinement  of  the  times,  expofed  them  to  (till 
greater.  Their  princely  pofleffions  flowed  from  them  to  give 
dignity  to  the  peoples0. 

Henry  VIII.  had  no  certain  character,  and  was  actuated  by 
no  fixed  and  determined  maxims.  He  had  not  the  ability  to 
form,  nor  the  nYmnefs  to  put  into  execution  a  deliberate  fcheme 
to  overturn  the  liberties  of  his  country.  With  lefs  capacity 
than  his  anceftor,  his  reign  was  more  iplendid  ;  and,  with  a 
more  imperious  temper,  he  had  the  art  or  the  felicity  to  pre- 
ferve  the  affection  of  his  fubjects.  The  father  removed  the  pil- 
lar which  fupported  the  power  of  the  nobles  :  The  fbn  gave  a 
mortal  blow  to  the  influence  of  the  clergy.  In  the  humilia- 
tion of  both,  the  Commons  found  a  matter  of  triumph.  The 

d  Reformation, 

30.  In  the  year  1546,  there  -\vere  126  boroughs  that  returned  members  to  par- 
liament ;  and  the  greateft  number  of  thefe  were  wealthy  and  populous.  Brvjjn 
If'illis,  HOtlt.parKam.  vol.  I.  In  the  reign  of  Edward  VI.  23  new  boroughs  were  fum- 
moned  to  fend  burgefles  to  parliament.  Philip  and  Mary  added  13  more,  Eliza- 
betli  30,  James  the  2  univerfities  and  12  boroughs,  Cha.  I.  8  boroughs,  and 
Cha.II.  the  county  of  Durham  and  2  boroughs.  Ellys  on  temporal  liberty.  An- 
ciently the  king  might  incorporate  any  town,  and  enable  it  to  fend  burgefles  to 
parliament ;  but  this  privilege  remains  not  at  prefent  with  the  crown.  If  the 
king  was  now  to  venture  on  the  creation  of  a  parliamentary  borough,  it  would  reft 
with  the  houfe  of  commons  whether  they  would  receive  the  members. 


xxvi  DISCOURSE  ON  THE  LAWS  AND 

Reformation,  though  it  interrupted  the  progrefs  of  literature, 
was  yet  highly  conducive  to  civil  liberty.  The  church  in  lo- 
iing  an  authority  which  it  had  never  merited,  and  which  it  had 
often  abufed,  funk  into  a  dependence  on  government.  The 
fupremacy  returned  to  the  fbvereign  to  whom  it  originally  be- 
longed, and  with  whom  it  ought  conflantly  to  have  remained. 
The  vifitation  of  the  monafteries  difcovered  more  than  the  in- 
ventions of  a  pious  fraud  ;  vices  and  abufes  which  cannot  be 
defcribed,  without  conveying  to  the  mind  the  impreflion  of 
whatever  is  moft  wicked  and  moft  difhonourable  :  Their  fup- 
preffion  gave  encouragement  to  induftry  and  to  the  arts  ;  and 
their  wealth  diffufed  in  a  thoufand  channels,  circulated  through 
the  kingdom,. 

The  Reformation  advanced  under  Edward  VI.  but  it  was 
deftined  that  this  prince  fhould  only  make  his  appearance  on 
the  ftage  of  public  life,  and  give  the  hope  of  an  able  adminiftra- 
tion.  The  fway  of  Mary  was  a  paroxyfm  of  religious  madnefs. 
She  knew  not,  that  when  the  individuals  of  a  kingdom  have  a- 
greed  to  adopt  a  new  religion,  it  is  die  duty  of  the  fbvereign 
to  give  a  fanclion  to  it.  The  reformed  were  about  to  experi- 
ence whatever  cruelty  the  extremity  of  a  miflaken  zeal  can  in- 
flicl.  But  the  fires  lighted  by  Gardiner,  Bonner,  and  fuch 
abominable  men,  brought  no  converts  to  popery.  The  dread 
of  endangering  the  fucceflion  of  Elizabeth  prevented  the  par- 
liament from  giving  a  check  to  the  obftinate  malignity  and  the 
fanguinary  rage  of  this  unworthy  queen  ;  or,  perhaps,  the  na- 
tion had  fcarcely  recovered  the  aftonimment  into  which  it  was 
thrown  by  the  atrocity  of  her  deeds,  when,  in  the  ilxth  year  of 
her  reign,  fuperflition,  peeviflmefs,  and  the  moft  felfifti  and  un- 
happy paflions,  put  an  end  to  her  life. 

Elizabeth,  who  had  learned  wifdom  from  misfortune,  attain- 
ed the  fummit  of  political  glory.     The  perilous  condition  of 

affairs, 


GOVERNMENT  OF  ENGLAND. 


nflairs,  on  her  commencing  to  reign,  required  (insular  modera- 
tion and  ability,  and  (he  c\c  Tied  them.  A  ta<>;uity,  alnioit  in- 
capable of  millake,  directed  all  her  operations  3 '.  England 
\v  in  commerce  and  advantages,  while  the  reft  of  Europe 
\vas  agitated  with  contentions,  and  debaied  with  the  tyranny  of 
power.  Her  jealouly  of  prerogative  was  corrected  by  her  at- 
tachment to  the  felicity  of  her  people  ;  and  the  popularity  \vith 
uhich  (he  reigned  is  the  fullefl  proof  that  (he  preferved  invio- 
lated  all  the  barriers  of  liberty  3 2.  The  reformation  which  the 
folly  of  her  predeceflbr  had  interrupted,  was  complcatcd  by  her 
prudence. 

This  accomplifhed  princefs  was  fucceeded  by  James  VI.  of 
Scotland.  He  llibftituted,  in  the  place  of  ability,  the  affecta- 
tion of  it.  The  Englifh  nation  received  him  with  marks  of  re- 
ipect  which  they  were  not  to  continue  long.  "With  high  no- 
tions of  kingly  dignity,  all  his  actions  tended  to  degrade  it ; 

and, 

31.  "As  for  her  government,  fays  a  great  authority,  I  aflure  myfelf  I  fliall  not 
"  exceed,  if  I  do  affirm,  that  this  part  of  the  ifland  never  had  45  years  of  better 
"  times  ;  and  yet  not  all  through  the  calmnefs  of  the  feafon,  but  through  the  \vif- 
"  dom  of  her  regiment."  Lord  Bacon. 

37.  "  She  loved  not  to  be  tied,  but  would  be  knit  unto  her  people.  Of  13 
"  parliaments  called  during  her  reign,  not  one  became  abortive  by  unkindnefs  ; 
"  and  yet  not  any  one  of  them  pafied  without  fubfidy  granted  by  the  people,  but 
"  one  wherein  none  was  defired.  And  fometimes  the  aid  was  fo  liberal,  that  the 
"  refufed  the  one  half,  and  thanked  the  people  for  the  remnant  ;  a  courtefy  that 
"  rang  loud  abroad,  to  the  <hame  of  other  princes.  She  never  altered,  continued, 
u  repealed,  nor  explained  any  law,  otherwife  than  by  act  of  parliament,  whereof 
"  there  are  multitudes  of  examples  in  the  ftatutes  of  her  reign."  Nat.  Bacon, 
Difcwrfe  on  the  hrjjs  and  government  of  England,  parti. 

* 

I  do  not  mean  to  fay,  that  Elizabeth,  and  the  princes  who  preceded  her,  never 
afted  againfl  the  fpirit  of  our  government.  Her  reign,  and  thofe  of  many  of  her 
prsdeceflbrs,  were  doubtlefs  ftained  with  bold  exertions  of  authority.  But  bold 
exertions  of  authority  muft  not  be  interpreted  to- infer  defpotifm  in  our  govern- 
ment. We  muft  feparate  the  perfonal  qualities  of  princes,  ard  the  yr'p.  "  V^  of 
the  conftitution.  The  government  of  England,  and  the  aJmininrations  of  its  ciiirf 
magiftrates,  are  very  different  things. 


xxviii  DISCOURSE  ON  THE  LAWS  AND 

and,  while  his  littlenefs  rendered  him  contemptible  at  home,  he 
became    an  object  of  ridicule  abroad,   from  his  ignorance   of 
foreign  politics.     Carelefs  in  the  choice  of  his  minifters,  and 
fupremely  conceited  of  his  own  wifdom,  his  reign  brought  no 
glory  to  the  crown. 

The  great  improvement,  which,  about  this  period,  difplayed 
itfelf  in  the  national  manners,  diffuied  among  all  ranks  of  men 
very  enlarged  ideas  concerning  the  nature  and  principles  of 
civil  government.  The  arts  had  been  cultivated  with  uncom- 
mon fuccefs.  Difcoveries  had  been  made  in  the  moft  diflant 
regions  of  the  globe.  Commerce  had  brought  great  accelfions 
of  wealth.  The  balance  of  property  had  turned  with  no  equi- 
vocal direction  to  the  fide  of  the  people. 

It  was  not  an  age  for  fafticlious  and  tyrannical  maxims.  The 
Commons  knew  all  their  flrength,  and  were  determined  to  em- 
ploy it.  The  prince  endeavoured  in  vain  to  imprefs  them  with 
his  exorbitant  notions  of  regal  authority.  Every  complaint 
and  grievance  of  the  fubjecl  were  inquired  into  ;  every  fuipici- 
oiis  and  inclement  act  of  prerogative  was  oppofed*  The  doc- 
trines of  the  divine  right  of  kings,  and  of  paffive  obedience, 
were  now  firfl  heard  of,  and  alarmed  and  aftonifhed  the  nation. 
Pretenlloiis  to  power,  deftrucTive  of  the  natural  and  inherent 
privileges  of  humanity,  and  inconf  iftent  with  every  principle  of 
common  (enfe,  were  aflertecl  from  the  pulpit,  were  claimed  by 
the  fovereign.  The  extravagance  of  James  awakened  the  thun- 
der which  was  to  burft  on  the  head  of  his  fucceflbr. 

Charles  I.  had  imbibed  the  fame  lofty  conceptions  of  kingly 
power  ;  and  his  character  was  marked  by  the  fame  incapacity 
for  real  bufinefs.  His  fituation  required  iniinuation  and  ad- 

drefs ; 


C  O  V  F,  11  X  M  }\  N  T  OF  E  N  G  I  I). 

,s  ;  but  l.<  d  the  utmod  fhiielinels  of  dei 

dillru'led  '  ;   he    nilulted  th  '-.      To  i! 

ife  of  lii^  authority,  lu-  fancied  tlu  re-  Vftb  no  limitation.      ' 
llamed  \\itii   oppolition,    ho    prefumed    to  attack  whatever  v 
moll  iacrecl,  and  mod  valuable  among  men.     The  imprtide: 
of  Buckingham  had  not  lottcncd  his  obflinacy  :  His  Queen  • 
indilcrcct,   and   he   confided   in   her.     The  violent  council 
Straftbrd  precipitated  his  own  and  the  ruin  of  his  mader.     M 
religious   foppery  of  Laud   completed   what  the  incapacity  of 
James  had  begun  :  It  was  the   cement   of  union  between  the 
iiiends  of  liberty  and  the  feel:  of  the  Puritans.     The  pco; 
held   v\ith  a   fixed  and  a  general  indignation  the  infult  and  the 

lence  which  were  offered  to  the  majedy  of  their  laws,  and  to 
thc-:r  conftitution.  The  flames  of  civil  difcord  were  kindled. 
England  was  torn  during  fix  years  with  political  and  religion-- 
fury.  The  unfortunate  Charles  atoned  at  length  by  his  death 
the  cliibrders  be  had  occafioned.  The  delegates  of  the  people 
pronounced  him  guilty  of  mifgovernment  and  breach  of  trud. 
"  The  pomp,  fays  an  eloquent  hidorian,  the  dignity,  the  cere- 
"  mony  of  this  tranfaclion,  correfponded  to  the  greated  con- 
*<  ception  that  is  fuggeded  in  the  whole  annals  of  human 
«  kind  33." 

Cromwel, 

33.  Hume,  ffift.  of  England,  vol.  V.  p.  462.  This  hiftorian,  the  moft  accomplilh- 
rd?  perhaps,  who  has  written  in  modern  times,  has  attempted  to  vindicate  both 
James  and  Charles  ;  but  he  has  done  nothing  more  than  to  produce  evidence  t^ 
lliew,  that  in  fome  refpefts  they  acted  from  precedents  of  administration  in  former 
princes  ;  and  this,  if  taken  even  in  the  fulleft  extent,  is  infufficient  to  juftify  them. 
Charles,  however,  it  will  be  allowed,  exceeded  every  violation  of  liberty,  of  which 
there  had  been  any  example;  and  when  he  had  confented  to  reduce  the  exor- 
bitancy of  the  regal  power,  his  condudt  created  a  fulpicion  of  his  fmcerity.  But 
on  the  fuppofition  that  he  did  not  advance  his  authority-  beyond  the  practice  of  for- 
mer 


xxx  DISCOURSE  ON  THE  LAWS  AND 

Cromwel,  the  immediate  caufe  of  the  death  of  Charles,  and 
of  thole  circumlhmces  of  cenfure   which  accompanied  it,  aflo- 
niflied  at  the  height,  to  which,  in  the  courie  of  the   civil  wars, 
his  ambition  had  carried  him,  was  induced  to  afpire  flill  higher. 
His  genius  was  great,  his  fortune  greater.     On  the  abolition  of 
monarchy,   he  introduced  into  England  a  military  clefpotifm, 
under  the  appellation  of  a  common- wealth  3  4.     From  an  infe- 
rior rank,  he  had  rifen  gradually  to  direcl  the  affairs  of  a  power- 
ful nation.     Though  irregular  in  his  politics,  the  vigour  of  his 
conduct  brought  fignal  glory  to  his   councils  and  his   arms. 
But  the  fabric  he  had  built  was  ill-contrived  and  ill-cemented  ;: 
its  parts  were  difproportioned  ;  and  it  reflect  on  no  folid  foun- 
dation.    It  began  to  totter  during  his  own  life.     His  fon  Ri- 
chard had  none  of  the  talents  of  an  ufurper.      The  minds  of 
the  people  united  in  an  anxious  wifli  for  the  re-eftablifhment  of 
the  ancient  conftitution  ;  and   general  Monke  acquired  the  ho- 
nour of  the  peerage,  and  the  fame  of  uncommon  political  la- 

gacity,, 

mer  times,  he  is  not  therefore  to  be  vindicated.  It  is  no  exculpation  of  a  crime 
in  one  individual,  that  it  has  been  committed  by  others,  The  advantages  of  a  free 
government  belonged  to  the  people  of  England ;  and  they  were  the  proper  judges, 
when  to  enforce  their  privileges  againft  an  invader.  They  might  pardon  in  one 
Sovereign  what  they  would  punifh  in  another.  They  might  overlook  in  Elizabeth 
what  they  did  not  \vilh  to  excufe  in  Charles.  The  doclrine  of  refinance  is,  deli- 
cate. In  a  free  conftitution,  like  that  of  which  we  fpeak,  the  prince  and  the  people 
will  often  fall  into  filiations  where  they  feem  to  encroach,  or  actually  do  fo,  on  the 
rights  of  one  another.  But  it  is  never  on  (light  grounds  that  the  people  will  be 
prevailed  upon  to  take  arms  againft  their  chief  magiftrate.  After  all,  had  England 
been  an  abfolute  monarchy,  Was  it  thence  proper  and  juft  that  it  ihould  remain  in 
that  fituation?  There  are  rights  which  it  is  impoflible  that  men  can  either  lofe  or 
forfeit.  No  authority  and  no  precedent,  no  ufage  and  no  law,  can  give  a  fandion 
to  tyranny. 

34.  Lord  Clarendon  applies  to  him,  with  great  propriety,  what  was  faid  of  Cin- 
na,  aufum  eum,  qu<e  nemo  anderet  bonus  ;  perfeciffe,  qu<e  #  nullo,  nijifirtffimo,  ferfci 
pojjent. 


• 
GOVERNMENT  OF  ENGLAND. 

ity,  tor  ibrwardm;>;  an  event,  which  it  \\a;  lihpoflible  to  p: 

vent. 

Charles  II.  never  forgave  the  people  of   England  for  ihe  mif- 
fort  tines   he   himlelf  had    flittered,   nor  ior  tliofc  of  his  Ifouie. 
This  monarch  had  quiekneis  of  parts,  bnt  pofleiled  not  that  dil- 
cerninent  which  fees  into  the  future.     He  entered  without  re- 
iion  into   fchemes   and  projects,   and  renounced  them  with 
the  lame  precipitation.     Though   an  enemy  to  the  conditution 
of  his  country,  and  though  in  the  intcreft  of  France,  he  was  not 
able  to  produce  any  lading  diladvantage  to  the  kingdom.     Jli 
reign,  though  tumultuous,   was   not  unfavourable   to  liberty. 
The  total  abolition  of  the   military  tenures  and  their  appen- 
dages, which  had  place  during  his  fbvereignty,   was  a  mod  im- 
portant acquisition  to  the  people  :  It  relieved  their  eftatcs  from 
every  fourcc  of  legal  oppreflion.     The  habeas  corpus  act,  which 
was  fome  years  poderior  to  it,   offered  the  firmed  fecurity  to 
their  perfons.     It  produces  in  a  court  of  judice  the  body  of 
every  prifoner ;  it  makes  know^n  the  caufe  of  every  commit- 
ment ;  and,  if  an  individual  has  differed  confinement  in  oppo- 
fition  to  the  law,  though  at  the  command  of  the  king  in  coun- 
cil, he  is  redored  to  his  liberty,   and  has  a  claim  of  compenfa- 
tion  for  the  lofs  and  the  indignity  his  affairs  and  his  honour 
have  fudained. 

The  clamour  againd  popery  was  loud  and  violent  during  the 
long  adminidration  of  Charles  II.  and  yet  the  crown  was  permit- 
ted to  pafs  to  the  Duke  of  York.  This  confidence,  fo  honour- 
able to  the  people,  was  abufed  by  the  fbvereign.  James  II.  had 
the  zeal  of  a  monk,  not  the  virtue  and  the  talents  of  a  great 
king.  His  bigotry  and  his  hid  of  power  made  him  perpetrate 
the  mod  atrocious  and  the  mod  infolent  afts.  Violating  equal- 

iy 


xxxii  DISCOURSE  ON  THE  LAWS,    6v. 

ly  civil  and  religious  liberty,  his  fubjefts   deprived  him  of  a 
throne  of  which  he  was  unworthy. 

In  fettling  the  crown  on  the  prince  and  princefs  of  Orange', 
the  wifeft  precautions  were  taken,  that  the  religion,  the  laws, 
and  the  liberties  of  England  fhoulcl  never  more  be  in  danger  of 
being  fiibverted.  The  limits  of  the  prerogative  were  defined  ; 
the  extent  of  the  freedom  of  the  people  was  ascertained  ;  and 
the  doctrine  of  refitting  the  prince,  when  he  fliould  prefume  to 
encroach  on  the  rights  of  the  fubjecl,  was  explained  and  illu- 
flrated  35. 

From  the  Saxon  conqueft,  during  a  long  fiicceffion  of  ages, 
this  fortunate  ifland  has  never  degenerated  from  liberty.  In 
the  moft  inclement  periods  of  its  hiftory,  it  defpaired  not  of  in- 
dependence. It  has  conflantly  foflered  that  indignant  fpirit 
which  difdains  all  iubjeclion-  to  an  arbitrary  fway-  The  confli- 
tution,  profpering  under  the  fliocks  it  received,  fixed  itfelf  at 
the  highefl  point  of  liberty  that  is  compatible  with  government. 
May  it  continue  its  purity  and  vigour  I  and  give  felicity  and 
greatnefs  to  the  moft  cliflant  times  1 

March  1775. 
35.  Bill  of  rights,  toleration  aft,  aft  of  fettlement. 


LECTURES 


ON        THE 


LAWS    OF    ENGLAND, 


LECTURE      L. 

The  intention  and  purpofes  of  political  fociety — Cuftoms  and  manners  govern  men 
before  the  enaflment  ofpojitive  Laws — Arts  and  property  thefources  of  legifla- 
tion — Peculiarties  attending  the  in/stations  of  Lycurgus  and  thofe  of  Mofes—* 
In  the  infancy  of  a  Jl ate,  laws  are  few  and  plain — In  times  of  civility  and  re- 
finement, they  are  numerous  and  complicated — 'The  liberty  of  the  people,  a  great 
caufe  of  the  multiplicity  of  laws — The  difficulty  of  theftudy  of  the  Englijb  Iaiv~— 
The  methods  which  ha've  been  followed  in  thejludy  of  it. 

SINCE  every  political  fociety  was  originally  framed  for  the  general 
benefit  of  the  feveral  individuals  of  which  it  was  compofed,  in  order 
that,  fupported  by  the  united  ftrength  of  the  whole  community,  each 
perfon  might  have  that  fecurity  in  his  life,  his  liberty,  his  property,  which, 
imaflifted  in  a  ftate  of  nature,  he  could  not  of  himfelf  attain  unto  ;  and  that, 
inftru&ed  by  the  joint  counfels  and  wifdoin  of  the  whole  body,  he  might  fo 
direct  his  actions,  as  to  promote  the  public  welfare,  with  which  his  own 
fafety  and  interefl  are  necefiarily  connected  ;  it  follows,  thatj  in  fuch  a  ftate, 
every  man  muft,  even  for  his  own  fake,  in  many  things,  facrifice  his  private 
judgment,  and  his  natural  liberty  of  action,  to  the  will  of  that  community  to 
which  he  belongs  ;  which  will,  acting  uniformly  for  the  fame  purpofes,  can- 
not fail  of  producing  a  number  of  fixed  rules  and  regulations,  to  ferve  as 
directions  to  the  fubjects-,  in  fuch  cafes  as  are  common,  and  frequently 
occur. 

A  ACCOR- 


2  LECTURES    ON     THE  LECT.  r. 

ACCORDINGLY,  we  find,  there  never  was  a  (late  or  nation,  even  but  one 
degree  removed  from  barbarity,  that  fubfifted  without  forrre  general  cu- 
fioms,  at  leaft,  which  fupplied  the  place  of  pofitive  laws,  by  which  the  con- 
duct of  the  feveral  members  of  the  fociety  was  to  be  governed,  and  for  the 
"breach  of  which  they  were  liable  to  punimment ;  and  in  fuch  a  fubmiffion  the 
very  effence  of  political  freedom  confifts.  For,  as  M.  Montefquieu  very  juftly 
obferves,  the  liberty  of  man  in  a  focial  ftate,  different  from  that  in  a  ftate 
of  nature,  confifteth  not  in  a  power  of  acting,  in  all  things,  according  to  his 
own  judgment,  but  in  acting  according  thereto,  in  fubfervience  to  the  will 
of  the  public,  in  being  free  to  do  all  things  the  law  prohibits  not,  and  to 
omit  all  things  the  law  doth  not  enjoin  j-. 

HENCE,  in  all  fuch  infant  ftates,  the  greateft  refpect  is  paid,  and  the 
highefl  influence  allowed  to  thofe,  who,  either  by  their  age  and  experience, 
or,  by  their  application  and  labour,  have  arrived  at  a  proficiency  in  the 
knowledge  of  the  cufloms  and  practices  prevailing  in  their  own  and  neigh- 
bouring nations :  Qui  mores  hoi.iinum  multorum  vidit  et  urbes,  is  the  great 
eulogium  of  the  mod  accomplilhed  hero  of  the  heroic  ages. 

IT  muft  be  allowed,  indeed,  that,  in  focieties  fo  fmall  that  their  members 
are,  in  general,  contented  with  little  more  than  the  bare  necefiaries  of  na- 
ture, a  few  rules  will  be  fufficient ;  and  every  man  of  a  tolerable  capacity 
will,  with  a  reafonable  degree  of  obfervation,  be,  in  fome  meafure,  quali- 
fied to  be  his  own  lawyer.  But  when  it  mail  happen  that  arts  are  not  only 
introduced,  but  become  common  among  any  people,  when  the  comforts 
and  conveniences  of  life  are,  in  the  public  opinion,  efteemed  necefiaries ; 
when  the  induftry  of  fome,  and  the  negligence  of  others,  have  produced  a 
remarkable  inequality  in  the  goods  of  fortune ;  when  riches  hath  brought 
forth  her  offspring,  infolence  and  oppreflion,  and  when  envy  and  avarice 
inflame  the  breads  of  the  indigent,  it  will  be  abfolutely  neceffary  to  lay  a 
continual  reflraint  on  fuch  violent  paffions,  ready  at  every  inftant  to  deftroy 
the  peace  of  fociety,  and  to  tear  it  into  pieces,  and,  for  that  purpofe,  to 
form  a  great  number  of  regulations,  to  curb  thofe  who  have  created  to 
themfslves  imaginary  wants,  and  who  no  longer  regulate  their  conduct  by 
the  plain  dictates  of  rude  and  fimple  nature.  And  as  the  condition  of  fuch  a 
nation  muft  be  perpetually  changing,  as  new  arts  and  gratifications  will  be 

con- 
f  L'Efprit  des  Loix,  Liv.  xi.  ch.  3, 


LF.CT  i.  LAWS    OF    EN  GLAND.  3 

continually  invented,  as  the  increafe  of  commerce  will  every  day  open  a  pro* 
fpeft  of  mure  various  acquisitions,  and  infcnfibly  introduce  a  general  change 
of  manners  in  the  people  ;  and,  above  all,  as  the  wits  of  men,  checked  in 
their  darling  purfuits,  will  ever  be  at  work  to  difcovcr  methods  of  eluding 
thofe  laws  which  they  dare  not  openly  infringe,  there  mufl  enfuc  a  conflant 
alteration  and  variation  of  the  rules  already  in  being,  and  a  continual  addi- 
tion of  new  ones  to  anfwer  new  and  unforeseen  emergencies.  The  laws, 
therefore,  of  a  nation  fo  circumflanced,  mufl  increafe  to  fuch  a  number,  and 
confifl  of  fo  great  a  variety  of  particulars,  as  to  render  it  impoflible  for  the 
generality  of  the  fubjefts  to  be  mailers  of  them,  and  will  oblige  them  to 
refort  to  thofe  whofe  eafy  circumftances  and  leifure  have  enabled  them 
thoroughly  to  comprehend  and  underfland  them  ;  and  among  fuch  a  people 
there  mufl  be  lawyers^  although,  perhaps,  not  formed  Into  a  diflinct  and 
feparate  profeilion,  or  known  by  that  appellation. 

GREAT,  undoubtedly,  are  the  inconveniencies  which  attend  a  multiplicity 
of  laws,  and  very  hard  it  feems,  that  all  men  mould  be  obliged  to  obey  a 
rule,  which  it  is  confefled  the  majority  are  incapable  of  perfectly  knowing ;. 
but  fuch  is  the  natural  and  necefiary  courfe  of  things.  If  men  will  not  be 
contented  to  live  in  a  flate  next  to  abfolute  barbarity,  if  they  will  enjoy  the 
conveniences  as  well  as  the  neceflaries  of  life,  if  they  will  be  fecured  againfl 
the  oppreffion  and  fraud  of  their  fellow  fubjecls,  as  well  as  againfl  the  vio- 
lence of  flrangers,  they  mufl  fubmit  to  and  abide  by  the  confequences.  And 
fo  fenfible  of  this  neceffity  was  the  great  Spartan  legiflator,  that  when  he  re- 
folved  his  flate  mould  admit  of  no  addition  to,  or  alteration  of  his  regula- 
tions, he  wifely  flopped  up  the  fources  from  which  new  laws  fpring.  Com- 
merce, and  its  inflrument,  money,  were  prohibited  ;  all  arts,  except  thofe 
abfolutely  neceffary,  were  interdicted,  and  the  people,  by  conflantly  living- 
and  eating  in  public,  were  not  only  accuflomed,  but  neceffitated  to  content 
themfelves  with  what  fimple  nature  requires.  By  thefe  means  (and  by  thefe 
only,  or  by  others  fimilar  to  thefe,  could  it  be  accomplished)  Lycurgus 
gave  a  firmnefs  and  flability  to  his  republic,  which  continued  for  feveral 
hundred  years,  until  conqueft  introduced  wealth,  and  its  neceflary  atten- 
dants, which  focn  eat  out  the  vitals  of  that  fmgular  conflitution  -}-. 

THE  law  of  Mofes,  likewife,  was  invariable,  and  admitted  of  no  addi- 
tions or  alterations ;  and  as,  from  the  peculhr  circumflanees  of  the  country, 

and 
j-  Plut.  Vit.  Lycurg. 


4  L  E  C  T  U  R  E  S     ON     THE  LECT.  i, 

and  its  fltiiation,  there  was  no  danger  of  an  accumulation  of  wealth  from 
foreign  commerce,  fo  were  the  domellic  regulations  inimitably  calculated  to 
rprevent  a  great  inequality  of  circumftances,  and  to  oblige  the  nation  in  ge- 
neral to  a  plain  and  fimple  life.  All  ufury. among  the  Ifraelites  was  prohi- 
bited, the  lands  were  alienable  no  longer  than  to  the  year  of  jubilee,  at  which 
time  they  returned  free  to  the  original  proprietor  or  his  heirs ;  and,  by  the 
invariable  rules  of  defcent,  and  the  continual  dividing  of  eftates  among  all 
the  males  in  equal  degree,  every  man  was  proprietor  of  fome  fmall  patri- 
mony, and  confequently  obliged  to  live  in  a  frugal  and  laborious  manner}. 
Athens,  on  the  contrary,  the  mod  commercial  and  the  richeft  city  of 
Greece,  abounded,  above  all  others,  in  a  multiplicity  of  laws,  and  thofe, 
for  the  caufes  already  mentioned,  perpetually  varying  and  changing.  Rome, 
while  it  continued  a  mere  military  flate,  was  contented  with  a  few,  and 
;thofe  fuch  as  were  fhort  and  plain;  but  when,  by  the  conquefl  of  Carthage, 
•of  Greece,  and  of  Afia,  floods  of  wealth  were  poured  into  Italy,  the  necef- 
fary  confequences  foon  followed.  New  laws  were  continually  made,  which, 
being  as  continually  eluded,  of  courfe  gave  birth  to  others.  Every  new 
conquefl  brought  an  acceffion  of  riches,  and  became  a  fource  of  farther  re- 
gulations :  until,  at  length,  they  fwelled  to  fuch  a  magnitude,  as  to  be-, 
come,  in  the  time  of  Juftinian,  an  intolerable  burthen :  For,  to  fay  no- 
thing of  the  laws  themfelves,  thejenatus  confuted^  the  plebifcita^  the  ediftum 
perpetuum,  and  the  conftitutions  of  the  emperors,  which  were  very  volumi- 
nous, the  bare  commentaries  of  the  lawyers  of  authority  amounted  to 
three  thoufand  volumes. 

IF  we  look  around  the  nations  that  now  inhabit  Europe,  we  mall  find 
that  the  fame  caufes  have  conftantly,  every  where,  produced  the  fame  ef- 
fect. How  few,  how  fhort,  how  plain,  and  fimple,  were  the  antient  laws 
of  the  Saxons,  the  Franks,  the  Burgundians,  the  Goths,  and  the  Lom- 
bards, while  each  of  them  continued  a  plain  and  fimple  people  ||.  As  they 
increafed  in  arts  and  wealth,  as  their  kingdoms  grew  more  powerful,  either 
from  internal  peace  and  commerce,  or  by  the  melting  of  different  fovereign- 
tics  into  one,  we  might  fee  the  laws  gradually  increafe  in  number  and  in 
length ;  this  arofe  from  the  neceffity  their  legiflators  were  under,  from  the 
-different  circumftances  of  the  times  and  people,  to  enter  into  details  of 
their  .ruder  anceflors  had  no  conception :  and  this  augmentation  hath 

ever 

^  Spencer,  Diflert.  de  ratione  Leg.  Ufuram  prohibentis. 
]|  Lindenbrogius,  codex  legum  antiquarum, 


, 


Ltcr.  i.  L  A  W  S    or    E  N  G  L  A  N  D.  5 

r  been   in   proportion  to  the  wealth  and  power  of  the  people  that 
obliged  to  admit  it ;  as    might   eaiily  appear  by  fixing  on  anyone  period, 
and  by  comparing  the  laws  of  thofe  nations  where  arts  and  trad'  fully 

cllablifhed,  with  tliofe  of  other*  \\hcrc  they  had  not  yet  got  fo  firm  a  footing. 

WITHIN  thefelaft  two  hundred  and  fifty  years,  the  inhabitants  of  Europe 
in  general,  particularly  thofe  that  have  any  confiderable  (hare  in  univerfal 
commerce,  fcem  to  have  been  feizcd  with  an  epidemical  madncfs  of  making 
new  laws ;  infomuch  that  there  is  fcarce  a  (late  whofe  laws,  fmce  the  year 
1500,  are  not  equal,  if  not  fuperior,  in  number  and  bulk,  to  thofe  made 
in  many  preceding  ages  :  an  effect  owing,  partly  to  the  decay  of  the  old 
military  fyflem,  and  to  the  neceflity  every  government  was  under,  to  have 
recourfe  to  new  methods  for  its  fupport,  when  that  failed ;  but  principally 
to  the  difcoveries  of  America,  and  of  the  paflage  to  the  Eaft  Indies ;  which, 
by  the  peaceful  arts  of  induftry  and  trade,  have  poured  into  modern  Eu- 
rope an  acceflion  of  treafure,  equal  to  what  was  amaffed  in  Italy  by  conquefl 
and  rapine  under  the  Roman  empire.  As  Britain,  during  this  interval, 
mared  more  largely  than  any  other  country  in  this  vaft  increafe  of  wealth, 
it  is  not  furprifing  that  her  later  laws  have  been  numerous  and  voluminous 
in  proportion. 

BUT  there  is  another  caufe  peculiar  to  thefe  nations,  which  hath  not  a  little 
•contributed  to  the  fame  end,  namely,  that  happy  conflitution,  and  that  li- 
berty in  which  we  fo  juflly  .glory.  A  conflitution  which  lodges  the  fu- 
preme,  the  legiflative  power  in  three  different  hands,  each  of  which  (if  con- 
fidered  apart)  hath  an  interefl  feparate  and  diflinct  from  the  other  two,  mufl 
require  a  variety  of  wife  regulations,  fo  to  afcertain  their  refpective  rights 
and  privileges,  and  fo  to  poife  and  balance  them,  as  to  put  it  out  of  the 
power  of  any  one  to  overtop  the  others.  A  conflitution  that  admits  the 
people,  by  reprefentation,  to  fo  confiderable  a  mare  of  power,  mufl  have 
many  laws  to  determine  the  manner  of  elections,  and  the  qualifications  both 
of  electors  and  elected.  A  conflitution  that  makes  the  prefervation  of  poli- 
tical freedom  its  great  object,  and  that  aims  to  defend  the  life,  liberty,  and 
property  of  the  meaneft  individual,  not  only  againfl  others  of  their  own 
rank,  but  even  againft  the  executive  power  of  the  fociety  itfelf,  mufl  have 
many  extraordinary  fences,  and  barriers, to  protect  the  weak  from  the  mighty. 
Such  a  conflitution  mufl,  more  particularly  than  others,  reflrain  its  judges, 
the  difpenfersof  juflice,  who  are,  at  the  appointment  of  the  crown,  to  follow 

the 


^  LECTURES     ON     THE  LECT.  i. 

the  ftrict  letter  of  the  pofitive  laws ;  left,  under  the  pretence  of  explaining 
and  extending  them,  the  moft  valuable  privileges  of  the  people  might  be 
betrayed,  or  rendered  illufory.  And  this  very  reflraint,  fo  neceflary  in  fuch 
a  form  of  government,  will  eternally  (as  new  cafes  arife,  which,  not  being  in 
the  contemplation  of  the  legiilature  at  the  time,  were  not  comprehended  in 
the  words  of  the  old  provifions)  occafion  the  framing  of  new  ones. 

THE  ftate  and  condition  of  thefe  kingdoms  are  fuch,  therefore,  as  necef- 
farily  require  a  great  number  of  laws  ;  and  heavy  as  the  burden  of  them  may 
feem,  it  mould  be  borne  with  chearfulnefs,  by  all  who  efteem  the  conveni- 
encies  of  life,  and  the  perfection  of  arts,  more  than  a  rude  and  fimple  ftate 
of  nature;  who  think  wealth  more  eligible  than  poverty,  and  power  than 
weaknefs ;  or  laftly,  who  prefer  our  excellent  form  of  government,  and  its 
mild  adminiftration,  to  the  defpotic  tyrannies  of  Afia,  or  the  more  mode- 
rately abfolute  monarchies  of  Europe. 

FROM  what  hath  been  already  obferved,  the  difficulties  attending  this  ftudy 
in  thefe  kingdoms  will  readily  appear ;  but  thefe,  inftead  of  difcouraging, 
ihould  animate  every  gentleman,  and  infpire  him  with  refolution  to  furmount 
them ;  when  he  confiders  them  as  infeparable  from  the  happy  fituation  in 
which  we  are  placed,  and  that  the  character  of  an  upright  and  fkilful 
lawyer  is  one  of  the  moft  glorious,  becaufe  one  of  the  moft  ufeful  to  man* 
kind  ;  that  he  is  a  fupport  and  defence  of  the  weak,  the  protector  of  the  in- 
jured, the  guardian  of  the  lives  and  properties  of  his  fellow  citizens,  the  vin- 
dicator of  public  wrongs,  the  common  fervant  both  of  prince  and  people,  and, 
in  thefe  countries,  the  faithful  guardian  of  thofe  liberties  in  which  we  pride 
ourfelves,  and  which  the  bounteous  Creator  beftowed  originally  on  all  the 
fons  of  Adam,  and  would  have  continued  to  them,  had  they  continued 
worthy  of  the  bl-effing. 

FROM  hence,  1'rkewife,  abundantly  appears  the  neceflity  of  proper 
methods  being  pointed  out  for  the  ftudy  of  the  laws,  and  of  proper  aflift- 
ance  being  given  to  the  youth  intended  for  this  profeflion.  This  was  always 
allowed,  and  for  this  purpofe  were  the  inns  of  court  originally  founded  ^ 
and  it  muft  be  owned,  that  in  ancient  times,  they,  in  a  great  meafure,  an- 
fwered  the  end.  Their  exercifes,  in  thofe  days,  were  not  mere  matters  of 
form,  but  real  tefts  of  the  ftudent's  proficiency.  Their  readers  laid  down* 
in  their  lectures,  the  principles  of  particular  parts  of  the  law,  explained  the 

difficulties* 


LF.CT.  I.  LAWS    OF    ENGLAND.  7 

difficulties,  and  reconciled  the  fecming  contradiction*,  though,  at  the  fame 
time,  it  mud  be  owned,  too  many  of  them  e\<  rted  tlirinielve,  in  ^{.laying 
their  own  ikill  ami  depth  of  knowledge  in  the  prof,  (lion,  rather  than  in  re- 
moving the  obftruclions,  and  fmoothing  the  ruggednefs  which  are  fo  apt  to 
difcourage  beginners,  and  which  all  beginners  nuifl  meet  in  this  untrodden 
path,  without  a  guide.  But,  'fmce  the  time  that  thefe  aids  have  been  there 
laid  alide,  and  that,  in  the  midfl  of  fo  great  and  fo  rich  a  city,  any  degree 
of  reflraint  or  academical  dilcipline,  to  keep  the  dudents  condantly  atten- 
tive to  the  bufinefs  they  are  engaged  in,  hath  been  found  impracticable,  it 
has  been  the  wifli  of  every  confidering  perfon,  that  the  elements  of  this 
fcience  mould  be  taught  in  fome  more  eligible  place,  where  the  ftudents 
may  at  once  have  the  benefit  of  a  proper  method  of  indrucYion,  and  by 
proper  regulations  be  obliged  to  improve  themfelves  in  a  iludy  fo  important 
both  -to  them  and  the  public. 

THAT  the  univerfities,  the  feats  of  all  other  branches  of  learning,  are 
the  places  mod  fit  for  this  purpofe,  hath  been  fo.  fully  proved  by 
Mr  Blackdone,  in  his  preliminary  lecture,  not  long  fmce  reprinted  in  this 
kingdom,  that  it  will  be  much  more  proper  and  decent  for  me  to  refer  gen- 
tlemen to  that  excellent  performance,  than  to  weaken  his  arguments,  by  re- 
peating, in  other  words,  what  he  has  demonftrated,  with  fuch  force  of 
reafon,  and  elegance  of  expreflion.  I  mall  only  add  to  what  he  hath  ob- 
fcrved,  that  every  other  nation  of  Europe  hath  admitted  the  profeflion  of 
their  municipal  laws  into  their  univerfities,  and  that  the  fame  hath  been  the 
opinion  and  practice  of  almoft  every  age  and  country,  as  far  back  as  the  lights 
-of  hiftory  extend.  Were  not  the  laws  of  Egypt,  as  well  as  their  religion, 
phyfick,  hiftory,  and  fciences,  taught  in  the  colleges  of  their  priefts  ?  It  is 
allowed  by  all,  that  the  principal  employment  in  the  fchools  of  the  prophets 
was  the  dudy  of  the  law  of  Mofes  ;  and,  to  come  to  more  modern  times, 
the  very  fird  univerfities  that  were  ever  founded  by  royal  authority,  were 
the  works  of  Roman  emperors,  and  creeled  merely  for  this  profeflion. 
The  famous  academies  of  Rome  for  the  wed>  and  of  Berytus  for  the  eaft, 
furniftied  that  extenfive  empire  with  a  condant  fucceflion  of  excellent  law- 
yers, whofe  names,  and  the  fragments  of  whofe  works  were  held  in  the 
highed  honour,  until  the  inundation  of  barbarians  from  the  north  of 
Europe,  and  the  prevailing  arms  of  the  Saracens  in  the  ead  extinguifhed 
the  Roman  government  in  thole  parts*  But  that  of  Condantinople,  founded 
foon  after  the  tranflation  of  the  feat  of  empire  thither,  had  a  more  happy 

deftiny, 


8  LECTURES     ON     THE  LECT.  r. 

deftiny,  flourifhed  with  diftinguifhed  reputation  to  thefe  later  ages,  and 
perifhed  not,  but  with  the  empire  itfelf,  when  that  city  was  taken  by  the 
Turks.  Nay,  fo  fenfible  were  the  Arabs  themfelves,  who  deflroyed  the 
Roman  academy  of  Berytus,  of  the  utility  of  fuch  inftitutions,  that,  foe 
their  own  law,  they  ere&ed  others  of  the  fame  nature  in  Bagdad  f. 

ANOTHER  powerful  reafon  for  laying  the  foundation  of  this  branch  of  learn- 
ing in  thefe  feats  of  literature,  arifes  from  the  great  utility,  or  rather,  indeed, 
neceffity,  that  all  gentlemen  bred  in  them  are  under,  of  gaining  a  general 
idea,  at  leaft,  of  the  principles  and  practice  of  the  law  of  their  country. 
How  advantageous  this  would  be  to  every  rank  of  gentlemen,  whether  legif- 
lators,  magistrates,  divines,  or  jurymen  ;  and  to  all,  in  Ihort,  who  have  any 
property,  to  preferve,  or  tranfmit,  or  who  have  wimes  or  defires  to  acquire 
any,  may  be  feen  at  large,  illuftrated  by  Mr  Blackftone  in  the  fame  per- 
formance. And  indeed,  if,  before  the  attempt,  there  could  be  any  doubts 
of  the  propriety  of  beginning  this  ftudy  in  an  univerfity,  the  extraordi- 
nary fuccefs  of  his  le&ures  in  Oxford,  and  the  high  reputation  he  hath  fo 
juftly  acquired  thereby,  leave  no  room  for  entertaining  fuch  at  prefent.  For 
though  much  of  both  muft  be  attributed  to  the  fmgular  abilities  of  that 
gentleman,  yet  it  muft  be  allowed  that  the  moft  (kilful  gardener  cannot 
make  a  tree'flourifh  in  a  foil*  unnatural  to  its  growth.  With  the  deepefl 
gratitude,  therefore,  mould  the  members  of  this  univerfity  acknowledge 
the  munificence,  and  the  wifdom  of  our  prefent  moft  gracious  Sovereign,, 
who  eftablimed  the  prefent  foundation  for  the  benefit  of  the  youth  of 
this  kingdom. 

BUT  if  the  importance  of  this  inftitution  to  the  public  be  confidered,  to- 
gether with  the  difficulties  attending  the  juft  execution  of  it,  when  thefe 
difficulties  are  enhanced  by  the  novelty  of  the  attempt,  when  the  public 
attention  is  engaged  by  that  very  novelty,  and  when  the  future  fuccefs  of 
the  foundation,  may,  perhaps,  in  fome  meafure,  depend  on  the  opinion 
conceived  of  it  at  the  beginning;  he  muft,  indeed,  be  pofleffed  of  a  very 
overweaning  opinion  of  his  own  abilities,  who  can  undertake  fo  arduous  a 
tafk,  without' feeling  ftrong  apprehenfions  at  the  firft  fetting  out.  All  the 
return  the  perfon  thought  worthy  by  this  learned  body  to  fill  this  chair  can 
make  them  for  fo  high  an  honour,  and  fo  important  a  truft,  is  to  affur.e 

them, 

f  Conringius  de  Antiquitatibus  Academicis.  Bruckerns,  Hill.  Philof.  Giannoae's  hift.  of 
Naples,  lib.  i.  chap.  10.  §  i.  and  n.  lib.  n.  chap.  6.  §  I. 


LECT.  i.  L  A  WS    OP    EN  G  L  A  N  D.  9 

them,  that  the  utmoft  care,  and  the  greateft  exertion  of  what  knowledge 
and  abilities  he  poflcfleth,  (hall  be  employed  to  anfwer  the  ends  propofcd, 
and  to  juftify,  as  far  as  in  him  lies,  the  choice  they  have  made.  And  if  the 
young  gentlemen  for  whole  benefit  thcfe  lectures  are  defigned,  poficflcd 
with  a  jufl  notion  of  the  great  utility  to  themfclves,  and  their  country, 
of  the  fludy  they  are  engaged  in,  will  exert  that  induflry,  for  the  honour 
of  their  mother  univerfity,  which  hath  made  her  fo  long  famous  for  other 
branches  of  learning ;  he  doubteth  not  but  his  weak  endeavours  at  the  firft 
effay,  will  not  only  merit  indulgence,  but  in  the  end  be  crowned  with  con- 
fiderable  fuccefs.  On  their  afliduity,  as  well  as  upon  his  fkill,  muft  the 
fuccefs  of  the  undertaking  depend. 

IN  the  next  lecture  the  grounds  and  reafons  of  the  plan  propofed,  as  mod 
proper  for  the  commencing  this  ftudy  in  this  univerfity,  mail  be  laid  open, 
in  hopes  that  the  fludents  will  proceed  with  the  more  alacrity,  if  they  can. 
be  once  convinced  they  are  fet  in  the  right  track,  and  that,  by  the  profef- 
for's  laying  before  the  public  the  inducements  he  had  to  prefer  this  before 
any  other,  he  may  acquire  information  from  the  ikilful  of  it  errors  and 
imperfections ,  and,  confequently,  alter  it,  fo  as  moft  effectually  to  anfwer 
the  ufeful  ends  of  the  inftitution. 


LECTURE 


L  E  C  T  U  R  E  S    ON    THE  LECT.  2. 


LECTURE         II. 

The  plan  of  the  prefent  undertaking — The  particulars  in  which  it  differs  from 
that  adopted  by  Mr  Elackftone — The  different  foliations  of  the  Univerfitics  of 
Oxford  and  Dublin— The  chief  obftruftions  which  occur  to  thejiudent  of  the 
Eng/i/Jj  laws — The  methods  which  may  be  employed  to  remove  them — The  law  of 
things  more  proper  to  introduce  afyftem  ofjurifprudence  than  the  law  ofperfons 
— The  law  of  things,  or  of  real  property  in  England,  has  its  four  ce  in  the  feudal 
cuftoms — The  neceffity  of  a  general,  acquaintance  with  the  principles  of  the  feudal 
polity — The  method  in  which  it  is  propofed  to  treat  of  it* 

HAVING,  in  the  preceding  lecture,  fhewn  the  neceffity  of  a  proper 
method  being  pointed  out  for  the  ftudy  of  the  laws  of  thefe  king- 
doms, from  the  utility,  as  well  as  multiplicity  of  them ;  and  having  ex- 
plained from  whence  that  multiplicity  arifes,  and  that  it  is  infeparable  from 
the  happy  fituation  we  are  placed  in  ;  and  having  acknowledged  the  great 
advantage  the  ftudents  of  Oxford  have  received  from  Mr.  Blackftone's  lec- 
tures, it  will  doubtlefs  be  thought  neceflary,  that  fomething  mould  be  faid 
by  way  of  illuftration  of  the  plan  propofed  to  be  followed  here,  and  in 
juftifkation  of  its  departure  from  the  excellent  one  which  that  gentleman, 
has  given  us  in  his  analyfis.  The  method  of  inftrucYion  intended  to  be  pur- 
fued  in  this  place  is  not  propofed  as  more  perfect,  or  abfolutely  better  in  it- 
felf,  but  as  one  that  appears  more  adapted  to  the  circumftances  of  our  flu- 
dents  ;  and  as  it  will  be  allowed,  that  his  courfe  of  lectures,  in  the  manner 
they  proceed,  hath  fome  great  advantages  as  to  the  finilhing  a  lawyer,  which 
cannot  be  attained,  and  therefore  mould  not  be  attempted  here,  it  will  be 
particularly  the  duty  of  your  profeffor  to  compenfate  for  thofe,  by  guarding 
againft  fome  inconveniencies,  which  trie  extenfivenefs  of  his  plan  muft  of 
neceffity  fubjecl:  young  beginners  to.  I  mall,  therefore,  proceed  briefly  to 
compare  the  fituation  of  the  two  univerfities,  in  hopes,  by  that  confidera- 
tion,  in  fome  meafure  to  vindicate  the  feveral  particulars  wherein  I  have 
chofen  to  vary  from  his  fcheme.  The  attendance  on  the  courts  of  Weft- 
minfler-Hall,  when  once  a  gentleman  hath  read  and  digefted  enough  to- 
liflen  with  underilanding  to  what  he  there  hears,  hath,  for  a  fucceffion  of 

ages. 


LECT.  2.          L  A  W  S    OF     E  N  G  L  A  N  D.  ir 

ages,  been  allowed  to  be,  and   it  mud  be  owned  is,  the  moil  effectual 
ins  of  accomplifliing  a  lawyer,  and  fitting  him  for  practice.     In  this  rc- 
Oxlord,  in  her  proximity  lo  \Vtlhninlier,  hath  certainly  an  advantage, 
as  to  her  law  iludents  (»f  above  two  years  (landing,   v  at  that  time 

be  fuppofed  capable  of  improvement  by  the  arguments  in  the 'courts  of  law  ; 
ns  flic  is  thereby  rendered  capable  of  conjoining  thofe  two  excellent  methods 
of  inftrudion.  Mr.  Blackftonc  was  fully  fcnfible  of  this  happy  circum- 
ftance,  and,  accordingly,  his  fchemc  is  adapted  to  it.  All  the  lectures  there 
are  appointed  at  times  that  fall  in  the  law  vacations,  and  the  courfe  is  gene- 
ral and  diiFufive,  not  calculated  merely  for  attendants  of  the  firil  and 
fecond  years,  but  adapted  alfo  to  thofe  of  a  more  advanced  Handing,  and 
confequently,  in  a  manner  equally  copious,  or  very  nearly  fo,  illuftratcs 
every  one  of  the  icyeral  branches  of  the  Englifli  law.  But  this  method, 
however  excellent  in  itfelf,  and  moft  eligible  where  gentlemen  can  have  an 
opportunity  of  attending  the  profeflbr  for  feveral  fucceflive  years,  mud,  on 
the  other  hand,  be  allowed  to  labour  under  fome  inconveniencies,  efpecially 
as  to  thofe  who  are  yet  novices,  which,  as  it  mould  be  the  particular  care 
of  the  profeffbr  here  to  obviate,  it  cannot  be  improper  briefly  to  point  out. 

As  the  lectures  of  the  Englifh  profeflbr  are  all  read  in  the  law  vacations, 
and  in  all  of  them,  except  the  long  onj,  when  few  young  gentlemen  of  for* 
tune  flay  in  the  univerfities,  the  fhortnefs  of  thefe  vacations  neceflarily  occa- 
fions  thefe  lectures  to  follow  each  other  in  a  very  quick  fucceflion  ;  and,  ac- 
cordingly, we  find  that  five  are  delivered  in  every  week.  It  is  impoflible, 
therefore,  that  the  fhidents  at  firft  mould  keep  any  manner  of  pace  with 
their  profeflbr  in  their  private  reading,  without  which  the  ableft  perfor- 
mances in  the  way  of  prelections  will  be  of  little  utility.  Many  things  in 
the  fucceeding  ones  muft  be  rendered  very  difficult,  if  not  abfolutely  unin- 
telligible, for  want  of  a  due  time  for  maftering  and  digefting  thofe  that  pre- 
ceded ;  and  another  unhappy  confequence  of  this  quick  fucceflion  is,  that 
the  moft  ufeful  and  effectual  method  of  inftruction  to  beginners,  at  their 
entrance  upon  any  fcience,  namely,  a  continued  examination  of  die  pro- 
grefs  they  have  made,  is  hereby  entirely  precluded,  and  rendered  impracti- 
cable. The  great  advantage  of  that  method  need  not  be  enlarged  upon  in 
this  place,  as  every  gentleman  who  hears  me  muft  be  already  fully  fatisfied 
of  it  from  his  own  experiencet 

BUT 


12  LECTURES    ON     THE  LECT.  2, 

BUT  this  univerfity  is  circumftanced  in  a  very  different  manner.  The 
neceffity  our  fludents  are  under  of  repairing  to  Weftminfter,  to  finifh  their 
ftudies,  before  they  are  called  to  the  bar,  and  their  incapacity  to  reap  any 
benefit  from  the  courts  of  law  while  they  refide  here,  render  it  impoffible, 
as  well  as  unneceffary,  to  conjoin  thofe  two  methods  of  inflru&ion  before- 
mentioned,  as  is  done  at  Oxford  ;  and,  by  confining  the  profeffor  to  pupils 
of  two  years  ftanding  or  little  more,  make  it  highly  improper  for  him 
to  enter  minutely  into  thofe  parts  of  the  law  his  audience  have  not 
yet  had  time  to  apply  to.  His  great  objeft,  therefore,  mould  be  fo  to 
frame  his  lectures,  as  to  be  mod  ufeful  to  youth  at  the  beginning,  to  be 
particular  and  copious  in  the  elementary  parts,  in  order  to  lay  a  fure  foun- 
dation, and  to  fmooth  and  make  plain  the  difficulties  which  at  firft  will 
every  where  occur. .  And  as,  for  thefe  reafons,  a  general  and  equally  diffu- 
five  courfe  is  a  method  improper  for  him  to  purfue,  it  mould  be  his  efpe- 
cial  care  to  avoid,  or  remedy  the  inconveniencies  with  which  fuch  an  one 
is  neceffarily  attended. 

IT  is  a  well  known  truth,  that  the  entrance  on  any  ftudy,  however  eafy 
and  agreeable  fuch  ftudy  might  be  after  fome  progrefs  made  in  it,  is  at 
the  beginning  very  irkfome,  and  attended  with  many  perplexities ;  princi- 
pally arifing  from  the  ufe  of  new  terms,  whofe  fignifications  are  yet  un- 
known. But  the  laws  of  all  nations,  and  thofe  of  England  above  all 
others,  abound  in  fuch  novel  words,  and  old  ones  ufed  in  an  uncommon 
fenfe,  more  than  any  other  fcience,  and  therefore  muft  be  attended  with 
difficulties  in  proportion.  And  although  many  of  its  terms  occur  frequently 
in  common  converfation,  and  may,  confequently,  be  fuppofed  already 
underftood,  this  is  rather  a  difadvantage  than  otherwife ;  for  in  common 
difcourfe  they  are  ufed  in  fo  vague  and  undetermined  a  meaning,  and  fo 
far  from  drift  precifion  and  propriety,  that  it  is  no  wonder  fo  many  perfons 
exclaim  at  the  abfurdity  of  its  maxims  ;  which,  though  frequently  in  their 
mouths,  they  do  not  really  underftand.  Young  gentlemen,  then,  have 
not  only  many  new  words  to  acquire  the  fignification  of,  but  they  mufl 
likewife  unlearn  the  import  of  many  others  they  are  already  acquainted 
with,  and  affix  to  thofe  familiar  terms  new  and  precife  ideas,  a  tafk,  as 
Mr.  Locke  obferves,  of  no  fmall  difficulty,  and  that  requires  not  only  the 
itri&eft  attention,  but  conftant  care  and  frequent  repetition.  Another  great 
difficulty  the  fturiy  of  the  law  of  England  labours  under,  peculiar  to  itfelf, 

is 


LFCT.  2.  L  A  \V  S     OF     E  N  G  L  A  N  D.  13 

is  that  want  of  method,  fo  obvious  to  be  obfervecl,  and  fo  often  complained 
of  in  its  writers  of  authority,  infomuch,  that  almoft  all  of  them,  and  lord 
Coke  particularly,  arc  too  apt  to  puzzle  and  bewilder  young  IK  Dinners; 
whereas  other  laws,  the  civil,  the  canon,  the  feudal,  have  books  of  appro- 
ved authority,  (and  none  other  but  fuch  (hould  be  put  into  the  ftudents 
hands,)  calculated  purpofely  for  the  inflruction  of  novices  ;  wherein  the 
general  outlines  of  the  whole  law  are  laid  down,  the  feveral  parts  of  it  pro- 
perly  diftributcd,  its  terms  explained,  and  the  mod  common  of  its  rules  and 
maxims,  with  the  reafons  of  them,  delivered  and  inculcated.  It  is  not  to 
be  admired  then  that  Sir  Henry  S  pel  man  fo  pathetically  defcribes  his  di- 
ftrefs  at  his  firfl  entrance  upon  this  fludy.  Emifit  me  mater  Londinum,  juris 
nqftri  capeffcndi  gratia^  citjus  cum  'vcjllbulum  falutajfem^  rcpcrijjemque  linguam 
percgrinam,  dialettum  barbaram,  mcthodum  inconclnnam^  molem  non  ingcntem 
faluni)  fed  perpctuis  humcris  fuftincndam,  cxcidit  mihi  fateor  animus  |. 

THESE  then  are  the  obftructions  to  be  removed,  and  the  difficulties 
to  be  obviated,  by  a  profeflbr  who  confiders  it  his  bufinefs  to  lead  by 
the  hand  young  gentlemen,  yet  ftrangers  to  the  ftudy ;  and  for  this 
purpofe  he  mould  exert  his  utmoft  care  and  attention,  not  to  overburthcn 
the  memories,  or  to  diffract  the  attention  of  his  audience  with  too  great 
variety  at  firft,  but  to  feed  them  with  knowledge  as  he  finds  them  capable, 
and  to  give  them  time,  by  reading  and  meditation.,  to  become  mailers  of 
what  they  have  already  acquired,  and  by  frequent  examinations  to  fatisfy 
li'r-  felf  they  thoroughly  comprehend  and  retain  the  fubftance  of  his  pair, 
lectures.  The  utility  of  this  laft  method,  by  which  the  ftudents  will  be  laid 
under  a  neceflity  of  reading  in  private,  as  to  them,  will  be  readily  allowed ; 
but  taken  in  another  view  will  be  of  no  lefs  affiftance  to  the  profeflbr  him- 
felf,  in  framing  the  prelections  he  is  to  read.  He  will  not  only  be  encou- 
raged to  proceed  with  more  alacrity,  when  he  daily  obferves  the  fuccefs  of 
his  endeavours,  but  alfo,  by  the  trial,  be  convinced  of  any  defects  or  errors 
in  his  plan  that  before  efcaped  his  obfervation,  and  will  be  warned  thereby 
to  amend  them  ;  and  he  will  by  this  means  be  particularly  and  perpetually 
cautioned  againfl  the  great  and  too  common  miflake  of  tutors,  namely, 
their  imagining  that  fuch  explications  as  are  eafy  and  familiar  to  them,  will 
be  equally  obvious  to  unexperienced  youth.  But  an  examination  will  de- 
monftrably  (hew  him  where  his  illuftrations  have  been  defective  or  obfcure, 

and 
f  Pracfat.  ad  GlofTar. 


14  LECTURES     ON     THE  LECT.  2* 

and  will  oblige  him  to  accommodate  his  lectures  to  the  capacity  and  pro- 
grefs  of  his  hearers.  The  next  variation  in  the  prefent  plan  from  that  of 
Mr  Blackflone,  to  be  taken  notice  of,  is  the  propofal  of  beginning  with  the 
law  of  things,  not  with  the  law  of  perfons^  he  hath  done.  It  mud  be  allow- 
ed impoffible  thoroughly  to  underftand  the  law  of  things,  without  fome 
previous  knowledge  of  that  of  perfons ;  but  it  is  equally  impoffible  to  be 
matter  of  the  law  of  perfons,  without  an  acquaintance  with  that  of  things. 
Since,  therefore,  we  mufl  begin  with  one  of  them,  perhaps  it  will  be  fuffi- 
cient  to  obferve,  that  fuch  knowledge  of  the  names  and  relations  of  perfons, 
as  is  generally  acquired  by  obfervation,  before  a  perfon  arrives  at  an  age  fit 
for  engaging  in  this  ftudy,  will  enable  him  tolerably  to  underftand  the  law  of 
things  ;  and  that  whatever  more  is  neceflary,  and  hath  not  been  attained  by 
this  means,  may  be  eafily  fupplied  as  the  ftudent  goes  on.  And,  that  I 
may  not  be  thought  to  lean  too  much  on  my  own  opinion  in  this  particular, 
I  fliall  quote  the  famous  Sir  Matthew  Hale  to  the  fame  purpofe  ;  who,  in  his 
Analyfis,  introduces  the  law  of  things  in  the  following  manner  :  "  Having 
*'  done  with  the  rights  of  perfons,  I  now  come  to  the  rights  of  things ;  and, 
"  though,  according  to  the  ufual  method  of  civilians,  and  of  our  ancient 
"  common  law  tractates,  this  comes  in  the  fecond  place,  and  after  the  jura. 
"  perfomrum,  and  therefore  I  have  herein  purfued  the  fame  courfe  ;  yet  that 
"  muft  not  be  the  method  of  a  young  ftudent  of  the  common  law,  but  he 
*'  muft  begin  his  ftudy  here,  at  the  jura  rcrum  ;  for  the  former  part  contains 
8<  matter  proper  for  the  ftudy  of  one  that  is  well  acquainted  with  thofejura 
*'  rerum\"  And,  agreeably  hereto,  the  wifdom  of  ages  hath  declared 
Littleton's  Tenures^  which  contains  the  common  law  of  England,  as  far  as  it 
concerns  real  property,  that  is,  lands  or  interefts  derived  out  of  and  flowing 
from  them,  to  be  the  book  moft  proper  for  ftudents  to  begin  with,  in  their 
ftudy  of  the  law  of  thefe  nations. 

TAKING  it  then  for  granted  at  prefent,  that  the  law  of  real  property  is  the 
ntteft  introduction,  it  will  be  neceflary,  as  it  is  confefied  to  be  the  moft 
important,  the  moft  extenfive,  and,  in  confequence,  the  moft  difficult  part* 
to  lay  the  foundation  deep  and  fure,  and  to  derive  its  rules  from  what  is 
now  univerfally  allowed  to  be  its  fource,  the  feudal  cuftoms.  This,  indeed, 
hath  been  denied  by  Lord  Coke,  and  others  of  his  age ;  who  thought  it 
would  depreciate  the  excellence  of  the  laws  of  their  country,  to  admit  they 
svere  derived  from  any  other  nation.  But  if  thofe  gentlemen  had  read  over 

but 

t  P.  55. 


LECT.  2.          LAWS    OF     ENGLAND.  ij 

but  once  the  two  books  of  the  feudal  law  with  tolerable  attention,  they 
mufl  have  received  conviction,  that  one  of  the  laws  was  certainly  derived 
from  the  other ;  and  which  of  them  was  fo  would  eafily  appear,  by  com- 
paring  the  law  of  England  after  the  conqueft,  with  that  which  prevailed  in 
the  Saxon  times,  and  was  not  flridly  feudal,  exclufive  of  the  teflimony  of 
the  old  hiitorians. 

BUT,  perhaps,  for  this  purpofe,  it  may  be  thought  fufHcient  to  explaia 
and  deduce  thefe  rules  from  the  feudal  ones,  as  they  occur  occasionally 
in  the  books  of  the  common  law  ;  which  is  the  method,  that,  in  confor- 
mity to  the  reft  of  his  plan,  the  Oxford  profeifor  has  adopted,  and  that  the 
reading  through  a  courfe  of  that  law,  even  the  fhorteft,  will  be  attended 
with  an  unprofitable  delay,  and  detain  the  (Indents  too  long  from  their 
principal  object.  The  anfwer  to  this  objection  is  fhort,  and,  if  well 
founded,  perfectly  fatisfactory.  It  is,  that  the  real  reafon  of  propofmg  a 
fyftem  of  the  feudal  law  to  be  gone  through,  was  to  fave  time.  The  method 
is  fo  much  better,  and  clearer,  and,  by  neceflary  confequence,  fo  much 
cafier  to  be  comprehended,  and  retained,  that  the  delay  will  be  abundantly 
compenfated,  and  one  third  at  leaft  of  Littleton  will  be  underftood,  and 
known  by  the  fludents,  before  they  open  his  book.  For  the  maxims  of  the 
common  law,  as  they  lie  difperfed  in  our  books,  often  without  reafons,  and 
often  with  falfe  or  frivolous  ones,  appear  disjointed  and  unconnected,  and 
as  fo  many  feparate  and  independent  axioms  ;  and  in  this  light  very  many 
ofthemmuft  appear  unaccountable,  at  leaft,  if  not  abfurd ;  whereas,  in 
truth,  they  are  almoft  ev-ery  one  of  them  deducible,  by  a  train  of  neceflary 
confequences,  from  a  few  plain  and  fimple  rules,  that  were  abfolutely  ne- 
cefiary  to  the  being  and  prefervation  of  fuch  kind  of  conftitutions  as  the 
feudal  kingdoms  were.  The  knowledge  of  which  few,  timely  obtained, 
will  obviate  the  neceffity  of  frequent  and  laboured  illuftrations,  as  often  as 
thefe  maxims  occur  in  our  law,  will  reconcile  many  feeming  contradictions,, 
and  will  (hew  that  many  diilinctions,  which  at  firft  view  appear  to  be  with- 
out a  difference,  are  founded  in  juft  and  evident  reafon  :  to  fay  nothing  of 
the  improvement  the  mind  will  attain  by  exercife,  in  following  fuch  a  train 
of  deductions,  and  the  great  help  to  the  memory,  by  acquiring  a  perfect 
knowledge  of  the  true  grounds  of  thofe  various  rules,  and  of  their  mutual 
connection  with  and  dependence  on  each  other.  Ignoratis  caitfis  rcrum,  nt 
res  ipfas  ignorctis,  necejft  £/?,  is  a  maxim  frequently  in  our  lawyers  mouths ; 

and 


16  LECTURES     ON     THE  LEcr.2, 

and  Littleton  and  Coke  continually  exhort  the  fludent  to  explore  the 
grounds  and  reafons  of  the  law,  as  the  only  fafe  foundations  to  build  on, 
and  deny  that  any  man,  without  being  perfectly  acquainted  with  them,  can 
merit  the  honourable  appellation  of  a  lawyer. 

BUT  there  is  another,  and,  for  gentlemen  of  rank  and  fortune  particu- 
larly, a  more  important  confideration,  that  renders  a  general  acquaintance 
with  the  principles  of  the  feudal  law  very  proper  at  all  times,  but  at  pre- 
fent  eminently  fo  ;  namely,  the  neceffity  of  knowing  thefe,  for  the  under- 
flanding  the  nature  of  thofe  Gothic  forms  of  government,  which,  until 
thefe  lafl  three  hundred  years,  prevailed  univerfally  through  Europe,  and 
whence  the  prefent  conflitution,  with  fever al  corrections  and  improvements 
indeed,  in  which  thefe  iflands  are  now  fo  happy,  is  undoubtedly  derived. 
From  hence  only  fliall  we  be  able  to  determine  whether  the  monarchy  of 
England,  as  is  pretended,  was  originally  and  rightfully  an  abfolute  royalty, 
controuled  and  checked  by  the  virtue  of  the  prince  alone,  and  whether  the 
privileges  of  the  fubjects,  which  we  are  fo  proud  of,  were  ufurpations  on  the 
royal  authority,  the  fruits  of  profperous  rebellion,  or  at  befl  the  concef- 
fions  of  gracious  princes  to  a  dutiful  people,  and  revockable  by  them  or 
their  mcceflbrs,  whenever,  in  their  opinion,  their  vaflals  mould  become 
undeferving ;  principles  that  were  induflrioufly,  and,  to  the  misfortune  of 
a  deluded  royal  family,  too  fuccefsfully  propagated  during  the  lafl  century,, 
and  that,  of  late,  have  been  revived  and  defended,  with  no  lefs  zeal,  than 
feeming  plaufibility.  Every  man,  indeed,  of  candour  and  humanity,  will 
look  with  tendernefs  on  the  errors  of  princes,  unhappily  educated  in  mif- 
taken  notions,  and  make  due  allowances  for  the  weight,  which  arguments 
urged  with  great  apparent  force  of  reafon,  concurring  with  the  luft  of 
power,  fo  natural  to  the  human  breafl,  will  certainly  have  on  fuch  minds ; 
but,  furely,  this  indulgence  may  be  carried  too  far,  and  will  be  allowed  fo  to. 
be,  if,  for  their  juflification,  it  mall  appear,  upon  examination,  that  the 
hiflory  of  pad  ages  has  been  partially  delivered  down,  and  perverted  ;  and 
that  to  the  vain  and  unprofitable  grandeur  of  the  prince,  the  happinefs  of 
millions,  and  their  poflerity,  hath  been  attempted  to  be  offered  up  in  facri- 
fice.  The  queftion  is  of  a  matter  of  fact ;  for  on  the  decifion  of  the  fact, 
how  the  conflitution  of  England  antiently  flood,  the  queflion  of  the  right 
folely  depends.  And  furely  it  is  the  duty  of  every  gentleman  to  inform 
himfelf,  on  the  befl  grounds,  whether  thofe  great  men,  who,  for  a  fuccef- 

fion 


LECT.  2.          LAWS    OF     E  N  G  L  A  N  D.  17 

fion  of  apes,  cxpofed  their  lives  in  the  field,  or  exerted  their  eloquence  and 
\vifdom  in  the  fenate,  for  the  purp.iic  of  preferring,  and  perpetuating  thcfc 
privileges,  deferved  the  honourable  name  of  patriots,  or  the  deteflable  ap- 
pellation of  rebels  ;  whether  the  grievances  our  glorious  deliverer  came  to 
redrefs  were  real  or  imaginary  ;  or,  if  real,  were  fuch  as  our  lathers  were  in 
conference  bound  to  fubmit  to;  and  whether  \\e  can  with  juftice  give  to 
the  family  that  now  fills  our  throne  with  fuch  luflre  and  dignity,  that  title 
which  they  have  always  elleemed  as  their  highefl  honour,  of  being  the  lords 
of  freemen,  and  the  afiertors  of  the  liberties  of  mankind. 

As  the  book  *  which  it  is  intended  the  young  gentlemen  mail  read  for 
the  purpofe  of  acquiring  a  general  idea  of  the  feudal  law,  is  compofed 
in  a  fyftematical  method,  it  is  propofed  that  thefe  lectures  (hall  proceed 
in  an  hiftorical  one,  in  order  to  (hew  the  original  reafons  of  thofe  cu- 
floms,  and  to  point  out  from  what  fmall  beginnings,  and  by  what  particu- 
lar fteps  and  gradations  the  mighty  fabrick  rofe.  By  this  means  the  addi- 
tions to,  and  the  alterations  of  the  law  will  be  feen  in  a  clearer  light,  when 
\ve  are  acquainted  with  the  nature  of  the  regulations  already  in  being ;  and 
by  knowing  the  circumflances  of  the  times,  can  at  once  perceive  the  wif- 
dom  and  neceflity  of  fuch  additions  and  alterations.  And  it  is  hard  to 
imagine  a  ftudy  more  improving,  more  agreeable,  or  better  adapted  to  a 
liberal  mind,  than  to  learn  how,  from  a  mere  military  fyflem,  formed  and 
created  by  the  necemties  of  a  barbarous  people,  for  the  prefervation  of  their 
conquefts,  a  more  extenfive  and  generous  model  of  government,  bet- 
ter adapted  to  the  natural  liberties  of  mankind,  took  place ;  how,  by 
degrees,  as  the  danger  from  the  vanquifhed  fubfided,  the  feudal  policy 
opened  her  arms,  and  gradually  received  the  moft  eminent  of  the  conquered 
nation  to  make  one  people  with  their  conquerors  ;  how  arts  and  commerce, 
at  firft  contemptible  to  a  fierce  and  favage  people,  in  time  gained  credit  to 
their  profeflbrs,  and  an  admittance  for  them  into  the  privileges  of  the  focie- 
ty  ;  and  how,  at  length,  with  refpett  to  the  loweft  clafs  of  people,  which  (till 
continued  in  fervitude,  its  rigour  infenfibly  abated ;  until,  in  the  end,  the 
chains  of  valfalage  fell  oft"  of  themfelves,  and  left  the  meanelt  individual,  in 
point  of  fecurity,  on  an  equal  footing  with  the  greateit. 

C  THUS 

*  Corvini  jus  feudale. 


i8  LECTURES     ON     THE  LECT.  2. 

THUS  much  has  been  thought  neceflary  to  obferve,  in  order  to  mew  the 
reafons  of  propofmg  a  courfe  of  the  feudal  laws,  as  an  introdu&ion  to  the 
Englifh  ;  to  which  may  be  added,  that  this  method  hath  received  the  ap- 
probation of  many  good  judges,  and  hath,  in  experience,  been  found  not 
only  ufeful  for  the  end  propofed,  as  it  is  the  conftant  practice  in  Scotland, 
whofe  laws,  except  in  the  manner  of  adminiflering  juftice,  differ  little  from 
ours,  and  hath  been  alfo  ufed  in  England  with  good  fuccefsj  but,  at  the 
feme  time  entertaining,  and  improving  in  other  refpeds. 

As  we  are  to  begin,  therefore,  with  this  law,  the  obfervations  on  the  re- 
maining parts  of  the  plan  may  be,  for  the  prefent,  deferred  ;  I  mail,  in  my 
next  lefture,  begin  to  deduce  the  origin  of  this  law,  and  of  its  rules,  from 
the  cuftoms  of  the  German  nations,  before  they  invaded  the  Roman  empire. 


LECTURE 


LECT.  3.  LAWS    OF    ENGLAND. 


LECTURE         III. 

An  enumeration  and  confutation  of  fiveral  opinions  concerning  the  found 
of  the  feudal  cujloms — The  origin  and  rules  of  the  feudal  law  to  be  deduced 
from  the  inftitution  of  the  German  nations  before  they  invaded  the  Roman  em- 
pire— The  Englifo  indebted  for  this  law  to  the  Franks — A  general  defeription 
of  this  people,  ivith  an  account  of  thefcvcral  orders  of  men  inlo  •which  they 
•were  divided  while  they  continued  in  Germany. 

THE  feudal  cuftoms  fucceeded  the  Roman  imperial  law  in  almoft 
every  country  in  Europe,  and  became  a  kind  of  a  jus  gentium  ;  but 
having  fprung  up  in  rude  illiterate  ages,  and  grown  by  flow  degrees  to 
a  ftate  of  maturity,  it  is  no  wonder  that  very  different  have  been  the  opi- 
nions concerning  their  origin,  and  that  many  nations  have  contended  for  the 
honour  of  giving  them  birth,  and  of  having  communicated  them  to  others. 
Several  eminent  civilians,  fmit  with  the  beauty  of  the  Roman  law,  and  filled 
with  magnificent  ideas  of  the  greatnefs  of  that  empire,  have  imagined  that 
nothing  noble,  beautiful,  or  wife,  in  the  fcience  of  legiflation,  could  flow 
from  any  other  fource  ;  and,  accordingly,  have  fixed  on  Rome  as  the  parent 
of  the  feudal  conflitutions.  But  as  the  paths  of  error  are  many,  and  difa- 
greeing,  fo  have  their  endeavours  to  make  out,  and  defend  this  opinion, 
been  various  in  proportion  ;  a  fhort  mention  of  them,  and  a  very  few  ob- 
fervations,  will  be  fufficient  to  convince  us,  that  they  have  been  all  miftaken. 

FIRST,  then,  fome  civil  lawyers  have  difcovered  a  likenefs  between  the 
Roman  patrons  and  clients,  an  inftitution  as  early  as  Romulus  himfelf,  and 
the  feudal  lords  and  vaflfalsf.  The  clients,  we  are  told,  paid  the  higheft 
deference  and  refpeft  to  their  patrons,  aflifted  them  with  their  votes  and 
intereft ;  and,  if  reduced  to  indigence,  fupplied  their  neccflities  by  contri- 
butions among  themfelves,  and  portioned  off  their  daughters.  On  the 
other  hand,  the  patrons  were  (landing  advocates  for  their  clients,  and 
obliged  to  defend,  in  the  courts  of  law,  their  lives  and  fortunes.  The  like 
refpect  was  paid  by  vaffals  to  their  lords,  and  fimilar  aiMance  was  given 

C  2  rcfpeft 

t  See  Craig,  de  Feud.  lib.  I.  dieg.  5.  and  Selden's  Titles  of  Honour,  part  fecond,  chap.  i. 
§  23.  Bafiiage,  Coutume  reformce  de  Nonnandie,  torn.  I.  p.  139. 


20          .       LECTURES     ON     THE  LECT.  3. 

to  their  wants.  The  fortune  of  the  firfl  daughter,  at  leafl,  was  always  paid 
by  them,  and  if  they  were  impleaded,  they  called  in  their  lords  to  warrant 
and  defend  their  lands  and  other  property.  Thus  far,  we  muft  confefs, 
there  is  a  flrong  refemblance  ;  but  the  differences  are  no  lefs  material,  and 
fliew  plainly  that  the  one  could  not  proceed  from  the  other.  The  connection 
between  the  patron  and  the  client  was  merely  civil ;  whereas  the  relation  be- 
tween the  lord  and  the  proper  vaffal  was  entirely  military  ;  and  his  fealty  to 
his  fuperior  was  confirmed  by  the  fancYion  of  an  oath,  whereas  there  was  no 
fuch  tie  between  patron  and  client.  The  aids  which  the  tenant  gave  to  his 
lord's  neceffities,  except  in  three  inflances,  eftablilhed  by  cuflom,  to  redeem 
his  lord's  body  taken  in  war,  to  make  his  eldefl  fon  a  knight,  and  for  the 
firfl  marriage  of  his  eldefl  daughter,  were  purely  voluntary.  But  the  great 
point  which  diftinguifhes  them  was,  that  whereas  the  Roman  client's  eftate 
was  his  abfolute  property,  and  in  his  own  difpofal,  the  feudal  vaflal  had  but  a 
qualified  interefl.  He  could  not  bequeath,  he  could  not  alien,  without  his 
lord's  confent.  The  domlnium  verum  remained  with  the  lord  to  whom  the 
land  originally  had  belonged,  and  from  whom  it  moved  to  the  tenant. 
Upon  the  failure  therefore  of  the  tenant's  life,  if  it  was  not  granted  tranf- 
miflible  to  heirs,  or  if  it  was,  on  the  failure  of  heirs  to  the  lands,  it  reverted 
to  the  original  proprietor.  Neither  was  the  lord,  on  all  occafions,  and  in 
every  caufe,  bound  to  be  his  vaffal's  advocate,  or,  as  they  exprefs  it,  bound 
to  warranty,  and  obliged  to  come  in  and  defend  his  tenant's  right  and  pro- 
perty. For  the  fealty  on  one  fide,  and  the  protection  on  the  other,  ex- 
tended no  farther  than  the  feudal  contract  j  and  therefore  the  one  was  not 
bound  to  warrant  any  of  the  tenant's  lands,  but  fuch  as  were  holden  of  him, 
nor  the  other  to  give  aid,  or  do  fervice  in  regard  of  his  whole  property, 
but  in  proportion  to  that  only  which  he  derived  from  his  fuperior.  Add  to 
this,  that  the  lord,  in  confideration  of  the  lands  having  been  originally  his, 
retained  a  jurifdi&ion  over  all  his  tenants  dwelling  thereon,  and  in  his  court 
fat  in  judgment,  and  determined  their  controverfies.  Thefe  flriking  diverfities 
(and  many  more  there  are)  it  is  apprehended,  will  be  fufficient  to  demon- 
flrate  the  impombility  of  deriving  the  feudal  cufloms  from  the  old  inflitution 
of  patron  and  client  among  the  Romans. 

SECONDLY,  Others,  fenfible  that  military  fervice  was  the  firfl  fpring,  and 
the  grand  confideration  of  all  feudal  donations,  have  furmifed,  that  the 

grants 


LECT.  3.  L  A  W  S    OF    E  N  G  L  A  N  D.  21 

grants  of  forfeited  lands  by  the  dictators  Sylla  and  Ca:far,  and  afterwards 
by  the  triumvirs  Odavius,  Anthony  and  Lcpidus,  to  their  veterans,  gave 
the  firit  rife  to  themf.  In  anfwer  to  this,  I  obierve,  that  thofe  lands,  when 
once  given,  were  of  the  nature  of  all  other  Roman  eftates,  and  as  different 
from  fiefs,  as  the  eflates  of  clients,  which  we  have  already  fpoken  of, 
were.  Befides,  thefe  were  given  as  a  reward  for  pad  fervices,  to  foldicrs 
worn  out  with  toil,  and  unfit  for  farther  warfare  ;  whereas  fid's  were  given 
at  firfl  gratuitoufly,  and  to  vigorous  warriors,  to  enable  them  to  do  future 
military  fervice. 

OTHERS  have  looked  upon  the  emperor  Alexander  SeverusJ  as  the  firfl 
introducer  of  thefe  tenures,  becaufe  he  had  diftributed  lands  on  the  borders 
of  the  empire,  which  he  had  recovered  from  the  Barbarians,  among  his 
foldiers,  on  the  condition  of  their  defending  them  from  the  incurfions  of 
the  enemy;  and  had  granted,  likewife,  that  they  might  pafs  to  their  chil- 
dren, provided  they  continued  the  fame  defence.  This  opinion,  indeed, 
is  more  plaufible  than  any  of  the  reft  that  derive  their  origin  from  the 
Romans,  as  thefe  lands  were  given  in  confideration  of  future  military  fer- 
vice ;  yet,  when  we  confider,  on  the  one  hand,  that  in  no  other  inftance 
did  thefe  eftates  agree  with  fiefs,  but  had  all  the  marks  of  Roman  property; 
and  that,  on  the  other  hand,  feudal  grants  were  not,  for  many  ages,  de- 
fcendible  to  heirs,  but  ended,  at  fartheft,  with  the  life  of  the  grantee,  we  fhaU 
be  obliged  to  allow  this  notion  to  be  as  untenable  as  any  of  the  foregoing. 

THE  furmife  of  fome  others,  that  the  feudal  tenancies  were  derived  from 
the  Roman  agents,  bailiffs,  ufufruduaries,  or  farmers,  is  fcarce  worth  con- 
futing ;  as  thefe  refembled  only,  and  that  very  little,  the  loweft  and  mofl 
improper  feuds  ;  and  them  not  in  their  original  ftate,  when  they  were 
precarious,  but  when,  in  imitation  of  the  proper  military  fief,  which  cer- 
tainly was  the  original,  they  were  become  more  permanent. 

LASTLY, 

•f  Selden.    Ibid.  Craig,  lib.  I.  dieg.  5. 

J  This  Emperor,  fays  Lampridius,  gave  the  territories  gained  on  the  frontiers,  limita- 
neis  ducibus  et  miliubus,  ita  ut  eorum  effent  fi  hseredes  illorum  militarent,  nee  unquam  ad 
privates  pertinerent ;  dicens  attentius  eos  militaluros  fi  etiam  fua  rura  defenclerent.  Addi- 
dit  fane  his  et  animalia  et  fervos ;  ut  poflent  colere  quod  accepenmt,  ne  per  inopiani  homi- 
num  vel  per  fenechatem  poflldentium  defererentur  rura  vicina  barbarize,  quod  turpiifimum 
effe  dicebat.  See  alfo  Molin.  in  conflict.  Parit.  tit.  i.  de  Fief?,  and  Loyleau,  dcs  Off. 
lib.  i.  chap.  i. 


22  L  E  C  T  U  R  E  S    ON     THE  LECT.  g, 

LASTLY,  Some  refort  as  far  as  Conftantinople  for  the  rife  of  fiefs,  and 
tell  us  that  Conftantine  Porphyrogenetus  was  their  founder;  but  he  lived  in 
the  tenth  century,  at  a  time  that  this  law  was  already  in  France,  Germany, 
Italy,  and  Spain,  where  it  had  arrived  very  near  its  full  perfection,  and 
was  therefore  undoubtedly  his  model :  So  that,  tho*  we  mufl  acknowledge 
him  the  firft  who  introduced  thefe  tenures  into  the  Roman  empire,  to  find 
their  original,  we  muft  look  back  into  earlier  ages,  and  among  another  people. 

THE  pretenfions  of  the  Ptomans  having  been  confidered,  and  fet  afide,  it 
follows,  that  this  law  muft  have  taken  its  rife  among  the  barbarous  nations ; 
but  from  which  of  them  particularly,  remains  to  be  inquired.     Some,  foli- 
citous  for  the  honour  of  the  antient  Gauls,  quote  Caefar's  account  of  their 
manners;  eos  qui  opibus  v alebant  multos  habuijje  devotos^  quos  fecum  ducerent  in 
bclla^  foldurios  fua  lingua  nuncupates  ;    quorum  hac  eft  c  on  ditto  ?  ut  omnibus  in 
vita  commod'n  una  cum  his  fruantur  quorum  fe  amicitia  dediderint ;  ft  quid  us 
per  vim  accidat,  aut  eundem  cafum  unaferant  autfibi  mortem  confcifcant  f  ;  in 
thefe  words  they  imagine  they  have  plainly  the  mutual  connection  between 
lords  and  vaflals.     The  Spaniards  too  put  in  their  claim  for  the  antient 
•Celtiberians,  of  whom  Plutarch,  in  his  life  of  Sertorius  and  Valerius  Maxi- 
mus,   gives  the  fame  account  that  Cscfar  doth  of  the  antient  Gauls ;    and 
Sir  Edward  Coke,  in  his  zeal  for  the  common  law  of  England,  which, 
although  he  did  not  know  it,  is  certainly  feudal,  relying  on  fabulous  hifto- 
rians,  carries  its  antiquity  fo  far  back  as  to  the  Britifh  kings  of  Geoffrey  of 
Monmouth.     But  one  fhort  and  plain  obfervation  will  fully  diflipate  fuch 
vain  conceits,  namely,  that,  whatever  were  the  original  cuftoms  of  the  bar- 
barous nations,  inhabiting  Gaul,  Spain,  or  Britain,  they  were,  many  ages 
before  the  rife  of  this  law,  entirely  annihilated  and  forgotten.     Gaul,  Spain, 
and  Britain,  were,  for  certuries,  Roman  provinces,  governed  entirely  by 
Roman  magiftrates,  according  to  the  imperial  laws.     For  the  Romans  were 
particularly  ftudious  of  introducing  their  drefs,  their  language,  their  laws 
and  cuftoms,  among  the  conquered  nations,  as  the  fureft,  and  moft  effectual 
means  of  keeping  them  in  fubje&ion. 

HENCE,  it  appears,  we  muft  find  the  true  original  of  this  law  among  thofc 
nations,  that  deftroyed  the  Weflern  Empire  of  the  Romans ;  where  we  firft 

perceive 
f  De  bell.  Gall.  lib.  4.  chap.  22. 


Lr<-T.  3-  LAWS    OF    ENGLAND.  -3 

perceive  the  traces  of  it,  that  is,  among  the  ,  Burgundians,  Goth?, 

ami  Lombards*.     Of  thelc  the  lirfl  and  laft  have  the  '!  number  ol  ad- 

vocates ;  and,  whether  out  of  jealoufy  to  the  French  monarchy,  or  not,  1 
cannot  determine,  the  majority  declares  for  the  Lombards.  M  hele  different 
opinions,  however,  may  be  eafily  adjufted,  by  diftinguifhing  between  the 
beneficiary  /aw,  as  I  ihall  call  it,  while  the  grants  were  at  will,  or  for  years, 
or  at  the  utmoft  for  life,  and  that  which  is  more  properly  and  ftricUy  called 
feudal,  when  they  became  tranfmiflible  to  heirs,  and  were  fettled  as  inheri- 
tances. As  to  the  beneficiary  law,  no  one  of  thefe  nations  can  lay  a  better 
claim  to  it  than  another,  or  with  reafon  pretend  that  the  reft  formed  their 
plan  upon  its  model ;  each  of  them  independent  of  the  other,  having  efta- 
blifhed  the  fame  rules,  or  rules  nearly  the  fame  ;  which  were,  in  truth,  no 
more  than  the  ancient  cuftoms  of  each  nation,  while  they  lived  beyond  the 
Rhine,  and  were  fuch  as  were  common  to  all  the  different  people  of  Ger- 
many. But,  as  to  the  law  and  practice  of  feuds,  when  they  became  inheri- 
tances, there  can  be  little  doubt  but  it  was  owing  to  the  Franks.  For  the 
books  of  the  feudal  law,  written  in  Lombardy,  acknowledge,  that  the  Em- 
peror Conrad,  who  lived  about  the  year  1024,  was  the  firft  that  allowed 
fiefs  to  be  defcendible  in  Germany  and  Italy  -f;  whereas  the  kingdom  of  the 
Lombards  was  deflroyed  by  Charlemagne  above  two  hundred  years  before ; 
and  he  it  was  who  firft  eftablifhed  among  his  own  Franks  the  fucceflion  of 
fiefs,  limiting  it,  indeed,  only  to  one  defcent.  His  fucceflbrs  continued  the 
fame  practice,  and,  by  flow  degrees,  this  right  of  fucceflion  was  extended 
fo,  that  by  the  time  of  Conrad,  all  the  fiefs  in  France,  great  and  fmall, . 
went  in  courfe  of  defcent,  by  the  conceflion  of  Hugh  Capet,  who  made  ufe 
of  that  device,  in  order  to  fweeten  his  ufurpation,  and  render  it  lefs  dif- 
agreeablej.  By  this  conceflion  he,  indeed,  eftablifhed  his  family  on  the 
throne,  but  fo  much  weakened  the  power  of  that  crown,  that  it  coft  much 
trouble,  and  the  labour  of  feveral  centuries,  to  regain  the  ground  then 
loft. 

THE  opinion  of  the  feudal  law's  being  derived  from  the  Lombards  feems 
owing  to  this,  that,  in  their  country,  thofe  cuftoms  were  firft  reduced  into 

siting, 

*  Montefquieu,  L'efprit  des  loix,  liv.  30.  chap.  2.  and  6. 
f  Lib.  Feud.  i.  tit.  i. 
$  L'efprit  des  loix,  liv.  31.  chap.  31. 


24  LECTURES    ON    THE  LECT,  3. 

writing,  and  compiled  in  two  books,  about  the  year  1150,  and  have  been 
received  as  authority  in  France,  Germany  and  Spain,  and  conftantly  quoted 
as  fuch.  But  then  it  fhould  be  confidered,  that  the  written  law  in  thefe 
books  is,  in  each  of  thofe  nations,  efpecially  in  France,  controuled  by  their 
unwritten  cuftoms ;  which  mews  plainly,  that  they  are  received  only  as  evi- 
dence of  their  own  old  legal  practices.  For  had  they  been  taken  in  as  a 
new  law,  they  would  have  been  entirely  received,  and  adopted  in  the 
whole. 

BUT  if,  in  this  point,  I  mould  be  miftaken,  and  the  Lombards  were 
really  the  firft  framers  of  the  feudal  law,  yet  I  believe  it  will  be  allowed 
more  proper  for  the  perfon  who  fills  this  chair  to  deduce  the  progrefs  of  it 
through  the  Franks,  from  whom  we  certainly  borrowed  it,  than  to  diftract 
the  attention  of  his  audience,  by  difplaying  the  fever al  minute  variations  of 
this  law,  that  happened  as  it  was  ufed  in  different  nations.  To  the  nation  of 
the  Franks,  therefore,  I  mail  principally  confine  myfelf,  and  endeavour  to 
mew  by  what  fteps  this  fyftem  of  cuftoms  was  formed  among  them,  and 
how  their  conftitution,  the  model  of  our  own  juft  after  the  conqueft,  arofe  ; 
and  at  the  fame  time  I  mail  be  particularly  attentive  to  thofe  parts  of  it  only 
that  prevailed  in  England,  or  may  fome  way  contribute  to  illuflrate  our 
domeftic  inftitutions. 

IN  order,  then,  to  illuflrate  the  original  of  the  French  conftitution,  and 
of  their  beneficiary,  and  its  fucceflbr  the  feudal  law,  it  will  be  neceflary  to 
enter  into  fome  details  as  to  the  manners  of  this  people,  while  they  conti- 
nued in  Germany,  and  which  they  preferved  for  a  considerable  time  after 
they  paffed  the  Rhine  ;  as  alfo  to  mention  fome  few  particulars  of  their  hif- 
tory  when  fettled  in  France,  in  order  to  mew  the  reafons  of  their  original 
cuftoms,  and  the  ends  their  policy  aimed  at,  and  how,  by  change  of  circum- 
ftances,  the  prefervation  of  that  fyftem  required  new  regulations  ;  how  the 
feudal  law  arofe,  and  grew  to  that  perfection,  in  which,  for  fo  many  ages, 
it  flourished  throughout  Europe.  As  fkilful  naturalifts  difcover  in  the  feed 
the  rudiments  of  a  future  tree,  fo,  in  a  few  paflages  of  Csefar  and  Tacitus, 
concerning  the  cuftoms  of  the  Germans,  may  be  feen  the  old  feudal  law, 
and  all  its  original  parts,  in  embryo;  which,  in  procefs  of  time,  by  gradually 
dilating  and  unfolding  themfelves,  grew  into  a  perfect  and  compleat  body. 

It 


Lr.cr.  3.  L  AWS    OP    EN  GL  A  N  D.  25 

It  will  he  highly  proper,  therefore,  for  the  clearer  comprehenfion  of  what  is 
to  follow,  to  dwell  foMK-what  particularly  upon,  and  to  make  ourfelves  ac- 
quainted with,  the  manners  and  inflitutions  of  thofe  people;  and  for  this 
purpnfe,  perhaps,  it  will  be  fuflicient  to  confider  them  under  the  feveral 
following  heads,  viz.  their  general  dilpofition  and  manners,  the  feveral  ranks 
and  orders  of  perfons  among  them,  their  form  of  government,  and  the  na- 
ture of  their  policy  ;  their  regulations  touching  property,  their  methods  of 
adminiftering  juftice,  and  the  nature  of  the  punifhments  they  inflicted  on 
criminals. 

FIRST,  as  to  their  manners  and  general  difpofition:  Germany  was  at  that 
time  a  wild  uncultivated  country,  divided  into  a  great  number  of  fmall 
cantons,  feparated  from  each  other  by  thick  forefts,  or  impaflable  morafles, 
and  inhabited  by  a  rude  and  fimple  people,  who  lived  either  by  the  chace  or 
pafturage,  and  were  always  either  in  a  ftate  of  open  war,  or  a  iufpicious 
peace  with  their  neighbours  :  A  circumftance  that  obliged  every  one  of  thefe 
little  ftates  to  efteem  military  virtue  in  the  firft  place,  and  to  train  up  all 
their  people,  fit  for  that  purpofe,  in  the  conftant  ufe  of  arms,  and  to  keep 
them  perpetually  in  a  ftate  ready  always  for  either  offence,  or  defence  f. 

BUT  fmce,  in  every  number  of  men,  however  afTembled,  fome  there  will 
be,  from  the  natural  ftrength  of  their  bodies,  and  courage  of  their  minds, 
more  fit  for  foldiers,  and  others,  from  the  contrary  caufes,  better  adapted 
to  the  arts  of  peace ;  thefe  nations  were  neceflarily  diftributed  into  two 
ranks  ;  thofe  in  whom  the  ftrength  of  the  fociety  confifted,  the  freemen  or 
foldiers,  who  were,  properly  fpeaking,  the  only  members  of  the  community, 
and  whofe  fole  employment  was  war,  or  (in  the  intervals  of  hoftilities,  what 
Xenophon  confiders  as  its  image)  hunting ;  and  an  inferior  order  of  people, 
who  were  fervants  to  them,  and,  in  return  for  protection,  fupplied  the  war- 
riors with  the  neceflaries  of  life,  occupied  the  lands  for  them,  and  paid  fti- 
pulated  rates  of  cattle,  clothes,  and  fometimes  corn,  namely,  where  they 
had  learned  the  ufe  of  agriculture  from  the  neighbouring  Romans.  I  lol- 
low  Craig  in  calling  them  fervants  rather  than  flaves,  as  an  expreflion  much 
more  fuitable  to  their  condition  ;  for  they  were  not  condemned  to  laborious 
works,  in  the  houfes  of  the  freemen,  as  the  flaves  of  other  nations  were. 

D  Among 

f  Tacitus  de  moribus  Germanorum.     Casfar  de  bell.  Gall.  lib.  6. 


26  LECTURES     ON     THE  LECT.  3. 

Among  thefe  fimple  people,  the  wives  and  children  even  of  the  greatefl 
among  them,  and  the  old  men,  unfit  for  the  toils  of  war,  were  their  only 
domeftics.  The  fervants  of  the  Germans  lived  apart,  in  houfes  of  their  own, 
and  when  they  had  rendered  to  their  lords  the  fervices  due  by  agreement, 
they  were  fecured  in  the  reft,  as  their  own  property;  fo  that  a  fervant  among 
thefe  people,  though  meanly  confidered  by  the  fuperior  rank,  was,  in  truth, 
more  a  freeman  than  the  generality  of  the  Romans  under  their  Emperors  f. 
It  has  been  an  antient  obfervation,  that  fervitucie  among  the  northern  na- 
tions hath  always  been  more  gentle  and  mild  than  among  thofe  that  lay 
more  foutherly  :  A  difference,  to  be  afcribed  to  the  different  manners  of  the 
people,  refulting  partly  from  their  climate,  and  partly  from  their  way  of 
life.  A  plain  and  fimple  people,  unacquainted  with  delicacies,  were  con- 
tented with  the  plaineft  fair;  which  was  eafily  fupplied,  without  afflicting 
their  fervants  with  heavy  labour,  and  gave  no  room  for  envy  and  difcontent 
in  the  breafts  of  inferiors.  And  a  nation  that  had  always  the  fword  in 
their  hands  were  too  confcious  of  their  own  flrength,  to  entertain  any  appre-. 
henfions  from  thofe,  who,  from,  their  unfitnefs  for  that  profeflion,  were 
deftined  to  other  employments.  All  motives,  therefore,  to  fear  on  the  one 
fide,  and  to  envy  and  difcontent  on  the  other,  being  removed,  we  need  not 
be  furprized  at  the  general  humanity  with  which  the  fervants  were  treated 
in  thefe  northern  regions.  The  putting  them  in  chains  was  a  thing  exceed- 
ingly rare,  and  the  killing  them,  except  in  a  fudden  gufl  of  paflion  (an  ac- 
cident \vhich  frequently  happened  among  the  freemen  themfelves)  was  al- 
moft  unheard  of.  The  only  difference  in  that  cafe  was,  that  the  death  of  a 
fervant  was  not  looked  upon  as  a  public  crime,  he  being  no  member  of  the 
political  fociety,  and  therefore  was  not  punifhed.  Such  then  was  the  mur 
tual  affection  and  confidence  of  thefe  two  ranks  in  each  other,  that  when- 
ever there  was  occafion,  they  made  no  fcruple  of  arming  fuch  of  their  fer? 
vants  as  were  capable,  and,  by  making  them.foldiers,  admitted  them  into 
the  number  of  freemen  ;  and  the  hopes  of  fuch  advancement,  we  may  be 
affured,  was  a  flrong  inducement  to  thofe  of  the  lower  rank  to.  behave  in 
their  ftation  with  fidelity  and  integrity.  Another  caufe  of  this  great  lenity 
to  their  fervants  arofe  from  a  cuftom  peculiar  to  the  Germans,  which  or- 
dained 

f  Servis,  non  in  noflrum  morem  clcfcriptis  per  familiam  minifteriis  utantur.     Suam 
quiique  fedem,  fuos  penates  regit.     Frumenti  mocluni  clominus,  aut  pecoris,  aut 
vt  colono  injungitj  et  fervus  baftenus  paret.     Tacit,  de  mor.  Germ.  cap.  25. 


LECT.  3.  L  A  W  S  OF   E  N  G  L  A  N  D.  27 

dained,  that  infolvent  debtors  Ihould  be  reduced  to  fervitude,   until,  either 
by  his  labour,  the  creditor  \\a    ;  ,  or,  as  it  1;  /happened,  the 

debt  was   paid  by  the  infolvent's  n  '  It  was,  indcrvl,   reputed  diflto- 

nourable  for  the  creditor  himfelf  to  retain  his  debtor  in  fervitude  j  but  then 
lie  cither  fold  him  to  the  prince,  or  fome  other  perfon. 

AMONG  fo  plain  a  people,  perhaps  it  may  be  thought  debts  were  rare, 
and  that  few  inftances  occurred  of  freemen's  being  reduced  to  flavery  ;  but 
Tacitus  aflures  us  of  the  contrary  f.  Thefe  people  were  pofiefied  with  the 
rage  of  gaming  to  fuch  a  degree,  that  nothing  was  more  common  than  to 
fee  them,  when  all  their  property  was  loft,  fet  their  liberty  itfelf  at  ftake. 
It  was  natural,  therefore,  to  treat  thofe  with  gentlenefs,  who  had  been  once 
perhaps  the  moft  valuable  members  of  the  body  politic,  efpecially  for  them 
who  knew  their  own  privileges  depended  on  the  uncertain  caprices  of  the 
lame  goddefs  Fortune,  and  that  an  unlucky  throw  might  reduce  them  to- 
morrow to  the  fame  low  condition.  I  have  been  the  more  particular  on 
this  head,  in  order  to  (hew,  that,  even  in  their  infancy,  the  feudal  maxims 
were  more  favourable  to  the  natural  liberty  of  mankind,  than  the  laws  and 
cuftoms  of  the  fouthern  and  more  polite  nations,  and  were  of  fuch  a  fpirit, 
as  when  circumftances  changed,  would  naturally  expand,  and  extend  that 
blefling  to  the  whole  body  of  the  people  j  as  we  find  it  at  prefent  in  our 
excellent  conftitution. 

To  return,  therefore,  to  the  freemen :  We  find  no  traces  of  any  different 
orders  of  men  among  them  ;  but  as  no  kind  of  government,  however  rude, 
can  fubfift  without  fome  fubordination,  and  as  it  was  impoflible  for  them  all 
to  continue  together  in  one  body,  it  was  found  neceflary,  in  order  to  dif- 
perfe  them  round  the  country,  that  they  mould  be  fubdivided  into  lefier  par- 
ties, and  to  appoint  to  each  a  chief,  the  moft  eminent  and  capable  among 
them  ;  who,  when  a  diftri£t  was  affigned  him,  diftributed  that  among  his 
followers  ;  who  again,  after  having  retained  what  they  efteemed  fufficient  for 
their  own  purpofes,  afligned  part  of  what  they  had  fo  received  to  their  fer- 
vants.  And  here,  indeed,  we  fee  the  firft  rude  original  of  lords  and  vaflals. 
Thefe  lords  were  thofe,  of  whom  Tacitus  fays,  De  minoribus  rebus  principes 
confultant\.  One  of  thefe  lords,  and  to  him  a  larger  territory  was  afligned 

D  2  than 

f  De  mor.  Germ.  cap.  24.  J  De  raor.  Germ.  cap.  u. 


28  LECTURES     ON     THE  LECT.  3. 

than  to  the  others,  was  the  head  of  the  whole  body  politic,  and  honoured 
with  the  title  of  king.  He  was  the  fuperior,  who,  at  their  general  aflein- 
blies,  made  the  diflribution  already  mentioned,  and  appointed  the  other 
lords.  And,  befides  his  excelling  the  others  in  the  enjoyment  of  a  more 
extenfive  diilricl:,  and  in  having  a  greater  number  of  vaflals  and  fervants, 
he  was  remarkably  diftinguifhed  from  them  in  two  particulars.  His  office 
was  for  life,  and,  in  fome  degree,  hereditary ;  for,  in  every  nation  there 
was  one  family,  defcended,  it  is  to  be  prefumed,  from  the  firft  founder  of 
the  flate,  or  fome  ancient  hero,  which  was  the  only  family  noble  by  birth 
among  them,  and  the  members  of  which  alone  were  capable  of  this  high 
ftation.  Not  that  thefe  kings  fucceeded  in  a  lineal,  or  any  other  regular 
courfe  of  defcent ;  for  Tacitus  intimates  fufficiently  that  they  were  elective, 
when  he  fays,  Reges  ex  nobiliiate  fumunt\ .  And  indeed  any  one  who  confiders 
attentively  the  circumftances  of  thefe  people,  always  either  ready  to  invade 
their  neighbours,  or  dreading  invafions  from  them,  will  allow,  that  any 
kind  of  a  conftant  regular  fucceffion  was  inconfiftent  with  their  prefervation. 
They  were  neceffitated  to  choofe  among  the  royal  family  a  man  in  the  flower 
of  youth,  or,  at  leaft,  in  the  vigour  of  life,  who,  by  his  valour  and 
wifdom,  might  prove  the  proper  head  of  a  nation  always  in  a  ftate  of  war. 
This  will  appear  beyond  a  doubt,  if  we  examine  the  ancient  practice 
of  all  the  kingdoms  founded  by  the  Germans.  Look  over  the  lifts  of  their 
kings  in  any  one  nation,  and  examine  the  degree  of  kindred  in  which  they 
flood  related  to  each  other,  and  you  will  find  them  all,  indeed,  of  one  fa- 
mily ;  but  you  will,  at  the  fame  time,  fee  that  fcarce  a  third  of  them  could 
derive  their  kindred,  by  way  of  title  or  defcent,  from  their  immediate  prede- 
ceflbr  ;  yet  were  they  obeyed  chearfully  by  their  fubjects,  nor  ever  looked 
upon  in  thofe  days  as  ufurpers,  though  feveral  modern  writers,  pofiefied 
with  opinions  of  their  own  ages,  fmce  kingdoms  are  almoft  univerfally  fet- 
tled in  a  regular  courfe  of  defcent,  have  been  fo  liberal  in  beflowing  that 
title  upon  them. 

MONTESQUIEU  allows  this  was  the  manner  of  fucceffion  in  the  fecond  race 
of  the  Franks,  but  infills  that  thofe  of  the  firft  inherited  lineally}.  But  was 
this  fo  originally,  when  Clovis  came  to  the  crown,  he  who  firft  united  all 
the  Franks  under  one  fovereign  ?  We  find  fix  or  feven  independent  kings 

of 

•j-  Ibid.  cap.  7.  J  L'efprit  des  loix,  liv.  31. 


LECT.  3.  L  A  WS    OF    ENGL  AN  D.  29 

of  the  Salian  Franks,  every  one  of  them  Clovis's  near  relations,  and  con- 
ft-quently  defcendcd  from  a  common  anceftor,  at  no  very  great  diftancc.  He 
thought  not  himfclf,  nor  his  pofterity,  fecure  in  the  polleHion  of  the  throne, 
until  he  had  totally  extirpated  every  other  branch,  and  reduced  the  royal  fa- 
mily to  his  fmgle  perfon.  Then,  indeed,  there  was  no  danger  of  a  competi- 
tion upon  his  death.  So  far  was  the  crown  from  defcending  to  any  determi- 
ed  perfon,  that  the  kingdom  was  divided  among  all  his  children  ;  and,  for 
feveral  defcents,  his  bloody  example  was  followed  in  one  generation,  and  in 
the  next  a  new  divifion  took  place ;  nor,  in  all  this  time,  do  we  hear  of  any 
other  title  fet  up,  than  what  followed  either  from  the  will  of  the  father,  the 
confent  of  the  people,  or  the  fortune  of  war ;  which,  it  is  apprehended,  is 
fufficient  to  fhew,  that,  in  thefe  early  ages,  there  were  no  invariable  rules 
of  fucceflion  fettled  among  the  Franks.  -  Otherwife,  how  came  the  king- 
dom to  be  divifible,  and  the  right  heir  to  be  obliged  to  content  himfclf 
with  a  fmall  portion  of  his  fuppofed  legal  inheritance  f  ? 

IN  the  next  lecture  I  mail  give  an  account  of  the  companions  of  the  prince 
among  the  Germans,  and  finim  what  I  have  to  obferve  of  the  conftitution 
of  their  governments,  and  of  their  laws  and  culloms,  unto  the  time  of  their 
entering  into  the  Roman  empire. 

t  Mably,  Obfervations  fur  1'hiftoire  de  France,  liv.  i.  cap.  3, 


LECTURE 


3o  L  E  C  T  U  R  E  S     ON     THE  LECT.  4, 


LECTURE         IV. 

The  companions  of  a  German  prince — 'The  con/litution  of  a  German  king- 
doni — The  condition  of  property  in  Germany — The  methods  followed  there 
of  di/lributing  juftice,  and  the  nature  of  the  punlfhments  inflitted  on  cri- 
minals, 

BEFORE  we  can  be  fully  acquainted  with  all  the  feveral  conftituent 
parts  of  the  German  flate,  it  will  be  necefiary  to  form  a  juft  notion  of 
thofe  who  were  called  the  companions  of  the  king  or  prince ;  who,  being 
chofen  out  of  the  moft  robuft  and  daring  of  the  youth,  and  having  attached 
themfelves  particularly  to  the  perfon  of  their  fovereign,  were  his  chief  de- 
fence in  war,  and  the  great  fupport  of  his  dignity  in  times  of  tranquillity. 
A  few  words  of  Tacitus  will  fet  this  inftitution  of  theirs  in  a  clear  light. 
Speaking  of  their  princes,  he  fays,  "  This  is  their  principal  ftate,  their  chief 
"  ftrength,  to  be  at  all  times  furrounded  with  a  numerous  band  of  ~chofen 
"  young  men,  for  ornament  and  glory  in  peace,  for  fecurity  and  defence 
*'  in  war;  nor  is  it  among  his  own  people  only,  but  alfo  from  the  neigh- 
*'  bouring  communities,  that  a  prince  feups  high  honour,  and  great  -re- 
"  nown,  when  he  furpaffes  in  the  number  and  magnanimity  of  his  follow- 
"  ers ;  for  fuch  are  courted  by  embames,  and  diftinguilhed  with  prefents, 
"  and  by  the  terror  of  their  fame  alone  often  diffipate  wars.  In  the  day  of 
*'  battle,  it  is  fcandalous  for  the  prince  to  be  furpafled  in  feats  of  bravery, 
"  fcandalous  to  the  followers  to  fail  in  matching  the  valour  of  the  prince. 
"  But  it  is  infamy  during  life,  and  an  indelible  reproach  to  return  alive  from 
<c  a  battle  wherein  their  prince  was  flain.  To  preferve  him,  to  defend 
"  him,  and  to  afcribe  to  his  glory  all  their  gallant  actions,  is  the  fum,  and 
"  moft  facred  part  of  their  oath.  For  from  the  liberality  of  their  prince 
<c  they  demand  and  enjoy  that  war-horfe  of  theirs,  and  that  terrible  javelin, 
"  dyed  in  the  blood  of  their  enemies.  In  place  of  pay,  they  are  fupplied 
"  with  a  daily  table  and  repafts,  though  grofsly  prepared,  yet  very  profufe. 
"  For  maintaining  fuch  liberality  and  munificence,  a  fund  is  furnifhed  by 
"  continual  wars  and  plunder  f." 

HERE, 

f  De  mor.  Germ.  cap.  13.  and  14. 


LECT.  4.          L  A  W  S     OF     E  N  G  L  A  N  D.  3r 

HERE,  then,  are  to  be  feen  mofl  plainly  the  rudiments  of  that  feudal  con- 
nection, that  alter  wards  fubfifted  between  the  king  and  all  his  military  vail. 
and  of  the  oath  of  fealty  which  the  latter  took  to  him.     To  his  perfon,  and 
to  aid  him  in  all  he  undertook,  his  companions  were  bound,  during  his  and 
their  lives,  by  the  ftricteft  ties ;  but  as  to  other  freemen,  who  lived  apart  in 
their  villages,  the  bonds  of  allegiance  were  much  more  loofe.     This  rude 
people  had  no  notion  of  what  almoft  every  civilized  nation  hath  laid  down 
as  a  maxim,  that  being  born  in,  and  protected  by  a  fociety,  creates  a  du- 
rable obligation.     They  ferved,  indeed,  in  confideration  of  the  lands  they 
held,  in  all  defenfive  wars  ;  and  in  all  offenfive  ones,  which  either  were  ge- 
nerally approved  of,  or  in  which  they  chofe  particularly  to  engage  them- 
fielves.     Nay,  fo  great  was  the  notion  of  particular  independence  among 
thefe  people,  that  they  thought  that  all  of  the  freemen  or  foldiers,  except, 
the  comitcs,  who  had  by  oath  bound  themfelves  to  the  perfon  of  the  king  for 
life,  were  at  liberty  to  engage  in  expeditions,  that  neither  the  king,  nor  the 
majority  of  the  nation  confented  to;  and  that  under  leaders  of  their  own 
choofing.     For  as,  at  their  general  meetings,  war  was  neceflarily  the  moft. 
common  fubject  of  deliberation,  if  any  one  propofed  an  enterprize,  all  who 
approved  the  motion  were  at  liberty  to  undertake  it;  and  if  the  king  de- 
clined commanding  therein,  they  chofe  a  general  capable,  thereof  ;    and 
when,  under  his  conduct,  they  had  fucceeded,  they  either  returned,  and. 
divided  the  fpoil,  and  became  fubjects  of  their  former  king  as  before  ;  or, 
if  they  liked  the  country  they  had  fubdued  better,  fettled  there,  and  for-m- 
ed  a  new  kingdom,  under  their  victorious  leader.     Duces  ex  -virtutefumunt,. 
faith  Tacitus  ;  a  practice  hard  to  be  accounted  for  among  nations  expofed. 
to  continual  danger,  and  which  muft  be  thereby  frequently  weakened, 
on  any  other  fuppofition,  than  that  it  was  firft  introduced  to  difburthen  a. 
narrow  territory,  overftocked  with  inhabitants.     This  effect:,  however,  it 
muft  have  had,  that  their  kings  were  rendered  more  martial,  and  obliged 
equally  by  their  glory  and  intereft,  to  command  in  every  expedition,  that, 
was  agreeable  to  any  confiderable  number  of  their  fubjects. 

FROM  this  cuftom  Montefquieu  very  ingenioufly  conjectures,  that  the. 
Franks  derived  their  right  of  conferring  on  their  main  de  paluis  the  power 
of  war,  at  a  time,  when,  by  the  long  continued  (laughters  of  the  royal  fa- 
mily, they  were  obliged  to  place  the  crown  on  the  heads  of  minors,  or  of 
princes  as  incapable  as  minors ;  a  power  that  enabled  them,  by  degrees,  to 

ufiirp 


32  L  E  C  T  U  R  E  S     ON     THE  LECT.  4. 

ufurp  the  civil  adminiftration,  and  at  length  to  transfer  the  title  alfo  of  royal- 
ty to  a  new  race,  in  the  perfon  of  Pepin  f . 

SUCH,  then,  was  the  face  of  a  German  ftate.  A  king  chofen  for  his  il- 
luflrious  extraction,  attended  by  a  numerous  body  of  chofen  youth,  at- 
tached to  his  fervice  in  war  by  the  ftricteft  bonds  of  fidelity  ;  a  number  of 
freemen  divided  into  villages,  over  each  of  which  was  an  elective  chief,  en- 
gaged, likewife,  to  military  duty,  but  in  a  laxer  manner ;  and  under  all 
thefe  were  the  fervants,  who  occupied  the  greatefl  part  of  the  land,  and  fup- 
plied  the  freemen  with  the  neceflaries  of  life. 

IT  is  time  now  to  attend  a  little  to  their  domeftic  policy,  and  to  inform 
ourfelves  what  were  the  rights  of  each  of  thefe  orders  in  the  time  of  peace. 
The  king,  we  are  aflured  by  Tacitus,  was  far  from  being  abfolute  +.  He  was 
judge,  indeed,  among  his  own  peculiar  vaifals,  who  lived  on  his  demefne,  as 
the  other  chieftains  were  in  their  refpective  diftricts.  He  prefided  in  their 
general  aflemblies,  and  was  the  firft  who  propofed  matters  for  their  delibe- 
ration. Kis  opinion  had  great  weight,  indeed,  from  his  rank  and  dignity, 
but  his  power  was  rather  that  of  perfuafion  than  of  command.  The  royal 
family  was  no  otherwife  diftinguifhed  from  others,  than  as  their  perfonal 
merit  acquired  influence,  or  their  high  birth  and  capability  of  fucceflion  en- 
gaged refpect.  The  companions  of  the  prince  were  highly  honoured  for 
their  faithful  attachment  to  him,  and  their  valourous  atchievements  in  war ; 
but,  as  to  rights  and  privileges,  were  on  the  common  footing  of  other  free- 
men. The  only  diftinction  was  between  the  chieftains,  or  lords  of  the  vil- 
lages, and  the  vaflals  who  were  under  their  jurifdiction.  The  chieftains 
were  judges  in  their  refpective  diftricts  ;  but,  to  prevent  partiality,  to  each 
of  them  were  affigned  an  hundred  perfons,  chofen  among  the  populace,  to 
accompany  and  affift  him,  and  to  help  him  at  once  with  their  authority  and 
their  counfel.  And  this  inftitution  was,  in  all  probability,  the  original  of 
the  jurifdiction  of  the  pares  curia  in  the  feudal  law.  Another,  and  a  very 
great  check  on  their  chieftains,  was  their  being  elective,  and  confequently 
amoveable  every  year,  if  their  conduct  was  difpleafing  either  to  prince  or 
people.  Thefe  elections,  as  well  as  thofe  of  their  aiieflbrs,  were  made  in 

their 

•J-  L'Efprit  des  loix,  liv.  31. 

J  De  mor.  Germ,  cap,  7.  12.  and  14. 


LECT.4-  LAWS     or     E  K  G  L  O. 

their  afleinblier. ;  \vhcrc,  indeed,  every  thing  of  any  confequena:  was  tr 
ailed,  and  therefore  they  dcfervc  to  be  particularly  treated  of. 

Tiirsr.  conventions,    then,  tmlds  they  were  fummoncJ   <  'ordi- 

nary occafion*,  were  regularly  held  once  a  month,  on  certain  Hated 
days  ;  but  fuch  \vas  the  impatience  of  this  people  of  controul,  or  arr, 
gXilarity  of  proceeding,  that  Tacitus  obferves,  that  frequently  two  or  t! 
days  were  fpent  before  they  were  all  aflemblcd.  For  in  thclc  meet- 
ings, every  freeman,  that  is,  every  foldier,  had  an  equal  voice.  They  ap- 
peared all  in  arms,  and  filence  was  -proclaimed  by  the  prfefts,  to  whom 
alfo  it  belonged  to  keep  the  aflembly  in  order,  and  to  punifh  all  diflurbers 
of  its  regularity.  The  king  in  the  firft  phice  was  heard,  next  fuch  of  the 
chiefs  as  had  any  thing  to  propofe,  and  laftly  others,  according  to  their  pre- 
cedence in  age,  nobility,  military  virtue,  or  eloquence.  If  the  propofition 
difpleafcd,  they  rejected  it  by  an  inarticulate  murmur.  If  it  was  pleafing, 
they  brandifhed  their  javelins ;  the  moft  honourable  manner  of  fignifying 
their  confent -being  by  the  found  of  their  arms.  But  this  approbation  of  the 
general  affemblies  was  not  of  itfelf  fufficient  to  eftablim  a  refolution.  As  the 
iudden  determinations  of  large  multitudes  are  frequently  ram,  and  injudi- 
cious, it  was  found  necefiary  to  have  what  they  had  fo  determined  re-confi- 
dered  by  a  felect  body,  who  mould  have  -a  power  of  rejecting  or  confirming 
them.  For  this  purpofe  the  chieftains  were  formed  into  a  feparate  aflembly, 
who,  in  conjunction  with  the  king,  either  difannulled,  or  ratified  what  had 
been  agreed  to  by  the  people  at  large  f. 

SUCH  then  was  the  conftitution  of  a  German  kingdom,  a  conftitution  fo 
nearly  refembling  our  own  at  prefent,  as  at  firit  view  would  tempt  any  one 
to  think  the  latter  derived  immediately  from  thence.  Yet  this  was  not 
the  cafe.  With  refpeft  to  the  Saxon  times,  as  far  as  we  can  judge  from  the 
few  lights  remaining,  the  form  of  government  feems  very  nearly  to  refemble 
this  account  which  Tacitus  gives  us  ;  but,  for  two  centuries,  at  leaft,  aiter 
the  conqueft,  the  Englifh  conftitution  wore  a  face  purely  feudal.  The  fub- 
vaflals  had  long  loft  the  privilege  of  being  members  of  the  general  aflembly, 
from  caufes  that  mall  be  hereafter  attempted  to  be  explained ;  and  the 

E  .  whole 

t  Ibid.  cap.  xi. 


34  L  E  C  T  U  R  E  S     ON     THE  LECT.  4, 

•whole  legislative  power  was  lodged  in  the  king  and  his  immediate  vaflals, 
whofe  interefts  frequently  claming,  and  creating  continual  broils,  it  was 
found  neceflary,  for  the  advantage  both  of  the  fovereign  and  nobles,  that  a 
proper  balance  mould  be  formed.  Accordingly,  much  at  the  fame  time  in 
France,  Spain,  and  England,  namely,  in  or  about  the  thirteenth  century, 
the  happy  method  of  readmitting  the  third  eftate,  by  way  of  reprefentation, 
was  found  out,  with  an  addition  very  favourable  to  the  natural  rights  of 
mankind,  that  traders  and  artizans,  who  before  had  been  treated  with  the 
mofl  fovereign  contempt,  were  now  permitted  to  make  part  of  the.  general 
afiembly,  and  gut  on  an  equal  footing  with  other  fubje&s  f. 

BUT  to  return  to  the  afTembly  of  German  chieftains,  or  their  houfe  of 
lords,  as  I  may  call  it;  befides,  a  mare  in  the  legiflative  power,  they  were 
likewife  a  council,  to  afliil  the  king  in  the  execution  of  the  refolutions  of 
the  general  aflembly,  and  determined  folely  by  their  own  authority  all  mat- 
ters of  lefler  moment,  that  did  not  immediately  affect  the  whole  commu- 
nity. De  minorlbus  rebus  principes  confultant^  de  majoribus 


MANY  other  things  were  likewife  tranfa&ed  in  thefe  general  aflemblies, 
as  particularly  the  admiflion  of  a  new  member  into  the  political  fociety. 
When  a  youth  was  judged  capable  of  bearing  arms,  he  was  introduced  by 
his  relations  into  the  aflembly  ;  and  if  they  teftified  his  capacity  of  wielding 
them,  he  was  dignified  with  a  lance  and  javelin  by  one  of  the  chieftains,  or 
by  his  father,  or  fome  other  near  relation.  This  was  his  toga  <uirilis.  Then,. 
and  not  before,  was  he  emancipated  from  the  family  he  belonged  to,  was 
permitted  to  become  a  foldier,  and  in  confequence  admitted  to  all  the  privi- 
leges of  a  free  fubjeft.  A  pradice  that,  in  after  ages,  gave  rife  to  the  fo- 
iemn  and  public  manner  of  creating  knights  |» 

THIS,  likewife,  was  the  proper  place  of  accufmg  criminals  of  public 
crimes,  namely  fuch  as  were  looked  upon  by  thofe  people  particularly  to 
affeft  the  whole  fociety  j  neither  was  it  unufual,  likewife,  to  bring  hither  ac- 

cufations 

f  Muratori,  Antkj.  ItaT.  vol.  4.  p.  *6o.  et  Seq.     Mably,  Obfervations  fur  Thiftoire  de 
France,  torn.  2.  p.  96.  et  Seq.     Madox,  Firma  Burgi,  cap.  i.  feft.  9. 

J  Tacit,  de  mor.  Germ.  c.  13.    Spehnan's  Gloflary,  voc.  Miles. 


LECT,  4.          L  A  W  S    OP    E  N  G  L  A  N  u.  35 

cufations  of  private  wrongs,  if  the  party  injured  was  apprchcnfwe  of  par- 
tiality in  his  own  canton. 

BUT  the  bufinefs  of  greatefl  moment,  next  to  legiflation,  \va ',  that,  one 
a  year,  in  thcfe  aflemblies,  each  village,  with  the  approbation  of  tlie  k 
chofe  their  chiefs,  and  their  hundred  afliflants  |.     Here  it  was  they  either 
received  a  tefthnony  of  their  good  behaviour,  by  being  continued  in  office 
another  year,  or  faw  themfclves  reduced  to  the  rank  of  private  fubjcfts,  if 
their  conduct  had  not  been  acceptable.     At  the  fame  time  were  the  lands 
<liftributed  to  the  feveral  chieftains,  which  leads  me  to  fay  fomething  on  the 
next  head,  their  regulations  with  refpeft  to  property  ;  as  to  which  their  in- 
ftitutions  were  very  fmgular,  and  totally  different  from  thofc  of  all  ancient, 
as  well  as  modern  nations. 

ALL  property  being  then  naturally  divifible  into  two  kinds,  moveable  and 
immoveable,  of  the  firfl  thefe  people  had  but  a  fcanty  mare,  their  whole 
wealth  confiding  in  their  arms,  a  few  mean  utenfils,  and  perhaps  fome  cat- 
tle. The  ufe  of  gold  and  filver,  in  the  way  of  commerce,  was  utterly  un- 
known to  them,  except  to  a  few  of  their  nations,  namely  fuch  as  lived  near 
the  Rhine,  and  had  acquired  fome  by  dealing  with  the  neighbouring  Gaul&. 
Confequently,  there  was  no  fuch  thing  as  an  accumulation  of  wealth  among 
them,  or  any  great  difparity  in  the  diflribution  of  this  kind  of  property,  over 
which  each  had  uncontrouled  dominion  during  his  life.  But  as  teftaments, 
or  laft  wills,  were  unknown  amongft  them,  upon  death,  the  right  went  ac- 
cording to  the  plain  dictates  of  nature.  Tacitus  faith,  "  To  every  mi;n  his 
"  own  children  were  heirs  and  fucceifors.  For  want  of  them,  his  neareft 
"  of  kin,  his  own  brothers,  next  his  father's  brothers,  or  his  mother's." 
Whatever  there  was,  was  divided  among  the  males  next  in  degree  ;  favc  that 
to  each  of  the  females,  a  few  arms  were  afligned,  the  only  dowry  in  ufe 
among  thofe  people ;  a  dowry  which,  as  Tacitus  faith,  fignificd  that  they 
were  to  ihare  with  their  hufbands  in  all  fortunes  of  life  and  death.  Accord- 
ingly, they  conltantly  attended  them  to  the  field,  were  vi  itnefles  of  their  va- 
lour, took  care  of  the  wounded  J;  and  often,  if  their  party  had  the  word, 
they  ran  into  the  ranks,  and  by  their  prefence  and  danger,  animated  the 
men  to  renew  the  charge. 

E  2  BUT 

f  Tacit,  de  mor.  Germ.  cap.  12. 

t  Hi  cuique  fancYiffimi  teftes,  hi  maximi  laudatores.     Tacit,  de  m.  G.  c.  7.     Confult 
alfo  c.  5.  aid  c.  1 8. 


36  LECTURES     ON     THE 

BUT  with  refpect  to  real  or  landed  property,  the  cafe  was  very  different. 
Here  a  man  had  only  the  ufe,  or  enjoyment  of  the  profits ;  and  that,  too, 
but  a  temporary  one.  The  real  property,  or  donunium  verum,  was  lodged  in 
the  community  at  large;  and  was,  at  the  end  of  every  year,  cantoned  out, 
and  diftributed  to  the  feveral  tribes  of  the  people  ;  and  the  portion  affigned 
to  each  was  after  that  fubdivided  to  the  refpeclive  individuals ;  who  by 
thefe  means  were  perpetually  removed  from  one  part  of  the  territory  to  ano- 
ther ;  nor  could  any  man  tell  in  what  place  his  lot  was  to  fall  the  next 
year  j-.  And  this  cuftom,  abfurd  as  it  feems  to  us,  they  were  fo  fond  of, 
as  to  continue  for  fome  time  after  they  fettled  in  the  Roman  territories  ;  un- 
til, growing  by  degrees  acquainted  with  the  conveniencies  of  life,  a  change 
of  manners  was  introduced,  and  they  wifhed  for  more  fettled  habitations. 
Then  came  into  ufe  grants  for  terms  of  years,  after  for  life,  and  laftly, 
eftates  defcendible  to  heirs,  which  are  thofe  we,  properly  fpeaking,  called 
fiefs.  This  continual  removal  of  habitation,  fo  intolerable  to  a  people  any 
way  accuftomed  to  comfortable  dwellings,  was  no  manner  of  inconvenience 
to  them.  Their  little  fubftance  was  eafily  removed,  and  two  or  three  days 
were  fufficient  to  erect  a  forry  hovel,  which  contented  the  wifhes  of  the 
greateft  among  them  J.  But  their  paffion  for  this  conflant  change  of  place 
feems  derived  from  that  condition  which  I  have  already  obferved  they  were 
in,  namely,  a  middle  ftate  between  hunters  and  mepherds ;  and  that  they 
ftill  retained  that  practice,  was  an  evidence  that  they  had  not  been  long  re- 
claimed from  a  favage  life.  Tacitus  indeed  fays,  that,  in  the  intervals  of 
war,  they  were  not  much  employed  in  hunting,  but  lived  a  lazy  and  inactive 
life.  This,  however,  I  apprehend,  muft  be  underftood  only  of  a  few  na- 
tions, neareft  to  the  Romans,  where  game  was  not  fo  plentiful,  and  not  of 

all 

f  It  is  to  be  wifhed,  that  our  ingenious  Profeflbr  had  here  entered  more  at  large  into 
the  hiftory  of  property  in  land.  The  fubjecT:  is  important  and  little  underftood.  The 
conceptions  entertained  by  the  antient  inhabitants  of  Germany  and  Gaul  concerning  pro- 
perty have  been  explained  and  illuftrated  in  a  book,  intituled,  "  An  Hiftorical  DuTer- 
"  tation  concerning  the  Antiquity  of  the  Englifli  ConfKtution."  The  author  of  this 
treatiie  feems  to  be  the  firft  who  has  remarked  that  land  is  originally  the  property  of 
nations,  and  has  attempted  to  account  for  the  manner  in  which  it  comes  to  defcend  to  in- 
dividuals. See  his  DuTert.  part  I.  feel.  3.  See  alfo  Profeflbr  Millar's  valuable  work  on 
the  Diflinc"lion  of  Ranks  in  Society,  p.  165.  et  feq.  2d  edition. 

$  Csefar,  de  bell.  Gall.  lib.  4.  c.  i.     Lib.  6.  c.  22.     Tacit,  de  mor.  Germ.  c.  26. 


LECT.  4.  L  A  W  S     OF     E  N  G  L  A  N  D.  37 

all  the  Germans  in  general :  for  it  is  certain  the  Franks  had  a  ftrong  paflion 
that  way,  after  they  were  fettled  in  Cavil ;  and  from  them  the  plan  ol 
forell  la\v;,  fo  juflly  complained  of  in  England,  after  the  conqueft,  wa;^ 
rived.  And  true  it  is,  that  whole  nations,  as  well  as  individuals,  were  pof- 
felled  with  this  rambling  inclination  ;  and  that,  not  always  with  a  view  of 
fettling  in  a  better  country.  If  the  Germans  changed  their  barren  wilds  for 
the  warm  fun  and  fertile  climate  of  Gaul,  we  are  afl'ured  by  the  fame  autho- 
rity, that  many  tribes  of  the  Gauls,  on  the  other  hand,  removed  to  the 
forefts  of  Germany.  If  Jornandes  tells  us,  that  the  Goths  quitted  the  bleak 
and  barren  mountains  of  Scandinavia  for  the  pleafant  banks  of  the  Danube, 
he  Hkewife  informs  us,  that,  afterwards,  they  returned  back  into  their  na- 
tive country. 

As  to  their  methods  of  adminiftering  juflice,  I  have  already  obferved,  that? 
their  chieftains,  in  the  feveral  diftricts,  aflifted  by  their  affeffors,  were  their 
judges.  Before  them  all  caufes  were  brought,  which  were  not  difculTed  in 
their  general  affemblies  ;  but  as  to  the  manner  of  inveftigating  the  truth,  all 
the  German  nations  did  not  agree.  Nay  the  Salian  Franks  differed  confi- 
derably  from  their  brethren,  the  Ripuarian  Franks.  If  the  judge,  or  his 
afleffors,  or  any  of  them,  had  knowledge  of  the  fact  in  difpute,  which  often 
happened,  as  thefe  people  lived  much  in  public,  and  in  the  open  air,  they 
gave  fentence  on  fuch  their  knowledge.  This  was  common  to  them  all ; 
but  if  there  was  no  fuch  knowledge  in  any  of  the  pares  curia^  as  I  may  call 
them,  and  the, fad  in  queftion  was  denied,  the  Salians.  proceeded  thus: 
The  accufer  or  plaintiff  produced  his  witneffes,  the  accufed  did  the  like ; 
and  on  comparing  the  evidence  on  both  fides,  the  judges  gave  fentence.  If 
the  plaintiff  had  no  witnefles,  the  defendant,  on  his  denial,  was  difmiffed  of 
courfe.  If  the  witneffes  for  the  plaintiff  failed  in  fully  .proving  the  point, 
and  yet  their  teftimony  was  fuch,  as  induced  a  prefumption  which. the  other 
party  was  not  able  to  remove,  the  trial  was  referred  to  the  ordeal  f .  That 
of  boiling  water  was  the  mod  ufual  among  them.  The  manner  was  thus,: 
The  perfon  fufpecled  plunged  his  hand  into  the  boiling  water,  which  was 
afterwards  carefully  clofed  up,  and  infpefted  at  the  end  of  three  days  :  If  no 
fign  of  the  fcalding  then  appeared,  he  was  acquitted  j  if  otherw  ife,  he  was 
eiteemed  guilty  {. 

IT 

f  Du  Cange,  GlofTarium  voc.  Juramentnm.    Georgifch,  corp.  juris  Germanici  antiqni. 
|  Spelraan,  doff.  VQC.  Lada  et  Laclare.     Struv.  Hilt.  jur.  criminal,  icel.  9. 


3$  LEG  T  U  R  E  S    ON     THE  LECT.  4. 

IT  is  ftrange  that  any  people  fhould,  for  ages,  make  ufe  of  fuch  a  method, 
\vhich  a  very  little  reflection,  or  common  experience,  might  eafily  fatisfy 
them  had  no  manner  of  connection  with  guilt  or  innocence.  But,  befides 
the  grofs  fuperftition  of  thefe  nations,  who  thought  the  honour  of  provi- 
dence concerned  in  the  detection  and  punifhment  of  criminals,  Montefquiea 
hath  given  us  another  reafon  for  this  practice,  which,  whether  juft  or  not, 
for  its  ingenuity,  deferves  to  be  taken  notice  of.  He  obferves,  that  the  mi- 
litary profeffion  naturally  infpires  its  votaries  with  magnanimity,  candour, 
and  fmcerity,  and  with  the  utmofl  fcorn  for  the  arts  of  fallhood  and  de- 
ceit. This  trial,  then,  he  imagines  calculated  to  difcover  plainly  to  the  eye, 
whether  the  perfon  accufed  had  fpent  his  whole  life  in  the  arts  of  war,  and 
in  the  handling  of  arms.  For  if  he  had,  his  hands  would  thereby  have  ac- 
quired fuch  a  calloufnefs,  as  would  prevent  any  impreffion  from  the  boil- 
ing water,  difcernible  at  that  diftance  of  time.  He  therefore  was  acquitted, 
becaufe  it  was  prefumed  he  would  not  fcreen  himfelf  by  a  falfhood.  But  if 
the  marks  appeared,  it  was  plain  he  was  an  effeminate  foldier,  had  refitted 
the  force  of  education,  and  the  general  bent  of  his  countrymen  ;  that  he 
was  not  to  be  moved  by  the  fpur  of  conftant  example,  that  he  was  deaf  to 
the  call  of  honour  ;  and  confequently  fuch  a  perfon  whofe  denial  could  have 
no  weight  to  remove  the  presumption  againfl  him  -f. 

THESE  were  the  methods  of  trial  among  the  Salians,  but  the  Ripuarian 
Franks,  the  Burgundians,  and  fcveral  other  German  nations  afted  very  dif- 
ferently. No  witnefles  were  produced  among  them  on  either  fide,  but  they 
contented  themfelves  with  what  werev  called  negative  proofs ;  that  is,  the 
perfon  accufed  fwore  pofitively  to  his  own  innocence,  and  produced  fuch  a 
number  of  his  relations  as  the  cuftom  of  the  country  required :  or  if  he  had 
not  relations  enough,  the  number  was  made  up  out  -of  his  intimate  acquain- 
tance :  Thefe  were  to  fwear  that  they  believed  his  oath  to  be  true,  and  up- 
on this  he  was  acquitted.  But  if  he  declined  the  oath,  or  could  not  pro- 
duce a  fufficient  number  of  compurgators,  he  was  found  guilty  ;  a  practice 
that  fully  proves  thefe  nations  were,  when  this  method  W-as  introduced,  a 
people  of  great  fimplicity  and  fmcerity  J, 


f  L'Efprit  des  loix,  liv.  28.  ch.  17. 

$  Georgifch,  cofp.  juris  Germanic!  antiqni,  p.  347.  and  p, 


LECT.  4.  L  A  WS    OF    E  N  G  L  A  N  D.  39 

BUT  as,  by  this  means,  every  profligate  perfon,  with  the  afliflancc  of  a 
few  others  as  wicked  as  himlHf,  was  fure  to  efcape,  the  defects  of  this  kind 
of  trial  introduced  another,  or  rather  revived  an  anticnt  one,  no  lefc  incon- 
cluftve.  Antiently,  die  Germans  had  no  judicatures  for  the  decifion  of  pri- 
vate wrongs ;  but  each  in  perfon  took  his  own  latisfUclion,  and  this  intro- 
duced perpetual  combats.  When  the  new  method  of  tr'u.l  came  in  ufc,  a 
party  feeing  his  adverfary  ready  to  defeat  his  jufl  demands,  and  fcreen  his 
mjufticc  with  perjury,  reforted  to  his,  antient  right,  refufed  to  accept  the 
oath,  and  appealed  to  the  providence  of  God  by  the  trial  of  battle:  a  me- 
thod as  abfurd,  indeed,  as  the  former,  but  peculiarly  adapted  to  the  way 
of  thinking  of  the  Germans,  who  frequently,  before  they  entered  into  a. 
war,  prognosticated  the  fuccefs  of  it  from  the  event  of  a  combat  between 
one  of  their  own  nation,  and  a  captive  of  the  enemy  f .  This  kind  of  trial 
gained  ground  among  all  the  defendants  of  this  ferocious  people },  and 
introduced  itfelf  at  length  among  the  Salians,  who  had  it  not  at  firft,  and 
who,  by  admitting  pofitive  proofs,  had  no  need  of  it ;  and,  though  long 
fallen  into  difufe,  hath  left  behind,  its  offspring,  private  duelling.-  It  hath 
been  long  fmce  obferved,  that  this  fafhionable  cuftom  owed  its  origin  to 
thefe  northern  nations,  the  anceftors  of  the  prefent  inhabitants  of  Europe, 
as  no  other  nations,  antient  or  modern,  however  martial  or  difpofed  to  war, 
had  any  knowledge  or  practice  of  it;  but  it  is  undeniably  evinced  by  this, 
that  as  a  lie,  above  all  other  provocations,  is  the  ftrongeft,  and  what  lays 
gentlemen  of  honour  under,  an  indifpenfible  neceflity  of  duelling,  fo  were- 
you  lie  the  very  words  mutually  given  and  received  in  old  times,  the  accu- . 
{tomed  form  of  joining  iffue  by  battle,  after  which  neither  party,  without 
perpetual  infamy  and  degradation  from  his  Tank,  could  recede.  . 

I  HAVE  taken  the  more  notice  of  thefe  four  different  methods  of  trial  \ 
among  the  old  Germans,  as  everyone  of  them  has  been  received  into  Eng- 
land.    Concerning  the  firft,  the  trial  by  witneffes,  little  need  be  faid.     As  - 
it  is  the  faireft,  and  the  jufteft,  it  has  accordingly,  purfuant  to  the  practice 
of  all  civilized  nations,  prevailed  over  all  the  reft;  and  it  is  that,,  and 

that 

/ 

f  DuCange,  GloiT.  voc.DutUum.     Spelman,  voc.  Campus.     Seldcn's  Duello,  orTrea-  - 
life  on  Single  Combat,  ch-  5^ . 

$  Georgifch,  corp.  juris  Germattici  antiqui,  p.  980^  1065,  1223,  126.7,  1270. 


4o  LE-CTURESoN     THE  LECT.  4. 

that  only,  that  we  ufe  at  this  day.  But  the  ordeal  alfo  was  in  ufe  among 
the  Saxons,  'and  continued  foine  time  after  the  Norman  conqueft ;  as  ap- 
pears, not  only  by  the  old  records  of  the  law,  but  from  the  famous  (lory, 
whether'  true  or  falfe,  of  queen  Emma,  mother  of  Edward  the  Confeffor, 
and  the  plow-fh ares -f.  The  trial  by  negative  proofs,  though 'out  of  prac- 
tice, is  (till  in  being,  in  what  is  called  by  us  the  'Wager  of  law  ;  where,  if  a 
perfon  is  impleaded  in  an  a&ion  of  debt,  on  a  fimple  contract:,  he  may  clear 
liimfelf,  by  fwearing 'he  oweth  it  not,  and  by  producing  eleven  others,  who 
{"wear  to  their  belief  that  he  has  dcpofed  the  truth  J.  Hence  it  has  hap- 
pened, that,  for  a  long  time  paft,  aftiom  of  debt,  in  fuch  cafes,  have  rtot 
been  brought,  but  another,  called  an  aftion'on  the  cafe,  is  the  ufual  method, 
which  admits  the  parties  on  both  fides,  as  to  the  point  of  debt,  <vcl  non  debet 
to  an  examination  of  witnefTes.  For  the  lafl,  the  trial  by  battle,  our  old 
books  are  full  of  it,  in  real  actions  ;  and  although,  to  prevent  the  inconve- 
nience and  uncertainty  of  it,  the  grand  aflize  was  invented;  yet  was  it  in 
the  tenant's,  that  is,' the  defendant's  option,  to 'choofe  which  method  of  trial 
he  pleafed.  The  lateft  inflance  of  joining  iilue  by  battle,  I  have  met  with, 
is  in  Dyer's  Reports,  in  the  beginning  of  Elizabeth's  reign  ||;  but  by  this 
time  it  was  fo  much  difcouraged,  that,  by  force  of  repeated  adjournments, 
the  parties  were  prevailed  on  to  agree,  and  judgment  was  at  length  given 
upon  the  failure  of  one  of  the  parties  appearing  on  the  day  appointed  for 
the  combat. 

WHEN  the  truth,  by  fome  of  the  methods  above-mentioned,  was  afcer*. 
tained,  judgment  was  to  be  given.  Here  it  will  be  proper  to  obferve,  that, 
.among  thefe  -people,  there  were  only  two  kinds  of -crimes,  that  were  looked 
upon  as  public  ones,  and  confequently  capital.  The  firfl  was  treafon, 
or  defertion  in  the  field,  the  punifhment  hanging  ;  the  fecond  cowardice,  or 
.•unlawful  luft,  for  they  were  ftrict  obfervers  of  the  nuptial  band,  the  punifh- 
ment 

f  Selden,  Anale&a  Anglo-Britannica,  lib.  2.  cap.  8. 
$  Brady's  Hift.  of  England,  p.  65. 

|j  Mr  Harrington  has  remarked,  that  "  the  laft  trial  by  battle  in  England  was  in  the 
"  tim~e  of  Charles  I.  and  that  it  did  not  end  in  the  actual  combat."  Obfervations  on  the 
Statutes,  qd  edition,  p.  202.  The  lail  inflance  which  occurs  of  the  judicial  combat  in  the 
hiftory  of  France,  was  the  famous  one  between  M.  Jarnac  and  M.  de  la  Chaiftaignerie, 
A.  D.  1547.  Dr.  Robertfon's  Charles  V.  voL  i.  p.  298. 


LF.CT.  4-  LAWS    OF    EN  G  L  AN  I).  4t 

ment  (lifting  in  a  morafs,  with  an  hurdle  over  them.  It  fcems,  at  firft  view, 
furpriiing,  that  murder,  which  Tacitus  allures  us,  from  fudden  gufls  of  paf- 
fion,  and  intemperance  in  liquor,  was  very  frequent,  fhould  not,  as  it  ib 
much  weakened  the  ftrength  of  the  nation,  be  confidered  as  a  criminal  of- 
fence, and  punifhcd  accordingly  f .  But  a  little  reflection  on  their  fituation 
will  reconcile  us  to  it.  The  perfon  (lain  was  already  loft  to  the  fociety,  and 
if  every  murder  was  a  capital  offence,  the  ftate  would  lofe  many  01 
members,  who  were  its  chief  fupportcrs.  Befides,  if  the  flayer  had  no 
hopes  of  mercy,  nothing  elfe  could  be  expected  than  his  defertion  to  their 
enemies,  to  whom  he  could  be  of  infinite  fervice,  and  to  them  of  infinite 
detriment,  from  his  knowledge  of  their  ftrength  and  circumftances,  and  of 
the  pafles  into  their  country,  through  the  moraifes  and  torells,  which  were 
their  chief  defence.  Murder,  therefore,  like  other  lefler  crimes,  was 
atoned  among  thofe  people,  as  it  was  among  the  ancient  Greeks,  who  were 
in  pretty  fimilar  circumftances,  in  the  heroic  times,  as  Ajax  afiures  us  in 
theje  words,  in  the  ninth  Iliad : 

Kai   /utr   TIS   rt    nix.<iiyr>i1oio   foroit 
T[otrw3  YI  rx  Tra/cfec  ufifalo  r&niblo/;, 

namely,  by  a  fatisfa&ion  of  cattle,  corn,  or  money,  to  the  perfons  injured, 
that  is,  to  the  next  of  kin  to  the  deceafed,  with  a  fine  to  the  king  or  lord, 
as  an  acknowledgment  of  his  offence,  and  to  engage  the  fociety  to  protect 
him  againft  the  future  attempts  of  the  party  offended.  Thefe  fatisfacTions 
were  not  regulated  originally,  nor  fixed  at  any  certain  rate,  but  left  to  the 
difcretion  of  the  injured,  or  next  of  kin.  However,  if  he  appeared  extra- 
ordinarily unreafonable,  and  refufed  what  was  judged  competent,  the  focie- 
ty, upon  payment  of  his  fine  to  their  head,  took  the  offender  into  protec- 
tion, and  warranted  his  fecurity  againft  the  attempts  of  the  other  party,  or 
his  friends.  After  thefe  nations  were  fettled  in  the  Roman  empire,  thefe 
fatisfacYions  for  each  offence  were  reduced  to  a  certainty  by  their  laws  J. 

THIS  is  as  much  as  I  have  thought  neceffary  to  obferve  at  prefent,  coni 
cerning  the  manners  and  cuftoms  of  thefe  people,  while  they  remained  be- 
yond the  Rhine.  It  will  next  be  proper  to  fee  how  far  afterwards  they  re- 
tained them,  and  what  alterations  were  introduced  by  their  new  fituation. 

F  LECTURE 

•j-  Tacit,  de  mor.  Germ.  cap.  12.  and  25. 

$  Lindenbrog.  Cod.  Leg.  Antiq.  p.  1404.  Tacit,  de  mor.  Germ.  c.  21.  I.I.  Wzl.  by 
Wotton,  p.  192.  194.  LL  Anglo-Saxon,  a;.  Wilkius,  p.  18.  20.  41.  Hickef.  Dillert. 
Epift.  p.  no.  Georgifcli,  corpus  jur.  Germ,  antiq. 


42  LECTURES   ON    THE  LECT.  5. 


LECTURE 

The  decline  of  the  Roman  empire — The  invajions  of  the  Northern  nations — -The 
manner  in  which  they  fettled  in  the  Roman  provinces — The  changes  infenfibly 
introduced  among  them  in  confequence  of  their  new  fituation—~The  policy  and 
condition  of  the  Franks  after  they  had  fettled  in  France — The  rife  of  the  feudal 
law — Eftates  beneficiary  and  temporary* 

IT  is  full  time  now  to  quit  the  wilds  of  Germany,  to  attend  thefe  nations 
in  their  pafTage  into  the  Roman  dominions,  and  to  take  a  view  of  the 
manner  wherein  they  fettled  themfelves  in  thefe  new  countries.  The  Roman 
empire  had  been  long  on  the  decline  ;  but  efpecially,  from  the  time  of  Se- 
verus,  it  every  day  grew  weaker.  This  weaknefs  arofe,  in  a  great  mea- 
fure,  from  an  exceflive  luxury,  which  difqualified  not  only  their  great  ones, 
but  the  bulk  of  the  Roman  people  for  foldiers  ;  and  alfo  from  the  tyrannical 
jealoufy  of  their  emperors,  who  were  afraid  of  trufling  perfons  of  virtue  or 
ability,  and  had  no  other  method  of  fupporting  their  authority,  than  by  em- 
ploying numerous  {landing  armies,  that,  under  them,  pillaged  and  oppref- 
fed  the  defencelefs  populace  ;  and  laftly,  from  the  licentioufnefs  of  the  fol- 
diery,  who  made  and  unmade  emperors  according  to  their  wild  caprices. 
Hence  proceeded  many  competitions  for  that  dignity,  and  continual  battles 
and  flaughters  of  their  men  at  arms  ;  the  natural  confequence  of  which  was, 
that  whoever  prevailed  in  thefe  bloody  contefts,  always  found  himfelf  lefs 
able  and  powerful  to  defend  the  empire  from  foreign  enemies  or  domeftic 
competitors,  than  his  predeceflbr.was  f. 

ABOUT  the  year  200  after  Chrifl,  the  feveral  nations  who  had  been  hi- 
therto cooped  up  beyond  the  Rhine  and  the  Danube,  and  kept  in  fome  awe 
by  the  terror  of  the  Roman  name,  began  to  gather  fome  courage  from  the 
weaknefs  of  the  empire  ;  and  from  that  time  few  years  paiTed  without  in- 
curfions  into,  and  ravages  of,  fome  part  of  the  fouthern  territories,  by  one 
or  other  of  thefe  people  j  and  how  redoubtable  they  became  to  that  decay- 
ing 

f  Montefquieu  on  the  Rife  and  Decline  of  the  Roman  Empire.     Dr  Geddes,  in  his 
Tract  concerning  the  Nations  which  overturned  the  Empire  of  the  Romans,  p.  21. — 26, 


LECT.  5.  LAWS   OF    ENGLANM).  43 

ing  ftatc,  may  eafily  be  judged  from  the  particular  fondncfs  tlic  emperors 
of  thofe  days  had,  upon  every  flight  advantage  gained  over  them,  for  aflum* 
infj  the  pompous  titles  of  Gothiru •;,  Vandalicus,  Alemannicus,  Francicus, 
£c.  not  for  the  conqueft,  or  reducing  into  fubjecUon  thofe  feveral  people, 
as  in  antient  times,  but  merely  for  having  checked  them,  and  kept  them  out 
of  the  Roman  boundaries  |, 

BUT  thefe-invafions  of  the  northern  nations  were  a  long  time  confined  to 
the  fingle  views  of  rapine  and  plunder  ;  for  as  yet  they  were  not  fully  con- 
vinced of  their  own  ftrength,  and  the  enfeebled  condition  of  their  enemies. 
And  perhaps  they  might  have  longer  continued  in  this  ignorance,  and 
\vithin  their  former  bounds,  had  it  not  been  for  an  event  that  happened  about 
the  year  370,  the  like  to  which  hath  feveral  times  fince  changed  the  face  of 
Afia.  I  mean  a  vaft  irruption  of  the  Hunns,  and  other  Tartarian  nations 
into  the  north  of  Europe.  Thefe  people,  whether  out  of  their  natural  de- 
fire  of  rambling,  or  preffed  by  a  more  potent  enemy,  were  determined  on  a 
general  change  of  habitation ;  and,  finding  the  invafion  of  the  Perfian  em- 
pire, which  then  was  in  its  full  grandeur,  an  enterprize  too  difficult,  they 
crofled  the  Tanais,  and  obliged  the  Alans  and  Goths,  who  lived  about  the 
Boryflhenes  and  the  Danube,  to  feek  new  quarters.  The  former  fled  weft- 
ward  to  Germany,  already  overloaded  with  inhabitants ;  and  the  latter  beg- 
ged an  afylum  from  Valens  in  the  eaftern  empire,  which  was  willingly  ac- 
corded them.  The  countries  fouth  of  the  Danube  were  before  ahnofl  en- 
tirely depopulated  by  their  frequent  ravages.  Here,  therefore,  they  were 
permitted  to  fettle,  on  the  condition  of  embracing  the  Chriftian  faith  ;  and 
it  was  hoped  they,  in  time,  would  have  proved  a  formidable  barrier  againft 
the  incroaching  Hunns,  and,  by  a  conformity  of  religion,  be  at  length 
melted  into  one  people  with  the  Romans.  For  the  attaining  this  purpofe, 
they  were  employed  in  the  armies,  where,  to  their  native  fiercenefs  and 
bravery,  they  added  fome  knowledge  of  difcipline,  the  only  thing  they 
wanted ;  and  many  of  their  kings  and  great  men  were  in  favour  at  court, 
and  either  fupported  by  penfions,  or  raifed  to  employments  in  the  flate  {. 

BUT  the  injudicioufnefs  of  this  policy  too  foon  appeared  ;  and  indeed  it 
was  not  to  be  expected  that  a  people  ufed  entirely  to  war  and  rapine,  and 

F  2  unaccuf- 

f  Stlden's  titles  of  honour,  part  i.   chap.  5.    §  i. 

$  Procop.  de  bel.  Goth.  ap.  fcript.     Byz.  Jornandes,  Paulus  Wamefridus,  Gregory  of 
Tours.     Mably,  obfervations  fur  1'hifloire  de  France,  torn.  I.  chap.  i. 


44  LECTURES     ON     THE  LECT.  5. 

unaccuftomed  to  any  other  method  of  fubfiftance,  could  in  a  fhort  time  be 
reduced  to  the  arts  of  focial  life,  and  to  the  tillage  of  the  earth ;  or  be  retain- 
ed in  any  moderate  bounds,  in  time  of  peace,  when,  by  being  admitted  with- 
in the  empire,  they  faw  with  their  own  eyes  the  immenfe  plunder  that  lay  be- 
fore them,  and  the  inability  of  the  Romans  to  oppofe  their  becoming  matters 
of  it.  During  the  life  of  Theodofius  they  remained  in  perfect  quiet,  awed 
by  his  power  and  reputation ;  but  when  he  left  two  weak  minor  princes  un- 
der the  guardianfhip  of  two  interefted  and  odious  regents,  it  was  obvious 
they  could  not  be  bridled  much  longer.  Though,  if  we  are  to  credit  the 
lloman  hiflorians,  their  firft  irruption  was  owing  to  the  jealoufy  Ruffinus, 
the  prime  minuter  of  Arcadius,  entertained  of  Stilicho,  the  guardian  of  Ho- 
norius.  This  latter,  it  is  faid,  ambitious  of  holding  the  reins  of  both  em- 
pires, pretended,  that  Theodofius  had  on  his  death -bed  appointed  him  fole 
regent  of  both.  For,  though  Arcadius  was  now  of  fufficient  age  to  govern 
of  himfelf,  he  was,  in  truth,  for  want  of  capacity,  all  his  life  a  minor.  Ruf- 
finus, we  are  told,  confcious  of  his  rival  Stilicho's  fuperior  talents  and 
power,  refolved  to  facrifice  his  matter's  intereft  rather  than  fubmit  to  one  he 
fo  much  hated ;  and,  accordingly,  by  his  private  emifiaries,  ftirred  up  both 
Goths  and  Hunns,  to  fall  at  once  on  the  eaftern  empire  f. 

