LECTURES
                                  ON THE
                          CONSTITUTION AND LAWS
                                    OF
                                 ENGLAND:

                           WITH A COMMENTARY ON
                             _MAGNA CHARTA_,

                        AND ILLUSTRATIONS OF MANY
                                  OF THE
                            ENGLISH STATUTES.

                               BY THE LATE
                   FRANCIS STOUGHTON SULLIVAN, _LL. D._
        Royal Professor of COMMON LAW in the UNIVERSITY of DUBLIN.

                           THE SECOND EDITION.

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

                       BY GILBERT STUART, _LL. D._

                                _LONDON_:
         Printed for EDWARD and CHARLES DILLY in the Poultry; and
                JOSEPH JOHNSON in St. Paul’s Church-yard.
                               M,DCC,LXXVI.




                         TO THE RIGHT HONOURABLE
                          FREDERICK LORD NORTH,
              KNIGHT OF THE MOST NOBLE ORDER OF THE GARTER,
                       FIRST LORD OF THE TREASURY,
                       CHANCELLOR OF THE EXCHEQUER,
                                   AND
                 CHANCELLOR OF THE UNIVERSITY OF OXFORD,


MY LORD,

I am ambitious of giving dignity to this Work by inscribing it to your
Lordship; and I conceive that it has a natural claim to your protection.
It regards those laws and that constitution which, at a most critical
period, you were called to defend; and of which the important purposes
are the security and the happiness of a free people.

In this illustrious rank which divides your cares between prerogative
and liberty, and in which you support the lustre of the Crown, while
you guard the independence of the subject; the greatest occasions are
afforded to distinguish the generosity of public virtue, and to employ a
capacity enlarged alike by reflection and experience.

But it does not become me to say with what honour to yourself, and
with what advantages to the nation, you sustain the arduous charge of
government. To posterity, which will not be suspected of flattery, it
must be left to celebrate the merits of an Administration, too vigorous
to yield under difficulties, and of which the glory has increased with
danger.

                     I am, with the greatest respect,

                                 MY LORD,

                             Your Lordship’s

                              Most obedient,

                         And most humble servant,

                                                           GILBERT STUART.




ADVERTISEMENT.


The following LECTURES were delivered in the University of DUBLIN, and
procured a very high Reputation to their Author. The Researches they
contain into the Nature and History of the FEUDAL LAWS, were esteemed
extensive and ingenious; and the Description they exhibit of the ENGLISH
CONSTITUTION, will be allowed to be particularly interesting. These
Advantages have occasioned their Publication. It was thought, that
Papers, which had done so much Honour to DR. SULLIVAN, when alive, ought
to illustrate his Memory; and that they might prove of Use to the present
Age, and to Posterity.

THE Authorities assigned for DR. SULLIVAN’S Opinions and Reasonings
are furnished by the EDITOR. They are not, perhaps, in every Instance
those to which he himself would have appealed. This could not have been
expelled. They are such, notwithstanding, as will assist the Student; and
the Preliminary DISCOURSE, it is hoped, will not be thought an useless or
improper Addition to his LECTURES. It will be a Pleasure to the EDITOR
to reflect that he has endeavoured to pay a Tribute of Respect to the
Writings of a virtuous Man and an ingenious Lawyer, whom an immature
Death had ravished from his Friends and from Society.




CONTENTS.


                           _LECTURE_ I.

    _The intention and purposes of political society—Customs and
    manners govern men before the enactment of positive laws—Arts
    and property the sources of legislation—Peculiarities attending
    the institutions of Lycurgus and those of Moses—In the infancy
    of a state, laws are few and plain—In times of civility and
    refinement, they are numerous and complicated—The liberty of
    the people, a great cause of the multiplicity of laws—The
    difficulty of the study of the English law—The methods which
    have been followed in the study of it._

                            _LECT._ II.

    _The plan of the present undertaking—The particulars in which
    it differs from that adopted by Mr Blackstone—The different
    situations of the Universities of Oxford and Dublin—The chief
    obstructions which occur to the student of the English laws—The
    methods which may be employed to remove them—The law of_ things
    _more proper to introduce a system of jurisprudence than the
    law of_ persons—_The law of_ things, _or of real property in
    England, has its source in the feudal customs—The necessity
    of a general acquaintance with the principles of the feudal
    polity—The method in which it is proposed to treat of it._

                           _LECT._ III.

    _An enumeration and confutation of several opinions concerning
    the foundation of the feudal customs—The origin and rules
    of the feudal law to be deduced from the institution of the
    German nations before they invaded the Roman empire—The English
    indebted for this law to the Franks—A general description of
    this people, with an account of the several orders of men into
    which they were divided while they continued in Germany._

                            _LECT._ IV.

    _The_ companions _of a German Prince—The constitution of a
    German kingdom—The condition of property in Germany—The methods
    followed there of distributing justice, and the nature of the
    punishments inflicted on criminals._

                            _LECT._ V.

    _The decline of the Roman empire—The invasions of the Northern
    nations—The manner in which they settled in the Roman
    provinces—The changes insensibly introduced among them in
    consequence of their new situation—The policy and condition of
    the Franks after they had settled in France—The rise of the
    feudal law—Estates beneficiary and temporary._

                            _LECT._ VI.

    _The introduction of estates for life into the feudal
    system—The nature and forms of investiture—The oath of fealty,
    and the obligations of Lord and tenant._

                           _LECT._ VII.

    _Improper feuds or benefices—Grants to the Church—Grants
    in which the oath of fealty was remitted—Grants to which
    a condition was annexed that enlarged or diminished the
    estate—Grants which reserved certain other services, beside
    military service—Grants implying some certain service, as
    rent, and not reserving military service—Grants reserving
    no services, but general fealty—Grand Serjeantry—Petty
    Serjeantry—Grants to women—Grants of things not
    corporeal—Feudum de Cavena—Feudum de Camera._

                           _LECT._ VIII.

    _Feudum Soldatæ—Feudum habitationis—Feudum Guardiæ—Feudum
    Gastaldiæ—Feudum mercedis—Incorporeal benefices in
    England—Advowsons—Presentative advowsons—Collative
    advowsons—Donatives._

                            _LECT._ IX.

    _Tithes—The voluntary contributions of the faithful, the
    original revenue of the Church—The establishment of regular
    payments—The appropriations of the Church—The history and
    general rules of tithes in England._

                            _LECT._ X.

    _The right of Seignory and its consequences—The right of
    Reversion—Rent seck—Rent charge—The nature of_ distress, _as
    the remedy for recovering feudal duties. Observations on_
    distresses _in general_.

                            _LECT._ XI.

    _The manner in which estates for life came to be enlarged
    into descendible estates—The nature of Reliefs—Feudal
    oppressions—The admission of allodial lands into the feudal
    policy—The extension of the feudal system in France._

                           _LECT._ XII.

    _Consequences attending the introduction of estates of
    inheritance—The incident of homage—Differences in England and
    the Continent, with regard to the ceremonies of homage and
    fealty—The fine of alienation—Attornment—Warranties—Wardship in
    chivalry._

                           _LECT._ XIII.

    _Wardship in Socage—The nature and history of the incident of
    marriage._

                           _LECT._ XIV.

    _The rules of descent in the old feudal law in regard to the
    sons of the last possessor—Representation and collateral
    succession—Feminine feuds._

                            _LECT._ XV.

    _The difference between allodial and feudal lands—The
    restrictions on the feudal law—The decay of these—The history
    of voluntary alienations._

                           _LECT._ XVI.

    _Involuntary alienations of feudal land—Talliage—Edward I.
    introduces the first involuntary attachment of lands—Statutes
    enacted for this purpose—Their effects—The origin of estates
    Tail._

                           _LECT._ XVII.

    _The consequences and history of estates Tail._

                          _LECT._ XVIII.

    _The constitution of a feudal monarchy—The dignity and revenues
    of the King—An examination of his power as to the raising of
    taxes and subsidies._

                           _LECT._ XIX.

    _The King’s power as to the making, repealing, altering, or
    dispensing with laws._

                            _LECT._ XX.

    _Lords of Parliament or Peers—Earls or Barons—The earlier state
    of Baronies in England—The Barones majores & minores—Barons by
    writ and by letters patent—The different ranks of Nobility._

                           _LECT._ XXI.

    _Earls or Counts as distinguished from Barons—The office of
    Counts—Their condition after the conquest—Counties Palatine in
    England—Counties Palatine in Ireland—Spiritual Peers—The trials
    of Noblemen._

                           _LECT._ XXII.

    _The share of the Commons in the Legislature—The Armigeri or
    Gentry—Knights Bannerets—The nature of Knighthood altered
    in the reign of James I.—Knights Baronets—Citizens and
    Burghers—The advancement of the power and reputation of the
    Commons._

                          _LECT._ XXIII.

    _The privilege of voting for Knights of the Shire—The business
    of the different branches of the Legislature, distinct and
    separate—The method of passing laws—The history and form of the
    legislature in Ireland._

                           _LECT._ XXIV.

    _Villenage—The Servi in Germany, mentioned by Cæsar and
    Tacitus, the predecessors of the Socmen or socage tenants in
    the feudal monarchy—Villeins in gross and villeins belonging to
    the land of the Lord—The condition of villeins—The different
    ways by which a man may become a villein—The means by which
    villenage or its effects may be suspended._

                           _LECT._ XXV.

    _The methods invented to destroy villenage—The bent of the law
    of England towards liberty—Copyhold tenants—Tenants in ancient
    demesne._

                           _LECT._ XXVI.

    _The condition and state of laws in England during the Saxon
    times—The military policy of the Saxons not so perfect as
    that of the Franks—Their Kings elective—The division of the
    kingdom into shires, hundreds, and tithings—The administration
    of justice—The county court—The hundred court and court
    leet—The court-baron—The curia regis—Method of trial in
    the Saxon courts—The ordeal—The waging of law—The trial by
    battle—Juries._

                          _LECT._ XXVII.

    _The punishment of public crimes and private wrongs among the
    Saxons—The ranks of men among the Saxons—The difficulty of
    ascertaining the nature of the Saxon estates, and the tenures
    by which they were held—Observations to prove, that the Saxon
    lands were in general allodial._

                          _LECT._ XXVIII.

    _The Saxons, though their lands in general were allodial, were
    not strangers to military benefices for life—The alterations
    introduced by William the Norman, as to the tenure of lands in
    England._

                           _LECT._ XXIX.

    _The alterations introduced by William, as to the
    administration of justice—The Judges of the Curia Regis are
    appointed from among the Normans—The county courts decline—The
    introduction of the Norman language—The distinction between
    courts of record, and not of record—The separation of the
    spiritual and temporal courts—The consequences of this measure._

                           _LECT._ XXX.

    _Robert Duke of Normandy, and William Rufus, dispute the
    succession to the Conqueror—The English prefer the latter—The
    forest laws—The cruelty and oppressions of William—The
    advancement of Henry, the Conqueror’s youngest son, to the
    crown of England—He grants a charter—The nature of this
    charter—His dispute with Anselm concerning Investitures—The
    celibacy of the clergy—State of the kingdom under Stephen._

                           _LECT._ XXXI.

    _Henry II. succeeds to the crown—The reformation
    of abuses—Alterations introduced into the English
    law—The commutation of services into money—Escuage or
    Scutage—Reliefs—Assizes of novel disseisin, and other assizes._

                          _LECT._ XXXII.

    _The institution of Judges itinerant, or Justices in Eyre—The
    advantages attending it—The jurisdiction of these Judges—Their
    circuits—The present form of transacting the county
    business—The division of the Curia Regis into four courts—The
    jurisdiction of the court of King’s Bench._

                          _LECT._ XXXIII.

    _The jurisdiction of the high court of Chancery—The chancellor,
    a very considerable officer in the Curia Regis—The repeal of
    letters patent, improvidently issued to the detriment of the
    King or the subject, a branch of the jurisdiction of the court
    of Chancery—The Chancery, assistant to the Exchequer in matters
    of the King’s revenue—Other branches of the business of this
    court._

                          _LECT._ XXXIV.

    _The court of Common Bench or Common Pleas—The jurisdiction
    of this court—Actions real, personal, or mixt—The court of
    Exchequer—The jurisdiction of this court—Exchequer chamber—The
    judicature of Parliament._

                           _LECT._ XXXV.

    _Henry II’s dispute with Becket—The constitutions of
    Clarendon—The murder of Becket._

                          _LECT._ XXXVI.

    _The rebellions of Henry’s sons—He is succeeded by Richard
    I.—The steps taken at this period towards settling the
    succession to the kingdom—The laws of Oleron—Accession of
    John—His cruelty and oppressions._

                          _LECT._ XXXVII.

    _John’s dispute with the court of Rome—Cardinal Langton
    promoted to be Archbishop of Canterbury—Pope Innocent lays
    the kingdom under an interdict—John is excommunicated—His
    submission to Innocent—The discontents of the Barons—Magna
    charta and charta de Foresta—An examination of the Question,
    Whether the rights and liberties, contained in these charters,
    are to be considered as the antient rights and liberties of
    the nation, or as the fruits of rebellion, and revocable by the
    successors of John?_

                         _LECT._ XXXVIII.

    _The minority of Henry III.—Ecclesiastical grievances—The
    dispensing power—The canon law—Confirmation of Magna Charta—A
    commentary on Magna Charta, in so far as it relates to what now
    is law._

             _LECT._ XXXIX, XL, XLI, XLII, and XLIII.

    _Continuation of the commentary on Magna Charta._





A DISCOURSE CONCERNING THE LAWS AND GOVERNMENT OF ENGLAND.


The last conquest attempted under the Roman Republic was that of Britain.
Julius Cæsar, on the pretence that its states had given assistance to
the Gauls, but chiefly from a motive of glory, carried the Roman Eagles
into a country from which he was to retreat with disgrace. It required
a length of time, and a succession of able Proconsuls to reduce to
subjection Communities of fierce and independent warriours; and policy
effected what could not be operated by arms. The Britains were debauched
into a resemblance with a most corrupted people. They renounced the
fatigues of war for the blandishments of peace. They forsook their huts
for palaces; affected a costliness of living, and gave way to a seducing
voluptuousness. They sunk into an abject debasement, without having run
that career of greatness, which, in general, precedes the decline of
nations; and, when they were trained to an oppressive yoke, the Romans
found it necessary to abandon them. The impression which the barbarous
tribes had made upon the Empire required the presence of the distant
legions[1].

The liberty which the Romans, on their departure, presented to the
Britains, could not be enjoyed by them. Timid and dastardly, they fled
before the Picts and Scots, and allowed their country to be ravaged by a
cruel and undisciplined enemy. Amidst the suggestions of their fear, they
forgot every principle of policy and of prudence; they called to their
defence a foreign valour. The Saxons were invited to fight their battles;
but they acted not long as protectors. They were allured by the prospect
of compleating a settlement in this island; and the total ruin of its
inhabitants was projected. Despair gave a temporary vigour and union to
the Britains. They were unable, however, to resist a people, accustomed
to victory, and directed by experienced commanders. The valiant and
magnanimous fell by the sword; the ignoble submitted to an ignominious
servitude: Wales afforded a retreat to some; and others found shelter in
Armorica[2].

But, if the Saxon conquest was ruinous to the Britains, it was yet
attended with consequences which were lasting and important. The sun of
liberty revisited the island, and displayed itself with uncommon lustre.
The Saxons, independent in their original seats, submitted not to tyrants
in their new situation. They laid the foundation of a political fabric,
the most valuable that has, at any time, appeared among men; and which,
though shaken by violent revolutions, a train of fortunate circumstances
has continued down to the present times. Fluctuations have taken place
between prerogative and liberty; but, accident and wisdom have still
conspired to preserve us from the fate of the other kingdoms of Europe.

During the existence, however, of the Heptarchy, the Saxons seem to
have departed little from their original condition of Society. The
ferocious picture which Tacitus has drawn of the Germans, is, with a few
exceptions, characteristic of them. If we admire their heroism, we are
shocked with their cruelty; and if we are in love with their democratical
maxims, we must sometimes regret their contempt of justice and of order.
The most important innovation introduced into their manners during this
æra was their conversion to christianity. But their acquaintance with
this mode of faith failed to be productive of beneficial consequences.
As they received it from the corrupted source of the Church of Rome,
it involved them in endless and idle disputes. It detracted from the
vigour of their understanding, by turning their attention from civil
precautions, and the arts of policy, to the relics of saints, and the
severities of religious discipline. The power derived from it intoxicated
ecclesiastics: They presumed to interfere in affairs of state; and, a
foundation seemed already to be laid for subjecting the island to the
dominion of the Roman Pontiff[3].

When the Saxon kingdoms were consolidated into one state under Egbert,
improvements were made in civility and knowledge. The incursions of the
Danes, and the disorders resulting from them, called forth the ability
and the wisdom of the Anglo-Saxon Princes. Alfred, notwithstanding the
other important transactions of his reign, found leisure to frame into a
code the laws of his predecessors, and those Germanic customs which had
retained their influence. King Edgar has likeways come down to us with
the character of an able legislator. The establishment of the Danes in
England gave occasion to new usages and new laws; but these were neither
many, nor considerable[4]. The ability of Canute did not allow him to
make distinctions between his Danish and his English subjects; and the
sceptre was not long in returning to a prince of the Saxon line. No
Monarch was ever more acceptable to a State than Edward the Confessor;
and, though he had rather the qualities of a saint than those of a king,
his laws have been highly extolled. They were strenuously contended
for during the administration of the earlier Norman princes; they kept
their ground in opposition to the clergy and the imperial institutions;
and they furnished the foundation of what is termed the Common Law of
England[5].

In no portion of the Anglo-Saxon period does the power of the Sovereign
appear to have been exorbitant or formidable. The enaction of Laws,
and the supreme sway in all matters, whether civil or ecclesiastical,
were vested in the _Wittenagemot_, or great National Assembly[6]. This
council consisted of King, Lords, and Commons, and exhibited a species
of government, of which political liberty was the necessary consequence;
as its component parts were mutually a check to one another. The free
condition of the northern nations, and the peculiarity of their situation
when they had made conquests, gave rise to this valuable scheme of
administration, and taught the politicians of Europe what was unknown to
antiquity, a distinction between despotism and monarchy.

The executive power remained with the crown; but it was the united assent
of the three estates which constituted the legislature. The Lords were
spiritual as well as temporal; for notwithstanding that the Ecclesiastics
preached humility, and the contempt of private interest, they had been
seized with ambition and the love of superiority[7]. The people exercised
an authority that was important and ample. The counties appeared
by their knights, and the cities and boroughs by their citizens and
burgesses; the Commons, as at this day constituted, being included under
the appellation of the _wites_ or _sapientes_, who are always mentioned
as a part of the Anglo-Saxon parliament[8]. The assertors of prerogative,
indeed, have affirmed that these were judges or men skilled in the law;
but this opinion they support by very exceptionable evidence[9]: And it
has been conjectured, with no measure of propriety, by some compromising
writers, that all the more considerable proprietors of land had a title,
without any election, to give their votes in the Wittenagemot[10].

In inferior assemblies, and in the forms of judicial proceedings, the
marks are also to be traced of the power of the people, and of a limited
administration. The hundred and county courts were admirably calculated
for the protection of the subject. They were composed of _freeholders_,
who were bound, under a penalty, to assemble at stated times; and who,
with the hundreder, earl and bishop, gave decision in all matters of
civil, criminal, or ecclesiastical import. A very powerful obstruction
was thus created to the oppressions of the great. And, in the institution
of a _jury_, our ancestors possessed a bulwark, the most efficacious and
noble that human wisdom has ever devised for the security of the persons
and possessions of men[11].

Nor was the condition of those times so entirely destitute of grandeur
as some historians have been fond to assert. Even in the age of Tacitus,
London was a port not unknown to navigators and traders[12]; and we have
the authority of Bede, that England abounded at an early period with
cities which were wealthy and populous[13]. Alfred was particularly
attentive to encourage industry, trade and manufactures; and even
imported the luxuries of life from the most distant countries[14]. It
was a law of Athelstane, that the merchant, who had performed at his
own expence three long and hazardous voyages, should be invested with
nobility[15]. Civility and knowledge, commerce and wealth increased under
Edgar, whose ability and affable manners allured many foreigners to his
court; and affairs did not degenerate, nor was England less respectable
under the peaceful and fortunate administration of Edward the Confessor.

But the beautiful pre-eminence on the side of the people, enjoyed during
the Saxon times, was soon to be violated. The invasion of the duke of
Normandy was about to introduce sanguinary and oppressive times. We
must not, however, with a multitude of authors, be deceived into the
opinion, that this warriour and statesman atchieved a _conquest_ over the
constitution and the people of England. He made effectual by arms his
right of succession to Edward; but he received the crown with all its
inherent properties. He took the oath which had been prescribed to the
Saxon princes; he acknowledged himself to be equally under restraint and
limitation; and he engaged to preserve the immunities of the church, and
to act according to the laws. The victory he obtained at Hastings was
over the person of Harold, and not over the rights of the nation[16].

His accession, at the same time, it will be allowed, was a source of
inquietude and confusion. Dominion is ever consequent on property; and
the forfeited estates of the nobility and the landed proprietors who had
assisted Harold, or who had afterwards joined in insurrections, having
been bestowed by him on his officers; and the high rank of many of these
requiring very ample retributions, a great proportion of territory was
necessarily vested in the hands of a few. Nor was it favourable to the
spirit of democracy, that the donations of William were governed by the
more extended notions of the feudal law.