IN  the  year  406,  thefe  nations,  fo  long  irreconcileable  enemies  to  each  o- 
ther,  poured  their  fwarms  in  concert  into  the  defencelefs  dominions  of  Arca- 
dius. The  Hunns  pafied  by  the  Cafpian  fea,  and  with  unrelenting  cruelty 
ravaged  all  Afia  to  the  gates  of  Antioch  ;  and  at  the  fame  time  the  Goths, 
under  the  fo  much  dreaded  Alarick,  with  no  lefs  fury,  committed  the  like 
devaluations  in  Illyricum,  Macedon,  Greece,  and  Peneloponnefus.  Stilicho, 
thinking  that  his  faving  the  eaftern  empire  would  undoubtedly  accomplifh  for 
him  his  long  wifhed-for  defire  of  governing  it  in  the  name  of  Arcadius,  as 
he  did  the  weftern'in  that  of  Honorius,  haftened  into  Greece  with  a  well-ap- 
pointed army.  But,  when  he  had  the  barbarous  enemy  cooped  up,  and,  as 
it  were,  at  his  mercy,  the  weak  prince,  inftigated  by  his  treacherous  minifter 
Ruffinus,  fent  him  orders  to  retire  out  of  his  dominions.  The  Goths  re- 
turned unmolefted  to  the  banks  of  the  Danube,  laden  with  plunder ;  and 
Stilicho  went  bank  to  Italy  boiling  with  rage  and  refentment,  but  he  never 
had  an  opportunity  of  wreaking  his  vengeance  on  his  treacherous  rival. 

IN 

f  Giannone's  hifh  of  Naples,  lib.  u.  cap.  4. 


LECT.  5.  L  A  W  S    OF    E  N  G  L  A  N  D.  * .  ; 

IN  the  next  year,  Germany,  furcharged  \vitli  her  own  inhabitants,  and  the 
nations  who  fled  from  the  tlunns,  and,  perhaps,  'mitigated  by  Ruflinus,  to 
find  work  for  Stilicho  at  home,  fent  forth  her  multitudes  acrofs  the  Rhine; 
and,  for  three  fucccflive  years,  the  Suevians,  Alans,  Vandals,  and  Bur- 
gundians,  laid  all  the  open  country  of  Gaul  \vafte  ;  and,  about  the  fame 
time,  Conflantine,  a  Roman  Briton,  afTumed  the  imperial  purple,  and  v  as 
acknowledged  by  all  the  Romans  of  that  ifland  and  Gaul. 

THE  weflern  empire  was  now  utterly  difqualified  for  defence  :  Stilicho, 
the  only  man  whofe  abilities  and  influence  were  capable  of  faving  the  falling 
flate,  had  been  fufpected  of  treafon  in  afpiring  to  the  diadem,  and  was  put 
to  death ;  and  Alarick,  having  before  effectually  plundered  Greece,  was 
now  acting  the  fame  part  in  Italy,  while  Honorius,  (hut  up  in  Ravenna, 
made  but  feeble  efforts  of  refiftance.  Twice  was  Rome  befieged,  once  re- 
deemed by  an  immenfe  ranfom,  and  the  fecond  time  taken,  plundered  and 
burnt.  At  length  thefe  calamities  a  little  fubfided  ;  Conftantinc,  the  Britifli 
ufurper  of  the  empire,  died ;  and  all  the  weflern  Romans  again  acknow- 
ledged Honorius  ;  but  the  weflern  empire,  though  fhe  lingered  fome  time, 
had  received  her  mortal  wound,  and  utterly  perifhed  in  lefs  than  fifty  years. 
The  diflreffed  emperor  Honorius  granted  to  the  Burgundians,  who  were 
the  mod  civilized  of  thefe  barbarians,  and  had  embraced  the  Chriflian  reli- 
gion, the  country  they  had  poffeffed  themfelves  of,  namely,  Alface  and 
Burgundy.  The  Goths,  who  were  already  Chriflians,  but  of  the  Arian 
perfuafion,  having  by  this  time  exhauiled  Italy,  were  eafily  prevailed  on, 
under  Ataulphus,  Alarick's  fucceffor,  to  fettle  in  the  fouth-wefl  of  Gaul, 
under  a  like  grant ;  which  country  had  been  quitted  in  the  year  410  by  the 
Sueves,  Alans,  and  Vandals,  who  had  over-run  all  Spain,  and  divided  it 
into  three  kingdoms.  And  thus  were  two  kingdoms  formed  in  the  fouth 
of  Gaul,  the  new  inhabitants  of  which  coming  by  compact,  and  under  the 
title  of  the  Roman  emperor,  behaved  afterwards  to  the  fubjected  Romans 
and  Gauls  not  in  the  light  of  brutal  conquerors.  Though  they  themfelves 
retained  their  own  cuftoms,  they  indulged  thefe  in  the  ufe  of  the  Roman 
laws,  fuffered  them  to  enjoy  a  confiderable  portion  of  the  lands,  and  made 
no  very  afflicting  diflinctions  between  themfelves  and  their  fubjects. 

THE 


46  L  E  C  T  U  R  E  S     OK     THE  LECT.  5. 

•  •-* 

THE  Burgundians,  particularly,  we  arc  informed,  took  two  thirds  of  the 
lands,  the  pailurage  and  forefts,  with  one  third  of  the  flaves  to  look  after 
their  flocks,  and  left  the  remainder  to  the  Romans,  who  were  fkilled  in 
agriculture.  They  alfo  quartered  themfelves  in  the  houfes  of  the  Romans, 
which  naturally  produced  an  acquaintance  and  amity  between  the  two  na- 
tions. But  one  great  reafon,  as  I  apprehend,  of  the  lenity  of  thefe  people 
to  the  vanimed  (and  a  fimilar  one  will  account  for  the  Oftrogoths  and 
Lombards  in  Italy,  afterwards,  following  their  example,  which  likewife 
hath  been  taken  notice  of  with  wonder  by  fome  authors)  was  their  neigh- 
bourhood to  the  Roman  empire,  which  ftill  continued  in  name  in  the  Weft, 
and  which  they  might  well  be  afraid  of  feeing  revived,  under  a  prince  of 
ability,  if  their  harm  treatment  alienated  the  conquered  people's  affections 
from  them  f . 

BUT  different  was  the  treatment  the  conquered  met  with  from  the  Franks, 
who  about  this  fame  time  fettled  themfelves  at  a  greater  diftance  from  Italy, 
namely,  in  Belgic  Gaul.  The  Franks,  above  moft  of  the  other  German  na- 
tions, had  been  for  a  confiderable  time  attached  to  the  Romans,  infomuch 
that  if  they  did  not  receive  their  kings  from  them,  as  Claudian  tells  us  they 
did  from  Honorius,  at  lead  the  kings  received  their  confirmation  from  the 
emperors ;  and  they  continued  in  this  fidelity  till  the  year  407,  when  they 
fought  a  bloody  battle  with  the  Sueves,  Vandals,  and  Alans,  to  prevent  their- 
paffing  the  Rhine,  to  invade  the  Roman  territories.  But  when  they  found 
the  weftern  empire  already  difmembered,  they  thought  it  not  convenient 
to  lie  ftill,  and  fuffer  other  nations  to  mare  the  prey  entirely  amongft  them- 
felves. The  Salians,  therefore,  took  poffeffion  of  the  prefent  Netherlands, 
and  the  Ripuarians  to  their  original  country  of  Mentz  and  Heffe,  added 
Treves,  Cologne,  and  Lorrain.  Some  have  thought  thefe  people  had  grants 
from  the  Roman  emperor,  in  the  fame  manner  as  I  have  mentioned  before 
concerning  the  Burgundians  and  Vifigoths ;  but  I  mould,  with  others,  ap- 
prehend this  to  be  a  miftake ;  for  .ZEtius  the  Roman  general  left  the  Goths 
and  Burgundians  in  quiet  poffeffion  of  their  feats,  but  defeated,  and  obliged 
the  Franks  to  repafs  the  Rhine,  which  made  them,  after  the  danger  was  over, 
return  with  double  fury;  and  for  a  long  time  after  they  treated  the  con- 
quered 

f  Bouquet,  le  droit  public  de  France,  eclaircipar  les  monumens  de  1'antiquite,  p.  6. — 10. 
Montefquieu,  1'Efprit  des  lobe,  liv.  30.  chap.  6,  7,  8,  9. 


LECT.  5-  L  AWS    OP    ENGL  AN  0.  47 

qunrccl  Romans  in  the  flile  of  matters,  and  with  many  afilidUvc  dittinclions, 
unknown  to  their  neighbours  the  Goths  and  Burgundiansf. 

MANY,  in  the  firfl  heat  of  victory,  they  reduced  to  flavery,  to  a  fervitude 
very  different  from  what  hid  been  before  praftifed  in  Germany,  and  nearly 
approaching  to  what  was  ufed  by  the  Romans.  For  whatever  property  was 
acquired  by  thcfe  flavcs  or  fervants,  who  in  after  ages  were  called  Villains, 
belonged  to  their  maflers,  not  abfolutely,  as  at  Rome ;  but  the  matters 
claimed  and  took  pofTeflion  of  it,  and  they  (I  mean  in  France)  for  the  en- 
joyment of  what  was  permitted  them,  paid  a  ftipulated  tax  called  ccnfus, 
which  was  the  only  tax  ufed  there  in  thofe  ancient  times.  However,  they 
did  not  employ  them  in  domeflic  drudgery,  but  fuffered  them  to  live  apart, 
as  the  proper  German  fervants  had  done.  Their  duties  were  uncertain,  in 
this  agreeing  with  thofe  of  the  men  of  war,  and  differing  from  thofe  of 
the  middle  rank,  which  I  (hall  hereafter  mention,  and  were  of  the  mofl 
humiliating  kind,  they  being  obliged  to  attend  at  their  lord's  fummons,  to 
carry  out  dung,  remove  nuifances,  and  do  other  mean  and  fervile  offices. 
The  number  of  thefe  flaves  and  villains  for  centuries  perpetually  increafed, 
from  the  many  wars  both  foreign  and  civil,  thefe  people  were  engaged  in, 
and  the  jus  gentium  of  thofe  ages,  by  which  all  that  were  taken  in  war  were 
reduced  to  flavery;  infomuch  that,  by  the  year  1000,  the  number  of  thefe 
villains  was  immenfe,  whole  cities  and  regions  being  reduced  to  that  flatej. 

THIS  introduction  of  a  new  order  of  men,  unknown  to  the  original  Ger- 
man policy,  and  inferior  to  all  others,  was  of  advantage  to  that  which  had 
before  been  the  loweft,  I  mean  the  fervants,  as  they  were  called  in  Germany, 
orfocage  tenants,  as  they  were  called  in  England  ;  for  the  duties  they  paid 
their  lords  were  fixed  at  a  certain  rate,  which  being  performed,  they  were 
chargeable  with  no  other  burdens,  and,  though  no  members  of  the  body 
politic,  as  having  no  mare  in  the  public  deliberations,  either  in  perfon  or 
by  reprefentation,  were  in  reality  free  men.  Thefe,  with  the  addition  of 
feveral  of  the  captive  Romans,  who  were  moft  fkilful  in  agriculture,  were 
the  fucceflbrs  of  the  old  fervants  in  Germany  ;  but  their  numbers,  from, 

the 

f  Reliq.  Spelm.  p.  2. — 7. 

t  Potgiefler,  de  flat,  lervorum,  lib.  2.  cap.  "i.     Montefquieu,  1'Efprit  des  loix,  liv.  30. 
chap.  14.     Du  Cange,  voc.  Servus. 


48  LECTURES     ON     THE  LECT.  5. 

the  caufes  before-mentioned,    the  perpetual  wars,  continually  decreafed, 
great  multitudes  of  them  being  reduced  into  the  (late  of  villainage  f. 

THE  foldiers,  who  were  really  what  compofed  the  nation,  continued  for 
a  longer  time  pretty  much  in  the  fame  ftate  as  in  Germany  ;  for  a  whole 
people  do  not  part  with  their  accuftomed  ufages  and  practices  on  a  fudden. 
They  changed  their  habitations  as  before,  their  manner  of  judicature  and  ad- 
miniftering  juflice  continued  the  fame,  they  met  in  general  affemblies  as 
ufual,  but,  as  they  were  now  difperfed  over  a  more  extenfive  country,  not 
fo  frequently  as  formerly.  When  they  were  converted  to  Chriftianity, 
which  happened  under  Clovis,  who,  by  uniting  all  the  Franks,  fubduing 
the  Alemans,  and  conquering  confiderable  trafts  of  country  from  both  the 
Vifigoths  and  Burgundians,  firft  formed  a  confiderable  kingdom,  it  was 
found  exceedingly  inconvenient  to  afTemble  every  month.  Thrice  in  the 
year,  namely  on  the  three  feftivals,  was  found  fufficient,  except  on  extraordi- 
nary occafions  ;  and  this  method  was  continued  many  ages  in  France  and  in 
England.  For  hundreds  of  years  after  the  conquefl,  thefe  were  the  moil 
ufual  and  regular  times  of  affeinbling  parliaments. 

BUT  though  things,  in  general,  wore  the  fame  face  as  when  thefe  people 
remained  at  home,  it  will  be  neceflary  to  obferve,  that  a  change  was  in- 
fenfibly  introducing,  the  king  and  the  chieftains  were  daily  increafmg  their 
privileges,  at  the  expence  of  the  common  foldiers,  an  event  partly  to  be 
afcribed  to  the  general  affemblies  being  lefs  frequent,  and  confequently 
fewer  opportunities  occurring  for  the  people  at  large  to  exert  their  power ; 
but  principally  to  the  many  years  they  had  fpent  fucceflively  in  camp,  be- 
fore they  thought  themfelves  fecure  enough  to  difperfe  through  the  country. 
The  ftrictnefs  of  military  difcipline,  and  that  prompt  and  unlimited  obe- 
dience its  laws  require,  habituated  them  to  a  more  implicit  fubmiflion  to 
their  leaders,  who,  from  the  neceffities  of  war,  were  generally  continued 
in  command.  And  it  is  no  wonder  that  while  the  authority  of  the  inferior 
lords  was  thus  every  day  gaining  ftrength,  that  of  the  king  mould  encreafe 
more  confiderably.  For,  probably,  becaufe  he,  as  general,  was  the  fitted: 
perfon  to  diftribute  the  conquered  lands  to  each  according  to  his  merits, 
he  about  this  time  aflumed  to  himfelf,  and  was  quietly  allowed  the  entire 

power 

-f  Spelman  reliq.  12,  14,  248.     Muratori  antiq.  Ital.  vol.  5.  p.  712. 


LECT.  5-.  L.AWS    OP    ENGLAND. 

power  of  the  partition  of  hinds.  They  were  (till,  and  for  foine  confidcrablc 
time  longer,  alligncd  in  the  general  aflemblies,  but  according  to  hi, 
will  and  plcafure,  to  the  icveral  lords,  who  afterwards  fubdividcd  them  to 
their  followers  in  the  fame  manner  at  their  difcretion;  whence  it  came,  that 
thefe  grants  were  called  benefices,  and  are  conftantly  defcribed  by  the  old 
writers,  as  flowing  from  the  pure  bounty  and  benevolence  of  the  lord  j. 

A  POWER  fo  extraordinary  in  a  king  would  tempt  any  one,  at  firfl  view, 
to  think  that  he  who  had  fo  unlimited  a  dominion  over  the  landed  property, 
mud  be  a  mofl  abfolute  monarch,  and  fubjeft  to  no  manner  of  controul 
whatfoever.  It  will  therefore  be  proper  to  make  an  obfervation  or  two,  to 
fhew  why,  in  fa&,  it  was  otherwife.  Firfl:,  then,  the  afcendant  the  lords 
had  gained  over  their  followers,  made  it  extremely  dangerous  for  the  king1 
to  opprefs  the  lords,  left  it  might  occafion,  if  not  a  rebellion,  at  lead  a 
defertion  of  them  and  their  people.  For  the  bonds  of  allegiance,  except 
among  the  companions  of  the  king,  as  I  obferved  before,  were  not  yet  fully 
tied.  On  the  other  hand,  the  intered-  of  the  lords  obliged -them  to  protect 
their  inferiors  from  the  regal  power.  Secondly,  this  power  of  the  king, 
and  of  his  lords  under  him,  was  not  unlimited  in  thofe  times,  as  it  may- 
appear  to  be  at  firft  fight,  and  as  it  became  afterwards.  For,  though  he 
could  aflign  what  land  he  pleafed  to  any  of  the  Franks,  he  could  not  aflign 
any  part  to  any  other  but  a  Frank,  nor  leave  any  one  of  the  Franks  unpro- 
vided of  a  fufficient  portion,  unlefs  his  behaviour  had  notorioufly  difquali- 
fied  himj. 

BUT  the  drongeft  reafon  againd  this  abfolute  power  in  thofe  times,  is  to 
be  drawn  from  the  common  feelings  of  human  nature.  As  abfolute  monar- 
chies arc  only  to  be  fupported  by  danding  armies,  fo  is  an  abfolute  unli- 
mited power  over  that  army,  who  have  condantly  the  fword  in  their  hands, 
a  thing  in  itfelf  impomble.  The  Grand  Seignior  is,  indeed,  the  uncontroul- 
ed  lord  of  the  bulk  of  his  fubje&s,  that  is,  of  the  unarmed ;  but  let  him 
touch  the  meaneft  of  the  janizaries,  in  a  point  of  common  intered^  and  he 
will  find  that  neither  the  facrednefs  of  the  blood  of  Ottoman,  nor  the  religi- 
ous dodone.  of  paflive  obedience,  can  fecure  his  throne.  How  then  could 

G  an 

t  Bruflel,  ufage  des  fiefs,  liv.  2..    Sclden's  tit.  of  honour,  part  2.,  cap.  i.  $  23.  and 
§  33- 
J  Mably,  obfervations  fur  1'hifloire  de  France,  liv.  I.  chap.  5.  and  6. 


50  L  E  C  T  U  R  E  S     ON     THE  LECT.  5. 

an  elective  prince,  in  thefe  northern  regions,  exercife  an  uncontrolled  domi- 
nion over  a  fierce  people,  bred  up  in  the  higheft  notions  of  civil  liberty  and 
equality  ?  One  of  their  old  maxims  they  long  religioufly  adhered  to,  that 
is,  that,  in  confideration  of  their  lands,  they  were  bound  to  ferve  only  in 
defenfive  wars;  fo  that  a  king  who  had  engaged  in  an  offenfive  one,  had 
every  campaign  a  new  army  to  raife  by  the  dint  of  largefles  ;  which  if  he 
had  no  treafure  left  him  by  his  predeceflbr,  as  he  frequently  had,  and  which 
every  king  by  all  means  was  diligent  in  amaffing,  he  fupplied  from  the 
.profits  of  his  demefns,  the  cenfus  on  his  villains,  or  elfe  from  foreign 
plunder  f. 

BUT  thefe  people  had  not  long  been  fettled  in  their  new  feats,  before  the 
encreafe  of  their  wealth,  and  the  comfortablenefs  of  their  habitations,  ren- 
dered a  conflant  removal  inconvenient,  and  made  them  defirous  of  more 
fettled  afiurance  in  their  refidence,  than  that  of  barely  one  year.  Hence 
it  came,  that  many  were,  by  the  tacit  permiflion  of  the  king,  or  the  lord, 
allowed  to  hold  after  their  term  was  expired,  and  to  become  what  our 
law  calls  tenants  by  fufferance,  amoveable  at  any  time,  at  the  pleafure  of 
the  fuperior  ;  and  afterwards,  to  remedy  the  uncertainty  of  thefe  tenures, 
grants  for  more  years  than  one,  but  generally  for  a  very  fhort  term,  were 
introduced.  The  books  of  the  feudal  law,  written  many  hundred  years 
after,  indeed,  fay  that  the  firft  grants  were  at  will,  then  for  one  year,  then 
for  more  ;  but  I  own  I  cannot  bring  myfelf  to  believe  that  thefe  conquerors, 
who  were  accuflomed  in  Germany  to  yearly  grants,  could  be  fatisfted  with 
a  tenure  fo  precarious  as  under  that  of  a  year,  in  their  new  acquifitions. 
Thefe  grants  at  will,  therefore,  which  are  mentioned  in  thofe  books,  I  un- 
derftand  to  be  after  their  term  ended.  I  mean  this  only  as  to  the  warrior- 
Franks,  for  as  to  the  focagers  and  villains,  I  will  readily  allow  that  many  of 
the  former,  and  all  the  latter,  were  originally  at  pleafure  {. 

ABOUT  this  period,  as  I  gather  from  the  reafon  and  circumftances  of  the 
times,  was  introduced  the  tenure  of  caflleguard,  which  was  the  afTignment 

of 

f  Gregor.  Turonen.   lib.  2.    cap.  27.     Ufage  des  fiefs,  par  Bruflel,    liv.  2.    cap.  6, 
DifTertation  on  the  antiq.  of  the  Engliih  conftitution,  part  3.  §  2. 

±  Lib.  feud.  j.  tit.  i.     Hume  appendix,  2.     Dalrymple,  Eflay  on  feudal  property* 
cap.  5.  §  i. 


LECT.  ,5.          LAWS     OF     ENGLAND.  51 

ot  a  caflle,  with  a  tract  of  country  adjacent,  on  condition  of  defending  it 
from  enemies  and  rebels.  This  tenure  continued  longer  in  its  original  ftatc 
than  any  other  ;  for  by  the  feudal  law  it  could  be  granted  for  no  more  than 
one  year  certain  f. 

IT  is  time  now  to  take  notice  of  fuch  of  the  Romans  as  lived  among  the 
Franks,  and  by  them  were  not  reduced  to  flavery.  Clovis  began  his  con- 
quefts  with  reducing  Soifibns,  where  a  Roman  general  had  fet  himfclf  up 
with  the  title  of  a  king  ;  and  after  he  had  extended  his.  conquefts  over  all 
the  other  dates,  the  Franks,  and  fome  other  German  nations,  the  Armorici, 
the  inhabitants  of  Brittany,  who,  cut  off  from  the  body  of  the  empire,  had 
for  fome  time  formed  a  feparate  flate,  fubmitted  to  him  on  condition  of  re- 
taining their  eftates,  and  the  Roman  laws.  Their  example  was  foon  follow- 
ed by  others.  The  Gauls  who  dwelt  on  the  Loire,  and  the  Roman  garri- 
fons  there,  were  taken  into  his  fervice.  Thus  was  the  king  of  France  fove- 
reign  of  two  diftinct  nations,  inhabiting  the  fame  country,  and  governed  by 
different  laws.  The  Franks  were  ruled  by  their  cuftoms,  which  Glovis  and, 
his  fucceffors  reduced  into  writing  ;  the  Romans  by  the  Imperial  law.  The 
eftates  of  the  one  were  beneficiary  and  temporary ;  thofe.  of  the  others 
were  held  plena  jure  and  perpetual,  and  now,  or  foon  after,  began  to  be 
called  allodial.  But  thefe  allodial  eftates  were  not  peculiar  in  after  times  to 
the  Romans  ;  for  as  thefe  eftates  were  alienable,  many  of  them  were  pur- 
chafed  by  the  Franks  :  So  that  we  read,  that  when  Sunigifila  and  Gallamon 
were  deprived  of  the  benefices  they  held  as  Franks,  they  were  permitted  to 
enjoy  their  eftates  in  propriety.  As  the  Romans  were,  before  their  fubmif- 
fion,  divided  into  three  claffes,  the  nobles,  the  freemen,  and  the  flaves,  fo 
they  continued  thus  divided ;  the  nobles  being  dignified  with  the  title  of 
conviiw  regis  \. 

BUT  as  it  was  unfafe  to  truft  the  government  of  thefe  new  fubjecls  in  the 
hands  of  one  of  their  nation,  the  king  appointed  annually  one  of  his  com- 
panions, or  comites,  for  that  purpofe,  in  a  certain  diftrkil ;  and  this  was  the 
origin  of  counties,  and  counts.  The  bufmefs  of  thefe  lords  was  to  take  care 
of,  and  account  for  the  profits  of  the  king's  demefns,  to  adminifter  juftice, 

G  2  and 

f  Coke  on  Littleton,  lib.  2.  chap.  4.. 

t  Montefquieu,  1'Efprit  des  loix.  liv.  30.  chap.  13.     Du  Cange,  voc.  Alod.     Schilteri 
Thefaur.  voc.  Alod. 


52  LECTURES     ON     THE  LECT.  5. 

and  account  for  the  profits  of  the  courts ;  which  were  very  confiderable,  as 
the  Roman  laws  about  crimes  being,  by  degrees,  fuperfeded,  and  confe- 
quently  capital  puniflirnent  in  rnoft  cafes  abolifhed,  all  offences  became 
fineable,  a  third  of  which  they  retained  to  themfelves.  They  alfo,  in  imita- 
tion of  the  lords  of  the  Franks,  led  their  followers  to  the  wars.  For  every 
free  Roman,  that  held  four  manors,  was  obliged  to  ferve  under  his  count  j 
and  thofe  that  had  more  or  lefs  contributed  in  proportion.  This  military 
duty,  together  with  an  obligation  of  furnifhing  the  king  with  carriages  and 
waggons,  was  all  the  burden  put  upon  them,  inftead  of  thofe  heavy  taxes 
and  impofls  they  had  paid  to  their  emperors ;  fo  that,  in  this  inftance,  their 
fituation  was  much  mended,  though  in  other  refpe&s  it  was  fufficiently  mor- 
tifying f  The  greateft  among  them  was  no  member  of  the  political  body, 
and  incapable  of  the  loweft  office  in  the  (late ;  and  as  all  offences  were  now 
fineable,  thofe  committed  againft  a  Frank,  or  other  Barbarian,  were  efti- 
mated  at  double  to  the  compenfation  of  thofe  committed  againft  a  Roman 
or  Gaul.  No  wonder,  then,  that  gentilis  homo^  a  term  formerly  of  re- 
proach among  the  Romans,  (for  It  fignified  a  heathen  and  barbarian) 
became  now  a  name  of  honour,  and  a  mark  of  nobility  ;  and  that  the  Ro- 
mans earneflly  longed  to  turn  their  allodial  eflates  into  benefices,  and  to  quit 
their  own  law  for  the  Salic.  And  when  once  they  had  obtained  that  privi- 
lege, the  Roman  law  inferifibly  difappeared,  in  the  territories  of  the  Franks, 
the  northern  parts  of  modern  France,  which  are  ftill  called  the  pat's  des  cou- 
tiimcs ;  whereas,  in  the  fouthern  parts,  where  no  fuch  odious  diftinftions 
were  made  by  the  original  conqueror,  the  Roman  law  kept  its  ground,  and 
is. to  this  day  almofl  entirely  obferved.  Thefe  countries  are  called  by  the 
French  lawyers  the  pdis  de  lot  ecrite,  meaning  the  Roman  J. 

BUT  we  cannot  have  a  compleat  idea  of  the  constitution  of  this  nation, 
without  taking  notice  of  the  clergy,  who  now  made  a  confiderable  figure 
among  them.  Churchmen  had,  ever  fince  the  converfion  of  Conftantine, 
been  of  great  confequence  in  the  empire ;  but  the  influence  they  obtained 
among  the  northern  barbarians  was  much  more  extenfive  than  what  they 
had  in  the  Roman  empire.  The  converfion  of  Clovis  to  the  Chriftian  re- 
ligion 

f  Heinnec.  Elem.  jur.  Germ.    lib.  3.    §  26.     Selden's  tit.  of  hon.   part  2.   chap.  i. 
Spelman,  voc.  Comites. 

J  Ripuar.   L.  L.  tit.  de  diverfis  interfe&ionibus,  p.  160,  161.  ap.     Georgifch,  corp, 
jur.  Germ.     Du  Cange,  voc.  Faida* 


Lr.cr.  5.  L  A  W  S    OF    E  N  G  L  A  N  D.  53 

ligion  was  owing  to  the  earned  perfuafions  of  In,  .tildis,  a  zcai 

Chriltian,  and  toil  vow  he  made  when  prelled  in  battle,  of  ing  the 

faith  of  Jefus  Chrilt,  if  he  obtained  tiic  victory.  He  and  his  poop!-  in  ge- 
neral accordingly  turned  (Ihriltians  ;  anil  the  refpeJ  and  lupuilit. 
gard  they  had  in  former  times  paid  to  their  pagan  priefts,  were  now  tranf- 
ferred  to  their  new  inftrudors.  The  principal,  ti. 
admitted  members  of  their  general  aflcmblies ;  where  their  advice 
votes  had  the  greateft  weight,  as  well  as  in  the  court  of  the  prince ;  as 
learning,  or  even  an  ability  to  read,  was  a  matter  of  aftonilhment  to  fuch  an 
illiterate  people,  and  it  was  natural  in  fuch  a  (late  they  fliould  take  thofe  in 
a  great  meafure  as  guides  in  their  temporal  affairs,  whom  they  looked  on  as 
their  conductors  to  eternal  happinefs.  As  they  were  the  only  Romans  (for 
the  churchmen  were  all  of  that  nation)  that  were  admiilible  into  honoursf 
the  moil  confiderable  of  their  countrymen  were  fond  of  entering  into  this 
profefllon,  and  added  a  new  weight  to  it.  But  if  the  facrednefs  of  their 
function  gave  them  great  influence,  their  wealth  and  riches  added  not  a  lit- 
tle to  it.  Before  the  irruptions  of  the  barbarians,  they  had  received  large 
poileflions  from  the  bounty  of  the  Roman  emperors,  and  the  piety  of  parti- 
culars.  Thefe  they  were  fure  to  poffefs :  but  their  fubfequent  acquifitions 
•were  much  greater.  Though  thefe  kings  and  their  people  had  imbibed 
the  faith  of  Chrift,  they  were  little  difpofed  to  follow  its  moral  precepts. 
Montefquieu  obferves  the  Franks  bore  with  their  kings  of  the  firft  race, 
who  were  a  fet  of  brutal  murderers,  becaufe  thefe  Franks  were  murderers 
fhemfelves.  They  were  not  ignorant  of  the  deformity  of  their  crimes,  but, 
mflead  of  amending  their  lives,  they  chofe  rather  to  make  atonement  for 
their  offences,  by  largeffes  to  their  clergy.  Hence  the  more  wicked  the 
people,  the  more  that  order  encreafed  in  wealth  and  power  f . 

BUT,  to  do  juftice  to  the  clergy  of  that  age,  there  was  another  caufe  of 
their  aggrandizement,  that  was  more  to  their  honour.  As  thefe  barbarians 
were  conftantly  at  war,  and  reduced  their  unhappy  captives  to  a  flate  of 
flavery,  and  often  had  many  more  than  they  knew  what  to  do  with,  it  \\as 
ufual  for  the  churchmen  to  redeem  them.  Thefe,  then,  became  their  fer- 

vants, 

^  Bacon's  Difcourfe  on  the  Laws  and  Government  of  England,  p.  u.— 27.     Monad. 
Anglican,  paffim.     Mezeray,  abr.  chronol.  torn.  I.  p.  172. 


54  LECTURES    ON     THE  LECT.  5. 

vants,  and  tenants,  where  they  met  not  only  with  a  more  eafy  fervitude, 
but  were,  from  the  facrednefs  of  the  church,  both  for  themfelves  and  their 
pofterity,  fecured  from  any  future  dangers  of  the  fame  kind.  It  was  ufual 
alfo  for  the  unhappy  Romans,  who  were  pofleffed  of  allodial  eftates,  and  faw 
themfelves  in  danger,  by  thefe  perpetual  wars,  of  not  only  lofmg  them,  but 
their  liberty  alfo,  to  make  over  their  eftates  to  the  church,  and  become  its 
focage-tenants,  on  ftipulated  terms,  in  order  to  enjoy  the  immunities 
thereof. 

BY  all  thefe  means  the  landed  eftates  of  the  clergy  grew  fo  great,  that  in 
time  the  military  power  of  the  kingdom  was  much  enfeebled :  for  though 
they  were  obliged  to  furnilh  men  for  the  wars,  according  as  the  lands  they 
held  were  liable  to  that  fervice,  this  was  performed  with  fuch  backwardnefs 
and  infufficiency,  that  the  ftate  at  one  time  was  near  overturned,  and  it  be- 
came necefiary  to  provide  a  remedy.  Charles  Martel,  therefore,  after  ha- 
ving delivered  the  nation  from  the  imminent  danger  of  the  Saracen  inva(ionr 
found  himfelf  ftrong  enough  to  attempt  it.  He  ftripped  the  clergy  of  al- 
moft  all  their  pofieflions,  and,  turning  them  into  ftrift  military  tenures,  di- 
vided them  among  the  companions  of  his  victories ;  and  the  clergy,  inftead 
of  lands,  were  henceforth  fupported  by  tithes,  which  before,  though  fome- 
times  in  ufe,  were  only  voluntary  donations,  or  the  cuftom  of  particular 
places  not  eftablifhed  by  law  f. 

IN  my  next  lecture  I  mail  confider  the  introduction  of  eftates  for  life  into 
the  feudal  fyftem,  and  take  notice  of  the  confequences  that  followed  from 
thence. 

+  Montefquieu,  1'Efprit  de  Loix,  liv.  30.  chap.  21.  liv.  31.  chap.  9.  lo.  n. 


L   E   C   T   U   R   K 


Ll  cr.  6.          LA  \V  S     OF     E  N  (;  N  D. 


L     E     C     T     U     R      i  VI. 

"Tie  introduction  ofeftatesfor  life  into  the  feudal  fyjlcm — The  nature  andj 
of  in-ve/titurc — The  oath  off  catty,  and  the  tbligatiom  of  lurd  and  fa:-.; 

IN  the  preceding  ledure  I  took  notice  of  the  different  condition  and  fitua- 
tion  of  the  Romans  and  barbarians  in  the  infancy  of  the  French  mo- 
narchy ;  but  it  will  be  neceffary  to  obferve,  that  all  the  barbarians  them- 
felves  were  not  fubjeft  to  the  fame  laws  and  regulations.  When  the  Ripua- 
rian  Franks,  alter  the  murder  of  their  fovereign,  fubmitted  to  Clovi.>,  it  was 
under  an  exprefs  condition  of  preferring  their  own  ufages.  The  fame 
privilege  he  allowed  to  the  Allemans,  whom  he  conquered,  and  to  fuch 
parts  of  the  Burgundian  and  Gothic  kingdoms  as  he  reduced  to  his  obe- 
dience. The  cuiloms  of  all  thefe  feveral  people,  as  they  were  Germans, 
were  indeed  of  the  fame  fpirit,  and  did  pretty  much  agree  ;  but  in  particu- 
lar points,  and  efpecially  as  to  the  adminiflration  of  juftice,  they  had  many 
variations  j  and  thefe  the  feveral  nations  were  fond  of  and  (ludious  of  pre« 
ferving.  What  was  peculiar  to  thefe  people,  above  all  other  nations,  was 
this,  that  thefe  different  laws  were  not  local,  but  perfonal :  for  although  the 
Salians,  in  general,  dwelt  in  one  part  of  the  country,  the  Ripuarians  in 
another,  the  Allemans  in  a  third,  £c.  yet  the  laws  were  not  confined  to 
thefe  diflricls  :  but  a  Salian,  in  the  Ripuarian  territories  was  ftill  judged  by 
his  own,  the  Salian  law ;  and  the  fame  was  true  of  all  the  others.  Another 
peculiarity  was,  that  the  barbarians  were  not  confined  to  live  in  the  law  they 
were  born  under.  The  Romans,  indeed,  could  not  pafs  from  their  Roman 
law  to  that  of  any  one  of  their  conquerors,  until  they  were  allowed,  feveral 
ages  after,  to  acquire  fiefs  ;  but  any  of  the  barbarians,  if  he  liked  another 
law  better  than  his  own,  could  adopt  it :  a  privilege,  I  prcfume,  derived 
from  that  antient  practice  which  they  ufed,  of  removing  from  one  flate  or 
commonwealth  to  another,  or  of  going  forth  to  form  a  new  one. 

IN  the  French  monarchy,  then,  there  were  five  different  nations,  befides 
the  Romans,  governed  by  fire  diflincl;  la\vs ;  but  thefe  five  people,  being 

all 


56  LECTURES    ON     THE  LECT.  6. 

all  of  the  fame  northern  original,  and  defcended  from  the  conquerors  of 
Gaul,  were,  in  the  date,  every  one  of  them  efteemed  and  regarded  on  an 
equal  footing,  enjoyed  the  fame  privileges,  and  equally  received  benefices 
from  the  king  or  other  lords.  I  have  already  obferved,  that  the  bonds  be- 
tween the  king  and  his  companions  in  Germany  continued  during  their 
joint  lives.  It  had  the  fame  duration  after  they  fettled  in  Gaul ;  where  they 
either  prefided  with  him  in  his  court,  as  they  had  done  formerly,  or  were 
fettled  in  benefices  near  him,  and  in  fuch  fituations  as  they  might  readily  at- 
tend him  on  occafion ;  or  elfe  were  the  governors  and  leaders  of  the  free 
Romans,  under  the  title  of  counts.  But  all  the  grants  of  lands  or  offices 
that  they  enjoyed  were,  as  yet,  but  temporary.  So  that  they  were  fdeles$ 
or  vaffals,  bound  by  an  oath  of  fealty  for  life  ;  but  there  were  no  fiefs,  OF 
feudal  tenures,  if  we  may  call  them  by  that  name,  that  continued  for  fo 
long  a  term  f . 

THE  introduction  of  beneficiary  grants  for  life,  as  is  very  properly  com 
je&ured,  was  firft  owing  to  the  counts.  They  had,  as  I  mentioned  before, 
the  third  part  of  the  profits  of  the  courts  in  their  refpeclive  diftri&s,  which 
made  their  office  not  only  confiderable  and  honourable,  but  opulent.  They 
lived  apart  from  the  other  barbarians  among  the  Romans,  whofe  allodial 
property  was  fixed  and  permanent.  It  was  natural  for  them  to  wifh  the  con- 
tinuance of  their  lucrative  employments,  and  t6  make  them  as  perpetual  as 
their  obligation  of  fidelity  was ;  and  this  they  were  enabled  to  attain  by  the 
means  of  the  profits  they  made  of  their  places,  and  the  want  of  treafure, 
which  the  kings  frequently  laboured  under  to  fupport  their  wars  :  for  of- 
fenfive  ones  they  could  carry  on  in  no  other  manner  than  by  ready  treafure. 
The  counts,  therefore,  by  the  dint  of  prefents,  or  fines,  attained,  or  I  may 
rather  fay,  purchafed  eftates  for  life  in  their  offices  ;  but  thefe  eftates  had, 
at  firft,  continuance  only  during  the  joint  lives  of  the  granter  and  grantee  {. 

BUT  the  matter  did  not  flop  here.  The  example  was  quickly  followed 
by  the  other  barbarians,  who  were  the  immediate  tenants  of  the  crown, 

and 

f  Lib.  i.  Feud.  tit.  i.  Hanneton,  de  jur.  feud.  p.  139.  Du  Cange,  voc.  Fideles  et  Fi- 
delitas. 

|  Mably,  Obfervations  fur  1'hifloire  de  France,  liv.  I.  chap.  6.  Du  Cange  voc.  Be- 
nelicium. 


LECT.  6.          L  AW  S    OF     E  N  G  L  A  N  D.  57 

and  who  now  were  growing  weary  of  the  conftant,  or  even  a  frequent 
change  of  habitation.  And,  in  one  rcfpedt,  this  allowance  was  of  confi 
able  advantage  to  the  king,  as  it  created  a  tic  upon  them,  equally  durable 
with  that  by  which  his  companions  were  bound  to  him,  and  wore  out  by  de- 
grees that  principle  they  had  before  retained,  that  by  throwing  up  what  tlie\ 
held  from  him,  they  were  abfolved  from  their  allegiance.  They,  therefore, 
as  well  as  the  companions,  took  the  oath  of  fealty ;  which,  as  far  as  I  can 
find,  was  taken  by  none  on  the  continent,  whofe  eftates  were  lefs  than  for 
life ;  though,  in  the  law  of  England,  it  is  a  maxim,  that  fealty  is  incident 
to  every  tenure  but  two,  namely,  eftates  at  will  (for  they  did  not  think  it 
reafonable  that  a  perfon  mould  bind  himfelf  by  oath,  in  confideration  of 
what  might  be  taken  from  him  the  next  day)  and  eftates  given  in  frank 
almoigne,  or  free  alms,  that  is,  to  religious  houfes,  in  confideration  of  fay- 
ing divine  fervice,  and  praying  for  the  donor  and  his  heirs ;  and  thefe  were 
excufed  out  of  refped  to  the  churchmen,  who  were  fuppofcd  not  to  need  the 
bond  of  an  oath,  to  perform  that  duty  to  which  they  had  dedicated  them- 
fclves,  and  alib  becaufe  the  fervice  was  not  done  to  the  lord,  who  gave  the 
land,  but  to  God. 

THUS  eftates  for  life,  created  by  particular  grants,  went  on  continually  en- 
creafmg  in  number,  till  the  year  600,  by  which  time  almoft  every  military 
tenure,  caftle-guard  excepted,  was  of  this  nature.  And  this  accounts  for 
the  particular  regard  the  feudal,  and  from  it  our  law  (hews  to  the  tenant  of 
the  freehold,  and  the  preference  given  to  him  above  a  tenant  for  years. 
For,  firft,  his  eftate  was,  generally,  more  valuable  and  permanent,  as  long 
terms  were  then  unknown ;  and,  fecondly,  it  was  more  honourable,  as  it 
was  a  proof  of  a  military  tenure,  and  of  the  defcent  of  its  pollefibr  from  the 
old  German  freemen.  For  it  was  a  long  time  after  that  focage  lands,  in 
imitation  of  thefe,  came  to  be  granted  in  the  fame  manner,  for  life.  ri  he 
lords,  or  immediate  tenants  of  the  crown,  having,  by  the  means  afore-men- 
tioned, gotten  eftates  of  continuance,  and  being  bound  for  life  to  the  king, 
thought  it  their  intereft  likewife  to  connect  their  tenants  as  ftridly  to  them, 
by  granting  them  freeholds  alfo  ;  but  in  the  oath  of  thefe  fub-vaflals,  which 
they  took  to  their  lords,  there  was  an  exception  of  the  fealty  due  to  the 
king,  from  whom  the  land  was  originally  derived,  or  of  a  former  lord,  if 
fuch  an  one  they  had,  to  whom  they  were  bound  by  oath  before.  Thefe 

II  fub- 


58  LECTURES     ON     THE  LECT.  6. 

fub-vaflals,  likewife,  had  not  in  thofe  early  times,  the  power  of  creating 
vaffalages,  or  eflates  for  life,  under  them;  for  it  was  thought  improper  to 
remove  the  dependence  of  any  military  man  on  the  king  to  fo  great  a  dif- 
tance  ;  and  indeed  it  was  hardly  worth  any  man's  while,  if  it  had  been  law- 
ful, to  accept  fuch  a  gift  as  was  determinable  either  on  the  death  of  the  fu- 
perior  lord,  or  of  his  vaflal,who  had  granted  it,  or  laftly.,  on.  his  own  death  f.. 

ESTATES  for  life  being  now  become  common,  and  in  high  eftimation^ 
it  was  thought  proper  that  they  mould  be  conferred  with  more  form  and. 
folemnity,  and  that  by  means,  of  what  the  feudal  law  calls  Inveftiture,  of 
which  there  are  two  kinds.     The  firft,  or  proper  inveftiture,  was  thus  given  :- 
The  lord,  or  one  impowered  by  him,  and  he  that  was  to  be  tenant,  went 
upon  the  land,  and  then  the  tenant,  having  taken  his  oath  of  fealty,  the 
lord,  or  his  deputy  (or  attorney,  as  our  law  calls  him)  gave  aftual  poffeflion 
to  him,  by  putting  into  his  hand  a  part  of  tlie  premifes,  in  the  name  of  the 
whole,  as  a  turf,  a  twig,  or  a  hafp  of  the  door,  in  the  prefence  of  the. pares 
curia,  that  is,  of  the  other  vaflals  or  tenants  of  the  lord.     This  is  what  our 
law  calls  giving  livery  and  feizin,  from  the  lord's  or  his  deputy's  delivering, 
and  the  tenant's  taking  feizin,  for  fo  the  pofleflion  of  a  freehold  or  eftate  for 
life  is  called.     The  prefence  of  the  pares  curia  was  required  equally  for  the 
advantage  of  the  lord,  of  the  tenant,  and  of  themfelves ;  of  the  lord,  that, 
if  the  tenant  was  a  fecret  enemy,  or  otherwife  unqualified,  he  might  be  ap-  . 
prifed  thereof  by  the  peers  of  his  court,  before  he  admitted  him ;  and  that 
they  might  be  witnefles  of  the  obligation  the  tenant  had  laid  himfelf  under 
of  doing  fervice,  and  of  the  conditions  annexed  to  the  gift,  if  any  there  were, . 
which  the  law  did  not  imply :  for  the  benefit  of  the  tenant,  that  they  might 
teflify  the  grant  of  the  lord,  and  for  what  fervices  it  was  given  ;  and  laftly, 
for  their  own  advantage,  that  they  might  know  what  the  land  was,  that  it 
was  open  for  the  lord  to  give,  and  not  the  property  of  any  of  the  vaflals  j 
•and  alfo  that  no  improper  perfon  mould  be  admitted  a  par,  or  peer  of  their 
court,  and  confequently  be  a  witnefs,  or  judge,  in  their  caufes }. 

HENCE 

v    f  Spelman's  GlofT.  voc.  Feodiem.     Dalrymple  on  Feudal-Property,  chap.  i.     Hume. 
Append.  2. 

$  Du  Cange,  voc.  Inveftitura.     Spelman,  voc,  Pares  Curise.     Craig  de  feud.  lib.  2. 
dieg.  2. 


LECT.  6.  L  AWS    or    ENG  L  AN  D.  59 

HF.NCE  it  is,  that  in  our  law,  if  a  man  has  right  to  enter  into  feveral  lands 
in  the  fame  county,  an  entry  into  one  of  them,  in  the  name  of  all,  is  fuff]< 
to  veil  the  feizin,  that  is,  the  polleilion  of  the  freehold  of  all,  in  him  ;  be- 
caufe  the  fame  pares  curia  (who  were  in  antient  times  the  only  witncflfes  al- 
lowed) who  know  he  had  in  their  prefence  entered  into  one,  know  alfo  '. 
he  entered  that  one  in  the  name  of  all  the  others;  but  if  the  lands  lie  in  dif- 
ferent counties  (which  are  diflinct  jurifdicVions,  and  have  different  pares 
curia)  an  entry  into  one  county,  in  the  name  of  the  whole,  is  not  fufficient ; 
becaufe,  as  to  feizin  of  lands  in  the  other  county,  the  pares  thereof  are  the 
only  competent  witnefles. 

As  the  proper  invefliture  required  the  actual  going  upon  the  lands,  which 
was  often  inconvenient,  the  improper  inveltiture  was  introduced.  This, 
which  was  the  fecond  kind  mentioned,  was  alfo  performed  in  the  prefence 
of  the  pares  curia,  thus  :  The  intended  tenant,  in  a  moft  humble  and  low- 
ly manner,  prays  the  grant  of  fuch  an  eftate  from  his  lord  ;  which,  when 
the  latter  has  agreed  to,  he  inverts  him,  by  words  fignifying  his  grant,  and 
what  it  is  of,  accompanied  by  fome  corporeal  action,  as  delivering  him  a  ftaff, 
a  ring,  a  fword,  or  clothing  him  with  a  robe,  which  lad,  being  the  moft  com- 
mon method  amongft  the  great  immediate  tenants  of  the  king,  gave  rife  to 
the  name  invcftiture*  After  this,  the  tenant  did  fealty.  But  this  improper 
inveftiture  did  not  transfer  the  actual  pofieffion  of  the  land  without  fubfe- 
quent  livery  and  feizin,  and  gave  the  tenant  not  a  right  to  enter,  but  only  a 
right  of  action,  whereby  he  might  fue,  and  oblige  the  lord  to  transfer  it  by 
an  actual  livery.  For  allthefe  lands, being  liable  to  fervices  arifmg  out  of  the 
profits  for  which  the  lord  was  bound  to  anfvver  to  the  king,  his  pofleflion  of 
thefe  profits  by  their  rules  was  continued,  until  he  had,  by  an  act  of  public 
notoriety,  namely,  by  giving  livery  and  feizin  on  the  land,  put  it  out  of 
him.  And  this  maxim  was,  I  apprehend,  eftablifhed  alfo  for  the  benefit  of 
the  co-vaffals,  who  could  better  judge  by  their  own  eyes,  on  the  fpot,  whe- 
ther an  injury  was  done  by  the  grant  to  any  of  them,  than  by  hearing  the 
lands  named  and  defcribed  elfewhere,  as,  in  fuch  cafe,  it  frequently  happen- 
ed that  all  the  vafials  were  not  prefent  f . 

H  2  HEXCU, 

f  Bracton,  lib.  2,  cap.  17.     Spelman,  voc.  Fidelitas,  etSeifina.     Fleta,  lib.  3.  cap.  15-. 


60  L  E  C  T  U  R  E  S     ON     THE  LECT.  6. 

HENCE,  if  the  lord  had  granted  lands  by  an  improper  inveftiture  to  A, 
and  had  afterwards,  by  livery  and  feizin,  granted  them  to  B,  they  became 
B's,  though  he  was  the  later  inverted  ;  and  the  remedy  A  had  againfl  the 
lord  was  not  for  the  lands  themfelves,  for  thofe  he  had  already  legally  part- 
ed with  to  B,  and  could  not  recal,  but  for  their  value,  in  confideration  of 
his  having  bound  himfelf  to  fealty. 

THIS  was  the  form  and  manner  of  proper  and  improper  inveftitures  in 
the  early  times,  before  thefe  barbarians  had  learned  the  ufe  of  letters,  and 
was  intended  not  merely  for  folemnity,  but  alfo  to  create  fuch  a  notoriety 
of  the  faft,  as  it  might  eafily  be  proved  by  viva  voce  teflimony.  For  if  it 
was  denied,  the  tenant  produced  two  or  more  of  the  pares  curia,  each  of 
whom  fwore  he  had  either  been  prefent  at  the  inveftiture  himfelf,  or  had 
conftantly  heard  his  father  declare,  that  he  was.  And  this,  at  firft,  was  the 
only  evidence  admiflible,  and  was  abundantly  fufficient,  when  the  grants 
-were  only  for  one  life.  Such  proof,  however,  could  not  be  of  any  advan- 
tage to  the  church  ;  for,  though  churchmen  die,  the  church  doth  not,  but 
continues  to  be  reprefented  in  a  fucceflion  of  natural  perfons.  If  me,  there* 
fore,  had  not  a  more  permanent  evidence  to  produce  than  what  I  have  be- 
fore-mentioned, me  could  never,  after  fome  length  of  time,  afcertain  her 
rights.  On  this  account  brevia  /£/?#/#, or,  as  we  call  them,  deeds,  were  made 
ufe  of,  which  were  written  inftruments,  expreffing  the  grant,  and  its  nature, 
attefted  by  fome  of  the  pares.,  and  authenticated  by  the  feal  of  the  lord,  or  by 
his  name  and  fign  of  the  crofs.  When  this  kind  of  evidence  was  once  in- 
troduced, as  it  was  more  fixed  and  certain  than  the  frail  memories  of  men^ 
it  became  cuflomary  for  the  tenant,  who  had  been  inverted  either  properly 
or  improperly,  to  demand  and  obtain  a  breve  tcftatum  of  that  inveftiture,  and 
afterwards  other  fymbols  in  improper  inveftitures  went  out  of  ufe,  and  the 
delivery  of  a  deed  became  the  ordinary  fign  ;  but  this,  as  all  other  improper 
inveftitures,  required  a  fubfequent  actual  livery  and  feizin.. 

HAVING  thus  delivered  the  antient  and  proper  method  of  conftituting  an 
eftate  for  life,  let  us  attend  to  the  confequences,  and  fee  what  were  the  feve- 
ral  rights  and  obligations  of  the  lord  and  tenant,  and  for  that  purpofe  exa- 
mine the  oath  of  fealty. 

THE 


LFC-T.  6.  LAWS     OF     ENGLAND.  6r 

general  oath  of  fealty  on  the  continent  was  thus:  Ego  N.  vajjallus, 
fitpcr  bacfanfla  Ih .  .';>/,  juro,   quod  ab  l\ic  honi  in  anica  ufqitc  ad  ulti- 

mum  vita  mea  diem,  tibi  M.  domino  mco,f delis  ero,  contra  omnem  homincr  . 
cepto  fummo  pontificc,  vel  impcratorc,  vel  rege,  vel  priorc  domino  meo9  as  the 
cafe  was.     In  England,  Littleton  ^ives  this  account  of  it.     When  a 
der  doth  fealty  to  his  lord,  he  iluill  hold  his  right  hand  on  a  book,  and  ihall 
lay  thus :   KNOW  ye  this,  my  lord,  that  I  Ihall  be  faithful  and  true  unto  you, 
and  faith  to  you  (hall  bear,  for  the  lands  which  I  claim  to  hold  of  you  ;  and 
that  I  (hall  lawfully  do  to  you  the  cuftoms  and  fervices  which  I  ought  to  do, 
at  the  terms  afligned  j  fo  help  me  God,  and  his  faints ;  and  he  (hall  kifs  tl.e 
book  f . 

THE  only  differences  are,  that  the  words  ab  lac  bora  in  antea  nfque  ad  ul-> 
timum  vita  mea  diem  are  omitted  :  for  abroad  none  but  tenants  for  life  fwore 
realty.  In  England  termers  for  years  did  ;  and  that  contra  omnem  hominem, 
excepto,  &c.  though  implied,  is  likewife  omitted  ;  which  exceptions,  how- 
ever, in  the  Englifh  law,  were  inferted  in  the  doing  of  homage  which  the 
tenant  in  fee  did  to  his  lord. 

SUCH  was  the  general  oath  of  fealty ;  but  to  mew  what  being  faitbful 
and  true,  and  bearing  faith  comprehends,  it  will  be  proper  to  infert,  from 
the  feventh  title  of  the  fecond  book  of  the  feudal  law,  the  larger  oath, 
which  perfons,  rude  and  ignorant  of  what  the  word  fealty  implied,  were  to 
take.  It  runs  in  thefe  word  :  Ego  juro,  quod  nunquam  fcienter  ero  in  con- 
filio,  vel  infacJo  quod  tit  amittas.  vitam,.  vel  membrum  aliquod,  ve!  quod  tu  re- 
cipias  in  perfond  aliquam  lafionem,  vel  injuriam,  vel  contumcliam,  vel  quod  tu 
amittas  aliquem  honor  em  quern  nunc  babes,  vel  in  antea  habebis  ;  <&Jifcivero9 
vel  audivero,  de  aliquo,  qui  velit  aliquod  ijlorum  contra  te  facere,  pro  pojje  meo, 
ut  non  fiat  impedimentum  pr&Jtabo.  Et  ft  impedimentum  pro/tare  nequivero, 
quam  cito  potero,  tibi  nunciabo  ;  &  contra  eum,  prout  potero,  auxilium  meum  tibi 
praftabo;  &  Ji  contigerit,  te  rem  aliquam  quam  babes  vel  babebis  injufte  vel  for- 
tuito  cafu  amittere,  earn  recuperare  juvabo,  c!r  recuperatam  omni  tempore  retinere. 
Etfifcivero  te  velle  jujle  aliquem  offenderc,  6*  inde  genera  liter  vel  fpec  ialitcr 
fuero  requifitus,  meum  tibi,ficut  potero,  pra/iabo  auxilium.  Etfi  aliquid  mihi  de 

fecrcio 

f  Spelman,  GlofT.  p.  266.     Feud.  lib.  2.  tit.  6.     Littleton,  lib.  2.  chap.  2*     Bafnager 
coutume  reforroee  de  Normandie,  tit.  Des  fiefs  et  droits  Feodaux,  art.  107. 


62  LECTURES     ON     THE  LECT.  6. 

fccrcto  mariifcfta<veriS)  illud,  fine  tua  Uccntia^  nemini  pandam^  vet  per  quod  pan- 
daiur  faciam  ;  &  ft  confilium  mihifuper  aliquo  fafto  po/tulaveris,  illud  tibi  da- 
•bo  eonfilium,  quod  mihi  vidctur  magis  expedire  tibi ;  <&  nunquam  ex  perfona  mea 
allquid  faciam  fcknter^  quod  pertineat  ad  tuam  vel  tuorum  injuriam  vel  contu- 
mdiam. 


BESIDES  the  negative  obligations,  of  doing  nothing  to  the  prejudice  of 
the  lord  or  his  family,  the  pofitive  ones  the  vaffals  lay  under  may  be  re- 
duced to  the  two  heads  of  counfel  and  aid ;  which,  with  us,  are  flill  the 
principal  duties  that  the  parliament,  who  are,  or  reprefent  the  vaflals  of  the 
king,  owe  to  the  fovereign.  Under  counfel,  not  only  giving  faithful  ad- 
vice, but  keeping  his  fecrets  was  included.  Aid  may  be  either  in  fupporting 
his  reputation  and  dignity,  or  defending  his  perfon  or  property.  Under 
the  firft,  the  vaflal  was  not  only  to  (hew  him  the  higheft  reverence,  but  was 
forbid  to  accufe  or  inform  againft  him,  except  in  the  cafe  of  treafon,  where 
the  fupreme  lord  was  concerned.  He  could  not  in  a  fuit  between  them  ten- 
der to  his  lord  the  oath  of  calumny,  whereby  he  mould  be  obliged  to  fwear 
he  thought  his  caufe  was  juft,  and  that  he  did  not  carry  it  on  with  an  intent 
to  harrafs  and  diftrefs  ;  for  this  was  throwing  an  afperfion  on  his  lord's  cha- 
racter. He  could  not,  for  the  fame  reafon,  bring  any  action  againft  him, 
whereby  he  might  be  defamed,  and  particularly  the  interdi&um  unde-vi^ 
which  was  a  charge  againft  the  perfon  fued,  of  an  unjufl  and  violent  difpof- 
feflion  of  property.  Neither  could  Ire,  in  any  caufe  that  was  not  ftriftly 
feudal  (for  in  fuch  as  were  for  the  general  prefervation  of  that  polity,  he  was 
permitted)  bear  witnefs  againft  him.  And,  laftly,  he  was  obliged  to  fup- 
port  his  dignity,  to  attend  his  courts,  and  do  fuit  and  fervice,  as  a  witnefs 
and  a  juror. 

BY  aid  to  his  perfon,  he  was  not  only  obliged  to  defend!  his  lord,  if  at- 
tacked perfonally,  but  to  aflift  him  in  his  wars,  and  that  at  his  own  expence, 
out  of  the  profits  of  his  tenancy  ;  and  if,  in  the  field  of  battle,  he  deferted 
his  lord,  before  his  lord  was  mortally  wounded,  it  was  an  abfolute  forfeiture. 
But  this  aid  he  was  not  obliged  to  give  until  required  ;  for  perhaps  the  lord 
did  not  need  the  aid  of  all  his  tenants  ;  and  the  vaflal,  without  notice,  was 
fuppofed  ignorant  that  there  was  any  occafion  for  his  afliftance,  unlefs  it 
could  be  proved  the  vaiiai  knew  his  lord's  danger,  when  the  lord  himfelf 

did 


LF.CT.  6,  L  A  W  S     OF     E  N  G  L  A  N  D.  63 

did  not ;  or  that  he  knew  it  was  fo  imminent  as  not  to  give  the  lord  time 
to  fummon  him  ;  in  which  two  cafes,  he  was  obliged  to  fcrve  without  rc- 
quifitionf. 

BUT  here  ionic  diflinclions  inuft  be  taken  notice  of  as  to  the  nature  of 
thefc  wars.  1  lu-.ve  often  repeated  that  the  kind's  companions  were  bound 
to  affift  him  in  all  his  undertakings,  offenfive  or  dcfenfivc;  and  that  the 
other  freemen  were  obliged  only  to  ferre  in  defend  ve  wars.  But  now,  by 
this  new  introduction  of  grants  for  life  to  the  freemen,  the  cafe  was  altered. 
In  all  defenfiv.e  wars,  they  were  obliged  to  aid  their  lord,  though  he  had 
been  the  unjuft  aggreflbr,  and  this  for  the  prefervation  of  the  fociery  to 
which  they  belonged;  but  in  offenfive  ones,  it  was  to  be  confidcred  whether 
the  caufe  was  jult,  or  doubtful,  or  notorioufly  unjuft.  In  the  two  firfl  cafes,. 
he  was  obliged  to  furnim  his  aid  ;  for  if  his  lord's  quarrel  was  doubtful,  the 
refpecl  and  reverence  he  owed  him,  and  his  regard  to  his  lord's  character 
and  dignity,  laid  him  under  a  neceflity  of  prefuming  in  his  fuperior's  favour. 
But  if  the  war  was  notorioufly  unjuft,  he  was  at  liberty  to  ferve,  or  not,, 
as  he  pleafed.  And  the  aid  he  was  bound  to  give,  where  he  was  bound, 
was  againft  all  perfons,  contra  omnem  bominem,  even  his  parents,  brothers, 
children,  and  friends,  with  the  following  exceptions.  Firft,  not  againft 
the  king,  who  was  the  fupreme  lord  of  the  whole,  and  in  whofe  prefervation 
and  dignity  every  individual  was  concerned.  Secondly,  not  againft  him- 
felf,  for  felf-prefervation  is  the  firft  law  of  nature.  Thirdly,  not  againft  his 
original  country,  though  he  had  received  a  grant  from  a  foreign  lord,  and 
afterwards  war  broke  out  between  them  :  for  by  this  time,  the  opinion  of 
a  durable  obligation  to  the  ftate  he  was  born  in,  began  to  prevail  among 
them.  Laftly,  not  againft  his  antienter  lord,  when  he  had  grants  from  two; 
for  the  fecond  obligation  could  not  annul  the  firft.  It  may  here  be  natural- 
ly afked,  how  fuch  a  vaflal,  who  had  two  lords,  was  to  act  in  cafe  of  a  war 
between  them?  If  his  firft  lord's  caufe  was  juft  or  doubtful,  he  was  un- 
doubtedly bound  to  him  againft  the  fubfequent  one,  even  in  attacking  him ; 
and  this  was  no  forfeiture,  for  the  fecond  lord  had  fufficient  notice  of  his 
prior  obligation,  by  the  exception  in  the  oath  of  fealty.  Indeed,  if  he,  ha- 
ving a  lord  before,  had  omitted  the  exception,  he  juftly  loft  his  fief,  for  the 
deceit  put  on  his  latter  lord.  But  if  his  firft  lord's  caufe  was  notorioufly  un- 
juft, 

f  Coke  on  Littleton,  book  2.  chap.  i.     Du  Cange,  voc.  VafTaticum.    Wright  on  te- 
;  p.  55,  56. 


64  LECTURES     ON     THE  LECT.  6. 

juft,  he  was  not  at  liberty  to  aflift  him  againft  the  fecond  ;    but  by  the  two 
bonds  was  obliged  to  remain  neuter  *. 

THIS  military  duty  was  to  be  done  in  the  vaffal's  proper  perfon,  if  he  was 
capable  of  it  ;  unlefs  the  lord  was  pleafed  to  accept  of  a  deputy.  But  if  he 
was  incapable  himfelf,  as  often  mufl  have  happened,  after  eftates  for  life 
came  in,  he  was  allowed  to  ferve  by  a  fubftitute,  fuch  as  the  lord  approved. 
Suppofe,  then,  a  man  had  two  lords,  who  were  at  the  fame  time  at  war 
with  others,  and  each  required  his  perfonal  affiftance,  it  was  plain  he  was 
obliged  to  ferve  both,  the  elder  lord  in  perfon,  becaufe  his  right  was  prior, 
and  the  laft  by  deputy  f. 

THE  aids  due  to  the  lord,  in  refpect  of  his  property,  were,  firft,  to  aid  and 
fupport  him,  if  reduced  to  actual  indigence,  and  to  procure  his  liberty,  by 
paying  his  ranfom,  if  taken  in  war.  It  was  a  doubt  among  the  feudal  law- 
yers, whether,  if  the  lord  was  imprifoned  for  debts,  his  tenants  were  obliged 
to  releafe  him  ;  and  the  better  opinion  was,  that  they  were,  if  the  debts  did 
not  tend  to  their  very  great  impoverimment  J. 

THESE  were  all  the  aids  neceffarily  required  by  the  law  in  thefe  antient 
times.  For  thofe  for  making  his  eldefl  fon  a  knight,  and  marrying  his  elder 
daughter,  came  in  afterwards.  All  other  contributions  and  afliftances  were 
merely  voluntary,  though  very  frequent,  and  were  originally,  as  they  are 
flill  here,  and  are  (till  called  abroad,  though  impofed  really  and  truly,  free 


WE  are  now  to  fpeak  of  the  duty  of  the  lord  to  his  vaflals  ;  and  on  this 
head  there  is  no  need  of  enlarging  much  :  for  it  was  a  maxim  in  the  feudal 
law,  that  though  the  vaflal  only  took  the  oath  to  the  lord,  and  the  lord,  on 
account  of  his  dignity,  and  the  refpecl:  due  to  him  from  the  tenant,  took 
none  ;  yet  was  he  equally  obliged  as  if  he  had  taken  it,  to  do  every  thing, 
and  forbear  every  thing,  with  refpect  to  his  tenant,  that  the  vaflal  was  with 

refpecl: 

*  Feud.  lib.  2.  tit.  23.  and  24.     Dalrymple  on  Feud..  property,  chap.  2.     Wright  on 

tenures,  p.  72. 

•\  Madox,  Antiquities  of  the  Exchequer,   vol.  I.  p.  653.     Coke  on  Littleton,  lib.  2. 

chap.  3. 

^  Du  Cange,  voc.  Auxilium.     Madox,  Antiq.  Excheq.  chap.  1  5. 


LECT.  6.          LAWS     OF     ENGLAND.  65- 

rcTpeft  to  the  lord  ;  fo  that  the  bond  xvas  in  mod  rcfpccts  ftridly  mutual ; 
but  not  in  all,  for  the  lord  was  not  obliged  to  fupport  his  indigent  tenant, 
or  to  give  aids  to  him ;  but,  on  the  other  hand,  he  was  obliged  to  warrant 
and  defend  the  lands  he  had  given  to  his  tenant  by  arms,  if  attacked  in  open 
war,  and  in  courts  of  juflice,  by  appearing  upon  his  voucher,  that  is,  the 
tenant's  calling  him  in  to  defend  his  right,  and  if  the  lord  failed,  he  was 
bound  to  give  lands  of  equal  value,  or,  if  he  had  not  fuch  to  beftow,  to 
pay  to  the  tenant  (in  confideration  of  the  bond  for  life,  he  had  bound  him- 
felf  to  his  lord  in)  an  equivalent  in  money. 

As,  in  cafe  of  the  vaffaTs  failure  in  his  duty,  the  lands  returned  to  the 
lord,  fo,  in  cafe  of  the  lord's  failure  on  his'  fide,  the  lands  were  vefted  in 
the  vaflal,  free  from  all  fervices  to  his  immediate  fuperior.  But  to  the 
king,  or  lord  paramount,  he  itill  owed  fervice,  in  proportion  to  his  fief  j  and 
by  this  means  he  might  become,  inflead  of  a  fubvaflkl,  an  immediate  vaflal 
of  the  kingf. 

HAVING  mentioned  the  obligations  on  each  fide  between  lord  and  tenant, 
it  next  follows  to  fee  what  intereft  each  had  in  the  lands  given  ;  on  which 
head  I  mall  be  brief,  as  thefe  feveral  rights  were  not  fo  nicely  diftinguimed 
as  in  after  ages,  when  thefe  tenures  became  hereditary.  The  lord  was  then 
to  fuffer  his  tenant  to  enjoy  the  iffues  and  profits  of  the  lands,  he  rendering 
the  fervices  due  by  the  refervation  of  law,  and  the  additional  ones,  if 
any  fuch  had  been  fpecially  referved.  In  cafe  of  failure,  he  had,  in  thofe 
antient  times,  a  right  of  entry  for  the  tenant's  forfeiture.  For  while  this 
military  fyftem  continued  in  its  full  vigour,  the  fmalleft  breach  the  vaflal 
committed  in  his  engagements  was  an  abfolute  forfeiture ;  but  in  after  times, . 
when  the  lands  were  often  given  upon  other  confiderations  than  military 
fervice  ;  and  when  the  military  was  often  commuted  for  pecuniary  confi- 
derations, a  milder  way  was  found  out,  that  is,  by  dijlrefs^  by  which  the 
lord,  inflead  of  feizing  the  lands,  took  pofleflion  of  all  the  goods  and  chat- 
tels of  his  tenants  found  upon  the  lands,  (for  the  lands  were  ftill  the  mark 
where  he  was  to  take),  and  kept  them  as  a  depofit,  till  his  tenant  had  made 

I  fatisfaction, 

f  Fend.  lib.  2.  tit.  25. 


66  LECTURES    ON    THE  LECT.  6. 

fatisfa&ion,  originally  indeed  at  the  lord's  pleafure,  for  the  failure  in  his 
dutyf. 

THE  right  the  tenant  had  in  the  land  was,  that,  paying  the  fervices  due, 
"he  mould  receive  the  produce  thereof,  and  turn  it  to  his  own  beft  advan- 
tage ;  and  that  he  might,  if  attacked  in  a  court  of  juftice,  vouch,  or  call  in 
his  lord  to  defend  his  poffeffion  by  arms,  or  otherwife.  But  as  his  tenure 
was  precarious,  and  only  for  life,  he  was  prohibited  from  doing  any  thing 
that  mould  either  hurt  his  lord's  intereft,  or  that  of  the  king,  in  whom  and 
his  fucceffors  the  inheritance  was  vefled.  Thus,  he  could  nojt  commit 
wafte,  by  deftroying  houfes,  or  cutting  down  trees,  except  what  was  necef- 
fary  for  immediate  ufe,  for  repairs,  firing,  or  tillage.  He  could  not  be- 
queath his  tenancy,  for  he  held  only  during  life.  He  could  not  alienate  with- 
out the  confent  of  his  lord,  for  he  had  his  lands  in  confideration  of  his  per- 
fonal  fervice ;  and  although,  in  cafe  of  neceffity,  he  was  allowed  a  fubfti- 
tute,  it  was  only  fuch  an  one  as  was  acceptable  to  the  lord ;  whereas  by 
alienation,  the  real  tenant  who  was  bound  by  oath  to  do  the  fervices  out  of 
the  profits,  was  to  lofe  them,  and  a  flranger,  perhaps  an  enemy,  who  wa$ 
under  no  tie  to  the  lord,  was  to  enjoy  them.  Alienation,  therefore,  with- 
out the  confent  of  the  lord,  was  unlawful.  If  he  confented  indeed,  and 
accepted  the  allienee,  he,  upon  his  taking  the  oath  of  fealty,  became  the 
real  tenant,  and  the  former  was  quit  of  all  pofitive  fervice,  except  honour 
and  reverence  ;  but  ftill  bound  by  his  former  oath  from  doing  or  fuffering 
any  tiling  to  the  prejudice  of  his  former  lord.  Neither  could  a  fub-vaffal,  in 
thofe  early  times,  create  a  vafialage  to  be  held  of  himfelf.  The  immediate 
vafial  of  the  king,  indeed,  could,  but  then  it  was  on  thefe  terms;  firft,  that 
the  perfon  he  granted  it  to  was  one  that  was  of  the  ligeance  of  the  king,  ei- 
ther natural  or  adopted  j  next,  that  he  was  as  capable  of  rendering  the  fer- 
vices as  the  grantor ;  and  laftly,  that  the  fervices  referved  mould,  if  not 
better,  which  was  expected,  be  at  lean:  equally  beneficial  to  the  fupreme 
lord  as  thofe  of  the  original  grant  to  the  intermediate  or  mefne  lord.  To  ex- 
plain this,  if  the  king  granted  ten  thoufand  acres  to  his  immediate  vaflal,  for 
the  fervice  of  ten  knights,  the  vaflal  might  give  one  thoufand,  indeed,  or 

any 

f  Bra&on,  lib.  3.  p.  1 30.  Spelm.  voc,  Efcheata.  Glanville>  lib.  7.  cap.  1 7.  Dal- 
rymple  on  feud,  property,  p.  62.  Ed.  1757.  Hengham  Parva,  chap.  6.  Coke  on  Lit- 
tleton, b.  I.  chap.  T. 


LECT.  6. 


LAWS    or    ENGLAND. 


any  letter  number  of  acres  to  one  perfon,  for  the  fcrvicc  of  one  knight ;  but 
if  he  gave  more  to  one,  as  he  had  attempted  to  hurt  and  leflen  the  benefit 
his  fuperior  had  ftipulated  for,  his  grant  was  void,  and  in  thofe  times,  when 
forfeitures  were  regularly  exacted,  the  grant  of  the  king  to  him  was  for- 
feited alfof. 

IN  my  next  lefture  I  (hall  fay  fomething  of  improper  feuds,  as  they  began 
to  be  introduced  about  the  time  I  am  now  upon,  and  were  very  fcldom,  in 
thofc  ages,  granted  for  longer  terms  than  for  years  or  lives,  and  go  on  to 
(hew  by  what  means,  by  what  ftcps  and  degrees,  eftates  for  life  grew  up 
into  inheritances. 

f  Craig,  dc  feud.  lib.  2.  dieg.  207. 


LECTURE 


6S  L  E  C  T  U  RE  S    ON    THE  LECT.  7. 


LECTURE       VII. 

Improper  feuds  or  benefices — Grants  to  the  ChurcJj — Grants  in  which  the  oath 
of  fealty  was  remitted — Grants  to  which  a  condition  was  annexed^  that  enlar- 
ged or  diminifhed  the  ejiate — Grants  which  referred  certain  other fervices,  be- 
fide  military  feri)ice — Grants  implying  fame  certain  fervice,  as  rent,  and  not 
referring  military  fervice — Grants  referring  nofcrvices,  but  general  fealty — 
Grand  ferjeanty — Petty  ferjeanty— Grants  to  women — Grants  of  things  not 
corporeal — Feiidum  de  Catena — Feudum  de  Camera. 

HAVING,  in  the  preceeding  le&ure,  laid  down  the  manner  of  conftitu- 
ting  a  proper  beneficiary  eftate  for  life,  which  confifted  in  lands  grant- 
ed for  the  defence  of  the  ftate,  upon  the  confideration  of  perfonal  military 
fervice,  and  the  rights  and  obligations  annexed  thereto  ;  it  will  be  proper  to 
mention  fuch,  (and  to  point  out  -the  fevexal  kinds  of  them)  as  are  called  im- 
proper benefices,  which  are  thofe  that,  in  one  or  more  particulars,  recede 
from  the  drift,  and,  in  antient  times,  the  ufual  nature  of  thofe  grants ;  and 
this  is  more  efpecially  necefTary,  as,  fince  the  abolifhing  the  military  tenures 
in  Charles  the  Second's  time,  all  our  prefent  eftates  come  under  one  or  o- 
ther  of  thefe  heads.  It  was  a  maxim  in  the  feudal  law,  that  conventio  modum 
dat  donation! ;  and  therefore,  whatever  terms  the  donor  prefcribed,  though 
varying  from  the  general  courfe,  was  the  rule  by  which  the  grant  was  to  be 
regulated. 

IN  the  firft  place,  then,  all  benefices  granted  to  the  church  were  improper 
ones,  becaufe  given  on  other  terms  than  that  of  military  fervice,  and  be- 
caufe  they  ended  not  with  the  death  of  the  grantor  or  grantee,  but  continued 
coeval  with  the  life  of  the  church,  that  is,  for  everf. 

SECONDLY,  Grants  of  lands,  wherein  the  oath  of  fealty  was  remitted;  for 
although  fealty  itfelf  was  an  incident,  eflential  to,  and  infeparable  from, 
every  eftate  of  life  abroad,  and  every  eftate  of  years  alfo  in  England,  the 
ceremony  of  actually  taking  the  oath  might  be  omitted  j  and  if  the  lord  had 

put 

f  Craig,  de  feud.  lib.  I.  dieg.  n,  and  12. 


LECT.  7.  L  A  W  S    OF    E  N  G  L  A  N  D.  69 

put  the  tenant  in  pofleflion,  without  his  having  taken  the  oath,  the  tenant 
might  enjoy  without  it.     He  was  obliged,  indeed,  to  take  it  whenever 
lord  called  upon  him,  on  pain  of  forfeiture;    iinleis,  in  the  inveftiture,  it 
had  been  exprefsly  remitted;  in  which  cafe,  he  might  refufe  to  take  it,  and 
juilify  his  refufal  by  the  tenor  of  his  inveflituref. 

THIRDLY,  All  grants  to  which  there  was  a  condition  annexed,  that  either 
enlarged  or  diminifhed  the  eflate  ;  as  if  lands  were  granted  to  two,  and  the 
forvivor  of  them.  This  was  an  improper  benefice,  as  it  had  continuance 
for  more  than  one  life  ;  or  if  they  were  granted  to  a  man  for  life,  provided 
he  did,  or  refrained  from  doing  fuch  an  aft.  This  was  improper  alfo,  be- 
cs.ufe  it  might  have  a  more  fpeedy  determination. 

FOURTHLY,  All  grants,  in  which  certain  fervices  befide  military  were  rc- 
ierved,  were  alfo  of  this  nature,  as  if  the  tenure  was  by  military  fervice  and 
a  certain  rent,  or  any  other  certain  duty,  or  by  military  fervice  reduced  to 
a  certainty,  as  to  attend,  fuppofe  forty  days  and  no  more,  or  by  military  fer- 
vice with  a  power  in  the  tenant  to  excufe  himfelf,  by  paying  a  certain  fum. 
For  the  proper  fief  was  for  military  fervice  only,  the  occafions  and  duration 
of  which  were  uncertain  J. 

FIFTHLY,  If  military  fervice  was  not  referved  at  all,  but  fome  other  cer- 
tain fervice  inftead  thereof,  as  rent,  the  grant  was  an  improper  one,  and 
fuch  are  our  tenures,  fmce  they  have  been  reduced  to  focage,  which  is  deri- 
ved fromfoke-orfoka,  a  plough,  becaufe  their  duty  was  originally  to  attend 
a  certain  number  of  days  to  plow  their  lord's  grounds,  or  elfe  to  fupply 
him  with  a  certain  quantity  of  corn  in  lieu  thereof.  This  manner  of  paying 
in  kind,  namely,  by  corn,  cattle  or  other  necefiaries,  was  continued  every 
where  many  ages  ;  in  England,  until  the  time  of  Henry  the  firfl,  when 
they  began  to  be  commuted  into  money,  to  the  great  advantage  of  the  fuc- 
ceflbrs  of  thefe  focage  tenants,  whofe  eftates  were  before  become  heredi- 
tary. For  the  computation  being  made  at  the  rate  and  proportion  of  va- 
lue between  money  and  the  neceflaries  of  life  at  that  time,  as  money  grew 
more  plentiful  every  day,  its  value  continually  funk,  and  the  price  of  commo- 
dities accordingly  increafed  ;  in  fo  much  that  the  prefent  fuccefibr  of  a  te- 
nant 

t  Ibid.  J  ibid. 


70  LECTURES     ON     THE  LECT.  7. 

nant  at  that  time,  who  had  before  paid  a  fat  ox,  which  was  changed  into 
twenty  (hillings,  its  then  value,  would  now  pay  but  the  eight  part  of  the  ori- 
ginal refervation,  when  the  price  of  an  ox  is  eight  pounds.  And  this  con- 
tributed not  a  little  to  the  happy  equality  which  now  reigns  among  all  ranks, 
as  thefe  bafer,  the  focage  tenures,  were  continually  rifmg  in  value,  and  con- 
fequently  in  confideration,  and  coming  every  day  nearer  to  an  equality,  in 
the  eftimation  of  the  world,  with  the  nobler,  the  military  benefices  f. 

SIXTHLY,  If  no  fervices  at  all  were  referved,  except  genera!  fealty,  which 
could  not  be  remitted ;  for  it  was  thought  reafonable,  not  only  to  grant 
lands  in  confideration  of  future  military  fervice,  but  alfo  to  reward  fuch  as 
had  deferved  eminently,  and  were  perhaps  maimed  or  mutilated,  and  fo  un- 
fit for  future  fervice,  with  lands  free  from  fuch,  or  any  other  duty. 

SEVENTHLY,  Grand  ferjeanty  is  a  benefice  of  an  improper  nature,  even 
though  it  be  reckoned  a  military  one,  becaufe  it  is  reduced  to  a  certainty. 
Grand  ferjeanty  is  a  certain  fervice  done  by  the  body  of  a  man  to  the  perfon 
of  the  king,  and  is  of  two  kinds  ;  military,  which  is  to  be  done  either  in  or 
out  of  the  realm ;  and  not  military,  which  is  to  be  done  within  the  realm. 
Military,  as  when  lands  are  given  on  condition  of  carrying  the  banner  of  the 
king,  or  his  lance,  or  to  lead  his  army,  that  is,  to  be  his  conftable  ;  or  to 
number  and  array  his  army,  that  is,  to  be  his  marfhal ;  but  thefe  being  cer- 
tain fervices,  and  due  to  the  perfon  of  the  king,  they  were  not  obliged  to 
attend,  but  where  he  went  in  perfon  ;  and  this  right  they  infifted  on  fo 
flrongly,  as  had  almoft  occafioned  a  rebellion  in  the  time  of  Edward  the 
Firft ;  who,  although  in  moft  things  an  excellent  prince,  was  of  an  hot  and 
haughty  temper  {. 

HAVING  determined  to  attack  France  on  two  fides ;  in  Flanders,  where 
he  intended  to  command  himfelf,  and  in  Guienne ;  he  ordered  the  Earl  of 
Hereford,  high  conftable  by  tenure,  and  the  Earl  of  Norfolk,  marfhal  by  te- 
nure, to  lead  the  army  in  Guienne,  as  his  generals  and  commanders  in  chief. 
But,  however  honourable  and  pleafmg  in  other  refpects  the  offer  might  be, 

they 

•\  Reliq.   Spelm.   p.  3,  7,  33,  43.     Gervaf.  de  Tilb.    Dialog,  de  Scaccar.   lib.  i. 
cap.  7.     Madox,  Autiq.  Excheq.    vol.  I.   p.  272. 

:t  Fortefcue  de  Laud.  leg.  Angl.  p.  99.  Ed.  1737.       Coke  on  Littleton,  b.  2.  chap.  7. 


I.KCT.  7.  LAWS    OF    ENGLAND. 

they  feared  that  fuch  a  precedent,  quietly  complied  with,  might  be,  in  ai 
times,  a  means  of  introducing  new  and  hard  fen-ices  at  the  king's  pica) 
inilead  of  the  amicnt  and  known  ones.  They,  therefore,  flatly  rcfufeJ,  un- 
lefs  he  went  thither  himfclf ;  offering,  at  the  lame  time,  to  ferve  under  him 
in  Flanders.  The  king,  boiling  with  rdentmem  againfl  France,  and  pro- 
voked at  this  contradiction  to  his  pleafure,  however  juftly  founded,  tL 
tcncd  Norfolk,  in  a  tranfport  of  patfion,  with  hanging  ;  to  which  the  othei 
\\ plied,  with  equal  fiercenefs,  and  total  xvant  of  refpect.  The  tv.o  Karls  re- 
tired to  their  eftates,  put  themfelves  in  a  (late  of  defence,  and  even  commit- 
ted fevcral  outrages  againfl  the  king's  collectors ;  arid  their  caufc  was  gene- 
rally efpoufed  by  the  nation,  who  were  againfl:  the  king's  exacting  any  new 
and  unheard-of  fcrvices.  The  behaviour  of  thefe  lords  to  their  fovereign, 
and  to  fuch  a  fovereign,  in  letting  him  at  defiance,  and  that  with  terms  of 
difdain,  when  they  themfelves  were  the  aggreflbrs,  was  utterly  unjuftifiable  ; 
but,  from  their  caufe,  notwithftanding  this  behaviour  of  theirs,  being  uni- 
verfally  efpoufed  by  the  nation,  we  may  clearly  fee  the  opinion  and  judg- 
ment of  thofe  times  ;  that  their  kings  were  not  unlimited,  and  that  they  had 
no  right  to  exact  from  their  vaffals  any  fervices  but  thofe  that  flowed  from 
their  tenures.  The  king,  indeed,  at  firft  gave  their  lands  and  offices  to 
others ;  but  when  he  had  cooled,  and  found  they  had  infifled  on  no  more 
than  was  their  right,  he,  in  the  frankefl  manner,  repaired  his  error.  He 
gave  in  parliament  a  new  confirmation  of  Magna  Charta.  By  another  fla- 
tute,  he  renounced  all  right  of  taking  talliages,  that  is,  levying  taxes,  even 
on  his  own  demefnes,  without  confent  of  parliament,  as  contrary  to  that  char- 
ter; and  in  the  body  of  this  lafl  act,  in  the  ampleft  manner,  remitted  all  dif- 
guft  and  refentment  againfl  the  two  earls  and  their  afTociates  j  and  gave 
them  the  fullefl  indemnity  for  the  offences  they  had  fo  outrageoufly  com- 
mitted. Such  conduct  in  any  king,  whofe  fubjects  were  not  difpofed  to  e- 
fleem  him,  might  have  been  as  a  fign  of  weaknefs,  and  have  been  attended 
with  difmal  confequences ;  but  in  Edward's  realms  there  was  not  a  man  that 
did  not  admire  his  wifdom,  adore  him  for  his  valour,  his  honour,  and  his 
fincerity.  He  could  encroach  without  incurring  hatred,  and  he  could  re- 
tract without  being  thought  mean  j  fo  that  it  may  be  a  quellion,  whether,  by 
the  noble  manner  of  his  repairing  his  miflake,  he  did  not  tie  his  fubjects  to 
him  with  flronger  bonds  of  affection,  than  if  he  had  never  committed  itf. 

THE 

f  Carte,  hift.  of  England,  vol.  2.  p.  169.     The  reign  of  Edward  I.  in  Rennet's  col- 
left,  of  Englilh  hiftorians,  p.  197. 


72  LECTURES     ON     THE  LECT.  7. 

THE  grand  ferjeanties  that  are  not  military  are  of  various  kinds,  being 
offices  and  fervices  done  to  the  perfon  of  the  king  within  the  realm,  in  order 
to  the  fupport  of  his  ftate  and  dignity  ;  for  which  reafon,  although  they  are 
not,  properly  fpeaking,  military  fervices,  yet  they  are  looked  upon  in  that 
light,  and  are  endowed  with  the  fame  privileges,  and  fubjecl  to  the  fame 
regulations,  except  in  a  few  inilances,  to  be  hereafter  mentioned  ;  fo  that 
no  perfon  under  the  rank  of  the  leffer  nobility,  that  is,  of  knighthood,  was 
capable  of  performing  them  ;  and  therefore,  when,  by  allowing  the  aliena- 
tion of  lands,  thefe  tenures  fell  into  the  hands  of  perfons  of  inferior  quality, 
they  were  either  knighted,  or  appointed  a  deputy  of  that  rank.     Thus, 
at  the  coronation  of  Richard  the  Second,  as  we  find  in  Lord  Coke,  William 
Furnivall  claimed  to  find  a  globe  for  the  right  hand  of  the  king,  and  to 
fupport  his  hand  on  the  day  of  his  coronation,  in  virtue  of  the  manor  of 
Farnham,  which  he  held  by  that  grand  ferjeanty ;  but,  though  defcended 
of  a  noble  family,  he  was  not  permitted  to  perform  it  in  perfon,  until  he 
had  been  dubbed  a  knight.     At  the  fame  coronation,  John  Wiltfhire,  citi- 
zen of  London,  claimed  to  hold  a  towel  while  the  king  warned  before  din- 
ner, which  claim  being  allowed,  as  he  was  of  too  low  rank  to  perform  the 
fervice  in  perfon,  he  made  Edmund  Earl  of  Cambrige  his  deputy.     Wo- 
men likewife  and  minors  were  obliged  to  ferve  by  deputy ;   as  did,  at  that 
time,  Anne  Countefs-dowager  of  Pembroke,  by  Sir  John  Blount,  and  her 
fon  John  Earl  of  Pembroke,  a  minor,  by  Edmund  Earl  of  March  f. 

THESE  grand  ferjeanties,  which  were  mofl  of  them  lands  granted  for 
the  doing'  certain  duties  at  the  folemnity  of  the  coronation,  contributing 
to  the  fplendour  and  dignity  of  the  crown,  have  been  flill  retained,  though 
all  other  military  tenures  have  been  changed  into  free  and  common  focage. 
However,  all  thefe  grand  ferjeanties  were  not  for  the  bare  purpofe  of  at- 
tending at  coronations.  The  lord  high  ftewardfhip  or  fenefchalfhip  of  Eng- 
land, of  which  the  duty  is  to  prefide  at  the  trials  of  peers,  was  annexed  to 
the  barony  of  Hinckly,  which,  palling  into  the  family  of  Leicefter,  and  then 
into  that  of  Lancafler,  in  the  perfon  of  Henry  the  Fourth  was  united  to 
the  crown  ;  but  ever  fince  that  time,  as  the  powers  and  privileges  the  law 
threw  into  his  hands  were  looked  upon  as  too  extenfive,  and  dangerous,  if 
continued,  this  officer  hath  only  been  occafionally  created,  as  for  a  corona- 
tion, 

f  Coke  on  Littleton,  lib.  2.  chap.  8.     Madox,  Antiq.  Excheq.  vol.  I.  p.  321,  326. 


LKCT.  7.  L  A  W  S     OP     E  N  G  L  A  N  D.  73 

tion,  or  the  trial  of  a  peer,  uhich  ended,  he  breaks  his  ftaff,  and  the  office 
is  vacant f.  The-  lame  is  the  cafe,  ami  lor  the  lame  reufon,  of  the  office  of 
hi. ;h-conll;ible,  ever  lince  the  attainder,  in  Henry  the  Kighth's  time,  ot 
ward  Duke  of  Buckingham,  who  enjoyed  it  as  Lurl  ofllereford.  'J'hus  did 
the  crown  get  rid  of  two  confiderable  checks,  which  concurring  with  other 
more  extenfive  and  influencing  caufcs,  helped  to  raife  the  power  of  the  houfe 
of  Tudor  above  what  the  princes  of  the  line  of  Plantagenct  had  enjoyed  J. 
The  office  of  earl  marfhal,  indeed  ftill  continues  in  the  noble  family  of  Nor- 
folk.  For,  notwithstanding  the  attainders  of  that  family,  when  they  were 
reftored,  it  alfo  was  reflored  to  them.  The  reafon  is,  becaufe  this  office 
is  of  little  power ;  indeed,  in  the  vacancy  of  the  conftable  to  whom  he  is 
properly  an  affiflant,  fcarce  of  any  at  all.  It  being,  therefore,  an  honour- 
able dignity,  and  attended  with  no  danger,  it  is  no  wonder  it  hath  rcn, 
ed  ||.  In  this  kingdom  one  grand  ferjeanty  remained  till  the  year  1715,  in 
the  family  of  Ormond,  that  of  butlerage  ;  but  it  differed  from  thofe  before- 
mentioned  in  this,  that  it  was  not  a  fervice  arifmg  from  a  grant  of  lands, 
but  of  the  prifage  of  wines,  an  antient  profit  of  the  crown,  due  by  prero- 
gative, namely,  a  right  to  take  two  tons  of  wine,  one  before  the  mart,  and 
the  other  behind,  out  of  every  fhip  containing  twenty  tons  or  more,  until 
Charles  the  Second  purchafed  it  from  the  Duke  of  Ormond  by  a  perpetual 
penfion  of  four  thoufand  pounds  a  year  f . 

EIGHTHLY,  Petty  ferjeanty  was  another  fpecies  of  improper  benefices, 
and,  in  our  law,  was  comprifed  under  the  general  head  of  focage,  becaufe 
the  fervice  was  certain.  It  is,  as  Littleton  {  defines  it,  where  a  man  holds 
his  land  of  our  fovereign  lord  the  king,  to  yield  to  him  yearly  a  bow  or  a 
fword,  or  a  dagger,  or  a  knife,  or  a  lance,  or  a  pair  of  gloves  of  mail,  or 
a  pair  of  gilt  fpurs,  or  an  arrow,  or  divers  arrows  j  or  to  yield  fuch  other 
fmall  things  belonging  to  war ;  fo  this,  as  well  as  grand  ferjeanty,  was  a 

K  tenure 

f  Madox,  hift.  of  Excheq.  vol.  i.  p.  51. 

J  Ib.  p.  40.  41. 

II  Ib.  p.  43. 

f  It  may  not  be  improperly  remarked  in  this  place,  that  about  the  i8th  year  of  Hen- 
ry II.  Geoffrey  Martell  held  in  England  the  office  or  ferjeanty  of  Pinceniaiia,  or  But- 
lerfhip.  See  Madox,  hift.  Excheq.  vol.  r.  p.  50. 

t  Lib.  2.  cap.  9. 


74  LECTURES     ON     THE  LECT.  7. 

tenure  of  the  king's  perfon,  and  could  not  be  held  of  a  fubjeft.  Sueh  is 
the  grant  the  Lord  Baltimore  hath  in  his  province  of  Maryland ;  for  he 
yields  every  Chriftmas  five  Indian  arrows,  befides  a  fifth  of  all  gold  and  fil- 
ver  found  within  this  province. 

NINTHLY,  All  grants  to  women  were  of  the  nature  of  improper  ones,  be- 
caufe  they  muft  always  ferve  by  deputy  ;  and  perfonal  fervice  is  eflential  to 
the  proper  military  tenures  f .  But  thefe  were  not  introduced  fo  early. 

THE  tenth  kind,  and  the  laft  that  I  fhall  mention,  of  improper  benefices, 
are  thofe  that  are  of  things  not  corporeal,  and  of  which,  confequently,  there 
cannot  be  a  pofleflion  manually  delivered  over,  that  is,  they  do  not  admit  of 
livery  and  feizin,  and  therefore  can  be  only  conveyed  by  the  improper  in- 
veftiture,  that  is,  by  words  or  writing,  accompanied  by  a  fymbol.  Such  are 
rights  in,  or  profits  iffuing  out  of  land,  where  another  hath  the  pofleffion  of 
it.  As  the  feudal  law  diftinguifhes  between  corporeal  things,  whofe  pof- 
feffion  can  be  actually  transferred,  and  incorporeal,  which  cannot ;  fo  doth 
our  law  make  what  is  the  fame  diftin&ion  between  things  that  lie  in  livery, 
and  things  that  lie  in  grant.  In  the  firft,  it  regularly  requires  an  actual  li- 
very and  feizin,  and  here  a  deed  is  not  abfolutely  neceflary ;  but  the  fe- 
cond  pafs  by  the  delivery  of  the  deed.  Here  therefore  a  deed  is  abfolutely 
neceflary ;  for  although  the  feudal  law  admits  the  ufe  of  other  fymbols  in 
this  cafe,  ours,  for  the  greater  certainty,  precifely  requires  this  peculiar  one, 
that  there  may  be  full  evidence  of  what  was  conveyed.  Of  this  laft  tenth 
kind  as  there  are  many  and  various  fpecies,  I  {hall  run  over  fome  of  them 
in  a  curfory  manner,  to  explain  and  mew  their  general  nature. 

THE  firft  I  fhall  take  notice  of  is,  that  which,  I  prefume,  was  the  moft 
antient,  as  it  feems  to  have  come  in  the  place  of  thofe  repafts  the  king  gave 
to  his  comites,  or  companions,  and  is  what  is  called  feudum  de  catena.  Ca- 
tena fignified  the  repofitory,  or  repofitories  of  the  neceflaries  of  life,  while 
in  thofe  ancient  times  the  fervices  due  from  the  dememes,  or  the  focage 
lands,  to  the  king  or  lords,  were  paid  in  kind.  Things  therefore  neceflary, 
or  ufeful  for  the  iupport  of  life,  diftributed  in  fpecie,  out  of  the  king's  or 
lord's  cellar  or  pantry,  or  both,  were  what  thefeudum  cavern  confifted  in  ; 

and 

t  Feud.  lib.  I.  tit.  8. 


7.  F.  A  OF        N  G  L  A  N  D.  75 

and  that  this  came  in  place  of  the  antient  conflant  entertainment*,  and 
feat'ls,  of  the  coinitcs,  or  companions,  appears  from  this,  that  it  was  a  rule, 
even  after  other  grants  were  allowed  to  be  hereditary,  that  thefe  determi- 
ned with  the  life  of  the  grantor,  or  grantee,  which  ever  firfl  happened  to  ex- 
pire fe  grants  likewife  were  of  two  kinds ;  fome  granted  in  confider- 
ation  of  future  fervices,  upon  the  failure  of  which  a  forfeiture  was  incurred, 
oilier*,  in  reward  for  pail  fervices,  where  nothing  was  expected  for  the 
future  but  general  fealty.  This  difference  runs  through  many  other  of 
thefe  gifts  that  lie  in  grant.  For  the  feudal  law  diflinguifhes  them  into 
qfficiofa,  that  is,  to  which  a  pofitive  duty  is  annexed,  and  inofficiofa,  where 
no  fubfequent  fervice  is  required,  but  general  fidelity,  which  is  incident  to 
;  every  tenure  f. 

THE  fecond  I  mall  mention  i&feuditm  de  camera,  which,  I  apprehend,  was 
originally  a  fubflitution  for  what  I  have  juft  mentioned,  the  fcudum  de  ca- 
vena;  for  it  was  inflead  of  an  allowance  of  neceffaries  out  of  the  cellar  or 
pantry  of  the  king,  an  annual  allocation  of  a  fum  of  money  for  will,  life, 
or  years,  according  as  it  was  granted  out  of  the  camera,  or  chamber  where 
the  king  or  lord  kept  his  money ;  and  this  was,  as  the  other  I  before  men- 
tioned into  whofe  room  it  came,  either  a  reward  for  pad  fervices,  in  which 
cafe  no  future  duty  was  required,  or  on  confideration  of  future  ones.  The 
penfions  granted  by  the  king  in  our  kingdom  (Ireland)  out  of  his  revenue, 
are  of  the  nature  of  the  former  ;  and  the  falaries  to  judges  and  other  officers 
are  of  the  nature  of  the  latter.  What  was  common  to  both  of  thefe,  the 
feudum  de  camera  &  de  cavern,  was,  that,  by  the  feudal  law,  they  were  not 
due  at  the  ftated  time,  unlefs  there  were  provifions  in  the  cavena,  or  money 
in  the  camera,  and  that  free  from  debts  ;  for  the  lord's  fafety  and  dignity 
was  to  be  firfl  confidered  ;  but  they  were  to  wait  for  their  arrear,  till  provi- 
fions or  money  came  in. 

ANOTHER  thing  is  to  be  obferved,  that,  although,  at  the  introduction  of 
thefe  tenures,  all  others  were  for  the  life  of  the  grantor  and  grantee  at  mofl, 
yet  when  the  others  became  perpetual,  thefe  continued  long  after  to  be  only 
for  the  joint  lives  of  the  grantor  and  grantee,  namely,  as  long  as  kings  and 

K  2  great 

t  Bruflel,  ufage  des  Fiefs,  torn.  I.  p.  41.     Du  Cange,  voc.  Cavcna  and  Canava. 


76  LECTURES     ON     THE  LECT.  7. 

great  lords  were  confidered  as  tenants  for  life,  and  incapable  of  alienating 
their  demefnes,  or  laying  any  permanent  charge  upon  them.  But  when,  by 
the  frequency  of  the  example  of  alienations,  and  by  the  occafional  indigence 
of  the  kings  and  other  lords,  and  the  defire  defigning  perfons  had  to  take 
advantage  of  it,  alienations  of  the  demefnes  were  once  introduced,  to  the 
prejudice  of  the  fucceflbr,  thefe  grants,  as  was  very  natural,  as  they  were 
lefs  hurtful  than  an  abfolute  alienation,  were  continued  for  the  life  of  the 
grantee,  though  the  grantor  had  died  beforef. 

t  Spelman,  and  Du  Cange,  voc.  Camera,  et  voc.  Feudum.  Craig,  de  Feud.  lib.  I. 
Diegef.  10. 


LECTURE 


LECT.  8.          L  A  W  S    OF    E  N  G  L  A  N  D.  77 


LECTURE         VIII. 

Feudum  So/data  —  Feudum  babitationis  —  Feudum  Guardia  —  Feudum  Gajlaldia: 
Feudum  mercedis  —  Incorporeal  benefices  in  England  —  Adwwforu  —  Prefenta- 
tive  advowfons  —  Collates  advowfons  —  Donatives. 

|"N  the  preceding  lecture  I  began  to  treat  of  the  feveral  kinds  of  improper 
•»•  benefices,  which  are  transferable  only  by  the  improper  inveftiture,  or, 
as  the  Englifh  law  fays,  lie  in  grant  ;  intending  only  to  illuflrate  their  gene- 
ral nature,  without  defcending  minutely  into  particulars  ;  and  of  thefe  I  have 
already  mentioned  the  feudum  de  camera,  and  that  de  cavena.  I  call  thefe 
fiefs,  even  at  the  time  I  am  now  treating  of,  in  conformity  with  the  practice 
of  the  feudal  writers  :  not  with  ftrict  propriety,  indeed  ;  for  feudum,  proper- 
ly fpeaking,  fignifies  a  tenure  of  inheritance,  and  fuch  were  not  yet  introdu- 
ced. But  before  I  quit  them,  it  will  be  proper  to  take  notice  of  fome  fub- 
divifions  of  them,  to  be  met  with  in  the  feudal  writers. 

I  HAVE  already  obferved  they  were  either  gratuitous  or  officious,  that  is, 
without  future  fervice,  or  with  it.  Of  the  fir  ft  kind  there  were  two  fpecies, 
that  called  feudttmfo/data,  from  the  word  folidus,  which  fignified  a  piece  of 
money,  and  was  a  gratuitous  penfion,  granted  either  out  of  the  charity  or 
bounty  of  the  lord,  or  in  reward  of  part  fervices  ;  the  other  called  feiidum 
habitations  /  which  is  liberty  of  dwelling  in  an  houfe  belonging  to  the  lord, 
in  whom  the  property  ftill  doth,  and  the  pofieflion  is  ftill  fuppofed  to  re- 
main f.  Of  the  officious  ones  Corvinus  mentions  three  kinds,  feudum  guar- 

,  feudum  gaftaldia,  and  feudum  mercedis. 


THE  feudum  guardia  hath  annexed  to  it  the  defence  of  a  caftle,  for  the 
fecurity  of  the  realm  ;  and  this  differs  from  the  caftle  guard  I  have  before 
mentioned,  in  as  much  as  that,  where  lands  were  given  for  the  defence  of 
the  caftle,  it  was  a  corporeal  benefice,  and  transferred  by  livery  and  feizin  ; 
namely,  by  admitting  the  conftable  into  the  caftle,  and  delivering  him  the 

key 

f  Du  Cange,  voc.  Soldata,  et  voc,  Feudum.  zcliikii. 


78  L  E  C  T  U  R  E  S    ON     TKE  LECT.  8, 

key  thereof,  and  was  an  improper  one  only  in  refpect  of  its  duration,  as,  in 
the  early  times,  it  continued  only  a  year ;  but  this  I  am  now  fpeaking  of  was 
a  penfion,  paid  out  of  the  king's  exchequer  for  the  fame  purpofe  ;  and  was 
of  the  fame  nature  with  the  modern  falaries  of  governors  of  garrifonsf. 

THE  feudum  gaftaldia  was  a  penfion  granted  to  a  perfon  for  tranfacting 
the  lord's  bufmefs,  as  for  being  his  treafurer,  fleward,  agent,  or  receiver. 
Thefeudum  mercedis  was  in  confideration  of  being  an  advocate  or  defender 
of  the  lord.  Such  are  grants  to  lawyers  pro  conjlllo  impendendo ;  and  the  fa- 
laries of  the  king's  lawyers,  and  the  follcitors  for  the  crown  {. 

I  SHALL  next  run  over  briefly  the  feveral  kinds  of  incorporeal  benefices 
which  the  law  of  England  takes  notice  of,  and  explain  their  general  nature. 
And  the  firft  I  mail  take  notice  of  is  an  advotufon,  which  is  a  right  a  mail 
hath  of  nominating  a  proper  perfon  to  fulfil  the  duties,  and  to  receive  the 
profits  of  an  ecclefiaftical  benefice.  Thefe  rights  arofe  thus.  In  the  in- 
fancy of  the  chriftian  church,  when  the  clergy  were  fupported  by  the  volun- 
tary contributions  of  the  people,  the  bifhop  was  chofen  by  the  clergy  and 
people  at  large ;  and  this  method  was  fo  firmly  eftabliihed,  that  when  the 
emperors  became  chriilians,  although  they  made  great  donations  of  lands  to 
the  church,  yet  they  left  the  manner  of  election  as  they  found  it ;  and  fo  it 
continued  in  Rome  until  the  year  1000  at  leaft.  But  thefe  elections,  made 
by  the  giddy  multitude,  were  the  occafions  of  infinite  diforders.  The  va- 
lue of  thefe  offices  being  encreafed,  and  the  manners  of  the  ecclefiaftics  cor- 
rupted by  the  acceffion  of  riches  ;  parties  and  factions  were  eternally  form- 
ing, and  fupported  by  all  methods  ;  and  when  a  vacancy  happened,  the  con- 
teft  was  frequently  not  decided  without  bloodfhed.  It  is  no  wonder  that  all 
the  fober  part  of  the  clergy,  who  were  fcandalized  at  thefe  irreligious  practi- 
ces, and  the  emperors,  who  were  concerned  in  the  peace  of  their  dominions, 
concurred  in  remedying  thefe  evils ;  which  was  at  length  effected  by  ex- 
cluding the  laity,  gradually,  and  by  infenfible  degrees,  and  confining  the 
election  to  the  ecclefiaflics.  Many  of  the  emperors,  indeed,  fbruggled  hard 
to  get  the  nomination  to  themfelves,  but  the  clergy  proving  too  powerful 
for  them,  they  obtained,  at  moft,  but  a  power  of  recommendation  jj. 

IN 

f  Coke  on  Littleton,  lib.  2.  chap.  4. 

£  Du  Cange,  voc.  Gaftaldus. 

}|  Gibfon,  Cod.  Jur.  Ecclef.  Anglican,  tit.  23. 


LT-.CT.  8.          LAW  SOP     ENGLAND.  79. 

IN  the  northern  kingdoms  the  fame  caufes  produced  the  fame  eflTeftg,  as 
to  the  exclufion  of  the  laity,  but  with  more  advantageous  circumftances  to 
the  rights  of  thefe  princes.  For  as  the  lands  they  gave  to  the  bifhops  in 
right  of  their  churches  were  held  of  them,  fo  they  gave  the  invefliturc ; 
and  there  was  a  kind  of  concurring  right  between  the  clergy,  who  elected, 
and  the  king.  He  infifled  on  his  right  of  giving  the  invefliture,  but  gene- 
rally received  their  nominee,  and  granted  it  to  him. 

BUT  after  the  time  of  Charles  Martel,  when  the  clergy  were  flripped  of 
moft  of  their  lands,  things  took  a  different  turn.  For  when  new  grants 
were  made  to  the  church  by  the  king,  he  infifted,  as  feudal  lord,  on  the  ab- 
folute  nomination,  and  the  giving  invefliture,  by  delivering  the  ftaff  or  cro- 
fier,  the  emblem  of  his  paftoral  care,  and  the  ring,  the  fymbol  of  his  .fpiri- 
tual  marriage  with  the  church  ;  but  thefe  rights  were  oppofed  by  the 
clergy,  who  were  ftrongly  fupported  by  the  popes  then  fetting  up  for 
being  the  feudal  lords  of  all  churchmen,  and  who  hoped  to  derive,  as  they 
did,  great  advantage  from  thefe  diflentions.  From  the  year  1000  to  1200, 
great  confufion  fubfifted  throughout  all  Europe,  occafioned  by  thefe  con- 
tefts,  until  the  popes  in  general  prevailed  ;  but  for  four  hundred  years  paft, 
and  particularly  fince  the  reformation,  their  power  hath  been  on  the  de- 
cline ;  and  from  this  laft  period  the  patronage  or  advowfon  of  bifhoprics 
hath  been  confefledly  in  our  king,  as  hath  been  the  cafe  in  feveral  other 
kingdoms  ;  and  though  in  England  a  form  of  election  is  ftill  retained,  it  is 
no  more  than  a  mere  form  f . 

THE  advowfon,  or  patronage  of  inferior  benefices,  came  in  another  way. 
In  order  to  underfland  this,  let  us  confider  how  diocefes  came  to  be  fub- 
divided  into  parifhes.  Antiently,  I  mean  about  the  year  420,  the  bifhop 
had  the  fole  cure  of  fouls  throughout  his  whole  diftrict,  and  received  all  the 
profits  of  it ;  which  he  and  the  clergy  diflributed  into  four  parts,  not  exact- 
ly equal  ones ;  but  unequal,  according  to  the  exigences  of  the  feveral  in- 
terefts  to  be  confidered  ;  one  to  the  bifhop,  to  maintain  hofpitality,  and  fup- 
port  the  clergy  refiding  with  him,  and  the  Chriflians  of  other  places,  who 

were 

f  Montefquieu,  I'Efnrit  de  Loix,  liv.  ?i.  chap.  1 1.  Bacon,  hift.  and  polit.  difc.  on  the 
laws  and  government  of  England,  ch.  59.  Inett's  hift.  of  the  Englilh  Church,  vol.  2. 
ch.  2. 


8o  LECTURES    ON     THE  LECT.  8. 

were  often  forced  to  fly  from  perfecution,  or  travelled  on  their  necefiary 
concerns ;  one  for  the  building  and  repair  of  churches ;  one  for  the  poor, 
and  one  to  fupport  the  inferior  clergy,  whom  the  bifhop  ufed  to  fend  to  par- 
ticular places,  as  his  deputies,  and  to  remove  or  recal  at  his  pleafure.  The 
clergy  who  lived  in  the  city  where  the  bifhop  refided,  were  fupported  by 
him  in  a  collegiate  way  at  firll ;  until  at  length  their  particular  {hares  were 
afcertained,  and  carved  out  of  the  general  revenue  of  the  church ;  and  this 
was  the  origin  of  chapters  |. 

To  return  to  the  country  clergy.  The  manner  in  which  they  came  to 
have  fettled  eflablifhments  was  thus  :  It  was  ufual,  as  foon  indeed  as  tithes 
were  eflabliilied  as  a  law,  that  is,  before  or  about  the  time  of  Charlemagne, 
for  the  bifhop  to  allocate  to  his  vicar  or  curate  in  any  diftri£t,  the  whole,  or 
a  part  of  the  tithes  or  other  profits  arifmg  there  ;  but  when  England, 
France,  and  other  countries  were  ravaged  by  the  Danes  and  Normans,  the 
fury  of  thefe  barbarous  heathens  fell  particularly  on  the  ecclefiaflics.  Their 
churches  they  burned,  and  themfelves  they  flaughtered  without  mercy;  in- 
fomuch  that,  when  their  devaftations  ceafed,  there  enfued  not  only  a  great 
fcarcity  of  clergymen,  but  fuch  a  want  of  means  of  proper  fupport  for  them 
(the  old  eflates  of  the  church  having  been  turned  into  military  fiefs)  that  the 
feudal  lords  were  willing,  for  the  fake  of  having  divine  fervice  performed 
in  their  diftri&s,  for  the  benefit  of  themfelves  and  their  vaflals,  to  alienate 
part  of  their  lands  to  the  church,  which  was  then  in  indigence,  for  the  pur- 
pofe  of  building  houfes  for  the  parfon,  and  providing  a  competent  glebe  for 
him,  and  alfo  for  building  new  churches  where  they  were  wanted.  Altho* 
alienation  was  at  this  time  entirely  difallowed  by  the  feudal  cuftoms,  yet  the 
neceffity  of  thofe  times  prevailed  againft  it  in  thofe  inftances,  efpecially  as 
thefe  fuperflitious  people  attacked,  or  ready  to  be  attacked  by  an  heathen 
enemy,  thought  the  lands  fo  given  to  be  really  given  for  military  fervice, 
as  they  were  given  for  the  fervice  of  God,  the  Lord  of  Hofls,  who  was  to 
fpeed  their  arms.  However,  the  circumflances  and  opinions  of  that  age 
would  not  allow  any  grant,  without  an  acknowledgment  of  the  fuperiority 
of  the  grantor  ;  nor  allow  any  lord  to. give  any  grant  materially  detrimental 
to  his  military  fief.  Hence,  as  an  acknowledgment  that  the  lands  fo  granted 
to  the  church  proceeded  from  the  bounty  of  the  Lord,  he  was  allowed  to 

nominate 

f  Gibfon,  Cod.  Jur.  Ecclef.  Anglican,  tit.  23. 


LECT.  8.          L  A  W  S     OP     E  N  G  L  A  N  D.  8r 

nominate  a  clergyman  to  the  bifliop  ;  \vlio,  if  he  was  qualified,  was  obliged 
to  admit  him.  But  ;is  the  patron  might  prcfent  an  improper  pcrfon,  and 
fuch  an  one  as  the  bifhop  mufl  be  obliged  in  conscience  to  reject ;  and 
might  do  this  repeatedly,  for  any  confiderable  length  of  time,  during  which 
the  duties  of  religion  would  be  neglected,  it  was,  in  after  times,  fettled,  in 
all  countries,  that  the  right  of  the  patron's  prefentation  mould  lafl  only  a 
limited  time.  In  our  countries  it  is  fix  months;  after  which  time  lapfed 
from  the  vacancy,  the  bifhop's  original  right  of  nomination  revives  f . 

BUT  the  cufloms  of  thofe  ages  not  admitting  of  the  alienation  of  any  part 
of  a  military  tenure,  but  what  was  abfolutely  neceflary,  it  followed  that  thefc 
glebes  were  far  from  being  fufficient  for  the  maintenance  of  a  parfon.  Thcfc 
grants,  therefore,  were  not  made  without  the  confent  of  the  bifhop,  to  allo- 
cate, in  aid  of  the  glebe,  the  tithes  of  that  precincT:,  to  the  ufe  of  the  parfon. 
And  now  the  parfon  began  to  have  a  permanent  intereft  for  life  in  his  parifli, 
and  a  permanent  cure  of  fouls  therein  ;  but  not  exclufive  of  the  cure  of 
fouls  in  the  bifhop,  who  was  concomitant  with  him  in  that  point,  though  not 
in  the  profits.  For  when  the  bifhop,  for  the  good  of  the  church,  appropri- 
ated a  part  of  the  revenues  of  the  church  to  a  particular  perfon  and  his 
fuccefibrs,  which,  for  the  public  good,  he  was  allowed  to  do,  he  could  not, 
however,  divert:  himfelf,  or  his  fucceflbr,  of  that  general  cure  of  fouls 
through  his  whole  diflric~t,  which  was  the  eflence  of  his  office.  As  the  par- 
fon, therefore,  though  named  by  a  layman,  was  his  deputy,  he  was  in  truth 
(to  fpeak  by  way  of  accommodation)  his  feudal  tenant.  From  him  he  re- 
ceived inftitution,  which  is  the  improper  inveftiture ;  to  him  he  gave  the 
oath  of  canonical  obedience,  which  is  equivalent  to  the  oath  of  fealty ;  and 
by  him,  or  perfons  appointed  by  him,  he  was  inducted  into  his  church,  that 
is,  had  livery  and  feizin  given  him  J. 

THIS  was  the  origin  and  nature  of  prefentative  advowfons,  in  which, 
though  a  matter  ecclefiaflical,  the  lay  patron  was  allowed  to  have  a  temporal 
and  a  valuable  intereft  :  inafmuch  as  it  might  ferve  for  a  provifion  of  one  of 
his  children,  or  any  other  relation  that  was  qualified  for  it ;  and  confequent- 
ly  be  an  cafe  to  him ;  and  as,  at  the  time  that  thefe  glebes  were  granted, 

L  mofl 

f  Ibid. 

$  Ibid,  and  tit.  30. 


82  LECTURES     ON     THE  LECT.  8. 

mod  fiefs  were  hereditary,  at  lead  none  were  fuffered  to  be  granted  but  by 
thofe  who  had  fuch  (becaufe  the  lord  fuperior  might  elfe  be  difmherited) 
this  right  of  advowfon prefentative  defcended  to  the  heir.  The  church  in  its 
diflrefs  exceedingly  encouraged  and  foftered  thefe  rights  for  a  time ;  but 
when  her  circumftances  changed,  and,  in  ages  when  profound  ignorance 
prevailed  both  among  the  clergy  and  laity,  many  were  the  attempts  to  de- 
prive the  laity  of  their  rights,  and  many  the  exclamations  againfl  the  impro- 
priety and  impiety  of  fuch  perfons  pretending  to  name  any  one  to  an  holy 
office.  But  I  do  not  find  they  ever  thought  of  refloring  to  the  laity  the 
glebes,  in  confideration  of  which,  for  the  necefiities  of  the  church,  thofe 
rights  were  firfl  allowed. 

THUS  much  for  prefentative  ad-vo*wfons>  which,  I  hope,  from  what  hath 
been  already  obferved,  will  be  fufficiently  underftood  for  the  prefent.  I  now 
muft  proceed  to  collatlve  advoivfons,  namely,  thofe  given  by  the  bifhop, 
which  were  of  two  kinds  ;  either  abfolutely  in  his  own  right,  or  by  lapfe, 
when  the  patron  neglected  to  prefent ;  which  was  in  truth  but  a  devolution 
of  the  antient  right  he  had  parted  with,  to  him  ;  and  therefore,  as  there  is 
no  fubflantial  difference,  they  may  well  be  treated  of  together.  As  the  bifhop 
in  the  cafe  of  lapfe,  collates,  that  is,  inftitutes  in  his  former  right  in  default 
of  the  perfon  who  had  the  right  of  prefentation,  Lobferved  before,  that  the 
bifhop  had  ufed  to  grant  to  the  country  clergy  a  part  or  the  whole  of  the 
tithes  of  the  precincts  they  ferved  in  ;  but  when  once,  by  the  allowance  of 
prefentative  advowfons,  parfons  had  got  freeholds  in  them,  the  example 
became  contagious,  and  much  to  the  benefit  of  the  church.  Thofe  parts  of 
the  diocefe  which  flill  remained  in  the  bifhop's  hands  were  divided  into 
parifhes ;  and  the  tithes  of  them,  or  at  leaft  a  confiderable  part  of  them, 
were  affigned  to  the  minifler  for  his  life.  I  need  obferve  no  farther  of  thefe, 
than  to  fay,  that  they  differed  no  otherways  in  their  nature  from  the  laft 
mentioned,  than  that,  as  a  patron  had  nothing  here  to  do,  there  was  no 
prefentation,  and  that  collation  is,  in  the  cafe  where  the  bifhop  hath  the  fole 
right,  what  is  called  inftitution  in  the  cafe  of  a  clerk  prefented. 

THE  third  and  lafl  kind  of  advowfons  are  thofe  called  donatives,  in  the 
giving  feizin  of  which  the  bifhop  hath  nothing  to  do,  fuch  livings  being  pri- 
vileged, and  exempt  from,  the  jurifdidion  of  the  bifhop,  and  viiitable  by  the 

patron 


LFCT.  8.  L  A  W  S     OF     E  N  G  L  A  N  D.  83 

patron  only.  II«w  thcfc  exemptions  arofc,  when,  at  firft,  every  place  was  a 
part  of  a  diocelc,  and  of  the  biihop's  cure  of  fouls,  it  will  be  worth  while  to 
inquire.  The  bilhops  of  Rome,  aided  by  their  great  riches,  and  the  fall  of 
the  weflcrn  empire,  did,  by  purfuing  a  fettled  plan  for  many  hundred  years, 
with  the  greateft  art  and  unihaken  perfeverance  (temporizing  indeed  when 
the  feafon  was  unfit,  but  never  giving  up  exprefsly  any  point  that  had  been 
claimed) at  length,  inflead  of  being  the  firft  bifhops  in  rank,  attained  to  a  ju- 
rifdi&ion  over  all  the  weft,  and  claimed  a  general  cure  of  fouls,  which  made 
the  bifhops,  indeed,  but  paftors  under  them'.  However,  confcious  of  their 
ufurpations,  in  order  to  eftablifh  them,  it  was  neceflary  to  deprefs  the  epifco- 
pal  order. 

THEY  began  firft  with  difmembering  bifhoprics,  in  order  to  found  new 
ones,  on  pretence  of  the  churches  being  better  ferved  ;  and  this  they  did 
principally  in  Italy,  where  their  influence  was  moft  extenfive  ;  and  that  with 
a  view,  by  having  a  greater  number  of  votes,  to  over-rule  the  determination 
of  the  general  councils.  They  did  the  fame,  but  more  fparingly,  for  the 
reafon  aforefaid,  in  other  countries,  with  the  fovereigns  ;  who,  in  thefe  cafes, 
were  really  actuated  by  the  motive  of  advancing  the  public  good,  and  pro- 
moting religion.  The  next  ftep  was  more  decifive.  Their  authority  being 
now  eftablifhed,  they  took  occafion,  on  feveral  pretences,  to  exempt  from 
the  jurifdiction  of  the  bifhops,  feveral  places  within  their  diocefes,  which 
they  kept  immediately  under  themfelves,  to  which  they  appointed  clerks  by 
this  way  of  donation,  and  whom  they  vifited  by  their  legates,  as  their  imme- 
diate ordinary.  The  clergy,  thus  provided  for,  ferved  as  faithful  fervants 
and  fpies  to  the  pope,  in  all  parts  of  the  chriftian  world,  and  were,  next  to 
the  monafteries,  the  firmeft  fupport  of  his  power.  The  fame  practice  they 
purfued  with  refpeft  to  biftioprics,  by  exempting  feveral  of  them  in  divers 
places  from  the  archbifhop  of  the  province.  And  this  was  the  origin  of 
donatives.  But,  in  order  to  fhew  the  plenitude  of  their  power,  the  next 
ftep  they  took  was  of  a  higher  ftrain.  They  not  only  founded  donatives  for 
themfelves,  but  for  others,  even  of  the  laity  ;  fhewing  by  this,  that  all  eccle- 
fiaflical  jurifdiftion  and  difcipline  was  entirely  fubject  to  their  will,  and  that, 
at  pleafure,  they  could  transfer  it  to  hands  before  judged  incapable  of  it. 

L  2  TH 


84  LECTURES     ON     THE  LE-CT.  8. 

THESE  two  kind  of  donatives  ftill  fubfift  in  England,  the  latter  in  the 
hands  of  fubje&s,  the  former  of  the  king  as  fupreme  ordinary,  fmce  the 
pope's  ufurped  power  was  transferred  to  Henry  the  Eighth.  I  am  fenfible 
many  common  lawyers  infift  that  the  king  of  England  was  always  fupreme 
ordinary,  and  that  nothing  new  was  gained  at  that  time,  but  only  his  old 
authority,  which  the  pope  had  ufurped,  reftored  to  him.  But  what  mail  we 
fay  to  the  fir  ft  fruits  and  tenths  j  which  are  certainly  papal  impofitions,  and 
comparatively  of  a  modern  date.  The  fame  I  apprehend  to  be  the  cafe  of 
the  ordinary  jurifdi&ion.  As  to  the  fupreme  patronage,  I  allow  it  was, 
originally,  the  king's.  My  reafon  is,  that  I  do  not  find  in  the  antient  church 
any  trace  of  a  layman  folely  exercifing  ecclefiaftical  jurifdi&ion,  or  enading 
laws  for  the  church  f . 

IN  the  apoftolic  times  all  things  were  tranfa&ed  by  the  faithful  at  large  ; 
in  the  next  age,  they  fell  into  the  hands  of  the  clergy,  all  excepting  the  elec- 
tion of  bifhops,  and  approbation  of  clergymen.  After  the  emperors  became 
chriftians,  they  publimed  indeed  ecclefiaftical  laws,  but  that  was  only  giving 
the  fan&ion  of  the  imperial  power  to  the  canons  the  church  had  made ;  whofe 
cenfures,  when  there  were  fuch  multitudes  of  new  and  counterfeit  converts, 
were  likely  to  have  little  weight.  In  the  northern  nations  the  cafe  was  the 
fame.  Canons  were  made  by  the  clergy,  and  thefe  were  often  enforced  and 
turned  into  obligatory  laws  by  their  general  afiemblies,  who  had  the  legifla- 
tive  authority  ;  and  if  there  are  any  inftances  in  thofe  times  of  laymen  ex- 
ercifing ecclefiaftical  difcipline  as  ordinaries,  I  own  they  have  efcaped  me. 
I  fpeak  merely  of  ecclefiaftical  difcipline  :  for  as  to  things  of  a  temporal 
concern,  fuch  as  wills,  adminiftrations,  marriages,  tithes,  &c.  the  authority 
undoubtedly  was  from  the  king.  But  not  as  to  matters  entirely  fpiritual, 
fuch  as  concern  ihefalutem  anima  J. 

I  THINK  therefore  the  king's  title  to  be  fupreme  ordinary,  ftands  better 
fettled  on  the  parliamentary  declaration,  and  on  the  reafon  of  the  thing,  that 
all  coercive  power  mould  be  derived  from  him,  whom  God  hath  made  the 
fuperintendant ;  than  on  the  afiertions  of  lawyers,  that  it  always  was  fo. 
Matters  of  faft  are  to  be  determined  by  evidence,  not  by  confidering  what 

ought 

f  Gibfon,  Cod.  Jur.  Ecclef.  Anglican,  tit.  34. 
J  Gibion,  tit.  i.  and  2. 


LECT.  8.  L  A  W  S     OP     E  N  G  L  A  N  D. 

ought  to  have  been  ;  and  we  need  not  be  furprized  to  find,  that  an  ignorant 
and  fuperftitious  people  allowed  practices,  and  a  divifion  of  power  in  thcm- 
fclves  unrcaibnable. 

IN  thefe  donatives  there  was  neither  inftitution  nor  indu&ion.  The  pa- 
tron gave  his  clerk  a  title  by  deed,  on  which  he  entered ;  for  the  plenitude 
of  the  papal  power  fupplied  all  forms.  The  patron  was  the  vifitor,  and  had 
the  power  of  deprivations  j  but  what  clearly  ihcws,  in  my  apprelienlion, 
that  thefe  donatives  were  incroachments  on  the  epifcopal  authority,  is,  that, 
if  once  a  common  patron  (for  the  king  was  faved  by  his  prerogative)  had 
prefented  his  clerk,  and  he  got  inftitution  and  induction,  the  donative  was 
gone  for  ever.  The  living  became  prefentative,  and  the  bifhop's  jurifdidion 
revived. 

I  SHOULD  next  proceed  to  tithes,  another  kind  of  incorporeal  benefice; 
but  this  would  carry  me  too  great  a  length  for  the  prefent  difcourfe. 


LECTURE 


86  LECTURES    ON     THE  LECT.  9." 


LECTURE         IX. 

Tithes— The  'voluntary  contributions  of  the  faithful,  the  original  revenue  of  the 
church- — The  ejlablijhment  of  regular  payments — The  appropriations  of  the 
church — The  hi/iory  and  general  rules  of  tithes  in  England. 

fTTHE  next  kind  of  incorporeal  benefices  taken  notice  of  by  the  law  of 
JL  England,  that  I  (hall  mention  is  tithes ;  the  New  Teftament,  as  well  as 
common  reafon,  fays,  that  they  who  ferve  by  the  altar,  Jhould  live  by  the  altar; 
but  is  filent  as  to  the  manner  in  which  this  fupport  mould  arife.  In  the  ve- 
ry firft  times,  when  their  numbers  were  but  few,  and  thofe  confined  to  Jeru- 
falem  and  its  neighbourhood ;  the  chriftians  fold  all  they  had,  and  lived  out 
of  the  common  flock.  But  this  lafted  a  very  fhort  time.  When  they  in- 
creafed  to  multitudes,  that  method  was  found  impracticable,  fo  that  each 
retained  his  pofieffions,  and  gave  a  voluntary  contribution  out  of  it  at  his 
difcretion.  This  was  the  fund  of  the  church ;  and  in  thofe  times  of  fervent 
zeal  in  the  laity,  and  fimplicity  of  manners  in  the  clergy,  it  was  found  abun- 
dantly fufficient,  not  only  to  fupport  the  minifters,  and  their  own  power,  but 
alfo  to  build  churches,  and  to  do  many  acts  of  charity  to  fome  of  the  pagans. 

THE  revenues  of  the  church  went  on  continually  encreafing  to  the  time 
of  Conftantine  ;  and  though  by  the  Roman  laws,  no  colleges,  as  they  called 
them,  that  is,  communities  or  fraternities,  unlefs  they  had  the  fanction  of  the 
imperial  authority,  could  accept  legacies  or  donations,  yet,  fuch  was  the  de- 
votion of  the  times,  that  many  fuch  private  grants  were  made  ;  and  the 
principal  churches  obtained  great  acquifitions,  not  only  in  moveable  goods, 
but  in  landed  eflates ;  infomuch  that  fome  of  the  perfecuting  emperors  were 
thought  to  be  as  much  infligated  to  their  cruelties  by  avarice,  as  by  their 
blind  attachment  to  their  pagan  fuperftitionf. 

IN 

f  Father  Paul  on  beneficiary  matters,  ch.  2.  and  ch.  6.     Selden's  biftory  of  tithes^ 
ch.  4.  fe<ft.  I.    Spelm,  larger  work  of  tithes,  ch.  6. 


LF.CT.  9.  L  A  W  S     OF     E  N  G  L  A  N  D.  87 

IN  the  fourth  century,  the  reftraint  being  taken  away,  tliefc  largefles 
from  the  rich  and  fuperftitious  to  the  church  became  much  greater ;  but 
the  general  voluntary  contributions  from  all  who  could  f'parc,  diminilhcd, 
the  apparent  m-ctllity  for  them  being  Idlened  ;  and  the  zeal  of  the  people, 
which  perfecution  had  kept  warm  and  tcrvcnt,  flackcned  from  cafe  and  fc- 
curity.  The  bifhops,  who  were  the  diltributers,  prided  in  vying  with  each 
other  in  the  magnificence  of  their  churches  ;  and,  being  now  raifed  to  an 
eminent  rank  in  the  ftatc,  were  not  fatisfied  to  live  in  fuch  a  manner  as 
contented  the  fimplicity  of  the  antient  fathers  of  the  church  ;  fo  that  by  the 
year  400,  the  inferior  clergy  and  the  poor  were,  in  many  places,  but  in  very 
fcanty  circumftances.  This  induced  many  of  the  pious  to  fix  upon  a  cer- 
tain rate  out  of  their  own  annual  gains  to  fupply  thefe  neceflities,  and  as  the 
tenth  was  what  had  been  afligned  to  the  Levitcs  in  the  mofaical  law,  that  ge- 
nerally became  the  proportion.  But  as  the  payments  of  thofe  tithes  were 
purely  voluntary,  fo  did  the  givers  appropriate  them  in  fuch  manner  as  they 
pleafed,  and  as  they  thought  they  were  moft  wanted  f. 

IN  F.gypt,  where,  it  feems,  this  practice  began,  they  were  commonly  gi- 
ven to  the  monks,  who  had  devoted  themfelves  to  a  religious  poverty  ;  in  II- 
lyricum  generally  to  the  poor  ;  in  other  places  to  the  inferior  clergy  of  fuch 
a  diftrict,  or,  if  the  church  itfelf  was  indigent,  to  the  bimop,  for  the  ufe  of 
his  church.  The  famous  preachers  about  this  time,  particularly  St.  Ambrofe 
and  St.  Auguftine,  inforced  this  practice  with  all  their  eloquence,  and  infill- 
ed on  the  levitical  law  of  tithes  as  binding  on  chriltians.  This  had  great, 
but  not  general  effects.  Some  gave  the  tithe,  others,  of  more  zeal,  gave 
more,  and  others  lefs  ;  and  though  thefe  contributions  began  now  to  be 
aided  by  the  fpiritual  arms  of  excommunication,  yet  were  thefe  only  ufed  to 
oblige  a  man,  in  teftimony  of  his  being  a  chriftian,  to  make  fbme  offering, 
not  to  pay  precifely  the  tenth,  or  any  other  portion  J. 

THESE  payments  of  the  tenth  hitherto  we  fee  were  voluntary ;  but  there 
foon  came  in  another  practice,  which,  in  particular  places,  made  them  com- 
pulfory.  It  was  ufual  when  a  patron  founded  a  church,  in  order  for  its  fup- 
port,  to  charge  his  lands  with  the  payment  of  tithes  to  the  minifter  who  offi- 
ciated 

f  Selden's  hift.  of  tithes,  ch.  6.  and  7.     Spelm.  larger  work  of  tithe?,  ch.  29. 

t  De  non  temerand.  Ecclef.  trad.  Spelm.  p.  3. 


88  LECTURES     ON     THE  LECT.  9. 

elated  therein.  This  created  a  permanent  right  in  the  church,  not  by  the 
force  of  any  general  law,  or  canon  (for  all  fuch  attributed  to  thefe  ages  are 
forgeries  of  a  later  date)  but  from  the  efpecial  gift  of  the  grantor,  and  the 
power  he  had  to  charge  his  land.  The  earlieft  authority  that  proves  a  gene- 
ral right  of  tithes,  through  any  country  of  Europe,  is  to  be  met  with  in  the 
council  of  Mafcon,  held  under  king  Guntram,  who  reigned  in  the  fouth-eaft 
parts  of  France,  in  the  year  586.  There  the  right  of  tithes,  through  all 
his  dominions,  is  acknowledged  as  an  antient  duty  due  to  the  church ;  and 
they  are  enjoined  to  be  regularly  paid.  But  it  is  obfervable,  in  the  very 
words  of  this  law,  that  the  tithes  ib  paid  were  not  folely  appropriated  to  the 
clergy,  but  much  of  them  applied  to  other  charitable  ufes,  unde  ftatuimus, 
ut  dec'unas  etclefiafticas  omnis  populus  mferat,  quibus  facer  dotes  ^  aut  in  pauperum 
iifuniy  aut  in  captivorum  redemptionem  erogatis^fms  orationibus  pacem  populo  6* 
falutem  impetrant.  Thus  the  kingdom  of  Burgundy  was  the  firft  that  efta- 
blimed  the  univerfal  payment  of  tithes  by  a  pofitive  law.  This  payment,  in 
the  other  parts  of  France,  was  long  after  at  pleafure,  or  by  particular  foun- 
dation ;  but  was  daily  gaining  ground,  efpecially  after  the  impoverimment 
of  the  church  by  Charles  Martel  rendered  them  more  neceffary ;  and  his 
grandfon  Charlemagne  was  the  firft  that  eftablimed  them  by  a  pofitive  law, 
made  in  a  general  affembly  of  the  flates,  through  all  France  ;  and  that  as 
due  by  a  divine  right,  in  the  year  778.  And  as  he  and  his  fucceffors  wtre 
mafters  alfo  of  Germany  and  Italy,  the  fame  law  and  opinion  foon  paffed 
into  thofe  countries  f . 

BUT  as  pofitive  as  his  law  was,  in  the  direction  of  payment  of  them  to 
the  bifhop  or  prieft,  it  was  for  a  long  time  not  univerfally  obeyed,  and  where 
it  was  obeyed,  often  mamefully  eluded,  as  appears  by  the  laws  of  his  fuc- 
ceffors, and  many  ecclefiaftical  canons  framed  for  the  redrefling  thofe  mif- 
chiefs.  For  as  a  portion  of  the  tithes  was  originally  diftributed  to  the 
poor,  under  this  pretence,  it  was  cuftomary  for  the  fuperflitious  laity,  when 
they  granted  the  tithes,  inftead  of  aligning  them  for  the  maintenance  of  the 
miniftering,  /.  e.  the  fecular  clergy,  to  appropriate  them  to  monafteries, 
which  were  focieties  of  voluntary  poor.  Thefe  appropriations,  or  confe- 
crations,  as  they  were  called,  became  very  numerous,  both  from  the  un- 
bounded 

f  Montefquieu,  PEfprit  des  loix.  Uv.  31.  chap.  12.     Selden  of  tithes,  ch.  ?.    Father 
Paul  of  benefices,  ch.  ir. 


Dtcr,  9.  \  W'S    01     i  l).  89 

bounded  veneration  paid  to  the  monks,  and  from  the  cncoura,  fuch 

grants  received  from  the  ire  of  Home,  which  looked  upon  the  monafl'u 

.Jlcll  friends,  and  was  bent  upon  r.  n.  u  on  the.  the 

•iliir  clergy.     But  as  the  monks  of  tliofc  ti;,  ucn, 

and  incapable  of  ferving  the  cure,  it  grew  into  a  practice  for  them,  if  any  of 
their  own  body  was  fit  for  the  purpofc,  to  get  him  ordained  ;  or  if  they  had 
none,  to  employ  a  fecular  pricft,  to  perform  the  divine  offices,  under 
name  of  their  vicar  or  deputy,  \\ho  was  to  account  with  them  for  the  profits, 
and  was  to  receive  for  his  fubfiftence  a  ftipulated  proportion  ;  and  thus 
came  in  the  divifion  of  parochial  tithes,  into  reclorial  and  vicarial;  the  for- 
mer remaining  in  the  employer,  the  latter  in  the  employed,  who  did  the  dir 

THE  fame  pretence  of  appropriating  the  tithes  to  the  poor  gave  a  handle 
likewife  to  many,  when  they  found  it  neccflary  to  pay  tithes,  to  grant  t' 
to  laymen  in  fee,  under  the  like  conditions  and  fervices  as  other  fiefs  j  and 
many  likewife  were  the  unworthy  churchmen,  who  turned  the  incomes  of 
their  church  into  provifions  for  their  families,  by  granting  them  in  fief. 
Thus,  in  procefs  of  time,  were  the  miniflering  clergy,  and  the  real  poor,  for 
\vhofe  fupport  the  tithes  were  originally  granted,  in  a  great  meafure  dripped 
of  them ;  and  they  were  converted  either  into  lay  inheritances,  for  fecular 
fervices,  or  applied  to  the  fupport  of  monafteries  ;  and  both  thefe  abufes 
began  under  the  fpecious  pretence  of  charity.  The  latter,  17*2.  the  grants 
to  monks,  was  always  favoured  by  the  heads  of  the  church ;  and  the  for- 
mer, in  fpite  of  all  their  cenfures,  prevailed,  until,  at  length,  it  was  found 
neceflary  to  apply  fome  remedy  to  both.  The  evils  were  too  inveterate  to 
be  finally  removed  ;  but  this  temper  was  found  out  in  the  council  of  Late- 
ran,  held  in  1215,  when  it  was  ena&ed,  That  all  tithes  which  from  time 
immemorial  had  been  given  in  fief  might  fo  continue,  but  no  more  be 
granted  in  that  manner  for  the  future ;  and  the  appropriations  to  monafte- 
ries were  confined  to  three  orders  of  monks  who  were  looked  upon  as  the 
mod  learned,  and  capable  of  furniming  men  fit  for  the  dutyj. 

I  SHALL  proceed  now  to  fay  fomething  of  the  fate  of  tithes  in  England. 
That  tithes  had  been  paid  in  feveral  parts  of  England  during  the  hep- 
tarchy, and  eftablifhed  by  law  in  fome  of  its  kingdoms,  is  undeniable ;  but 

M  the 

f  Father  Paul  of  benefices,  ch.  1 4. 

J  Giannone's  hift,  of  Naples,  b.  19.  chap.  4.  §  2. 


90  LECTURES     ON     THE  LECT.  9. 

the  firft  who  ordained  them  by  law,  through  all  England,  was  Ethelwolf, 
in  his  parliament  of  the  year  855  ;  who  had  been  himfelf,  in  his  elder  bro- 
ther's life,  defigned  for  the  church ;  in  this  imitating  Charlemagne,  at 
whofe  court  his  father  had  long  refided.  This  may  well  be  allowed,  although 
thofe  authors  that  give  us  the  copy  of  this  law  differ  in  the  date,  both  as  to 
the  time  and  place  where  it  was  made.  But  be  that  as  it  may,  his  fon 
Alfred  certainly  made  a  law  for  this  purpofe,  to  bind  not  only  his  own 
Englifh,  but  alfo  the  new  converted  Danes,  to  whom  he  amgned  feats  in 
his  kingdom,  and  whom  he  had  fubmitted  to  the  government  of  Guthrun. 
Such  laws  were  renewed  by  almoft  every  one  of  his  fuccefibrs  down  to  the 
Norman  conqueft  ;  an  evident  proof,  that  however  zealous  thofe  princes 
were  for  the  fupport  of  the  church,  their  pious  intentions  were  but  ill  fe- 
conded  by  their  people.  The  feverity  of  the  law  of  Edgar  was  remarkable, 
and  of  itfelf  fufficient  caufe  of  their  backwardnefs ;  for  it  made  the  non- 
payment of  the  tenth  a  forfeiture  of  eight-tenths.  The  pr&pofitus  of  the  king 
and  bifliop,  that  is,  I  prefume,  the  fheriff  and  arch-deacon,  were  to  feize  the 
fruits  out  of  which  the  tithes  had  been  with-held,  and  when  they  were  di- 
vided into  ten  parts,  one  was  given  to  the  church  that  had  been  defrauded, 
another  to  the  proprietor,  and  the  remaining  eight  were  divided  between 
the  king  and  the  bifhopf. 

DURING  thefe  times  appropriations  of  tithes,  to  other  churches  than  the 
pariih  one,  and  alfo  to  monaiteries,  were  frequent,  here  as  well  as  on  the 
continent ;  but,  for  fome  time  after  the  conqueft,  the  largefies  to  the 
monks,  with  refpect  both  to  lands  and  tithes,  encreafed  confiderably,  and 
were  continually  encouraged  by  the  popes,  the  kings,  the  bifhops,  and 
nobility ;  by  the  popes  for  the  reafon  already  given  ;  by  the  bimops  and 
nobility,  who  were  all  Normans  or  foreigners,  out  of  partiality  to  their 
countrymen  (for  fuch  the  monks  generally  were)  and  out  of  contempt  and 
hatred  to  the  fecular  clergy,  who  were  univerfally  Englifli ;  by  the  kings, 
not  only  for  this  laft  mentioned  caufe,  but  for  another  peculiar  to  them- 
felves.  The  government  of  the  Saxon  kings  was  remarkably  moderate, 
and  their  laws  and  conflitutions  extremely  favourable  to  the  liberties  of  the 
people.  The  firfl  race  of  Norman  kings  pretended,  indeed,  a  right  to  the 

throne, 

•{-  Selden  on  tithe?,  chap*  8.     Bacon,  hill,  and  polit.  difc.  on  the  La",vs  and  Govern- 
ment of  England,  chap.  59.      L.  1.  Angl.  Sax.  ap.  "Wilkins. 


LFCT.  9.  LAWS    OP    EN  G  LAND.  ,;1 

throne,  and  every  one  of  them  fwore  to  obfervc  the  Saxon  laws,  with  fuch 
emendations  as  luiU  been  confented  to  in  parliament  by  William  the  Firft. 
But  the  conduct  of  every  one  of  them  (hewed  how  little  regard  they  had  to 
that  obligation,  and  how  bent  they  were  on  letting  themlelvcs  free  from 
all  reftraint,  and  to  deftroy  all  traces  of  the  old  Saxon  laws.  For  this  pur- 
pofe  it  was  abfolutely  neceflary  to  deprefs  the  fecular  clergy  ;  who,  in  thofe 
times  of  ignorance,  were  the  only  lawyers  ;  infomuch,  that,  in  William  the 
Second's  reign,  it  was  faid,  nulhis  deficits,  nifi  caitfidicm  ;  and,  to  render 
them  unfit  guardians  of  thofe  privileges,  the  kings  were  refolved  to  tram- 
pie  upon  them.  For  this  end,  a  new  language  and  new  forms  of  proceed- 
ing were  introduced  into  the  courts,  the  fecular  and  ecclefiaftical  jurifdic- 
tions,  which  had  been  united,  were  feparated;  and  the  clergy  were  banifhed 
from  the  temporal  courts,  and  the  greatefl  part  of  the  bufmefs  which  for- 
merly had  been  tranfafted  in  the  country  courts  was  transferred  to  the  curia 
sy  under  the  immediate  infpection  of  his  judgesf. 


THUS  were  the  fecular  clergy  daily  reduced  in  circumflances  and  impor- 
tance, while  the  monafleries  flourifhed  on  their  downfall.  However,  about 
the  time  of  Henry  the  Third  (for  it  is  hard  precifely  to  fix  when  it  became 
an  allowed  maxim  of  the  Englim  law)  all  tithes  arifmg  in  any  parim  were, 
of  common  right,  payable  to  the  priefl  of  that  parim,  unlefs  they  had  been 
previoufly  appropriated  to  fome  other  prieft,  or  monaftery,  either  by  a  pofi- 
tive  appropriation  appearing,  or  by  prefcription  where  that  was  loft,  and 
that  no  layman  could  prefcribe  againft  the  payment  of  them.  I  fay  no  lay- 
man, for  with  refpect  to  ecclefiaftics,  the  cafe  was  otherwife.  It  had,  in- 
deed, been  a  controverfy  in  France  feveral  centuries  before,  whether  the 
lands  of  a  church  or  monaftery  mould  pay  tithes  to  the  parifh  minifter 
where  they  lay  ;  but  it  was  determined  by  the  better  opinion  that  they 
mould.  However  the  bifhops  of  Rome,  in  complaifance  to  their  friends 
the  Monks,  granted  to  many  monafteries  an  exemption  from  tithes  for  their 
lands.  And  thefe  are  the  lands,  which  we  fee  at  this  day  in  the  hands  of 
laymen  discharged  of  tithes,  by  virtue  of  a  ftatute  in  the  reign  of  Henry  the 
eighth  ;  before  I  proceed  to  which,  it  will  be  proper  to  take  notice  of  what 
a  modus  is,  as  they  were  introduced  in  thofe  early  times. 

M  2  A 

f  Brady,  Appendix  to  his  hift.  p.  15.     Carte,  hilt,  of  England,  voL  r.  p.  441. 


92  L  E  C  T  U  R  E  S    ON    THE  LECT.  9." 

A  MODUS,  then,  is  a  compofition  for  tithes  in  kind,  within  a  certain  dif- 
trict ;  whereby  the  layman  is  difcharged  from  rendering  his  tithes,  on  his 
paying  to  the  parfon,  in  lieu  thereof,  what  the  local  cuflom  of  that  place 
directs.  Thefe  compofitions  were  originally  for  the  mutual  benefit  of  the 
clergy  and  laity ;  that  one  might  have  a  fettled  certainty  what  to  receive, 
and  the  other  what  to  pay ;  and  was,  while  the  equivalent  continued  to 
bear  any  reafonable  proportion  to  the  value,  an  excellent  means  to  prevent 
yearly  difputes  between  the  minifter  and  his  flock  ;  but  as  mofl  of  them  are 
fixed  at  certain  rates  of  money,  the  change  of  its  value  hath,  in  all  thefe 
cafes,  greatly  impoverifhed  the  parochial  clergy,  efpecially  as  many  of  them 
grew  up  into  a  prefcription,  by  the  negligence  of  the  clergy,  without  an 
original  compofition.  Thefe  modufes  have,  likewife,  not  a  little  hurt  the 
fpiritual  jurifdiction  ;  for  as  their  courts  paid  little  or  no  regard  to  them,  as 
being  againft  the  canon  law,  if  the  original  compofition  did  not  appear  to 
have  the  bifhop's  authority,  by  being  found  in  his  regiftry,  the  temporal 
courts,  wherever  one  is  pleaded,  fend  a  prohibition  to  the  ecclefiaftical  one, 
and  refcrve  the  tryal  to  themfelves,  by  a  jury  of  twelve  men,  as  the  legal 
judges  of  the  cuflom f. 

WHEN  Henry  the  eighth  threw  off  the  pope's  fupremacy,  great  was  his 
langer  both  from  abroad,  and  at  home,  particularly  from  the  monafteries. 
A  refolution  therefore  was  taken  for  fuppreffing  them,  and  applying  their 
revenues  to  more  ufeful  purpofes.  The  intention  of  Cranmer,,at  leaft,  was 
to  reftore  the  tithes  to  the  parochial  clergy,  and  out  of  fome  part  of  the 
lands  to  found  new  bimopricks,  and  for  other  religious  and  charitable  pur- 
pofes ;  the  remainder  to  be  united  to  the  royal  demefnes  to  enable  him  to  de- 
fend his  realm  without  burthening  his  fubjects  with  fubfidies.  But  little  of 
this  kind  was  done.  Five  or  fix  bimopricks,  with  very  poor  revenues,  were 
erected,  and  the  reft,  both  of  lands  and  tithes,  were  diftributed  to  the  laity 
in  whofe  hands  they  ftill  remain,  partly  out  of  prefent  political  views, 
but  principally  from  the  extravagance  of  that  king  and  the  indigence  of  his 
fuccefTors,  concurring  with  the  avarice  of  their  courtiers.  As  to  the  lands 
the  abbots  held  difcharged  of  tithes,  the  parifli  minifters  right  to  them  would, 
by  the  common  law  of  England,  have  revived  as  foon  as  they  got  into  lay. 
hands ;  as  it  would  have  done  before,  if  the  abbot  had  aliened  with  the  con- 
feat 

|  Selden  on  tithe?,  chap.  1 4. 


LECT.  9.  LA  W  S    OF    ENGLAND.  93 

fent  of  the  convent,  and  this  was  the  cafe  of  the  lands  of  the  leflfer  monaftc- 
rics.  But  when  the  greater  ones  were  diilolved  by  the  ad  of  31(1  of  Henry 
the  eighth,  it  was  exprelsly  provided,  that  the  king  and  his  grantees  mould 
enjoy  thofe  lands,  difcharged  from  tithes,  in  as  ample  a  manner,  as  the  ab- 
bots held  them  before  that  time.  Thus  became  a  great  part  of  the  tithes  of 
the  kingdom,  which  by  the  common  law  of  England  were  the  legal  mainte- 
nance of  the  parochial  clergy,  lay  fees,  and  inheritances,  as  they  continue 
at  this  dayf. 

TITHES  are  of  three  kinds,  pradial,  perfonal  or  mixed.  Prasdial,  are  the 
fruits  arifing  immediately  from  the  ground,  as  all  forts  of  grain,  hay,  un- 
derwoods, fruits  of  trees,  hops,  faffron,  hemp,  flax,  and  fuch  like.  Mixed, 
which  arife  from  cattle  nourifhed  by  the  ground  as  their  young,  colt^,  calves, 
lambs,  pigs,  or  their  productions,  as  milk,  cheefe,  butter,  &c.  Thirdly, 
perfonal,  which  arife  from  the  labour  and  induftry  of  men  ufmg  any  mer- 
chandize, or  manual  occupation,  and  is  the  tenth  part  of  their  clear  gain. 

THE  two  firft  had  their  foundation  in  the  law  of  Mofes,  the  laft  was  in- 
troduced and  ftrongly  inforced  by  the  canon  law,  nay  fo  mamelcfs  were  fome 
of  the  canonifls,  as  to  infift  that  harlots  were  obliged  to  pay  the  tenth  of  their 
infamous  gains ;  but  this  latter  kind  has  had  little  effect  in  England,  except 
by  the  local  cuftoms  of  fome  particular  places  *. 

As  to  what  things  are  tithable  or  not  by  our  law,  it  may  not  be  amifs  to 
lay  down  fome  general  maxims  concerning  them. 

FIRST  then,  as  to  pnedial  tithes  :  Regularly,  they  are  due  only  out  of 
things  that  encreafe  annually,  fimul  &femel,  and  therefore  except  by  fpecial 
cuftom,  mines,  minerals,  chalks,  ftones,  flates,  turfs,  being  part  of  the  foil, 
and  not  increafmg  annually,  are  not  tithable  j  but  this  rule  admits  of  fome 
exceptions,  of  which  I  mall  juft  mention  two.  Saffron,  which  encreaies 
from  three  years  to  three  years,  is  yet  tithable  ;  and  fo  is  underwood,  that 
is,  all  trees  cut  under  twenty  years  growth.  The  tithes  of  trees  occafioned 
many  contefls  between  the  clergy  and  laity  in  England,  the  one  exacting  it 

by 

f  Carte's  hift.  of  England,   vol.  j.  p.  155,  143,  148,  149.     Lord  Herbert's  life  and 
reign  of  Henry  VIII.  p.  186.  et  feq.  ap.  Kennet. 

J  Gibfon,  Cod.  Jur.  EcckT.  Anglican,  tit.  35.      Hume,  vol.  I.  p.  51. 


94  LECTURES    ON     THE  LECT.  9. 

by  their  canons,  and  the  commons  in  parliament  conftantly  remonftrating 
againft  it.  At  length  it  was  fettled  by  parliament,  that  none  mould  be 
exempted  but  timber  above  twenty  years  growth,  as  being  fit  for  building. 
But  this  ftatute  is  fo  conftructed,  that  if  the  trees  be  not  of  the  nature  of 
timber,  they  are  tithable,  though  above  that  age,  as  bufh,  birch,  and  the 
like  ;  but  thefe,  if  for  the  fcarcity  of  other  timber,  they  are  ufed  in  build- 
ing, as  beech  is  in  Buckinghammire,  they  are  there  exempted. 

As  to  mixed  tithes,  the  rule  is,  that  things  fera  nature  are  not  tithable. 
Therefore  fifh,  pheafants,  partridges,  rabbits,  deer,  bees,  and  fuch  like 
are  not ;  but  feveral  of  thefe,  if  reclaimed,  have  been  adjudged  to  be  fo,  as 
"bees  in  a  hive,  and  the  fame  reafon  holds  as  to  pigeons  in  a  dove  houfe  ; 
though  the  opinion  of  common  lawyers  is,  that  they  are  not  tithable,  if 
fpent  in  the  houfe,  and  not  ufed  for  fale. 

BUT  what  (hall  we  fay  for  barren  cattle,  from  whom  no  yearly  profit 
arifes  ?  Shall  the  parfon  receive  no  benefit  whatever  from  them,  and  mail  it 
lie  in  the  power  of  the  occupier,  by  employing  all  his  land  in  feeding  no- 
thing but  barren  cattle,  to  leave  his  minifter  without  fupport  ?  Certain  it  is, 
•whatever  the  modern  practice  and  opinion  may  be,  that  by  the  beft  autho- 
rities of  the  antient  lawyers,  agiftment  was  due  to  the  clergy  which  was  the 
tenth  part  of  the  value  of  the  lands,  or  the  twentieth,  which  by  cuftom,  in 
mod  places,  was  generally  paid,  if  the  proprietor  depaftured  the  whole  year, 
or  lefs,  according  to  the  time  and  quantity  of  the  cattle,  fadclle  horfes,  or 
cattle  for  the  plough,  only  exceptedf. 

THUS  much  may  fuffice  for  the  hiflory  and  general  rules  of  tithes,  the 
fecond  fpecies  of  incorporeal  rights,  to  which  I  may  add,  as  much  of  the 
fame  nature,  and  founded  on  the  fame  reafon,  what  is  called  minifters  money 
out  of  houfesvin  cities  and  towns,  where  there  are  no  tithes,  which  the  aft 
of  parliament,  of  the  iyth  and  i8th  of  Charles  the  fecond,  hath  reftrained 
to  the  twentieth  part  of  the  value  of  houfes,  as  valued  by  a  commiflion  from 
the  Lord  Lieutenant  and  fix  of  the  council, 

f  Wood,  Inftitute  of  the  Laws  of  England,  fol.  161.  etfeq. 


LECTURE 


LECT.  10.          LAWS   OF    EN  G  LAND.  95 


LECTURE         X. 

The  right  of  Se ignory  and  its  confequences — The  right  of  Reverfton — Rent  feck 
• — Rent  charge — The  nature  of  diftrefs,  as  the  remedy  for  recovering  feudal 
duties.  Obfervations  on  diftrefies  in  genera/. 