This polity, which was common to the northern tribes, had not been
unknown to our Saxon ancestors; but, though they were familiar with
grants, which were precarious, or which endured for a term of years,
or during the life of the feudatory, they had seen few examples of the
perpetuity of the fief. They had not been accustomed to the last step of
the feudal progress; but a tendency to its establishment was observable
among them; and, if the invasion of William had never taken place, the
institutions of this law had yet arrived at their highest point. He only
hastened what the course of time was about to produce by slow degrees: It
was a result of his administration, that, before the end of the reign of
Henry II. fiefs, in their more enlarged condition, had spread themselves
over England[17].

This plan of political law, which had been propitious to liberty and
conquest in its rise, was prejudicial to both in its decline; and the
same institutions, which in one situation, conducted to greatness,
led the way in another to confusion and anarchy[18]. The advantages
which distinguished their earlier state, were unknown when they had
attained the ultimate step of their progress. When fiefs had become
hereditary, the association of the chief and the retainer, or the lord
and his vassal, had no longer for its support, any other tie than that
of land[19]; and, if the possessor of a fief was less attached to his
followers, he was less dependent on, and less connected with his prince.
The system had lost the circumstances, which formerly had fitted it so
admirably for war; and the few regulations it included with regard to
peace and domestic policy, were rather calculated for the narrow circle
of a nascent community, than for the complicated fabric of an extensive
empire.

The exorbitant grants, which it was necessary that duke William should
make, the full establishment of the perpetuity of the fief, and the
consequent investment of offices of rank and of dignity in particular
families, introduced all the disorders of aristocracy. The most princely
dominion was in general claimed and exercised by the great[20]. They
assumed the right of declaring war against each other of their private
authority; they coined money; and they affected to exert without appeal
every species of jurisdiction. But while they disputed in the field
the prize of military glory, or vied in displays of magnificence and
grandeur, their tenants and vassals were oppressed to supply their
necessities; and, amidst the unbounded rapine and licentiousness which
arose, no legal protection was afforded to individuals[21]. There was no
safety for the helpless but in associations with the powerful; and to
these they paid attention and service. The tribunals of justice became
corrupted; and decisions were publickly bought from the judges. New
sources of oppression were thought of; and none were infamous enough to
be rejected. The feudal casualties were exacted with the most rigorous
severity; and, while the kingdom appeared to be divided into a thousand
principalities, the people were nearly debased into a state of servility.

On a superficial view, one would be apt to imagine, that, in regard to
competition, the nobles of those times were considerably an overmatch for
the prince. But Barons, whose chief recommendations were the military
virtues, who were haughty and independent, and often inflamed against
each other with the fiercest animosity, could not always act in a body,
or by fixed and determined maxims. It was not so with the sovereign: The
master of operations, which depended on himself, he could speculate in
silence, and watch the opportunities of action. The advantages he derived
from his situation were powerful. Not to mention his prerogatives and his
revenue; the returns of feudal service reminded the nobility of their
subjection to him; and the inferior orders of men, regarding these as
their immediate oppressors, looked up to him as to their guardian.

Amidst the lawless confusion introduced by the struggles between regal
and aristocratical dominion, the constitutional rights of the Commons
seem to have received a temporary interruption, and to have been
insulted with a temporary disregard. Their assembling in parliament
grew to be less frequent and less effectual; and for a season, perhaps,
was altogether suspended. But notwithstanding the disorder occasioned
by these struggles, they were in time productive of effects which
were beneficial to the people. For if the charter, confirming their
_ancient_ liberties, which was granted by Henry I. renewed by Stephen,
and continued by Henry II. had remained without a due and proper force;
the confederacy of the barons produced under king John and Henry III.
the revival and the exercise of the most important privileges. The MAGNA
CHARTA brought back, in some measure, the golden times of the Confessor.
It appeared to the barons, that they could not expect the assistance of
the people, if, in treating with John, they should only act for their
own emolument; they were therefore careful that stipulations should be
made in favour of general liberty. The people were considered as parties
to transactions which most intimately concerned them. The feudal rigours
were abated; and the privileges, claimed by the more dignified possessors
of fiefs, were communicated to inferior vassals. The cities and boroughs
received a confirmation of their _ancient_ immunities and customs[22].
Provisions were made for a proper execution of justice; and in the
restraints affixed to the power of the king and the nobility, the people
found protection and security.

The sovereign, no less than the nobles, was an enemy to public liberty;
and yet both contributed to establish it. Stephen gave the example
of a practice, which as it served to enfeeble the aristocracy, was
not forgotten by his successors. In the event of the reversion to the
crown of a great barony, he gave it away in different divisions; and
the tenants _in capite_ produced in this manner, threw naturally their
influence into the scale of the commons. The partitions, also, which the
extravagance of the nobility, and the failure of male-heirs, introduced
into great estates, contributed to restore the democracy. It was a
result, likeways, of the madness of the Crusades, that many adventurers
to the east returned with more cultivated manners, and more improved
notions of order and liberty; and the romantic glory of acquiring
a renown there, had induced many potent barons to dispose of their
possessions. The boroughs hastened to recover the shock, which they had
received during the violent administrations of William and of Rufus[23];
and, if charters of corporation and community were granted seldom
during the reigns of Henry I. and of Stephen, they were frequent under
Henry II. Richard I. king John, and Henry III. During the sovereignty,
accordingly, of the last, and during that of Edward I. the acquisitions
secured by the Commons appeared so considerable, that their assembling in
parliament became a matter of greater regularity, and they rose to their
ancient importance from the disorder into which they had been thrown
during agitated and turbulent times.

The 49th year of Henry III. and the 23d year of Edward I. which so many
writers consider as the dates of the establishment of the Commons, were,
of consequence, nothing more than memorable epochs in their history[24].

Under Edward I. the constitution received a stability to which it was
no less indebted to his military than his civil capacity. The wars
and expeditions in which he engaged, involved him in immense expence;
and calling for supplies, rendered him particularly attentive to the
people. The feudal force of the kingdom could not be employed by him
with efficacy. In the decline of the gothic system, the nobles were not
sufficiently in subjection to the prince; and their service was limited
to a narrow period. In the reign, indeed, of Henry II. a pecuniary
payment had been substituted in the place of the personal attendance of
the military vassal; and the custom had prevailed of hiring soldiers of
fortune. But, amidst the prevalence of private and mercenary views, the
generous principles which had given solidity to the feudal fabric[25],
having totally decayed, and the holding by a military tenure having
ceased to be considered as an honour; vassals thought of eluding the
duties to which they were bound by their possessions, and granting them
away in fictitious conveyances, received them back under the burden of
elusory or civil donations. It even grew to be usual among tenants to
refuse the pecuniary payments, or the _scutages_ to which they were
liable: They denied the number of their fees; they alledged that the
charge demanded of them was not justified by their charters; and, while
the prince was ready to march against an enemy, it was not convenient to
look into records and registers. The sovereign deprived of his service,
and defrauded of his revenue, and under the necessity of levying a
military force, had no resource so secure or abundant as the generosity
of the people[26].

The admirable improvements with which Edward enriched the laws, and
facilitated the preservation of domestic peace and order, contributed
also with the greatest efficacy to advance and secure the liberties
of England. He established the limits of the different courts; he
gave a check to the insolence and encroachments of the clergy; he
abrogated all inconvenient and dangerous usages; and the great charter,
and the charter of the forest, received from him the most ample
settlement[27]. The sagacity of his precautions and policy procured
to him most deservedly the name of the _English Justinian_; and it may
be mentioned as a convincing proof, both of his genius, and of his
having studied the welfare of his people, that, to the form into which
he modelled the common law, as to the administration of common justice,
the wisdom of succeeding times has not been able to add any considerable
improvements[28].

The crown of Edward I. but not his talents, descended to Edward II. The
indolence, however, and the incapacity of the last prince, joined to his
absurd passion for favourites, though they rendered his reign tumultuous
and unhappy, were no less favourable to the dignity of parliament, and
the power of the people, than the excellent administration of Edward
III. and the necessities to which he was subjected by his ambition and
his prowess. A weak prince may lose the prerogatives transmitted to him;
but will never be the founder of a despotism. A high-spirited monarch,
dependent for resources on his people, may carry destruction and ruin
into the country of an enemy, but will not easily be induced to attack
the liberty and the prosperity of his own kingdom.

The sons of Edward III. had contributed, while he lived, to his grandeur,
and that of the nation; but no sooner was he laid in his grave, than
they excited commotions. The ambition of their posterity was still more
pestilent and fatal. The wars between the Houses of York and Lancaster
deluged England with blood. The passions of men were driven into rage
and phrenzy; and in the massacres, rather than the battles that ensued,
conquest or death seemed the only alternative. But while we turn with
sorrow from this bloody period of our story, our sympathy is softened
by the recollection, that the contending princes brought accessions
to liberty, by adding to the weight of the Commons. The favour and
countenance of the people were anxiously solicited by both factions; and
their influence failed not to grow, while the means of extending it were
offered, and while they were courted to seize them[29].

The nation, when satiated with the calamities of civil war, thought of
uniting the claims of the two hostile families. Henry VII. the heir of
the House of Lancaster, was married to Elizabeth, the heiress of the
House of York. This prince affected to be profound, and he has obtained
that character. But the condition of Europe at the time in which he
lived, and the situation in which he found himself, pointed out to him
his strain of conduct. He was more mysterious than wise; more prudent
than enterprizing; and more a slave to avarice than ambition. Without
having intended it, he placed the grandeur of the Commons on the most
solid foundation. In the liberty which he granted to the nobility of
breaking their entails, he saw only the degradation of that order. The
civil wars had involved them in great expence; and the growing commerce
and refinement of the times, exposed them to still greater. Their
princely possessions flowed from them to give dignity to the people[30].

Henry VIII. had no certain character, and was actuated by no fixed and
determined maxims. He had not the ability to form, nor the firmness to
put into execution a deliberate scheme to overturn the liberties of
his country. With less capacity than his ancestor, his reign was more
splendid; and, with a more imperious temper, he had the art or the
felicity to preserve the affection of his subjects. The father removed
the pillar which supported the power of the nobles: The son gave a
mortal blow to the influence of the clergy. In the humiliation of both,
the Commons found a matter of triumph. The Reformation, though it
interrupted the progress of literature, was yet highly conducive to civil
liberty. The church in losing an authority which it had never merited,
and which it had often abused, sunk into a dependence on government. The
supremacy returned to the sovereign to whom it originally belonged, and
with whom it ought constantly to have remained. The visitation of the
monasteries discovered more than the inventions of a pious fraud; vices
and abuses which cannot be described, without conveying to the mind the
impression of whatever is most wicked and most dishonourable: Their
suppression gave encouragement to industry and to the arts; and their
wealth diffused in a thousand channels, circulated through the kingdom.

The Reformation advanced under Edward VI. but it was destined that this
prince should only make his appearance on the stage of public life,
and give the hope of an able administration. The sway of Mary was a
paroxysm of religious madness. She knew not, that when the individuals
of a kingdom have agreed to adopt a new religion, it is the duty of the
sovereign to give a sanction to it. The reformed were about to experience
whatever cruelty the extremity of a mistaken zeal can inflict. But the
fires lighted by Gardiner, Bonner, and such abominable men, brought no
converts to popery. The dread of endangering the succession of Elizabeth
prevented the parliament from giving a check to the obstinate malignity
and the sanguinary rage of this unworthy queen; or, perhaps, the nation
had scarcely recovered the astonishment into which it was thrown by
the atrocity of her deeds, when, in the sixth year of her reign,
superstition, peevishness, and the most selfish and unhappy passions, put
an end to her life.

Elizabeth, who had learned wisdom from misfortune, attained the summit of
political glory. The perilous condition of affairs, on her commencing to
reign, required singular moderation and ability, and she exerted them. A
sagacity, almost incapable of mistake, directed all her operations[31].
England grew in commerce and advantages, while the rest of Europe was
agitated with contentions, and debated with the tyranny of power. Her
jealousy of prerogative was corrected by her attachment to the felicity
of her people; and the popularity with which she reigned is the fullest
proof that she preserved inviolated all the barriers of liberty[32].
The reformation which the folly of her predecessor had interrupted, was
compleated by her prudence.

This accomplished princess was succeeded by James VI. of Scotland. He
substituted, in the place of ability, the affectation of it. The English
nation received him with marks of respect which they were not to continue
long. With high notions of kingly dignity, all his actions tended to
degrade it; and, while his littleness rendered him contemptible at
home, he became an object of ridicule abroad, from his ignorance of
foreign politics. Careless in the choice of his ministers, and supremely
conceited of his own wisdom, his reign brought no glory to the crown.

The great improvement, which, about this period, displayed itself in the
national manners, diffused among all ranks of men very enlarged ideas
concerning the nature and principles of civil government. The arts had
been cultivated with uncommon success. Discoveries had been made in the
most distant regions of the globe. Commerce had brought great accessions
of wealth. The balance of property had turned with no equivocal direction
to the side of the people.

It was not an age for fastidious and tyrannical maxims. The Commons
knew all their strength, and were determined to employ it. The prince
endeavoured in vain to impress them with his exorbitant notions of regal
authority. Every complaint and grievance of the subject were inquired
into; every suspicious and inclement act of prerogative was opposed. The
doctrines of the divine right of kings, and of passive obedience, were
now first heard of, and alarmed and astonished the nation. Pretensions to
power, destructive of the natural and inherent privileges of humanity,
and inconsistent with every principle of common sense, were asserted from
the pulpit, were claimed by the sovereign. The extravagance of James
awakened the thunder which was to burst on the head of his successor.

Charles I. had imbibed the same lofty conceptions of kingly power; and
his character was marked by the same incapacity for real business.
His situation required insinuation and address; but he affected the
utmost stateliness of demeanor. He disgusted the Commons; he insulted
the people. To the exercise of his authority, he fancied there was no
limitation. Inflamed with opposition, he presumed to attack whatever was
most sacred, and most valuable among men. The imprudence of Buckingham
had not softened his obstinacy: His Queen was indiscreet, and he confided
in her. The violent councils of Strafford precipitated his own and the
ruin of his master. The religious foppery of Laud completed what the
incapacity of James had begun: It was the cement of union between the
friends of liberty and the sect of the Puritans. The people beheld with
a fixed and a general indignation the insult and the violence which were
offered to the majesty of their laws, and to their constitution. The
flames of civil discord were kindled. England was torn during six years
with political and religious fury. The unfortunate Charles atoned at
length by his death the disorders he had occasioned. The delegates of
the people pronounced him guilty of misgovernment and breach of trust.
“The pomp, says an eloquent historian, the dignity, the ceremony of this
transaction, corresponded to the greatest conception that is suggested in
the whole annals of human kind[33].”

Cromwel, the immediate cause of the death of Charles, and of those
circumstances of censure which accompanied it, astonished at the height,
to which, in the course of the civil wars, his ambition had carried him,
was induced to aspire still higher. His genius was great, his fortune
greater. On the abolition of monarchy, he introduced into England a
military despotism, under the appellation of a common-wealth[34]. From an
inferior rank, he had risen gradually to direct the affairs of a powerful
nation. Though irregular in his politics, the vigour of his conduct
brought signal glory to his councils and his arms. But the fabric he had
built was ill-contrived and ill-cemented; its parts were disproportioned;
and it rested on no solid foundation. It began to totter during his own
life. His son Richard had none of the talents of an usurper. The minds
of the people united in an anxious wish for the re-establishment of
the ancient constitution; and general Monke acquired the honour of the
peerage, and the fame of uncommon political sagacity, for forwarding an
event, which it was impossible to prevent.

Charles II. never forgave the people of England for the misfortunes
he himself had suffered, nor for those of his House. This monarch had
quickness of parts, but possessed not that discernment which sees into
the future. He entered without reflection into schemes and projects,
and renounced them with the same precipitation. Though an enemy to the
constitution of his country, and though in the interest of France, he was
not able to produce any lasting disadvantage to the kingdom. His reign,
though tumultuous, was not unfavourable to liberty. The total abolition
of the military tenures and their appendages, which had place during his
sovereignty, was a most important acquisition to the people: It relieved
their estates from every source of legal oppression. The _habeas corpus_
act, which was some years posterior to it, offered the firmest security
to their persons. It produces in a court of justice the body of every
prisoner; it makes known the cause of every commitment; and, if an
individual has suffered confinement in opposition to the law, though at
the command of the king in council, he is restored to his liberty, and
has a claim of compensation for the loss and the indignity his affairs
and his honour have sustained.

The clamour against popery was loud and violent during the long
administration of Charles II. and yet the crown was permitted to pass
to the Duke of York. This confidence, so honourable to the people, was
abused by the sovereign. James II. had the zeal of a monk, not the virtue
and the talents of a great king. His bigotry and his lust of power made
him perpetrate the most atrocious and the most insolent acts. Violating
equally civil and religious liberty, his subjects deprived him of a
throne of which he was unworthy.

In settling the crown on the prince and princess of Orange, the wisest
precautions were taken, that the religion, the laws, and the liberties
of England should never more be in danger of being subverted. The limits
of the prerogative were defined; the extent of the freedom of the people
was ascertained; and the doctrine of resisting the prince, when he should
presume to encroach on the rights of the subject, was explained and
illustrated[35].

From the Saxon conquest, during a long succession of ages, this fortunate
island has never degenerated from liberty. In the most inclement periods
of its history, it despaired not of independence. It has constantly
fostered that indignant spirit which disdains all subjection to an
arbitrary sway. The constitution, prospering under the shocks it
received, fixed itself at the highest point of liberty that is compatible
with government. May it continue its purity and vigour! and give felicity
and greatness to the most distant times!

                                                             _March 1775._




LECTURES ON THE LAWS OF ENGLAND.




LECTURE I.

    _The intention and purposes of political society—Customs and
    manners govern men before the enactment of positive Laws—Arts
    and property the sources of legislation—Peculiarities attending
    the institutions of Lycurgus and those of Moses—In the infancy
    of a state, laws are few and plain—In times of civility and
    refinement, they are numerous and complicated—The liberty of
    the people, a great cause of the multiplicity of laws—The
    difficulty of the study of the English law—The methods which
    have been followed in the study of it._


Since every political society was originally framed for the general
benefit of the several individuals of which it was composed, in order
that, supported by the united strength of the whole community, each
person might have that security in his life, his liberty, his property,
which, unassisted in a state of nature, he could not of himself attain
unto; and that, instructed by the joint counsels and wisdom of the whole
body, he might so direct his actions, as to promote the public welfare,
with which his own safety and interest are necessarily connected; it
follows, that, in such a state, every man must, even for his own sake, in
many things, sacrifice his private judgment, and his natural liberty of
action, to the will of that community to which he belongs; which will,
acting uniformly for the same purposes, cannot fail of producing a number
of fixed rules and regulations, to serve as directions to the subjects,
in such cases as are common, and frequently occur.

Accordingly, we find, there never was a state or nation, even but one
degree removed from barbarity, that subsisted without some general
customs, at least, which supplied the place of positive laws, by which
the conduct of the several members of the society was to be governed,
and for the breach of which they were liable to punishment; and in such
a submission the very essence of political freedom consists. For, as M.
Montesquieu very justly observes, the liberty of man in a social state,
different from that in a state of nature, consisteth not in a power of
acting, in all things, according to his own judgment, but in acting
according thereto, in subservience to the will of the public, in being
free to do all things the law prohibits not, and to omit all things the
law doth not enjoin[36].

Hence, in all such infant states, the greatest respect is paid, and
the highest influence allowed to those, who, either by their age and
experience, or, by their application and labour, have arrived at a
proficiency in the knowledge of the customs and practices prevailing in
their own and neighbouring nations: _Qui mores hominum multorum vidit et
urbes_, is the great eulogium of the most accomplished hero of the heroic
ages.

It must be allowed, indeed, that, in societies so small that their
members are, in general, contented with little more than the bare
necessaries of nature, a few rules will be sufficient; and every man of
a tolerable capacity will, with a reasonable degree of observation, be,
in some measure, qualified to be his own lawyer. But when it shall happen
that arts are not only introduced, but become common among any people,
when the comforts and conveniencies of life are, in the public opinion,
esteemed necessaries; when the industry of some, and the negligence of
others, have produced a remarkable inequality in the goods of fortune;
when riches hath brought forth her offspring, insolence and oppression,
and when envy and avarice inflame the breasts of the indigent, it will
be absolutely necessary to lay a continual restraint on such violent
passions, ready at every instant to destroy the peace of society, and
to tear it into pieces, and, for that purpose, to form a great number
of regulations, to curb those who have created to themselves imaginary
wants, and who no longer regulate their conduct by the plain dictates of
rude and simple nature. And as the condition of such a nation must be
perpetually changing, as new arts and gratifications will be continually
invented, as the increase of commerce will every day open a prospect of
more various acquisitions, and insensibly introduce a general change
of manners in the people; and, above all, as the wits of men, checked
in their darling pursuits, will ever be at work to discover methods of
eluding those laws which they dare not openly infringe, there must ensue
a constant alteration and variation of the rules already in being, and a
continual addition of new ones to answer new and unforeseen emergencies.
The laws, therefore, of a nation so circumstanced, must increase to such
a number, and consist of so great a variety of particulars, as to render
it impossible for the generality of the subjects to be masters of them,
and will oblige them to resort to those whose easy circumstances and
leisure have enabled them thoroughly to comprehend and understand them;
and among such a people there must be _lawyers_, although, perhaps,
not formed into a distinct and separate profession, or known by that
appellation.