HAVING  fpokcn  of  tithes  and  advowfons,  two  kinds  of  incorporeal 
benefices  that  arofe  in  thofe  anticnt  times,  I  come  now  to  treat  of 
feignorics  and  their  confequences.  A  fcignory  is  an  incorporeal  right  and 
interefl  ftill  remaining  in  the  lord,  when  he  parts  with  his  lands,  in  benefice 
to  a  tenant.  Now  the  rights  of  a  lord,  in  refpecl  of  his  fcignory,  may  be 
confidered  in  two  ways,  either  as  the  fervices  were  due  to  the  lord  from 
thcperfon  of  the  tenant,  or  from  the  lands.  He  hath  therefore,  in  virtue 
of  his  feignory,  a  right  to  all  thofe  perfonal  duties  which  flow  impliedly  from 
the  oath  of  fealty;  fuch  as  to  receive  warning  from  his  tenants  of  any  injury 
done,  or  impending  danger  to  his  perfon,  his  dignity,  or  feignory,  to  receive 
faithful  advice  from  them  when  called  upon,  and  to  have  his  fecrets  faithfully 
kept  by  them;  to  be  the  judge  of  their  controverfies,  and  the  leader  in  war 
of  fuch  of  them  as  hold  by  military  fervice.  For  thefe  barbarous  people 
had  no  idea  of  dividing  power,  but  always  cntrufled  the  civil  and  military 
fword  in  the  fame  hands ;  whereby  they  avoided  the  dangers  and  diforders 
that  more  polimed  and  richer  nations  have  ever  been  expofed  to,  name- 
ly, of  having  the  civil  and  legal  authority  fubverted  by  the  military  power. 
And  fo  uricl:  was  the  bond  between  lord  and  tenant,  that  the  latter  could  in 
no  wife,  in  point  of  judgment,  decline  his  lord's  jurifdiclion,  by  refufing  him 
as  judge  on  account  of  partiality.  Such  a  charge  was  a  breach  of  fealty  on 
the  vaffal's  part,  and  no  fuch  prefumption  could  be  admitted  by  that  law, 
which  looked  upon  the  lord  as  equally  bound  by  the  oath  of  fealty,  though 
not  taken  by  him,  as  the  tenant  was  f . 

BY  the  Roman  law,  a  fufpected  judge  might  be  refufed  by  the  fuitors  for 
almoft  all  the  fame  caufes,  and  grounded  moftly  upon  the  fame  reafons,  for 

which 
f  Madox,  Baronia  Argl. 


r;6  LECTURES     OM     THE  LECT,  ro» 

which  jurors,  who  in  our  law  zxc  judge*  of  the  faff,  may  be  challanged  at  this 
day.  But  the  feudal  cuftoms  admitted  no  fuch  fufpicions  as  to  the  lord,  and 
therefore  in  the  Englifh  law,  no  judge,  however  clearly  interested  in  the 
caufe,  can  be  challenged.  This  maxim  once  eftablifhed,  it  was  neceflary, 
however,  for  the  fake  of  juftice,  that  it  mould  admit  of  fome  qualification. 
The  ajjejjors  in  Germany,  who  aflifted  the  lord  in  judgment,  from  whom 
came,  in  after  time,  the  pares  curia,  were  this  qualification.  But  as  thefe 
were  not  judges  in  all  feudal  caufes,  but  in  fome  the  lord  alone  continued 
fole  judge  ;  fome  remedy  was  here  to  be  applied,  and  on  the  continent  and 
in  England,  they  proceeded  differently.  On  the  continent,  the  king,  or  fu- 
perior  lord,  appointed  a  cojudge,  or  affeffor.  In  England  the  fuitor,  by  ap- 
plying to  the  king's  courts  was  empowered  to  remove  the  caufe  thither ; 
which  hath  been  one  great  occafion  of  thefe  inferior  courts  of  the  lords 
dwindling  to  nothing  |. 

As  to  the  right  the  lord  "had  in  the  land  by  virtue  of  his  feignory,  the 
principal,  and  upon  which  his  other  rights  out  of  the  land  depended,  was 
his  reverfion.  A  reverfion  is  that  right  of  propriety  remaining  in  the  lord, 
during  the  continuance  of  the  particular  eftate  of  poffeflion  of  the  tenant ; 
whereby  he  is  entitled  to  the  fervice  during  the  duration  of  the  term,  and 
to  the  poffeffion  itfelf,  when  it  is  either  expired,  or  forfeited.  Hence  it 
appears  that  the  fealty  and  fervices  of  the  tenant  are  incident  to  the  lord's 
reverfion.  Out  of  thefe  reverfions  may  be  carved  another  incorporeal 
eftate,  called  a  remainder^  which  is  a  particular  eftate  dependant  upon,  and 
confequent  to  a  prior  particular  eftate ;  as  if  lands  be  granted  to  A.  for  five 
years,  and  afterwards  to  B.  for  life.  In  this  cafe  A.  hath  a  leafe  for  years, 
B.  a  remainder  for  life,  and  the  reverfion  remains  in  the  grantor.  In  our 
law,  remainders,  and  th«  particular  precedent  eftate  on  which  they  depend 
are  confidered  as  making  but  one  eftate  ;  and  fo,  in  truth,  they  are  with 
refpeft  to  the  reverfioner,  though  not  to  each  other.  Therefore  they  muft 
both  pafs  out  of  the  grantor  at  the  fame  time,  though  it  is  not  abfolutely 
neceffary  that  the  remainder  mould  veft  in  the  grantee  at  the  creation  of  the 
precedent  particular  eftate;  for  a  remainder  maybe  good  which  depends  on  a 
contingency,  as  if  a  remainder,  after  a  leafe  for  life  or  years  to  A,  is  limited 
to  the  eldeft  fon  of  J.  S.  This  is  a  good  remainder,  but  a  contingent  one, 

depending1 
t  4.  Inftit.  268.      Scroggs  of  Courts  Baron,  p.  56, 


LF.CT.  10.         L  A  W  S     OF     ENGLAND.  97 

depending  on  the  birth  of  J.  S's  fon  during  the  continuance  of  the  tern 
A  j  lor  the   remainder  being  but  one  eflate  with  the  precedent  particular 
,  and  only  a  continuation  of  it,  muft  commence  inflantly  when  it  de- 
termine?.    Or,  if  after  a  leafe  to  A,  a  remainder  is  limited  to  the  heirs  of 
J.  S.  this  is  a  good  contingent  remainder,  depending  on  the  event  of  J. 
dying  during  the  particular  eflate.     For  it  is  a  maxim  of  t 
eft  bares  vivcntis. 


To  return  to  reverfions,  I  mentioned  fealty  and  fervices  as  incidents  of  a 
rcvcrfionj  but  we  muft  diftinguifh  that  fealty  is  an  infeparable  one,  which 
the  fervices  are  not  ;  for  the  tenure  being  from  the  reverfioner,  and  feaky 
neceflarily  incident  to  every  tenure,  it  is  irnpoflible  they  mould  be  feparated. 
A  grant,  therefore,  of  fealty,  without  the  rcverfion,  is  void  ;  and  the 
grant  of  the  reverfion  carries  the  fealty  with  it.  But  the  cafe  is  otherwife  as 
to  the  fervices  ;  for  the  fervices  may  be  granted  without  the  rcverfion,  and 
although  the  reverfion  be  granted,  the  fervices,  by  fpecial  words,  may  be 
exceptedf. 

IT  will  be  now  proper  to  fpeak  of  the  remedy  the  reverfioner  hath  for  the 
recovery  of  his  fervices,  if  they  are  not  paid.  In  the  antient  times  the  te- 
nant was,  at  all  the  due  times,  at  his  peril  obliged  to  perform  his  fervice  ; 
for  as  each  the  finaHeft  failure  was  a  breach  of  his  fealty,  his  tenancy  was 
thereby  abfolutely  forfeited,  and  this  long  continued  to  be  the  cafe  in  mili- 
tary tenures.  But  as  the  defence  of  the  realm  was  not  concerned  in  the 
focage  holdings,  but  only  the  immediate  intereft  of  the  lord,  it  was  thought 
too  hard,  that  every,  perhaps  involuntary  omiilion,  mould  induce  an  ab- 
folute  forfeiture  ;  when  the  lord,  where  his  dues  were  certain,  might  receive 
an  adequate  recompence.  Cuftom,  then,  introduced  the  method  of  diftrefs^ 
in  imitation  of  the  Roman  law,  as  the  proper  method  to  recover  an  equiva- 
lent for  the  damages  he  fuftained  by  the  non-performance  of  the  duties. 
And  afterwards,  when  the  perfonal  fervice  of  the  military  tenants  came  to 
be  commuted  into  a  fum  of  money  called  efcuage^  diflrefs  came  to  be  the 
regular  method  of  recovering  that  and  the  other  fruits  of  the  military  tenure  ; 
the  damage  the  lord  fuftained  being  now  capable  of  a  reduction  to  a  cer- 
tainty \ 

N  THE 

f  Coke  on  Littleton,  lib.  2.  chap.  12.  §  215. 

|  Madox,  Antiquities  of  the  Excheq.  vol.  i.  p.  652. 


9$  LECTURES     ON     THE  LECT.  10. 

THE  introduction  of  diftrefs  on  focage  tenants  was  thus  :  When  the  ab- 
folute  forfeiture  was  thought  too  fevere,  the  fir  ft  ftep  was,  that  the  lord 
fhould  enter,  and  hold  the  lands  till  his  tenant  had  fatisfied  him  as  to  his 
damages  ;  but  as  this  feizure  frequently  difabled  the  tenant  from  making 
.:-  that  fatisfaction,  efpeeially  if  he  had  no  other  lands,  this,  after  fome  time, 
was  thought  dill  too  rigorous,  and  in  its  (lead  was  fubftituted  the  feizure  of 
the  cattle,  and  other  moveables  found  on  the  land,  and  the  detention  of 
them  as  a  pledge,  until  the  damages  were  anfwered  ;  which  is  what  we  call 
dlftraining.  This  was  a  fufficient  fecurity  to  the  lord,  as  it  rarely  happened 
but  that  there  was  fufficient  found  to  anfwer  his  demand  for  one  failure ;  and 
the  tenant  was  not  (as  not  being  deprived  of  his  pofieflion)  reduced  to  an 
incapacity  of  paying  his  rent  of  fervices,  and  thereby  recovering  his  pled- 
ges. Hence  all  feudal  rents,  or,  as  our  law  calls  them,  rent  fervices,  (be- 
ing the  fervice  the  tenant  pays  to.  the  lord,  in  confideration  of  the  land  he 
holds  from  him)  are  diftrainable  f . 

But  there  was  another  fpecies  of  rents  in  our  law  not  diftrainable ;  which, 
therefore  was  called  redditus  ficcus^  or  rent  feck*  This  was  not  a  feudal  fer- 
vice, not  being  paid  from  a  tenant  to  his  lord,  and  was  thus  :  When  a 
man,  keeping  ftill  his  land  in  himfelf,  grants  a  rent  thereout  to  a  ftranger, 
the  grantor  is  juftly  bound  by  his  grantee;  but  the  grantee,  not  being  his 
lord,  cannot  have  this  remedy.  For  the  remedy  of  diftrefs  being  fubftituted 
in  the  place  of  the  lord's  right  of  entry,  could  not  be  extended  to  a 
ftranger,  who  never  had  that  right.  And  this  v/as  originally  the  only  kind 
of  rent  feck ;  but  the  ftatute  called  quia  cmptores  terrarum,  introduced  ano* 
ther  fpecies  of  rents  not  diftrainable,  by  converting  rent  fervices  into  rents 
feck.  The  liberty  of  alienation  without  the  eonfent  of  the  lords  having  been 
allowed  before  that  ftatute,  it  became  cuftomary  for  a  tenant  who  fold  his 
land,  and  parted  with  his  whole  eftate  in  it,  to  referve  the  tenure  of  the 
vendee,  not  to  his  fupperior  lord  and  his  heirs,  but  to  himfelf  and  his  heirs  -r 
whereby  he  retained  many  advantages  to  himfelf,  by  continuing  the  vendee's 
lord,  fuch  as  the  right  of  efcheat,  if  the  tenant  died  without  heirs,  and  the 
benefit  of  the  wardfliip  and  marriage,  if  it  was  held  by  knight's  fervice. 
Now  a  rent  refer ved  upon  fueh  a  fale  to  the  vender,  was,  as  he  continued 
the  vendee's  lord,  a  rent  fervice,  and  confequently  diftrainable  J. 

BUT 

f  Coke  on  Littleton,  lib.  2.  chap,  12.  \  Ibid. 


LF.CT.  TO.  L  A  W  S    OF    E  N  G  L  A  N  1).  99 

BUT  this  practice,  though  highly  ufeful  to  the  fellers,  was  of  confu! 
detriment,  not  only  to  their  lords,  who  thereby  frequently  lofl  the  fruits  of 
their  tenures,  but  indeed  to  the  whole  military  policy  of  the  kingdo  r..     1 
enacted,  therefore,  in  the  eighteenth  of  F.d\vard  t!.  fta- 

tute  above  mentioned,  that  whenevv  the 

alienee  (hould  not  hold  from  him,  and  be  his  tenant,  but  from  the  fupcrior 
lord,   and  be  the  lord's  tenant  direclly  ;  and  that   by  the  lame   fervices,  by 
which  the  alienor  had  holden.     The  alienor,  then,  by  this  flatute,  ccalin 
be  lord,  and  his  right  of  reverfion  clearly  gone,  if  he  relervcs  a  rent  on  fuch 
alienation,  he  cannot  diltrain  for  it,  and  it  is  a  rent  feck, 

THESE  rents  feck,  therefore,  were  of  two  kinds,  one  arifmg  by  grant, 
which  was  the  mofl  antient,  the  other  by  refervation,  when  a  man  aliened 
his  whole  cflatc.  For  if  the  whole  eflate  was  not  gone,  but  a  rever- 
fion remained  in  him,  a  rent  referred  was  dill,  on  account  of  that  rever- 
fion, a  rent  fervice;  as  if  A.  gave  lands  to  B.  and  the  heirs  of  his  body,  re- 
ferving  rent.  As  this  cflate  tail,  although  it  might  continue  for  ever,  yet 
was  capable  of  determination  by  the  failure  of  that  ifiue,  fuch  rent  was  dif- 
trainable,  for  that  reafon,  and  alfo  becaufe,  by  the  flatute  which  gave 
force  to  fuch  eflates  tail,  the  reverfion  was  faved  to  the  donor.  But  if  he 
had  made  a  leafe  of  life  or  years,  or  a  gift  in  tail,  and  had,  at  the  fame 
time,  conveyed  over  the  remainder  in  fee,  fo  that  his  reverfion  was  gone,  a 
rent  referved  on  fuch  a  grant  vt as  feck. 

THE  inconvenience  attending  thefe  rents  feck,  in  their  not  being  diflrain- 
able,  introduced  another  fpecies  of  rents  called  rent  charges.  Thefe  are 
rents  feck,  armed  with  a  power  of  diflrefs  by  the  fpecial  agreement  of  the 
parties  ;  and  are  of  two  kinds,  as  the  former  are  created  either  by  grant, 
or  refervation.  Thofe  by  grant,  which  were  the  only  fpecies  of  rent  charges 
before  the  flatute,  were  thus ;  as  if  I  grant  out  of  my  lands,  keeping  them 
(lill  in  myfelf,  a  rent  for  years,  life,  fee  tail,  or  fee  fimple,  and  give  my 
grantee  a  power  to  enter  and  diflrain  for  the  rent.  It  will  be  by  refervation ; 
if  I  referve  to  myfelf  a  rent  upon  a  conveyance  in  fee  fimple,  or  upon  a  gift 
in  tail  with  a  remainder  over  in  fee,  or  upon  a  leafe  for  life  or  years,  with  a 
remainder  over  in  fee,  and  it  is  covenanted  that  I  fhall  have  a  right  to  enter 
and  diflrain  for  the  rent.  The  power  of  diflrefs,  therefore,  in  rent  charges 

N  2  is 


ioo  LECTURES.    ON     THE  LECT.  10, 

is  good  only  by  the  exprefs  provifion  of  the  parties,  not  by  the  force  of  the 
general  lawf . 

ANTIENTLY  it  was  a  doubt  whether  a  rent  charge  could  be  referred  upon 
a  deed  poll;  to  underftand  which,  it  will  be  necefiary  to  explain  the  difference 
between  a  deed  poll  and  an  indenture.  A  deed  poll  is  a  grant  from  one  man 
to  another,  and  is  all  and  every  part  of  it  the  act  and  words  of  the  grantor 
only  ;  and  therefore  the  deed  belongs  to  the  grantee,  and  there  is  no  coun- 
terpart in  the  hands  of  the  grantor;  becaufe  the  grantee  binds  himfeff  to 
nothing  towards  him.  Whereas,  in  an  indenture,  every  claufe  is  the  aft 
and  words  of  both.  They  are  mutually  bound  to  each  other,  and  therefore 
there  is  a  counterpart  in  the  hands  of  each  party.  Now  if  A.  by  deed  poll, 
granted  lands  in  fee  to  B.  referving  rent,  with  a  claufe  of  diftrefs,  it  was 
doubted  whether  this  claufe  was  not  void,  and  the  rent  a  rent  feck  ;  be- 
caufe as  the  lands  by  A's  grant  was  in  B.  it  was  apprehended  they  could  not 
be  charged  with  it  without  an  exprefs  covenant  from  him ;  as  in  the  deed 
poll  he  was  a  party  merely  pailive.  But  it  is  now  held,  and  that  very  equi- 
tably, that  fuch  a  refervation  can  raife  a  good  rent-charge  ;  for  his  accept* 
ance  of  the  deed  upon  the  delivery  is  an  aft  fufficient  to  mew  his  aflent  to 
take  it  on  the  terms  therein  contained  ;  and  nothing  can  be  more  reafonable 
than  that  whofoever  takes  a  benefit  mail  take  it  under  fuch  conditions,  and 
no  other  than  fuch  as  the  donor  intended. 

THUS  have  I  endeavoured  to  explain  the  nature  of  the  three  feveral  kinds 
of  rents  in  our  law,  of  which  only  rent  fervice  is  properly  feudal ;  but  upon 
account  of  the  affinity  of  their  nature,  I  thought  proper  to  join  them  here. 
It  will  be  proper  now  to  fay  fomething  concerning  the  nature  of  diftrefs^  as  it 
was  the  remedy  for  recovering  the  feudal  duties  in  thefe  kingdoms. 

DISTRESSES  were  not  only  taken  for  rents,  and  other  fervices  referved, 
but  alfo  to  oblige  perfons  to  appear  in  courts  of  juftice,  or  to  raife  fines,  and 
amerciaments  inflicted  on  them.  This  likewife  arofe  from  the  feudal  law, 
as  by  that  the  doing  fuit  and  fervice  at  the  lord's  court  was  one  of  the  duties 
attendant  on  fealty. 

BUT  there  is  another  kind  of  diftrefs  allowed  by  our  law,  arifing  neither 
from  the  feudal  contract,  nor  the  exprefs  ftipulation  of  the  parties,  but 

from 
•}•  Coke,  ut  fupra. 


LF.CT.  10.  LAWS    OF    ENGLAND.  101 

from  the  deliflum,  or  negligence  of  a  ftranger.  It  is  called  a  di/lrcfs  for  da- 
mage feafant,  and  is  a  feizure  of  the  cattle,  or  any  other  move  able  of  a 
ftrangcr,  trefpafling  upon  or  damaging  my  ground.  The  law  in  this  cafe 
will  not  put  me  to  my  aftion  againft  the  proprietor,  whom  perhaps  1  may 
never  difcover ;  but  has  provided  a  fc/iinum  rcmcdium  for  me,  by  wa\ 
diftrefs ;  and  this  diftrefs  is  more  privileged  than  others,  for  it  may  be- 
taken in  the  night-time,  which  other  diftrefies  cannot ;  becaufc,  otherwife, 
the  cattle  might  efcape,  and  the  goods  be  removed,  and  fo  the  party  inju- 
red remain  without  remedy. 

MANY  and  grievous  were  the  extortions  and  oppreflions  of  the  antient 
Englifh  lords  in  their  taking  diftrefles,  during  the  troublcfome  reign  of  Hen- 
ry the  Third,  for  the  remedying  which  many  wife  regulations  were  made  by 
the  ftatute  of  Marlebridge  and  others.  For  they  not  only  diftrained  in  a 
moft  unreafonable  manner  for  the  fmallefl  duties,  but  diftrained  where  no- 
thing was  due  ;  and  frequently  even  out  of  their  fees  ;  and  to  deprive  the 
parties  injured  of  legal  remedy,  drove  them  into  another  county,  or  inclofed 
them  iii  a  caftle,  or  would  not  fuffer  their-  bailiffs  to  permit  a  replevin  f. 

SINCE  Iain  on  this  head  of  diftrefles,  it  will  be  proper  to  make  a  few 
obfervations,  what  may  be  legally  diftrained,  when,  and  where,  and  how  a 
diftrefs  is  to  be  demeaned,  and  what  remedy  the  perfon  wrongfully  diftrauv 
ed  hath  to  recover  his  property. 

FIRST  then,  nothing  can  be  diftrained  but  moveables,  and  fuch  as  may 
be  reftored  in  the  fame  plight.  For  the  diftrefs  is  in  the  nature  of  a  pledge, 
to  be  reftored  on  due  fatisfa&ion  made ;  therefore  nothing  fixed  to  the  free- 
hold is  diftrainable,  as  doors,. windows,  furnaces,  &c.  for  thefe  being  af- 
fixed thereto,  are  part  of  the  freehold,  and  cannot  be  feparated  thence 
without  damage.  Therefore,  a  fmith's  anvil,  though  not  actually  fixed,  or 
a  millftone  removed  in  order  to  be  picked,  are  not  fubjecl  to  diftrefs  ;  for 
the  one  is,  in  law,  ftill  part  of  the  (hop,  as -the  other  is  of  the  mill.  Hence, 
likewife,  money  is  not  diftrainable,  unlefs  it  be  in  a  bag ;  becaufe,  other- 
wife,  it  cannot  be  known,  fo  as  to  return  it  in  the  fame  plight.  For  the 

fame 

f  Madox,  Antiq.  of  the  Excheq.  chap.  13.    The  Statutes  at  Marlebridge,  ap.  Ruff-, 
head,  vol.  i.  p.  30.— 


LECTURES    ON     THE          LECT,  10. 

fame  reafon,  by  the  old  law,  corn  in  (heaves,  or  in  flacks,  or  in  a  barn,  or 
hay  in  cocks,  or  in  a  'loft,  could  net,  for  fear  of  damage  in  removing. 
That  however  hath  been  fmce  altered  by  ftatute,  but  corn  or  hay  on  a  cart 
-.could  be  di drained  by  the  old  law ;  for  they  being,  in  fuch  a  cafe,  found  in 
a  fituation  fit  for  removal,  might  be  tranfported  from  place  to  place  without 
any  probable  danger  of  damage,  or  diminution. 

SECONDLY,  The  inflruments  of  a  man's  livelihood,  as  the  tools  of  a  tradef- 
man,  the  books  of  a  fcholar,  the  plough-cattle  of  a  ploughman,  £c.  can- 
not be  diftrained  where  any  other  diftrefs  is  to  be  found;  and  this  for  the 
particular  fafety  and  benefit  of  individuals.  But  this  holds  not  in  the  cafe 
of  damage  feafant ;  for  there  the  identical  thing  that  did  the  trefpafs,  and 
;that  only,  muft  anfwer  for  it. 

THIRDLY,  Things  fent  to  public  places  of  trade  are  privileged,  for  the 
public  benefit  of  the  realm,  as  cattle  in  a  market,  corn  fent  to  a  mill,  cloth 
in  ataylor's  mop,  yarn  in  a  weaver's  houfe.  For  it  would  put  a  total  flop 
to  commerce  if  thefe  were  anfwerable  for  the  rents  of  fuch  places. 

FOURTHLY,  What  is  in  the  cuftody  of  law  is  not  diftrainable,  for  it  would 
be  an  abfurdity  that  a  man  mould  have  a  right  by  law,  to  take  things  out  of 
the  cuftody  of  the  law  itfelf,  fuch  as  goods  already  diftrained,  or  goods  taken 
in  execution,  or  feized  by  procefs  at  the  fuit  of  the  king. 

FIFTHLY,  Things  in  manual  pofleflion  of  another,  are,  for  the  time, 
privileged,  as  an  ax  in  a  man's  hand,  or  the  horfe  I  ride  on.  But  for 
damage  feafant,  as  I  faid  before,  every  thing  is  diftrainable  ;  for  the  thing 
itfelf  which  did  the  damage,  is  the  pledge  of  the  fatisfa&ion,  and  the  only 
one. 

NEXT  let  us  fee  bow  and  where  they  may  be  taken.  The  diftrefs,  then, 
mould  not  be  excefiive,  as  an  ox  mould  not  be  taken  for  twelve  pence,, 
where  other  fufficient  diftrefs  might  be  had,  or  two  (heep  where  one  was 
fufficient;  but  for  damage  feafant,  though  ever  fo -little,  the  whole  may  be 
taken ;  and  likewife  for  homage,  fealty,  or  the  wages  of  members  in  par- 
liament. As  the  intereit  of  the  whoie  community  is  concerned  in  thefe,  no 

diftrefs 


LECT.  10.  LAWS    op    ENGLAND.  103 

diftrefs  can  be  excefllvc.  No  diftrcfs  can  be  taken  in  the  king's  high 
for  it  is  privileged  for  the  public  ufc  of  the  nation.  Neither  can  any  diftrcft 
be  taken  by  night,  unlefs  for  damage  fcafant ;  for  as  no  tender  of  rent,  or 
other  duty,  can  be  made,  or  acceptance  enforced  but  in  the  day-time,  per- 
haps the  tenant  may,  in  fuch  cafe,  be  provided,  and  ready  to  t. 
his  duties  the  fucceeding  morning,  and  thereby  fave  his  chattels.  Laftly, 
by  the  common  law,  no  man  could  diftrain  out  of  his  fee,  unlefs  when  co- 
ming to  diftrain  he  had  the  view  of  them,  and  they  were  driven  off  to  pre- 
vent him.  But  this  hath  been  altered  by  ftatutc,  and  now  a  landlord  may  fol- 
low his  tenant's  cattle,  if  conveyed  by  his  leffee  off  the  land,  and  diftrain  them 
within  twenty  days. 

As  to  the  manner  of  demeaning  or  managing  the  diftrefs,  it  is  the  duty  of 
the  diftrainor  to  carry  them  to  a  pound,  that  they  may  be  in  the  cuftody  of 
the  law.  Pounds  are  of  two  kinds,  overt,  or  covert ;  the  one  for  living 
cattle,  the  other  for  other  goods  that  might  take  damage  by  the  weather. 
The  reafon  why  living  cattle  mould  regularly  be  put  into  a  pound  overt,  is, 
that,  as  they  are  but  a  pledge,  from  which,  in  itfelf,  the  taker  is  to  receive 
no  benefit ;  and  as  the  proprietor,  therefore,  muft  be  at  the  fole  expence  of 
feeding  them,  he  mould  have  the  freeft  accefs  to  them  for  that  purpofe ;  and, 
in  fuch  cafe,  if  they  perifh,  the  lofs  is  his,  j  but  if  they  be  put  into  a  covert 
pound,  there,  becaufe  the  owner  cannot  have  accefs,  the  taker  is  to  feed 
them,  and  anfwer  for  them  at  his  peril. 

IN  antient  times,  the  lords  ufed  to  drive  the  diftrefles  into  foreign  coun- 
ties, whereby  the  tenants  knew  not  where  to  refort  to  feed  their  beafts.  This 
was  forbidden  by  Marlebridge,  cap.  4.  However,  that  aft  received  this 
conftruftion,  that  if  a  manor  lay  in  two  counties,  and  its  pound  in  one  of 
them,  the  lord  might  diftrarn  in  the  other  county,  and  impound  them  in 
his  manor  pound ;  becaufe  the  tenant,  by  attending  the  manor  court,  was 
prefumed  to  know  every  thing  tranfafted  in  the  manor.  But  now,  by  later 
acts,  no  diftrefs  of  cattle  fhall  be  impounded  out  of  the  hundred,  or  barony 
where  taken,  except  in  a  pound  overt,  in  the  fame  county,  within  three 
miles  of  the  place  ;  nor  fhall  diftrefles  be  divided,  and  impounded  in  feveral 
places.  Dead  chattels  muft  be  impounded  likewife  within  three  miles, 

and 


i  o4  LECTURES     ON     THE  LECT.  10. 

and  that  in  a  pound  covert,  otherwife  the  taker  is  anfwerable  for  them,  if 
damaged  or  ftelen. 

As  to  the  remedy  for  taking  an  unjuft  diftrefs,  the  tenant  might,  if  there 
was  nothing  due,  refcue  them  before  they  were  put  in  pound,  and  juftify 
it ;  but  when  once  impounded,  they  were  in  the  cuflody  of  the  law,  and 
muft  be  delivered  by  law.  Or  if  there  was  any  thing  due,  he  might,  be- 
fore they  were  impounded,  make  a  tender  of  fatisfa&ion ;  which,  though 
the  caption  was  juft,  rendered  the  detention  unlawful ;  and  therefore  if  the 
beads,  after  fuch  tender,  were  put  in  pound,  and  died  there,  the  taker 
was  anfwerable. 

WHEN  the  goods  were  once  impounded,  the  remedy  -was  by  replevin^ 
-which  is  a  judicial  writ  out  of  Chancery,  directed  to  the  fheriff,  who  is 
judge  in  this  cafe,  complaining  of  the  unjuft  taking  and  detention,  and 
commanding  the  fheriff  to  deliver  them  back  to  the  owner,  upon  fecurity 
given  to  make  out  the  irijuftice  of  the  taking  or  detention,  or  elfe  to  return 
the  goods  and  chattels. 

BUT  this  method  of  replevin,  by  writ  out  of  Chancery,  was  very  inconve- 
nient to  the  remote  parts  of  the  kingdom;  as  the  owner  might  be  put  to 
extraordinary  expence  and  trouble,  in  maintaining  his  cattle  for  a  long 
time.     Hence  it  was  provided,  by  the  ftatute  of  Marlebridge,  cap.  21.  Quod 
fi  Averia  alicujus  capiantur^  <&  injufte  detlneantur^  vicecomes  poft  querimoniam 
ftbifaflam,  ea  fine  impedimento  vel  contmdiftione  ejus  qui  difta  Averia  ceperit^ 
ddiberare  pojfit\. 

THIS  impowered  the  fheriff  to  make  replevins  without  writ,  upon  the 
plaint  of  the  plaintiff  in  replevin ;  and  this  he  could  do  out  of  his  county 
court,  becaufe,  as  that  was  held  only  from  month  to  month,  were  it  other- 
wife,  the  delay  might  be  as  great  as  in  the  cafe  of  a  writ  of  replevin  ;  but 
then  the  fheriff,  in  order  to  lay  the  foundation  of  the  fuit,  muft  enter  the 
plaint  the  next  county  court,  that  it  may  appear  on  the  rolls  thereof. 

THE  fheriff's  duty  then  was,  in  the  firft  place,  to  take  fufficient  fecurity 
ad  profequendum,  that  is,  that  the  plaintiff  mould  make  out,  in  due  courfe 

of 
f  Ruffhead,  vol.  i.  p.  37. 


LECT.  10.          LAWS     OF     ENGLAND.         105 

of  law,  the  jufl.icc  of  his  writ  or  plaint,  that  is,  that  the  cattle  or  goods  were 
cither  taken,  or  detained  unjulll).     He  wa-;  ulfo  to  take  K  curity  de  rctorno 
b^ibcnJo,  that  is,  in  cafe  he  failed,  that  he  would  return  the  lan.e  dHtrcfs, 
it  might  be  delivered  to  the  taker;  and  this  is  by  the  (tan.  Veft.  2.; 

and  he  generally,  likewife,  took  fecurity  to  indemnify  himfelf  from  any 
adion  that  might  be  brought  againft  him.  And  then  it  was  his  duty  im- 
mediately to  deliver  the  diflrefs  to  the  plaintiff  in  replevin. 

THEN  it  lies  on  the  taker  or  defendant  in  replevin  to  avow,  that  is,  to  fet 
forth  the  reafons  of  his  caption,  to  which  the  plaintiff"  replies  ;  and  fo  the 
juflice  of  the  caufe  comes  into  qucftion,  to  be  legally  determined.  Thus 
much  is  fufficient,  at  the  prefent,  to  (hew  the  remedy  the  lord  hath  for  his 
fervices,  by  virtue  of  his  feignory*  and  how  his  tenant  is  to  defend  himfctf 
if  unjullly  diftrcflcd  f . 

I  MIGHT  here  treat  of  another  fruit  of  the  lord's  feignory,  which  is  the 
right  of  efcbcat,  or  the  lands  falling  back  to  the  lord,  either  for  the  deliftum 
of  the  tenant,  or  the  failure  of  blood ;  but  as,  to  underfland  this  laft  pro- 
perly, we  muft  know  who  are  inheritable,  it  will  be  more  proper  to  defer 
it  till  after  we  have  treated  of  inheritances. 

\  Glanvil,  lib.  9.  c.  8.  lib.  10.  c.  3.  lib.ir.  04. 


O  LECTURE 


Io6  L  E  C  T  U  R  E  S    ON     THE  LECT.  ir. 


LECTURE       XL 

The  manner  in  'which  eft  at  es  for  life  came  to  be  enlarged  into  defcendible  eftatcs 
— The  nature  of  Reliefs — Feudal  opprejfions — The  admiffion  of  allodial  lands 
into  the  feudal  policy — The  ex  ten/ion  of  the  feudal  fyjiem  in  France- 

THE  feudal  lands  having  been  changed  by  degrees  from  tenancies  for 
years  into  permanent  grants  for  life,  partly  by  the  neceflities,  and 
partly  by  the  favour  of  the  lords,  the  matter  did  not  flop  here ;  but,  to  the 
advantage  of  the  vaiTals,  their  rights  were  continually  gaining  ground,  and 
infenfibly  extending  themfelves,  to  a  durable  continuance  in  the  fame  family. 
To  this,  undoubtedly,  the  number  of  allodial  eftates,  which  were  eflates  of 
inheritance  in  the  hands  of  the  Romans,  greatly  contributed.  For  it  is  not 
to  be  imagined  that  it  could  be  an  agreeable  fpeftacle  to  the  conquerors, 
•when  once  they  were  fettled,  and  fecured  in  the  pofleffion  of  the  country, 
to  behold  their  pofterity  in  a  more  precarious  fituation,  with  regard  to  pro- 
perty, than  the  vanquimed  were.  It  is  true,  as  by  their  conftitution  the 
lord  was  obliged  to  provide  every  gentleman,  that  is,  every  one  of  their  na- 
tion, unlefs  he  proved  unworthy,  with  a  benefice,  there  was  no  danger  of 
their  iffue  not  being  fuppiied,  in  fome  degree  or  other.  But  this  did  not  fa- 
tisfy  them  f. 

THEIR  roving  manner  of  life  being  antiquated,  and  the  practice  of  re- 
moving them  from  place  to  place  every  year  being  fuperfeded  by  gifts  for 
life,  the  pofieffors,  by  habitude,  became  fond  of  their  dwellings,  and  no 
longer  contented  with  bare  neceffaries,  fludied  to  render  their  fituation 
commodious  and  agreeable.  They  built  houfes  of  flrength  and  conveni- 
ence, and  by  their  focage,  tenants  and  villains  planted  and  improved  their 
lands.  And  now  it  began  to  be  thought  fevere,  that  the  benefit  of  their 
improvements,  and  the  fruit  of  their  and  their  dependants  toil  and  labour, 
ihould  go  to  flrangers,  or  even  to  the  lord  himfelf.  For  before  this  time 

it 

f  Houard,  Anciennes  loix  des  Francois  confervees  dans  les  coutumes  Angloifes,  torn.  I.. 

p*  32.  et  feq.     Craig,  lib.  i.  dieg.  4. 


T.  ii.  LAWS    OF    ENGLAND. 

it   had  began,  and  was  now  grown  into  a  common  ,r  the  1- 

\vlicn  thc-y  gave  an  eltate  lor  life,  not  to  content  thcmiclvca  merely  with 
future  lervice,  but  to  exact,  at  tlic  time  of  their  invcftiture,  an  honorary 
from  the  tenant  ;  and  this,  being  but  moderate,  was  generally  complied 
•with,  in  order  to  gain  a  permanent  cflate.  The  intereft  of  the  ftate,  which 
was  concerned  in  the  improvement  of  particulars,  required  alfo  a  preference 
of  the  dcfcendants  of  thofe  that  made  them.  It  is  no  wonder,  therefore, 
that  it  grew  to  be  a  maxim,  and  univerfal  opinion  among  thcfe  people,  that 
the  not  continuing  the  fon  in  the  pofleflion  of  his  deceafed  father,  though  it 
was  in  the  lord's  power  to  remove  him,  was  a  great  hardmip,  and  an  unwor- 
thy aci  in  the  Lord  f . 

WITH  thefe  general  fentiments,  the  lords,  for  their  own  intereft,  were 
obliged  to  comply,  and  efpecially  the  kings;  who,  by  the  frequent  divif 
of  the  monarchy  in  France,  had  competitors  to  guard  againlb;  and  were, 
therefore,  enforced  to  attach  their  vafTals  to  them  in  the  ftrongeft  manner, 
by  complying  with  their  inclinations.  The  fons,  therefore,  or  one  of  them, 
generally  fucceeded  ;  not  in  virtue  of  any  inherent  right,  but  by  a  new  gift, 
through  the  favour  of  the  lord.  For,  upon  the  death  of  his  vaflal,  the 
eftate  being  expired,  the  lord  took  pofiefiion,  and,  upon  receiving  a  fine, 
made  a  new  grant,  by  inveftiture,  as  of  a  new  eftate,  to  fuch  an  one  of  the 
fons  as  he  chofe  ;  or  he  divided  it  among  them  at  his  pleafure.  Thefe  fines 
for  continuing  the  fiefs  in  the  fame  family  were  called  relevia  or  reliefs, 
from  the  Latin  word  relevare,  which  fignified  a  fecond  lightening,  or  re- 
moving the  hand  of  the  lord,  who  had  feized  the  benefice  upon  its  vacancy, 
by  the  death  of  the  former  pofleflbr.  Hence  the  fon  had  no  right  to  con- 
tinue his  father's  pofleflion.  He  was  obliged  to  petition  for  a  new  invefti- 
ture, and  to  tender  his  relief,  and  himfelf  ready  to  take  the  oath  of  fealty. 
Thefe  reliefs  were  originally  paid  in  arms,  being  the  moft  valuable  property 
thefe  military  people  had,  and  afterwards  were  converted  into  money.  The 
quantum  was  originally  at  the  lord's  will ;  but  his  own  intereft,  from  the  mo- 
tives already  hinted,  commonly  prevented  him  from  being  exorbitant. 
This  preference  to  a  fucceflion  being  at  firft  a  matter  of  favour,  not  of  right, 
fome  vaflals,  by  degrees,  obtained  of  their  lord,  in  their  invcftitures,  an  ab- 

O  2  folutc 

f  Brafton,  lib.  2.  c.  36.     Huirte,  append.  2.      Du  Cange,  voc.  relevium.     Spelman, 
voc.  relevamen.     Reliq.  Spel.  p.  32,  33. 


io8  L  E  C  T  U  R  E  S     ON     THE  LECT.  n. 

folute  right  of  fuccemon  to  their  fons  ;  which  bound  the  lord  and  his  heir ; 
and  that  in  thefe  two  different  manners.  It  was  either  by  a  grant  to  the 
vaffal,  and  one  or  more  of  his  fons  by  name  ;  and  then  thofe  omitted  were 
excluded  ;  or  to  him  and  his  fons  generally ;  and  then,  by  the  feudal  law 
abroad,  they  were  all  admitted  to  enjoy  in  equal  portions,  in  imitation  of 
the  Roman  law,  which  admits  all  the  children  in  that  manner. 

BUT  the  words  of  the  grant  were  not  extended,  by  a  favourable  conftruc- 
tion,  to  take  in  grandfons  by  the  name  of  fons,  for  the  following  reafon. 
When  a  grant  was  made  to  a  man  and  one  or  more  of  his  fons  by  name,  the 
fons  were  originally,  at  the  time  of  the  invefliture,  capable,  or  fuppofed  ca- 
pable, by  the  lord's  admiffion,  of  doing  the  fervices  of  the  feud  ;  and  their 
ability  and  merit  was  in  the  contemplation  of  the  grantor,  and  part  of  the 
confideration  of  the  grant ;  and  where  it  was  given  to  a  man  and  his  fons 
generally,  the  law  prefumed  the  fame  thing,  the  fame  capacity  in  them,  the 
fame  intention  in  the  grantor.  But  in  the  cafe  of  grandfather  and  grandfon, 
the  law  could  not  prefume  fo,  it  being  contrary  to  the  ordinary  courfe  of 
nature,  that  both  mould,  at  the  time  of  inveftiture,  be  capable  of  doing  the 
fervices  in  perfon ;  and  therefore  the  grandfons,  unlefs  fpecially  provided 
for,  were  excluded  f . 

THUS  a  right  of  fuccemon  for  one  ftep  was  gained  by  the  exprefs  provi- 
fion  of  the  parties,  in  particular  cafes.  But  as  the  lord,  where  he  continu- 
ed the  fucceflion  out  of  favour,  entered  into  the  lands,  and  parted  not  with 
them  without  payment  of  his  relief  by  the  fon,  it  was  reafonable  in  this  cafe, 
where  he  pofitively  bound  himfelf,  that  thefe  advantages  mould  be  referved 
to  him.  Therefore  the  heir  could  not  enter,  but  was  obliged  to  petition  his 
lord  humiliter  and  devote,  and  to  offer  his  fealty  and  relief;  and  the  interefl 
of  the  lord  and  of  the  ftate  requiring  the  place  of  the  deceafed  vaffal  to  be 
fpeedily  filled  up,  a  year's  and  a  day's  time  was  allowed  for  this  application  ; 
within  which  fpace,  if  the  heir  did  not  apply,  unlefs  prevented  by  inevitable 
neceffity,  he  forfeited  his  right  of  fucceffion,  and  the  lord  was  at  liberty  to 
difpofe  of  it  to  a  flranger. 

RELIEFS, 

f  Fleta,  lib.  3.  c.  77.     Feud.  lib.  I.   tit.  I,     Dalrymple  on  feudal  property,  ch.  5. 
Madox,  antiq.  of  the  Exchequer,  ch.  10.  §  4, 


LECT.  n.  L  AWS    OF    E  NG  L  AN  D.  109 

Hri.ii.is,  however,  being,  in  their  original  creation,  arbitrary,  it  fliould 
\\-cm  to  be  in  the  power  of  the  lord,  where  the  quantity  was  not  fpccified  in 
the  tenor  of  the  inveititure,  to  defeat  his  own  grant,  by  demanding,  under 
that  name,  more  than  the  value  of  the  land,  or  othcrwifc  grievoufly  to 
trefs  his  tenant.  This,  in  England  particularly,  occafioned  many  ftruggles. 
It  appears  from  the  laws  of  William  the  Conqueror,  that,  in  thoi 
the-  reliefs  were  fixed  according  to  the  dillercnt  ranks  of  the  pcrfons,  and 
paid  in  horfes  and  armour,  in  imitation  of  heriots  in  the  Saxon  times ;  but 
his  avaricious  and  tyrannical  fon  William  Rufus  laid  claim  to,  and  exacted 
arbitrary  reliefs,  to  the  great  difcontent  of  all,  and  to  the  impoverilhment  of 
many  of  his  fubjects  f .  This  was  redrefled  in  Henry  the  Firfl's  charter, 
where  the  firfl  chapter  fays,  Si  quis  baronum,  comiium^fi'vc  aliorum  qui  de  me 
tcnent  mortuusfuerit,  hens  funs  non  redimct  terrain  fuam  ficut  faciebat  tcmporc 

fratris  mei^fed  tegitima,  &  ccrta  rclcixitionc  rekvabit  eam^funilltcr  6'  hwiines 
baronum  meorum,  legitima,  &  certa  rclevatione  relevabunt  temis  fuas  de  dominis 

Jills  \.  Henry  the  Firft,  however,  was  a  man  little  inclined  to  keep  any  en- 
gagements with  his  people  that  he  could  free  himfelf  from  ;  and  therefore 
reliefs  went  on  in  an  arbitrary  way,  for  the  inoft  part,  under  him,  though 
not  in  fo  oppreffive  and  extorting  a  manner  as  his  brother  William  had  ufed. 
For  in  his  grandfon  Henry  the  Second's  reign,  in  whofe  time  the  feudal 
payments  became  generally  converted  into  money,  we  find,  from  Glanvillc, 
that  the  relief  of  a  knight's  fee,  indeed,  was  reduced  to  a  certainty,  but 
that  of  a  noble  fee  was  not.  Dicitur  autem  ratiunabile  relevium  alicujus^juxta 
confuctudinem  regni,  defeodo  unius  mi  lit  is ,  centum  folidos  ; — de  baroniis  vcro  mini 
cerium  ftatutum  eft,  quia  juxta  <voluntatcm  cir  mifericordiam  domini  rcgis  folent 
baronia  capitals*  de  rcleviis  fuis  domino  regi  fatisfaccre  j|. 

IT  feems  a  little  odd,  that  the  lower  military  people  had  got  fuch  an  ad- 
vantage above  the  great  and  powerful  lords  j  but  this  may  be  accounted  for 
from  the  number  of  the  knights,  who  made  the  flrength  of  the  kingdom, 
.and  were  not  to  be  difobliged  j  and  alfo  from  the  precarious  fituation  many 
of  the  great  lords  were  in,  who  had  been  attached  to  the  caufe  of  Stephen. 
However,  the  wifdom  and  moderation  of  this  great  prince  was  fuch,  that  \ve 
find  no  complaints  on  this  head,  during  his  reign,  or  that  of  his  fon  Richard  ; 

but 

f  Wright  on  tenures,  p.  95.  96. 

$  L  L.  Hen.  r.  c.  i. 
\  Lib.  9.  c.  4. 


no  L  E  C  T  U  R  E  S    ON    THE  LECT.  n. 

but  when  John  afcended  the  throne,  a  prince  who  hated,  and  was  hated  by 
his  nobles,  the  old  oppreflions  were  renewed,  and  aggravated  to  fuch  a  de- 
gree, that  the  remedying  thereof  is  the  firfl  article  of  temporal  concern  in 
Magna  Charta  f . 

THERE  it  is  provided,  Si  quis  comiium,  •oel  baronum  noftrorum^Jivs  aliorum 
tenentium  de  nobls  in  capite  per  fervitium  mil/tare,  mortuus  fuerlt  ^  &  cumdecef- 
ferit,  heres  ejits  plena  atatis  fucrit  6J  relevium  nobis  debeat,  habeat  heredlta- 
mentumfuum  per  antiqiium  rckvlum  ;  fciHcet,  beres,  <uel  heredes  comitis  de  comi- 
tatu  integro  per  centum  Iwras^  heres  vel  heredes  baronls  de  baronia  Integra  per 
centum  marcas  ;  heres  vet  heredes  militis  de  feodo  mllitls  Integra  per  centum  fe- 
lidos  ad  plus  :  Et  qui  minus  habuerit  minus  det^  fecimdum  antiquam  confuetu* 
dinem  feodorum  J.  And  now  were  all  reliefs  reduced  to  a  certain  fum  of  mo- 
ney, namely,  the  fourth  part  of  what  was  then  reckoned  the  value  of  the 
inheritance;  for  a  knight's  fee  was  then  reckoned  at  twenty  pounds,  a  ba- 
rony at  four  hundred  marks,  and  an  earldom  at  four  hundred  pounds  per 
annum.  And  by  the  gradual  finking  of  the  value  of  money,  and  the  rifmg 
of  lands,  thefe  payments  continuing  the  fame,  came  in  a  few  centuries  to  be 
not  the  twentieth  part  of  the  value.  We  fee  by  the  words  per  antiquum  re- 
le-viwn,  &  fccundum  antiquam  confuetudlnem  feodorum^  how  careful  the  lords 
were  to  have  this  certainty  of  relief  acknowledged  as  their  antient  right, 
and  not  to  accept  it  as  a  conceffion  from  the  crown.  When  the  military 
lords  began,  in  imitation  of  the  eflates  they  themfelves  had,  to  grant  inheri- 
tances to  their  focage  tenants,  they  likewife  exacted,  in  the  nature  of  a  relief, 
from  every  new  poffeflbr  a  year's  value  ;  or,  in  other  words,  the  rent  of  the 
firft  year  was  doubled.  For  a  year's  value  was  what  was,  in  France,  at  the 
beginning,  paid  for  military  tenures,  by  the  name  of  rachat^  or  repurcbafe, 
anfwering  to  our  relief,  until  at  length  they  were  reduced  to  a  certainty  in 
money  ;  and,  confequently,  from  the  fame  caufes  as  in  England,  though  re- 
maining nominally  the  fame,  they  funk  to  be  very  inconfiderable  ||. 

ESTATES  of  fucceffion,  as  I  obferved,  arofe  firft  from  private  grants,  and 
that  for  one  generation  only ;  but  they  were  continually  extending  to  fur- 
ther lengths,  and  encreafing  in  number ;  infomuch  that,  fiefs  falling  va- 
cant much  feldomer  than  before,  the  king  had  it  not  in  his  power  to  grati- 

fy 

f  Madox,  antiq.  of  the  Exchequer,  ch.  x, 
^  Ruffhead,  vol.  i.j>.  2. 
j|  Brafton,  lib.  2.  fol.  86. 


r.  IT.  LAWS    OF    ENGLAND.  in 

fy  hi  .ing  fnldiers  fo  frequently  as  he  fhould,  and  the  crown  was  con- 

•  ently  rnfeebled.  This  then  ftarted  the  notion  of  fuch  grants  being 
I  only  during  the  life  of  the  king  or  lord  who  made  them,  and  not 
binding  on  his  fucccflbrs.  Upon  this  plan,  Bruncchild,  in  her  rege: 
during  the  minority  of  her  infant  fon,  attempted  to  revoke  them,  and  ac- 
tually did  revoke  feveral ;  which  at  length  railed  that  ilamr,  and  caufcd  I 
revolution,  in  which  her  fon  and  hcrfelf  miferably  perifhed.  What  (hews 
the  violent  indignation  her  venturing  on  this  ftep  occafioned,  was  the  horrid 
manner  of  her  death,  that  of  being  torn  afundcr  by  four  wild  horfes.  Clo- 
thair  the  Second,  who  fuccceded,  was  wife  enough  by  law  to  confirm  thefe 
eftatcs ;  and  then,  namely  about  the  year  613,  the  former  doubt  was  re- 
moved, and  all  thefe  eftates  of  inheritance  confirmed  to  continue  againfl  the 
fucceflbr,  according  to  the  terms  of  the  original  inveftiture.  New  grants 
were  continually  made,  and  for  more  generations  than  had  been  formerly 
practifed.  But  yet  this  rule  of  defcent  was  not  general ;  but  all  grants,  un- 
lefs  heirs  were  fpecially  named,  were  but  for  life ;  as  it  is  in  our  law,  5n 
which  -zfeofment  to  a  man  for  ever,  is  but  an  eftate  for  life  for  want  of  words 
of  inheritance  f. 

WHAT  greatly  contributed  to  the  extending  thefe  grants  to  indefinite  ge- 
nerations, was  the  inclination  that  now  feized  the  Romans  and  Gauls  who 
held  allodial  lands  to  be  admitted  into  the  feudal  policy,  by  becoming  vaf- 
fals  to  the  king.  They  had  long  lain  under  very  humiliating  diftinctions. 
They  were  no  members  of  the  ftate.  The  lofs  of  their  lives,  and  other  in- 
juries, were  compenfated  only  by  half  the  fatisfaction  to  aFrank.  For  neglect, 
or  contumacy,  when  called  into  the  king's  courts,  they  were  reputed  guilty, 
and  forfeited  their  eftates  ;  whereas  a  Frank  was  only  imprifoned  to  oblige 
him  to  anfwer.  When  accufed  of  the  lighted  crimes,  they  were  put  to  thr 
ordeal;  whereas  the  Franks  were  only  fubjected  thereto  in  cafe  of  murder. 
And  many  other  were  the  diftinctions  between  the  allodial  and  feudal  te- 
nants. No  wonder  then  the  former  were  very  defirous  of  enrolling  them- 
felves  among  the  conquerors,  which  when  they  had  at  length  obtained, 
their  liberty  was  effected,  by  their  giving  their  allodial  lands,  or  a  part  of 
them,  to  the  king,  and  receiving  them  back,  fubject  to  the  feudal  rules. 
Now  were  they  immediate  vatfals  of  the  king,  and,  as  fuch,  became  Franks 

to 

f  Montefqnieu,  1'Efprit  de  Lobe,  liv.  31.  chap.  J. 


ii2  LECTURE  SON     THE  LECT.  n. 

to  all  intents  and  purpofes.  But  thefe  people  were  not  fo  foolifh,  nor  could 
it  be  expe&ed  from  them,  to  part  with  abfolute  inheritances,  and  take  back 
only  an  eftate  for  life.  They  infilled  upon  grants  for  a  perpetuity,  at  leaft 
for  as  long  as  the  iffue  male  of  the  perfon  refigning  lafted.  When  once 
thefe  donations  were  become  common,  we  may  be  affured  the  Franks  were 
very  ready  to  follow  the  example,  and  to  take  all  advantages  either  of  the 
favour,  or  the  weaknefs  of  their  kings  ;  and  to  fuch  a  number  did  thefe  in- 
heritances increafe,  that,  about  the  year  730,  the  kingdom  was  near  being 
loft  to  the  Saracens,  for  want  of  a  fufficient  number  of  beneficiary  or  life- 
eftates,  to  encourage  the  foldiery  f . 

AT  the  time  the  kings  of  France  were  merely  nominal,  and:  the  whole 
adminiflration  in  the  hands  of  the  malres  du  palais,  of  whom  the  fecond, 
who  had  obtained  this  unlimited  authority,  Charles  Martel,  was  fo  happy 
as  to  fave  the  kingdom  from  thofe  African  invaders  in  a  battle  near  Tours, 
wherein  they  were  routed  with  a  flaughter  almoft  incredible.  It  remained 
to  reward  the  victorious  foldiers,  who  were  at  leaft  as  much  animated  to 
their  exploits  by  his  previous  promifes,  as  by  their  affe&ion  to  the  antient 
conftitution  of  the  ftate,  which  was  now  in  truth  deftroyed,  the  kings  of  the 
royal  race  being  mere  phantoms,  whofe  names  he  and  his  father  had  made 
ufe  of  at  their  pleafure.  But  this  family  had  not  acquired  fufficient  weight 
and  authority  to  aft  as  mafters.  The  fund  of  lands,  out  of  which  benefi- 
ces had  been  formerly  given,  \vas  almoft  exhaufted,  and  the  major  part  of 
die  lands  that  were  not  ftill  allodial,  was  alienated  either  in  perpetuity  to  the 
church,  as  atonements  for  the  vices  of  the  former  kings,  or  what  was  near 
a  perpetuity  to  the  lords,  for  many  defcents.  Thefe  laft  he  could  not  de- 
fpoil.  They  were  too  firmly  eftablifhed  by  cuftom  and  law  ;  and  he  and  all. 
his  predecefibrs  had  paved  their  way  to  greatnefs,  by  fupporting  thefe  here- 
ditary grants  at  the  expence  of  the  crown.  Necefiity  therefore  obliged 
him  to  make  free  with  the  lands  of  the  church;  for  which,,  in  their  vifions-, 
they  lodged  him  in  a  chamber,  the  very  loweft  in  hell.  Of  thefe  lands  the 
greateft  part  he  converted  into  benefices  of  the  antient  kind,  for  life  only  j, 
and  by  means  of  the  number  of  thofe  new  ones,  added  to  the  old  ones,  that 
were  in  the  fame  ftate,  fome  kind  of  a  balance  was  formed ;  which  for  a 
time  fupported  the  government,  and  checked  the  growth  of  inheritances.. 

But 

f  St.  Amand  on  the  legiflative  po\Ver  of  England,  p.  27.     Montefyuieu,  1'Efprit  des- 
kix,  liv.  31.  ch.  8.     Dr  Robertfon's  Charles  V.  vol.  i..p.  222. 


LECT.  IT.          LAWS    OF    ENGLAND.  113 

But  it  is  remarkable,  that,  of  thofe  church  lands,  feveral  he  gave  as  allodial 
ones.  I  will  not  pretend  to  fay,  that,  in  this  diftincYion,  he  confidercd  the 
anticnt  nature  of  the  lands  of  the  churcl  of  \vhu-h  came  from  feudal, 

others  from  allodial  proprietors.  It  fecms  rather  probable,  as  the  allodial 
cftates  were  greatly  decrcafed,  by  being  turned  into  fiefs  of  inheritance,  he 
was  inclinable  to  form  a  kind  of  equality  between  the  feudal  tenants,  the 
beneficiaries,  and  the  allodians  ;  that,  by  managing  them,  he  might  advance 
his  family  to  the  title,  as  well  as  power  of  royalty  ;  which  we  find  was  foon 
afterwards  accomplished  by  his  fon  Pepin  |. 

THE  policy  of  Pepin  and  his  fon  Charlemagne  correfponded  with  Charles 
Martel's  views.  The  former  allowed  the  continuance  of  inheritances  ac- 
cording to  the  original  provifion  in  the  creation,  but  were  much  fonder  of 

the  beneficiary  eflates,  and  Charlemagne  made  feveral  laws  to  prevent  his 
beneficiaries  from  converting  by  any  art  their  interefts  into  inheritances.  In 
his  time,  a  great  majority  of  eftates  were  benefices ;  but  this  I  prefume  is  not 
to  be  underftood  of  France  particularly,  where,  from  the  detail  before  men- 
tioned, it  could  fcarce  be,  but  of  his  whole  empire.  For  in  his  acquifitions, 
and  efpecially  in  Germany,  where  fuch  a  practice  was  agreeable  to  the  an- 
tient  cuftoms  of  the  natives,  fuch  a  regulation  was  conformable  to  the  found 
policy  of  his  father  and  grandfather ;  by  which  they  endeavoured  to  reftore 
the  fplendour  of  the  old  French  monarchy,  I  mean  with  exception  to  the 
large  gifts  he  gave  to  the  church  on  the  borders  of  the  infidels,  in  atone- 
ment for  his  grandfather's  facrilege,  and  in  hopes  of  converting  thofe  bar- 
barians, and  thereby  civilizing  them,  and  making  them  good  fubjeds. 

BUT  the  fucceflbrs  of  Charlemagne  had  neither  the  power  nor  the  un- 
derflanding  of  their  anccftors.  No  wonder  then,  that,  under  them,  the  ge- 
neral inclination  of  the  fubjefts  to  change  their  benefices  into  fiefs  gained 
ground.  The  divifion  of  the  empire,  and  frequent  wars  between  the  bro- 
thers, weakened  the  royal  authority,  and  ftrengthened  their  vafTals ;  who, 
at  the  times  of  their  kings  diftrefs,  were  rather  to  be  entreated  than  com- 
manded. In  the  time,  therefore,  of  his  grandfons,  we  find  laws,  that,  con- 

P  forming 

f  Mably, obfervations  fur  1'hUloire  de  la  France, torn.  I.  1. 1.  ch.  5.  and  6.  Montefquieu, 
1'Efprit  desloix,  liv.  31.  ch»9. 


ii4  LECTURES     ON     THE          LECT.  it. 

forming  to  the  inclination  of  the  vaiTals,  did  in  time  put  an  end  to  benefici- 
ary eftates,  holden  from  the  king  ;  opened  the  gate  to  fubinfeudations,  and 
all  its  extenfive  confequences ;  and  raifed  a  new  kind  of  polity  never  before 
feen  in  the  world,  the  feudal  one,  fuch  as  it  reigned  about  the  year  1050 
on  the  continent,  and  was  introduced  into  England  by  William  the  Con- 
queror f. 

I  SPEAK  of  the  times  of  Charles  the  Bald,  who  reigned  about  860.  One 
of  his  laws  gave  leave,  and  an  unlimited  one,  to  the  allodians,  to  fubmit 
themfelves  and  their  eftates,  in  the  nature  of  fiefs,  to  others  befides  the 
kings.  Nothing  could  contribute  more  to  the  weakening  of  the  royal 
power,  and  the  throwing  of  all  the  weight  into  the  baron's  fcale.  Before 
they  could  be  made  Franks,  only  by  becoming  the  immediate  vaffals  of 
the  king.  This  was  equally  for  the  public  benefit  of  the  (late,  the  king,  and 
the  allodians.  But  when  once  the  barrier  was  thrown  down,  in  thofe  times 
of  confufion,  the  allodians  were  glad  to  gain  the  protection  of  the  neigh- 
bouring lords,  and,  under  colour  thereof,  detached  themfelves  from  their 
former  fubjection  to  the  counts,  who  were  the  king's  officers  over  them. 

ANOTHER  law,  of  equal  confequence,  was  to  entitle  the  fee  of  a  benefi- 
ciary, who  had  only  an  eftate  for  life,  without  any  exprefs  agreement  for 
a  longer  continuance,  to  go  to  the  fon.  This  was  extorted  by  the  circum- 
ftances  of  the  times,  and  perhaps  then  was  thought  of  little  confequence,  as 
it  only  continued,  them  for  one  generation.  But  the  temper  and  general 
inclination  of  the  people  were  not  to  be  controuled.  Thofe  grants  that  had 
been  fo  long  as  two  generations  in  a  family,  it  was  fometimes  dangerous, 
always  invidious  not  to  continue ;  and  thus  the  fucceffors  often  obtained 
permanent  eftates,  when  nothing  lefs  was  intended  at  the  beginning.  And 
this  was  eafily  obtained,  as  the  ufe  of  letters  was  not  common  among  thcfe 
people,  and  their  charters  were,  by  frequent  rebellions,  liable  to  be  de- 
flroyed. 

THE  lail  law  I  fliall  mention,  is  that  declaring,  that  the  fons  of  counts, 
who  were  the  king's  officers  over  the  aUodianfa,  and  were  originally  for 

years, 

f  Spelman  on  feuds  and  tenures.  Mably,  obfervations  fur  1'hiftoire  de  France, 
torn.  i.  1.  2.  ch.  3.  4,  5,  6.  Montefquieu,  1'Efprit  des  loix,  liv.  31.  ch.  28,  29,  30,  31. 
Houard,  anciennes  loix  des  Francois,  liv.  I.  ch.  I.  Bafnage,  ccutume  de  Kormandie, 
torn.  i.  p.  146. 


r.  n.  L  A  WS    OF    K  \  I).  115 

,  after  for  lifV,  fhould  fuccecd  to  their  father.  'I  his  put  the  finishing 
flroke  to  the  benHieiary  eitat-.y.  For  though  thi ;,  m  I'.ppcarance,  was,  as 
the  former,  but  for  one  life,  and  conditionally  ;  yet,  from  the  prevailing 
principles,  it  \\as  impoflible  they  fhould  not  grow  up  into  inheritances.  And 
as  all  inheritances  were  growing  feudal  ones,  and  upon  thofc  conditions, 
and  no  others  given,  thefe  countie-  The  demcfnes  of  the 

crown  within  them  became  the  demefncs  of  the  count,  and  all  the  allo- 

diaries  were  now  become  his  fub-vaflals  f. 

1 

WE  are  come  to  the  dawn  of  a  ftri&ly  feudal  monarchy ;  and,  to  fliew 
the  gradation,  I  have,  in  this  ledture,  taken  in  a  great  compafs  of  time. 
But  before  I  proceed  further  downwards,  it  will  be  proper  to  return  a  : 
back  as  to  the  order  of  time,  and  to  fpeak  of  the  confequences  that  attend- 
ed the  introduction  of  eftates  of  inheritance.  Of  one  of  thcfe,  rc/icfs,  I 
have  already  fpoken  in  this  lefturc  j  but  there  are  many  others  that  mud 
be  taken  notice  of. 

f  See  the  authorities  quoted  above,  and  Seldcn's  titles  of  honour,  part  2.  chap.  5. 


Pa  LECTURE 


n6  L  E  C  T  U  R  E  S    ON    THE  LECT.  12. 


LECTURE         XII. 

Confequences  attending  the  Introduction  of  eftates  of  inheritance — The  incident  of 
homage — Differences  In  England  and  the  Continent,  'with  regard  to  the  cere- 
monies of  homage  and  fealty — The  fine  of  alienation — Attornment — Warran- 
ties— Wardjhip  in  chivalry. 

HAVING  already,  in  my  laft  lecture,  taken  notice  of  relief,  which 
fprung  up  immediately  with  eftates  of  inheritance,  and  was  their  im- 
mediate confequence,  it  is  proper  now  to  proceed  to  the  other  fruits  of  this 
tenure,  which  grew  up  not  fo  foon,  but  in  after  times :  and  the  firft  to  be 
confidered,  as  undoubtedly  the  next  to  relief,  if  not  coeval  with  it,  is  homage; 
which,  Littleton  fays,  is  the  moft  honourable  fervice  (that  is  with  refpect  to 
the  lord,  and  the  moft  humble  fervice,  that  is  with  refpeft  to  the  tenant, 
that  a  freeholder  can  do  to  his  lord)  as  upon  the  introduction  of  eftates  for 
life,  the  ceremony  of  fealty  was  introduced,  fo  was  it  thought  reafonable, 
when  a  further  ftep  was  taken,  that  of  continuing  them  to  heirs,  that  a  new 
ceremony  mould  be  invented,  diftinct  from  the  former ;  which  being  per- 
formed publicly,  in  the  prefence  of  the  pares  curia,  mould,  in  thofe  illiterate 
ages,  create  a  notoriety,  that  the  tenant  had  a  more  durable  eftate  than  a 
freehold.  The  manner  of  performing  homage  is  thus  diftinftly  defcribed 
by  Littleton.  When  the  tenant  mail  make  homage  to  his  lord,  he  mail  be 
ungirt,  (that  is,  unarmed)  and  his  head  uncovered,  and  his  lord  mail  fit, 
and  the  tenant  fhall  kneel  before  him  on  both  his  knees,  and  hold  his  hands 
jointly  together  between  the  hands  of  his  lord,  and  mall  fay,  Thus  I  become 
your  man  (from  which  word  homo,  homaglum,  and  homlnlum  are  derived) 
from  this  day  forward,  of  life  and  limb,  and  of  earthly  worjhip,  and  unto  you 
faall  be  true  and  faithful,  and  bear  pur  faith,  for  the  tenements  that  I  claim  to 
hold  of  you,  fa<ulng  the  faith  that  I  Give  to  our  f over  eign  lord  the  king  ;  and  then 
the  lord  fo  fitting  mall  kifs  him.  Thefe  are  the  words  of  Littleton,  and  they 
are  juft  in  the  cafe  he  puts  of  a  tenant  doing  homage  to  an  inferior  lord,  and 
who  had  no  prior  lord  ;  but  if  he  had  a  prior  lord,  or  the  homage  was  to  be 
done  to  the  king,  there  was  a  difference  in  the  form  j  for  if  the  tenant  had  a 

former 


LECT.  12.         LAWS     OP     ENGLAND.  117 

former  lord,  he  alfo  was  to  be  exccpted,  that  the  new  lord  might  have  no- 
tice of  the  tenant's  prior  obligation,  and  that  it  was  not  in  his  power  to  do 
abfolute  perfonal  fervices  at  all  times  to  him.  And  if  the  homage  was  done 
to  the  king,  who  acknowledged  no  fuperior,  then  the  exception  was  en- 
tirely omitted  ;  but  if  to  a  fubjeft,  it  was  fo  abfolutcly  ncceffary  that  an 
omiflion  of  it  was  looked  upon  as  an  attempt  againft  the  royal  dignity,  and 
done  in  difherifon  of  the  crown.  And  accordingly  we  find,  that  Edward 
the  Firft,  in  the  fixth  year  of  his  reign,  brought  an  action  of  ten  thoufand 
pounds  damages,  now  at  leaft  in  value  thirty  thoufand  pounds,  againfl  the 
bifliop  of  Exeter,  for  taking  homage  of  thirteen  of  his  bifhop's  vaflals, 
without  the  exception  of  the  king  j  and,  in  the  end,  judgment  was  given 
againft  the  bifhop  f. 

OUR  antient  authors  tell  us,  that  the  lands  for  which  the  homage  wa* 
done  ought  to  be  fpecified  in  the  doing  homage ;  and  the  reafon  given  is, 
Ne  in  captione  bomagii  contingat  dominum^  per  negligentiam,  decipi,  ve/  per  cr- 
rorem.  But  it  was  better  to  fay,  that  it  was  for  the  benefit  both  of  lord  and 
tenant,  and  for  the  information  of  the  pares  curias,  who  were  to  judge  in 
cafe  of  any  controverfy  between  them. 

IN  England  the  two  ceremonies  of  homage  and  fealty  were  kept  diftinft ; 
the  homage,  as  being  for  the  mofl  durable  eftate,  was  performed  firft,  and 
afterwards  the  fealty  ;  but,  on  the  continent,  at  leaft  in  fome  countries,  I 
find  they  were  blended  together,  by  the  homage  being  done  upon  oath. 

ANOTHER  difference  between  England  and  the  continent  was,  that,  in 
England,  no  homage  was  repeated  to  the  lord's  heir,  by  a  tenant  who  had 
himfelf  performed  it  to  the  anceftor,  but  homage  once  from  the  tenant  was 
fufficient  for  his  life  ;  whereas,  in  France,  new  homage  by  the  fame  tenant 
was  done  on  the  death  of  the  lord,  as  we  may  fee  plainly  by  many  inftan- 
ces,  in  the  cafe  of  the  kings  of  England  and  France,  for  the  lands  the  for- 
mer held  in  the  latter  country.  Homage  was  the  fynibol  of  a  drift  and  in- 
dilfoluble  bond  between  the  bloods  of  the  lord  and  tenant,  by  which  they, 
and  the  heirs  of  their  blood,  \vere  mutually  difabled  from  doing  any  thing  to 
the  prejudice  of  the  other  party.  The  tenant,  therefore,  could  not  alien, 

either 

f  Coke  on  Littleton,  lib.  ^,  ch.  I. 


n8  LECTURES     ON     THE  LECT.  12. 

cither  by  laft  will 'or  by  deed,  in  his  life -time,  without  the  previous  confent 
of  the  lord.  This  maxim  was  eftablimed  partly  in  favour  of  the  blood  of 
the  firft  tenant,  which  was,  in  fa£t,  often  the  confideration  of  the  original 
grant,  as  when  the  lord  gave  lands  in  marriage  with  his  daughter,  or  to  a 
fon  or  a  brother,  (and  even  where  it  was  not  in  truth  fo,  the  law  prefumed 
the  blood  of  the  firfl  tenant  was  in  contemplation  on  the  ftrength  of  this 
maxim,  fortes  creantur  fortibus  ct  bonis,  and  the  probability  that  a  gallant 
warrior  would,  by  a  proper  education,  qualify  his  fon  for  the  fame  profeffion) 
and  partly  alfo  in  favour  of  the  lord,  that  he  mould  not  be  obliged  to  re- 
ceive, as  his  tenant,  a  perfon  that  was  inexpert  in  war  ;  or  that,  if  qualified, 
was,  perhaps,  an  enemy  to  the  lord,  or  that  was  previoufly  vaffal  and  bound 
to  another  lord  who  was  an  enemy.  For  in  thofe  troublefome  times,  the 
power  of  the  crown  of  France,  where  thefe  rules  began,  being  greatly  di- 
minilhed,  every  lordlhip  made  a  little  kind  of  ftate  in  itfelf,  frequently  at 
open  war  ;  and  when  not  fo,  at  leafl  in  a  ftate  of  fufpicious  peace  with  its 
neighbours ;  and  from  this  ftate  of  things  it  happened,  that  the  word  feud 
has  come  in  our  common  language,  to  fignify  a  mortal  quarrel,  as  being  al- 
moft  infeparable  from  the  greater3  or  even  lelfer  fiefs  j- . 

IN  thofe  times,  the  lord,  when  things  grew  into  a  more  fettled  ftate,  took 
advantage  of  this  maxim,  that  the  tenant  fhould  not  alien  without  licence, 
and  the  tenants  readily  acquiefced,  under  the  fubfiftence  of  the  rule,  as  it 
permitted  them,  in  their  turn,  to  exaft  a  fine  from  their  under  tenants,  or 
the  alienees  of  fuch  in  all  cafes  of  fubalienation  ;  by  which  means  this  fine 
at  length  became  an  eftablimed  fruit  of  tenure.  In  England,  however,  it 
ceafed  in  the  cafe  of  lords  that  were  fubje&s  from  the  time  of  the  ftatute 
called  Quia  emptores  terrarum,.  which  gave  every  perfon  a  free  liberty  to  fell 
his  lands :  but  the  king  npt  being  named  in  that  ftatute,  according  to  the 
well-known  legal  maxim,  was  not  bound  thereby ;  and  of  courfe  was  paid 
fines  for  alienation,  or  by  fubfequent  ftatutes  a  commutation  for  fuch  fines 
by  his  military  tenants  in  capite^  to  the  time  of  the  Reftoration,  when  thefe 
tenures  were  entirely  abolifhed.  On  the  other  hand,  the  lord  was  not  per- 
mitted to  alien,  even  with  the  confent  of  his  fuperior,  without  the  confent 
alfo  of  his  tenant,  and  that  for  a  fimilar  reafon.  For  if  he,  the  lord,  might  fo 
do,  he  might  fubjeft  his  tenant  to  one  who  was  the  tenant's  mortal  enemy, 

and 

f  Houard,  anciennes  lobe  des  Francois,  liv.  2.   ch.  I.     Du  Cange,  voc.  Hominium* 
Spelman,  voc.  Homagium. 


LECT.  12.  L  A  W  S    OF    E  N  G  L  A  N  D.  119 

anil  perhaps  for  no  other  reafon  than  for  fcrving  his  former  lord  faithfully 
againit  the  new  one  *. 

THIS  laR  maxim  once  eftabliflied,  introduced  the  practice  of  tenants  at- 
torning to  their  lords  grants  of  the  feignory.  Attornmcnt  is  an  aft  of  noto- 
riety, originally  performed  in  the  prcfencc  of  the  pares  curia,  fignifying  the 
tenant's  confent,  and  turning  over  from  his  former  lord  to  the  new-  one,  and 
the  putting  him,  the  new  one,  in  the  feizin  of  his  ferviccs.  This,  at  firft, 
was  merely  voluntary  in  the  tenant;  but  when,  in  England,  free  alienations 
were  allowed  by  the  aforefaid  aft,  it  was  not  thought  reasonable  that  it  fliould 
be  in  the  tenant's  power  to  defeat  his  lord's  grant,  by  refufmg  to  attorn. 
He  was  therefore  obliged,  by  an  aftion  called  Quid  juris  clamat^  to  appear, 
and  to  mew  forth  what  title  he  had  in  the  faid  lands,  and  whether  he  had 
any  fufficient  caufe  why  he  fliould  not  attorn  to  the  grantee;  and  if  he  could 
not  mew  any,  he  was  obliged  by  the  judgment  of  the  court  to  attorn f. 

ANOTHER  effect  of  this  homage  was  warranty ,  which  is  the  obligation  on 
the  lord  to  defend  his  tenant  in  the  lands  holden  of  him;  or,  if  he  cannot, 
to  give  him  a  recompence  of  equal  value  in  other  lands,  our  law  went  no 
farther ;  but  the  feudal  law,  if  the  warrantor  had  no  lands  to  give  in  ex- 
change,  obliged  him  to  pay  the  value  in  money.  Warranty  is  derived  from 
the  word  ivar^  becaufe,  in  thofe  real  actions,  the  trial  was  of  old  by  combat. 
This  obligation,  indeed,  fubfided,  as  I  have  already  hinted,  long  before 
the  introduction  of  hereditary  eflates ;  but  when  thefe  hereditary  eflates  be- 
came common,  and  all  the  military  tenures  were  of  this  fort,  and  eftates 
for  lives  and  years  were  only,  or  for  the  moft  part,  focage,  thefe  lafl  had  no 
warranty  annexed  to  them  by  law,  but  only  by  fpecial  agreement ;  and  the 
warranty  I  am  now  fpeaking  of  was  confined  to  inheritances,  and  of  thofe 
only  to  fuch  as  were  held  by  homage  aunccjlrcl^  that  is,  where  the  tenant 
and  his  anceftors  had,  from  time  immemorial,  done  homage  to  the  lord 
and  his  anceftors.  Here,  on  account  of  the  continued  connection  betv, 
the  blood  of  both  families,  the  law  obliged  the  lord  and  his  heirs  to  warrant 
the  lands  to  the  tenant  and  his  heirs  J. 

THE 

*  Wright  on  tenures,  p.  154.  et  feq.     Dalrymple  on  feudal  property,  chap.  2.  §  2. 
Millar  on  the  diltiuction  of  ranks  in  fociety,  fecond  edit.  p.  215. 

f  Wright  on  tenures,  p.  172. 

\.  Coke  on  Littleton,  lib.  3.  chap.  13. 


i2o  L  E  C  T  U  R  E  S     ON     THE          LECT.  12. 

THE  manner  of  taking  advantage  of  this  obligation  of  the  lords  by 
voucher,  which  ftill  remains  in  our  law,  (the  other  method  by  difufe  being 
antiquated)  was  fhortly  thus :  When  the  tenant  in  pofieffion  is  impleaded 
for  the  lands  by  a  ftranger,  who  claims  them  as  his  inheritance,  he,  the  te- 
nant appears,  defends  his  right,  and  vouches,  that  is,  calls  in  his  lord  to 
warrant  the  lands  to  him.  If  the  lord  appears  gratis,  and  enters  into  the 
warranty,  as  he  ought,  if  he  is  bound  to  warranty,  the  tenant  hath  no  more 
to  do  in  the  defence  of  the  fuit.  It  is  the  lord's  bufmefs.  Againfl  him  the 
ftranger  declares,  and  profecutes  the  fuit.  He  defends,  and  it  is  found 
againft  him,  either  by  legal  trial,  or  default,  for  want  of  appearing  ;  and 
the  judgment  the  court  gives  is,  that  the  demandant  or  ftranger  mail 
recover  the  lands  demanded  againft  the  tenant,  and  that  the  tenant  mall 
recover  lands  of  equal  value  from  the  lord,  or  voucher,  as  he  is  termed, 
becaufe  he  is  vocatus,  or  called  in  to  take  upon  himfelf  the  defence.  If  the 
lord,  who  is  to  warrant,  doth  not  appear,  he  is  fummoned  till  he  does ;  or 
if  he  appears,  and  will  not  enter  gratis  into  the  warranty,  the  tenant  is  to 
mew  how  the  perfon  he  calls  in  is  bound  to  warrant ;  which  muft  be  either 
by  homage  aunceftrel,  or  by  his,  or  his  anceftors  exprefs  covenant,  as  I 
fhall  hereafter  mew ;  and  until  this  was  determined,  the  fuit  of  the  de- 
mandant was  fufpended ;  becaufe  as  yet  it  was  uncertain  who  was  obliged 
to  defend  the  lands.  So  we  fee  in  the  judgment  of  this  kind,  there  were  in 
faft  two  judgments,  one  againft  the  tenant,  who  was  to  give  up  the  lands, 
another  againft  the  lord,  who  was  to  give  lands  equal  in  value.  But  there 
might  be  three,  or  more  judgments,  as  there  might  be  two  or  more  vouch- 
ers, As  if  there  be  in  refpeft  to  land,  A,  B,  and  C.  A,  lord  paramont 
or  fuperior,  B  mefhe,  that  is,  tenant  to  A,  and  to  lord  C ;  and  C  tenant 
faravaik,  that  is,  the  aftual  pofleffor  of  the  land.  Here,  if  D,  a  ftranger, 
brings  his  acYion  againft  C,  the  tenant,  who  vouches  his  lord  B  the  mefne, 
who  enters  into  warranty,  and  vouches  A  the  lord  paramont,  who  enters 
into  warranty,  and  fails,  D  recovers  the  lands  from  C,  C  recovers  in  value 
from  B,  and  B  recovers  in  value  from  A,  and  fo  on,  if  there  be  more 
vouchers. 

n 

WARRANTIES,  as  I  hinted  before,  are  of  two  kinds,  'warranties  in  law, 
or  by  homage  aunceftrel,  or  by  words  in  the  deed,  which  the  law  conftrues 
to  import  warranty  (which  ftood  upon  a  feudal  footing),  and  warranties  in 
deed,  that  depend  on  a  ipecial  covenant.  Thele  laft  were  fubftituted  in  the 

place 


LF.CT.  12.  LAWS    OF    ENGLAND.  m 

plaec.  of  the  former.     For  as  by  every  alii  nation,  <  ither  of  the  lord  or  ten 
the-  mutual  connection  between  the  two  bloods  was  <  ihed,  and  v. 

ranty  by  homage  aunceftrel   eonfi-quemly  gone   fnifomuch  that   no\v,   by 
frequent  alienations,  there  is  no  fuch  thing  left)  the  tenant  would  not  att 
to  his  lord's  grant  when  the  lord  aliened,  nor  a  new  tenant  accept  of  a 
grant  from  an  old  tenant  of  his  tenancy,  without  an  expref,  ty, 

binding  in  the  firft  cafe  the  new  lord  and  his  heirs;  in  the  latter  the  old  one 
and  his  heirs.  Afterwards  the  making  of  thefe  warranties  was  extended 
perfons  between  whom  there  was  no  feudal  connection  ;  as  if  a  man  aliened 
lands  to  hold  of  his  lord.  Here  the  grantee  held  of  the  lord  of  the  grantor, 
not  of  the  grantor ;  and  therefore,  as  he  had  nothing  to  bind  the  lord  to 
warranty,  would  infill  on  an  exprefs  warranty  from  the  grantor  and  his 
heirs  f. 

ONE  fpecies  of  thefe  warranties,  namely,  that  which  is  called  collateral 
warranties,  was  made  ufe  of,  and  it  was  the  firft  invention  that  was  made 
ufe  of,  to  elude  the  ftatute  of  Edward  the  Firft,  De  donis,  which  gave  birth 
to,  or  rather  reftored  to  life  that  antient  kind  of  feudal  eftate,  which  we 
call  Fee  tail.  But  it  muft  be  owned  this  intention  was  both  againfl  the  words 
and  intention  of  that  law.  A  judge  in  his  grandfon's,  Edward  the  Third's, 
reign,  fays,  they  were  wife  men  that  made  this  ftatute,  and  that  the  king 
that  patted  it  was  the  wifeft  king  that  ever  was  in  England,  and  both  afler- 
tions  muft  be  allowed.  The  nobles  who  made  it  were  wife  men  in  their  ge- 
nerations. For,  by  making  effectual  thefe  gifts  in  tail,  they  fecured  their 
eftates  in  their  families,  free  from  any  forfeitures,  arifing  from  their  own 
mifconduft;  which  before  their  eftates  were  liable  to.  But  at  the  fame  time 
it  was  a  deftruftive  law  for  the  nation.  It  put  the  great  lords  of  England, 
who  were  before  too  powerful,  in  a  condition,  by  this  fecurity  of  the  inheri- 
tance's defcending  to  the  heirs,  to  beard  and  awe  the  crown,  and  it  likewife 
difcouraged  induftry  and  commerce,  which  then  began  to  rear  their  heads  in 
England.  Perhaps  the  wifdom  of  the  fageft  of  the  kings  of  England,  as 
he  is  univerfally  called,  may  by  fome  be  doubted  in  this,  that  he  confented 
to  this  aft;  but  he  was  a  fage  king,  and  did  wifely  in  confenting  to  it.  The 
barons  had  been  fo  opprefled  in  his  father's  reign,  and  their  eftates  fo  often 

Q^  confifcated, 

f  Houard,  anciennes  toix  des  Francois,  liv.  3.  chap.  15.    Coke,  ut  fupra. 


122  L  E  C  T  U  Pv  E  S     ON     THE          LECT.  12. 

confifcated,  that  a  mutual  jealoufy  fubfifted  at  that  time  between  them 
and  the  crown.  They  had  been  reftored,  becaufe  the  crown  was  otherwife 
in  danger.  They  were  jealous  likewife  of  Edward  himfelf,  for  one  or  two 
of  his  actions :  In  fhort,  his  barons  were  too  powerful  to  be  refufed  this  law, 
however  contrary  to  the  intereft  of  the  crown  and  the  lower  people,  and  there 
was  more  to  be  faid  in  its  favour,  it  being  entirely  agreeable  to  the  feudal 
principles,  that  he  who  received  an  eftate  to  him  and  the  heirs  of  his  body, 
fliould  not  have  it  in  his  power  to  contravene,  by  any  act  of  his,  the  gift 
of  the  donor.  He  complied  therefore  with  a  good  grace  ;  but  his  wifdom, 
if  it  was  feen  in  his  complying,  was  farther  feen,  and  in  a  ftronger  light,  in 
'the  conftruction  his  judges  and  their  fucceflbrs  made  of  this  act,  that  colla- 
teral warranty,  without  an  equivalent,  mould  be  a  bar.  However,  this 
was  but  a  feeble  defence  againft  the  mifchiefs  of  entails,  which  every  day 
happened,  to  the  weakening  of  the  public  eftates,  and  collateral  warranties, 
were  not  on  every  occafion  fo  eafy  to  be  got  f . 

AT  length,  in  Edward  the  Fourth's  reign,  under  pretence  of  warranties, 
and  thofe  entirely  fictitious,  a  method  was  found  out,  under  the  form  of 
legal  proceedings,  to  defeat' eftates  tail,  and  all  remainders  thereon,  and 
that  in  the  manner  following :  A,  who  was  tenant  in  tail,  was  impleaded 
by  collufion,  by  a  perfon  who  pretended  to  claim  title  to  the  lands  ante- 
cedent to  the  eftate  tail,  and  who  was,  in  fact,  the  man  to  whom  A,  by  his 
private  agreement,  was  to  alienate  it,  in  deftruction  of  the  eftate  tail.  A 
appears,  and  takes  defence,  but  vouches  to  warranty  B,  a  man  who  has 
not  a  foot  of  land,  nor  is  likely  to  have  any :  B  very  readily  enters  into  the 
warranty  ;  and  when  the  day  comes,  that  he  fliould  defend  the  fuit,  makes 
default ;  in  confequence  whereof,  the  court  gives  judgment,  that  the  de- 
mandant fliould  recover  the  lands  againft  A,  and  A's  lands  of  equal  value 
againft  B  the  vouchee,  who  hath  none ;  and  yet  this  was  judged  a  good  bar 
to  the  entail,  upon  the  pombility  that  B  might  purchafe  lands  equivalent, 
and  fo  A,  and  the  other  perfons  entitled  in  tail,  might  receive  fatisfaction. 
And  that  is  what,  under  the  name  of  a  common  recovery,  is  grown  to  be 
one  of  the  common  aflurances  of  the  realm ;  and  though,  for  about  feventy 
years,  the  juftice  and  confcientioufnefs  of  it  was  difputed,  yet  being  con- 
ftantly  afferted  as  law  by  the  judges,  and  taken  notice  and  approved  of  by 

acts 

f  Wright  on  tenures,  p.  168,  169. 


LECT.  12.  LAWS    OF    ENGLAND.  123 

afts  of  parliament,  it  is  the  now  moft  r  to  an  eftatc  tail.     To 

fpeak  candidly  about  thefc  rccovr:  application  to  this  pur- 

pole,  they  were  notorious  breaches  of  the   flatute  De  donis^  under  the  co- 
lour of  legal  proceedings.     Yet  what  could  be  done?  the  law  could  not  be 
repealed;   for  all  members  of  parliament  had  their  eftates  entailed.      It  could 
only  be  eluded,  and  both  for  the  king  and  all  who  had  not  cftatcs  tail, 
was  neceflary  it  fhould  |. 

ANOTHER  confequence  of  cftates  becoming  hereditary,  and,  in  refpectof 
military  tenures,  a  fruit  of  feigriory,  is  ivardjhip)  or  guardianmip.  For  it 
muft  now  frequently  happen,  by  the  death  of  anceftors,  that  eftates  would 
defcend  to  heirs  incapable  to  do  the  fervice,  to  manage  their  affairs,  or  to 
educate  themfelves.  It  was  neceflary,  therefore,  that  the  law  mould  make 
provifion  both  for  the  doing  the  fervices,  and  the  benefit  of  the  heir,  until 
he  arrived  at  a  proper  age.  And  the  law  proceeded  in  a  different  manner, 
as  the  lands  were  holden  either  by  knights  fervice  or  focage  ;  tenure,  in  the 
firft:  cafe,  having  in  view  principally  the  defence  of  the  realm;  in  the  fecond, 
the  benefit  of  the  heir.  With  refpect  to  military  tenures,  the  time  of  age 
was  twenty-one  years  compleat ;  at  which  time  the  law  prefumed  the  heir  \vas 
qualified,  both  by  ikill  and  flrength  of  body,  to  perform  the  part  of  a  fol- 
dier.  At  this  age,  therefore,  he  was  out  of  the  ward.  If  his  anceflor  died 
before  he  had  attained  that  age,  his  lord  had  by  law  the  guardianmip  both 
of  his  lands  and  perfon  till  then,  and  took  the  profits  of  the  lands  to  himfelf 
for  his  own  ufe,  being  only  obliged  to  educate  and  maintain  the  heir  in  a 
condition  fuitable  to  his  rank  and  flation.  The  reafon  of  this  was,  that  it 
was  a  principle  in  the  feudal  law,  as  the  profits  and  the  military  duties  were 
equivalents  for  each  other,  that  he  who  was  obliged  to  the  duty  mould  en- 
joy the  profits,  which,  in  the  firft  inftance,  was  the  lord,  he  being  obliged 
to  anfwer  the  king,  or  other  fupcrioi  lord,  for  all  the  military  duties  coni- 
prifed  in  his  feignory. 

HE  had  the  guardianmip,  likewife,  of  the  heir's  perfon ;  firft,  that,  be- 
caufe  of  the  bond  under  which  he  lay  to  the  tenant  and  his  heirs,  the  law 
had  entire  confidence  in  the  care  he  would  take  of  the  minor ;  fecondly,  be- 
caufe  the  lord  was  certainly  well  qualified  to  inflrud  him  in  the  art  of  war; 

Q^2  and 

|  Wright  on  tenures,  p.  186. 


124  L  E  C  T  U  R  E  S     ON     THE  LECT.  12. 

and  thirdly,  his  own  interefl  obliged  him  to  do  this  carefully,  that  his  vaf- 
fal  might  be  enabled  to  perform  to  him  the  future  fervices.  But  this,  as  to 
the  perfon,  is  to  be  underflood,  if  the  minor's  father  was  not  living.  For 
if  he  was,  he  was  guardian  by  nature,  and  intitled  to  the  cuftody  of  the 
perfon,  as  in  the  cafe  put  by  Littleton,  where  there  is  a  grandfather  by  the 
mother's  fide,  tenant,  by  knight  fervice,  father,  and  mother,  and  fon ;  and 
the  mother  dies,  leaving  the  grandfather,  and  then  the  grandfather  dies, 
and  his  land  defcends  to  the  fon  of  his  daughter,  then  a  minor,  the  minor's 
father  flill  alive;  here  the  guardianfhip  mall  be  divided.  The  grandfather's 
lord  mail  have  the  ward  of  the  lands,  and  the  father  mall  have  the  ward  of 
the  perfon  of  his  minor  fon.  So  it  is  if  a  lord  gives  land  in  fee  by  military 
fervice  to  the  fon  of  A,  by  which  fon's  dying  without  ifTue  the  lands  de- 
fcend  to  his  brother,  a  minor.  Here  A,  the  father,  (hall  have  the  cuftody 
of  the  body,  and  the  lord,  of  the  lands.  There  was  another  cafe,  likewife, 
wherein  the  guardianfhip,  I  cannot  fay  was  divided,  but  where  the  ward- 
fhip  of  the  perfon  was  extinct.  Antiently,  although  twenty-one  years  was 
the  regular  time,  yet,  if  the  minor  was  knighted  by  the  king,  and  thereby 
adjudged  capable  of  fervice  in  perfon,  the  guardianfhip  ceafed.  For  here, 
the  legal  prefumption  of  unfitnefs  was  refufed  by  a  pofitive  aft  of  the  king 
to  the  contrary.  But  the  lords  obtained  an  aft  of  parliament,  that,  not- 
withftanding  fuch  knighthood  in  minority  by  the  king,  the  lords  mould  re- 
tain the  lands  of  the  minor  fo  knighted,  till  he  was  twenty-one  years  of  age; 
and  fo,  after  this  aft,  the  wardfhip  of  the  lands  continued,  though  that  of 
the  perfon,  who  was  by  the  king's  aft  declared  fui  juris,  was  gone  f . 

THE  term  of  twenty-one  years,  which  I  have  mentioned  was  confined,  as 
may  appear  by  what  I  faid  concerning  it,  to  heirs  minor,  that  were  males ; 
but  with  refpeft  to  heirs  female,  minors,  as  almoft  all  of  our  fiefs  foon  after 
the  conqueft  were  feminine  feuds,  as  the  lawyers  on  the  continent  call  them, 
that  is,  defcendable  to  females  in  the  next  degree,  if  males  in  that  degree 
failed,  the  limitation  of  minority  was  different.  la  thefe  fiefs  it  was  impof- 
fible  the  woman  herfelf  ihould  do  perfonal  fervice  :  She  was,  therefore,  al- 
lowed a  fubflitute  ;  but  in  time  of  minority,  as  me  could  not  appoint  a  pro- 
per one,  the  lord  who  was  bound  to  perform  the  fervice  to  his  fuperior,  had 

the 

f  Fortefcue  de  laud.  leg.  Anglix,   cap.  44.     Glanvil,    lib.  2.   chap.  9.     Spel.  reli^, 
p.  25,  26.     Du  Cange;  voc.  Warda. 


LECT.  12.  LAWS    OF    ENGLAND. 

the  lands  in  the  fume  manner  as  in  cafe  of  an  heir  mal<  ever,   ti 

was  no  reufon  that  the  minority  of  a  woman  in  wardihip  ihould  contim. 
long  as  that  of  a  man,  namely,  to  twenty-one  years  ;  for  as  the  law  of  ( 

hired  that  man  and  wife:  Ihould  be  one  flcfh  ;  fo  the  canon  law,  and  ours 
in  confequence,  have  decreed,  that,  in  law,  the  man  and  wife  arc  one  \ 
fon,  and  that  the  hufband  in  all  rcfpe&s  is  bound  to  perform  the  obligations 
(lie  lies  under.  Hence,  in  cafe  of  a  female  heir,  the  term  of  the  lord's  guar- 
dianfhip  was,  by  the  common  law,  limited  to  fourteen  years ;  by  which 
time  it  was  prefumed  flie  might  have  a  hufband  capable,  and  obliged  to  do 
the  duty  for  her.  But  this  age  of  fourteen  years  was,  in  a  particular  cafe, 
extended,  by  ad  of  parliament,  to  two  years  farther.  However,  as  the 
reafon  of  that  depends  on  the  lord's  right  to  the  marriage  of  the  hcirefs,  it 
will  be  better  to  defer  fpeaking  thereof,  until  we  come  to  that  head. 

IT  remains  to  be  mentioned,  what  was  the  nature  of  this  intercft  the 
lord  had  in  the  eftate  of  this  minor  tenant,  by  virtue  of  the  feudal  inflitutions, 
and  fo  contrary  to  the  general  and  the  original  tenure  of  them.  For,  fun- 
ply,  the  lord  had  only  the  propriety,  and  in  confequence  the  right  of  rever- 
fion  or  efcheat,  with  the  render  of  the  fervices ;  whilfl  the  tenant  had  the 
pofieflion  and  the  profits.  But,  in  this  cafe,  all  thefe  feem  to  be  blended, 
particularly  the  right  of  original  propriety  and  poffeffion,  fo  eflentially  to  be 
diftinguifhed  in  the  feudal  fyftem.  For  the  lord  has  not  only  his  propriety 
in  right  of  his  feignory,  but  alfo  the  abfolute  pofleflion,  and  permanency,  or 
taking  of  the  profits,  and  the  minor  heir  apparently  nothing.  However, 
the  law,  in  this  cafe,  did  juftice,  and  created  in  the  lord  a  temporary  intereft, 
an  eftate  for  years,  namely,  for  the  number  of  years  till  the  majority  was 
compleated,  contrary  to  all  the  other  feudal  maxims.  For  the  fee  and  inheri- 
tance of  the  eftate  remained  in  the  minor,  though  he  had  neither  pofleffion 
or  profits.  This  intereft  of  the  lord  could  not  be  called,  'at  leaft  with  ftricl: 
propriety,  a  tenancy  for  years,  becaufe,  in  this  cafe,  the  lord  poffeffes  the 
tenant's  lands,  not  the  tenant.  The  lords  had  therefore  no  tenure,  but  an 
eftate  for  years,  -created  by  the  law ;  and  that  it  was  originally  confidered 
as  an  eftate  for  years,  or  a  chattle  intereft  in  lands,  appears  from  two 
things.  Firft,  that  in  the  early  times,  when  alienations  were  fcarce  allowed, 
it  was  affignable  over  to  another,  without  any  licence  or  form.  Secondly, 
that  inftead  of  going  to  the  heir,  in  cafe  of  the  lord's  death,  during  the 

minority 


LECTURES     ON     THE          LECT.  12. 

minority  of  the  ward,  it  went  to  the  lord's  executors,  as  other  eftates  for 
years  didf. 

As  the  lord  was  bound  to  his  vaflal  and  his  heirs  by  the  homage  done  to 
him,  it  certainly  followed,  that  it  was  not  lawful  for  him  to  do,  during  the 
wardmip,  any  aftual  wafte  (that  is,  any  permanent  damage)  to  the  eftate 
of  his  minor  ward,  or  to  fuffer  any  to  be  done  by  others.  He  was  alfo 
obliged  to  repair  and  keep  in  condition,  out  of  the  profits  of  the  eftate,  the 
houfes  and  improvements  triereon ;  yet  fo  great  was  the  mifoehaviour  of 
the  Englifh  lords,  foon  after  the  conqueft,  that  many  fevere  and  reftriftive 
laws  were,  from  time  to  time,  made  in  favour  of  the  minor  wards  J. 

IN  my  next  I  mail  treat  of  guardians  in  focage,  referving  the  article  of 
marriage,  though  it  appertained  to  military  fervice,  to  a  place  by  itfelf ;  as 
it  was  of  a  diftinct  nature,  and  went  on  its  own  particular  ground  in  a  great 
meafure. 

f  Craig,  de  feud.  lib.  2.  dieg.  20.    Wright  on  tenures,  p.  86.  et  feqq.     Dalrymple 
on  feud,  property,  chap.  2.  §  2. 

$  Ruffhead's  Statutes,  p.  2,  3.    Bafnage,  Coutume  de  Normandie,  tit.  des  garde?. 


LECTURE 


LECT.  n-  LAWS    OF    ENGLAND. 


LECTURE         XIII. 

Wardfolp  in  Socagc — The  nature  and  hi/lory  of  the  incident  of  marriage. 


HAVING,  in  the  lafl  le&urc,  given  fome  account  of  wardfliip  and 
guardianfliip  in  chivalry,  it  will  be  neceffary  to  mention  what  provi- 
fion  the  law  made,  now  lands  were  become  hereditary,  for  the  benefit  of  a 
minor,  when  lands,  held  in  focage,  defcended  to  him.  In  the  former  cafe, 
where  war  was  the  confideration,  whofe  times  and  exigences  were  uncertain, 
the  law  was  obliged,  on  account  of  the  public  fafety,  to  confider  the  interefl 
of  the  lord,  who  was  to  anfwer  the  duties  to  the  (late,  in  the  firfl  place,  and 
the  interefl  of  the  minor  only  in  a  fecondary  light.  But  in  focage  lands, 
which  the  lord  had  parted  with  for  certain  fixed  flipulated  fervices,  to  be 
paid  at  particular  times,  the  lord  had  no  claim  to  any  more  than  them.  Nei- 
ther did  the  public  interefl  demand  a  military  perfon  for  the  guardian  of  one 
who  was  not  to  be  bred  a  foldier.  A  near  relation,  therefore,  was  the  pro- 
perefl  perfon  to  take  the  wardihip. 

But  in  fixing  who  that  perfon  mould  be,  the  feudal  and  the  Roman  civil 
.law  proceeded  on  different  principles  ;  the  latter  fixed  upon  the  nearefl  re- 
lation that  was  inheritable  to  the  eflate,  but  the  former  entirely  excluded 
all  relations  that  might  inherit.  Thus,  if  the  land  defcended  on  the  fide  of 
the  father,  all  relations  of  the  father  were  incapable,  and  the  mother,  or 
the  next  of  kin  of  her  blood,  was  the  guardian.  And  this  is  a  difference 
wherein  the  Englifh  lawyers  greatly  triumph  over  the  civilians.  For  to  give 
the  care  of  a  minor  to  one  who  might  be  his  heir,  is,  they  fay,  quaft  agnum 
lupo  committerc  ad  dcvorandum.  But  this  very  reafon  flrongly  proves  the  ge- 
neral wickednefs  and  barbarity  of  the  people,  who  were  obliged  to  eflablifh 
this  rule  at  that  time.  Both  laws  were  equally  wife,  becaufe  adapted  each 
to  the  circumflances  of  the  nations  that  made  them.  The  Romans,  who 
were  a  polimed  civilized  people,  among  whom  murders  were  infrequ  .- 

were 


128  LECTURES     ON     THE  LECT.  13. 

were  not  afraid  to  trufl  the  perfon  of  the  minor  to  the  care  of  one  who  might 
be  his  heir ;  and  fuch  an  one  they  preferred  on  account  of  the  prefervation 
of  the  eflate,  which  they  prefumed  would  be  taken  bed  care  of  by  him  to 
whom  it  might  defcend.  The  northern  nations,  on  the  contrary,  who  were 
barbarians,  and  murderers,  were  obliged  to  iacrifice  the  confideration  of 
preferving  the  eflate,  to  the  perfonal  fafety  of  the  infant,  and  therefore  com- 
mitted both  to  one  who  could  have  no  interefl  in  the  fucceffion. 

THE  guardian  in  focage  differed  from  guardian  in  chivalry  in  this,  that 
he  was  but  in  the  nature  of  a  bailiff,  or  truftee,  for  the  minor,  to  whom, 
at  the  expiration  of  his  guardianmip,  he  was  obliged  to  account,  upon  an 
allowance  of  all  his  reafonable  cofts  and  charges.  Another  difference  was, 
as  to  the  term  of  the  guardianmip.  For  this  guardianmip  expired  at  the 
ward's  full  age  of  fourteen ;  at  which  time,  if  he  pleafed,  he  might  enter 
and  occupy  the  lands  himfelf,  or  choofe  another  guardian  ;  for  as  at  that 
age  he  had  difcretkm  enough  to  confent  to  marriage,  fo  did  the  law  fuppofe 
he  had  fufficient  perhaps  to  manage  his  own  affairs,  at  leafl  to  choofe  the 
properefl  perfon  for  that  purpofe  jv 

BUT  put  the  cafe,  Suppofe  that  the  minor  doth  not  enter,  or  choofe  ano- 
ther guardian,  but  that  the  old  one  continues  to  receive  the  profits,  what 
remedy  mail  the  minor  have  for  thofe  received  after  his  age  of  fourteen  ? 
Certain  it  is,  he  cannot  bring  an  action  of  account  againfl  him  as  guardian  j 
for  guardianmip  is  expired ;  and  yet  the  infant's  difcretion  cannot  be  pre- 
fumed fo  great,  as  to  be  perfectly  acquainted  with  all  his  legal  rights,  and 
therefore  his  negligence  mail  not  be  imputed  to  him.  The  law  in  this  cafe 
remedieth  him  by  a  reafonable  fiction,  and  fuppofeth,  though  the  fact  hath 
not  been  fo,  that  the  minor  had  appointed  him  to  receive  the  profits  of  the 
eflate,  and  therefore  gives  an  action  of  accounts  againft  him,  not  as" guar- 
dian, but  as  bailiff  or  receiver. 

BUT  fuppofe  the  next  of  kin  neglects  the  guardianmip,  and  any  other 
jperfon  of  his  own  head  enters,  and  takes  the  profits,  what  remedy  mall  the 

minor 

f  Coke  on  Littleton,  lib.  2.  ch.  5.  fe&.  123.    Houard,  ancknnes  loix  des  Franjois, 
liv.  2.  ch_$. 


T.I3-  LAWS    OF    ENGLAND. 

minor  have  ?  In  this  cafe  the  law  will  not  fuppofe  him  that  enters  to  be  a 
wrong  doer,  an  abator^  as  the  law  would  call  him,  if  the  heir  was  of  full 
age ;  but  will  rather  prcfumc  his  act  procc cilcd  from  humanity  and  kind- 
,  to  fupply  the  neglect  of  the  proper  guardian;  and  therefore,  though 
he  is  not  appointed  guardian,  either  by  the  aft  of  law  or  othcrwife,  he 
fliall  be  confidered  as  fuch,  and  the  heir,  after  fourteen,  (hall  have  an  aftion 
of  account  againft  him,  and  charge  him  as  guardian.  So  ftridly  was  the 
guardian  in  focage  accountable  to  his  ward  for  the  profits,  that,  if  he 
married  him  within  the  age  of  fourteen,  he  was  not  only  accountable 
the  money  he  received  in  confideration  thereof  (as  it  was  the  practice  in 
thofe  days  to  fell  the  marriage  of  wards)  but  if  he  received  none,  he  was 
accountable  out  of  his  own  fortune  for  what  he  might  have  received  on  that, 
account,  unleCs  the  match  itfelf  was  equally,  or  more  beneficial. 

THE  next  confequence  of  fiefs  becoming  hereditary,  and  which  followed 
from  the  wardfhip,  is  the  marriage  of  the  ward  by  military  fervice,  which  be- 
longed to  his  lord,  and  was  one  of  his  beneficial  fruits  of  tenure  ;  and  al- 
though this  part  of  our  law  is  now  antiquated  by  the  abolifhing  of  knight- 
fervice,  it  is  necefiary,  for  the  underflanding  our  books,  to  have  at  leail  a 
general  notion  of  it. 

THIS  right  role  originally,  on  the  continent,  from  fiefs  becoming  defcen- 
dible  to  female  heirs,  and  was  grounded  upon  the  fame  principle  as  the 
rule  which  forbad  vaflals  to  alien  without  their  lords  confent.  As  every 
feudal  kingdom,  at  this  time,  confided  of  a  number  of  principalities,  under 
their  refpecYive  lords,  who  were  often  at  war  with  each  other,  the  tenant 
coul'd  not  alien  without  his  lord,  left  he  might  introduce  an  enemy  into  the 
feudal  fociety.  The  like  danger  was  there  if  a  female  heirefs  was  permitted 
to  marry  at  her  own  pleafure,  or  could  be  difpofed  of  by  lier  relations  with- 
out the  lord's  confent.  And  at  firft,  it  feems,  that  this  rule  was  general  to 
a  woman  heirefs  during  her  whole  life  ;  but  if  fo  it  was,  it  foon  abated,  and 
was  confined  to  the  marriage  of  females  in  wardfhip,  and  to  the  firft  mar- 
riage only.  The  law  of  Normandy  fays,  if  a  woman  be  in  wardfhip,  when 
(he  mall  be  of  an  age  to  marry,  me  ought  to  marry  by  the  counfel  and  licence 

of 
R 


130  L  E  C  T  U  R  E  S     ON     THE  LECT.  13. 

of  her  lord,  and  by  the  counfel  and  afient  of  her  relations  and  friends,  ac- 
cording to  what  the  noblenefs  of  her  lineage  and  the  value  of  her  fief  mall 
require.  So  that  antiently  the  lord  had  not  the  abfolute  difpofal  of  her, 
nor  had  he  anything  to  fay  to  the  marriage  of  males  ;  for  though  he  mould 
marry  an  enemy,  the  fief  was  not  thereby  put  into  fubjedtion  to  her,  but  me 
into  the  fubje&ion  of  the  vafTal.  And  this  rule,  that  the  lord's  confent 
mould  be  had,  was  not  intended  for  him  to  make  an  advantage  of,  but  was 
a  mere  political  inftitution,  for  the  fafety  of  the  community.  Such  was  the 
law  introduced  into  England  at  the  conqueft.  However,  it  was  but  natural 
to  expect  that  avaricious  lords  would  take  advantage  of  their  negative  voice, 
to  extort  money  for  licence,  and  by  that,  and  their  influence  over  their  vaf- 
fals,  to  arrogate  the  fole  power  to  themfelves.  That  William  Ruffus  a£ted 
thus,  we  may  well  learn  from  the  remedial  laws  of  his  brother  and  fucccfibr 
Henry  the  Firft  ;  Si  quis  baronum,  •vel  bominum  meorumy  filiam  fuam  nuptum 
•traders  i>ohicrit , Jive  fororem^  five  neptem,Ji{ve  cognatam,  mecum  hide  loquatur  ; 
fed  neque  ego  aliqitid  de  fuo  pro  hac  licentia  accipiam,  neque  eidefendam  quin  earn 
det,  exccptoji  camjungcre  ve/it  inlmico  meo.  Another  is,  Si  mortuo  barone,  vel 
alio  homine  meo*,  filio  hares  remanferit,  illam  dabo  conjllio  baronum  meorum  f. 

NOTWITHSTANDING  thefe  laws,  the  mifchief  flill  gained  ground,  and  the 
lords  extended  their  encroachments,  until  they  not  only  got  the  abfolute 
difpofal  of  female,  but  of  male  heirs  alfo.  When  this  happened,  is  hard  to 
determine  precifely.  That  it  was  after  Glanville,  who  wrote  in  Henry  the . 
Second's  time,  and  before  Braclon,  who  wrote  in  Henry  the  Third's,  is 
plain:  Mr  Wright's  conjecture  feems  probable,  that  it  grew  up  in  Henry 
the  Third's  time,  when  the  barons  were  very  powerful,  from  a  {trained 
conftrucYion  of  Magna  Charta,  which  fays,  Haredes  maritentur  abfque  difpa- 
ragatlone ;  where  the  general  word  haredes  mould  have  been  conflrued  to 
extend  only  to  fuch  heirs  as  by  the  former  law  were  marriageable  by  their 
lords,  namely,  female  ones  ;  but  both  king  and  lords,  taking  advantage  of 
the  generality  of  the  expreffion,  claimed  and  ufurped  that  of  the  fon's 
alfo  {. 

HOWEVER, 

TJ-  L  L.  Henry  i.  c.  i.  Bradlon,  lib.  2.  c.  37.  feel.  6.     Craig,  de  feud.  lib.  2.     Diegef. 
21.     DuCange,  voc.  Maritagium.     Glanvil,  liv.  7.  c.  12. 

|  Wright  on  tenures,  p.  9  7. 


LETT.  13.         LA  W  S     OF     E  N  G  L  A  N  D.  131 

How  vi  K,  it  ii  rather  to  he  prefumed  that  this  iru  ro;u  hment  began  ear- 
lier; fince  in  the  flatutc  of  Morton,  the  twentieth  of  Henry  thr  1  hiril,  we 
find  thefe  words  :  S^tiia  warit^ium  cjus  qui  infra  atatcm  cji  (fpcuking  of  a 
mule)  mero  jure  pcrti net  ad  Jo niin ion  fcudi.  From  whence  I  rather  gather 
the  practice  was  earlier  than  Magna  Charta,  which  \vas  not  above  thirty 
years  before,  and  confirmed  by  its  interpretation.  But  if,  in  this  refped, 
the  vafials  were  encroached  on  by  their  lords,  in  another,  they  met  with  a 
mitigation  in  their  favour.  For  the  confent  during  the  father's  life,  v. 
into  difufe,  and  every  man  was  allowed  to  marry  his  fon  or  daughter  at  his 
pKrafure ;  and  this  with  very  good  reafon.  For  as  the  prohibition  was 
for  fear  of  introducing  an  enemy,  of  this  there  was  no  danger  where  the 
marriage  was  by  the  father,  a  vaflal,  bound  by  homage  and  fealty  to  do 
nothing  to  the  prejudice  of  his  lord.  Thus  was  right  of  confent  to  mar- 
riage, introduced  firfl  for  political  reafons,  turned  into  a  beneficial  perqui- 
fite,  and  fruit  of  tenure,  for  the  advantage  of  the  lord  ;  and  notwithfland- 
ing  all  the  laws  made  to  regulate  it,  as  conflantly  abufed ;  fo  that  the  t 
thence  arifing  were  not  among  the  leafl  caufes  for  aboliihing  military 
tenures  j- . 

THE  penalty  for  marrying  without  confent  was  originally,  as  all  breaches 
of  fealty  were,  abfolute  forfeiture.  But  the  rigour  of  the  feudal  law  fub- 
fiding,  lighter  penalties  were  introduced.  By  the  fixth  chapter  of  Merton 
remedy  is  given  to  the  lord,  whofe  ward,  under  fourteen,  has  been  taken 
away  by  any  layman  (and  a  later  a&  extends  it  to  the  clergy)  and  married, 
by  an  aftion  againfl  the  raptor  or  ravi/her,  as  he  is  called,  for  the  value  of 
the  marriage,  befides  imprifonment  and  a  fine  to  the  king.  If  the  ward 
himfelf,  after  the  age  of  confent,  or  fourteen,  mould,  to  defraud  his  lord, 
marry  himfelf,  he,  as  guilty  of  a  breach  of  fealty,  is  more  grievoufly  punifh- 
ed  than  a  flranger.  For  this  aft  provides,  that  the  lord,  in  that  cafe,  mall 
retain  the  lands  after  the  full  age  of  twenty-one,  for  fo  long  a  time  as,  out 
of  the  profits,  he  might  receive  double  the  value  of  the  marriage  {. 

THE  next,  the  feventh  chapter,  is  in  favour  of  the  ward,  and  an  inforce- 
ment  of  that  chapter  of  Magna  Charta  which  forbids  difparagements  with- 

R  2  out 

•J-  RufThead's  flatutes,  fol.  p.  19. 
t  Ibid.  p.  6. 


132  LECTURES     ON     THE  LECT.  13, 

out  inflicting  any  penalty.  It  enacts,  that  if  the  minor  under  fourteen  is 
married  by  his  Lord  to  his  difparagement,  upon  the  plaint  of  his  relations, 
the  lord  mail  lofe  the  wardlhip ;  and  the  profits  of  the  lands,  till  full  age, 
mall  1>e  received  by  the  relations  fo  complaining,  and  laid  out  for  the  bene* 
fit  of  the  heir.  But  if  the  marriage  was  after  fourteen,  the  age  of  confent, 
it  was  no  forfeiture,  on  the  maxim,  Volenti  non  Jit  injuria.  This  ad  goes 
farther  in  favour  of  the  minor ;  for  it  gives  him  a  liberty  of  refufing  any 
match  the  lord  mould  offer  him.  But  to  prevent  the  lord's  entirely  lofmg 
the  benefit  of  the  marriage  by  the  refradtorinefs  of  the  ward,  it  enacts,  in 
this  cafe,  that  if  he  refufes  a  convenable  marriage,  the  lord  {hall  hold  the 
lands  after  twenty-one  to  his  own  ufe,  until  fuch  time  as  his  late  ward  mail 
pay  him  the  fingle  value  thereof. 

THE  twenty-fecond  chapter  of  Weftminfter  the  firft  confirms  and  repeats 
the  fixth  of  Merton,  and  farther  obviates  a  fraudulent  practice  of  the  guar- 
dians of  female  heirs.  I  obferved  that  their  wardfhip  by  law  ceafed  at  the 
age  of  fourteen,  by  which  time  they  might  have  hufbands  capable  of  the 
fervice  :  but  fome  lords,  for  covetouftiefs  of  the  lands,  as  the  act  expreffes  it, 
would  not  offer  any  match  at  all  to  their  female  wards,  under  the  pretence 
of  their  being  incapable  of  the  fervices,  in  order  to  hold  on  the  lands  for  an 
unlimited  time.  This  aft  fo  far  alters  the  old  law,  that  if  the  heirefs  arrives 
unmarried  at  the  age  of  fourteen,  the  lord  mould  hold  two  years  longer, 
that  he  may  have  time  to  look  out  for  a  proper  match  to  tender  her,  within 
which  time,  if  he  neglects  it,  he  lofes  all  right  to  her  marriage.  On  the 
other  hand,  if  the  heirefs  will  refufe  a  fuitable  offer,  the  lord  is  impowered 
to  retain  the  lands  until  twenty-one,  and  fo  much  longer,  until  he  has  recei- 
ved out  of  the  profits  fatisfaction  for  the  value. 

THE  ravifhment  of  wards  from  their  lords  continuing,  notwithflanding 
the  ftatute  of  Merton,  the  thirty-fifth  of  Weftminfter  the  fecond  gave  the 
writ  called  Of  ravifoment  ofivard^  and  affigned  a  more  fpeedy  and  beneficial 
method  of  proceeding,  and  added  to  the  punifhments  by  the  former  act  of 
Merton  inflicted  on  offenders  f. 

BUT 

•f  Coke's  inflitutes,  part  2.  p.  440.     Ruffhead,  vol.  I. 


LECT.  13.  LAWS    OF    ENGLAND. 

BUT  notwithftanding  all  thcfc  regulations  concerning  marriages,  and  tlir 
other  many  acts  made  to  prevent  mifbehaviour  of  lords  to  the  lands  of  t. 
wards,  the  Iburce  of  the  evil  remained  in  the  wardfhip  itlclf;  and  the  evils 
conftantly  followed,  infomuch  thai  for  hundreds  of  5  ears,  it  was  one  of  the 
heavieft  grievances  the  fubject  fuffered.  Many  were  the  wafleg  done  to 
eftates  ;  many  the  heirs  married  contrary  to  their  inclinations,  and  frequent- 
ly unfuitably.  The  grievances  fell  heavieft  on  the  wards  of  the  en 
There  were  always  a  fet  of  needy  or  greedy  courtiers  ready,  if  they  had  fa- 
vour enough  to  beg,  or  otherwife  to  buy  at  an  under  rate,  the  ward! 
of  minor  tenants,  of  which  they  were  fure  to  make  the  mod  advantage ; 
marrying  the  moft  opulent  heirs  to  their  own  children,  or  relations,  or  ex- 
torting extravagant  fums  for  their  confcnt.  A  remarkable  inflance  of  this 
happened  ib  lately  as  Charles  the  Firfl's  time,  in  the  cafe  of  the  earl,  after- 
wards firfl  duke  of  Ormond.  A  long  fuit  had  fubfifled  between  the  lady 
Preflon,  grand-daughter  and  heirefs  at  law  of  Thomas  earl  of  Ormond,  and 
iier  coufm,.the  heir  male  of  the  family,  for  that  part  of  the  eftate  her  grand- 
father had  entailed  to  go  with  the  tide.  At  length  the  relations  on  both 
fides  thought  the  bed  expedient  to  end  this  intricate  difpute,  was  by  unit- 
ing the  young  relations,  who  likewife  had  conceived  a  ftrong  affection  for 
each  other  ;  yet,  although  the  king  approved  highly  thereof,  did  the  earl  of 
Warwick,  who  was  grantee  of  the  young  lady's  wardfhip,  extort  ten  thou- 
fand  pounds  before  he  would  confent  to  a  marriage  on  every  account  fo  de- 
firable. 

KING  Henry  the  Eighth,  finding  how  grievoufly  the  fubjecl:  was  oppref- 
fed,  and  how  much  the  crown  was  defrauded,  erected,  by  act  of  parliament, 
a  court  called  the  Court  of 'Wards ,  to  take  proper  care  of  minors,  and  to  an- 
fwer  in  a  moderate  manner  for  the  profits  to  the  king.  This  for  fome  time 
was  a  confiderablc  alleviation  of  the  load  ;  but  in  the  weak  reign  of  James 
the  Firfl,  who  was  governed  by  his  favourites  Somerfet  and  Buckingham, 
this  court  was  converted  into  an  engine  for  raifing  their  families,  by  pro- 
viding their  numerous  and  indigent  relations  with  the  greatefl  heirefles,  to 
the  great  difcontent  of  the  antient  nobility,  who  faw  the  moft  opulent  for- 
tunes fuddenly  raifed  by  private  gentlemen,  dignified  by  titles  for  the  pur- 
pofe.  And  great  were  the  extortions  likewife  for  the  licenfes  that  were 
granted  to  fome  to  marry  at  their  pleafure.  The  only  advantage  the  public 

reaped 


134  L  E  C  T  U  R  E  S     ON     THE  LECT.  13. 

reaped  at  this  time  from  this  right  of  difpofal  in  marriage  was,  and  it  muft 
be  allowed  to  be  a  confiderable  one,  the  opportunity  it  gave  the  crown  of 
breeding  the  heirs  of  many  families  in  the  reformed  religion  j  and  in  juflice, 
it  muft  be  owned,  this  was  not  neglected. 

IN  the  eighteenth  year  of  this  laft  reign,  it  xvas  moved  in  parliament  to 
purchafe  off  thefe  heavy  burthens  of  ward  and  marriage,  by  fettling  an 
handfome  yearly  revenue  in  lieu  thereof  on  tht  crown.  But  the  attempt 
did  not  fucceed  at  that  time,  probably  owing  to  the  courtiers  oppofition  to 
it,  from  their  own  interefted  views.  In  Charles  the  Firft's  reign,  this  court 
was  one  of  the  great  objects  of  complaint.  At  length,  on  the  reftoration, 
the  king  confented  to  turn  all  the  military  tenures,  except  grand  ferjeanty, 
into  focage,  in  confideration  of  an  hereditary  revenue  fettled  on  him,  and 
fo  all  the  fruits  thereof  ceafed,  and  the  feudal  fyftem,  which  had  for  ages, 
from  time  to  time,  undermined  the  conftitution,  fell  to  the  ground,  though 
very  many  of  the  rules  of  our  law,  founded  on  its  principles,  ftill  retain 
their  force  J.  In  this  kingdom  the  equivalent  given  for  this  abolition  was 
the  tax  of  hearth-money,  in  which,  it  muft  be  owned,  the  king,  and  thofe 
who  had  been  his  military  tenants,  were  a  little  too  fharp  for  the  reft  of  the 
people  ;  for  by  the  improvements  of  the  kingdom,  that  revenue  is  every  day 
increafing  to  the  crown,  and  almoft  the  whole  burthen  is  thrown  on  the 
3ower  clafs,  who  before  felt  none  of  the  oppreflion,  or  weight  of  wardlhip 
and  marriage. 

?  V  Henry  VIII.  c.  46.     12  Car.  H. 


LF.CT.  14.        LAWS     OF     E  N  G  L  A  N  1).  135 


LECTURE         XIV. 

rules  of  defcent  in  the  old  feudal  law  in  regard  to  the  fans  of  the  lafl  pffii* 
for — Reprcfintation  and  collateral  fucccj/ton — Fcftii  nine  feuds. 

IT  is  now  time  to  fee  how  inheritances  defcendcd  by  the  feudal  law,  where, 
in  the  original  grant,  there  were  no  particular  directions  to  guide  the 
defcent ;  for  in  fuch  cafe  the  maxim  of  the  feudal  law  holds,  Tenor  inve/li- 
1ura  eft  infpiciendus ;  or,  as  the  common  law  exprefles  it,  Convcnfio  vincit 
legcm.  The  firft  rule  then  was,  that  defendants  of  the  firfl  acquirer,  and 
none  others,  were  admitted.  The  reafon  was,  that  his  pcrfonal  ability  to  do 
the  duties  of  the  fief  was  the  motive  of  the  grant,  together  with  the  obliga- 
tion his  fealty  laid  him  under  to  educate  his  offspring  to  the  lord's  obedi- 
ence, and  to  qualify  him  for  his  fervice  in  war.  It  was  obferved,  therefore, 
it  mould  go  to  the  firfl  purchafer's  collateral  relations,  whom  he  had  no 
power  to  bind  by  his  acts,  and  over  whofe  education  he  had  no  influence. 
I  mean  where  it  was  not  particularly  otherwife  expreffed  ;  for  then  the  col- 
laterals fucceeded,  as  the  merit  of  their  blood  was  part  of  the  confideration  ; 
not  fo  properly  in  the  right  of  heirs,  as  by  way  of  remainder,  under  the 
lord's -original  grant  f. 

THE  next  thing  to  be  enquired  is,  fmce  the  defcendants  alone  inherited, 
whether  all,  or  which  only  of  them  inherited.  And  here  the  females  and 
their  defcendants,  unlefs  they  were  fpecially  named,  were  totally  excluded, 
not  merely  for  their  perfonal  incapacity,  but  left  they  mould  carry  the  fief 
to  ftrangers,  or  enemies ;  and  therefore,  where  they  were  admitted,  they 
were  obliged  to  marry  with  the  confent  of  the  lord.  The  third  rule  is,  that, 
unlefs  it  was  otherwife  ftipulated,  all  the  fons  fucceeded  equally  to  the  fa- 
ther. This  was  the  antient  feudal  law,  and  the  law  of  England  in  the  Saxon 
times,  the  relicks  of  which  remain  in  the  gavel  kind  of  Kent,  and  remain- 
ed in  the  lafl  century  in  many,  if  they  do  not  ftill  in  fome  of  the  principalities 

of 

f  Craig,  de  feud.  lib.  2.     Diegcf.  13.     Dalrymple  on  feudal  property,  ch.  5.  feft.  x. 


136  LECTURES     ON     THE          LECT.  14. 

of  the  empire.  In  France,  during  the  firft,  and  a  good  part  of  the  fecond 
race,  we  fee  the  kingdom  divided  among  the  fons.  There  are  not  wanting 
inftances  of  the  fame  among  the  Englifh  Saxons ;  and  the  Spaniards  con- 
tinued th°  practice  now  and  then  even  in  later  ages.  But  the  frequent 
wars,  occafioned  by  thefe  partitions,  at  length  abolilhed  them,  and  made 
kingdoms  to  be  confidered  as  indivifible  inheritances.  In  imitation  of  the 
fovereignty,  the  fame  alteration  was  introduced  into  the  great  feignories, 
which  made,  at  this  time  the  principal  ftrength  of  the  kingdom,  and 
v/hich,  now  the  crown  was  become  indivifible,  would,  if  liable  to  partition, 
become  fo  inconfiderable  in  po\\er,  as  to  be  at  the  mercy  of  the  king  f. 

The  inconveniencies  attending  the  lower  military  tenancies  which  flill 
continuing  divifible,  were  crumbled  into  very  fmall  portions,  and,  of  courfe, 
muft  have  fallen  into  indigent  hands,  were  fuch,  that  thefe  alfo,  for  the  mod 
part,  became  defcendible  to  a  fole  heir.  But  this,  however,  was  not  effe&ed 
but  by  degrees  ;  for  in  the  reign  of  Henry  the  Firft,  though  a  fmgle  knight's 
fee  was  not  divifible,  yet  when  a  man  died  feized  of  more  than  one,  they 
were  diftributed  among  his  fons  as  far  as  they  went ;  but  in  his  grandfon's 
reign  the  general  law  was  fettled  in  favour  of  a  fmgle  heir,  in  the  fame  man- 
ner as  it  has  flood  ever  fmce  J. 

BUT  it  remains  to  be  enquired  which  of  the  fons,  in  cafe  of  an  indivifiblc 
inheritance,  mould  be  this  fole  heir.  In  the  antient  and  unfettled  times, 
the  law  made  no  particular  provifion  j  but,  as  the  lord  was  the  head  of  the 
military  fociety,  and  bound  to  protect  it,  it  was  left  to  his  option  to  fix  upon 
the  propereft  perfon  to  do  the  duties :  and  an  inftance  of  the  exertion  of 
this  power  we  have  in  England  fo  late  as  the  reign  of  Henry  the  Second, 
who  gave  the  entire  military  lands  of  Geoffry  de  Mandeville  to  his  fon  by 
a  fecond  ventre,  to  the  exclufion  of  the  eldeft  by  a  former  wife,  for  this 
reafon,  eo  quod  melior  effet  miles.  A  trace  of  this  ftill  remains  in  the  cafe  of 
a  peerage,  defcendible  to  heirs  general,  that  is,  male  or  female,  falling  to 
daughters.  Here  the  fief  being  indivifible,  the  king  may  appoint  the  peer- 
age to  which  he  pleafes,  and  until  he  doth  fo,  it  is  not  indeed  extinguifhed, 
but  lieth  dormant,  being  what  is  called  in  abeyance,  or  the  cuflody  of  the 

law 

•J-  Craig  de  feud.  lib.  2.  diegef.  14. 

$  Bafnage,  coutume  de  Normandie,  tit.  De  partage  d'heritage.    LL.  Hen.  i.  70. 


r.  14.          LAWS     OF     ENGLAND.         137 

law.     But  at  length  this  uncertainty  \\a,  removed,  and  the  cldcfl  fon  being 
^eiu-rally  the  belt  qualified,  and  COnfoqilcnttj  ulmoil  -btaincd 

the   right,  by  degrees,  in  cxcluiioii  ot  his  brethren,   or  the  choice  of  the 
lord  | . 

BUT  it  will  be  inquired  with  refped  to  kingdoms,  who  had  no  fuperior  to 
make  the  choice,  how  was  it  to  be  determined  alter  they  became  indivifible, 
•which  of"  the  fons  was  to  fucceed,  feeing  the  abfolute  right  of  primogeniture 
was  not  yet  eftablifhed  in  the  opinions  of  men.  I  anfwer,  the  ufual  practice 
was  for  the  king  himlelf,  before  his  death,  to  appoint  the  fucceflbr ;  gene- 
rally with  the  confent  and  approbation  of  his  (hues  and  fomctimes  merely 
by  his  own  aft,  which  was  almoft  univerfally  allowed,  and  obeyed  by  the 
people.  But  if  no  fuch  difpofition  had  been  made,  the  Rates  alfcmbled, 
and  chofe  the  perfon  themfelves  ;  and  thefe  appointments  generally  falling 
on  the  eldeft  fon,  paved  the  way  for  lineal  hereditary  fuccellion,  though  the 
cafe  was  not  always  fo. 

IN  France,  Hugh  Capet,  to  go  no  higher,  in  order  to  prevent  competi- 
tion, caufed  his  fon  Robert  to  be  crowned,  and  fworn  allegiance  to  in  his 
lifetime ;  but  Robert  negleding  the  fame  precaution,  Henry  his  younger 
fon  was  chofen  in  preference  of  the  elder,  who  was  obliged  to  content  him- 
felf  with  the  dutchy  of  Burgundy.  And  if  Henry  was  an  ufurper,  fo  were 
all  the  fucceeding  kings  of  France  for  three  hundred  years,  till  that  family 
of  Burgundy  failed.  Henry  followed  his  grandfather  Capet's  example,  and 
fo  did  his  fucceflbrs  for  about  an  hundred  years,  and  then,  the  notion  of 
the  lineal  fuccellion  of  the  eldeft  fon  being  fully  eftabliflied,  the  cuftom  of 
crowning  the  fon  in  the  father's  life,  was  laid  afide,  as  unneceflary. 

IN  England  the  practice  was  antiently  the  fame.  William  the  Conque- 
ror, though  he  fet  up  a  claim  under  Edward  the  Confeflbr's  will,  yet  as 
that  never  appeared,  a  formal  election  by  which  he  was  chofen,  extorted  in- 
deed by  dread  of  his  power,  but  apparently  free,  was  his  title.  When  pref- 
fed  to  declare  a  fucceflbr,  he  only  fignified  his  wim  that  William  might  fuc- 
ceed, but  declared  he  would  leave  the  people  of  England  as  free  as  he  had 
found  them.  William  accordingly  was  elected  in  prejudice  of  his  elder 
brother  Robert,  and  upon  his  death,  occafioncd  by  an  accident,  Robert 

S 

•f  Dalrymple  on  feud,  property,  chap.  5.  §  i.     Hume,  appen.  2. 


138  LECTURES     ON     THE  LECT.  14. 

was  again  excluded,  and  Henry  the  Firft,  the  third  brother,  chofen.  Hen- 
ry was  willing  to  have  the  courfe  of  defcent  fecured  in  his  offspring  ;  and 
for  thi&  purpofe  proceeded  in  the  method  that  had  been  fo  fuccefsful  in 
France,  namely,  by  caufmg  his  fon  Henry  to  be  crowned,  and  fworn  to. 
But  this  latter  dying  childlefs  in  the  lifetime  of  his  father,  king  Henry 
caufed  his  daughter  Maud  to  be  acknowledged  fucceflbr,  and  the  oath  of 
eventual  allegiance  to  her  to  be  taken  by  his  people.  However,  this  pro- 
ject did  not  fucceed.  No  nation  of  Europe  had  yet  feen  a  crown  on  the  head 
of  a  female ;  and  Spain  was  the  only  country  that  had  ever  had  a  king  who 
claimed  in  a  female  right.  The  majority,  therefore,  upon  Henry's  death, 
looked  upon  their  oath  as  inconfiftent  with  the  nature  of  monarchy,  and  void, 
and  in  confequence  chofe  Stephen,  who  was  the  fon  of  Maud's  aunt,  and 
graridfon  of  the  Conqueror,  whofe  whole  male  ifiue  was  now  fpent.  There 
was,  however,  a  large  party  in  the  kingdom  who  paid  a  greater  veneration 
to  the  obligation  of  their  oath,  and  adhered  to  Maud.  Hence  was  this 
reign  a  continued  fcene  of  civil  war,  until  all  fides,  being  wearied  out,  by 
mutual  confent,  ratified  by  the  dates  of  the  kingdom,  Stephen  was  allowed 
king  for  life,  and  Maud's  perfonal  pretenfions,  as  a  woman,  being  fet  afide, 
her  fon,  Henry  the  Second,  was  declared,  and  fworn  to,  as  eventual  fuc- 
ceflbr |. 

HENRY  the  Second  followed  the  example  of  his  grandfather,  and  had 
his  eldeft  fon  Henry  crowned ;  but  that  ungrateful  prince  confpiring  and 
rebelling  againft  him  at  his  death,  which  likewife  happened  in  the  lifetime 
of  his  father,  the  old  king  fearing  the  like  confequences,  refufed  to  crown 
his  next  fon  Richard ;  who  confcious  of  his  own  ungrateful  conduct,  and 
fufpecYmg  that  this  refufal  proceeded  from  partiality  to  John,  the  youngeft 
and  favourite  fon,  ftirred  up  thofe  commotions  and  rebellions  which  broke 
his  father's  heart.  Richard  was  the  next  heir,  and  did  fucceed,  but  not 
merely  in  the  right  of  next  heir ;  for  he  affumed  no  title  but  that  of  duke 
of  Normandy,  until  he  was  elected  and  crowned.  The  title  of  John  was 
notorioufly  by  election,  and  his  fon  Henry  the  Third  was  the  firfl  who  was 
introduced  to  his  fubje&s  by  the  words,  Behold  your  king,  or  words  equi- 
valent. Thofe  few  who  adhered  to  his  father,  immediately  fwore  to  himj 

but 

f  Hale's  hift.  of  the  common  law,  chap.  5.     Bacon's  hift.  and  polit.  difcourfe  on  the 
laws  and  government  of  England,  part  i.  chap.  45,  55,  and  56. 


LECT.  14.  LAWS    OP    ENGLAND. 

but  the  majority,  who  were  difaflccled,  did  not  fuhinit  but  upon  terms,  the 
rcftoration  of  the  chart* 

FROM  that  day  the  lineal  fuccefllon  has  been  cftabliflied,  and  the  crown 
is  vefted  in  the  fucceflbr  upon  the  death  of  his  anceftor,  and  the  maxim 
prevailed  of  the  king's  never  dying ;  whereas  before,  the  crown  wa 
abeyance,  till  coronation,  and  the  date  of  the  king's  reign  was  taken, 
not  as  now,  from  the  death  of  the  former  monarch,  but  from  the  day 
that  the  fucceeding  one  was  crowned.  Henceforth  coronation  became  a 
mere  ceremony,  though  the  form  of  an  election  is  ftill  continued  in  it.  I 
have  been  more  particular  in  this  detail,  in  tracing  the  origin  of  the  here- 
ditary defccnt  of  the  crown,  to  mew  how  falfe  in  fact,  as  well  as  in  reafon, 
the  notion  is  of  its  being  founded  cither  on  divine  right,  or  on  any  law  of 
man  coeval  with  the  monarchy  f. 

HAVING  laid  down  the  rules  of  defcent  in  the  old  feudal  law,  in  regard 
to  the  fons  of  the  laft  pofleflbr,  it  will  be  proper  next  to  mention  how  far  it 
admitted  reprefentation,  or  collateral  fuccefllon ;  for  at  firft  both  were  ex- 
cluded. If  a  man  had  two  fons,  one  of  which  died  before  him,  leaving  a 
fon,  the  grandfon  could  not  fucceed  to  his  grandfather,  but  the  uncle  was 
fole  heir.  This  was  grounded  partly  on  the  prefumption  that  the  uncle  was 
of  more  mature  age,  and  better  qualified  to  do  the  fervice  ;  but  this  could 
not  be  the  only  reafon,  for  the  rule  was  general,  and  held  where  the  grand- 
fon  was  of  full  age  and  capacity.  We  muft  have  recourfe,  therefore,  to  a 
farther  caufe,  which  was  alfo  the  fame  that,  in  thofe  old  times,  prevented 
collateral  defcents  ;  for  if  a  man  had  two  fons,  by  the  old  law,  the  eftate 
was  divided  between  them.  If  one  of  thefe  died  without  iflue,  the  brother 
did  not  fucceed  to  the  (hare  of  the  deceafed,  but  it  reverted,  as  an  efcheat, 
to  the  lord.  The  reafon  of  both  thefe  was,  that  he  that  claims  by  defcent, 
muft  claim  through  the  laft  pofleflbr,  and  derive  his  right  from  him  ;  and 
that  right  arofe  from  the  fuppofition  of  his  being  educated  in  the  fealty  of 
the  lord,  that  is,  by  the  laft  pofleflbr  who  had  fworn  fealty.  Therefore  the 
grandfon,  being  educated  under  the  patriot  pote/las  of  his  father,  who,  dying 
before  the  grandfather,  had  never  taken  the  oath  of  fealty,  was  excluded 
the  fucceflion,  as  not  trained  up  by  a  real  tenant  j  but  the  uncle  was  ad- 

S  2  mittcd 

f  Id.  chap.  57.     See  alfo  Tyrrel's  hiflory,  and  Kenuet's  hiflorians. 


140  LECTURES     ON     THE  LFCT.  14. 

mitted  to  claim  from  the  grandfather,  the  tenant  under  whom  he  was 
bredf. 

THIS  rule  was  of  fome  advantage  to  the  feudal  fyftem  at  that  time,  as  it 
frequently  prevented  the  too  great  crumbling  of  fiefs,  when  aim  oft  all  of 
them  were  divifible.  For  the  fame  reafon  a  brother  could  not  fucceed  to  a 
brother,  even  in  a  paternal  fief,  becaufe  he  was  not  educated  by  the  lad 
pofifefibr  that  had  done  fealty :  and  though  this  feems  very  unreafonable,  as 
he  had  been  bred  in  the  fealty  of  the  lord,  namely  by  the  father,  yet  this 
rule  continued  for  ages,  being  greatly  for  the  advantage  of  the  king  and 
the  great  lords,  in  regard  to  their  efcheats ;  as  every  failure  of  a  lineal  de- 
fcent  occafioned  them  to  happen.  Neither  was  it  thought  fevere  in  thofe 
early  ages  by  the  tenants.  As  all  benefices  were  originally  for  life,  it  was  a 
great  advantage  to  have  them  made  defcendible  even  under  thefe  drift 
limitations}. 

AT  length  the  neceffity  of  Charlemagne's  grandfons,  who  had  parted  the 
empire,  and  were  in  eternal  broils,  extorted  from  them,  in  France,  a  grant 
of  the  grandfon's  fucceeding  in  his  father's  mare,  by  way  of  reprefentation, 
in  imitation  of  the  civil  law,  and  alfo  of  brothers  fucceeding  to  brothers  in  a 
paternal  fief,  but  not  in  a  new  one.  And  about  an  hundred  and  fifty  years 
the  like  neceffity  of  the  emperor  Conrad,  who  was  embroiled  with  the  Pope, 
procured  the  fame  law  for  Germany  and  Italy  |j. 

THE  extenfion  of  the  right  of  collateral  fucceffion  beyond  brothers  grew 
up  by  degrees,  not  from  any  pofitive  law.  It  was  firft  extended  to  uncles 
and  coufin-germans,  provided  it  was  a  fief  defcended  from  the  grandfa- 
ther ;  afterwards  to  any  the  next  coufin,  to  the  feventh  degree,  defcended 
from  the  firft  purchafer ;  and  at  laft  to  any,  however  remote,  who  could 
prove  their  defcent  from  the  firft  purchafer.  This  was  the  rule  in  ancient 
inheritances ;  but  with  refpeft  to  new  ones,  lately  acquired,  there  grew  up 
a  practice  of  granting  them  as  ancient  ones  ;  feudum  novzim,  ut  ant'iquum^  da- 
tum. Here  the  fief,  though  really  new,  was,  by  means  of  this  grant,  fup- 

pofed 

f  Glanvil,  lib.  7.  cap.  3.     Craig  cle  feud.  lib.  2.  diegef.  15.      Dalrymple  on  feudal 
property,  chap.  5.  §  2. 

J  Lib.  Feud.  2.  tit.  12. 

i|  Lindenbrogius,  cod.  leg.  antiq.  p.  679. 


LECT.  14.  LAWS    or    E  N  G  L  A  N  I).  UI 

ft 
,1  to  proceed  from  fome  indefinite!  fc  aaoeftor,  at  any  diftance j 

ami  then-fore  ;P  who  cnul.l  pmvc  himfclf  dcfcended  from  a  common 

aiu.  !afi  poiltilor,  \v.is  admillible,  and  In  thai  \\a^  neareft  by  the 

ruK  Hlion  was  preferred.     In  this  calf,  ;  1  rule  <>: 

quiring  a  proof,  that  the  peribn  claiming  as  heir  was  a  dcfccndant  of  the 
any  anceftor  of  the  laft  poflcffor,  would  be  abfurd,  as  defeating  the 
tenure  ot  inveftiture.  Any  anceftor  pro  re  nata  might  be  fuppoled  the  Arft 
purchafcr,  to  fupport  the  intention  of  the  donor,  in  his  directing  it  to  be 
confidered  as  an  ancient  fief,  although  in  faft  modern.  So  in  this  cafe,  if 
the  fief  was  mafculinc,  any  male  relation,  defcended  from  male  blood  entire- 
ly, was  inheritable,  even  up  to  Adam,  I  mean,  if  he  could  prove  his  de» 
feent ;  but  females,  and  their  defccndants  were  excluded  f . 

IF  it  was  defccndible  to  females,  either  by  the  particular  terms  of  the 
grant,  or  by  the  general  law  of  the  country,  then,  as  it  was  fuppofed  to  de- 
fcend  from  any  lineal  anceftor  pro  re  nala^  that  anceftor  might  be  a  female, 
and  the  defendants  of  females,  and  they  themfelvcs  might  be  admiflible. 
The  rule  then  was,  to  eftablim  in  this  cafe  of  a  fictitious  defcent,  the  fame 
regulations  as  in  the  cafe  of  a  real  one.  But  here  the  root  from  whence  the 
right  of  defcent  was  to  fpring,  was  inverted  ;  for  as  there  was  no  real  ancef- 
tor, an  original  purchafer,  the  perfon  laft  feized,  that  is  pofiefled  of  the  fee, 
was  the  perfon  to  be  confidered.  As  in  the  old  and  common  cafe  of  inheri- 
tances defcending,  the  reckoning  was  downwards  from  the  firft  acquirer ; 
in  cafe  of  collaterals,  when  they  were  admitted,  you  begin  to  reckon  lineal- 
ly upwards,  and  at  every  ftep  enquire  for  collaterals  defcended  from  that 
lineal  anceftor  you  are  upon  at  the  time  J. 

A  MAN  purchafes/^Www  novum,  ut  antiquum,  and  dies  without  heirs  of 
his  body.  This  feud  is,  by  the  conftitution  of  it,  prefumed  to  have  de- 
fcended from  fome  of  his  anceftors.  To  find  out  who  is  that  anceftor,  it 
was  likely  to  have  defcended  from,  you  muft  look  at  the  law  of  defcents : 
the  father,  in  the  firft  place,  is  fuppofed  the  perfon.  His  children,  that  is, 
the  brothers  or  fifters,  or  their  defcendants,  in  the  firft  place  ;  if  none  of 
them,  the  grandfather  by  the  father  is  fuppofed  the  perfon  ;  then  the 
grandfather's  defcendants.  The  uncles  and  aunts  by  the  father,  and  their 

defcendants, 

f  Dalrymple  on  feud,  property,  chap.  5. 

J  Craig,  de  feud.  lib.  2.  diegef.  14. 


142  L  E  C  T  U  R  E  S     ON     THE  LECT.  14. 

«* 

defcendants,  fucceed  in  the  fecond  place.  If  none  of  them,  then  the  great 
grandfather's  by  the  grandfather  and  father  defcendants,  the  great  uncles 
and  aunts,  and  their  pofterity ;  and  if  there  are  none  of  them,  you  (till  go  a 
Hep  higher  in  the  male  line,  till  you  can  trace  it  no  farther.  But  now  you 
begin  to  invert  the  rule  of  tracing  up  in  the  male  anceflors,  and  fo  down- 
wards, and  trace  up  to  the  female  anceftor  of  the  males,  as  fuppofing  the 
eftate  defcended  from  her,  or  her  anceflors.  For  inftance,  I  have  fuppofed 
the  defcendants  of  the  male  line  have  failed  in  the  great  grandfather.  His 
wife,  therefore,  the  great  grandmother,  is  fuppofed  the  firft  purchaferj 
for,  upon  account  of  the  probability  of  the  inheritance  coming  through 
males,  I  trace  up  to  her  through  the  father  and  grandfather  ;  her  heirs, 
therefore,  mall  fucceed,  firft,  lineal,  then  collateral,  in  the  fame  manner 
as  if  the  eftate  had  defcended  from  a  remote  anceftor  of  her's.  If  none  fuch 
can  be  found,  we  defcend  another  ftep,  namely,  to  the  grandmother  by  the 
father,  and  fuppofe  the  eftate  to  have  come  from  her  line  ;  and  then  heirs, 
firft  lineal,  then  collateral,  fucceed  according  to  their  feveral  ranks.  If 
none  of  thefe,  fo  that  there  is  no  kindred  on  the  fide  of  the  father,  the  pre- 
fumption  is,  that  this  fuppofed  antient  feud  came  from  the  mother's  family, 
and  therefore  the  heirs  of  her  male  anceftors  are  to  be  traced  up,  and  difco- 
vered  in  the  fame  manner ;  and  whenever  they  fail,  the  heir  of  the  moft  re- 
mote female  anceftor,  all  through  males  ;  and  failing  them,  the  heir  of  the 
next  moft  remote,  and  fo  on,  until  the  blood  of  the  mother  is  fpent ;  and 
then  the  eftate,  for  want  of  heirs,  reverts  to  the  lord,  of  whom  it  is  hoi- 
den. 

SUCH  is  the  rule  of  defcents  of  new  purchafes  granted  as  if  they  had  been 
ancient  inheritances  ;  but  this  rule  was,  on  the  Continent,  and  anciently  in 
England,  confined  to  fuch  grants,  and  them  only,  wherein  this  claufe  ap- 
peared in  the  inveftiture.  But  in  the  reign  of  Stephen,  his  neceffity  of  gain- 
ing adherents,  and  the  fame  neceffity  of  his"  competitor  Henry  the  Second, 
occafioned  fo  many  grants  of  this  kind  to  be  made,  fome  originally,  and 
others  on  the  furrender  of  old  ones,  that  it  hath  fince  become  the  common 
law  of  England,  that  purchafes,  that  is,  new  acquifitions,  are  defcendible  to 
any  relation,  however  remote  f . 

IT  will  be  neceffary  to  fay  fomething  as  to  feminine  feuds ',  which  are  a  devi- 
ation from  the  ftrict  principles  of  the  ancient  law,  which  excluded  them  and 

their 
•j-  Hale,  hift.  com.  law,  chap.  9. 


LFCT.  14.          LAWS    OF    ENGLAND,  143 


ili  IVcndants  entirely.  They  firft  arofc  from  the  woman's  being  the 
principal  coniideration  oi"  the  grant  ;  as  when  a  lord  gave  lands  in  marriage 
with  his  daughter,  filler,  niece,  kinfwoman,  or  any  other  female:  here 
the  lands  being  partly  given  in  confideration  of  the  female  blood,  it  was  rea- 
fonable  they  and  their  defcendants  mould  be  inheritable.  But  this  was  dill 
an  exception  to  the  general  law,  and  confined  to  thofe  grants  wherein  it  wa* 
mentioned,  until  the  number  of  thole  grants,  at  length  prevailed  to  have 
this  order  of  fucceflion  confidered  as  the  general  law,  and  the  fucccflion  of 
males  remote,  in  exclufion  of  a  nearer  female,  (as  in  cafe  of  tail  male)  con- 
iidered  as  an  exception.  The  monarchy  of  France,  however,  and  of  many 
of  the  principalities  of  Germany,  have  retained  the  antient  feudal  lav/,  in 
absolutely  excluding  females  and  their  defcendants. 

THE  dcfcent  of  imperial  crowns  to  females,  was  of  a  much  later  date,  than 
that  of  lower  fiefs  :  for  here  a  manly  capacity  was  looked  upon  as  indifpenfi- 
bly  requifite.  The  firft  flep  was  admitting  a  male  reprefentative  for  them,  a 
hufband  or  a  fon.  This  began  in  Spain.  Pelagius,  who  was  of  the  blood 
royal,  having  gathered  a  few  of  the  Spanifh  fugitives  together,  after  the 
Moorifh  conqueft,  founded  a  pretty  monarchy  in  the  mountains  of  Afturias. 
His  fon  Favila  dying  without  iflfue,  the  crown  was  given  to  his  daughter's 
hufband,  and  this  continued  the  rule  for  many  ages,  where  males  failed. 
But  where  the  fon  of  fuch  female  heir  was  of  fufficient  age  to  mount  the 
throne,  he  of  courfe  excluded  both  mother  and  father.  At  length,  in  the 
thirteenth  century,  Europe,  for  the  firft  time,  faw  a  woman  folely  inverted 
with  royalty,  Joan  the  firft  of  Naples;  for  Henry  the  firft  of  England's  pro- 
ject in  favour  of  his  daughter  Maud,  as  we  have  faid  before,  had  mifcarried. 
Margaret  of  Denmark,  Sweden  and  Norway,  Joan  the  fecond  of  Sicily, 
and  Ifabella  of  Caftile,  followed  in  the  next  century.  In  the  following  cen- 
tury came  Mary  and  Elizabeth  in  England,  and  many  fince  in  all  parts  of 
Europe  ;  fo  that  at  prefent  the  monarchies  of  Europe  are  defcendible  to 
females  in  general,  if  we  except  France,  and  feveral  but  not  all  of  the  prin- 
cipalities of  the  empire.  Bohemia  and  Hungary  have  received  a  queen  in 
the  perfon  of  the  prefent  emprefs  in  this  prefent  century,  but  fo  inveterate 
are  old  cuftoms  and  opinions,  that  when  her  faithful  Hungarians  refolved 
to  affift  her  to  the  laft  extremity,  it  was  by  faying,  moriamur  pro  rege  no/lro 
Terefa,  not  pro  reglna  f  . 

LECTURE 

f  Giannone's  hift.  of  Naples.    Seldcn's  tit.  hon.  part  2.  chap.  9. 


144  LECTURES    ON     THE          LECT.  15. 


LECTURE       XV. 


difference  between  allodial  and  feudal  lands — The  reftri  films  on  the  feudal 
law — The  decay  of  thefe — The  hi/lory  of 'voluntary  alienations. 

ONE  great  and  ftriking  difference  between  allodial  and  feudal  lands 
confifted  in  this,  that  the  former  entered  into  commerce.  They 
were  faleable  or  otherwife  alienable,  at  the  will  of  the  poffeffor,  either  by 
act  executed,  and  taking  effect  in  his  lifetime,  or  by  will,  to  take  effect 
after  his  death.  They  were  likewife  pledges  to  the  king  for  the  good  be- 
haviour of  the  owner,  and  therefore  for  his  crimes  forfeitable  againft  him 
and  his  heirs.  They  were  alfo  fecurity  to  his  fellow  fubjects  for  the  debts 
he  might  contract;  and,  therefore,  by  following  the  due  courfe  of  law,  at- 
tachable and  faleable,  to  fatisfy  the  demands  of  a  juft  creditor  f. 

IN  every  one  of  thefe  refpects  did  fiefs,  when  they  became  defcendible  in- 
heritances, differ  from  them.  The  poffeffor  was  but  an  ufufructuary,  and  his 
power  over  his  lands  was  checked  and  controlled  by  the  intereft  others  had 
therein.  Thefe  were  the  lord  and  the  perfoiis  defcended  from  the  firft  pur- 
chafer.  The  confent  of  the  lord  was  abfolutely  neceffary  to  the  tenant's  alie- 
nation, to  prevent  the  introduction  of  an  enemy  or  unqualified  perfon  into 
the  fief ;  but  the  confent  of  the  lord  alone  was  not  fufficient,  if  there  were 
in  being  any  perfons  entitled  to  the  fucceffion.  Thus  if  A.  is  himfelf  the 
firft  purchafer  of  a  fee,  and  hath  a  fon,  his  alienation,  even  with  the  con- 
fent of  the  lord,  would  hold  good  only  during  his  own  life ;  but  if  he  had  ali- 
ened with  the  confent  of  the  lord  before  iffue  had,  this  fhould  be  valid,  and 
bind  the  iffue  born  afterwards.  For  here  the  alienation  was  made  by  all  the 
perfons  in  being  interefted  in  the  land,  and  the  former  contract  is  by  their 

mutual 

f  Bouquet,  le  droit  public  de  France,  p.  30. — 36. — Allodium,  proprietas  qux  a  nullo 
recognofcitur.  Tenere  in  allodium,  id  eft,  in  plenam  et  abfolutam  proprietatem.  Habet 
integrum  ac  dirc£tum  dominium  quale  a  principio  de  jure  gentium  fuit  diflributum  et 
djftia£taau  Du  Moulin,  de  1'ancienne  coutume  de  Paris,  art.  46. 


LETT.  IT-          LAWS     OF     ENGLAND.  145 

mutual  aft  diflblvcd,  nor  is  there  any  wrong  done;  for  it  is  an  abfurdity  to 
\\\\  that  a  perfon  not  in  rcrum  natura  can  fuller  wrong  :  the  confcnt  therefore 
of  the  fon,  or  fons,  if  one  or  more  of  them  were  in  being,  was  as  ncccflary 

•a.;  the  lord's  in  this  cufe. 

Ir  the  lands  defcendcd  from  B.  the  firfl  purchafer,  to  his  fon  A.  before 
the  introduction  of  collateral  defcent,  the  law  was  the  fame ;  but  when 
thefe  were  admitted,  it  varied  for  the  fame  reafon.  A.  could  not  alienate 
with  the  confent  of  the  lord  and  his  fons,  without  the  confent  alfo  of  all 
the  collaterals  intitled,  that  is,  all  the  agnail^  or  male  defccndants  of  B.  for 
this  would  drip  them  of  their  right  of  fucceflion.  If  it  defcendcd  from  C. 
the  grandfather,  or  from  any  more  remote  anceftor,  the  confent  alfo  of  all 
the  male  descendants  of  the  grandfather,  or  that  remote  anceftor  was  re- 
quired, upon  the  fame  principle.  By  this  we  fee,  it  was  next  to  an  impof- 
fibility,  that  an  eftate  which  had  been  any  time  in  a  family  (fo  many  con- 
fents  were  required)  could  be  alienated  at  all.  However,  there  was  al- 
lowed by  that  law  a  transfer  of  the  fief  in  a  particular  cafe,  even  without 
the  confent  of  the  lord.  This  was  called  refuting  the  fief;  it  was  a  refigna- 
tion  of  it  to  the  perfon  who  was  next  in  order  of  fucceflion.  Here  was  no 
injury  done  to  the  lord,  or  the  agnati,  becaufe  it  went  in  the  fame  manner, 
and  to  the  fame  perfons,  as  if  the  refuter  was  abfolutely  dead,  <ir  quifque 
jurlfuo  renunciare  poteft.  For  the  fame  reafons  no  teftaments  of  lands  were 
allowed,  except  the  lord,  and  all  others  concerned  were  prefent  and  confent- 
ing  ;  which  fcarce  ever  happening,  it  became  a  maxim  of  the  Englifh  law, 
that  lands  were  not  devifable  by  will. 

NEITHER  were  the  feudal  lands  originally  forfeitable  for  the  crimes  of  the 
pofieflbr  for  any  longer  time  than  his  own  life,  if  there  were  perfons  entitled 
to  the  fucceflion.  But  this  rule  of  forfeiture  was  afterwards  extended  to 
the  iflue  of  the  criminal :  for  as  the  right  of  fucceflion  depended  much  on 
the  fuppofition  the  fucceflbr  was  educated  in  the  fealty  of  the  lord,  this  pre- 
fumption  ceafed  where  the  father  had  actually  broke  his  oath  of  fealty.  And 
at  length,  when  the  rule  was  eftablifhed,  that  every  perfon  mufl  claim 
through  him  that  was  laft  feized,  and  make  himfelf  heir  to  him,  the  delin- 
quency of  the  predeceflbr  became  likewife  a  bar  to  collaterals. 

T  FEUDAL 


146  L  E  C  T  U  R  E  S    ON     THE  LECT.  15. 

FEUDAL  eftates  alfo  were  not  liable  to  the  debts  contracted  by  the  feuda- 
tory. For  if  the  creditor  might  have  fold  them  for  debt,  a  wide  door  for 
alienation  had  been  opened,  by  means  of  fictitious  debts,  contracted  by  col- 
lufion  between  the  creditor  and  vafial.  Or  even  if  they  were  honeft  ones, 
the  lords  and  the  heirs  would  have  been  deprived  of  their  right.  Neither 
could  the  creditor  attach  the  profits  of  the  land  during  the  life  of  the  debtor  j 
for  if  he  could,  an  improvident  vafial  might  fo  impoverilh  himfelf,  as  to  be 
incapable  of  the  duties  of  the  fief. 

SUCH  and  fo  flrong  were  the  reflridions  this  old  law  laid  on  the  feuda- 
tory. But  as  times  grew  more  fettled,  and  the  flri&nefs  of  the  military  iyf- 
tem  abated  ;  as  commerce  increafed,  and  with  it  luxury,  the  propenfi ty  to 
alienation  grew  up,  and  became  at  length  fo  flrong,  in  every  country,  as 
to  be  irrefiflable.  And  it  is  a  fpeculation  not  only  curious,  but  very  ufeiul 
for  the  fludents  of  our  law,  to  obferve  and  remark  its  progrcfs  in  England  f . 

THE  firfl  flep  towards  voluntary  alienations  arofe  from  the  practice  of  fub- 
infeoffing.  Originally,  as  I  obferved  in  a  former  lecture,  although  the 
vaflals  of  the  king  could  infeoff,  their  vafials  could  not ;  but  at  the  latter 
end  of  the  fecond  race  in  France,  when  the  power  of  .the  crown  was  de- 
clined, and  the  great  lords  were  in  reality  fovereigns,  acknowledging  only 
a  nominal  dependance  on  the  king,  fome  of  them,  in  order  to  flrengthen 
themfelves,  and  to  increafe  the  number  of  their  military  followers,  allowed 
this  privilege  not  only  to  their  immediate  vaflals,  but  to  fub-vaflals  alfo,  to 
an  unlimited  degree.  And  when  this  practice  was  once  begun,  the  other 
lords,  for  their  own  fecurity  and  grandeur,  were  obliged  to  follow  the 
example.  This  practice  of  fubinfeuding  contributed  much  to  the  power  of 
the  lords,  and  therefore  was  by  them  encouraged.  But  though  it  was  in- 
tended, at  firft,  only  to  extend  to  part  of  the  vafTaPs  fief,  the  ufage  of  fub- 
infeuding the  whole  gained  ground,  to  the  great  prejudice  of  the  heirs  j 
when  the  terms  of  fubinfeudation  were  no  better  than  thofe  of  the  firft 
grant ;  and  of  the  lords  alfo,  who  thereby  loft  frequently  their  profitable 
fruits  of  tenure,  their  reliefs,  wardfhips,  and  marriages ;  which,  with  refpeft 
to  the  lords,  was  remedied  in  the  reign  of  Edward  the  Firfl,  by  the  ftatute 

of  Qula  emptores  terrarum  before  mentioned  j. 

IN 

f  Dalrymple  on  feud,  property,  ch.  3.  feel.  I. 

±  Lib.  4.  feud.  tit.  34.     Ruif  head's  flatutes,  y.  i.  p.  122. 


LECT.  15.  LAWS   OP   EN  G  LAN  D. 

IN  the  mean  time,  free  alienation  was  allowed  in  cities  and  borougju ; 
partly  becaule  many  ot  theic  were  old  Roman  towns,  and  their  lands  and 
houfes  allodial,  and  becaufe  thofe  which  were  not  fo  were  founded  by  lords 
on  T  principle;  for  the  benefit  of  commerce,  \\liich  could  never  have 

flourilhcd  if  a  debtor  had  not  full  power  over  his  property  of  all  kinds  to 
:V  his  creditor  ;  and  if  the  creditor,  in  cafe  he  was  unwilling,  had  not 
power  to  compel  him  to  fell  for  his  juft  fatisfacYion.  Alienations,  howr 
of  one  kind  were  permitted,  namely,  the  founding  of  monafleries,  and  en- 
dowing  of  churches.  Thefe,  through  the  fuperftition  of  the  times,  were 
looked  upon  as  being  equally  beneficial  to  the  feudal  focicty  as  fubinfcuda- 
tion,  by  engaging  God  in  their  intereft ;  and  even  if  the  lords  and  their  heirs, 
who  fuffered  by  thefe  grants,  were  willing  to  difputc  them,  they  were  un- 
able to  contend  with  the  omnipotent  power  of  the  pope  and  the  clergy ; 
until  at  length  the  tyranny  of  the  fir  ft,  and  the  avarice  of  the  laft,  provo- 
ked both  king  and  people  to  reflrain  them  by  the  acls  againfl  Mortmain. 
But  no  other  alienations  were  yet  allowed  without  confent,  as  before  men- 
tioned f . 

IN  the  reign  of  William  Rufus  a  particular  matter  occurred,  which  open- 
ed a  way  for  alienation  without  the  lords  confent,  and  occafioned  a  prodi- 
gious revolution  in  the  landed  property  of  Europe.  This  was  the  madnefs 
of  engaging  in  crufades  for  the  recovery  of  the  Holy  Land.  A  crazy  friar 
returning  from  a  pilgrimage  to  Paleftine,  where  he  faw  the  Chriflians  mal- 
treated, began  to  preach  up  this  expedition  as  the  mofl  meritorious  of 
works ;  and  it  is  wonderful  with  what  an  epidemical  contagion  the  enthu- 
fiafrn  fpread  through  all  ranks  of  people.  Thefe  pilgrims,  who  aflumed  the 
crofs,  had  no  way  of  defraying  the  expence,  but  by  the  fale  of  their  lands, 
which  their  lords,  if  difmclined,  dared  not  to  gainfay,  or  obftruft  fo  pious  a 
work.  But  indeed,  mofl  of  them  were  confcientioufly  aflecled  with  the 
fame  madnefs,  as  may  be  feen  by  the  great  number  of  kings,  princes,  and 
lords,  that  beggared  themfelves  in  thefe  fruitlefs  enterprizes  J. 

T  2  THE 

f  Gibfon,  cod.  jur.  ecclef.  Anglican,  tit.  28. 

^  Kennet's  collection  of  hiftorians,  vol.  I.  p.  116.    Carte,  hift.  of  England,  vol.  I. 
p.  469.  555- 


148  L  E  C  T  U  R  E  S     ON     THE  LECT.  15. 

THE  pope  and  the  kings  concurred  in  inflaming  this  fuperflition,  but 
from  different  motives.  The  pope  did  it  out  of  ambition  and  avarice. 
The  former  he  fatisfied  by  declaring  himfelf  the  head  of  the  expedition,  and 
thereby  attaching  to  himfelf  and  his  fee  fuch  multitudes  of  redoubted  warri- 
ors by  the  ftrongeft  of  bonds,  confcientious  fuperftition.  And  indeed  fuccef- 
fors  in  that  chair  afterwards  made  very  good  ufe  of  this  example,  by  preach- 
ing up  crufades  againft  fuch  Chriftian  kings  and  princes  as  difobliged  them. 
But  the  more  immediate  advantage  he  received,  was  the  glutting  his  avarice 
by  a  proper  fale  of  difpenfations  to  fuch  as  had  rafhly  taken  the  crofs,  and 
afterwards  found  themfelves  unable,  or  unwilling  to  fulfil  the  obligation. 
The  reafon  that  induced  the  kings  of  Europe  to  promote  this  fpirit,  I  mean 
fuch  of  them  as  were  not  poffeffed  with  the  frenzy  themfelves,  was  the  hope 
of  abafmg  their  too  great  and  powerful  vaffals,  which  would  naturally  follow 
from  the  alienation  of  part  of  their  lands,  to  equip  them  for  the  expedition ; 
and  a  defire  to  facilitate  the  partition  of  thefe  great  feignories  among  fe- 
males, when  the  males  were*  fo  frequently  and  miferably  flaughtered  f , 

So  many  were  the  alienations  of  this  kind,  and  fo  long  were  they  conti- 
nued, that  it  is  no  wonder  that  the  interefl  of  the  lord  and  the  heirs  began 
to  lofe  ground  in  the  opinions  of  the  people,  which  proceeded  fo  far,  as  that, 
in  the  other  cafes,  the  lord,  on  the  payment  of  a  moderate  fine,  either  be- 
fore or  after,  was  looked  upon  as  obliged  to  confent  to  the  alienation. 
Let  us  now  fee  how  the  liberty  of  alienation  gained  ground,  particularly  in 
England. 

IN  Henry  the  Firft's  time,  a  man  was  allowed  to  alienate  his  purchafe, 
but  not  an  eflate  that  came  by  defcent.  This  law  fays,  Acquifttiones  fuas  det 
cul  magis  velit ;  Jl  Bocland  autem  habeat,  quam  ei  parentes  fui  dederinf,  non 
mitt  at  earn  extra  cognationem  fuam  j. 

THIS  liberty  of  alienation  of  purchafes  is  not  to  be  underftood  generally, 
but  only  where  the  purchafer  had  no  fon ;  if  he  had  any,  it  may  be  a  doubt 
whether  he  could  alienate  any  part  at  this  time.  Certain  it  is,  he  could  not 
the  whole,  even  in  Henry  the  Second's  time.  For  thus  Glanville  lays 

down 

f  Hume,  hift.  of  England,  vol.  I, 
$  LL.  Hen.  I.  cap.  70. 


LECT.  15.  LAWS   OF    EN  GLAND.  149 

down  the  law  :  S.'  v<  r«  qncjlum  tantum  babucrit,  is  q;<  ferrafua  dcnart 

"co/ucrifj  tune  quiilcm  hoc  ei  licet  fid  non  tot  urn  qncjlum^  quit  non  />6.v/?  j\ 
fnuri  -//  cohere  Jure  \ . 

practice  of  alienating  lands  by  ikfm.t  grew  up  more  flowiy.  At 
this  t'niu-  .1  part  only  \vas  alienable,  and  that  not  ircxlv,  to  all  perfons,  or 
for  any  confideration  generally  ;  but  only  in  particular  cafes,  firfl  to  the 
church  in  Frankalmoigne  ;  fecondly,  to  one  who  had  done  ftrvices  in  war, 
or  to  the  fief  in  time  of  peace  ;  thirdly,  for  the  advancement  of  his  family, 
as  in  Frank-marriage  with  his  daughter,  fifler,  niece,  or  coufni.  Rut  every 
day  this  liberty  gained  ground,  until  at  length  the  intereft  of  the  heir  en- 
tirely vanifhed,  and  that  of  the  lord  began,  in  military  tenures,  to  be  little 
confidered,  and  not  at  all  in  focage.  However,  in  Magna  Charta  fomc 
check  was  given  to  that  kind  of  alienation  of  the  whole  fief,  that  was  car- 
ried on  under  the  pretence  of  fubinfeudation.  Nullus  liber  homo  det  de 
catcro  ampllus  alicid  vcl  vcndat  de  terra  fua  quam  ut  dt  reftdito  terra  pojfit 
Jnjfickntcr fieri  domino  fcudi  firvitium  cl  debitum  j  and  this  fufficiency  was  by 
praftice  explained  to  the  half  of  the  fee{. 

No  provifion  being  made  in  thefe  laws  for  the  confent  of  the  lords,  they 
generally,  though  not  always,  loft  their  fines  ;  and  a  method  likewife  was 
invented  to  obviate  their  refufal,  by  levying  fines  in  the  king*s  courts  of 
record,  in  this  manner.  They  ufed  to  fuppofe  that  the  parties  had  cove- 
nanted to  alienate  ;  and  all  writs  of  covenant  (being  a&ions  of  public  con- 
cern to  the  juftice  of  the  kingdom)  were  fueable  only  in  the  king's  court ; 
and  by  confequence  this  covenant  to  alienate  was  fueable  only  there.  The 
fuperior  court  then  being  poflefled  of  the  matter,  as  an  adverfary  caufe9  per- 
mitted the  parties  (on  a  fine  being  paid  to  the  king,  in  lieu  of  that  which 
he  would  have  received  at  the  end  of  the  fuit,  from  the  party  that  failed)  to 
make  an  amicable  agreement  or  end  of  the  fuit,  which  was  done  by  the 
party  fued  coming  in,  and  recognizing,  that  is,  acknowledging  in  court 
the  right  of  the  demandant  to  the  land.  This  method  of  conveyance  by 
fine  grew  up,  and  ftill  continues  to  be  one  of  the  common  aflurances  of  die 
realm.  For  being  tranfafted  in  a  court  of  record,  it  obviated  the  danger 

of 

|  Lib.  7.  c.  I. 

|  Glanvil,  ut  fupra.    RuIFhead's  ftatutes,  vol.  I.  p.  8. 


150  L  E  C  T  U  R  E  S     ON     THE          LECT.  15. 

of  future  controverfies  between  parties,  or  any  difpute  concerning  the  exe- 
cution of  a  deed,  or  the  giving  of  livery  and  feizin  f . 

AT  length  the  flatute  of  £>uia  emptores  terrarum,  already  mentioned,  was 
made,  as  well  to  remedy  the  mifchiefs  the  lords  complained  they  fuffered 
by  fubinfeudation,  namely,  the  lofs  of  their  fruits  of  tenure,  as  to  fettle  the 
doubt,  as  to  the  right  of  the  tenants  to  alienate.  This  ftatute  entirely  takes 
away  the  lords  confent ;  for  it  gives  the  tenant  free  power  to  fell,  or  alien 
the  whole,  or  part  of  his  tenancy,  to  whom  he  pleafed.  But  then,  in  fa- 
vour of  the  lord,  it  eftablifhes,  that  if  the  tenant  parts  with  his  whole  in- 
tereft  in  the  lands,  namely,  the  fee  fimple,  the  alienee  mould  not  hold  of 
the  a/ienor,  but  immediately  from  the  alienor's  lord,  by  the  fame  fervices, 
by  which  he,  the  alienor,  had  holden.  Thus  were  the  lords,  in  one  re- 
fpeft  fecured  in  their  rights,  by  the  flopping  the  courfe  of  fubinfeudations, 
and  the  tenants  got  a  free  liberty  of  alienation  without  the  confent  of  the 
lord,  or  paying  any  fine  to  him.  The  king,  however,  not  being  named 
exprefsly  in  this  aft,  it  was  conftrued  not  to  bind  him,  as  I  have  faid  before  ; 
and  his  confent  was  ilill  required  to  the  alienation  of  his  tenants  by  military 
fervice,  according  to  the  rule  of  Magna  Charta ;  that  is,  if  more  than  half 
was  alienated,  fo  that  the  refidue  was  deemed  unfufficient  to  anfwer  the  fer- 
vices. And  this  was  put  out  of  doubt  by  the  ftatute  De  prerogativa  regis, 
made  the  i  yth  of  Edward  the  Second,  cap.  6. 

THE  bent  towards  free  alienation,  however,  was  fo  flrong  as  to  occa- 
fion  a  further  mitigation  fo  foon  after,  as  the  firfl  year  of  Edward  the  Third. 
For  then  it  was  provided,  that  if  the  king's  military  tenant  alienated  with- 
out licence,  contrary  to  the  late  aft,  the  land  fo  alienated  mould  not  be  ab- 
folutely  forfeited  as  before,  but  that  the  king  mould  be  contented  with  a 
reafonable  fine  in  chancery.  Thefe  compofitions  were  fpmetimes  difpenfed 
\vith,  to  encourage  the  tenants  to  attendance  in  hazardous  expeditions ;  but, 
except  in  thofe  fingular  cafes,  they  continued  to  be  paid,  until  the  reign  of 
Charles  the  Second,  when  knight's  fervice  being  abolifhed,  they  fell  of 
courfe  along  with  it  {. 

SUCH 

f  Britton,  c.  18.     Wright  on  tenures,  p.  163.  164. 
£  Staunford,  de  prerog.  Reg.  cap.  7. 


LECT.  15.          LAWS    or    ENGLAND.  i5i 

SUCH  was  the  progivf*  the  alienation  of  land  made  by  conveyance 
r/owj  but  tin-  bequeathing  land  by  lait  will  did  not  keep  equal  pace  with 
it.  Tin-  firll  fU-p  made  thento  was  by  laying  hold  of  the  doctrine  of  uftj, 
which  about  the  time  of  Richard  the  Second  was  invented  by  the  clergy,  to 
chide  the  ftatutcs  of  Mortmain,  by  which  their  advance  from  time  to  ti 
\vas  checked.  As  in  every  feudal  grant  there  were  two  eflates,  the  abfolute 
propriety  in  the  lord,  a  qualified  property,  namely,  the  poficflion  and  pro- 
fits, in  the  tenant ;  now  that  they  were  prohibited  from  taking  the 
tenancy,  they  cunningly  dcvifcd  a  means  of  fubdividing  the  tenancy,  by 
fcparating  the  profits  from  the  pofieilion.  When,  therefore,  a  man 
had  a  mind  to  alienate  to  the  church,  as  he  could  not  do  it  directly, 
he  infeoffed  a  perfon  to  the  ufe  of  fuch  a  monaftcry.  Here  the  feoffee 
and  his  heirs  were,  in  the  conftruction  of  the  common  law,  the  pro- 
prietors, but,  in  fact,  were  bare  truftees  for  the  monaftcry,  for  the  ufe  of 
which  they  received  the  profits.  But  it  may  be  alked,  if  the  truftee  or  his 
heirs  would  not  fuffer  them  fo  to  do,  where  was  their  remedy.  The  courts 
of  common  law  allowed  of  no  fuch  divifion  of  eftates  at  that  time,  nor  would 
they  have  fuffered  fuch  neceflary  laws  to  be  defeated  by  fuch  collufion, 
though  they  had  been  acquainted  with  thefe  divided  interefts.  They  had 
recourfe,  therefore,  to  chancery,  where,  it  being  always,  to  the  time  of 
Henry  the  Eighth,  filled  with  a  churchman,  they  were  fure  to  meet  favour  ; 
and  this  court  claiming  an  equitable  power  to  enforce  perfons  confcienti- 
oufly  to  fulfil  their  engagements,  compelled  the  truitee  to  fupport  and 
maintain  the  ufes. 

THESE  ufes,  once  introduced,  were  applied  to  other  purpofes,  particu- 
larly to  that  I  am  now  upon,  the  enabling  perfons  to  difpofe  of  their  lands 
by  will.  The  manner  was  thus  :  A.  aliens  his  lands  to  B.  to  the  ufe  of  A. 
himfelf  for  his  life,  and,  after  his  death,  to  fuch  ufes  as  he  A.  mould,  by 
his  laft  will  and  teftament,  appoint.  B.  was  then  compellable  in  chancery, 
not  only  to  fuffer  A.  to  take  the  profits  during  life,  but  after  his  death  to 
execute  the  directions  of  the  will,  and  to  ftand  fubject  to  the  ufe  of  fuch 
perfons  as  he  appointed,  and  make  fuch  eftates  as  he  directed.  This  me- 
thod gained  ground  every  day,  as  many  perfons  chofe  to  retain  their  power 
of  alienation  in  their  own  hands,  to  the  laft  moment  of  their  lives,  and  to 
keep  their  heirs,  or  other  expectants,  in  continual  dependance.  And  it  at 

length 


152  L  E  C  T  U  R  E  S     ON     THE  LECT.  15. 

length  grew  fo  common,  that  in  Henry  the  Eighth's  time,  it  was  thought 
proper  to  >  give  leave,  without  going  through  this  round-about  method,  to 
difpofe  of  lands  directly  and  immediately  by  will ;  of  the  whole  of  their  fo- 
cage  lands,  and  of  two  thirds  of  the  lands  holden  by  knight's  fervice.  And 
this  latter  tenure  being,  after  the  Reiteration,  turned  into  common  focage, 
all  lands,  not  particularly  reftrained  by  fettlement,  are  fince  become  devif- 
able ;  whereas,  before  thefe  laws,  they  were  only  fo  in  particular  places, 
by  local  cuftom.  But  the  ftatute  that  gives  this  power,  in  order  to  prevent 
frauds,  exprefsly  orders  fuch  will  to  be  in  writing ;  whence  arofe  a  diftinc- 
tion,  as  to  the  validity  of  wills  of  land,  according  as  thefe  lands  had,  or  had 
not,  been  before  devifable  by  cuftom.  For  thofe  that  were  fo  before,  con- 
tinued devifable  by  will  mthtupafive,  or  without  writing  f . 

BUT  the  reduction  of  the  will  into  writing  was  not  found  fufficient  to 
prevent  forgery  and  perjury,  and  therefore  the  ftatute  of  frauds  and  per- 
juries has  added  other  folemnities,  as  requifite  to  pafs  lands  by  will.  It  re- 
quires that  it  mall  be  figned  by  the  teftator,  or  fome  other  by  his  direction, 
and  attefted  by  three  witneffes  in  his  prefence.. 

As  to  figning,  it  is  infignincant  where  the  fignature  is,  whether  at  die- 
bottom,  or  the  top,  or  in  the  context  of  the  will,  the  name  of  the  teftator, 
written  by  his  own  hand,  in  any  place,  being  fufficient.  And  the  putting 
his  feal  to  the  will,  though  without  his  writing,  has  been  judged  fufficient  ; 
for  his  feal  is  as  much  his  mark,  or  fign,  as  his  handwriting.  As  to  the 
atteftation,  the  ftatute  requires  it  to  be  in  the  teftator's  prefence  ;  but  it,  is 
abfolutely  neceffary,  that  he  mould  look  on  and  fee  it  done.  Therefore,  if 
it  is  attefted  in  the  room  where  he  lies  fick  in  bed,  with  his  curtains  un- 
drawn, this  is  a  good  atteftation  ;  or  if  it  is  attefted  in  a  neighbouring  room, 
and  the  door  open,  fo  that  he  might  poffibly  fee  it  done,  this  is  in  his  pre- 
fence. But  if  the  door  be  fhut,  or  the  place  fo  fituated  that  he  could  not  by 
any  means  fee  the  atteftation,  the  will  is  void. 

I  SHALL  next  proceed  to  involuntary  alienation  of  lands,  namely,  for  pay- 
ment of  debts  ;  and  then  give  an  account  of  the  origin  and  progrefs  of 
eftates  tail,  which  were  introduced  to  reftrain  this  power  of  alienation,  and 
to  reftore,  in  fome  degree,  the  old  law  of  keeping  eftates  in  the  blood  of 
the  firft  purchafer. 

LECTURE 

t  An.  27.  Hen.  VIII.  cap.  10.  ap.  Ruffhead,  vol.  2.  p.  226* 


L  A  W 


LECT.  16.  L  A  W  S    OF    E  N  G  L  AN  D.  153 


LECTURE         XVI. 

Involuntary  alienations  of  feudal  land — Talliagc — Edward  I.  introduces  the 
firft  involuntary  attachment  of  lands— Statutes  enacledfor  this  purpofe — Their 
cffcfts — The  origin  of  ejiates  Tail. 

THE  involuntary  alienation  of  feudal  land,  namely,  the  attaching, 
and  afterwards  the  felling  it  for  debt,  kept  pace  pretty  much,  but 
not  ftri&ly,  with  the  voluntary  alienation  already  treated  of.  It  firft  began 
in  cities  and  trading  boroughs,  which  were  either  the  remains  of  old  Ro- 
man towns,  and  where,  conlequently,  the  eflates  were  allodial;  or  elfe  new 
towns,  founded  either  by  the  kings,  or  other  great  lords;  or  their  demefnes, 
for  the  benefit  of  trades  and  arts  within  their  own  diftricls.  External 
commerce,  during  thofe  confufed  times,  was  little  known  or  pradYifed,  the 
Barbarians  of  the  North  infefting  the  coafts  of  the  ocean,  and  the  Saracens 
and  Moors,  thofe  of  the  Mediterranean.  It  was  the  intereft,  therefore,  of 
every  lord  who  had  fuch  a  town  on  his  territory,  to  give  it  fuch  privileges 
as  would  make  it  flourifh,  and  outrival  the  towns  of  like  nature  on  the 
lands  of  the  king,  or  the  neighbouring  lords.  For  the  natives  of  fuch 
towns  were  no  part  of  the  feudal  fociety,  but  were  in  the  nature  of  focage 
tenants  in  the  early  times,  removeable,  and  confequently  fubjcct  to  be  taxed, 
or,  as  our  law  calls  it,  taHiagable,  from  the  French  word  taillcr  to  cut  f . 

TALLIAGE,  confequently,  was  the  cutting  out  a  part  from  the  whole  of 
the  tenant's  fubftance,  at  the  will  of  the  lord.  Yet  this  very  power  of  tal- 
Hage,  which  the  lords  were  not  for  a  long  time  inclined. to  part  with,  joined 
to  their  defire  to  make-  their  towns  flourifh  (that  they  might  be  able  to  bear 
a  greater  talliage)  put  them  under  a  neceflity  of  making  fuch  provifions, 
and  granting  fuch  privileges,  as  were  neceflary  for  the  ufe  of  trade  and  com- 
merce, and  at  length,  in  cffecl:,  deftroyed  that  abfolute  power  of  taxation, 
which  the  king  and  lords  had  all  along  claimed  and  exercifed,  and  which  at 

U  firft, 

f  Madox,  luft.  of  Exchequer,  ch.  17.     Firma  burgi. 


154  L  E  C  T  U  R  E  S     ON     THE  LECT.  16. 

firft,  for  their  own  interefts  fake  (which  no  doubt  they  well  underftood)  they 
had  ufed  with  great  moderation.  But  after  the  difcovery  of  the  civil  law  at 
Amalfi  in  Italy,  in  the  reign  of  our  Stephen,  the  kings  of  Europe,  who 
found  therein  an  unlimited  power  of  taxation  in  the  emperor,  were  defirous 
to  eftablifh  the  like  authority  in  themfelves ;  and  for  that  purpofe  began 
with  opprefling  their  nobles  with  arbitrary  fcutages,  or  commutations  for  mi- 
litary fervices  ;  and  the  towns  of  their  demefne  with  talliages,  not  only  ar- 
bitrary, but  extravagantly  beyond  their  power  to  pay  without  ruin  f. 

JOHN  of  England  was  particularly  famous  for  thefe  extraordinary  char- 
ges ;  for  though  his  title  to  the  crown  was,  at  that  time,  by  many  of  his  fub- 
je&s,  and  by  others  abroad,  much  doubted  (as  in  prejudice  of  his  elder 
brother's  fon  Arthur  then  a  minor)  and  his  only  juft  claim  could  be  but 
by  parliamentary  authority,  the  omnipotence  of  which  was  not  then  fo  uni- 
verfally  admitted,  never  was  there  a  prince  who  carried  his  prerogative  to 
fuch  extravagant  and  oppreffive  heights.  This,  at  length,  occafioned  the 
making  Magna  Charta;  partly  to  aflert  and  reflore  the  ancient  liberties  of  the 
nation,  which  had  been  invaded  ;  partly  to  alter  the  old  law,  in  fuch  parti- 
culars as  had  been  the  engines  of  oppreffion.  One  of  the  chief  of  thefe  latter 
remedies  was  the  taking  away  the  right  of  talliage,  unlefs  confented  to  in 
parliament.  And  now  were  the  boroughs  emancipated,  and  the  burgefles 
made  freemen,  which  before  they  could  hardly  be  Called,  while  their  effects 
lay  wholly  at  the  mercy  of  the  lord  J. 

IN  the  next  reign  they  advanced  in  importance  ;  for  as  the  treafure  of  the 
kingdom  was  in  their  hands,  they  were  fure  to  be  favoured  and  courted  on 
both  fides,  during  the  fierce  contefts  between  the  king  and  the  barons.  And 
in  the  latter  end  of  this  reign  it  appears  they  had  got  admimon  into  parlia- 
ment, which  not  a  little  increafed  their  confequence.  Edward  the  Firft  was 
a  great  favourer  of  merchants,  and,  for  the  fecurity  of  their  debts,  intro- 
duced the  firft  involuntary  attachment  of  lands  by  the  aft  czlledfaitute  mer- 
chant, in  the  thirteenth  year  of  his  reign  ||. 

BEFORE 

+  Du  Cange,  et  Spelman,  voc.  Tallagium.     Madox,  antiq.  of  the  Exchequer,  ch.  1 7. 
$  Hume's  hid.  of  England,  appendix  2.  Madox,    Firma  burgi,  ch.  I. 
jj  Ruff  head,  vol.  i.  p.  115. 


Lr.cr.T6.  LAWS    01     r,  N  C  L  A  N  D.  155 

this  time,  no  lands,  except  in  boro  outturn,  were  attach* 

able  lor  di:bt,   but  only  in  the  cafe  of  the-  king,  \\ho,  by  right  of  his  pi 
Dative,  could  enter  on  the  lands  of  his  debtor,  and  receive  the  profits,  until 
he  \\as  paid.      I-W  the  fame  political  rcafon,  the  furety  alfo  for  a  debt  to  the 
king,  if  IK-  paid  the  debt,  was  allowed  to  come  in  the  king's  place,  and  enjoy 
the  fame  privilege  ;    bur  in  all  other  cal  .hattlcs  were  the  only  mark 

for  the  debt.  This  ftatute,  after  reciting  that  merchants  had  fallen  into 
poverty,  lor  want  of  a  fpeedy  remedy  for  recovering  their  dues,  provides, 
that,  in  every  city  or  great  town,  which  the  king  mould  appoint,  t 
fhould  be  kept  a  recognizance,  that  is,  the  acknowledgement  or  confelfion  of 
debts  due  to  merchants,  and  of  the  day  of  payment ;  and  that,  in  cafe  pay- 
ment was  not  made  at  the  day,  they  may,  or  fhould,  on  the  application  of 
the  merchant,  and  infpedion  of  the  roll,  imprifon  the  body  of  the  debtor  un- 
til payment ;  and  if  no  payment  was  made  within  three  months,  (which 
time  the  debtor  was  allowed  to  fell  his  chatties  or  lands)  his  chatties  and  lands 
were  to  be  delivered  to  the  merchant  creditor,  at  a  reasonable  valuation,  or 
extent,  as  it  is  called  ;  that  out  of  the  profits  he  might  fatisfy  himfclf.  And 
in  cafe  the  debtor  could  not  be  found  within  the  jurifdidion  of  the  city  or 
town,  or  had  no  chatties  or  lands  therein,  then  was  the  mayor  to  fend  into 
chancery  the  recognizance  of  the  debt,  and  the  chancellor  was  to  iffue  a  writ 
to  the  meriff  in  whofe  bailiwick  the  debtor  was  or  had  effects,  to  ad  in  like 
manner.  And  fo  greatly  was  the  merchant  favoured,  that  tho'  this  was  but 
an  eftate  for  years  (it  being  certain,  from  the  valuation,  in  what  time  the  debt 
would  be  paid),  yet  had  he,  with  regard  of  maintaining  actions  to  recover  his 
poffeffion  when  deprived  of  it,  the  privileges  of  a  free-holder  given  him,  by 
exprefs  provifion  in  the  aft.  Such  was  the  favour  (hewn  to  merchants  to 
recover  their  juft  demands,  nor  were  other  creditors  at  this  time  left  totally 
unprovided  for,  in  cafes  where  there  was  a  deficiency  of  chatties. 

IN  the  fame  year  a  law  was  made  for  attaching  the  lands  of  perfons,  in  fa- 
vour of  creditors  who  were  not  merchants,  but  in  a  different  manner,  called 
an  elegit.  I  mall  here  ufe  the  words  of  the  ftatute,  as  they  are  fufficiently 
plain,  and  eafy  to  be  underflood.  "  When  debt  is  recovered  or  acknowledged 
"  in  the  king's  courts,  or  damages  awarded,  it  mail  be,  from  henceforth,  in 
"  the  election  of  him  that  fueth  for  fuch  debt  or  damages,  to  have  a  writ  to 
"  the  meriff  of/for/  facial  of  the  lands  and  goods"  (which  was  the  old  re- 

II  2  medy 


156  L  E  C  T  U  R  E  S     ON     THE  LECT.  16. 

medy  againfl  the  chatties)  "  or  that  the  fheriff  fliall  deliver  to  him  all  the 
"  chatties  of  the  debtor,  faving  only  his  oxen  and  beads  of  his  plough, 
"  and  the  one  half  of  his  land,  until  the  debt  be  levied  upon  a  reafonable 
u  price  or  extent."  After  this  the  act  gives  the  fame  privilege  as  in  cafe 
of  ftatute  merchant,  to  the  creditor  difpoffeffed.  From  his  making  his 
election  for  the  extending  the  lands,  the  writ  directed  to  the  fheriff  for 
that  purpofe  got  the  name  of  elegit.  The  difference  of  execution  juft  men- 
tioned (hews  clearly  in  how  fuperior  a  light  the  legiilature  regarded  the  inte- 
refts  of  commerce.  That  the  debts  to.  merchants,  in  whofe  profperity  the 
whole  community  was  concerned,  might  be  levied  as  foon  as  pomble,  the 
fecurity  by  ftatute  merchant  gave  poffeflion  of  the  whole  of  the  land  to  the 
creditor  ;  but  the  writ  ofelegif  gave  him  poffeffion  of  no  more  than  one  half. 
Originally  men  could  not  alien  lands  at  all.  Afterwards  they  were  allowed 
to  alien,  but  not  beyond  the  half  of  the  fief;  and  this  principle  or  maxim 
was  ftrongly  regarded  at  the  time  the  writ  of  elcgit  was  framed,  which  was 
before  the  ftatute  of  £>uia  emptores  terrarum^  which  allowed  alienation  of 
the  whole.  So  that  whatever  ftretches  might  be  found  neceffary,  from  the 
circumftances  of  merchandize,  yet,  with  regard  to  the  kingdom  in  general, 
a  fmall  deviation  only  was  made  from  the  common  law,  and  the  elegit  was 
allowed  to  affect  no  more  by  operation  of  law  than  a  man  was  fuppofed 
capable  of  alienating  by  his  own  oeed  f, 

Two  reigns  after,  namely,  the  2/th  of  Edward  the  Third,  when  the  mart, 
or  market  of  the  {landing  commodities  of  England,  namely,  wool,  woolfels, 
hides,  lead  and  tin,  was  removed  from  Flanders  into  England,  and  a  court 
merchant  was  erected  in  all  fuch  places  where  the  ftaple  was  fixed,  to  be 
held  by  the  mayor  of  the  ftaple,  he  had  power  given  him  to  take  recognizan- 
ces on  the  debts  contracted  at  the  ftaple,  cs&c&jlatutejlaplei  in  the  fame 
manner  as  oijiatute  merchant ;  and  as  the  effect  thereof  was  the  fame  as  of 
ftatute  merchant,  it  need  not  be  particularly  repeated.  However  in  fome 
time  afterwards,  ftatute  merchant  was,  by  cuftom,  extended  to  others  befide 
merchants,  and  became  one  of  the  common  affurances  of  the  realm.  The 
ftatute  ftaple  was  likewife  extended  upon  furmife  of  the  debt  being  con- 
tracted at  the  ftaple;  and  though  an  act  of  Henry  the  Eighth  in  England  re- 
ftrained  this  latter  to  its  ancient  bounds,  yet,  the  fame  act  framed  a  new  kind 

of 

f  An.  13,  Ed.  I,  c.  18.  apud  Ruffhead,  append. 


r.  16.  OF   EN  u  I,  \  N  n. 


.inity  in  imitation  oi  imontoalltl  jicc 

on  tluit  act,  which  had  ;ii.  of  it  |. 

(latutcv  .'.berth  and  thole  finer  her  time,  concerning  bankrupt  , 

'nave  gone  much  further.     They  not  only,  in  the  cafe*  they  extend  ro, 
the  whole  land  open  to  the  creditor,  but,  inilcad  of  a  poflrilion,  and  gradual 
difchargc  of  the  debt,  which  was  all  that  was  given  by  the  ftatutc  mrrtl. 
elcgit,  or  (latute  ftaple,  they  gave  him   a   more   fpeedy    1  by  ena- 

bling him  to  procure  a  fale  of  the  lands  {.     But  thefe  later  acts  having  m 
been  eiia&ed  in  this  kingdom,  I  mall  content   myfelf  with  having  barely 
hinted  at  them,  and  their  effects. 

VOLUNTARY  alienations  of  land  having  gained  ground,  and  become  at 
length  eihiblilhed  in  England,  contrary  to  the  principles  of  the  original 
law  ;  and  it  being  allowed  for  a  maxim,  that  he  that  had  a  fee  fimple,  had 
an  abfolute  dominion  over  half  of  his  land,  to  difpofe  of  as  he  pleafed,  and, 
in  fome  cafes,  of  the  whole  ;  it  could  not  be,  but  that  there  would  ariic 
many  perfons  fond  of  perpetuating  their  eftates  in  their  families,  and  con- 
fequently  difpleafed  at  this  power  of  alienation.  The  means  they  uted  to 
attain  their  ends  was  under  that  maxim  of  law,  Tenor  i  five/lit  ura  eft  infpicien- 
dus,  or,  as  we  exprefs  it,  Conventio  vincit  &  dat  modnni  donationi.  Every  man 
therefore,  abfolute  mafter  of  his  eft  ate,  having  a  right  to  give  it  on  what 
terms  he  pleafed,  they  began,  not  as  before,  to  give  lands  to  a  man  and  his 
heirs  in  general,  for  that  would  have  given  an  abfolute  dominion,  but  to 
heirs  limited,  as  to  the  heirs  of  his  body,  or  to  the  heirs  male  of  his  body,  or 
to  the  heirs  of  his  body  by  fuch  a  woman.  Here  it  was  plain  enough,  that 
none  were  intended  to  take,  but  fuch  as  came  within  this  defcription  ;  and 
by  this  means  they  hoped  to  defeat  the  power  of  alienation,  to  fecure  the 
eftate  to  the  perfons  defcribed,  and,  in  failure  of  them,  the  returning  or 
reverfion  of  it  to  themfelves  or  their  heirs. 

BUT  the  judges  complying  with  the  univcrfal  bent  of  the  times  to  the 
contrary,  did  not  give  thefe  grants  that  conftrucTion  they  expected,  upon 
the  natural  prcfumption,  that  every  perfon  will  have  heirs  of  his  body,  and 

that 

f  An.  23.  Henry  VIII.  cap.  6.  ap.  IlufFhead,  vol.  2.   p.  167. 

1  An.  13.  Eliz.  c.  7.  An.  i.  James  I.  cap.  15.  21.  Jamesl.  cap.  19.  5.  George  II.  c.  30. 


158  L  E  C  T  U  R  E  S    ON    THE  LECT.  16. 

that  his  pofterity  will  continue  for  ever.  They  conftrued  this  to  be  a  fee 
fimple  ;  and  yet,  not  entirely  to  difregard  the  intention  of  the  donor,  to  be 
a  fee  fimple  conditional ;  as  if  the  words  had  been  to  a  man  and  his  heirs, 
provided  he  have  heirs  of  his  body,  and  confequently  to  be  alienable,  and 
forfeitable  upon  a  certain  event.  And  one  great  reafon  of  making  this 
eonftruftion,  I  take  to  be  the  confi deration  of  forefeiture  for  treafon  and 
felony,  which,  by  fuch  grants,  would  be  defeated  by  another  conftruction, 
and  men  thereby  rendered  more  fearlefs  to  commit  crimes  in  thofe  trouble- 
fome  times  f. 

LET  us  fee  then  what  eftate  or  power  was  in  donor  and  donee  immedi- 
ately by  the  grant ;  and  what,  upon  the  performance  of  the  condition,  name- 
ly, the  having  ilfue.  And  firft,  the  donee  had  immediately  a  fee  fimple  upon 
the  grant,  contrary  to-  Britton's  opinion,  that,  before  children  born,  he  had 
only  an  eftate  for  life,  and  afterwards  a  fee.  This  appears  from  hence, 
that  if  a  man  had  aliened  in  fee  before  iifue  had,  the  donor  could  not  have 
entered  upon  the  lands  for  the  forfeiture,  which,  if  he  was  tenant  for  life, 
he  might.  For  the  alienation  in  fee  of  tenant  for  life  is  an  abfolute  for- 
feiture, and  gives  right  of  entry  to  the  lejjor.  The  donee ',  then,  having  pre- 
fently  a  fee  fimple  in  him,  that  is,  an  eftate  for  ever,  than  which  there  can 
be  no  greater  ;  it  was  impoffible  the  donor  mould  have  any  aftual  eftate  or 
intereft  in  the  lands.  He  had  not,  therefore,  a  reverfion  vefted  in  him,  that 
is,  a  certain  pofitive  right  of  the  lands  returning  to  him  or  his  heirs,  as  he 
would  have  had,  if  an  eftate  for  life  only  had  been  granted.  He  had  only 
a  bare  p  offibility  of  reverter,  in  cafe  the  donee  died  without  iffue ;  or,  leaving 
any,  that  iflue  had  failed. 

FOR  the  fame  reafon,  of  the  donee's  having  a  fee  fimple,  no  remainder 
could  be  limited  in  fuch  an  eftate.  If  land  be  given  to  A.  for  life  or  for 
years,  and  after  the  efflux  of  the  life  or  years  to  B,  B.  hath  prefently  a  re- 
mainder in  the  lands  for  life,  years,  or  in  fee,  according  as  the  limitation  of 
the  eftate  is  ;  becaufe  it  is  certain  that  a  life,  or  term  of  years,  muft  expire. 
But  if  land  be  given  to  A.  and  the  heirs  of  his  body,  and,  in  failure  of 
fuch  heirs,  to  B.  and  his  heirs,  this  remainder  to  B,  before  the  ftatute  De 
Do?iis,  was  void,  for  A.  had  immediately  an  eftate  for  ever,  and  therefore 

the 
'*  Coke  on  Littleton,  book  I.  chap.  2.  §  13.. 


Lv.cr.i6.  LAWS    OF    ENGLAND. 

the  limitation  over  :  0  rejected,  as  repugnant  to  the  eftatc  it  dcpcu. 

ded  upon. 

BUT  though,  hy  fuch  a  grant,  the  donee  got  a  fee,  it  bring  clogged  with 
a  condition,  he  had  not,  to  all  intents  and  purpofes,  an  abiolute  power  > 
it,  either  \vith  refpeft  to  the  donor,  or  his  own  iflue.  If  the  donor  aliened 
before  iflue  had,  this  was  no  bar  to  the  donor,  of  his  poflibility  of  rtvcrt.  r  ; 
but  it  was  a  bar  to  the  iflue  bom  afterwards,  to  enjoy  the  cflate  tail.  For 
at  this  time  fathers  had  a  greater  liberty  to  bar  their  children,  than  a  ft  ran- 
ger. Therefore,  in  this  cafe,  the  alienee  and  his  heirs,  were  to  enjoy  the 
lands  while  the  done'e,  or  any  iflue  of  his  body  remained.  But  whenever 
they  failed,  the  donor's,  or  his  heir's  poflibility  of  reverter,  was  changed 
into  an  a&ual  reverfion,  and  the  land  became  his.  For  now,  by  a  fubfe- 
quent  event,  it  appeared,  that  the  legal  prefumption  of  the  eflates  conti- 
nuing for  ever  was  ill  founded.  Neither,  by  the  having  of  iflue,  was  the 
condition  performed  to  all  purpofes,  fo  as  to  veft  an  abfolute  fee  in  the 
donor  ;  for  if  the  donee  had  died  without  iflue,  or  if  his  iflue  failed,  with- 
out any  alienation  being  made  by  either,  in  this  cafe  alfo,  the  donor's  pof- 
fibility  was  changed  into  an  actual  reverfion.  But  by  having  iflue,  the 
condition  was  fo  far  performed,  as  to  enlarge  the  power  of  the  donee  to 
three  fpecial  purpofes  ;  firfl,  to  alien  abfolutely,  and  thereby  to  deftroy  the 
right  of  iflue,  and  the  poflibility  alfo  of  reverter  in  the  donor ;  feeondly,  to 
charge  and  incumber  it  to  the  prejudice  of  both  iflue  and  donor ;  and 
thirdly,  to  forfeit  it  for  treafon  or  felony,  to  the  prejudice  of  both  alfo. 
Such  was  the  conflrudHon  the  judges  made  of  thefe  grants,  which,  we  fee, 
gave,  in  almoft  all  cafes,  an  unlimited  power  of  alienating,  contrary  to  the 
intention  of  the  donor,  and  the  form  of  the  giftf. 

Bui,  in  the  thirteenth  of  Edward  the  Firft,  the  lords,  willing  to  pre- 
ferve  the  grandeur  of  their  families,  obtained  of  that  monarch  the  famous 
flatute  of  Weftminiler  the  fecond,  called  De  Donis,  which  by  thefe  words, 
quod  voluntas  donatoris,  fecundum  formam  in  charta  Donifui,  manifefte  expref- 
fam^  de  catero  obfervetur,  ita  quod  non  habcunt  /'///,  quibus  tenementum  fie  fuit 
datum  fub  conditionc,  potcftatcm  alienandi  tenementum  fie  datum,  quo  minus  ad 
exit  urn  illcrum^  quibus  tenementum  fie  fucrit  datum  ^  rctuancat  poft  corum  obit  urn, 

I'd 
f  Wright  on  tenures,  p.  186.  et  feq. 


160  L  E  C  T  U  R  E  S     ON     THE          LECT.  16. 

vel  ad  donatorem  vel  ad  ejus  baredem,  ft  exitm  dcficiat,  re-vertatur-\,  created 
a  new  kind  of  inheritance,  eftates  tail,  which  very  much  refemble  the  old 
feudal  donations,  that  were  only  defcendible  to  the  iffue  of  the  firfl  feuda- 
tary.  Let  us  fee  the  confequence  of  thefe  words.  Firfl,  fmce  the  will  of 
the  donor  was  to  be  obferved,  it  followed,  that  neither  the  donee,  nor  his 
iffue,  fhould  have  power  to  alien,  incumber,  or  forfeit :  the  confequence 
of  which  was,  that  he  could  no  longer  have  a  fee  fimple,  as  thefe  are  infe- 
parable  incidents  to  fuch  an  eflate ;  but  a  leficr  eftate,  called  Fee  tail,  from 
the  French  word  Tailler  before  mentioned,  as  being,  like  other  lefler  eftates, 
carved  out  of  the  fee  fimple. 

WERE  it  to  be  alked,  in  whom  did  the  fee  fimple  refide  ?  it  is  plain  it 
could  be  in  none  other  but  the  donor,  who  had  it  originally  in  him. 
Therefore,  by  this  ftatute,  the  poflibility  of  reverter,  which  the  donor  had, 
was  changed  into  an  actual  prefent  intereft,  called  a  rc-verfion  in  fee  fimple. 
But  it  was  not  always  neceffary  that  the  fee  fimple  fhould  be  in  the  donor ; 
for  eftates  tail,  being  now  lefs  than  a  fee  fimple,  it  became  pofiible  to  li- 
mit a  remainder  thereon  which  mould  be  good  :  Thus,  if  a  gift  be  made 
to  A.  and  the  heirs  of  his  body,  and,  in  failure  of  fuch  heirs,  to  B.  and  his 
heirs ;  in  this  cafe,  there  is  no  reverfion :  for  the  donor  hath  parted  with  his 
whole  eftate,  but  A.  hath  an  eftate  tail,  and  B.  a  remainder  in  fee  fimple. 
Many  remainders  may  be  limited  on  one  another,  as  for  inftance,  an  eftate 
may  be  given  to  A.  for  years,  remainder  to  B.  for  life,  remainder  to  C.  in 
tail,  remainder  to  D.  in  tail,  remainder  to  E.  in  fee  fimple ;  but  if  the  laft 
remainder  is  not  in  fee  fimple,  but  in  fee  tail,  then  is  the  reverfion  in  fee 
iimple  to  the  donor. 

HOWEVER,  although  a  tenant  in  tail  after  this  ftatute  could  alien  only  for 
his  own  life,  his  heir  in  tail  was  not  allowed  to  enter  upon  the  alienee  with- 
out  firft  proving  his  right  in  a  court  of  law,  and  this  is  what  is  meant  by 
faying,  though  a  tenant  In  tall  could  not  deftroy  the  eftatc  tail  by  his  alienation, 
yet  he  could  continue  it.  The  reafon  of  this  is,  that  all  eftates  of  inheritance 
are  prefumed  fee  fimple,  until  the  contrary  is  proved,  and  it  would  be  un- 
'uil  to  remove  a  pofleflbr,  who  came  in  by  a  title  apparently  fair,  until  the 
weaknefs  of  that  title  appears  judicially.  This  rule,  however,  extended 

only 

\  Coke's  inflitutes,  part  2.  p.  332.     Ruffhcad,  vol.  I.  p.  79. 


A  Vv 


T.  16.         L  OF     E  N  G  L  A  N  D.  i6r 

only  to  eftates  corporeal,  that  lay  in  liveries,  not  to  incorporeal  ones,  that  lay 
in  grant  ;  which  (hews  that  this  maxim  of  its  working  a  difcontinuance  pro- 
ceeded from  the  feudal  principle,  of  protecting  the  pofleflbr,  becaufc  he 
:o  do  the  feudal  du: 

THE  ftatute  to  guard  thefe  inheritances  from  alienations,  exprefely  pro- 
vides, that  even  'a  fine  levied  of  them  in  the  courts  of  record  ihould 

be  tpfojure  null. 

THE  method  of  recovering  fuch  lands  fo  difcontinued,  is  by  a  wrk  called 
a  Fcrmfdonj  from  the  words  forma  doni,  of  which  writ  there  are  three  kinds, 
according  to  the  title  of  the  perfons  who  bring  them;  firmedon^  in  the  rever- 
/cr,  in  the  defcender^  and  in  the  remainder.  Tr-rmedon  in  the  revertfr  lies  for  the 
donor  or  his  heirs,  and  lay  at  the  common  law  after  the  failure  of  iflue,  where 
the  alienation  was  before  iflue  had  ;  but  fmce  the  ftatute,  upon  the  failure 
of  iflue,  it  lies,  though  the  alienation  be  after.  Formedon  in  defcender  lies  for 
the  iflue  in  tail,  when  the  anccftor  has  aliened,  and  is  given  by  the  ftatute. 
The  form  of  it  is  as  follows,  "  The  king  to  the  flieriff  ot-  -  greeting,  corn- 
that  he  juftly,  and  without  delay,  reilore  to  B.  fuch  a  manor, 
Ci  £c.  which  C.  gave  to  D,  and  the  heirs  of  his  body,  and  which,  after 
"  the  death  of  the  faid  D,  ought  to  deicend  to  the  faid  B.  the  fon  of  the 
"  faid  D.  by  the  form  of  the  aforefaid  gift,  as  he  fays."  Fcrmedon  in  remain- 
der lies  for  a  remainder  man  in  tail,  or  his  iflue,  after  the  particular  eflate 
previous  to  his  (whether  it  be  for  years,  life,  or  in  tail)  is  fpent.  In  the  re- 
verter,  inftead  of  the  word  dyl-cnd*  it  is  revert  ;  in  the  remainder, 


HAVING  (hewn  the  origin  of  eftates  tail,  1  (hall  nest  confider  their  confe- 
quences,  and  future  fortune. 

|  Coke's  inftitutes,  pa 


LECTURE 


1 62  LECTURES     ON     THE  LECT.  17. 


LECTURE       XVII. 

The  confeqKcncet  and  hi/lory  of  eftates  Tail. 

THE  following  are  the  words  of  my  lord  Coke.  "  When  all  eftates 
"  were  fee  fimple,  then  were  purehafers  fure  of  their  purchafes, 
"  farmers  of  their  leafes,  creditors  of  their  debts  ;  the  king  and  lords  had 
"  their  efcheats,  forfeitures,  wardfhips,  and  other  profits  of  their  feignories  : 
"  and  for  thefe,  and  other  like  cafes,  by  the  wifdom  of  the  common  law,  all 
"  eftates  of  inheritance  were  fee  fimple  ;  and  what  contentions  and  mif- 
"  chiefs  have  crept  into  the  quiet  of  the  law  by  thefe  fettered  inheritances, 
"  daily  experience  teacheth  us.*'  By  this  enumeration  of  his,  of  the  ad- 
vantages that  attended  eftates  of  fee  fimple,  it  is  eafy  to  fee  who  were  the 
fufferers,  and  wherein  they  fuifered,  by  the  introduction  of  eftates  tail. 
But  it  is  a  little  furprizing  that  he  mould  make  fuch  a  flip  as  to  fay,  that  be- 
fore this  creditors  were  fecure  of  their  debts  by  all  eftates  being  fee  fimple  ; 
xvhen  the  firft  ftatute  that  gave  them  any  hold  of  lands  was  made  after  this 
flatute  De  Donis,  in  the  latter  end  of  the  fame  year  of  the  king's  reign,  the 
thirteenth  of  Edward  the  Firft.  Thofe,  indeed,  who  had  landed  eftates  at 
that  time,  and  their  pofterity,  were  great  gainers  hereby;  but  the  king  and 
the  nation  in  general  were  fufferers.  The  nation  fuffered  by  the  check  that 
commerce,  then  juft  arifing,  received,  by  fo  much  lands  becoming  unalie- 
nable,  and  the  crown  fuffered  in  a  double  refpect ;  firft  by  the  opportunity 
it  afforded  to  ftrengthen  and  explain  the  great  eftates  of  the  lords,  and  fe- 
condly  by  the  fecurity  it  gave  when  enlarged. 

SOON  after  the  conqueft,  the  eftates  of  the  Englifh  lords  were  enormous. 
William  brought  over  an  army  of  60,000  men,  not  levied  by  himfelf,  (for 
!ie  was  unable  to  raife  or  defray  the  expences  of  a  third  of  that  number,  out 
of  the  province  of  Normandy,)  but  confifting  chiefly  of  adventurers,  who 
engaged  in  the  expedition  on  the  promife  of  forfeited  lands,  in  proportion 
to  the  numbers  they  brought  with  them.  Accordingly,  fome  had  feven 

hundred 


T.  17.  LAWS    OF    ENGLAND. 

hundred  manors,  others  five,  four,  three,  two,  one  hundred,  or  Icfo ;  in- 
ioiiuich,  that  all  the  lands  <•!'  I1'. upland,  (if  \\e  except  the  king's  dcmcfnes, 
the  church  lands,  and  the  little  properties  annexed  to  cities  and  boroughs) 
\\vrc  in  no  more  than  about  1'cven  hundred  hands,  the  principal  of  which 
were  petty  princes,  like  the  dukes  and  counts  of  Francef. 

WILLIAM  was  fenfible,  from  the  experience  of  that  country,  how  dange- 
rous fuch  large  grants  would  prove  to  the  authority  of  the  crown,  and  he 
accordingly  moderated  them  as  well  as  his  circumftances  would  permit. 
That  the  king  might  not  be  too  far  removed  from  the  view  of  the  lower 
people,  by  the  interpofition  of  the  great  lords,  their  immediate  fupcriors, 
he  did  not,  as  in  France,  leave  the  whole  judicial  power,  and  the  profits  of 
the  county  courts  in  the  earls ;  but  juflice  was  adminiftered  in  the  king'^ 
name  by  his  fherifts  ;  who,  as  being  deputies  of  the  earls,  were  called  Vice 
CojnitcS)  and  who  accounted  for  the  profits  to  the  king,  except  as  for  the 
one  third,  which  in  England  was  the  earl's  proportion  ;  and  in  after  times, 
upon  new  creations,  the  third  alfo  was  referred  to  the  king,  and  only  a  cer- 
tain ilipcnd  out  of  it,  generally  twenty  pounds  a  year,  aflignedto  the  earl}. 

ANOTHER  means  he  ufed  of  difarming  them  of  the  too  great  powers  im- 
moderate eftates  would  have  given  them,  was  avoiding  the  rock  the  French 
court  had  fplit  on,  the  giving  vafl  territories,  lying  contiguous  to  each 
other,  in  fief,  whereby  all  the  followers  were  immediately  in  the  view  and  at 
the  call  of  the  lords.  William  a&ed  more  prudently.  He  generally  gave  to 
an  earl  twenty  knights  fees,  which  was  the  proportion  of  an  Englifh  earldom 
in  the  county,  whofe  title  he  bore;  perhaps  thirteen,  or  a  barony,  in  another 
county  ;  and  the  remainder,  he  was  to  give,  either  in  baronies  in  diftant 
counties,  or  more  generally  in  fingle  knights  fees,  difperled  through  all  En- 
gland. This  was  his  general  method,  except  to  a  few  of  his  near  relations, 
to  whom  he  gave  palatinates  within*  regalia,  which  were  exadly  in  the  na- 
ture of  the  French  dutchies  and  counties  ||. 

ANOTHER  prudent  ftep  he  took  for  the  benefit  of  his  fuccefibrs,  was  the 
making  all  his  grzntsfeminitiejzefs.  For  as,  in  a  courfe  of  feveral  defcents, 

X  2  it 

t  Hume's  hift.  of  England,  vol.  i.      Carte's  hift.  382,  383,  384,  420.     Brady's  hift. 
append. 

t  Selden,  tit.  hon.  part  2.  chap.  y.  §  3.  ||  Ibid.  §  8.  and  9. 


1 64  L  E  C  T  U  R  E  S     ON     THE  LECT.  17. 

it  muft  happen  that  lineal  males  would  frequently  fail,  by  admitting  the 
daughters  in  that  cafe,  thefe  vaft  inheritances  were  frequently  broken,  as 
females  fucceeded  equally.  His  fuccefibrs  followed  his  plan,  and  for  that 
purpofe,  not  only  permitted,  but  encouraged  their  great  vaflals  to  alien, 
and  difmember  their  properties  j  and  whenever  a  great  efcheat  fell,  were 
always  fure,  unlefs  there  was  a  prince  of  the  blood  to  be  provided  for,  to 
divide  it  into  many  hands. 

BOTH  kings  and  people  received  the  advantages,  and  would  have  re- 
ceived more,  if  this  policy  had  continued.  The  immediate  tenants  of  the 
crown  being  encreafed  in  number,  and  leflened  in  wealth,  were  not  able  to 
confederate  fo  eafily  againft  the  crown  ;  and,  fenfible  of  their  being  weak- 
ened, had  occafion  for  the  fupport  pf  the  lower  rank  of  the  people,  whom, 
confequently,  they  treated  with  more  gentlenefs  and  equality  than  before. 
But  this  flatute  of  entails  put  a  flop  to  the  progrefs  that  courfe  of  things 
were  in  ;  eftates  became  unalienable,  and  indivifible.  The  property  of  no 
lord  could  leflen  ;  and  if  it  happened,  as  it  frequently  did,  that  they  acquir- 
ed, either  by  defcent  or  marriage,  or  the  purchafe  of  an  eftate  not  tied  up, 
a  new  entail  connected  it  infeparately  with  the  old  one  ;  and  thus  the  lords, 
towards  the  end  of  the  Plantagenet  line,  grew  up  to  fuch  a  pitch  of  power, 
as  was  dangerous  to  the  conftitution,  and  when  they  were  divided  into  the 
factions  of  the  York  and  Lancafler,  deluged  the  land  with  blood. 

THE  king  faw  the  mifchief  betimes,  but  the  mifchief  was  done.  The 
act  was  paCTed,  and  to  get  it  repealed  was  impoflible.  They  had  nothing 
left,  but  to  find  means  to  elude  it  by  construction  of  law,  wherever  they 
could.  The  fcheme  was  readily  embraced  by  the  judges  and  lawyers,  who 
had  raifed  great  outcries  againft  thefe  fettered  inheritances,  and  were  joined 
by  all  the  trading  and  induftrious  people,  and  even  by  the  younger  branches 
of  thefe  great  families,  whofe  fathers  were  thereby  difabled  to  provide  for 
them. 

THE  firft  means  found  out  was  by  collateral  warranty.  Before  this  ftatute 
all  warranties  by  an  anceftor  bound  the  heir  at  law,  although  no  land  de- 
fcended  from  that  anceftor,  upon  the  prefumption  that  no  man  would  dif- 
inherit-his  heir,  without  leaving  him  a  recompence.  But  this  could  be  no 

longer 


LECT.  17.          L  A  W  S     OF     E  N  G  L  A  N  D.         165 

longer  the  law  in  general  ;  for,  if  fo,  the  anceftor  in  tail  might,  by  his 
warranty,  defeat  the  tail,  contrary  to  the  ftatutr,  which  fays,  The  will  of 
dontr  flnill  be  dbfcr-vccL  They  therefore  made  now  a  diftinction  between 
a  lineal  warranty  and  a  collateral  one.  I/mral  warranty  is  that  which  is  made 
1>\  tenants  in  tail ;  collateral,  that  which  is  made  by  one  who  is  a  ftrangcr 
to  the  entail.  In  the  firft  cafe  they  held  it  no  bar,  unlefs  afTets  defcended  ; 
that  is,  an  eftate  in  fee  fimplc,  equal  in  value.  But  in  the  latter  cafe,  that 
no  aflets  defcended,  they  held  it  at  bar  as  at  common  law  f. 

To  illuftrate  this  by  an  example,  If  lands  are  given  to  A.  and  the  heirs 
male  of  his  body,  and  A.  aliens  with  warranty,  this  is  lineal  warranty,  and 
(hall  not  bind  the  fon  ;  but  if  B.  the  brother  of  A.  who  has  nothing  to  fay 
to  the  entail,  joins  in  the  alienation  with  warranty,  or  releafes  to  the  alienee 
with  warranty,  or  difleizes  A,  and  then  aliens  with  warranty,  and  dies  with- 
out ifiue,  fo  that  A's  fon  is  his  heir,  this  warranty  is  collateral  to  the  entail, 
and  without  affets  mould  bind  the  fon  of  A,  as  at  common  law.  At  firft 
view  it  may  feem  furprifing  how  this  conftruclion  gained  ground  agp.infl  the 
exprefs  words  of  the  flatute,  Voluntas  donatcris  dc  eaiero  obfervetur  ;  for  the 
will  of  the  donor  was  certainly  jvs  much  defeated  by  a  collateral,  as  by  a 
lineal  warranty  j  but  the  judges  took  advantage  of  the  preamble  of  the 
act,  which,  reciting  the  mifchief,  fpeaks  only  of  the  alienation  of  the  tenant 
in  tail,  that  is,  of  lineal  warranty.  They  reftrained,  therefore,  out  of  dif- 
favour  to  thefe  fettered  eftates,  the  general  words  in  the  enacting  part,  to 
the  particular  cafe  mentioned  in  the  preamble,  on  this  ground,  that  the 
common  law  was  not  to  be  altered  without  it  appeared  undeniable  that  the 
legiflator  intended  it ;  and  here,  as  to  collateral  alienation,  they  are  filent. 
This  was  the  firft  device  ufed  to  defeat  eftates  tail,  namely,  by  getting  a 
collateral  relation,  whofe  heir  the  iflue  in  tail  was  to  be,  to  concur  in  the 
alienation,  and  to  bind  himfelf  and  heirs  to  warranty  ;  which  was  generally 
obtained  for  a  fmall  confideration,  as  fucll  pcrfon  could  never  be  a  gainer 
by  the  eftate  tail,  fince  it  could  in  no  cafe  come  to  him. 

WHEN  once  this  rule  of  collateral  warranty  barring  an  eftate  tail,  was 
fettled,  attempts  were  made  to  prevent  its  taking  effect,  and  to  continue 
fuch  eftate  notwithftanding.  Jude  Richel,  in  Richard  the  Second's  time, 

kd 
f  Coke  on  Littleton,  lib.  3.  chap.  13.  §  703,  709. 


166  L  E  C  T  U  R  E  S     ON     THE  LECT.  17. 

led  the  way  ;  he  having  fettled  lands  on  his  eldeft  fon  in  tail ;  remainder  to 
his  fecond  fon  in  tail ;  adds,  that  the  lands  are  given  on  this  condition, 
that,  if  the  eldeft  fon  fhould  alien,  that  inftant  his  eflate  fhould  ceafe  and 
determine,  and  the  land  remain  to  the  fecond  fon  and  the  heirs  of  his  body. 
Here  he  imagined  he  had  got  clear  of  collateral  warranty,  becaufe  the  firft 
eftate  was  to  determine,  and  the  fecond  to  commence  immediately  on  the 
alienation,  and  before  any  collateral  warranty  could  defcend  on  the  fecond. 
But  the  judges  determined  this  condition  to  be  void ;  for  which  Littleton 
gives  three  reafons,  drawn  rather  from  the  art  of  law,  than  from  the  prin- 
ciples of  plain  reafonf.  The  true  ground  feems  to  be  this : 

IN  every  reign,  from  Edward  the  Firft  down  to  Edward  the  Fourth,  bills 
were  brought  into  parliament  to  repeal  the  flatute  DC  Donis,  as  Coke  in- 
forms us,  but  had  conftantly  mifcarried,  as  the  eftates  of  the  majority  in  par- 
liament were  entailed.  The  only  relief  found  out  at  that  time  againft  their 
mifchiefs  was  this  collateral  warranty ;  and  if  RicheFs  conditions  were  to 
be  adjudged  ^ood,  all  eftates  tail  would  have  been  made  with  fuch  condi- 
tions, and  there  would  hav©  been  an  end  of  that  method  of  defeating  them. 
The  fame  was  the  fate  of  a  fimilar  fettlemcnt  of  Judge  Thirning,  who  took 
the  advice  of  his  cotemporary  judges,  in  wording-  h;s  condition  fo  as  to 
make  it  effectual ;  but  their  fucceflbrs  were  of  a  different  opinion,  and  re- 
jected it.  However,  thefe  collateral  warranties  not  being  to  be  got  in  all 
cafes,  the  relief  was  but  partial,  and  extended  only  to  particular  cafes. 
And  the  tenant  in  tail  himfelf  could  by  no  a£l  of  his,  in  concurrence 
with  any  other  perfon,  except  a  collateral  anceftor  of  the  iffue^  in  tail,  bar 
them. 

AT  length  the  judges  found  out  a  device,  by  a  fiction  in  law,  to  enable 
him  to  bar  his  iffue,  and  all  remainders,  and  reverfions.  A.  brings  his 
action  real  againft  B,  tenant  in  tail,  and  alledges  the  lands  in  tail  to  be  his 
A's  right  and  inheritance,  when  in  truth  he  hath  no  title  thereto  ;  B.  comes 
in,  and  voucheth  C.  to  warranty,  who  enters  into  warranty,  and  after, 
when  he  mould  defend,  makes  default,  fo  judgment  is  given  for  A.  againft 
B.  and  for  B.  to  recover  in  value  againft  C.  Here,  though  C.  has  no  land 
to  render  in  value,  the  judges  have  conftrued  B,  and  all  that  fhould  come 

after 

f  Lib.  3.  clap.  13.  §  720, 


LF.CT.  17.  LAWS    OF    ENGLAND.  167 

after  him,  to  he  barred  ;  becaufe  if  C.  ever  after  purchafed  lands,  thefc 
lands  might  be  recovered  from  him,  by  virtue  of  the  former  judgment  j 
and  ii>  their  \vas  a  poflibility  of  a  recompcnce.  Though  this  decifion  at 
firlt  created  great  outcries,  ami  even  in  Henry  the  Eighth's  reign  was  but 
weakly  defended  in  equity  and  confcience,  by  the  author  of  Doftor  and  Stu- 
dcnt^  yet  the  judges,  for  the  public  good,  conllantly  adhering  to  it,  and 
thefc  common  recoveries  being  taken  notice  of  and  approved  of  by  fubfc- 
quent  ads  of  parliament,  are  at  length  grown  to  be  common  aflurances  of 
lands,  and,  parting  in  the  court  of  record,  are  the  befl  fecurities  of  cftates  f. 

THE  bearing  of  eflates  tail,  by  fine  parted  in  the  king's  courts,  grew  up 
another  way,  and  is  founded  on  an  aft  of  parliament  in  Henry  the  Seventh's 
reign,  and  is  indeed,  properly  fpeaking,  a  partial  repeal  of  the  ftatute  DC 
Donis,  fince  it  puts  it  in  the  tenant  in  tail's  power  to  deflroy  it,  by  obfer- 
ving  certain  folemnities.  Though  common  recoveries  had  been  invented 
forne  years  before,  yet  as  they  had  not  had  time  to  grow  up  to  fuch  a  de- 
gree of  firmnefs  as  to  be  fufficiently  depended  upon,  their  legality  was  ftill 
doubted,  and  it  was  not  certain  that  future  judges  would  give  them  the 
fame  conftruftion  which  their  prcdecefTors  had  done.  Therefore,  that  po- 
litic prince  Henry  the  Seventh,  who  faw,  in  all  its  lights,  that  fuperiority 
which  the  prefervation  of  landed  property  in  their  families  gave  to  the  no- 
bles, a  fuperiority  which  had  cod  fome  of  his  predecefibrs  their  lives  and 
crowns,  freed  lawyers  from  the  trouble  of  inventing  future  devices  againfl 
entails,  by  getting  the  famous  aft  patted  in  the  fourth  year  of  his  reign, 
which  made  a  fine,  with  proclamations  to  conclude  all  perfons,  ftrangers  as 
well  as  privies  J. 

IT  was  the  purport  of,  and  fo  it  is  exprefled  in  the  ftatute  De  Donis,  that 
a  fine  levied  of  entailed  lands  mould  be  ipfo  jure  null,  and  it  is  the  intent  of 
this  aft,  on  the  contrary,  that  a  fine,  levied  with  the  prefcribed  folemnity, 
mould  be  valid  to  bar  the  perfons  therein  intended  to  be  barred.  There  is 
a  claufe,  indeed,  in  this  aft,  faving  the  right  and  interests  of  all  perfons, 
which  accrued  after  the  ingrofling  of  the  fine,  they  purfuing  their  rights 

within 
f  Saintgerman,  cap.  50. 

t  Bacon,  voc.  Fine  and  Recovery.    An.  4.  Hen.  VII.  c.  24.  ap.  Ruffhead,  voL  2. 
p.  79- 


1 68  L  E  C  T  U  R  E  S     ON     THE  LECT.  17. 

within  a  certain  time  after  they  accrued.  This  claufe  was  apparently  thrown 
in  to  make  the  act  pafs,  and  to  deceive  the  enaclors  into  an  opinion,  that  it 
would  not  affect  eftates  tail ;  and  on  this  claufe  a  doubt  occurred  in  that 
reign,  whether  the  iflue  of  tenant  in  tail  could  be  barred  by  this  ftatute,  and 
that,  notwithstanding  by  the  tenor  of  it,  privies  were  barred.  The  quefHon 
was,  whether  the  ftatute  meant  privies  to  the  fine,  or  privies  to  the  eftate  of 
the  perfon  levying  it  ?  The  iifue  were  not  privies  in  the  firfl  fenfe,  but  were 
in  the  latter.  The  judges  embraced  the  opportunity  this  ambiguity  gave 
them,  of  defeating  entails,  and  bound  the  ifliie  by  the  fine.  A  ftatute  of 
the  fucceeding  prince  approved  of  that  conftruction,  gave  it  retrofpect,  and 
prevented  all  ambiguity  for  the  future  f . 

THUS  were  eftates  tail  no  longer  certain  perpetuities,  but  defeafible  upon 
performing  certain  requifite  folemnities.  Still  however  they  continued  not 
to  be  forfeitable  for  crimes,  which  was  a  point  not  to  be  got  over  without 
an  act  of  parliament,  and  there  was  little  likelihood  of  obtaining  fuch  an 
one ;  but  Henry  the  Eighth  matched  the  lucky  opportunity  his  fituation 
gave  him,  of  gaining  this  important  point,  in  the  26th  year  of  his  reign, 
when  he  had  quarrelled  with  the  Pope,  and  all  hope  of  accommodation 
vanifhed  ;  when  a  fentence  of  excommunication  was  denounced  againft 
him,  and  numbers  of  his  fubjecls,  many  of  them  of  great  fortunes,  bigoted- 
ly  attached  to  the  old  religion,  were  known  to  meditate  rebellion.  The 
parliament,  the  majority  of  which  were  of  the  new  profeflion,  feeing  no 
other  means  to  preferve  the  fecurity  of  the  ftate,  and  the  proteftant  religion, 
yielded  at  length  to  the  palling  of  an  act  for  that  purpofe  {. 

HOWEVER,  there  were  not  wanting  perfons  after  this,  willing  to  create 
perpetuities,  in  which  they  were  always  difappointed  by  the  decifion  of  the 
judges.  The  firft  device  was  by  giving  eftates  upon  condition,  that  if  te- 
nants in  tail  mould  levy  a  fine,  or  fuffer  a  recovery,  the  eftate  mould  ceafe, 
and  go  over  to  the  next  iilue  intitled.  But  the  judges  rejected  fuch  con- 
dition, for  the  fame  reafon  as  in  RichePs  cafe.  They  adjudged  the  right  of 
barring  by  a  fine  or  recovery  to  be  an  incident  infeparable  to  a  fee  tail,  and 

all 

f  An.  32.  Hen.  VIII.  c.  36.  ap.  Ruffhead,  vol.  2.  p.  296. 

|  Ruffhead,  vol.  2.  p.  216. 


LECT.  17.        LAWS    OF     ENGLAND.  169 

all  conditions  repugnant  thereto  idle  and  void  ;  for  how  could  the  law  fuf- 
icr  that  an  cflate,  by  previous  aft  of  the  donor,  (hould,  upon  a  judgment  at 
law,  become  veiled  in  any  other  perfon  than  him  who  recovered  ?  Thcfe 
ingenious  conveyancers,  finding  that  the  limitation  upon  breach  of  the  con- 
dition came  too  late,  as  the  eftate  had  already  gone  in  another  channel, 
framed  the  condition  thus ;  that  if  tenant  in  tailfowld  go  about  to  levy,  &c. 
or  make  any  covenant  to  levy,  or  hold  any  communication  about  levying,  &c.  the 
eftate Jhould  then,  &c.  But  thcfe  were  all  condemned  upon  the  old  principle^ 
and  (till  more  for  their  vaguencfs  and  uncertainty. 


LECTURE 


170  L  E  C  T  U  R  E  S    ON    THE          LECT.  13. 


LECTURE       XVIII. 

'The  conftitution  of  a  feudal  monarchy — The  dignity  and  revenues  of  the  King— 
An  examination  of  his  power  as  to  the  raifing  of  taxes  andfubfidles. 

AS,  in  my  former  lectures,  I  drew  a  general  Iketch  of  the  nature  and 
form  of  the  governments  that  prevailed  among  the  northern  nations 
whilft  they  remained  in  Germany,  and  what  alterations  enfued  on  their  be- 
ing removed  within  the  limits  of  the  Roman  empire,  it  will  be  now  proper 
to  mew,  in  as  brief  a  manner  as  may  confift  with  clearnefs,  the  nature  and 
conftitution  of  a  feudal  monarchy,  when  eftates  were  become  hereditary, 
the  feveral  conftituent  parts  thereof,  and  what  were  the  chief  of  the  peculiar 
rights  and  privileges  of  each  part.  This  refearch  will  be  of  ufe,  not  only  to 
underftand  our  prefent  conftitution,  which  is  derived  from  thence,  but  to 
make  us  admire  and  efteem  it,  whsn  we  compare  it  with  that  which  was  its 
original,  and  obferve  the  many  improvements  it  has  undergone.  From 
hence,  likewife,  may  be  determined  that  famous  queftion,  whether  our 
kings  were  originally  abfolute,  and  all  our  privileges  only  conceflions  of 
theirs  ;  or  whether  the  chief  of  them  are  not  originally  inherent  rights,  and 
coeval  with  the  monarchy ;  not,  indeed,  in  all  the  fubjects,  for  that,  in  old 
times,  was  not  the  cafe,  but  in  all  that  were  freemen^  and,  as  all  are  fuch 
now,  do  confequently  belong  to  all. 

To  begin  with  the  king,  the  head  of  the  political  body.  His  dignity 
and  power  were  great,  but  not  abfolute  and  unlimited.  Indeed,  it  was  im- 
poflible,  in  the  nature  of  things,  even  if  it  had  been  declared  fo  by  law, 
that  it  could  have  continued  in  that  flate,  when  he  had  no  ftanding  force, 
and  the  fword  was  in  the  hand  of  the  people.  And  yet  it  muft  be  owned 
his  dignity  was  fo  high,  as  to  give  a  fuperficial  obferver  fome  room,  if  he 
is  partially  inclined,  to  lean  to  that  opinion.  All  the  lands  in  his  dominions 
were  holden  of  him.  For,  by  degrees,  the  allodla  had  been  changed  into, 
and  fuppofed  to  have  been  derived  from,  his  original  grant,  and  confequent- 
ly revertible  to  him.  But  then,  the  land  proprietors  had  (on  fulfilling  the 

conditions 


Lr.cr.i8.  L  A  WS    OF    E  N  G  L  A  N  D.  171 

conditions  they  were  bound  to)  a  fecurc  and  permanent  intereft  in  their 
pollcllions.  He  could  neither  take  them  away  at  pleafure,  nor  lay  taxes  or 
talliagfs  on  them  by  arbitrary  will,  which  would  have  been  little  diiic : 
Since,  in  Magna  Charta,  we  find  the  people  infixing  that  the  king  had  no 
ri^ht  to  alk-fs  the  quantity  of  efcuage,  which  was  a  pecuniary  commutation 
for  military  fervice,  nor  to  lay  talliages  on  his  other  fubjcds,  but  that  both 
mud  be  done  in  parliament.  He  was  a  neceflary  party  to  the  making  new 
laws,  and  to  the  changing  and  abrogating  old  ones  ;  and  from  him  they  re- 
ceived their  binding  force,  inibmuch  that  many  old  laws,  tho'  parted  in  par- 
liament,  run  in  the  king*s  name  only.  For,  in  thofe  days,  perfons  were 
more  attentive  to  fubftance  than  forms  ;  and  it  was  not  then  even  fufpcct- 
ed,  in  any  nation  of  Europe,  that  any  king  would  arrogate  to  himfclf  a 
power  fo  inconfiflent  with  the  original  freedom  of  the  German  nations. 
Nay,  in  France,  to  this  day,  the  king's  edicts  are  not  laws,  until  rcgiflered 
in  parliament,  which  implies  the  confent  of  the  people,  tho'*that  confent  is 
too  often  extorted  by  the  violent  power  that  monarch  has  affumcd  over  the 
perfons  and  liberty  of  the  members  of  that  body  f . 

THE  dignity  of  the  king  was  fupported,  in  the  eyes  of  the  people,  not 
only  by  the  fplendor  of  his  royalty,  but  by  the  lowly  reverence  paid  him 
by  the  greateft  of  his  lords.  At  folemn  feafts  they  waited  on  him  on  the 
knee,  or  did  other  menial  offices  about  his  perfon,  as  their  tenures  re- 
quired, and  did  their  homage  and  fealty  with  the  fame  lowly  and  humilia- 
ting circumftances  that  the  meanefl  of  their  vaflals  paid  to  them.  His  per- 
fon likewife  was  facred,  and  guarded  by  the  law,  which  inflicted  the  mofl 
horrible  punimment  for  attempts  againfl  him  j  neither  was  he  to  be  refilled, 
or  accountable  for  any  private  injury  done  perfonally  by  himfelf,  on  any 
account  whatfoever.  For  the  ftate  thought  it  better  to  fuffer  a  few  per- 
fonal  wrongs  to  individuals,  than  to  endanger  the  fafety  of  the  whole,  by 
rendering  the  head  infecure. 

BUT  the  greateft  of  the  kingly  power  confided  in  his  being  entirely  en- 
trufled  with  the  executive  part  of  the  government,  both  at  home  and  abroad. 
At  home  juftice  was  adminiftered  in  his  name,  and  by  officers  of  his  ap- 

Y  2  pointment. 

f  Hottoman.  Franco-Gall.     Boulainvilliers<on  the  antient  parliaments  of  France. 
Fortefcue  de  laud.  leg.  Angl.  cap.  34.  36. 


172  LECTURES     ON     THE  LECT.  18. 

pointment.  He  had,  likewife,  the  difpofal  of  all  the  great  offices  of  the 
ftate,  with  an  exception  of  fuch  as  had  been  granted  by  his  predeceflbrs  in 
fee,  and  of  all  other  offices  and  employments  exercifed  in  the  kingdom  im- 
mediately under  him.  Abroad  he  made  war  and  peace,  treaties,  and  tru- 
ces as  he  pleafed.  He  led  his  armies  in  perfon,  or  appointed  commanders  ; 
and  exercifed,  in  time  of  war,  that  abfolute  power  over  his  armies  that  is 
dfential  to  their  prefervation  and  difcipline.  But  how  was  he  enabled  to 
fupport  the  expence  of  the  government,  or  to  provide  for  the  defence  of 
the  kingdom,  or  carry  on  a  foreign  war ;  fmce,  if  he  was  not  furnimed  in 
that  refpecl:,  thefe  high-founding  prerogatives  had  been  but  empty  names, 
and  the  flate  might  have  perimed  ?  and  if  he  could  at  pleafure  levy  the  ne- 
cefiary  fums,  he  being  fole  judge  of  the  neceflity,  both  as  to  occafion  and 
quantity,  as  Charles  the  Firft  claimed  in  the  cafe  of  (hip-money,  the  ftate  of 
the  fubjeft  was  precarious,  and  the  king  would  have  been  as  abfolute  a  mo- 
narch as  the  prefent  king  of  France  or  Spain  f . 

BUT  abundant  provifion  was  made  on  this  head,  and  that  without  over- 
burdening the  fubjeft,  for  fupporting  the  ordinary  expences  of  the  govern- 
ment. A  vaft  demefne  was  fet  apart  to  the  king,  amounting,  in  England, 
to  one  thoufand  four  hundred  and  twenty -two  manors,  as  alfo  many  other 
lands,  which  had  not  been  erected  into  manors.  Befides  thefe,  he  had  the 
profits  of  all  his  feudal  tenures,  his  worfhips,  marriages,  and  reliefs ;  the 
benefit  of  efcheats,  either  upon  failure  of  heirs  or  forfeiture  ;  the  goods  of 
felons  and  traitors ;  the  profits  of  his  courts  of  juftice  ;  befides  many  other 
cafualties,  which  amounted  to  an  immenfe  revenue  ;  infomuch,  that,  we 
are  informed,  that  William  the  Conqueror  had  L.  1061  :  los.  a-day,  that  is, 
allowing  for  the  comparative  value  of  money,  near  four  millions  a-year  ; 
fo  that  Fortefcue  might  well  fay,  that,  originally,  the  king  of  England  was 
the  richefl  king  in  Europe.  Such  a  fum  was  not  only  fufficient  for  the  oc- 
cafions  of  peace,  but  out  of  it  he  might  fpare  confiderably  for  the  exigen- 
cies of  war  {. 

THIS  revenue,  however  great,  was  not  fufficient  to  fupport  a  war  of  any 
importance  and  continuance,  befides  the  extraordinary  expence  of  govern- 
ment. 

•f-  Craig,  de  feud.  lib.  i.  diegef.  1 6.     Du  Cange  voc.  Dominicum. 
$  Madox,  hift.  Excheq.     Carte's  hifh  of  England,  vol.  i.  p.  423. 


LI-.CT.  1 8.  L  A  W  S    or    K  X  G  L  A  \  i; 

mcnt.     It  remains,  therefore,  to  fee  \\hat  provifion  this  conflitution  made, 
in  addition  to  what  the  monarch  might  fpare,  for  tlu-  defence  of  Engl 
as  it  might  be  attacki-d  citlu-r  l>y  l.uul  or   leu.     For  the  former,  every 
{">i t  was,  in  proportion  to  its  ability,  obliged  to  find,  in  time  of  dangf : 
their  own  expence,  one  or  more  fliips  properly  furniflicd  with   men  and 
arms ;  which,  joined  to  fuch  other  fliips  as  the  king  hired,  were,  in  gene- 
ral, an  overmatch  for  the  invaders.     But  if  the  enemy  had  got  footing  in 
the  country,  the  defence  at  land  was  by  the  knights  or  military  tenants, 
who  were  obliged  to  ferve  on  horfeback  in  any  part  of  England ;  and  by 
the  focage  tenants,  or  infantry,  who,  in  cafe  of  invafion,  were  likewifc 
obliged  to  ferve,  but  not  out  of  their  own  country,  unlcfs  they  themf-. 
pleafed,  and  then  they  were  paid  by  the  king. 

WITH  refpeft  to  carrying  on  offenjive  war  into  the  enemy's  country,  the 
king  of  England  had  great  advantages  over  any  other  feudal  monarch.  In 
the  other  feudal  kingdoms  the  military  vaflals  were  not  obliged  to  ferve  in 
any  offenfive  war,  unlefs  it  was  juft,  the  determination  of  which  point  was 
in  thcmfelves ;  but  William  the  Conqueror  obliged  all  to  whom  he  gave 
tenures  to  ferve  him  ubicunque ;  and  though  he  had  not  above  three  hun- 
dred, if  fo  many,  immediate  military  tenants  under  him,  yet  thefe  were 
obliged,  on  all  occafions,  to  furnifh  fixty  thoufand  knights  compleatly 
equipped,  and  ready  to  ferve  forty  days  at  their  own  expence.  If  he  want- 
ed their  fervice  longer,  he  was  obliged  to  obtain  it  on  what  terms  he  could. 
There  is,  therefore,  no  reafon  to  wonder  that  the  king  of  England,  though 
matter  of  fo  comparatively  finall  a  territory,  was,  in  general,  an  overmatch, 
in  thofe  early  times,  for  the  power  of  Francve.  As  for  infantry  in  his  foreign 
wars,  he  had  none  obliged  to  attend  him.  Thofe  he  had  were  focage  te- 
nants, whofe  fervices  were  certain  ;  fo  that  he  was  obliged  to  engage,  and 
pay  them,  as  hired  foldiers.  As  the  focage  tenants  in  his  dominions  had  a 
good  (hare  of  property,  and  enjoyed  it  without  oppreflion,  it  is  no  winder 
the  Engli(h  archers  in  thofe  days  had  a  gallant  fpirit,  and  were  as  redoubt- 
able as  the  Englifli  infantry  is  at  prefent. 

To  fupport  thefe  military  tenants,  who  ferved  after  the  neceflary  time, 
Tind  likewife  his  infantry  (as  the  furplus  of  his  ordinary  revenue  would  not 
fuffice)  he  had  cujloms  and  tallwgcs,  and  aids  -wXfubfidics  granted  by  parlia- 
ment. Thefe  cuftoms,  or  fo  much  paid  by  merchants  on  the  exportation 

of 


174  LECTURES     ON     THE  LECT.  18. 

of  goods,  were  of  two  kinds  ;  as  paid  either  by  merchant  Jirangcrs^  or  by 
merchant  denizens  f . 

THE  cufloms  paid  by  merchant  flrangers  were  not  originally  fettled  by 
aft  of  parliament,  but  by  a  compact  between  the  merchant  ftrangers  and 
king  Edward  the  Firft.  In  the  Saxon  times  the  king  had  a  power  of  ex- 
cluding ftrangers  from  his  kingdom,  not  merely  with  an  intention  of  in- 
ducing their  own  people  to  traffick,  but  chiefly  to  keep  out  the  Danes,  who 
\vere  the  mafters  of  the  fea ;  left,  under  pretence  of  trade,  they  might  get 
footing  in,  and  become  acquainted  with  the  ftate  of  the  kingdom.  They 
were,  accordingly,  admitted  by  the  kings  upon  fuch  terms  as  the  latter 
were  pleafed  to  impofe  ;  but  Edward,  who  had  the  fuccefs  and  profperity 
of  his  kingdom  at  heart,  came  to  a  perpetual  compofition  with  them  j  gave 
them  feveral  privileges,  and  they  gave  to  him  certain  cuftoms  in  return. 
What  (hews  they  had  their  origin  from  confent  is,  that  the  king  could  not 
raife  them  without  applying  to  parliament.  The  cuftoms  of  natives  or 
denizens  were,  certainly,  firft  given  to  the  king  by  parliament ;  though 
this  has  been  denied  by  fome,  merely  becaufe  no  fuch  act  is  to  be  found, 
as  if  many  of  the  antient  acts  had  not  been  loft ;  but  there  are  acts  and 
charters  ftill  extant,  which  exprefsly  fay  they  were  appointed  and  granted 
by  parliament,  without  the  power  of  which  they  could  not  be  either  altered 
or  enlarged. 

THE  difference  between  the  cuftoms  and  the  other  aids  I  have  merr- 
tioned,  viz.  talliages  and  fubfidies,  is,  that  the  latter  were  occafional, 
granted  only  on  particular  emergencies,  whereas  the  cujloms  were  for  ever. 
If  it  be  alked  how  they  came  to  be  granted  in  that  manner,  we  muft  refer 
back  to  the  original  ftate  of  boroughs  and  their  inhabitants,  traders,  in  the 
feudal  law.  In  France,  the  Roman  towns  were  taken  into  protection,  and 
had  their  antient  privileges  allowed  them ;  but  in  the  feries  of  wars  that 
happened  in  that  country  for  ages,  every  one  of  them  in  their  turns  were 
ftormed,  and  reduced  to  vaflalage,  either  to  the  king  or  fome  other  great 
lord  j  and  as,  now,  thefe  lords  had  learned  that  the  Roman  emperor  laid 
on  taxes  at  his  pleafure,  it  wa*  but  natural  they  mould  claim  the  fame  right, 
efpecially  over  towns  they  had  taken  in  war.  The  burgeflfes,  therefore,  be- ' 

came 

\  Carte,  ibid.  Hume,  append.  2.     Madox,  antiq.  of  the  Excheq.  paflim, 


LT.cr.i8.          LAWS    OF    ENGLAND.  175 

<:amc  in  the  nature  of  villains,  not  indeed  of  common  villains,  for  that 
\vouM  abfolutcly  have  deftroyed  trade,   but   with  rcfpcct  to  arbitrary  t, 
tion,  which,  however,  if  the  lord  was  wife,  was  never  exorbitant.     In  Eng- 
land, I  apprehend,  they  became  villains ;  for  the  Saxons  were  a  inurdc. 
iMv*e,  and  extirpated  the  old  inhabitants.     However,  wife  kings,  confidcriug 
the  advantages  of  commerce,  by  degrees,  bellowed  privileges  on  certain 
places,  in  order  to  render  them  flouriming  and  wealthy;  and  at  length,  about 
the  time  of  Magna  Charta,  or  before,  when  every  uncertain  fervice  was  vary- 
ing to  a  certainty,  this  privilege  was  obtained  for  merchant  adventtr 
But  the  other  burgefles,  that  did  not  import  or  export,  and  likewifc  villains, 
were  flill  talliageable  at  will.     This  was  retrained  by  Magna  Charta,  which 
declares  all  talliages  unlawful,  unlefs  ordained  by  parliament  f. 

To  come  to  the  latter  head,  whether  taxes,  aids,  and  futfidics  can  be 
aflefled  by  the  king,  as  fole  judge  of  the  occafion,  and  the  qitantwn  —  or 
whether  they  muft  be  granted  by  parliament,  was  the  great  and  principal 
contefl  between  the  two  firfl  princes  of  the  unfortunate  houfe  of  Stuart  and 
their  people,  and  which,  concurring  with  other  caufes,  cofl  the  laft  of  them 
his  life  and  throne.  To  fay  nothing  of  the  divine  hereditary  right  urged  on 
the  king's  behalf,  and  which,  if  examined  into  ftri&ly,  no  royal  family  in 
Europe  had  lefs  pretenfions  to  claim,  both  fides  referred  themfelves  to  the 
antient  conftitution  for  the  decifion  of  this  point.  The  king's  friends  urged 
that  all  lands  were  holden  from  him  by  fervices,  and  that  this  was  one  of 
his  .prerogatives,  and  a  neceflary  one  to  the  defence  of  the  (late.  They 
produced  feveral  inftances  of  its  having  been  done,  and  fubmitted  to,  not 
only  in  the  times  of  the  worft,  but  of  fome  of  the  bed  kings ;  and  as  to 
acts  of  parliament  againft  it,  they  were  extorted  from  the  monarchs  in  par- 
ticular exigencies,  and  could  not  bind  their  fucceflbrs,  as  their  right  was 
from  God, 

THE  advocates  of  the  people,  on  the  other  hand,  infifted,  that,  in  Eng- 
land, as  in  all  other  feudal  countries,  the  right  of  the  king  was  founded  on 
compact ;  that  William  the  Conqueror  was  not  matter  of  all  the  lands  in 
England,  nor  did  he  give  them  on  thefe  terms  ;  that  he  claimed  no  right 
but  what  the  Saxon  kings  had,  and  this  they  certainly  had  not  ;  that  he 

eftabliihed 
f  Firma  Burgi,  ch.  4.  ;.  n. 


X7&  LECTURES     ON     THE          LECT.  18. 

eftablifbed  and  confirmed  the  Saxon  laws,  except  fuch  as  were  by  parlia- 
ment altered ;  that  he  gave  away  none  but  the  forfeited  lands,  and  gave 
them  on  the  feme  terms  as  they  were  generally  given  in  feudal  countries, 
xvhere  fuch  a  power  was  in  thofe  days  unknown.  They  admitted,  that,  in 
fact,  the  kings  of  England  had  fometimes  exercifed  this  power,  and  that, 
on  fome  occafions,  the  people  fubmitted  to  it.  But  they  infilled,  that  mod 
of  the  kings  that  did  it  were  oppreflbrs  of  the  worfl  kind  in  all  refpects  j 
that  the  fabjects,  even  in  fubmitting,  infifted  on  their  ancient  rights  and 
freedom,  and  every  one  of  thefe  princes  afterwards  retracted,  and  confefled 
they  had  done  amifs.  If  one  or  two  of  the  bed  and  wifefl  of  their  kings 
had  practifed  this,  they  infifted  that  their  anceflors  acquiefcence  once  or 
twice,  in  the  meafures  of  a  prince  they  had  abfolute  confidence  in,  and  at 
times  when  the  danger,  perhaps,  was  fo  imminent  as  to  flare  every  man  in 
the  face,  (for  it  was  fcarce  ever  done  by  a  good  prince)  as  when  there  was 
not  a  fleet  already  aflembled  in  the  ports  of  France  to  waft  over  an  army, 
Ihould  not  be  confidered  as  conveying  a  right  to  future  kings  indifcrimi- 
nately,  as  a  furrender  of  their  important  privileges  of  taxation.  They  infift- 
ed that  thefe  good  and  wife  kings  had  acknowledged  the  rights  of  the  people ; 
that  they  excufed  what  they  had  done,  as  extorted  by  urgent  neceflity,  for 
the  prefervation  of  the  whole ;  that,  by  repeated  acts  of  parliament,  they  had 
difavowed  this  power,  and  declared  fuch  proceedings  mould  never  be  drawn 
into  precedent.  They  obferved,  that  there  was  no  occafion  for  the  vaft 
demefne  of  the  king,  if  he  had  this  extraordinary  prerogative  to  exert  when- 
ever he  pleafed.  They  denied  the  king's  divine  right  to  the  fucceflion  of 
the  crown,  and  that  abfolute  unlimited  authority  that  was  deduced  from  it. 
They  infifted  that  he  was  a  king  by  compact,  that  his  fucceflion  depended 
on  that  compact,  though  they  allowed  that  a  king  intitled  by  that  compact, 
and  acting  according  to  it,  has  a  divine  right  of  government,  as  every 
legal  and  righteous  magiftrate  hath.  They  inferred,  therefore,  that  he  was 
a  limited  monarch,  and  confequently  that  he  and  his  fucceffors  were  bound 
by  the  legiilative,  the  fupreme  authority  j- . 

THE  advocates  of  the  king  treated  the  original  compact  as  a  chimera,  and 
defired  them  to  produce  it ;  which  the  other  fide  thought  an  unreafonable 
demand,  as  it  was,  they  alledged,  tranfacted  when  both  king  and  people 

were 

-J-  Bibliotheca  politica,  Dial.  5.  and  10. 


18.  LAWS    OF    EN  GL  AN  D.  177 

\\rrc  utterly  illiterate.     They  thought  the  utmofl  proof  poflible  was  given 
by  quoting  the  real  ads  oi  authority,  which  the  Saxon  kings  had  c.v 

ng  \vhicli  this  was  not  to  be  found  ;  that  the  Norman  kings,  though 
fome  of  them  had  occasionally  praclifed  it,  had,  in  general,  both  bad  and 
good  princes,  afterwards  difclaimed  the  right,  and  that  it  never  had  (though 
perhaps  fubmitted  to  in  one  or  two  inftances)  been  given  up  by  their 
anceftors,  who  always,  and  even  to  the  face  of  their  belt  princes,  infifted 
that  it  was  an  encroachment  on  thofe  franchiles  they  were  intitled  t 
their  birthright. 

SUCH,  in  general,  were  the  principles  on  which  the  arguments  were 
maintained  on  both  fides  :  for  to  go  into  minutia,  would  not  confift  w  ith 
the  defign  of  this  undertaking.  I  apprehend  it  will  be  evident  from  this 
detail  of  mine,  though  1  protefl  I  defigned  to  reprefent  both  fides  fairly, 
that  I  am  inclined  to  the  people  in  this  queftion.  I  own  I  think  that  any 
one  that  confiders  impartially  the  few  monuments  that  remain  of  the  old 
Saxon  times,  either  in  their  laws  or  hiftories,  the  conflant  courfe  fince  the 
conquefl,  and  the  practice  of  nations  abroad,  who  had  the  fame  feudal 
policy,  mufl  acknowledge,  that  though  this  right  was  claimed  and  exercifed 
by  John,  Henry  the  Third,  Edward  the  Firft,  Second,  and  Third,  Richard 
the  Second,  and  Henry  the  Eighth,  it  was  in  the  event  difclaimed  by  every 
one  of  them,  by  the  greateft  of  our  kings,  Edward  the  Firft  and  Third> 
and  Henry  the  Eighth,  with  fuch  candour  and  free  will,  as  inforced  confi- 
dence in  them  ;  by  the  others,  in  truth,  becaufe  they  could  not  help  it.  I 
hope  I  mail  (land  excufed,  if  I  add,  that  the  majority  of  thofe  who  engaged 
in  the  civil  war,  either  for  king  Charles,  or  againfl  him,  were  of  the  fame 
opinion.  For,  had  he  not  given  up  this  point,  (and  indeed  he  did  it  with 
all  the  appearances  of  the  greateft  fincerity)  he  would  not  have  got  three 
thoufand  men  to  appear  for  him  in  the  field.  But,  unfortunately  for  his 
family,  and  us,  (for  we  Mill  feel  the  effects  of  it  from  the  popifh  education 
his  offspring  got  abroad)  his  concefiion  came  too  late.  He  had  loft  the 
confidence  of  too  many  of  his  people,  and  a  party  of  republicans  were 
formed ;  all  reafonable  fecurities  were  certainly  given ;  but  upon  pretence 
that  he  could  not  be  depended  upon,  his  enemies  prevailed  on  too  many  to 
infift  on  fuch  conditions,  as  would  have  left  him  but  a  king  in  name,  and 
ainhinged  the  whole  frame  of  government.  Thus  the  partizans  of  abfolute 

Z  monarchy 


178  L  E  C  T  U  R  E  S    ON    THE  LECT.  18. 

monarchy  on  one  fide,  and  the  republicans,  with  a  parcel  of  crafty  ambi- 
tious men,  who  for  their  own  private  views  affected  that  character,  on  the 
other,  rented  the  kingdom  between  them,  and  obliged  the  honeft,  and  the 
friends  to  the  old  conftitution,  to  take  fide  either  with  one  party  or  other, 
and  they  were  accordingly,  for  their  moderation  and  defire  of  peace,  and  a 
legal  fettlement,  equally  dcfpifed  which  ever  they  joined  with  j- 

I  mail  make  but  one  obfervation  more  ;  that  though  it  is  very  falfe  rea- 
foning  to  argue  from  events  when  referred  to  the  decifion  of  God,  as  to  the 
matter  of  right  in  queftion  ;  I  cannot  help  being  ftruck  with  obferving,  that 
though  this  has  been  a  queftion  of  five  hundred  years  (landing  in  England, 
the  decifion  of  providence  hath  conftantly  been  in  favour  of  the  people.  If 
it  has  been  fo  in  other  countries  for  two  hundred  or  two  hundred  and  fifty 
years  pail,  which  is  the  utmoft,  let  us  invefligate  the  caufes  of  the  difference, 
and  act  accordingly.  The  ancients  tell  us  it  is  impofible  that  a  brave  and 
virtuous  nation  can  ever  be  flaves,  and,  on  the  contrary,  that  no  nation  that 
is  cowardly,  or  generally  vitious,  can  be  free.  Let  us  blefs  God,  who  hath 
for  fo  long  a  time  favoured  thefe  realms.  Let  us  act  towards  the  family 
that  reigns  over  us,  as  becomes  free  fubjeds,  to  the  guardians  of  liberty, 
and  of  the  natural  rights  to  mankind  ;  but  above  all,  let  us  train  pofterity, 
fo  as  to  be  deferving  of  the  continuance  of  thefe  bleffings,  that  Montefquieu's 
prophecy  J  may  never  appear  to  be  juftly  founded. 

"  ENGLAND  (fays  he)  in  the  courfe  of  things,  muft  lofe  her  liberties, 
"  and  then  me  will  be  a  greater  Have  than  any  of  her  neighbours." 

|  Biblioth.  polit.  320.  330.  333.  339.  356.  357.  370. 
\  L'Efprit  des  Icix,  liv.  1 1    chap.  6. 


LECTURE 


LECT.  19.          L  A  W  S    OF    E  N  G  L  A  N  D. 


•79 


LECTURE         XIX. 

ing's  pcwcr  as  to  the  making,  repealing,  altering,  cr  difoen/inv  ivith  taws. 


HAVING,  in  the  lad  lefture,  begun'  to  draw  the  outlines  of  a  feudal 
monarchy,  particularly,  as  it  antiently  was  in  England,  in  order  that 
it  may  be  more  eafy  to  underftand  the  nature  'of  our  prefcnt  conftitution  ; 
and  to  fee  how  far,  and  in  \vhat  particulars,  it  has  deviated  from  its  origi- 
nal, cither  for  the  better,  or  the  worfe  ;  and  having,  for  that  purpofe,  be- 
gun with  the  regal  prerogatives,  and  particularly  with  that  important  one, 
the  raifing  of  money,  it  will  be  proper  to  proceed  to  the  king's  power  as  to 
the  laws,  either  in  the  making,  repealing,  altering,  or  difpenfmg  with  them  : 
for  thefe  powers  are  now  exercifed  by  the  fovereigns  in  almoft  all  the  mo- 
narchies that  were  antiently  feudal,  and  have  been  claimed  likewife  in  Eng- 
land. That  this  power  could  not  originally  have  been  in  the  king,  in  any 
feudal  ftate,  is  plain  from  the  detail  I  have  given  of  the  old  German  go- 
vernments, and  of  the  gradual  progrefs  and  formation  of  the  European 
kingdoms  from  thence  ;  and  it  would  not  only  be  an  entertaining,  but  ufeful 
fludy  for  gentlemen  of  fortune,  to  trace,  through  the  hiflory  of  every  na- 
tion, the  feveral  fleps  whereby  the  liberties  of  the  people  have  been  under- 
mined, until  the  whole  power  hath  fettled  in  the  monarch  ;  but  I  mail  con- 
tent myfelf  with  a  few  obfervations  on  this  fubjeft,  drawn  from  the  HiAory 
of  England,  and  fuch  as,  in  my  apprehenfion,  will  be  fufficient  to  fettle 
this  point  as  to  us. 

IF  the  monarchies  on  the  continent  were  not  abfolute  in  this  refpetf,  much 
lefs  could  the  Saxon  kings  pretend  to  fuch  a  power,  from  the  very  nature  of 
the  foundation  of  their  kingdoms.  The  Franks,  the  Goths,  the  Burgun- 
dians,  and  others  on  the  continent,  were  led  to  conqueft  by  thofe  who  had 
been  previoufly  their  kings,  and  who  had  a  (lable  and  fettled  authority  over 
them.  Very  different  was  the  fettlement  of  the  Saxons  in  Britain*  Neither 
Hengift,  nor  any  of  their  firft  kings,  had  been  kings  in  Germany.  They 
were  mere  leaders  of  companies  of  freebooters,  who  had  afiociatcd  them- 

Z  2  fclves 


i8o  LECTURES     ON     THE  LECT.  19. 

felves  firft  for  plunder,  and  afterwards  to  fix  themfelves  in  new  feats,  in 
imitation  of  the  other  German  nations.  Their  leaders,  therefore,  could 
have  no  powers,  but  what  were  conferred  upon  them  by  their  followers ; 
and  that  law-making  was  not  one  of  thofe  powers,  appears  from  the  fre- 
quent meetings  of  their  witenagemots,  which  was  the  name  they  gave  to 
their  general  aflemblies,  or  parliaments ;  and  from  all  the  laws  of  theirs 
now  extant  being  made  in  them.  It  was  the  boafl  of  the  good  and  wife 
king  Alfred,  that  "  he.  left  the  people  of  England  as  free  as  the  internal 
"  thoughts  of  man,*'  a  fpeech  which  could  never  have  proceeded  from  the 
mouth  of  one  who  had  the  lead  notion  of  the  almighty  power  of  kings  over 
the  laws.  His  fucceffors  were  of  the  fame  opinion.  The  law  of  Edward 
the  Gonfeifor,  which  was-  ratified  by  the  Conqueror,  fays,  Debet  rex  omnia 
rite  facers  in  regno,  <&  per  judicium  procerum  regni,  and  if  omnia^  furely  the 
making  and  repealing  of  laws,  the  mofl  important  of  all  f . 

OUR  hiftorians  and  records  from  that  time  down  undeniably  mew  who, 
in  every  age,  were  the  legiflators,  and  that  the  kings  alone  were  not  fo. 
The  fame  is  exprefsly  delivered  by  all  the  old  writers  on  the  law,  Glanville, 
Brafton,  Britton,  Fleta  and  Fortefcue.  Nay,  fome  of  them,  in  their  zeal 
for  liberty,  have  gone  fo  far,  as  to  pervert  the  meaning  of  the  civil  law, 
which,  in  their  time,  was  in  high  repute,  and  to  deny  the  abfolute  power  of 
legislation  to  the  Roman  emperor.  The  civil  law  fays,  Quod principi  placet 
legis  habet  vigorem  ;  but  how  doth  Bra&on  comment  upon  it  ?  Id  eft  non 
quicquid  de  voluntate  regis  temere  prafumptum  eft^  fed  animo  condendi  jura,  fed 
quod  confilio  magiftratuum  fuorum,  rege  auftoritatem  prx/ianie^  &  habitafuper 
hoc  deliberatione  &  traflatu,  rettefuerit  definition  J. 

IT  nruft,  however,  be  owned  that  many  of  our  princes' were  very  defi- 
rous  of  afiuming  this  power.  In  the  reign  of  our  Henry  the  Firft,  a  per- 
fe£l  copy  of  the  civil  law  being  difcovered  at  Amalfi,  the  princes  of  Europe 
got  an  idea  of  a  monarchy  more  powerful  and  abfolute  than  either  kings 
or  people  had  for  many  centuries  before  any  notion  of;  and  they  were,  in 
general,  defirous  enough  to  flretch,  if  they  could,  their  limited  prerogative 
to  the  height  of  the  antient  imperial  defpotifm  ;.  but  to  do  this  by  their  own 

authority 

f  Afler,  de  Geftis  Alfred!..    Tyrrel,  gen.  mtroduft.  to  the  hift.  of  England. 
$  Lib.  3.  cap.  9.  fol.  107. 


T.  19.  LAWS    OF    ENGLAND.  18-1 

authority  was  impofl  \\,\c.  A  \vifcr  way  was  purfucd.  The  excellency  of 
this  law  was,  on  every  occafion,  extolled,  not  only  as  providing  remedies, 
and  determining,  in  many  cafes,  where  the  feudal  cufloms  were  filent,  but 
on  account  alfo  of  its  jullice  and  equity  ;  praifes  that,  it  muft  be  owned,  do 
belong  to  this  law  where  the  abfolute  authority  of  the  prince  is  not  con- 
ed. Foundations  for  the  teaching  this  law  were  eftabliihcd  in  all  the 
univerfities,  and  the  proficients  therein  were  fure  of  ample  encourage- 
ment f  . 

THE  popes,  likewife,  \vho  wanted  to  fct  themfelves  up  in  the  feat  of  the 
old  emperors,  contributed  not  a  little,  in  thofe  days  of  ignorance,  to  fpread 
it  ;  fo  that  it  is  not  wonderful  that  it  got  ground  in  every  country  almoft 
on  the  continent  ;  and  being  melted  into,  and  conjoined  with  the  feudal 
cuftoms,  contributed  not  a  little  to  the  deftru&ion  of  the  freedom  of  the  an- 
tient  conftitutions.  The  fame  method  was  attempted  in  England,  but  not 
with  the  like  fuccefs.  The  foundation  of  profeflbrfhips,  the  introducing 
that  law,  and  its  forms,  into  the  courts  that  were  more  immediately  under 
the  king's  influence,  as  the  courts  of  the  conftable,  the  admiral,  and  of  the 
univerfities,  and  the  high  employments  its  profeflbrs  obtained,  fufficiently 
mew  die  fondnefs  many  of  our  kings  had  for  it.  But  the  common  lawyers 
and  parliament  perceived  the  defign,  and  forefaw  the  confequences  that 
might  follow.  Their  oppofition  was  fteady  and  fuccefsful  ;  and  if  they  did 
not  banim  it  from  the  courts  wherein  it  had  got  footing,  at  lead  they  fo  li- 
mited and  circumfcribed  it,  as  to  prevent  its  future  progrefs. 


THE  kings  who  ad  any  wifdom  or  prudence,  in  order  to  diflemble  their 
real  defign,  gave  way  to  thefe  reftriftions,  and  waited  for  more  favourable 
opportunities  ;  but  the  imprudent  and  haughty  Richard  the  Second  avowed 
himfelf  an  open  patron  to  this  law.  When  the  duke  of  Ireland,  the  arch- 
bifhop  of  York,  and  others  his  minions,  were  accufed  in  parliament  of  high 
treafon,  and  the  evidence  being  known  to  be  fo  full  as  that  they  muft  be 
convicted,  he  made  this  weak  attempt  to  fcreen  them.  He  got  his  judges, 
who  were  his  creatures,  to  declare  the  proceedings  againfl  thefe  perfons  null 
and  void,  as  not  being  regulated  according  to  the  forms  prefcribed  by  the 

civil 

f  Giannone's  hift.  of  Naples,   lib.  u.  chap.  2.       Hume's  hift.  of   England,  vol.  2. 

p..  441- 


LECTURES    ON     THE  LECT.  19. 

civil  law :  but  the  barons,  provoked  at  Rich  a  bare-faced  attempt,  infifted 
they  were  regular,  as  agreeable  to  their  own  cufloms,  and  declared  pofitive- 
ly  they  would  never  fuffer  England  to  be  governed  by  the  Roman  civil  law, 
and  pafled  fentence  of  high  treafon  againft  the  judges  f . 

WHENCE  that  king's  fondnefs  for  this  law  arofe,  may  be  feen  from  the 
ufe  he  put  it  to,  the  protection  of  the  inftruments  of  his  tyrannical  admini- 
ftration ;  and  from  the  many  wild  and  unguarded  declarations  he  made, 
cfpecially  that  relative  to  his  commons,  thatjjaves  they  were,  and  Jlaves  they 
J/youldbe,  and  to  his  parliament,  that  he  would  not  at  their  requeji  dif charge  the 
meaneft  fcullion  in  his  kitchen.  But  tho*  this  prince  was  pleafed  to  fay,  that 
the  laws  were  in  his  breath^  find  that  he  could  make  and  unmake  them  at 
his  pieafure,  he  did  not  think  the  time  was  come  to  put  that  vaunt  in  execu- 
tion. He  took,  therefore,  another  way  of  ufurping  the  legiflative  power. 
Having  gained  over  a  majority  of  the  returning  officers,  and  either  intimi- 
dated or  gained  over  the  mod  powerful  of  the  nobility,  he  called  the  fa- 
mous parliament  at  Shrewfbury,  after  having  nominated  to  the  returning 
officers  whom  they  mould  return  ;  and,  as  he  expected,  this  parliament,  if 
fo  it  may  be  called,  was  complaifant  enough  to  compliment  the  king  with 
his  heart's  defire.  The  former  fentence  againfl  the  judges  was  reverfed, 
and  confequently  the  civil  law  fet  up  as  the  ftandard  in  trials  of  treafon. 
And  they  indirectly  transferred  the  whole  legiflative  power  to  the  fovereign 
in  the  following  manner. 

As  there  had  been  many  petitions  left  unanfwered,  and  many  motions 
undecided,  they  gave  the  power  of  deciding  thefe,  or  other  matters  that 
might  arife  before  the  next  parliament,  to  the  king,  twelve  peers,  and  fix 
commoners.  For  this  committee,  they  chofe  fuch  perfons,  the  majority  of 
whom  were  at  the  devotion  of  the  king,  and  gave  him  and  the  majority 
power  to  fill  up  vacancies  ;  thereby  rendering  the  calling  any  future  parlia- 
ment abfolutely  unneceflary.  Thus  was  the  conftitution  fubverted,  and  in 
its  flead  fet  up  an  oligarchy  in  appearance,  but  in  truth  an  abfolute  monar- 
chy. But  as  wifely  and  happily  as  Richard  thought  he  had  conducted  this 
affair,  by  which  he  fuppofed  he  had  gained  his  long  wifhed-for  end,  neither 
the  feeming  authority  of  parliament,  nor  the  anathemas  thundered  in  the 

pope's 

f  Diflertatio  Seldeni  ad  Fletam,  cap.  7. 


LECT.  19.  LAWS    OF    ENGLAND.  183 

pope's  bull  a^ainft  the  contravcnors,  could  fatisfy  the  people  that  they  were 
not  itripped  oi  their  ancient  rights,  or  that  the  king  and  hi>  committee  were 
rightful  U-giilators.  What  fcntiim-ms  the  nation  entertained  appears,  from 
their  deferring  him  as  one  man,  and  following  the  firfl  flandard  that  \vas  fet 
up  againll  him  f . 

SINCP.  the  days  of  this  unfortunate  Richard,  no  king  of  England  hath, 
in  open  and  exprefs  terms,  affumed  to  himfelf  fingly  the  right  of  legiflation. 
Though  James  the  Firft  plainly  claimed  it,  by  implication,  in  many  of  hh 
fpeeches,  particularly  in  thofe  famous  words  of  his,  that  as  it  was  blafphcmy 
for  man  to  difpute  what  God  might  do  in  the  plenitude  of  his  omnipotence, fo  was 
it  fcdition  for  fubjefts  to  difpute  what  a  king  might  do  in  the  fulnefs  of  his  power. 
But  it  would  be  doing  injuftice  to  the  houfe  of  Stuart  not  to  acknowledge 
that  fome  of  the  princes  before  them,  particularly  the  Tudors,  tho*  they 
did  not  pretend  to  make  laws,  yet  iflued  out  many  proclamations,  or  afls  of 
Jtate^  as  they  were  afterwards  called,  to  which  they  exacted  the  fame  unli- 
mited obedience  as  if  they  had  been  laws  enacled  by  parliament.  This  is  a 
point  worthy  confideration  j  for  if  all  proclamations,  or  acts  of  the  king  and 
his  council,  require  unlimited  obedience,  it  is  to  little  purpofc  whether  we 
call  them  laws  or  not,  fince  fuch  they  are  in  effeft.  But  this,  I  think,  will 
be  pretty  plain,  if  we  make  a  proper  diltinction  between  fuch  proclamations, 
or  afts  of  the  king,  as  are  particular  exertions  of  the  executive  power, 
which  the  law  and  conilitution  hath  entruflcd  him  with,  and  fuch  as,  affect- 
ing the  whole  people,  mould  in  any  wife  alter,  diminifh,  or  impair  the  righu 
they  were  before  lawfully  in  poffeflion  of. 

To  give  fome  few  inftances  of  the  firfl  fort.  The  appointment  of  magi- 
ftrates,  the  proclaiming  war  or  peace,  the  laying  on  embargoes,  or  perform- 
ance of  quarantine,  the  ordering  erection  of  beacons  in  times  of  danger  of 
an  invasion,  the  granting  of  efcheated  or  forfeited  eftates,  and  many  more, 
are  the  antient  and  undoubted  prerogatives  of  the  king  alone,  and  the  fub- 
je£r.  who  refifts,  or  difobeys,  in  fuch  cafes,  is  as  much  a  rcbel^  or  difobc- 
dient  fubjecl:,  as  if  thefe  acls  were  exercifed  by  the  whole  legiilature.  But 
with  refpect  to  making  general  rules  and  ordinances,  affecting  the  previous 
rights  of  the  people,  the  cafe  is  very  different.  For  if  fuch  were  to  be  uni- 

verfally 

\  Bacon,  hift.  and  polit.  difcourfe  on  the  laws  and  government  of  England,  par<  2. 
ch.  T.  and  ^,     The  reign  of  Rich.  II.  in  Kennct's  colleftion  of  hiflorians. 


184  LECTURES     ON     THE  LECT.  19. 

verfally  obeyed,  it  is  equivalent  to  faying,  that  fubje&s  have,  properly 
fpeaking,  no  rights  at  all,  but  hold  every  thing  at  the  will  of  the  king  ;  a 
fpeech  which  the  mofl  defpotic  monarch  in  Europe  would  not  venture  to 
advance. 

HOWEVER,  I  will  not  carry  this  fo  far  as  to  deny  that  there  may  cafes 
happen  wherein  the  king  may  have  this  right,  and  wherein  his  proclama- 
tions and  orders,  even  relating  to  fuch  points,  ought  to  be  obeyed.  The 
cafes,  I  mean,  are  thofe  of  a  foreign  invafion,  or  intefline  rebellion,  when 
the  danger  is  too  imminent  to  attend  the  refolutions  of  parliament.  In  fuch 
cafes  the  conflitution  is,  for  a  time,  fufpended  by  external  violence,  and  as 
fains  poputt  fuprema  lex  £/?,  every  man  is  under  an  obligation  to  ufe  his  ut- 
moft  endeavours  to  reftore  it,  and,  confequently,  obliged  to  obey  him,  to 
whom  the  conftitution  has  particularly  entrufted  that  care.  Inftances  of  this 
kind  did  happen  during  the  confufions  raifed  by  the  houfes  of  York  and 
Lancafter,  and  the  princes  were  accordingly  obeyed.  Thefe  precedents 
doubtlefs  gave  a  handle  to  their  fuccefibrs,  who  had  no  competitors  to  the 
throne,  to  exercife  the  fame  power  in  more  fettled  times.  But  this  was 
ufed,  at  firfl,  in  a  cautious  and  fparing  manner ;  and  Henry  the  Eighth, 
who  was  a  monarch  as  unlikely  to  make  undue  condefcenfions  to  his  people 
as  ever  lived,  was  glad  to  derive  it  from  the  grant  of  parliament,  that  his 
proclamations  mould  have  the  force  of  laws,  which  was,  in  truth,  giving 
into  his  hands  the  legiflative  power  for  life  f . 

His  great  fucceffor,  Elizabeth,  carried  this  practice  farther,  and  it  will 
be  worth  while  to  difcover  the  reafon  why  a  people,  in  antient  times,  fo 
jealous  of  their  privileges,  mould  to  the  one  prince  explicitly  give  up,  and 
quietly  fuffer  the  other  to  ufurp  this  power,  fo  effential  to  a  limited  conftitu- 
tion. And  the  caufe  I  take  to  be  the  critical  ftate  the  nation  flood  in  with 
refpeft  to  religion.  The  bulk  of  the  people,  glad  to  be  delivered  from  the 
yoke  of  papal  tyranny,  and  dreading  its  reftoration,  were  willing  to  arm 
their  princes  with  a  power  fufficient  to  protect  their  religion  from  foreign 
and  domeftic  enemies ;  and  about  religion  indeed,  this  power  was  at  firfl 
principally  exercifed,  on  the  footing  of  the  papal  fupremacy  being  tranf- 
ferred  to  the  king.  Their  end  was  attained  :  Papifts  and  Puritans  were 

both 

f^Hume's  hift.  of  England,  vol.  2. 


LECT.  19.  L  A\VS    OF    EN  G  L  A  N  D.  185 

both  kept  under,  and  happy  in  the  enjoyment  of  their  religion,  they  du! 
eonfider  the   confeqnencrs ;  that   this    very  weapon   might   be  ufcd,  by  a 
prince  of  another  ftamp,  to  root  out  tlie  very  religion  they  were  fo  fond  <<i, 
and  that,  by  admitting  this  exertion  of  power  in  a  matter  of  fo  high  confc- 
quence,  it  would  naturally  be  ufed  in  others  that  appeared  of  lefsf. 

THIS  was  what  accordingly  happened.  Proclamations  on  other  points 
•wcreiiTued;  and  monopolies  in  trade  were  introduced.  All  monopolies,  un- 
doubtedly, were  not  deftruftive  to  trade.  Where  a  new  traffick  has  been 
difcovercd,  and  one  that  requires  a  large  expence,  and  is  liable  to  many 
hazards,  it  is  very  reafonable  that  the  firft  undertakers  mould  have  the 
trade  for  a  time  confined  to  them,  that,  by  the  profpect  of  extraordinary 
profit,  they  may  be  encouraged  to  promote  and  fettle  that  commerce  on  a 
folid  bottom.  Such  monopolies,  inftead  of  hurting,  tend  to  the  promotion 
of  traffick,  and  are  not  without  fimilar  inftances  in  former  times,  I  mean 
the  kings  of  England  appointing  the  towns  for  the  flaplc  ;  and  had  Eliza- 
beth and  James  confined  themfelves  to  the  ere&ion  of  the  Ruilia,  the  Turky, 
raid  Eafl  India  companies,  and  that  for  a  limited  term,  their  conduct  would 
have  deferved  the  higheft  applaufe  ;  but  that  was  far  from  being  the  cafe. 
Monopolies  were  introduced  in  the  antient,  the  moft  common  and  moft 
neceflary  commodities,  to  the  great  impoverifhment  of  the  nation  by  the 
advance  of  prices. 

AT  firfl  it  may  feem  ftrange  that  the  wife  Elizabeth,  who,  on  all  occa- 
fions,  feemed  to  have  her  people's  wealth  and  eafe  at  heart,  mould  follow 
fo  deftrudive  a  courfe.  But  the  great  end  of  all  her  actions  was  the  fecu- 
ring  herfelf  on  the  throne,  and  one  of  the  principal  means  flic  ufed  for  that 
end,  was  the  afking  money  from  her  people  as  feldom  as  poffible.  Hence 
proceeded  the  long  leafes  of  the  crown  lands,  at  fmall  rents  and  large  fines, 
and  'hence  all  the  monopolies,  which  (he  fold  to  the  undertakers ;  but  better 
had  it  been  for  her  fubjeds,  to  have  raifed  the  fums  (he  wanted  by  an  addi- 
tional fubfidy,  or  an  eafy  tax,  than  to  pay  to  the  monopolifls  what  they  had 
advanced,  with  their  exorbitant  profits  befides.  What  Elizabeth  began  out 
of  policy,  James  continued,  to  fupply  his  profufion,  to  fuch  an  extraordi- 
nary degree,  as  difgufled  his  people,  provoked  his  parliament,  and  at  lafl 

A  a  made 

•J-  Cambden's  reign  of  Elizabeth,  paffim. 


186  L  E  C  T  U  R  E  S     ON     THE          LECT.  19, 

made  himfelf  afhamed,  infomuch  that  he  revoked  above  twenty.  And  now 
no  monopoly  can  be  raifed  but  by  act  of  parliament,  except  in  cafe  of  a  new 
invention,  and  that  but  for  a  fhort  term  of  years  f . 

I  COME  now  to  the  difpenfing  power,  another  prerogative  which  the  Stuarts 
claimed,  and  which  coft  the  lafl  of  them  the  throne.  As  no  ftate  can 
fubfift  without  mercy  as  well  as  juftice,  the  king  hath  the  power  of  diftri- 
buting  this  mercy,  and  exempting  a  convicted  criminal  from  the  penalty  of 
the  law,  but  this  is  only  where  the  conviction  is  at  his  fuit  ;  thus  the  king 
can  pardon  a  murderer  convicted  on  an  indictment  in  the  king's  name,  but 
if  he  was  convicted  on  an  appeal  by  the  next  relation,  the  king  cannot.  The 
pardon  belongs  to  the  appellant.  But  there  is  a  wide  difference  between  a 
pardon,  that  is  remiffion  of  punifhment  after  the  fact,  and  difpenfing,  which 
is  giving  a  previous  licence  to  break  the  law.  A  general  difpenfation  is,  in 
fact,  a  repeal,  and  a  particular  one  is  a  repeal  quod  hunc,  and  therefore  can 
belong  only  to  the  legiilature.  The  .  Roman  emperors,  and  the  popes,  as 
legiflators,  aifumed  this  power,  and  Henry  the  Third,  an  apt  pupil  of  his 
lord  and  mafler  the  pope,  introduced  the  practice  into  England.  In  his 
reign  a  patent,  with  a  nan  obftante  to  any  law  whatsoever,  was  produced 
into  court  before  Roger  de  Thurkeby,  and  this  honefl  judge  was  aftonifhed 
at  the  innovation,  as  Matthew  Paris  tells  us  in  thefe  words :  £>uod  aim  com- 
penffet,  ab  alto  ducens  fujfrkia  de  pradicltf  adjeflionis  appofttione,  dixit,  heuy 
ksu  hos  utqiild  dies  cxpeffavimiu,  ecce,  jam  chills  curia  exemplo  ecclcjiajtlc^.^ 
swquinatur,  6"  a  fidphureo  fonte  rivulus  intoxkatur  J. 

f  Wilfon's  life  and  reign  of  James  I.  ap.  Kennet. 

•|  Bibliotheca  politica,  dial.  ir.     Bacon,  hift.  and  political  difcourfe,  part  I.  chap.  64.. 


LECTURE 


LECT.  20.        LAWS     OF     ENGLAND.          18;- 


LECTURE         XX. 

Lords  cf  Parliament  or  Peers — Earls  and  Barons — The  earlier  ft  a  It  of  Bar , 
in  England — The  Barones  majores  CJT  minores — Barons  by  urit  and  by  let- 
ters patent — The  different  ranks  of  Nobility. 

NEXT  in  rank  to  the  king  are  the  lords,  that  held  immediately  of 
him  by  military  fervice,  as  long  as  that  fpccies  of  tenure  fubfifted  j 
and  whom,  from  their  privilege  of  fitting  in  parliament  in  their  ov/n  rights, 
are  frequently  called  Lords  of  Parliament,  and  in  common  fpeech  are  called 
Peers,  though  that  word  properly  fignifies  any  co-vaffah  to  the  fame  lord. 
Thus  every  immediate  vaflal  of  a  baron  are  peers  of  that  barony,  and  the 
accurate  defcription  of  the  great  perfonages  I  am  fpeaking  of  is  Pares  Regnt. 
Of  thefe  there  were,  antiently,  two  ranks  only,  in  England,  Earls  and 
Barons.  Indeed,  abroad  alfo,  to  fpeak  properly,  there  were  but  two  like- 
\vifc  :  for  there  was  no  difference  in  power  and  privilege  between  the  dtikx 
and  counts,  or  carls.  But  as  every  earl  is  a  baron,  and  fomething  more,  and 
as  it  is  a  maxim  of  our  law,  that  every  lord  of  parliament  fits  there  by  vir- 
tue of  his  barony,  it  will,  in  the  firft  place,  be  necelTary  to  fee  what  a 
baron  is. 

THE  word  baron  of  itfelf  originally,  did  not,  more  than  peer,  fignify  an 
immediate  vaflal  of  the  king ;  for  earls  palatine  had  their  barons,  that  is, 
their  immediate  tenants ;  and,  in  old  records,  the  citizens  of  London  are 
fliled  barons,  and  fo  are  the  reprefentatives  of  the  cinque  ports  called  to 
this  day.  Baron,  therefore,  at  firfl  fignified  only  the  immediate  tenant  of 
that  fupperior  whofe  baron  he  is  faid  to  be,  but  by  length  of  time  it  became 
refrained  to  thofe  who,  properly  and  exadly  fpeaking,  were  baroncs  regis 
c-r  regni,  and  even  not  to  all  of  thefe,  but  to  fuch  only  as  had  manors  and 
courts  therein.  For  though,  by  the  principles  of  the  feudal  conflitutions, 
every  immediate  military  tenant  of  the  crown,  however  fmall  his  holding, 
>vas  obliged  to  ailift  the  king  with  his  advice,  and  entitled  likewife  to  give 
or  refuie  his  aflent  to  any  new  law  or  fubfidy,  that  is,  to  attend  in  parlia- 

A  a  2          '  inent. 


i88  LECTURES    ON     THE  LECT.  20. 

ment.  This  attendance  was  too  heavy  and  burthenfome  upon  fuch  as  had 
only  one  or  two  knights  fees,  and  could  not  be  complied  with  without  their 
ruin.  Hence  arofe  the  omiflion  of  iffuing  writs  to  fuch,  and  which,  being 
for  their  eafe,  they  acquiefsed  in,  attendance  in  parliament  being  confidered 
at  that  time  as  a  burthen.  Thus  they  loft  that  right  they  were  entitled  to 
by  the  nature  of  their  tenure,  until  the  method  was  found  out  of  admitting  , 
them  by  reprefehtation.  Hence  arofe  the  diftinQion  between  tenants  by 
barony  ,  and  tenants  by  knight  fcrvice  In  capite  of  the  king.  The  former 
were  fuch  military  tenants  of  the  king,  as  had  ellates  fo  confiderable  as  qua- 
lified them,  without  inconvenience,  to  attend  in  parliament,  and  who  were 
therefore  entitled  to  be  fummoned.  The  quantum  of  this  eftate  was  regu- 
larly thirteen  knights  fees  and  one  third,  as  that  of  a  count  or  earl  was- 
twenty  ;.  that  is,  as  a  knight's  fee  was  then  reckoned  at  twenty  pounds  per 
annum,  the  baron's  revenue  was  four  hundred  mcrks,  or  two  hundred  fixty- 
fix  pounds  thirteen  milling  and  four-pence,  and  the  earl's  four  hundred 
pounds,  anfvvering  in  value  of  money  at  prefent  to  about  two  thoufand  fix 
hundred,  and  four  thoufand  pounds  yearly  f* 

SUCH  was  the  nature  of  all  the  baronies  of  England  for  about  two  hun- 
dred years  after  the  conqueft  ;  and  they  are  called  baronies  by  tenure  ',  be- 
caufe  the  dignity  and  privileges  were  annexed  to  the  lands  they  held  ;  and 
if  thefe  were  alienated  with  the  confent  of  the  king  (for  without  that  they 
could  not)  the  barony  went  over  to  the  alienee.  The  manner  of  creating 
thefe  barons  was  by  invefliture,  that  is,  by  arraying  them  with  a  robe  of  ftate,. 
and  a  cap  of  honour,  and  girding  on  a  fvvord,  as  the  fymbols  of  their  dig- 
nity. Of  thefe  Matthew  Paris  tells  us  there  were  two  hundred  and  fifty  in 
the  time  of  Henry  the  Third,  and  while  they  flood  purely  on  this  footing,  it 
was  not  in  the  king's  power  to  encreafe  the  number  of  the  baronies,  though 
of  barons  perhaps  he  might.  For  as  William  the  Conqueror  was  obliged  to 
gratify  feveral  of  his  great  officers  according  to  the  number  of  men  they 
brought,  with  two  or  more  baronies.,,  whenever  thefe  fell  into  the  hands  of 
the  crown  by  efcheat,  either  for  want  of  heirs,  or  by  forfeiture,  it  was  in, 
the  king's  power,  and  was  his  intereft,  to  divide  them  into  feparatc  hands. 
The  fame  thing  likewife  happened,  when,  by  an  intermarriage  with  an 


f  Madox,  Antiq.  of  the  Exchequer,  vo1.  1.  p.  197,  198.     Baronia  Anglica,  book 
chap.  i.     Spelman,  voc.  Baro. 


LECT.  20.         LAWS     OF     ENGLAND.  189 

hcirefs,  more  baronies  than  one  came  into  the  hands  of  a  nobleman,  and 
efchcated  to  the  cruv/n  j. 

BUT  the  number  of  thefe  feudal  baronies  could  not,  ftricUy  or  properly 
fpcaking,  be  encreafed  by  the  king  ;  for  they  could  be  created  only  out  r,f 
lands,  and  there  were  no  lands  vacant  to  create  new  ones  out  of,  for  the 
king's  dcmrfnes  were,  in  thofc  days,  unalienable.  However,  we  fmd,  at 
the  end  of  Henry  the  Third's  reign,  and  even  in  John's,  that  the  number  of 
baronies  were  actually  encreafed,  and  a  diftincYion  made  between  the  baroncs 
fthijorcs,  and  minores.  The  majores  were  thofe  who  flood  upon  the  old 
footing  of  William,  and  had  lands  fufficient  in  law,  namely,  the  number  of 
knights  fees  requifite.  The  minorcs  were  fuch  as  held  by  part  of  a  barony  ; 
as  when  an  old  barony  defcended  to,  and  was  divided  among  fillers ;  in 
which  cafe,  when  the  huiband  of  the  After  whom  the  king  pleafed  to  name, 
was  the  baron  of  parliament ;  or  elfe  were  newly  carved  out  of  the  old  baro- 
nies that  had  fallen  in  by  efcheat ;  as  fuppofmg  the  king  had  granted  fix 
knights  fees  of  an  old  barony  to  one,  to  hold  with  all  the  burthens,  and  to 
do  the  fervice  of  an  entire  barony,  and  the  remaining  feven  and  one  third  to 
another,  on  the  fame  terms.  But  the  attendance  of  thefe  minor  barons  alfo, 
at  length  became  too  burthenfom.  for  their  circumftances,  and  many  of 
them  were  glad  to  be  excufed.  The  kings  took  then  the  power  of  paffing 
by  fuch  as  they  thought  unable,  by  not  fending  them  writs  of  fummons, 
and  John  extended  his  prerogative  even  to  omit  fummoning  fuch  of  the 
majores  as  he  imagined  were  inclined  to  oppofe  him.  .This  however  zt 
length  he  was  obliged  to  give  up  :  For  in  his  Magna  Charta  it  is  faid,  Ad 
habendum  commune  con/ilium  regnl  faciemus  fummoncri  archiepifcopcs,  epifctpos* 
abbat(S)  commites,  cir  majores  barones  re^nlfigillatlm^^er  liter  as  noftras\*. 

THE  barones  majores  were  then-  fully  and  plainly  diflinguifhed  from  the 
tntnoresy  and  1  thing  it  will  not  be  doubted  they  were  fuch  as  had  the  full 
complement  of  knights  fees  that  made  up  an  antient  barony  j  and,  ac- 
cordingly, we  find  in  1255,  when  Henry  the  Third  had  neglected  fummon- 
ing  fome  of  thefe,  the  others  refufed  to  enter  en  any  bufmefs,  JQuia  omna^ 
rune  tcniporis,  nonfuerunt,  juxta  tcnorem  Magna:  Cbarta  futey  vocati,  ct  ideo, 

fine 
f  Brady's  introduction,  in  append.     Baronia  Angliea,  p.  jr. 

$  Sekleu's  titles  ofhoiiovr,  part  i.  chap.  5.     Baronia  Anglica,  book  I.  chap.  2. 


190  L  E  C  T  U  R  E  S     ON     THE  LECT.  20. 

fine  paribus  fuls )  tune  abfentibus^  nullum  voluenmt  tune  refponfum  dare,  <vel  auxi- 
lium  concedere  vet  pre/tare.  No  king  fince,  ever  omitted  to  fummon  all  the 
greater  nobility,  until  Charles  the  Firft  was  prevailed  upon  to  forbid  the 
fending  a  writ  to  the  Earl  of  Briftol  by  Buckingham,  who  was  afraid  of  be- 
ing accufed  by  that  nobleman ;  but  on  the  application  of  the  houfe  of  lords, 
and  their  adjourning  themfelves  from  day  to  day,  and  doing  no  bufmefs, 
the  writ  at  laft  was  iflued. 

IN  the  reign  of  Henry  the  Third  alfo,  the  king's  prerogative  of  fummon- 
ing  or  omitting  the  leffer  barons  was  likewife  afcertained  by  an  aft  of  par- 
liament fmce  loft,  as  we  find  by  thcfe  words  from  hiflory :  Hie  enim  rex 
Cfcilicet  Henricus  TertiusJ  po/i  magnas  perturbationes,  &  enormes  vexationes 
inter  ipfum  rcgem^  Simonem-de  Alorteforti,  cir  alias  bar -ones ,  motas  &  fopitas^fta- 
tuit  &  ordinavit,  quod  otnnes  illi  commites  er  barones  regni  Anglitf,  quibus  ipfe 
rex  dignatus  eft  bre-via  fummonitldnls  dirigere^  •ucnirent  ad  parlamentwn  fiium  ; 
&  non  alii  nift^  forte,  dominus  rex  alia  ilia  br evict  illls  dlngere  voluijfetfy  And 
from  henceforth  no  nobleman  could  fit  in  parliament  without  a  writ.  But 
there  was  this  difference  between  the  greater  and  the  lefler  barons,  that  the 
former  had  a  right  to  their  writ  ex  debito  juftiti u1.,  to  the  latter  it  was  a  mat- 
ter of  favour  ;  but  when  fummoned,  they,  being  really  barons,  had  the  fame 
rights  with  the  reft,  though  fitting,  not  by  any  inherent  title,  but  by  virtue 
of  the  writ.  The  other  lefler  barons,  who*  were  generally  omitted  to  be 
fummoned,  by  degrees  mixed  with  the  other  kings  tenants  in  capite,  and 
were  thenceforth  reprefented  by  the  knights  of  the  mires  J. 

BUT  thefe  baronies  by  tenure  being  long  fmce  worn  out  among  the  laity, 
it  is  proper  to  proceed  to  the  two  ways  now  in  being  of  creating  peers,  by 
ivrit,  and  by  letters  patent.  It  is  the  lord  Coke's  opinion,  and  in  this  he 
has  been  followed  ever  fmce,  that  a  writ  to  any  man,  baron,  or  no  baron, 
to  fit  in  parliament,  if  once  he  hath  taken  his  feat  in  purfuance  thereof, 
gains  a  barony  to  him  and  the  heirs  of  his  body.  And  though  the  law, 
principally  on  the  authority  of  that  great  lawyer,  is  now  fo  fettled,  certainly 
it  is  comparatively  but  a  novel  opinion,  and  very  ill  to  be  fupported  by  rea- 

fon. 

•\-  Camden,  Britan.  p.  122. 

|  Selden,  tit.  Honour,  part  2.  chap.  5.  §  2I» 


LF.CT.  20.          LAWS     OF     E  N  G  L  A  N  D.         191 


foil.  The  words  of  the  writ  arc,  ll:x  tali  falulem,  qula  de  advifamento  <& 
fllfinfit  ftncilii  nojiri,  pro  quibufdam  arduu  6'  urgcntibits  negotlh  Jlatitm  6*  dc- 
fcnfionem  rcgni  no/irl  Anglic  contingcntibus,  qiwddam  parl  amentum  mjirum  apud 
•mwajl.  tali  die,  tails  menfis,  proxhrfj  futuro  te  fieri  ordinavimiu,  <dr  ibidem 
ii)bifcum,  nc  cum  prchitls  magnatibus  &  proccribus  dim  regni  noflri,  colloquium 
babcrc  6'  tniflatum  ;  vobis  in  fide  c5r  ligcantia  qitibus  nobis  tencmir.i,  firmitcr 
injungcndo  mandamus,  quod  ccnfidcratis  diclvrum  ncgotiontm  aucloritate  <6*  perl- 
culis  imminentibiis,  ccjfanic  excufationc  qudcunque,  diftis  die  dr  loco  perfonalitcr 
inter  fitis  nobifcuni,  ac  cum  prelatis  rnagnatibus  &  proccribus  fttper  diclis  negotiis 
traftaturi,  veftrumquc  confilhim  impcnfuri,  6"  hoc  ficut  nos,  &  honorcm  nojlntm, 
GC  cxpcditionem  negotiorum  prczdittorwn  diligilis>  nullatenus  omittatis  f  , 

THAT  this  writ  mud  be  obeyed,  there  is  no  doubt,  for  every  fubjeft  is,  by 
his  allegiance,  obliged  to  aflift  the  king  with  faithful  counfel  :  But  what 
right  the  party  fummoncd  acquired  thereby  is  the  queftion.  The  words  are 
not  only  perfonal  to  him,  but  reflricled  likewife  to  a  particular  place  and 
time  ;  and  accordingly,  in  antient  times,  we  find  many  perfons  fummoncd 
to  one  parliament,  omitted  in  the  next,  and  fummoned  perhaps  to  the  third. 
There  is  not  a  word  therein  that  hints  at  giving  the  lead  right  to  an  heir  ; 
and  what  reafon  can  be  afligncd  why  a  man,  by  this  writ,  mould  gain  an  eftate 
of  inheritance  in  a  peerage,  when,  in  letters  patents,  it  is  admitted  that  he 
gains  only  an  eftate  for  life,  without  the  word  heirs.  That  antiently  there 
was  no  fuch  notion  appears  from  the  fummons  to  parliament,  where  fre- 
quently we  find  the  grandfather  fummoned,  the  father  palfed  by,  and  the 
grandfon  afterwards  fummoned  :  Nay,  in  the  rolls  there  are  inftances  of 
ninety-eight  perfons  being  fummoned  a  fingle  time  only,  and  neither  them- 
fejves,  .nor  any  of  their  poflerity,  ever  taken  notice  of  afterwards.  Or,  if 
we  were  to  allow  that  this?writ  created  an  inheritance,  what  reafon  can  be 
given  why  it  mould  be  an  eftate  tail  only,  and  be  confined  to  the  heirs  of 
the  body,  and  not,  as  all  other  new  inheritances,  created  generally,  go  to 
the  collateral  heirs  ? 

BUT,  in  order  to  difcover  plainly  what  privileges  perfons  fo  called  by 
writ,  had,  or  could  obtain  in  thofe  times,  it  will  be  proper  to  diftinguifh 
them  into  three  kinds  of  perfons.  Firft,  then,  they  were  either  fome  of  the 

miwret 
,|  Baronia  Anglica,  books,  chap.  i.    Selclen's  tit.  Hon.  part  2.  chap.  5.  §  22. 


192  LECTURES     ON     THE  LECT.  20. 

wincrcs  baronet  by  tenure ;  and  thefe,  when  called,  had  certainly  all  the  pri- 
vileges of  the  greater  ;  or  elie  they  were  not  barons  at  all,  but  plain  knights 
or  gentlemen  ;  and,  with  refpect  to  thefe,  it  is  plain  they  had  a  right  to 
deliberate,  debate,  and  advife.  But  the  better  opinion  is,  they  had  no  right 
to  vote,  but  were  afiiftants  and  advifers  only,  as  the  judges  are  at  prefent ; 
for  it  is  abfurd  to  fuppofe  that,  in  thofe  times,  when  the  commons  were 
low,  and  inconfiderable,  and  the  barons  were  more  powerful  than  the  crown, 
thefe  latter  fliould  fuffer  their  refolutions  to  be  over-ruled  at  the  pleafure  of 
the  king,  by  his  calling  in  fuch  numbers  as  we  find  he  often  did,  which 
nmft  have  been  the  cafe,  if  all  he  fummoned  had  votes.  But  thefe  two 
kinds  of  perfons  gained  by  their  writ,  or  fitting  in  confequence  of  it,  origi- 
nally, no  farther  right  than  to  be  prefent  at  that  time.  However,  by  many 
of  thefe  perfons  and  their  heirs  having  been  conftantly  fummoned,  efpecially 
fince  Henry  the  Seventh's  reign,  and  the  ancient  practice  of  omitting  any 
who  had  been  very  frequently  fo,  going  into  difufe,  the  difti&ion  between 
the  greater  and  the  leffer  barons  was  forgot,  and  that  opinion  prevailed 
which  my  lord  Coke  had  adopted,  and  which  is  now  the  law,  that  a  man, 
having  once  fat  in  parliament  in  purfuance  of  the  king's  writ,  acquires  there- 
by an  eflate  tail  to  him  and  the  heirs  of  his  body  f . 

THERE  were  yet  another  kind  of  perfons,  not  peers,  that  might  be  fum- 
moned  by  writ.  Thefe  were  the  eldeft  fons  of  peers,  to  whom  the  father's 
barony  mud  defcend  ;  and  in  fuch  cafe,  if  the  heir  was  called  by  the  name 
of  a  barony  that  was  in  his  father,  he  was  a  baron  to  all  intents  and  purpofes. 
But  it  feems  very  plain,  that  this  was  not  a  new  creation  of  a  barony  ;  for  in 
that  cafe  the  fon  fo  called  fhould  have  been  the  loweft  peer,  whereas  the  prac- 
tice is  the  contrary.  The  eldeft  fon  of  the  duke  of  Norfolk,  called  by  the 
title  of  lord  Mowbray,  fat  firft  baron,  becaufe  that  barony  of  his  father's  is 
the  antienteft  in  England.  It  feems,  therefore,  that  this  was  confidered  as  a 
transfer  of  the  antient  barony  by  the  joint  confent  of  the  father  and  king,  and 
the  father  dill  continues  to  fit  by  the  remaining  peerage  in  him.  According- 
ly we  find  no  inftance  of  a  baron's  fon  fitting  on  fuch  a  fummons,  unlefs  the 
father  had  another  barony  by  which  he  might  fit.  If  the  father  indeed  had  a 
higher  title,  that  has  been  reckoned  fufficient  to  fupport  his  feat,  though  his 
only  barony  was  transferred  to  the  fon.  This  then  being  no  new  creation, 

but 
f  Coke  on  Littleton,  lib.  2.  chap.  8.  §  159.     Earonia  Anglica;  p.  164.  et  feq. 


T.  20.        L  A  W  S     OF     E  N  G  L 

but  a  temporary  transfer  only  of  an  old  pc<  :  flioulJ  let-in,  t 

title,  \vhen  once  merged  in  the  greater  by  the  i  ,!cath,  fliould  go  ac- 

cording to  the  old  limitation  ;    but  of  late  we  find  them  conful  new 

creations.     On  the  death  of  the-  late  e;u 

fixth  coufin,  fucceeded,  and  fits  in  parliament  as  baron  Strange  nry 

the  Seventh's  creation  ;  but  an  elder  fon  of  a  former  earl  of  Derby,  having 
been  called  by  writ  while  his  father  was  living,  the  Duke  of  Athol,  a-. 
heir  by  the  female  line,  fits  by   the  fame  title  of  baron  Strange  of  king 
Charles  the  Firfl's  creation. 

Tin:  defcent  of  thefe  two  kinds  of  baronies  are  directed  by  the  rules  of 
the  defcent  of  other  inheritances  at  common  law,  and  confequently  females 
are  capable  of  fucceflion,  but  with  two  exceptions  ;  firfl,  that  half  blood  is 
no  impediment,  and  confequently  the  half  brother  excludes  the  fifter  ;  fe- 
condly,  that  the  honour  is  not  divifible,  and  therefore,  if  there  be  two  or 
more  fillers,  heirefles,  the  title  is  in  abeyance,  that  is,  is  fufpended,  until 
the  king  makes  choice  of  one  of  them  and  her  heirs  ;  though  by  conflant 
ufage  the  law  feems  to  be  verging  fail  to  a  conftant  defcent  to  the  eldeflf. 

THE  third  method  of  creating  peers  is  by  letters  patent ';  which  is  the  mofl 
ufual,  and  efleemed  the  mofl  advantageous  way ;  becaufe  a  peerage  is 
thereby  created,  though  the  new  nobleman  hath  never  taken  his  feat,  which 
is  not  the  cafe  of  a  barony  by  writ.  As  to  the  manner  of  thefe  creations, 
there  has  a  notable  difference  intervened  fmce  the  acceflion  of  Henry  the 
Seventh  from  what  was  the  practice  before  Richard  the  Second.  In  his 
eleventh  year  began  this  method  of  creating  by  patent,  in  favour  of  John 
de  Beauchamp,  who,  though  fummoned,  never  fat  there,  but  was  attainted 
by  the  next  parliament,  and  afterwards  executed.  But,  the  attainder  out 
of  the  cafe,  his  patent  in  law  could  never  have  been  deemed  valid,  becaufe 
Michael  de  la  Pole  was  the  lord  chancellor  who  affixed  the  feal  to  it,  which 
had  been  before  taken  from  him  by  ad  of  parliament,  and  he  declared  in- 
capable of  ever  having  it  again.  This,  then,  was  a  fmgle  and  ineffectual 
attempt  of  that  weak  prince  to  create  a  new  peer  without  the  aflent  of  par- 
liament, which  was  the  ufual  way,  above  thirty  having  been  made  fo  in 
that  very  reign.  His  fuccefibrs  were  too  wife  to  follow  this  example ;  for 

B  b  every 

f  Coke  on  Littleton,  p.  166.    St.  Amand  on  the  legiflative  power  of  England,  p.  19:. 


194  LECTURES     ON     THE  LECT.  20, 

every  barony  newly  created,  till  the  union  of  the  rofes,  which  were  about 
fourteen,  were,  every  one  of  them,  as,  appears  on  the  face  of  the  patents, 
by  authority  of  parliament,  if  we  except  two  or  three  ;  and  even  thefe,  on 
a  clofe  examination,  will  appear  not  to  be  new  baronies,  but  regrants  of  old 
feudal  baronies  by  tenure,  which,  undoubtedly,  were  all  in  the  fole  difpo- 
fition  of  the  king  f. 

BUT  Henry  the  Seventh,  having  trodden  down  all  oppofition,  was  fortu- 
nate enough  to  carry  the  point  Richard  had  vainly  attempted,  and  acquired 
for  his  fucceflbrs  that  prerogative  which  they  have  fmce  enjoyed,  of  creating 
peers  at  pleafure.  The  defcent  of  thcfe  titles,  created  by  patent,  is  directed 
by  the  words  of  the  creation.  If  heirs  are  not  mentioned,  it  is  only  an 
eftate  for  life  ;  if  to  a  man  and  heirs  of  his  body,  females  are  not  excluded, 
but  the  general  way  is,  to  the  heirs  male  of  the  body  of  the  grantee,  per- 
haps, with  remainders  over,  and  they  defcend  as  other  eftates  entailed. 
The  cafe  of  the  dutchy  of  Somerfet  was  fingular.  Edward  Seymour  having 
fons  by  two  venters,  was  created  duke  of  Somerfet,  and  his  heirs  male  of 
his  fecond  marriage,  remainder  to  his  heirs  male  by  his  lirft.  This  title 
continued  near  two  hundred  years  in  the  younger  branch,  until,  upon  its 
failure  in  the  late  duke  of  Somerfet,  Sir  Edward  Seymour,  the  prefent 
duke,  the  heir  by  the  prior  marriage,  fucceeded  by  virtue  of  the  remainder. 

IN  the  cafe  of  lord  Purbeck,  in  Charles  the  Second's  reign,  it  was  con- 
troverted whether  a  title  could  be  extinguifhed,  for  as  lord  Purbeck  had 
furrendered  his  honour  by  fine  to  the  king,  and  there  it  was  determined, 
and  fo  the  law  now  (lands,  contrary  to  many  precedents  that  were  produced, 
that  the  title  is  inherent  in  the  blood,  and  while  that  remains  uncorrupted, 
can  by  no  means  be  extinguifhed  by  furrender  or  othefwife,  and  this,  gene- 
rally, whether  the  peerage  be  created  by  patent  or  by  writ ;  for  Purbeck's 
was  by  writ.  In  cafe  of  a  patent  where  the  dignity  is  exprefsly  entailed,  it 
is  furely  as  reafonable  that  it  mould  be  impofiible  for  the  poflefTor  to  deflroy 
the  entail,  as  in  an  eftate  tail  of  land,  created  by  the  king,  and  yet  in  old 
times  there  had  been  many  inftances  to  the  contrary.  I  mall  mention  but 
two  that  happened  in  this  kingdom. 

SIR. 
|  Selden,  tit.  Hon.  part  2.  chap.  $.  §27.  and  28. 


LECT.  20.  L  A  WS    OF    E  N  G  L  A  N  D.  195 

SIR  Thomas  Butler  was  created  baron  Cahir  by  Henry  the  Eighth  to  his 
heirs  general.  His  heirs  male  failed  in  his  fon  Edmund,  the  fccond  baron, 
and  his  m*phc\v,  Sir  Theobald,  was,  1111683,  by  queen  Elizabeth  created 
baron  Cahir  ;  but  it  being  found  that  Sir  Thomas  left  daughters,  to  one  of 
whom  the  title  ought  to  have  been  afligned  by  the  queen,  one  of  them,  and 
the  heir  of  the  other,  who  was  dead  in  1685,  bargained,  fold,  and  releafed 
to  Sir  Theobald  and  his  afiigns,  their  right  and  title  to  the  faid  honour.  The 
other  was  the  cafe  of  the  honour  of  Kingfale.  Charles  the  Firfl,  appre- 
hending the  barony  of  Kingfale  to  be  extingmmed  by  attainder,  created 
Sir  Dominick  Sarsfield  vifcount  Kingfale,  but,  upon  lord  Kingfale's  peti- 
tion, and  proof  made  by  him  that  his  barony  ftill  fubfifted,  it  was  ordered 
that  Sarsfield  mould  furrender  his  vifcounty  of  Kingfale,  and  be  created  vif- 
count of  Kilmallock,  with  his  former  precedence,  which  was  accordingly 
done. 

THESE  two  inftances  were,  indeed,  of  a  particular  nature,  and  calculated 
to  reftify  grants  that  had  arifen  from  error  ;  but  in  England  there  were,  in 
ancient  times,  many  inftances  of  fuch  furrenders  without  error.  They  were, 
indeed,  generally  made  in  order  to  obtain  higher  titles ;  and  therefore  it  is 
no  wonder  they  paScdJubJtbntio,  and  were  never  difputed.  But  as  to  the 
old  baronies  by  tenure  that  were  annexed  to  land,  nothing  is  clearer  than 
that,  by  the  king's  confent,  they  might  be  aliened  or  furrendered,  notable 
inftances  of  which  happened  in  the  reign  of  Henry  the  Third.  Andrew 
Giffard,  baron  of  Pomfret,  furrendered  to  the  king  j  and  Simon  de  Mont- 
fort,  a  nobleman  of  large  pofieflions  in  France,  had  two  fons  by  the  heirefs 
of  the  earldom  of  Leicefter,  in  whofe  right  he  was  earl  of  Leicefter,  and, 
having  a  mind  to  fettle  his  fecond  fon  in  England,  afligned  the  earldom  over 
to  him,  as  Selden  fays  ;  or,  which  comes  to  the  fame  thing  (for  the  eldeft 
fon  was  equally  defeated)  furrendered  it  to  the  king,  who  granted  it  to  the 
fecond,  according  to  Camden. 

ALL  noblemen  are  equally  fo,  and,  therefore,  each  others  peers ;  but 
they  differ  in  rank  and  precedence.  The  ranks  are  five  ;  dukes,  marquiffcs, 
earls  vtfcounts,  barons.  The  firft  duke  was  created  by  Edward  the  Third  ; 
the  firft  marquifs,  by  Richard  II. ;  the  firft  vifcount,  by  Henry  the  Sixth. 