Great, undoubtedly, are the inconveniencies which attend a multiplicity
of laws, and very hard it seems, that all men should be obliged to obey
a rule, which it is confessed the majority are incapable of perfectly
knowing; but such is the natural and necessary course of things. If men
will not be contented to live in a state next to absolute barbarity, if
they will enjoy the conveniencies as well as the necessaries of life, if
they will be secured against the oppression and fraud of their fellow
subjects, as well as against the violence of strangers, they must submit
to and abide by the consequences. And so sensible of this necessity was
the great Spartan legislator, that when he resolved his state should
admit of no addition to, or alteration of his regulations, he wisely
stopped up the sources from which new laws spring. Commerce, and its
instrument, money, were prohibited; all arts, except those absolutely
necessary, were interdicted, and the people, by constantly living and
eating in public, were not only accustomed, but necessitated to content
themselves with what simple nature requires. By these means (and by
these only, or by others similar to these, could it be accomplished)
Lycurgus gave a firmness and stability to his republic, which continued
for several hundred years, until conquest introduced wealth, and its
necessary attendants, which soon eat out the vitals of that singular
constitution[37].

The law of Moses, likewise, was invariable, and admitted of no additions
or alterations; and as, from the peculiar circumstances of the country,
and its situation, there was no danger of an accumulation of wealth from
foreign commerce, so were the domestic regulations inimitably calculated
to prevent a great inequality of circumstances, and to oblige the nation
in general to a plain and simple life. All usury among the Israelites
was prohibited, the lands were alienable no longer than to the year of
jubilee, at which time they returned free to the original proprietor or
his heirs; and, by the invariable rules of descent, and the continual
dividing of estates among all the males in equal degree, every man was
proprietor of some small patrimony, and consequently obliged to live in
a frugal and laborious manner[38]. Athens, on the contrary, the most
commercial and the richest city of Greece, abounded, above all others,
in a multiplicity of laws, and those, for the causes already mentioned,
perpetually varying and changing. Rome, while it continued a mere
military state, was contented with a few, and those such as were short
and plain; but when, by the conquest of Carthage, of Greece, and of Asia,
floods of wealth were poured into Italy, the necessary consequences soon
followed. New laws were continually made, which, being as continually
eluded, of course gave birth to others. Every new conquest brought an
accession of riches, and became a source of farther regulations: until,
at length, they swelled to such a magnitude, as to become, in the time
of Justinian, an intolerable burthen: For, to say nothing of the laws
themselves, the _senatus consulta_, the _plebiscita_, the _edictum
perpetuum_, and the constitutions of the emperors, which were very
voluminous, the bare commentaries of the lawyers of authority amounted to
three thousand volumes.

If we look around the nations that now inhabit Europe, we shall find that
the same causes have constantly, every where, produced the same effect.
How few, how short, how plain, and simple, were the antient laws of the
Saxons, the Franks, the Burgundians, the Goths, and the Lombards, while
each of them continued a plain and simple people[39]. As they increased
in arts and wealth, as their kingdoms grew more powerful, either from
internal peace and commerce, or by the melting of different sovereignties
into one, we might see the laws gradually increase in number and in
length; this arose from the necessity their legislators were under,
from the different circumstances of the times and people, to enter into
details of which their ruder ancestors had no conception: and this
augmentation hath ever been in proportion to the wealth and power of the
people that was obliged to admit it; as might easily appear by fixing on
any one period, and by comparing the laws of those nations where arts and
trade were fully established, with those of others where they had not yet
got so firm a footing.

Within these last two hundred and fifty years, the inhabitants of Europe
in general, particularly those that have any considerable share in
universal commerce, seem to have been seized with an epidemical madness
of making new laws; insomuch that there is scarce a state whose laws,
since the year 1500, are not equal, if not superior, in number and bulk,
to those made in many preceding ages: an effect owing, partly to the
decay of the old military system, and to the necessity every government
was under, to have recourse to new methods for its support, when that
failed; but principally to the discoveries of America, and of the passage
to the East Indies; which, by the peaceful arts of industry and trade,
have poured into modern Europe an accession of treasure, equal to what
was amassed in Italy by conquest and rapine under the Roman empire. As
Britain, during this interval, shared more largely than any other country
in this vast increase of wealth, it is not surprising that her later laws
have been numerous and voluminous in proportion.

But there is another cause peculiar to these nations, which hath not a
little contributed to the same end, namely, that happy constitution, and
that liberty in which we so justly glory. A constitution which lodges
the supreme, the legislative power in three different hands, each of
which (if considered apart) hath an interest separate and distinct
from the other two, must require a variety of wise regulations, so to
ascertain their respective rights and privileges, and so to poise and
balance them, as to put it out of the power of any one to overtop the
others. A constitution that admits the people, by representation, to
so considerable a share of power, must have many laws to determine the
manner of elections, and the qualifications both of electors and elected.
A constitution that makes the preservation of political freedom its
great object, and that aims to defend the life, liberty, and property of
the meanest individual, not only against others of their own rank, but
even against the executive power of the society itself, must have many
extraordinary fences, and barriers, to protect the weak from the mighty.
Such a constitution must, more particularly than others, restrain its
judges, the dispensers of justice, who are, at the appointment of the
crown, to follow the strict letter of the positive laws; lest, under the
pretence of explaining and extending them, the most valuable privileges
of the people might be betrayed, or rendered illusory. And this very
restraint, so necessary in such a form of government, will eternally (as
new cases arise, which, not being in the contemplation of the legislature
at the time, were not comprehended in the words of the old provisions)
occasion the framing of new ones.

The state and condition of these kingdoms are such, therefore, as
necessarily require a great number of laws; and heavy as the burden of
them may seem, it should be borne with chearfulness, by all who esteem
the conveniencies of life, and the perfection of arts, more than a rude
and simple state of nature; who think wealth more eligible than poverty,
and power than weakness; or lastly, who prefer our excellent form of
government, and its mild administration, to the despotic tyrannies of
Asia, or the more moderately absolute monarchies of Europe.

From what hath been already observed, the difficulties attending this
study in these kingdoms will readily appear; but these, instead of
discouraging, should animate every gentleman, and inspire him with
resolution to surmount them; when he considers them as inseparable from
the happy situation in which we are placed, and that the character of an
upright and skilful lawyer is one of the most glorious, because one of
the most useful to mankind; that he is a support and defence of the weak,
the protector of the injured, the guardian of the lives and properties of
his fellow citizens, the vindicator of public wrongs, the common servant
both of prince and people, and, in these countries, the faithful guardian
of those liberties in which we pride ourselves, and which the bounteous
Creator bestowed originally on all the sons of Adam, and would have
continued to them, had they continued worthy of the blessing.

From hence, likewise, abundantly appears the necessity of proper methods
being pointed out for the study of the laws, and of proper assistance
being given to the youth intended for this profession. This was always
allowed, and for this purpose were the inns of court originally founded;
and it must be owned, that in ancient times, they, in a great measure,
answered the end. Their exercises, in those days, were not mere matters
of form, but real tests of the student’s proficiency. Their readers laid
down, in their lectures, the principles of particular parts of the law,
explained the difficulties, and reconciled the seeming contradictions,
though, at the same time, it must be owned, too many of them exerted
themselves in displaying their own skill and depth of knowledge in the
profession, rather than in removing the obstructions, and smoothing
the ruggedness which are so apt to discourage beginners, and which
all beginners must meet in this untrodden path, without a guide. But,
since the time that these aids have been there laid aside, and that, in
the midst of so great and so rich a city, any degree of restraint or
academical discipline, to keep the students constantly attentive to the
business they are engaged in, hath been found impracticable, it has been
the wish of every considering person, that the elements of this science
should be taught in some more eligible place, where the students may at
once have the benefit of a proper method of instruction, and by proper
regulations be obliged to improve themselves in a study so important both
to them and the public.

That the universities, the seats of all other branches of learning, are
the places most fit for this purpose, hath been so fully proved by Mr
Blackstone, in his preliminary lecture, not long since reprinted in this
kingdom, that it will be much more proper and decent for me to refer
gentlemen to that excellent performance, than to weaken his arguments,
by repeating, in other words, what he has demonstrated, with such force
of reason, and elegance of expression. I shall only add to what he hath
observed, that every other nation of Europe hath admitted the profession
of their municipal laws into their universities, and that the same hath
been the opinion and practice of almost every age and country, as far
back as the lights of history extend. Were not the laws of Egypt, as well
as their religion, physick, history, and sciences, taught in the colleges
of their priests? It is allowed by all, that the principal employment in
the schools of the prophets was the study of the law of Moses; and, to
come to more modern times, the very first universities that were ever
founded by royal authority, were the works of Roman emperors, and erected
merely for this profession. The famous academies of Rome for the west,
and of Berytus for the east, furnished that extensive empire with a
constant succession of excellent lawyers, whose names, and the fragments
of whose works were held in the highest honour, until the inundation
of barbarians from the north of Europe, and the prevailing arms of the
Saracens in the east extinguished the Roman government in those parts.
But that of Constantinople, founded soon after the translation of the
seat of empire thither, had a more happy destiny, flourished with
distinguished reputation to these later ages, and perished not, but
with the empire itself, when that city was taken by the Turks. Nay, so
sensible were the Arabs themselves, who destroyed the Roman academy of
Berytus, of the utility of such institutions, that, for their own law,
they erected others of the same nature in Bagdad[40].

Another powerful reason for laying the foundation of this branch of
learning in these seats of literature, arises from the great utility, or
rather, indeed, necessity, that all gentlemen bred in them are under, of
gaining a general idea, at least, of the principles and practice of the
law of their country. How advantageous this would be to every rank of
gentlemen, whether legislators, magistrates, divines, or jurymen; and to
all, in short, who have any property, to preserve, or transmit, or who
have wishes or desires to acquire any, may be seen at large, illustrated
by Mr Blackstone in the same performance. And indeed, if, before the
attempt, there could be any doubts of the propriety of beginning this
study in an university, the extraordinary success of his lectures in
Oxford, and the high reputation he hath so justly acquired thereby, leave
no room for entertaining such at present. For though much of both must
be attributed to the singular abilities of that gentleman, yet it must
be allowed that the most skilful gardener cannot make a tree flourish in
a soil unnatural to its growth. With the deepest gratitude, therefore,
should the members of this university acknowledge the munificence, and
the wisdom of our present most gracious Sovereign, who established the
present foundation for the benefit of the youth of this kingdom.

But if the importance of this institution to the public be considered,
together with the difficulties attending the just execution of it, when
these difficulties are enhanced by the novelty of the attempt, when the
public attention is engaged by that very novelty, and when the future
success of the foundation, may, perhaps, in some measure, depend on the
opinion conceived of it at the beginning; he must, indeed, be possessed
of a very overweaning opinion of his own abilities, who can undertake so
arduous a task, without feeling strong apprehensions at the first setting
out. All the return the person thought worthy by this learned body to
fill this chair can make them for so high an honour, and so important
a trust, is to assure them, that the utmost care, and the greatest
exertion of what knowledge and abilities he possesseth, shall be employed
to answer the ends proposed, and to justify, as far as in him lies, the
choice they have made. And if the young gentlemen for whose benefit these
lectures are designed, possessed with a just notion of the great utility
to themselves, and their country, of the study they are engaged in, will
exert that industry, for the honour of their mother university, which
hath made her so long famous for other branches of learning; he doubteth
not but his weak endeavours at the first essay, will not only merit
indulgence, but in the end be crowned with considerable success. On their
assiduity, as well as upon his skill, must the success of the undertaking
depend.

In the next lecture the grounds and reasons of the plan proposed, as most
proper for the commencing this study in this university, shall be laid
open, in hopes that the students will proceed with the more alacrity, if
they can be once convinced they are set in the right track, and that, by
the professor’s laying before the public the inducements he had to prefer
this before any other, he may acquire information from the skilful of
its errors and imperfections, and, consequently, alter it, so as most
effectually to answer the useful ends of the institution.




LECTURE II.

    _The plan of the present undertaking—The particulars in which
    it differs from that adopted by Mr Blackstone—The different
    situations of the Universities of Oxford and Dublin—The chief
    obstructions which occur to the student of the English laws—The
    methods which may be employed to remove them—The law of_ things
    _more proper to introduce a system of jurisprudence than the
    law of_ persons—_The law of_ things, _or of real property in
    England, has its source in the feudal customs—The necessity
    of a general acquaintance with the principles of the feudal
    polity—The method in which it is proposed to treat of it._


Having, in the preceding lecture, shewn the necessity of a proper method
being pointed out for the study of the laws of these kingdoms, from the
utility, as well as multiplicity of them; and having explained from
whence that multiplicity arises, and that it is inseparable from the
happy situation we are placed in; and having acknowledged the great
advantage the students of Oxford have received from Mr. Blackstone’s
lectures, it will doubtless be thought necessary, that something should
be said by way of illustration of the plan proposed to be followed here,
and in justification of its departure from the excellent one which
that gentleman has given us in his analysis. The method of instruction
intended to be pursued in this place is not proposed as more perfect, or
absolutely better in itself, but as one that appears more adapted to the
circumstances of our students; and as it will be allowed, that his course
of lectures, in the manner they proceed, hath some great advantages as to
the finishing a lawyer, which cannot be attained, and therefore should
not be attempted here, it will be particularly the duty of your professor
to compensate for those, by guarding against some inconveniencies, which
the extensiveness of his plan must of necessity subject young beginners
to. I shall, therefore, proceed briefly to compare the situation of the
two universities, in hopes, by that consideration, in some measure to
vindicate the several particulars wherein I have chosen to vary from his
scheme. The attendance on the courts of Westminster-Hall, when once a
gentleman hath read and digested enough to listen with understanding to
what he there hears, hath, for a succession of ages, been allowed to
be, and it must be owned is, the most effectual means of accomplishing
a lawyer, and fitting him for practice. In this respect Oxford, in
her proximity to Westminster, hath certainly an advantage, as to her
law students of above two years standing, who may at that time be
supposed capable of improvement by the arguments in the courts of law;
as she is thereby rendered capable of conjoining those two excellent
methods of instruction. Mr. Blackstone was fully sensible of this happy
circumstance, and, accordingly, his scheme is adapted to it. All the
lectures there are appointed at times that fall in the law vacations, and
the course is general and diffusive, not calculated merely for attendants
of the first and second years, but adapted also to those of a more
advanced standing, and consequently, in a manner equally copious, or very
nearly so, illustrates every one of the several branches of the English
law. But this method, however excellent in itself, and most eligible
where gentlemen can have an opportunity of attending the professor for
several successive years, must, on the other hand, be allowed to labour
under some inconveniencies, especially as to those who are yet novices,
which, as it should be the particular care of the professor here to
obviate, it cannot be improper briefly to point out.

As the lectures of the English professor are all read in the law
vacations, and in all of them, except the long one, when few young
gentlemen of fortune stay in the universities, the shortness of these
vacations necessarily occasions these lectures to follow each other in a
very quick succession; and, accordingly, we find that five are delivered
in every week. It is impossible, therefore, that the students at first
should keep any manner of pace with their professor in their private
reading, without which the ablest performances in the way of prelections
will be of little utility. Many things in the succeeding ones must be
rendered very difficult, if not absolutely unintelligible, for want of
a due time for mastering and digesting those that preceded; and another
unhappy consequence of this quick succession is, that the most useful
and effectual method of instruction to beginners, at their entrance upon
any science, namely, a continued examination of the progress they have
made, is hereby entirely precluded, and rendered impracticable. The great
advantage of that method need not be enlarged upon in this place, as
every gentleman who hears me must be already fully satisfied of it from
his own experience.

But this university is circumstanced in a very different manner. The
necessity our students are under of repairing to Westminster, to finish
their studies, before they are called to the bar, and their incapacity to
reap any benefit from the courts of law while they reside here, render
it impossible, as well as unnecessary, to conjoin those two methods of
instruction before-mentioned, as is done at Oxford; and, by confining
the professor to pupils of two years standing or little more, make
it highly improper for him to enter minutely into those parts of the
law his audience have not yet had time to apply to. His great object,
therefore, should be so to frame his lectures, as to be most useful to
youth at the beginning, to be particular and copious in the elementary
parts, in order to lay a sure foundation, and to smooth and make plain
the difficulties which at first will every where occur. And as, for these
reasons, a general and equally diffusive course is a method improper for
him to pursue, it should be his especial care to avoid, or remedy the
inconveniencies with which such an one is necessarily attended.

It is a well known truth, that the entrance on any study, however easy
and agreeable such study might be after some progress made in it, is
at the beginning very irksome, and attended with many perplexities;
principally arising from the use of new terms, whose significations are
yet unknown. But the laws of all nations, and those of England above all
others, abound in such novel words, and old ones used in an uncommon
sense, more than any other science, and therefore must be attended
with difficulties in proportion. And although many of its terms occur
frequently in common conversation, and may, consequently, be supposed
already understood, this is rather a disadvantage than otherwise;
for in common discourse they are used in so vague and undetermined a
meaning, and so far from strict precision and propriety, that it is no
wonder so many persons exclaim at the absurdity of its maxims; which,
though frequently in their mouths, they do not really understand.
Young gentlemen, then, have not only many new words to acquire the
signification of, but they must likewise unlearn the import of many
others they are already acquainted with, and affix to those familiar
terms new and precise ideas, a task, as Mr. Locke observes, of no small
difficulty, and that requires not only the strictest attention, but
constant care and frequent repetition. Another great difficulty the study
of the law of England labours under, peculiar to itself, is that want
of method, so obvious to be observed, and so often complained of in its
writers of authority, insomuch, that almost all of them, and lord Coke
particularly, are too apt to puzzle and bewilder young beginners; whereas
other laws, the civil, the canon, the feudal, have books of approved
authority, (and none other but such should be put into the students
hands,) calculated purposely for the instruction of novices; wherein the
general outlines of the whole law are laid down, the several parts of it
properly distributed, its terms explained, and the most common of its
rules and maxims, with the reasons of them, delivered and inculcated.
It is not to be admired then that Sir Henry Spelman so pathetically
describes his distress at his first entrance upon this study. _Emisit
me mater Londinum, juris nostri capessendi gratia, cujus cum vestibulum
salutassem, reperissemque linguam peregrinam, dialectum barbaram,
methodum inconcinnam, molem non ingentem solum, sed perpetuis humeris
sustinendam, excidit mihi fateor animus_[41].

These then are the obstructions to be removed, and the difficulties to
be obviated, by a professor who considers it his business to lead by the
hand young gentlemen, yet strangers to the study; and for this purpose
he should exert his utmost care and attention, not to overburthen the
memories, or to distract the attention of his audience with too great
variety at first, but to feed them with knowledge as he finds them
capable, and to give them time, by reading and meditation, to become
masters of what they have already acquired, and by frequent examinations
to satisfy himself they thoroughly comprehend and retain the substance
of his past lectures. The utility of this last method, by which the
students will be laid under a necessity of reading in private, as to
them, will be readily allowed; but taken in another view will be of no
less assistance to the professor himself, in framing the prelections he
is to read. He will not only be encouraged to proceed with more alacrity,
when he daily observes the success of his endeavours, but also, by the
trial, be convinced of any defects or errors in his plan that before
escaped his observation, and will be warned thereby to amend them; and
he will by this means be particularly and perpetually cautioned against
the great and too common mistake of tutors, namely, their imagining that
such explications as are easy and familiar to them, will be equally
obvious to unexperienced youth. But an examination will demonstrably
shew him where his illustrations have been defective or obscure, and
will oblige him to accommodate his lectures to the capacity and progress
of his hearers. The next variation in the present plan from that of Mr
Blackstone, to be taken notice of, is the proposal of beginning with the
law of _things_, not with the law of _persons_, as he hath done. It must
be allowed impossible thoroughly to understand the law of things, without
some previous knowledge of that of persons; but it is equally impossible
to be master of the law of persons, without an acquaintance with that
of things. Since, therefore, we must begin with one of them, perhaps
it will be sufficient to observe, that such knowledge of the names and
relations of persons, as is generally acquired by observation, before
a person arrives at an age fit for engaging in this study, will enable
him tolerably to understand the law of things; and that whatever more
is necessary, and hath not been attained by this means, may be easily
supplied as the student goes on. And, that I may not be thought to lean
too much on my own opinion in this particular, I shall quote the famous
Sir Matthew Hale to the same purpose; who, in his Analysis, introduces
the law of things in the following manner: “Having done with the rights
of persons, I now come to the rights of things; and, though, according to
the usual method of civilians, and of our ancient common law tractates,
this comes in the second place, and after the _jura personarum_, and
therefore I have herein pursued the same course; yet that must not be the
method of a young student of the common law, but he must begin his study
here, at the _jura rerum_; for the former part contains matter proper for
the study of one that is well acquainted with those _jura rerum_[42].”
And, agreeably hereto, the wisdom of ages hath declared _Littleton’s
Tenures_, which contains the common law of England, as far as it concerns
real property, that is, lands or interests derived out of and flowing
from them, to be the book most proper for students to begin with, in
their study of the law of these nations.