B  b  2  Though 


196  L  E  C  T  U  R  E  S     ON     THE  LECT.  20. 

Though  their  dignities  are  now  perfonal,  and  annexed  to  the  blood,  yet  as 
they  were  originally  annexed  to  land,  fo  much  of  the  old  form  remains,  that, 
in  their  creation,  they  muft  be  named  from  fome  place  in  fome  county  ; 
though  I  do  not  apprehend  it  to  be  material  at  this  day,  whether  there  really 
be  fuch  a  place  or  not.  With  refpeft  to  the  raifmg  a  lord  from  a  lower  de- 
gree of  dignity  to  a  higher,  I  mould  obferve,  that  long  before  Henry  the 
Seventh's  time,  the  king  had  the  right  folely  in  himfelf,  though  it  was  fre- 
quently done  in  parliament ;  for  this  was  not  adding  to  the  number  of  the 
peers,  but  an  exertion  of  the  ancient  prerogative  of  his  fettling  precedence 
according  to  his  pleafure.  This  continued  in  England  till  Henry  the  Eighth, 
by  ac~t  of  parliament,  fettled  it  according  to  antiency,  and  it  dill  continues 
in  Ireland,  though  it  has  not  been  exerted  fmce  Henry  the  Seventh's  time, 
when  lord  Kingfale,  a  Yorkift,  was  obliged  to  change  places  with  lord 
Athenry,  a  Lancaflrian,  and  from  firft  became  the  fecond  baron,  which 
hath  continued  his  rank,  till  lately,  that  Athenry  was  created  an  earl  f . 

f  Camden's  Introd.  to  his  Britan.  p.  234.  et  feq.  Baronia  Anglica.     Selden,  tit.  hon. 
part  2.  chap.  5.  §  29.  30.  31. 


LECTURE 


Lrcr.  2i.  LAWS    or    EN  GL  AN  D.  197 


LECTURE       XXI. 

Earls  or  Counts  as  di/linguifoed  from  Barons — The  office  of  Counts — Tfjelr  con- 
dition after  the  conqucft — Counties  Palatine  in  England — Counties  Palatine  in 
Ireland — Spiritual  Peers — The  trials  of  Noblemen. 

IN  my  laft  lecture  I  treated  of  baronies,  which  are  the  lowefl  rank  of 
peerage,  and  of  the  right  whereby  this  clafs  of  nobles  fits  in  the  great 
council  of  the  nation,  and  alfo  of  the  various  methods  that  have  prevailed 
in  different  ages  of  creating  them  ;  but  before  I  have  done  with  the  higher 
nobility,  it  will  be  neceffary  to  fay  fomething  of  earls  or  counts  as  diftin- 
guifhed  from  barons ;  for  they  differ  from  them,  not  only  in  having  a 
greater  number  of  knights  fees,  and  confequently  having  a  greater  revenue, 
but  in  poffeffing  alfo  a  more  extenfive  jurifdicYton.  The  inflitution  of 
counts,  I  obferved  in  a  former  lecture,  wherein  I  treated  of  the  progrefs  of 
the  feudal  law,  was  not,  originally,  a  part  of  the  feudal  policy.  They 
were,  indeed,  always  chofen  out  of  the  king's  companions,  who  refided  in 
his  houfe,.  and  were  therefore  called  comites,  but  they  were  not  fet  to  pre- 
fide  over  Germans,  who  were  the  conquerors,  but  over  fuch  of  the  old  in- 
habitants, Romans  or  Gauls,  who  by  a  voluntary  fubmiffion  had  retained 
their  freedom,  and  who  in  every  refpect,  except  bearing  a  (hare  in  the  legif- 
lature  or  government,  were  on  an  equal  footing  with  the  conquerors  f . 

THE  office  of  thefe  counts  was  threefold,  to  judge  thefe  freemen  in  peace, 
to  conduct  them  in  war,  to  manage  the  king's  demefnes  in  their  refpective 
diftricts,  and  to  account  with  him  for  them  and  the  profits  of  his  courts  of 
juftice  ;  which  were  very  confiderable  when  all  offences  were  punifhed  by 
fines.  At  the  beginning  they  were  temporary  officers,  but  they  foon  became 
fixed  for  life,  and  at  length,  towards  the  latter  end  of  the  fecond,  and  in 
the  beginning  of  the  third  race  in  France,  they  got,  through  the  weaknefs 
of  the  crown,  eflates  in  fee  in  their  counties ;  and  either  by  grants  of  the 

kings 
f  SeWen,  tit.  hon.  part  2.  ch.  r. 


198  LECTURES     ON     THE          LECT.  21. 

kings,  or  by  ufurpation,  converted  the  profits  they  before  accounted  for  to 
the  crown,  for  their  own  ufe,  and  held  their  courts  in  their  own  name.  In 
fhort,  they  became  petty  fovereigns,  paying  only  homage,  and  the  ufual 
fervices  of  ward,  marriage,  and  relief  to  their  fupreme  lord ;  and  as  fuch 
they  coined  money,  levied  war  againft  their  neighbours,  nay  frequently 
againft  the  king  himfelf ;  until  Lewis  the  Eleventh  found  the  means  of 
humbling  them,  and  brought  the  crown  out  of  tutelage,  as  the  French 
exprefs  it  f . 

THE  prefent  ftate  of  Germany  is  an  exact  reprefentation  of  what  the 
French  and  the  other  continental  monarchies  were  in  thofe  days,  except  that 
the  kings  had  large  countries,  and  multitudes  of  vaifals  immediately  fubject 
to  them ;  whereas  the  emperor  hath  now  none.  But  in  England  thefe  lords, 
tho'  very  powerful,  never  afcended  to  fuch  a  pinnacle  of  grandeur.  Their 
firft  conftitution  here  we  muft  refer  to  the  time  of  the  divifion  of  England 
into  counties,  to  which  they  had  a  reference,  which  is  generally  afcribed  to 
Alfred.  Their  power  and  office  was  exactly  the  fame  with  the  counts  on 
the  continent  in  thofe  early  times,  namely,  to  judge  and  lead  the  freemen  to 
•war.  For  the  greateft  part  of  the  lands  of  England  were  at  that  time  allo- 
dial, as  is  proved  by  Spelman,  contrary  to  the  opinion  of  Sir  Edward  Coke; 
although,  with  him,  it  muft  be  allowed,  that  there  were  fiefs  alfo  before 
the  Conqueft,  and  that  they  were  not  all  introduced  at  that  period.  Till 
that  time  their  office  was  only  for  life,  and  they  were  known  by  various 
names,  as  duces^  comites,  and  confides  in  Latin,  ealdcrmen  in  Saxon,  and  earls 
in  the  Danifh  tongue  J. 

BUT  William,  having  turned  all  the  lands  into  feudal,  was  obliged  to 
put  his  earls  on  the  fame  footing,  that  thofe  on  the  continent  were  in  his 
time,  and  confequently  to  make  them  hereditary.  However  he  and  his 
fucceflbrs  were  careful  not  to  give  them  fuch  extenfive  powers  and  revenues 
as  they  had  abroad.  The  county  courts  were  held  in  the  king's  name,  nei- 
ther were  the  earls  allowed  the  whole  profits  of  them,  two-thirds  of  them 
being  referved  to  the  king  ;  and  in  appearance  to  eafe  them,  who  were  of- 
ten obliged  to  attend  in  council  or  in  war,  but  in  reality  to  prevent  the 

king's 

f  Du  Bos,  hut.  critique  de  L'etabliffinents  de  la  monarchic  Franjoife,  torn.  3.  497,  &c. 
Mafcou's  hift.  of  the  antient  Germans,  b.  16.  §  36. 
$.  Spelman's  treatife  of  Feuds  and  Tenures. 


LECT.  21.         LAWS     OF     ENGLAND.  199 

king's  bc-ing  di-fraudt-d,  and  to  prevent  the  too  great  influence  which  their 
judging  in  perfon  might  acquire  to  them  in  their  diftri&s,  officers  chofen  by 
the  people,  and  approved  by  the  king,  were  fubflitutcd  to  adminifter  juf- 
tice  under  the  names  of  vice  comites,  or  meriffs  ;  thcfe  were  to  pay  to  the 
king  the  two-thirds,  and  to  the  earl  his  third  of  the  profits,  which  was  in 
thofe  times  looked  upon  as  fo  incident  to  an  earldom,  as  to  pafs  with  it, 
although  exprcfs  words  were  wanting ;  fo  that  in  thofe  times  an  earl  and  a 
county  were  correlatives  f . 

EACH  earl  took  his  title  from  fome  one  county,  and  the  number  of  the 
one  could  not  exceed  that  of  the  other.  King  John,  however,  altered  their 
nature  in  fome  meafure,  and  his  example  has  been  followed  in  depriving 
the  earl  of  the  thirds  of  the  county  profits  ;  for  he  created  Henry  de  Bo- 
hun  earl  of  Hereford,  and  granted  to  him  twenty  pounds  yearly,  to  be  re- 
ceived out  of  the  third  penny  of  the  county  in  lieu  thereof.  But  it  is  plain 
that  the  juftice  and  fuccefs  of  this  invention  was  doubted  of  at  firft,  for  John 
took  a  collateral  fecurity  from  the  earl,  that  he  mould  never  in  his  earldom 
claim  any  more  than  the  twenty  pounds  exprefsly  granted  him.  Thefc 
Aims,  fo  granted,  are  called  creation  money,  and  were  formerly  exprefsly 
granted  out  of  the  third  penny  of  the  county  ;  but  of  late  have  been  made 
payable  at  the  Exchequer.  Such  was  the  nature  of  the  ancient  earldoms 
that  were  by  tenure,  and  had  reference  to  counties.  The  modern  ones, 
that  are  merely  honorary,  and  go  with  the  blood,  were  firft  made  in  parlia- 
ment. Afterwards  the  king  was  allowed,  by  his  fole  authority,  to  advance 
a  baron  to  a  higher  rank  j  for  that  was  not  adding  to  the  number  of  the 
peers ;  but  the  creation  of  a  bare  gentleman  a  peer  at  once  hath  only  been 
pradifed  fmce  the  accefiion  of  Henry  the  Seventh  J. 

BEFORE  I  quit  this  head  of  earldoms,  it  will  be  proper  to  fay  fomewhat 
about  counties  palatine  which  had  extraordinary  privileges,  like  unto  the 
counties  and  duchies  abroad.  The  firft  was  that  of  Chefter,  erefted  by  the 
Conqueror,  in  favour  of  his  nephew  Hugh  Lupus,  in  thefe  words  :  Tot  urn- 
giie  hunc  comitatum  tenendum  fibi  &  karedibuf,  ita  libere  ad  gladium^ftcut  ipfe 
rex  tenet  Angliam  ad  coronam.  The  effect  of  this  creation  was  to  haveywr^ 

regalia ; 

•j-  Selden,  tit.  hon.  part  2.  ch.  5". 

|  Selden,  tit.  hon.  part  2.  ch.  j.  §  10. 


200  L  E  C  T  U  R  E  S     ON     THE  LECT.  21. 

regalia ;  for  the  earl  palatine  might  pardon  treafon,  murder,  and  other  of- 
fences, might  make  juftices  of  affize,  gaol  delivery,  and  of  the  peace  ; 
might  create  barons  of  his  county  palatine,  and  confer  knighthood.  They 
had  likewife  all  forfeitures,  that  arofe  by  the  common  law,  or  by  any  prior 
ftatute  ;  but  forfeitures  arifing  from  ftatute,  made  after  the  erection  of  the 
county  palatine,  belonged  to  the  king.  They  had  courts  as  the  king  had 
at  Weftminfter,  and  out  of  their  chancery  ifiued  all  writs,  original  and  ju- 
dicial. Neither  did  the  king's  writs  run  within  the  county  palatine,  except 
writs  of  error,  which  were  in  the  nature  of  appeals,  or  in  cafes  where,  other- 
\vife,  there  would  be  a  failure  of  juflice.  All  manner  of  indictments  and 
procefles  were  made  in  the  name,  and  every  trefpafs  was  laid  to  be  done 
againft  the  peace  of  him  that  had  the  county  palatine.  But  thefe  and  fome 
other  privileges  have  been  taken  away,  and  annexed  to  the  crown,  in  whofe 
name  they  muft  now  be  ;  but  the  tefte  of  the  writs  is  flill  in  the  name  of  the 
earl  palatine  f. 

OF  thefe  counties  palatine  there  are  now  in  England  four,  Lancafter  uni- 
ted to  the  crown,  Chefter  to  the  principality  of  Wales  ;  Durham  and  Ely, 
each  belonging  to  the  bifhop  of  the  place  ;  but  the  privileges  of  thefe  two 
are  going  faft  into  difufe.  But  in  this  kingdom,  (Ireland)  for  the  encourage- 
ment of  adventurers,  the  whole  country,  as  fad  as  it  could  be  reduced,  was 
erected  into  palatinates,  and  very  little,  except  the  cities,  retained  in  the 
king's  hand.  The  making  fo  many  great  lords,  who  had  frequent  quarrels 
with  each  other,  and  that  at  fuch  a  diflance  from  the  feat  of  government, 
was  one  great  occafion  of  the  flownefs  of  the  fettlement  of  the  kingdom. 
For,  to  ftrengthen  themfelves,  fuch  of  them  as  refided  here  attached  the  na- 
tives to  them,  and  taught  them  the  ufe  of  arms,  and  others  that  dwelt  in 
England  entirely  neglected  to  fend  hither  any  defence,  fo  that,  by  the  end 
of  Edward  the  Third's  time,  the  Irifh  had  irepoflefled  themfelves  of  almoft 
the  whole  kingdom,  if  we  except  five  or  fix  counties ;  whereas  in  John's 
reign  they  held  not  above  half,  and  that  under  homage  and  tribute,  either 
to  the  king,  or  the  lords,  who  had  grants  from  him. 

I 

f  Barohia  Anglica,  p.  150,  et  feq.    Selden,  tit.  hon.  part  2.  chap  5.  §  8.     Eacon,  hift. 
andpolit.  dilcouri'e  on  the  laus  of  England,  part  I.  ch.  29. 


.  21.  i,  A  U  ^    OF    L  N  (>  L  A  M  ij. 

I  SHALL  give  a  (hort  detail  of  thcfc  palatinates,  and  an  account  of  thr 
manner  of  their  diftinguifhmem.  'J  he  prefent  county  of  Gallway,  unde: 
name  of  the-  county  of  Oannaurdit,  \vas  a  palatinate  in  the  I)e  Burglr- 
was  Ulfter,  firft  in  DC  Courcy,  then  in  De  Lacy  ;  and  thefe  two  were  uni- 
ted by  De  Burgh's  marriage  v/ith  L;u-y's  daughter,  and  afterwards  deiccnd- 
el  to  Lionel  of  Clarence's  daughter,  \vho  married  the  earl  of  March,  and,  in 
the  perfon  of  Edward  the  Fourth,  merged  in  the  crown.  In  the  fame  prince, 
likewife,  merged  that  of  Meath,  which,  being  in  another  branch  of  the  La- 
cy's,  was  divided  into  the  eaftern  and  wcftern  between  two  daughters. 
The  former  came  by  defcent  to  the  houfe  of  March,  and  fo  to  Edward  the 
Fourth.  Strongbow  had  the  grant  of  Leinfler  as  a  Palatinate,  which  at 
length  was  divided  into  five  dillinct  ones  between  his  grand-daughters,  who 
being  married  to  Englifli  noblemen,  took  no  care  for  the  defence  of  the 
country,  their  titles,  eftates,  and  Jura  Regalia  were  taken  from  them  by  act 
of  parliament,  under  Henry  the  Eighth. 

KIJLDARE,  being  in  the  hands  of  the  earl  of  that  name,  "efcaped  for  a  little 
time,  until  he  was  attainted  under  the  fame  king,  where  it  ended ;  for 
though  his  heir  was  reftored  to  the  title  and  eftate  by  queen  Mary,  it  was 
with  an  exprefs  exception  of  the  palatinate.  The  kingdom  of  Cork,  contain- 
ing that  county  and  the  fouth  of  Kerry,  was  another  palatinate,  granted  to 
Fitz  Stephen  and  Cogan,  who  made  partition  between  them  ;  and  on  Fitz 
Stephen's  death  without  ifliie,  his  part  efcheated  to  the  crown.  Cogan's 
(hare  fliould  have  gone  to  the  Courcey's  and  Carens,  but  they  could  never  ob- 
tain the  pofleflion  of  it ;  for  the  earl  of  Defmond  got  the  eftate  by  purchafc 
from  a  Cogan  who  pretended  a  right,  and  held  it ;  fo  this  lhare  of  the  pala- 
tinate fell  likewife  into  difufe.  Defmond,  indeed,  had  interefl  enough  to  get 
a  new  palatinate  created  for  himfelf  in  the  county  of  Kerry,  called  Defmond, 
which  for  repeated  rebellions  \vas  juftly  forefeited  to  queen  Elizabeth. 

EDWARD  the  Third  erected  the  palatinate  of  Tipperary  in  favour  of  the 
earl  of  Onnond,  who  was  grandfon  to  Edward  the  Firft,  which  continued 
in  that  family,  with  fome  interruptions,  until  the  attainder  of  the  late  duke 
in  1715.  Thus  by  degrees  the  crown  regained  the  power  it  had  parted  with, 
and  was  at  length  enabled,  though  with  difficulty,  to  reduce  the  whole  king- 
dom, which  had  been  well  nigh  loft  by  means  of  fuch  profufe  grants. 

Cc  BESIDE? 


202  L  E  C  T  U  R  E  S    ON    THE  LECT.  21. 

BESIDES  the  temporal  peers,  there  are  fpiritual  ones,  that  is  the  bifhops, 
and,  they  have  feats  in  parliament,  which  antiently  many  abbots  alfo  enjoyed. 
The  original  of  this  right  was  from  the  feudal  cuftoms.  The  priefts  of  the 
Germans,  while  they  continued  pagans,  were  neceffary  attendants  in  their 
general  afiemblies,  not  only  for  advice,  but  the  benefit  of  their  prayers  and 
divinations.  When  thefe  nations  embraced  Chriitianity,  they  transferred 
the  fame  veneration  and  honour  to  their  new  inftrudors  and  bifhops  ;  and 
fometiraes  other  churchmen  of  eminence,  though  they  held  lands  not  by 
military  tenure,  but  by  what  is  called  free  alms,  were,  in  every  nation  as  welt 
as  England,  members  of  the  ftates  of  parliaments.  But  fince  the  conqueft 
they  have  begun  to  fit  by  another  right,  namely  by  their  baronies ;  the  con- 
queror having  converted  their  eftates  in  free  alms  into  baronies,  and  to 
their  great  mortification,  fubjecled  them  to  military  fervicef. 

UPON  this  head  feveral  queflions  have  been  propounded,  as  how  far 
they  are  lords  of  parliament,  and  whether  the  clergy  are  a  third  eflate  of  the 
realm,  and  fit  folely  in  that  right.  This  is  a  queflion  of  fome  importance, 
becaufe  if  they  make  a  diftincl:  eftate,  no  law  would  be  good  to  which  the 
majority  of  them  did  not  confent.  Certain  it  is  that  in  France,  the  clergy 
made  one  eftate,  the  nobility  the  fecond,  the  burghers  the  third ;  and  in 
Sweden  the  peafants  make  the  fourth,  all  fitting  in  diftincl:  houfes,  the  ma- 
jority of  each  of  which  mufl  concur.  And  therefore  I  do  believe,  that 
when,  in  England,  we  talk  of  three  e/tates,  the  clergy,  not  the  biihops  alone, 
make  one  of  them,  contrary  to  the  modern  opinion-,  that  the  king  is  the 
firfl  eftate,  and  the  bifhops  and  the  nobility  the  feeond ;  for  the  king  is  5n= 
no  country  reckoned  one  of  the  eftates,  but  the  head  of  all.  However 
from  this  no  argument  can  be  drawn  that  the  bifhops  fhould  fit  feparately, 
or  that  a  majority  of  tliera,  as  reprefenting  the  clergy,  fliould  concur. 

As  to  fitting  feparately,  it  is  pretty  clear  that,  by  the  old  law,  none  were 
members  of  parliament,  but  the  immediate  military  tenants  of  the  king,  and 
that  they  fat  all  in.  onehoufe,  however  their  titles  and  fortune  might  differ  j 
being  all  equal  as  to  rank,  with  refpecl  to  the  king,  and  all  having  the  fame 
rights-  The  divifion  of  parliament  into  two  houfes  was  never  known  in  Scot- 
land, who,  in  all  probability,  modelled  their  conftitution  from  their  neigh- 
bours j. 
f  Coke  on  Littleton,  lib.  2.  §  135.     Selden,  tit.  hon.  part  2.  ch.  5.  §  19. 


T.  2i.  LAWS   OF    ENGLAND. 

hours ;  nor  cloth  it  appear  in  England  previous  to  Edward  the  Firft,  but 
arofe,  probably,  from  the  great  barons  difdaining  to  fit,  as  equals  with  citi- 
zens and  burgefles.  For  even,  after  this  time,  they  did  not  difdain  to  aflo- 
ciate  with  the  knights  of  the  (hires,  who  reprefcnted  the  minor  barons,  and 
other  military  tenants,  :is  appears  by  many  inftances.  But  for  a  number  of 
centuries  pad  the  gentry,  which  were  formerly  confidcred  as  a  lower  no- 
blclle,  and  are  fo  abroad,  have  been  melted  into  one  body  with  the  other 
commoners  f . 

Ii  then  there  was  originally  but  one  houfe,  and  if,  fince  the  divifion,  the 
bimops  have  conflantly  fat  in  the  houfe  of  peers,  there  can  be  no  pretence 
for  any  privilege  for  them  more  than  for  the  body  of  barons  or  earls.  It  is 
urged,  likewife,  that  feveral  valid  acls  of  parliament  were  pafled  without 
any  bifhop  prefent ;  but  this  happened  only  in  diftracted  times ;  and,  who- 
ever might  think  it  prudent  or  proper  to  abfent  themfelves  at  a  particular 
feafon,  it  will  hardly  be  faid  to  be  a  good  parliament  when  they  were  not 
fummoned ;  and  if,  at  any  time,  they  refufed  to  attend,  there  was  no  rea- 
fon  why  the  public  bufmefs  mould  flop,  as  they  fat,  not  as  an  independent 
conflituent  part  of  parliament,  but  each  diflin&ly  for  himfelf,  in  right  of  his 
barony.  From  thefe  occafional  and  general  abfences  of  theirs,  an  opinion 
grew  up  by  degrees,  and  now  is  eftablifhed  law,  that  there  is  a  material  dif- 
ference between  bimops  and  lay  lords,  in  refpect  to  their  nobility.  In  truth, 
that  they  are  not  peers  to  each  other,  and  confequently  that  a  bifhop  can- 
not fit  in  judgment  on  the  life  of  a  peer,  neither  is  he  to  be  tried  by  the 
peers,  but  by  a  jury  of  commoners. 

IT  is  worth  while  to  fee  how  thefe  opinions  grew  up ;  for,  from  the  ori- 
ginal conftitution,  every  bifhop,  being  a  baron  by  tenure,  and  having  a  fee 
fimple  therein,  had  certainly  as  great  right  as  other  barons  ;  but  the  canon 
law  having  forbid  any  ecclefiaftics  being  concerned  in  matters  of  blood,  and 
they  being  obliged  T>y  the  common  law  to  attend  judgments  in  parliament, 
were  in  a  great  flreight  between  the  two  laws,  how  to  aft  when  a  peer  was 
capitally  accufed.  They  at  length  obtained  from  Henry  the  Second  in  the 
conftitutions  of  Clarendon,  the  following  allowance  :  Etficut  cateri  barones 
debent  inter  effe  judlcm  curia,  regis  quoitfque  perueniatur  ad  diminutionem  mem- 

Cc  2  brorum^ 

t  RoUertfon's  hift.  of  Scotland,  book  I.  p.  69.     Eflays  on  Brit.  Antiq.  EfT.  2. 


204  LECTURES    ON     THE  LECT.  21. 

brorum,  vet  ad  mortem ;  where  the  laft  words  are  plainly  an  exception  in 
their  favour,  in  derogation  to  the  common  law,  on  account  of  their  pecu- 
liar circumflances  under  the  canon.  However,  as  many  queftions  might 
arife  before  it  came  to  the  lafl  vote,  that  might  intirely  influence  the  final 
determination,  they  ufed  to  abfent  themfelves  totally,  and  this  going  on  for 
ages,  and  the  feudal  baronies  wearing  out,  and  all  titles  becoming  fixed  to 
the  blood,  not  to  the  land,  they  came  to  be  confidered  as  peers  of  a  different 
nature,  becaufe  their  blood  did  not  fucceed,  and  that  which  was  firft  a  fa- 
vourable permiffion,  was  conftrued  a  prohibition ;  and  when  this  was  once 
eftabliflied,  it  followed  neceffarily,  that,  not  being  peers  to  the  nobility  by 
blood,  they  mufl  be  tried  by  commoners  f. 

WITH  refpeft  to  the  trials  of  noblemen,  now  I  have  faid  fo  much  on  that 
head,  I  mail  obferve,  they  were  carried  on  in  two  different  methods.  Ei- 
ther the  accufed  perfon  was  tried  in  parliament,  and  then  all  the  temporal 
lords  had  voices,  or  he  was  tried  by  a  jury  of  peers  ;  that  is  the  king  appoint- 
ted  twenty-four  noblemen  for  that  purpofe  :  A  law  that  has  proved  fatal  to 
many  noblemen,  who  happened  to  fall  under  the  difpleafure  of  the  court. 
A  commoner  hath  a  right  to  prevent  the  fheriffs  returning  a  jury  to  try  him, 
if  he  can  fliew  a  juft  exception  to  the  fheriff;  and  after  the  return  is  made, 
he  can  challenge  a  certain  number  for  caufes  known  only  to  himfelf,  and  as 
many  more  as  he  can  prove  fufficient  matter  of  exception  to.  Such  care  did 
the  law  take  of  the  lives  of  the  commons,  but  no  exception  lay  for  a  peer  to 
the  king's  return.  The  law  would  not  fuppofe  the  leaft  partiality  in  him, 
even  in  his  own  caufe  ;  neither  would  it  fufpecl  that  a  peer  could  be  biaflecl 
by  any  confideration  from  doing  ftric~t  juflice,  and  therefore  no  challenge 
lay  againft  him  for  any  caufe,  however  ftrong  and  notorious  j  and  the  fame 
confidence  is  the  re-afon  why  they  give  their  votes,  guilty  or  not  guilty,  not 
upon  their  oaths,  but  upon  their  honours. 

I  CAN  fcarce  imagine  that  this  method  of  trial  could  have  prevailed  in  the 
runes  of  the  great  power  of  the  barons,  when  they  often  made  the  crown  to 
totter ;  neither  have  I  been  able  to  difcover  its  beginning.  Certain  it  is 
that,  in  the  reigns  of  the  Plantagenets  moft,  if  not  all  noblemen,  were  tried 
in  full  parliament ;  and  as  certain  it  is,  that,  during  the  reigns  of  the  Tu- 

dors 

f  Gibfon,  cod.  jur.  ecclef.  Angl.  vol.  I.  p.  i/i:> 


LF.CT.  21.          LAWS    OF    EN  GLAND.  -05 

dors  and  Stuarts,  the  other  was  univerfally  followed  ;  infomuch  that  every 
nobleman  was  fure  either  to  fuffer  or  efcape,  according  as  the  court  was  at 
that  time  affected  towards  him.  At  length,  after  many  ftruggles,  about 
1695, tnc  bill  f°r  regulating  trials  for  high  trcafon  and  mifprifion  of  treafon 
was  pafled  ;  one  claufe  of  which  provides,  that  on  the  trial  of  peers,  every 
lord  who  hath  a  right  to  vote  in  parliament,  fliall  be  fummoncd,  and  have  a 
right  to  vote.  Thus  was  the  inconvenience  attending  the  king's  naming 
the  jury  remedied  ;  but  the  law  in  the  other  point  (lands  as  before,  that  no 
peer  can  be  challenged.  According  to  this  law  have  all  trials  of  Irifh  peers 
proceeded  fmcc  that  time,  though  there  is  no  acl  for  that  purpofe  in  this 
kingdom  f. 

f  Privileges  of  the  Baronage,  by  Selden,  ch.  2.  p  1537  of  the  edition  of  his  works  by 
Wilkins.     Coke's  inilitute,  fecond  part,  p.  40.  and  50  ;  third  part,  p.  26. — 31. 


L  E  C  T  U  R  F. 


2o6  L  E  C  T  U  R  E  S     ON     THE  LECT.  2: 


LECTURE       XXII. 

The Jhare  of  'the  Commons  in  the  LegiJJature — The  Armigeri  or  Gentry — Knights 
Bannerets — The  nature  of  Knighthood  altered  in  the  reign  of  James  I. — 
Knights  Baronets — Citizens  and  Burghers — The  advancement  of  the  power 
and  reputation  of  the  Commons. 

HAVING  given  a  general  idea  of  the  lords,  and  their  fliare  of  the 
legiflature,  it  will  now  be  proper  to  defcend,  and  fee  the  feveral 
clafles  of  the  lower  rank,  called  Commons,  and  to  examine  what  fliare  or 
influence  they  had  formerly,  or  now  enjoy,  in  the  government.  The  com- 
moners  may,  in  general,  then,  be  divided  into  the  lejfer  nobility,  or  gentry, 
and  the  others,  whom,  for  diftinclion  fake,  I  mail  call  the  lower  commons. 
For  although,  fmce  the  reign  of  Henry  the  Eighth,  many  men  of  the  befl 
families,  and  fome  defcended  from  the  nobility,  have  engaged  in  commerce, 
and  thereby  brought  luftre  to  that  order  of  men,  before  that  time  all  per- 
fons  engaged  in  trade  were  held  in  as  much  contempt  by  the  gentry  of 
England,  as  they  are  at  prefent,  by  thofe  of  any  nation  ;  and  a  gentleman 
who  employed  himfelf  in  hunting,  or  perhaps  ferving  the  king,  or  fome 
great  lord,  was  looked  upon  to  have  degraded  himfelf. 

THE  gentry  were  called  Armigeri,  becaufe  they  fought  on  horfeback,  in 
compleat  armour,  covered  from  head  to  foot ;  whereas  the  infantry's  defen- 
five  arms  were  of  a  flighter  kind,  and  no  compleat  covering.  But  we  are 
not  to  imagine  that  all  who  fought  on  horfeback  compleatly  armed,  were 
gentry ;  for,  in  order  to  compleat  their  fquadrons,  men  of  the  lower  ranks, 
who,  by  their  ftrength  of  body,  and  military  (kill,  were  capable  of  fervice, 
were  admitted,  but  this  did  not  make  them  gentlemen.  Hence,  in  our  old 
hiilories,  we  find  the  knights  and  efqitires,  that  is,  the  real  gentry,  carefully 
diftinguiflied  from  the  men  at  arms.  The  peculiar  privilege  of  the  gentry 
was  the  bearing  on  their  fhields  certain  marks,  to  diftinguifh  them  from 
each  other,  and  the  men  at  arms  called  Coats  of  Arms.  At  firft  they  were 
perfonal  privileges,  and  not  inherent  in  the  blood,  and  the  marks  and  re- 
wards 


LI-.CT.  22.  LAWS    OF    ENGLAND.  207 

wards  of  fomc  pcrfonal  aft  of  bravery  performed  by  the  bearer ;  fo  we 
in  the  romances,  that  a  new  knight  was  to  wear  plain  white,  until,  by  lome 
exploit,  he  merited  a  mark.  The  general  opinion  is,  that  they  were  firft 
introduced  at  the  time  of  the  crufades,  which  I  believe  is  pretty  juft,  at 
lead  with  rcfpecl:  to  our  country :  for  the  imperial  crown  of  England  had 
no  arms  before  the  conqueft.  The  Norman  kings  bore  the  arms  of  Nor- 
mandy, two  leopards  paffantt  to  which  Richard  the  Firft  added  that  of 
Guienne,  another  leopard  paflant,  and  fo  compofed  this  Englifh  coat,  in 
which,  among  other  alterations,  the  leopards  have  fince  been  changed  to 
lions  f . 

FOR  the  further  encouragement  of  valour,  thefe  marks  became  tranf- 
iniflible  to  heirs,  not  to  the  elded  fon  only,  as  lands,  but  to  all  the  fons  ; 
faving  that  the  younger  were  to  take  fome  addition,  for  diftin&ion  fake. 
While  thefe  coats  were  granted  by  the  king  alone,  and  that  for  real  fcrvice 
done,  and  confequently  were  not  too  common  ;  and  while  the  cuftom  of 
wearing  compleat  armour  remained,  and  the  office  of  high  conflable  (the 
judge  in  fuch  matters)  continued,  the  gentry  were  very  curious  in  prefer- 
ving  thefe  diftincYions,  and  vindicating  them  from  ufurpation.  But  as  the 
military  difpofition  of  our  gentry  hath  greatly  fubfided  fince  the  lofs  of  the 
provinces  in  France,  and  the  kings  at  arms  have  alTumed  the  power  of 
giving  coats,  nicety  in  thefe  refpects  hath  long  fince  expired  ;  and  now,  as 
in  a  commercial  country,  efpecially,  it  mould  be,  education  and  behaviour 
are  fufficient  criterions  of  a  gentleman. 

I  SHALL  therefore  fay  no  more  of  them,  as  diftinguifhed  from  the  reft  of 
the  commonalty,  but  obferve,  that  of  thefe  there  are  two  ranks,  knights 
and  efquireS)  or  gentlemen.  For  though  we  now  make  a  diflin&ion  be- 
tween thefe  two  laft,  the  old  law  knew  none,  nor  is  it  now  a  mifnomer,  in 
a  writ  of  pleadings,  to  ftile  an  efquire  a  gentleman,  or  the  contrary.  The 
holding  of  a  knight's  fee  did  not  make  a  man  of  that  order,  but  there  were 
pirticular  ceremonies  required  for  the  purpofe.  For  the  original  defign  of 
the  inftitution  of  dubbing  knights ,  was  that,  after  a  perfon  had,  by  perform- 
ing military  exercifes,  fhewn  that  he  had  properly  accomplifhed  himfclf, 
and  was  capable  of  that  honourable  fervice  in  the  field,  in  his  proper  per- 
fon, 

|  Spelman,  voc.  Armiger.     Du  Cange,  voc.  Armigiri. 


208  L  E  C  T  U  R  E  S     ON     THE  LECT.  22. 

fon,  he  mould,  by  a  public  folemnity,  be  openly  declared  fo.  No  wonder, 
then,  that  the  higheft  nobility,  the  fons  of  kings,  nay  kings  themfelves, 
thought  this  title  an  addition  to  their  dignity,  as  it  was  then  an  infallible 
proof,  that  they  had  not  degenerated  from  the  virtue  of  their  anceflors  f. 

BUT  among  knights  there  were  fome  of  a  more  diftinguimed  kind  (I  da 
not  mean  to  fpeak  of  particular  orders,  fuch  as  tliofe  of  the  garter  and 
others)  called  Bannerets,  as  knights  in  general  were  made,  upon  their  pro- 
ving themfelves  by  exercifes  capable  of  fervice.  Thefe  were  never  made 
but  for  an  actual  exploit  in  war,  and  then  were  dubbed  with  great  folemnity 
under  the  royal  banner.  Their  diflinction  was  bearing  a  little  banner,  an- 
nexed to  the  wooden  part  of  their  lance,  adjoining  the  iron  point ;  as,  ori- 
ginally, every  man  who  had  a  whole  knight's  fee,  or  the  amount  thereof  in 
parts  of  fees,  was  obliged  to  ferve  in  perfon,  and  was  not  allowed  a  proxy, 
but  in  cafes  of  neceffity  every  fuch  perfon  was  obliged  to  appear  upon  the 
king's  fummons,  to  mew  himfelf  qualified,  and  to  receive  the  order  of 
knighthood.  This  power  continued  in  the  king,  even  after  the  military  te- 
nants were  difcharged  of  perfonal  attendance  on  fending  another,  or  pay- 
ing efcuage,  and  came  to  be  confidered  as  a  profitable  fruit  of  the  king's 
feignory,  and  was  frequently  ufed  as  an  expedient  to  raife  money,  by  obli- 
ging the  unqualified,  or  thofe  who  had  no  mind  to  the  expence  or  fatigue  of 
attending,  to  compound  \. 

THIS  right  of  compofition  was  eftablifhed  by  aft  of  parliament,  the  firft 
of  Edward  the  Second,  which  likewife  fixes  the  eftate  the  perfons  fummon- 
ed  muft  have  at  twenty  pounds  a  year,  the  quantity  of  a  knight's  fee  j 
twenty  pounds  a  year  was  indeed  the  valuation  of  a  knight's  fee  at  the  time 
of  the  conqueft,  but  by  change  of  times,  in  Edward  the  Second's  reign,  it 
may  well  be  efteemed  forty;  fo  that  by  this  act  a  man  who  had  half  a 
knight's  fee  was  liable  to  be  fummoned.  This  was  one  of  the  unhappy 
means  made  ufe  of  by  king  Charles  the  Firft  to  procure  money  when  he 
quarrelled  with  his  parliament.  He  was  fenfible,  indeed,  of  a  difference  in 
the  value  of  money,  and  therefore  fummoned  none  but  fuch  as  had  forty 
pounds  a-year ;  but  had  he  paid  due  attention  to  its  real  rife,  he  mould  have 

fummoned 

f  Selden,  tit.  hon.  part  2.  ch.  5 .  §  33.     Canden's  introd.  to  his  Britan,  242. 
*  Selden,  tit.  hon.  part  2.  ch.  5.  §  39. 


T.  c^.  LAWS    OF    ENGLAND. 

fiimmoned  none  under  an  hundred  and  twenty.     For  b  n  n 

pound  in  money  was  a  re;il  pound  in  filver,  uhercas  in  Charles'-:,  it  wa«  but 
a  third  part,  and  fo  the  proportion  was  to  fixty  pound  ftcrling,  and  1 
more  is  the  lead  rife  that  can  be  allowed  tor  the  improvements  in  the  valur 
of  lands,  by  the  intermediate. increafe  of  commerce.  No  wonder,  therefore, 
that  his  people  looked  upon  it  as  an  unfupportable  grievance.     Accord, 
ly,  in  the  i  ;th  of  his  reign,  the  ad  of  FA! ward  the  fecond  was  repealed,  and 
in  Ireland,  it  vanifhcd  with  the  tenures  on  which  it  depended  f. 

THE  great  change  in  the  nature  of  knighthood  happened  in  the  reign  ot 
James  the  Firfl.  The  Plantagenets  never  created  any  perfons  fuch  but  with 
a  view  to  military  merit,  except  their  judges.  The  Tudors  extended  it  to 
perfons  who  had  fervcd  them  well  in  civil  ftations,  but  fo  fparingly,  and  to 
perfons  of  fuch  evident  merit,  that  it  ftill  was  an  encouragement  to  thofc 
that  deferved  well  of  the  public.  But  James,  who  had  a  paflion  for  crea- 
ting honours,  poured  forth  his  knighthoods,  without  regard  to  defert,  with 
fo  lavifli  an  hand,  confirming  them  for  money  frequently  on  wealthy  tra- 
ders, and  others  without  any  apparent  public  merit,  that  thereby,  as  alfo 
by  creating  an  order  of  hereditary  knights,  called  baronets,  a  knighthood 
foon  loft  the  badge  of  merit  it  before  had  carried. 

THE  occafion  of  creating  baronets  was  this.  On  the  efcheat  of  the  fix 
counties  in  Ulftcr,  they  were  planted  with  colonies  of  Scotch  and  Englifli ; 
and,  as  it  was  neccfiary  to  fupport  a  (landing  army  there,  for  fome  years 
after,  for  the  defence  of  the  infant  fettlemcnts,  and  money  was  wanting  for 
that  purpofe,  as,  in  that  reign,  it  always  was  for  every  other,  this  fcheme 
of  creating  an  order  of  hereditary  knights,  to  take  place  after  the  barons, 
was  fixed  upon  for  that  purpofe.  At  firft  it  had  fome  afpecl  towards  mili- 
tary fervice,  for  each  of  them  was  obliged  to  maintain  fo  many  foldiers  in 
the  plantation,  for  a  limited  time  ;  and  to  make  the  honour  more  valuable, 
and  to  get  the  better  terms  for  it  in  the  firft  plan,  it  was  provided,  that  no 
more  than  two  hundred  (hould  be  originally  created ;  and  when  any  of  them 
failed,  no  new  ones  to  be  created  in  their  room.  But  it  was  foon  feen  that 
thefe  new  knights,  when  they  had  once  attained  their  dignities,  might  not 
duly  perform  the  fervices  they  engaged  for.  The  maintaining  the  foldiers, 

D  d  therefore, 

t  Spclm.  relief  dLTert.  de  milite.     Cuke's  inft.  pan  z.  p.  593. 


2io  LECTURES     ON     THE  LECT.  22. 

therefore,  was  commuted  into  a  fum  paid  to  the  king,  who  undertook  to  do 
it ;  and  had  he  been  a  good  ceconomift,  it  would  have  been  a  prudent  pre- 
caution, but  whatever  fums  he  could  lay  his  hands  on  were  always  at  the 
mercy  of  his  reigning  favourite.  He  was,  therefore,  obliged  to  depart  from 
his  intended  limitation,  and  to  exceed  his  number ;  and  yet,  after  all,  the 
fervice  was  not  done  fo  well  as  it  mould  have  been.  His  fuccefibrs  have 
followed  his  example,  in  adding  to  the  number,  which  now  is  certainly  un- 
limited f. 

NEXT  to  the  gentry,  or  military  order,  in  eftimation  among  the  northern 
nations  flood  the  citizens  and  burghers,  that  is,  the  trading  part  of  the  na- 
tion, whether  merchants  or  artificers.  Thefe  were  for  fome  ages  held  in  a 
very  low  light,  none  of  the  conquerors  or  their  defendants  applying  them- 
felves  to  fuch  occupations.  They  were,  indeed,  at  firft,  allowed  certain 
privileges  and  enjoyed  their  own  laws,  under  the  infpection  of  magiftrates 
appointed  by  the  king,  known  by  the  name  of  Prapofiti,  Provo/ts,  or  fome 
other  equivalent  title.  But  thefe  liberties  did  not  lad  long.  The  turbulent 
temper  of  the  times,  the  frequent  competitions  for  the  throne,  and  the  many 
rebellions  of  the  great  lords,  occafioned  the  towns  and  their  inhabitants  to 
be  taken  in  war,  one  after  another ;  and  the  perfons  fo  taken,  were,  by  the 
prevailing  Jus  Gentium  of  thefe  ages  reduced  to  fervitude  ;  not,  however  to 
a  condition  fo  lovvr  as  the  vilkins,  who  were,  properly,  the  flaves  of  thofe 
people,  and  had  no  property  but  at  the  will  of  their  lords.  However  it  is, 
no  Hate,  except  one  abfolutely  barbarous,  could  fubfift  without  artizans ; 
and  as  commerce  is  the  parent  of  wealth,  and  as  neither  it,  nor  arts,  could 
thrive  where  property  is-  not,  in  fome  fort,  fecure,  the  lords  were  in  fome 
degree,  by  their  own  intereft,  obliged  to  relinquifh  to  thefe  people  the  feizing 
of  their  goods  at  pleafurc,  as  they  praclifed  towards  their  villeins,  and  to 
leave  them  at  liberty  to  make  regulations  among  themfelves  for  the  benefit 
of  trade  J. 

THUS  far,  then,  they  were  free,  but  their  fervitude  confifted  in  their 
being  liable  to  taxes,  or  tailliagcs,  at  the  will  of  the  lords,  who,  if  they 
were  wife,  laid  on  fuch  only  as  they  could  well  bear  j  but  mi&rable  was 

their 

•j-  Selden,  tit.  hon-  part  2.  ch.  5.  §  46.    Cotton's  pofthumous  works. 

$  Madox,  Firma  Burgi,  ch.  i. 


LECT.  22.  LAWS    OF    ENGLAND.  211 

their  condition  when  they  fell  into  the  hand-  «\    one:    who   wa.-;   needy  and 
rapacious;   for,   then,  they   wen:  often    ileeced,   eu  n  to  ruin  and  depopu- 
lation.     This  induced  the   \\i!er  l-uds,  who  law  the  eonlcqu  nd  how 
much  the  arbitrary  exertion  of  fuch  powers   muft,    in  the  end,  hurt  tlh 
felves,  to  reilrain  their  own  powers;  and,  by  degrees,   by  granting  them 
charters,  to  emancipate  them.  They  formed  them  into  bodies  corporate,  con- 
firmed the  right  of  making  bye-laws,  which  had  been  permitted  them,   ; 
granted  them  other  privileges,  m  francbijl's,  as  they  called  them,  from  their 
being  infranchifed,  in  derogation  to  former  regal  or  feignoral  rights.      ! 
for  their  total  freedom  they  were  indebted  to  parliament,  which,  feeing  the 
bad  ufe  king  John  made  of  his  right  in  this  kind,  provided  thus  in  Magna 
Charta,  Civitas  London  babe  at  onmes  libcrtatcs  fuas  antique,  o'  conftictudina 
ft/js.     Pratcrea  volutnus  cir  conccdimus,   quod  omnes  a/L-c  c ivitatcs,  bur^i. 
<vi/he,  <6'  baroncs  dc  qulnquc  portubus,  &  wines  alii  portus,  babcant  omnes  libcr- 
tatcs eir  libcras  confuetudines  fuas.     And  another  chapter  reflrains  tb.e  king 
from  laying  new  and  evil  tolls,  and  confines  him  to  the  anticnt  cufloms-J. 

HITHERTO,  however,  the  citizens  and  burgefies  were  no  part  of  the  body 
politic,  and  were  not  reprefented  in  parliament.     But  as,  with  their  fecuri- 
ty,  their  wealth  and  confequence  encreafed,  about,  or  before  the  year  i  - 
they  were  admitted  to  that  privilege  j  that  they  might,  in  conjunction  willi 
the  knights  of  (hires,  be  a  check  on  the  overgrown  power  of  the  might \ 
lords ;  and  about  that  time  alfo  the  fame  privilege  was  allowed  to  this  < 
of  people  in  the  other  nations  of  Kurope  alfo.     This  right  was  confirmed, 
and  fo  I  may  fay,  the  boitfe  of  commons,  in  ifs  prefent  condition,  formed  b) 
the  ftatute  of  the  thirty-fourth  of  Edward  the  Firft.     Nitllum  ta/hgiw 
aimttum,pcr  nos  vd  bcrcdcs  nq/iros,  in  rcgno  ns/lro  ponatitr,  feu  L>vctur,fine 
voluntatc  c:r  affenfu  arcbiepifcoporum,  cpifaporum,  comitum,  haruuim,  miliium, 
burgcnfnon,  CJ  a/iorum  libcrorum  communium  dc  rc^no  nojlro  ;  where  \ve  fee, 
not  only  the  burgefles,  but  free  yeomen  alfo  had  reprefentatives,  na:.: 
by  their  voting   along  with  the  knights  of  the  mires,   according  to 
maxim  of  that  wife  prince,    .^V/.r  ad  cm::  --bus    ^ 

t  raft  or  i  \. 

R  J    2  HAVING 

t  ISIadox,  Firrtia  Burgi,  <li.  a.     Rufi'Iicad,  vol.  i.  p.  4. 
t  R«fTheacl,  vol.  t.  p.  156. 


212  LECTURES     ON     THE  LECT.  22. 

HAVING  come  to  the  conflitution  of  the  houfe  of  commons  as  it  ftands  at 
prefent,  it  will  not  be  amifs  to  look  back,  and  fee  how  far  its  prefent  form 
agrees  with,  or  differs  from  the  feudal  principles.  Thefe  principles,  we 
have  feen,  were  principles  of  liberty  j  but  not  of  liberty  to  the  whole  na- 
tion, nor  even  to  the  conquerors  ;  I  mean,  as  to  the  point  I  am  now  upon, 
of  having  a  mare  in  the  legiflation.  That  was  referved  to  the  military  te- 
nants, and  to  fuch  of  them  only  as  held  immediately  of  the  king.  And  the 
lowed  and  poorefl  of  thefe  alfo,  finding  it  too  burthenfome  to  attend  thefe 
parliaments,  or  affemblies,  that  were  held  fo  frequently,  foon,  by  difufe,  loft 
their  privileges  ;  fo  that  the  whole  legiflature  centered  in  the  king,  and  his 
rich  immediate  tenants,  of  his  barony.  And  it  is  no  wonder  the  times  were 
tempefluous,  when  there  was  no  mediator,  to  balance  between  two  fo  great 
contending  powers,  and  were  it  not  that  the  clergy,  who,  though  fitting  as 
barons,  were  in  fome  degree  a  feparate  body,  and  had  a  peculiar  intereft  of 
their  own,  performed  that  office,  fometimes,  by  throwing  themfelves  into 
the  lighter  fcale,  the  government  mufl  foon  have  ended  either  in  a  defpotical 
monarchy,  or  tyrannical  oligarchy. 

SUCH  were  the  general  affemblies  abroad  in  the  feudal  countries,  but 
fuch  were  not  flridly  the  ivitten  age  mots  of  the  Saxons,  for  their  conflitution 
was  not  exactly  feudal.  I  have  obferved  that  the  moft  of  their  lands  were 
allodial,  and  very  little  held  by  tenure.  The  reafon  I  take  to  be  this  :  On 
their  fettlement  in  Britain  they  extirpated,  or  drove  out,  the  old  inhabitants, 
and  therefore,  being  in  no  danger  from  them,  they  were  under  no  neceffity 
of  forming  a  conftitution  compleatly  military.  But  then  thofe  allodial  pro- 
prietors being  equally  freemen,  and  equal  adventurers  with  thefe  who  had 
lands  given  them  by  tenure,  if  any  in  truth  had  fuch,  they  could  not  be  de- 
prived of  their  old  German  rights,  of  fitting  in  the  public  affemblies.  From 
the  old  hiflorians,  who  call  thefe  meetings  infinite  multitude?  it  appears  that 
they  fat  in  perfon,  not  by  reprefentation  f . 

THIS  conflitution,  hewever,  vanimed  with  the  epnquefl,  when  all  the 
lands  became  feudal,  and  none  but  the  immediate  military  tenants  were  ad.- 
nritted.  We  find,  indeed,  in  the  fourth  year  of  William  the  Firfl,  twelve 

men. 

$  Gurdon's  hiftory  of  Parliament.    Tyrrel'js  introduction  to  his  hiftory.    L.  L.  Anglo. 
Saxon,  ap.  Wilkir.s., 


LECT.  22.  LAWS    OF    ENGLAND.  213 

men  fummoned  from  every  county,  and  Sir  Matthew  Hale  will  have  • 
to  be  as  eficctual  a  parliament  as  any  in  England  f  ;  but,  with  dele- 
fo  great  an  authority,  I  apprehend  that  thrfc  were  not  members  of  the  legif- 
laturc,  but  only  afliflants  to  that  body.     For  if  they  were  part  thereof,  i 
came  they  afterwards  to  be  difcontinued  till  Henry  the  Third's  time,  \\! 
\ve  firft  find  any  account  of  the  commons?   The  truth  Teems  to  be,  that 
they  were  fummoned  on  a  particular  occafion,  and  for  a  purpofe  that  none 
but  they  could  anfwer.     On  his  coronation  he  had  fworn  to  govern  by  Ed- 
ward the  Confcflbr's  laws,  which  had  been  fome  of  them  reduced  into  wri- 
ting, but  the  greater  part  were  the  immemorial  cuflom  of  the  realm  ;  and 
he  having  distributed  his  confifcations,  which  were  almoft  the  whole  of 
England,  into  his  follower's  hands,  who  were  foreigners,  and  ftrangers  to 
what  thefe  laws  and  cuftoms  were,  it  was  necefiary  to  have  them  afcertained ; 
and,  for  this  purpofe,  he  fummoned  thefe  twelve  Saxons  from  every  coun- 
ty, to  inform  him  and  his  lords  what  the  antient  laws  were.    And  that  they 
were  not  legiflators,  1  think  appears  from  this,  that  when  William  wanted 
to  revive  the  Danifh  laws,  which  had  been  abolifhed  by  the  Confeflbr,  as 
coming  nearer  to  his  own  Norman  laws,  they  prevailed  againft  him,  not  by 
refufmg  their  confent,  but  by  tears  and  prayers,  and  adjurations,  by  the 
foul  of  Edward  his  benefactor. 

TPIUS  William's  laws  were  no  other  than  the  Confefibr's,  except  that  by- 
one  new  one,  he  dextroufly,  by  general  words,  unperceived  by  the  Eng- 
lifh,  becaufe  couched  in  terms  of  the  foreign  feudal  law,  turned  all  the  al- 
lodial lands,  which  had  remained  unforfeited  in  the  proprietor's  hands,  into 
military  tenures.  From  that  time,  until  the  latter  end  of  Henry  the  Third's 
reign,  our  parliaments  bore  the  exact  face  of  thofe  on  the  continent  in  that 
age ;  but  then,  in  order  to  do  fome  juftice  to  the  lefler  barons,  and  the 
lower  military  tenants,  who  were  entitled  by  the  principles  of  the  conilitu- 
tion  to  be  prefent,  but  difabled  by  indigence  to  be  fo  in  perfon,  they  were 
allowed  to  appear  by  reprefentation,  as  were  the  boroughs  about  the  fame 
time,  or  foon  after.  The  perfons  entitled  to  vote  in  thefe  elections  for 
knights  of  the  (hire,  were,  in  my  apprehcnfion,  only  the  minor  barons,  and 
tenants  by  knight  fervice,  for  they  were  the  only  perfons  that  had  been 

omitted  v 

•y  Hiftory  of  the  common  law  of  England,  p.-ioj. 


214  LECTURES     ON     THE  LECT.  22. 

omitted,  and  had  a  right  before,  or  perhaps  with  them,  the  king's  imme- 
diate focage  tenants  in  capite. 

BUT  certain  it  is,  the  law  that  fettled  this  had  foon,  with  regard  to  liber- 
ty, a  great  and  favourable  extenfion,  by  which  all  freemen,  whether  holding 
of  the  king  mediately  or  immediately,  by  military  tenure  or  otherwife,  were 
admitted  equally  to  vote  ;  and  none  were  excluded  from  that  privilege,  ex- 
cept villeins,  copy-holders,  and  tenants  in  antient  demefne.  That  fo  great 
a  deviation  from  the  feudal  principles  of  government  happened  in  fo  mort  a 
time,  can  only  be  accounted  for  by  conjeclure.  For  records,  or  hiftory,  do 
not  inform  us.  I  fhall  guefs  then,  that  the  great  barons,  who,  at  the  end 
of  Henry  the  Third's  reign,  had  been  fubjeft  to  forfeiture,  and  obliged  to 
fubmit,  and  accept  of  mercy,  were  duly  fenfible  of  the  defign  the  king  had 
in  introducing  this  new  body  of  legiflators,  and  fenfible  that  it  was  aimed 
againfl  them,  could  not  oppofe  it.  But,  however,  they  attempted,  and 
for  fome  time  fucceeded  to  elude  the  effects  of  it,  by  infilling  that  all  free- 
men, whether  they  held  of  the  king,  or  of  any  other  lord,  ihould  be  equal- 
ly admitted  to  the  right  of  the  reprefentation. 

THE  king,  whofe  profeflion  was  to  be  a  patron  of  liberty,  Edward  the 
Firfl,  could  not  oppofe  this ;  and  as  he  was  a  prince  of  great  wifdom  and 
forefight,  i  think  it  is  not  irrational  to  fuppofe,  that  he  might  be  pleafed  to 
fee  even  the  vafials  of  his  lords,  act  in  fome  fort  independently  of  them, 
and  look  immediately  to  the  king  their  lord's  lord.  The  efFed  was  certain- 
ly this,  by  -the  power  and  influence  their  great  fortunes  gave  them  in  the 
country,  the  majority  of  the  commons  were,  for  a  long  time,  more  in  the 
dominion  of  the  lords  than  of  the  crown  ;  though,  if  the  king  was  either  a 
wife  or  a  good  prince,  they  were  even  then  a  confiderable  check  upon  the 
too  mighty  peers. 

EVERY  day,  and  by  infenfible  fteps,  their  houfe  -advanced  in  reputation 
and  privileges  and  power  j  but  fince  Henry  the  Seventh's  time,  the  pro- 
grefs  has  been  very  great.  The  encreafe  of  commerce  gave  the  commons 
ability  to  purchafe  ;  the  extravagance  of  the  lords  gave  them  an  inclination, 
the  laws  of  that  king  gave  them  a  power  to  alienate  their  intailed  eftates  ; 
infomuch  that,  as  the  fhare  of  property  which  the  commons  have  is  fo  dif- 

proportionate 


LECT.  22, 


LAWS    OF    ENGLAND. 


215 


proportionate  to  that  of  the  king  and  nobles,  and  that  power  is  faid  to  fol- 
low property,  the  opinion  of  many  is,  that,  in  our  prcfent  fituation,  our 
government  leans  too  much  to  the  popular  fide  ;  while  others,  though  they 
admit  it  is  fo  in  appearance,  reflecting  what  a  number  of  the  houfc  of  com- 
mons arc  returned  by  indigent  boroughs,  who  are  wholly  in  the  power  of 
n.  few  great  mean,  think  the  weight  of  the  government  is  rather  oli; 
chical  f . 

f  Biblioth,  polit.  dial.  6,  7,8.     Hume,  vol.  x. 


LECTURE 


216  LECTURES    ON     THE          LECT. 


The  privilege  of  voting  for  Knights  of  the  Shire — The  bujinefs  of  the  different 
branches  of  the  Legiflature,  diftinft  and  feparate — The  method  of  faffing 
laws — The  hi/lory  and  form  of  the  legiflature  in  Ireland. 

TH  E  houfe  of  commons  growing  daily  in  confequence,  and  the  focagc 
tenants  having  got  the  fame  privilege  of  voting  for  the  knights  of 
the  mire  as  the  military  ones,  it  naturally  followed,  that  every  free  perfon 
was  ambitious  of  tendering  his  vote,  and  thereby  of  claiming  a  mare  in  the 
kgiilature  of  his  country.  The  number  of  perfons,  many  of  them  indigent, 
reforting  to  fuch  elections,  introduced  many  inconveniences,  which  are  ta- 
ken notice  of,  and  remedied  by  the  ftatute  of  the  eighth  of  Henry  the  fixth 
chapter  the  feventh  which  recites,  that  of  late  "  elections  of  knights  had 
"  been  made  by  very  great,  outrageous,  and  exceffive  numbers  of  people  of 
"  which  the  mod  part  was  of  people  of  finall  fubilance,  and  of  no  value, 
*'  whereof  every  one  of  them  pretended  a  voice  equivalent  with  the  mod 
"  worthy  knights  and  efquires,  whereby  manflaughter,  riots,  batteries,  and 
*<  divifions  among  the  gentlemen  and  other  people  of  the  fame  counties 
<e  lhall  very  likely  rife  and  be,  unlefs  convenient  and  due  remedy  be  pro- 
"  vided  in  this  behalf  j"  and  then  it  provides  that,  "  no  perfons  mould 
"  have  votes,  but  fuch  as  have  lands  or  tenements  to  the  value  of  forty 
«  ihillings  a  year  above  all  charges."  And  fo  the  law  Hands  at  this  day, 
though  by  the  change  in  the  value  of  money,  by  the  fpirit  of  this  ftatute,  no 
perfon  fliould  have  a  vote  that  could  not  difpend  ten  pounds  a  year  at  leaft. 
Such  a  regulation,  were  it  now  to  be  made,  would,  certainly,  be  of  great 
advantage  both  to  the  reprefenters  and  reprefented ;  but  there  is  little  pro- 
fpecl:  of  its  ever  taking  place  :  And  if  it  mould  be  propofed,  it  would  be 
looked  upon  as  an  innovation,  though  in  truth,  it  would  be  only  returning 
to  the  original  principles  of  the  conftitutionf. 

OUR 

f  Rufflaead,  vol.  I.  p.  544. 


LF.CT.  2>  L  A  \V  S     OF     R  N  G   L    \   N    IX          217 

OUR  legislature,  then,  confiding  of  three  didinct  j 

and  commons,  in  procef;  of  time,  each  of  them  grew  up  to  have  didind 
privileges,  as  to  the  beginning  particular  bufmefTcs.     Thus  all  acls  of  gene- 
ral grace   an.l    pardon   take  their   rile  from   the  king  ;  lative  t< 
lords  and  matters  of  dignity,  in  that  houfe  ;   and  the  granting  of  mom 
the  commons.     How  the  commons  came  by  this  exclulive  right,  as  to 
ney  matters,  is  not  fo  eafy  to  determine.      Certain  it  is  that,  originally,  the 
lords  frequently  taxed  themfelves,  as  did   the  commons   the  common, 
without  any  communication  with  each  other ;  but  afterwards,  when  it 
judged  better  to  lay  on  general  taxes,  that  fhould  equally  afreet  the  whole 
nation,  thefe  generally  took  their  rife  in  that  houfe  which  reprefented  the 
bulk  of  the  people  ;  and  this,  by  deadinefs  and  perfcvcrcmce,  they  have  ar- 
rogated fo  far  into  a  right  peculiar  to  themfelves,  as  not  to  allow  the  ! 
a  power  to  change  the  lead  title  in  a  money  bill.     As  to  laws  that  re 
to  thefe  peculiar  privileges,  they  now  take  their  rife  indifferently  ci 
in  the   lords  or  commons,  and  when  framed  into  a  bill,  and  approved  by 
both,  are  prefented  to  the  king  for  his  alfent ;  and  this  has  been  the  prac- 
tice for  thefe  two  or  three  hundred  years  pad  f. 

BUT  the  ancient  method  of  pafling  laws  was  different,  and  was  not  only 
more  refpectful  to,  but  left  more  power  in  the  crowm.  The  houfe  which 
thought  a  new  law  expedient,  drew  up  a  petition  to  the  king,  fetting  forth 
the  mifchief,  and  praying  that  it  might  be  redreffed  by  fuch  or  fuch  a  re- 
medy. When  both  houfes  had  agreed  to  the  petition,  it  was  entered  on  the 
parliament-roll,  and  prefented  to  the  king,  who  gave  fuch  anfwer  as  he- 
thought  proper,  either  conferring  in  the  whole,  by  faying,  let  it  be  as  is  dc~ 
Jircd,  or  accepting  part  and  refufing  or  paifmg  by  the  red,  or  refufing  the 
whole  by  faying,  let  the  ancient  laws  be  obfervcd^  or  in  a  gentler  tone,  the 
king  it-ill  deliberate.  And  after  his  anfwer  was  entered  on  the  roll,  the 
judges  met,  and  on  confideration  of  the  petition  and  anfwer,  drew  up  the 
act,  which  was  fent  to  be  proclaimed  in  the  feveral  counties  J. 

LORD  Coke  very  judly  obferves  that  thefe  acls  drawn  up  by  men,  maf- 
ters  of  the  law,  were  generally  exceedingly  well  penned,  fhort,  and  pithy, 

E,e  driking. 

f  Spelman,  voc.  Parlamentum.     Hales  on  Parliaments.     Ellys  on  Temporal  Liberty. 
%  Elfrhge,  on  the  method  of  paffing  bills  in  Parliament.     Gurdon's  lull,  of  Parliament. 


2i8  L  E  C  T  U  R  E  S    ON    THE  LECT.  23. 

ftriking  at  the  root  of  the  grievance,  and  introducing  no  new  ones  ;  where- 
as the  long  and  ill  penned  flatutes  of  later  days,  drawn  up  in  the  houfes, 
have  given  occafion  to  multitudes  of  doubts  and  fuits,  and  often,  in  flop- 
ping one  hole,  have  opened  two.  However,  notwithftanding  this  inconve- 
nience, there  was  good  caufe  for  the  alteration  of  method.  The  judges,  if 
at  the  devotion  of  the  court,  would  fometimes,  make  the  moft  beneficial 
laws  elufory,  by  inferting  a  falvo  to  the  prerogative,  though  there  was  none 
in  the  king's  anfwer  ;  whereas,  by  following  the  prefent  courfe,  the  fubjects 
have  reduced  the  king  to  his  bare  affirmative  or  negative,  and  he  has  loft 
that  privilege,  by  the  difufe  of  petitions,  of  accepting  that  part  which  was 
beneficial  to  himfelf,  and  denying  the  remainder  f. 

I  HAVE  the  rather  mentioned  this  ancient  practice  of  making  laws,  be- 
caufe  it  fhews  how  inconfiftent  with  our  conftitution  is  that  republican  noti- 
on, which  was  broached  by  the  enemies  of  Charles  the  Firft,  that  the  king, 
by  his  coronation  oath,  fwearing  to  obferve  the  laws  quas  vulgus  elegerit^  was 
obliged  to  pafs  all  bills  prefented  to  him,  and  had  no  negative.  The  mean- 
ing, certainly,  only  extended  to  his  obfervation  of  the  laws  in  being.  For 
if  the  words  were  to  be  conftrued  of  future  propofitions,  and  in  the  fenfe 
that  thofe  people  would  put  upon  them,  the  lords  alfo,  as  well  as  the  king, 
muft  be  deprived  of  their  power  of  diflent,  and  fo  indeed,  it  appears,  they 
expounded  it ;  for  when  the  lords  offended  them,  by  refufmg  the  trial  of 
the  king,  they  confidently  enough  with  the  maxim  they  had  eftablifhed, 
turned  them  out  of  doors. 

BUT  though  fuch  as  I  have  mentioned  is  the  conftitution  of  the  Englifli 
parliament,  the  form  of  the  legiflature  in  this  kingdom  hath  been  for  above 
two  hundred  and  fixty  years  very  different,  the  nature  of  which,  and  the 
caufes  of  its  deviation  from  its  model,  it  is  proper  every  gentleman  of  this 
country  mould  be  acquainted  with.  In  the  infancy  of  the  Englifh  govern- 
ment in  Ireland,  the  chief  governors  were  generally  chofen  by  the  king  out 
of  the  lords  of  the  pale,  the  defcendants  of  the  firft  conquerors,  both  as  they 
were  better  acquainted  with  the  intereft,  and  more  concerned  in  the  pre- 
fervation  of  the  colony,  and  alfo  as,  by  their  great  pofleflions,  they  were 
better  enabled  to  fupport  the  dignity  of  the  place,  whofe  appointments,  the 

king's 

•\  Ruffhead's  preface  to  the  ftatutes. 


Lr.cr.  23.  LAWS    OF    ENGLAN 


re  \  (-mo  here'  being  inconfidcrable,  were  fi  governors, 

however,  though  men  of  the  greatdt  al)ilitics,  ;nul  thfulnefs  to 

the  crown,  v/ere  not  able  to  pn  .  nglilh  had  g»:  i 

after  the  conqueft  ;  but  \verc  every  day  lofmg  ground  to  tl.  -,  down 

to  the  reign  of  Edward  the  Third,  which  is  generally,  and,  I  believe,  juilly, 
attributed  to  the  negligence  of  the  Englilh  lords,  who,  by  intcrma:  , 

had  acquired  great  eltates  in  Ireland.     The  power  of  thefc  lord 

,  in  one  refpcft,  likewife  exorbitant,  namely,  in  giving  confent  to  1  = 
without  ever  confulting  his  majcfty,  a  power,  perhaps,  neceffary  at  firft, 
when  the  country  was  in  a  perpetual  (late  of  war,  and  its  intereft  would  not 
brook  delays,  but  certainly,  both  for  the  fake  of  king  and  people,  not  fit 
to  be  continued. 

IT  was  natural,  therefore,  for  the  king,  who  found  hirnfelf  ill  ferved,  to 
change  hands,  and  to  entruft  this  exorbitant  power  with  perfons  not  eflated 
in  the  country,  and  \\hofe  attachment  he  could  confide  in  ;  and  accordingly, 
from  that  time,  we  find  natives  of  England  generally  appointed  to  the  go- 
vernment, to  the  great  difcontent  of  the  Irifh  lords,  who  looked  upon  them- 
felves  as  injured  by  the  antient  practice  not  being  continued.  This  difcon- 
tent was  farther  inflamed  by  a  very  extraordinary  ftep,  which  this  other/wife 
wife  and  juft  king  was  prevailed  upon  to  take,  and  which  firft  gave  rife  to 
that  famous  tliflin&ion  between  the  Englifh  by  blood,  and  the  Englifh  by 
birth.  This  king,  and  his  father  Edward  the  Second,  had  granted  great 
cftates,  and  extenfive  jurifdicYions  to  many  Irifh  lords  of  Englifh  blood,  for 
fervices  pretended  to  have  been  done,  many  of  which,  it  is  probable  enough, 
as  the  king  alledged,  were  obtained  by  deceit  and  falfe  reprefentation  ;  and 
had  he  contented  himfelf  with  proceeding  in  a  legal  courfe,  by  calling 
thefe  patents  in  by  fcire  facias,  and  vacating  them  upon  proof  of  the  deceit, 
no  perfon  could  have  complained  ;  but  he  took  a  very  different  method,  as 
appears  from  the  writ  he  thought  proper  to  iflue  on  that  occafion.  £uia 
p!'!rcs  cxcejfi'vtz  donation?*  terrantm,  tcnementorum  <&  libcrtatum,  in  terra  Hi- 
bcrnitZ-)  ad  minus  vcracem  &  fubdolam  fuggcftionem  pctcntium,  tarn  per  /./- 
iwrd  II.  quam  per  rcgem  mine  foflts  funt^  rex  dclaforias  hujitfinodi  macbina- 
t  tones  "vokns  elidere^  de  concilio  peritarum  fibi  ajfijlentinm,  otnnes  donationes  t:r- 
rarum,  tenemcntorum^  &  Hbertatum  pradiftarum  duxit  rcvGcandas,  quoufque  de 
mentis  ferfonarum,  de  caufis  6"  conditionibus  dinationum  pradittarum  fusrit  in- 

E  e  2  „  formatust 


220 


LECTURES     ON     THE  LECT.  2 


for  mains )  &  ideo,  mandatwn  eft  jufticiariis  regni  Hibernix,  quod  omriia  terras 
tenement  a  6"  libertates  predifta  per  dittos  regis  jufticiarias  aut  locum  tenentes  fuos 
quibufcunque  perfonis  f otto  fcifire  facias.  This  hafty  ftep  alienated  the  Eng- 
lifh  Irifli  from  the  king  and  his  advifers,  and  though,  after  a  conteft  of  ele- 
ven years,  the  king  annulled  this  prefumption,  the  jealoufy  continued  on 
both  fides,  and  the  Irifh  of  Englifh  blood,  were  too  ready  to  follow  the  ban- 
ners of  any  pretender  to  the  crown  of  England. 

IN  the  reign  of  Henry  the  Sixth,  that  weak  prince's  miniflers,  jealous  of 
the  influence  of  Richard  duke  of  York  in  England,  and  of  his  pretenfions 
to  the  crown,  conflitutecl  him  governor  of  Ireland  ;  than  which  they  could 
not  have  done  a  thing  more  fatal  to  their  matter's  family,  or  to  the  confti- 
tution  of  this  kingdom,  as  it  turned  out  in  the  fequel ;  for  to  induce  him  to 
accept  it  fo  eager  were  they  to  remove  him  from  England,  they  armed  him 
almofl  with  regal  powers.  He  was  made  lieutenant  for  ten  years,  had  all 
the  revenue,  without  account,  befides  an  annual  allowance  from  England  ; 
had  power  to  farm  the  king's  lands,  to  place  and  difplace  officers,  and  levy 
foldiers  at  his  pleafure.  The  ufe  the  duke  made  of  his  commiffion  was  ta 
flrengthen  his  party,  and  make  Ireland  an  afylum  for  fuch  of  them  as  mould 
be  oppreffed  in  England  ;  and  for  this  purpofe  paffed  an  aft  of  parliament, 
reciting  a  prefcription,  that  any  perfon,  for  any  caufe,  coining  into  the  faid 
land,  had  ufed  to  receive  fuccour,  tuition,  fupportation,  and  free  liberty 
within  the  faid  land,  during  their  abiding  there,  without  any  grievance, 
hurt,  or  moleflation  of  any  perfon,  notwithstanding  any  writ,  privy  fealv 
great  feal,  letters  miffive  under  fignet,  or  other  commandment  of  the  king, 
confirming  the  faid  prefcription,  and  making  it  high  treafon  in  any  perfon 
who  mould  bring  in  fuch  writs,  and  fo  forth,  to  attach  or  difturb  any  fuch 
perfon.. 

THIS  act,  together  with  the  duke's  popularity,  and  the  great  eflate  he 
had  in  this  kingdom,  attached  the  Englifli  Irifh  firmly  to  his  family,  info-, 
much- that,  in  Henry  the  Seventh's  reign,  they  crowned  the  importer  Lam- 
bert Simnel,  and  were  afterwards  ready  to  join  Perkin  Warbeck  ;  and  by 
this  act  of  the  duke  of  York's  they  thought  to  exculpate  themfelvesf.  But 

when 

-{-  Kennel's  Englifli  Hiftovians,  vol.  2,  p.  587,  606.     Carte,  vol.  2,  p=  828.     Hurr.*-.', 
vol.  z,  and  3= 


Li  i  1.2.;.         LAWS     OF          '.   (J   L  A  N  D. 

\\hcn  that  king  luul  trodden  clown  all  oppofition,  he  took  advantage  of  the 

.irimis  iiuiation  tlicy  were  in,  not  only  to  have  that  a 

deprive   his    rrprelnitatiu-s   there    from    palling    laws    regc   iaconfu/lo,    but 
alii)  to  make  I'uch  u  change  in  the  legiflaturc,  as  would  throw  the  principal 
weight  into  his  and  his  fueceflbrs  hands ;   and  this  was  by  the  famous  la\ 
Poyning'sf.     By  former  laws  a  parliament  was  to  be  holden  once  a  year, 
and  the  lords  and  commons,  as  in  Kngland,  were  the  p:  act, 

intended  to  alter  thcfe  points,  gave  occafum  to  many  doubts  ;  and  inci< 
it  ieems  calculated  for  the  purpofe  of  not  difclofing  its  whole  effect  at  once. 
Its  principal  purport,  at  iirit  view,  ieeming  to  be  intended  to  reflrain  the 
calling  the  parliament,  except  on  fuch  occafions  as  the  lord  lieutenant  and 
council  mould  fee  fome  good  caufes  for  it,  that  fhould  be  approved  by  the 
king.  The  words  are,  that  "  from  the  next  parliament  that  mall  be  hold- 
"  en  by  the  king's  commandment  and  licenfe,  no  parliament  be  holden 
"  hereafter  in  the  faid  land,  but  at  fuch  feafon  as  the  king's  lieutenant  and 
"  council  there  firft  do  certify  the  king,  under  the  great  feal  of  that  land, 
"  the  caufes  and  confiderations  ;  and  all  fuch  acts  as  to  them  feemeth  mould 
"  pafs  in  the  fame  parliament,  and  fuch  caufes,  confiderations,  and  adts> 
"  affirmed  by  the  king  and  his  council  to  be  good  and  expedient  for  that 
"  land,  and  his  licenfe  thereupon,  as  well  in  affirmation  of  the  faid  caufes 
"  and  acts,  as  to  fummon  the  faid  parliament  under  his  great  feal  of  Eng- 
"  land  had  and  obtained ;  that  done,  a  parliament  to  be  had  and  holden 
"  after  the  form  and  effect  before  rehearfed,  and  ajiy  parliament  holdcii 
"  contrary  to  be  deemed  void  {. 

THE  firft  and  great  effect  of  this  act  was,  that  it  repealed  the  law  for 
annual  parliaments,  and  made  the  lord  lieutenant  and  council,  or  the  king 
who  had  the  naming  of  them,  with  his  council  of  England,  the  propofer  to 
the  two  ho.ufes  of  the  laws  to  pafs,  at  leaft  of  thofe  that  fliould  be  fo  de- 
vifed  before  the  meeting  of  parliament.  But  the  great  doubt  was,  as  there 
were  no  exprefs  words  depriving  the  lords  and  commons  of  their  former 
rights,  whether,  when  the  parliament  was  once  met,  they  had  not  (till  the 
old  right  of  beginning  other  bills,  or  whether  they  were  not  reftrained  to 
the  a£ts  fo  certified  and  returned.  By  the  preambles  of  fome  ads,  foon 

after 

f  Lord  Bacon's  life  of  Henry  VII.  ap.  Kennet,  vol.  2.  p.  612. 

t  Iriih  ftatutes,  vol.  i.  p.  23.     Coke,  4.  inftit.  chap.  76. 


222  LECTURES     ON     THE          LECT.  23. 

after  made,  exprefling  that  they  were  made  at  the  prayer  of  the  commons 
in  the  prefent  parliament  afiembled,  one  would  be  inclined  to  think  that 
the  commons,  after  the  affembling  the  parliament,  had  propofed  thefe  laws. 
Certain  it  is,  the  latter  opinion,  fupported  by  the  mmifters  of  the  king  and 
his  lawyers,  gained  ground.  For,  in  the  twenty-eigth  of  Henry  the 
Eight's  reign,  an  aft  was  made  fufpending  Poyning's  law  with  refpect  to 
all  ads  already  pafled,  or  to  be  pafled  in  that  parliament ;  the  palling  of 
which  aft  was  certainly  a  ftrong  confirmation  of  what  was  before  doubtful 
againfl  the  houfe  of  lords  or  commons  in  Ireland,  whether  they  could 
bring  in  bills  different  from  thofe  tranfmitted  by  the  council,  fmce  here 
they  both  confented  to  the  fufpenfion  of  the  ad,  to  make  valid  the  laws 
they  had  pafied  or  mould  pafs  in  that  parliament,  without  that  previous 
ceremony  f . 

BUT  in  the  reign  of  Philip  and  Mary,  by  which  time  this  opinion,  before 
doubtful  (for  fo  it  is  mentioned  in  the  ad  then  made)  was,  however,  to  be 
maintained,  and  ftrengthened,  as  it  added  power  to  the  crown.  The  ad 
we  at  prefent  live  under  was  made  to  prevent  all  doubts  in  the  former, 
which  was  certainly  framed  in  words  calculated-  to  create  fuch  doubts,  to 
be  extended  in  favour  of  the  prerogative.  This  provides,  that  as  many 
caufes  and  considerations  for  ads  not  forfeen  before,  may  happen  during 
the  fitting  of  parliament,  the  lord  lieutenant  and  council  may  certify  them, 
and  they  mould  pafs,  if  they  fhould  be  agreed  to  by  the  lords  and  commons. 
But  the  great  ftrokes  in  this  new  ad  were  two,  the  firft  explanatory  of  part 
of  the  former  in  Henry  the  Seventh's  reign,  that  is,  that  the  king  and  coun- 
cil of  England  fhould  have  power  to  alter  the  ads  tranfmitted  by  the  coun- 
cil of  Ireland ;  fecondly,  the  enading  part,  that  no  ads  but  fuch  as  fo  came 
over,  under  the  great  feal  of  England,  mould  be  enacted  ;  which  made  it 
clear,  that  neither  lords  or  commons  in  Ireland  had  a  right  to  frame  or 
propofe  bills  to  the  crown,  but  that  they  mud  firft  be  framed  in  the  privy 
council  of  Ireland,  afterwards  confented  to,  or  altered  by  the  king,  and  the 
fame  council  in  England,  and  then,  appearing  in  the  face  of  bills,  be  refufed 
or  accepted  in  toto  by  the  lords  and  commons  here  {. 

IT 

^  Irilh  Statutes,  p.  48. 
$  Irifli  Stat.  vol.  i.  p.  143. 


LECT.  23.  LAWS    OF    EN  O  I,  AND. 

IT  is  true,  that  both  lords  and  commons  have  attempted,  and  gained  an 
approach  towards  their  antient  rights  of  beginning  bills,  not  in  that  na 
but  under  the  name  of  Heads  of  Bills,  to  be  tranlmittcd  by  the  council ;  but 
as  the  council  are  the  firft  beginners  of  acts  of  parliament,  they  have  aflumed 
a  power  of  modelling  thefe  alfo.  The  legiflature  of  Ireland  \s,  therefore, 
very  complicated.  Firft,  the  privy  council  of  Ireland,  who,  though  they 
may  take  the  hint  from  the  lords  or  commons,  frame  the  bill,  next  the  king 
and  council  of  England,  who  have  a  power  of  alteration,  and  really  mak 
a  bill,  unalterable,  by  fending  it  under  the  great  feal  of  England  j  then  the 
two  houfes  of  lords  and  commons,  who  muft  agree  in  the  whole,  or  reject 
the  whole  ;  and,  if  it  pafles  all  thefe,  it  is  prefented  to  the  king  for  his  af- 
fent ;  which  indeed  is  but  nominal,  as  it  was  before  obtained. 


L  E  C  T  U  R  E 


224  LECTURES     ON     THE  LECT.  24. 


LECTURE          XXIV. 

Villenage — The  Servi  in  Germany,  mentioned  by  Cafar  and  Tacitus,  the  predecef- 
fors  of  the  Socmen  or  focage  tenants  in  the  feudal  monarchy — Villeins  in  grofs 
and  villeins  belonging  to  the  land  of  the  Lord — The  condition  of  villeins — The 
different  ways  by  which  a  man  may  become  a  villein — The  means  by  which  vil* 
lenage  or  its  effecJs  may  befufpended. 

I  Now  proceed  to  the  loweft  clafs  of  people  that  were  in  a  feudal  king- 
dom, who,  indeed,  were  not  any  part  at  all  of  the  body  politick,  name- 
ly copyhold  tenants,  tenants  in  ancient  demefne,  and  villeins,  on  which  I  (hall 
not  much  enlarge  as  villenage  is  worn  out  both  in  England  and  Ireland ; 
and  though  the  two  former  are  common  in  England,  yet  there  are  none 
fuch  in  this  kingdom.  I  fliall  begin  with  villenage,  though  the  loweft  kind, 
as  I  apprehend  the  other  two  by  the  tacit  confent  of  their  lords,  have  for 
ages,  from  being  villeins  acquired  the  privileges  that  diftinguifhed  them 
from  fuch. 

IN  a  former  lectrue  I  gave  it  as  my  opinion,  that,  while  the  nations  of  the 
north  continued  in  Germany,  there  was  no  fuch  order  of  men  among  them ; 
but  that  the  perfons  among  thofe  people  who  were  called  fervi  by  Csefar 
and  Tacitus,  were  the  predeceflbrs  of  the  focmen  or  focage  tenants  in  the  feu- 
dal monarchy  ;    though  they  certainly  had  not  all  the  privileges  the  focmen 
acquired,  and  that,  after  their  fettlements  in  their  conquefts,  this  rank  was 
introduced,  and  formed  out  of  their  captives  taken  in  war,  in  imitation  of 
the  Roman  flaves.     In  this  I  am  ftrongly  fupported  by  my  lord  Coke,  who 
quotes  Bradon,  Fleta,  and  the  Mirror,  concerning  their  origin,  to  the  fol- 
lowing purpofe  :     "  The  condition  of  villeins  who  pafled  from  freedom  in- 
"  to  bondage  in  ancient  time  grew  by  the  conilitution  of  nations,  and  not 
"  by  law  of  nature  ;  in  which  time  all  things  were  common  to  all,  and  by 
"  multiplication  of  people,  and  making  proper  and  private  thofe  things 
"  that  were  common,  arofe  battles.     And  then  it  was  ordained  by  conftitu- 

"  tion 


LF.CT.  24.  L  A  W  S    OF    E  N  G  I.  A  X  D. 

"  tion  of  nations  (he  means  by  the  tacit  confcnt  of  ci\  !i)  that 

"  none  fliould  kill  another,  but  that  he  that  was  taken  ii;  battle  fhould  re 
'•  main  bond  to  his  taker  lor  ever,  and  he  tu 

"  come  of  him,  his  will  and  pleafure,  as  with  his  bead  or  any  other  ca 
"  to  give,  or  to  fell,  or  to  kill.     And  after,  it  was  ordnincd  for  the  <:n 
"  of  fome  lords,  that  none  fliould  kill  them,  and  that  the  life  and  mem- 
"  bers  of  them,  as  well  as  of  freemen,  were  in  the  handj  .md  protean, 
"  kings,  and  that  he  that  killed  his  villein  fliould  have  the  fame  judjjjv 
"  as  if  he  had  killed  a  freeman  f."     This,  it  falls  alfo  to  be  obferved,  k 
very  account  tin:  Roman  civil  law  gives  of  the  original  of  fervitude. 

VILLF.NAGE,  therefore,  was  a  Rate  of  fervitude,  creeled  for  the  r 
of  doing  the  moft  ignoble,  laborious,  and  fervile  offices  to  the  lord,  accor- 
ding to  his  will  and  pleafure,  \vhenfoever  called  upon  ;  fuch  as  the  inftances 
Littleton  gives,  of  carrying  and  recarrying  dung,  and  fprcading  it  on  his 
lord's  land.     Brafton,  thus  defines  it  purum  villciuginm  $/?,  a  quo  prejlatur 
Jervitium  mccrtum  indeterminatum,  ubifcire  non  poterit  vefpere  quale  fervitium, 
fieri  debct  mane,  viz.  Ubi  quis  facer e  tenet ur  quicquid  ei  praccptum  fuerit.     So 
the  moft  honourable  fervice,  the  military  one,  was  free,  and  its  duties  un- 
certain.    The  next  in  rank,  the  focage  was  free,  and  its  duties  certain. 
This,  the  loweft,  was  fervile,  and  its  duties  uncertain  J. 

OF  thofe  villeins  there  were  two  kinds,  villeins  belonging  to  the  perfon 
of  the  lord  and  his  heirs,  which  our  law  calls  villeins  in  grofs,  and  i-illai:.- 
belonging  to  the  land  of  the  lord,  and  who,  in  confequence  of  the  lands  being 
aliened,  went  over  to  the  new  acquirer,  without  any  fpecial  grant.  Thefe 
were  in  the  Roman  law,  called,  fervi  adfcriptitii  gleba,  that  is,  flavcs  an- 
nexed to  the  foil,  and  by  our  lawyers  'villeins  regardant  to  a  manor;  for  ma- 
nors were,  antiently,  thus  diftributed.  After  the  lord  had  referved  to  him- 
felf  a  demefne  contiguous  to  his  caftle,  fufficient  for  the  purpofe  of  his  houfe 
and  his  cattle,  the  remainder  was  generally  divided  into  four  parts  ;  the  firft 
for  fettling  fuch  a  number  of  military  tenants  as  might  always  more  than  fuf- 
fice  to  do  the  fervice  due  to  the  fuperior  lord  ;  the  fecond  for  focage  tenant?, 
to  plow  the  lord's  demefne,  or,  in  lieu  thereof,  to  render  corn,  cattle,  or 
other  things  as  ftipulated  by  nim  ;  the  third  for  villeins,  for  the  purpofe  of 

F    f  carrying 

f  Coke  on  Littleton,  lib,  2.  ch.  ir.  §  172. 
^  Brafton,  lib.  4.  cap.  28. 


226  LECTURES     ON     THE  LECT.  24. 

carrying  dung,  felling  timber,  making  inclofures,  and  other  fervile  offices, 
as  required  by  the  lord  at  his  pleafure  ;  and  the  laft  mare  of  land,  was  called 
the  ivqfte,  or  common^  being  generally  woodland,  and  coarfe  pafture,  the  wood 
for  the  lord's  hunting,  for  fupplying  him  with  timber  at  his  pleafure,  and  the 
tenants  with  refonable  eftovcrs  as  they  are  called,  out  of  the  woods,  in  thofe 
three  articles,  houfebote  for  the  fupport  of  their  houfes,  Jloughbote,  for  their 
utenfils  of  hufbandry,  zndj'irebote,  for  fewel ;  and  the  pafture  for  the  cattle 
of  all  the  tenants,  military,  focage,  and  villeins  in  common.  This  was  the 
ufual  method  of  diftribution,  not  however  into  equal  parts,  for  the  demefne 
and  wafte  were  generally  much  the  largefl,  nor  always  into  the  fame  num- 
ber of  parts,  for  this  varied  according  to  the  quantity  and  quality  of  the 
land,  whether  better  or  worfe,  and  the  military  fervice  referred,  whether 
lighter  or  heavier  j. 

FROM  this  diftribution  we  may  fee  that,  in  mod  manors,  there  was  land 
which,  having  been  originally  fet  apart  to  the  ufe  of  the  villeins,  was  called 
villein-land,  which  retained  its  name,  and  was  liable  to  the  fame  name, 
and  fervile  fervices,  though  it  had  come  into  the  hands  of  freemen,  who, 
confequently,  though  free,  might  hold  lands  in  villenage,  and  be  obliged  to 
do  the  fame  uncertain  fervices  as  a  villein  was.  Few  freemen  however  we 
may  fuppofe,  would  fubmit  to  fuch  uncertain  burthens,  and  therefore  when 
they  took  fuch  lands,  the  lord  generally  reduced  the  fervice  to  a  certainty, 
and  this  tenure,  becaufe  of  the  low  nature  of  the  duties  they  performed,  was 
alfo,  though  abufively,  called  villenage.  But  fpeaking  with  propriety,  it  was 
focage,  the  tenant  being  a  freeman,  and  the  fervices  certain.  Certainty  of 
fervice  being,  as  I  have  often  mentioned,  the  grand  chara&eriftic  that  dii- 
tmguimed  the  focage  tenure  from  die  military  above  it,  and  from  villenage 
below  it, 

LET  us  now  fee  what  kind  of  property  this  rank  of  people  had"  in  their 
perfons,  their  lands  and  their  chatties  ;  for  from  what  has  been  already  ob- 
i'crved,  foine  kind  of  property  they  muft  have  had,  or  they  could  not  have  per- 
formed the  fervices.  And  the  firft  rule  is,  that,  with  refpedl  to  every  perfon 
but  his  lord  alone,  a  villein  was  perfectly  a  freeman.  His  life,  his  liberty, 
his  property,  were  equally  protected  by  the  law,  as  thofe  of  any  other  per- 

fon. 

f  Reliq.  Spelm.  251.  Baringfon  on  the  ftatutes  270.  et  feq.  Gurdon's  hift.  of  Court-Ba- 
ron and  Court -Leet,  p..  573..  „ 


LF.CT.  24.  L  A  W  S    o  P    E  N  G  L  A  N  D.  227 

ion.  He  could  acquire-,  he  could  alien  property,  lie  could  he  plaintift'in  alt 
kinds  oi"  actions  \\lK-.tlocvrr;  hut  if  defendant  he  ini^ht  plead  his  being  a 
villein.  As  to  his  lord,  his  cafe  was  very  diilerrnt.  Hi>  life,  indeed,  his 
liberty,  his  limbs,  were  under  the  protection  of  the.  king;  and  if  in  t 
he  was  injured  by  his  lord,  the  lord  ihould  be  puniihcd  at  the  fuit  of  the 
king,  as  in  the  cafe  of  any  other  fubjeft,  but  not  at  L  iuit.  II 

ever,  thcie  was  two  excepted  cafes,  \vhere  the  law  (lor  they  mod  certainly 
punidied  the  two  deteftable  crimes  of  murder  and  rape )  r.ave  a  villein  acti- 
ons againft  the  lord,  namely  an  appeal^  that  is  an  accufation  in  his  own 
name  of  murder,  where  the  lord  had  killed  the  villein's  anccflor  ;  and  ap- 
peal of  rape,  where  the  lord  had  ravifhed  his  ncif,  for  fo  a  bond  woman,  or 
ale  villein,  or  ;;/</,  is  called  in  our  law.  And  here  if  the  lord  was  found 
guilty,  the  villein,  or  nelf^  were  by  that  judgment  manumized  for  ever.  For  it 
would  have  been  a  glaring  abfurdity,  to  have  afterward  trufted  them  in  the 
power  of  the  heir  of  that  lord,  whom  they  had  hanged.  Neither  had  a  vil- 
lein, with  refpect  to  his  daughter,  the  fame  power  of  difpofing  her  in  mar- 
riage without  the  lord's  content  as  he  had  of  his  fon.  And  this  diftindYion 
was  founded  upon  folid  reafon,  for  the  fon  of  a  villein,  after  his  marriage, 
and  his  irTuc,  continued  in  the  fame  plight  as  he  was  in  before,  villeins  to  the 
lord;  but  the  daughter,  by  her  marriage,  pafied  into  another  family,  and 
her  uTue  were  either  to  be  freemen,  if  her  hufband  was  free,  or  villeins  to 
the  other  lord,  if  her  hufband  was  fuch  ;  fo  that  the  lord  had  a  very  impor- 
tant interefl  in  his  feeing  his  villein's  daughter  married  to  another  villein  of 
his.  This  previous  confent,  however,  wore  out  by  degrees,  and  by  the 
cuftom  of  particular  places,  a  certain  fine  was  all  that  the  lord  could  claim 
for  the  marriage. 

WITH  refpect  to  the  lands  the  villein  held  from  his  lord,  and  alfo  as  to 
his  chattels,  or  perfonal  fortune,  he  was  only  tenant,  or  pofleifor  at  the  will 
of  the  lord  ;  for  he  the  lord  might  refume  the  one,  or  take  pofTeilion  of  the 
other  whenever  he  pleafed  ;  but  in  the  interim  they  were  the  villeins,  and  he 
might  convert  the  profits  of  them  to  his  own  ufe,  unlefs  they  were  alfo  in 
being  and  feized ;  the  feizure  of  them  being  what  made  the  abfolute  pro- 
perty  in  the  lord.  And  the  cafe  was  the  fame  with  refped  to  purchafes,  or 
acquifitions  of  lands  or  goods  ;  for  before  the  feizure,  or  fome  other  public 
aft  equivalent  thereto,  the  villein  might  alien  them  as  well  as  the  goods  he 
had  held  before  at  the  will  of  the  lord,  and  the  alienation  was  good  againfl 
the  lord,  and  the  reafon  of  this  was  undeniable.  For  it  would  have  put  a 

F  f  2  total 


228  LECTURES     ON     THE  LECT.  24. 

total  flop  to  all  commerce  both  of  goods  and  land,  if  every  buyer  was  obli- 
ged, at  his  peril,  to  make  enquiry,  and  to  take  notice  whether  the  feller 
may  notpoffibly,  in  truth,  be  a  villein  to-fome  one  of  the  many  lords  in  the 
kingdom;  and  it  would  have  been  highly  abfurd  to  allow  the  lord  to  feize 
the  lands,  or  goods  in  the  hands  of  the  purchafer,  when  he  might  feize  the 
purchafe  money  likewife  in  the  hands  of  his  villein,  the  feller  ;  I  fay  it  is  the 
feizure,  or  fome  other  public  act  equivalent  thereto,  that  vefls  the  property 
in  the  lord ;  for,  in  all  cafes,  an  actual  feizure  was  not  poffible.  A  few  in- 
(tances  will  clear  this  up  f. 

IF  the  villein  purchafes  lands  in  poffeffion  in  fee  fimple,  fee  tail,  life,  or 
years,  the  lord  mould,  if  he  had  a  mind  to  make  them  his,  enter,  and  claim 
them  ;  or  if,  for  fear  of  danger,  he  dare  not  enter,  mould  come  as  nigh  to 
the  lands  as  he  dare,  and  claim  them  there.  And  this  was  fufficient  to  veft 
the  eftate  in  the  lord,  according  to" the  nature  of  the  eflate  the  villein  had 
m  it,  and  to  defeat  a  future  purchafer  ;  even  though  the  lord  mould  fuffer 
the  villein  to  continue  in  the  poffeffion.  For  the  purchafer  is  obliged,  at 
his  peril,  to  take  notice  of  all  legal  acts  of  notoriety,  done  refpecting  the 
lands  he  purchafes.  Hut  if  the  villein  purehafes  land  not  in  pofleffion,  as  fup- 
pofe  a  remainder,  or  reverfion,  where  there  is  a  prior  eftate  for  life  or  lives, 
or  in  tail,  in  another  perfon  in  being  ;  here  the  lord  cannot  enter,  for  that 
would  be  dilfeizing,  and  doing  wrong  to  the  immediate  tenant  of  the  free- 
hold ;  and  if  he  waited  till  that  eflate  was  fpent,  and  the  remainder  or  rever- 
fion was  to  come  into  polfeflion,  the  villein  might  have  aliened  them  before, 
and  fo  defeated  his  lord.  He  fhould,  therefore,  in  fuch  cafe,  come  to  the 
land,  and  claim  the  reverfion  or  remainder,  as  his  villein's  purchafe.  And 
this  act  prefently  is  fufEcient  to  veft  them,  the  reverfion  or  remainder  in  him,, 
and  to  defeat  a  future  purchafer.  So  if  a  villein  purchafed  an  advowfon, 
or  prefentation  to  a  living,  where  the  parfon  of  the  church  is  living,  the 
'ord  cannot  prefent,  which  is  the  proper  act  to  gain  pofTeffion.  of  the  advow- 
fon. For  the  church  is  full  of  an  incumbent,  but  he  mail  come  to  the  church, 
itnd  claim  the  advowfon  as  his  villein's  purchafe  ;  and  this  vefls  the  advow- 
ibn  in  him,  and  will  defeat  a  future  alienation  by  his  villein.  In  the  fame 
way  with  refpect  to  goods ;  the  lord  may  either  feize  them,  and  retain  them 
in  his  own  hands,  or  may  come  to  the  place  where  they  are,  and  openly 
claim  them  before  the  neighbours,  and  feize  a  part  of  them  in  the  name  of 

the 
|  Coke  on  Littleton,  lib.  2.  chap   u. 


LECT.  24.         LAWS     OF     ENGLAND. 

the  whole  goods  his  villein  bath-,  and  this  (hall  veft  the  property  in  him, 
though  he  leaves  the  poflcflion  flill  in  his  villein  ;  and  if  he  adiU  the  words 
or  may  have )  it  veils  the  property  of  goods  after  acquired,  though  it  is  ot 
wile  of  lands. 

FROM  this  power  of  the  lord  as  to  his  villein's  property,  it  appears  the 
villein  can  bring  no  action  relative  to  property  againft  him  ;  for  all  fuch  ac- 
tions, being  either  to  recover  the  thing  itfelf,  or  damages  for  the  wrong  done, 
in  both  cafes,  it  would  be  ufelefs,  and  improper.  For,  inafmuch  as  the  lord 
had  right  to  take,  the  taking  could  be  no  injury,  and  to  give  damages  even 
for  a  perfonal  injury  would  be  abfurd  and  nugatory,  fmcc  the  lord  might 
immediately,  as  foon  as  recovered  rightfully,  retake  them  from  his  vellein. 
Therefore  Littleton  fays,  "  a  villein  cannot  have  an  appeal  of  maim  againft 
"  his  lord  that  hath  maimed  him  f ."  For,  as  the  law  then  flood,  maim  was 
only  punifhable  by  fine  and  imprifonment,  at  the  fuit  of  the  king,  or  by  da- 
mages, in  an  appeal  of  maim,  at  the  fuit  of  the  party.  Neither  could  he 
have  an  appeal  of  robbery  againfl  him,  though  that  offence,  with  refpect  to 
freemen,  was  capital  j  for  the  lord  having  a  right  to  take,  could  not  be 
guilty  of  robbery.  However,  there  was  one  excepted  cafe,  wherein  the 
lord  could  not  take  things  out  of  his  own  villein's  hands,  and  wherein  the 
villein  alfo  might  maintain  an  action  againft  him ;  but  then,  in  this  cafe, 
the  villein  acted  not  in  his  own  right,  but  in  that  of  another,  in  autre  droity 
as  our  law  fays,  which  was  when  a  villein  was  made  an  executor.  For  here 
he  acted  not  in  his  own  right,  but  as  reprcfentative  of  his  teftator,  for  the 
performance  of  whofe  will,  and  for  no  other  purpofe,  he  had  allowed  to  him 
this  pofleflion  againft  his  lord,  and  this  right  of  action  againft  him. 

, 

LET  us  now  fee  how  many  different  ways  a  man  might  be  a  villein,  how 
many  ways  the  villenage,  or  its  effects,  may  be  fufpended,  and  how  many 
ways  it  might  be  totally  deftroyed.. 

Now  a  man  might  be  a  villein  either  by  birth,  or  become  fuch  by  his 
own  act.  With  rcfpect  to  birth,  our  law  confiders  only  the  condition  of 
the  father,  whether  free  or  villein,  contrary  to  the  civil  law,  where  the 
maxim  is  partusfiquitur  ventrem.  Our  rule  feems  more  agreeabfc  to  natu- 
ral 

f  Lib.  2..§  194. 


230  LECTURES    ON     THE  LECT.  24. 

ral  reafon,  as  the  hulband  is  matter  of  the  family,  the  head  of  the  wife, 
and  fuppofed,  at  leaft,  the  principal  party  in  the  production  of  the  offspring. 
Yet  the  Roman  law  is  not  therefore  to  be  charged  with  abfurdity,  it  pro- 
ceeding on  a  principle  peculiar  to  itfelf,  namely,  that  they  allowed  no  ma- 
trimony but  between  free  p~rfons ;  a  cohabitation  between  two  flaves,  or 
between  a  flave  and  a  free  perfon,  was  called  Gontubernium,  not  Nuptia, 
nor  Matrimonium  j  and  to  fuch  a  commerce  their  law  did  not  give  fuch  con- 
tinuance, or  entire  credit,  as  to  prefume  the  father  to  be  certain.  A  free- 
woman  who  fo  far  difgraced  herfelf  as  to  cohabit  with  a  flave,  they  fup- 
pofed equally  guilty  with  others  ;  and  therefore,  as  the  father  was  uncer- 
tain, in  favorem  tibertatis,  they  prefumed  him  a  freeman.  And,  on  the 
contrary,  though  a  freeman  cohabited  with  a  flave,  that  law  gave  no  credit 
to  her  conflancy,  but  rather  fuppofed  the  ifiue  begat  by  one  of  her  own 
rank,  another  flave.  But  in  England,  if  the  father  was  free  or  flave,  the 
iflue  was  fo ;  for  our  law  admitting  fuch  marriages  as  good  ones,  upon  the 
maxim,  ivbom  God  hath  joined  let  no  man  funder^  gave  them  an  entire  cre- 
dit. What  then  fliall  we  fay  was  the  cafe  of  baft-ards^  where  the  father  was 
entirely  unknown,  and  who  were  filii  nullius.  Some  old  opinion  in  Eng- 
land indeed  held,  that  if  the  mother  was  a  neif,  becaufe  fhe  was  certain,  the 
iffue  fhould  be  a  villein;  but  this  doctrine  was  exploded,  and  it  was  fet- 
tled that,  as  the  child  was,  by  our  law,  to  follow  the  rank  of  his  father,  and 
who  that  was,  was  entirely  uncertain,  it  fhould  be  univerfally  prefumed  in 
favour  of  liberty,  that  the  father  was  a  freeman,  whatever  the  mother  was. 
A  baflard,  therefore,  could  not  be  a  villein,  but  by  his  own  acl  ;  and  how 
a  man  could  become  fo  I  fliall  next  proceed  to  fhew  |. 

THERE  was  then  but  one  way  for  a  freeman  born  to  become  a  villein,  I 
mean  in  the  latter  ages,  when  the  practice  of  making  flaves  of  captives  ta- 
ken in  war  went  into  dilute,  and  that  was  by  his  admifTion  and  confeflion. 
For  volenti  nonfo  injuria  is  a  maxim  of  all  laws,  and  in  the  antient  times  of 
confufion,  it  might  be  an  advantage,  at  fome  times,  to  a  poor  freeman  to 
put  himfelf,  even  in  this  law  manner,  under  the  protection  of  a  lord  that 
was  both  powerful  and  humane.  But  fo  careful  was  the  Englifh  law  of  li- 
berty that  it  did  not  allow  every  confeflion  or  admiflion  to  conclude  againft 
a  man's  liberty,  but  fuch  an  one  only  as  could  not  proceed  from  miftake,  in- 
advertence, 

f  Littleton,  §  187,  188. 


LECT.  24.         LAWS     OF     ENGLAND. 

advertence,  or  conftraint.  Tlic  confcflion  muft  be  made  in  a  court  of  re- 
cord,  and  entered  on  record.  Then  indeed  was  it  conclufwe,  for  it  is  a 
maxim  oi'  our  law,  that  there  is  no  averring  againft  a  record,  that  is,  char- 
ging it,  or  the  contents  thereof,  with  falfelmod.  For  if  that  could  be,  pro- 
pei  ty  could  never  receive  a  final  determination,  nor  a  man  be  certain 
the  fuit  that  he  had  obtained  might  not  be  renewed  againft  him  f. 

BUT  the  law  went  farther  in  its  precautions,  and  would  not  fuller  any 
confeflion,  even  in  a  court  of  record,  to  deftroy  liberty.  If  a  man  came  vo- 
luntarily into  fuch  a  court,  and  made  an  extrajudicial  confeflion,  that  ia 
where  there  was  no  fuit  depending,  and  contefted  in  that  court,  it  could 
not  bind  him.  The  confeflion,  to  bind,  mud  be  made  in  fuch  a  court,  and 
in  a  fuit  litigated  there  ;  fo  that  there  might  be  no  room  afterwards  for  pre- 
tending furprize,  error,  conftraint,  or  terror.  Thus,  if  a  flranger  brought 
any  action  againft  a  man  (for  if  the  lord  brings  any  action,  except  one  kind 
only,  againft  his  villein,  he  the  villein,  is  thereby  manumized,  as  I  fhall  ob- 
ferve  hereafter)  I  fay,  if  a  ftranger,  A,  brought  an  action  againft  B,  and  B, 
to  bar  A,  of  his  action,  pleads  on  record,  as  he  may,  that  he  is  villein  to  C, 
this  confeflion  mail  bind  him,  and  he  fhall  be  C's  villein,  though  he  was  in 
truth  a  freeman  ;  yea  though  A,  in  that  very  action,  had  replied  that  B 
\vas  a  freeman,  and  had  even  proved  him  fuch  :  And  indeed  this  was  but  a> 
juft  punifhment  for  his  fraudulent  attempt  to  deprive  A  of  his  action. 

AGAIN,  if  a  lord,  claiming  a  man  to  be  his  villein,  bring  the  writ  called 
naiivo  babcndo,  the  proper  one  to  prove  this  fact,  that  the  defendant  was 
his  villein,  and  the  defendant  confefles  himfclf  judicially  fo  to  be,  he  and  his 
hTue  are  bound,  though  he  was  free  before ;  or  if  the  defendant,  in  fuch 
cafe,  pleads  he  is  a  freeman,  and  the  lord,  to  prove  him  his  villein,  produ- 
ces the  defendant's  uncles,  or  coufins-,  who  fwear,  that  they  and  their  an- 
ceftors,  from  time  immemorial,  or  from  a  time  antecedent  to  the  ftrparation 
of  family,  have  been  villeins  to  that  lord  and  his  anceftors,  whatever  In- 
comes of  the  original  fuit,  they  themfelves  thenceforwards  arc  the  lord's 
villeins  ;  and  though  they  were  in  truth  free,  it  is  but  a  juft  punifhmcnt,  a.* 
I  obferved  before,  for  their  foul  attempt  of  reducing  their  kinfman  to  flaven  . 
However,  as  we  inuft  allow  that  every  man  is  fond  of  his  own  and  his  po- 
rter 

I  Littleton,  §  174, 


232  LECTURES     ON     THE  LECT.  24. 

fterity's  liberty,  we  muft  accordingly  believe  that  thefe  inftances  of  freemens 
becoming  ilaves  voluntary  were  very  rare,  and,  that  the  majority  of  villeins 
were  fuch  as  were  fo  by  birth.  Before  I  leave  this  head,  I  fhould  obferve 
that,  with  refpect  to  the  iffue  of  men  becoming  villeins  by  their  own  con- 
feffion,  the  ifTue  born  after  the  confemon  alone  were  bond,  as  being  fo  born, 
and  that  the  children  born  before,  retained  the  liberty  they  had  acquired  by 
their  birth. 

VILLENAGE  could  not  only  be  totally  deftroyed  by  many  means,  but  alfo 
might  be  fufpended  for  a  time,  and  afterwards  revive.  The  fufpenfion  arofc 
from  fome  fubfequent  obligation  the  villein,  or  nief,  happened  to  lie  under, 
which  the  law  confidered,  and  favoured  more  than  the  lord's  right  in  his  vil- 
lein, or  nief ;  therefore,  if  the  king  made  a  villein  a  knight,  fuch  a  creation, 
being  for  the  defence  of,  and  to  encreafe  the  military  ftrength  of  the  realm, 
and  the  perfon  obliged  to  ferve  accordingly,  his  (late  of  villenage  was  fu- 
fpended, not  deftroyed.  For,  if  he  was  afterwards  degraded  from  his  order, 
he  became  the  lord's  villein  again,  fo  if  a  villein  became  a  monk  profeffed, 
now  was  he  obliged  to  live  entirely  in  his  monaftery,  and  fpend  his  time  in 
prayers,  and  other  fpiritual  exercifes,  duties  inconfiftent  with  his  fervice  as 
a  villein  ;  and  thofe  being  performed  to  God  were  preferred  to  the  intereft 
of  the  lord  ;  but  if  fuch  monk  was  deraigned,  that  is,  degraded  from  his 
•order,  and  turned  out  of  his  monaftery,he  became  a  fecular  man  again,  and 
the  lord's  right  revived.  But  if  a  villein  is  made  a  fecular  prieft,  he  not 
being  confined  to  a  monaftery,  nor  his  whole  time  dedicated  to  the  fervice 
of  God,  he  is  ftill  a  villein  and  obliged  to  attend  his  lord  at  all  times,  when 
the  ftated  times  or  occafions  of  his  new  duty  do  not  employ  him.  So  if  a 
nief  marries  a  freeman,  the  right  of  the  hufband  in  his  wife,  as  founded  on 
the  law  of  God  and  nature,  is  preferred  to  the  lord's,  though  prior,  which 
is  founded  only  on  the  conftitutions  of  nations  :  She,  therefore,  is  priviled- 
ged,  and  a  free  woman  during  the  coverture ;  but  if  the  hufband  dies,  or 
a  divorce  happens,  then  is  fhe  a  nief  again.  But  it  may  be  afked,  fhall  the 
lord  thus,  without  any  fault  of,  or  confent  from  him,  be,  by  the  ad  of 
others,  deprived,  even  for  a  time,  of  his  right  in  his  villein,  and  the  advan- 
tage thence  arifing  ?  I  anfwer,  though  the  law,  for  the  public  good,  fufpend* 
ed  the  villenage,  it  did  not  leave  the  lord  without  redrefs  for  the  wrong 
done  unto  him.  For,  in  the  cafes  of  profeffion  and  marriage,  the  lord  mall 
have  his  acTion  againft,  and  recover  the  damages  he  may  fuftain,  from  the 

abbot 


LECT.  24.  LAWS    OF    EN  GL  AN  I).  233 

abbot  who  had  admitted  his  villein  a  monk,  or  the  hufband  who  married 
his  nief ;  but  againft  the  king  who  has  knighted  his  villein,  he  cannot  have 
an  acYion,  for,  according  to  the  principles  of  the  feudal  law,  to  bring  an 
adion  againft  the  king  is  a  breach  of  fralty  :  it  is  charging  him  \vith  in- 
juflicc,  and  with  breaking  that  mutual  bond,  whereby  he  is  tied  to  his  vaf- 
fals  as  ftriclly  as  they  are  tied  to  him.  But  he  (hall  not  be  without  reme- 
dy. He  mail  have  his  action,  and  recover  damages  againft  thole,  who  by 
their  aid,  advice,  counfel,  or  recommendation  prevailed  on  the  king  to 
make  his  villein  a  knight.  Coke  mentions  two  cafes  more,  wherein  I  can- 
not fay  fo  fully  as  he  fays,  \hftJrfienagc  itfilf'is  fufpended,  as  that  the  effefls 
thereof  are  fufpended,  as  to  a  certain  place  ;  and  both  thefe  arc  in  honour 
of  the  king,  one  is  when  a  villein  efcapes  from  his  lord,  and  has  continued 
for  a  year  and  a  day  in  the  demefne  of  the  king,  doing  fervicc  to  him  as 
his  villein.  The  lord  can  neither  feize  him,  nor  even  bring  a  writ  of  nal'rvo 
babendo  againft  him  while  he  continues  in  the  royal  demefne.  The  other 
is  where  a  villein  is  made  a  fecular  prieft  in  the  king's  chapel.  The  lord 
cannot  feize  him  in  the  preience  of  the  king  f. 

WE  mall  next  have  a  more  agreeable  fubjecl,  and  by  confidering  the  ma- 
ny ways  the  law  of  England  hath  contrived  to  deflroy  villenage,  have  the 
pleafure  of  obferving  its  natural  bent  toward  the  equal  liberty  of  mankind, 
and  how  it  rejoiced  to  make  off  the  fhaklcs  of  fervitude,  even  in  thofe  days 
when  it  admitted  it. 


Coke  on  Littleton;  lib.  2.  cli.  i  r. 


Gg  LECTURE 


234  L  E  C  T  U  R  E  S    ON     THE  LECT.  25. 


LECTURE         XXV. 

methods  invented  to  deftroy  villenage—The  bent  of  the  law  of  England 
towards  liberty — Copyhold  tenants'—Tenants  in  ancient  demefne. 

RELATIVE  to  villenage,  the  following  are  the  words  of  the  antient  judge 
Fortefcue,  who  wrote  a  treatife  on  the  grounds  of  the  Englifh  law,  for 
the  inftruction  of  his  pupil,  the  unfortunate  fon  of  the  unfortunate  king 
Henry  the  Sixth.  Ab  bomine,  &  pro  vitio  introducla  eft  fervitus  ;  fed  libertas 
a  Deo  hominis  eft  indita  natura.  Quare  ipfa  ab  homine  fublata  femper  redire 
glifcit,  utfacit  omne  quod  libertate  naturali  privatur  *.  We  are  now  to  fee 
how,  and  in  how  many  ways,  our  law  favours  this  natural  propeniity  to  li- 
berty. And  the  firfl  and  plaineft  is  a  direct  enfranchifement,  or,  as  the  Ro- 
mans called  it,  ?nanumiffion.  This,  in  the  ancient  times,  before  writing  was 
common,  ufed  to  be  done,  as  all  their  important  acts,  (for  the  better  pre- 
ferving  them  in  memory)  in  great  form.  £>ui  fervum  fuum  liberumfacit,  in 
ecclefia,  vet  mercato,  vel  comitatu,  vel  bundredo,  (that  is,  the  county  court  or 
hundred  court)  coram  teftibus^  6"  palamfaciat^  et  liberas  ei  vias,  &  portas  con- 
fcribit  apertas^  6*  lanceam,  &  gladium,  vel  qua  liberorum  arma  in  manibus  ei 
ponat  f .  But  after  the  ufe  of  writing  became  common,  the  method  was  by 
the  lord's  deed  (mentioning  him  to  be  his  villein,  and  exprefsly  infranchifing 
him)  fealed  by  the  lord's  feal,  and  attefled  by  proper  witnefles,  as  other 
deeds  between  freemen  mould  be  {. 

BEFORE  I  go  farther,  I  mould  obferve  the  favour  of  the  Englifh  laws  to 
liberty  in  that,  by  it  all  manumifiion,  of  what  kind  foever,  was  abfolute  and 
irrevocable.  Once  a  freeman,  and  ever  fo  j  whereas  by  the  civil  law,  a  freed - 
man  was  bound  to  many  duties  towards  his  patron.  A  relation  between  them 
ftill  fubfifted,  and  if  he  was  guilty  of  ingratitude,  that  is,  of  any  of  the 
many  offences  their  law  marked  as  fuch,  he  was  again  to  be  reduced  to 
flavery. 

BUT 

*  Cap.  42.  |  Formulate  Anglicanum,  tit.  Grants  and 

t  Wilkins,  Leg.  Anglofax.  Manumilfions  of  Villeins. 


LECT.  25.  L  A  WS    o?    E  N  G  L  AN  D.  235 

BUT  bcfidcs  this  fpccics  of  exprefs  enfranchifemcnt,  there  were  many 
implied  ones.  Firfl,  by  the  aft  of  the  lord  alone,  and  others  by  conflruc- 
tion  of  law,  upon  the  aft  cither  of  lord  or  villein.  By  the  aft  of  the  lord 
alone,  namely,  if  he  had  entered  into  any  folcmn  certain  contraft  with  big 
villein,  giving  him  thereby  either  a  permanent  right  of  property,  or  a  power 
to  bring  an  aftion  againll  his  lord.  In  fuch  cafes  he  was  inltantly  manu- 
mized,  without  exprcfs  words;  for,  otherwife,  he  could  not  have  the  be- 
nefit of  the  gift  intended,  and  the  lord's  aft,  in  fuch  cafes,  fliould  be  con- 
llrued  mofl  flrongly  againfl  himfclf.  As  if  the  lord  gives  land  to  his  villein 
and  his  heirs,  or  to  him  and  the  heirs  of  his  body,  or  to  him  for  life  ;  im- 
mediately on  the  giving  livery  and  feizin,  which  was,  as  1  have  often  ob- 
ferved,  what  compleated  an  eflate  of  freehold,  and  made  it  irrevocable,  the 
villein  became  free.  Otherwife  he  could  not  enjoy  the  benefit  of  the  grant, 
or  proteft  it  againfl  his  lord. 

THE  fame  was  the  cafe  if  the  lord  gave  him  any  certain  property,  as  a 
bond  for  payment  of  a  fum  of  money,  or  a  yearly  annuity,  or  a  leafe  of 
lands  for  years.  The  villein  could  not  fecurely  enjoy  the  benefit  of  the 
gift,  without  being  able  to  bring  an  aftion  againfl  his  lord,  and  confequent- 
ly  being  free  againfl  him.  Yea,  though  the  annuity  or  leafe  of  land  was 
but  for  years,  the  manumiflion  was  abfolute  for  ever,  and  not  fufpended 
for  the  years  only  ;  which  was  different  from  the  cafes  I  put  in  my  lafl  lee 
ture,  of  villenage  being  fufpended  by  the  aft,  not  of  the  lord,  but  anothci 
perfon;  but  here  where  the  lord  himfelf,  by  his  own  aft,  fet  him  free, 
though  but  for  a  time,  he  was  free  for  ever.  But  if  the  lord  gave  his  vil- 
lein lands  to  hold  at  will ;  this  being  of  the  fame  nature  with  the  proper 
holdings  of  villeins,  and  the  lord  having  referved  in  his  own  breafl  a  power 
of  oufling  whenever  he  pleafed,  the  villein  gaining  thereby  no  certain  pro- 
perty, he  continued  in  his  former  fituation* 

SECONDLY,  a  man  may  be  enfranchifed  without  exprefs  words,  by  con- 
ftruftion  of  law,  operating  on  the  aft  either  of  the  lord  or  villein.  If  a  lord 
had  a  mind  to  difpoflefs  his  villein  of  lands,  or  of  goods,  he  had  a  right  to 
enter  on  the  lands,  or  feize  the  goods,  without  ceremony  ;  but  if,  waving 
this  right,  he  brought  an  aftion  againfl  him  for  them,  or  if  he  brought  not 
any  aftion  perfonal  againfl  him,  but  the  one  of  Natiw  Habendo,  the  villein 

G  g  2  was 


236  L  E  C  T  U  R  E  S     ON     THE  LECT.  25. 

was  enfranchifed,  whether  the  lord  recovered  or  not,  or  whether  he  profe- 
cuted  the  action  or  not.  For  when  he  omitted  the  eafy  remedy  the  law 
appointed,  and  brought  his  villein  into  court  to  defend  his  right,  he  admit- 
ted him  to  be  a  perfon  that  could  Hand  in  judgment  againfl  him,  and  liti- 
gate with  him  ;  that  is,  to  be  a  freeman.  But  it  muft  be  obferved  this  en- 
franchifement  did  not  commence  immediately  from  the  taking  out  the  writ, 
which  was  the  commencement  of  the  action,  but  from  the  appearance  of 
both  plaintiff  and  defendant,  and  this  for  the  benefit  of  the  lord  ;  for  other- 
wife,  as  Coke  obferves,  a  ftranger,  by  collufion  with  a  villein,  might  take 
out  an  action  againfl:  him  in  his  lord's  name.  To  which  I  may  add,  that 
the  lord  might  have  intended  his  action  againfl  a  freeman  of  the  fame  name 
with  the  villein,  and  the  merifF  might  have  fummoned  the  villein  by  miftake. 
In  this  cafe  it  was  hard  that  the  lord  fhould  fuffer.  He  therefore  might, 
when  he  faw  the  villein  ready  to  appear,  nonfuit  himfelf,  that  is,  decline 
appearing ;  and  then  the  villein  could  not  appear,  and  therefore  was  not 
enfranchifed.  But  if  he  went  on,  and  fuffered  his  villein  to  appear,  and 
confequently  enabled  him  to  plead  againfl  him,  he  mud  have  abided  by  the 
confequences  of  his  own  folly,  and  his  nonfuiting  himfelf  afterwards  could 
in  no  fort  avail  him  |. 

A  VILLEIN  might  likewife  be  manumitted  by  his  lord's  bringing  a  criminal 
action  againfl  him,  though  this  was  no  admiffion  of  permanent  property  in 
him,  or  of  his  capacity  of  flanding  in  law  againfl  him  as  a  freeman  j  as  if 
the  lord  brought  an  appeal  of  felony,  as  of  murder,  or  robbery,  againfl 
him.  If  he  was  acquitted  he  might  be  enfranchifed,  becaufe  he  might  be 
entitled  to  recover  damages  for  the  malicious  profecution,  and  the  danger 
his  life  had  been  in ;  and  damages  he  could  not  recover  without  being  a 
freeman.  I  fay  might  be  enfranchifed,  becaufe  he  might  recover  damages. 
For  in  this  cafe  a  diflinction  is  to  be  taken,  whether  the  villein  was,  before 
the  appeal  brought,  indicted  at  the  fuit  of  the  king  for  the  fame  offence,  or 
was  not.  If  he  was  not,  the  acquittal  mewed  the  profecution  to  be  mali- 
cious, and  the  villein  was  entitled  to  recover  damages,  and  fo  to  be  free.  But 
if  he  had  been  indicted,  there  were  no  grounds  to  fuppofe  the  appeal  brought 
malicioufly.  The  finding  the  indictment  by  the  grand  jury  was  a  prefump- 
tion  of  his  guilt.  The  lord  had  a  rational  ground  for  bringing  his  appeal, 

and 
f  Hickef.  diflert.  epift.  p.  13.  et  feq.  Brady's  hift.  p.  82.  Fitzherbert's  natura 

brevium,  p.  187,  189,  190.     Cosvell's  interpreter,  voc.  copiehould.    Coke  on  Littleton, 

lib.  2.  chap.  ii. 


LECT.  25.         L  A  W  S     OF     E  N  G  L  A  N  D.  237 

and  he  had  a  right  to  bring  it  for  tin-  juiniflimcnt  of  his  villein,  if  guilty. 
Othervvife  he  could  not  have  him  hauled,  lor  tin-  indictment  at  the  king's 
fuit  might  not  be  profccutcd,  or  the  king  might  pardon.  In  fuch  cafe, 
therefore,  there  being  no  malice  prcfumed,  the  law  gave  no  damages,  and 
confequently  no  enfranchifcmcnt.  But  the  lord's  bringing  the  lied 

A'tj//V'i  h.ihcndo  againfl  his  villein,  namely,  claiming  a  man  to  be  his,  as  fuch, 
was  no  enfranchifement,  for  that  would  defeat  the  ends  of  the  fuit ;  and  the 
law  allowed  the  lord  a  power  to  feize  his  villein  without  further  cercnv 
it  did  not  precifely  compel  him  to  that  method  only,  for  hi:;  villein   might 
be  at  too  remote  a  diflance,  or  under  the  protection  of  perfons  too  pov 
ful.     But  if,  after  appearance,  the  lord  fufiered  himfelf  to  be  nonfuited,  in 
this  action,  it  was  an  enfranchifement. 

THE  law,  likewife,  enfranchifcd  in  fomc  cafes  on  the  act  of  the  villein 
himfelf,  as  if  the  lord  had  been  found  guilty  in  an  appeal  of  murder,  brought 
by  his  villein,  or  of  rape  by  his  nief  j  but  thefe  I  mentioned  in  the  lafl  lec- 
ture, and  the  reafon  is  apparent. 

BY  all  thefe  various  ways  the  number  of  villeins  infenfibly  diminimed, 
and  the  number  of  freemen  continued  to  encreafe  in  every  reign  ;  but  what 
gave  the  finifhing  flroke  to  fervitude  were  the  confufions  occafioned  by  the 
two  contending  houfes  of  York  and  Lancafter ;  when  the  whole  kingdom 
was  divided,  and  every  lord  obliged,  even  for  his  own  fecurity,  to  take  part 
with  one  fide  or  the  other  ;  and  when  once  engaged,  neceflltated  to  fupport 
his  party  with  his  whole  force.  Villeins  were,  therefore,  emancipated  in 
prodigious  numbers,  in  order  to  their  becoming  foldiers.  Many  of  fuch, 
alfo,  who  had  not  been  formerly  emancipated,  in  thofe  times  of  diftraction, 
fled  for  felf-prefervation  to  London,  and  other  cities,  where,  being  abfent 
from  their  lords,  they  were  looked  upon  as  free  ;  and  where  they  generally 
continued,  even  after  thefe  troubles  had  ceafed,  unknown  to  the  heirs  of 
the  antient  lords  ;  and  in  confequence,  for  want  of  proof  of  their  fervitude 
within  fifty  years  lad  pafl,  (which  was  the  time  of  limitation  for  this  action) 
mod  of  them  and  their  poflerity  became  free.  When  things  afterwards 
became  compofed,  under  Henry  the  Seventh,  many  of  thefe  perfons  were 
by  the  heirs  of  their  former  lords  reclaimed,  and  recovered  as  villeins,  though, 
undoubtedly,  the  far  greater  part  efcaped  undifcovered.  But  even  in  thole 

actions 


23$  LECTURES     ON     THE          LECT.  25. 

actions  that  were  brought,  both  judges  and  juries  were  very  favourable  to 
the  perfons  claimed ;  the  juries  out  of  favour  to  liberty,  and  the  judges,  I 
prefume,  following  the  policy  of  that  reign,  one  of  the  great  objects  of  which 
was  the  depreffion  of  the  great  lords  ;  to  which  nothing  could  more  con- 
tribute than  the  lefiening  the  number  of  the  perfons  who  were  held  in  fuch 
ftrict  dependance  by  them,  and  the  profits  of  whofe  induftry  they  had  right 
to  fcize,  and  to  encreafe  their  \vealth  and  theirfpower  -}v 

ANOTHER  thing  which  had,  long  before  that  period,  Icflened  their  num- 
bers, was  the  rife  of  copyhold  tenants.  Thefe  are  perfons  who  are  faid  to 
hold  lands  at  will,  but  according  to  the  cuftom  of  a  manor  ^  and  thofe  arofe  from 
the  villenage  tenants,  as  I  conceive,  by  the  following  means.  When  a  fuc- 
ceflion  of  mild  and  humane  lords  had  neglected,  for  a  long  time,  to  feize 
their  villeins  goods,  or  to  exact  villein  fervice,  fo  that  no  memory  remain- 
ed of  their  having  made  ufe  of  fuch  a  practice,  they  came  to  be  confidered  in 
another  light,  and  became  exempted  from  that  feizure  by  prefcription.. 
For  the  lord  claiming  a  villein  in  a  nativo  babendo,  muft  plead,  and  prove, 
that  he,  or  his  anceftors,  had  exacted  fuch  fervices,  from  the  perfon  claimed, 
or  his  anceftors,  otherwife  he  failed.  Therefore,  in  the  cafe  I  have  menti- 
oned, though  a  future  lord  had  an  inclination  to  depart  from  the  practice  of 
his  predeceffors,  and  revive  his  rights,  he  could  not  recover  them  for  want 
of  proof;  and  thefe  perfons  fo  long  indulged,  became  freemen.  However 
their  lands,  (they  being  only  tenants  at  will)  might  ftill  be  refumed,  until, 
at  laft,  they  got,  likewife,  by  the  fame  kind  of  prefcriptioh,  a  permanent 
right  in  them  alfo,  in  the  way  I  now  mall  relate.. 

IF  a  lord  had  given  his  villein  any  certain  eftate,  it  was,  as  I  before  ob- 
ferved,  an  abfolute  manumiffion  for  ever.  But  fome  lords,  either  in  re- 
ward for  fervices  done,  or  out  of  bounty,  gave  many  of  thofe  underling  te- 
nants, if  not  an  abfolute  right  to  their  holdings,  at  leaft,  a  fair  claim  and 
title  to  a  permanent  eftate,  which,  in  honour,  the  lord  or  his  heirs  could 
not  defeat,  and  yet  kept  them  in  a  particular  kind  of  dependance,  between 
freedom  and  abfolute  villenage.  But  the  queftion  was  how  this  was  to  be 
done ;  for  if  the  lord  had  given  him  a  deed,  to  affure  him  the  lands,  and  fo 
entered  into  a  contract  with  him,  he  was  entirely  emancipated.  The  way 
was  then  for  the  lord  to  enter  into  the  roll  of  his  court,  wherein  he  kept  the 

lift 
f  Carte,  hift.  of  England,  vol.  2.  p.  844.  845.  846. 


LECT.  25.         L  A  W  S    OF     E  N  G  L  A  N  D.         239 

lift  of  his  tenants,  that  lie  had  given  fuch  an  one  an  eflate  at  will,  to  hold  to 
him  and  his  heirs,  or  to  him  and  the  heirs  of  his  body,  or  to  him  for  life  or 
years ;  and  thefe  directions  being  conftantly  complied  with,  grew  by  length 
of  time  into  eftablifhed  rights,  and  they  came  to  be  called  tenants  at  will,  ac- 
cording to  the  ciiflom  of  the  manor, 

THEY  were  flill  called  tenants  at  will,  becaufe,  they  had  been  originally 
fuch,  for  they  were  never  confidered  as,  nor  called,  freeholders,  until  very 
lately,  in  one  inftance,  they  were  admitted  to  vote  for  members  of  parlia- 
ment, and  their  votes  allowed  by  the  houfe  of  commons.  This  decifion 
was  greatly  exclaimed  againft  by  the  tories,  who  were  foiled  by  this  recep- 
tion, as  proceeding  from  a  fpirit  of  party,  and  as  being  contrary  to  the  rules 
of  the  antient  law,  as  it  certainly  was.  But,  on  the  other  hand,  it  was  agree- 
able to  common  reafon  and  juftice,  and  to  the  fpirit  and  principles  alfo, 
though  not  to  the  practice  of  the  antient  conftitution.  For  when  Edward 
the  Firft  lays  down  this  maxim,  qua  ad  omnes  pertinent  ab  omnibus  debent 
traftariy  what  reafon  can  be  afligned  why  a  copyholder  for  life,  who  has  a 
valuable,  and  as  certain  eftate,  in  fact,  as  a  freeholder,  though  called  by  a 
different  name,  and  who  contributes  equally  to  the  taxes  and  expences  of 
the  government,  mould  not  have  equal  privileges,  and  be  equally  intitled  to 
be  reprefented.  They  are  called  copyholders,  from  the  evidence  they  had  of 
their  titles.  The  evidence  that  freemen  had  of  their  cftates  in  land  was  ei- 
ther a  deed,  if  the  grant  was  by  deed,  or  if  it  was  without  deed,  the  livery 
andfeizen,  attefted  by  the  witnefles  prefent ;  but  the  copyholder  had  no 
deed,  neither  was  livery  and  feizen  given  to  him,  as  he  was  originally  but  a 
tenant  at  will.  His  evidence,  therefore,  was  a  copy  of  the  rule  entered  in 
the  lord's  court  roll,  which  was  his  title,  and  from  hence  was  he  named 
copyholder  f . 

THE  peculiarities  attending  this  kind  of  tenure,  that  diftinguifiicd  it  from 
other  tenures,  arofe  from  their  being  confidered  as  tenants  at  will.  Hence 
arofe  that  antient  opinion,  that  if  a  lord  oufted  his  copyholder,  he  could 
have  no  remedy  by  action  in  the  king's  court  againft  him  :  But  had  this 
been  the  law  that  fince  prevailed,  all  copyholders  had  been  long  fince  de- 
ftroyed.  Therefore,  in  Edward  the  Fourth's  reign,  it  came  to  be  fettled, 

that 

f  Fitzherbert's  natura  brevium,  p.  28.     Kitchen  on  Courts. 


240  LECTURES     ON     THE  LECT.  25. 

that  if  the  lord  turned  out  his  copyholder,  he  might  well  maintain  an  action 
of  ejectment  againfl  him,  as  a  tenant  for  years  could,  or  elfe  they  might  fue 
the  lord  in  equity  to  be  reftored. 

FROM  the  fame  principle  of  its  having  been  an  eftate  at  will,  arofe  the 
right  of  the  lord  to  a  fine,  upon  the  change  either  of  lord  or  tenant ;  upon 
the  change  of  the  lord  by  the  act  of  God  only,  that  is  by  his  death  ;  upon 
the  change  of  the  tenant,  either  by  the  act  of  God,  by  his  death  ;  or  by  his 
own  aft,  by  his  alienation.  But  the  tenant  paid  no  fine  on  the  lord's  aliena- 
tion ;  for  if  he  was  fo  to  do,  he  might  be  ruined  by  being  frequently  char- 
ged. Thefe  fines  were  an  acknowledgment  of  the  lord's  ancient  right  of 
removing  them,  and  were,  in  fome  places,  by  cuftom,  fixed  at  a  certain  rate  j 
in  others,  they  were  uncertain,  and  fettled  by  the  lord  :  However,  he  was 
not  allowed  to  exact  an  unreafonable  one,  for  if  fo,  the  tenancy  would  have 
been  abfolutely  in  his  power,  and  of  the  reafonablenefs  of  the  fine  the  judges 
of  the  king's  courts  were  to  determine." 

I  MENTIONED  the  alienation  of  copyholders,  but  to  alien  directly  they 
could  not,  being  efteemed  but  tenants  at  will,  yet  what  they  cannot  direct- 
ly do,  they  may  indirectly,  by  obferving  certain  forms  ;  that  is,  by  furren- 
dering  to  the  lord,  to  the  ufe  of  fuch  a  perfon,  and  then  the  lord  is,  in 
equity,  compellable  to  admit  into  the  copyhold  the  perfon  for  whofe  ufe  it 
is  furrendered.  Thefe  furrenders  are  either  made  in  the  manor  court,  or 
out  of  it.  If  made  in  court,  it  is  immediately  entered  in  the  court  roll  ;  if 
out  of  court,  it  fhould  be  prefented  at  the  next  court  day,  and  then  entered. 
The  furrender  out  of  court  muft  be  made  to  the  lord  himfelf,  or  to  the 
fleward  of  the  manor,  or  it  is  not  good ;  except  in  fome  particular  manors 
by  cuftom,  where  it  may  be  furrendered  to  the  lord's  bailiff,  or  to  two  or 
more  of  the  copyholders,  who  are  to  prefent  it  at  court.  When  a  furrender 
was  made,  the  lord  was  only  an  inftrument  to  hand  it  over,  and  therefore 
muft  admit  that  grantee  into  fuch  eftate,  and  no  other,  whom  the  grantor 
had  appointed  in  his  furrender.  In  many  cafes  a  court  of  equity  will  fupply 
the  want  of  a  furrender. 

COPYHOLDERS  could  not  devife  their  lands  by  will  for  two  reafons.     Firft, 
that,  in  general,  lands  were  not  devifable  till  the  reign  of  Henry  the  Eighth ; 


LKCT.  25.  L  A  \V  S    OP    E  N  G  L  A  N  D. 

and  for  another  reafon  peculiar  to  themfelves,  that,  being  called  tenants  at 
™ill>  ll  upon  to  have  a  furc  and  permanent  cftatc.     But 

when,  after  the  invention  of  nfes,  a  way  was  found  out  to  evade  the  gc: 
l.iw,  and  to  make  lands  go  by  will,  by  the  owner  granting  I  to  ano- 

ther for  the  ufe  of  himfelf,  the  grantor,  for  lik-,  and  after,  for  the  life  of 
fuch  pcrfons  as  he,  the  grantor,  mould  name  in  his  will  ;  and  when  courts 
of  equity  were  found  difpofed  to  oblige  the  grantee  to  perform  the  trufl  he 
had  undertaken,  in  imitation  hereof,  copyhold  eftatcs  began  to  be  furren- 
dered  to  the  lord  to  the  ufe  of  the  copyholder's  laft  will;  and  then  the  lord, 
after  his  death,  was  obliged  to  admit  fuch  perfon  as  he  appointed  in  fuel, 
will,  and  in  the  mean  time,  the  copyholder  enjoyed  during  his  life,  for  the 
furrender  only  did  not  transfer  the  eflate,  except  it  \\as  to  the  lord's  own  ufe. 
If  to  any  other  ufe,  the  lord  was  but  an  inftrument,  and  the  land  remained  in 
the  furrenderer  until  the  admittance  of  the  new  tenant,  which,  in  the  cafe 
I  have  put,  could  not  be  till  the  old  one  was  dead. 

ANOTHER  peculiarity  arifmg  from  the  fame  fource,  there  being  tenancies 
at  will,  was,  that  neither  the  hufband  could  be  tenant  by  the  courtefy,  nor 
the  wife  tenant  in  dower.  The  reafon  was,  that  every  eftate  at  will  determi- 
ned by  the  death  of  the  tenant,  neither  could  an  ellate  tail  be  created  of  a  co- 
pyhold j  for  the  ftatutes  De  Donis  extended  not  to  them,  and,  therefore,  if  a 
gift  was  made  in  fuch  words  as  would,  at  this  day,  create  fuch  an  eftate,  it 
would  be  in  the  nature  of  ^fcefimple  conditional  at  common  law.  However, 
by  fpecial  cuftom  in  particular  manors,  copyhold  might  be  entailed ;  might 
go  to  the  tenant  by  the  courtefy,  and  the  wife  might  be  endowed  thereout  f . 

THUS  much  I  have  thought  requifite  to  (hew  the  general  nature  of  this 
tenure,  and  of  its  origin.  More  would  be  needlefs  to  fay  here,  as  there 
are  no  fuch  in  this  kingdom,  though  the  law  relating  to  them  makes  a  con- 
fiderable  part  of  the  law  of  England.  For  the  fame  reafon  I  fhall  be  very 
ihort  as  to  the  tenants  in  antient  demefne. 

LANDS  in  antient  demcfnt  are  the  eftates  that  the  king  had,  as  king,  to 
fupport  his  family,  and  other  expences,  and  were  anciently  unalienable. 
They  were  the  lands  of  Edward  the  Confelfor,  and  the  Conqueror.  But 
as  the  king  could  not  make  profit  of  them  himfelf,  they  were  given  to  te- 

H  h  nants 

f  Coke  on  Littleton,  lib.  i.  chap.  8. 


242  L  E  C  T  U  R  E  S     ON     THE  LECT.  25. 

nants  of  two  kinds,  freeholders  and  copyholders.  The  law  with  refpeft  to 
them  ftands  as  it  does  with  other  freeholders  and  copyholders,  except  that 
they  have  fome  peculiar  privileges.  The  general  reafon  of  thefe  privileges 
was,  that  the  freeholders  were  originally  focage,  and  the  copyholders  the 
villenage  tenants  of  the  king,  and  had  thefe  privileges  granted  to  them  be- 
caufe  they  were  fuppofed  conftantly  employed  on  the  king's  land,  to  furnifh 
him  with  corn,  cattle,  and  other  neceifaries ;  and  their  privileges  have 
continued,  though  the  fervices  have  been  changed  into  money,  and  the 
eftates  almoft  all  alienated  from  the  crown.  Thefe  are  principally  as  follow: 
They  are  exempted  from  all  burthens  and  taxes  laid  on  by  parliament,  un- 
lefs  they  are  fpecially  named.  They  are  not  to  be  taxed  for  the  wages  of 
the  knights  of  the  {hire.  They  are  not  to  pay  toll,  or  paiTage  money  for  goods 
bought  and  fold  in  markets,  for  all  things  concerning  hufbandry  and  fufte- 
nance.  They  are  not  to  be  impleaded  in  any  court,  only  in  their  manor 
court,  nor  to  be  fuminoned  as  jurymen,  with  fome  other  privileges  of  the 
like  nature,  not  ncceffary  to  be  here  infifled  on  f . 

•j-  Madcx,  Hift.  of  the  Excheq.  vol.  i.  p.  295.    Covvell's  Interpreter,  voc.  Demaine. 
Spcl.  Gloff.  voc.  Domiuicum. 


L  E  C  T  U  R  E 


LECT.  26.  LAWS    OF    ENGLAND. 


LECTURE         XXVI. 

The  condition  undjlatc  cf  hrjcs  in  England  during  the  Saxon  times — The  mil : 
policy  of  the  Saxons  notfopcrfefl  as  that  of  the  Franks — Their  Kingt  decline — 
The  divifwn  of  the  kingdo?n  into  flrircs,  hundreds  ^  and  tilhings — The  admini- 
Jtration  of  juftice — The  county-court — The  hundred  court  and  court-It  ct— 
The  court-baron — The  curia  rcgis — Method  of  trial  in  the  Saxon  courts —  2 
crdeal — Ttse  waging  of  law — The  trial  by  battle — Juries. 

HAVING  drawn  a  rough  delineation  of  a  feudal  monarchy,  and  given 
a  general  account  of  the  ranks  of  people  of  which  it  was  compofed, 
and  of  their  diftinct  rights  and  privileges,  it  will  next  be  proper,  agreeably 
to  what  I  firft  propofed,  to  obferve,  through  the  feveral  reigns,  the  progrcfs 
of  Englifh  law,  and  by  what  fleps  and  gradations  it  is  come  to  differ  fo 
widely  from  what  it  was  in  its  original ;  not,  indeed,  to  go  minutely  through 
all  the  alterations  made,  for  that  would  be  a  talk  that  could  not  be  confin- 
ed within  the  compafs  of  thefe  lectures,  but  to  point  out  the  great  and  con- 
fiderable  changes,  which  had  extenfive  influences,  and  contributed  to  give 
the  law  a  new  face.  But,  before  I  enter  upon  this,  it  will  not  be  amifs  to 
look,  back  a  little,  and  to  fay  fomething  with  refpect  to  the  law  in  the  Saxon 
times,  fmce  much  of  that  remained  after  the  conquefl,  and  even  makes  a 
part  of  our  law  at  this  day. 

THE  Saxons,  being  a  German  nation,  brought  into  England  the  cuftoms 
of  that  country,  cuftoms  very  fimilar  to,  and,  in  many  inftances,  exactly 
the  fame  with  thofe  ufed  abroad  on  the  continent.  However,  with  refped 
to  their  military  policy,  it  was  not  fo  drift  and  perfect  as  that  of  the  Franks, 
occafioned,  as  I  fuppofe,  by  their  greater  fecurity  from  danger.  For  they 
had  no  reafon  to  dread  the  Britons,  having  extirpated  many,  and  expelled 
the  reft,  except  a  few  whom  they  kept  in  the  meaneft  offices,  in  the  nature 
of  villeins.  Neither  was  the  authority  of  their  kings  fo  great  as  abroad,  for 

Hh  2  the 


244  LECTURES     ON     THE  LECT.  26. 

the  founders  of  the  kingdoms  of  the  heptarchy  were  not  kings  in  Germany, 
as  the  kings  of  the  Franks  and  other  nations  had  been,  but  only  leaders 
of  adventurers,  who  voluntarily  afibciated  themfclves,  and  therefore  could 
have  no  authority  but  what  their  followers  confirmed  upon  them ;  and 
that  it  was  not  very  confiderabie,  appears  from  this,  that  every  thing  of 
great  moment  was  tranfacted  in  their  general  affeinblies  or  wittenagemoU  f . 

THESE  kings  were  elective,  though  generally  thofe  of  the  fame  family, 
(for  to  this  alib  there  were  fome  exceptions)  were  elected.  Offa  fays  of  hiin- 
felf  to  his  people,  Eleflus  ad  libertatis  vejir^  tuitionem?  nun  meis  mentis?  fed 
fola  libcralitate  we/Ira.  From  the  death  of  a  former  king  to  the  election  of 
a  new  one  there  was  an  interregnum?  and  even  during  thefe  interregnums 
they  made  laws.  For  when  the  excellent  king  Brithric  had  been  poifoned 
by  his  queen,  they  enacted  a  law,  that  if  any  future  king  fhould  give  his 
wife  the  title  of  queen,,  he  mould  forfeit  his  dignity,  and  his  fubjects  fhould 
be  free  from  their  oath  of  allegiance  ;  and  then  they  proceeded  to  elect  Eg- 
bert, Brithric's  tenth  coufin.  And,  in  purfuance  of  this  law,  Ethelbald, 
depofed  his  father,  for  giving  that  title  to  Judith  of  France.  Alfred,  in- 
deed, was  not  chofen  upon  a  vacancy,  but  claiming  a  part  of  the  kingdom 
before  the  aflembly  at  Swinburn,  by  virtue  of  an  agreement  with  his  bro- 
ther Ethelred,  that  aifembly  annulled  the  agreement,  as  deftructive  to  the 
nation,  then  threatned  by  the  Danes,  but  enacted  that  Alfred  fhould  fuc- 
ceed  to  the  whole,  though  Ethelred,  and  alfo  their  elder  brother  Ethelbert 
left  fons+. 

I  KNOW  it  is  generally  faid  that  thefe  three  brothers  fucceeded  by  their 
father's  will,  and  fo  the  Conqueror  pretended  a  will  of  Edward  the  Confef- 
for  in  his  favour,  but  what  had  Ethelwulf  to  leave,  but  the  little  kingdom 
of  Kent,  which  was  affigned  to  him  upon  his  depofition.  Befides  his  will 
was,  that  they  mould  fucceed  in  cafe  of  iflue  failing,  and  they  fucceeded 
though  there  were  fons  ;  and  Alfred,  who  mould  know  his  own  title  beft, 
acknowledged  he  had  received  his  crown  from  the  bounty  of  the  princes, 
elders,  and  people.  Here  I  fhould  mention,  that  the  kings  had  not  a  right 
to  marry  themfelves  without  the  confent  of  their  people,  for  of  Alfred  it  is 

obferved, 

\  Bacon's  difcourfe  on  the  Laws  and  Government  of  England,  part  r.  chap.  16. 
%  Tyrrel's  general  Introduction  to  his  Hift.  of  England.     Hume,  append.  I. 


LF.CT.  26.  L  A  W  S    OF    E  X  G  L  A  N  13. 

obierved,  that  lie  did  foj  ••/  morem  & Jlatuta,  not  <  \\\(\  i:u<' 

but  againft  politivc  ln\vs.     To  go  through  no  ;  tirulars  ;   it  apj 

from  hiftory,  that  all  the  kings  of  th  i  race  were  el 

the  Danes  ;  fo  was  the  laH  Harold,  though  not  of  royal  blood,  and  though 
Ldgar  Atheling,  who  was  the  lawful  heir,  had  the  kingdom  been  he 
tary,  was  living  ;  fo  was  the  Conqueror,  and  that  was  the  juit  title  he  . 
But  enough  of  this  point. 

To  fee  howjuftice  was  adminiftered  among  the  Saxons;  the  kingdom,  for 
this  purpofe  was  divided  intoyfr/ra,  thofe  into  hundreds ',  or,  as  we  call  t 
in  this  kingdom  (Ireland,)  baronies,  and  thefe  into  tithings,  fo  called  becaufe 
they  originally  confided  of  ten  contiguous  families,  over  which  a  tithingman 
prefided.  Every  man,  in  thefe  tithings,  was  bound  to  keep  the  peace,  not 
only  for  himfelf,  but  for  the  others  of  his  tithing  ;  and  if  one  of  them 
committed  a  crime,  the  reft  were  obliged  to  fearch  him  out,  and  produce 
him  for  trial  ;  otherwife  the  tithing  was  grievoufly  amerced.  This  divi- 
fion  of  the  kingdom  into  counties,  and  their  fubdivifions,  is  generally  af- 
cribed  to  king  Alfred.  That  the  divifion  of  hundreds  into  tithings  was 
his  is  undoubted ;  and  it  is  probable  the  divifion  of  counties  into  hundreds 
was  his  alfo ;  that  the  people,  beggared  by  the  Danifh  incurfions,  might 
have  juftice  rendered  to  them  nearer  their  own  homes,  without  the  expence, 
the  fatigue,  and  even  danger  of  travelling  to  the  county  town.  But  as  to 
counties,  Aey  certainly  were  more  antient.  Juftice  could  not  be  admini- 
ftered,  according  to  the  principles  of  the  German  policy,  in  a  country  fo 
large  as  one  of  the  kingdoms  of  the  heptarchy,  without  its  being  fub- 
divided ;  and  accordingly,  during  thofe  times,  before  the  union  of  thefe 
kingdoms  into  one,  we  find,  in  the  old  laws,  the  mention  of  Jhires  and 
Jheriffs\. 

BUT  though  Alfred  was  not  the  firft  maker  of  the  divifions,  we  are  not 
therefore  to  charge  the  writers  that  give  that  account  with  falfity.  Even  be- 
fore his  reign  the  Danes  had  made  fettlements  in  England,  in  the  northern 
parts.  In  the  very  beginning  of  it  they  reduced  him  to  content  himfelf  with 
the  countries  fouth  of  the  Briftol  channel  and  Thames,  with  the  addition  of 

Eflex, 

•j-  Spelm.  GlofT.  voc.  Comitatus,  hundredus,  et  trithinga.  Tyrrel's  introduction  to  his 
Hift.  Carte's  Hift.  vol.  i.  p.  310.  Spelm.  life  of  Alfred.  Gurdoa's  Hill,  of  Court 
Baron  and  Court  Leet. 


-46  L  E  C  T  U  R  E  S     ON     THE  LECT.  26. 

Effex,  which,  in  their  ravages,  they  had  thrown  into  the  greateft  confufion. 
The  reft  of  England  was  left  as  their  prey,  in  which,  after  ravaging  it  fe- 
veral  years,  they  fixed  themfelves,  until,  at  length  this  great  prince,  to 
whom  no  king,  I  may  fay,  no  man,  whom  hiftory  has  recorded,  was  fupe- 
rior,  either  for  piety  to  God,  for  a  ftrict  love  of  juftice,  for  a  fatherly  affec- 
tion to  his  people,  for  heroifm  in  battle,  for  fortitude  of  mind  (that  never 
defpaired  in  the  lowed  ftate  of  his  affairs,  when  all  feemed  defperate)  or  for 
a  wifdom  capable  of  directing  upon  every  occafion  the  proper  meafures  to 
be  taken  by  the  ftate  over  which  he  prefided  ;  I  fay,  until  this  great  prince 
trampled  his  enemies  under  his  feet,  and  obliged  the  Danes,  who  had  fo 
long  looked  upon  him  with  contempt  to  fue  to  become  his  fubjecls,  and  to 
receive  the  lands  they  had  ufurped,  from  him  as  their  king  and  lord.  For 
to  expel  them  was  impoflible,  and  if  it  had  been  otherwife,  and  the  matter 
had  been  effected,  they  had  committed  fuch  maflacres  in  the  lands  they  pof- 
fefled,  that  the  country  would  have  been  defolate.  Then,  indeed,  this 
king  fettled  the  limits  of  (hires  or  counties,  through  all  England  ;  in  Eflex, 
and  the  counties  fouth  of  the  Thames,  I  prefume,  according  to  the  old  li- 
mits. For  if  we  allow  for  one  county  being  more  woody,  or  having  more 
unprofitable  land  than  another,  they  appear  to  bear  no  great  difproportion 
to  each  other.  But,  as  to  the  lands  the  Danes  held,  it  was  different,  for 
here,  to  \vin  his  new  fubjecls,  he  was  to  accommodate  the  divifion  foine- 
Vv'hat  to  that  which  they  had  made  among  themfelves,  under  their  feveral 
leaders.  Hence,  in  that  part  of  England  which  was  then  Danim,  we  find 
the  greateft  difference  between  the  fize  and  value  of  the  lands  in  the  feveral 
counties,  fome  exceflively  large,  and  others  as  exceedingly  fmall ;  which, 
I  think,  is  no  way  to  be  accounted  for,  in  fo  wife  a  prince,  but  that  the 
feveral  tribes  of  thefe  Danes  were  to  be  kept  in  their  old  bounds,  and  fepa- 
rate  from  each  other.  In  fuch  a  fucceffion  of  ages,  undoubtedly,  thefe 
boundaries  have  received  alterations,  but  they  could  not  have  received  fuch 
as  would  account  for  the  difproportion  ;  and  in  truth  we  find  the  Danes 
had  divided  the  land  before  he  conquered  them. 

IN  thofe  counties  and  hundreds  juftice  was  adminiftered  to  the  inhabitants  / 
near  their  homes,  without  the  delays  and  expences  of  reforting  to  Weftmin- 
fter.     The  court  held  by  the  fheriff,  affifted  by  the  bifhop,|was,  in  its  ori- 
gin, as  we  find  in  the  red  book  of  the  exchequer,  and  had  cognizance  of 

four 


LECT.  26.          LAWS    OF    ENGLAND.  247 

four  fcvcral  matters  that  were  handled,  in  this  order.  Firft,  all  offences  againfl 
religion  and  the  rcclefiaftical  jurifdicTum  urn-  tried,  'i  he  bifliop,  o: 
commuTary,  here  was  judge,  and  the  (heriif  was  his  afliflant ;  and  if  the  delin- 
quent difregardcd  the  cenfures  of  the  church,  he  enforced  the  fcntcncc  by 
imprifonmeiit.  Next  were  tried  temporal  offences,  that  concerned  the  pub. 
lick,  as  felonies,  breach  of  the  peace,  nuifances,  and  many  others.  1 
the  merifr"  was  judge,  and  the  bifhop  was  afliitant,  to  enforce  die  fentence 
with  ecclefiaflical  cenfures.  Thirdly,  were  tried  civil  actions,  as  tides  to 
lands,  and  fuit  upon  debt  or  contracts.  Here  the  (heritl "prcfided,  but  the 
fuitors  of  the  court,  as  they  were  called,  that  is,  the  freeholders,  were  the 
judges,  or  as  we  now  fay,  theory,  and  the  fheriff  executed  the  judgment, 
aflifted  by  the  bifhop,  if  need  were.  Laflly  there  was  held  an  inqucft,  to  fee 
that  every  perfon  above  twelve  years  of  age  who  was  in  fome  tything,  had 
taken  the  oath  of  allegiance,  and  found  fecurity  to  the  king  for  his  good 
demeanor.  This  was -called  the  vieiv  of  frank  pledge,  that  is,  the  viewing 
that  every  perfon  had  nine  freemen  pledges  or  fecurity  for  his  loyalty  to 
the  king,  and  his  peaceable  behaviour  to  his  fellow  fubjefts  f . 

BUT  fmce  the  time  of  king  Edgar,  at  lead,  this  court  has  been  divided 
into  two,  the  criminal  matters,  both  ecclefiaftical  and  civil,  and  alfo  the 
view  of  frank  pledge  was  difpatched  in  one  court  called  the  tourn,  that  is, 
the  circuit,  from  the  bifhop  and  fheriffs  going  circuit  through  the  county ; 
and  the  civil  bufinefs  was  difpatched  in  another,  called,  the  county  court. 
The  law  was,  that  the  fheriflf  and  bilhop  mould  twice  in  the  year  go  their 
circuit  or  tourn,  namely,  in  the  month  following  Eafler,  and  the  month 
following  Michaelmas ;  and  fhould  hold  their  court  in  every  hundred  of  the 
county  ;  but  the  view  of  frank  pledge  was  to  be  taken  only  once  a  year, 
namely  the  tourn  after  Eafter.  But  for  the  more  ready  difpatching  civil 
caufes,  the  county  court  was  held  once  a  month,  that  is  in  twenty-eight 
days,  reckoning  a  month  by  four  weeks  and  not  by  the  calendar  J. 

OUT  of  thefe  courts  were  others  afterwards  derived,  for  the  more  eafy 
and  expeditious  way  of  diftributing  juftice.  Out  of  the  fherifPs  tourn,  were 
two,  the  hundred  court,  and  the  court  kef,  and  they  had  cognizance  of  the 

fame 

f  Gurdon's  hift.  of  Court  Baron  ard  Court  Lett.     CowcTs  Interpreter,  voc.  Fr;.:ik- 
pledge.     Bacon's  Difcourfe  on  t'ue  Laws  and  Government,  of  England,  part.  i.  chap.  23. 
$.  Bacon,  chap.  24. 


248  L  E  C  T  U  R  E  S     ON     THE          LECT.  26. 

fame  matters  the  tourn  had,  and  were  ere&ed  independent  of  the  fheriff's 
tourn,'  for  the  mutual  eafe  of  him  and  the  inhabitants,  where,  in  large  coun- 
ties, the  hundred  lay  too  remote  to  be  conveniently  vifited  in  the  circuit. 
But  many  inconveniencies  arifmg  from  the  meriff's  power  not  running  in 
thefe  feparated  jurifdiftions,  the  hundred  court,  which  was  held  by  the 
fteward  of  the  hundred,  were  all,  except  a  very  few,  that  had  been  given 
in  fee  to  fome  great  men,  reunited  to  the  tourn,  and  fo  they  vanimed  in 
Edward  the  Third's  reign  f. 