Taking it then for granted at present, that the law of real property is
the fittest introduction, it will be necessary, as it is confessed to be
the most important, the most extensive, and, in consequence, the most
difficult part, to lay the foundation deep and sure, and to derive its
rules from what is now universally allowed to be its source, the feudal
customs. This, indeed, hath been denied by Lord Coke, and others of his
age; who thought it would depreciate the excellence of the laws of their
country, to admit they were derived from any other nation. But if those
gentlemen had read over but once the two books of the feudal law with
tolerable attention, they must have received conviction, that one of the
laws was certainly derived from the other; and which of them was so would
easily appear, by comparing the law of England after the conquest, with
that which prevailed in the Saxon times, and was not strictly feudal,
exclusive of the testimony of the old historians.

But, perhaps, for this purpose, it may be thought sufficient to explain
and deduce these rules from the feudal ones, as they occur occasionally
in the books of the common law; which is the method, that, in conformity
to the rest of his plan, the Oxford professor has adopted, and that the
reading through a course of that law, even the shortest, will be attended
with an unprofitable delay, and detain the students too long from their
principal object. The answer to this objection is short, and, if well
founded, perfectly satisfactory. It is, that the real reason of proposing
a system of the feudal law to be gone through, was to save time. The
method is so much better, and clearer, and, by necessary consequence,
so much easier to be comprehended, and retained, that the delay will
be abundantly compensated, and one third at least of Littleton will
be understood, and known by the students, before they open his book.
For the maxims of the common law, as they lie dispersed in our books,
often without reasons, and often with false or frivolous ones, appear
disjointed and unconnected, and as so many separate and independent
axioms; and in this light very many of them must appear unaccountable,
at least, if not absurd; whereas, in truth, they are almost every one
of them deducible, by a train of necessary consequences, from a few
plain and simple rules, that were absolutely necessary to the being and
preservation of such kind of constitutions as the feudal kingdoms were.
The knowledge of which few, timely obtained, will obviate the necessity
of frequent and laboured illustrations, as often as these maxims occur
in our law, will reconcile many seeming contradictions, and will shew
that many distinctions, which at first view appear to be without a
difference, are founded in just and evident reason: to say nothing of the
improvement the mind will attain by exercise, in following such a train
of deductions, and the great help to the memory, by acquiring a perfect
knowledge of the true grounds of those various rules, and of their mutual
connection with and dependence on each other. _Ignoratis causis rerum, ut
res ipsas ignoretis, necesse est_, is a maxim frequently in our lawyers
mouths; and Littleton and Coke continually exhort the student to explore
the grounds and reasons of the law, as the only safe foundations to build
on, and deny that any man, without being perfectly acquainted with them,
can merit the honourable appellation of a lawyer.

But there is another, and, for gentlemen of rank and fortune
particularly, a more important consideration, that renders a general
acquaintance with the principles of the feudal law very proper at all
times, but at present eminently so; namely, the necessity of knowing
these, for the understanding the nature of those Gothic forms of
government, which, until these last three hundred years, prevailed
universally through Europe, and whence the present constitution, with
several corrections and improvements indeed, in which these islands
are now so happy, is undoubtedly derived. From hence only shall we be
able to determine whether the monarchy of England, as is pretended, was
originally and rightfully an absolute royalty, controuled and checked
by the virtue of the prince alone, and whether the privileges of the
subjects, which we are so proud of, were usurpations on the royal
authority, the fruits of prosperous rebellion, or at best the concessions
of gracious princes to a dutiful people, and revocable by them or their
successors, whenever, in their opinion, their vassals should become
undeserving; principles that were industriously, and, to the misfortune
of a deluded royal family, too successfully propagated during the last
century, and that, of late, have been revived and defended, with no
less zeal, than seeming plausibility. Every man, indeed, of candour and
humanity, will look with tenderness on the errors of princes, unhappily
educated in mistaken notions, and make due allowances for the weight
which arguments urged with great apparent force of reason, concurring
with the lust of power, so natural to the human breast, will certainly
have on such minds; but, surely, this indulgence may be carried too
far, and will be allowed so to be, if, for their justification, it
shall appear, upon examination, that the history of past ages has been
partially delivered down, and perverted; and that to the vain and
unprofitable grandeur of the prince, the happiness of millions, and
their posterity, hath been attempted to be offered up in sacrifice. The
question is of a matter of fact; for on the decision of the fact, how the
constitution of England antiently stood, the question of the right solely
depends. And surely it is the duty of every gentleman to inform himself,
on the best grounds, whether those great men, who, for a succession of
ages, exposed their lives in the field, or exerted their eloquence and
wisdom in the senate, for the purpose of preserving, and perpetuating
these privileges, deserved the honourable name of patriots, or the
detestable appellation of rebels; whether the grievances our glorious
deliverer came to redress were real or imaginary; or, if real, were such
as our fathers were in conscience bound to submit to; and whether we
can with justice give to the family that now fills our throne with such
lustre and dignity, that title which they have always esteemed as their
highest honour, of being the lords of freemen, and the assertors of the
liberties of mankind.

As the book[43] which it is intended the young gentlemen shall read for
the purpose of acquiring a general idea of the feudal law, is composed
in a systematical method, it is proposed that these lectures shall
proceed in an historical one, in order to shew the original reasons
of those customs, and to point out from what small beginnings, and by
what particular steps and gradations the mighty fabrick rose. By this
means the additions to, and the alterations of the law will be seen in a
clearer light, when we are acquainted with the nature of the regulations
already in being; and by knowing the circumstances of the times, can at
once perceive the wisdom and necessity of such additions and alterations.
And it is hard to imagine a study more improving, more agreeable, or
better adapted to a liberal mind, than to learn how, from a mere military
system, formed and created by the necessities of a barbarous people, for
the preservation of their conquests, a more extensive and generous model
of government, better adapted to the natural liberties of mankind, took
place; how, by degrees, as the danger from the vanquished subsided, the
feudal policy opened her arms, and gradually received the most eminent of
the conquered nation to make one people with their conquerors; how arts
and commerce, at first contemptible to a fierce and savage people, in
time gained credit to their professors, and an admittance for them into
the privileges of the society; and how, at length, with respect to the
lowest class of people, which still continued in servitude, its rigour
insensibly abated; until, in the end, the chains of vassalage fell off of
themselves, and left the meanest individual, in point of security, on an
equal footing with the greatest.

Thus much has been thought necessary to observe, in order to shew the
reasons of proposing a course of the feudal laws, as an introduction to
the English; to which may be added, that this method hath received the
approbation of many good judges, and hath, in experience, been found
not only useful for the end proposed, as it is the constant practice in
Scotland, whose laws, except in the manner of administering justice,
differ little from ours, and hath been also used in England with good
success; but, at the same time entertaining, and improving in other
respects.

As we are to begin, therefore, with this law, the observations on the
remaining parts of the plan may be, for the present, deferred; I shall,
in my next lecture, begin to deduce the origin of this law, and of its
rules, from the customs of the German nations, before they invaded the
Roman empire.




LECTURE III.

    _An enumeration and confutation of several opinions concerning
    the foundation of the feudal customs—The origin and rules
    of the feudal law to be deduced from the institution of the
    German nations before they invaded the Roman empire—The English
    indebted for this law to the Franks—A general description of
    this people, with an account of the several orders of men into
    which they were divided while they continued in Germany._


The feudal customs succeeded the Roman imperial law in almost every
country in Europe, and became a kind of a _jus gentium_; but having
sprung up in rude illiterate ages, and grown by slow degrees to a state
of maturity, it is no wonder that very different have been the opinions
concerning their origin, and that many nations have contended for the
honour of giving them birth, and of having communicated them to others.
Several eminent civilians, smit with the beauty of the Roman law, and
filled with magnificent ideas of the greatness of that empire, have
imagined that nothing noble, beautiful, or wise, in the science of
legislation, could flow from any other source; and, accordingly, have
fixed on Rome as the parent of the feudal constitutions. But as the paths
of error are many, and disagreeing, so have their endeavours to make out,
and defend this opinion, been various in proportion; a short mention of
them, and a very few observations, will be sufficient to convince us,
that they have been all mistaken.

First, then, some civil lawyers have discovered a likeness between the
Roman patrons and clients, an institution as early as Romulus himself,
and the feudal lords and vassals[44]. The clients, we are told, paid
the highest deference and respect to their patrons, assisted them with
their votes and interest; and, if reduced to indigence, supplied their
necessities by contributions among themselves, and portioned off their
daughters. On the other hand, the patrons were standing advocates for
their clients, and obliged to defend, in the courts of law, their lives
and fortunes. The like respect was paid by vassals to their lords, and
similar assistance was given to their wants. The fortune of the first
daughter, at least, was always paid by them, and if they were impleaded,
they called in their lords to warrant and defend their lands and other
property. Thus far, we must confess, there is a strong resemblance; but
the differences are no less material, and shew plainly that the one
could not proceed from the other. The connection between the patron and
the client was merely civil; whereas the relation between the lord and
the proper vassal was entirely military; and his fealty to his superior
was confirmed by the sanction of an oath, whereas there was no such tie
between patron and client. The aids which the tenant gave to his lord’s
necessities, except in three instances, established by custom, to redeem
his lord’s body taken in war, to make his eldest son a knight, and for
the first marriage of his eldest daughter, were purely voluntary. But
the great point which distinguishes them was, that whereas the Roman
client’s estate was his absolute property, and in his own disposal,
the feudal vassal had but a qualified interest. He could not bequeath,
he could not alien, without his lord’s consent. The _dominium verum_
remained with the lord to whom the land originally had belonged, and from
whom it moved to the tenant. Upon the failure therefore of the tenant’s
life, if it was not granted transmissible to heirs, or if it was, on the
failure of heirs to the lands, it reverted to the original proprietor.
Neither was the lord, on all occasions, and in every cause, bound to
be his vassal’s advocate, or, as they express it, _bound to warranty_,
and obliged to come in and defend his tenant’s right and property. For
the fealty on one side, and the protection on the other, extended no
farther than the feudal contract; and therefore the one was not bound to
warrant any of the tenant’s lands, but such as were holden of him, nor
the other to give aid, or do service in regard of his whole property, but
in proportion to that only which he derived from his superior. Add to
this, that the lord, in consideration of the lands having been originally
his, retained a jurisdiction over all his tenants dwelling thereon, and
in his court sat in judgment, and determined their controversies. These
striking diversities (and many more there are) it is apprehended, will
be sufficient to demonstrate the impossibility of deriving the feudal
customs from the _old_ institution of patron and client among the Romans.

Secondly, Others, sensible that military service was the first spring,
and the grand consideration of all feudal donations, have surmised,
that the grants of forfeited lands by the dictators Sylla and Cæsar,
and afterwards by the triumvirs Octavius, Anthony and Lepidus, to their
veterans, gave the first rise to them[45]. In answer to this, I observe,
that those lands, when once given, were of the nature of all other Roman
estates, and as different from fiefs, as the estates of clients, which
we have already spoken of, were. Besides, these were given as a reward
for past services, to soldiers worn out with toil, and unfit for farther
warfare; whereas fiefs were given at first gratuitously, and to vigorous
warriors, to enable them to do future military service.

Others have looked upon the emperor Alexander Severus[46] as the first
introducer of these tenures, because he had distributed lands on the
borders of the empire, which he had recovered from the Barbarians,
among his soldiers, on the condition of their defending them from the
incursions of the enemy; and had granted, likewise, that they might
pass to their children, provided they continued the same defence. This
opinion, indeed, is more plausible than any of the rest that derive their
origin from the Romans, as these lands were given in consideration of
future military service; yet, when we consider, on the one hand, that in
no other instance did these estates agree with fiefs, but had all the
marks of Roman property; and that, on the other hand, feudal grants were
not, for many ages, descendible to heirs, but ended, at farthest, with
the life of the grantee, we shall be obliged to allow this notion to be
as untenable as any of the foregoing.

The surmise of some others, that the feudal tenancies were derived from
the Roman agents, bailiffs, usufructuaries, or farmers, is scarce worth
confuting; as these resembled only, and that very little, the lowest and
most improper feuds; and them not in their original state, when they were
precarious, but when, in imitation of the proper military fief, which
certainly was the original, they were become more permanent.

Lastly, Some resort as far as Constantinople for the rise of fiefs,
and tell us that Constantine Porphyrogenetus was their founder; but
he lived in the tenth century, at a time that this law was already in
France, Germany, Italy, and Spain, where it had arrived very near its
full perfection, and was therefore undoubtedly his model: So that, tho’
we must acknowledge him the first who introduced these tenures into the
Roman empire, to find their original, we must look back into earlier
ages, and among another people.

The pretensions of the Romans having been considered, and set aside,
it follows, that this law must have taken its rise among the barbarous
nations; but from which of them particularly, remains to be inquired.
Some, solicitous for the honour of the antient Gauls, quote Cæsar’s
account of their manners; _eos qui opibus valebant multos habuisse
devotos, quos secum ducerent in bella, soldurios sua lingua nuncupatos;
quorum hæc est conditio, ut omnibus in vita commodis una cum his
fruantur quorum se amicitiæ dediderint; si quid iis per vim accidat,
aut eundem casum una ferant aut sibi mortem consciscant_[47]; in these
words they imagine they have plainly the mutual connection between
lords and vassals. The Spaniards too put in their claim for the antient
Celtiberians, of whom Plutarch, in his life of Sertorius and Valerius
Maximus, gives the same account that Cæsar doth of the antient Gauls;
and Sir Edward Coke, in his zeal for the common law of England, which,
although he did not know it, is certainly feudal, relying on fabulous
historians, carries its antiquity so far back as to the British kings
of Geoffrey of Monmouth. But one short and plain observation will fully
dissipate such vain conceits, namely, that, whatever were the original
customs of the barbarous nations, inhabiting Gaul, Spain, or Britain,
they were, many ages before the rise of this law, entirely annihilated
and forgotten. Gaul, Spain, and Britain, were, for centuries, Roman
provinces, governed entirely by Roman magistrates, according to the
imperial laws. For the Romans were particularly studious of introducing
their dress, their language, their laws and customs, among the conquered
nations, as the surest, and most effectual means of keeping them in
subjection.

Hence, it appears, we must find the true original of this law among those
nations, that destroyed the Western Empire of the Romans; where we first
perceive the traces of it, that is, among the Franks, Burgundians, Goths,
and Lombards[48]. Of these the first and last have the greatest number of
advocates; and, whether out of jealousy to the French monarchy, or not, I
cannot determine, the majority declares for the Lombards. These different
opinions, however, may be easily adjusted, by distinguishing between the
_beneficiary law_, as I shall call it, while the grants were at will, or
for years, or at the utmost for life, and that which is more properly and
strictly called _feudal_, when they became transmissible to heirs, and
were settled as inheritances. As to the beneficiary law, no one of these
nations can lay a better claim to it than another, or with reason pretend
that the rest formed their plan upon its model; each of them independent
of the other, having established the same rules, or rules nearly the
same; which were, in truth, no more than the ancient customs of each
nation, while they lived beyond the Rhine, and were such as were common
to all the different people of Germany. But, as to the law and practice
of feuds, when they became inheritances, there can be little doubt but
it was owing to the Franks. For the books of the feudal law, written
in Lombardy, acknowledge, that the Emperor Conrad, who lived about the
year 1024, was the first that allowed fiefs to be descendible in Germany
and Italy[49]; whereas the kingdom of the Lombards was destroyed by
Charlemagne above two hundred years before; and he it was who first
established among his own Franks the succession of fiefs, limiting it,
indeed, only to one descent. His successors continued the same practice,
and, by slow degrees, this right of succession was extended so, that
by the time of Conrad, all the fiefs in France, great and small, went
in course of descent, by the concession of Hugh Capet, who made use of
that device, in order to sweeten his usurpation, and render it less
disagreeable[50]. By this concession he, indeed, established his family
on the throne, but so much weakened the power of that crown, that it cost
much trouble, and the labour of several centuries, to regain the ground
then lost.

The opinion of the feudal law’s being derived from the Lombards seems
owing to this, that, in their country, those customs were first reduced
into writing, and compiled in two books, about the year 1150, and have
been received as authority in France, Germany and Spain, and constantly
quoted as such. But then it should be considered, that the written law
in these books is, in each of those nations, especially in France,
controuled by their unwritten customs; which shews plainly, that they are
received only as evidence of their own old legal practices. For had they
been taken in as a new law, they would have been entirely received, and
adopted in the whole.

But if, in this point, I should be mistaken, and the Lombards were
really the first framers of the feudal law, yet I believe it will be
allowed more proper for the person who fills this chair to deduce the
progress of it through the Franks, from whom we certainly borrowed
it, than to distract the attention of his audience, by displaying the
several minute variations of this law, that happened as it was used
in different nations. To the nation of the Franks, therefore, I shall
principally confine myself, and endeavour to shew by what steps this
system of customs was formed among them, and how their constitution, the
model of our own just after the conquest, arose; and at the same time I
shall be particularly attentive to those parts of it only that prevailed
in England, or may some way contribute to illustrate our domestic
institutions.

In order, then, to illustrate the original of the French constitution,
and of their beneficiary, and its successor the feudal law, it will
be necessary to enter into some details as to the manners of this
people, while they continued in Germany, and which they preserved for a
considerable time after they passed the Rhine; as also to mention some
few particulars of their history when settled in France, in order to shew
the reasons of their original customs, and the ends their policy aimed
at, and how, by change of circumstances, the preservation of that system
required new regulations; how the feudal law arose, and grew to that
perfection, in which, for so many ages, it flourished throughout Europe.
As skilful naturalists discover in the seed the rudiments of a future
tree, so, in a few passages of Cæsar and Tacitus, concerning the customs
of the Germans, may be seen the old feudal law, and all its original
parts, in _embryo_; which, in process of time, by gradually dilating and
unfolding themselves, grew into a perfect and compleat body. It will
be highly proper, therefore, for the clearer comprehension of what is
to follow, to dwell somewhat particularly upon, and to make ourselves
acquainted with, the manners and institutions of those people; and for
this purpose, perhaps, it will be sufficient to consider them under the
several following heads, viz. their general disposition and manners, the
several ranks and orders of persons among them, their form of government,
and the nature of their policy; their regulations touching property,
their methods of administering justice, and the nature of the punishments
they inflicted on criminals.

First, as to their manners and general disposition: Germany was at that
time a wild uncultivated country, divided into a great number of small
cantons, separated from each other by thick forests, or impassable
morasses, and inhabited by a rude and simple people, who lived either
by the chace or pasturage, and were always either in a state of open
war, or a suspicious peace with their neighbours: A circumstance that
obliged every one of these little states to esteem military virtue in the
first place, and to train up all their people, fit for that purpose, in
the constant use of arms, and to keep them perpetually in a state ready
always for either offence, or defence[51].

But since, in every number of men, however assembled, some there will
be, from the natural strength of their bodies, and courage of their
minds, more fit for soldiers, and others, from the contrary causes,
better adapted to the arts of peace; these nations were necessarily
distributed into two ranks; those in whom the strength of the society
consisted, the freemen or soldiers, who were, properly speaking, the
only members of the community, and whose sole employment was war, or
(in the intervals of hostilities, what Xenophon considers as its image)
hunting; and an inferior order of people, who were servants to them, and,
in return for protection, supplied the warriors with the necessaries of
life, occupied the lands for them, and paid stipulated rates of cattle,
clothes, and sometimes corn, namely, where they had learned the use of
agriculture from the neighbouring Romans. I follow Craig in calling them
servants rather than slaves, as an expression much more suitable to
their condition; for they were not condemned to laborious works, in the
houses of the freemen, as the slaves of other nations were. Among these
simple people, the wives and children even of the greatest among them,
and the old men, unfit for the toils of war, were their only domestics.
The servants of the Germans lived apart, in houses of their own, and
when they had rendered to their lords the services due by agreement,
they were secured in the rest, as their own property; so that a servant
among these people, though meanly considered by the superior rank, was,
in truth, more a freeman than the generality of the Romans under their
Emperors[52]. It has been an antient observation, that servitude among
the northern nations hath always been more gentle and mild than among
those that lay more southerly: A difference, to be ascribed to the
different manners of the people, resulting partly from their climate, and
partly from their way of life. A plain and simple people, unacquainted
with delicacies, were contented with the plainest fair; which was easily
supplied, without afflicting their servants with heavy labour, and gave
no room for envy and discontent in the breasts of inferiors. And a nation
that had always the sword in their hands were too conscious of their own
strength, to entertain any apprehensions from those, who, from their
unfitness for that profession, were destined to other employments. All
motives, therefore, to fear on the one side, and to envy and discontent
on the other, being removed, we need not be surprized at the general
humanity with which the servants were treated in these northern regions.
The putting them in chains was a thing exceedingly rare, and the killing
them, except in a sudden gust of passion (an accident which frequently
happened among the freemen themselves) was almost unheard of. The only
difference in that case was, that the death of a servant was not looked
upon as a public crime, he being no member of the political society,
and therefore was not punished. Such then was the mutual affection and
confidence of these two ranks in each other, that whenever there was
occasion, they made no scruple of arming such of their servants as were
capable, and, by making them soldiers, admitted them into the number of
freemen; and the hopes of such advancement, we may be assured, was a
strong inducement to those of the lower rank to behave in their station
with fidelity and integrity. Another cause of this great lenity to their
servants arose from a custom peculiar to the Germans, which ordained,
that insolvent debtors should be reduced to servitude, until, either by
his labour, the creditor was satisfied, or, as it frequently happened,
the debt was paid by the insolvent’s relations. It was, indeed, reputed
dishonourable for the creditor himself to retain his debtor in servitude;
but then he either sold him to the prince, or some other person.

Among so plain a people, perhaps it may be thought debts were rare, and
that few instances occurred of freemen’s being reduced to slavery; but
Tacitus assures us of the contrary[53]. These people were possessed with
the rage of gaming to such a degree, that nothing was more common than
to see them, when all their property was lost, set their liberty itself
at stake. It was natural, therefore, to treat those with gentleness, who
had been once perhaps the most valuable members of the body politic,
especially for them who knew their own privileges depended on the
uncertain caprices of the same goddess Fortune, and that an unlucky
throw might reduce them to-morrow to the same low condition. I have been
the more particular on this head, in order to shew, that, even in their
infancy, the feudal maxims were more favourable to the natural liberty
of mankind, than the laws and customs of the southern and more polite
nations, and were of such a spirit, as when circumstances changed, would
naturally expand, and extend that blessing to the whole body of the
people; as we find it at present in our excellent constitution.

To return, therefore, to the freemen: We find no traces of any different
orders of men among them; but as no kind of government, however rude, can
subsist without some subordination, and as it was impossible for them
all to continue together in one body, it was found necessary, in order
to disperse them round the country, that they should be subdivided into
lesser parties, and to appoint to each a chief, the most eminent and
capable among them; who, when a district was assigned him, distributed
that among his followers; who again, after having retained what they
esteemed sufficient for their own purposes, assigned part of what they
had so received to their servants. And here, indeed, we see the first
rude original of lords and vassals. These lords were those, of whom
Tacitus says, _De minoribus rebus principes consultant_[54]. One of these
lords, and to him a larger territory was assigned than to the others,
was the head of the whole body politic, and honoured with the title of
king. He was the superior, who, at their general assemblies, made the
distribution already mentioned, and appointed the other lords. And,
besides his excelling the others in the enjoyment of a more extensive
district, and in having a greater number of vassals and servants, he was
remarkably distinguished from them in two particulars. His office was
for life, and, in some degree, hereditary; for, in every nation there
was one family, descended, it is to be presumed, from the first founder
of the state, or some ancient hero, which was the only family noble by
birth among them, and the members of which alone were capable of this
high station. Not that these kings succeeded in a lineal, or any other
regular course of descent; for Tacitus intimates sufficiently that they
were elective, when he says, _Reges ex nobilitate sumunt_[55]. And indeed
any one who considers attentively the circumstances of these people,
always either ready to invade their neighbours, or dreading invasions
from them, will allow, that any kind of a constant regular succession was
inconsistent with their preservation. They were necessitated to choose
among the royal family a man in the flower of youth, or, at least, in the
vigour of life, who, by his valour and wisdom, might prove the proper
head of a nation always in a state of war. This will appear beyond a
doubt, if we examine the ancient practice of all the kingdoms founded by
the Germans. Look over the lists of their kings in any one nation, and
examine the degree of kindred in which they stood related to each other,
and you will find them all, indeed, of one family; but you will, at the
same time, see that scarce a third of them could derive their kindred,
by way of title or descent, from their immediate predecessor; yet were
they obeyed chearfully by their subjects, nor ever looked upon in those
days as usurpers, though several modern writers, possessed with opinions
of their own ages, since kingdoms are almost universally settled in a
regular course of descent, have been so liberal in bestowing that title
upon them.

Montesquieu allows this was the manner of succession in the second
race of the Franks, but insists that those of the first inherited
lineally[56]. But was this so originally, when Clovis came to the crown,
he who first united all the Franks under one sovereign? We find six or
seven independent kings of the Salian Franks, every one of them Clovis’s
near relations, and consequently descended from a common ancestor, at no
very great distance. He thought not himself, nor his posterity, secure
in the possession of the throne, until he had totally extirpated every
other branch, and reduced the royal family to his single person. Then,
indeed, there was no danger of a competition upon his death. So far was
the crown from descending to any determined person, that the kingdom was
divided among all his children; and, for several descents, his bloody
example was followed in one generation, and in the next a new division
took place; nor, in all this time, do we hear of any other title set up,
than what followed either from the will of the father, the consent of the
people, or the fortune of war; which, it is apprehended, is sufficient
to shew, that, in these early ages, there were no invariable rules of
succession settled among the Franks. Otherwise, how came the kingdom to
be divisible, and the right heir to be obliged to content himself with a
small portion of his supposed legal inheritance[57]?

In the next lecture I shall give an account of the companions of the
prince among the Germans, and finish what I have to observe of the
constitution of their governments, and of their laws and customs, unto
the time of their entering into the Roman empire.




LECTURE IV.

    _The_ companions _of a German prince—The constitution of a
    German kingdom—The condition of property in Germany—The methods
    followed there of distributing justice, and the nature of the
    punishments inflicted on criminals._


Before we can be fully acquainted with all the several constituent parts
of the German state, it will be necessary to form a just notion of those
who were called the companions of the king or prince; who, being chosen
out of the most robust and daring of the youth, and having attached
themselves particularly to the person of their sovereign, were his
chief defence in war, and the great support of his dignity in times of
tranquillity. A few words of Tacitus will set this institution of theirs
in a clear light. Speaking of their princes, he says, “This is their
principal state, their chief strength, to be at all times surrounded with
a numerous band of chosen young men, for ornament and glory in peace, for
security and defence in war; nor is it among his own people only, but
also from the neighbouring communities, that a prince reaps high honour,
and great renown, when he surpasses in the number and magnanimity of his
followers; for such are courted by embassies, and distinguished with
presents, and by the terror of their fame alone often dissipate wars. In
the day of battle, it is scandalous for the prince to be surpassed in
feats of bravery, scandalous to the followers to fail in matching the
valour of the prince. But it is infamy during life, and an indelible
reproach to return alive from a battle wherein their prince was slain.
To preserve him, to defend him, and to ascribe to his glory all their
gallant actions, is the sum, and most sacred part of their oath. For from
the liberality of their prince they demand and enjoy that war-horse of
theirs, and that terrible javelin, dyed in the blood of their enemies. In
place of pay, they are supplied with a daily table and repasts, though
grossly prepared, yet very profuse. For maintaining such liberality and
munificence, a fund is furnished by continual wars and plunder[58].”

Here, then, are to be seen most plainly the rudiments of that feudal
connection, that afterwards subsisted between the king and all his
military vassals, and of the oath of fealty which the latter took to
him. To his person, and to aid him in all he undertook, his companions
were bound, during his and their lives, by the strictest ties; but as to
other freemen, who lived apart in their villages, the bonds of allegiance
were much more loose. This rude people had no notion of what almost
every civilized nation hath laid down as a maxim, that being born in,
and protected by a society, creates a durable obligation. They served,
indeed, in consideration of the lands they held, in all defensive wars;
and in all offensive ones, which either were generally approved of, or
in which they chose particularly to engage themselves. Nay, so great
was the notion of particular independence among these people, that they
thought that all of the freemen or soldiers, except the _comites_, who
had by oath bound themselves to the person of the king for life, were
at liberty to engage in expeditions, that neither the king, nor the
majority of the nation consented to; and that under leaders of their own
choosing. For as, at their general meetings, war was necessarily the most
common subject of deliberation, if any one proposed an enterprize, all
who approved the motion were at liberty to undertake it; and if the king
declined commanding therein, they chose a general capable thereof; and
when, under his conduct, they had succeeded, they either returned, and
divided the spoil, and became subjects of their former king as before;
or, if they liked the country they had subdued better, settled there,
and formed a new kingdom, under their victorious leader. _Duces ex
virtute sumunt_, saith Tacitus; a practice hard to be accounted for among
nations exposed to continual danger, and which must be thereby frequently
weakened, on any other supposition, than that it was first introduced
to disburthen a narrow territory, overstocked with inhabitants. This
effect, however, it must have had, that their kings were rendered more
martial, and obliged equally by their glory and interest, to command in
every expedition, that was agreeable to any considerable number of their
subjects.

From this custom Montesquieu very ingeniously conjectures, that the
Franks derived their right of conferring on their _mairs de palais_
the power of war, at a time, when, by the long continued slaughters of
the royal family, they were obliged to place the crown on the heads of
minors, or of princes as incapable as minors; a power that enabled them,
by degrees, to usurp the civil administration, and at length to transfer
the title also of royalty to a new race, in the person of Pepin[59].

Such, then, was the face of a German state. A king chosen for his
illustrious extraction, attended by a numerous body of chosen youth,
attached to his service in war by the strictest bonds of fidelity; a
number of freemen divided into villages, over each of which was an
elective chief, engaged, likewise, to military duty, but in a laxer
manner; and under all these were the servants, who occupied the greatest
part of the land, and supplied the freemen with the necessaries of life.

It is time now to attend a little to their domestic policy, and to
inform ourselves what were the rights of each of these orders in the
time of peace. The king, we are assured by Tacitus, was far from being
absolute[60]. He was judge, indeed, among his own peculiar vassals, who
lived on his demesne, as the other chieftains were in their respective
districts. He presided in their general assemblies, and was the first
who proposed matters for their deliberation. His opinion had great
weight, indeed, from his rank and dignity, but his power was rather
that of persuasion than of command. The royal family was no otherwise
distinguished from others, than as their personal merit acquired
influence, or their high birth and capability of succession engaged
respect. The companions of the prince were highly honoured for their
faithful attachment to him, and their valourous atchievements in war;
but, as to rights and privileges, were on the common footing of other
freemen. The only distinction was between the chieftains, or lords of
the villages, and the vassals who were under their jurisdiction. The
chieftains were judges in their respective districts; but, to prevent
partiality, to each of them were assigned an hundred persons, chosen
among the populace, to accompany and assist him, and to help him at once
with their authority and their counsel. And this institution was, in all
probability, the original of the jurisdiction of the _pares curiæ_ in
the feudal law. Another, and a very great check on their chieftains, was
their being elective, and consequently amoveable every year, if their
conduct was displeasing either to prince or people. These elections, as
well as those of their assessors, were made in their assemblies; where,
indeed, every thing of any consequence was transacted, and therefore they
deserve to be particularly treated of.

These conventions, then, unless they were summoned on extraordinary
occasions, were regularly held once a month, on certain stated days; but
such was the impatience of this people of controul, or any regularity
of proceeding, that Tacitus observes, that frequently two or three days
were spent before they were all assembled. For in these meetings, every
freeman, that is, every soldier, had an equal voice. They appeared all
in arms, and silence was proclaimed by the priests, to whom also it
belonged to keep the assembly in order, and to punish all disturbers
of its regularity. The king in the first place was heard, next such of
the chiefs as had any thing to propose, and lastly others, according to
their precedence in age, nobility, military virtue, or eloquence. If the
proposition displeased, they rejected it by an inarticulate murmur. If it
was pleasing, they brandished their javelins; the most honourable manner
of signifying their consent being by the sound of their arms. But this
approbation of the general assemblies was not of itself sufficient to
establish a resolution. As the sudden determinations of large multitudes
are frequently rash, and injudicious, it was found necessary to have what
they had so determined re-considered by a select body, who should have a
power of rejecting or confirming them. For this purpose the chieftains
were formed into a separate assembly, who, in conjunction with the king,
either disannulled, or ratified what had been agreed to by the people at
large[61].

Such then was the constitution of a German kingdom, a constitution so
nearly resembling our own at present, as at first view would tempt any
one to think the latter derived immediately from thence. Yet this was not
the case. With respect to the Saxon times, as far as we can judge from
the few lights remaining, the form of government seems very nearly to
resemble this account which Tacitus gives us; but, for two centuries, at
least, after the conquest, the English constitution wore a face purely
feudal. The sub-vassals had long lost the privilege of being members of
the general assembly, from causes that shall be hereafter attempted to
be explained; and the whole legislative power was lodged in the king
and his immediate vassals, whose interests frequently clashing, and
creating continual broils, it was found necessary, for the advantage both
of the sovereign and nobles, that a proper balance should be formed.
Accordingly, much at the same time in France, Spain, and England, namely,
in or about the thirteenth century, the happy method of readmitting the
third estate, by way of representation, was found out, with an addition
very favourable to the natural rights of mankind, that traders and
artizans, who before had been treated with the most sovereign contempt,
were now permitted to make part of the general assembly, and put on an
equal footing with other subjects[62].

But to return to the assembly of German chieftains, or their house of
lords, as I may call it; besides a share in the legislative power, they
were likewise a council, to assist the king in the execution of the
resolutions of the general assembly, and determined solely by their
own authority all matters of lesser moment, that did not immediately
affect the whole community. _De minoribus rebus principes consultant, de
majoribus omnes._

Many other things were likewise transacted in these general assemblies,
as particularly the admission of a new member into the political society.
When a youth was judged capable of bearing arms, he was introduced by
his relations into the assembly; and if they testified his capacity of
wielding them, he was dignified with a lance and javelin by one of the
chieftains, or by his father, or some other near relation. This was his
_toga virilis_. Then, and not before, was he emancipated from the family
he belonged to, was permitted to become a soldier, and in consequence
admitted to all the privileges of a free subject. A practice that,
in after ages, gave rise to the solemn and public manner of creating
knights[63].

This, likewise, was the proper place of accusing criminals of public
crimes, namely such as were looked upon by those people particularly
to affect the whole society; neither was it unusual, likewise, to
bring hither accusations of private wrongs, if the party injured was
apprehensive of partiality in his own canton.

But the business of greatest moment, next to legislation, was, that,
once in a year, in these assemblies, each village, with the approbation
of the king, chose their chiefs, and their hundred assistants[64]. Here
it was they either received a testimony of their good behaviour, by
being continued in office another year, or saw themselves reduced to
the rank of private subjects, if their conduct had not been acceptable.
At the same time were the lands distributed to the several chieftains,
which leads me to say something on the next head, their regulations with
respect to property; as to which their institutions were very singular,
and totally different from those of all ancient, as well as modern
nations.

All property being then naturally divisible into two kinds, moveable and
immoveable, of the first these people had but a scanty share, their whole
wealth consisting in their arms, a few mean utensils, and perhaps some
cattle. The use of gold and silver, in the way of commerce, was utterly
unknown to them, except to a few of their nations, namely such as lived
near the Rhine, and had acquired some by dealing with the neighbouring
Gauls. Consequently, there was no such thing as an accumulation of wealth
among them, or any great disparity in the distribution of this kind of
property, over which each had uncontrouled dominion during his life. But
as testaments, or last wills, were unknown amongst them, upon death, the
right went according to the plain dictates of nature. Tacitus saith, “To
every man his own children were heirs and successors. For want of them,
his nearest of kin, his own brothers, next his father’s brothers, or
his mother’s.” Whatever there was, was divided among the males next in
degree; save that to each of the females, a few arms were assigned, the
only dowry in use among those people; a dowry which, as Tacitus saith,
signified that they were to share with their husbands in all fortunes of
life and death. Accordingly, they constantly attended them to the field,
were witnesses of their valour, took care of the wounded[65]; and often,
if their party had the worst, they ran into the ranks, and by their
presence and danger, animated the men to renew the charge.

But with respect to real or landed property, the case was very different.
Here a man had only the use, or enjoyment of the profits; and that,
too, but a temporary one. The real property, or _dominium verum_, was
lodged in the community at large; and was, at the end of every year,
cantoned out, and distributed to the several tribes of the people; and
the portion assigned to each was after that subdivided to the respective
individuals; who by these means were perpetually removed from one part
of the territory to another; nor could any man tell in what place his
lot was to fall the next year[66]. And this custom, absurd as it seems
to us, they were so fond of, as to continue for some time after they
settled in the Roman territories; until, growing by degrees acquainted
with the conveniencies of life, a change of manners was introduced, and
they wished for more settled habitations. Then came into use grants
for terms of years, after for life, and lastly, estates descendible
to heirs, which are those we, properly speaking, called _fiefs_. This
continual removal of habitation, so intolerable to a people any way
accustomed to comfortable dwellings, was no manner of inconvenience to
them. Their little substance was easily removed, and two or three days
were sufficient to erect a sorry hovel, which contented the wishes of
the greatest among them[67]. But their passion for this constant change
of place seems derived from that condition which I have already observed
they were in, namely, a middle state between hunters and shepherds;
and that they still retained that practice, was an evidence that they
had not been long reclaimed from a savage life. Tacitus indeed says,
that, in the intervals of war, they were not much employed in hunting,
but lived a lazy and inactive life. This, however, I apprehend, must
be understood only of a few nations, nearest to the Romans, where game
was not so plentiful, and not of all the Germans in general: for it
is certain the Franks had a strong passion that way, after they were
settled in Gaul; and from them the plan of the forest laws, so justly
complained of in England, after the conquest, was derived. And true it
is, that whole nations, as well as individuals, were possessed with this
rambling inclination; and that, not always with a view of settling in a
better country. If the Germans changed their barren wilds for the warm
sun and fertile climate of Gaul, we are assured by the same authority,
that many tribes of the Gauls, on the other hand, removed to the forests
of Germany. If Jornandes tells us, that the Goths quitted the bleak and
barren mountains of Scandinavia for the pleasant banks of the Danube,
he likewise informs us, that, afterwards, they returned back into their
native country.

As to their methods of administering justice, I have already observed,
that their chieftains, in the several districts, assisted by their
assessors, were their judges. Before them all causes were brought, which
were not discussed in their general assemblies; but as to the manner of
investigating the truth, all the German nations did not agree. Nay the
Salian Franks differed considerably from their brethren, the Ripuarian
Franks. If the judge, or his assessors, or any of them, had knowledge of
the fact in dispute, which often happened, as these people lived much in
public, and in the open air, they gave sentence on such their knowledge.
This was common to them all; but if there was no such knowledge in any
of the _pares curiæ_, as I may call them, and the fact in question was
denied, the Salians proceeded thus: The accuser or plaintiff produced his
witnesses, the accused did the like; and on comparing the evidence on
both sides, the judges gave sentence. If the plaintiff had no witnesses,
the defendant, on his denial, was dismissed of course. If the witnesses
for the plaintiff failed in fully proving the point, and yet their
testimony was such, as induced a presumption which the other party was
not able to remove, the trial was referred to the ordeal[68]. That of
boiling water was the most usual among them. The manner was thus: The
person suspected plunged his hand into the boiling water, which was
afterwards carefully closed up, and inspected at the end of three days:
If no sign of the scalding then appeared, he was acquitted; if otherwise,
he was esteemed guilty[69].

It is strange that any people should, for ages, make use of such a
method, which a very little reflection, or common experience, might
easily satisfy them had no manner of connection with guilt or innocence.
But, besides the gross superstition of these nations, who thought the
honour of providence concerned in the detection and punishment of
criminals, Montesquieu hath given us another reason for this practice,
which, whether just or not, for its ingenuity, deserves to be taken
notice of. He observes, that the military profession naturally inspires
its votaries with magnanimity, candour, and sincerity, and with the
utmost scorn for the arts of falshood and deceit. This trial, then, he
imagines calculated to discover plainly to the eye, whether the person
accused had spent his whole life in the arts of war, and in the handling
of arms. For if he had, his hands would thereby have acquired such a
callousness, as would prevent any impression from the boiling water,
discernible at that distance of time. He therefore was acquitted, because
it was presumed he would not screen himself by a falshood. But if the
marks appeared, it was plain he was an effeminate soldier, had resisted
the force of education, and the general bent of his countrymen; that he
was not to be moved by the spur of constant example, that he was deaf to
the call of honour; and consequently such a person whose denial could
have no weight to remove the presumption against him[70].

These were the methods of trial among the Salians, but the Ripuarian
Franks, the Burgundians, and several other German nations acted very
differently. No witnesses were produced among them on either side, but
they contented themselves with what were called negative proofs; that is,
the person accused swore positively to his own innocence, and produced
such a number of his relations as the custom of the country required:
or if he had not relations enough, the number was made up out of his
intimate acquaintance: These were to swear that they believed his oath
to be true, and upon this he was acquitted. But if he declined the oath,
or could not produce a sufficient number of compurgators, he was found
guilty; a practice that fully proves these nations were, when this method
was introduced, a people of great simplicity and sincerity[71].

But as, by this means, every profligate person, with the assistance of
a few others as wicked as himself, was sure to escape, the defects of
this kind of trial introduced another, or rather revived an antient one,
no less inconclusive. Antiently, the Germans had no judicatures for the
decision of private wrongs; but each in person took his own satisfaction,
and this introduced perpetual combats. When the new method of trial came
in use, a party seeing his adversary ready to defeat his just demands,
and screen his injustice with perjury, resorted to his antient right,
refused to accept the oath, and appealed to the providence of God by
the trial of battle: a method as absurd, indeed, as the former, but
peculiarly adapted to the way of thinking of the Germans, who frequently,
before they entered into a war, prognosticated the success of it from
the event of a combat between one of their own nation, and a captive of
the enemy[72]. This kind of trial gained ground among all the defendants
of this ferocious people[73], and introduced itself at length among the
Salians, who had it not at first, and who, by admitting positive proofs,
had no need of it; and, though long fallen into disuse, hath left behind,
its offspring, private duelling. It hath been long since observed, that
this fashionable custom owed its origin to these northern nations, the
ancestors of the present inhabitants of Europe, as no other nations,
antient or modern, however martial or disposed to war, had any knowledge
or practice of it; but it is undeniably evinced by this, that as a lie,
above all other provocations, is the strongest, and what lays gentlemen
of honour under an indispensible necessity of duelling, so were _you lie_
the very words mutually given and received in old times, the accustomed
form of joining issue by battle, after which neither party, without
perpetual infamy and degradation from his rank, could recede.