THE  leet  was  of  the  fame  nature  as  the  hundred  court,  derived  out  of 
the  tourn,  and  made  a  feparate  jurifdiction;  but  it  was  held  in  the  name  of 
a  fubjecl:,  by  the  lord  of  the  manor's  fteward,  and  to  the  lord  belonged  the 
profits  of  the  courts  leet.  They  were,  however,  though  held  by  a  fubjecl:, 
in  his  own  name,  efteemed  as  the  king's  courts,  and  allowed  to  be  courts  of 
record,  as  well  as  the  tourn  from  which  they  fprung. 

OUT  of  the  county  court,  which  was  for  private  caufes,  was  derived  the 
court  baron.  It  was  held  from  three  weeks  to  three  weeks,  as  all  courts 
were  in  the  early  Saxon  times.  It  was  when  a  manor  was  exempted  from 
the  fherirFs  county  court,  and  the  jurifdiclion  granted  to  the  lord,  to  hold 
plea  of  civil  fuits.  In  this  the  fuitors  were  the  judges,  as  in  the  county 
court}. 

IN  thefe  feveral  courts  was  juflice  adminiftered  in  the  Saxon  times,  and 
even  for  a  confiderable  time  after  the  conqueft,  for  the  moft  part.  But  foon 
after  that  time  inconveniencies  were  found,  partly  from  the  partiality  of  the 
judges  in  thefe  inferior  courts,  and  partly,  from  their  ignorance  in  law. 
Then  began  the  higher  court  to  draw  to  themfelves  the  jurifdiclion  of  thefe 
matters,  and  the  county  courts  to  be  confined  to  pleas  of  fuch  matters  as  ex- 
ceeded forty  millings  in  value.  The  pleas  of  lands  were  likewife  brought 
in  there,  and  difcufled  either  in  the  higher  courts,  or  before  juflices  of  nlfi 
prius.  The  appointment  otjuftices  errant,  and  ju/t  ices  ofaffize  ;  otjujlices  of 
goal  delivery,  and  of  the  quarter  fejfions,  together  with  the  many  powers 
granted  by  divers  adts  of  parliament  to  one  or  more  juftices  of  the  peace, 

have, 

•J-  Bacon's  difcourfe  on  the  Laws  and  Government  of  England,  chap.  2£;  26. 

£  Dugdale's  Origines  juridiciales,  chap.  9,  10,  ir,  12,  13,  I4;  ij. 


LECT.  26.  L  A  W  S    OF    E  N  G  L  AN  D.  249 

have,    in  u  liu-cellion  of  oiuinunlly  funk  the  bufmcfs  of  thcfc  courts, 

and  have  left  them  but  a  ihadovv  of  what  they  \\erc. 

BUT  although  mod  of  the  bufir.cfs  in  the  old  times  was  in  thcfc  inferior 
courts,  there  was  one  fuperior,  that  even  in  the  Sax-  >,  had  a  concur- 

rent jurifdicUon  with  them,. the  curia  regis.  The  curia  regis  fat  in  the  king's 
palace,  ami  removed  with  him  from  one  part  of  the  kingdom  to  anot 
generally  in  the  king's  hall  ;  except  wjien  they  judged  queflions  belonging 
to  the  king's  treafure,  when  they  fat  in  his  treafury,  called  the  exchequer, 
from  the  chequered  cloth  wherewith  the  table  was  covered*  The  judges 
Averc,  the  judiciary,  the  chancellor,  and  the  treafurer,  together  with  fuch 
great  lords  as  were  attendant  on  the  court;  fo  that,  in  parliament  time,  all 
the  great  lords  fat  there  ;  and  this  was  the  foundation  of  the  lords  judica- 
ture in  parliament.  The  judiciary  prefided  in  all  cafes  that  did  not  concern 
the  revenues,  and  indeed  his  power  was  fo  exorbitant  by  the  antient  law, 
bung  regent  of  the  kingdom  in  the  king's  abfence,  that  fometime  after  the 
conqueft,  the  kings  thought  proper  to  aboliili  the  office,  and  divide  even  his 
judicial  power  into  feveral  hands  f . 

THE  chancellor  was  one  of  the  mod  learned  ecclefiadics.  It  fell,  there- 
fore, naturally  to  his  province  to  make  out  all  writs,  and  precedes,  and  let- 
ters patent,  and  confequently  the  great  feal  of  the  kingdom  was  lodged  with 
him.  He  attended,  likewife,  fomething  in  the  nature  of  an  equity  judge  ;. 
not  that  there  was  any  fuch  thing  as  a  diftinft  court  of  equity,  but,  as  a  learn- 
ed and  pious  man,  to  direcl:  with  his  advice  whenever  the  cafe  happened, 
where  confcicnce  dictated  one  way  and  the  dricl  law  another.  The  treafurer 
was  prefent  alfo.  to  take  care  that  the  king  had  his  fines  from  offenders, 
which  he  was  afterwards  to  collect  into  the  exchequer  where  he  prefided, 
where  alfo  he  fet  leafes  of  the  king's  lands  for  years,  collected  his  rents  and 
debts,  and  took  care  of  his  efcheats  and  forfeitures*.  The  proper  jurifdidion 
of  this  court  was  where  the  king  was  concerned  in  intered  as  to  his  revenue ; 
where  one  of  the  great  peers  was  to  be  tried  for  heinous  offences,  or  even 
where  two  perfons  had  been  guilty  of  crimes  that  feemed  to  have  a  general 
influence,  and  tended  to  general  confufion.  For  unlefs  the  crime  of  a  low- 
er perfon  was  very  heinous  indeed,  he  was  tried  in  the  country,  in  the  tourn. 

I  i  CIVIL 

f  Madox,  Hift.  of  Exchequer,  cbaj?.  I. 


250  LECTURES     ON     THE  LECT.  26. 

CIVIL  caufes  likewife  between  the  great  lords  fell  under  their  infpecYiorf, 
but  thofe  between  meaner  perfons  they  feldom  meddled  with,  unlefs  they  had 
for  difficulty  been  referred  or  adjourned  to  them  from  the  courts  below,  and 
if  they,  in  that  cafe,  found  the  caufe  of  great  difficulty,  they  adjourned  it  to 
the  curia  regis  in  full  parliament.  However,  as  they  had  the  powe.r  of  judg- 
ing civil  caufes  between  all  perfons  in  the  firft  inftance,  if  they  thought  the 
caufe  of  fuch  a  nature,  that  juflice  was  not  likely  to  be  done  in  the  country, 
they  had  many  applications  from  fuch  as  had  thofe  apprehenfions  ;  and  as  this 
court  had  a  difcretionary  power,  either  of  fending  them  back  to  the  county- 
court,  or  of  admitting  them  here,  this  gave  an  occafion  for  exacting  fines  for 
licenfe  to  plead  in  the  king's  court,  and  thereby  of  increafing  his  revenue  ; 
until  at  length,  when  the  inferior  courts  declined  in  reputation,  and  every 
man  fought  for  juflice  in  the  curia  regis,  thefe  fines,  being  arbitrary,  became 
an  intolerable  grievance,  which  was  remedied  by  thofe  famous  words  in 
Magna  Charta,  Nu/li  vendemus,  nitlli  negabimus  jujlltlam,  as  I  mall  obferve 
hereafter.  Such  were'the  courts  held  in  the  Saxon  times,  and  for  fome 
time  after  the  conqueft,  whofe  feveral  jurifdictions  it  is  proper  to  point  out, 
for  the  better  understanding  of  the  alterations  that  afterward  enfuedf. 

I  NEXT  proceed  to  the  method  of  trial,  or  determining  the  matters  in  iffue 
In  thefe  courts.  And  they  were  the  fame  that  were  ufed  abroad,  which  I 
have  already  mentioned,  and  fliall  therefore  barely  run  them  over.  Firft, 
ordeal,  either  by  putting  their  hands  in  boiling  water,  or  holding  a  red 
hot  bar  of  iron  in  their  hands  ;  or  by  cold  water,  that  is,  tying  their  hands  to- 
gether, and  their  feet  together,  and  throwing  the  perfon  accufed  into  a  pond ; 
and  this  method  the  ignorant  vulgar  have  adopted  to  try  witches.  Secondlv, 
the  oath  of  the  party,  with  compurgators,  or,  as  it  is  called,  waging  his  law  ; 
and  in  this  manner  was  Earl  Goodwin  acquitted  of  the  murder  of  Alfred, 
king  Ethelred's  brother.  Thirdly,  battle,  which  was  the  ufual  method  of 
trying  the  title  to  lands,  and  appeals  of  felony,  or  capital  crimes. 

IF  a  man  wa«  indi&ed  of  felony  at  the  king's  fuit,  he  could  not  offer 
battle  ;  for  challenging  the  king  was  a  breach  of  alledgiance,  but  if  he  was 
appealed  of  felony  by  a  fubjeft,  he  had  his  choice  either  of  battle,  or  fub- 
mitting  to  be  tried  by  a  jury.  But  if  he  waged  battle,  he  muft  fight  in 

proper 
f  Madox,  Hift.  Excheq.     Dairy mple  on  Feudal  Property,  ch.  7.  §  i. 


li.r.26.  L  A  WS    OF    E  N  GL  AN  I).  251 

proper  piTluii,  whereas  the  appdhint,  who  might  be  an  infant,  or  decrepid 
with  age,  or  a  man  of  n-ligion,  or  a  woman,  was  allowed  a  champion.  If 
lands  were  demanded  from  a  man,  he  had,  likewiie,  the  option  of  trial  by 
battle,  or  by  yaml  *ijji~c.  If  by  battle,  tlien  were  both  , 
champions,  if  they  defired  it ;  but  the  champion,  in  fuch  cafe,  mufl  firfl 
hu-ar,  that  he  knows  the  land  was  the  right  of  the  party  be  fought  for,  or 
that  his  lather  told  him  he  knew  it,  and  charged  him  to  bear  witnefs  there- 
of. So  that  this  trial  was  referring  it  to  the  providence  of  God,  which  of 
the  two  contradictory  witnefles,  the  champions,  fworc  true  {-. 

other  method  was  by  the  grand  aflize.  JJ/izc,  coming  from  affides, 
to  fit  together,  fignifies  a  jury.  It  was  called  grand \  becaufe  of  its  number. 
The  IherilV  returned  four  knights,  who  chofe  twelve  knights  more,  and 
their  verdict  determined.  But  the  mofl  ufual  method  of  trial  among  the 
Saxons  was  by  juries,  as  at  this  day,  that  is,  by  twelve  of  the  fares  curia:. 
The  invention  of  thefe  is  attributed  by  the  Englifh  lawyers  to  Alfred,  and 
greatly  do  they  exult  over  the  laws  of  other  countries  in  the  excellency  of 
this  method.  But  had  they  been  acquainted  with  the  ancient  laws  of  the 
continent,  they  would  have  found  the  trial  by  pares  common  to  all  the 
northern  nations,  though  fmce  wore  out  by  the  introduction  of  the  civil 
law ;  not  fo  common,  indeed,  any  where  as  in  England  j  where  every  age 
it  gained  ground,  and  wore  out  the  other  J.  Alfred's  merit,  therefore,  was 
rather  in  fixing  the  number,  and  determining  the  qualities  of  the  jurors, 
than  in  the  invention  ;  but  what  thefe  feveral  qualifications  were,  will  come 
in  more  properly  in  another  place.. 

fDugdale,  orig.  Jurid.  ch.  25.  26.  Nicholfon,  prafat.  £d  leg.  Anglo.  Sax.  Du  Cange, 
voc.  Duellum  et  Juramentum.  Spel.  voc.  Campus  et  Judiciuni  Dei.  Muratori  antiq.  Ital. 
Diflertat.  38. 

\  Stiernkook  de  jure  vetufto  Sueonum  et  Gothonun.  c.  4.  DuTert.  on  the  antiquity  o£ 
tl^e  Englifh  Conftitution,  part.  4.  §  4. 


I  i  *  LECTURE 


LECTURES    ON    THE  LECT.  27. 


LECTURE       XXVII. 

The punifhment  of  public  crimes  and  private  wrongs  among  the  Saxons — The 
ranks  of  men  among  the  Saxons — The  difficulty  of  afcertaining  the  nature  of  the 
Saxon  eftates,  and  the  tenures  by  which  they  were  held — Obfervations  to  prove 
that  the  Saxon  lands  were  in  general  allodial. 

IN  my  lafl  I  gave  an  account  of  the  courts  wherein  the  Saxons  admini- 
flered  juflice,  and  of  the  feveral  methods  of  trial  ufed  in  them  ;  it  will 
be  proper  to  add  a  few  words  concerning  their  puniflment  of  perfons  found 
guilty  either  of  public  crimes  or  private  wrongs.  When  I  fpoke  of  the 
cufloms  of  the  German  nations,  while  they  lived  in  that  country,  I  ob- 
ferved,  that  all  offences  were  punifhed  \>yjines  only,  and  none  by  death, 
two  only  excepted,  defertion  in  war,  and  the  rape  of  a  married  woman. 
The  nations  defcended  from  them,  when  they  fettled  within  the  limits  of 
the  Roman  empire,  continued  the  fame  practice  for  fome  ages,  as  did  the 
Saxons  alfo  in  England. 

ALL  wrong  and  crimes,  not  excepting  murder  and  high  treafon,  were 
redeemable  by  fine  and  imprisonment,  until  the  Heptarchy  was  declined  ; 
and  for  this  purpofe  their  laws  afligned  the  feveral  mulcts  that  /were  to  be 
paid  for  the  different  offences.  Murder  was  rated  higher  or  lower  accord- 
ing to  the  quality  of  the  perfon  flain.  That  of  their  king  himfelf  was  va- 
lued at  thirty  thoufand  tbrynifcs,  a  piece  of  their  money.  But  afterwards  it 
was  found  neceffary  to  inflict  capital  punimments.  Treafon,  murder,  rape, 
and  robbery,  were  of  the  number  fo  punifhed,  though  the  punimment  ot 
rape  was  afterwards  caftratlon ;  but  after  the  Conqueft  it  was  made  capital 
again.  Corrupt  adminiflration  of  juflice  was  another ;  for  it  is  recorded, 
to  the  praife  of  Alfred,  that  he  hanged  forty  four  unjuft  judges  in  one  year  f. 
Thefe  were  the  judges  in  the  tourns,  ealdermen  of  the  counties,  or  their  de- 
puties the  fheriffs.  Other  offences  againft  the  public  continued  punifhable 
by  fine  and  imprifonment,  and  fatisfa&ion  for  private  wrongs  was  obtained 

either 

•}•  Mirroir  des  Juflices,  chap.  2. 


LF.CT.  27-  LAWS    OF    ENGLAND.  253 

•Yhlu-r  !  ration  of  the  thing  unjuflly  detained,  if  it  was  extant,  or  a 

compenkition  to  the  value  in  damages,  if  it  was  not  f. 

As  to  the  order  and  ranks  of  people  among  them,  there  were,  properly 
fpcaking,  but  two,  freemen  and  villeins.  The  lait,  I  prefume,  were  the 
rc'iuiins  of  the  antient  Britons,  but  among  the  freemen  there  were  various 
orders,  not  dillinguilhed  by  any  hereditary  difference  of  blood,  but  by  the 
dignities  of  the  offices  they  held  by  the  gift  of  the  king.  Not  that  we  are 
to  imagine  there  was  no  regard  whatfoever  paid  to  the  defendants  of  great 
and  illuftrious  men.  As  their  king  was  eligible  out  of  the  royal  family 
only,  fo  were  there  u  number  of  other  families,  to  whom  the  enjoyment  of 
le  honourable  offices  were,  I  may  fay,  confined,  not  by  any  pofitive  dif- 
tinftive  law,  but  by  general  practice,  and  by  the  king's  conftantly  choofing 
out  of  them  ;  and  who  may,  with  propriety  enough  be  called  the  nobility. 
Thofe  honorary  offices  were  of  different  ranks  of  dignity ;  fueh  as  thofe 
of  ealdermcn  or  earls,  cop/cf,  or  as  they  were  ibmetimes  called  Thanes,  Prapo- 
fitt,  or  rulers  of  hundreds  ;  all  of  whom  were,  originally,  rcmoveable  at 
the  king's  pleafurc,  though,  unlcfs  they  mifbehaved,  they  were  generally 
continued  for  life. 

SOME,  indeed,  have  thought  that  earldoms  were  hereditary,  even  in  the 
Saxon  times,  becaufe  they  fee  that  earl  Goodwin's  fon  fucceeded  him,  and 
the  fame  was  true  in  fome  other  families  alfo.  But  there  is  a  great  differ- 
ence between  a  fon's  fucceeding  to  his  father  by  a  legal  right  of  inheri- 
tance, and  his  fucceeding  either  by  the  voluntary  favour  of  the  king,  or 
by  his  extorted  favour,  when  a  family  has  grown  fo  powerful,  as  to  make 
it  a  neceffary  aft  in  the  king,  in  order  to  preferve  public  peace.  The  latter 
was  the  cafe  with  refpeft  to  earl  Goodwin's  family.  Edward  the  Confeffor 
hated  him  mortally  for  the  death  of  his  brother  Alfred,  as  he  did  his  whole 
family  for  his  lake.  However,  as  he  owed  the  crown  folely  to  his  interefl 
and  intrigues,  as  he  was  well  acquainted  with  the  power,  and  knew  that  he 
had  fpirit  enough  to  attempt  dethroning  him,  if  once  offended,  that  prince, 
who  was  carelefs  of  what  came  after  him,  fo  he  might  reign  in  peace  during 
life,  careffed  Goodwin  and  his  family  ;  diffembled  all  refentment,  and,  after 
one  or  two  weak  flruggles,  let  him  and  his  family  govern  the  kingdom  at 

their 

f  Tacit,  de  Mor.  Germ.  c.  Si.  L.  L.  Wai.  p.  192.  194.  L.  L.  Anglo,  Sax.  ap.  Wilkins 
p.  18.  20.  41.     Hickef.  differt.  Epift.  p.  no.     Lindenbrog,  p.  1404. 


254  L  £  C  T  U  R  E  S     ON     THE  LECT.  27. 

their  pleafure;  a  conduct  that  raifed  them  ftill  higher  in  the  opinions  of  the 
people,  and  concurring  with  the  incapacity  of  Edgar  Atheling,  Edward's 
nephew,  raifed  Harold  to  the  throne,  as  the  only  man  in  England  ca- 
pable of  defending  it  againil  two  powerful  invaders  -j . 

BUT  the  great  difficulty  is  to  know  wrhat  kind  deflates  the  Saxons  had  in 
their  lands,  and  by  what  tenures  they  held  them.  This  queftion  hath  divi- 
ded the  lawyers  and  antiquaries  of  England  ;  fome  holding  that  the  tenures 
were  as  ftriclly  feudal,  as  after  the  conqueft,  while  others  as  flrongly  deny  it. 
I  mall  not,  iri  this  difficult  point,  pretend  to  decide  abfolutely  where  fo 
great  matters  differ,  but  only  make  fome  obfervations  that  perhaps  would 
induce  one  to  believe,  that  the  Saxon  lands  were,  in  general,  allodial^  fome 
of  them  military  benefices  for  life,  and  none,  or,  if  any,  at  lead  very  few 
feudal  inheritances ;  and  this  I  take  to  be  the  truth  of  the  matter. 

FIRST,  then,  the  Saxon  lands  in  general,  were  inheritances,  defcendable 
to  heirs  ;  and  were  all  fubjecl:  to  military  fervice.  An  Heriot,  which  is  con- 
tended to  be  the  fame  as  the  Norman  relief,  was  paid  upon  the  death  of  the 
anceftor,  and  all  landholders  took  the  oath  of  allegiance,  or  of  fealty,  as 
they  would  have  it ;  and  therefore,  Coke  and  others  conclude  that  their 
lands  were  feudal,  and  held  by  knight  fervice  ;  and  tho'  there  are  no  tra- 
ces cither  of  ward/hip  or  marriage  to  be  met  with  in  thofe  times,  they  in- 
fift  that  they,  as  fruits  of  knight  fervice,  muft  have  been  in  ufe  tho*  from 
the  paucity  of  the  Saxon  records  remaining,  they  cannot  be  difcovered  }. 

THIS  reafoning  feems  to  have  great  ftrength,  and  yet,  if  we  examine  with 
a  little  attention,  perhaps,  thefe  very  arguments,  when  well  confidered,  will 
prove  the  contrary,  viz.  that  moft  of  the  Saxons  lands  were  allodial. 

FIRST,  then,  as  to  their  being  hereditary  :  This,  fmgly,  is  far  from  being 
a  proof  of  their  being  held  by  a  feudal  tenure.  The  lands  of  the  Greeks,  of 
the  Romans,  I  may  fay  of  all  nations,  except  the  conquering  Germans,  nay, 
the  allodial  lands  in  their  conquefls,  were  hereditary.  Their  being  fo 
feems  rather  a  proof  of  their  not  being  founded  on  the  feudal  policy  ;  for 

the 

•J-  Selden's  tit.  of  Hon.  part  2.  ch.  5.    Hume,  vol.  i. 

$  i  Inft.  76.  Bacon  on  the  Government  oi'  Engl.  p.  75.  Saltern  de  antiq.  leg.  Brit.  c.  8. 


T.  27.         L  A  W  S     OF     ENGLAND. 

benefices  did  not  becon:  -ances  any  j  of  time 

ic  conqucil ;  whereas  tlierc  is  no  ground  to  believe  that  \on 

hinds  were  ever  otherwife.     DcJide  .  4t  arc  u: 

ly  incompatible  with  the  feudal  lyfk-m.  They  were  not  only  inheritances, 
but  were  aliendbU'  at  the  pleafure  of  the  owner,  without  any  leave  from 
fuperior,  and  were,  likeuiL-,  devii'ableby  will  ;  fo  that  the  Saxons  were  ab- 
iblute  mailers  of  their  land,  and  not  obliged  to  tranfmit  to  the  blood  the  do- 
nor intended  to  favour,  contrary  to  the  feudal  law  abroad,  and  to  our  law 
alter  the  conqueft.  I  (hall  obferve,  by  the  way,  that  fome  lands  in  England 
in  particular  places,  being  by  cuflom  devifable  by  will  after  the  conqueft, 
of  the  old  general  Saxon  law,  thofe  places  not  having,  along 
with  the  red  of  the  kingdom,  embraced  the  feudal  maxim  f. 

ANOTHER  flriking  difference  is,  that  the  Saxons  lands  were  not  forfcitablc 
for  felony,  which  ftill  remains  by  cuflom  in  the  gavclkind  lands  in  Kent, 
whence  that  country  proverb,  the  father  to  the  bough  and  the  fen  to  the  plough. 
Their  lands  likewife  were  equally  divifable  among  all  the  fons,  as  were  ga- 
velkind  lands ;  which  is  a  cuftomary  relicl:  of  the  Saxon  haw,  contrary  to 
general  rule,  fince  the  conqueft,  where,  at  firft,  the  king  chofe  one,  and  af- 
terwards, as  at  this  day,  the  eldeft  alone  fucceeded.  But  this  laft  I  will  not 
urge  againft  their  being  of  feudal  origin,  for  that  was  the  antient  law  of 
llefs ;  it  only  fliews  there  was  a  confiderable  alteration  introduced  at  the 
conqueft.  However,  though  their  being  inheritances  fingly  will  not  prove 
them  fiefs,  yet,  when  that  is  joined  to  the  military  tenure,  to  the  payment  of 
reliefs,  and  to  the  oath  of  fealty,  we  muft  allow  them  to  be  fuch.  Let  us 
fee  then,  whether  any  of  them,  fingly,  or  taken  all  together,  will  enable 
us  to  draw  that  conclulion  {. 

CERTAIN  it  is,  then,  that  all  the  lands  in  England  were,  in  the  Saxon 
times,  liable  to  military  fervice  ;  but  this  will  not  prove  that  they  were  feu- 
dal. For,  as  I  have  obferved  in  a  former  lecture,  the  allodial  lands  in 
France  were  fubjeft  to  the  fame.  Every  man  who  held  land  as  an  allodial 
tenant,  was,  according  to  the  quantity,  either  to  find  a  foot  foldier  equipped 
for  the  wars,  or  to  join  with  another  to  find  one,  if  he  had  not  land  fuffici- 

ent. 

f  Spelman  on  Feuds  and  Tenures,  ch.  6. 

$  Taylor  andSomner  on  Gavelkind,  and  Harris  in  his  Hift>  of  Kent,  p.  457. 


256  LECTURES     ON     THE  LECT.  27. 

ent.  Thefe  allodial  lands  were  fubjected  by  law  to  three  forts  of  duties. 
The  firft  I  have  mentioned,  the  other  two  were  building,  and  repairing 
bridges,  and  furnifhing  waggons  and  carriages  for  the  conveyance  of  arms 
and  the  king's  provifions,  or  money  f . 

THE  Saxon  lands  were,  like  wife,  fubjec~t  to  what  they  called  trinoda  necejfi- 
/tfj ,  the  three  knotted  obligation.  The  firft  was,  furniming  a  foot  foldier  ; 
the  fecond,  which  was  not  in  the  allodial  lands  abroad,  was  arcls  conftrufth 
the  building  and  keeping  in  repair  caftles  and  forts,  where  the  king,  for 
the  public  good,  ordered  them  to  be  ere&ed  ;  and  laflly,  pcntis  conftruttio 
the  building  and  repairing  of  bridges.  As  to  furniming  carriages,  the  Sax- 
on freemen  were  exempted  ;  thefe  being  fupplied,  in  that  conftitution,  by 
the  lower  tenants  in  ancient  demefne  ;  or  the  king  had  a  right  to  feize  any 
man's  carriages  by  his  purveyors,  and  ufe  them  upon  paying  for  them. 
This  right  of  purveyance  of  carriages,  and  of  timber,  and  of  provifions  for 
the  king's  houfehold,  which  was  intended  for  the  king's  benefit,  and  by 
which  no  lofs  was  to  accrue  to  the  fubjeft,  as  he  was  to  be  paid  the  value, 
became,  in  the  hands  of  the  greedy  purveyors,  an  occafion  of  great  grievan- 
ces •,  thofe  officers  feizing,  often  more  than  was  wanted,  often  where  no- 
thing was  wanted,  merely  to  force  the  proprietor  to  a  compofition  of  money 
on  reftoring  them.  The  manner  of  payment,  too,  became  very  oppreffive. 
The  rates  were  fixed  at  firft  at  the  due  value,  but  as  the  rate  of  money 
changed,  and  the  prices  of  things  rofe,  it  came  to  be  under  the  half,  and  as 
it  was  not  paid  for  on  the  fpot,  but  by  tickets  on  the  treafurer,  the  owners,, 
were  frequently  put  to  more  trouble  and  expence  in  attendance  than  the  va- 
lue of  their  demand.  This  the  purveyors  well  knew,  and  therefore  turned 
their  office  into  an  engine  of  extortion.  Many  were  the  proclamations  ifiued 
by  the  king  ;  many  the  acts  of  parliament  made  to  regulate  it ;  But  the  evil 
was  inveterate,  and  proved  very  heavy  even  under  the  beft  princes.  The 
complaints  of  thefe  opprcflions  were  as  great  under  Elizabeth  as  under  her 
fucceflbr  James,  and  indeed,  the  evil  was  fo  inveterate,  that  nothing  but 
cutting  it  up  by  the  roots,  the  deflroying  purveyance  itfelf,  could  cure  it  {. 

BUT 

f  Spel.  glofT.  voc.  Burghbote  et  Brughbote, 

\  Tyrrel's  Introd.  p.  120.     Spcl.  Reliq.  p.  22. 


LECT.  27.          LAWS    OF     E  N  G  L  A  N  D.         257 

BIT  to   return  to  the  military  duty  done  by  the  Saxons  in  general  for 
their  lands.     In  the  firft  place,  then,  they  !  U  foot  foldicrs,  and  not 

on  horleback,  and  in  complrat  armour,  as  tin-  feudal  tenants  were  obliged. 
Again,  the  feudal  truants  attended  not  hut  when  called  upon,  wherca*, 
Saxons  had  regular  times  of  meeting  and  muttering,  though  not  fumn 
ed,  in  order  to  lee  that  the   men  \vcrc  well  trained,  and  properly  an 
But  the  great  difference  lay  in  this,  that  no  particular  perfon  was  bound  to 
military  duty,  in  confideration  of  his  tenure  in  the  lands.     The  lands  them- 
fclvcs  were  liable.     Every  hide  of  land  found  a  man,  whether  it  was  in 
hands  ot  one,  or  more  perfons.     There  was  then  no  perfonal  attendance, 
and,  confequcntly,  no  commutation  for  it.     The  hide  of  land  fupported  it 
foldier,  while  he  continued  fighting  in  his  own  county  ;    but  if  in  another, 
he  was  to  be  maintained  either  by  that  county,  or  the  king ;  whereas,  the 
military  tenants,  by  the  feudal  law,  were  obliged  to  lerve  forty  dr.ys  at  their 
own  expence,  wherever  the  king  pleated,  if  the  war  was  a  juft,  or  a  defen- 
five  one ;    and  indeed,  as  William  the  Conqueror  modelled  it,  if  the  war 
was  even  unjuft,  or  offcnfive.     Thefe  differences,  added  to  what  I  have  al- 
ready obferved,  concerning  their  lands  not  being  efcheatable  for  felony, 
being  alienable,  and  being  devifable  by  will,  I  think,  (hew  plainly  that, 
though  the  lands  were  fubject  to  military  fervice,  it  was  upon  grounds 
and  principles  very  different  from  the  feudal  ones,  and  that  they  were  ra- 
ther in  the  nature  of  the  allodial  lands  on  the  continent. 

As  to  HerriotS)  which  Coke  and  his  followers  infift  much  upon,  as  being 
reliefs,  they  alfo,  when  thoroughly  confidered,  will,  perhaps,  be  found  to  be 
of  a  different  nature.  A  Herriot  was  a  title  the  landlord  had  from  his  te- 
nants, and  the  king,  as  fupreme  landlord,  from  his,  of  feizing,  the  befl 
beaft  of  his  dead  tenant,  or  his  armour,  if  he  was  a  military  man.  Thefe 
being  due  upon  the  death  of  the  tenant,  certainly  bore  fome  resemblance  to 
the  reliefs  on  the  continent,  and  are  in  king  Canute's  law,  which  was  writ- 
ten in  Latin,  called  by  the  name  of  rckvatio.  To  fliew  vhat  they  were  in 
that  time,  the  re/evatio,  or  Herriot  of  an  earl,  was  eight  horfes,'  four  fad- 
dled,  four  unfaddled,  four  helmets,  four  coats  of  mail,  eight  lances,  eight 
fhields,  four  fwords,  and  two  hundred  marks  of  gold  ;  of  the  king's  thane 
four  horfes,  two  faddled,  two  unfaddled,  two  fwords,  four  lances,  four 
(hields,  his  helmet  and  coat  of  mail,  and  fifty  marks  of  gold  j  of  the  mid- 

K  k  dling 


25:8  LECTURES     ON     THE  LECT.  27. 

dling  thane,  a  horfe  with  his  furniture,  with  his  arms.  But,  then,  Spel- 
man  juftly  obferves,  that  thefe  were  not  paid  by  the  heir,  as  a  relief  to  the 
lords,  to  entitle  him  to  enter  on  the  inheritance.  The  heir  had  the  lands 
immediately  and  was  not  obliged  to  defer  his  entry  till  he  had  paid  them, 
as  he  was  his  relief  by  the  feudal  law,  and  by  the  law  of  England  after  the 
eonqueft.  Nay,  they  were  not  paid  by  the  heir  at  law,  but  by  the  execu- 
tor or  admimilrator,  as  a  perquifite  out  of  the  tenant's  perfonal  fortune  f . 

HOWEVER,  William  the  Conqueror,  finding  thefe  perquifites  in  ufe,  and 
that  in  Latin  they  were  called  re/evationes,  took  advantage  thereof,  and  as 
the  forfeited  lands  he  beftowed  on  his  Normans  were  given  upon  the  terms, 
and  with  the  fame  burthens  as  lands  on  the  continent,  fo  were  the  reliefs 
he  exacted  from  fuch  in  the  fame  manner,  made  payable  by  the  heir,  not 
the  executor ;  and  as  to  the  unforfeited  lands,  which  remained  to  the  Sax- 
ons, and  were  very  inconfiderable  in  number,  he,  in  the  manner  I  mail 
ihew  in  the  next  lecture,  converted  them,  into  real  fiefs,  fuch  as  were 
then  in  ufe  in  France ;  from  whence  the  reliefs  came,  likewife,  to  be  exac- 
ted from  the  heir,  and  to  be  confidered  as  redemptions  of  the  inheritance, 
which,  upon  the  principles  of  the  feudal  policy,  could  not  be  entered  upon 
by  the  heir  till  the  relief  was  paid.  This  alteration  it  was  not  in  the  Saxon 
landholders  power  t©  oppofe,  on  the  account  before-mentioned ;  ner,  in- 
deed, was  the  burthen  on  the  heir  fuch,  if  no  confequences  were  to  be  ap^ 
prehended  from  it,  as  deferved  oppofition;  for  William  fixed  the  reliefs  at 
a  certainty,  at  the  fame  rate,  or  with  very  little  addition,  as  the  Herriots 
were  in  Canute's  law. 

BUT  experience  foon  fhewed  what  effe&s  might  follow  from  the  conftruc- 
tion  of  Norman  judges,  at  the  devotion  of  a  king,  upon  the  word  relevium 
being  ufed,  and  its  becoming  payable  by  the  heir,  inftead  of  the  executor; 
his  foil  and  fucceffor  infifted  that  reliefs  were  by  the  feudal  law  arbitrary, 
and  looked  upon  his  father's  limiting  them  as  a  void  act,  that  could  not  bind 
his  fucceflbrs.  Re,  accordingly,  exacted  arbitrary  and  exceffive  reliefs  both 
from  the  Norman  and  Saxon  landholders  in  England,  which  exafperated 
both  equally  againft  him;  for  though  the  reliefs  in  France  were,  by  110  law, 
us  yet  reduced  to  a  certainty,  yet  by  cuftoin  they  were  to,  be  reafonable, 

and 

f  Dr.  Brady's  Gloflary  to  his  Tra&s,  p.  3.     Spelman  on  Feuds  and  Tenure?,  p.  1 7»- 
and  i 8. 


LF.CT.  27.  L  A  W  S    or    EM  (,  L  .\ 

and  not  to  be  merely  at  the  will  and  difcrction  of  the  king  or  lord;  in  con- 
fequence  of  which  lie  was,  on  foinc  occafions,  forced  to  depend  ahnofl 
tircly,  in  his  wars  with  Normandy,  on  the  mercenary  army  of  the  lower 
Knglilh,  who  had  no  property  ;  and  had  his  reign  continued  much  longer, 
it  is  extremely  probable  he  would  have  felt  fcvercly  for  the  opprcflions  he 
laid  his  military  tenants  of  both  nations  under.  But  he  dying  in  te: 
Henry  was  obliged,  before  he  was  elected,  to  fwear  to  obfcrve  the  laws  of 
Edward  the  Confeflbr,  which  he  did,  with  fuch  emendations  as  his  father 
the  Conqueror  had  made  ;  and  accordingly,  as  to  reliefs  he  faithfully  ob- 
icrvcd  his  oath  ;  but  it  being  inconvenient  for  the  heir,  who  was  at  a  call  to 
perform  military  duty,  to  be  obliged  to  pay  his  relief  in  arms,  which  lit 
might  want  on  a  fudden  emergency,  it  was  therefore,  generally  commuted 
for  money.  However,  there  being  no  fettled  rate  fixed,  at  which  this  com- 
mutation mould  be  regulated,  this  alfo  was  made  an  engine  of  oppreflion 
in  John's  reign,  until  it  was  finally  fixed  at  a  certain  mm  of  money,  accor- 
ding to  the  different  ranks  of  the  perfons,  by  Magna  Charta  f . 

As  to  the  laft  argument,  of  the  Oath  offaiJty  being  taken  by  the  Saxons, 
it  is  the  weaken:  of  all.  An  oath  of  fealty  taken  by  a  feudal  tenant,  was  to 
his  lordy  whether  king  or  not.  It  was  merely  as  tenant  to  him  of  land,  and 
in  confideration  of  fuch,  and  confequently  the  proprietors  of  land  only 
were  to  take  it.  The  oath  the  Saxons  took,  which  is  likened  to  this,  was 
to  the  king,  as  king  not  as  landlord,  and  not  at  all  in  confideration  of 
land  ;  for  every  male  perfon  above  the  age  of  twelve  years  was  obliged  to 
take  this  oath  among  the  Saxons,  whether  he  had  lands  or  not.  In  truth, 
it  was  no  more  than  an  oath  of  allegiance  to  the  king,  as  king,  which  was 
common  in  all  kingdoms,  and  not  peculiar  to  thofe  where  the  feudal 
maxims  prevailed  J. 

-HENCE  I  think  I  have  fome  liberty  to  conclude,  though  I  do  it  with  due 
deference,  as  the  greatell  maflers  in  the  antient  laws  and  records  of  England 
have  been  divided  in  this  point,  that  the  very  reafons  urged  to  prove  that 
lands  were  held  in  the  Saxon  times  as  feudal  inheritances,  prove  rather  the 

K  k  2  contrary* 

f  Madox,  Hift.  of  the  Exchequer,  vol.  I.  chap.  10.  §  4. 
$  Spelm.  on  Feuds  and  Tenures,  chap.  21. 


260  LECTURES     era     THE  LECT.  27. 

contrary,  and  that  they  were,  in  the  general  I  mean,  of  the  nature  of  the 
allodial  lands  on  the  continent. 

IN  my  next  I  mail  fpeek  of  the  alterations  introduced  by  the  conqueror,, 
both  as  to  the  tenure  of  lands  in  England,  and  as  to  the  ad  minift  ration  of 
juftice,  which  were  fo  remarkable,  as  to  deferve  to  be  confidered  with  the 
flri&eft  attention,  as  they  laid  the  foundation  for  the  great  alterations  that 
have  followed  fmce. 


LECTURE 


LF.CT.  28.         LAWS     OF     K  N  G  L  A  N  D.  261 


LECTURE         XXVIII. 

The  Saxons,  though  their  lands  hi  general  were  allodial y  'were  not  grangers  t* 
military  benefices  for  life — The  alterations  introduced  by  William  the  Norman9 
as  to  the  tenure  of  lands  in  England. 

THOUGH,  in  my  laft,  I  have  delivered  my  opinion,  that  the  lands 
of  the  Saxons  were  not  feudal,  but  allodial,  I  would  not  be  under- 
flood  as  if  there  were  no  lands  held  by  them  upon  military  fervice,  different 
from  the  allodial  I  have  already  defcribed.  It  is  undeniable,  that  there 
was  among  them  lord  and  vaffal ;  that  there  were  lands  held  by  fuch  mili- 
tary fervice  as  was  performed  abroad  ;  where  the  bond  of  fealty  fubfifted 
between  lord  and  tenant,  and  where  the  tenants  were  obliged  to  ferve  in 
perfon  on  horfeback.  But  thefe  were  few ;  for  the  ftrength  of  the  Saxon 
army  lay  in  their  infantry.  Befides,  fuch  were  not  feudal  inheritances,  but 
benefices  for  life,  for,  in  all  the  records  remaining  of  them,  there  is  not  a 
word  implying  an  eftate  that  could  defcend,  or  a  fmgle  trace  of  ivardjhip, 
marriage,  or  relief,  the  neceflary  concomitants  of  fuch  eftates.  What  puts 
that  out  of  all  doubt,  in  my  apprehenfion,  is  one  of  the  laws  of  William 
himfelf,  where  he  fays  it  was  he  that  granted  lands  infcudum,  jure  haredi- 
tario,  which  words  are  added,  by  way  of  diftinguim'mg  the  eftates  he 
granted  from  the  military  eftates  for  life,  in  ufe  before.  The  word  feudum 
alone  would  have  been  fufficient,  had  that  law  been  in  ufe  before,  and  the 
words  jure  hxreditario  were  added  by  way  of  explanation  of  feudum  ;  and 
feudum  is  added  by  way  of  diftin&ion  from  allodial  inheritances  f. 

WHEN  thefe  military  benefices  began  among  the  Saxons,  I  cannot  fay 
is  determined,  but  mall  offer  a  conjecture,  that  carries  a  great  face  of  pro- 
bability. That  they  were  not  coeval  with  the  Heptarchy  is  certain  j  for 
none  of  the  German  nations  had,  at  that  time,  fixed  eftates  for  life  in  their 
military  holdings.  What  time,  then,  fo  probable  as  the  days  of  Egbert, 

who 
f  Wright  on  tenures,  chap.  2. 


s.62  L  E  C  T  U  R  E  S     ON     THE  LECT.  28. 

who  had  refided  long  in  the  court  of  Charlemagne,  where  thefe  tenures 
were  in  ufe,  and  where  he  faw  the  benefit  of  them  ?  Befides,  this  was  the 
very  time  that  a  body  of  horfe  began  to  be  wanted,  who  could  move  fwift- 
ly  to  encounter  the  Danes,  then  beginning  their  ravages,  and  whofe  prac- 
tice it  was  to  land  in  feparate  bodies,  and  to  kill  and  plunder,  until  a  fupe- 
rior  force  aifembled,  and  then  reimbarking,  to  commit  the  fame  devafta- 
tions  on  fome  other  defencelefs  part  of  the  coaft.  But  thefe  kind  of  te- 
nures, as  I  obferved  before,  could  be  but  few,  as  mod  of  the  lands  were 
inheritances  appropriated  to  particular  families* 

To  come  now  to  William.  A  fingle  battle,  wherein  Harold  and  the 
flower  of  the  nobility  were  flain,  determined  the  fate  of  England.  How- 
ever, many  of  the  great  men  furvived,  and  the  bulk  of  the  nation  were 
averfe  to  his  pretenfions.  A  weak  attempt  was  made  to  fet  up  Edgar 
Atheling,  the  only  prince  remaining  of  the  royal  race,  but  the  intrigues  of 
the  clergy,  who  were  almoft  univerfally  on  the  invader's  fide  (on  account 
of  tiis  being  under  the  protection  of  the  pope,  and  having  received  from 
him  a  confecrated  banner)  co-operating  with  the  approach  of  his  victorious 
army,  foon  put  an  end  to  Edgar's  fhadow  of  royalty.  He  fubmitted,  as 
did  his  aflbciates,  and  they  were  all  received,  not  only  with  kindnefs  but 
with  many  high  marks  of  diftin&ion.  William,  accordingly,  was  crowned 
with  the  unanimous  confent  of  the  nation,  upon  fwearing  to  the  laws  of 
Edward  the  ConfeiTor ;  and  it  mud  be  owned  he  behaved,  during  his  firft 
flay,  with  the  utmoft  equal  juftice  and  impartiality  between  the  Normans 
and  natives.  But  the  continuing  to  act  in  that  manner  did  not  confift  with 
his  views,  which  were  principally  two  ;  the  firft  to  gratify  his  hungry  ad- 
venturers with  lands,  the  next  to  fubvert  the  Engliih  law,  and  introduce 
the  feudal  and  Norman  policy  in  lieu  of  it  f . 

THE  firft  ftep  he  made  there  was  no  finding  fault  with.  It  was  now  al- 
lowed, that  William's  title  was  legal  from  the  beginning,  and  that  Harold 
was  an  ufurper,  and  all  that  adhered  to  him  rebels.  He  made  enquiry  for 
all  the  great  men  that  fell  in  battle  on  Harold's  fide.  Their  lands  he 
confifcated,  and  diftributed,  upon  the  terms  of  the  Norman  law,  to  his  fol- 
lowers ;  but  thefe  were  not  half  fufficient  to  fatisfy  the  expectants,  and  the 

Englifh 

f  Hale's  hift.  Com,  Law,  chap.  5,  and  7. 


T.  28.         L  A  \V  S     OF     ENGLAND.  263 

Englifh  were  dill  too  powerful,  as  he  had  pardoned  all  thofe  who  furvivcd. 
lie  therefore  returned  to  Normandy,  carrying  Kdgar  and  the  chief  of  the 
lifli  nobility  with  him,  under  pretence  of  doing  them  honour,  but  in 
reality,  that  they  might  be  abfent  while  his  views  were  carrying  on  ;  and  in 
the  mean  time  he  left  his  fchemc  to  be  executed  by  his  Normans,  and  thofe 
he  had  appointed  his  regents.  I  fay  his  fcheme,  for  his  intereft,  to  exalt 
one  fide  and  deprefs  the  other,  on  which  he  could  not  depend,  almoft 
forced  him  to  this  conduct.  The  oppreflions,  therefore,  were  fo  exorbitant 
in  his  abfencc,  as  mufl  neceflarily  have  driven  a  people  to  rebel,  and  for 
which  a  man  of  juftice  would  think  the  real  delinquents  ought  to  be  the 
perfons  punilhed,  whilft  the  unhappy  nation  merited  the  freed  pardon,  for 
whatever  they  did  when  actuated,  by  a  defpair,  proceeding  from  the  de 
of  juftice.  But  that  he  himfelf  was  the  immediate  fource  of  thefe  diftreflc* 
is  evident  from  his  temper,  which  was  fuch,  that  no  regents  of  his  durft 
have  acted  as  they  did  without  his  approbation.  The  Normans  began  by 
encroaching  on  their  neighbours  the  Englifli,.  nay  with  forcibly  turning 
them  out  of  their  entire  pofiefiions.  If  thefe  applied  to  the  regents  in  the 
curia  regis,  there  was  no  redrefs.  If  they  retaliated  the  injuries  they  fuf- 
fered,  they  were  declared  outlaws  and  rebels  f . 

THESE  proceedings  threw  the  whole  nation  into  a  flame,  and,  had  they 
had  a  leader  of  fufficient  weight  and  abilities  to  head  them,  William, 
perhaps,  might  have  been  dethroned  ;  but  the  right  heir,  and  all  the  men 
he  feared,,  were  out  of  the  kingdom.  They  produced,  therefore,  only  ill- 
concerted,  unconnected  infurreclions,  headed  by  men  of  no  confidcrable 
figure,  provoked  by  private  wrongs  ;  and  thefe  being  eafily  fupprefled,  af- 
forded a  fund  of  new  confifcations,  which  he  difpofed  of  in  the  fame  man- 
ner as  the  former,  and  thereby  fpread  the  ufe  of  the  feudal  law  further  into 
ibveral  parts  of  England.  However,  though  he  did  not  fpare  the  infur- 
gents,  nor  punifh  his  officers  that  had  occafioned  thofe  commotions,  he  did 
not,  as  fome  have  aflerted,  fcize  all  the  lands  of  England  as  his  by  right  of 
conqueft  ;  for,  when- he  came  over;,  his  court  was  open  to  the  complaints  of 
the  Englifh,  and  if  any  of  them  could  undeniably  prove,  as  indeed  few  of 
them  could,  that-they  had  never  aflifted  Harold,  or  been  concerned  in  the 
late  diflurbajices,  they  were  reftored  to  their  lands  as  they  held  them  be- 
fore ; 

|.  Bacon's  hift,  and  polit.  difcourfe,  chap.  44,  45.  &c.     Tyrrel's  hift. 


264  L  E  C  T  U  R  E  S     ON     THE*  LECT.  28. 

fore  ;  as  appears  from  the  cafe  of  Edwin  Sharrburn,  and  many  others.  By 
thefe  means  William  obtained  the  firft  of  his  great  ends,  the  transferring  al- 
moft  all  the  lands  of  England  to  his  followers,  and  making  them  inheri- 
tances, defcendible  according  to  the  Norman  law. 

BUT  as  to  the  inheritances  that  dill  remained  in  Englifh  hands,  had  he  not 
proceeded  fomewhat  farther,  they  would  have  gone  in  the  old  courfe,  and 
been  free  from  the  burthen  of  feudal  tenure.  But  how  to  alter  this,  and 
to  fubjecl:  the  few  allodial  lands,  as  alfo  the  church  lands,  to  the  Norman 
fervices,  was  the  queflion ;  for  he  had  fworn  to  obferve  Edward's  laws. 
The  alteration,  therefore,  mufl  be  made  by  the  commune  concilium^  or  par- 
liament, and  this  he  was  not  in  the  leaft  danger  of  not  carrying,  in  a  houfe 
compofed  of  his  own  countrymen,  enriched  by  his  bounty,  and  who  were 
born  and  bred  under  the  law  he  had  a  mind  to  introduce ;  and  who  could 
not  be  well  pleafed  to  fee  fome  of  the  conquered  nation  enjoy  eftates  on 
better  terms  than  themfelves  the  conquerors.  The  pretence  of  calling  this 
affembly,  which  was  conveened  in  the  fourth  year  of  his  reign,  was  very 
plaufible.  The  Englifh  had  grievoufly  and  juflly  complained  of  the  con- 
ilant  violation  of  the  Saxon  laws,  and  the  only  extenuation  that  could  be 
made  for  this,  arid  which  had  fome  foundation  in  truth,  was,  that  the  king 
and  his  officers  were  ftangers,  and  not  acquainted  with  that  law.  He  there- 
fore fummoned  this  commune  concilium,  or  parliament,  to  afcertain  what  the 
antient  law  was,  and  to  make  fuch  amendments  thereto,  as  the  late  change 
and  circumftances  of  affairs  required.  And,  for  their  inftruftion  in  the  old 
law,  which  was  but  partly  in  writing,  moft  of  it  cuftomary,  he  fummoned 
twelve  men,  the  moft  knowing  in  the  laws  of  England,  out  of  each  county, 
to  aflifl  and  inform  them  what  thofe  laws  were. 

ACCORDINGLY,  we  find  the  laws  of  William  the  Firft  are,  in  general,  lit- 
tle other  than  tranfcripts  of  the  Saxon  laws  or  cufloms.  However,  there 
are  two,  which  were  intended  to  alter  the  military  policy  of  the  kingdom, 
to  abolifh  the  trinoda  necejfitas,  and  in  its  lieu,  to  make  the  lands  of  the  En- 
glifh, and  of  the  church  liable  to  knights  fervice,  as  the  Normans  lands  were 
by  his  new  grants,  and  thereby  make  the  fyftem  uniform.  His  fifty  fecond 
law  is  entirely  in  teudal  terms,  and  was  certainly  drawn  up  by  fome  perion 

fkilled 


LECT.  28.          LAWS     OF     E  N  G  L  A  N  I). 

(killed  in  that   law,  for  the  purpoli-  I  1.  It  run,;  thus:    Sta- 

tuimus  lit  omncs  liberi  homines  I  infra  ct 

e,\fr/i  unircrfum  return  ang/iit,  IVillu'lmo  Domttwju'sji Jilts  cffi  volant,  L 
&  honorcs  illius  itbiquc  feruare  cum  co,  &  contra  ininiicas  <?  alienigcnas  d 
dcre  f . 

I  SHALL   make  a  few  remarks  on  the  wording  of  this  law  ;    and  firfl  on 
the  word  ftutuimus.     Wright  J  obierves,  that  it   being  plural,  implies  that 
this  was  not  by  the  king  alone,  but  by  the  commune  concilium,  or  parliament, 
for  the   ftile  of  the  king  of  Kngland,  when   Ipeaking  of  himfelf  was  for 
s  after  in  the  Angular  number,  and  in  the  fubfequent  part  he  is  plainly 
diftinguifhed  from  the  enadors  of  the  law  ;    for  it  is  not  mihi,  or  nobis  fidc- 
les  e//c,  but  Willidmo  Domino  fuo  in  the  third  perfon,  nor,  terras  &  honorcs 
Jtieos  or  nojlros  fervare,  but  terras  &  honor  es  illius  ;  and  indeed,  in  the  fub- 
fequent law  I  lhall  mention  it  is  exprefsly  laid  in  eilcft,  that  the  fubjefting 
the  free  lands  to  knight  fervice  was  per  commune  concilium.     Secondly,  the 
•words  liberi  homines  is  a  term  of  the  feudal  law,  properly  applicable  to  allo- 
dial tenants,  who  held  their  lands  free  from  the  military  fervice  that  vaflals 
were  obliged  to  :  And  in  this  fenfe  was  it  ufed  in  France  alfo,  from  whence 
William  came.     In  thefe  words  were  included  alfo,  the  men  of  the  church, 
for  as  their  lands  were  before  fubjeft  to  the  trinoda  neccffitas^  it  was  reafon- 
able  when  that  was  abolifhed,  they  fhould  be  fubject  to  this  that  came  in  the 
lieu  of  it.     Fadcre  wt\<\fucramento  affirment.     I'^clus  is  the  homage,  which, 
though  done  by  the  tenant  only  to  the  lord,  was  looked  upon  by  the  feu- 
difts  as  a  contract,  and  equally  bound  both  parties,  as  \sfacramentiim  ;  as 
appears  after  the  feudal  oath  of  fealty ;    and  they  are  placed  in  the  order 
they  are  to  be  done,  homage  firfl  and  then  the  oath  of  fealty.     IVilHclmo 
Domino  fm,  not  regi,  not  the  oath  of  allegiance  as  king,  but  the  oath  of 
fealty  from  a  tenant  to  a  landlord,  for  the  lands  he  holds.     Fidclis  is  the 
very  technical  word  of  the  feudal  law  for  a  vafial.     But  the  words  infra  6* 
extra  univcrfum  regnum  angliie  are  particularly  to  be   obferved  :    For  theic 
made  a  deviation  from  the  general  principles  of  the  feudal  law,  and  one 
highly  advantageous  to  the  kingly  power.     By  the  feudal  law  no  vaflal  was 
obliged  to  ferve  his  lord  in  war,  unlefs  it  was  a  defenfive  war,  or  one  he 

L  1  thought 

t  L  L.  Anglo  Saxon,  aj>.  Wilkins,  p.  22$.     V'right  on  tenures,  p.  66. 
J  P.  69. 


266  L  E  C  T  U  R  E  S     ON     THE  LECT.  28. 

thought  a  juft  one,  nor  for  any  foreign  territories  belonging  to  his  lord, 
that  was  not  a  part  of  the  feignory  of  which  he  held  ;  but  this  would  not 
effectually  ferve  for  the  defence  of  William.  He  was  duke  of  Normandy, 
which  he  held  from  France,  and  he  knew  the  king  of  that  country  was 
very  jealous  of  the  extraordinary  acceffion  of  power  he  had  gained  by  his 
new  territorial  acquifition,  and  would  take  every  occafion,  juft  or  unjuft,  of 
attacking  him  there  ;  in  fhort,  that  he  muft  be  almoft  always  in  a  ftate  of 
war.  Such  an  obligation  on  his  tenants,  of  ierving  every  where,  was  of 
the  higheft  confequence  for  him  to  obtain  ;  nor  was  it  difficult,  as  moft 
of  them  had  alfo  eflates  in  Normandy,  and  were  by  felf-intereft  engaged  in 
its  defence. 

THE  next  law  of  his  I  fhall  mention  is  the  fifty-eighth,  which  enjoins  all 
who  held  lands  by  military  fervice,  and  fome  others,  to  be  in  perpetual  rea- 
dinefs.  It  runs  to  this  effe6t :  "  We  enacl:  and  firmly  command,  that  all 
"  earls  and  barons  and  knights  and  fervants,y^r^7>«to,  (that  is  the  lower 
"  foldiers,  not  knighted,  who  had  not  yet  got  lands,  but  were  quartered 
"  on  the  abbeys,)  and  all  the  freemen,  (namely  the  Saxon  freeholders,  and 
"  the  tenants  of  the  church,  which  now  was  fubjefted  to  knights  fervice)  of 
"  our  whole  aforefaid  kingdom,  mail  have  and  keep  themfelves  well  in 
"  arms,  and  in  horfes,  as  is  fitting,  and  their  duty  ;  and  that  they  mould  be 
"  always  ready,  and  well  prepared  to  fulfil  and  to  act  whenfoever  occafion 
"  mail  be,  according  to  what  they  ought  by  law  to  do  for  us  from  their 
"  fiefs  and  tenements  ;  and  as  we  have  enacted  to  them  by  the  commune 
"  concilium  of  our  whole  kingdom  aforefaid  ;  and  have  given  and  granted 
"  to  them  in  fee  in  hereditary  right."  The  great  efFect  of  this  law  was  to 
fettle  two  things,  not  exprefsly  mentioned  in  the  former ;  the  firft  to  mew 
the  nature  of  the  fervice  now  required,  knight  fervice  on  horfeback  j  and 
the  other,  to  afcertain  to  all  his  tenants,  Saxons  as  well  as  Normans,  the 
hereditary  right  they  had  in  their  lands,  for  if  that  had  not  been  done  by  this 
law,  as  now  all  lands  were  made  feudal,  and  their  titles  to  them  confequent- 
iy  to  be  decided  by  that  law,  they  might  otherwife  be  liable  to  a  conftruc- 
tion,  according  to  its  principles,  that  any  man,  who  could  not  (hew  in  his 

title 


LEOT.  28.  LAWS    OF    ENGLAND. 

title  li-orJs  (fir.bcriidtuc,  \v!iicli  the  Saxons  generally  could  not,  w;u  In.1 
nant  for  lite  {. 

Tin  ;  general  law  then  j)iit  all  on  the  fame  footing,  and  j>.  n  inheri- 

tances, as  they  iiad  before,  but  of  anot!  ,:e,  the  ieudal  one,  and  D 

iVquently,  made  them  fubjed  to  all  its  regulations.      From  t!  ,  and  in 

ronfequence  of  thele  laws,  the  maxim  prevailed,  that  all  lands  in  England  arc 
from  the  king,  and  that  they  all  proceeded  from  his  free  bounty,  as  is 
y  implied  in  the  word  concc/Jimus  ;  anil  hence  fomc,  indeed  many, 
have  imagined  that  tin-  conqueror  feizcd  all  the  lands  of  England,  as  his  by 
right  of  conqueft,  and  diflributcd  them  to  whom,  and  on  what  terms  lie 
pleafed.  With  refpect  to  the  greater  part,  which  he  gave  to  his  Norm;,  . 
this  is  true  ;  but  it  appears  from  the  records  of  his  time,  that  it  was  not  uni- 
verfally  the  cafe.  The  laws  I  have  mentioned  to  changed  the  nature  ol 
inheritances,  which  he  did  not  feize,  that  they  were  fubjcct  to  all  the  fame 
confequences,  as  if  he  had  fo  done  ;  though  in  truth,  with  refpect  to  the 
Saxons,  he  did  not  difpoffefs  them.  It  \vas  but  a  fiction  in  law. 

I  HAVE  mentioned  that  he  made  the  lands  of  the  church  liable  to  knights 
tervice,  in  lieu  of  the  military  expedition  they  were  fubjeft  to  before  ;  but 
this  is  to  be  underftood  with  fome  limitation.  For  where  the  lands  of  an 
ecclefiaftical  perfon,  or  corporation,  were  barely  fufficient  to  maintain  thofe 
that  did  the  duty,  they,  for  neceflity's  fake,  were  exempted  ;  and  the  Saxon 
expedition  being  abolifhed,  the  contribution  thereto  fell  with  it,  and  they 
became  tenants  in  frankalmoinc^  or  free  alms.  But  where  an  ecclefiaftical 
corporation  was  rich,  and  able,  befides  their  neceflary  fupport,  according 
to  their  dignity,  they  were,  by  thefe  laws,  under  the  words  liberi  homines, 
fubjefted  to  the  new  ordained  military  fervice,  as  they  had  been  before  to 
the  old,  and  according  to  their  wealth,  were  obliged  to  find  one  or  more 
knights  or  horfemen.  If  they  were  obliged  to  furnifh  as  many  as  a  baron 
regularly  was,  they  were  barons,  as  all  the  bifliops  and  many  of  the  great 
abbots  were ;  and,  as  barons,  fat  in  the  commune  concilium  ;  whereas,  be- 
fore, the  clergy  in  general  fat  in  parliament,  as  well  as  the  laity,  not  as  a  fe- 
parate  body,  nor  inverted  with  feparate  rights,  but  both  clergy  and  laity 
equally  concurred  in  making  laws,  whether  relative  to  temporal  affairs  or 
fpiritual ;  though,  with  refped  to  the  latter,  it  may  well  be  inferred,  from 

L  1  2  the 

f  L  L.  Anglo.  Saxon,  ap.  Wiikins.     Wright  on  tenures,  p.  72. 


2(S3  L  E  C  T  U  R  E  S     ON     THE  LECT.  28. 

the  ignorance  of  the  times,  that  they  had  almoft  the  entire  influence.  But 
after  this  time  the  clergy  became  a  feparate  body  from  the  laity,  had  di- 
flinct  interefts  alfo,  and  a  feparate  jurifdiction  ;  nay,  I  may  fay,  became,  in 
fome  degree,  a  feparate  branch  of  the  legiflature,  by  the  right  they  claimed, 
and  exercifed,  of  making  canons  to  bind  laity  as  well  as  clergy  f.  But  the 
explaining  this  would  carry  me  too  far  at  prefent,  fo  I  mall  defer  it  to  my 
next  lecture. 

IN  the  mean  time,  I  mail  juft  recapitulate  the  prodigious  alteration,  as  to 
the  properties  of  landed  eftates  in  England,  introduced  by  the  two  laws  of 
the  conquerors,  I  have  mentioned,  from  what  was  their  nature  and  qualities 
before  that  time.  They  had  been  the  abfolute  proprieties  of  the  owner,  (I 
fpeak  in  general,)  they  could  be  aliened  at  pleafure,  they  could  be  devifed 
by  will,  were  fubject  to  no  exactions  on  the  death  of  the  owner,  but  a  very 
moderate  fettled  herriot  paid  by  the  executor.  In  the  mean  time,  on  the 
death  of  the  anceflor,  the  heir  entered  without  waiting  for  the  approbation 
of  the  lord,  or  paying  any  thing  for  it ;  and  his  heir,  if  there  was  no  will, 
was  all  the  fons  jointly.  No  wardfhip,  or  marriage,  was  due  or  exacted,  if 
the  heir  was  a  minor.  All  thefe,  by  the  feudal  cuftoms  being  introduced, 
were  quite  altered.  Lands  could  no  longer  be  aliened  without  the  confent 
of  the  lord.  No  will  or  teflament  concerning  them  availed  any  thing.  The 
heir  had  no  longer  a  right  to  enter  into  his  anceftor's  inheritance  immediate- 
ly on  his  death,  until  he  (not  the  executor)  had  paid  a  relief  (and  that  not 
a  moderate  one)  and  been  admitted  by  the  lord.  The  heir,  likewife,  was 
not  all  the  fons  jointly,  but  one,  firft,  fuch  as  the  lord  pleafed  to  prefer ;  at 
length  it  became  fettled  univerfally  in  favour  of  the  eldeft ;  and  the  fruits  of 
tenure,  wardihip,  marriage  and  relief  (for  the  Saxon  herriot  was,  as  I  have 
mentioned,  a  different  thing}  came  in  as  necefTary  attendants  of  a  feudal 
donation. 

No  wonder,  then,  that  it  has  been  faid  William  introduced  a  new  law, 
the  Norman  one.  He  certainly  did  fo  as  to  landed  eftates  j  but  this,  as  I 
have  obferved  before,  by  the  confent  of  his  parliament,  who,  being  Nor- 
mans, were  as  well  pleafed  with  the  change  as  himfelf  j  but  it  is  not  true 

\vitli 

•J-  Madox,  Baronia  Angl.  p.  25.    Seld.  tit.,  hon.  part  2.  ch.  5. 


LECT.  28.        L  A  W  S    OF     E  N  G  L  A  N  D.  269 

with  refpeft  to  the  other  old  Saxon  laws,  which  did  not  clafli  with  the  dcfign 
of  introducing  the  military  feudal  fyftem.  Them  he  confirmed,  and  his 
feudal  laws  were  called  only  emendations.  However,  certain  it  is,  his  fe- 
cret  dcfign  was  to  eradicate  even  the  Saxon,  the  laws  he  had,  in  purfuancc 
of  his  coronation  oath,  confirmed,  and  that  he  took  many  ftepi  thereto; 
which  though  they  had  not  the  full  effect  he  intended,  wrought  confiderablc 
changes.  What  thefe  were,  and  the  conferences  of  them,  fliall  be  the 
fubject  of  the  next  lecture. 


LECTURE 


270  LECTURES     ON     THE  LECT.  29, 


LECTURE         XXIX. 

The  alterations  introduced  by  William^  as  to  the  adminlftration  of  juftice — The 
Judges  of  the  Curia  Regis  are  appointed  from  among  the  Normans — The  comi- 
ty courts  decline — The  introduction  of  the  Norman  language — The  diftmt'tion 
between  courts  of  record^  and  not  of  record — The feparation  of  the  fpiritual  and 
temporal  courts — The  confequences  of  this  meafure. 

WILLIAM,  by  altering  the  nature  of  land  eftates,  and  the  conditions 
upon  which  they  were  held,  had  proceeded  a  good  way  in  his  fe- 
cond  capital  defign,  the  introduction  of  the  Norman,  and  the  abolifhing  of 
the  Saxon  law.  And  farther  than  that,  it  was  not  proper  nor  confident 
with  his  honour,  who  had  fworn  to  Edward's  laws,  to  proceed  openly. 
However  he  formed  a  promifing  fcheme  for  fapping  and  undermining  the 
Saxon  law  by  degrees.  Firft,  he  appointed  all  the  judges  of  the  curia  regis, 
from  among  the  Normans,  perfons  fond  of  their  own  law,  ignorant  of  the 
Englifh,  and  therefore  incapable,  even  if  they  had  a  mind,  to  judge  accor- 
ding to  it. 

BEFORE  his  time  this  court  only  meddled  with  the  caufes  of  the  great 
lords,  or  others  that  were  of  great  difficulty,  but  now  it  was  thought  proper 
to  difcourage  the  county  courts,  and  to  introduce  moft  caufes  originally  into 
the  fuperior  court ;  and  for  this  there  was  a  reafonable  pretence,  from  the 
divifions  and  factions  between  the  two  nations  and  the  partialities  that  mufl 
ever  flow  from  fuch  a  fituation  of  affairs.  The  ancient  laws  of  England  had 
been  written,  fome  in  the  Saxon,  fome  in  the  Latin  tongue,  and  the  laws  of 
William,  and  of  many  of  his  fucceflbrs,  were  penned  in  the  latter  language. 
But  in  the  curia  regis  all  the  pleadings  henceforward  were  entered  in  the 
Norman  tongue,  the  common  language  of  his  court,  as  were  alfo,  all  the 
proceedings  therein,  until  the  time  of  Edward  the  Third.  This  introduced 
the  technical  law  terms  and  with  thofe  came  in  the  maxims  and  rules  of 
adminiflering  juftice  belonging  to  that  people,  which  gradually,  wherever 

they 


LECT.  29.  L  A  WS    OF    EN  GL  AN  I).  271 

they  differed   from,  fuperlcded  the  Englilh.      Hence   proceeded  the   great 
affinity  I  may  fay,  identity,  between  the  antient   law  of  Normandy,  a 
forth  in  the  uutunricr  of  that  country,  and  the  law  of  England,  as  it  flood 
foon  alter  the  conqueft. 

Tin:  analogy,  however,  did  not  arife  from  this  alone.  Though  England 
borrowed  mod  from  Normandy,  yet,  on  the  other  hand,  Normandy  borrow- 
ed much  from  England.  William,  for  the  cafe  of  his  jx^ople,  who  had  oc- 
cafion  to  frequent  his  court,  or  had  fuits  in  the  curia  rcgis,  eftablifhed  fchools 
for  inflrucYmg  perfons  in  this  language,  and  obliged  parents  of  fubflance  to 
lend  their  children  thither,  which  had  the  confequence  of  abolifhing  the  old 
Saxon  tongue,  and  forming  a  new  language,  from  the  mixture  of  both  f . 

THIS  introduction  of  a  new  language,  together  with  the  exaltation  of  ther 
curia  regis  and  the  consequent  depreflion  of  the  county  courts,  introduced, 
as  I  apprehend,  the  diftincTion  between  the  courts  of  record r,  and  not  of  recwd, 
and  made  the  county  courts  confidered  of  the  latter  kind.  Courts  of  re- 
cord are  fuch  whofe  proceedings  are  duly  entered,  which,  at  that  time,  was 
to  have  been  done  in  the  Norman  tongue,  and  which  proceedings  are  of 
fuch  weight,  as,  unlefs  reverfed,  for  ever  appearing  from  the  record,  can 
never  be  gainfaid  or  controverted.  Now,  to  allow  fuch  a  privilege  to  the 
proceedings  of  the  inferior  courts,  the  county  ones,  where  the  fuitors  were 
judges,  and  where,  befides,  the  proceedings  were  in  the  Englifh  language, 
would  have  been  contrary  to  the  policy  of  that  time,  and  would  have  tended 
rather  to  the  confirmation  than  depreflion  of  the  old  law.  The  fpiritual 
courts,  alfo,  are  not  allowed  to  be  courts  of  record,  and  that,  I  prefume, 
becaufe  they  were  antiently  a  part  of  the  county  courts,  and  feparated  from 
them,  as  I  mall  mew  prefently  in  this  reign,  and  therefore  could  have  no 
greater  privilege  than  the  court  from  which  they  were  derived.  However 
fome  inferior  courts,  fuch  as  the  touni,  and  the  leet,  were  allowed  to  be 
courts  of  record,  and  that,  I  conceive,  both  for  the  benefit  of  the  realm, 
and  the  profit  of  the  king  ;  for  thcfe  were  criminal  courts,  where  public  of- 
fences were  punifhed,  and  therefore  fliould  have  all  weight  given  them,  and 
where  the  king's  forfeitures  and  fines  for  crimes  were  found. 

I    IIAVF. 

f  Dtigdale'S  orig.  jurid.  c.  34.     Madox,  hift.  of  Exchcq.  cl  .  2.     I. a  coutume  ile  Nor- 
m?vndie. 


LECTURES    ON    THE  LECT.  29* 

I  HAVE  obferved  before,  that  the  courts,  in  the  Saxon  times,  were  mixed 
aflemblies,  where  the  bifhop  and  fheriff  prefided,  and  mutually  aflifted  each 
other,  and  where  the  bimop,  I  may  add,  had  a  (hare  in  the  amerciaments 
and  fines.  But  in  this  reign  the  fpiritual  and  temporal  courts  were  fepara- 
ted  by  William,  a  thing  which  afterwards  was  of  bad  confequence  to  many 
of  his  fuccefibrs,  but  was,  at  the  time,  very  ferviceable  to  the  views  he  then 
had.  This  was  certainly  done  partly  to  oblige  the  pope,  who  had  efpoufed 
his  title,  and  at  this  time  was  fetting  up  for  the  univerfal  lord  of  churchmen, 
though,  in  after  times,  they  carried  their  pretenfions  much  higher  f . 

ONE  great  engine  the  popes  fet  on  foot  to  attain  the  power  they  aimed 
at,  was  to  make  a  diftinction  between  clergy  and  laity  ^  to  have  the  matters 
relating  to  the  former,  as  well  the  merely  fpiritual  as  the  temporal  rights 
they  had  acquired,  cognizable  only  in  their  own  jurifdictions  ;  and,  to  pre- 
fer ve  the  diflinction  flronger,  to  forbid  their  interfering  in  the  temporal 
courts,  upon  pretence  of  their  time  being  taken  up  in  fpiritual  exercifes,  and 
particularly,  that  it  fuited  not  the  piety  and  charity  of  a  clergyman,  even  by 
his  prefence,  to  countenance  the  proceeding  to  fentence  of  death,  or  the 
mutilation  of  limbs.  Many  were  the  laws  they  made  for  this  purpofe,  upon 
motives  of  pretended  piety ;  and  the  circumftances  and  practices  of  the 
times  contributed  greatly  to  their  fuccefs.  The  emperors,  kings,  and  great 
lords,  had  the  nomination  to  bifhoprics,  and  other  benefices,  as  their  an- 
ceftors  had  been  the  founders,  and  their  lands  were  held  from  them.  But 
fhameful  was  the  abufe  they  made  of  this  power.  Upon  pretence  of  the 
clergy  being  their  beneficiary  tenants,  according  to  the  principles  of  the  feu- 
dal law,  they  exacted  reliefs,  and  arbitrary  ones  from  them  before  invefti- 
ture,  or,  to  fpeak  in  plain  terms,  they  fold  them  on  Simoniacal  contracts  to 
the  higheft  bidder,  as  the  Conqueror's  fon  William  did  afterwards  in  Eng- 
land ;  fo  that  the  profligate  and  vicious  were  advanced  to  the  higheft  dig- 
nities, while  the  confcientious  clergy  remained  in  obfcurity ;  nay,  if  they 
could  get  no  clergyman  to  come  up  to  their  price,  they  made  gifts  of  the 
title  and  temporalities  to  laymen,  nay,  to  children  ;  it  was  a  matter  of  little 
concern  that  there  was  no  one  to  do  the  fpiritual  office. 

SUCH 

f  Baron  Gilbert's  hifh  of  Excheq.  p.  55-.     Lord  Littleton's  hifh  of  Henry  II.  410. 
vol.  i.  p.  43.  457.     Carte,  vol.  I.  p.  419.  420. 


LECT.  29.  L  A  W  S    OF    E  N  G  L  AN  D. 

SUCH  practices,  (and  they  were  too  common)  gave  juft  and  univerfal 
fence  to  all  fober  periims  1<>  that  the  popes  \vcre  generally  applauded  for 
their  aiming  at  the  reformation  of  the  evils,  and  for  the  endeavouring,  by 
their  decrees,  to  reform  the  morals  of  the  corrupt  clergy,  and  to  reflore  an 
elective  manner  of  conferring  benefices,  though  their  real  defign  was  firft  to 
become  the  protectors  of  the  clergy,  next,  their  lords  and  mafters,  and 
then,  by  their  means,  to  tyrannize  over  the  laity  ;  a  plan  which  they  carried 
into  execution  with  too  much  fuccefs.  This  plan  was  in  the  height  of  its 
operation  in  William's  reign.  The  foundation  of  it  had  been  laid  before, 
as  I  obferved,  in  the  many  diftinclions  made  between  clergy  and  laity,  and 
the  prohibiting  the  firft,  except  fome  great  ones,  from  meddling  with  fecu- 
lar  affairs,  or  tribunals.  This  feparation,  however,  had  not  yet  taken  place 
i  England,  and  it  is  not  a  wonder  that  William,  who  had  peculiar  views  of 
his  own  in  it,  as  I  mail  obferve,  thought  it  reafonable  to  oblige  his  bene- 
fa.  or  the  pope,  and  to  conform  the  conftitution  of  this  church  and  nation 
to  that  of  France,  where  the  clergy  were  a  feparate  body. 

THE  private  views  of  the  king  were  twofold,  the  firft  arofe  merely  from 
"his  perfonal  character,  his  avarice.  By  the  bifhop's  ceafmg  to  be  a  judge 
in  the  temporal  courts,  he  loft  his  mare  of  the  mulcts  or  fines  impofed  there- 
in, and  in  confequence  the  king's  two-thirds  of  them  were  encreafed.  But 
his  other  view  lay  deeper.  To  comprehend  this,  we  muft  remember  how 
great  was  the  ignorance  of  thofe  ages.  Scarce  a  man,  except  a  clergyman, 
could  read  or  write,  infomuch  that  being  able  to  read  was  looked  upon  as  a 
proof  of  being  in  orders.  Many  even  of  the  greateft  lords  could  not  write 
their  names,  but  figned  marks  ;  and  from  this  ignorance  it  was  that  proceed- 
ed the  great  weight  our  law  gives  to  fealing  above  figning  any  inftrument, 
and  that  fealing  is  what  makes  it  a  man's  deed.  It  followed  from  hence 
that  the  laity  muft  be  grofsly  ignorant  in  point  of  the  laws.  Their  know- 
ledge could  extend  no  farther  than  as  they  remembered  a  few  particular 
cafes,  that  fell  under  their  own  obfervation  ;  whereas  the  clergy  had  the 
benefit  of  reading  the  written  laws,  and  confulting  the  proceedings  thereon, 
in  the  rolls  of  the  courts  of  juftice,  and  they  were  the  only  lawyers  of  the 
times  j  infomuch  that  it  became  a  proverb,  nullus  ckricus  nlfi  cauf.dicus. 

M  ra  WHAT 


274  LECTURES     ON     THE  LECT.  29. 

WHAT  method  then  could  fo  effectually  anfwer  the  king's  end  of  making 
the  Saxon  law  fall  into  oblivion,  which  he  could  not  openly  abolifh,  after 
having  folemnly  fworn  to  obferve  it,  as  the  removing  from  the  courts  of 
juftice  thofe  perfons  who  only  knew  it,  and  could  oppofe  any  innovation  his 
Norman  minifters  mould  attempt  to  introduce.  This  policy,  however,  as 
artfully  as  it  was  laid,  had  not  its  full  effect ;  for  many  of  the  clergy,  un- 
willing to  lofe  fo  gainful  a  trade,  appeared  dill  in  thefe  courts  in  difguife, 
as  laymen,  and  at  this  time  it  is  very  probably  conjectured  that  that  ornament 
of  the  ferjeant  at  law's  drefs,  the  coif,  was  introduced,  and  for  this  very  pur- 
pofe  of  hiding  the  tonfure,  which  would  have  mewn  them  to  be  cjerks. 
This  their  attendance,  ia  fome  degree,  fruftrated  the  fcheme,  and  many  of 
the  Saxon  laws,  fuch  efpecially  as.  were  repeated,  in  William's.,  kept  their 
ground,  but  many  more  were  forgotten. 

I  MENTIONED  that  one  motive  of  William's  to  feparate  the  jurifdicYions^,, 
was  to  oblige  the  pope,  to  whofe  favour  he  owed  much,  yet  it  ought  to  be 
obferved  to  his  honour,  that  he  maintained  the  independency  of  his  king- 
dom with  a  royal  firmnefs.  Pope  Gregory,  commonly  called  Hildebrand, 
who  was  the  firft  that  ventured  fo  far  as  to  excommunicate  fovereign  princes,, 
as  he  did  the  emperor  no  lefs  than  four  different  times,  conceiving  William 
could  not  fit  fecurely  on  his  throne  without  the  aid  of  his  fee,  demanded  of 
him  homage  for  the  kingdom  of  England,  and  the  arrear's  of  Peter's  pence  j 
grounding  his  claim  of  fuperiority  on  his  predecefibr's  confecrated  banner, 
and  that  Peter-pence  was  the  fervice  by  which  the  kingdom  was  held  from 
the  holy  fee.  But  he  found  he  had  a  man  of  fpirit  to  deal  with.  William 
allowed  the  juftice  of  the  demand  of  Peter-pence,  and  promifed  to  have  it 
collected  and  paid,  not  as  a  tribute,  but  as  a  charitable  foundation,  as  in 
truth  it  was,  to  fupport  a  college  of  Englifh  (Indents  at  Rome,  for  the  be- 
nefit of  the  Englifh  church.  As  to  homage,  he  abfolutely  refufed  it,  and 
declared  he  held  his  crown  from  God  alone,  and  would  maintain  its  inde- 
pendance  ;  and  to  convince  the  pope  he  was  in  earneft,  he  ifTued  an  edict 
forbidding,  on  their  allegiance,  his  fubjedts  to  acknowledge  any  perfon  for 
fovereign  pontiff',  until  he  had  firfl  acknowledged  him.  So  bold  a  flep  con- 
vinced Gregory,  who  was  already  fufficiently  embroiled  with  the  emperor, 
that  this  was  no  fit  time  to  pufh  things  j  and  fo  he  dropped  his  project,  but 

without 


LECT.  29.         LAWS     OF     ENGLAND. 

without  retracing  it ;  for  the  court  of  Rome  never  did  in  any  cafe  formally 
recede  from  a  pretenfion  it  had  once  advanced. 

THE  confcquences  of  the  fcparation  of  the  ccclefiaftical  from  the  tempo- 
ral jurifdidion  were  many.  It  naturally  occafioned  controvcrfies  concern- 
ing the  refpedive  limits,  and  thefe  gave  rife  to  the  curia  regis  interpo/u) 
thefe  matters,  and,  by  prohibitions,  preventing  one  from  encroaching  upon 
the  other.  The  great  contefl  was  concerning  fuits  for  benefices,  or  church 
livings,  which  the  clergy  contended  were  ofjjbirifua/,  and  the  king's  courts, 
of  temporal  cognizance.  And  this,  indeed,  was  the  great  queftion  that,  in 
thofe  days,  divided  the  Chriilian  world  abroad.  However  in  England,  the 
clergy  were,  at  length,  foiled  in  this  point.  But  a  much  greater  evil  arofc 
from  this  feparation.  It  is  a  maxim  of  all  laws,  that  no  man  fliould  be 
twice  punifhed  for  the  fame  crime,  and  this  jufl  maxim  the  clergy,  in  fa- 
vour of  the  members  of  their  own  body,  perverted  in  a  (hocking  manner. 
If  a  clerk  committed  murder,  rape,  or  robbery,  the  bifliop  tried  and  con- 
demned him  to  penance ;  and  this  fentcnce  was  made  a  pretence  of  not  de- 
livering him  to  the  temporal  courts,  to  be  tried  for  his  life.  This  was  one 
of  the  great  difputes  concerning  the  conflitutions  of  Clarendon,  in  Henry 
the  Second's  time,  between  him  and  archbifliop  Becket  f, 

AT  length,  about  Henry  the  Third's  reign,  the  limits  between  the  fevc- 
ral  jurifdidions  were  pretty  well  fettled,  and  by  fubfequent  flatutes,  and  ju- 
dicial refolutions,  are  confined  to  the  refpedive  limits  they  are  now  under. 
Indeed,  fince  the  Reformation,  as  the  credit  of  the  canon  law  has  declined, 
on  .account  of  the  dilatory  proceedings,  and  the  ufe  of  excommunication 
upon  every  trifling  contempt,  the  reputation  of  the  ecclefiaflical  courts  has 
greatly  fallen,  and  prohibitions  are  now  hTued,  in  many  cafes,  where  they 
could  not  have  been  granted  in  former  times.  Yet,  if  we  examine  accurate- 
ly, we  (hall  find  that  thefe  great  complaints,  which,  it  mud  be  owned,  are 
in  the  general  juft,  namely,  of  dilatorinefs  and  excommunications,  proceed- 
ed from  the  feparation  of  the  two  courts  by  William.  Before,  when  the 
courts  fat  together,  the  meriif  aflifted  the  bi'ihop,  and  by  his  temporal  power 
compelled  the  parties  to  appear,  and  fubmit  to  the  fentence,  if  they  were 

M  m  2  con- 

f  M;ulox,  Excheq.  ch.  I.     Bacon  on  the  Lws  and  government  of  England,   part  I. 
ch.  59.  and  66.     Brady,  Carte  and  Tyrrel. 


276  LECTURES     ON     THE  LECT.  29. 

contumacious  againft  excommunication.  But  when  they  were  feparated, 
the  bifhop  was  left  to  his  fpiritual  arms,  merely,  excommunication  ;  and  as 
the  confequences  of  fuch  a  fentence  were,  in  the  fuperftitious  times,  looked 
on  as  very  dreadful,  and  are  really  fevere  in  law,  feveral  intermediate  pro- 
ceffes  and  notices  were  necefiary  before  they  proceeded  to  that  extremity  ; 
and  this  gave  opportunity  to  litigious  perfons  to  difobey  every  order  the 
court  made  in  a  caufe,  until  they  came  to  the  brink  of  excommunication, 
and  that  way,  by  repeated  contumacies,  to  fpin  out  caufes  to  an  unconfcion- 
able  length.  And  the  want  of  other  arms  compelled  thefe  courts,  on  very 
trifling  contempts,  to  enforce  their  orders  by  excommunication,  which,  it 
muft  be  owned,  according  to  its  primitive  and  right  ufe,  mould  be  referved 
only  for  flagitious  immoralities  f . 

ANOTHER  evil  confequence  that  flowed  from  this  feparation  of  thefe 
courts,  was,  that  the  pope  cunningly  got  his,  the  canon  law,  introduced  into 
the  ecclefiaftical  courts,  which  made  him  the  head  of  the  church,  introduced 
appeals  to  him,  and  in  effect,  robbed  the  king  of  fo  many  fubjects  in  eccle- 
fiaftical affairs,  whereas,  before,  though  there  might  be  references  in  cafes 
of  difficulty  for  advice  to  Rome,  there  were  no  appeals  thither.  The  curia 
regis  was  to  reform  ecclefiaftical  judgments,  and  the  ecclefiaftical,  as  well  as 
temporal  jurifdiclion,  was  the  king's. 

ANOTHER  evil  confequence,  and  it  is  the  laft  I  (hall  mention,  of  this  alte- 
ration, was  the  fetting  up  two  legiflatures,  if  I  may  fay  fo,  in  the  kingdom. 
In  the  antient  time  all  laws  were  made  in  the  fame  affembly,  but  now,  the 
clergy  being  feparated  from  the  laity,  when  a  parliament  was  called,  the 
bufmefs  became  divided  ;  ecclefiaftical  matters,  and  the  taxes  on  the  clergy, 
were  handled  in  the  convocation,  as  temporal  matters,  and  the  taxes  on  the 
laity,  were  in  parliament.  This  contributed  to  the  further  claming  of  jurif- 
di&ions.  For  it  muft  be  owned  the  convocation  exceeded  their  powers,  and 
made  canons  about  things  merely  temporal ;  which,  however,  they  contend- 
ed to  be  fpiritual  j  and  fometimes  contrary  to  the  exprefs  law.  of  the  land,, 
neverthelefs  they  by  the  fuperftitious  and  ignorant,  who  knew  not  the'  dif- 
tinction  between  fuch  things,  were  generally  obeyed,  and  hence  from  fuch 

fubmiflion. 

f   Hale,  hifh.  com.  law,  ch.  7.     Bacon,  hifl.  and  polit.  difcourfe,  p,  129.  &cv 


T.  29.  L  A  W  S    OF    E  N  G  L  A  N  D.  277 

fubmiffion  it  is,  that,  by  cuftom,  in  fcvcral  places,  tythes  arc  payable  of  things 
that  are  not  tythablc  at  common  law. 

THE  right  of  the  convocation's  canons  binding  the  laity  in  fpi ritual  mat- 
ters was  never  doubted  in  the  times  of  popery,  nay  till  Charles  the  I'irft's 
time,  if  they  had  the  approbation  of  the  king,  who  was  the  head  of  the 
church,  it  was  the  general  opinion,  except  among  the  Puritans.  But  fmcc 
that  time  their  jurifdidion  is  fettled  on  a  reafonable  footing.  Their  canons 
bind  no  man,  fpiritual  or  lay,  in  temporal  matters.  They  bind  no  layman 
in  fpiritual  matters ;  but  they  bmd  the  clergy  in  fpiritual  matters,  provided 
that  no  right  of  the  laity  is  thereby  infringed.  As  for  inftance,  there  is  a 
canon  forbidding  clergymen  to  celebrate  marriage  out  of  canonical  hours. 
This  doth  not  bind  even  a  clergyman,  for  if  it  did,  it  would  ftrip  the  laity 
of  their  right  of  being  married  at  any  hour.  However  it  is  to  be  confidered 
whether  a  canon  of  the  convocation  is  a  new  ordinance,  or  only  a  repetition 
of  the  old  ecclefiaftical  law.  If  the  latter,  it  binds  all  men,  fpiritual  and  lay, 
not  as  a  canon,  but  as  the  law  of  the  land. 


LECTURE 


278  L  E  C  T  U  R  E  S     ON     THE          LECT.  30. 


LECTURE         XXX. 

'Robert  Duke  of  Normandy,  and  William  Ritffus,  difpute  the  fucceflion  to  the 
Conqueror — The  Englijh  prefer  the  latter — The  foreji  laws — The  cruelty  and 
opprejjions  of  William — The  advancement  of  Henry  ^  the  Conqueror's  youngeft 
fon,  to  the  crown  of  England — He  grants  a  charter — The  nature  of  this 
charter — His  difpute  with  Anfelm  concerning  Invejlitures — The  celibacy  of 
the  clergy — State  of  the  kingdom  under  Stephen. 

WILLIAM  the  Conqueror  left  three  fons,  Robert,  William  and 
Henry.  The  eldeft,  Robert,  according  to  the  eftablifhed  rules 
of  the  French  fiefs,  fucceeded  in  Normandy,  and  on  account  of  his  pri- 
-  mogeniture  laid  claim  alfo  to  the  crown  of  England  ;  but  what  right  that 
gave  him,  might  in  thofe  days,  well  be  a  queftion.  In  the  Saxon  times 
the  rule  was  to  cleft  a  king  out  of  the  royal  family,  and  the  election  gene- 
rally fell  on  the  eldefl  fon,  though  not  univerfally ;  for  the  line  of  Alfred 
reigned  in  prejudice  to  the  defcendants  of  his  two  elder  brothers.  Edred 
fucceded  to  his  brother  Edmund,  in  prejudice  of  Edmund's  two  fons ; 
again,  on  Edred's  death,  his  fon  was  excluded,  and  Edmund's  eldeft  fon 
refigned ;  and  laftly  Edward  the  Confeflbr  was  king,  though  his  elder 
brother's  fon  was  living.  So  that  priority  of  birth  was  rather  a  circum- 
ftance  influencing  the  people's  choice,  than  what  gave  an  abfolute  right  of 
fucceflion  f. 

ANOTHER  thing,  it  might  be  pretended,  mould  determine  this  point, 
that  is,  as  William  claimed  the  crown  through  the  will,  as  he  faid,  of  the 
Confeflbr,  he  alfo  had  not  a  power  to  bequeath  the  crown.  When,  there- 
fore, he  was  making  his  will  he  was  applied  to  on  this  head,  but  the  ap- 
proach of  death  feems  to  make  him  acknowledge  that  his  only  jufl  title  was 
his  eleftion^  for  though  he  hated  his  fon  Robert,  and  was  extremely  fond  of 
William,  he  refufed  to  difpofe  of  it  by  will.  He  only  exprefled  his  wifh 

that 

\  Tyrrel's  Introduft.  to  his  hift. 


LF.CT.  30.  LAWS    OF    E  N  G  T.  \  \  D.  279 

that  William  might  fuccecd,  and  difpatched  him  to  Kngland,  with  letters 
to  Lanfranc  archbilhop  of  Canterbury,  rcquefling  Iiim  to  influence  the 
election  in  his  favour,  and  he  accordingly  was  crowned.  Indeed,  it  fccms 
a  little  odd  that  William,  whole  bad  qualities  were  univerfally  known  (for 
lie  had  not  one  fmgle  virtue,  except  perional  bravery)  mould  be  preferred 
to  Robert,  who,  with  that  virtue,  pofTcfled  all  the  amiable  virtues  of  hu- 
manity. 

THAT  the  native  Englifh  fliould  prefer  any  one  to  Robert  is  not  to  be 
•wondered  at,  as  he  had,  on  all  occafions,  exprefled  the  highcft  averfion  to 
them,  but  they  had  no  influence  in  the  matter  ;  and  it  appears,  at  firft 
view,  the  intereft  of  the  Englifh  lords,  moft  of  whom  had  alfo  cftates  in 
Normandy,  to  be  fubject  to  one  monarch,  and  not  have  their  eftates  liable 
to  confifcation,  on  taking  part  with  one  of  the  brothers  againft  the  other. 
But  the  intereft  of  Lanfranc  and  the  clergy,  added  to  his  father's  treafure, 
which  he  had  feized,  and1  diftributed  liberally,  bore  down  all  oppofition ; 
and  indeed,  it  is  probable  that  Robert's  difpofition,  which  was  well  known, 
operated  in  his  disfavour  ;  for  his  extreme  indolence  and  prodigality,  and 
his  fcruples  of  ufmg  improper  means  for  attaining  the  moft  defirable  ends 
(whereas  William  was  extremely  active  and  would  flick  at  nothing)  made 
it  eafy  for  perfons  of  any  penetration  to  fee  in  whofe  favour  die  conteft 
between  the  two  brothers  muft  end  f .. 

WE  have  little  to  fay  of  the  laws  in  his  time,  for  he  regarded  no  laws,, 
divine  or  human,  ecclefiaftical  or  temporal.  He  chofe  for  judges  and  cour- 
tiers the  moft  profligate  perfons  he  could  find.  And  one  of  the  great  op- 
preflions  his  people  laboured  under  was  the  extending,  and  aggravating  the 
foreft  laws.  Thefore/ts  were  large  tracts  of  land,  fet  apart  by  his  father 
for  the  king's  hunting  out  of  the  royal  demefnes;  and  confequently  Wil- 
liam his  father  had  by  his  own  authority,  made  laws,  and  fevere  ones,  to 
be  obferved  in  thefe  diftricts  for  the  prefer vation  of  the  game,  and  erected 
courts  to  try  offenders,  and  trefpaflers  in  his  forefts.  The  great  intention 
of  thefe  courts  was  to  fleece  his  fubjects,  who  were  as  fond  of  hunting  as 
their  fovereign,  by  mulds  and  fines ;  and  in  truth,  thefe  were  the  only  op- 
preflions  his  countrymen,  the  Normans,  fuffered  under  the  Conqueror. 

BUT 

t  Carte,,  vol.  i.  p.  452,  455- 


aSo  LECTURES     ON     THE          LECT.  30. 

BUT  RufFus  flew  out  of  all  bounds.  He  introduced  the  lavving,  as  it  is 
called,  the  Hamftringings  of  Dogs ;  nay,  he  made  a  law,  by  his  own  au- 
thority, to  make  the  killing  of  a  deer  capital.  On  pretence  of  this  law  he 
feized  many  of  the  great  and  rich,  confined  them  for  years,  without  bring- 
ing them  to  tryal,  until  he  forced  them  to  compound,  and  to  give  up  the 
better  part  of  their  eftates.  Not  content  with  harraffing  the  laity,  he  laid 
facrilegious  hands  on  the  church  revenues.  Whenever  a  rich  abbey,  or 
biihoprick,  fell  vacant,  he  laid  his  hands  on  the  temporalities,  kept  them 
vacant  for  years,  as  he  did  that  of  Canterbury  four  years  ;  and  even,  when 
he  was  prevailed  upon  to  fill  them,  he  openly  fet  them  to  fale  in  his  pre- 
fence,  and  gave  them  to  the  bell  bidder.  However,  in  a  violent  fit  of  ficknefs, 
he  promifed  to  reform,  and  did  till  he  recovered  his  ftrength,  when  his  re- 
formation vanifhed.  The  remonftrances  of  his  clergy,  or  the  pope,  had 
no  effect  with  him  ;  and,  indeed,  the  circumflances  of  the  times  were  fa- 
vourable. For  as  there  were  two  popes,  one  made  by  the  emperor,  the 
other,  by  the  Romans,  who  difowned  the  imperial  authority  in  that  refpeft, 
William  acknowledged  neither,  and  each  was  afraid  to  drive  him  into  his 
adverfaries  party,  by  proceeding  to  extremities. 

THESE  enormities  raifed  him  fo  many  enemies  among  his  fubjefts,  of  all 
kinds,  that  Robert  had  a  ftrong  party,  and  an  infurre&ion  was  begun  in 
his  favour,  which  William,  profiting  of  Robert's  indolence,  eafily  fuppref- 
fed,  and  then  invaded  him  in  Normandy,  and  was  near  conquering  it,  as, 
by  a  fum  of  money,  he  detached  the  king  of  France  from  the  alliance,  if 
he  had  not  been  invaded  by  Scotland,  in  favour  of  Robert.  He  patched 
up,  therefore,  a  peace  with  him,  ratified  by  the  barons  on  both  fides,  the 
terms  of  which  were,  that  the  adherents  of  each  fhould  be  pardoned,  and 
reflored  to  their  eftates,  and  the  furvivor  fucceed  to  the  other f. 

THUS  there  was  a  legal  fettlement  of  the  crown  of  England  made,  which 
ought  to  have  taken  place,  but  did  not.  For  William  being  accidentally 
killed  in  hunting,  while  Robert  was  abfent  in  Italy,  on  his  return  from  the 
holy  war,  Henry  the  youngeft  fon,  took  the  advantage,  and  feizing  his 
brother  William's  treafure,  was  crowned  the  third  day,  after  a  very  tumul- 
tuous election,  the  populace  threatening  death  to  any  that  mould  oppofe  him. 

The 

f  Rennet's  hiftorians,  and  Carte, 


LECT.  30.          LAWS  or  ENGLAND-  281 

The  rcafon  of  their  attachment  to  him  was,  that  he  was,  by  birth,  an 
glifliman,  and  therefore,  they  hoped  for  milder  treatment  from  him  than 
they  hud  met  from  his  two  Norman  prcdecclfors.  Befides  he  had  promifcd 
n  renewal  of  the  ConfHfor's  laws,  with  fuch  emendations  as  his  father  had 
made.  And  in  purfuance  of  this  promife,  as  foon  as  he  was  crowned,  he 
iflued  a  charter,  containing  the  laws  as  he  now  fettled  them,  and  fent 
copies  of  it  to  every  cathedral  in  his  kingdom. 

THESE  laws  were,  as  to  the  bulk  of  them,  the  old  Saxon  confutations, 
uitli  the  addition  of  the  Conqueror's  law  of  fiefs,  and  fome  things  taken 
from  the  compilations  of  the  canon  law.  However,  with  refpedl  to  the 
feudal  law,  he,  in  many  inflances,  moderated  its  feverity.  With  refpeft  to 
reliefs,  he  aboliflied  the  arbitrary  and  heavy  ones  which  William  had  exac- 
ted, and  reftored  the  moderate,  and  certain  ones,  which  his  father  had 
eftablifhed.  With  refpeft  to  the  marriage  of  his  vaffal's  children,  he  gave 
their  parents  and  relations  free  power  of  difpofmg  of  them,  provided  they 
did  not  marry  them  to  his  enemies,  for  obviating  which,  his  confent  was 
to  be  applied  for,  but  then  he  exprefsly  engaged  not  to  take  any  thing  for 
his  confent ;  and  the  ivardjhips  of  his  minor  tenants  he  committed  to  their 
nearefl  kindred,  that  they  might  take  care  of  the  perfons  and  eflates  of  the 
ward,  and  account  with  him  for  the  profits  during  the  minority,  upon  rea- 
fonable  terms.  He  even,  in  fome  degree,  reflored  the  Saxon  law  of  de- 
fccnts,  and  permitted  alienation  of  lands.  For  if  a  man  had  feveral  fiefs, 
and  feveral  fons,  the  eldefl  had  the  principal  one,  on  which  was  the  place 
of  habitation,  only,  and  the  reft  went  among  the  fons,  as  far  as  they 
•would  go  ;  and  if  a  man  purchafed  or  acquired  land  (as  land  might  be 
alienated  by  the  feudal  law,  with  the  confent  of  the  fuperior  lord,)  fuch 
acquifitions  by  the  laws  of  Henry,  he  was  not  obliged  to  tranfmit  to  his 
heirs,  but  might  alien  at  pleafuref. 

THIS  mitigation  of  the  former  law  was  very  agreeable  to  his  people, 
"both  Englifh  and  Normans.  The  former  were  pleafed  to  fee  the  Saxon  law 
fo  nearly  reftored,  and  the  latter,  harrafled  with  the  oppreflions  of  William, 
were  glad  to  have  the  heavy  burthens  of  their  tenures  lightened  ;  and  in- 

N  n  deed, 

f  Hale,  hift.  com.  lav,ft  chap.  7.     Carte,  vol.  I.  p.  480.  et  fvq. 


282  LECTURE  S     ON     THE  LECT.  30. 

deed,  began,  by  degrees,  to  relim  the  old  Englim  lav/,  and  to  prefer  it  to 
their  own. 

To  attach  the  bulk  of  his  fubjects  to  him  (till  more  flrongly,  he  took  ano- 
ther very  prudent  ftep.  He  married  Maud  the  daughter  of  the  king  of 
Scotland,  by  Edgar  Atheling's  filler,  fo  that  in  his  iflue  the  blood  of  the 
Norman  and  Saxon  kings  were  united.  But  ftill  he  was  not  firmly  fettled, 
until  the  affairs  of  the  church,  and  the  right  of  lay  perfons  granting  invef- 
titures  of  church  livings  were  fettled.  He  intended  to  proceed  in  the  fame 
manner  that  his  father  and  brother  had  done.  He  accordingly  named 
perfons  to  the  vacant  bifhopricks,  and  recalled  Anfelm,  archbifhop  of  Can- 
terbury, who  had  lived  in  exile  during  the  latter  part  of  William's  reign, 
on  account  of  the  then  famous  difpute  of  lay  inveftitures.  But  Anfelm, 
adhering  to  the  canons  of  a  council  held  at  Rome,  refufed  to  confecrate 
the  bifhops  named  by  the  king,  and  alfo  to  do  him  homage  for  the  tem- 
poralities of  his  own  fee,  which  the  king  required  before  he  gave  him  pof- 
feffion. 

HENRY/ afraid  of  detaching  from  himfelf,  and  attaching  to  his  brother 
Robert,  the  pope  and  fo  powerful  a  body  as  the  bulk  of  the  clergy,  with 
fo  popular  and  high  fpirited  a  prieft  at  their  head,  was  obliged  to  propofe 
an  expedient,  that  he  mould  fend  ambafiadors  to  the  pope,  to  reprefent 
that  thefe  canons  were  contrary  to  the  antient  law  and  cufloms  of  the  na- 
tion, and  to  endeavour  to  obtain  a  difpenfation  for  not  complying  with  the 
canons  ;  and  that,  in  the  mean  time,  Anfelm  might  enter  into  the  tempo- 
ralities of  his  fee.  This  propofal  was  accepted.  But,  though  the  king's 
defiring  to  do  that  by  difpenfation,  which  he  had  a  right  to  do  by  law,  was 
tacitly  giving  up  his  caufe,  the  pope  knew  his  own  flrength,  and  Henry's 
weaknefs  too  well,  to  grant  this  favour.  He  infifted  on  the  canons  being 
executed,  which  produced  another  quarrel  between  the  king  and  archbi- 
fhop.  The  archbifhop,  attended  by  other  bifhops  his  adherents,  went  to 
Rome  to  complain.  The  king  fent  new  ambafladors,  but  all  in  vain.  The 
pope  proceeded  to  threaten  excommunication,  which,  in  thofe  days  of  fu- 
perflition,  would  have  tumbled  Henry,  from  the  throne,  fo  he  was  obliged 
to  fubmit,  and  come  to  a  compofition.  He  renounced  the  nomination  and 
inveftiture  per  annulum  &  baculum^  reftored  the  free  election  of  bifhops  and 

abbots 


f 

LECT.  30.  LAWS    OF    EN  GL  AN  D.  283 

abbots  to  the  chapters  and  convents,  which,  as  the  pope  was  judge  of  the 
validity  of  fuch  elections,  was,  in  effect,  almoft  giving  them  to  him  ;  and,  in 
acknowledgment  of  his  antient  right  of  patronage,  was  allowed  the  cufto- 
dy  of  the  temporalities  during  the  vacancy ;  was  allowed  to  give  the  conge 
d'ellre,  or  licenfe  to  proceed  to  election,  without  which  they  could  not 
elect,  and  was  allowed  to  receive  homage  from  the  elf  i  the  reftitu- 

tion  of  the  temporalities. 

•^ 

THUS  the  pope  gratified  the  king  with  the  fhadow,  and  gained  to  him- 
fclf  and  the  church  the  fubfhincc,  and  thus,  at  this  time  ended,  that  con- 
teft  in  England,  which  had  coft  fo  many  thoufand  lives  abroad,  between 
the  pope  and  emperors.  Henry,  however,  retained  a  confiderable  influ- 
ence in  the  elections,  for  before  he  iffued  his  conge  d'f/rrc,  he  generally 
convened  his  nobles  and  prelates,  and  with  them  recommended  a  proper 
perfon,  who  generally  was  chofen  ;  and  this  the  pope,  for  the  prefent,  fuf- 
fered  to  pafsf. 

T  HAVE  little  elfc  to  obferve  touching  the  laws  in  this  reign,  fave  what 
pertains  to  the  celibacy  of  the  clergy.  The  popes,  aiming  at  detaching  the 
clergy  entirely  from  fecular  interefts,  had  made  many  canons  againft  their 
marrying,  and  all  the  eloquence  of  fome  centuries  had  been  employed  in 
recommending  celibacy.  Thefe  canons,  however,  had  not  their  full  effect 
in  England ;  for  very  many  of  the  fecular  clergy  were  flill  married.  An- 
felm,  in  a  fynod  he  affembled,  enacted  a  canon  againft  them,  command- 
ing them  to  difmifs  their  wives,  upon  pain  of  fufpenfion,  and  excommuni- 
cation, if  they  prefumed  to  continue  to  officiate.  Cardinal  de  Crema  was 
afterwards  fent  legate  by  the  pope  to  England,  where,  in  a  general  affem- 
bly  of  the  clergy,  he  re-enacted  the  canons  againft  their  marriages,  and 
prefiding  in  a  lofty  throne,  uttered  a  moft  furious  declamation  againft  fuch 
a  fmful  practice,  declaring  it  a  horrid  abomination,  that  priefts  mould  rife 
from  the  arms  of  a  ftrumpet,  and  confecrate  the  body  of  Chrift.  And 
yet  the  hiftorians  affure  us,  that,  after  confccrating  the  eucharift  in  that  af- 
feinbly,  he  was  found  that  very  night  in  the  ftews  of  Southwark,  in  bed 

N  n  2  with 

$  Carte ;  and  Kennet's  hiflorians. 


284  L  E  C  T  U  R  E  S     ON     THE  LECT.  30. 

with  a  proflitute  ;  which  made  him  fo  afhamed,  that  he  ftole  privately  out 
of  England  f. 

HENRY,  though  he  had  fubdued  Normandy,  and  kept  his  brother  Ro- 
bert in  prifon,  was  not  without  uneafmefs  as  to  the  fucceflion  to  his  domini- 
ons ;  for  Robert's  fon  was  an  accomplifhed  prince,  and  protected  by  the 
king  of  France,  whereas  his  own  bore  but  a  worthlefs  character.  However, 
to  fecure  the  fucceflion  to  him,  he  afiembled  the  barons  of  Normandy  in 
Normandy,  and  thofe  of  England  in  England,  and  prevailed  on  them  to 
take  the  oath  of  allegiance  to  him  as  fuch.  But  he  being  foon  after  drown- 
ed, the  king,  in  hopes  of  male  ilfue,  took  a  fecond  wife,  and  after  three 
years  fruitlefs  expectation,  he  turned  his  thoughts  to  making  his  daughter 
Maud  his  heir,  and  did  accordingly  prevail  on  his  nobility  to  take  the 
oath  of  allegiance  to  her  as  fucceflbr.  But  one  of  the  fteps  he  took  for  fe- 
curing  the  throne  to  her,  in  fa£t,  defeated  his  fcheme.  He  knew  that  a 
woman  had  never  yet  fat  on  an  European  throne,  that  Spain,  which  was 
the  only  nation  that  admitted  perfons  to  reign  in  the  right  of  females,  had 
never  fullered  the  female  herfelf,  but  always  fet  up  her  fon,  if  he  was  of  a 
competent  age  ;  if  not,  her  hufband.  As  to  the  circumflances  of  his  own 
family,  his  grandfon  was  an  infant,  and  neither  he  nor  his  daughter  had 
confidence  in  her  hufband.  He  knew  that  this  oath  was  taken  againft  the 
general  bent  of  his  people,  and  that  little  dependance  could  be  had  on  it 
when  he  was  gone,  fo  eafy  was  it  to  get  abfolution..  His  chief  dependance 
was  on  the  power  and  influence  of  his  natural  fon  Robert,  who,  indeed, 
did  not  difappoint  him,  and  of  his  nephew  Stephen,  and  of  his  brother  Ro- 
ger, bifhop  of  Salifbury,  on  all  of  whom  he  heaped  wealth  and  honours. 

STEPHEN,  thus  advanced,  began  to  lift  his  eyes  to  the  crown.  He,  as 
well  as  his  coufm  Maud,  was  a  grandchild  of  the  Conqueror,  and  defended 
from  the  Saxon  kings  ;  and  he  had  the  perfonal  advantage  of  being  a  male, 
and  bearing  an  extraordinary  good  character.  By  his  ability  and  generofi- 
ty  he  had  become  exceedingly  popular,  and  his  brother  Roger  fecured  the 
clergy  in  his  interefl.  Immediately  on  his  uncle's  death,  he  feized  his  trea* 
fure,  which  he  employed  as  Henry  had  done  William's,  and  having  fpread 
a  report  that  Henry,  on  his  death  bed,  had  difmherited  Maud,  and  made 

him 
f  Kennel's  hiftorians.    Hume,  vol.  I.  p.  243. 


LECT.  30.  LAWS    OF    ENGLAND.  285 

him  his  heir,  he  was  crowned  in  a  very  thin  affembly  of  barons.  Senfiblc 
of  his  weaknefs,  lie  immediately  convoked  a  parliament  at  Oxford,  where, 
of  his  own  motion,  he  fwore,  not  only  to  rule  with  equity,  but  that  he 
would  not  retain  vacant  benefices  long  in  his  hands,  that  he  would  fuc 
none  for  trefpafling  in  his  forefls,  that  he  would  disforefl  all  fuch  as  had 
been  made  by  the  late  king,  and  abolifh  the  odious  tax  of  Danegelt ;  con- 
cefiions,  which,  with  the  pope's  approbation  of  his  title,  fo  fatisfied  the 
people,  that  all  the  lords  and  prelates  who  favoured  Maud,  and  had  kept 
aloof,  and  among  them  Robert  her  brother,  came  in,  and  fwore  allegiance  to 
him  as  long  as  he  kept  thefe  engagements;  from  which  conditional  oath  they 
expected  he  would  foon  releafe  them,  and  indeed  they  did  all  they  could 
to  provoke  him  to  it.  This  bait  taking,  and  he  having  difobliged  his  bro- 
ther and  the  clergy,  Maud's  friends  rofe  in  her  favour  ;  and  made  the 
kingdom  for  many  years  a  field  of  blood  f.. 

IN  one  of  thefe  batries  Stephen  was  taken,  and  Maud  was  univerfally  ac- 
knowledged ;  but  her  infufferable  haughtinefs,  her  inflexible  feverity  to  her 
captive,  and  her  haughty  refufal  of  the  city  of  London's  requeft,  to  miti- 
gate her  father's  laws,  and  reftore  the  Saxon,  fo  alienated  the  people  from 
her,  that  flie  was  forced  to  fly  from  London-,  and  arms  were  again  taken 
up  for  Stephen.  Her  brother,  who  was  the  foul  of  her  caufe,  being  foon 
after  taken  prifoner,  was  exchanged  for  Stephen,  and  he  dying  foon  after, 
Maud  was  forced  to  leave  the  kingdom  to  her  competitor.  However,  Ste- 
phen continuing  ftili  embroiled  with  the  clergy,  her  fon  Henry,  in  a  few 
years  after,  invaded  England,  and  was  joined  by  multitudes  ;  but  fome 
noblemen,  who  loved  their  country,  mediated  a  peace,  and  at  lail  effected 
it  on  the  following  terms ;  that  Stephen  fhould  reign  during  life  ;  that 
Henry  mould  fucceed  him,  and  receive  hoftages  at  the  prefent  for  the  de- 
livery of  the  king's  caftles  to  him  on  Stphen's  death  ;  and  that,  in  the  in- 
terim, he  fhould  be  confulted  with  on  all  the  great  affairs  of  the  kingdom  ; 
and  this  agreement  was  ratified  by  the  oaths  of  all  the  nobility  of  both  fides. 
In  this  treaty  no  mention  was  made  of  Maud's  title,  though  me  was  li- 
ving J. 

f  Bacon,  hift.  and  polit.  difc.  p.  103,  &c.     Carte,  vol.  I.  p.  525.  et  feq. 
^  Kcnnet's  hiflorians. 

LECTURE 


286  L  E  C  T  U  R  E  S    ON     THE  LECT.  31. 


LECTURE        XXXI. 

Henry  II.  fucceeds  to  the  crown — The  reformation  of  abufes — Alterations  i 
duced  Into  the  Englifh  Law — The  commutation  offervices  into  money — Efcu- 
age  or  Scutage — Reliefs — AJJizes  of  novel  dijjeifm^  and  other  affizes. 

UPON  Stephen's  death,  Henry  the  Second  fucceeded,  according  to  the 
fettlement  of  the  crown  before  made,  and  came  to  the  pofleffion  of  the 
kingdom  with  greater  advantages  than  moft  kings  ever  did.  He  was  in 
the  flower  of  youth,  had  an  agreeable  perfon,  and  had  already  given  the 
moft  convincing  proofs  both  of  wifdom  and  valour.  He  was  by  far  the 
moft  powerful  prince  of  his  time  :  For,  befidcs  England,  which  when  uni- 
ted to  its  king  in  affecYion,  was,  by  the  greatnefs  of  its  royal  demefnes, 
and  the  number  of  knights  fees,  incomparably  the  mightieft  ftate  in  Eu- 
rope, in  proportion  to  its  extent ;  he  had  in  France,  where  he  was  but  a 
vaflal,  greater  territories  than  the  king  of  France  himfelf.  In  him  were 
united  three  great  fees,  to  each  of  which  belonged  feveral  great  dependan- 
cies  ;  Anjou,  which  came  from  his  father  ;  Normandy  from  his  mother, 
and  Guienne  by  his  wife.  And,  from  the  very  firft  fteps  he  took  on  com- 
ing to  the  throne,  his  fubje&s  had  good  foundation  to  hope  that  this  great 
power  would  be  principally  exerted  to  make  them  happy.  The  whole 
reign  of  Stephen,  until  the  laft  pacification,  had  been  a  fcene  of  difmal 
confufion,  in  which  every  lord  of  a  caftle  tyrannized  at  pleafure,  during 
the  competition  for  the  crown  ;  and  though,  from  the  time  of  the  fettle- 
ment of  peace,  Stephen  publjihed  edicts  to  reftrain  violence  and  rapine, 
and  made  a  progrefs  through  the  kingdom,  in  order  to  re-eftablifh  juftice 
and  order,  he  lived  not  long  enough  to  fee  his  good  intentions  anfwered, 
but  left  the  work  to  be  accomplifhed  by  his  fucceflbr. 

THE  firft  thing  Henry  did  was  to  difcharge  a  multitude  of  foreigners, 
whom  Stephen  kept  in  arms  during  his  whole  reign.  His  next  care  was 
the  reformation  of  the  coin,  which  had  been  greatly  debafed.  He  coined 

money 


r.  31.  LAWS    OK    I.  \  (,  LA  N  I). 

money  of  the  due  weight  and  fincncfs,  and  then  cried  down  the  udultei 
which  had,  in  the  late  reign,  been  counterfeited  by  the  Jews,  and  the  ma- 
ny petty  tyrants  in  their  caflles.     Thefe   to   humble,  and    make  amefnable 
to  1.  his  next  concern.     As  to  the  caflles  in  private  hands,  that  had 

'i  creeled  in  his  grandfather's  time,  or  before,  he  meddled  not  with 
them  ;  but  all  that  had  been  built  during  Stephen's  reign,  cither  by  per- 
mifllon'or  connivance,  through  the  wcaknefs  of  that  prince,  which  were 
the  great  nuifances,  he  iflued  a  proclamation  for  demolilh'mg,  except  fome 
few,  which,  from  their  convenient  fituation,  he  chofc  to  keep  in  his  own 
hands,  for  the  defence  of  the  realm.  And,  laflly,  as  the  crown  had  been 
greatly  irnpoverifhcd  by  the  alienations  Stephen  had,  through  neceflity, 
been  forced  to  make,  he  iflued  another,  to  renounce  all  the  antient  demef- 
nes  that  had  been  ib  alienated,  that  he  might  be  enabled  to  fupport  his  dig- 
nity without  loading  his  people,  except  on  extraordinary  occafionsf. 

THESE  reformations,  however  jufl  in  themfelves,  or  agreeable  to  the 
fubject,  he  did  not  proceed  on  merely  by  his  own  authority.  He  had  deli- 
berated with  the  nobles,  who  attended  at  his  coronation,  concerning  them, 
and  had  their  approbation  ;  and  though  there  were  no  acts  of  parliament 
made  at  that  time,  yet,  as  form  in  thofe  days  was  lefs  minded  than  fub- 
flance,  thefe  edicts  had  the  obedience  of  laws  immediately  paid  them  by  all, 
except  fome  mutinous  noblemen,  who  (till  held  their  caflles  in  a  flate  of 
defence.  Having  taken  thefe  prudent  fleps,  he  formed  his  privy  council 
of  the  befl  and  wifefl  men  of  the  nation,  and  by  their  advice  fummoned  a 
regular  parliament,  wherein  many  good  regulations  were  made.  The  laws 
of  the  Confeflbr,  as  amended  by  Henry  the  Firfl,  were  re-eflablimed,  and 
every  thing,  both  in  church  and  flate,  fettled  on  the  footing  they  were  in 
the  time  of  that  king.  Being  thus  armed  with  a  full  parliamentary  authori- 
ty, he  marched  againfl  his  mutinous  nobles,  whom  he  foon  brought  to 
Aibmit  j  and  demoliihed  their  caflles. 

IN  another  parliament,  in  order  to  fettle  the  fucceflion,  contefls  about 
which  had  had  fatal  effects  ever  fmce  the  death  of  die  Conqueror,  he  pre- 
vailed on  his  fubjects  to  take  the  oath  of  allegiance,  to  his  two  fons,  though 
both  in  their  infancy,  firfl  to  William,  then,  to  Henry,  as  his  fucceflbrs. 

And 

f  Hale,  hift.  com.  law,  chap.  7.    Carte. 


288  LECTURES     ON     THE          LECT.  31. 

And  having  taken  all  thefe  wife  and  juft  meafures,  for  the  peace  and  fecu- 
rity  of  his  kingdom,  he  repaired  to  his  foreign  dominions  ;  but  his  tran- 
fa&ions  there,  or  even  at  home,  that  do  not  relate  to  the  laws  or  conftitu- 
tion,  are  not  within  the  compafs  of  the  defign  of  thefe  lectures.  Let  it  fuf- 
fice  to  fay,  that  he  made  as  good  laws  for,  and  was  as  good  a  fovereign  to, 
his  French  as  his  Englifh  fubjects. 

IN  his  reign  many  were  the  alterations  introduced  into  the  Englifh  law, 
moft  of  them,  no  doubt,  by  act  of  parliament,  though  the  records  of  them 
are  loft.  For,  in  the  beginning  of  his  reign,  as  I  obferved,  he  enacted  in 
parliament  the  laws  of  Henry  the  Firft  ;  and  yet  from  the  book  of  Glan- 
ville,  written  in  the  latter  end  of  his  reign,  it  is  plain  there  were  great 
changes,  and  the  law  was  very  much  brought  back  to  what  it  was  in  the 
Conqueror's  reign  ;  nay,  in  one  refpect,  to  what  it  was  in  Rufus's,  I  mean 
reliefs,  the  law  of  which  I  fhall  mention  hereafter.  Many  likewife  were  the 
regulations  he  introduced  of  his  own  authority,  which  in  the  event  proved 
very  beneficial  to  his  fubjects. 

THE  firft  I  fhall  take  notice  of  was  his  commutation  of  the  fervices  due 
of  his  tenants  in  demefne,  which  formerly  were  paid  in  provifions  and  other 
neceflaries,  into  a  certain  fum  of  money,  adequate  to  the  then  ufual  price. 
His  grandfather  Henry  did  fomewhat  of  this  kind,  but  he  it  was  that  efta- 
blifhed  and  fixed  it ;  and  his  example  was  followed  by  his  lords,  fo  that, 
from  this  time,  rents  became  generally  paid  in  certain  yearly  fums  'of  mo- 
ney, inftead  of  corn  and  provifions.  What  advantage  the  fucceffbrs  of 
thefe  focage  tenants  gained  thereby  will  be  evident,  if  we  confider  the  price 
of  things  at  or  about  that  time.  In  the  reign  of  Henry  the  Firft,  we  are 
told,  the  current  price  of  feveral  commodities,  which,  however,  muft  be 
trebled  when  reduced  to  the  money  of  our  ftandard,  were  as  follows :  That 
of  a  fat  ox  five  millings,  of  our  money  fifteen ;  a  wether  four-pence,  of 
ours,  a  milling  ;  wheat  to  ferve  an  hundred  men  with  bread  for  one  meal, 
a  milling,  of  ours,  three  millings ;  a  ration  for  twenty  horfes  for  a  day, 
four-pence,  of  our  money  a  milling.  And  although  we  mould  allow  that, 
in  Henry  the  Second's  time,  the  prices  of  things  were  even  doubled,  which 
is  impoffible  to  be  admitted,  it  is  eafy  to  fee  how  greatly  the  future  focage 

tenants. 


T.  ji.  LAWS    OF    ENGLAND.  289 

tenants  paying  the  fame  nominal  rent,  the  value  of  which  was  daily  dccrca- 
iing,  role  in  wealth  and  importance.  Befides,  they  were  greatly  eafed  in 
point  of  the  expence  and  trouble  of  carrying  the  provifions  to  the  king's 
court,  to  which  before  they  were  obliged,  wherever  he  rcfided  in  Kngland  ; 
whereas,  now,  they  had  only  to  carry,  or  fend  by  a  proper  mefiengcr,  the 
money  to  be  accepted  as  an  equivalent  f . 

His  military  tenants  he  cafed  in  a  much  more  confidcrable  manner.  By 
the  law  of  the  Conqueror,  every  military  man  was  obliged  to  ferve  at  his 
own  expence  forty  days  as  well  abroad, where  the  king's  occafions  required, 
as  in  England,  and  rn  perfon  too,  unlefs  notorioufly  incapable ;  in  which 
cafe  they  were  obliged  to  find  each  a  deputy,  and  if  they  failed  herein,  by 
the  ftri&nefs  of  the  feudal  law,  they  forfeited  their  lands,  or  rather,  as  the 
law  was  ufed  in  England,  compounded  at  the  king's  pleafure  ;  which,  if  he 
was  very  avaricious,  came  pretty  near  the  fame  thing.  This  was  a  mifc- 
rable  heavy  grievance.  For  what  oppreflion  mufl  it  be  for  a  knight  of  Nor- 
thumberland, who  had,  perhaps,  but  a  fmgle  fee,  to  tranfport  himfelf,  it 
may  be,  to  Guienne,  to  ferve  forty  days,  and  then  return  ?  Nay,  it  was  in- 
convenient to  the  king  himfelf;  for  as  France,  where  the  fcene  of  the  king- 
of  England's  wars  generally  lay,  was  every  where  full  of  fortifications,  it 
was  fcarce  poflible  to  finifh  a  war  in  forty  days,  however  great  the  humour 
of  that  age  was  for  pitched  battles  ;  the  confequence  of  which  \vas,  that, 
after  that  time,  the  king  was  ever  in  danger  of  being  left  in  the  midfl  of  a 
compaign,  with  an  inferior  army. 

HENRY  then,  fenfible  of  thefe  inconveniencics,  both  to  himfelf  and  his 
fubjecls,  devifed  efcuage,  or  fcutage,  in  the  fourth  year  of  his  reign,  upon 
account  of  his  war  with  Touloufe  upon  which  his  wife  had  fome  pretenfi- 
ons.  He,  knowing  that  this  war  required  but  a  fmall  part  of  his  force,  did, 
both  in  Normandy  and  England,  publifh,  that  fuch  of  his  military  tenants 
as  would  before-hand  pay  a  certain  fum  of  money,  mould  be  excufed  from 
ferving,  either  in  perfon  or  by  deputy ;  and  this  fum,  which  was  rated  by 
him  extremely  moderately,  and  was,  therefore,  generally  paid  by  his  vaflals, 
rather  than  ferve  in  fo  remote  a  place,  he  employed  in  hiring  mercenary 
foldiers  of  fortune,  of  whom  there  was  plenty  on  the  continent ;  and  thofe, 

O  o  by 

t  Gervaf.  de  Tilbury,  dial.de  Scaccario.. 


290  LECTURES     ON     THE  LECT.  31. 

by  their  engagement,  were  obliged  to  ferve  during  the  continuance  of  the 
warf., 

THAT  his  fole  view,  in  this  new  project,  was  the  eafe  of  his  people,  and 
the  better  profecution  of  his  wars,  and  not  the  depreffmg  the  military  fpirit 
of  his  fubjects,  appears  from  hence ;  that  thofe  who  were  qualified,  and 
chofe  to  ferve  in  perfon,  he  careffed,  and  encouraged  by  all  means  poflible ; 
that  he  never  brought  a  fmgle  mercenary  into  England,  when  he  had  wars 
with  Wales  or  Scotland,  but  infilled  on  his  fubje&s  perfonal  fervice ;  nay, 
that  he  never  kept  thofe  mercenaries  on  foot  in  his  foreign  dominions,  but 
difmiifed  them  as  foon  as  the  war  was  at  an  end.  And  this  of  fcutage  was 
the  general  method  he  followed  in  his  fubfequent  wars  in  France  and  Ire- 
land. What  wonder  is  it  then,  that  this  prince  was  univerfally  beloved  by 
his  people  of  all  ranks  ?  though,  as  the  befl  inflitutions  are  liable  to  be  cor- 
rupted, this  very  fcutage,  that  he  devifed  for  public  eafe,  was  turned  into  an 
heavy  engine  of  oppreffion  by  his  fon  John. 

ANOTHER  alteration  in  the  law  in  the  reign  of  this  king,  was  the  point 
of  relief },  as  I  mentioned  before.  The  old  relief  of  William  the  Firfl,  which 
was  reftored  by  Henry  the  Firfl,  was  certain,  to  all  lords  and  knights,  ac- 
cording to  their  degrees,  and  was  paid  in  horfes  and  arms ;  but  now  the  hu- 
mour of  the  times  being  that  every  thing  mould  be  paid  in  money,  the  re- 
lief of  a  knight's  fee  was  fettled  at  one  hundred  millings,  the  fourth  part  of 
its  then  computed  yearly  value,  and  which  I  fuppofe  was  about  the  price  of 
the  armour,  a  knight  was  before  to  pay  ;  and  henceforward  the  arms  of  the 
deceafed  defcended  to  the  heir,  and  confequently  the  coats  of  arms  blazon- 
ed thereon  became  hereditary.  But  the  reliefs  of  barons,  or  earls,  were  not 
fettled  at  this  time,  but  remained  arbitrary,  as  Glanville  informs  us.  De  ba~ 
roniis  &  comitatibus  nlhil  cerium  eft  ftatutum^  quia  juxta  voluntatem  et  miferi- 
cordiam  dornini  rcgis  foknt  baron'uz  capit files  de  releviis  fuis  domino  regi  fatisfa- 
cere  f. 

FROM  the  wordjtatutum  I  take  it  for  granted  this  change  of  reliefs  into 
money  was  by  aft  of  parliament.     Indeed,  how  could  it  be  otherwife ;  but, 

then, 
f  Madox,  hift.  of  Excheq.  ch.  16. 

$  Lib,  9.  c.  4. 


LKCT.  31.         LAWS     OF     E  N  G  L  A  N  I). 

then,  the  moft  furprifing  circumftance  is,  that  the  great  lords,  who,  in  that 
age  principally  compoled  the  parliament,  fliould  take  care  in  this  mat- 
point,  of  the  knights,  the  lower  military  tenants,  and  leave  themfclves  at  the 
mercy  or  the  crown.  I  (hall  venture  on  conjecture  to  aflign  the  reafon. 
The  Conqueror  fettled  the  reliefs  of  carls  and  barons  at  a  certainty,  becaufc 
he  had  fixed  the  number  of  knights  fees  they  mould  contain;  twenty  to  an 
earldom,  and  thirteen  and  two-thirds  to  a  barony  ;  but  by  the  time  of  Hen- 
ry the  Second,  the  number  of  knights  fees  contained  in  them  might  be 
greater  or  Icfs.  For  inflance,  if  an  earl  died,  and  left  two  daughters,  his 
twenty  fees  would  be  divided  equally  between  them  ;  but  the  dignity  was 
to  go  to  the  hulband  of  that  daughter  the  king  chofe.  Now  it  would  be 
hard  that  he  mould  pay  for  ten  knights  fees,  merely  becaufe  he  had  the 
fame  title,  as  much  as  the  predeceflbr  paid  for  twenty.  Again,  in  the  new 
created  honours,  it  feems  very  probable,  from  many  circumftances,  that 
an  earldom  might  be  creeled  but  with  fifteen  knights  fees,  or,  perhaps,  with 
twenty-five.  The  certainty  of  the  quantum  of  land  an  earldom  or  barony 
mould  confift  of  not  being  fettled,  I  imagine,  was  the  reafon  that  the  quan- 
tum of  relief  was  not  exprefsly  determined,  though,  by  fixing  that  of  a 
knight's  fee,  the  reafonable  relief  might,  in  any  cafe  be  eafily  determined. 
And  that  Henry,  and  his  fon  Richard,  exercifed  that  difcretion  the  law  left 
in  them  in  this  equitable  manner,  we  may  infer  from  there  being  no  com- 
plaints, as  to  reliefs,  from  the  earls  or  barons,  during  their  reigns;  but 
John  revived  the  arbitrary  relief  of  William  llufus,  to  the  great  oppreffton 
of  his  nobles,  until  he  was  reftrained  by  Magna  Chart  a. 

To  no  other  reign  than  this,  I  think,  can  be  afcribed,  fo  properly,  the 
invention  of  affixes  of  novel  diffeifm,  and  the  other  afjizes^  for  obtaining  pof- 
fefiion  of  lands.  By  the  ftrictnefs  of  the  very  antient  feudal  law,  if  a  man 
had  been  difleized,  that  is,  turned  out  of  pofieffion,  if  he  did  not  enter,  and 
regain  his  pofleiTion,  or,  at  lead,  claim  it  within  a  year  and  a  day,  he  loft 
all  right ;  for,  if  he  was  a  focage  tenant,  the  pofieflbr  had,  within  that  time, 
paid  a  rent  to  his  lord,  and  been  by  him,  who  was  fuppofed  the  befl  judge, 
allowed  to  be  the  rightful  tenant ;  and,  if  he  was  a  military  one,  it  was  pro- 
bable, in  thofe  ages  of  perpetual  war,  he  had  actually  ferved,  at  leafl  he  had 
kept  himfelf  in  conftant  readinefs  if  called  upon.  But  the  limitation  of  a 
year  and  day  being  foon  found  too  fhort,  it  was  after  extended  to  five  years ; 

003  then, 


292  LECTURES     ON     THE  LECT.  31. 

then,  to  the  time  of  the  poffeflion  of  the  diffeizor  himfelf,  namely  till  he  had 
either  died  or  aliened  it.  But  upon  the  alienee,  or  heir  of  the  difleizor,  he 
could  not  enter,  becaufe  they  came  in  honeftly,  by  a  fair  title,  and  were 
guilty  of  no  wrong.  However,  this  antient  law,  that  gave  no  remedy  but 
by  entry,  during  the  feizor's  poffeflion,  was  {till  too  fevere  ;  for  the  diffeizor 
might  alien,  or  die  fuddenly,  before  the  diffeizee  could  enter,  or  he  might 
hold  the  poffeflion  manu  forti,  fo  that  the  diffeizee  might  not  be  flrong 
enough  to  enter  and  recover  his  poffeflion  f . 

To  remedy  thefe  evils,  and  to  prevent  bloodmed,-  the  law  provided  for 
the  diffeizee  his  right  of  action,  either  againft  the  diffeizor  himfelf,  or  hia 
heir  or  affigns,  and,  in  which,  upon  mewing  his  right  to  the  land,  he  mould 
be  reftored  to  his  poffeffion  by  the  king's  officer,  the  fheriff,  with  the  poffe  of 
the  county.  But  ilill  this  action  was  hitherto  but  the  writ  of  right,  which 
meddled  not  with  the  unlawful  poffeflion,  only  with  the  abfolute  right  to  the 
land,  and  this  action,  if  brought  in  the  curia  regis,  where  only  impartial 
juflice  could  be  expected ;  was  very  dilatory.  It  was  dangerous  alfo,  as  the 
tenant  in  poffeffion  might  offer  battle.  In  this  reign,  then,  were  thefc  pof- 
feffory  aftions  introduced,  for  the  determining  the  point  of  poffeffion,  leaving 
the  right  of  propriety  as  it  was.  It  was  advantageous  likewife  to  the  fub- 
ject,  both  diffeizor  and  diffeizee,  as  it  gave  him  two  trials  for  his  lands  j  for 
the  writ  of  right  when  once  determined  was  final  and  conclufive  }. 

THIS  diftinction  between  the  right  of  poj/ej/ton,  and  the  right  of  propriety 
was  borrowed  from  the  civil  law,  which  was  firft  introduced  in  the  late 
reign,  and  was  now,  and  for  fome  time  forward,  ftudied  with  great  aflidui- 
ty  by  the  Englifh,  as  appears  from  the  many  long  tranfcripts  from  it  to  be 
found  in  the  books  of  our  antient  lawyers.  There  they  found  the  diftinc- 
tion of  affionspojeffbryandpetitory  ;  pojjeffory  when  a  man  had  been  notoriouf- 
ly  in  poffeffion,  and  reputed  the  owner,  and  was  put  out  by  another  of  his 
own  authority.  The  public  peace  was  concerned  to  protect  the  poffeflion 
of  the  reputed  owner,  and  not  to  let  him  fuffer  the  lofs  thereof  while  he 
was  fuing  his  petitory  action,  that  is  on  the  mere  right,  which  the  other  un- 
doubtedly would  delay,  by  all  the  arts  and  fhifts  he  could  invent.  The  pro- 
ceedings, 

f  Coke  on  Littleton,  fol.  153. 

Ibid. 


LF.CT.  31.          LAWS     OF     ENGLAND. 

ccedings,  therefore,  in  poflcfibry  actions  were  fummary  and  expeditious  ; 
for  they  only  regarded  the  pofleflion,  and  did  not  determine  the  abfolutc 
right  :  fo  there  was  no  condufive  wrong  done  to  either  party,  let  the  mat- 
ter of  pofleilion  be  decided  how  it  would  j  for  he  that  failed  might  bring  his 
petitory  action  for  the  right. 

AN  fl/fizc  in  our  law  xvas  a  very  fummary  action.     Bracton,  who  lived  an 
hundred  years  after,  calls  it  novuni  &  fcftinum  rcmcdium,  and  indeed  hfe/ii* 
num  was  it,  that,  in  its  proceedings,  it  feems  to  depart  from  the  general  rules 
of  reafon  and  all  laws.     For  it  is  a  maxim  of  all  laws,  except  in  fome  few 
very  extraordinary  cafes,  that  no  proofs  are  to  be  taken  till  an  iffiie  is  joined, 
as  our  law  calls  it,  or  till  there  is  a  conteft,  as  the  civil  law  exprefleth  it ;  that 
is,  till  it  is  fettled  what  is  the  matter  to  be  proved,  or  till  there  is  fome- 
thing  affirmed  on  one  fide,  and  denied  on  the  other,  upon  which  the  merits 
of  the  caufe  turn.     If  there  be  no  difagreement  about  facls^  but  the  quefti- 
on  is  mere  matter  of  law,  the  judges,  who  are  bed  acquainted  therewith, 
are,  by  our  law  to  determine.     If  the  queftion  be  matters  of  fad,  or  facts 
mixed  with  law,  the  jury,  aflifled  with  the  judges,  are  to  determine  ;  though 
if  they  doubt  about  the  point  of  law,  they  may  find  the  facts  fpecially,  and 
leave  the  law  arifing  thereon  to  the  judges,  which  is  what  we  call  a  fpecial 
•ucrdift.     No  jury,  therefore,  ought  to  have  been  fummoned  till  the  defen- 
dant appeared,  and  iflue  was  joined,  fo  that  it  was  known  what  was  the  mat- 
ter to  be  tried ;  and  this  is  the  general  rule.     But,  for  the  fpeedy  fettling 
and  quitting  pofleflions,  the  aflize  is  an  exception  thereto,  as  appears  from 
the  writ  of  afftze  directed  to  the  fheriff.     For,  befides  giving  notice  to  the 
defendant,  or  tenant,  as  he  is  called  in  this  action  (becaufe  he  is  in  poflef- 
fion)  the  fheriffis  immediately  to  fummon  a  jury  or  aflize,  as  it  is  called  up- 
on this  occafion,  who  mall  directly  go  to  the  place,  and  make  themfelves 
judges,  by  their  view,  of  the  nature,  quality,  and  quantity  of  the  land,  or 
thing  demanded,  and  inform  themfelves,  by  all  the  ways  they  bed  may,  of 
the  former  pofleflion  of  the  demandant,  and  how  he  came  to  lofe  it.     They 
are  then  to  appear  the  fame  day  with  the  demandant  and  tenant,  and,  when 
ifliie  is  joined  between  them,  are  to  determine  the  matter  according  to  their 
own  prior  knowledge,  and  the  evidence  then  given  before  them,     I  obfcrv- 
cd  that  this  action  is  not  final.     A  brings  an  aflize  againft  B.     If  judgment 
be  given  for  A,  B  may  bring  his  writ  of  ri&bt,  if  he  has  the  right  of  proprie- 
ty. 


294  LECTURES     ON     THE  LECT.  31, 

ty,  and  recover,  and  fo  e  contra.  But  though  B  cannot  deny  his  difleizing 
A,  he  may  ftill  defend  himfelf.  The  words  of  the  writ  are  inju/te,  <&  fine 
judicio,  dij/cizi-vit.  He  may  therefore  fhew  that  he  difleized  A,  juflly,  that 
is,  that  he  had  a  right  of  entry.  As,  fuppofe  B  was  firfl  in  pofleffion,  A 
difleizes  him  ;  then  B,  as  he  lawfully  may,  diifeizes  A,  A  mail  not  recover. 
But  if  B  had  been  in  pofleflion,  and  A's  father  had  diffeized  him,  and  died, 
fo  that  the  land  has  come  to  A,  who  is  innocent,  B,  not  entering  in  the  fa- 
ther's life-time,  has  loft  his  right  of  pofleffion.  It  is  fo  in  A.  Now  if  B  dif- 
feizes  A,  the  fon,  though  he  had  ever  fo  good  a  right  to  the  land,  A  (hall 
recover  the  pofleffion  ;  for  B  had  no  right  to  enter,  though  he  had  a  right 
to  recover  the  pofleffion  he  was  deprived  of  by  A's  father,  by  bringing  an 
acYion.  Wherever  a  man  comes  innocently  to  a  pofleffion,  the  law  will  de- 
fend that  pofleffion,  until  it  is  proved  that  he  hath  no  good  right  to  it  |. 

•f-  Brafton,  lib.  4* 


r.  32.         LAWS     OF     E  N  G  L  A  N  I). 


LECTURE         XXXII. 

The  injiitution  of  Judges  itinerant,  or  Jujliccs  in   F.yrc-~Thc  advantages  at- 
tending   it — 'The  j  it  r  if  diction  of  theft  Judges — Their  circuits — The  prcfent 
form  of  tranfacTtng  the  county  bit/inefs — The  diwfion  of  t/>c  Curia  Regis  int9 
four  courts — The  jurifdiclion  of  the  court  of  King's  Bench. 

THE  greateft  and  mod  beneficial  ftep  taken  by  Henry  the  Second, 
the  inflitution  ol '[judges  itinerant,  or  jujliccs  in  eyre,  as  they  were  cal- 
led, from  the  Norman  word  eyre,  equivalent  to,  and  derived  from  the  Latin 
itcr.  I  obferved  before,  thatalmoft  all  bufmefies  relative  to  the  adminiftra- 
tion  of  juftice  were,  in  the  Saxon  times,  tranfacted  in  the  county,  and  hun- 
dred, that  the  leet  and  manor  courts  were  held  in  the  county,  near  the  fui- 
tors  doors,  and  that  none  but  the  caufes  of  the  great  lords,  or  fuch  as  were 
of  difficulty,  were  handled  in  the  curia  regis.  Under  the  reign  of  the  Con- 
queror, I  took  notice,  that  the  adminiftration  of  other  caufes  was  facilitated 
in  the  king's  great  court,  and  that,  confequently,  the  bufmefs  of  the  inferior 
courts  began  to  decay  ;  and  I  laid  open  the  motives  William  had  for  that 
conduct,  the  introduction  of  the  Norman,  and  fuppreflion  of  the  Saxon  law. 
But  the  fcheme  fucceeded  in  the  fame  manner  as  his  other  one  did,  of  root- 
ing out  the  Englifh  language,  and  introducing  his  own  in  lieu  thereof.  As 
this  produced  a  new  language,  from  the  mixture  of  both,  fo  that  caufed  the 
Englifh  law  to  confift  henceforward  partly  of  feudal,  partly  of  old  Saxon 
cuftoms.  However,  the  caufes  of  mod  perfons  were  flill  determined  in  the 
inferior  courts  ;  for  they  were  but  few  who  were  able  to  undergo  the  trouble 
and  expence  of  fuing  in  the  curia  regis,  efpecially,  as  all  perfons,  whofe  cau- 
fes did  not  properly  belong  to  the  cognizance  of  that  court,  were  obliged  to 
pay  a  fine  for  declining  the  proper  jurifdicl:ion,and  for  having  licence  to  plead 
in  the  fuperior  f . 

BUT  by  this  time  the  decifions  of  thofe  courts,  where  the  freeholders 
were  judges  both  of  law  and  fad,  had  fallen  into  great  and  juft  difrepute, 

had 
f  Hale's  hift.  Com.  La\v,  chap*  7.     Dngdalc,  orig.  jurid.  p,  2  7.     Hoveden,  p.  590. 


296  LECTURES     ON     THE  LECT.  32. 

had  occafioned  many  mifchiefs,  and  were  likely  to  produce  many  more.  The 
reafons,  as  they  are  delivered  by  lord  Hale,  were  principally  three :  Firft, 
the  ignorance  of  the  judges  in  the  law :  for  as  the  freeholders  in  general 
were  Saxons,  they  mud  be  fuppofed  to  be  entirely  ignorant  of  the  feudal 
law,  which  was  now  introduced  with  refpect  to  titles  in  lands  ;  or,  if  they 
did  know  any  thing  of  it,  it  is  not  probable  that  they  would  prefer  that  to 
their  o\vn  cuftoms.  Nay,  the  Norman  freeholders  could  be  of  little  fervice 
in  this  point,  confidering  their  illiteracy,  their  education  being  confined 
folely  to  arms,  as  alfo  their  frequent  abfence  almofl  every  year  to  attend 
their  lords  in  war.  With  refpect  to  the  Saxon  law  alfo,  it  could  be  little 
expected  that  it  fliould  be  regularly  obferved,  now  that  the  clergy,  who  only 
were  acquainted  with  it,  were  removed,  and  none  of  the  judges  could  pof- 
fibly  know  more  than  an  illiterate  juryman  at  this  day,  who  could  neither 
read  nor  write,  might  be  able  to  pick  up  by  attending  a  court  held  once  a 
month.  How  inadequate  fuch  a  knowledge  would  be,  even  in  thofe  times, 
when  the  laws  were  comparatively  few,  need  not  be  enlarged  on  f . 

IT  is  true,  fome  remedies  were  applied  to  obviate  the  bad  confequenccs 
of  this  ignorance  ;  but  they  were  very  ineffectual.  It  was  required  that  the 
Sheriff,  who  prefided,  mould  have  fome  fkill  in  the  laws,  but  notwithftand- 
ing,  he  was  feldom  found  to  have  any  ;  and  if  he  had,  it  was  not  very  pro- 
bable, as  he  was  a  Norman,  that  the  jury  would  pay  much  regard  to  his  di- 
rection in  giving  their  verdicts.  As  a  further  remedy  to  this  ignorance,  by 
the  laws  of  Henry  the  Firft,  the  bifhop,  the  barons,  and  the  great  men  of  the 
court,  that  is,  the  king's  immediate  tenants,  were  ordered  to  attend.  But 
the  bifhop,  in  obedience  to  the  canons,  applied  himfelf  folely  to  his  ecclefi- 
aflical  jurifdiction  ;  and  the  others  were  generally  in  the  king's  fervice ;  fo 
that  they  could  but  feldom  attend,  and  if  they  did,  they  could  do  but  little 
fervice,  being  almoft  all  bred  to  nothing  but  the  fword,  and  as  illiterate  as 
any  other  fet  of  men, 

THE  next  mifchief,  and  which  flowed  from  the  former,  was,  that  this  bred 
great  variety  of  laws  in  the  feveral  counties,  whereas  the  intention  of  the 
Confeflbr  in  his  compilation,  and  of  his  fucceffors  afterwards  in  theirs,  was: 
to  have  one  uniform  certain  law,  common  to  the  whole  kingdom.  But; 

the_ 
\  Male's  hift.  Com*  Law,  ch.j.. 


LFCT.  32.         L  A  W  S     OF     E  N  G  L  A  N  D.  297 

the  decifions,  or  judgments,  being  nuidc  by  divers  courts,  and  by  fcvcral 
independent  judges,  who  had  no  common  intcrcft,  or  communication  to- 
gether touching  the  laws,  in  proccfs  of  time,  every  fcvcral  county  was 
found  to  have  fcvcral  laws,  cuiloms,  rules,  and  forms  of  proceeding ; 
which  is  always  the  effect  of  fcveral  independent  judicatories,  adminifl- 
by  feveral  judges.  And,  indeed,  this  I  look  upon  to  be  one  of  the  great 
caufes  of  very  many  local  cuftoms  in  many  parts  of  England,  different 
from,  and  derogatory  to,  the  general  common  law. 

BUT  the  third  and  greatefl  evil,  was  the  frequent  injustice  of  the  judg- 
ments given  in  thofe  petty  courts,  and  every  bufinefs  of  any  moment  being 
carried  by  parties  and  factions.  The  conteft  about  the  crown  had  been 
carried  on  with  fuch  violence,  that  one  half  of  the  people,  all  over  the 
kingdom,  were  profeflcd  enemies  to  the  other  ;  and  though  both  fides, 
"wearied  with  war,  came  into  the  expedient  of  Henry's  fuccefiion,  and  he 
behaved  fo  that  there  were  no  factions  againft  him,  yet  as  to  individuals, 
the  fenfe  of  pafl  injuries,  and  the  rancour  arifmg  from  thence,  flill  re- 
mained. For  the  freeholders  being  the  judges,  and  the£e  converfmg  with 
one  another,  and  thofe  almoft  entirely  of  their  own  party ;  and  being  likc- 
wife  much  under  the  influence  of  the  lords,  every  one  that  had  a  fuit  there 
fped  according  as  he  could  make  parties  ;  and  the  men  of  great  power  and 
intereft  in  the  county  did  eafily  overthrow  others  in  their  own  caufes,  or 
in  fuch  wherein  they  were  interefted,  either  by  relation,  tenure,  fervice, 
dependance,  or  application.  True  it  is,  the  law  provided  a  remedy  for 
falfe  judgments  given  in  thefe  courts,  by  a  writ  of falfe.  judgment  before  the 
king,  or  his  chief  juflice  ;  and  in  cafe  the  judgment  given  in  the  county 
court  was  found  to  be  fuch,  all  the  fuitors  were  confiderably  amerced.  Yet 
this  was  infufficient  for  the  purpofe :  For,  firfl,  it  was  too  heavy  and  expcn- 
five  for  many  that  were  aggrieved  ;  next,  it  was  hard  to  amerce  all  for  the 
fault  of  a  few,  viz.  the  jury,  who  gave  the  verdict  ;  and  the  amercement, 
though  fometimes  very  fevere,  being  equally  aflefled,  on  all  the  freehold- 
ers, was  not  a  fmTicient  check  upon  the  injuilice  of  fome  juries  f. 

THE  king  therefore  took  a  more  effectual  courfe  ;    and,  in  his  twenty, 
fecond  year,,  by  advice  of  his.  parliament,  held  at  Northampton,  inftituted 

P  p  jiifticcs 

f  Fitzherbert,  Nat.  brev.  p.  41. 


298  LECTURES    ON    THE  LECT.  32. 

juftices  Itinerant.  He  divided  the  kingdom  into  fix  circuits,  and  to  every 
circuit  allotted  three  judges,  men  knowing  .and  experienced  in  the  laws  of 
the  realm,  to  prefide  in  fuch  cafes  as  were  of  confequence,  and  to  direct 
the  juries  in  all  matters  of  law.  They  were  principally  empowered  to  try 
aflizes,  that  is,  as  I  explained  in  my  laft  lecture,  the  rights  of  pofleflion, 
which  had  been  notorioufly  invaded  in  the  laft  reign  ;  and  which,  from  the 
continuance  of  the  old  parties,  could  not  even,  in  this  reign,  be  fairly 
determined  in  the  inferior  courts  f . 

NOT  that  this  was  their  fole  bufmefs ;  for  they  had  in  their  commUTions 
power  to  enquire  into  feveral  other  matters,  fuch,  particularly,  as  the  king 
found,  by  the  advice  he  had  received  from  the  feveral  counties,  to  be  evils 
not  likely  to  be  remedied  in  the  county  courts.  Thefe  were,  before  every 
commimon  for  juftices  itinerant  in  eyre  went  out,  digefted  under  certain 
articles,  called  Capitula  Itineris,  or  The  chief  heads  of  the  eyre  or  circuit 
which  fpecified  what  actions  they  were  to  deal  with.  Thefe  were,  in 
general  (for  the  commimons  varied  at  different  times,  being  fometimes 
more,  fometimes  lefs  extenfive)  civil  and  criminal  actions,  happening  be- 
tween party  and  party  ;  actions  brought  at  the  fuit  of  the  crown,  either  for 
public  crimes,  or  the  ufurpation  of  liberties,  franchises,  or  jurifdiction  from 
the  crown,  which  had  been  very  frequent  in  the  former  times  of  confufion  ; 
and  alfo  the  efcheats  of  the  king. 

THE  thing  I  find  moft  remarkable  is,  that,  in  thefe  diftributions  of  Eng- 
land into  circuits,  are  omitted  fome  counties,  (I  do  not  mean  Middlefex, 
where  the  curia  regis  fat,  or  Chefter,  which  was  a  county  palatine,  for  they 
of  courfe  were  not  to  be  included)  as  particularly  Lincoln,  in  the  fecond 
eyre ;  alfo  York,  in  the  fecond  eyre,  is  but  one  county,  whereas,  in  the 
firft,  it  is  two,  York  and  Richmond  ;  as  in  Lancashire  alfo,  Lancafter,  and 
Copeland;  and  Rutland  is  omitted  in  both.  All  which  mews,  that  the 
limits  and  divifions  of  all  the  counties  were  not  afcertained  with  precifion  at 
that  time.  The  fecond  eyre  was  inftituted  three  years  after  the  firft,  by 
parliament  alfo  held  at  Windfor,  and  in  this  there  were  but  four  circuits. 

After 

f  Dugdale,   orig.  jurid.    chap.  20.      Madox,    hift.  of  Exchequer,    chap.   3.    §   ro. 
Brafton,  lib.  3.  chap.  10,  11.     M.  Paris,  an.  1176. 


LECT.  32.          LAWS     OK     ENGLAND.         299 

After  thefe  two  firft,  the  king  appointed  the  circuits,  and  diflributcd  the 
counties  at  his  plcafure. 

THE  ufual  times  of  their  going  was  once  in  feven  years.  However,  they 
were  not  dated  certainly ;  for  fomctimes,  if  there  was  a  more  than  ordina- 
ry complaint  of  want  of  jufticc,  they  went  every  three  or  four  years,  and 
fometimes,  if  there  was  no  complaint,  they  were  intermitted  beyond  fevcn. 
Neither  was  the  number  of  judges  fent  on  the  circuits  fixed,,  but  alterable 
at  the  king's  plcafure. 

THE  determinations  in  thefe  circuits,  being  under  die  infpecYion  of  men 
of  integrity  and  (kill,  were  in  high  eftimation,  and  accordingly  are  fcveral 
times  quoted  by  Bra&on,  as  being  of  as  great  authority  as  the  decifions  in 
the  curia  regis  ;  and  in  confequence  thereof,  the  bufinefs  in  the  county 
courts  continually  declined ;  juftice  was  every  day  adminiflered  worfe  in 
them,  and  at  length  they  were  confined,  except  in  fome  cafes,  to  pleas  un- 
der forty  (hillings.  Nay  even  thefe  were,  upon  application,  eaCly  remove- 
able  by  a  writ  called  a.  pone,  into  the  king's  courts  f. 

BUT  as  the  hopes  of  obtaining  juftice  in  the  inferior  courts  waxed  every 
day  more  faint,  it  was  found  neceiTary,  during  the  intervals  of  the  eyres, 
to  fubflitute  other  courts  in  their  place.  Hence  the  invention  Qijujlices  of 
affixes,  of  cyer  and  terminer,  of  goal  delivery  j  and  the  neceflity  of  affairs 
afterwards  obliging  thefe  to  be  fent  very  frequently,  it  was  thought  fit, 
about  the  end  of  Edward  the  Third's  reign,  to  lay  afide  the  juitices  in  eyre, 
as  fuperfluous,  fince  thefe  other  did  their  bufinefs,  except  as  to  pleas  of  the 
king's  forefls,  where  the  eyres  were  continued-  And,  in  procefs  of  time, 
to  prevent  the  enormous  expence  of  bringing  juries  up  to  the  king's 
courts,  the  juftices  of  the  nifi  pr'tus  were  instituted,  to  try  iflues  joined  in 
the  king's  courts,  and  the  verdicts  fo  found  to  return  to  the  court  from 
whence  the  record  was  brought ;  which  court,  on  the  record  fo  found,  pro- 
ceeds to  judgment.  Thefe  are  the  judges  who  now  tranfaft  the  county  bu- 
finefs in  their  circuits,  under  the  feveral  commiflions  before-mentioned  ; 
and  going  regularly  twice  every  year  for  that  purpofe,  the  whole  bufinefs 
they  tranfacr,  is,  in  common  fpeech,  called  AJfiz.es  ;  that  being,  in  the  an- 

P  p  2  tient 

f  4.  luftit.  p.  184,  2.66.     Hale,  hift.  com.  law.  chap.  7.. 


300  LECTURES     ON     THE  LECT.  32. 

tient  times  of  their  inflitution,  the  principal  part  of  their  employment, 
though  now  fuch  actions  are  fcarce  ever  brought ;  perfonal  actions,  which 
may  repeatedly  be  tried,  having  fuperfeded  theinf. 

ABOUT  this  time,  alfo,  it  feems  that  the  curia  regis,  the  bufmefs  there 
increafing,  was  divided,  for  the  more  convenient  difpatch  thereof,  into  four 
courts  ;  and  to  each  its  feparate  jurifdiction  allotted.  The  exchequer,  in- 
deed, was  in  fome  fort  a  feparate  court  before,  and  had  its  diftinct  bufmefs 
of  the  province  ;  and  in  it  the  treafurer,  not  the  Juftkiarius  Anglia,  prefid- 
ed,  as  he  did  in  the  other  courts.  It  is  not  impoffible  that,  before  this  time, 
they  had,  in  the  curia  regis,  fet  apart  different  days  for  different  kinds  of 
caufes.  But  they  were  all,  in  one  refpect,  the  fame  court  j  becaufe  they 
had  the  fame  judges,  namely,  all  fuch  nobles  as  attended  the  court.  But 
this  being  found  inconvenient,  as  thefe  great  men  were  generally  ignorant 
in  law,  and  bufmefs  began  to  encreafe,  it  was  found  proper  to  appoint  fet- 
tled fkilful  judges,  and  to  divide  the  court,  and  appoint  each  part  its  feparate 
jurifdiclion.  However,  thofe  limits  were  not  exactly  fettled,  or,  at  leaft, 
not  exactly  obferved,  for  fome  time  after :  For  we  find  in  John's  reign, 
that  common  pleas,  that  is,  civil  fuits  between  party  and  party,  and  particu- 
larly fines  of  lands,  which  are  of  the  fame  nature,  were  held  in  the  King's 
Bench ;  though,  on  the  contrary,  we  find  no  pleas  of  the  crown  tried  in 
the  court  of  Common  Pleas.  I  fuppofe  the  reafon  was,  that  the  latter  be- 
ing derived  out  of  the  former,  the  king's  bench  had  a  concurrent  jurifdic- 
tion  with  it,  until  retrained  by  that  branch  of  Magna  Charta,  Ccmmunia 
placita  non  fequantur  curiam  noftram.  The  firfl  of  thofe  courts  in  dignity 
and  power,  efpecially  while  the  Jujliciarius  Anglia  remained,  was  the  King's 
Bench,  though  of  late  days  the  Chancery  hath  over-topped  it.  Here,  as 
the  king  ufed  frequently,  in  the  antient  times,  to  fit  in  perfon,  the  king  is 
fuppofed  always  prefent ;  which  is  the  reafon  why  a  blow  given  in  this  court, 
upon  any  provocation  whatfoever,  is  punifhed  with  the  lofs  of  the  hand,  as 
it  is  done  in  the  prefence  of  the  king.  The  proper  jurifdiction  of  this  court 
is  caufes  where  the  king  is  either  directly  or  indirectly  concerned,  except 
as  to  his  revenue  J. 