I have taken the more notice of these four different methods of trial
among the old Germans, as every one of them has been received into
England. Concerning the first, the trial by witnesses, little need be
said. As it is the fairest, and the justest, it has accordingly, pursuant
to the practice of all civilized nations, prevailed over all the rest;
and it is that, and that only, that we use at this day. But the ordeal
also was in use among the Saxons, and continued some time after the
Norman conquest; as appears, not only by the old records of the law,
but from the famous story, whether true or false, of queen Emma, mother
of Edward the Confessor, and the plow-shares[74]. The trial by negative
proofs, though out of practice, is still in being, in what is called by
us the _wager of law_; where, if a person is impleaded in an action of
debt, on a simple contract, he may clear himself, by swearing he oweth
it not, and by producing eleven others, who swear to their belief that
he has deposed the truth[75]. Hence it has happened, that, for a long
time past, _actions of debt_, in such cases, have not been brought, but
another, called an _action on the case_, is the usual method, which
admits the parties on both sides, as to the point of debt, _vel non
debet_ to an examination of witnesses. For the last, the trial by battle,
our old books are full of it, in real actions; and although, to prevent
the inconvenience and uncertainty of it, the grand assize was invented;
yet was it in the tenant’s, that is, the defendant’s option, to choose
which method of trial he pleased. The latest instance of joining issue
by battle, I have met with, is in Dyer’s Reports, in the beginning of
Elizabeth’s reign[76]; but by this time it was so much discouraged, that,
by force of repeated adjournments, the parties were prevailed on to
agree, and judgment was at length given upon the failure of one of the
parties appearing on the day appointed for the combat.

When the truth, by some of the methods above-mentioned, was ascertained,
judgment was to be given. Here it will be proper to observe, that, among
these people, there were only two kinds of crimes, that were looked upon
as public ones, and consequently capital. The first was treason, or
desertion in the field, the punishment hanging; the second cowardice,
or unlawful lust, for they were strict observers of the nuptial band,
the punishment stifling in a morass, with an hurdle over them. It
seems, at first view, surprising, that murder, which Tacitus assures
us, from sudden gusts of passion, and intemperance in liquor, was very
frequent, should not, as it so much weakened the strength of the nation,
be considered as a criminal offence, and punished accordingly[77]. But
a little reflection on their situation will reconcile us to it. The
person slain was already lost to the society, and if every murder was a
capital offence, the state would lose many of its members, who were its
chief supporters. Besides, if the slayer had no hopes of mercy, nothing
else could be expected than his desertion to their enemies, to whom he
could be of infinite service, and to them of infinite detriment, from his
knowledge of their strength and circumstances, and of the passes into
their country, through the morasses and forests, which were their chief
defence. Murder, therefore, like other lesser crimes, was atoned among
those people, as it was among the ancient Greeks, who were in pretty
similar circumstances, in the heroic times, as Ajax assures us in these
words, in the ninth Iliad:

            και μεν τις τε κασιγνητοιο φονοιο
    Ποινεν, η του παιδος εδεζατο τεθνειωτος,

namely, by a satisfaction of cattle, corn, or money, to the persons
injured, that is, to the next of kin to the deceased, with a fine to the
king or lord, as an acknowledgment of his offence, and to engage the
society to protect him against the future attempts of the party offended.
These satisfactions were not regulated originally, nor fixed at any
certain rate, but left to the discretion of the injured, or next of kin.
However, if he appeared extraordinarily unreasonable, and refused what
was judged competent, the society, upon payment of his fine to their
head, took the offender into protection, and warranted his security
against the attempts of the other party, or his friends. After these
nations were settled in the Roman empire, these satisfactions for each
offence were reduced to a certainty by their laws[78].

This is as much as I have thought necessary to observe at present,
concerning the manners and customs of these people, while they remained
beyond the Rhine. It will next be proper to see how far afterwards
they retained them, and what alterations were introduced by their new
situation.




LECTURE V.

    _The decline of the Roman empire—The invasions of the Northern
    nations—The manner in which they settled in the Roman
    provinces—The changes insensibly introduced among them in
    consequence of their new situation—The policy and condition of
    the Franks after they had settled in France—The rise of the
    feudal law—Estates beneficiary and temporary._


It is full time now to quit the wilds of Germany, to attend these nations
in their passage into the Roman dominions, and to take a view of the
manner wherein they settled themselves in these new countries. The Roman
empire had been long on the decline; but especially, from the time of
Severus, it every day grew weaker. This weakness arose, in a great
measure, from an excessive luxury, which disqualified not only their
great ones, but the bulk of the Roman people for soldiers; and also from
the tyrannical jealousy of their emperors, who were afraid of trusting
persons of virtue or ability, and had no other method of supporting their
authority, than by employing numerous standing armies, that, under them,
pillaged and oppressed the defenceless populace; and lastly, from the
licentiousness of the soldiery, who made and unmade emperors according
to their wild caprices. Hence proceeded many competitions for that
dignity, and continual battles and slaughters of their men at arms; the
natural consequence of which was, that whoever prevailed in these bloody
contests, always found himself less able and powerful to defend the
empire from foreign enemies or domestic competitors, than his predecessor
was[79].

About the year 200 after Christ, the several nations who had been
hitherto cooped up beyond the Rhine and the Danube, and kept in some
awe by the terror of the Roman name, began to gather some courage from
the weakness of the empire; and from that time few years passed without
incursions into, and ravages of, some part of the southern territories,
by one or other of these people; and how redoubtable they became to that
decaying state, may easily be judged from the particular fondness the
emperors of those days had, upon every slight advantage gained over them,
for assuming the pompous titles of Gothicus, Vandalicus, Alemannicus,
Francicus, &c. not for the conquest, or reducing into subjection those
several people, as in antient times, but merely for having checked them,
and kept them out of the Roman boundaries[80].

But these invasions of the northern nations were a long time confined
to the single views of rapine and plunder; for as yet they were not
fully convinced of their own strength, and the enfeebled condition of
their enemies. And perhaps they might have longer continued in this
ignorance, and within their former bounds, had it not been for an event
that happened about the year 370, the like to which hath several times
since changed the face of Asia. I mean a vast irruption of the Hunns, and
other Tartarian nations into the north of Europe. These people, whether
out of their natural desire of rambling, or pressed by a more potent
enemy, were determined on a general change of habitation; and, finding
the invasion of the Persian empire, which then was in its full grandeur,
an enterprize too difficult, they crossed the Tanais, and obliged the
Alans and Goths, who lived about the Borysthenes and the Danube, to seek
new quarters. The former fled westward to Germany, already overloaded
with inhabitants; and the latter begged an asylum from Valens in the
eastern empire, which was willingly accorded them. The countries south
of the Danube were before almost entirely depopulated by their frequent
ravages. Here, therefore, they were permitted to settle, on the condition
of embracing the Christian faith; and it was hoped they, in time, would
have proved a formidable barrier against the incroaching Hunns, and, by
a conformity of religion, be at length melted into one people with the
Romans. For the attaining this purpose, they were employed in the armies,
where, to their native fierceness and bravery, they added some knowledge
of discipline, the only thing they wanted; and many of their kings and
great men were in favour at court, and either supported by pensions, or
raised to employments in the state[81].

But the injudiciousness of this policy too soon appeared; and indeed it
was not to be expected that a people used entirely to war and rapine,
and unaccustomed to any other method of subsistance, could in a short
time be reduced to the arts of social life, and to the tillage of the
earth; or be retained in any moderate bounds, in time of peace, when,
by being admitted within the empire, they saw with their own eyes the
immense plunder that lay before them, and the inability of the Romans to
oppose their becoming masters of it. During the life of Theodosius they
remained in perfect quiet, awed by his power and reputation; but when he
left two weak minor princes under the guardianship of two interested and
odious regents, it was obvious they could not be bridled much longer.
Though, if we are to credit the Roman historians, their first irruption
was owning to the jealousy Ruffinus, the prime minister of Arcadius,
entertained of Stilicho, the guardian of Honorius. This latter, it is
said, ambitious of holding the reins of both empires, pretended, that
Theodosius had on his death-bed appointed him sole regent of both. For,
though Arcadius was now of sufficient age to govern of himself, he was,
in truth, for want of capacity, all his life a minor. Ruffinus, we are
told, conscious of his rival Stilicho’s superior talents and power,
resolved to sacrifice his master’s interest rather than submit to one he
so much hated; and, accordingly, by his private emissaries, stirred up
both Goths and Hunns, to fall at once on the eastern empire[82].

In the year 406, these nations, so long irreconcileable enemies to each
other, poured their swarms in concert into the defenceless dominions
of Arcadius. The Hunns passed by the Caspian sea, and with unrelenting
cruelty ravaged all Asia to the gates of Antioch; and at the same
time the Goths, under the so much dreaded Alarick, with no less fury,
committed the like devastations in Illyricum, Macedon, Greece, and
Peneloponnesus. Stilicho, thinking that his saving the eastern empire
would undoubtedly accomplish for him his long wished-for desire of
governing it in the name of Arcadius, as he did the western in that of
Honorius, hastened into Greece with a well-appointed army. But, when he
had the barbarous enemy cooped up, and, as it were, at his mercy, the
weak prince, instigated by his treacherous minister Ruffinus, sent him
orders to retire out of his dominions. The Goths returned unmolested to
the banks of the Danube, laden with plunder; and Stilicho went bank to
Italy boiling with rage and resentment, but he never had an opportunity
of wreaking his vengeance on his treacherous rival.

In the next year, Germany, surcharged with her own inhabitants, and the
nations who fled from the Hunns, and, perhaps, instigated by Ruffinus,
to find work for Stilicho at home, sent forth her multitudes across the
Rhine; and, for three successive years, the Suevians, Alans, Vandals, and
Burgundians, laid all the open country of Gaul waste; and, about the same
time, Constantine, a Roman Briton, assumed the imperial purple, and was
acknowledged by all the Romans of that island and Gaul.

The western empire was now utterly disqualified for defence: Stilicho,
the only man whose abilities and influence were capable of saving the
falling state, had been suspected of treason in aspiring to the diadem,
and was put to death; and Alarick, having before effectually plundered
Greece, was now acting the same part in Italy, while Honorius, shut up in
Ravenna, made but feeble efforts of resistance. Twice was Rome besieged,
once redeemed by an immense ransom, and the second time taken, plundered
and burnt. At length these calamities a little subsided; Constantine, the
British usurper of the empire, died; and all the western Romans again
acknowledged Honorius; but the western empire, though she lingered some
time, had received her mortal wound, and utterly perished in less than
fifty years. The distressed emperor Honorius granted to the Burgundians,
who were the most civilized of these barbarians, and had embraced the
Christian religion, the country they had possessed themselves of, namely,
Alsace and Burgundy. The Goths, who were already Christians, but of
the Arian persuasion, having by this time exhausted Italy, were easily
prevailed on, under Ataulphus, Alarick’s successor, to settle in the
south-west of Gaul, under a like grant; which country had been quitted
in the year 410 by the Sueves, Alans, and Vandals, who had over-run all
Spain, and divided it into three kingdoms. And thus were two kingdoms
formed in the south of Gaul, the new inhabitants of which coming by
compact, and under the title of the Roman emperor, behaved afterwards to
the subjected Romans and Gauls not in the light of brutal conquerors.
Though they themselves retained their own customs, they indulged these in
the use of the Roman laws, suffered them to enjoy a considerable portion
of the lands, and made no very afflicting distinctions between themselves
and their subjects.

The Burgundians, particularly, we are informed, took two thirds of the
lands, the pasturage and forests, with one third of the slaves to look
after their flocks, and left the remainder to the Romans, who were
skilled in agriculture. They also quartered themselves in the houses of
the Romans, which naturally produced an acquaintance and amity between
the two nations. But one great reason, as I apprehend, of the lenity of
these people to the vanished (and a similar one will account for the
Ostrogoths and Lombards in Italy, afterwards, following their example,
which likewise hath been taken notice of with wonder by some authors) was
their neighbourhood to the Roman empire, which still continued in name in
the west, and which they might well be afraid of seeing revived, under
a prince of ability, if their harsh treatment alienated the conquered
people’s affections from them[83].

But different was the treatment the conquered met with from the Franks,
who about this same time settled themselves at a greater distance from
Italy, namely, in Belgic Gaul. The Franks, above most of the other
German nations, had been for a considerable time attached to the Romans,
insomuch that if they did not receive their kings from them, as Claudian
tells us they did from Honorius, at least the kings received their
confirmation from the emperors; and they continued in this fidelity till
the year 407, when they fought a bloody battle with the Sueves, Vandals,
and Alans, to prevent their passing the Rhine, to invade the Roman
territories. But when they found the western empire already dismembered,
they thought it not convenient to lie still, and suffer other nations
to share the prey entirely amongst themselves. The Salians, therefore,
took possession of the present Netherlands, and the Ripuarians to their
original country of Mentz and Hesse, added Treves, Cologne, and Lorrain.
Some have thought these people had grants from the Roman emperor, in the
same manner as I have mentioned before concerning the Burgundians and
Visigoths; but I should, with others, apprehend this to be a mistake;
for Ætius the Roman general left the Goths and Burgundians in quiet
possession of their seats, but defeated, and obliged the Franks to repass
the Rhine, which made them, after the danger was over, return with double
fury; and for a long time after they treated the conquered Romans in the
stile of masters, and with many afflictive distinctions, unknown to their
neighbours the Goths and Burgundians[84].

Many, in the first heat of victory, they reduced to slavery, to a
servitude very different from what had been before practised in Germany,
and nearly approaching to what was used by the Romans. For whatever
property was acquired by these slaves or servants, who in after ages were
called Villains, belonged to their masters, not absolutely, as at Rome;
but the masters claimed and took possession of it, and they (I mean in
France) for the enjoyment of what was permitted them, paid a stipulated
tax called _census_, which was the only tax used there in those ancient
times. However, they did not employ them in domestic drudgery, but
suffered them to live apart, as the proper German servants had done.
Their duties were uncertain, in this agreeing with those of the men of
war, and differing from those of the middle rank, which I shall hereafter
mention, and were of the most humiliating kind, they being obliged to
attend at their lord’s summons, to carry out dung, remove nuisances,
and do other mean and servile offices. The number of these slaves and
villains for centuries perpetually increased, from the many wars both
foreign and civil, these people were engaged in, and the _jus gentium_ of
those ages, by which all that were taken in war were reduced to slavery;
insomuch that, by the year 1000, the number of these villains was
immense, whole cities and regions being reduced to that state[85].

This introduction of a new order of men, unknown to the original German
policy, and inferior to all others, was of advantage to that which had
before been the lowest, I mean the _servants_, as they were called
in Germany, or _socage tenants_, as they were called in England; for
the duties they paid their lords were fixed at a certain rate, which
being performed, they were chargeable with no other burdens, and,
though no members of the body politic, as having no share in the public
deliberations, either in person or by representation, were in reality
free men. These, with the addition of several of the captive Romans, who
were most skilful in agriculture, were the successors of the old servants
in Germany; but their numbers, from the causes before-mentioned, the
perpetual wars, continually decreased, great multitudes of them being
reduced into the state of villainage[86].

The soldiers, who were really what composed the nation, continued
for a longer time pretty much in the same state as in Germany; for a
whole people do not part with their accustomed usages and practices on
a sudden. They changed their habitations as before, their manner of
judicature and administering justice continued the same, they met in
general assemblies as usual, but, as they were now dispersed over a
more extensive country, not so frequently as formerly. When they were
converted to Christianity, which happened under Clovis, who, by uniting
all the Franks, subduing the Alemans, and conquering considerable tracts
of country from both the Visigoths and Burgundians, first formed a
considerable kingdom, it was found exceedingly inconvenient to assemble
every month. Thrice in the year, namely on the three festivals, was
found sufficient, except on extraordinary occasions; and this method was
continued many ages in France and in England. For hundreds of years after
the conquest, these were the most usual and regular times of assembling
parliaments.

But though things, in general, wore the same face as when these people
remained at home, it will be necessary to observe, that a change was
insensibly introducing, the king and the chieftains were daily increasing
their privileges, at the expence of the common soldiers, an event
partly to be ascribed to the general assemblies being less frequent,
and consequently fewer opportunities occurring for the people at large
to exert their power; but principally to the many years they had spent
successively in camp, before they thought themselves secure enough to
disperse through the country. The strictness of military discipline, and
that prompt and unlimited obedience its laws require, habituated them to
a more implicit submission to their leaders, who, from the necessities
of war, were generally continued in command. And it is no wonder that
while the authority of the inferior lords was thus every day gaining
strength, that of the king should encrease more considerably. For,
probably, because he, as general, was the fittest person to distribute
the conquered lands to each according to his merits, he about this time
assumed to himself, and was quietly allowed the entire power of the
partition of lands. They were still, and for some considerable time
longer, assigned in the general assemblies, but according to his sole
will and pleasure, to the several lords, who afterwards subdivided
them to their followers in the same manner at their discretion; whence
it came, that these grants were called benefices, and are constantly
described by the old writers, as flowing from the pure bounty and
benevolence of the lord[87].

A power so extraordinary in a king would tempt any one, at first view; to
think that he who had so unlimited a dominion over the landed property,
must be a most absolute monarch, and subject to no manner of controul
whatsoever. It will therefore be proper to make an observation or two, to
shew why, in fact, it was otherwise. First, then, the ascendant the lords
had gained over their followers, made it extremely dangerous for the king
to oppress the lords, lest it might occasion, if not a rebellion, at
least a desertion of them and their people. For the bonds of allegiance,
except among the companions of the king, as I observed before, were not
yet fully tied. On the other hand, the interest of the lords obliged them
to protect their inferiors from the regal power. Secondly, this power of
the king, and of his lords under him, was not unlimited in those times,
as it may appear to be at first sight, and as it became afterwards. For,
though he could assign what land he pleased to any of the Franks, he
could not assign any part to any other but a Frank, nor leave any one of
the Franks unprovided of a sufficient portion, unless his behaviour had
notoriously disqualified him[88].

But the strongest reason against this absolute power in those times,
is to be drawn from the common feelings of human nature. As absolute
monarchies are only to be supported by standing armies, so is an absolute
unlimited power over that army, who have constantly the sword in their
hands, a thing in itself impossible. The Grand Seignior is, indeed, the
uncontrouled lord of the bulk of his subjects, that is, of the unarmed;
but let him touch the meanest of the janizaries, in a point of common
interest, and he will find that neither the sacredness of the blood of
Ottoman, nor the religious doctrine of passive obedience, can secure his
throne. How then could an elective prince, in these northern regions,
exercise an uncontrouled dominion over a fierce people, bred up in the
highest notions of civil liberty and equality? One of their old maxims
they long religiously adhered to, that is, that, in consideration of
their lands, they were bound to serve only in defensive wars; so that
a king who had engaged in an offensive one, had every campaign a new
army to raise by the dint of largesses; which if he had no treasure left
him by his predecessor, as he frequently had, and which every king by
all means was diligent in amassing, he supplied from the profits of his
demesns, the _census_ on his villains, or else from foreign plunder[89].

But these people had not long been settled in their new seats, before the
encrease of their wealth, and the comfortableness of their habitations,
rendered a constant removal inconvenient, and made them desirous of more
settled assurance in their residence, than that of barely one year. Hence
it came, that many were, by the tacit permission of the king, or the
lord, allowed to hold after their term was expired, and to become what
our law calls _tenants by sufferance_, amoveable at any time, at the
pleasure of the superior; and afterwards, to remedy the uncertainty of
these tenures, grants for more years than one, but generally for a very
short term, were introduced. The books of the feudal law, written many
hundred years after, indeed, say that the first grants were at will,
then for one year, then for more; but I own I cannot bring myself to
believe that these conquerors, who were accustomed in Germany to yearly
grants, could be satisfied with a tenure so precarious as under that
of a year, in their new acquisitions. These grants at will, therefore,
which are mentioned in those books, I understand to be after their term
ended. I mean this only as to the warrior-Franks, for as to the socagers
and villains, I will readily allow that many of the former, and all the
latter, were originally at pleasure[90].

About this period, as I gather from the reason and circumstances of
the times, was introduced the tenure of castleguard, which was the
assignment of a castle, with a tract of country adjacent, on condition
of defending it from enemies and rebels. This tenure continued longer
in its original state than any other; for by the feudal law it could be
granted for no more than one year certain[91].

It is time now to take notice of such of the Romans as lived among
the Franks, and by them were not reduced to slavery. Clovis began his
conquests with reducing Soissons, where a Roman general had set himself
up with the title of a king; and after he had extended his conquests over
all the other states, the Franks, and some other German nations, the
Armorici, the inhabitants of Brittany, who, cut off from the body of the
empire, had for some time formed a separate state, submitted to him on
condition of retaining their estates, and the Roman laws. Their example
was soon followed by others. The Gauls who dwelt on the Loire, and the
Roman garrisons there, were taken into his service. Thus was the king of
France sovereign of two distinct nations, inhabiting the same country,
and governed by different laws. The Franks were ruled by their customs,
which Clovis and his successors reduced into writing; the Romans by the
Imperial law. The estates of the one were beneficiary and temporary;
those of the others were held _pleno jure_ and perpetual, and now, or
soon after, began to be called _allodial_. But these allodial estates
were not peculiar in after times to the Romans; for as these estates were
alienable, many of them were purchased by the Franks: So that we read,
that when Sunigisila and Callamon were deprived of the benefices they
held as Franks, they were permitted to enjoy their estates in propriety.
As the Romans were, before their submission, divided into three classes,
the nobles, the freemen, and the slaves, so they continued thus divided;
the nobles being dignified with the title of _convivæ regis_[92].

But as it was unsafe to trust the government of these new subjects in
the hands of one of their nation, the king appointed annually one of his
companions, or _comites_, for that purpose, in a certain district; and
this was the origin of counties, and counts. The business of these lords
was to take care of, and account for the profits of the king’s demesns,
to administer justice, and account for the profits of the courts;
which were very considerable, as the Roman laws about crimes being, by
degrees, superseded, and consequently capital punishment in most cases
abolished, all offences became fineable, a third of which they retained
to themselves. They also, in imitation of the lords of the Franks,
led their followers to the wars. For every free Roman, that held four
manors, was obliged to serve under his count; and those that had more
or less contributed in proportion. This military duty, together with an
obligation of furnishing the king with carriages and waggons, was all the
burden put upon them, instead of those heavy taxes and imposts they had
paid to their emperors; so that, in this instance, their situation was
much mended, though in other respects it was sufficiently mortifying[93].
The greatest among them was no member of the political body, and
incapable of the lowest office in the state; and as all offences were
now fineable, those committed against a Frank, or other Barbarian, were
estimated at double to the compensation of those committed against a
Roman or Gaul. No wonder, then, that _gentilis homo_, a term formerly of
reproach among the Romans, (for it signified a heathen and barbarian)
became now a name of honour, and a mark of nobility; and that the Romans
earnestly longed to turn their allodial estates into benefices, and to
quit their own law for the Salic. And when once they had obtained that
privilege, the Roman law insensibly disappeared, in the territories of
the Franks, the northern parts of modern France, which are still called
the _païs des coutumes_; whereas, in the southern parts, where no such
odious distinctions were made by the original conqueror, the Roman law
kept its ground, and is to this day almost entirely observed. These
countries are called by the French lawyers _païs de loi ecrite_, meaning
the Roman[94].

But we cannot have a compleat idea of the constitution of this nation,
without taking notice of the clergy, who now made a considerable figure
among them. Churchmen had, ever since the conversion of Constantine,
been of great consequence in the empire; but the influence they obtained
among the northern barbarians was much more extensive than what they had
in the Roman empire. The conversion of Clovis to the Christian religion
was owing to the earnest persuasions of his wife Clotildis, a zealous
Christian, and to a vow he made when pressed in battle, of embracing the
faith of Jesus Christ, if he obtained the victory. He and his people in
general accordingly turned Christians; and the respect and superstitious
regard they had in former times paid to their pagan priests, were now
transferred to their new instructors. The principal, therefore, of them
were admitted members of their general assemblies; where their advice and
votes had the greatest weight, as well as in the court of the prince;
as learning, or even an ability to read, was a matter of astonishment
to such an illiterate people, and it was natural in such a state they
should take those in a great measure as guides in their temporal affairs,
whom they looked on as their conductors to eternal happiness. As they
were the only Romans (for the churchmen were all of that nation) that
were admissible into honours, the most considerable of their countrymen
were fond of entering into this profession, and added a new weight to
it. But if the sacredness of their function gave them great influence,
their wealth and riches added not a little to it. Before the irruptions
of the barbarians, they had received large possessions from the bounty of
the Roman emperors, and the piety of particulars. These they were sure
to possess: but their subsequent acquisitions were much greater. Though
these kings and their people had imbibed the faith of Christ, they were
little disposed to follow its moral precepts. Montesquieu observes the
Franks bore with their kings of the first race, who were a set of brutal
murderers, because these Franks were murderers themselves. They were
not ignorant of the deformity of their crimes, but, instead of amending
their lives, they chose rather to make atonement for their offences, by
largesses to their clergy. Hence the more wicked the people, the more
that order encreased in wealth and power[95].

But, to do justice to the clergy of that age, there was another cause
of their aggrandizement, that was more to their honour. As these
barbarians were constantly at war, and reduced their unhappy captives
to a state of slavery, and often had many more than they knew what to
do with, it was usual for the churchmen to redeem them. These, then,
became their servants, and tenants, where they met not only with a more
easy servitude, but were, from the sacredness of the church, both for
themselves and their posterity, secured from any future dangers of the
same kind. It was usual also for the unhappy Romans, who were possessed
of allodial estates, and saw themselves in danger, by these perpetual
wars, of not only losing them, but their liberty also, to make over their
estates to the church, and become its socage-tenants, on stipulated
terms, in order to enjoy the immunities thereof.

By all these means the landed estates of the clergy grew so great, that
in time the military power of the kingdom was much enfeebled: for though
they were obliged to furnish men for the wars, according as the lands
they held were liable to that service, this was performed with such
backwardness and insufficiency, that the state at one time was near
overturned, and it became necessary to provide a remedy. Charles Martel,
therefore, after having delivered the nation from the imminent danger
of the Saracen invasion, found himself strong enough to attempt it. He
stripped the clergy of almost all their possessions, and, turning them
into strict military tenures, divided them among the companions of his
victories; and the clergy, instead of lands, were henceforth supported
by tithes, which before, though sometimes in use, were only voluntary
donations, or the custom of particular places not established by law[96].

In my next lecture I shall consider the introduction of estates for life
into the feudal system, and take notice of the consequences that followed
from thence.




LECTURE VI.

    _The introduction of estates for life into the feudal
    system—The nature and forms of investiture—The oath of fealty,
    and the obligations of lord and tenant._


In the preceding lecture I took notice of the different condition and
situation of the Romans and barbarians in the infancy of the French
monarchy; but it will be necessary to observe, that all the barbarians
themselves were not subject to the same laws and regulations. When the
Ripuarian Franks, after the murder of their sovereign, submitted to
Clovis, it was under an express condition of preserving their own usages.
The same privilege he allowed to the Allemans, whom he conquered, and
to such parts of the Burgundian and Gothic kingdoms as he reduced to
his obedience. The customs of all these several people, as they were
Germans, were indeed of the same spirit, and did pretty much agree; but
in particular points, and especially as to the administration of justice,
they had many variations; and these the several nations were fond of
and studious of preserving. What was peculiar to these people, above
all other nations, was this, that these different laws were not local,
but personal: for although the Salians, in general, dwelt in one part
of the country, the Ripuarians in another, the Allemans in a third, &c.
yet the laws were not confined to these districts: but a Salian, in the
Ripuarian territories was still judged by his own, the Salian law; and
the same was true of all the others. Another peculiarity was, that the
barbarians were not confined to live in the law they were born under. The
Romans, indeed, could not pass from their Roman law to that of any one of
their conquerors, until they were allowed, several ages after, to acquire
fiefs; but any of the barbarians, if he liked another law better than his
own, could adopt it: a privilege, I presume, derived from that antient
practice which they used, of removing from one state or commonwealth to
another, or of going forth to form a new one.

In the French monarchy, then, there were five different nations, besides
the Romans, governed by five distinct laws; but these five people, being
all of the same northern original, and descended from the conquerors
of Gaul, were, in the state, every one of them esteemed and regarded
on an equal footing, enjoyed the same privileges, and equally received
benefices from the king or other lords. I have already observed, that
the bonds between the king and his companions in Germany continued
during their joint lives. It had the same duration after they settled in
Gaul; where they either presided with him in his court, as they had done
formerly, or were settled in benefices near him, and in such situations
as they might readily attend him on occasion; or else were the governors
and leaders of the free Romans, under the title of counts. But all the
grants of lands or offices that they enjoyed were, as yet, but temporary.
So that they were _fideles_, or vassals, bound by an oath of fealty for
life; but there were no fiefs, or feudal tenures, if we may call them by
that name, that continued for so long a term[97].

The introduction of beneficiary grants for life, as is very properly
conjectured, was first owing to the counts. They had, as I mentioned
before, the third part of the profits of the courts in their respective
districts, which made their office not only considerable and honourable,
but opulent. They lived apart from the other barbarians among the Romans,
whose allodial property was fixed and permanent. It was natural for them
to wish the continuance of their lucrative employments, and to make them
as perpetual as their obligation of fidelity was; and this they were
enabled to attain by the means of the profits they made of their places,
and the want of treasure, which the kings frequently laboured under to
support their wars: for offensive ones they could carry on in no other
manner than by ready treasure. The counts, therefore, by the dint of
presents, or fines, attained, or I may rather say, purchased estates for
life in their offices; but these estates had, at first, continuance only
during the joint lives of the granter and grantee[98].

But the matter did not stop here. The example was quickly followed by
the other barbarians, who were the immediate tenants of the crown, and
who now were growing weary of the constant, or even a frequent change
of habitation. And, in one respect, this allowance was of considerable
advantage to the king, as it created a tie upon them, equally durable
with that by which his companions were bound to him, and wore out by
degrees that principle they had before retained, that by throwing up
what they held from him, they were absolved from their allegiance. They,
therefore, as well as the companions, took the oath of fealty; which,
as far as I can find, was taken by none on the continent, whose estates
were less than for life; though, in the law of England, it is a maxim,
that fealty is incident to every tenure but two, namely, estates at will
(for they did not think it reasonable that a person should bind himself
by oath, in consideration of what might be taken from him the next day)
and estates given in frank almoigne, or free alms, that is, to religious
houses, in consideration of saying divine service, and praying for
the donor and his heirs; and these were excused out of respect to the
churchmen, who were supposed not to need the bond of an oath, to perform
that duty to which they had dedicated themselves, and also because the
service was not done to the lord, who gave the land, but to God.

Thus estates for life, created by particular grants, went on continually
encreasing in number, till the year 600, by which time almost every
military tenure, castle-guard excepted, was of this nature. And this
accounts for the particular regard the feudal, and from it our law
shews to the tenant of the freehold, and the preference given to him
above a tenant for years. For, first, his estate was, generally, more
valuable and permanent, as long terms were then unknown; and, secondly,
it was more honourable, as it was a proof of a military tenure, and of
the descent of its possessor from the old German freemen. For it was a
long time after that socage lands, in imitation of these, came to be
granted in the same manner, for life. The lords, or immediate tenants
of the crown, having, by the means afore-mentioned, gotten estates of
continuance, and being bound for life to the king, thought it their
interest likewise to connect their tenants as strictly to them, by
granting them freeholds also; but in the oath of these sub-vassals,
which they took to their lords, there was an exception of the fealty due
to the king, from whom the land was originally derived, or of a former
lord, if such an one they had, to whom they were bound by oath before.
These sub-vassals, likewise, had not in those early times, the power of
creating vassalages, or estates for life, under them; for it was thought
improper to remove the dependence of any military man on the king to so
great a distance; and indeed it was hardly worth any man’s while, if it
had been lawful, to accept such a gift as was determinable either on the
death of the superior lord, or of his vassal, who had granted it, or
lastly, on his own death[99].

Estates for life being now become common, and in high estimation, it
was thought proper that they should be conferred with more form and
solemnity, and that by means of what the feudal law calls Investiture,
of which there are two kinds. The first, or proper investiture, was thus
given: The lord, or one impowered by him, and he that was to be tenant,
went upon the land, and then the tenant, having taken his oath of fealty,
the lord, or his deputy (or attorney, as our law calls him) gave actual
possession to him, by putting into his hand a part of the premises, in
the name of the whole, as a turf, a twig, or a hasp of the door, in the
presence of the _pares curiæ_, that is, of the other vassals or tenants
of the lord. This is what our law calls giving livery and seizin, from
the lord’s or his deputy’s delivering, and the tenant’s taking seizin,
for so the possession of a freehold or estate for life is called. The
presence of the _pares curiæ_ was required equally for the advantage of
the lord, of the tenant, and of themselves; of the lord, that, if the
tenant was a secret enemy, or otherwise unqualified, he might be apprised
thereof by the peers of his court, before he admitted him; and that they
might be witnesses of the obligation the tenant had laid himself under of
doing service, and of the conditions annexed to the gift, if any there
were, which the law did not imply: for the benefit of the tenant, that
they might testify the grant of the lord, and for what services it was
given; and lastly, for their own advantage, that they might know what the
land was, that it was open for the lord to give, and not the property of
any of the vassals; and also that no improper person should be admitted a
par, or peer of their court, and consequently be a witness, or judge, in
their causes[100].

Hence it is, that in our law, if a man has right to enter into several
lands in the same county, an entry into one of them, in the name of all,
is sufficient to vest the seizin, that is, the possession of the freehold
of all, in him; because the same _pares curiæ_ (who were in antient
times the only witnesses allowed) who know he had in their presence
entered into one, know also that he entered that one in the name of
all the others; but if the lands lie in different counties (which are
distinct jurisdictions, and have different _pares curiæ_) an entry into
one county, in the name of the whole, is not sufficient; because, as to
seizin of lands in the other county, the _pares_ thereof are the only
competent witnesses.

As the proper investiture required the actual going upon the lands, which
was often inconvenient, the improper investiture was introduced. This,
which was the second kind mentioned, was also performed in the presence
of the _pares curiæ_, thus: The intended tenant, in a most humble and
lowly manner, prays the grant of such an estate from his lord; which,
when the latter has agreed to, he invests him, by words signifying his
grant, and what it is of, accompanied by some corporeal action, as
delivering him a staff, a ring, a sword, or clothing him with a robe,
which last, being the most common method amongst the great immediate
tenants of the king, gave rise to the name _investiture_. After this, the
tenant did fealty. But this improper investiture did not transfer the
actual possession of the land without subsequent livery and seizin, and
gave the tenant not a right to enter, but only a right of action, whereby
he might sue, and oblige the lord to transfer it by an actual livery. For
all these lands, being liable to services arising out of the profits for
which the lord was bound to answer to the king, his possession of these
profits by their rules was continued, until he had, by an act of public
notoriety, namely, by giving livery and seizin on the land, put it out of
him. And this maxim was, I apprehend, established also for the benefit of
the co-vassals, who could better judge by their own eyes, on the spot,
whether an injury was done by the grant to any of them, than by hearing
the lands named and described elsewhere, as, in such case, it frequently
happened that all the vassals were not present[101].

Hence, if the lord had granted lands by an improper investiture to A, and
had afterwards, by livery and seizin, granted them to B, they became B’s,
though he was the later invested; and the remedy A had against the lord
was not for the lands themselves, for those he had already legally parted
with to B, and could not recal, but for their value, in consideration of
his having bound himself to fealty.

This was the form and manner of proper and improper investitures in the
early times, before these barbarians had learned the use of letters,
and was intended not merely for solemnity, but also to create such a
notoriety of the fact, as it might easily be proved by _viva voce_
testimony. For if it was denied, the tenant produced two or more of the
_pares curiæ_, each of whom swore he had either been present at the
investiture himself, or had constantly heard his father declare, that
he was. And this, at first, was the only evidence admissible, and was
abundantly sufficient, when the grants were only for one life. Such
proof, however, could not be of any advantage to the church; for, though
churchmen die, the church doth not, but continues to be represented
in a succession of natural persons. If she, therefore, had not a more
permanent evidence to produce than what I have before-mentioned, she
could never, after some length of time, ascertain her rights. On this
account _brevia testata_, or, as we call them, deeds, were made use of,
which were written instruments, expressing the grant, and its nature,
attested by some of the _pares_, and authenticated by the seal of the
lord, or by his name and sign of the cross. When this kind of evidence
was once introduced, as it was more fixed and certain than the frail
memories of men, it became customary for the tenant, who had been
invested either properly or improperly, to demand and obtain a _breve
testatum_ of that investiture, and afterwards other symbols in improper
investitures went out of use, and the delivery of a deed became the
ordinary sign; but this, as all other improper investitures, required a
subsequent actual livery and seizin.

Having thus delivered the antient and proper method of constituting an
estate for life, let us attend to the consequences, and see what were
the several rights and obligations of the lord and tenant, and for that
purpose examine the oath of fealty.

The general oath of fealty on the continent was thus: _Ego N. vassallus,
super hæc sancta Dei evangelia, juro, quod ab hac horâ in antea usque
ad ultimum vitæ meæ diem, tibi M. domino meo, fidelis ero, contra omnem
hominem, excepta summo pontifice, vel imperatore, vel rege, vel priore
domino meo_, as the case was. In England, Littleton gives this account of
it. When a freeholder doth fealty to his lord, he shall hold his right
hand on a book, and shall say thus: Know ye this, my lord, that I shall
be faithful and true unto you, and faith to you shall bear, for the lands
which I claim to hold of you; and that I shall lawfully do to you the
customs and services which I ought to do, at the terms assigned; so help
me God, and his saints; and he shall kiss the book[102].

The only differences are, that the words _ab hac hora in antea usque
ad ultimum vitæ meæ diem_ are omitted: for abroad none but tenants for
life swore fealty. In England termers for years did; and that _contra
omnem hominem, excepto, &c._ though implied, is likewise omitted; which
exceptions, however, in the English law, were inserted in the doing of
homage which the tenant in fee did to his lord.

Such was the general oath of fealty; but to shew what _being faithful
and true_, and _bearing faith_ comprehends, it will be proper to
insert, from the seventh title of the second book of the feudal law,
the larger oath, which persons, rude and ignorant of what the word
fealty implied, were to take. It runs in these words: _Ego juro, quod
nunquam scienter ero in consilio, vel in facto quod tu amittas vitam,
vel membrum aliquod, vel quod tu recipias in personâ aliquam læsionem,
vel injuriam, vel contumeliam, vel quod tu amittas aliquem honorem quem
nunc habes, vel in antea habebis; & si scivero, vel audivero, de aliquo,
qui velit aliquod istorum contra te facere, pro posse meo, ut non fiat
impedimentum præstabo. Et si impedimentum præstare nequivero, quam
cito potero, tibi nunciabo; & contra eum, prout potero, auxilium meum
tibi præstabo; & si contigerit, te rem aliquam quam habes vel habebis
injuste vel fortuito casu amittere, eam recuperare juvabo, & recuperatam
omni tempore retinere. Et si scivero te velle juste aliquem offendere,
& inde generaliter vel specialiter fuero requisitus, meum tibi, sicut
potero, præstabo auxilium. Et si aliquid mihi de secreto manifestaveris,
illud, sine tua licentia, nemini pandam, vel per quod pandatur faciam;
& si consilium mihi super aliquo facto postulaveris, illud tibi dabo
consilium, quod mihi videtur magis expedire tibi; & nunquam ex persona
mea aliquid faciam scienter, quod pertineat ad tuam vel tuorum injuriam
vel contumeliam._

Besides the negative obligations, of doing nothing to the prejudice of
the lord or his family, the positive ones the vassals lay under may
be reduced to the two heads of counsel and aid; which, with us, are
still the principal duties that the parliament, who are, or represent
the vassals of the king, owe to the sovereign. Under counsel, not only
giving faithful advice, but keeping his secrets was included. Aid may
be either in supporting his reputation and dignity, or defending his
person or property. Under the first, the vassal was not only to shew him
the highest reverence, but was forbid to accuse or inform against him,
except in the case of treason, where the supreme lord was concerned. He
could not in a suit between them tender to his lord the oath of calumny,
whereby he should be obliged to swear he thought his cause was just, and
that he did not carry it on with an intent to harrass and distress; for
this was throwing an aspersion on his lord’s character. He could not,
for the same reason, bring any action against him, whereby he might be
defamed, and particularly the interdictum _unde-vi_, which was a charge
against the person sued, of an unjust and violent dispossession of
property. Neither could he, in any cause that was not strictly feudal
(for in such as were for the general preservation of that polity, he
was permitted) bear witness against him. And, lastly, he was obliged to
support his dignity, to attend his courts, and do suit and service, as a
witness and a juror.

By aid to his person, he was not only obliged to defend his lord, if
attacked personally, but to assist him in his wars, and that at his own
expence, out of the profits of his tenancy; and if, in the field of
battle, he deserted his lord, before his lord was mortally wounded, it
was an absolute forfeiture. But this aid he was not obliged to give until
required; for perhaps the lord did not need the aid of all his tenants;
and the vassal, without notice, was supposed ignorant that there was any
occasion for his assistance, unless it could be proved the vassal knew
his lord’s danger, when the lord himself did not; or that he knew it
was so imminent as not to give the lord time to summon him; in which two
cases, he was obliged to serve without requisition[103].