IN 

f  2.  Inftit.  p.  24.  et  feq.     4.  Inftit.  p.  162.     Selden's  notes  on  Hengham. 
t  Dugdale,  orig.  jurid.  chap.  17. 


LECT.  32.  LAWS    OF    ENGLAND.  301 

IN  all  picas  of  tie  crown  thcrcfbre,  that  is,  fuit ;  of  the  king  to  punilh 
offences,  as  indictment  of  treafon,  felony,  breach  of  the  peace,  arc  proper 
fuhjcch  for  this  court.  He  is  indirectly  concerned  in  this,  that  all  erro- 
neous judgments,  given  in  the  Common  Pleas,  or  other  inferior  courts, 
arc  here  reformed ;  for  the  king  is  concerned  to  fee  juftice  done  to  his 
fubjefts. 

SECONDLY,  for  the  fame  rcafon,  this  is  a  proper  court  to  grant  prohibi- 
tions to  courts  that  exceed  their  jurifdiction,  though  this  is  not  particular 
to  the  King's  Bench,  but  common  to  all  the  four  courts. 

THIRDLY,  it  hath  cognizance  of  all  privileges  and  franchifes,  claimed  by 
tiny  private  perfons  or  corporations  ;  and  if  any  ufurped  upon  the  king  in 
this  refpect,  they  are  called  in,  by  a  quo  ivarranto,  to  fliew  by  what  title 
they  claim  fuch  privileges.  Likewife  where  any  member  of  a  corporation 
is  disfranchifed,  or  removed  from,  or  diflurbed  in  his  office,  here  (hall  he 
be  remedied.  For  when  a  king  has  given  a  franchife,  he  is  concerned, 
in  honour  and  intereft,  to  fee  that  every  man  entitled,  fliall  enjoy  the  be- 
nefit of  it. 

FOURTHLY,  the  king  is  interefted  in  the  life,  limbs,  and  liberty  of  every 
fubjecl:.  Therefore  this  is  the  court  wherein  appeals,  brought  by  private 
perfons,  of  murder,  felony,  and  maim,  fhould  be  tried  j  and  if  any  man 
complains  of  wrongful  imprifonment,  this  court  fhall,  by  writ  of  habeas 
corpus,  have  him  brought  into  court,  with  the  caufe  of  his  imprifonment 
returned  ;  and  if  the  caufe  is  inefficient  to  difcharge  him,  or  if  the  offence 
he  is  charged  with  be  bailable,  to  bail  him.  Nay,  this  court,  in  favour 
of  liberty,  hath  a  power,  in  all  cafes ;  they  may,  if  they  fee  proper,  bail  a 
man  for  crimes  that  are  not  ordinarily  bailable  by  common  law. 

FIFTHLY,  they  have  a  right  to  hold  plea  of  all  the  trefpafles  done  vi  & 
armisj  though  brought  principally  for  a  private  reparation  to  the  party ;  for 
this  action  favours  of  a  criminal  nature,  and  the  king  is  entitled  to  a  fine 
for  the  breach  of  the  peace. 

LASTLY,  it  has  cognizance  of  all  perfonal  actions  brought  againft  per- 
fons that  have  the  privilege  of  this  court.  The  perfons  privileged  are  two, 

firft 


LECTURES     ON     THE  LECT.  32. 

firfl  the  officers  of  the  court,  who  are  fuppofcd  to  be  conftantly  attendant 
thereon,  and  to  whom  it  would  be  inconvenient,  as  well  as  to  the  court,  to 
fue  or  be  fued  elfewhere ;  and  therefore  the  privilege  extends  to  fuits 
brought  as  well  by,  as  againfl  fuch  officers ;  fecondly,  the  prifoners  who 
are  in  the  cuflody  of  the  marfhal  of  the  court,  and  who  are  confequently 
not  at  liberty  to  appear  in  any  other.  Thefe  therefore  can  only  be  fued 
here ;  for  the  court  will,  in  fuch  cafe,  order  the  prifoner  up  from  their 
own  prifon  to  make  his  defence  ;  and,  under  the  colour  of  this  rule,  they 
now,  by  a  fiction,  make  all  forts  of  actions  fuable  in  this  court ;  for  it  is 
only  alledging  the  defendant  is  in  the  cuflody  of  the  marfhal,  though  in 
fad  he  is  not,  and  that  is  held  fufficient  to  found  the  jurifdi&ionf. 

I  SHALL  next  proceed  to  the  jurifdicYion  of  the  high  court  of  Chancery, 
the  fecond  in  antient  times,  but  for  fome  ages  pad  the  firfl  court  of  the 
realm. 

f   4.  Inftitute,  p.  70.  et  feq. 


LECTURE 


LECT.  33-  LAWS    OF    ENGLAND.  303 


LECTURE        XXXIII. 

The  jurifdicllon  of  the  high  court  of  chancery — The  Chancellor ,  a  very  confidcr- 
able  officer  in  [be  Curia  Regis — The  repeal  of  letter  f  patent ,  improvident ly 
ijjucd  to  the  detriment  of  the  King  or  thefubjeft,  a  branch  of  the  jurifdiftion 
of  the  court  of  chancery — The  chancery,  ajjijlant  to  the  exchequer  in  matters 
of  the  Kings  revenue — Other  branches  of  the  buftnefs  of  this  court. 

IN  my  laft  lefture,  having  taken  notice,  that,  in  the  reign  of  Henry  the 
Second,  the  curia  regis  and  the  Exchequer,  which  dealt  with  the  king's 
revenue,  were  diftinct  courts,  and  that  there  were  even  traces  of  the  Com- 
mon Picas ,  as  another  court,  different  from  the  higher  court,  the  curia  regis  \ 
I  took  occafion  to  treat  of  thefe  feveral  courts,  and  the  feveral  limits  of 
their  jurifdiclions  ;  although  the  now  general  opinion  be,  that  thefe  courts 
were  not  feparated  till  after  the  barons  wars,  that  is,  not  until  an  hundred 
years  later  j  which  opinion,  as  I  conceive,  hath,  thus  far,  its  foundation  in 
truth,  that  the  precife  limits  of  their  feveral  jurifdicYions  were  not  perfectly 
afcertained,  and  kept  diftinft  till  then,  though  the  divifion  had  been  made 
before,  that  is,  about  the  time  I  am  now  treating  of.  For,  if  it  be  a  good 
maxim,  as  my  Lord  Coke  fays,  boni  judicis  eft  officium  ampliare  jurifdicHonem, 
it  is  not  to  be  wondered  at,  that,  for  fome  time  after  the  feparation,  the 
Jufticiarius  AngUa,  who  had  the  fole  jurifdiftion  in  him  before,  mould  re- 
lain,  in  many  inftances,  the  exertion  of  it,  where,  after  the  feparation,  the 
•natter  properly  belonged  to  another  court. 

THE  maxim,  indeed,  is,  in  my  opinion,  utterly  falfc.  For  where  there 
are  feparate  courts  with  dillincl:  powers,  furely  it  is  the  duty  of  each  court, 
were  it  only  to  prevent  confufion,  to  keep  within  their  proper  limits.  How- 
ever  thus  much  muft  be  allowed  in  juftification  of  Lord  Coke's  maxim, 
that,  as  it  is  too  much  the  inclination  of  human  nature,  when  in  power,  to 
grafp  at  more  than  is  properly  our  due,  fo  the  judges  of  all  courts,  and  of 
All  nations,  have  been  as  little  exempt  from  this  infirmity  as  any  other  fet 

of 


304  LECTURES     ON     THE  LECT.  33. 

of  men.  Witnefs  the  outrageous  ufurpation  upon  the  temporal  jurifdi&ion 
in  antient  days,  both  by  the  ecclefiaitical  judges  in  the  times  of  the  Pope's 
grandeur,  and  by  the  judges  of  the  conftables  and  admirals  courts,  when 
fupported  by  arbitrary  kings  f. 

THE  temporal  judges,  on  the  other  hand,  with  a  firmnefs  highly  to  be 
commended,  have  fuccefsfully  not  only  refitted  thefe  encroachments,  but, 
by  way  of  reprizals,  have,  in  thefe  latter  days,  made  confiderable  inroads 
into  the  antiently  allowed  territories  of  thofe  courts  ;  not  to  the  detriment 
of  the  fubjecl:,  I  muft  confefs  ;  for  the  method  of  trial  by  the  common  law, 
is  certainly  preferable  to  theirs.  But  the  common  law  courts  have  not  fa- 
tisfied  themfelves  with  extending  their  jurifdi&ion,  in  derogation  of  thofe 
courts,  which  they  juftly  looked  on,  in  thofe  days,  as  enemies  to  them, 
and  to  the  laws  and  confl-itution  of  the  kingdom,  but  they  have  made  inva- 
{ions  into  each  others  territories,  and,  by  what  they  cvO&Jiftions  of  law,  have 
made  almoft  all  caufes,  except  criminal  ones,  cognizable  in  any  court ;  con- 
trary to  the  very  intention  of  dividing  the  courts ;  which  was,  that  each 
fhould  have  their  feparate  bufmefs,  and  that  the  judges  an<i  practitioners, 
by  being  confined  in  a  narrower  track,  mould  be  more  expert  in  their  dif-. 
ferent  provinces  J. 

IN  treating  of  thefe  courts,  I  began  with  the  King's  Bench,  which,  as 
long  as  the  office  of  Jufticiarius  Anglia  fubfifled,  was  the  fuperior;  but 
fince  Edward  the  Firft  difcontinued  that  office,  on  account  of  its  too  great 
power,  and  the  bufmefs  of  that  officer  hath  been  fhared  between  feveral 
judges,  the  rank  of  this  court  hath  declined,  and  the  Chancery  hath  obtain- 
ed the  firft  place.  To  this  court,  then,  I  mall  now  proceed*.  And  as  in 
it  there  are,  at  prefent,  and  have  been  for  fome  ages,  two  diftinct  courts, 
one  ordinary,  proceeding  by  common  law,  and  the  other  extraordinary,  ac- 
cording to  the  maxims  of  equity,  where  common  law  could  give  no  relief ; 
I  (hall,  for  the  prefent,  confine  myfelf  to  the  former,  and  defer  treating  cf 
the  latter,  until  I  come  to  that  period  when  the  Equity  jurifdiftion  arofe. 

IN  the  antient  times,  before  the  divifion  of  the  courts,  the  chancellor 
was  a  very  confiderable  officer  of  the  curia  regis.  It  was  his  bufmefs  to 

writs 
-}•  d'Anver's  abrigement,  vol.  i»  $  4«  Inftitute,  p.  79, 


LF.CT.  33.         L  A  W  S     OF     E  N  G  L  A  N  D.  305 

\vritc  and  feal  with  tlic  ;.  //  the  diplmata,   or  charta  regis,  what 

no\\  patents;  to   iflue  all  »r  founding  the  jurifdic- 

tion  of  the  r/,r;W  /r£/.r,  ami  the  bringing  caufes  into  that  court,  that 
antient  law  belonged  to  the  courts  in  the  country  ;  or  thofc  to  the 
to  fuinmon  them  to  attend  the  commune  concilium,  or  parliament.  /  rds, 

when  the  I loufe  of  Commons   was    formed,  he  iflucd   writs  to  the  pr< 
places,  for  the  election  of  the  members  thereof.     Hence,  when  the  c(. 
were  divided,  the  making  out  letters  patents,   tlic  keeping  the  in;' 
thereof,  and  ilfuing  of  original  writs,  as  they  are  called,  that  K,  th 
found  the  jurifdicYiqn  of  courts,  and  other  writs  of  like  nature,  contin 
to  belong  to  him  ;  and,  as  thefe  records  remained  with  him,  there  arofc  to 
him  a  jurifdicYion  concerning  them  ;  except  as  to  fuch  writs  as  were  intend- 
ed to  found  the  jurifdicYion  of  another  court,   which,   though   iflued  from 
Chancery,  were  returnable  into  the  proper  court,  and  the  cauie  dctcnii. 
there  f . 

firfl  branch  of  the  jurifdicYion  of  this  court,  then,  was  the  rept 
ietters  patents,  that  had  iliued  improvidently,  to  the  detriment  of  cither  of 
the  king  or  the  fubjeft ;  and  this  properly  fell  to  the  lot  of  the  chancellor, 
as  he  made  out  the  patents,  and  kept  the  enrolments  of  them.  The  me- 
thod of  repealing  thofe  was  by  a  writ  called  fcire  facias  notified  to  the  party 
claiming  under  the  patent,  and  calling  him  in  to  Ihew  caufe  why  it  fhould 
not  be  revokc-d.  This  fcire  facias  iiTued  in  three  cafes  :  the  firfl,  at  the  fuit 
of  a  fubject ;  where  two  patents  were  granted  to  two  perfons  of  the  fame 
thing,  the  firfl  patentee  brought  a  fcire  facias  againil  the  fecond,  to  repeal 
his  grant  ;  the  other  two  were  at  the  fuit  of  the  king,  where  the  king 
deceived,  either  by  falfe  fuggeftions  of  merit,  or  as  to  the  value  of  the  thing 
granted ;  or,  in  the  fecond  place,  if  the  king  had,  by  his  patent,  granted 
what  by  law  he  could  not  have  granted.  Here,  if  the  cafe  was  clear  in  law, 
and  there  was  no  controverted  matter  of  fact  necefiary  to  be  fettled,  to  af- 
certain  the  right,  the  chancellor  was  judge  ;  and  if  his  judgment  was  againft 
the  patent,  it  was  his  duty  to  cancel  the  inrolment  thereof;  from  which  part 
of  his  office  he  had  his  name.  I  fay  if  the  cafe  ..r  in  law,  and  t! 

was  no  controverted  matter  of  fact ;  for,  if  this  latter  was  the  cafe,  he  could 
not  try  it,  he  being  antiently  but  an  officer  of  the  curia  rcgis,  and  not  a 

Q^q  judge; 

-f-  Dugdale,  orig.  jurid.  ch.  16.     4.  Infh  p,  80. 


306  LECTURES     ON     THE  LECT.  33. 

judge  ;  and  therefore  unqualified  to  fummon  a  jury.  The  rule  continued 
the  lame  after  the  feparation  of  the  courts,  and  his  becoming  a  judge  ;  prin- 
cipally, as  I  conceive,  for  the  prefervation  of  the  common  law,  and  the  birth- 
right of  Englimmen,  the  trial  by  jury.  For,  as  the  chancellor  was  almoft 
always,  in  thofe  days,  an  ecclefiaflic,  and  confequently  fuppofed  more  at- 
tached to  the  civil  and  canon  law,  there  might  be  danger,  if  he  was  fuffered 
to  try  matter  of  fact  himfelf,  he  might  introduce  a  new  method  of  trial. 
When,  therefore,  the  caufe  was  heard  upon  a  demurrer^  that  is,  the  facts 
admitted  of  both  fides,  and  only  the  law  in  difpute,  he  gave  judgment ; 
but  if  they  came  to  iffue  on  a  fact,  he  muft  carry  the  record  over  to  the 
King's  Bench,  who  fummoned  the  jury,  and  gave  judgment  on  the  ver- 
dict-}-. 

ANOTHER  branch  of  his  jurifdiction  was  with  relation  to  the  inquifitions 
of  office.  There  are  many  officers  whofe  duty  it  is  to  take  care  of  the  pro- 
fits and  revenues  of  the  king,  and  to  that  purpofe  they  are  fworn  in  the  Ex- 
chequer ;  fuch  as  efcheators,  foeriffs,  and  others,  whofe  duty  it  is  to  make 
enquiry  what  the  king  is  entitled  to  in  their  refpective  limits,  whether  lands 
or  chattels,  or  by  what  title.  For  this  purpofe  they  are  to  fummon  juries, 
and  to  return  the  verdicts  found  to  the  court  of  the  revenue  of  the  Exr 
chequer,  in  order  that  that  court  may  take  care  of  the  king's  rights.  Thefe 
were  called  inquifitions,  or  enquiries,  of  office,  as  proceeding  from  the  duty  of 
an  officer  that  made  them.  But  thefe  officers  being  negligent  in  the  per- 
formance of  this  their  duty,  it  became  fometimes  neceffary,  and  afterwards 
cuftomary  to  quicken  thc;m,  by  ifiuing  writs  for  this  purpofe ;  and  thefe 
writs  iffued  out  of  Chancery,  the  Officina  Brevium  ;  and  then,  that  it  might 
be  feen  they  were  properly  obeyed,  the  return  of  the  inquifition  was  made 
into  the  court  that  iflued  the  writ,  and  thus,  the  Chancery  gained  a  juri£- 
diction  in  this  point,  and  became  an  affiftant  to  the  Exchequer  in  the  mat- 
ters of  the  king's  revenue ;  not  indeed  in  the  adminiflration  thereof,  but  in 
bringing  it  into  the  king's  po0effion  {. 

It  is  a  maxim  in  the  Englifli  law,  that  nothing  can  pafs  from  the  king  to 
a  fubject  but  by  matter  of  record,  which  maxim  was  not  only  advantageous 

to 

f  4.  Inft.  p.  79.  80.  84.  88.. 
t-  Ibid.  p.  225.  113.  80.  76., 


LAWS    OF    E  N  C)  L  A  \f  I).  307 

to  the  royal  ntivc  of  perions  getting  grants  by  furprife,  but 

alfo  advantageous  to  the  fubjed  in  the  finnncfs  of  his  title,  when  oner 
had  obtained  it.      And,  on  the  contrary,  the  regular  and  equal   way  of  rc- 
floring  potlcilions  to  the  crown  was  by  record  alfo,  that  i«,  by  inquifit 
finding  the  king's  title  returned,  as  1  have  mentioned.     But  as  the  vcrd 
taken  in  thefe  inquilitions  may  be  erroneous,  and  detrimental  to  another  per- 
fon,  by  finding  what  was  really  his  property,   to  have  I  <  propert 

another,  and  to  have  accrued  to  the  king  by  forfeiture  or  cfcheat ;  and  as, 
regularly,  by  another  maxim  of  law,  there  is  no  averring  againft  or  conteft- 
ing  a  record,  it  was  necefiary  that  the  bare  return  of  inquilition  into  Chan- 
cery fhould  not  be  final  and  conclufive,  but  that  time  ihould  be  given  to 
any  that  thought  himfelf  affected  to  claim  his  right.  Hence  a  month's 
time  is  given  by  ftatute,  after  the  return  of  the  inquifition,  in  which  any  per- 
fon  may  come  in  and  travcrfc  the  office,  that  is,  conteft  the  validity  ot  it. 
And  here  the  chancellor  is  judge,  in  the  fame  manner  as  in  the  repeal  of 
letters  patents,  that  is,  if  the  fubject  of  the  controverfy  depends  merely  upon 
matter  of  law  ;  but  if  the  parties  come  to  an  iffue  on  matter  of  fact,  he  can- 
not try  it,  for  the  reafon  above  given,  but  it  mud  go  to  the  King'? 
Bench \ . 

ANOTHER  branch  of  the  judicial  bufmefs  is  the  hearing  of  petitions  to 
the  king  for  juftice  in  his  own  caufes.  No  man,  by  the  feudal  principles  of 
our  law,  can  bring  an  action  againft  the  king.  For  the  charging  him  with 
wrong  doing  would  be  a  breach  of  fealty.  The  king  cannot,  by  our  law, 
do  wrong  ;  but  yet,  from  the  multiplicity  of  his  occupations,  or  from  his 
being  mifmformed,  the  fubjecl  may  fometimes  fufFer  wrong  from  him.  The 
remedy  thereof,  in  this  cafe,  is  by  humble  petition  to  the  king,  that  he 
would  enquire  into  the  caufe,  and  do  juftice  to  the  party,  which,  though 
conceived  in  an  humbler  drain,  is  as  effectual  as  an  action,  and  mufl  be 
tried  in  this  court,  the  proper  channel  to  convey  his  majefty's  graces,  and 
the  king,  by  his  chancellor,  difpenfes  juftice  to  the  party. 

ANOTHER  branch  of  the  judicial  bufmefs  of  this  court  was  the  proceed- 
ing in  certain  cafes  againft  perfons  privileged,  that  is,  the  officers  of  the 

Qjq  2  court, 

f  4.  Inft.  p.  iss-  79.  206. 


3o8  L  E  C  T  U  R  E  S     ON     THE  LECT.  33. 

court,  who  "being  fuppofed  to  be  conftantly  attendant,  were  to  be  fued  here, 
as  the  officers  of  other  courts,  were  in  their  refpe&ive  courts. 

LASTLY,  this  court  had  jurifdicYion  with  refpecl  to  proceeding  upon  re- 
cognizances,, or  acknowledgments  of  obligations  taken  in  this  court,  which 
being  here  recorded,  and  not  to  be  removed,  were  properly  here  triable f. 

THERE  are  fome  other  caufes,  proper  for  the  jurifdi&ion  of  Chancery,, 
which  would  carry  me  too  far  at  prefent.  I  mall,  therefore,  conclude  here 
with  mentioning  one  finking  difference  between  this  and  the  other  courts, 
that  they  lit  only  in  the  times  of  the  four  terms,  whereas  it  is  open  all  the 
year.  The  confining  the  others  to  the  terms  arofe  from  the  religion  of  the 
times,  and  the  inquifitions  of  canon  law,  which  forbad  courts  to  be  held 
during  the  feafons  of  the  three  great  feflivals,  and  of  harveft.  In  obedience 
to  this  law,  Lmay  fay  (for  the  papal  power  was  then  very  high  in  England) 
was  our  Michaelmas  vacation  fet  apart  for  the  folemnization  of  Chriftmas, 
the  Hillary  vacation  for  Eafter,  the  Eafter  vacation  for  Whitfuntide,  and  the 
Trinity  or  long  vacation,  for  the  ufes  qf  hufbandry.  But  great  would  be 
the  evils,  if  that  court  which  is  the  Offidna  Jufticla,  the  Shop  of  Juftice^ 
were  to  be  ever  fhut.  Writs,  therefore,  iflued  hence  at  all  times,  and  all 
fuch  caufes  aSj  for  the  public  good,  cannot  brook  delay  till  the  ordinary 
times  of  fitting  of  other  courts,  arc  here  handled  in  the  vacations,  fuch  as  to 
mention  a  few,  habeas  corpus's  and  homine  rcplegiandcfs,  to  reftorc  per- 
fons  imprifoned  to  liberty,  prohibitions  to  keep  inferior  courts  within 
their  proper  limits ;  and  replevins,  to  reftore  the  pofleflion  of  goods  dU. 
drained. 

BUT  the  great  bufmefs  of  this  court,  as  a  court  of  common  law,  was,  that 
it  was  the  Offidna  Brevium,  the  fliop  where  original  writs  were  purchafed  by 
fuitors,  in  order  to  commence  their  actions.  An  original  writ,  in  the  moft 
common  form,  is  an  order  to  the  fheriffto  fummon  the  party  complained  of 
to  do  juflice  to,  or  elfe  to  anfwer  to  the  complainant  in  the  proper  court ; 
containing  a.  fhort  defcriptibn  of  the  complainant's  title,  and  the  wrong  done 
to  him,  from  whence,  in  Latin,  it  is  called  Breve,  and  anfwers  to  the  ori- 
ginal, citation  in  the  Roman  and  ecclefiaftical  laws.  This,  and  the  making 
out  patents,  was  the  principal  bufmefs  of  the  chancellor  in  the  curia  regis, 

and. 

f  4.  Inft.  ch.  8.     Bacon,  hift.,and  polit.  difcourfe,  part.  2.  ch.  18. . 


\  W  S    OF    E  N  O  L  A  X  I).  309 

and  then/fore  naturally  continued  with  him  after  the  divifum  of  the  courts. 
The  reafons  afligned  by  Gilbert  for  having  one  of  tlirfe  fuperior  courts  a  pu- 
blic fhop  for  julticc,  arc  three  ;  firfl,  that  it  mi^ht  appear  that  all  power  of 
judicature  flawed  from  the  crown  ;  ferondly,  that  the  crown  might  not  be 
defrauded  of  the  fines  due  to  it  fur  fuff<  ring  peribns  to  defcrt  the  inferior 
courts,  and  to  fue  for  juflice  immediately  from  the  king  ;  and  laflly,  to  pre- 
fcrve  an  uniformity  in  the  law ;  for  thefe  writs  being  made  out  in  one  con- 
ftant  form  contributed  greatly  thereto,  being  both  a  direction  to  the  judge, 
and  a  limitation  of  his  authority.. 

OKIOINAI.I.Y,  the  chancellor  heard  the  complaints  of  the  perfon  injured, 
and  formed  a  writ  according  to  the  nature  of  the  cafe,  but  as,  among  a  rude 
military  people,  little  verfed  in  commerce,  and  the  variety  of  tranfacYions 
that  attend  it,  the  complaints  of  the  people  were  confined  in  a  narrow  com- 
pals,  it  but  feldom  happened,  after  fome  time,  that  there  was  occafion  for 
making  a  new  writ,  in  a  form  different  from  what  had  been  ufed  before. 
Thefe  forms,  therefore,  were  collected  into  a  book  of  our  law,  called  the 
Hegi/ter,  the  antienteft  book  of  our  law  ;  and  the  making  them  out,  being 
now  matter  of  courfe,  nothing  more  than  copying  out  the  old  terms,  infert- 
ing  the  proper  names  of  perfons,  and  places,  and  the  chancellor's  bufi- 
nefs  encreafmg,  became  devolved  upon  the  chancellor's  clerks,  the  Cle- 
rid,  as  they  were  antiently,  or  the  Ma/lcrs,  as  they  are  now  called,  of 
Chancery  ;  and  they  were  reftrained  from  making  out  any  of  a  dif- 
ferent form  from  thofe  in  the  Regifter.  However,  as,  in  procefs  of 
time,  cafes  would  happen  which  none  of  the  forms  in  that  book  would 
fuit,  and  it  was  looked  on  as  the  corner-flone  of  the  law,,  the  chancel- 
lor could  not  of  himfelf  venture  to  make  out  new  and  unufual  writs, 
but  referred  the  complainants,  in  fuch  cafes,  to  petition  the  parliament 
for  remedy  f. 

THESE  petitions  afterwards  growing  too  frequent,  and  interrupting  the 
public  bufinefs,  it  was  found  neceflary  to  enlarge  the  power  of  the  Ma- 
flers  of  Chancery,  and  to  give  them  a  qualified  power  of  forming  new 
writs.  This  was  done  by  the  flatutc  of  Weflminfler  the  fecond,  cap. 

24, 

f  Baron  Gilbert's  hiftory  of  the  Court  of  Common  Pleas.    Madox,  hift.  Exchcq.  ch.  2« 
fcft.  9.     2  Iiiflitute,  p.  53.  407.     4  Inftitute,  ch.  8- 


3io  LECTURES     ON     THE  LECT.  33, 

24,  in  Edward  the  Firft's  reign ;  it  runs  thus  :  Quotiefcunque  de  catero 
cvenerit  me  cancellaria,  quod  in  uno  cafu  reperitur  breve,  &  in  confimili 
cafu  cadcnte  fub  eodem  jure,  &  fimili  indigente  remedio,  non  reperitur,  con- 
cordent  clerici  de  cancellaria  in  breve  faciendo,  vel  atterminent  querentes  in 
proximum  parliamentu?n,  6-  fcribantur  cafus,  in  quibus  concordare  non  pof- 
funt,  &  referant  cos  ad  proximum  parliamentum,  6-  de  confenfu  jurif- 
peritorum  fat  breve  ne  contingat  de  catero,  quod  curia  domini  regis  deficiat 
conquerentibus  in  juftitia  perquirenda ;  which  laft  words,  ne  contingat,  &:c» 
gave  a  handle,  as  I  (hall  mew  hereafter,  to  this  court  to  ereft  their  equitable 
jurifdidion  |. 

WE  fee  how  this  power  given  to  the  Matters  was  limited :  it  muft 
be  exercifed  only  in  cafes  parallel  to  fuch  as  there  was  a  remedy  alrea- 
dy provided  for  ;  all  the  Matters  mutt  agree  in  the  form  of  the  new 
writ  j  and  the  remedy  muft  be  the  fame  as  was  in  the  fimilar  cafe  in 
the  Regifter.  To  illuftrate  this  by  the  example  of  the  firft  writ  form- 
ed by  the  Matters  upon  this  ttatute,  and  which  therefore,  by  way  of 
eminence,  is  called  a  writ,  in  confimili  cafu.  The  ttatute  of  Glocefter 
ordered  the  Chancery  to  form  a  writ  fov  the  relief  of  the  perfon  in  re- 
verfion,  where  a  tenant  in  power  had  aliened  her  dower.  The  writ  was 
accordingly  framed,  and  inferted  in  the  Regifter.  Now,  by  virtue  of 
this  ftatute  of  Weftminfter,  the  Matters  framed  the  writ  in  cafu  con- 
fimili,  in  favour  of  the  perfon  in  reverfion,  where  a  tenant  by  the  cour- 
tefy,  or  tenant  for  life,  had  aliened,  he  being  equally  damaged  as  the 
former  cafe.  But  though  this  was  particularly  called  a  -writ,  in  cafu 
confimili,  there  were  many  others  formed  by  virtue  of  this  ftatute,  fuch 
as  for  various  kinds  of  trefpafles  unknown  in  former  ages,  and  ac- 
tions upon  the  cafe,  fo  frequent  in  thefe  our  days,  and  fo  called,  be- 
caufe  the  writ  is  formed  according  to  the  circumftances  of  the  cafe,  and 
not  upon  the  old  forms  continued  in  the  Regifter. 

THIS  new  employment  of  Mafters  in  Chancery,  and  the  bufmefs  of 
the  court  encreafmg,  created  a  neceflity  of  ere&ing  new  officers,  to 
make  out  the  brevia  de  curfu,  namely,  thofe  in  the  Regifter,  who  were 

therefore 

$  a  Inftitute,  p.  40  f. 


LECT.  33.          LAWS    OF    ENGLAND.  311 

therefore  called  Curritors.  The  chief  of  the  Mailers  is  Keeper  tj 
Rolls  of  this  court,  which  was  formerly  a  part  of  the  chancellor's  bufi- 
m is ;  and  he  is  therefore  called  Mq/ler  of  the  Rolls.  For  ages  part, 
fmce  the  Equity  bufmefs  multiplied  in  England,  this  officer  has  been 
there,  in  matters  of  equity,  an  afiiftant  judge  to  the  chancellor,  but 
his  decrees  are  liable  to  a  rehearing,  and  to  be  rcvcrfed  by  the  chan- 
cellor. But  in  this  kingdom,  the  office  hath  not  had  any  judicial  au- 
thority annexed  to  it. 


LECTURE 


312  LECTURES     ON     THE  LECT.  34. 


LECTURE        XXXIV. 

The  court  of  Common  Bench  or  Common  Pleas — 'The  jurlfdicllon  of  this  court — 
Actions  real,  pcrfonal,  or  mlxt — The  court  of  Exchequer — The  jurifdiclion  of 
this  court — Exchequer  chamber — The  judicature  of  Parliament. 

r  1  ^HE  next  of  the  fuperlor  courts,  is  the  Common  Bench,  or  Common  Pleas  ^ 
JL  as  it  is  more  commonly  called,  being  the  proper  court  for  the  deter- 
mining fuits  between  fubjecls,  wherein  the  king  is  not  .concerned ;  and  up- 
on the  multiplication  of  bufmefs  in  the  curia  regis,  it  was  feparated  from  it, 
for  the  more  fpeedy  and  eafy  difpatching  the  affairs  of  the  people.  As  in 
the  very  old  times  the  king  often  fat  in  perfon  in  the  curia  regis,  and  that 
he  might  have  an  opportunity  of  fo  doing  when  he  pleafed,  that  court  al- 
ways followed  the  king  wherever  he  went  within  the  kingdom  of  England; 
and  in  thofe  days  it  was  cuftomary  for  the  kings  to  take  progreffes;  and  re- 
fide  in  the  different  feafons  of  the  year  in  different  parts  of  the  kingdom,  as 
we  fee,  by  the  variety  of  places  where  the  parliaments  were  held  in  old 
times.  The  fame  practice  of  the  courts  and  the  records  following  the  per- 
fon of  the  king  continued  in  France  longer  than  in  England.  For  when 
king  John  was  taken  by  the  black  prince  at  the  battle  of  Poi&iers,  the  an- 
tient  records  of  that  kingdom  were  loft,  and  there  are  fcarce  any  now  re- 
maining there,  of  what  had  paffed  previous  to  that  time,  except  enrolments 
made  fmce,  of  the  antient  charters  that  were  in  the  hands  of  the  fubjecls. 

BUT  in  England  the  conftant  removal  of  the  courts  was  found  very  bur- 
•denfome  to  the  people,  who  had  fuits  much  earlier.  For  their  eafe,  there- 
fore, it  was  enacted  in  Magna  Cbarta,  that  communia  placita  non  fequantur 
curium  nojiram^fed  teneantur  in  aliquo  ccrto  loco  ;  that  the  Court  of  Common 
Pleas  fliould  no  longer  be  ambulatory,  but  held  in  once  certain  place. 
Weilminfler  was  the  place  fixed  upon,  and  there,  if  we  except  fome  occa- 
fional  removals,  on  account  of  epidemical  fickneffes,  hath  it  been  held  ever 
fmce.  And  in  long  fpace  of  time  after,  the  other  courts  became,  though 

not 


Lr.c'T.  34.  L  A  W  S    o  F    E  N  Ci  I.  \  N  D. 

not  in  puriuance  of  any  pofitivc  law,  fixed  tlicic  alfo.     By  their  becoming 
fettled  in  a  certain  place,  one  great  inconveniei.  the  hardfliips  on 

the  iuitors,  was  avoided,  namely,  the  lofs  anil  iinbexxlemcnt  of  the  records 
by  tliele  frequent  removals.     For  it  is  very  remarkable,  that  t1  not  a 

record  remaining  of  the  times  previous  to  the  fixing  of  the  courts,  not  <. 
the  enrolments  of  the  ads  of  parliament  themlelves,  cxa  .,  and  a 

very  few,  of  the  courts  of  Exchequer,  which,  concerning  the  king's  i 
line,  were  more  carefully  prefervedf. 

• 

BUT  the  greateft  advantage  that  attended  this  change  was  the  improve- 
ment of  the  law,  and,  what  was  a  confequence  thereof,  the  preservation  of 
the  liberty  of  the  fubjeft.  For  now  it  became  much  more  convenient  for 
perfons  to  apply  to  that  ftudy,  when  they  were  no  longer  under  a  ncceflity 
of  removing.  And  we  therefore,  foon  after,  find  the  practitioners  of  the 
law  fettled  together,  fomething  in  a  collegiate  manntr  ;  and  after  the  difib- 
lution  of  the  order  of  Knights  Templars,  the  habitation  of  thefe  latter,  cal- 
led the  'Temple,  was  granted  to  them  for  their  refidence  and  improvement. 
Here,  they  continued  to  confer  the  degrees  of  Apprentices,  or  Barriftcrs  at 
law,  and  Sergeants  at  lava,  which  they  had  began  before,  in  imitation  of 
the  bachelors  and  do&ors  degrees  in  univerfities. 

THE  prefervation  of  the  liberty  of  the  fubjecl:  was,  as  I  faid  before,  ano- 
ther happy  cenfequence  that  refulted  from  the  fixing  the  courts,  and  the 
uniting  the  profeflbrs  of  the  law  into  one  body.  For  as,  about  this  time 
the  ftudy  of  the  civil  and  canon  laws  was  eagerly  purfued  by  the  clergy  in 
the  univerfities,  and  the  Englifh  cufloms  as  much  depreciated  by  them  as 
poflible,  and  as  thofe  two  laws  were  founded  on  maxims  of  defpotifm,  and, 
as  fuch,  encouraged  and  fupported  to  the  utmoft  by  the  popes,  and  all 
kings  that  aimed  at  arbitrary  power,  the  common  lawyers  were  neceflita- 
ted,  for  the  fupport  of  their  profeffion,  to  take  the  popular  fide  of  the 
queflion,  and .  to  flickle  for  the  old  Saxon  freedom,  and  limited  form  of 
government. 

HENCE  the  fteady  oppofition  they  made,  even  in  thofe  early  times,  to  the 
king's  difpenfing.  Nay,  they  carried  their  zeal  for  liberty  fo  far,  as  (fince 

R  r  they 

•?•  2.  Inftitute,  p.  21,  22. 


314  LECTURES     ON     THE  LECT.  34. 

they  could  not  dire&ly,  in  thofe  days,  oppofe  the  weight  of  the  civil  law) 
to  quote  the  very  pafiages  of  it  that  were  in  favour  of  abfolute  power,  and 
by  their  glofies  make  it  fpeak  the  language  of  liberty.  Thus  Bracton  quotes 
that  text:  Quod  principi  placet  ^  legis  habct  vigorem;  that  is,  in  its  true  mean- 
ing, the  monarch  is  fole  legiflator :  but  Bra&on's  comment  is,  id  eft^  non 
qu'uquid  de  vohmtate  regis  temere  prefumptumfuerit,fed  quod  concilia  maglftra- 
tuwnfuurum,  rege  autforitatem  praftante,  habitafuper  hoc  deliberation?  6^  trac- 
tatu,  rcftefuerit  defnitum  ;  that  is,  the  king  is  not  fole  legiflator  ;  dire£tly 
contrary  to  the  fenfe  of  the  very  text  he  quotes.  And  it  muft  be  allowed, 
to  the  honour  of  the  common  lawyers,  that,  with  the  exception  of  a  few 
venal  time-ferving  individuals,  they  have,  for  a  fucceffion  of  ages,  proved 
themfelves  true  friends  to  a  rational  civil  liberty  in  the  fubject,  and  to  rea- 
fonable  power  and  prerogative  in  the  kingf. 

To  come  to  the  jurifdicYion  of  this  court.  Its  proper  bufinefs,  as  appears 
from  its  name,  is  to  take  cognizance  of  all  common  pleas,  that  is,  all  pleas 
that  are  not  pleas  of  the  crown,  or  at  the  fuit  of  the  king.  With  thefe  it 
cannot  meddle ;  for  all  actions  at  the  fuit  of  the  king  for  criminal  matters, 
belong  to  the  King's  Bench,  as  thofe  for  his  revenue  do  properly  to  the  Ex- 
chequer. But  it  hath  jurifdi&ion,  and  that  univerfally,  throughout  Eng- 
land, in  all  civil  caufes,  whether  real,  perfonal,  or  mixt;  the  diftinction  of 
which  it  will  not  be  amifs  juft  to  point  out. 

'  REAL  attions  are  thofe  that  are  brought  to  recover  land  itfelf,  where  the 
claimant  has  a  right  to  an  eflate  in  it  for  life  at  lead ;  and  thefe,  until  with- 
in thefe  two  hundred  and  fifty  years,  were  the  only  ones  ufed  for  that  pur- 
pofe  ;  but,  fmce  that  time,  they  are  gone  almoft  entirely  out  of  ufe,  on  ac- 
count of  their  nicety,  their  delays,  their  being  conclufive  ;  and  their  place 
is  fupplied  by  mixed  adions,  which  are  eafier,  fhorter,  and  may  be  tried  a- 
gain.  However,  if  any  one  was  inclined,  at  this  day,  to  bring  fuch  an  ac- 
tion, this  is  the  court  to  bring  it  in  ;  and  therefore  all  common  recoveries, 
which  antiently  were,  and  (till  carry  the  form  of,  real  actions,  are  fuffered 
in  this  court. 

\ 

PERSONAL 
f  Bra&on,  lib.  i.  cap.  i.     Fortefcue  de  laud.  leg.  Angli#,  cap.  34, 


LF.CT.  34.         LAWS     OF     ENGLAND. 

.iflions  arc  thole  tliat  arc  brought   for  the  reor.  .cr  of 

fume  duty,  or  demand  in  particular,  or  of  damages  for  the  non-peiibrmance 
of  foine  promife  or  contrad,  entered  into,  or  laltly  fuch  as  are  brought  by 
a  man  to  recover  a  compcnfation  in  damages  ior  lomc  injury  fultained  in 
his  perl  on — or  property.  To  give  but  one  or  two  inftanccs  of  thcfe  lad: 
If  my  ground  is  trcfpafled  on,  if  my  perfon  is  aflaulted,  my  reputation  in* 
jured,  the  remedy  is  by  the  pcrfonal  acYions  of  trcfpafs,  affault  &  battery, 
tnjlander.  All  adions  for  breach  of  covenants  are  likewife  perfonal  ac- 
tions; for,  by  the  common  law,  damages  only  are  recoverable  thereon, 
and  the  party  is  not  obliged  to  perform  the  covenant.  Wherefore,  if  a 
man  chufes  rather  to  have  his.  covenant  performed  than  receive  a  fatisfac- 
tion  in  damages,  he  muft  go  into  a  Court  of  Equity,  which  will  oblige  a 
man  to  perform  in  fpecie,  what  he  hath  fpecifically  engaged  to  perform,  if 
the  performance  is  poflible.  This  court,  therefore,  being  the  proper  court 
for  perfonal  actions,  fines  of  lands  are  levied  here  ;  for  they  are  fiditiout 
actions,  founded  on  a  fictitious  breach  of  covenant. 

MIXED  actions  are  defigned  for  the  recovery  of  a  fpecific  thing,  and  alfo 
damages,  and  confequently  partake  of  the  nature  both  of  real  and  perfonal 
adions.  For  inflance :  If  a  tenant  for  life,  or  years,  or  at  will,  commits 
wafte,  he  forfeits  to  the  owner  of  the  inheritance  the  place  wherein  the 
-wafte  was  done,  and  treble  damages.  The  action  of-Ao/lc^  therefore  be- 
ing brought  to  recover  both,  is  a  mixed  action.  The  adion  of  ejectment 
-alfo,  which  was  originally  proper  to  recover  damages  for  being  put  out  of 
-a  leafe  for  years,  but  is  now  the  common  remedy,  fubftituted  in  the  lieu  of 
real  actions,  is  now  of  the  fame  nature  ;  becaufe  both  the  land  itfelf,  and 
damages  for  the  wrong  are  recovered  f . 

THESE  three  kinds  of  actions  are  properly  the  bufmefs  of  this  court, 
though,  as  to  the  two  laft,  adions  perfonal  and  mixed,  the  courts  of  King's 
Bench  and  Exchequer  have,  by  fidions,  gained  a  concurrent  jurifdidion 
with  this  court  ;  the  King's  Bench,  by  fuppofmg  the  defendant  to  be  in 
the  cuftody  of  the  marfhal  thereof ;  and  the  Exchequer,  by  fuppofmg  the 
plaintiff  to  be  a  debtor  to  the  king. 

Rr  2  THK 

f  Baron  Gilbert,  Hift.  of  the  court  of  Com.  Pleas.  4.  Infl.  ch.  10. 


3i6  L  E  C  T  U  R  E  S     ON     THE  LECT-  34. 

THE  proper  way  of  founding  the  jurifdicYion  of  this  writ,  is  by  a  writ  out 
of  Chancery,  returnable  hither,  either  to  begin  a  caufe  originally  here,  or  to 
remove  one  depending  in  an  inferior  court  not  of  record  ;  but,  in  fome 
cafes,  they  proceed  without  any  writ  from  Chancery,  as  in  caufes  brought 
by  or  againft  an  officer  of  the  court,  and  likewife,  in  granting  prohibitions 
to  other  courts  that  attempt  to  enlarge  their  jurifdi&ions. 

BEFORE  I  conclude,  I  muft  obferve,  that  this  court,  though  one  of  the 
four  high  courts  derived  out  of  the  curia  regis,  is  not,  however,  fupreme, 
but  fubordinate  to  the  King's  Bench.  For  judgments  given  therein  are  re- 
verfible  in  the  King's  Bench,  by.  a  writ  of  error  ifluing  from  the  Chancery, 
fuggefting  the  king's  being  informed  that  manifeil  error  has  interveened, 
and  commanding  the  record  to  be  tranfmitted  into  the  King's  Bench  j  the 
judges  belonging  to  which,  upon  the  face  of  it,  and  nothing  elfe,  are  to  af- 
firm or  reverie  the  judgment ;  for  the  error  mult  be  manifeit;  and  no  error 
in  point  of  fact,  but  error  only  in  point  of  law,  can  be  averred  againit  a 
record. 

THE  loweft  in  rank  of  the  four  great  courts,  though  from  antient  times 
one  of  the  greateft  importance,  is  the  court  of  Exchequer,  whole  bufmefs 
was  to  colled  in  the  feveral  debts,  fines,  amerciaments,  or  other  duties  or 
properties  belonging  or  accruing  to  the  king,  and  likewife,  to  iflue  money 
by  his  orders  ;  and  this  court  being  originally  folely  erected  for  the  king's 
profit,  is  the  reafon,  I  prefunie,  why  it  is  held  in  rank  the  loweft  ;  it  being 
more  honourable  to  the  crown  to  give  precedence  of  rank  to  thofe  courts 
that  were  intended  for  the  administration  of  juflice  to  the  fubjeft,  above 
that  which  was  intended  merely  for  the  king's  temporal  advantage.  Be- 
fides,  this  court  was,  in  its  original,  diftincl:  from  the  curia  regis,  the  treafu- 
rer  being  the  judge  in  this,  as  thejujliciarius  Angtia  was  in  the 'other ;  and 
therefore,  it  was  regular,  that  the  Chancery,  and  Common  Pleas,  as  having 
been  once  part  of  the  fupreme  court,  mould  take  place  before  this.  Its 
having  been  originally  a  diftinft  court,  accounts  for  its  independency  on  the 
King's  Bench  ;  for,  no  writ  of  error  lies  from  it  to  the  King's  Bench,  as  doth 
from  the  Common  Pleas,  but  its  errors  are  rectified  in  another  manner*. 

THIS 
*  ad.  Infl.  p.  196.  197.  255.  551., 


LF.CT.  34.          LAWS     OF     E  N  G  L  A  N  D.         317 

'i'n  is  court,  as  wrll  ai  the  Chancery,  hath,  properly  fpcaking,  two  courts: 
one,  ordinary,  proceeding  according  to  the  Arid  rules  of  the  common 
law ;  the  other,  by  equity  ;  for,  as  it  is  the  king's  duty  to  render  juflicc 
with  mercy,  fo,  in  this  court,  the  rights  of  the  king  arc  not  always  ex- 
acted  with  rigour  ;  but,  on  circumftanccs  of  reafon  and  equity,  may  be 
mitigated  or  difcharged.  The  court  of  common  lau  in  this  court  had  an- 
tiently  much  more  bufmefs  than  of  late.  Originally,  whilfl  the  royal  do- 
menfncs  were  unalienated,  they  had  the  fetting  of  them  for  years  ;  but, 
afterwards,  people  chufmg  rather  the  authority  of  the  great  fcal,  took  them 
in  Chancery.  That  court,  as  I  mentioned  when  treating  of  it,  had  likc- 
wife  gained  the  returns  of  inquifitions  of  office,  and  had  alfo  gained  by  act 
of  parliament,  the  compofition  of  forfeitures,  for  the  king's  tenants  in  capitc 
aliening  their  lands  without  licenfe  ;  which,  otherwife,  would  have  belonged 
to  this  court.  The  erection  of  the  Court  ofWards^  alfo,  by  Henry  the  Eighth, 
took  off  that  branch  of  its  jurifdiction  ;  and  the  abolishing  of  the  military 
tenures  by  Charles  the  Second  took  away  the  bufmefs  of  calling  in  their 
fruits.  The  erecting  the  office  of  the  Treafury,  as  diftinct,  for  the  ifluing 
of  money,  had  the  fame  effect ;  but,  above  all,  the  erecting  new  jurifdio- 
tions,  and  appointing  new  judges  to  try  caufes  relative  to  the  new  taxes,  as 
the  Commiflioners  of  the  Cuftoms  and  Excife,  and  Commiffioners  of  Ap- 
peal, diminiihcd  the  peculiar  bufmefs  of  the  court  -J-. 

IT  will  be  now  proper  to  confider  the  nature  and  extent  of  their  prefent 
jurifdiction.  Here  then  are  fworn  the  fheriffs,  and  other  officers  concerned 
in  the  king's  revenue  and  duties  ;  and  here  they  are  to  return,  and  make  up 
their  accounts.  Here,  likewife,  the  king  fues  his  debtors,  or  even  the  debtor 
of  his  debtor  (for  fo  far  his  prerogative  extends) ;  and  here  alfo,  for  enabling 
his  debtors  to  pay  him,  they  are  priviledged  to  fue  their  debtors  ;  an  allow- 
ance that  hath  grown  up  by  degrees  to  extend  the  jurifdiction  of  this  court, 
and  to  make  it  concurrent  with  the  Common  Pleas.  For  it  is  only  alledging, 
(and  this  they  will  not  allow  to  be  traverfed  or  denied)  that  the  plaintiff  is 
the  king's  debtor,  and  the  bufmefs  is  done.  The  court  acquires  an  immedi- 
ate jurifdiction.  The  fame  allegation  is  likewife  necefiary,  when  a  fuit  of 
equity  is  commenced  in  this  court  ;  for  otherwife,  the  fuit  would,  on  the 
face  of  it,  appear  to  belong  to  Chancery.  I  need  fcarce  obferve,  that  the 

officers 

1 4th  Inft.  ch.  xi. 


3i8  L  E  C  T  U  R  E  S     ON     THE  LECT.  34. 

officers  of  this  court  are  to  fue  and  be  fued  here ;  for  that  is  a  privilege  com- 
mon to  the  officers  of  all  the  courts,  arifmg  from  their  perfonal  attendance. 
Here,  likewife,  the  king's  attorney-general  exhibits  informations  for  con- 
cealment of  cufloms  and  feizures,  informations  upon  nenal  ftatutes,  where 
there  is  a  fine  due  to  the  king,  forfeitures  and  breach  of  covenant  to  the 
king ;  likewife  all  informations  for  intrufions,  wafles,  fpoils  or  encroach- 
ments on  the  king's  lands  $  in  general,  where  the  crown  fufters  in  its 
profits. 

IN  this  court  of  common  law,  the  Barons  of  Exchequer  only  are  judges, 
and  are  called  Barons,  becaufe  antiently  none  were  judges  there  under  that 
degree.  In  the  Court  of  Equity,  the  chancellor  of  the  Exchequer  is  joined 
with  them,  though  it  muft  be  owned  this  officer  hath  feldom,  of  late  years, 
acted  either  in  England  or  Ireland,  (in  his  judicial  capacity,  and  it  hath 
been  confidered  little  more  than  as  a  great  lucrative  place.  Errors  in  this 
court  are  not,  as  I  obferved  before,  redreffed  in  the  King's  Bench,  as  thofe 
of  the  Common  Pleas  are,  but  in  another  court,  called  the  Exchequer 
Chamber,  confifting  of  the  lord  chancellor,  lord  treafurer,  and  chief 
judges. 

THERE  is  another  court  of  Exchequer  Chamber  in  England,  tho'  we 
have  none  fuch  in  this  kingdom,  erected  27th  Eliz.  and  compofed  of 
the  judges  of  the  Common  Pleas  and  barons  of  the  Exchequer,  in  which 
lies  a  writ  of  error  from  the  King's  Bench,  to  reverfe  judgments  in  cer- 
tain fuits  commenced  there  originally.  Into  this  court  are  frequently 
removed,  or  adjourned  from  any  of  the  other  courts,  caufes  that  are  of  a 
new  impreffion,  and  attended  with  difficulty,  or  even  fuch  concerning 
which  the  judges,  perhaps,  entertain  no  great  doubts,  but  are  new,  and 
attended  with  extenfive  confequences ;  and  this,  for  the  more  folemn 
determination,  that  all  the  judges  of  all  the  courts  might  be  confulted  about 
eftabliming  a  new  precedent.  Antiently  fuch  caufes  were  adjourned  into 
parliament,  but  the  legiflative  bufinefs  of  that  high  court  increafing,  this 
court  was  fubftituted  for  the  above  purpofe  of  confultation  f. 

• 

To 
t  4th  Inft.  ch.  13. 


LECT.  34.         LAWS     OF     K  N  G  L  A  N  I).  519 

To  finifli  this  account  concerning  the  fupcrior  courts  at  once,  it   uill  be 
proper  to  fay   fometh'mg  of   the    fuprune   judicature  of  all,  that  of  parlia- 
ment.    Antiently,  as  I   have  frequently  obfcrvcd,  all   caufcs  but  fuch  as 
concerned  the  king  or  peers,  or  thofc  that  were  of  great  difliailty,  or  fuch 
as  juftice  could  not  be  expeded  in  by  law,   were  difpatchcd  in  the  county 
courts,  the  reft  by  petition  to  the   king  in  parliament,  or,  in  the   intervals 
thereof,   in   the  curia  rcgis,  which  originally  \vas  but  a  committee  thereof, 
appointed  by  the  king.     Hence  matters  determined  there,  were  fubjcd  to 
a  review  in  parliament  ;    writs  of  error  from  the  King's  Bench  returned 
there  ;    and  when  the  Equity  courts  grew  up,  appeals  from  the  Chancery 
and  Exchequer  in    matters   of  equity.     This  power  of  judicature  is  pe- 
culiar to  the  lords  (for  the  parliament  confided  at  firfl  only  of  them,  and 
when  the  commons  were  introduced,  they  fat  in  a  diftinft  houfe)  and  the 
parliament  hears  at  prefent  only  matters  that  come  from  other  courts  by 
appeal,  or   by  writ  of  error,  which  is  in  the  nature  of  an  appeal,  and  no 
caufes  originally.     It  is  true,  that,  for  a  long  time  after  the  divifion  of  the 
courts,  many  caufes  by  petition  were  brought  into  parliament  in  the  firft 
inftance  ;  but  thefe  being  generally  referred  to  the  courts  below,  the  prac- 
tice ceafed,  and  would  not  now  be  allowed.      For  a  long  time  accufations 
againft  peers  were  originally  admitted,   but  at  prefent,  and  for  this  long 
time,  indictments  found  below  are  required  before  a  peer  can  be  tried  ;  nor 
can  the  trial  of  peers  by  impeachment  in  parliament  be  confidered  as  an 
original  trial,  for  the  commons  are  confidered  as  the  grand  inqueft  or  grand 
jury  of  the  whole  nation,  and  therefore  an  impeachment  by  them  is  not  only 
equivalent  to,  but  has  and  ought  to  have  greater  weight  than  any  indict- 
ment by  any  private  grand  jury. 

IN  this  judicature  of  the  lords,  an  impeachment  there,  is  one  fmgularity, 
an  exception  to  the  grand  rule,  that  every  man  is  to  be  tried  by  his  peers, 
and  that  is,  that  a  commoner  impeached  by  the  commons  (hall  be  tried  by 
the  lords.  The  reafon  of  this  procedure  feems  to  be,  that  all  the  com- 
mons of  England  are  fuppofed  parties  to  the  accufation,  when  their  rcpre- 
fentatives  have  accufed  him,  and  it  might  be  dangerous  to  truft  his  life 
with  a  common  jury  ;  but  the  lords  are  ftrangers  to  the  charge,  and  it  is 
their  interefl  to  controul  the  commons,  if  they  proceed  with  too  great 
vi  olence  *. 

*  Hales  of  the  power  and  jurifdi&ion  of  Parliament.     Selden  of  the  Judicature  of  Par- 
liament.   See  his  works  vol.  3.  4.  Inft.  ch.  i. 

LECTURE 


320  LECTURES     ON     THE  LECT.  34. 


LECTURE         XXXV. 

Henry  Il.'s  dlfpute  'with  Becket — The  conftitutions  of  Clarendon — The  murder 
of  Becket. 

HAVING,  in  a  general  manner,  run  through  the  jurifdicVions  of  the 
feveral  great  courts  of  the  kingdom,  which  were  divided  from  each 
other  about  the  time  I  am  now  treating  of,  though  the  divifion  was  not 
compleated,  nor  the  feveral  limits  exactly  adjufted  till  fome  time  after ;  I 
mall  proceed,  in  a  fummary  way,  with  the  few  remaining  obfervations  I 
have  to  make,  with  refpecl  to  the  ftate  of  the  law  during  the  reign  of 
Henry  the  Second.  And  the  greatefl  and  moft  remarkable  of  thefe  was 
his  difpute  with  Becket,  archbifliop  of  Canterbury  ;  a  conteft  attended  with 
the  moft  fatal  effects,  and  which  makes  up  a  confiderable  part  of  the  civil 
hiftory  of  that  reign.  The  particular  circumftances  that  attended  it,  and 
the  many  turns  it  took,  I  mail  not  dwell  on ;  but,  as  it  arofe  from  the 
claming  of  contrary  laws,  I  mall  briefly  lay  open  its  fource,  and  give  an 
account  of  the  events. 

FROM  the  year  of  Chrift  one  thoufand,  the  popes  had  every  day  been 
encreafmg  their  power,  and  extending  their  pretenfions.  They  fet  them- 
felves  up,  at  firft,  as  protectors  of  the  dergy,  who  really  had  been  op- 
prefied  by  the  temporal  princes,  and  in  order  to  attach  them  more  firmly 
to  their  interefls,  they  made  canons  in  councils,  and  publimed  decretal 
epiftles,  by  their  own  fole  authority  ;  which,  in  thofe  days  of  fuperflition, 
were  too  readily  received  as  laws  ;  all  tending  to  deprefs  the  civil  power,  to 
raife  the  ecclefiaftical  on  its  ruins,  and,  in  fhort,  to  pave  the  way  for  mak- 
ing the  pope  fupreme  monarch  of  the  world,  in  matters  temporal  as  well  as 
fpiritual.  The  emperors,  however,  flickled  hard,  on  the  other  hand, 'to 
fupport  their  rights,  and  particularly  to  maintain  to  themfelves  the  nomina- 
tion of  the  popes,  as  well  as  of  other  biihops,  which  the  popes  had  transferred 

to 


LT.CT.  LA\VS    OF    ENGLAND.  321 

to  the  people  of'Home  (irit,   and   a:  Is  to  the  clergy  alone  ;  fo  t 

fora  good  part   of  this  time,  there  was   a  fehifm   in  the  church,  and  : 
popes  in  being,  the  one  named  by  the  emperor,  and  the  other  elected;  and 
I  oblcrved  before,  William  llnfus   kept  himfelf   independent  by  acku 

ing  neither,  and  was  abfolute  maftcr  of  the  church.  However,  the 
popes  that  were  eledted,  generally  gained  ground.  They  had  the  majority 
of  the  clergy  on  their  fide,  and  indeed  mod  of  the  fovereign  princes  of 
I'.nrope,  who  were  jealous  left  the  emperor,  under  pretence  of  being  fuc- 
•ceflbrtothe  Romans,  might  arrogate  a  fuperiority  over  them. 

IT  is  furprizing,  yet  very  true,  that,  in  thefe  contefled  times,  the  papal 
power  was  puflied  very  near  its  greateft  height.  The  materials,  ind< 
\\-ere  formed  and  collected  fome  time  before.  A  multitude  of  fictitious 
decretal  cpiflles  had  been  forged  in  the  names  of  the  antient  popes,  fo  early 
as  from  the  year  800,  all  tending  to  exalt  the  bifhop  of  Rome,  as  head  over 
the  church  univerfal ;  but  thefe  were  not  as  yet  generally  known  and  re- 
ceived as  laws,  the  church  being  hitherto  governed  by  collections  of  canons 
made  by  private  perfons,  out  of  the  canons  of  the  general  or  provincial 
councils  and  fay  ings  of  the  fathers.  But  in  the  reign  of  our  Stephen,  the 
mighty  fabrick  began  to  be  reared,  and  to  take  a  regular  form.  Gratian,  a 
Roman  courtier,  undertook  to  make  a  new  compilation  of  ecclefiaflical  laws, 
and  publifhed  it  under  the  name  of  Decrctum,  which  is  now  the  firft  volume 
of  the  canon  law.  This  is  a  motely  compofition,  digefted  under  diflinft 
heads  or  titles,  of  rules  and  decifions,  collected  from  the  fayings  of  the 
fathers,  canons  of  the  councils,  and,  above  all,  from  the  decretal  epiflles 
of  the  popes,  (the  modern  ones  real,  the  ancient  ones  forged),  and  was  put 
together  principally  for  the  two  great  purpofes,  of  aggrandifing  the  See  of 
Rome,  and  exempting  the  clergy  from  lay-jurifdicYion.  And,  for  that  pur- 
pofe,  not  only  forged  epiftles  and  canons  have  been  inferted  in  it,  but  the 
real  canons  and  writings  of  the  fathers  have  been,  in  many  places,  falfified 
by  adding  or  omitting  words  as  beft  ferved  the  purpofe  propofed  ;  and 
that  this  is  the  cafe  of  Gratian's  work,  the  learned  Papifts  themfelves  con- 
fefs,  in  many  inflances.  However,  in  that  ignorant  age,  it  parted  eafily  all 
for  genuine.  But  the  popes,  wifely  confidering,  that,  if  it  was  canvafied,  it 
would  not  bear  a  drift  fern  tiny,  never  chofe  to  give  it  an  authentic  tefti- 

S  f  mony 


322  L  E  C  T  U  R  E  S     ON     THE  LECT.  35. 

mony  of  their  authority,  but  contented  themfelves  with  authorifmg  it  to 
be  read  in  univerfities.  In  the  interval  I  have  mentioned,  the  popes  began 
to  turn  their  fpiritual  arms  of  excommunication  or  interdict,  that  is,  forbid- 
ding the  adminiflration  of  divine  offices,  except  in  articulo  mortis^  in  a 
country  or  diftrict,  to  temporal  purpofes,  and  the  fupport  of  their  gran- 
deur f . 

ON  this  flate  of  affairs  happened  the  quarrel  between  the  archbifhop  and 
Henry,  which  embroiled  him  with  the  pope,  embittered  his  life,  and  was 
attended  with  confequences  that  brought  him  to  the  grave  with  forrow.  At 
this  time  there  were  two  popes,  Victor,  confirmed  by  the  emperor,  and 
Alexander,  the  mofl  enterprifmg  pope  the  world  had  yet  feen,  fupported  by 
the  king  of  France.  Had  Henry  followed  the  example  of  William,  and  ac- 
knowledged neither,  he  might  have  kept  both  in  awe,  and  vindicated  the 
rights  of  his  crown  with  fuccefs.  But  he  was  prevailed  upon  by  Lewis  of 
France  to  recognize  Alexander,  who  was  afterwards  made  an  inflrument 
of  humbling  Henry,  of  whofe  power  that  monarch  was  jealous.  For  his  ex- 
treme partiality  and  feverity  is,  in  part,  to  be  afcribed  to  the  influence  of 
his  protector,  as  well  as  to  his  zeal  for  ecclefiaflical  immunities.  Thefe 
immunities  had  grown  to  an  exceffive  height,  and,  under  the  pretence  that 
no  man  fliould  be  twice  puniflied  for  one  offence,  the  bifhops  took  care  to 
inflict  penance  on  ecclefiaflical  offenders,  and  then  refufed  to  fuffer  them 
to  be  tried  by  the  laws  of  the  land;  fo  that  the  mofl  profligate  ruffians 
crowded  into  the  lower  order,  and  committed  with  impunity  (except  pe- 
nance, or  rather,  a  pecuniary  commutation  for  it)  what  murders,  rapes, 
and  robberies,  they  thought  fit.  Henry  was  fcnfible  of  thofe  enormities, 
and,  in  hopes  of  curing  them,  by  the  afliflance  of  one  highly  obliged  to  him, 
got  Becket,  who  was  lord  chancellor,  his  favourite,  and  indebted  to  him 
for  his  grandeur,  promoted  to  the  See  of  Canterbury.  But  he  foon  found 
how  much  he  was  miftaken  in  his  man.  Becket  had  been  bred  in  his 
youth  in  the  fludy  of  the  ecclefiaflical  laws,  and,  though  he  had  in  all 
things  hitherto  complied  with  the  king  for  his  advancement,  was,  at  the 
bottom,  ftrictly  attached  to  his  order  and  its  privileges,  and  refolved,  at 
whatever  price,  rather  to  extend  than  diminifh  them. 

To 

•J-  Giannone's  hifh  of  Napks,  b.  i.      Bower's  hill,  of  the  Popes,  vol.  i. 


Lrcr.  35.         L  S     OF     E  N  G  L  A  N  D. 

'1  M  d  mp   ai;>'  .vc    life  of  a 

courtier,  and  afiumed  the  char;  rtification  and  fcn&ity.     lie  be- 

gan by  reclaiming  the  cflatcs  belonging  formerly  to  his  fee,  though  they  had 
been  aliened  by  his  prcdccellbrs,  with  the  content  of  their  c!  and 

upon  valuable  confideration  ;  and  this  under  pretence  of  a  canon,  made  a 
year  or  two  before  by  1'ope  Alexander,  in  a  packed  council  at  Troyes  in 
France  ;  \\hieh  was  plainly  faying,  that  an  ecclcliaftical  canon  might  repeal 
the  laws  of  any  country,  and  fubvert  its  conflitution.  He  made  an  attempt 
likewife  on  the  patronages  of  laymen,  and  appointed  a  parfon  to  a  church, 
which  belonged  to  one  of  his  own  tenants,  and  afterwards  excommunicated 
the  tenant  for  turning  this  perfon  out,  altho'  he  was  the  king's  tenant  in  ca- 
pite  ;  and  fuch,  by  a  law  of  the  conqueror,  were  forbid  to  be  excommunica- 
ted without  the  king's  leave,  under  the  penalties  of  treafon.  This  was  a 
very  neccflary  law  ;  as  otherwifc  a  bifhop  might,  by  his  fentence,  deprive 
the  king  of  his  fervice,  and  that  of  as  many  of  his  military  tenants  as  he 
pleafcd.  However,  in  this  point,  when  he  found  he  was  in  danger  of  being 
profecuted  on  the  law,  he  relented,  and  abfolved  the  gentleman  f. 

His  fcreening  of  criminals  was  excercifed  alfo  in  the  mofl  fhameful  man- 
ner. A  lewd  clerk  had  debauched  a  young  lady,  and  afterwards  publickly 
murdered  her  father,  and  this  criminal  was  refufed  to  be  given  up  to  be 
tried.  Another  was  guilty  of  facrilege,  in  Healing  a  filver  chalice  out  of  a 
church,  and  Becket  would  not  fuffer  him  to  be  tried  by  the  laws  of  the  land. 
However,  as  the  offence  concerned  the  church,  and  was  therefore  of  a  very 
heinous  nature,  he  tried  him  himfelf ;  and  having  found  him  guilty,  brand- 
ed him  with  a  hot  iron,  in  defiance  both  of  the  Englim  and  canon  laws, 
neither  of  which  allow  fuch  punifhments  to  an  ecclefiallical  judge.  But  he 
knew  he  was  too  faithful  a  fervant  to  the  Pope,  to  be  called  to  an  account 
even  for  making  free  with  his  own  law. 

HENRY,  finding  it  neceflary  to  (top  the  prelate's  career,  fummoned  an  af- 
fembly  of  the  bilhops,  and  demanded  of  them  that  they  mould  degrade  all 
ccclefiaftical  murderers,  and  deliver  them  over  to  the  fecular  arm.  At  firft 
the  majority  feemed  to  think  this  a  reafonable  propofal;  as  they  muft,  in 
the  firft  place,  find  them  guilty  before  they  were  to  be  given  up.  But  Bcckct 

S  f  2  brought 

f  Lord  Lyttelton's  hift.  of  Henry  II.  b.  3. 


324  LECTURES     ON     THE  LECT.  35. 

brought  them  over,  by  reprefenting,  that,  by  the  canon  law,  they  were  not 
to  be  concerned  in  matters  of  blood,  and  that  their  delivering  over  any  cri- 
minal to  capital  punifhment  would  be  infringing  thereof.  They  therefore  re- 
fufed  the  king.  He  then  demanded  whether  they  would  obferve  the  laws 
and  cuftoms  of  the  kingdom.  Their  anfwer  was,  in  all  things  that  did  not 
interfere  with  the  rights  of  their  order.  The  king  left  the  affembly  in 
wrath,  and  at  length,  Becket  was,  by  the  intreaties  of  the  other  bimops, 
and  even  of  the  Pope's  legate,  who  knew  his  matter,  being  embroiled 
with  the  antipope,  was  not  able,  at  this  time,  to  fupporfchim,  prevailed 
with  to  wait  on  the  king,  and  promife  to  obferve  the  laws  of  the  land  with- 
out any  refervation  f ,. 

HENRY,  fenfible  that  fuch  a  general  promife,  when  particular  fafts  arofe, 
might  be  explained  and  evaded,  was  refolved  that  the  limits  of  the  ecclefia- 
ftical  jurifdiction  mould  be  afcertained  in  fuch  a  manner  as  would  leave  no 
room  for  fubterfuges  ;  and  to  that  end  called  a  parliament  at  Clarendon, 
wherein  Becket  and  the  bimops  fwore  to  obferve  the  laws  there  made,  called 
confcitutions)  as  new  laws,  but  declared  to  be  the  old  laws  of  the  realm. 
Thefe  constitutions  were  in  number  fixteen.  I  mail  mention  a  few  of  the 
principal,  in  order  to  give  a  notion  of  the  points  of  jurifdiction  then  contefted 
between  the  fpiritual  and  lay  courts.  Firft,  then,  it  was  declared,  that 
fuits  about  prefentations  to  livings  belong  to  the  king's  courts ;  that  clergy- 
men mould  be  tried  for  temporal  crimes  in  the  temporal  courts ;  and  that, 
if  they  pleaded  guilty,  or  were  convicted,  they  mould  lofe  the  ecclefiafti- 
cal  privilege  ;  that  no  clergyman  mould  quit  the  realm  without  the  king's 
licence,  nor  attain  it,  without  giving  fecurity  to  attempt  nothing  to  the  pre- 
judice of  the  king  or  kingdom  ;  that  no  immediate  tenant,  or  officer  of  the 
crown,  mould  be  excommunicated  without  the  king's  licence  ;  that  appeals 
in  ecclefiaftical  caufes  mould  be  made  from  the  arch-deacon  to  the  bifhop, 
from  the  bifhop  to  the  archbiihop,  from  the  archbilhop  to  the  king.. 

THIS  indeed  was  flriking  at  the  root  of  the  Pope's  fupremacy,  and  of 
his  profits  too.  It  was  in  truth  declaring  the  king  fupreme  head  of  the 
church  as  to  junfdi&ion  ;  next,  that  all  that  held  ecclefiaftical  dignities  by 

the 

t  Daniel,  ap.  Rennet.    Carte. 


LECT.  35.          LAWS     or     E  N  G  I.  A  N  D. 

the  tenure  of  baronies,  fhould  do  the  duty  of  barons,  and  among  the  reft 
fit  in  judgment  as  barons;  however  \vith  this  favnurab!<  ncc  to  them, 

in  coniidc-ration  of  tlicir  being  bound  by  the  canon  law,  that  tl.  t  re- 

tire when  the  qucdion  was   to   be   put  about  lofs  of  life  or  limb  ;   lik< 
that  no  bifliop,  or  abbot,  fhould   be   elected  without  the  king's  coni 
nor,   when  elected,   be  confecrated  till  they   had    firft  done   homage 
fealty;  that  the  fpiritual  courts  fhould  not  hold  plea  of  debts  due  upon  oath  ; 
and  laftly,  that   the  fpiritual  and  temporal  courts  fhould  mutually  aid  each 
other  in  carrying  their  fcrntences  into  execution  f . 

SUCH  were  the  moft  material  of  the  famous  conflitutions  of  Clarendon 
drawn  from  the  antient  practice,  and  law  of  the  kingdom,  which  the  Pope 
afterwards  declared  null  and  void,  as  contrary  to  the  rights  of  the  holy 
church  ;  which  was  plainly  afluming  the  fupreme  legiflaturc  in  every  thing 
that  had  the  moft  diftant  relation  to  a  church,  or  a  churchman.  But  Becket, 
who  had  fworn  to  obey  the  old  laws  only,  for  fear  of  perfonal  danger  at  that 
time,  did  not  wait  for  the  Pope's  condemnation  of  them,  but  inftantly 
fhewed  he  was  refolved  to  difobey,  by  enjoining  himfelf  penance,  and  ab- 
ftaining  from  officiating  till  he  could  obtain  the  Pope's  abfolution.  Henry, 
provoked  to  the  uttermoft,  was  now  refolved  to  crufh  him.  He  called 
him  to  an  account  in  parliament  for  all  the  king's  moneys  that  had  pafled 
through  his  hands  while  he  was  chancellor,  and  for  one  thoufand  marks  he 
had  lent  him  ;  demands  that  the  king  had  never  intended  to  have  made, 
but  for  his  refra&orinefs  ;  and  which  he  well  knew  he  was  not  able  to  pay, 
having  embezzled  them  in  high  living. 

THE  archbifhop  refolved  to  ftand  out  to  extremity  :  he  offered  a  moft 
wonderful  plea  in  a  caufe  merely  civil,  that  of  debt,  viz.  that  his  being  made 
archbifhop  of  Canterbury  had  difcharged  him  of  all  former  accounts  and 
debts,  and  appealed,  even  in  this  purely  civil  caufe,  to  the  Pope.  When 
reproached  with  contravening  the  conftitutions  of  Clarendon,  contrary  to 
his  oath,  he  broached  another  curious  maxim,  That,  in  every  oath  a  clergy, 
man  could  take,  there  was  a  tacit  falvo  for  the  rights  of  his  order ;  he  for- 
bid the  bifhop  to  fit  in  judgment  upon  him,  under  pain  of  excommunication. 

He 

f  Hoveden.  edit.     Savil.  494 — 549.     Mat. -Paris,  an.  1164.    Lord  Lyttelton's  hift.  of 
Henry  II    book  3.     Brady's  hiflory. 


326  L  E  C  T  U  R  E  S     ON     THE  LECT.  35. 

He  would  not  hear  his  fentence,  but  told  the  peers  that  he  was  their  father, 
and  they  his  children,  and  that  children  had  no  right  to  fit  in  judgment  on 
their  father.  He  then  departed,  in  contempt  of  the  court,  and  went  over 
to  France,  where  he  was  kindly  received  by  that  king  j  and  the  Pope  avowed 
and  encouraged  him  in  all  the  extravagances  he  had  advanced,  received  his 
appeal,  and  annulled  all  fentences  againft  him. 

HOWEVER,  as  the  fchifm  was  not  yet  ended,  he  kept  him  in  for  fome 
time  from  proceeding  to  extremities  \  but  as  foon  as  the  danger  was  over, 
the  Pope  fuffered  him  to  thunder  out  his  excommunications  againft  all  the 
minifters  of  the  king,  and  all  that  obferved  the  conflitutions  of  Clarendon. 
"  The  king  himfelf,  indeed,  was  fpared,  and  the  kingdom  was  not,  on  this  oc- 
cafion,  laid  under  an  interdict  ;  a  circumflance  then  much  apprehended. 
The  king,  on  the  other  hand,  enacted,  that  no  appeals  mould  be  made  to 
the  archbifliop,  or  Pope  ;  that  the  lands  belonging  to  Becket  mould  be  con- 
fifcated  ;  that  the  clergy  who  refided  abroad  mould  return  in  three  months, 
or  forfeit  their  benefices  ;  and  that  no  letter  of  interdict  mould  be  brought 
into  England,  the  penalty  of  which  lafl  was  afterwards  made  the  fame  of 
treafon. 

THE  king  was  not  a  little  uneafy  at  the  apprehenfions  of  perfonal  excom- 
munication, or  of  an  interdict's  iffuing,  as  he  obferved  the  cenfures  already 
paffed  had  but  too  much  influence  on  the  wcaknefs  of  many  of  his  fubjects. 
He  therefore,  to  ward  the  blow,  had  recourfe  to  negotiation,  which  the 
Pope  readily  admitted,  who  feared,  on  the  other  hand,  from  the  popularity 
of  Henry's  and  the  unpopularity  of  Becket's  conduct,  that  his  ecclefiafti- 
cal  thunders  might  be  flighted  in  England.  He  contrived,  however,  in  the 
interim,  to  embroil  him  with  the  king  of  France,  and  other  powers  on  the 
continent.  Matters  continued  on  this  footing  for  fome  years,  in  a  train  of 
negotiation;  in  the  courfe  of  which  the  moderation  of  the  king  and  the  info- 
lence  of  the  archbifhop  were  equally  remarkable,  till,  at  length,  the  former, 
finding  the  Pope  had  trod  down  all  oppofition,  and  that  his  own  interefl 
was  on  the  decline,  was  obliged,  I  may  fay,  to  fubmit ;  for  he  was  recon- 
ciled to  Becket ;  engaged  to  reftore  his  and  his  adherent's  effects,  and  to 
fuffer  him  to  return  to  England,  which  he  did  with  the  additional  quality 

of 


LECT.  35-  L  A  W  S    OF    E  N  G  L  A  N  D.  327 

of  legate  of  the  Pope  ;  and  no  mention  was  madc/>f  cither  fide,  of  the  fub- 
ject  of  tlic  difputc. 

BUT  Beckct  was  rcfolved  to  flu-w  the  world  he  had  conquered.  He  be- 
gan the  cxercifc  of  his  Ii-gatine  power,  by  lulpemling  and  de-grading  the 
clergy,  and  excommunicating  the  laity  that  adhered  to  the  law*  of  the  king- 
dom. Nay,  he  excommunicated  two  of  the  king's  tenants  lor  cutting  ofl* 
the  tail  of  his  fumptcr  mule  ;  fo  facred  was  the  beaft  become. 

SOON  after  he  was  murdered  at  the  high  altar,  in  confequcnce  of  a  rafh 
fpeech  of  the  king's,  in  a  barbarous  manner,  as  all,  any  way  acquainted 
with  the  hiftory  of  England,  muft  know;  and  now  was  Henry  compleatly 
at  the  Pope's  mercy.  For  Becket,  dead,  ferved  the  See  of  Rome  more  ef- 
fectually than  he  ever  could  have  done  living.  The  bloodinefs  of  the  fact, 
the  facrednefs  of  the  place  where  it  was  committed,  and  the  refolution  with 
which  he  died,  filled  not  only  all  England,  but  all  Europe,  with  religious 
horror.  Miracles  in  abundance  he  immediately  wrought,  and  he  who  by 
many  was  looked  upon  as  a  traitor,  was  now  univerfally  efteemed  a  faint 
and  a  martyr ;  and  fo  he  was  to  the  interefl  of  the  See  of  Rome. 

IN  thefe  circumftances  Henry  was  obliged  to  fubmit  to  be  judged  by  the 
Pope's  legates,  who,  at  length,  abfolved  him,  on  his  fwearing  that  he  had 
not  willingly  occafioned  the  murder,  and  that  he  felt  great  grief  and  vexa- 
tion on  account  of  it ;  in  which,  no  doubt,  he  was  fmcere.  But  before  he 
could  obtain  it,  he  was  obliged  to  promife  to  be  faithful  to  Alexander  and 
his  fucceffors,  not  to  interrupt  the  free  courfe  of  appeals  to  Rome  in  ecclefi- 
aftical  caufes,  and  not  to  enforce  the  observance  of  evil  cufloms  introduced 
fmce  his  acceffion  to  the  throne  ;  for  fo  they  fliled  the  conflitutions  of  Cla- 
rendon, though  they  were  only  declarations  of  the  old  law.  And  thus 
ended  this  famous  conteft,  in  an  abfolute  victory  on  the  fide  of  the  Pope  f . 

f  Hume;  Carte,  Lyttelton,  &c.. 


LECTURE 


328  LECTURES    ON     THE  LECT.  35. 


LECTURE         XXXVI. 

The  rebellions  of  Henry's  fons — He  is  fucceeded  by  Richard  I. — Thefteps  taken 
at  this  period  towards  fettling  the  fuccejfion  to  the  kingdom — 'The  laws  efOle- 
ron — AcceJJion  of  John — His  cruelty  and  opprejjions. 

HE  NR  Y's  quarrel  with  the  Pope,  terminating  in  the  manner  it  did, 
neceffarily  weakened  the  weight  and  influence  he  ever  before  fup- 
ported,  both  in  his  own  kingdom,  and  on  the  continent ;  nor  could  the 
unwearied  pains  he  afterwards  took,  in  redreffing  grievances,  and  making 
falutary  laws,  by  the  advice  of  his  parliament,  reftore  him  to  the  confequence 
he  had  loft.  The  reft  of  his  life  was  fpent  in  unfortunate  wars  with  his  re- 
bellious children,  inftigated  thereto  by  the  artful  Philip  of  France.  And  the 
pretence  was  grounded  on  a  ftep  that  Henry  had  taken  in  favour  of  his  chil- 
dren, and  I  may  add  of  his  people,  that  of  bringing  the  crown  to  a  regular 
courfe  of  fucceflion,  and  by  that  means  preventing  contefts  upon  a  vacancy. 
Hugh  Capet,  the  firft  of  the  prefent  race  of  French  kings,  who  came  to  the 
throne  by  election,  in  order  to  perpetuate  it  in  his  family,  invented  that 
praftice  which  his  fucceflbrs  followed  for  near  three  hundred  years,  of  aflb- 
ciating  the  eldeft  fon,  by  caufmg  him  to  be  crowned  in  the  father's  life- 
time, 

HENRY,  who  loved  his  children,  and  was  fenfible  that  the  not  following 
this  practice  in  England  had  occafioned  the  wars  between  William  and 
Henry  the  Conqueror's  fons,  and  their  brother  Robert,  as  well  as  thofe 
between  Stephen  and  hirnfelf  and  his  mother,  crowned  his  eldeft  fon 
Henry.  But  the  ufe  which  the  ungrateful  prince  made  of  his  advance- 
ment, was  to  embroil  his  father,  by  demanding  the  immediate  ceffion  of 
Normandy,  on  pretence  that,  being  a  king,  he  fliould  have  fome  country 
given  up  immediately  to  govern.  Upon  young  Henry's  death,  the  father, 
who  knew  Richard,  with  greater  capacity,  was  equally  unnatural  with  his 
elder  brother,  refolved  not  to  give  him  the  fame  pretence  to  trouble  him, 

and 


T.  36.         LAWS     OF     E  N  G  L  A  N  D. 

ami  refuftcl  obftinately  to  have  him  crowned  ;   but  this  refufal  ferved   1 
for  a  pretext  tor  rebellion,  as  it  gave  Richard  room  to  think,  or  at  lea. 
pretend   to  think,  that  his  lather  intended  to  difinherit  him,  and  to  fettle  the 
crown  on  his  youngefl  and  favourite  fon  John.     In   this   rebellion  Kiehard, 
afliited  by  the  king  of  France,  and  many  <>1    Henry's  lubjecU,  who  proba- 
bly fufpected  Henry's  delign  was  lueh   :  ;d,  and  the 
father  was  obliged  to  engage  that  his  fubjeds  fhould  take  the  oath  of  even- 
tual allegianee  to  Richard,  and  foon  after  died  of  a  broken  heart,  occafioned 
by  the  undutiful  conduct  of  every  one  of  his  fons. 

RICHARD  accordingly  fuccecdcd  ;  during  whofc  reign  we  have  little  to 
obferve  concerning  the  laws,  the  whole  time  of  it  b  -ing  fpent  in  a  continual 
(late  of  war  either  in  Pale  (line  or  France.  F.normoufly  heavy  indeed  were 
the  taxations  hisfubjefts  laboured  under,  and  yet  they  bore  tli^in  with  chear- 
fulnefs.  For  the  holy  war,  and  the  recovery  of  the  fepulchre  of  Chrift  from 
the  infidels,  no  aids  could  be  thought  exorbitant  ;  and  for  his  wars  after  his 
return  he  was  readily  fupplied  out  of  affection  ;  for  the  remorfe  he  (he 
for  having  occafioned  his  father's  death,  his  admirable  valour,  the  injullice 
of  and  the  cruel  treatment  Le  received  in  his  captivity,  and,  above  all,  the 
oppofition  between  the  perfidious  conducl  of  the  French  king  and  his  open- 
nefs  and  fmcerity,  endeared  him  to  his  fubjefts,  made  them  (hut  their  eyes 
on  his  many  failings,  and  bear  their  burthens  with  patience. 

Two  things  only  pafled  in  this  reign  proper  for  the  fubje£b  of  thefe  lec- 
tures, the  fleps  made  for  fettling  the  fucceflion  of  the  crown,  and  the 
laws  of  Oleron.  As  Richard  was  unmarried  when  he  fet  out  for  Paleftine, 
he  thought  it  proper  to  prevent,  if  he  could,  any  doubt  that  might  arife, 
in  cafe  he  died  without  iffue.  There  might,  in  this  cafe,  be  two  competi- 
tors, Arthur,  the  fon  of  Gcoflfry,  his  next  brother  who  was  dead,  and 
John  the  youngeft  brother,  who  was  living.  However  clear  the  point  ' 
this  day  in  favour  of  the  nephew,  it  was  then  far  other\\ife.  For  Arthur 
might  be  urged  the  right  of  reprefentation.  He  reprefented  his  father 
Geoffry  ;  in  all  the  fiefs  in  France,  the  law  was  in  favour  of  the  ne- 
phew ;  nay,  Glanville,  who  wrote  in  Henry  the  Second's  reign  in 
England,  as  to  Englilh  eftates,  declared  to  the  fame  purpofe  ;  and  certain  it 
is  that  the  general  current  of  opinions  at  that  time  tended  flint  way  f. 

T  t  Ox 

f  Hale,  hift.  com.  law,  chap.  7. 


330  L  E  C  T  U  R  E  S     ON     THE  LECT.  36. 

ON  the  other  fide,  it  might  be  faid  in  favour  of  John's  pretenfions,  that 
the  examples  of  fiefs  could  be  no  precedents  in  cafe  of  crowns.  Thefe  re- 
quired more  flrictly,  a  perfon  capable  of  acYmg  in  perfon.  That  this  was 
the  very  cafe  ;  John  was  a  man,  Arthur  a  child  ;  that,  allowing  Glanville 
to  have  laid  down  the  law  right,  he  had  made  a  diftinclion,  which  comes  up 
to  this  cafe  ;  for  he  fays,  the  uncle  fhall  fucceed,  if  the  father  of  the  nephew 
had  in  his  life-time  been  forisfa miliated ;  that  Geoffry  had  been  out  of  the 
patria  poteftas  of  Henry,  by  being  fovereign  prince  of  Britany  ;  that  in  the 
Saxon  times  two  cafes,  for  the  exclufi on  of  infants,  had  happened,  much 
flronger  than  the  prefent ;  that  when  Edmund  the  firft  died  in  poffeffion  of 
the  throne,  his  brother  Edred  fucceeded,  not  his  fons ;  and  though  Ed- 
mund Ironfide  had  been  king,  yet,  after  the  Danifh  ufurpation  ceafed,  his 
brother  the  Confcffbr  was  preferred  to  his  fon,  though  of  full  age,  whereas 
Geoffry  never  had  the  crown  ;  that,  fmce  the  conqueft,  three  feveral  times 
had  the  lineal  fucceffion  been  fet  afide  by  parliament.  So  that  there  were 
not  wanting  plaufible  arguments  of  each  fide  of  the  queftion,  and  it  is  with 
injuftice  that  modern  hiftorians,confidering  only  the  maxims  of  their  own 
times,  when  a  regular  fucceffion  has  been  eflabliflied,  charge  John  with  a, 
manifeft  ufurpation  of  the  crown  of  England.  But  that  he  was  a  manifeft 
ufurper  of  the  territories  in  France  muft  be  allowed  j  for,  by  the  laws  of 
that  country,  they  mould  have  gone  to  the  nephew. 

A  QUESTION  of  this  weight  and  difficulty  mould  regularly  have  been 
decided  in  parliament,  which  always  hitherto  had  determined  in  fuch  mat- 
ters ;  but  Pvichard  had  never  thought  of  the  bufinefs  till  he  left  England, 
and  then  it  was  too  late  to  proceed  in  that  method.  He  was  obliged,  there- 
fore, to  content  himfelf  with  declaring,  by  his  own  authority,  his  nephew 
Arthur  his  fuccefibr ;  and,  to  prevent  John's  traverfing  his  defign,  he  ex- 
a&ed  an  oath  from  him  not  to  fet  foot  in  England  for  three  years ;  but  from 
this  obligation  he  afterwards  releafed  him,  at  the  requeft  of  their  mother. 
John  ufed  all  his  art  to  carefs  the  nobility,  and  to  fupplant  his  nephew  Ar- 
thur, as  he  fondly  hoped  Richard  would  never  return.  And  indeed,  the 
conduct  of  William  Longchamp,  biihop  of  Ely,  Richard's  viceroy,  contri- 
buted greatly  to  his  fuccefs  ;  for,  as  to  oppreffions  and  outrages,  he  was  not 
exceeded  even  by  William  Rufus  himfelf.  This  gave  John  a  pretext  for 

intermeddling 


3^1.  OF    ENGLAND.  331 

intermeddling  to  prcfervc  the  liberties  of  the  people.      ! 

late,  that  if  he  did  not  refrain  from  his  cxorbitancies,  he  would  vifit  him 
at  the  head  of  an  army;  which  for  Inch  an  occafion  he  might  cafily  r. 

A  r.  UN*  KRAI,  affembly,  or  parliament,  '  cd,  to  compofc   the  dif- 

ferences ;   in  which  it  was  fettled,  that  Longchainp  Humid  continue  in  the 
adminiltration,  and  hold  the  caftles  during  the  king's  life,  but  th 
died  without  iffue,  they  fhould  be  delivered  to  John  as  fuccefibr  ;  am! 
agreement  was  ratified  by  the  oaths  of  all  the  nobility  and  prelates,  1"  : 

kirthur  had  the  dectfioo  of  the  king  in  his  favour,  John  by  this  means 
attained  that  of  the  people.  Senfible  how  much  this  flcp  mult  offend 
king,  and  of  the  dangerous  predicaments  he  inufl  (land  in  fliould  he  return, 
he  (pared  no  pains  to  afcend  the  throne  even  in  the  life  of  his  brother, 
which  he  was  cordially  fupported  by  the  king  of  France.  But  all  his  efforts 
were  bailled  by  the  v'gilance  of  the  regency,  who  had  been  appointed  on 
Longchamp's  depofition,  and  was  more  neceffary  from  his  continuing  in  his 
former  extravagancies.  John  even  gave  out  that  Richard  was  dead,  and 
feized  feveral  caftles,  which  he  put  in  a  (late  of  defence.  He  was,  how- 
ever, foon  reduced,  upon  the  king's  return,  and  all  his  treafonable  prac- 
tices pardoned  at  the  interceffion  of  his  mother.  When  Richard  came  to 
die,  he  changed  his  mind  as  to  Arthur,  and  by  will  appointed  John  his 
fucceffor  :  an  alteration,  confidering  his  former  attachments  to  his  nephew, 
who  had  never  offended  him,  that  could  proceed  from  nothing  but  his 
unwillingnefs  to  leave  his  dominions  involved  in  a  civil  war  through  the 
intrigues  and  intereft  of  his  brother. 

THE  laws  of  Oleron  concerning  naval  affairs  are  the  only  fpecimen  of 
this  prince's  legiflative  capacity.  They  were  made  at  the  ifle  of  Oleron, 
off  the  coaft  of  France,  where  his  fleet  rendezvoufed  in  their  paffage  to  the 
Holy  Land,  and  were  defigned  for  the  keeping  of  order,  and  the  determi- 
nation of  controverfies  abroad.  With  fuch  wifdom  were  thcfe  laws  framed, 
that  they  have  been  adopted  by  other  nations  as  well  as  England.  And,  I 
think,  to  this  time  we  may,  with  probability  enough,  refer  the  origin  of  the 
admirality  jurifdidVion.  In  his  reign,  for  the  firft  and  the  laft  time,  was 
raifed  the  feudal  aid,  for  the  redemption  of  the  king  from  captivity. 

T  t  2  NOT- 


332  LECTURES     ON     THE  LECT.  3.6.. 

NOTWITHSTANDING  all  the  faults  of  this  prince,  his  firmnefs  againft  the 
papal  power  is  to  be  commended.  Two  of  his  bifhops  having  a  controverfy, 
there  was  an  appeal  to  the  pope,  who  fent  a  legate  to  determine  it ;  but 
Richard  prevailed  on  the  parties  to  refer  it  to  his  arbitration,  and  would 
not  fuffer  the  legate  to  enter  England,  till  he  had  made  an  end  of  the  bufi- 
nefs  ;  and  when  he  did  come,  the  king  fuffered  him  not  to  excercife  his 
legatine  power  in  any  but  one  fmgle  point,  and  that  by  his  exprefs  permif- 
fion.  Notwithstanding  all  the  fteps  taken  in  favour  of  John,  in  order  to 
pave  the  way  for  his  fucceffion,  the  notion  of  Arthur's  hereditary  right  had 
taken  fuch  ftrong  root  in  the  minds  of  many,  that,  had  he  been  in  England, 
and  of  a  fufficient  age  to  manage  his  affairs,  he  might  have  had  a  fair  pro- 
fpect  of  fuccefs-f. 

THE  lower  people  indeed  were  eafily  prevailed  on  by  his  agents  to  taker* 
the  oath  of  fealty  to  John,  while  the  prelates,  and  nobility  in  general,  re- 
tired to  their  caftles,  as  deliberating  what  fteps  they  mould  take  ;  but,  at, 
length,  by  magnificent  grants,  and  more  magnificent  promifes,  they  were 
prevailed  on  to  come  in,  and  he  mounted  the  throne  without  oppofition* 
But  in  the  French  provinces  his  ufurpation  met  with  more  refiflimce.  Ar- 
thur had  many  partizans,  and  his  caufe  was  efpoufed  by  Philip  of  Francej 
the  lord  paramount,  not  with  an  intention  to  ftrip  John  of  all ;  for  that, 
with  Britany,  would  have  made  Arthur  too  powerful ;  but  with  a  defign  to 
divide  the  dominions  more  equally  between  them,  and  perhaps  to  clip  off 
a  part  for  himfelf,  as  he  afterwards  did  Normandy,  as  being  forfeited  by  a 
fentence  of  the  peers  of  France,  by  John's  murder  of  Arthur.  By  the  way, 
I  fhall  obferve,  that  this  fentence  was  notorioufly  unjuft.  By  the  laws  of 
France,  Arthur  was  the  undouted  heir  of  Normandy,  and  on  his  death  his 
fitter  ought  to  have  fucceeded,  nor  ought  the  duchy  to  have  been  forfeited 
by  the  crime  of  a  wrongful  poffeffor.  Or,  taking  it  the  other  way,  that 
Philip  had  a  right  to  choofe  his  vaflal,  and,  confequently,  that  the  invefti- 
ture  he  gave  to  John  was  valid  ;  then  was  he  rightful  duke  of  Normandy, 
and  Arthur,  as  duke  of  Britany,  was  his  vaflal,  and  had  juftly  forfeited  his 
life,  by  rebelling  and  endeavouring  to  depofe  his  liege  lord.  That  John 
was  guilty  of  this  crime  there  was  no  room  to  doubt ;  and  truly,  from  the 
whole  of  his  conduct  from  that  time,  he  feeined  to  have  been  infatuated  by 
the  terrors  of  his  confcience  j  for  it  was  but  little  lefs  than  frenzy.  He 

knew 
f  Mare  Clauf,  386..  Kennel's  hiftorians..   Hume.     Carte. 


I.TTT.  36.         LAWS     OF     ENGLAND.  333 

km-w  lie  was,  by  t!  i  act,  become  the  dctcftutinn  of  his  fubjec1 

cial,  ami  that  hi.,  hither,  in  the  midft  of  his  power  am!  had 

!i  humbled  by  tl.     ,          ,   and  yet,  at  the  f.unc  time,  he  *  .1  on  the 

lib;  it'u-^  nt  the  (oriner,  ami  d  them  in  the  moft  outrageous  manner, 

and  while   his   fubjech   were  thus  difaUccted,  he  openly  fct  the  latter  at 

defianee. 

To  this  reign,  however,  fo  inglorious,  and  fo  miicrable  to  the  F.nglim  of 
that  age,  do  their  fuccefibrs  owe  the  afcertaining  their  liberties.  1 
if  we  except  William  Uufus,  the  firfl  of  the  kings  that  openly  protelied  to 
rule  by  arbitrary  power.  I  do  not  mean  to  deny  that  every  one  of  his  pre- 
decefibrs  from  the  Conqueft  had,  in  fome  particular  or  other  encroached 
on  their  people,  but  then  there  were  either  peculiar  circumftances  of  di- 
ftrefs,  that  almofl  enforced  and  excufed  them,  or  one  or  two  wrong  fi 
were  atoned  for  by  the  greatnefs  and  goodnefs  of  their  general  conduct.  It 
is  very  obfervable,  that,  as  England  is  almofl:  the  only  country  in  Europe 
that  hath  preferved  its  liberties,  fo  was  it  the  firfl:  wherein  the  kings  fet  up 
for  abfolute  power  :  and  the  prefervation  of  them,  I  apprehend,  was  in  a 
great  meafure  owing  thereto,  that  this  claim  was  ftarted  there  when  the  feu- 
dal principles,  and  the  fpirit  of  independency,  except  only  in  feudal  mat- 
ters, were  in  their  vigour,  and  confequently  raifed  fuch  a  fpirit  of  jealoufy 
and  watchfulnefs,  as,  though  it  hath  fometimes  ilept,  could  never  be  extin- 
guifhed  ;  whereas,  in  other  countries,  the  progrefs  of  arbitrary  power  hatii 
been  more  gradual.  It  hath  made  its  advances  when  the  feudal  fyftem  was 
in  its  wane,  and  when  the  minds  of  men,  by  the  introduction  of  die  civil 
.and  canon  law,  were  prepared  for  it. . 

WHAT  encouraged  the  kings  of  England  to  attempt  this  fooner  than 
other  monarchs,  we  may  judge,  was  the  greater  difparity  in  riches  between 
them  and  their  vaflfals,  than  was  in  other  countries  ;  fo  that  nothing  much 
lefs  than  a  general  confederacy  could  curb  them  ;  whereas,  abroad,  two  or 
three  potent  vaflals  were  an  overmatch  for  the  fovereign.  Befides,  having 
fubjedts  on  each  fide  of  the  water,  not  knit  together  in  any  common  intereft, 
they  might  hope  to  ufe  the  one  to  quell  the  other.  But  whatever  was  the 
caufe,  fo  was  the  fact  ;  and  John,  even  before  the  death  of  Arthur,  having 
remove.d  the  dread  of  a  competitor,  (hewed,  by  a  inofl:  extraordinary  ftep, 

what 


334  L  E  C  T  U  R  E  S     ON     THE  LECT.  36. 

what  kind  of  fovereign  he  was  like  to  prove.  By  the  law  of  thefe  days  a 
vaflal  was  to  pay  his  relief  to  his  fuperior  out  of  his  own  demefnes,  and  the 
profits  of  his  feigncry,  and  had  no  right  to  demand  aid  for  that  purpofe 
from  his  fub-vaffals  ;  John  having  detached  Philip  from  his  nephew's  in- 
tereft,  by  ceding  a  part  of  his  French  territories,  was  to  pay  twenty  thou- 
fand  marks  for  the  relief  of  the  reft  ;  and,  to  receive  this  fum,  he,  by  his  own 
authority,  laid  three  (hillings  on  every  hide  of  land  in  England ;  thus 
making  England  to  pay  that  relief  for  his  foreign  dominions,  which  his 
foreign  fubjects  themfelves  were  not  obliged  to  pay. 

THE  next  inftance  was  in  favour  of  the  Pope,  under  pretence  of  the  holy 
war.  Innocent  had  laid  a  tax  upon  the  clergy,  of  the  fortieth  of  their  reve- 
nues, and  fent  a  collector  to  England  to  gather  it,  whom  John,  of  his  own  au- 
thority, empowered  to  collect  it  from  the  laity.  Thefe  two  impofitioris  were 
fubmitted  to,  in  as  much  as  there  was  no  plan  of  oppofition  then  formed  ; 
but  they  afterwards  occafioned  great  difcontent  among  a  people,  who  thought 
no  taxes  could  be  raifed  without  their  own  confent.  Accordingly,  the  next 
time  he  fummoned  his  military  tenants  to  attend  him  into  France,  they  af- 
fembled  at  Leicefter,  and  agreed  to  refufe  attendance,  unlefs  he  would  reftore 
their  privileges  ;  for  though,  by  the  law  of  the  Conqueror,  they  were  ob- 
liged to  go,  they  looked  upon  this  obligation  as  fufpended  by  his  behaviour. 
Howevever,  they  had  not  yet  fufiiciently  fmarted,  to  unite  them  thoroughly, 
and  this  affair  was  made  up  by  his  accepting  a  fcutage. 

To  enumerate  all  the  exorbitances  he  committed  would  be  tedious,  and 
unnecefiary,  as  the  remedies  prefcribed  in  Magna  Charta  fufficiently  point 
out  the  grievances.  Let  it  fuffice  to  fay,  in  general,  that  he  opprefied  his 
military  tenants  by  exacting  extravagant  reliefs,  by  difparagement  of  heirs, 
by  wafting  his  wards  lands,  by  levying  exorbitant  fcutages,  by  fummoning 
them  to  war,  and  delaying  them  fo  long  at  the  place  of  tranfportation  that 
they  were  obliged  to  return  home,  having  fpent  all  their  money  ;  or,  when 
they  were  tranfported,  keeping  them  inactive  till  they  were  obliged  to  re- 
turn for  the  fame  reafon,  and  then,  without  trial,  feizing  their  lands  as  for- 
feited. The  fame  opprefiions  he  extended  to  others,  feized  lands  and  tene- 
ments 


Lr.rr.  36.         LAWS     OF     ENGLAND.          335 

mrnts  at  will  and  pleafure,   imprifoncd  whom  he  plcafcJ,  laid  heavy  talli- 
on  the-  focage  tenants  and  boroughs,  \\ithout  any  rc^i  -c  privi- 

leges they  had  obtained  from  his  pi<  .nd  liaving,  by  thcfc  means 

excited  the  delegation  of  his  fubjeds,  and  ioiicited  his  reputation  by  lofing 
Normandy  by  his  indolence,  lie  took  it  into!.'  that  he  was  a  match 

for  the  Pope,  and  engaged  in  a  conteft  with  his  llolincfs,  which  fubje&ed 
him  and  his  kingdom  to  the  Roman  See,  tho*  eventually  it  contributed  not 
a  little  to  the  recovery  of  his  fubje&s  liberties,  f  The  manner  in  which  I 
happened  mail  be  the  fubject  of  the  enfuing  lecture. 

f  Brady,  Daniel,  Tyrrel,  and  the  general  hiftories  of  England. 


LECTURE 


336  L  E  C  T  U  R  E  S     ON     THE  LECT.  37. 


LECTURE         XXXVII. 

John's  difpute  with  the  court  of  Rome — Cardinal  Langton  promoted  to  be  Arch- 
bfoop  of  Canterbury — Pope  Innocent  lays  the  kingdom  under  an  interdict-— 
John  is  excommunicated — His  fubmiffwn  to  Innocent — The  difcontents  of  the 
Barons — Magna  Charta  and  Charta  de  Forefta — An  examination  of  the  quef- 
tion,  Whether  the  rights  and  liberties,  contained  in  thefe  charters,  are  to  be 
confidered  as  the  antlent  rights  and  liberties  of  the  nation,  or  as  the  fruits  of 
rebellion,  and  revocable  by  the  fuccejfirs  of  Juhn  f 

IF  Alexander  the  Third  {hewed  the  grandeur  of  the  pontifical  power  in 
humbling  Henry  the  Second,  the  difplaying  it  in  its  full  glory  was  referved 
for  Innocent  the  Third  who  now  reigned,  and  who  being  promoted  to  the 
papacy  at  the  age  of  thirty  feven,  had  vigour  of  body  and  mind  to  carry 
every  point  he  engaged  in,  and  was  refolved  to  pufh  his  power  to  the  utmoft. 
Having  tafted  the  fweets  of  Englim  gold,  in  the  collection  made  under  pre- 
tence of  the  holy  war,  he  had  a  great  defire  to  renew  the  experiment ;  and 
that  he  might  be  able  to  proceed  with  the  lefs  oppofition,  was  refolved  to 
have  an  archbifhop  of  Canterbury  at  his  devotion  ;  and  the  See  falling  va- 
cant, a  controverted  election  furniihed  him  with  an  opportunity. 

THE  election  belonged  to  the  convent  of  Chrift-church,  though  it  was 
contefled  with  them  by  the  fuffragan  bifhops.  The  very  night  the  arch- 
bifliop  died,  a  faction  of  the  younger  monks  refolving  to  have  an  archbifhop 
of  their  own  chufing,  aflembled,  and  chofe  Reginald  fub -prior  of  the 
convent,  and  fent  him  off  before  morning  for  Rome,  to  obtain  the  Pope's 
confirmation,  of  which  they  did  not  entertain  any  doubt,  as  it  would  be 
plucking  a  feather  from  the  king's  prerogative,  that  of  a  previous  licence 
for  proceeding  to  election  ;  and  Innocent  had  already  fhewn  that  he  looked 
•on  himfelf  as  monarch  of  monarchs.  But  as  they  could  not  expect  the 
Pope  would  take  this  flride  in  fupport  of  a  clandefline  election,  they  all 
took  an  oath  of  fecrecy,  to  be  obferved  till  the  confirmation  was  obtained. 

BUT 


r.  37-  LAWS    OF    ENGLAND.  337 

Bur  lu  vuui;\  !   the  fchemc,  and  made  him  divulge  it, 

vhich  fo  provok,\l  his  electors,  that  they  joined  with  the  others,  petitioned 
the  kin;.;  tor  a  I  uul  elected,  at  hi,  recommendation,  the  bifhop  of 

Nonvich,  and  twelve  of  the  monks  were  difpatched  to  folicit  his  confirma- 
tion. The  lullragan  bifliops  oppofed  him,  as  being  elected  without  t: 
concurrence,  which  point  was  determined  for  the  convent  by  Innocent ; 
notwithstanding  which,  without  alligning  any  invalidity  in  the  fccond  elec- 
tion, he  annulled  it  as  well  as  the  firlt,  and  recommended  to  the  twelve  de- 
puties to  elect  Stephen  Langton,  an  Englifhman  and  a  cardinal.  At 
firfl  they  demurred,  as  having  no  authority  ;  but  the  thn  at  of  inflant 
communication  compelled  them  to  obey.  And  then,  as  if  they  had  done 
nothing  out  of  the  way,  he  recommended  Langton  to  John  in  a  very  civil 
letter.  The  king,  enraged  to  the  higheft,  turned  the  monks  of  Canterbury-, 
\\']\o  were  entirely  innocent,  out  of  their  convent  and  the  kingdom,  and 
threatened  the  Pope  that  he  would  fuller  no  appeals.  Innocent,  who  had 
before  this  humbled  Philip  of  Franqe  by  an  interdict,  and  knew  the  man 
he  had  to  deal  with,  proceeded  very  calmly,  to  order  three  bifliops  to 
exhort  the  king  to  receive  Langton,  and  recall  the  monks  ;  and,  in  cafe 
of  non-compliance,  to  lay  the  kingdom  under  an  interdict  f . 

THE  name  of  interdict  frightened  John,  who  knew  how  much  he  was 
hated.  He  offered  to  comply,  if  he  might  be  allowed  to  make  a,  protefta- 
tion  of  a  faving  his  dignity  and  prerogative  ;  but  no  falvo  would  be  allowed; 
the  interdict  was  publifhed,  Divine  fervice  ceafed  through  the  kingdom, 
except  in  a  very  few  places,  where  fome  clergymen  were  found  honell  and 
bold  enough  to  preach  againft  the  Pope's  proceedings.  John,  in  revenge, 
fleeced  the  clergy  in  a  mod  horrible  manner  ;  and,  what  is  yet  more  fur- 
prifmg,  did  not  defifl  from  opprelfing  the  laity.  However,  as  to  the  points 
in  conteft,  he  was  not  obflinate  ;  he  offered  more  than  once  to  fubmit ; 
but  Innocent  had  more  extenfive  views.  There  was  no  re  million  without 
lie  refunded  to  the  churchmen  every  farthing  he  had  extorted  from  them, 
a  thing  abfolutely  out  of  his  power.  Then  followed,  after  fucccllivc  delavs 
calculated  to  (hew  that  the  holy  father  would  give  his  undutiful  fon  t 
to  repent,  a  fentence  of  excommunication  by  name,  a  bull  abfolving  his 
fubjects  from  their  oath  of  allegiance,  and  commanding  all  perfons  to 

U  u  avoid 

Kennel's  hiftorians.     Hume.     Carte. 


338         LAWS     OF     ENGLAND,         LECT.  37. 

avoid  his  company  ;  and,  laftly,  a  fentence  of  depofition,  and  a  grant  of  all 
his  dominions  to  the  king  of  France,  who  had  been  invited  alfo  by  John's- 
fubjects,  whofe  patience  had  been  by  this  time  quite  exhaufted  with  his 
tyranny,  and  the  fufpenfion  of  the  performance  of  Di\ine  fervice. 

PHILIP  was  very  ready  to  execute  this  fentence,  and  aflembled  a  nume- 
rous army.  Randulf  was  fent,  as  the  Pope's  legate,  to  fee  the  fentence  of 
depofition  put  in  execution  ;  but,  in  reality,  with  fecret  inftructions  of  & 
very  different  nature  ;  for  it  was  by  no  means  Innocent's  intention  to  give 
England  to  PVance,  but  to  fubjecl:  it  to  himfelf.  John,  terrified  with  the 
exaggerated  account  of  Philip's  armament,  and  the  difaffection  of  his  fub- 
J€cl:s,  fubmitted  in  every  point  before  in  conteft,  and  in  one  new  one,  that 
no  clergyman  mould  be  outlawed.  But  this  was  not  fufficient  to  avert 
the  danger  from  Philip,  and  his  own  difaftected  barons.  To  make 
him  facred  and  invulnerable,  he  became  a  vafial  to  the  Pope,  refigned  his 
kingdom  to  him  by  a  formal  charter,  and  received  it  again  as  a  favour,, 
under  homage,  and  a  yearly  rent  of  a  thoufand  marks.. 

IN  confideration  of  this  fubmiffion,  John  was  favoured  in  the  point  of 
indemnifying  the  clergy,  which  was  what  had  fo  long  retarded  the  accom- 
modation. Innocent  took  the  eftimating  this  on  himfelf,  and  having  got. 
all  he  wanted  for  the  See  of  Rome,  forgot  his  former  clients  the  clergy, 
and  was  very  moderate  with  his  new  vaflal.  However,  the  interdict  was 
not  removed,  nor  the  king  abfolved  from  his  excommunication,  till  Lang- 
ton  was  put  into  pofleffion  ;  which  when  done,  John  was  obliged  to  renew, 
his  homage,  to  fwear  to  defend  church  and  clergy  againft  all  their  adver- 
faries,  and  to  make  reftitutkm  ;  and  then  he  was  abfolved.  But  there 
was  one  curious  addition  to  this  oath,  which  Langton,  who  was  an  Englifh- 
man,  and  a  lover  of  liberty,  certainly  inferted  of  his  own  head,  that  he 
fhould  reftore  the  laws  of  the  Confefibr  :  For  Innocent  would  never,  we 
may  be  well  afiured,  have  allowed  fuch  privileges  to  his  vafials.  John, 
however,  out  of  fear  of  Philip,  being  in  an  hurry  to  be  abfolved,  made  no 
objection  ;  and  indeed  he  had  no  reafon  to  doubt  the  Pope  would  abfolve 
him  from  his  oath.  But  Langton  and  the  nobles  were  refolved  to  keep 
him  ftriaiy  to  it.  Soon  after,  while  he  was  in  France,  his  regents  fum- 
moned  a  parliament,  wherein  the  king's  peace  was  proclaimed,  and  the 

laws 


LFCT.  37.          LAWS     OF     ENGLAND.         339 

of   Henry  the  1  PC  ivviu-..!.     Thefc  were  thofc  he  had  furorn  to 

reftore,  being  in  truth  the  Confeflbr's,  with  a  few  additions  and  alteration! 
by  the  Conqueror  and  Ilrnry. 

JOHN,  however,  went  on  in  his  old  courfcs,  being  now  furc  of  the  Pope's 
protection,  and  indeed  it  \c.\:.  hard  to  charge  him  with  a  breach  of  Henry's 
charter,  of  which,  though  copies  had  been  lodged  in  every  cathedral  and 
great  abbey  in  England,  yet  fo  carefully  were  they  dcftroyed,  that  not  one 
appeared.  At  length  archbifhop  Langton  furnifhcd  them  with  one,  which 
had  efcaped  the  general  calamity  ;  and  this  the  aflbciatcd  barons,  who  had 
determined  to  reftram  John,  and  recover  their  liberties,  made  the  bafis  of 
their  demands,  and  fworc  to  demand,  and  if  refufed,  to  vindicate  with 
the  fword,  at  a  meeting  they  had  at  Edmundlbury  under  pretence  of 
devotion.  Accordingly,  they  waited  on  the  king  in  a  military  drefs,  and 
made  their  demands  ;  but  he,  feeing  they  were  only  a  party  among  the 
nobles,  and  riot  imagining  the  reft  were  of  the  fame  fentiments,  not  only 
refufed,  but  with  haughtinefs  infilled  they  mould  renounce  them,  by  gi- 
ving under  their  hands  and  feals,  that  they  would  never  make  the  like  de- 
mand on  him  or  his  fucceffors.  But  hrs  eyes  were  opened  when  he  found 
fcarce  two  or  three  of  thofe  that  were  with  him  would  comply.  He  had 
recourfe  to  procraftination,  and  promifed  them  fatisfaction  at  the  latter  end 
of  Eafter.  In  the  interim  he  exa&ed  a  new  oath  of  allegiance  from  his 
fubje&s  ;  a  feeble  precaution  ;  for  none  refufed  it,  or  thought  themfelves 
precluded  by  that  aft  of  duty  from  vindicating  their  rights  in  what  man- 
ner they  beft  might.  To  fecure  the  clergy,  he  gave  them  a  charter,  con- 
firming their  immunities,  and  the  entire  freedom  of  their  elections  ;  and 
yet  a  great  multitude  continued  zealous  for  the  liberty  of  the  fubjecT:  againft 
him  ;  but  his  main  dependance  was  on  religion.  To  render  his  perfon 
facred,  he  aflumed  the  crofs,  as  if  he  intended  for  the  holy  war,  and  im- 
plored the  protection  of  his  Holinefs,  to  whom  the  difcontented  barons  alfo 
reprcfented  the  juftice  of  their  pretenfions.  Innocent,  in  appearance,  re- 
ceived them  favourably,  advifed  them  to  reprefent  their  hardfhips  in  a  de- 
cent and  humble  manner  to  the  king,  in  which  cafe  he  would  interpofe  in 
favour  of  all  their  juft  and  reafonable  petitions  ;  but  annulled  their  aflbcia- 
tion,  and  forbad  them  to  enter  into  any  new  one  for  the  future. 

U  u  2  THE 


340  LECTURES     ON     THE  LECT.  37, 

THE  barons,  who  fent  to  the  Pope  rather  out  of  refpeft  than  any  expec- 
tation of  favour,  proceeded  in  the  method  they  began.  They  and  their 
vafTals  aflembled  in  array,  in  fuch  numbers  as  to  compofe  a  formidable 
army ;  and  when  they  had  particularly  fpecified  their  demands,  and  were 
refufed,  they  proceeded  to  attack  him,  by  reducing  his  caftles.  Againft 
himfelf,  as  being  under  the  crofs,  they  made  no'attempt.  On  this  occafion, 
archbifhop  Langton,who  was  at  the  bottom  of  the  whole  confederacy,  out- 
witted John  ;  who,  as  they  had  difobeyed  the  Pope,  was  impatient  to  have 
them  excommunicated,  and  this  the  Pope  promifed  to  do  as  foon  as  the 
foreign  troops,  which  the  king  had  brought  over  for  his  defence,  had  quit- 
ted the  kingdom  ;  but  when  they  were  gone,  he  broke  his  engagement,  fo 
that  John,  left  defencelefs,  was  obliged  to  appoint  four  nobles  to  treat  with 
the  revolted  lords  ;  and.  upon  conference,  fome  points  they  had  infifted  on 
before  being  given  up,  the  liberties  of  the  nation  were  fettled,  as  contained 
in  the  two  charters  of  Magna  Cbat'fa  ,  and  Charta  de  Fore/la  f . 

THE  manner  of  obtaining  thefe  charters,  and  the  right  the  people  have 
to  the  liberties  contained  in  them,  have  been  the  fubjeft  of  much  controverfy 
between  the  favourers  of  arbitrary  power  and  the  afTertors  of  freedom  ;  the 
one,  contending  that  they  were  the  fruits  of  rebellion,  extorted  by  force 
and  fraud,  from  a  prince  unable  to  refift,  and  therefore  revocable  by  him 
or  his  fuccefibrs  ;  and  the  others,  that  they  were  the  antient  privileges  of  the 
nation,  which  John  had,  contrary  to  his  coronation-oath,  invaded,  and  which 
they  therefore  had  a  right  to  reclaim  by  arms.  That  they  were  obtained 
by  force,  is  undoubted,  and  that  John  and  many  of  his  fuccefibrs  looked 
upon  them,  therefore,  as  of  no  validity,  is  as  clear,  even  from  the  argument 
lord  Coke  brings  for  their  great  weight,  their  being  confirmed  above  twenty 
times  by  aft  of  parliament.  To  what  purpofe  fo  many  confirmations,  if  the 
kings  had  not  thought  them  invalid,  and  had  not,  on  occafions,  broke 
through  them  ;  and  were  it  as  clear  that  they  were  not  the  antient  rights  of 
the  people,  it  mull  be  owned  they  were  extorted  by  rebellion.  But  that 
they  were  no  other  than  confirmations,  appears  very  plainly  from  the  fhort 
detail  I  have  heretofore  given  of  the  conflitution  and  fpirit  of  the  mo- 
narchy of  the  Saxons,  and  all  other  northern  nations. 

r 

f  Blackrtone's  difcourfe  concerning  the  hift.  of  the  charters.    Gurdon's  hift.  of  Parlia- 
ment.   Hale,  hift.  com.  law,  ch,  7. 

As 


Lrcr.  37.  LAW!    OF    ENGLAND.  341 

to  any  m  w  :  in  thru:  .e  there 

arc   only  precautions  fur  tl.  -.irin^  thole  libc-rtir.s  tlic  people  v. 

before  entitled  to,  aiul  it  is  a  maxim  of  all  lavs,  that  he  who  has  a  right  to 
a  tiling,  hath  a  right  to  the  means  \\iihout  which  he  cannot  enjoy  that 
thing. 

fiu-mls,  tluTc-forc,  to  abfolutc  power,  fenfible  that  the  original  con- 
ftitution  is  againit  them,  ehoofe  to  look  no  farther  back  than  the  Conq> 
Tli en,  fay  they,  the  Saxon  government  and  laws  were  cxtinguifhcd,  the 
F.nglifh  by  the  Conqucfl  loft  their  rights,  the  foreigners  had  no  title  to 
Englifh  liberties,  and  the  Conqueror  and  his  fon  William  acled  as  defpotic 
monarchs.  Therefore,  their  fucceflbrs  had  the  fame  right,  and  it  was  trea- 
fon  to  think  of  controlling  them.  But  how  little  foundation  there  is  for 
this  doctrine,  may  appear  from  what  I  obferved  on  the  reign  of  the  Con- 
queror. He  claimed  to  be  king  on  the  fame  footing  as  his  predeceflbrs  ;  he 
confirmed  the  Saxon  laws,  and  confequently  both  Saxons  and  foreigners, 
when  fettled  in  the  kingdom,  had  a  right  to  them.  If  he  oppreflfed  the 
Englifh,  that  opprefiion  did  not  extend  to  all ;  and  to  thofe  it  did,  it  was 
not  exdrcifed  as  upon  conquered  flaves,  but  as  upon  revolted  rebels.  But, 
for  argument  fake,  to  allow  that  the  Englifh  became  flaves,  and  that  the 
foreign  lords  had  no  right  to  the  Saxon  privileges,  both  which  are  falfe, 
how  came  the  king  to  be  defpotic  fovereign  over  them  ?  They  were  partly 
his  own  fubje&s,  freemen,  according  to  the  feudal  principles,  who  ferved 
him  as  volunteers,  for  he  had  no  right  to  command  their  fervice  in  England  ; 
or  volunteers  from  other  princes  dominions,  and  to  fay  that  freemen  and 
their  pofterity  became  flaves,  becaufe  they  are  fb  kind  as  to  conquer  a  king- 
dom for  their  leader,  is  a  mofl  extraordinary  paradox. 

BUT  William  the  Conqueror,  in  fome  inftances,  and  his  fon  in  all,  afted 
as  defpotic  princes  ;  therefore  they  had  a  right  fo  to  do.  I  anfwer,  the  tri- 
umvirs profcribed  hundreds  of  the  beft  Romans,  therefore  they  had  a  right. 
It  is  as  unfafe  to  argue  from  matter  of  fact  to  matter  of  right,  as  from  mat- 
ter of  right  to  matter  of  fad.  It  is  as  abfurd  to  fay,  Tarquin  ruled  abfo- 
lutely,  therefore  the  Romans  were  rightfully  his  flaves,  as  to  fay  the  Romans 
had  a  right  to  liberty  under  him,  therefore  they  were  free. 

BUT  it  may  be  faid,  the  people  quietly  fubmittcd  and  new  rights  in; 
acquired,  and  new  laws  made,  by  the  tacit  confent  of  prince  and  people,  as 

well 


342  L  E  C  T  U  R  E  S     ON     THE  LECT.  37. 

well  as  by  exprefs  legiflation.  I  allow  it  where  the  confent  is  undoubtedly 
voluntary,  and  hath  continued  uninterrupted  for  a  long  fpace  of  time  ;  and 
how  voluntary  this  fubmiffion  was,  we  may  judge  from  the  terms  they 
made  with  Henry  the  Firft,  before  they  fuftered  him  to  mount  the  throne. 
Befides,  there  are  fome  points  of  liberty,  effential  to  human  nature,  that 
cannot,  either  by  exprefs  or  tacit  laws,  be  given  up,  fuch  as  the  natural 
right  that  an  innocent  man  has  to  his  life,  his  perfonal  liberty,  and  the 
guidance  of  his  actions,  provided  they  are  lawful,  when  'the  public  good 
doth  not  neceffarily  require  a  reftraint.  In  fhort,  never  was  there  a  worfe 
caufe,  or  worfe  defended  ;  and  this  maxim  was  what  influenced  the  conduit 
1  of  the  Stuarts,  and  precipitated  that  unhappy  houfe  to  their  ruin. 

JOHN,  who  entertained  the  fame  fentiments,  had  no  refource  to  recover 
his  loft  rights,  as  he  thought  them,  but  the  affiilance  of  the  Pope,  and  an 
army  of  foreigners.  The  firft  very  cordially  efpoufed  his  intcrefl.  He  was 
provoked  that  he,  who  had  humbled  kings,  mould  be  controuled  by  petty 
lords,  and  that  by  thefe  privileges  he  mould  be  prevented  from  reaping 
that  golden  harveft  he  expected  from  England.  He  annulled  the  charters 
commanded  them  to  recede  from  them,  and,  on  their  difobedience,  excom- 
municated them,  firft  in  general,  and  then,  by  name. 

ABOUT  the  fame  time  arrived  an  army  of  veteran  foreigners,  that  came 
to  aflift  John,  who  had,  in  imitation  of  the  Conqueror,  diftributed  to  them 
the  eftates  of  the  barons.  With  thefe  and  a  few  Englifh  lords,  he  took 
the  field,  and  ravaged  the  country  with  a  more  than  Turkifh  barbarity.  The 
confederate  barons  faw  the  liberties  they  had  contended  for  annulled,  their 
lives  and  eftates  in  the  moft  imminent  danger,  and,  in  a  fit  of  defpair,  invi- 
ted Lewis,  prince  of  France,  to  the  crown,  who,  bringing  over  an  army, 
faved  them  from  immediate  deftruclion.  However,  this  ftrengthened  John. 
It  was  not  for  any  to  ftand  neuter.  Few  chofe  to  embark  in  an  excommu- 
nicated party,  and  many,  who  faw  flavery  unavoidable,  and  nothing  left 
but  the  choice  of  a  mafter,  preferred  their  countryman  for  a  king  to  a  fo- 
reigner. The  lofs  of  liberty  now  feeined  certain,  which  ever  prevailed  ; 
when  the  haughtinefs  of  Lewis,  and  his  want  of  confidence  in  the  Englifh 
noblemen  who  joined  him,  concurring  with  the  death  of  John,  and  the 
innocence  of  his  infant  fon,  providentially  preferved  the  freedom  of 
England. 

LECTURE 


LECT.  38.         LAWS    OF    ENGLAND.        343 


LECTURE     XXXVIII. 

minority  of  Henry  III. —  Ecclefiqflical  grievances —  The  difpcnftng power — 
The  canon  law — Confirmation  of  Magna  Charta — A  commentary  on  Magna 
Charta,  In  fo  far  as  it  relates  to  wfyat  now  is  law. 

JOHN  left  his  minor  fon  under  the  guardianfhip  of  the  earl  of  Pem- 
broke, a  nobleman  of  great  abilities,  and  the  ftricteft  integrity.  The 
firft  ftep  he  took  for  the  benefit  of  his  pupil,  was  the  confirmation  of  the 
charters,  and  the  next  was  a  negotiation  with  the  revolted  lords,  who  be- 
gan  to  be  difcontcnted  with  the  prince  of  France  ;  which  fucceeded  fo  hap- 
pily, that  in  a  fhort  time  he  brought  them  all  over  with  very  little  bloodfhed, 
and  Lewis  was  obliged  to  quit  the  kingdom.  Peace  being  re-eftabliflied, 
the  regent  applied  himfelf  with  all  diligence  to  reftore  the  peace  of  the  king- 
dom, and  juftice  to  her  regular  courfe  :  And  had  he  lived  long  enough  to 
form  the  conduct  and  principles  of  the  young  king,  England  never  had 
a  fairer  profpect  of  happinefs  ;  but  he  foon  dying,  and  his  fucceflbrs  being 
men  of  a  different  (lamp,  fuch  principles  were  fovvn  in  the  monarch's  mind, 
as,  in  the  event,  produced  bitter  fruit  both  to  him  and  the  whole  king- 
dom. 

THIS  reign  was  as  calamitous  as  the  preceeding  one,  and  rather  more 
fhameful ;  and  what  added  to  the  misfortune,  it  lafled  three  times  as  long. 
As  foon  as  Henry  came  of  age,  he  revoked  Magna  Charta,  as  being  an  act 
of  his  nonage,  foon  after  he  confirmed  it,  then  broke  it,  then  confirmed  it 
by  oath,  with  a  folemn  excommunication  of  all  that  mould  infringe  it ; 
then  he  obtained  from  the  Pope  a  difpenfation  of  his  oath,  and  broke  it 
again.  And  thus  he  fluctuated  for  fifty  years,  according  as  his  hopes  or 
fears  prevailed.  However,  in  general,  the  charter  was  pretty  well  obfer- 
ved.  The  great  point  it  was  infringed  in,  was  the  levying  money  without 
the  parliament,  and  in  this  he  frequently  prevailed,  being  aflifted  by  his 
Lord  Paramount,  the  Pope.  They  joined  in  levying  taxes,  and  then  divi- 
dc.d  the  fpoil  between  them.  Indeed,  their  Holineflcs  had,  upon  each  occa- 

fion 


344  LECTURES     ON     THE  LECT.  38. 

fion,  by  much  the  greater  fhare  ;  for  they  not  .only  fleeced  the  clergy  fepa- 
rately,  but  drew  vaft  fums  from  the  king,  on  pretence  of  a  foolifh  project 
of  making  his  younger  fon  king  of  Sicily  j  all  which  they  fquandered  on 
their  private  occafions. 

IN  this  reign  they  introduced  the  practice  of  proviforfhip,  againft  which 
fo  many  acts  of  parliament  have  been  made.  lit  went  on  this  maxim,  That 
the  Pope  was  univerfal  paflor  of  the  church,  and  confequently  fole  judge 
who  mould  be  his  deputy  in  any  particular  place.  The  inference  necefla- 
rily  followed,  that  the  rights  of  patronage  to  livings,  whether  in  a  Bifhop  or 
lay  patron,  were,  ftrictly  fpeaking,  no  rights  at  all,  being  fuch  only  where 
the  Pope  did  not  chufe  to  interfere.  But  this  privilege  would  have  been  of 
little  fignificance,  if  they  could  act  only  in  the  vacancy  of  a  living  ;  for  it 
would  generally  have  been  filled  up  before  he  could  have  notice.  Bulls  of 
proviforfhips  were,  therefore,  invented.-  Thefe  were  charters  of  the  Pope, 
directed  to  the  bifliop,  acquainting  him,  that  he  had  provided  for  fuch  a 
perfon,  by  appointing  him  to  fuch  a  benefice,  when  it  mould  become  va- 
cant, or  the  firft  benefice  of  fuch  a  value  that  mould  fall  ;  ftrictly  forbidding 
the  Bifhop  to  admit  any  other  perfon,  upon  any  account  whatfoever. 
Sometimes  the  perfon  provided  for  was  not  named  ;  but  notice  was  to  be  gi- 
ven when  the  vacancy  happened.  In  procefs  of  time  a  number  of  livings 
were  refolved  in  the  fame  bull  ;  nay,  one  went  fo  far  as  to  forbid  any  living 
that  mould  fall  to  be  filled,  till  the  Pope  had  provided  for  three  hundred  per- 
fons.  Such  were  the  delightful  confequences  of  John's  homage,  and  of 
England  becoming  St.  Peter's  patrimony  ;  fo  that  the  monkifh  hiftorians 
tell  us  that  Rome  Iheared  all  Europe  ;  but  in  England  they  flayed  off  the 
fkin.  An  account  was  taken  at  one  time  of  the  value  of  Englifli  benefices  pof- 
feffed  by  Italian  priefts>  non-refidents,  and  it  was  found  to  exceed  the  ordi- 
nary revenue  of  the  crown.  All  thefe  bulls  concluded  wtih  a  non  ob/iante^ 
that  is,  notwithflanding  any  laws,  cuftom,  privilege,  right  or  patronage,  or 
any  thing  elfe  whatever  ;  and  this  hopeful  precedent  Henry  the  Third  adop- 
ted in  his  charters,  thereby,  if  he  could  not  repeal,  at  leaft  making  ineffec- 
tuTil  the  laws  of  the  land  j  and  thus  began  the  king's  claiming  a 
over  the  laws  |. 


f  Sir  Robert  Atkins  on  the  difpenfmg  power.     Bibliotheca  Politica.    The  general  bif- 
tories  of  England. 


i  .  3&  L  A  W  S    OF    E  N  G  L  A  X  i  345 

IN   this  meridian   of  the  canon  law  1 

into  HP.  .nul  it  loon  began  to  ufurp  confiderably  on  the  civil  courts  ; 

inlbmuch  that,   had  not   the   common  law  judges  exerted  th> 
check   the   <  .ticiil  court   by  prohibitions,  \\hich 

this  reign,  it  would  have  gained   the  fame  alcendant  that  it  has  in   the 
Pope's  territory. 

Tin:  latter  end  of  this  reign  was  filled  with  a  fucceflion  of  troubles,  oc 
fjoned  by  the  repeated  breaches  of  the  charters,  and  fomented  by  the  ambi- 
tion of  fome  of  the  great  nobles  ;  however,  in  the  end,  the  king  prevailed, 
by  the  afliftance  of  his  fon  ;  but  it  was  found  expedient,  even  in  the  midfl 
of  vidory,  in  order  to  prevent  future  convulfions,  to  eflabliih  the  liberties 
of  England,  by  confirming  Mugna  Charta  ;  and  they  have  ever  fince  flood 
their  ground.  I  (hall  therefore  proceed  briefly  to  fpeak  to  Magna  Charta^ 
and  in  fo  dping  (liall  omit  alrnoft  all  that  relates  to  the  feudal  tenures,  which 
makes  the  greateft  part  of  it,  and  confine  myfelf  to  that  which  now  isC 
law. 

THE  firft  chapter  of  Magna  Charla,  as  confirmed  in  the  pth  year  of  Hen- 
ry, which  is  that  now  in  force,  and  differs  from  that  of  John  in  fome  omif- 
fions,  concerned  the  freedom  of  the  church,  in  which  was  principally  in- 
cluded the  freedom  of  elections  to  Bifhopricks,  which,  fince  the  reforma- 
tion, has  been  taken  away.  I  mall,  therefore,  proceed  to  thofe  that  con- 
cern the  laity  ;  the  five  next  are  feudal,  and  the  feventh  is  concerning  -wi- 
dows. It  firfl  gives  them  free  liberty  to  marry  or  not ;  whereas,  before, 
fuch  as  were  called  the  king's  widows,  that  is,  thofe  who  held  lands,  or  whofe 
hufbands  held  lands  of  the  king,  had  been  obliged  to  pay  for  licenfe  to 
marry  if  they  had  a  mind,  or  were  diftrained  to  marry,  if  they  had  no 
mind,  which  it  is  unneceflary  to  fay  was  a  grievous  oppreflion.  It  reflrains 
the  taking  any  thing  from  the  widow  for  her  dower,  or  for  her  own  land, 
which  her  hufband  had  held  in  her  right.  It  provides  for  her  quarantine^ 
that  is,  gives  her  leave  to  (lay  forty  days  in  her  hufband's  houfe,  unlefs  (he 
had  dower  afligned  to  her  before,  and  within  that  time  orders  the 
third  part  of  her  hufband's  land  to  be  afligned  her  "by  the  heir,  as  her 
dower  j  and  that,  in  the  interim,  fhe  mould  have  reafonable  efloversf. 

X  x  THE 

f  Ruffhead,    vol.  I. . 


346  LECTURES     ON     THE  LECT.  38. 

THE  next  is  in  favour  of  the  king's  debtors,  and  their  fecurities.  By  the 
old  law,  the  king's  profit  was  fo  highly  favoured,  that  he  could,  to  fatisfy 
his  debt,  feize  the  chattels  or  extend,  that  is,  take  the  profits  of  the  real 
eftate  of  his  debtor,  at  his  pleafure  ;  or  he  might,  in  the  firft  inflance,  come 
on  the  fecurity,  without  attacking  the  principal  debtor.  For  remedy  hereof, 
it  forbids  the  king,  or  any  of  his  officers,  feizing  the  land,  while  the  debt- 
or's perfonal  chattels  are  fufficient.  It  forbids,  alfo,  the  diftraining  the  fecu- 
rities, while  the  debtor's  chattels  were  fufficient.  If  they  were  not,  the  king 
had  the  option  either  to  feize  the  land  of  the  debtor,  or  diftrain  the  fecuri- 
ties ;  and  if  the  latter  was  done,  it  provides,  that  the  fecurities  mould  have 
the  land,  until  they  are  reimburfed.  Immediately  after  this,  in  king  John's 
charter,  followed  the  law  prohibiting  the  king  from  levying  any  talliage  or 
tax  on  the  focage  tenants,  or  on  boroughs,  without  affent  of  parliament, 
which  is  here  omitted  ;  and  this  king  and  his  fon  Edward  afiert£ d  and  exer- 
cifed  the  right ;  but  the  lad  was  at  length  obliged  to  give  it  up,  in  the  fa- 
mous flatute  de  iallagio  non  concedendo^  and  not  till  then  were  thefe  ranks  of 
the  people  entirely  emancipated.  This  omimon  for  a  time  rendered  illufo- 
ry  the  next,  the  ninth  chapter,  which  provides  that  the  city  of  London  and 
all  the  other  cities,  boroughs,  and  ports,  mould  enjoy  all  their  ancient  liber- 
ties and  cufloms  ;  for  thefe  would  be  of  little  ufe  whilft  arbitrary  taxation 
remained.  The  tenth  is  in  affirmance  of  the  common  law,  that  no  perfon 
mould  be  diftrained  for  more  rent  or  fervices  than  he  owed  out  of  the  land. 
If  he  was,  he  had  a  double  remedy,  either  by  a  fuit  in  replevin,  or  by  the 
writ  called  ne  injufte  vexes.  The  next  is  for  fixing  the  court  of  Common 
Pleas,  of  which  I  fpoke  already.  The  twelfth  was  for  the  eafe  of  the  peo- 
ple, by  taking  affizes  in  the  country.  But  thofe  actions  are  out  of  ufe 
now.  The  thirteenth  is  concerning  affizes  too.  I  haften  therefore  to  the 
fourteenth  that  treats  of  amerc'iaments* 

AMERCIAMENTS  come  from  the  word  mercy,  and  are  fo  called  from  the 
\vords  in  the  record,  fit  in  miferecurdia  pro  falfo  clamor e  fuo^  and  were  pro- 
perly, though  the  word  hath  been  fince  extended,  what  a  plantiff  or  defen- 
dant that  had  troubled  the  king's  courts  mould  pay  by  way  of  punimment 
for  maintaining  an  unjuft  fuit ;  whereasyfo^,  to  which  they  bear  a  refem- 
blance,  and  with  which  they  have  fometimes  been  confounded,  were  for  of- 
fences, 


LECT.  38.         LAWS     OF     E  N  G  L  A  N  D. 

fences,  and  aflVfled  by  the  com t  ;  as  were  atncrciamcnts  alfo  ft  r.-.rtimci, 
and  very  grievoully,  though  entirely  againlt  law.  Thi ,  a.i  a  .lores  the 
common  law;  orders  the  amcrciaments  to  be  proportioned  to  the  nature  of 
the  cale,  and  alfo,  in  regard  to  the  man's  circumltancrs,  fo  tl.  ;ould 

not  be  ruined  tliereby  ;   that  no  freeholder  fhould   be  aine: 
a  manner  as  to  deltroy  his  freehold  ;  no  merchant,   his  merchandize  ;  no 
villain,  his  carts,  whereby  he  would  be  unable  to  do  his  lord's  fcrviccs  ;  no 
ccclefiaflic  according  to  the  value  of"  his  benefice,  but  only  according  t< 
lay  property.     And   that  this  might  be  conflantly  obferved,  the  amercia- 
ments  were  to  be  afiertcd,  or  fettled  by  the  man's  peers.     It  may  be  afkcd, 
what  remedy  had  the  man,  who  was  too  feverely  amerced  by  his   peers  ? 
On  this  aft  was  grounded  the  writ  of  moderata  miferecordia,  whereby  this 
amerciament  may  be  tried  by  another  jury,  and  moderated. 

THE  fifteenth  provides,  that  none  mould  be  diftrained  to  repair  bridges, 
or  landing  places,  but  who  are  bound  by  their  tenures  or  cuftom.  The 
fixteenth  for  the  free  navigation  in  rivers,  and  unloading  of  goods.  The 
feventeenth  takes  away  the  power  of  trying  pleas  of  the  crown  from  (her: 
conftables  and  coroners,  and  other  inferior  officers  ;  a  very  necelTary  law, 
upon  account  of  the  great  value  of  the  life  of  an  individual,  efpecially  as 
none  but  the  king's  courts  could  give  the  benefit  of  clergy.  However, 
fheriffs  and  coroners  can  take  indiftments  ;  for  that  is  not  trying,  but  bring- 
ing the  matter  into  a  method  of  trial.  The  eighteenth  concerns  debts  due 
to  the  king  where  his  debtor  is  dead.  By  this  law,  the  firfl  duty  of  execu- 
tors is  to  pay  the  debts  of  the  deceafed  ;  thofe  of  the  higheft  nature,  not 
as  to  -value,  but  in  quality,  in  the  firft  place,  then  the  lower  ones  :  and  if  the 
effe&s  were  not  fufficient,  it  was  in  their  option  to  pay  one  creditor  of  the 
fame  nature  without  another,  fo  that  they  obferved  the  rule  of  not  paying 
the  lower  debtor  before  the  higher.  But  the  king,  be  his  debts  of  what 
nature  they  would,  by  his  prerogative,  had  the  preference  of  all  creditors, 
and  by  colour  hereof  his  officers  often  feized  and  embezzled  the  effecls  of 
the  deceafed,  to  the  prejudice  of  other  creditors  and  legatees.  This  or- 
ders the  fherifF  to  attach  and  value  the  goods  by  a  jury  of  twelve  men,  to 
the  value  of  the  debt,  which  were  to  remain  unremoved,  till  the  king  was 
paid  j  and  then  the  whole,  or,  if  not,  the  overplus,  to  be  reftored  to  the 

X  x  2  executors. 


$43  L  E  C  T  U  Pv  E  S     ON     THE  LECT.  j&l' 

executors.     The  two  next  are  feudal.     The  twenty-firft  relates  to  pur- 
veyorfhip,  which  has  been  aboliihed. 

THE  twenty -fecond  relates  to  the  king's  right  to  the  lands  of  felons.  Oa 
•which  there  is  fomething  curious  to  be  obferved.  By  attainder  of  felony, 
the  goods  and  chattels  of  the  felon  are  forfeited  to  the  king,  and  the  land 
to  the  lord  from  whom  they  were  holden  ;  but  in  cafe  of  treafon,  both 
were  forfeited  to  the  king.  Such  was  the  feudal  law  ;  but  by  the  law  of 
England,  in  order  to  deter  perfons  from  committing  felony,  and  to  make 
the  lords  more  careful  what  kind  of  tenants  they  chofe,  the  king  had  an 
interefl  in  the  land  of  felons  ;  not  for  his  own  benefit  indeed,  but  for  the 
terrifying  by  example.  He  had  a  right  to  commit  wafte  in  them,  to  cut 
down  the  trees,  to  demolifh  the  houfes  and  improvements,  and  to  plow 
up  the  meadows ;  and  for  this  purpofe  he  was  allowed,  by  common  law, 
a  year  and  a  day.  To  prevent  this  deftruction,  the  lords,  to  whom  the 
land  efcheated  frequently,  by  a  fine,  bought  oft"  the  king's  right  of  wafte  ; 
but  if  they  did  not,  his  officers  would  take  the  profits  for  the  time,  and 
then  hold  it  longer,  till  they  had  committed  the  wafte.  This  acl  prohibits 
the  retaining  the  land  longer  than  a  year  and  a  day,  and  directs  that  then 
it  fhould  be  reftored  to  the  lord.  This  new  law  was  certainly  intended 
for  the  public  good,  to  prevent  this  malicious  wafting,  which  the  king's 
officers  would  be  fure  to  commit,  if  they  were  not  properly,  as  they 
thought,  confidered  ;  and  to  give  the  king,  in  lieu  of  the  wafte  that  he 
had  a  right  to  make,  a  lawful  profit,  which  his  officers  had  unlawfully,  to 
their  own  ufe,  we  may  be  fure,  extorted  before.  It  gives  the  cuftody  of 
the  lands  for  that  time,  and  confequently  the  profits.  But  obferve  the 
confequence. 

THE  king  now  had  the  cuftody,  as  alfo  the  profits,  by  a  legal  title  for  a 
year  and  a  day,  unlefs  the  lord  pleafed  to  compound  with  him,  and  fo  intitle 
himfelf  to  the  immediate  poffemon.  But  this  did  not  fatisfy  the  greedi* 
nefs  of  the  officers  of  the  crown.  It  was  eafy  to  gather  the  profits  until 
very  near  the  time  the  king's  right  expired,  and  then,  for  a  week  or  fort- 
night before  it  was  out,  they  had  it  in  their  power  to  commit  wafte  enough, 
if  the  lord,  who  was  intitled  by  the  efcheat,  did  not  buy  them  out.  This 

was 


LI.CT.  38.         L  A  W  S     OF  LAN  I). 

certainly  againd  the  fpirit  oi'tlic  ia\v  whc  reof  WC  arc- 

give  tli-  real   profit,    inr  a   right   di 

to  the   community  i  ;1  ;   hut  the  \\alle  \v:«>  not  ] 

and  this  was  pretext  enough  lor  thefc  oflit\  <ad  con 

doing  it  within  the  year.     It  was  accordingly  claimed  and  paid,   and   ac- 
counted lor  as  due  to  the  king,  on  that  old  in.  !iat  general  la*^ 
not  change  the  prerogative  royal,   but  by  was  the 

Vine  and  practice  in  the   courts  of  the  third  Henry,  and  convenient 
enough  for  him,  who  was  always  indigent.     But  what  was  the  opinion  of 

lawyers  of  that  age,  we  may  learn  from  Brafton,  Britton,  and  the  au- 
thor of  Fieta  ;  the  firft  of  which  wrote  in  the  latter  end  of  this  re 
and  the  other  two  in  the  reign  following.  Bradon  fays  cxprckly,  that 
"  the  king's  power  over  the  lands  of  felons  convicted,  was  bccaufe  he 
"  had  a  right  to  throw  down  the  buildings,  unroot  the  gardens,  and  plow  up 
"  the  meadows  ;  but  becaufe  fuch  things  turned  to  the  great  damage  of  the 
"  lords,  it  was  provided,  for  common  utility,  that  fuch  houfes,  gardens, 
"  and  meadows  fhould  remain,  and  that  the  king  for  this  mould  have  the 
"  advantage  of  the  whole  land  for  a  year  and  a  day,  and  fo  every  thing 
"  Ihould  return  entire  to  the  lord.  Then  he  goes  on,  but  now  both  is 
"  demanded,  namely,  a  fine  for  the  term,  likeuife  for  the  wafte,  nor 
*'  do  I  fee  the  reafon  why  *."  Thus  far  Brafton.  Britton  fays,  fpeaking 
in  the  perfon  of  the  king,  of  felons,  for  in  that  manner  his  book  is  written, 
*'  Their  moveables  are  ours ;  their  heirs  are  difmherited  ;  and  we  will 
"  have  their  tenements,  of  whatsoever  holden,  for  a  year  and  a  day,  fo 
*c  that  they  (hall  remain  in  our  hands  that  year  and  day,  and  that  we  fhall 
"  not  caufe  to  perifh  the  tenements,  nor  hurt  the  woods,  nor  plow  the 
"  meadows,  as  hath  been  accuftomed  in  time  pafl  f ."  Fleta  talks  in  the 
fame  drain,  in  commenting  on  this  law  of  Magna^Charta,  which  he  ex- 
prrfsly  quotes,  that,  as  a  mark  of  brand  on  felony,  it  had  been  antiently 
provided  that  the  houfes  (hould  be  thrown  down,  and  fo  goes  on  to  enu- 
merate the  other  fpecies  of  wafte,  which  I  need  not  here  repeat,  as  I  have 
mentioned  them  already ;  and  then  he  fays  "  becaufe  by  fuch  doings 
<c  great  damage  would  accrue  to  the  lords  of  the  fiefs  ;  for  common  uti- 
*'  lity  it  was  provided,  that  fuch  hardfhips  and  feverities  fliould  ceafe : 

"  and 
*  Lib.  3.    p.  129.  137.  f  Cap.  5, 


350  LECTURES     ON     THE  LECT.  38, 

"  and  that  the  king,  in  confideration  thereof,  fhould,  for  a  year  and  a 
"  day,  enjoy  the  commodity  of  the  whole  land  ;  after  which  term  it 
"  mould  return  to  the  lords  of  the  propriety  entirely,  without  wafte  or 
"  deftruction  f."  The  Mirror,  another  antient  law-book,  joins  with  thefe  j 
and  this  book,  which  was  written  in  the  fame  reign  of  Edward  the  firft,  or, 
at  the  lateft,  in  that  of  his  fon,  fays,  "  the  point  of  felons  lands  being  held 
"  for  the  year  is  difufed  ;  for  by  that,  the  king  ought  not  to  have  but  the 
"  wafte  by  right,  or  the  year,  in  name,  (that  is,  in  nature)  of  a  fine  ;  to  fave 
"  the  fief  from  e/lrepement  (that  is,  wafte),  the  minifters  of  the  king  take 
"  both  the  one  and  the  other  J."  A  melancholy  confideration,  that,  under 
his  name,  and  in  pretence  of  his  profit,  though  not  really  to  his  advantage, 
fuch  a  law  mould,  for  their  own  profit,  be  eluded  by  his  minifters ;  as  by 
thefe  teftirnonies,  one  cotemporary,  and  the  reft  immediately  fubfequent, 
we  are  informed  it  was  contrary  to  the  intention  of  this  chapter  of  Magna 
Charta  •,  but  the  practice  prevailed  for  a  long  time  after.  I  mall  conclude 
this  ledure  with  the  words  of  Lord  Coke  on  this  chapter  of  Magna  Charta. 
<l  Out  of  thefe  old  books  you  may  obferve,  that  when  any  thing  is  given 
"  to  the  king,  in  lieu  or  fatisfaftion  of  an  antient  right  of  his  crown,  when 
"  once  he  is  in  pofieffion  of  the  new  recompence,  and  the  fame  in  charge, 
"  his  officers  and  minifters  will  many  times  demand  the  old  alfo,  which 
"  may  turn  to  great  prejudice,  if  it  be  not  duly  and  difcreetly  prevented  ||'V 

•|  Lib.  i.    cap.  28.  |.Cap.  5«  II  2  In^«  P-  37- 


LECTURE 


-       r.  39.         1.  A  \V  S     OF     E  N  G  L  A  N  1).  351 


LECTURE         XXXIX. 

Continuation  of  the  commentary  on  Magna  Chart  a. 

THE  twenty-third  chapter  of  Magna  Chart  a  prohibits  Jljh  wclrci  in  ' 
rivers,  which  are  great  annoyances  to  navigation,  and  the  free  liberty 
of  fifhing;  and  which  have  flood  their  ground  in  fpite  of  all  the  laws  that  can 
be  made  againft  them.  The  next  relates  to  the  inferior  courts  of  Lords  of 
Manors,  and  to  writs  of  Pracipe  in  capite ;  which  having  gone  into  difufc, 
with  the  feudal  tenures,  I  (hall  pafs  them  over.  The  twenty-fifth  orders, 
that  meafures  and  weights  mould  be  one  and  the  fame  through  the  whole 
kingdom  ;  witnefs  the  difference  between  Troy  weight  and  Averdupois ; 
the  wine  gallon  and  ale  gallon.  Eftablifhed  cufloms,  which  of  neceflity 
muft  come  into  daily  practice,  are  hard  to  be  rooted  out  by  pofitive  laws ; 
and  indeed  it  is  more  prudent  to  let  them  continue.  For  the  confufion  that 
fuch  an  alteration  of  things  in  daily  or  hourly  practice  would  occafion, 
would  be  more  detrimental,  for  a  confiderable  time  at  leaft,  than  the  uni- 
formity intended  to  be  introduced  would  be  attended  with  advantage  f . 

THE  twenty-fixth  is  concerning  the  writ  De  odio  et  atia,  that  is,  of  ha- 
tred and  malice ;  which,  though  not  abolimed,  hath  long  fmce  been  anti- 
quated ;  but,  as  it  was  an  antient  provifion  for  reftoring  the  liberty  of  the 
fubject,  I  mail  take  fome  notice  of  it.  It  was  a  maxim  of  the  common 
Jaw,  that  no  man  imprifoned  for  any  offence,  which,  if  proved,  would 
touch  his  life  or  members,  could  be  bailed  out  but  by  the  fupreme  criminal 
court,  the  King's  Bench  ;  which,  upon  danger  of  death,  or  fuch  other  fpc- 
cial  caufes  as  appeared  fufficient  to  them,  had  that  power.  Hence,  in 
thofe  unfettled  and  oppreflive  times,  it  became  a  practice  for  malicious  per- 
fons  to  have  a  man  clapped  up  in  prifon  for  a  capital  offence,  without 
cither  indictment  or  appeal  brought  againft  him  ;  and  there  he  was  of  ne- 
ceflity to  lie,  until  the  juflice  in  eyre  came  into  the  county  to  deliver  the 

gaols 

f  2  Inft.  3&.  41.     Barrington  on  the  Statutes,  p.  15.  16 


352  LECTURES     ON     THE  LECT.  39.' 

gaols,  which  regularly  was  but  once  in  feven  years  ;  to  avoid  this  hardfhip, 
the  writ  we  are  now  fpeaking  of  was  invented,  and  iffued  out  from  time  to 
time,  as  occafion  required,  out  of  the  Chancery.  Befides,  by  this  chapter 
of  Magna  Charta,  it  is  ordered  to  be  granted  without  any  purchafe  or  re- 
ward ;  whereas,  before,  all  the  original  writs  were  purchafed  at  the  price 
the  chancellor  pleafed  to  fet  on  them,  which  was  a  grievous  oppreffion.  It 
ordered  the  fheriffto  make  inquifition  in  the  county  court,  by  the  oath  of 
a  jury,  whether  the  imprifonment  proceeded  from  malice  or  not.  If  they 
found  it  did,  upon  its  return,  the  perfon  accufed  had  a  right  to  a  writ,  order- 
ing the  fheriff  to  bail  him  by  twelve  manucaptors,  or  fecurities.  But,  this 
was  only  where  there  was  no  indictment,  or  appeal ;  for  thefe  were  accufa- 
tions  of  record,  and  therefore  the  finding  the  charge  malicious  in  the  county 
court,  which  was  no  court  of  record,  could  not  avail  againfl  them.  This 
writ  has  gone  into  difufe,  fmce  juftices  of  gaol-delivery  have  continued  to 
go  into  every  county  twice  a  year  j  a  proceeding  which  has  evidently  fuper- 
feded  the  neceflity  of  it  f. 

THE  twenty-feventh  chapter  reftrains  the  unjuft  practice  in  the  king,  of 
arrogating  to  himfelf  the  wardfliip  of  his  focage  or  burgage  tenants,  where 
they  held  lands  by  military  fervice  from  others,  his  fubjects.  The  whole 
military  fyftem  hath  fmce  been  diffolved  by  act  of  parliament,  and  there- 
fore it  will  be  unneceflary  for  me  to  explain  or  enlarge  upon  the  nature  of 
the  mifchief  complained  of  in  this  chapter.  The  next  forbids  any  judge  or 
officer  of  the  king  to  oblige  a  man  to  ivagc  bis,  law,  that  is,  fwear  to  his, 
innocence,  except  in  a  caufe  where  a  fuit  was  inftituted  againft  him  \  but 
wager  of  law,  being  now  totally  fallen  into  difufe,  I  haften  to  tlie  twenty- 
ninth  chapter,  the  corner-ftone  of  the  Englifh  liberties,  made  in  affirmance 
of  the  old  common  law  {. 

BY  the  bare  reading  of  this  chapter,,  we  may  learn  the  extravagances  of 
John's  reign,  which  it  was  intended  to  redrefs.  It  confifls  of  two  parts. 
The  firft  runs  thus  :  Nullus  liber  he?no  capiatur,  vel  imprifonetur,  ant  dijfeife* 
tur,  de  libero  tenemento  fuo,  vet  libertatibus  <uel  liberis  confuctudlnibm  fuis,  ant 

utlagetur 

f  Mirror,   cap.  5.  fedt..  2.      G.lanvi',  lib.    14.   cap.  3.      Bra<5lon,  lib.  3.    p.  121. 
Fleta,  lib.  i.  cap,  23. 
$  2  Inft.  p.  43.  45,, 


T.  39.  LAWS    OF    ENGLAND.  353 

utlagctur  ant  exulctur,  ant  altquo  modo  dejiruatur,  nee  fupcr  cum  ibimus,  nee 
r  cum  mittimus,  nifi  per  legale  judicium  parium  fuorum,  ve/  per  Icgcm  terra. 
Fird,  then,  to  fee  to  whom  this  act  <  :  the  words  liber  homo,  in  anti- 

cnt  afts  of  parliament,  is,  in  general,  rightly  condrucd  freeholders,  and  ! 
means  here,  in  the  fccond  branch  which  prohibits  dilTeifms  ;  for  none  but 
a  freeholder  is  capable  of  being  dilleiled,  no  others  being  faid  to  have  a 
ieifin  of  land.  But  it  mull  not,  throughout  the  whole  of  this  ad,  be  con- 
fined to  this  limited  lenle.  The  firft  branch  fpcaks  of  the  reitraint  of  li- 
berty ;  the  third,  of  unjufl  outlawries  ;  the  fourth,  of  unjuft  baniflimcnt ; 
the  fifth,  of  any  kind  of  deftrudion,  or  wrongs  ;  which,  offered  to  an  in- 
nocent per  (on,  are  againft  the  natural  rights  of  mankind,  and  therefore, 
the  remedy  inufl  extend  to  all :  and  fo  it  hath  always  been  undcrftood  ; 
for  women  are  included  in  it,  and  fo  are  villeins,  for  they  arc  free  men 
againft  all  but  their  lord. 

LET  us  next  confider  the  end  of  this  part,  which  is  an  exception  running 
through  the  whole  ;  nifiper  legale  judicium  parlumfuorum,  wiper  legcm  terra. 
That  is,  by  the  common  law,  which  doth  not,  in  all  thefe  cafes,  require  a 
trial  by  peers  ;  a  thing  indeed  impoffible,  where  the  party  doth  not  appear  ; 
in  which  cafe  there  is  a  neceility  of  proceeding  to  judgment  another  way. 
Coke  obferves,  the  words  legale  judicium  pariumfuorum  include  the  trial  both 
of  lords  and  commons,  the  finding  of  the  latter  being  upon  oath,  and  called 
Vcrcdiclum,  and  in  which  all  mult  be  unanimous  ;  wherein  it  differs  from 
the  trial  of  lords,  for  they  find  not  upon  oath,  but  upon  honour  ;  and  it  is 
not  necefTary  that  all  fhould  agree,  the  majority,  provided  that  majority 
confifts  of  twelve,  being  fufficient  f . 

UPON  this  a  queftion  may  be  put,  who  are  the  peers  of  a  woman  of  qua- 
lity ?  If  ihe  be  noble  by  blood,  that  is,  a  peerefs,  (for  I  fpeak  not  of  the 
nobility  by  courtefy,  which  is  merely  nominal)  there  is  no  doubt  but  the 
barons  and  other  noblemen  ;  if  fhe  be  ennobled  by  marrying  a  peer,  fhe 
becomes  in  law  one  perfon  with  her  hulband,  and  therefore  muft  have  the 
fame  peers  with  him,  which  right  continues  after  her  hufband's  death,  un- 
lefs  (he  marries  a  commoner  ;  for  then,  being  one  perfon  with  him,  fhe  be- 
comes a  commoner  ;  whereas  a  peerefs,  in  her  own  right,  marrying  a 

Y  y  commoner, 

f    2.  Inftitut.  p.  48.  49. 


354  LECTURES     ON     THE  LECT.  39. 

commoner,  forfeits  not  her  dignity,  though  me  becomes  one  perfon  with 
him.  She  was  not  ennobled  by  her  own  act,  and  therefore,  by  no  act  of 
her  own  can  deftroy  that  nobility  (he  has  by  the  gift  of  God,  or  the  king, 
by  means  of  her  blood,  which  me  cannot  alter. 

Two  exceptions,  however,  there  are  to  the  rule  of  every  Englimman's 
being  tried  for  offences  by  his  peers  ;  but  neither  of  them  againft  the  pur- 
port of  this  ilatute.  Firft,  the  itatute  fpeaks  in  the  disjunctive,  per  legale 
judic'mm  part  urn  fuorum,  aut  per  legem  terra  :  now  the  lex  terra,  the  common 
law,  in  the  univerfal  practice  of  it,  allows  thefe  exceptions  ;  nor  will  they 
be  found  to  be  againfl  the  letter  j  for  the  words  are  necfuper  eu?n  ibimus, 
netfuper  cum  mitt  emus,  fpeaking  in  the  perfon  of  the  king  ;  which  mews 
that  it  is  meant  of  the  accufation  or  other  fuit  of  the  king.  Now  thefe  ex- 
ceptions are  not  at  his  fuit.  One  of  thefe  exceptions  I  mentioned  in  a  for- 
mer lecture.  It  is  where  a  commoner  is  impeached  by  the  commons  in 
parliament ;  and  the  reafon  I  then  gave,  is,  I  think,  plain  and  fatisfactory, 
that  every  jury  that  could  be  fummoned  is  fuppofed  a  party  to  the  charge 
brought  by  their  reprefentatives,  and  therefore,  as  the  man  is  accufed  as  an 
enemy  to  the  king  by  the  body  of  the  people,  that  there  may  not  be  a 
failure  of  juftice,  the  lords,  as  the  only  indifferent  perfons,  muft  be  the 
judges. 

THE  other  exception  may  feem  more  extraordinary.  It  is  that  a  lord  of 
parliament  appealed,  that  is,  accufed  of  a  crime,  by  a  private  perfon,  not 
for  the  fatisfaction  of  public  juftice,  but  of  his  own  private  wrong,  mall  not 
be  tried  by  his  peers,  but  by  a  jury  of  commoners.  When  this  law  was 
introduced,  the  lords  were  few  in  number,  immenfely  rich  and  powerful, 
linked  together  frequently  by  alliances,  almoft  always  by  factions.  In  this 
towering  fituation,  they  looked  down  on  the  lower  ranks  with  difdain  ;  fre- 
quently injured  and  oppreffed  them  ;  and  little  profpect  would  the  poor 
commoner  have  of  redrefs,  were  the  criminal  to  be  tried  by  thofe  of  his 
own  rank,  feveral  of  them  his  relations,  moft  of  them  liable  to  be  fufpected 
of  the  fame  offences  ;  efpecially,  as  the  law  will  not  allow  a  lord  to  be 
challenged.  Neither  did  the  lord  run  any  extraordinary  rifk  of  being  un- 
juftly  condemned.  The  lower  rank  of  people  in  all  countries  and  ages 

have. 


T.  39.          L  A  W  S     OF     E  N  G  L  A  N  D.         355 

have  bo-ii  uli\l   to  look  wit  k   on   perions  poflefled  of  great  wealth 

and  power,  in  veiled  with  titles  of  honour,  and  dignified  by  blood  of  an  an- 
ticnt  de1.  Hut,   in  thole  military  a^cs,    iu«:h  VCBCntmi  v.  as  highly 

created  by  that  valour  and  pcrfonal  bravery,  which  diitinguifhcd  every  one 
of  the  nobility,  and  than  which  no  virtue  is  more  apt  to  captivate,  in  gene- 
ral, the  hearts  of  mankind.  Ik-fides,  that  the  lord  had  his  advantage  ot 
challenging  lufpedcd  jurors  ;  whereas,  if  tried  by  his  peers,  he  had  not  fiich 
privilege  of  exception,  though  they  were  ever  fo  notorioufly  his  cncir. 
J'.very  commoner  almofl,  how  great  foevcr,  was,  in  thofe  days,  under  the 
influence  of  Ibine  one  or  other  of  the  lords,  and  there  could  be  little 
doubt  but  that  influence  would  be  exerted,  and  fuccefefully  too,  unlefs  the 
guilt  was  too  clear  and  evident. 

IT  may  here  be  afked,  When  a  civil  fuit  is  depending  between  a  lord 
and  a  commoner,  how  the  iffue  is  to  be  tried,  whether  by  the  lords  alone, 
or  by  commoners  only,  or  by  a  jury  compofed  of  an  equal  number  of  each  ; 
in  the  fame  manner,  as,  when  an  alien  is  tried,  it  is  by  a  jury  half  nat: 
half  aliens  ?  The  anfwer  is,  it  mall  be  tried  by  a  jury  of  commoners  ;  only, 
on  account  of  the  dignity  of  the  lord,  there  muft  be  a  knight  on  the  jury. 
I  need  not  enlarge  on  the  reafon,  as  it  is  the  fame  with  the  former,  the 
lelTer  danger  of  partiality. 

I  NOW  come  to  the  other  part  of  the  disjunctive,  aut  per  legem  terra  \ 
and  it  will  be  neceflary  to  point  out  in  general  (for  to  defcend  into  particu- 
lars, would  carry  rue  a  great  deal  too  far)  the  principal  cafes,  where  this  kx 
terra  fuperfedes  the  trial  per  pares.  Firlt,  then,  if  a  man  accufed  of  a  crime 
pleads  guilty,  fo  that  there  is  no  doubt  of  the  facl,  it  would  be  an  abfurd 
and  ufelefs  delay  to  fuirunon  a  jury,  to  find  what  is  already  admitted  :  ac- 
cordingly, by  the  lex  terra  judgment  is  given  on  the  confeflion.  So  in  a 
civil  action,  if  the  defendant  confefles  the  action,  or  if  he  appears,  and  af- 
terwards, when  he  mould  defend  himfelf,  makes  default,  and  will  not 
plead  (which  cafe  is  equivalent  to  confeflion)  no  jury  is  requifite.  So,  if 
both  parties  plead  all  the  matters  material  in  the  cafe,  and  a  demurrer  is 
joined,  that  is,  the  fa&s  agreed  on  both  fides,  and  only  the  matter  of  right, 
depending  on  the  fads  already  allowed,  in  contcft,  the  judges  (hall  try  by 

Y  y  2  demurrer 


356  LECTURES     ON     THE  LECT.  39. 

demurrer,  and  give  judgment  according  to  law  without  a  jury.  The  ge- 
neral rule  is,  that  a  jury  mall  tryfafls,  and  the  judges  the  law  ;  for  it  would 
carry  a  face  of  abfurdity  to  exped  from  a  common,  or  indeed,  from  any 
jury,  a  decifion  of  a  point  of  law  that  is  controverted  between  the  lawyers 
of  the  plantifF  and  defendant,  who  have  made  that  fcience  their  particular 
fludy.  Befides,  as  the  law  inflicts  fo  heavy  a  punifhment  on  jurors  who 
give  a  falfe  verdict,  it  would  be  the  utmoft  cruelty  to  force  men  unpradifed 
in  law  to  run  fuch  a  hazard,  where  it  muft  be  fuppofed  an  equal  chance, 
at  leaft,  they  may  miftake.  The  fame  dangers  that  the  jurors  would  run 
by  miftaking  the  law,  hath,  in  points  complicated  both  of  law  and  fad, 
introduced^mV?/  verdifts,  that  is,  the  finding  of  all  the  fads  by  the  jury, 
and  the  leaving  the  matter  of  right  to  be  judged  by  the  court,  who  bed 
know  the  law  :  but  this  by  way  of  digreffion. 

ALL  the  proceedings  of  courts  to  bring  caufes  to  a  hearing  previous  to 
the  impannelling  a  jury,  and  the  carrying  judgments  into  execution,  are 
per  Icgem  terra,  or,  as  my  Lord  Coke  exprefles  it,  the  due  procefs  of  the 
law  is  lex  terra.  The  infliding  of  punifhment  by  the  difcretion  of  courts 
for  all  contempts  of  their  authority,  without  the  intervention  of  a  jury,  is 
alfo,  I  think  part  of  the  lex  terra,  and  founded  in  the  neceffity  of  enforcing 
due  refped  and  obedience  to  courts  of  juflice,  and  fupporting  their  due 
dignity.  The  outlawing  a  perfon  who  abfconds,  and  cannot  be  found, 
fo  as  to  oblige  him  to  anfwer  a  charge  againfl  him,  whether  civil  or  criminal, 
is  one  of  thefe  proceedings  per  legem  terra  without  a  jury  ;  of  which,  as  I 
have  now  occafion,  it  will  not  be  amifs  to  give  a  fhort  account,  as  it  is  in 
daily  practice  f . 

BY  the  very  antient  law  of  England,  the  confequence  of  outlawry  was- 
very  troublefome.  Not  only  a  feizure  of  the  perfon,  lands  and  goods,  \vas 
lawful,  but  he  was  looked  upon,  not,  merely,"  as  one  out  of  the  protection 
of  the  law,  but  alfo  as  a  publick  enemy  ;  for  whoever  met  him  had  a  right 
to  flay  him.  This  barbarous  law  undoubtedly,  proceeded  hence,  that  no 
perfon  was  then  ever  outlawed  but  for  a  felony  ;  that  is,  a  crime  whofe  pu- 
uifhment  was  'death  ;  but  it  was  a  mofl  abfurd  thing  to  allow  every  pri- 
vate perfon  to  execute  the  offender,  who  by  refufmg  to  anfv/er  has  confefied 

himfelf 
f    2.  Inftitut.  p.  51. 


LECT.   39.          LAWS     OP     E  N  G  L  A  N  1).         357 

himlclf  guilty  :   and  the  abfurdity  be  n,  about  Hen- 

ry the  Thir..  of  out!  to   be  c 

pafles  committed  vi  et  armis,  \\l.c\\  the  eoulrqucnces  wen  .     Such 

iilum  levins  furprifing  ;  yet  the  turbulent  a>udui<  n  <>t  tin-  limes  will,  in 
fome  meaiurc,  account  for  it  ;  when,  under  pretence  of  dormant  tit 
cible  poflellions,  not  without  frequent  bloodfhed  and  mur,  re  daily 

taken    by    the    adherents  of  the  Lin;;    or  barons,  as  their  n 
prevailed.     But  when  the  times  grew  peaceable,  this  bloody  maxim  wore 
out,  and  in  the  beginning  of  Edward  the  Third's  reign,   it  Ived  by 

all  the  judges,  that  the  putting  any  man  to  death,  except  by  the  mcrilr, 
and  even  by  him  without  due  warrant  in  law,  however  ou1  nd  con- 

victed, was  murder;  and  fince  the  forementioned  times,  as  the  number  of 
people  encreafed,  and  the  opportunities  of  concealment  and  abfconding 
along  with  them,  it  has  been  found  necellary  to  grant  the  procefs  of 
outlawry  in  many  civil  actions. 

I  SHALL  briefly  point  out  the  proceedings  therein,  to  (hew  the  abundant 
care  the  law  of  England  takes,  on  the  one  hand,  to  do  juflice  to  the  plain- 
tiff, if  the  defendant  abfconds,  and  will  not  appear ;  and,  on  the  other, 
that  the  defendant  may  have  all  poflible  opportunity  of  notice  before  the 
outlawry  be  pronounced  againft  him.  Firfl,  there  iflue  three  writs  fuccef- 
fively,  to  take  the  body  of  the  defendant,  if  found  in  his  bailywick  or 
county,  and  to  bring  him  to  anfwer.  The  firfl  is  called  a  capias,  from  that 
mandatory  word  in  the  writ.  When  the  fheriff  cannot  find  him  in  his 
bailywick,  he  returns  a  non  eft  inventus  on  the  back  of  the  writ,  on  which 
there  iflues  a  fecond  capias,  called  an  alias,  from  its  reciting  that  alias,  or 
before  this,  the  like  writ  had  iflued.  On  the  fame  return  of  non  eft  inventus 
to  this  (for  if  upon  any  of  the  procefTes  the  defendant  is  taken,  or  comes 
voluntarily  in,  fo  as  to  anfwer,  the  end  is  obtained,  and  no  further  proceed- 
ings to  outlawry  go  on),  the  third  writ  iflues  called  Tuplurics,  becaufe  it  re- 
cites the  iheriff  had  been  plurlcs,  that  is,  twice  before,  commanded  to  take 
him.  The  fending  thefe  three  writs,  one  after  the  other,  in  or/  ring 

in  the  party  is,   I   prefume  (as,  undoubtedly   many  of  the  antient  prac, 
in  our  courts  of  law  are)  borrowed  from   the  civil  law  ;  for  by  that   law 
they  iflued  three  citations,  at  the  diitance  of  ten  days,  one  after  another,  to 
call  in  the  party  to  anfwer. 

BUT 


358  LECTURES     ON     THE  LECT.  39. 

BUT  as,  upon  a  return  of  a  non  eft  inventus  on  the  third  capias,  the  per- 
fonal  apprehending  the  defendant  may  well  be  defpaired  of,  the  law  pro- 
ceeds another  way  ;  in  order,  if  poffible,  to  give  him  notice,  that  is  by  ifiu- 
ing  the  writ  of  exigent,  fo  called  from  the  Latin  word  exigere,  to  require, 
or  call  upon.  This  writ  commands  the  meriff  to  call  the  defendant  in  his 
county-court,  where  all  the  perfons  of  the  county  are  fuppofed  to  have 
bufmefs,  or  at  lealt  fome  that  can  inform  him  might  have.  The  words 
are,  We  command  you  that  you  caufe  fuch  a  one  to  be  required  from  county-court 
to  county-court,  until,  according  to  the  law  and  cu/lom  of  our  realm,  be  be  out- 
lawed if  he  doth  not  appear.  And  if  he  do  appear,  him  to  take,  andfafily  keep, 
and  fo  forth.  Now  the  law  and  cuftom  of  the  realm  requires,  in  this  cafe, 
that  the  party  fhould  be  called  on  five  different  county-court  days,  one 
after  another,  before  he  can  be  outlawed  ;  and  thefe  courts  being  held  at 
the  di (lance  of  four  weeks  from  each  other,  the  interval  amounts  to  fixteen 
weeks,  befides  the  time  of  the  three  previous  capias's  ;  a  time  fo  abundantly 
fufficient,  as  it  is  fcarce  to  be  prefumed  poflible  a  perfon  living  in  the  county 
fhould  not  have  notice  ;  and  confequently,  on  his  not  appearing  in  the 
fifth  court,  the  coroners  of  the  county,  whofe  duty  it  is,  give  judgment  of 
outlawry  againft  him. 

SUCH  is  the  ca're  the  common  law  takes  to  prevent  outlawries  by  furprize. 
But  the  aft  of  the  thirty-firft  of  Elizabeth  in  England,  enacted  here  in  the 
eleventh  of  James,  had  fuperadded  another  caution,  namely  three  publick 
proclamations.  The  reafon  of  this  fupperadded  caution  was,  I  prefume,  on 
account  of  the  dwindling  of  the  bufmefs  in  the  county-courts,  and,  in  con- 
fequence,  their  being  not  fo  well  attended.  This  writ,  commanding  the 
merifT  to  make  proclamation,  iffuss  with  the  exigent,  and  recites  it,  and 
the  caufe  for  which  the  proceeding  to  an  outlawry  is,  and  directs  him  to 
proclaim  the  party  three  feveral  days  ;  firft  in  the  county-court,  fecondly  at 
the  quarter-feffions,  a  court  of  more  refort,  and  laftly  on  a  Sunday  immedi- 
ately after  Divine  fervice,  at  the  moll  ufual  door  of  the  church  of  the  parifh, 
where  the  perfon  dwelt  at  the  time  the  exigent  iffiied  ;  or  if  no  church, 
in  the  church-yard  of  the  parifh  j  or  if  no  parim,  at  the  nearefl  church, 

and 


LECT.  39.         LAWS     or     ENGLAND.          359 

and  all  outlawries  in  prrfon.il  actions,    where  thcfc  folcmnitics  arc  not  ob- 
fcrved,  are  declared  void. 

I  HAVE  been  the  more  particular  on  this  head,  to  mew  the  abundant  care 
tin-  law  has  taken   in  thcli-  proceedings,  and  to  vii  >m  the  com- 

mon complaint,  of  outlawru  |  being  obtained  lurreptitioufly,  and  v. 
out  notice.  I  am  fenlible  fuch  complaints  are  generally  without  founda- 
tion ;  but  if  in  any  cafe  they  are  juft,  the  fault  is  not  in  the  law,  but  in  man, 
in  the  laws  not  being  duly  executed  ;  and  if  we  are  to  complain  of  the 
beft  laws,  until  they  be  in  all  cafes  perfectly  and  uprightly  executed,  we 
(hall  never  ceafc  complaining  while  human  nature  is  what  it  is,  weak  and 
corrupt  f . 


fzlnft.  p.  51. 55. 


LECTURE 


360  L  E  C  T  U  R  E  S     ON     THE  LECT.  40. 


XL. 

Continuation  of  the  commentary  on  Magna  Cbarta. 

HAVING  mentioned  the  feveral  kinds  of  proceeding  to  judgment 
without  the  intervention  of  juries,  practifed  by  the  courts  of  com- 
mon law,  and  authorifed  under  the  words  of  this  ftatute,  per  legem  terra, 
it  will  be  proper,  before  I  quit  this  head,  to  fay  fomething  of  other  kinds 
of  courts  which  do  not  admit  this  method  of  trial ;  which,  yet,  have  been 
received,  and  allowed  authority  in  England ;  and  whofe  proceedings,  how- 
ever different  from  thofe  of  the  common  law,  are  juftified  by  the  fame 
words,  per  legem  terra.  Thefe  are  the  courts  ecclefiaftical,  maritime,  and 
military. 

IF  we  trace  back  the  origin  of  ecclefiaftical  jurifdi&ions,  we  mail  find 
its  fource  in  that  advice  of  St.  Paul,  who  reproves  the  new  chriftians  for  fcan- 
dalifmg  their  profeffion,  by  carrying  on  law-fuits  againfl  each  other  before 
heathen  judges,  and  recommends  their  leaving  all  matters  in  difpute  be- 
tween them  to  the  decifion  of  the  Etcle/iay  or  the  congregation  of  the 
faithful.  In  the  fervour  of  the  zeal  of  thefe  times,  this  counfel  was  foon 
followed  as  a  law.  The  heathen  tribunals  fcarce  ever  heard  of  any  of  their 
controverfies.  They  were  all  carried  before  the  bifhop,  who,  with  his 
clergy,  prefided  in  the  congregation  ;  and  who,  from  the  deference  the  laity 
paid  them,  became  at  length  the  fole  judges,  as,  in  after  ages,  the  bifhop 
became  fole  judge,  to  the  exclufion  of  his  clergy.  Thefe  judges,  however, 
being,  properly  fpeaking,  only  arbitrators,  had  no  coercive  power  to  en- 
force their  judgments.  They  were  obliged,  therefore,  to  make  ufe  of  that 
only  means  they  had  of  bringing  the  refractory  to  fubmiffion,  namely,  ex- 
cluding them  from  the  rights  of  the  church,  and  warning  other  Chriftians 
againft  their  company,  and  indeed,  it  was  an  effectual  one  ;  for  what  could 
a  Chriftian,  defpifed  and  abhorred  by  the  heathen,  and  fhut  out  from  the 
commerce  of  his  brethren,  do,  but  fubmit  ?  Befides,  if  he  was  really  a 

Chriitian 


LECT.  40.         L  A  W  S     OP     E  N  G  L  A  N  D. 

Chrifthn,  this  proo  founded  on  tlic  words  .  He 

"  that  will  not  hear  the  ecclefm,  the  congregation,  let  him  be  unto  thcc  as 
"  an  heathen;." 

THUS  was  excommunication  the  only  proccfs  in  the  primitive  church  to 
iniorcc  obedience,  as  it  is  in  ivclefiuttical  courts  at  this  day  ;  though,  con- 
full-ring  the  many  petty  and  trilling  occafions  on  which  they  arc,  of  ncccflity, 
obliged  to  have  recourfe  to  thdc  amis,  having  no  other,  and  the  many 
temporal  inconveniencies  it  may  be  attended  with,  it  has  been  the  opinion 
of  many  wife  and  learned,  as  well  as  of  many  pious  men,  that  it  would 
not  be  unworthy  the  attention  of  the  legiflature  to  devifc  fomc  other 
coercive  means  for  the  punifhment  of  contempts,  and  to  rcftrain  excom- 
munication to  extraordinary  offences  only.  Though,  if  we  confider  that 
jealoufy  which  the  temporal  courts,  and  the  laity  in  general,  fo  jtiflly  con- 
ceived of  thefe  judicatures  in  the  time  of  popery,  hath  not  even  yet  entirely 
fubfided,  there  is  little  profpect  that  this  or  any  other  regulation  to  amend 
their  proceedings,  and  others  they  do  want,  will  be  attempted. 

WHEN  the  empire  became  Chriftian,  thefe  courts  and  their  authority  were 
fully  eftablifhed  in  the  minds  of  the  people.  However,  that  the  temporal 
courts  might  not  be  dripped  of  their  jurifdiction,  and  churchmen  become' 
the  fole  judges,  a  diftinction  was  made  between  matters  of  fpiritual  and 
temporal  cognizance  ;  not  but  feveral  matters,  originally  and  naturally  tem- 
poral, were  allowed,  by  the  grants  of  the  emperors,  to  the  ecclefiaflical 
jurifdiction  ;  and  even,  of  fuch  as  were  not  allowed  them,  they  might  take 
cognizance,  if  both  the  parties  agreed  thereto.  This  was  called  proroguing 
the  jurifdicYion,  that  is>  extending,  by  the  confcnt  of  the  litigants,  its 
power  to  matters  that  do  not  properly  belong  to  it.  A  practice  our  law 
has  moil  juftly  rejected ;  for  it  would  introduce  confufion,  and  a  perpetual 
clafhing  of  courts,  if  it  was  in  the  power  of  the  private  perfons  to  break 
down  the  fences  that  the  conflitution  has  fo  wifely  erected  to  keep  every 
judicature  within  its  drift  bounds.  And.  indeed  this  practice  was  one  of 
the  great  engines  the  churchmen  made  ufe  of,  in  their  grand  fcheme  of 
fwallow'mg  up  all  temporal  jurisdiction  and  power.  The  method  of  trial  in 
thefe  courts  was  by  the  depofitions  of  witnefles  j  and  upon  them  the  judge 
determined  both  the  law  and  the  fact. 

Z  z  TRT 

|.  Father  Pair,  of  beneficiary  matters. 


362  LECTURES     ON     THE  LECT.  40. 

TRIALS  by  jury  were  entirely  unknown  to  the  Romans,  though  indeed 
their  centwnviral  court,  in  the  early  times,  bore  fome  refemblance  to  them  ; 
and  even  when  the  northern  nations,  who  were  the  introducers  of  the  trial 
per  pares,  became  Chriftians,  the  ecclefiaftical  courts  on  the  continent  pro- 
ceeded in  their  old  manner.  But  in  England,  during  the  times  of  the 
Saxons,  both  fpiritual  and  temporal  courts,  though  their  bufmefs  was  dif- 
tinct,  fat  together,  and  mutually  affifted  each  other,  as  I  obferved  under 
the  Conqueror's  reign.  But  whether  the  matter  of  fact  in  ecclefiaftical 
caufes  was  then  tried  by  a  jury,  I  will  not  pretend  to  affirm,  though,  from 
the  peculiar  fondnefs  the  Saxons  had,  above  the  other  northern  nations,  for 
that  method  of  trial,  it  may  feem  not  improbable.  However,  this  is  cer- 
tain, that  from  the  time  William,  who,  to  gratify  the  court  of  Rome,  and 
to  mew  his  own  political  purpofes,  feparated  the  courts,  the  proceedings  of 
the  fpiritual  ones  in  England  have  been  conformed  to  the  practice  of  thofe 
courts  abroad,  and  to  the  canon  law.  The  alteration,  if  indeed  there  was 
any,  was  fufficiently  authorifed  by  the  king  and  pope  ;  and  indeed  as  all 
the  bifhoprics  were  filled  by  Normans,  they  knew  not  how  to  proceed  in 
any  other  manner.  By  the  time  of  John,  the  proceedings  of  thefe  courts, 
and  their  trial  of  caufes  without  jury,  had  been  univerfally  fixed,  and 
received  as  a  part  of  the  lex  terrtf,  and,  as  fuch,  is  confirmed  by  the  words 
of  this  ftatute. 

THE  next  court  that  the  law  of  the  land  allows  to  proceed  to  fentence 
without  a  jury  is  the  Court  of  Admiralty,  and  that  for  abfolute  neceffity  ; 
for  as  its  jurifdiction  is  not  allowed  as  to  any  thing  that  happens  within  the 
body  of  a  county,  except  in  one  particular  inftance,  contracts  for  failors 
wages,  but  extends  only  to  things  done  on  the  fea,  or  at  moft  to  contracts 
made  in  foreign  countries  (though  this  laft  is  denied  by  the  lawyers  of  our 
days  to  belong  to  them)  there  is  no  place  from  whence  a  jury  can  come. 
Fox  the  jury  of  the  county,  where  the  caufe  of  fuit  arofe,  are  the  triers, 
but  here,  it  arofe  in  none.  Befides,  the  great  excellency  of  this  method  of. 
trial  confifts  in  this,  that  the  jury,  from  their  vicinity,  have  opportunities  of 
knowing  fomething  of  the  nature  of  the  cafe,  and  of  being  acquainted  with 
the  characters  and  credit  of  the  witnefTes,  neither  of  which  can  be  fuppofed 
in  this  cafe.  In  this  court  the  judge  determines  both  matter  of  law  and 

THE 


LECTIO.         L  A  W  S     OP     E  N  C   T,  A  N  D.          363 

Tin.  lame  was  the  cafe  of  the  Con  ;md  Marfhal's  Court,  formerly 

of  great  power,  but  now  next  to  antiquated.     Its  jurifdic'tion  was,   firft, 
martial  law,  over  the  foldiers  and  attendants  of  the  camp.     Now  the  t 
of  offenders  in  this  kind,  by  a  jury,  whether  taken  «  'ie  army,  or  out 

of  the  county,  if  in  the  kingdom,  would  have  elh  anally  deltroycd  that 
drift  fubordination,  which  is  the  foul  of  military  enterprifes.  Secondly, 
they  had  the  trials  of  treafons  and  felonies  done  by  the  kind's  fubjeds  in 
foreign  kingdoms.  Here  there  could  be  no  trial  by  jury,  for  the  fame 
reafon  as  given  already  for  the  Court  of  Admiralty.  The  la(t  part  of  their 
jurifdiction  was  as  to  precedence,  arms,  and  marks  of  dignity,  which  flow- 
ing  immediately  from  the  grace  of  the  crown,  the  fole  difpofer  and  judge 
of  them,  were  not  fuppofed  to  be  in  the  cognizance  of  jurors,  but  proper 
to  be  determined  by  the  king's  judges,  who  had  the  keeping  of  the  me- 
morials of  his  grants  in  this  kind.  Befides,  thcfe  honorary  diftincYions  arc 
not  local,  but  univerfal  through  the  realm  ;  fo  that  there  is  no  particular 
county  from  whence  a  jury  mould  come  f . 

SUCH  are  the  reafons  affigned  why  thefe  two  courts  proceed  per  legem 
icrrtf,  and  not  by  juries  ;  but,  to  fpeak  my  own  opinion  truly,  when  I 
confider  that  their  methods  are  formed  upon  the  proceedings  of  the  civil 
law,  I  fufpect  a  farther  defign.  The  difcovery  and  revival  of  this  law  hap- 
pened in  the  reign  of  our  Stephen.  I  have  already  had  occafion  to  obferve 
how  greatly  the  princes,  in  every  part  of  Europe,  were  flattered  by  the 
tempting  bait  of  unlimited  power  it  fet  before  them,  and  particularly  the 
kings  of  England,  who  were  the  firft  that  fet  out  in  purfuit  of  this  delufive 
object  ;  and  that  their  being  lefs  fuccefcful  than  others  was,  very  probably, 
owing  to  their  beginning  the  career  too  early.  When  I  confider  then  that 
thcfe  two  courts,  where  trials  by  juries  prevail  not,  dealt  in  matters  that 
were  of  the  refort  of  the  prerogative,  and  that,  in  confequence,  the  model- 
ling of  them  was  left  to  the  king  ;  when  1  fee  all  the  parts  of  thefe  models 
taken  from  the  imperial  law  ;  when  I  reflect  on  the  notorioufly  avowed  and 
unjuft  preference  the  weakeft  of  them  gave  to  that  againit  the  common 
law,  and  the  kind  patronage  the  wifeli  and  mofl  moderate  of  them  (hewed 
to  it,  and  its  poffeflions,  down  to  the  reign  of  Charles  the  Second,  I  can- 

'L  z  2  not 

\  4.Liftitut.  „ 


354  L  E  C  T  U  R  E  S     ON     THE  LECT.  40. 

not  help  fufpecting  a  deeper  defign.  And,  indeed,  the  common  lawyers 
feemed  to  take  the  alarm,  and  decried  and  defpifed  every  part  of  this  law, 
though  mod  of  it  is  founded  on  good  reafon,  merely  out  of  the  apprehen- 
fions,  that  giving  it  the  leaft  countenance,  might,  in  time,  open  a  door  for 
the  abfolute  authority  of  the  prince,  and  the  rapacioufnefs  of  hisj^/2r  or  trea- 
fury,  and  thereby  overturn  the  conilitution. 

BUT  there  are  other  courts,  befides  thofe  already  named,  that  proceed 
upon  the  depofition  of  witneffes,  and  not  by  jury,  I  mean  the  courts  of 
Equity  ;  which,  in  imitation  of  the  civil  and  canon  laws,  oblige  a  party  to 
anfwer  upon  oath  to  his  adverfary's  charge.  This  practice,  though  not 
allowed  by  common  law,  is  founded  in  very  good  reafon.  For,  as  the 
proper  bufmefs  of  a  court  of  equity  is  to  detect  fraud  and  furprize,  thefc 
things  being  done  in  private,  and  endeavoured  to  be  as  much  concealed  as 
poffible,  it  is  but  reafonable  that  the  plantiff  fliould  have  power  to  fift  the 
confcience  of  his  adverfary,  and  to  examine  not  to  a  fingle  point,  as  the 
iflucs  at  common  law  are,  but  to  many  feparate  facts,  from  which,  taken 
together,  the  fraud,  if  any,  may  appear.  Such  matters,  therefore,  being 
of  nice  difcuffion,  and  of  a  complicated  nature,  are  not  fit  for  the  decifion  of 
a  jury,  and  indeed  would  take  up  more  time  than  they  could  poffibly  em- 
ploy in  the  examination.  The  court,  therefore,  go  upon  depofitions9  and  judge 
both  of  the  law  and  fact.  However,  if  a  matter  of  fact,  neceflary  for  the 
decifion  of  the  caufe,  appears  on  the  depofition  doubtful ;  or  if  any  matter 
arife  which  thefe  courts  have  no  power  to  try,  they  direct  an  iflue,  wherein 
the  point  is  tried  by  jury,  in  a  court  of  common  law  ;  and  thus,  thefe 
courts  have  the  advantage  of  both  methods  of  trial,  as  well  that  of  the  civil, 
as  that  ufed  by  the  common  law  j  namely  the  oath  of  the  party,  and  depo- 
fitions  from  one,  and  the  trial  by  jury  from  the  other. 

This  method,  however,  of  trial  by  depofition,  has  been  objected  to,  as 
productive  of  enormous  expence  and  delays  ;  and  it  cannot  be  denied,  that, 
as  affairs  are  now  conducted,  there  is  too  much  reafon  for  the  objection.  Yet 
to  this  it  may  be  anfwered,  that  if  examiners  were  more  careful,  and  would 
fet  down  nothing  but  what  is  evidence,  and  were  the  rules  of  court,  to  cut  off 
delays,  always  ftrictiy  inforced,  the  damage  arifmg  from  both  thefe  heads 
would  be  confiderably  leflened.  To  cut  off  all  delays,  and  to  reduce  the 
proceedings  to  as  fmnmary  a  method  as  that  of  the  courts  of  common  law 

would, 


•r.  40-          LAWS    OF    ENGLAND. 

would,  (confidenng  the  nutters  tliey  arc  converfant  about  arc  of  different 

i,  and  require  the  iiu-ll  .uute  examination )  inltcad  oi  preventing  fr. 
in  moil  inltanccs,  by  a  hurried  main  «e  to  dcicnd  and  cu 

them.     '1  he   pulu-y  of  the   common  law  was  to  reduce  the  matter  in 
quellion  to  a  iin;  ,   which  the  jury  might,  i;cc, 

nnine  within  a  convenient  time.  And  it  mult  be  owned  that  the  lawyers 
and  judges  of  latter  days,  by  admitting  the  trial  of  titles  to  lands  in  pcrfonal 
a&ions,  have  deviated  much  from  the  fimplicity  of  the  law,  and  weakened 
the  excellence  of  tbe  trial  by  jury.  The  prefcnt  practice,  <  f  determining  the 
title  to  land  by  an  action  of  trelpafs,  will  ferve  as  an  inftancc  ;  where  the 
en  ]  liryis,  w'ict'i  T  a  in  w's  entering  up  >:i  l.r  ds  or  not  ;  if  he 

had  right  to  enter  in,   it  was  no  trafpafs  ;   if  he  had  not,  it  was  other1 
Now,  as  the  right  may  depend  upon  twenty  different  matters  of  fact,  bi 
matters  of  law,  all  which  muft  be  fettled   and  weighed,  before  the  bare 
queftion  of  trefpafs  can  be  determined,  it  is  eafy  to  fee  to  what  lengths  trial 
by  juries  may  be  now4*pun  ;  to  how  fhort  a  time  the  examination  of  the  mofl 
material  points  muft  be  confined ;    how  imperfect,  confequently,  the  ex- 
amination muft  often  be  ;   to  fay  nothing  of  the  danger  of  a  jury's  erring 
when  both  body  and  mind  is  wearied  out  with  long  attendance,  and  the 
•attention  confequently  enfeebled. 

IF  it  be  afked,  how  came  this  deviation,  which  has  been  attended  with 
fo  many  inconveniencies  ?  The  true  anfwer  is  the  beft,  that  it  fprung  from 
the  advantage  of  practitioners,  and  the  litigioufnefs  of  fuitors.  By  the 
common  law,  no  man  could  bring  two  actions  of  the  fame  nature  for  the 
fame  thing.  If  I  am  entitled  to  the  pofieflion  of  lands,  I  may  bring  my  'i'rit 
of  entry  i  or  an  afftze?  to  recover  it ;  but  if  I  am  foiled,  I  cannot  bring  a 
fecond.  So,  if  I  am  entitled  to  the  propriety  of  the  land,  I  may  bring  my 
writ  of  right,  and  if  I  recover  not  therein,  my  right  is  gone  for  ever. 
The  litigioufnefs  of  fuitors,  who  had  a  mind  to  gain  a  method  of  trying 
the  fame  thing  over  and  over  again,  where  they  milcarried,  introduced 
this  method  I  am  fpeaking  of.  For  every  new  entry  was  a  new  trefpafs,  and 
could  not  be  faid  to  have  been  tried  before  ;  though  w  hether  it  was  a  trefpafs 
or  not,  depends  on  what  had  been  tried  before,  and  the  ava'rice  of  pracliti- 
oners,  who  defired  frequent  fuits,  encouraged  it.  But  when  once  it  was 
allowed,  notwithftanding  all  the  complaints  of  Coke  and  his  co-temporary 
judges,  it  became  univerfally  followed,  and  is  now  fo  eftablflicd,  and  the 

higher 


L  E  C  T  U  R  E  S     ON     THE  LECTIO. 

higher  actions  fo  much  out  of  ufe,  that  I  queftion  whether  there  is  a  lawyer 
living  who  would  be  able,  without  a  great  deal  of  ftudy,  to  conduct  a  caufe 
in  one  of  thofe  antiquated  real  actions.  The  inconveniencies  of  thefe  fre- 
quent trials  introduced,  for  the  obviating  them,  a  new  practice,  the  apply- 
ing to  the  court  of  chancery,  after  two  or  more  verdicts  confonant  to  one 
another,  for  an  injunction  to  (lop  farther  proceedings  at  law;  which, 
though  a  new,  was  become  a  neceffary  curb,  after  the  common  law-courts 
had  allowed  the  former  method. 

BESIDES  thefe  courts  already  mentioned,  there  are  many  other  judicato- 
ries,  which,  by  particular  acts  of  parliament,  have  particular  matters  en- 
trufted  to  their  determination,  without  the  intervention  of  juries  ;  as  the 
feveral  matters  determinate  fummarily  by  one  or  more  juftices  of  the  peace ; 
the  affairs  of  the  revenue  by  the  commiilioners ;  and  fuits  by  civil  bills  for 
limited  fums  by  judges  of  affize  ;  though  in  thefe  laft  the  prefiding  judge 
may,  and  ought,  in  matters  of  difficulty,  to  call  a  jury  to  his  affiftance  ; 
and  it  muft  be  owned  in  this  poor  country  the  alteration  of  the  law  in  this 
laft  particular,  has  been  attended  with  very  good  confluences.  The  ex-  ( 
pediency  of  the  two  former  changes,  indeed,  has  been  much  difputed  ;  but 
that  being  a  queftion  of  politicks,  not  of  law,  I  fliall  not  enter  into  it. 

THUS  much  I  have  obferved,  in  a  fummary  way,  concerning  the  feveral 
methods  of  trial,  differing  from  that  per  pares,  which  are  authoriied  by 
thefe  words  of  Magna  Charta,  per  legem  terra* 

I  SHALL  next  proceed  to  the  point  of  the  perfonal  liberty  oftbefubjcft ;  but 
as  it  will  be  proper  to  take  all  that  together,  in  one  view,  I  mall  here  con- 
clude the  prefent  Lecture. 


LECTURE 


T.  41.        LAWS    OF     ENGLAND. 


LECTURE  XLI. 

Continuation  of  the  commentary  on  Magna  Chart  a. 

HAVING  explained  the  import  of  the  words  per  kgale  judicium  pariutn 
fuorum,  vcl  per  legcm  terra,  which  refer  to,  and  qualify  all  the  pre- 
ceeding  parts,  it  will  be  proper  to  mention  thofe  preceeding  articles,  and  to 
make  fome  obfervations  upon  them.  They  then  confift  of  fix  different 
heads.  The  firft  relates  to  the  perfonal  liberty  of  the  fubject;  the  fecond 
to  the  prefervation  of  his  landed  property  ;  the  third  is  intended  to  defend 
him  from  unjufl  outlawry  ;  the  fourth  to  prevent  unjuft  banimment ;  the 
fifth  prohibits  all  manner  of  deftruction  ;  and  the  defign  of  the  fixth  is  to 
regulate  criminal  profecutions  at  the  fuit  of  the  king.  I  {hall  briefly  treat  of 
all  thefe  particulars  in  the  order  in  which  they  (land. 

THE  firft  claufe  tending  to  fecure  perfonal  liberty,  runs  in  thefe  words ; 
Nullus  liber  homo  capiatur  vcl  imprifonetur.  Liber  homo,  as  I  before  obferved, 
here  extends  to  all  the  fubjecls,  and  is  not  to  be  taken  in  its  more  retrained 
ienfe,  of  a  freeholder.  We  fee  the  words  are  not  barely  againfl  wrongful 
imprifonment,  but  extend  to  arreiling,  or  taking,  nullus  capiatur.  This 
act  extends  not  only  to  prevent  private  perfons,  particularly  the  great  men, 
from  arrefling  and  imprilbning  the  fubjects,  but  extends  alfo  to  thofe  from 
whom,  on  account  of  their  extraordinary  power,  the  greateft  danger  might 
be  apprehended,  I  mean  the  king's  minifterial  officers,  his  council,  nay 
himfclf,  acting  in  perfon.  "  No  man,"  (fays  my  Lord  Coke,  commenting 
on  this  point,)  "  fhall  be  taken,  that  is  reftrained  of  liberty,  by  petition  or 
"  fuggeftion  to  the  king,  or  his  council ;  unlefs  it  be  by  indictment,  or  pre- 
"  fentment  of  good  and  lawful  men,  where  fuch  deeds  be  done."  For  in 
that  cafe  it  is  per  kgale  judicium  parium  ;  though  an  indictment  found,  or 
a  prefentment  made  by  a  grand  jury,  in  one  fenfe,  cannot  properly  be  called 
judicium,  as  it  is  not  conclufive ;  but  the  fact  mull  be  after  tried  by  a  petty 

jury; 


368  LECTURES     ON     THE  LECT.  41, 

jury  ;  yet  for  the  purpofe  of  reflraining  and  fecuring  a  perfon  accufed  upon- 
record,  that  lie  may  be  forthcoming  on  his  trial,  it  isjudicitom  parium. 
Otherwife  the  mofl  flagrant  offenders  might  efcape  being  tried  and  con- 
victed f. 

IN  the  fifteenth  chapter  of  Weflminfler  the  firfl,  enacted  in  the  third 
year  of  Edward  the  Firfl,  and  ordained  to  afcertain  for  what  offences  a  man 
might  be  detained  in  prifon,  and  to  make  effectual  provifion  for  the  bailing- 
out  perfons  upon  their  giving  fecurity  to  abide  a  trial,  thofe  accufed  of  the 
{lighter  offences,  perfons  detained  per  maundement  de  roy  by  the  command"of 
the  king,  are  mentioned  as  not  bailable  ;  and  this  may  feem  to  contradict 
the  law  I  have  now  laid  down.  Yet,  when  rightly  underflood,  it  doth 
not.  For  as  judge  Gafcoigne  rightly  faid,  the  king  hath  committed  all  his 
power  judicial  to  divers  courts,  fome  to  one,  fome  to  another  ;  and  it  is  a 
rule  in  the  conflruction  of  ilatutes,  that  when  any  judicial  act  is  referred 
to  the  king,  it  is  to  be  underflood  to  be  done  in  fome  court  of  juftice,  ac- 
cording to  law.  The  command  of  the  king,  therefore,  doth  not  mean  the 
king's  private  will,  but  a  legal -command,  ilTued  in  his  name,  by  his  judges, 
to  whom  his  judicial  power  is  intruded.  Accordingly,  Sir  John  Markham, 
chief  juflice,  told  Edward  the  Fourth,  that  the  king  could  not  arrefl  any 
man  for  fufpicion  of  treafon,  or  felony,  as  any  of  his  fubjects  might ;  and 
he  gave  a  mofl  excellent  reafon  for  it :  Becaufe,  fays  he,  if  the  king  did 
wrong,  the  party  could  not  have  his  action.  In  the  fixteenth  of  Henry  the 
Sixth  it  was  refolved  by  the  whole  court,  That  if  the  king  command  me  to 
arrefl  a  man,  and  I  do  arrefl  him,  he  mall  have  his  action  of  falfe  imprifon- 
ment  againfl  me,  although  I  did  it  in  the  king's  prefence. 

THE  maxim,  then,  is,  that  no  man  mall  be  taken  and  committed  to  pri- 
fon, but  by  judiriwn  parium,  vel  per  legem  terra^  that  is,  by  due  procefs  ot- 
law.  Now  to  underfland  this,  it  is  neceffar.y  to  .fee  in  what  cafes  a  man. 
may  be  taken  before  prefentment  or  indictment  by  a  jury ;  and  in  the  en- 
quiry it  is  to  be  confidered,  that  procefs  of  law,  for  this  purpofe,  is  two- 
fold, either  by  the  king's  writ,  to  bring  him  into  a  court  of  juflice,  to  an- 
ficer,  or  by  what  is  called  a  'warrant  in  law.  And  this  is,  again,  two-fold, 

indeed ', 

|  2  Inft..p.  46.. 


LECT.  41.          LAWS     OF     ENGLAND.         369 


,  la  the  authority  of  a  U-gal  magiftrate,  as  a  Jufticcof  Peace's  mittimus^ 
or  that  which  cacli  private  perfon  is  invcfled  with,  and  may  exercifc. 

FIRST  then,  for  making  a  mittimus*.  good  warrant,  it  is  prcvioufly  neccf- 
fary,  that  there  fhould  be  an  information  on  oath,  before  a  magiftratc  ha- 
ving lawful  authority,  that  the  party  hath  committed  an  offence  ;  or  at  lead 
of  foine  politive  fad,  that  carries  \vith  it  a  flrong  and  violent  preemption 
that  he  hath  fo  done  :  Next,  then,  the  mittimus  mull  contain  tl,  c  in 

certain,  that  it  may  appear  whether  the  offence  charged  is  fuch  an  one  as 
juflifies  the  taking  ;  whether  it  is  bailable,  or  fuch  as  the  law  requires  the  de- 
tenfion  in  prifon.  A  warrant  without  the  caufe  exprefled,  is  a  void  one,  and 
imprifonment  on  it  illegal,  and  fo  it  was  adjudged  in  Charles  the  Firfl's 
reign,  though  done  by  the  fecretaries  of  ftate,  by  the  king's  authority,  with 
the  advice  of  his  council  ;  thirdly,  the  warrant  muit  not  only  contain  a  law- 
ful caufe,  but  have  a  legal  conclufion,  and  kimfafely  to  keep  until  delivered  by 
law  ;  not  until  the  party  committing  doth  farther  order,  for  that  would  be 
to  make  the  magi  (Irate,  who  is  only  miniftcrial^  judicial  ,  as  to  the  point  of  the 
liberty  of  the  fubject  ;  from  whence  might  redound  great  mifchief  to  the 
party  on  one  hand,  or  to  the  king  and  public  on  the  other,  by  letting  an 
offender  efcape. 

LET  us  fee'  how  far  the  law  warrants  a  private  perfon  to  take  another, 
and  commit  him  to  prifon.  Firfl,  then,  if  a  man  is  prefent  when  another 
commits  treafon,  felony,  or  notorious  breach  of  the  peace,  he  hath  a  right 
inftantly  to  arrefl  and  commit  him,  left  he  mould  efcape  if  any  affray  be 
made,  to  the  breach  of  the  peace,  any  man  prefent  may,  during  the  con- 
tinuance of  the  affray,  by  a  warrant  in  law,  in  order  to  prevent  imminent 
mifchief,  reft  rain  any  of  the  offenders  ;  but  if  the  affray  is  over,  fo  that  the 
danger  is  perfectly  pad,  there  is  a  neceffity  of  an  information,  and  an  ex- 
prefs  warrant  ;  fo,  if  one  man  wounds  another  dangeroufly,  any  perfon  may 
arreft  him,  that  he  be  fafely  kept,  until  it  be  known  whether  the  party 
wounded  mall  die  or  not.  Sufpicion,  alfo,  where  it  is  violent  aikl  ftrong, 
is,  in  many  cafes,  a  good  caufe  of  imprifonment.  Suppofe  a  felony  done, 
and  the  hue  and  cry  of  the  country  is  raifed,  to  purfue  and  take  the  offen- 
der, any  man  may  arrefl  another  whom  he  finds  flying  ;  for  what  greater 

A.  a  a  prefuuiption 


370  LECTURES     ON     THE  LECT.  41. 

prefumption  of  guilt  can  there  be,  than  for  a  perfon,  inftead  of  joining  the 
hue  and  cry  as  his  duty  prompts  him,  to  fly  from  it  ?  His  good  character 
or  his  innocence,  how  clear  it  may  after  appear,  mail  not  avail  him.  His 
imprifonment  is  lawful. 

ANOTHER  lawful  caufe  of  arrefting  and  imprifoning  upon  fufpicion  is,  if 
a  treafon  or  felony  is  certainly  done  ;  and  though  there  is  no  certain  evi- 
dence againft  any  perfon  as  the  perpetrator,  yet  if  the  public  voice  and  fame 
is,  that  A  is  guilty,  it  is  lawful  for  any  man  to  arreft  and  detain  him.  So, 
if  a  treafon  or  felony  be  done,  and  though  there  be  no  public  fame,  any 
one  that  fufpe&s  another  for  the  author  of  the  faft  may  arreft  him.  But 
let  him  that  fo  doth,  take  care  his  caufe  of  fufpicion  will  be  fuch  as  will  bear 
the  teft  ;  for  otherwife  he  may  be  punifhable  for  falle  imprifonment.  The 
frequent  keeping  company  with  a  notorious  thief,  that  is,  one  that  had  been 
convicted,  or  outlawed,  or  proclaimed  as  fuch,  was  a  good  caufe  of  impri- 
fonment. Laftly,  a  watchman  may  arreft  a  night-walker  at  unfeafonable 
hours  by  the  common  law,  however  peaceably  he  might  demean  himfelf  j 
for  (trolling  at  unufual  hours  was  a  juft  caufe  of  fufpicion  of  an  ill  intent. 
With  refpe£t  to  perfons  arrefted  by  private  authority,  I  muft  obferve,  that 
the  law  of  England  fo  abhors  imprifonment,  without  a  certain  caufe  fhewn, 
that  if  there  is  not  an  information  on  oath  fworn  before  a  magiftrate,  and 
his  commitment  thereon  in  a  competent  time,  which  is  efteemed  twenty- 
four  hours,  the  perfon  is  no  longer  to  be  detained  j-. 

SUCH  is  the  law  of  England  with  refpect  to  the  perfonal  liberty  of  the 
fubje£t.  Let  us  now  fee  the  remedies  the  law  provides  for  tbofe  that  fuffer 
by  its  being  infringed  :  the  writ  of  odio  &  atia  I  have  already  mentioned, 
and  that  it  is  long  fmce  out  of  ufe  :  the  moft  ufual  way  then  to  remedy  this, 
and  to  deliver  the  party,  is  the  writ  of  habeas  corpus,  in  obedience  to  which, 
the  perfon  imprifoned  is  brought  into  court  by  the  meriff,  who  is  the  keeper 
of  the  prifon,  together  with  the  caufe  of  his  caption  and  detention,  that  the 
court  may  judge  whether  the  firft  taking  was  lawful ;  and  it  it  was,  whether 
the  continuance  of  the  imprifonment  is  fuch  j  and  this  is  brought  in  the 
name  of  the  party  himfelf  impriibned, 

THE 

•\    2   Inftitut.  p.  51. — 55. 


LECT.  41.  LAWS    OP     E  N  G  L  A  N  I).         371 

the  writ  de  /JOMI/IC  rcplegiiimlo,  of  r  ;  a  man,  that  is, 

delivering  him  out  upon  fccurity,  t •>  r  what  may  be  objected  againft 

liim.     '1'his  is  moil  commonly  uic-d  \\ln-n  a  per  Ion  is  not  in  the  legal  pr, 
but   perhaps  carried  oil"  1>\  private  violence,  and  fecreted  from  his  friends, 
and  therefore  may  be  brought  by  a  near  friend  having  intereft  in  the  perfon's 
liberty,   as  by  a  father,   or   mother,   for  th<  I,   or  a  hulband   for  hU 

wife.  Thefe  are  the  remedies  for  reftoring  a  perlbn  unjuftly  deprived  of 
liberty,  to  the  enjoyment  of  that  invaluable:  blelling.  But  very  deficient 
would  thefe  remedies  he,  if  there  were  no  proviiions  made  for  the  punifh- 
ment  of  a  perfon  oflending  againfl  his  natural  right,  nor  any  relief  for  the 
perfon  unjuftly  aggrieved. 

FOR  the  point  of  punifhment,  an  indictment  will  lie  at  the  king's  fuit, 
againft  the  falfe  imprifoner,  grounded  on  this  ftatute,  for  the  vindication  of 
the  public  juftice  of  the  nation  ;  and  the  party,  if  found  guilty,  fhall  be 
punifhed  by  fine  and  imprifonment.  For  the  relief  of  the  perfon  injured, 
he  may  have  an  action  of  falfe  imprifonment,  wherein  he  (hall  recover  dama- 
ges ;  or  an  action  on  the  cafe  grounded  on  this  ftatute,  wherein  he  fliall 
have  the  fame  remedy.  For  Coke  obferves  on  this  ftatute,  that  it  is  a  gene- 
ral  rule,  where  an  act  of  parliament  is  made  againft  any  public  mifchief  or 
grievance,  there  is  either  given  exprefsly,  or  elfe  implied  by  the  law,  an 
action  to  the  party  injured. 

SUCH  is  the  antient  original  law  of  England  with  refpect  to  liberty  ;  and 
fo  different  from  that  of  other  nations  of  Europe,  at  leaft,  as  their  laws  are 
underftood  and  practifed  at  prefent,  where  a  man  may  be  imprifoned  with- 
out knowing  his  crime  or  accufer,  or  having  any  means,  except  of  humble 
petition,  to  be  brought  to  his  trial.  It  is  therefore  no  wonder  that  the  peo- 
ple on  the  continent  envy  much  the  fituation  of  the  fubjcds  of  thefe  illands, 
when  they  contemplate  their  own. 

THE  next  branch  of  the  ftatute  is,  Nu/fus  liber  homo  difftizctur  de 
tenementofuo,  vel  libertatibiu*  vcl  libcris  confuetu<i\mb\         .     Here  it  may  be 
thought  the   word  libt'r  homo  iliould  be  rellrained  to  freeholders,  becaufc 
none  others  can  be  difleized  ;  but  the  following  words,  libertatibus  and  con- 
fuetudinibits,  lead,  by  their  import,  to  a  more  enlarged  conduction,  and 

A  a  a  2  take 


37^  LECTURES     ON     THE  LECT.  41. 

take  in  all  the  fubjefts ;  fo  that  diffeizetur  mufl  not  be  taken  in  its  limited 
peculiar  fenfe,  but  rather  in  general  for  deprivetur.  Firft,  then,  no  freehol- 
der {hall  be  difleized  of  his  freehold,  but  by  verdift  of  a  jury,  or  by  the 
law  of  the  land,  as  upon  default,  not  pleading,  or  being  outlawed.  It  was 
made  to  prevent  wrongful  entries,  by  luch  as  had  right  or  pretended  right 
to  the  land,  in  order  to  avoid  breaches  of  the  peace  and  bloodfhed,  which 
often  enfued  thereon  j  but -it  was  not  intended  to  take  away  the  entry  of  a 
perfon  who  had  a  right  to  enter  given  him  by  law,  for  that  the  law  could 
never  conftrue  a  diffeizen,  which  is  a  wrongful  diverting  of  the  freehold. 

To  underftand  this,  it  is  neceflary  to  obferve,  that  a  man  may  have  right 
to  the  lands,  and  yet  no  right  to  enter  upon  them  ;  or  he  may  have  both  ; 
and  in  the  laft  cafe  it  is  no  diffeizen.  If  A  difieizes  B,  he  mail  never,  by 
his  own  wrongful  act,  deprive  B  of  the  right  of  poffeffion  ;  but  he  may  of 
his  own  authority  enter  at  any  time,  during  A's  life,  provided  he  doth  it 
without  breach  of  the  peace.  But  if  A  is.  dead,  now  the  lands  being  thrown 
by  the  law  upon  A's  heir,  who  had  no  hand  in  the  wrong,  and  who  is  an- 
fwerable  to  the  Lord  Paramount  for  the  fervices  due  from  the  land,  B  has, 
by  his  own  negligence,  in  not  entring,  or  if  he  could  not  enter,  claiming, 
during  A's  life,  loft  the  right  of  pofleffion  ;  it  is  transferred  to  A's  heir, 
and  B  mufl  recover  his  right  by  a  fuit  at  law. 

To  fee  what  is  meant  by  libert&tibtu.  It  comprehendeth,  in  the  firft  place, 
the  laws  of  the  realm,  that  every  man  fhould  freely  enjoy  fuch  advantages 
a-nd  privileges  as  thefe  laws  give  him.  Secondly,  it  fignifies  the  privileges 
that  fome  of  the  fubjefts,  whether  fmgle  perfons,  or  bodies  corporate,  have 
above  others,  by  the  lawful  grant  of  the  king  ;  as  the  chattels  of  felons  or 
outlaws,  and  the  lands  and  privileges  of  corporations.  Hence  any  grant 
of  the  king,  by  letters  patent  to  any  perfon,  which  deprives  another  fub- 
jeft  of  his  natural  right  and  free  liberties,  is  againft  this  branch  of  Magna 
Charfa,  as  are  all  monopolies,  which  were  fo  plentifully  and  fo  oppreffively 
granted  in  the  reigns  of  Elizabeth  and  James  the  Firft,  and  here  in  Ireland, 
in  that  of  Charles  the  Firft.  We  muft,  however,  except  fuch  monopolies 
as  are  erected  by  aft  of  parliament,  or  by  the  king's  patents,  purfuing  the 
directions  of  an  aft  made  for  that  purpofe.  f . 

LASTLY, 

f    2  Inft.  p.  47. 


T.  41.  L  A  W  S    OF    EN  GL  A  X  I). 

1    .     i.y,  ConfuctuJinibiu  takes  in  and   prcfcrvcs  thole  local  cuftoms 
many  p:  ughnd,  \\hich,  though  tl.  ira  the  common  1 

arc   JfCt  COUntCniOOcd  and  acknowledged    as    part  of  the   general  iyllcn. 
hi\v.    It  allo  exti  nils  to  any  privileges  which  a  iu  'on, 

..if,  dray,  and  the  like  f. 

next  claufe    is,   aut   uthigciur  ;  ot   \vhich  having  fpok< 
flrall  pals  on  to  the  fomth,   aut  cxuklur.      No  man  ilmii 
the  realm,  riifi  per  kgcm  terra  ;  for  thcjuJifium  par'nim  is  out  oi 
there  being  no  crime  of  which  a  man  is  convicted,  whofe  fentcncc  is  banifli- 
ment.     The   tninfpvrtation  now  commonly  ufed   for  (lighter  i   is  not 

like  it  ;  for  that  is  by  the  free  confent  of  the  criminal,  who  dcfires  to  com- 
mute a  heavier  punifhment  for  a  (lighter.     Now  per  legcm  terra  a  man  . 

I  \ilcd  two  ways,  either  by  aft  of  parliament,  as  fome  wicked  minions  of 
our  former  kings  were,  and  particularly  Richard  the  Second's  corrupt  jiu: 
into  Ireland  ;  or  by  a  man's  abjuring  the  realm  when  accufed  of  felony, 
that  is,  (wearing  to  depart  out  of  the  kingdom,  never  to  return  ;  which 
latter  is  long  fmcc  fallen  into  difufe.  Coke  fays,  that  the  king  cannot  fend 
any  fubjeft  againfl  his  will  to  ferve  him  out  of  the  realm,  and  the  reafon  is 
ftrong  ;  for  if  he  could  under  pretence  of  fervice,  he  might  tear  him  from 
his  family  and  country,  and  tranfport  him  to  the  remoteft  corner  of  the 
earth,  there  to  remain  during  the  whole  of  his  life  {.  But  what  (hall  we 
fay  as  to  the  military  tenants,  who  by  the  very  tenure  of  their  grants  were 
obliged  to  ferve  the  king  in  his  wars  out  of  the  realm  ?  Certainly,  whilft 
the  feudal  fyftem  retained  its  priftine  vigour,  and  perfonal  fervice  was  re- 
quired, they  were  an  exception  to  this  rule  ;  but  when  the  commutation  of 
efcuage  was  eftablifhed,  they  were  confidered  as  under  it.  Indeed  their  ge- 
neral readincfs  to  attend  their  king's  fervice  in  perfon,  gave  no  occafion  for 
this  queftion's  ever  being  decided.  The  famous  cafe  on  this  point  was  in 
Edward  the  Third's  reign  ;  that  prince  had  made  many  grants  to  Sir  Rich- 
ard Pembrige,  fome  (orjervitn  itnpenfo,  others  forfervitio  impendendo.  The 
king  commanded  him  to  ferve  in  Ireland,  as  his  Lord-deputy,  which  he  po- 
fitively  refufed  to  do,  looking  upon  the  appointment  as  no  better  than  an 

exile  \ 

.f    2  Inftt.  p.  47.  J  Ibid, 


374  LECTURES     ON     THE  LECT^I. 

exile  ;  and  for  this  refufal  the  king  feized  all  that  had  been  granted  to  him 
profervitio  impendendo ;  and  the  queftion  came  on  in  court,  whether  the 
feizure  was  lawful.  The  judges  clearly  held  the  refufal  lawful,  and  there- 
fore would  not  commit  him  to  prifon  ;  but  as  to  the  feizure,  in  confequence 
of  the  words  profervitio  impendendo,  without  fpecifying  where,  they  thought 
it  juftified.  But  Coke  fays,  "  it  feemeth  to  me  that  the  feizure  was  un- 
"  lawful."  l^orprofervitio  impenfo,  and  impendendo,  muft  be  intended  of  law- 
ful fervice  within  the  realm.  The  laft  time  this  a&  was  violated  was  in  the 
reign  of  the  mifguided  James  the  Firfl,  in  the  cafe  of  the  unfortunate  Sir 
Thomas  Overbury  ;  who  for  refufing  to  go  ambafiador  to  Mufcovy,  was 
by  that  prince  fent  to  the  Tower,  in  which  place  he  was  afterwards  barba- 
rouily  poifoned  ;  and  for  his  murder  the  favourite  Somerfet  and  his  coun- 
tefs  were  both  condemned  to  die  f . 


f  2  Inft.    p.  48. 


L  E  C  T  U  R  K 


T.  42.         LAWS    OF     ENGLAND.          375 


LECTURE         XLII. 

Continuation  of  the  commentary  on  Magna  Charta. 

TIIK  fifth  branch  of  this  ftatute  is  in  very  general  terms;  it  is,  aut 
aliquo  modo  deftniatur.  "  De/lruflivn"  is  a  word  of  very  general  im- 
port. Coke,  in  the  firft  place,  explains  it  by  faying,  "  no  man  (hall  be  1< 
"  judged  of  life  or  limb,  or  put  to  the  torture  or  death,  without  legal 
"  trial."  But  he  mews,  afterwards,  by  his  inihinccs,  that  it  is  much  more 
extenfive  :  For  he  obferves,  that  "  when  any  thing  is  prohibited,  every  thing 
"  is  prohibited  which  neceflarily  leads  to  it."  I'.very  thing,  tl; 
openly  and  vifibly  tending  to  a  man's  deftrucYion,  cither  as  to  life,  limb,  or 
the  capacity  of  fuftaining  life,  is  hereby  diredly  forbid  :  So  that,  torture, 
as  it  endangers  life  and  limbs,  and  may  prevent  a  man  from  earning  his 
livelihood,  is,  on  all  thefe  three  accounts,  unlawful,  though  common  among 
all  other  nations  of  Europe,  who  have  borrowed  it  from  the  old  Roman  law 
with  refpect  to  Haves  ;  a  plain  indication  in  what  light  the  introducers  of  it 
looked  on  their  fubje&s.  It  cannot  be  faid  that  this  hath  never  been  vio- 
lated in  England  in  arbitrary  times  ;  (as  what  nation  is  there,  whofe  fun- 
damental laws  have  not  been,  on  occafion,  violated?)  yet,  in  five  hundred 
years,  I  do  not  believe  the  Englifli  hiftory  can  afford  ten  inftancesf. 


FOR  the  fame  reafon,  "judging  a  man,  either  in  a  civil  or  criminal 
"  without  calling  him  to  anfwer  and  make  his  defence,"  is  againit  this  pro- 
vifion.  So  likewife  is  "  the  not  producing  the  witnefies,  that  the  party 
"  may  have  an  opportunity  to  crofs-examine  them,*'  I  believe,  if  they  may 
be  had.  For  in  the  cafe  of  death,  or  abfencc  in  a  foreign  country,  that 
they  cannot  be  produced,  there  is  an  exception,  for  very  necellity's  fake  ; 
and  in  that  cafe,  the  examination  of  fuch  perfon,  taken  before  a  proper  ma- 
giftrate,  is  good  evidence,  tho*  thereby  the  party  loies  the  crofs-examina- 
tion  or  information  againft  the  murderer.  But  whenever  this  happens,  the: 

jury 
t  2  Inft,  p.  48. 


376  LECTURES     ON     THE  LECT.  42. 

jury  mould  confider  that  the  party  has  loft  the  benefit  of  the  crofs-exami- 
nation,  and  have  that  in  their  contemplation,  when  they  are  preparing  to 
give  their  verdift.  Diredly  contrary  to  this  fundamental  law,  and  to  com- 
mon juftice,  was  the  trial  of  Sir  Walter  Raleigh,  conduced  by  Coke,  at- 
torney-general, upon  the  depofitions  of  people  who  might  be  brought  face 
to  face.  For,  notwithstanding  the  perfed  knowledge  of  that  great  lawyer 
in  the  laws  of  England,  he  was  a  moil  time-ferving  minifter  of  the  crown. 
The  people  of  thefe  nations  are  much  indebted  to  him  for  his  excellent 
writings  on  the  law,  and  more  for  demonftrating  the  antient  right  of  the 
people  of  England  to  the  liberties  they  claimed  :  But,  if  we  confider  that 
he  was  then  in  difgrace  at  court,  I  fear  this  panegyric  muft  be  confined  to 
his  behaviour  while  a  judge,  which  was  without  reproach ;  nor  did  he  he- 
fitate  to  forfeit  the  favour  of  the  crown,  by  oppofmg  incroachments  on  the 
law  of  England. 

As  tending  to  dejiruclion  ;  it  is  likewife  unlawful  to  amerce  or  fine  a  man 
convi&ed  of  a  crime,  beyond  what  he  has  a  poffibility  of  paying  ;  for  that 
would  tend  to  perpetual  imprifonment,  and  difabling  him  from  maintaining 
himfelf  and  family.  Neither  is  it  lawful,  tho'  a  man  .be  indi&ed  of  treafon 
or  felony,  for  the  king  to  grant,  or  even  to  promife,  the  forfeiture  of  his 
lands  or  goods ;  for  this  would  be  throwing  a  temptation  in  the  way  of 
others  to  fuborn  witnefles  to  his  deftru&ion.  Thefe  I  mention,  only  as  par- 
ticular inftances,  to  open  the  import  of  this  law ;  but  the  words  -are  aliquo 
modo  deftruatur^  taking  in  "  every  thing  that  dire&ly  tends  to  deftrucYion." 
And  it  muft  be  obferved  that  thefe  words,  aliquo  modo,  are  not  in  any  other 
branch  of  this  aft. 
* 

I  COME  now  to  the  laft  claufe  of  this  firft  part,  nee  fuper  cum  ibimus,  nee 
fuper  cum  mittemus,  nifi  per  legate  judicium  pariumfuorum,  autper  legcm  terra. 
I  obferved  before,  from  the  words  here  being  in  the  firft  perfon,  that  they 
refer  to  the  fuit  of  the  king  ;  and  they  relate  not  only,  by  the  latter  words, 
to  a  legal  trial,  as  to  matter  and  form,  but  alfo  to  a  trial  in  a  proper  and  le- 
gal court.  The  words  nee  fuper  eum  ibimus  belong  to  the  King's  Bench,  where 
the  fuits  of  the  king,  the  placlta  corona,  are  properly  handled,  and  where 
the  king  is  always  fuppofed  to  be  prefent.  The  words  fuper  eum  mlttemus 

refer 


tier.  4*         LAWS     OF     E  N  G  L  A  N  D.          377 

rd'cr  to  other  courts  fitting  for  the  fame  purpofes,  as  Juflicc  of  gaol-dclr- 
very,  for  inftance,  under  the  kind's  commi.;i;,n.  JJut  when  thofe  words 
art  coupled  \vith  the  following  ones,  per  1  ra,  they  carry  a  far. 

import ;  not  only  that  the  courts,  trying  the  king's  caufcs  mould  proceed 
according  to  the  law  of  the  land,  but  ti  courts  themfelvcs  fhould  be 

fuch  as  the  /t.v  terra  authorizes ;  that  is,  either  the  common  law,  from  time 
immemorial,  or  acts  of  parliament.  So  that  the  king  hath  no  power,  of 
own  authority,  to  form  new  criminal  courts,  as  he  may  civil  ones.  In  fome 
cafes,  he  appoints,  indeed,  the  judges  of  the  courts  of  common  law,  and 
illues  commiflions,  and  appoints  the  commimoners  in  tri-ninal  courts  au- 
thorized by  parliament ;  but  no  farther  doth  his  power  extend. 

To  this  it  may  be  objected,  that  the  king  may  create  a  county  palatine, 
and  confequcntly  new  criminal  courts ;  but  let  this  be  confidered  :  Counties, 
and  duchies,  fuch  as  we  call  palatine^  were,  I  may  fay,  indeed  of  the  eflencc 
of  a  feudal  kingdom,  as  ours  originally  was  ;  that  is,  the  king  might  dif- 
incmber  a  part  of  his  kingdom  from  the  immediate  fubjection  to  the  crown, 
transfer  a  fubordinate  degree  of  the  legal  rights  to  a  fubject ;  and  when  a 
county  of  that  kind  was  created,  without  faying  any  more,  all  the  courts, 
not  new  ones,  but  the  fame  that  were  at  common  law  through  the  whole 
kingdom,  followed  as  incidents ;  in  the  fame  manner  as  by  erecting  a  new 
county,  not  palatine,  it  had  its  county-court,  and  the  fheriff's  tourne. 
Thefe  are  not  erecting,  properly  fpeaking,  new  courts,  fo  much  as  bring- 
ing the  old  ones  home  to  the  doors  of  the  people  of  that  diflrict. 

As  I  obferved  at  the  beginning,  this  law  naturally  divides  itfelf  into  two 
parts,  the  firft  ending  at  the  words  per  legem  terra.  Having  made  fuch  ob- 
fervations  iis  have  occurred  to  me  as  neceflary  or  material  for  the  under- 
{landing  thereof,  I  now  proceed  to  the  latter  part  of  this  ftatute,  which 
runs  in  thefe  words  :  Nulli  icndcmus^  nulli  ncgabimits^  aut  defcrcmus  juftltiam^ 
I'd  rcclum.  Some  have  imagined  that,  by  thefe  words,  in  the  disjunctive, 
are  meant  common  law  and  equity  j  but  courts  of  equity,  and  proceedings 
in  cafes  of  equity  in  thofe  courts,  were  not  known  in  times  fo  early ;  and 
the  legal  fignification  of  refium  in  old  ftatutes,  and  law-books,  is  either  the 
right  that  a  man  hath  to  a  thing,  or  the  law  of  the  land,  the  means  of  at- 
taining the  poflemon  and  enjoyment  of  that  right ;  and  in  that  lenfe  it  is 

B  b  b  here 


378  LECTURES     ON     THE  LECT.  42. 

here  to  be  taken ;  as  Coke  fays,juftice  is  the  end,  reflum  the  means,  name- 
ly, due  procefs  of  law  ;  neither  of  which  is  to  be  fold,  denied,  or  delayed 
to  the  fubjeft.  In  order  to  underfland  this,  it  will  be  necefiary  to  point 
out  fome  of  the  mifchiefs  that  were  before  this  aft,  which  is  the  fureft  way 
to  expound  the  meaning  of  any  law  f. 

FOR  this  purpofe  it  is  to  be  remembered,  that,  in  the  Saxon  times,  almofl 
all  fuits,  except  between  grandees,  were  expedited  in  the  county-courts. 
I  have  obferved  before,  that  the  Conqueror  and  his  fucceflbrs  difcouraged 
thefe,  and  encouraged  fuits  in  the  Aula  Regis,  or  king's  courts  ;  and  that  the 
fubje&s  were  fond  of  fuing  there  ;  but  (till  it  was  a  matter  of  favour,  where 
the  caufe  properly  belonged  to  the  country  jurifdiftions,  and  could  not  be 
demanded  as  a  right.     As  a  matter  of  favour,  it  might  be  denied  by  the 
king,  or  his  chancellor,  who  was  the  iffuer  of  the  original  writs,  unlefs  a 
fum  of  money  was  paid,  fuch  as  they  demanded.     This  was  felling  juftice. 
Or,  if  the  perfon  to  be  fued  was  a  favourite  of  the  king,  or  chancellor,  the 
writ  might  be  denied  ;  this  was  denying  juftice.     Or,   if  it  was  granted,  as 
the  proceedings  were  ex  gratia,  the  party  might,  ad  libitum,  be  delayed  by 
the  judges,  or  the  caufe  might  be  flopped  by  order  of  the  king,  and  this* 
was  the  deferring  of  juftice,  meant  by  this  a<Et,  which  was  intended  for  the 
giving  every  fubjecl:  a  right,  in  all  cafes,  and   againft  all  perfons,  to  have 
juftice  adminiftred  to  him  in  the  king's  courts.     The  chancellor  now  is- 
hereby  obliged  inftantly  to  iffue  all  original  writs,  and  the  judges  of  the  fe- 
veral  courts,  where  caufes  depend,  to  iffue  the  proper  judicial  ones  without 
fee  or  reward.     This,  however,  is  not  fo  to  be  underftood,  as  to  prohibit 
the  moderate  and  accuftomed  fees,  which,  from  time  immemorial,  have 
been  paid  to  the  officer,  for  his  trouble  in  making  them  out,  or  to  the 
judge,  for  putting  the  feal ;  for  thefe  are  a  part  of  their  livelihood,  but  on- 
ly thofe  arbitrary  fums  which  were  before  taken,  and  which  the  ftate  pro- 
perly calls  the  felling  of  juftice.     So  likewife  the  judges  are  obliged,  in* 
every  caufe  before  them,  to  proceed  with  expedition,  and  to -fuftcr  no  de- 
lays, but  fuch  as  the  law  allows,  and  requires,  for  giving  each  party  an  op- 
portunity of  defence,  and  of  laying  his  caufe  fully  before  the  court, 

HOWEVER> 
]•  2  Inftitut.     p.  55,  56- 


LECT.  42.          LAWS     OF     E  N  G  L  A  N  I).          379 

HOWEVER,  notwithilanding  this  aft,  the  evil  was  often  repeated,  and 
many  fuit,s  Hopped  by  the  command  of"  the  king,  and  others,  as  appears  by 
four  fcvcral  acts  of  parliament,  made  to  enforce  and  explain  thi->  one,  the 
fubftance  of  which  afts,  is  fummoned  by  Coke  in  thcfc  words  :  That  "  by 
*'  no  means  common  right,  or  common  law,  mould  be  diflurbcd  or  de- 
"  layed ;  no,  though  it  be  by  command,  and  under  the  great  feal,  or  pr 
"  feal,  order,  writ,  letters,  meflage,  or  commandment  whatfoevcr,  either  from 
"  the  king,  or  any  other  ;  and  that  the  juflices  mall  proceed,  as  if  no 
"•  fuch  writs,  letters,  order,  meflage,  or  other  commandment,  were  come 
*«  to  them."  However,  this  is  not  to  be  underftood  fo  ftri&ly,  but  that 
the  king  may  flop  his  own  civil  fuit  that  he  hath  inftitutcd  for  his  own  be- 
nefit, as  a  capias  for  a  fine,  becaufe  qttifque  juri  fuo  renunciare  potc/l;  and 
this  ftoppage,  in  truth,  is  for  the  benefit  of  the  fubject.  It  is  otherwife  in 
criminal  accufations,  unlcfs  he  can  (hew  good  caufe  to  the  court  to  put  it 
oil'.  For  every  man  accufed  has  a  right  to  be  brought  to  his  trial  f . 

NEITHER  are  legal  protections  within  the  prohibition  of  this  law  ;  thefe 
were  granted  to  (lop  fuits  againft  any  man  that  was  perfonally  employed  in 
the  fervice  of  the  king,  and  were  founded  on  this  prefumption,  that  fuch 
fervice  was  for  the  public  benefit,  to  which  all  private  regards  muft  give 
way.  But  then  thefe  protections,  mufl  be  legal  ones,  fuch,  and  none  other, 
as  are  found  in  the  Regifter,  the  antientefl  book  of  the  law,  and  not  ones 
newly  devifcd,  and  for  new-fangled  caufes.  Thefe  protections,  however, 
were  greatly  abufed  in  the  fequel ;  favourites,  and  their  dependants,  fre- 
quently obtaining  them,  to  hinder  others  of  their  juft  rights,  under  pretence 
of  ferving  the  king  ;  where  in  truth,  there  was  no  fuch  thing.  It  is  there- 
fore recorded,  highly  to  the  honour  of  Elizabeth,  that  (he  fir  (I  difcontinued 
the  granting  them  ;  and  her  laudable  example  has  been  followed  by  all  her 
fucceflbrs.  I  mail,  therefore,  not  dwell  upon  them,  it  being  fufficient  to 
have  mentioned  that  fuch  things  there  are,  or  at  lead  were  in  our  law. 

I  HOPE  the  prolixity  with  which  I  have  treated  of  this  chapter  of  Magna 
Charta,  the  care  I  have  taken  to  open  the  true  meaning  and  force  of  every 
word  in  it,  and  the  many  tacit  exceptions  each  part  of  it  is  fubjeft  to,  will 
be  excufed,  when  it  is  confidered,  that  it  not  only  contains  great  variety  of 

B  b  b  2  matter, 

f  2  Inftitur.  p.  56. 


• 

380  L  ECTURESoN     THE  LECT.  42. 

matter,  but  is  the  mod  important,  and  of  more  general  confequence  and 
concern,  than  any  other  law  of  the  land.  It  is  the  guardian  of  the  life,  the 
liberty,  the  limbs,  the  livelihood,  the  pofieflions,  and  to  the  right  to  juftice 
of  every  individual,  and  therefore  it  concerns  every  man  to  know  it,  and 
fully  to  underftand  it. 

THE  thirtieth  chapter  is  in  favour  of  commerce  and  merchant  ftrangers. 
Certain  it  is,  that,  in  antient  times,  the  kings  of  Europe,  and  their  military 
fubjefts,  looked  on  merchandize  as  a  difhonourable  profeffion ;  as  did  the 
Romans  alfo,  in  the  military  ages  of   that  republic.     By  the  old  laws  of 
England,  no  merchants  alien  were  to  frequent  England,  except  at  the  four 
great  fairs  ;  and  then  were  permitted  to  flay  but  forty  days  at  a  time,  that 
is,  an  hundred  and  fixty  days  in  the  whole  year.     But  now  this  aft  has 
altered  the  former  law,  and  is  very  favourable  to  perfons  engaged  in  com- 
merce, who  before  were  little  better  than  at  fufferance.   It  commands,  that 
all  merchants,  namely,  merchant  ftrangers,  whofe  fovereign  is  in  amity 
with  the  king,  unlefs  publicly  prohibited,  that   is,  fays  Coke,  by  Parlia- 
ment, which  is  true,  as  the  law  hath  fmce  flood,  (but  before,  I  conceive  the 
king  himfelf  had  the  power  to  prohibit)  mall  have  fafe  and  fure  conduct  in 
feven  things.      Firfl,  to  depart  out  of  England  without  licence,  at  their 
will  and  pleafure.     Secondly,  to  come  into  England  in  the  fame  manner. 
Thirdly,  to  continue  in  England  without  limit  of  time.     Fourthly,  to  go 
and  travel  through  any  part  of  England  at  their  pleafure,  by  land  or  water. 
Fifthly,  free  liberty  to  buy  and  fell.     Sixthly,  without  any  manner  of  evil, 
tolls  or  taxes  ;  but  only,  Seventhly,  by  the  old  and  rightful  cuftoms,  that 
is,  by  fuch  duties  as  were  of  old  time  accuflomed  to  be  paid,  and  are  there- 
fore called  Cii/ioms.    By  this  law  the  king  is  prohibited  from  laying  any  new 
taxes  on  the  imports  or  exports  of  merchant  ftrangers.     And  as  now  they 
gained  a  general  licence  to  continue  in  the  realm,  from  hence  arofe  that 
privilege  of  merchant  ftrangers  to  take  leafes  for  years,  of  houfes  for  their 
dwelling,    and  warehoufes  for  their  goods,  whilft  they  continued  in  Eng- 
land \  for,  regularly,  all  acquifitions  of  aliens,  in  lands  or  tenements,  belong 
to  the  king  f » 


2  Inftitut.  p.  57.  et  feq.  Harrington  on  the  ftatutes.  p.  23.  25. 


LF.CT.  42.          L  A  WS    OF    E  N  G  L  AN  D.  381 

THE  fccond  branch  of  this  aft  is  a  very  equitable  one.  It  concerns 
merchant  enemies,  or  rather  fuch  merchant  ftrangcrs  as  came  in  friend*, 
and  afterwards  became  enemies,  by  a  war's  breaking  out  between  the  fove- 
rcigns  while  they  are  in  England.  It  provides  that,  on  a  war's  fo  break* 
ing  out,  the  pcrfons  and  effects  of  fuch  merchants  mould  be  fcizcd,  and 
fafely  kept  till  it  mould  be  known  how  the  Eriglifh  merchants  had  been 
treated  in  the  enemy's  country  ;  and  that,  if  they  were  well  treated,  thtfc 
mould  be  fo  too.  This  regulation,  however,  is  not  put  in  ufe  ;  becaufe,  by 
the  treaties  made  between  the  fovereigns  of  Europe,  it  is  ilipulated,  that, 
on  the  breaking  out  of  war,  the  merchants  in  each  others  country  mould 
have  a  certain  number  of  days  to  withdraw  thcmfelves  and  their  cflfeds. 
But  if  a  merchant  enemy  comes  into  the  country,  after  war  declared,  he  is 
to  be  treated  as  an  enemy  ;  to  which,  by  the  old  law,  now  antiquated,  there 
was  a  very  humane  exception,  that  of  perfons  driven  into  England  by  ftrefs 
of  weather. 


LECTURE 


LECTURES    -ON     THE  LECT.  43, 


A! 


LECTURE  XLIII. 

Continuation  of  the  commentary  on  Magna  Cbarta. 

S  I  have  dwelt  on  the  twenty-ninth  chapter  of  Magna  Charta  fo  long, 
and  treated  of  it  and  every  part  of  it  fo  minutely,  I  (hall,  in  this  lec- 
ture, difpatch  the  remaining  part  thereof  with  more  expedition.  Indeed, 
of  the  thirty-firft  I  would  have  faid  no  more,  than  merely  to  obferve,  that  it 
related  to  the  military  tenures  now  abolifhed,  were  it  not  proper  to  remark, 
that  it  was  made  to  enforce  the  old  feudal  law,  then  the  law  of  England, 
with  refpeet  to  landed  cftates,  and  to  reflrain  John's  fucceflbrs  from  the 
violences  he  had  introduced  in  favour  of  the  royal  prerogative,  to  the  detri- 
ment of  the  immunities  and  privileges  of  the  fubje&s.  It  has  been  already 
obferved  in  thefe  le&ures,  that  by  the  feudal  law,  efpecially  as  eftablifhed 
by  the  Conqueror  in  England,  the  king  was  very  amply  provided  for  with 
a  landed  eftate,  to  fupport  his  dignity  and  expences,  which  was  at  that  time 

( 

looked  on  all  over  Europe  as  unalienable,  except  during  the  life  of  the 
king  in  being  ;  and  that  the  reft  of  the  land  was  to  be  the  property  of  the 
free  fubje&s  of  the  realm,  fubjecl:  to  the  fervices  impofed,  and  the  other 
confequences  of  his  feignory  as  feudal  lord. 

ONE  of  thefe  confequences  was  the  efcheat  on  the  failure  of  heirs,  ei- 
ther by  there  being  none,  or  by  the  blood  being  corrupted  by  the  commif- 
fion  of  felony,  which  in  law  amounted  to  the  fame  thing ;  as  no  fon,  uncle, 
nephew,  or  coufm,  could  by  law  claim  as  heir  by  defcent  to  a  perfon 
attainted.  For  the  legal  blood,  the  title  to  the  inheritance,  failed  in  him 
the  laft  poffeffor,  by  his  breach  of  fealty  ;  and  every  heir  lineal  or  collateral 
by  the  law  of  England  being  obliged  to  claim  as  heir  to  the  perfon  laft 
feized,  muii  be  excluded,  when  the  legal  blood  inheritable  failed  in  the 
laft  poffeflbr. 

IN  confequence  of  thefe  efcheats,  which  often  happened  in  thofe  times, 
both  by  corruption  of  blood,  and  failure  of  heirs  inheritable,  (for,  as  I 

have 


LECT.  43.         LAWS     OF     ENGLAND.          383 

have  obferved  before,  the  granting  ftuda  anti^ua  ut  nova  was  introduced 
only  by  Henry  the  Second,  the  father  of  John,  and  were  not  at  this  time 
become  universal,  as  they  fmce  have  been)  John  introduced  this  new  maxim, 
that  when  an  earldom  or  barony  fell  to  the  crown  by  cfchcat,  he  held  it  in 
the  right  of  his  crown,  as  it  was  originally  derived  from  thence  ;  and  con- 
fequently,  that  the  tenants  of  the  former  lord,  being  now,  inflead  of  inter- 
mediate, become  immediate  tenants  of  the  crown,  held  of  him  in  capite,  as  it 
was  called  ;  that  is,  that  he,  by  this  cfcheat,  obtained  privileges  over  the 
tenants  of  the  former  lord,  which  he,  the  former  lord,  never  had,  or  could 
have,  but  which  he  claimed  as  king,  in  jure  corona.  Thefe  privileges  were 
many  in  number  ;  but  it  will  be  fufficient  to  mention  only  two  of  them, 
(hew  into  how  much  worfe  a  Hate  the  tenants  of  tliefc  efcheatcd  lordihips 
were  thrown,  by  being  confidered  as  tenants  in  capit-j. 

FIRST,  then,  the  king  had  from  his  tenants  in  capitc,  who  came  into  pof- 
feilion  of  their  lands  at  full  age,  inftead  of  relief,  to  which  fubject  lords 
were  intitled,  and  which  was  only  one  fourth  of  the  value  of  the  lands,  his 
primcir  feizin,  which  was  the  whole  year's  value.  Another  grievance  was 
with  refpecl:  to  the  wardfhip  of  military  tenants  under  age.  As  to  the  te- 
nants in  capite,  the  king  had,  by  his  prerogative,  a  right  not  only  to  the 
wardmip  of  the  perfon  of  his  minor  tenant,  and  of  the  lands  he  held  of  him 
in  capite,  but  alfo  of  all  other  lands  held  by  knight-fervice  of  any  other  per- 
fon. For  as  to  focage  lands,  they  were  to  be  in  the  hands  of  the  next  of 
kin,  to  whom  the  inheritance  could  not  defcend,  who,  at  the  infant's  full 
age,  was  to  be  accountable  for  the  profits :  and  under  the  pretence  of  fuch 
tenants,  upon  the  fuperior  lord's  efcheat,  becoming  tenants  in  capite,  John 
claimed  and  exacted  the  privilege,  to  the  detriment  of  the  other  lords. 
Thefe  and  other  mifchiefs,  for  others  there  were,  as  I  obferved  before,  and 
fome  of  them  are  mentioned  in  this  ftatute,  are  remedied  by  the  general 
provifion  which  reftored  the  feudal  law,  that  the  king  mould  hold  all  fuch 
efcheated  lordfhips  in  the  fame  right  they  were  before  held,  and  have  no 
other  privilege,  but  what  the  lord  by  whofe  efcheat  they  fell  to  him  had  : 
in  a  word,  that  he  fliould  hold  them  as  lord  of  that  lordihip,  not  as  king  f. 


THE 

f  2  Inftitut.  p.  .64. 


384  LECTURES     ON     THE  LECT.  43. 

THE  thirty-fecond  chapter  relates  to  the  alienation  of  lands,  and  gives  a 
qualified  power  of  that  kind.  By  the  feudal  law,  as  it  was  introduced  at 
the  Conqueft,  no  lord  could  alien  his  feignory  without  the  tenants  confent, 
fo  neither  could  the  tenant  his  tenancy,  without  approbation  of  the  lord. 
Thefe  flricl:  rules  were  firfl  broken  into,  in  thofe  fuperflitious  times,  in  fa- 
vour of  churchmen  j  afterwards,  in  Richard  the  Firft's  time,  to  raife  mo- 
ney for  the  holy  war.  Not  but  the  fubje&s,  by  their  infilling  on  Edward 
the  Confefibr's  laws,  of  which  free  alienation  was  a  part,  feemed  to  be 
fond  of  it.  However,  the  kings,  in  all  their  grants  of  the  old  Englifh  laws, 
were  careful  to  preferve  the  feudal  fyflem,  in  guarding  againft  the  alienation 
of  the  military  tenures.  Coke,  on  commenting  in  this  ftatutc,  in  order  to 
the  better  underflanding  thereof,  makes  three  obfervations  relative  to 
what  was  the  common  law  before  this  ftatute  ;  in  the  laft  of  which  I  appre- 
hend he  is  miftaken,  as  the  law  then  flood  ;  and  that  what  he  aflerts  there- 
in to  have  been  law  did  not  become  (fo  though  often  in  practice)  till  after 
the  flatute  quia  emptores  terrarum,  in  Edward  the  Firfl's  reign. 

His  firfl  obfervation  is,  that  the  tenant  might  have  made  a  feofFment  of 
the  whole,  or  a  part  of  his  tenancy,  to  hold  of  himfelf ;  and  no  doubt  but 
he  might.  This  was  the  ufual  cafe  of  fubinfudation,  by  which  the  lord 
was  in  no  fort  prejudiced  ;  for  his  feignory  remained  entire,  and  he  might 
diflrain  in  any  part  for  his  whole  fervice ;  and  in  fuch  cafe,  if  the  under 
tenant  was  aggrieved,  he  was  to  have  his  remedy  againft  his  immediate 
landlord  the  mcfne,  (or  middle  perfon),  as  he  is  called  in  our  law. 

THE  fecond  obfervation  is,  that  the  tenant  could  not  alien  in  fee  apart  of 
the  tenancy,  to  hold,  not  of  himfelf,  but  of  the  lord,  than  which  nothing 
could  be  more  reafonable  ;  for  it  would  have  been  againft  thefe  old  rules 
alfo,  for  a  tenant  to  bring  in  another,  as  immediate  vaffal  to  the  lord,  with- 
out his  the  lord's  confent.  The  tenant  would  by  that  means  difmember 
the  feignory,  which  he  received,  entire,  and  fo  deprive  the  lord  of  his 
right  of  diflraining  in  the  whole,  and  confine  him  merely  to  that  part  re- 
maining in  his  own  hands,  as  original  tenant.  For  as  to  the  part  of  the 
a/lienee,  he  could  not  diflrain  that  for  his  fervice,  there  having  been  no  feu- 
dal contract  between  them.  Such  alienation,  therefore,  unlefs  when  the 
lord  accepted  the  allienee  as  a  tenant,  was  a  breach  of  fealty,  and  againft 
the  old  feudal  principles,  and  confequently  unlawful  in  England. 

THE 


1.  A  \\   S    of     1    N  G  L  A  N   1)          385 

third  obfer  on  this  ftatute,  com- 

mon law  the  tenant  might  have   made  a   icollmcnt  </l  the  \\!i->i;  . 
to  be  holden  of  tin1  lord.      For,   fays  he,  that  was  no  prejudice  at  all  to 
lord  f.     But  though  this  certainly  prevailed  as  common  law,  long  b 
thcr  Coke  or  Littleton   wrote,    I   cannot  help  thin!.,  li  becaufe  it  was 

contrary  to  the  old  feudal  law,   and  alfo   from  the  words  of  the  ftatutc  quia 
cmptorcs  tcrrarum,  that   it  was  firft  introduced  by  t!ut  yj  t  of  parliament,  the 
•\vords  of  which  are,  de  catc ro  liccat  unicuiquc  li'ocro  homlni  terras  fuas^f 
nc men tti  fun  vcl  partem,   hide  vcndcre.      Here  the  alienating  the  uholc  i 
dared  from  henceforth  lawful ;  which  words  had  been  nugatory,  if 
had  been  common  law  before. 

THE  chapter  of  Magna  Charta  of  which  we  are  fpcaking,  was,  then,  the 
firft  pofitive  law  that  allowed  the  free  alienation  of  lands.  It,  in  one  fenfe, 
enlarged,  whilft  in  another  it  exprefsly  reft  rained,  the  power  of  the  tenant ; 
•whereas,  before,  he  might  alien  the  whole,  or  part  of  his  tenancy  in  fee, 
but  fubjed  to  the  diftrefs  of  the  lord.  Now,  by  this  ftatute,  he  was  confi- 
ned to  an  alienation  only  for  fo  much,  that,  out  of  what  remained,  the  lord 
might  have  fufficient  diftrefs  for  his  entire  fervice,  and  the  part  conveyed 
was  in  the  alienee's  hands,  free  from  any  future  diftrefs  by  the  lord,  or  fervice 
due  to  him,  fealty  only  excepted.  But  it  not  being  fpecified,  how  much 
of  the  land  was  a  fufficiency,  though  the  half,  or  what  was  the  half  in  value, 
was,  in  common  eftimation,  reputed  fuch,  the  tenants,  under  this  pre- 
tence, would  alien  more  ;  which  gave  occafion  to  many  difputes  and  fuits, 
and  the  propenfity  to  general  alienations  continuing,  the  law  called  quia  emp- 
tores  terrarum,  already  mentioned,  was  at  length  made,  which  gave  a  gene- 
ral licence  to  alien  the  whole,  or  a  part  at  pleafure,  to  hold  of  the  fuperior 
lord ;  and  this  put  an  end,  in  the  law  of  England,  to  fubinfudation  of  fee 
fimples.  For,  fmce  the  palling  that  law,  if  a  man  infeoffs  another  of  the 
whole  or  part  of  his  land,  there  is  no  tenure  between  the  feofier  and  feoffee, 
but  the  feoffee  holds  of  the  feoffer's  lord.  But  as  to  lower  eftates,  as  fee 
tail  eftates  for  life,  years,  or  at  will,  fubinfudation  remains  ;  becaufe  the 
whole  eftate  is  not  out  of  the  donor,  or  lefibr,  but  a  reverfion  remains  in 
him  ;  wherefore  the  tenure,  in  fuch  cafe,  is  of  the  donor  or  leflbn. 

C  c  c  BY 

•\  ^  Inft.  p.  65.— 67. 


386  L  E  C  T  U  II  E  S     ON    THK  LECT.  43. 

BY  the  ftatute  of  Magna  Charta,  in  cafe  of  alienation  of  part,  to  hold  of 
the  lord,  the  refidue  remaining  in  the  original  tenant's  hands,  was  to  anfwer 
the  fervices,  and  the  alienee  held  of  the  lord,  by  fealty  only.  But  now  by 
the  fecond  chapter  of  the  forementioned  flatute,  the  fervices  were  to  be  ap- 
portioned, that  is,  divided  in  proportion  to  the  value  of  the  lands.  If  half 
of  the  lands,  not  in  extent,  but  value,  was  aliened,  the  alienee  paid  half  i  if 
one  third,  the  like  quantity.  I  have  obferved  before,  on  this  ftatute  of 
qula  cmptores,  that  the  king,  not  being  named,  WLS  not  bound  by  it.  For 
his  tenant  in  capite  to  alien  without  licence  was  a  forfeiture,  until,  in  the 
reign  of  Edward  the  Third,  a  fine  for  alienating  was  fubftituted  in  the  place 
of  the  forfeiture,  which  fine  continued  until  the  reftoration,  when  it  was 
aboliflied. 

Tin-  thirty-third  chapter  provides,  that  the  patrons,  that  is,  the  heirs 
of  the  founders  of  abbeys,  who,  by  title  under  the  king's  letters  patent,  or 
by  tenure,  or  antient  polfeilion,  were  intitled  to  the  cullody  of  temporali- 
ties, during  the  vacancy  of  the  abbey,  mould  enjoy  them  free  from  molef- 
tation  of  any  perfon,  or  of  the  king,  under  the  pretence  of  the  prero- 
gative { . 

THE  thirty-fourth  chapter  is  relative  to  appeals  of  murder,  brought  by 
private  perfons.  When  a  man  is  murdered,  not  only  the  king,  who  is 
injured  by  the  lofs  of  a  fubjeft,  may  profecute  the  offender,  but  alfo  the 
party  principally  injured,  that  is,  the  widow  of  the  dcceafed,  if  he  had  one  ; 
for  ihe,  as  having  one  perfon  with  him,  (lands  intitled  to  this  remedy  in 
the  firft  place  ;  but  if  he  left  no  widow,  his  heir  at  law  might  purfue  it.  It 
follows,  therefore,  that  a  female  heir  might,  by  the  common  law,  have 
brought  an  appeal  of  murder,  as  the  daughter,  or  the  Mer,  if  there  had 
been  neither  children  or  brother.  But  this  ftatute  alters  the  common  law, 
and  takes  away  the  appeal,  in  fuch  cafe,  from  every  woman,  except  the 
widow ;  fo  that,  at  this  day,  if  a  man  be  murdered,  leaving  no  widow, 
and  his  next  heir  be  a  female,  no  appeal  of  murder  can  be  brought.  But 
this  difability  is  perfonal  to  women  ;  for  though  a  daughter  or  filter, 
living,  can  bring  no  appeal,  though  heir,  yet,  if  they  be  dead  before  the 
murder,  leaving  a  fon  who  is  heir,  he  may  bring  it  t. 

•J-  2  In  ft.  p.  68.     Harrington,  p.  25. 
"|  Ibid.  p.  6f.  65. 


LECT.  4  L  A  W  S     OF     E  N  G  L  A  K  1).         387 

I  SHALL  now  make  a  few  obicrvations  on  the  right  of  the  widow's  1) 
ing  fuch  appeal.     1'irft,  then,  the  man  flain   nmft  be  virfutu,  as   * 
tute  cxprellcs  it.     IK,  therefore,  they  had  been  divorced,  the  marriage  be- 
ing diflblved,  flie  could  not  have  an  appeal.     It  was  othcrwifc,  it   tlu-y  had 
been  only  It  -panned  a  menfd  &  tboro  ;    for   then  he  ftill  continued  her  hul- 
band.     lie  ceafes  like  wife  to  be  vir  fuus,  if  (he  ccafes  to  be  his   wife,  or 
widow.       Therefore,   by   her   marrying   again,   her  appeal  is  gone,  < 
though  the  fecond  huiband  fliould  die  within  the  year,  the  time  limited  for 
bringing  it.     This  is  carried  fo  far,  that  though  (he  brings  an  appeal  while 
a  widow,  yet  if  (lie  marries  while  it  is  depending,   it   (hall  abate  for  c 
So  if  (lie  has  obtained  judgment  of  death  againft  the  appellee,  if  flic  mar- 
ries before  execution,  me  can  never  have  execution  again  ft  him.      In  one 
point  the  heir  is  lefs  favoured  in  appeals  than  the  widow;  for  if  the  perfon 
murdered  had  been  attainted  of  high  treafon,  or  felony,  fo  that  his  blood 
was  corrupted,  the  heir  could  not  have  it  ;    for  the  civil  relation  between 
them  was  extinguished,  by  the  anceftor's  civil  death :    but  the  relation  of 
hufband  and  wife  depends  on  the  law  of  God,  who  has  declared  the  bond 
indiflbluble  ;  therefore  no  law  of  man  can  make  him  ceafe  to  be  vir  fuusj 
and,  in  fuch  cafe,  me  mail  have  an  appeal. 

THE  thirty-fifth  chapter  treats  of  the  county-courts f  ;  but  having  air 
in  a  former  lecture,  mentioned  what  appeared  to  me  fufficient  on  that  fub- 
jeft,  I  fhall  proceed  to  the  next,  viz.  the  firft  law  made  to  prevent  aliena- 
tions in  mortmain.  Lands  given  to  a  corporation,  whether  fpiritual  or  lay, 
are  faid  to  fall  into  mortmain,  that  is,  into  a  dead  hand,  an  hand  ufelefs  and 
unprofitable  to  the  lord  of  the  fee,  from  whom  he  could  never  receive  the 
fruits.  There  could  be  no  efcheat,  either  for  want  of  heirs,  or  felony,  bc- 
caufe  the  body  never  died,  nor  was  capable  of  committing  felony.  For  the 
fame  reafon  of  its  never  dying,  there  could  be  no  wardfhip,  or  relief;  nei- 
ther could  there  be  marriage.  But  befides  the  lofs  to  the  lords,  the  public 
alfo  fullered  ;  for  the  military  fervicc  the  lands  were  fubjecl  to,  were  often 
withdrawn,  or,  at  lead,  very  infufticiently  performed. 

TIIESK  alienations,  without  the  confent  of  the  fuperior  lord,  were  d!i 
againft  the  feudal  polity  ;  yet  fuch  was  the  power  of  the  clergy,  who  v 

C  c  c  2  tbe 

f  2  Inft.  p.  69.   74. 


388  LEG  T  U  RES     ON     THE  LECT.  43. 

the  principal  gainers  thereby,  in  thofe  ages,  and  fo  great  their  influence, 
that  they  were  not  only  tolerated,  but  univerfally  practifed,  through  alt 
Europe  ;  for  the  founding  of  a  monaftery  was  the  ufual  atonement  for  the 
mod  atrocious  crimes.  Jn  England,  particularly,  from  the  acceffion  of  the 
Conqueror  to  that  of  John,  containing  one  hundred  and  thirty-four  years, 
there  were  no  lefs  than  an  hundred  and  four  monafteries  founded,  many  of 
them  very  richly  endowed,  befides  particular  benefactions  made  to  them 
and  the  old  ones.  No  wonder,  then,  it  was  found  neceflary,  by  laws,  to 
put  a  ftop  to  the  growing  wealth  of  the  church ;  but  the  reign  of  John,  a 
vaffal  to  the  Pope,  was  not  a  time  to  expect  a  remedy.  Accordingly,  this 
act  goes  no  farther  than  to  remedy  a  collufive  practice,  by  which  a  vaflal,. 
to  defraud  his  lord  of  the  fruits  of  his  feignory,  made  over  his  lands  to  a 
convent,  and  took  it  back  to  hold  from  them  ;  and  to  that  end,  the  ftatute 
declares  the  land,  in  fuch  cafe,  forfeited  to  the  lord. 

I  SHALL  fay  no  more  on  this  point,  nor  of  the  many  cunning  practices 
churchmen,  in  after  times,  put  in  ufe  by  the  advice  of  the  mod  learned 
lawyers  they  could  procure,  in  order  to  creep  out  of  this,  and  every  other 
ftatute  made  to  reftrain  them,  arid  for  employing  which,  Coke  fays,  they 
were  much  to  be  commended.  But  he  has  forgot  to  tell  us  whether  he 
thought  thofe  great  lawyers  deferved  commendation,  for  finding  means  to 
elude  the  moft  beneficial  laws  of  the  land.  It  will  be  enough  here  to  fay, 
that,  from  thefe  devices,  arofe,  in  time,  the  wide-fpreading  doctrine  of  ufes 
and  trie/Is^  which  have  over-run  our  whole  law,  and  that  the  judicial  powers 
of  courts  of  equity  have  grown  with  them  j- .. 

THE  next  chapter  was  made  to  reflrain  the  intolerable  exactions  of  efcuage 
which  John  had  introduced,  and  forbids  the  afleffing  it,  in  any  other  man- 
ner than  was  ufed  in  the  time  of  Henry  the  Second,  his  father,  that  is,  as 
I  obferved  under  that  reign^  very  moderately  ;  fo  that  every  man  had  his- 
option,  whether  he  would  ferve  in  perfon,  or  pay  it  J. 

NEXT  comes  the  thirty-eighth,  which  is  the  conclufion.    Firft,  it  faves  to 
the  fubjects  all  other  rights  and  privileges  before  had,  though  not  men- 
tioned 

f  2  Inft.  p.  74,  75.     Harrington,  p.  27. 
^  Ibid.  p.  76.    See  alfo  i  Inft.Jib.  2.  cap.  Efcuage.    Barrington,  p,,2?. — 31; 


LECT.  43.  LAWS     OF     ENGLAND.  389 

tioned  la-rein.  Coke  obferves,  tluit  there  is  no  faving  for  the  prerogative  of 
the  king,  or  his  heirs  ;  for  that  would  have  rendered  all  illufory.  Secondly, 
it  ordains  that  the  king  and  his  heirs  fliould  obfervc  it.  Thirdly,  that  all 
the  fubjects  fliould.  Fourthly,  it  recites,  that,  in  confideration  hereof,  the 
king  received  from  the  fubjecls  a  grant  of  the  fifteenth  of  their  mnveables. 
For  Alagna  Charta  is  not  merely  a  declaration  of  the  old  laws,  but  alters 
them  in  many  inflances  ;  for  which  favourable  alterations  the  fubjcch  made 
this  grant,  and  thereby  became  purchafers  of  them.  Fifthly,  it  prohibite* 
the  king,  and  his  heirs,  from  doing  any  thing  whereby  thefc  liberties  might 
be  infringed  or  weakened  ;  and  declares  all  fuch  doings  null  and  void. 
Laftly,  comes  the  alteration  of  twelve  bifhops,  and  nineteen  abbots,  and 
thirty-one  earls  and  barons  {. 

f  2  Inft.  p.  76.— 78. 


INDEX, 


INDEX. 


g* 

ABBOTS  202 

Abeyance                         •  1 36 

Actions  of  debt  40 

on  the  cafe                                                           -  40,  310 

perfonal                   k  -  301,  315 

real                  -                          -                          -  314,  366 

mixed  315 

pofleflbry  and  petitory                 -  292 

to  be  tried  by  the  judges  itinerant         -  298 

ofwafte                                                           •  315 

of  ejeftment                             -  ibid. 

Acts  of  State.      See  proclamations 

Admiralty  jurifdiclion                 -  331 

court  of                                           -                          -  362 

Advowfons  of  Bifhoprics  78 

right  of  nomination,  in  whom  lodged  79 

prefentative  •         81 

collative                 -  82 

donative  ibid. 

. —  now  fubfifting  in  England  84 

how  forfeited  85 


JEtius  -  -  46 

Agiftment  when  due  to  the  Clergy  94 

Aids  and  fubfidies  -  174 

Alias  writ  of  -  357 

Alans  •  43 

Alarick  -  -  44,  45 

Alexander  III.  -  •  322 

Alexander  Severus  -  -  -21 

Alfred  makes  a  law  for  the  payment  of  tithes  90 

hie  boaft  of  the  liberty  he  tranfmitted  to  England  -  180 

.  divided  England  into  counties,  hundreds,  and  tithings       198,  24; 
Alienation  66 

of  lands  80,  81,  146,  147,  148   149,  150,153,157,  161,384 

.  —  in  mortmain  387 

Allodial, 


392  INDEX 

Page. 

Allodial.     See  eftates  allodial 

Allodians  attach  themfelves  to  their  neighbouring  Lords  1 14 

Amalfi,  a  copy  of  the  civil  law  found  there         -                          -  180 

Amerciaments,  how  fettled  by.  Magna  Charta  346 

Appeals,  where  properly  to  be  brought  301 
Appeal  for  murder                  -                           -                                   -          186 

Arabs,  erect  academies  for  the  fludy  of  their  laws                 -  8 

Armigeri                           -                                            -  206 

Arrefting  by  mittimus  369 

; perfons  not  authorifed  by  warrant                           -  370 

Afiemblies,  general.     The   ihare  they  held  in  the  government   in  the 

1 3th  century                  -  33 

manner  of  admitting  members  therein  34 

crimes  cognizable  thereby  ibid. 

Afieflbrs  in  Germany                               -  96 

Affize,  trial  by                                 -                                 -  250 

of  novelle  difleizin                               -                           -  291 

writ  of  292 

Athenians,  their  multiplicity  of  laws  4 

Ataulphus                  ...  4£ 

Athol,  Duke  of  1 93 

Attainder  of  felony  348 

Attornment                                                    -  119 

Attorney- General                          -  318 


B 


B 

AIL,  fuperior  power  in  the  Court  of  King's  Bench  to  take  it  301 

Baron  of  England,  its  original  import  187 

quantum  of  revenue  to  qualify  for  attendance  in  parliament  188 


Barons,  oppofe  the  arbitrary  meafures  of  King  John  *                          339 

of  the  Exchequer             -  318 

Barones  majores  &  minores  -                      189 

their  rules  of  defcent  1 93 

minores  privileges  obtained  by  writ  of  election  to  parliament     192 

Baronets,  by  whom  firft  created                 -  -                  209 

Baronies  by  tenure                         '-  188 

— —  long  fince  worn  out  among  the  laity  1 90 

Barrifters  at  law             -  -                      313 

Baftards                                   -  23 

Becket,  Thomas  a                               -  322,  327 

Beauchamp,  John,  the  firft  peer  created  by  patent  193 

Benefices,  or  grants  of  land,  wherefore  fo  called  -                           49 

Benefices 


J  I)       E      X.  393 

F- 

Benefices,  improper                                              -  68 

incorporeal         -  78 

Beneficiary  law  -  -  -23 

cltatcs                         -  113 

Berytus,  its  famous  academy  7 

Biihops,  how  chofen  in  the  infancy  of  Chriflanity              -    .  78 

their  ancient  revenue                                                           -  80 

allocate  the  tithes  in  aid  of  the  glebe  8 1 

retain  the  general  cure  of  fouls                                          •  ibid. 

their  feats  in  parliament,  whence  derived                  -  202,  203 

Bifliop's.  court,  originally  joined  to  the  Sheriff's  247 

Bimops  of  Rome,  their  artful  conduct  to  obtain  the  fupremacy  83 

difmcmber  bifhoprics  ibid. 

attempt  to  over-rule  general  councils             -  ibid. 

practile  upon  fovereign  Princes             -  83 

encourages  of  the  civil  law              -              -  1 8 1 

their  bull  ineffectual  to  filence  the  people  of  England, 

•when  incenfed  againft  Richard  II.  182,  183 

affume  a  difpenfing  power  1 86 

their  views  refpecting  England                  -  272 

•  lord  it  over  the  Kings  of  Europe  •         320 

compel  King  John  to  furrender  his  crown  338 

difpofe  of  the  Engliih  benefices  by  proviforfhip  344 

Blackftone  (Judge)                              -                              -  8,  9 
Bodies  corporate         -                              -                                       -211 

Braclon                 -                 -             130,  180,  225,  293,  299,  314,  349 

Brevia  teftata                                                                           •  60 

Britain,  Great.   Whence  its  multiplied  laws  5,  6 

its  peculiar  advantages             -  6 

Britton                              -  1 80,  349 

Brothers,  not  the  heirs  one  of  another  140 

Brunchild                       -                           -  in 
Burghers.     Sec  Citizens 

Burgundians                      •  4,  45,  46 

Butlerage  of  England                  -                                              -  72 

Bye-Laws                        •      -                      -                     -  211 


Ddd  CANON 


c 


INDEX. 


ANON   law  -  13, 

Capias,  writ  of 
• —  for  a  fine 


Capitula  itineris  -  - 

Caftleguard  - 

Cailration  -  - 

Celtiberians.     See  Spaniards 
Cenfus,  a  tax  among  the  Franks  - 

Chancellor  of  England  - 

his  ancient  office 

derivation  of  his  name 


of  the  Exchequer 


Chancery,  court  of 

ordinary  -  -  304, 

extraordinary  -  364, 

Chapters,  their  origin         - 
Charles  I.  his  claim  of  (hip-money 

his  condudl  to  the  Earl  of  Briflol 

raifes  money  by  Knights  fines 

Charles  II.  purchafes  the  right  of  prifage  of  wines  - 

abolimes  the  feudal  fyltem  68, 

Charles  the  Bald 

Charlemagne  - 

Charters  -  211,  18 1 

Church  benefices  ftiled  improper  feuds  •  68 

lands  not  fecured  by  living  evidence  60 

fe cured  by  brevia  tellata  ibid. 

revenue  of,  how  antiently  diflributed  -          80 

Churchmen.     See  Clergy 

Circuits  eitablifhed  by  Henry  II.  -  294,  298 

Citizens  of  London,  anciently  ftiled  Barons  -          187 

their  original  ftate         -  -  209 

antiently  no  part  of  the  body  politic         -  210 

admitted  to  vote    along    with  Knights  of   the 

Shires  .    -  211 

Civil  law  -  12,   13,   170 

attempted  to  be  introduced  by  the  Princes  of  Europe  180 

and  by  the  Pope  -  1 8 1 

became  blended  with  the  feudal  ibid. 

deflruftive  of  freedom         ...  ibid. 

oppofed  by  the  Engliih  parliament         -  -         ibid. 

Civil 


I       N       1)       E  395 

Page. 

Civil  law,  openly  countenanced  by  Richard  II.  •              181 

obligations  of  a  freeman  to  his  patron  thereby  -         234 

Claudian                   -                                                -  -46 

Clergy,  their  wealth  and  importance  52 

their  practice  of  redeeming  flaves 

diverted  of  their  poflellions  by  Martcl 

fupported  by  the  voluntary  contributions  of  the  people  78 

their  temporalities  how  derived 

feudal  tenants  to  the  bifhop  of  their  precinct  81 

rendered  ferviccable  to  the  views  of  the  Pope  -                     83 

SI-CULAR,  deprefled  under  the  Norman  Kings  90 

the  only  lawyers  in  the  reign  of  William  II.          -  91,  273 

banilhed  the  temporal  courts  -                    91 

celibacy  of  the         -                      -  283 

the  only  people  that  could  read  and  writ  273 

DIGNIFIED,  their  (hare  in  the  legiflation  -               267 

IN  FRANCE,  make  one  diflinct  (late  202 

Clothair  II.                                            -                          -  i  j  i 

Clovis  28,  48,  51,  52 

Coats  of  arms                              -                              -  206 

became  hereditary                  -                            -  290 

Coiffof  a  Serjeant  at  law,  conjecture  about  its  origin  274 

Cojudge  96 

Coke,  Lord         16,  72,   162,   190,   198,  217,  224,  233,  254,  257,  303, 

340,  35°»  353»  356»  365>  367»  37f>  373»  375>  376> 
378,  380,  384,  388 

Collation  to  a  living  -  82 

Colleges                 -  -  86 

Commons,  houfe  of  206,  319 

. its  prefent  conflitution  compared  with  the  feudal 

principles  -  -         211 

• its  advance  in  privilege  and  powers  2  1 4 

whether  moft  inclined  to  popular  or  oligarchical 

influence  214,  217 

Common  Pleas,  court  of  300,  312,  316 

Commentaries  on  the  Laws,  how  multiplied  by  the  Romans  at  the  time 

of  Juftinian  4 

Commoner,  his  right  of  excepting  againft  the  Sheriffs  return  of  a  Jury   i 
Commerce,  its  eftecl:  in  multiplying  laws 

FOREIGN  I  53 

— regarded  by  Magna  Charta         -  380 

Commune  Concilium,  further  the  defigns  of  William  the  Conqueror     264 
Commiflioners  of  Cufloms  -  -  317 

D  d  d  2  Commiffioners 


396  INDEX. 

Page. 

Commiffioners  of  Excife             -  -                                       317 

Appeals  -                                   -              ibid. 

Companions  of  the  King  or  Prince  30 

Conltitut  ions  of  Clarendon                 -  -            2O3>  275>  325 

Contumier  of  Normandy                  -  -                  -                     271 

Convocation  of  the  Clergy  -                       -                           276 

Conrad  Emperor                      -  -                                             23 

Conftable,  High,  of  England             -  73 

Conftantine  Porphyrogenatus  -                       -                  22,  45 

Convivse  Regis,  a  title  on  whom  conferred  -               51 

Copyhold  tenants                           -  -                           324 

Corvinus                       -  -                                                     77 

Cork,  kingdom  of  -                             201 
Covaffals.     See  Pares  curiae 

Councils  general                  -  -                      83 

Counts,  their  origin  and  employments  -                                 51 

obtain  grants  of  eftates  for  life  57,  187 

Counts.      See  Earldoms 

County  court  104,  247,  248,  296 

Counties  their  origin                                 -  -51 

PALATINE                      -  -                           -                     199 

Court  of  wards                  -  -                  *33>  3*7 

record,  the  King's,  its  cognizance  of  covenants  to  alienate       149 

— merchant  .     *              156 

. of  the  conflable                      •  -                           1 8 1 

admiralty         -  -          ibid* 

Tourn  247,  271 

Sheriffs.     See  Sheriff 

of  the  hundred                 -  247 

Leet                     -  -                  247,  271 

Baron  -                                              271 


Courts  of  Weftminfter-Hall  -              io 

Ecclefialtical  and  temporal,  their  rights  fettled                              275 

•Martial    .           -                      -  -          363 

of  Record,  what  are  fuch  -                    271 
not  of  Record,  what  are  fuch 


Craig                            -                         '  -                       -  -                25- 

Cranmer                                   -                           -  -                        92 

Creation  money         -                              -                          -  199 

Crimes  public,  what  among  the  Franks                  -  -                 40 

.  -  how  puniihed                       -                              -  -  252 

Crofs,  fign  of  it  ufed  in  the  firft  written  inftruments  -                  60. 

Curia  Regis,  judges  in  that  court                 •  249 

Curia 


INDEX.  397 

Page. 

;i  Regis,  how  appointed  by  William  tiic  Conqueror             •  270 

-  the-  foundation  <>t  the  Lon               .turc  in  parliam.  249 

-  thc-ir  pleading                J.  in  the  Norman  language  270 

-  divided  into  lour  courts              -                            -  300 
Culloms  paid  on  meiehaiuli 

origin  of  fcveral  297,  373 


D 

DANE  GELT                        -  285 

Decretals  of  the  Pope                       -  320,  321 

Deed  poll                  -                          ...  ioo 

Demdhes                           -                               -  -              50 

Demurrer,  \vhat                           -                                    -  306 

Derby,  Earl  of  193 

Defcents  by  feudal  law,  to  whom  -              135 

-  law  of             -                          -                  -                 -  141 
Diocefes,  how  fubdivided  into  parifhes  79 
Difpenfmg  power,  a  prerogative  claimed  by  the  Stuarts  186 
—  -  diilind  from  a  power  of  pardoning         -  ibid. 

-  —  -  oppofed  by  the  early  lawyers  314 
Diftrefs,  what                                                                                  65,   ioo,   101 

-  introduced  inftead  of  actual  forfeiture                           •  97 

-  feverity  of  Englilh  Lords  in  levying  it  reftrained  -         101 

-  how  and  where  to  be  levied                  -                       -  102 

-  reftriclions  in  levying  it                                        •  ibid. 
Duelling,  the  practice  whence  derived         •  "39 
Dukes                                  -                              -  187 
Dyer's  reports             -  39 

E 

A  R  L  D  O  M  S  of  England,  quantum  of  Knight's  fees  afligned 

thereto  1  63 

-  how  antiently  held                           -  1  97 

-  wherein  differing  from  Barons         •  ibid. 
when  created                      -  -              198 


Earls  •  -  187 

their  authority  reftricled  in  the  County  court  198 

PALATINE  •  •  187 

the  firfl  created  1 99 

Ecclefiaftical 


398  INDEX 

Page. 
Ecclefiaftical  Courts  -  .  -271 

how  feparated  from  the  temporal  -  -  275 

their  right  of  recognizance  of  fuits  for  benefices 

annulled  by  the  temporal  courts  -  276 
fcreen  their  members  from  the  rigour  of  the 

law  276,  322 

their  power  of  excommunication  -  360 

Edgar  King,  feverity  of  the  law  enacted  by  him  for  payment  of  tithes  90 

divifion  of  the  Sheriff's  and  Bifhop's  court  in  his  reign  247 

Edmundibury,  meeting  of  the  Barons  there  -  3^0 

Edward  I.  his  difpute  concerning  grand  ferjeanty  grants  -  70 

gives  in  parliament  a  new  confirmation  of  Magna  Charta  71 

renounces  the  taking  of  talliage  -  ibid. 

his  action  againft  the  Bimop  of  Exeter  respecting  homage  1 1 7 

— motives  for  his  conduct  .  121 

the  CONFESSOR,  his  laws  -  -  180 

Egypt,  antient  method  of  fludying  the  laws  there  -  7 

tithes  firfl  introduced  there  -  -  -87 

Elegit,  writ  of  -156 

Elizabeth  Queen,  caufes  her  proclamation  to  carry  the  force  of  laws  184 

why  fubmitted  to  by  the  people  ibid. 

her  falfe  policy  in  encouraging  monopolies  in  trade  185 

difcontinued  the  granting  of  protections  -  379 

Emma  Queen  -  -  40 

Ehfranchifement,  exprefs  -  -  234 

implied  -  -          235 

England,  how  divided  by  the  Saxons  '  245 

divided  into  circuits  by  Henry  II.  298 

Efcheat  -  98,   140 

of  the  King         -  298,  382 

Efcuage  -  97,  289 

Efquires,  their  rank  -  207 

Eftates,  allodial  51,  52,  56,  106,  144,  254 

of  CONTINUANCE  -  57 

TAIL  99,    121,    1 60 

BENEFICIARY  114 

— . FEUDAL,  not  liable  to  the  debts  of  the  feudatory  146 

Ethelwolf,  eflablimes  tithes  by  law  in  England  90 

Evidence,  the  kind  admuTible  among  the  Franks  before  the  ufe  of  letters  60 

Exchequer,  court  of         -  300,  313,  315 

ordinary                                      -  -                      317 

extraordinary  ibid. 

chamber  318 

Extent 


INDEX.  399 

Page. 

nt 
J'.yre^or  circuit,  omillions  of  places  in  firfl  and  fccond  298 


KA  I/r  Y,  the-  oath  of  61 

its  obligations  •  ibid. 

why  not  required  of  the  Lords  64 


fimple                   -  99 

-  tail                  -  99,  121 
Females,  their  dowery  among  the  Franks  35 

-  the-  part  they  bore  in  the  State  ibid. 

-  excluded  from  defcent  by  the  feudal  law  135 

-  under  what  limitations  admitted  ibid. 
Feud,  whence  adopted  into  common  language  1  18 
Feudal  law.     See  LAW 

Feuds  improper                 -  68,  &c. 

-  advowfons  78 
--  —  tithes  86 

--  FEMIMINE 

Feudum  de  cavena  -                               75 

.  -  camera                  -  -                                             ibid. 

.  -  foldatae                          -  -                                "77 

—  -  •  habitationis                  -  ibid. 

.  -  guardiae             -  -                          -            ibid. 

-  -  gaftaldise                      -  -  -                          -                      78 

-  mercedis                  -  -                           ibid. 
Fiefs  21,  36,  55 
.  -  feminine         -  -                                          163 
Fine  levied  on  entailed  lands  1  67 
Fines  honorary         -  -                          107 

-  eftablifhed  a*  a  fruit  of  tenure  -                  1  1  8 

-  abolilhed  at  the  reftoration  -                          ibid. 

-  for  licence  to  plead  in  the  King's  court  -              250 
Firft  fruits  and  tenths  84 
Fictions  of  law  304,  315 
Fifti  weires          -                           -  351, 
Fleta                          -  1  80,  349 
Foreft  laws,  whence  derived  37 
Formeclon,  writ  of  three  kinds  161 
Fortefcue                      -                              -  -                  180,  234 
Frank  pledge  -                          -                 247 

Franks 


400 


N       D       E 


Page. 

Franks  4,  23,  24,  31,  35,  37,  38,  41,  42,  46,  48,  55 

Freemen,  among  the  Germans,   the  nature  of  the  allegiance  required 

from  them  to  their  Princes  -  31 

Free  alms  -  -  202 

Furnivall,  William  -  72 

G 

GA  L  L  A  W  A  Y,  county  palatine  of                 -  201 

Gafcoigne,  Judge  368 

Gavel-kind                                            -                          -                     135,  255 

Gauls                                                              -                   -             22,  51,  in 

Gentry,  who  fo  called                                            -                           -  206 

their  peculiar  privileges                      -                  -  ibid. 

— — — —  caufe  of  their  military  difpofition  fubfiding                    -  207 

Gentilis  homo,  its  ancient  and  modern  acceptation  52 

Geoffry  of  Monmouth                                                •                  •  22 

Germans,  their  method  of  deciding  difputes  by  fingle  combat  39 

- Murder  not  punifiied  with  death  among  them             -  41 

Germany,  its  condition  at  the  time  of  the  Franks  32 

its  ancient  conftitution  nearly  refembling  that  of  England  33 

Gilbert  Judge,  his  opinion  concerning  the  divifion  of  courts             -  309 

Glanville                                                109,   130,  148,  180,  288,  290,  330 

Glebe-land,  how  obtained  by  the  clergy  80 

Gold  and  filver,  their  ufe  unknown  to  the  Franks  35 
Goths                                                                                     4,  43,  44,  46,  47 

Grand  affize,  for  what  purpofe  invented                          -  40 

Grandfons                                                                                    108,   139,  140 

Grants,  the  firfl  feudal  ones                           -                     -  50 

. temporary                      -                           -                      -  56 

beneficiary                           -                                                  -  ibid. 

FOR  LIFE,  how  obtained                      -                        -  57 

improper                                                    -                          -  68 

to  women             -                      -                    -  74 

—  of  things  not  corporeal         -                  -  ibid. 

to  indefinite  generations                                                 .       -  112 

laws  tending  to  eftablifh  them  1 14 


of  William  the  Conqueror  to  his  followers  -  1 63 

of  Knight's  fees  -  -  ibid. 

Gregory,  Pope,  demands  homage  and  Peter's  pence  from  William  the 

Conqueror  -  274 

Gratian  •  -  321 

Guardianmip.     See  Wardfliip 

Habeas 


I      N      D               X.  401 

II 

Page. 

HABEAS  Corpus  301,  370 

Hale,  Sir  Matthew  14,  213,  296 

Heptarchy  251 

Ileriots                               -                                              -  254,  257 
Hearth-money 

Heir  in  tail  - 

Heirs  of  landed  inheritance  136 

Ilengift                                        -                     -  -                    179 

Henry  I.  his  charter  in  favour  of  the  Saxon  laws             •  •             281 

fubdues  Normandy         -  284 

II.  payment  in  kind  commuted  into  money  69 

his  quarrel  with  Pope  Alexander  II.  322 

.    .              his  wholefome  regulations  286,  287 

III.  introduces  a  difpenfing  power  into  England  -          186,  344 

— confequences  of  his  neglecting  to  fummon  the  Barones 

majores             -  189 

.                his  illegal  patent  oppofed  by  Roger  de  Thurkcby  -      1 86 

— — — —  his  oppreflions              -  -                344 

VI.  his-miftaken  conduct  with  regard  to  Ireland  220 

VIII.  his  danger  upon  throwing  off  the  Pope's  fupremacy  92 

— fuppreffes  the  monafteries  -                  ibid. 

-.  .            •      meets  a  court  of  Ward              -  -                       133 

obtains  from  parliament  a  fanftion  for  his  proclamations 

to  bear  the  force  of  laws  -                  184 

Hereford,  Earl  of,  his  difpute  with  Edward  I.  70 

Homage                               -                         -  -                     61 

when  inftituted,  and  how  performed  -          1 16 

fealty  1 1 7 

warranty,  a  confequence  of  homage             •  119 

aunceftrel,  the  import  of  this  term  ibid. 

duties  arifmg  from  homage  to  lord  and  vaflal  -         1 1 8 

Honorius                                   -                         -  -44 

Hugh  Capet  23,  137 

Hunns                     -                                                   -  43  >  44, 


j 


AMES!,  his  arbitrary  claims               -  -                    183 

miflaken  policy  in  encreafmg  monopolies  -             185 

— — —  inftitutes  a  new  title  of  honour  209 

E  e  e  Independence 


402  I       N       D       E       X. 

Page* 

Independence  of  the  King,  the  idea  thereof  entertained  by  the    early 

Franks  3 1 

Inhabitants  of  Europe,  their  prcpenfity  to  the  making  of  new  laws  5 

Innocent  III.  -  234 

Inns  of  Court,  wherefore  founded          -   -  -     -  6 

their  ancient  ufefulnefs  -  ibid. 

their  prefent  ftate         -  -  7 

Institution  to  a  living  82 

Interdict  laid  on  England,  by  Innocent  III.          -  -  334 

Inveftiture  proper  -  -  -  -58 

improper  -  59 

its  nature  fixes  the  line  of  duty         -  69 

John,  King,  mutual  hatred  between  him  and  his  nobles  1 10 

his  arbitrary  government         -  -  154,  352 

claims  a  right  of  taxation          -  -  177 

omits  fummoning  fome  of  the  Barones  majores          -  189 

deprives  the  earls  of  the  thirds  of  the  county  profits         -     199 

fupplants  his  nephew  Arthur  331 

Jornandes  -  -  "37 

Ireland,  peerages  there  recovered  by  petition  -  -  195 

erected  into  palatinates  -  200 

form  of  trial  of  noblemen  in  that  kingdom         -  204 

the  ftatutes  of  Edward  II.  abolilhed  -         209 

ftate  of  legiflation  there  -          218,  222 

influence  of  Poyning's  law  on  its  government  -  -221 

Iffue  joined  -  -  292 

Italian  priefts,  the  chief  pofieflbrs  of  benefices  in  England  in  John's 

reign  342 

Judges  itinerant  -  -  -  294 

their  jurifdicYion         -  -  -  298 

of  aflize  •  366 

judgment,  in  what  inftances  obtained1  without  the  intervention 

of  juries  354 

Juries,  trial  by  251 

their  original  power         -  -  247 

judges  of  law  and  facfc  294,  356 

Juftice,  method  of  adminiftering  it  among  the  Salic  Franks  37 

Juftices  of  NiiiPrius  248,299 

errant  -  ibid* 

of  affize  ...  Hid. 

of  oyer  and  terminer         -  -  299 

of  gaol  delivery   .  -  -  248 

of  Quarter  Seffions  248,  366 

•  in  Eyre  294 

Judiciary 


I       N       0       E  403 

Page. 

Judiciary  of  England  248,  300 
'. difcontinued  by  I'.duaid  I.  304 


K 


K 

1 1. 1)  A  R  E,  county  palatine  of 
Kind's  Bench,  court  of 

—  its  power  in  taking  bail  301 

—  fuits  cognizable  therein  300,  301,  306 

its  peculiar  diftinftions  312,  314 


King  never  dies,  origin  of  that  maxim 

Kings  eleftive  among  the  Franks  28,  29 

their  power  -  4-8,  49 

Norman,  the  arms  borne  by  them 

Kings  of  England,  their  power  anciently  Hmitcd 

.        —  their  right  of  fervice  from  their  vaflals               -  ibid. 

— —  pofiefled  of  donatives         -                      -  83 

_ their  ecclefiaftical  jurifdicYion             -                 -  84 

. their  title  to  fupreme  ordinary,  whence  derived  ibid. 

— —  their  power  by  the  feudal  law  1 70 

executive  branch  of  government  belongs  to  them       1 7 1 

— their  revenue  172 

.  their  fupplies  for  foreign  wars  173 

their  authority,  whence  derived 

. their  proclamations,  how  far  legal  183 

their  difpenfing  power                                        -  1 86 

their  demefnes  unalienable  189 

_ their  prerogative  of  fummoning  the  lefler  Barons 

to  parliament  190 

their  right  of  raifmg  peers  to  a  higher  rank  1 96 

.. their  power  of  fettling  precedency  ibid. 

. not  one  of  the  three  eftates,  but  the  head  of  all  202 

. — —  their  right   of  appointing  peers  to  try  an  accufed 

nobleman  204 

. ancient  concern  in  making  laws 

. their  prefent  influence  in  framing  lav  .       218 

_— their  fryle  when  1  peaking  of  themfclves          -  265 

. have  no  power  to  create  new  criminal  courts  377 

Kingfale,  Lord  1 96 

E  c  e  2  Orht$, 


INDEX. 

Page, 

Knights,  origin  of  that  dignity  24 
their  advantages  over  the  Lords  with  regard  to  feudal  pay- 
ments                                                                               -  109 

— fervice                                         -                               -  129 

when  abolifhed                 -                                       -  150 

fees  1 88 

their  privileges  by  writ  of  election  to  parliament             -  192 

their  rank                                                                             -  206 

their  ancient  dignity  207 

BANNERET                 -                                                   -  .208 


LAITY,  when  excluded  from  the  election  of  the  clergy  .         78 

Lands,  their  property  how  far  alienable  among  the  Jews  3 

Lands,  diftributed  to  the  Chriftians  by  the  General  Aflembly  -         34 

intereft  of  Lord  and  vaifal  therein  -  65 

Saxons,  by  what  tenures  they  held  their  lands  2,54 

Langton,  Legate  338 

Lateran,  council  of  89 

Lawing  -  280 

Laws  feudal,  the  foundation  of  the  law  of  things  14 

the  foundation  of  the  Englifh  conftitution  15 

method  of  teaching  them  17 

their  origin  and  progrefs  -  ibid. 

fucceed  the  Roman  imperial  law  19 

various  opinions  on  their  origin  -  ibid. 

not  derived  from  Roman  laws  and  cuftoms          -  21 

firft  reduced  into  writing  by  the  Lombards  ,      23 

their  tendency  to  cherifh  the  national  liberties  of  mankind    27 

——————  in  ENGLAND,  permit  no  Lord  to  be  challenged  by  the 

fuitors  -  96 

. allow  a  power  of  appeal  to  the  King's  court          -  ibid. 

their  dodbrine  of  remainder  ibid. 

refpecling  warranty  --  -  119 

— wardlhip  123,  124 

their  obligations  on  minors        -  -  132 

Laws  POSITIVE,  or  general  cuftoms,  always  to  be  found  in  communities 

however  barbarous         -  I 

Laws  pofitive,  a  knowledge  of  them  a  means  of  procuring  refpeft  and 

influence  -  a 

'  of  things  and  perfons,  which  to  be  firft  treated  on  14 

• few  and  intelligible  in  fmall  focieties  -         ibid. 

when  neceiTarily  numerous  and  extenfive  ibid. 

Laws 


I  HEX.  405 

Page. 

Laws  POSITIVE,  inconvcuic;  rnhng  their  multiplicity  3 

of  what  kind  in  K<  llcrrut  periods  4 

their  great  incrcafr  in  I'.umpr  imcc  the  i4th  ecu:  5 

of  NORMANDY,  reflecting  the-  marriage  of  females  in  wardmip 

of  ENGLAND,  a  lvant;;L;i^,  attending  a  knowledge  of  th< 

what  required  by  them  in  transferring  pofleflions 

its  maxim  reipccting  the  dcvifmg  of  lands  by  will 

how  enabled  2 1 7 

their  ancient  method  of  pafling 

their  tendency  to  promote  liberty  234 

alterations  introduced  in  them  by  Henry  II.  289 


Lawyers 

Laymen,  how  far  exercifmg  ecclcfiaftical  difcipline  48 

tithes  granted  to  them  in  fee  89 

by  what  means  poffefled  of  lands  difcharged  of  tithes 

Legates  of  Rome                      -  83 

Leinfter,  county  palatine  of  201 

Letters  Patent  for  creating  of  Peers  190 

when  took  place 

grants  by  them,  how  forfeited  1 94,   i 

anciently  called  Chartae  Regis             •  305 

repealable  by  the  Lord  Chancellor  ibid. 

Lex  Terras,  what  355 

Licences  to  marry                  -                           -  131 

Liberty  of  the  fubjeft,  how  advanced  3 1 3 

•< — — — — — —  how  afcertained                                          -  333 

Lyttleton  14,  15,  61,  73,  116,  124,  225,  229 
Livery  and  feizen  -  58,  59 
Locke,  Mr  12 
Longchamp  Archbifhop  of  Canterbury  -  -  330 
Lords  feudal,  their  power  over  minors  refpe&ing  marriage  129 
—  refpecl:  paid  by  them  to  the  perfon  of  their  King  -  171 

their  power  over  their  villeins  224,  232 

— —  of  parliament  in  England,  their  rank  187 
-created  by  writ,  or   letters  patent  190 

"• privilege  to  their  elded  fons  192 

• — their  titles  extinct  on  furrender                -  195 

-their  quality  as  noblemen             -  187 

'• fpiritual         -                      -  202 

lay,  their  form  of  trial  204 


Lombards  -  -  4 

Lupus,  Hugh  -  199 

Lycurgus  ...  "3 

Markham, 


I       N       D       E 

M 

Page, 

ARKHAM,  Sir  John  368 

Maud                                                                                        282,  284. 

IVfagna  Charta  fpecifies  the  quantum  to  be  paid  in  relief                 no,  290 

mifconftrued  in  the  right  of  Lords  to  the  difpofal  of 

minor  heirs  in  marriage                                       -  130 

reft  rains  the  alienation  of  lands         •          -  150 

its  defigns  154 

abolimes  the  right  of  talliage                             154,   171,  175 

fummons  to  parliament  fettled  thereby                  -  189 

— its  regulations  of  fines  in  the  King's  court         -  250 

aboliihes  the  removal  of  the  courts  of  juflice         -  •  312 

commentary  thereon  343  to  the  end 

Manors  how  diftributed  by  William  the  Conqueror  to  his  followers  163 

Marriages                                                      -,                                   .  133 

Marflial,  Earl,  of  England             -                          -  72 
Maritime  court.     See  Admiralty 

Mafcon,  council  of                                                            .  88 

Mafter  of  the  Rolls                  -                              -                          -  310 

Mafters  in  Chancery         -  309 

empowered  to  frame  new  writs  ibid. 

Maxim  of  Law  .  306,  341 

Meafures  and  weights  351 

Meath,  county  palatine  of                                                             .  201 
Merchant  ftranger                  -                       -                           -              174,  380 

denizen                                    -                           -  174 

enemies                                                                              .  381 

Military  fyftem  (Old)  its  influence  on  law           -                  -  4 

power,  danger  of  its  fubverting  the  civil  and  legal  authorities  95 

benefices,  their  rife  among  the  Saxons                                 -  261 

tenures,  their  fervice  lightened  by  Henry  II.         -                  -  288 

abolifhed  by  Charles  II.                                              -  150 

courts  360 

Minor  heirs  male,  when  deemed  of  age                                          -  123 

in  chivalry,  when  deemed  of  age  1 24 

in  focage,  when  deemed  of  age                       -  128 

female,  in  chivalry,  when  deemed  of  age  1 24 

their  marriages,  how  controuled  by  their  Lords  1 29 

when  releafed  from  wardfhip           -                  -  132 


Mittimus,  eflentials  to  render  it  legal  -  369 

Modus, 


NDEX.  407 


lus,  payment  of  tithes  by  a  -  -  .91 

Monaivhy  of  France  -  55,  56 

-  of  l'.;n;];uul,  its  nature  afcertainrd  by  tlic  feudal  lawg 
--  how  changed,  by  <  itatcs  becoming  hereditary    170 
Monafteries,  the  finnefl  fupport  of  papal  p<  .\\i-r  83,  88 

—  —  -  tithes  improperly  applied  to  their  ufe  89 

--  railed  on  the  fupprellion  of  the  iecular  clergy 
Money,  its  prcfent  deereaied  value  ...  69 

Monopolies  -  -  -  -  185 

Montefquieu  -  2,  28,  31,  38,  53,   178 

Mofes  -  3,  7 

lowbray,  Lord  192 

Murder,  why  not  punifhed  with  death  among  the  ancient  Germans         41 

—————  how  punimed  by  the  Saxons  -      252 


N 

NKIF  227,  230,  232 

Nifi  Prius,  Juftices  of                       -                     -  248 

Norfolk,  Earl  of,  his  difpute  with  Edward  I.  -                    70 

Northern  nations  become  formidable  to  the  Roman  empire  -          43 

Notorieties  of  a  facl:,  how  regarded  in  feudal  grants  60 


o 


o 

A  T  H  of  fealty,  from  whence  to  be  traced  3 1 

— . taken  by  the  Saxons  259 

Officers  of  Courts,  where  to  be  fued  318 

Officina  brevium                      ...                    .  306 

Oleron,  laws  of                              -  33 1 

Oligarchy  introduced  into  England                      -                     -  182 

Ordeal  trial  among  the  Franks  37 

continued  after  the  Norman  conquefl  -         40 

Ormond,  Earl  of  201 

—Duke  of                     -                         -  133 

Overbury,  Sir  Thomas  -  374 
Outlawry  -  -  356 
proclamation  to  be  made  by  flatute  31(1  Elizabeth  358 


PAIS 


4oa  I      N      D      E      X 


Page. 

PAIS  des  coutumes  54 
de  loi  ecrite                                                                          -  ibid.' 

Pares  curise                                                                       58,  59,  96,   116,  119 

Paris,  Matthew                      •                                                              186,  188 

Parliament  of  England,  its  ancient  conftitution             187,   193,  202,  213 

its  judicature                -                        -  319 

Patron,  lay,  his  intereft  in  prefentative  advowfons                         -  81 

inverted  with  donatives  by  grants  from  the  Pope  83 

•         —  pofiefled  a  power  of  deprivation                 -  85 
Peer.     See  Lords  of  Parliament 

Peerefs,  who  are  her  peers                 -                 -  353 

Pelagius                  -                  -                  ..                 ...                 -  143 

Pcmbridge,  Sir  Richard                                   -                 -  373 

Pepin                 -                      -                                -  113 

Perfian  Empire             -                                •                 -  43 

Pembroke,  Earl  of                                                        -  343^ 
Philip  of  France             -                                                                      332,  338 

Plantagenets                                         -  209 

Pleas  of  the  crown                      -                 -              -               -  301 

Pole,  Michael  de  la         -                 -                 -                   -  193 
Popes.    See  Biffrops  of  Rome 

Poffe  of  the  county                                         -                                        -  292 

Polfeffions,  corporeal                          -                      *  74 

incorporeal  74,  78,  87,   95, 

Pounds  overt  and  covert                                     -  103 

Precedence  of  Peers,  how  fettled  by  parliament  196 

Primogeniture                      -                      -  137 

Prifage  of  wines                          -                      -                         -  73 

Privileges  of  the  fubjeft,  whence  derived  1 6 

of  the  diflincl:  parts  of  the  legislature  217 

Privileged  perfons,   how  to  be  fued  307 
Proclamations  royal,  when  and  how  far  legal  183 
conduct  of  Henry  VIII.  relative  to  them             -  184 

their  force  in  the  reign  of  Elizabeth             -  ibid. 

— ,  baneful  confequences  attending  the  arbitrary  ufe  of  them  185 

Profefibrs  of  Laws                          -                          -                          -  13 

Property,  its  divifion                  -                           -  35 

. — of  lands,  where  lodged  by  the  Franks                                -  ibid. 

Proviforfhip                                                -  344 

Provofts                                  -                                      -  210 

Punimments 


INDEX.  409 


Punifiimcnts  inflicted  by  the  ancient  courts  of  law,  for  public  and 

private  wrongs  251 

•  -  for  hille  iinpriibnment  370 

Purlx-ck,  Lord  194 

Put  chafes  new,  how  defcendible  144 

Purveyance  for  the  King  156,  257 


Q 


U  O   Warranto,  writ  of  301 

R 


R AC  HAT,  or  Repurchafe  1 1  o 

Raleigh,  Sir  Walter                 -  376 

Ranks  of  the  people  in  the  Saxon  times  253 

Ravifhmcnt  of  wards                  -  -                                  132 

Record,  matter  of  -                         306 

Records  of  France,  loft  at  the  battle  of  PoicTiers  312 

Recognizance  -                          -             155,  308 
Rectorial  tithes.     See  Tithes 
Regifler  of  writs 

Refuting  the  fief                 -  -                          -                  145 

Reliefs  or  fines                  -  -                                                   107 

. wherein  burdenfome  to  the  tenant  -                               109 

altered  by  Henry  II.  -                                    290 

. fixed  by  Magna  Charta  -                                              no 

and  heriots,  their  difference  257 

Remainder  derived  from  a  reverfion  -                                  96 

Rent  charges                          -  99 

Replevin                      -                           -  -                           104 

Reverfion,  right  of,  in  land  96 

featly  and  fervice  incidental  thereto  97 

—  on  contingency             -  ibid. 

Richard  I.  329>  332 

Richard  II.  -                                   181,  183 

Right  of  entry  for  pofleflion              -  -             $9,  65 

action  ibid. 

Rome,  its  famous  academies  / 

. taken  by  the  Goths             -  45 

Roman  imperial  law         -   .  19 

Fff  Ro: 


4io  I      N      D       E       X. 


Roman  empire  -  -  42 

-  emperors  .  186 

-  eftates         -  -  51 


patron  and  client  .         19, 


20 


Romans,  their  policy  refpe&ing  conquered  nations  -         22 

become  focage  tenants  to  the  church  -  54- 

their  condition  under  the  Franks  -  in 


s 


A  L I C  Law  -  -  52 

Sergeanty,  grand  70 

•  various  kinds         -  72 

,the  rank  capable  of  performing  it         -  ibid. 

for  what  purpofes  granted  -  ibid. 

butlerage  held  thereby  in  the  family  of  Ormond  73 


PETTY              -                       -  -              ibid. 

Satisfaction  for  petty  crimes,  how  regulated  by  the  Franks  -         41 

Saxons,  the  nature  of  their  primitive  laws  4 

their  government  in  England,  how  far  feudal  33,  212,  243 

admit  the  ordeal  trial  in  determining  caufes  -                  .  40 

the  authority  of  their  Kings,  whence  derived  179,   180 

their  courts  of  law  246,  250 

method  of  trial  therein  250,  251. 

punimments  inflicted  25.2 

nature  of  their  tenures  254,  265 

Scire  facias,  writ  of  219,  305 

Scotland,  method  of  fludying  die  law  there  18 

its  parliament  not  divided  into  two  houfes  -          202- 

Seal,  ufed  in  the  firil  written  inftruments  60 
Sealing  of  inftruments,  why  more  ftri&ly  authenticating  them  than 

figning  273 

Seignory                      -                               -  95 

Sergeants  at  law  3 1 3 

Service  from  a  tenure,  how  dependant  on  the  nature  of  the  grant  96 

when  required  by  the  lord  97 

rent  98 

made  rent  feck  by  ftatute  Edward  I.  ibid. 


Sharrburn,  Edwin,  his  lands  reftored  by  William  the  Conqueror  264 

Sheriffs,  their  power  in  making  replevins  104 

method  of  proceeding  thereon  ibid. 

appointed  to  reftrain  the  power  of  the  Earls  1 99 

nature  of  their  court  -  -  2_;5 

Sheriffs, 


INDEX.  411 

I'  •:-.••• 
Sheriffs,  nature  of  their  court  altered  by  William  the  Conqueror 

. their  ignorance  of  1 

Socage  tcnuns,  their  increafed  value  -  70 

age  ten;.  47,  224,  289 

nature  of  the  grants  to  them  -  50 

— fubjeft  to  diftrds  inltcad  of  forfeiture 

•  relief  paid  by  them  to  their  lords  -  no 

lands  granted  for  life          -  "  •  57 

free  and  common 

petty  fergeanty 


—its  derivation 

Society  political,  for  what  purpofcs  inftituted 

the  obligations  which  it  lays  on  individuals  -           ibid. 

Sons,  the  inheritance  obtained  by  the  eldeit  137 

fucceeded  equally  to  the  father  -                   135 

Spaniards          •                           •                           -  22 

Special  verdift             -                          -  •                35^ 

Spel man,  Sir  Henry             •                    -  13,  198,  258 

Statute  of  Ethehvolf             -                          -  90 

. Alfred             -  -                      ibid. 

— —  Edgar                       -  -              ibid. 

Edward  I.  quia  emptores  terrarum  99,  146,  149,  384 

. Edward  I.  de  donis              -  121 

— 34th  Edward  I.  -211 

—  i  yth  Edward  II.  de  prerogativa  regis 

-  for  compounding  a  Knight's  fee         -  208 

_ of  Marlebridge  101,  103,  104,  345 

refpe&ing  knighthood  conferred  on  minors 

of  Merton         -                     -  -                 131 

Weftminfter  I.           -                      -  132,  368 

— —  Weftminfter  II.  132,  159,  309 

Mortmain              -                               -  151 


Merchant                 -                              -  -           154 

of  writ  of  elegit  1 56 

—  Elizabeth  concerning  bankrupts  1 5 7 

concerning  outlawry  -                          358 

of  William  the  Conqueror  265 

8th  Henry  VI.  chap.  5.  216 

Poyning's  -                     -221 

2  8th  Henry  VIII.  fufpending  Poyning's  law 

Philip  &:  Mary  refpe&ing  Ireland  ibid. 


ancient  and  prefent,  manner  of  enacting  them  2 1 7 

F  f  f  2  Stewardfhip, 


412  INDEX. 

Page. 

Stewardfhip,  High,  of  England  72 

Stephen,  King              -  2,84 

Stilicho                      -                            -  -             44,  45 

Strange,  Baron  of  -                           193 

Strongbow  [•              201 

Stuart,  houfe  of  -                       183 

Study  of  the  law  in  Great  Britain  6 

proper  method                  -  7 

caufes  of  difficulty  therein              -  -          12,   13 

—  reafons  for  beginning  with  the  law  of  things  inftead  of 

that  of  perfons  14 

.        promoted  by  fixing  the  courts  of  juflice  313 

Subftitute,  when  allowed  in  aid  from  a  vaflal  -                              64 

Subvaffals  -               33^  57>  65 

Succeflion  royal  by  defcent  137,  138,  139,  143 

. collateral  -          139,  140 

to  eftates,  how  rendered  hereditary  107,  no,  144 

-T of  fons  to  the  father  1 3  5 


TACITUS  27,  28,  30,  31,  32,  35,  36 

Talliage  71,  153.  '73»   J74 

Taxes,  how  affefled            -  174 

Tenants  by  fufferance                 -  50 

allodial                  -  -                               -           1 1 1 

not  allowed  to  alienate  1 1 8 

. copyhold,  whence  derived  -                  238 

when  fubjecl:  to  fines  to  their  lord  -                          -          239 

their  power  of  alienation,  how  reftri&ed  ibid. 

.              in  frankalmoine  or  free  alms  -                                            267 

in  capite  •                               383 


Toga  virilis,  what                                                  -  34 
Tenures  feudal.     See  fiefs 

fubjeft  to  fealty             -  57 

military,  how  forfeited  65 

. —  when  abolifhed  68 

of  the  crown,  obligations  therefrom  -      187 


hereditary  -  65 

the  nature  of  thofe  now  held  69 

Saxon        •  254 

Tenures 


INDEX. 

Page. 

Tenures  in  ancient  demefne  124,  241,  288 

Temple,  the,  granted  to  the  practitioners  of  the  law  313 

Thane*  153,  258 

Tipperary,  its  palatinate  201 

Tithes  introduced  among  the  Franks  by  Charles  Martcl  54 

\vhen  cltablilhcd  by  law 

allocated  from  the  bilhop  to  the  pariili  priefl  82 

an  incorporeal  benefice  86 

originally  what              -  87 

firit  introduced  in  Egypt  ibid. 

how  diftributed  there  ibid. 

how  rendered  compulfory  ibid. 

forgeries  concerning  them  88 

divided  into  rectorial  and  vicarial  89 

. how  paid  in  England  during  the  heptarchy  ibid. 

when  made  payable  to  the  parim  prielt  91 

monaftery  lands  exempted  from  them  -                  -             ibid. 

fettled  by  a  modus  ibid. 

Cranmer's  intention  concerning  them  92 

when  eftalifhed  in  England  on  the  footing  they  now  fland  93 

their  three  kinds                  -  ibid. 

Tranfportation  373 
Traders  and  artizans  admitted  into  the  general  aflembly  of  the  people  in 

the  thirteenth  century  -                                34 

Treafurer  of  England  249 

— prefided  in  the  Exchequer  court         -  -       300 

Trinoda  neceflitas  -          256,  264 

Trial,  methods  of,  among  the  old  Germans  37 

, — —  received  into  England  -                  39 

.  by  witnefs                                    -  -                             ibid. 

ordeal.     See  Ordeal 

by  negative  proof             --  40 

, •  by  battle  -         250 

by  grand  aflize         -                              -  251 

, by  juries         -                          -  •                               ibid. 

by  depofition             -  -         353,  364 

Tudor,  houfe  of                           -                -  183,209 


VAN- 


4H  INDEX. 

U 


v 


Page. 
ANDALS  .  .        45 

Vaffals  (military)  their  connections  with  their  king  3 1 

bound  by  an  oath  of  fealty  for  life  -         56 

immediate  of  the  king,  who  -  65 

now  reprefented  by  the  parliament   62 


Villein-land                                         -                                   .  226 

Villein,  a  name  given  to  flaves  and  fervants  -              47 

nature  of  the  grants  made  to  them                               -  50 

whom  reduced  to  that  ftate  174 

•feudal                      ...  224,  22  $ 

their  property                  -  -            226 

when  allowed  to  bring  actions  againft  their  lord  -        229 

their  right  of  purchafing  land             -  -              227 

power  of  their  lords  over  their  property         -  -    228 

caufes  of  their  decreafe  in  England             -  237 

Villeinage,  how  deflroyed  and  fufpended  232 

UlittT,  county  palatine  of  201 

Uncle,  the  heir  of  his  grand  nephew         -                     -  139 

Univerfity  of  Dublin,  its  fituation  for  the  ftudy  of  the  law  12 

-  of  Oxford              -                        -  -10 
Univerfities                                             -                       -  7,   u,   12 
Voucher,  appearance  upon  65 
Ufes,  doctrine  of                               -  151,  241 
Ufury                           -                                -  4 
Ufes  and  Trufl  -         388 

w 

WAGER  of  the  law                                                        40,  250,  352 
Wages  to  members  of  parliament,  how  to  be  levied  101 
Wardfliip  in  chivalry,  laws  refpecting  it                                     -  123,   126 
in  focage                                   -  127 

how  differing  from  wardfhip  in  chivalry  128 

- obligations  on  the  guardian             -  .         ibid. 

penalty  on  marriage  without  the  confent  of  the  lord  1 29 

its  evils                                        -  -              133 

not  comprehended  in  Saxon  tenures  261 

Warranty                    -  119 

collateral                -  164 

Warwick, 


N      D      E      X. 


Warwick,  Karl  of  -  -  13* 

Walle,  eommirting  of 

William  the  Conqueror    137,   163,  212,  258,  262,  264,  266,  267,  268, 


Rufui 


Wills  and  teftaments,  unknown  to  the  Franks 

lands  not  devifable  thereby 

how  rendered  devifablc 

• required  to  be  in  writn 

further  requifitions 


copyholds  not  devifablc  thereby 


Wiltihire,  John 

Wittenagemots  of  the  Saxons  -  183, 

Wright  -  - 

Writ  of  chancery  to  recover  by  replevin  -  - 

election  to  parliament  -      190 

•  error         -  -  200 

•  nativo  habendo  -  - 

aflize  -  - 

falfe  judgment  •.-«... 

fcire  facias  -  -  219, 

original  -  - 

by  a  mafter  in  chancery 

de  bdio  &  atia  -  - 

of  capias  -  - 

alias         -  -  - 

pluries 

exigent          -  -  • 

entry  -  - 

de  homine  replegiando  - 


FINIS. 


BINDING  SECT.  AUG  15866 


Sullivan,  Francis  Stoughto 
137         Lectures  on  the 
S85      constitution  and  laws  of 
1776     England  2d  ed. 


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