But here some distinctions must be taken notice of as to the nature of
these wars. I have often repeated that the king’s companions were bound
to assist him in all his undertakings, offensive or defensive; and that
the other freemen were obliged only to serve in defensive wars. But now,
by this new introduction of grants for life to the freemen, the case was
altered. In all defensive wars, they were obliged to aid their lord,
though he had been the unjust aggressor, and this for the preservation
of the society to which they belonged; but in offensive ones, it was to
be considered whether the cause was just, or doubtful, or notoriously
unjust. In the two first cases, he was obliged to furnish his aid; for
if his lord’s quarrel was doubtful, the respect and reverence he owed
him, and his regard to his lord’s character and dignity, laid him under
a necessity of presuming in his superior’s favour. But if the war was
notoriously unjust, he was at liberty to serve, or not, as he pleased.
And the aid he was bound to give, where he was bound, was against all
persons, _contra omnem hominem_, even his parents, brothers, children,
and friends, with the following exceptions. First, not against the king,
who was the supreme lord of the whole, and in whose preservation and
dignity every individual was concerned. Secondly, not against himself,
for self-preservation is the first law of nature. Thirdly, not against
his original country, though he had received a grant from a foreign
lord, and afterwards war broke out between them: for by this time, the
opinion of a durable obligation to the state he was born in, began to
prevail among them. Lastly, not against his antienter lord, when he had
grants from two; for the second obligation could not annul the first.
It may here be naturally asked, how such a vassal, who had two lords,
was to act in case of a war between them? If his first lord’s cause was
just or doubtful, he was undoubtedly bound to him against the subsequent
one, even in attacking him; and this was no forfeiture, for the second
lord had sufficient notice of his prior obligation, by the exception in
the oath of fealty. Indeed, if he, having a lord before, had omitted the
exception, he justly lost his fief, for the deceit put on his latter
lord. But if his first lord’s cause was notoriously unjust, he was not
at liberty to assist him against the second; but by the two bonds was
obliged to remain neuter[104].

This military duty was to be done in the vassal’s proper person, if he
was capable of it; unless the lord was pleased to accept of a deputy. But
if he was incapable himself, as often must have happened, after estates
for life came in, he was allowed to serve by a substitute, such as the
lord approved. Suppose, then, a man had two lords, who were at the same
time at war with others, and each required his personal assistance, it
was plain he was obliged to serve both, the elder lord in person, because
his right was prior, and the last by deputy[105].

The aids due to the lord, in respect of his property, were, first, to
aid and support him, if reduced to actual indigence, and to procure
his liberty, by paying his ransom, if taken in war. It was a doubt
among the feudal lawyers, whether, if the lord was imprisoned for
debts, his tenants were obliged to release him; and the better opinion
was, that they were, if the debts did not tend to their very great
impoverishment[106].

These were all the aids necessarily required by the law in these antient
times. For those for making his eldest son a knight, and marrying
his elder daughter, came in afterwards. All other contributions and
assistances were merely voluntary, though very frequent, and were
originally, as they are still here, and are still called abroad, though
imposed really and truly, _free gifts_.

We are now to speak of the duty of the lord to his vassals; and on this
head there is no need of enlarging much: for it was a maxim in the
feudal law, that though the vassal only took the oath to the lord, and
the lord, on account of his dignity, and the respect due to him from the
tenant, took none; yet was he equally obliged as if he had taken it, to
do every thing, and forbear every thing, with respect to his tenant, that
the vassal was with respect to the lord; so that the bond was in most
respects strictly mutual; but not in all, for the lord was not obliged to
support his indigent tenant, or to give aids to him; but, on the other
hand, he was obliged to warrant and defend the lands he had given to
his tenant by arms, if attacked in open war, and in courts of justice,
by appearing upon his voucher, that is, the tenant’s calling him in to
defend his right, and if the lord failed, he was bound to give lands of
equal value, or, if he had not such to bestow, to pay to the tenant (in
consideration of the bond for life, he had bound himself to his lord in)
an equivalent in money.

As, in case of the vassal’s failure in his duty, the lands returned to
the lord, so, in case of the lord’s failure on his side, the lands were
vested in the vassal, free from all services to his immediate superior.
But to the king, or lord paramount, he still owed service, in proportion
to his fief; and by this means he might become, instead of a subvassal,
an immediate vassal of the king[107].

Having mentioned the obligations on each side between lord and tenant,
it next follows to see what interest each had in the lands given; on
which head I shall be brief, as these several rights were not so nicely
distinguished as in after ages, when these tenures became hereditary.
The lord was then to suffer his tenant to enjoy the issues and profits
of the lands, he rendering the services due by the reservation of law,
and the additional ones, if any such had been specially reserved. In
case of failure, he had, in those antient times, a right of entry for
the tenant’s forfeiture. For while this military system continued in its
full vigour, the smallest breach the vassal committed in his engagements
was an absolute forfeiture; but in after times, when the lands were
often given upon other considerations than military service; and when
the military was often commuted for pecuniary considerations, a milder
way was found out, that is, by _distress_, by which the lord, instead of
seizing the lands, took possession of all the goods and chattels of his
tenants found upon the lands, (for the lands were still the mark where
he was to take), and kept them as a deposit, till his tenant had made
satisfaction, originally indeed at the lord’s pleasure, for the failure
in his duty[108].

The right the tenant had in the land was, that, paying the services
due, he should receive the produce thereof, and turn it to his own best
advantage; and that he might, if attacked in a court of justice, vouch,
or call in his lord to defend his possession by arms, or otherwise. But
as his tenure was precarious, and only for life, he was prohibited from
doing any thing that should either hurt his lord’s interest, or that of
the king, in whom and his successors the inheritance was vested. Thus,
he could not commit waste, by destroying houses, or cutting down trees,
except what was necessary for immediate use, for repairs, firing, or
tillage. He could not bequeath his tenancy, for he held only during life.
He could not alienate without the consent of his lord, for he had his
lands in consideration of his personal service; and although, in case of
necessity, he was allowed a substitute, it was only such an one as was
acceptable to the lord; whereas by alienation, the real tenant who was
bound by oath to do the services out of the profits, was to lose them,
and a stranger, perhaps an enemy, who was under no tie to the lord, was
to enjoy them. Alienation, therefore, without the consent of the lord,
was unlawful. If he consented indeed, and accepted the alienée, he, upon
his taking the oath of fealty, became the real tenant, and the former
was quit of all positive service, except honour and reverence; but
still bound by his former oath from doing or suffering any thing to the
prejudice of his former lord. Neither could a sub-vassal, in those early
times, create a vassalage to be held of himself. The immediate vassal of
the king, indeed, could, but then it was on these terms; first, that the
person he granted it to was one that was of the ligeance of the king,
either natural or adopted; next, that he was as capable of rendering the
services as the grantor; and lastly, that the services reserved should,
if not better, which was expected, be at least equally beneficial to
the supreme lord as those of the original grant to the intermediate or
mesne lord. To explain this, if the king granted ten thousand acres to
his immediate vassal, for the service of ten knights, the vassal might
give one thousand, indeed, or any lesser number of acres to one person,
for the service of one knight; but if he gave more to one, as he had
attempted to hurt and lessen the benefit his superior had stipulated for,
his grant was void, and in those times, when forfeitures were regularly
exacted, the grant of the king to him was forfeited also[109].

In my next lecture I shall say something of _improper feuds_, as they
began to be introduced about the time I am now upon, and were very
seldom, in those ages, granted for longer terms than for years or lives,
and go on to shew by what means, by what steps and degrees, estates for
life grew up into inheritances.




LECTURE VII.

    _Improper feuds or benefices—Grants to the Church—Grants
    in which the oath of fealty was remitted—Grants to which
    a condition was annexed, that enlarged or diminished the
    estate—Grants which reserved certain other services, beside
    military service—Grants implying some certain service, as
    rent, and not reserving military service—Grants reserving
    no services, but general fealty—Grand serjeanty—Petty
    serjeanty—Grants to women—Grants of things not corporeal—Feudum
    de Cavena—Feudum de Camera._


Having, in the preceeding lecture, laid down the manner of constituting
a proper beneficiary estate for life, which consisted in lands granted
for the defence of the state, upon the consideration of personal military
service, and the rights and obligations annexed thereto; it will be
proper to mention such, (and to point out the several kinds of them)
as are called improper benefices, which are those that, in one or more
particulars, recede from the strict, and, in antient times, the usual
nature of those grants; and this is more especially necessary, as, since
the abolishing the military tenures in Charles the Second’s time, all our
present estates come under one or other of these heads. It was a maxim
in the feudal law, that _conventio modum dat donationi_; and therefore,
whatever terms the donor prescribed, though varying from the general
course, was the rule by which the grant was to be regulated.

In the first place, then, all benefices granted to the church were
improper ones, because given on other terms than that of military
service, and because they ended not with the death of the grantor or
grantee, but continued coeval with the life of the church, that is, for
ever[110].

Secondly, Grants of lands, wherein the oath of fealty was remitted; for
although fealty itself was an incident, essential to, and inseparable
from, every estate of life abroad, and every estate of years also in
England, the ceremony of actually taking the oath might be omitted; and
if the lord had put the tenant in possession, without his having taken
the oath, the tenant might enjoy without it. He was obliged, indeed, to
take it whenever his lord called upon him, on pain of forfeiture; unless,
in the investiture, it had been expressly remitted; in which case, he
might refuse to take it, and justify his refusal by the tenor of his
investiture[111].

Thirdly, All grants to which there was a condition annexed, that either
enlarged or diminished the estate; as if lands were granted to two,
and the survivor of them. This was an improper benefice, as it had
continuance for more than one life; or if they were granted to a man for
life, provided he did, or refrained from doing such an act. This was
improper also, because it might have a more speedy determination.

Fourthly, All grants, in which certain services beside military were
reserved, were also of this nature, as if the tenure was by military
service and a certain rent, or any other certain duty, or by military
service reduced to a certainty, as to attend, suppose forty days and
no more, or by military service with a power in the tenant to excuse
himself, by paying a certain sum. For the proper fief was for military
service only, the occasions and duration of which were uncertain[112].

Fifthly, If military service was not reserved at all, but some other
certain service instead thereof, as rent, the grant was an improper
one, and such are our tenures, since they have been reduced to socage,
which is derived from _soke_ or _soka_, a plough, because their duty
was originally to attend a certain number of days to plow their lord’s
grounds, or else to supply him with a certain quantity of corn in lieu
thereof. This manner of paying in kind, namely, by corn, cattle or other
necessaries, was continued every where many ages; in England, until the
time of Henry the first, when they began to be commuted into money, to
the great advantage of the successors of these socage tenants, whose
estates were before become hereditary. For the computation being made
at the rate and proportion of value between money and the necessaries
of life at that time, as money grew more plentiful every day, its value
continually sunk, and the price of commodities accordingly increased; in
so much that the present successor of a tenant at that time, who had
before paid a fat ox, which was changed into twenty shillings, its then
value, would now pay but the eight part of the original reservation, when
the price of an ox is eight pounds. And this contributed not a little
to the happy equality which now reigns among all ranks, as these baser,
the socage tenures, were continually rising in value, and consequently
in consideration, and coming every day nearer to an equality, in the
estimation of the world, with the nobler, the military benefices[113].

Sixthly, If no services at all were reserved, except general fealty,
which could not be remitted; for it was thought reasonable, not only
to grant lands in consideration of future military service, but also
to reward such as had deserved eminently, and were perhaps maimed or
mutilated, and so unfit for future service, with lands free from such, or
any other duty.

Seventhly, Grand serjeanty is a benefice of an improper nature, even
though it be reckoned a military one, because it is reduced to a
certainty. Grand serjeanty is a certain service done by the body of a man
to the person of the king, and is of two kinds; military, which is to
be done either in or out of the realm; and not military, which is to be
done within the realm. Military, as when lands are given on condition of
carrying the banner of the king, or his lance, or to lead his army, that
is, to be his constable; or to number and array his army, that is, to be
his marshal; but these being _certain_ services, and due to the person of
the king, they were not obliged to attend, but where he went in person;
and this right they insisted on so strongly, as had almost occasioned a
rebellion in the time of Edward the First; who, although in most things
an excellent prince, was of an hot and haughty temper[114].

Having determined to attack France on two sides; in Flanders, where he
intended to command himself, and in Guienne; he ordered the Earl of
Hereford, high constable by tenure, and the Earl of Norfolk, marshal by
tenure, to lead the army in Guienne, as his generals and commanders in
chief. But, however honourable and pleasing in other respects the offer
might be, they feared that such a precedent, quietly complied with,
might be, in after times, a means of introducing new and hard services
at the king’s pleasure, instead of the antient and known ones. They,
therefore, flatly refused, unless he went thither himself; offering, at
the same time, to serve under him in Flanders. The king, boiling with
resentment against France, and provoked at this contradiction to his
pleasure, however justly founded, threatened Norfolk, in a transport of
passion, with hanging; to which the other replied, with equal fierceness,
and total want of respect. The two Earls retired to their estates, put
themselves in a state of defence, and even committed several outrages
against the king’s collectors; and their cause was generally espoused by
the nation, who were against the king’s exacting any new and unheard-of
services. The behaviour of these lords to their sovereign, and to such a
sovereign, in setting him at defiance, and that with terms of disdain,
when they themselves were the aggressors, was utterly unjustifiable;
but, from their cause, notwithstanding this behaviour of theirs, being
universally espoused by the nation, we may clearly see the opinion and
judgment of those times; that their kings were not unlimited, and that
they had no right to exact from their vassals any services but those
that flowed from their tenures. The king, indeed, at first gave their
lands and offices to others; but when he had cooled, and found they had
insisted on no more than was their right, he, in the frankest manner,
repaired his error. He gave in parliament a new confirmation of Magna
Charta. By another statute, he renounced all right of taking talliages,
that is, levying taxes, even on his own demesnes, without consent of
parliament, as contrary to that charter; and in the body of this last
act, in the amplest manner, remitted all disgust and resentment against
the two earls and their associates; and gave them the fullest indemnity
for the offences they had so outrageously committed. Such conduct in any
king, whose subjects were not disposed to esteem him, might have been
as a sign of weakness, and have been attended with dismal consequences;
but in Edward’s realms there was not a man that did not admire his
wisdom, adore him for his valour, his honour, and his sincerity. He could
encroach without incurring hatred, and he could retract without being
thought mean; so that it may be a question, whether, by the noble manner
of his repairing his mistake, he did not tie his subjects to him with
stronger bonds of affection, than if he had never committed it[115].

The grand serjeanties that are not military are of various kinds, being
offices and services done to the person of the king within the realm, in
order to the support of his state and dignity; for which reason, although
they are not, properly speaking, military services, yet they are looked
upon in that light, and are endowed with the same privileges, and subject
to the same regulations, except in a few instances, to be hereafter
mentioned; so that no person under the rank of the lesser nobility, that
is, of knighthood, was capable of performing them; and therefore, when,
by allowing the alienation of lands, these tenures fell into the hands
of persons of inferior quality, they were either knighted, or appointed
a deputy of that rank. Thus, at the coronation of Richard the Second,
as we find in Lord Coke, William Furnivall claimed to find a globe for
the right hand of the king, and to support his hand on the day of his
coronation, in virtue of the manor of Farnham, which he held by that
grand serjeanty; but, though descended of a noble family, he was not
permitted to perform it in person, until he had been dubbed a knight. At
the same coronation, John Wiltshire, citizen of London, claimed to hold a
towel while the king washed before dinner, which claim being allowed, as
he was of too low rank to perform the service in person, he made Edmund
Earl of Cambridge his deputy. Women likewise and minors were obliged to
serve by deputy; as did, at that time, Anne Countess-dowager of Pembroke,
by Sir John Blount, and her son John Earl of Pembroke, a minor, by Edmund
Earl of March[116].

These grand serjeanties, which were most of them lands granted for the
doing certain duties at the solemnity of the coronation, contributing
to the splendour and dignity of the crown, have been still retained,
though all other military tenures have been changed into free and
common socage. However, all these grand serjeanties were not for the
bare purpose of attending at coronations. The lord high stewardship or
seneschalship of England, of which the duty is to preside at the trials
of peers, was annexed to the barony of Hinckly, which, passing into the
family of Leicester, and then into that of Lancaster, in the person of
Henry the Fourth was united to the crown; but ever since that time, as
the powers and privileges the law threw into his hands were looked upon
as too extensive, and dangerous, if continued, this officer hath only
been occasionally created, as for a coronation, or the trial of a peer,
which ended, he breaks his staff, and the office is vacant[117]. The same
is the case, and for the same reason, of the office of high-constable,
ever since the attainder, in Henry the Eighth’s time, of Edward Duke
of Buckingham, who enjoyed it as Earl of Hereford. Thus did the crown
get rid of two considerable checks, which concurring with other more
extensive and influencing causes, helped to raise the power of the
house of Tudor above what the princes of the line of Plantagenet had
enjoyed[118]. The office of earl marshal, indeed still continues in the
noble family of Norfolk. For, notwithstanding the attainders of that
family, when they were restored, it also was restored to them. The reason
is, because this office is of little power; indeed, in the vacancy of the
constable to whom he is properly an assistant, scarce of any at all. It
being, therefore, an honourable dignity, and attended with no danger, it
is no wonder it hath remained[119]. In this kingdom one grand serjeanty
remained till the year 1715, in the family of Ormond, that of butlerage;
but it differed from those before-mentioned in this, that it was not a
service arising from a grant of lands, but of the prisage of wines, an
antient profit of the crown, due by prerogative, namely, a right to take
two tons of wine, one before the mast, and the other behind, out of every
ship containing twenty tons or more, until Charles the Second purchased
it from the Duke of Ormond by a perpetual pension of four thousand pounds
a year[120].

Eighthly, Petty serjeanty was another species of improper benefices, and,
in our law, was comprised under the general head of _socage_, because the
service was certain. It is, as Littleton[121] defines it, where a man
holds his land of our sovereign lord the king, to yield to him yearly a
bow or a sword, or a dagger, or a knife, or a lance, or a pair of gloves
of mail, or a pair of gilt spurs, or an arrow, or divers arrows; or to
yield such other small things belonging to war; so this, as well as grand
serjeanty, was a tenure of the king’s person, and could not be held of
a subject. Such is the grant the Lord Baltimore hath in his province of
Maryland; for he yields every Christmas five Indian arrows, besides a
fifth of all gold and silver found within this province.

Ninthly, All grants to women were of the nature of improper ones, because
they must always serve by deputy; and personal service is essential to
the proper military tenures[122]. But these were not introduced so early.

The tenth kind, and the last that I shall mention, of improper benefices,
are those that are of _things not corporeal_, and of which, consequently,
there cannot be a possession manually delivered over, that is, they do
not admit of livery and seizin, and therefore can be only conveyed by
the improper investiture, that is, by words or writing, accompanied by
a symbol. Such are rights in, or profits issuing out of land, where
another hath the possession of it. As the feudal law distinguishes
between corporeal things, whose possession can be actually transferred,
and incorporeal, which cannot; so doth our law make what is the same
distinction between things that lie in livery, and things that lie in
grant. In the first, it regularly requires an actual livery and seizin,
and here a deed is not absolutely necessary; but the second pass by the
delivery of the deed. Here therefore a deed is absolutely necessary; for
although the feudal law admits the use of other symbols in this case,
ours, for the greater certainty, precisely requires this peculiar one,
that there may be full evidence of what was conveyed. Of this last tenth
kind as there are many and various species, I shall run over some of them
in a cursory manner, to explain and shew their general nature.

The first I shall take notice of is, that which, I presume, was the most
antient, as it seems to have come in the place of those repasts the
king gave to his comites, or companions, and is what is called _feudum
de cavena_. _Cavena_ signified the repository, or repositories of the
necessaries of life, while in those ancient times the services due from
the demesnes, or the socage lands, to the king or lords, were paid in
kind. Things therefore necessary, or useful for the support of life,
distributed in specie, out of the king’s or lord’s cellar or pantry, or
both, were what the _feudum cavena_ consisted in; and that this came in
place of the antient constant entertainments, and feasts, of the comites,
or companions, appears from this, that it was a rule, even after other
grants were allowed to be hereditary, that these determined with the
life of the grantor, or grantee, which ever first happened to expire.
These grants likewise were of two kinds; some granted in consideration
of future services, upon the failure of which a forfeiture was incurred,
others, in reward for past services, where nothing was expected for the
future but general fealty. This difference runs through many other of
these gifts that lie in grant. For the feudal law distinguishes them
into _officiosa_, that is, to which a positive duty is annexed, and
_inofficiosa_, where no subsequent service is required, but general
fidelity, which is incident to every tenure[123].

The second I shall mention is _feudum de camera_, which, I apprehend, was
originally a substitution for what I have just mentioned, the _feudum de
cavena_; for it was instead of an allowance of necessaries out of the
cellar or pantry of the king, an annual allocation of a sum of money for
will, life, or years, according as it was granted out of the _camera_, or
chamber where the king or lord kept his money; and this was, as the other
I before mentioned into whose room it came, either a reward for past
services, in which case no future duty was required, or on consideration
of future ones. The pensions granted by the king in our kingdom (Ireland)
out of his revenue, are of the nature of the former; and the salaries
to judges and other officers are of the nature of the latter. What was
common to both of these, the _feudum de camera & de cavena_, was, that,
by the feudal law, they were not due at the stated time, unless there
were provisions in the _cavena_, or money in the _camera_, and that free
from debts; for the lord’s safety and dignity was to be first considered;
but they were to wait for their arrear, till provisions or money came in.

Another thing is to be observed, that, although, at the introduction of
these tenures, all others were for the life of the grantor and grantee at
most, yet when the others became perpetual, these continued long after
to be only for the joint lives of the grantor and grantee, namely, as
long as kings and great lords were considered as tenants for life, and
incapable of alienating their demesnes, or laying any permanent charge
upon them. But when, by the frequency of the example of alienations,
and by the occasional indigence of the kings and other lords, and the
desire designing persons had to take advantage of it, alienations of the
demesnes were once introduced, to the prejudice of the successor, these
grants, as was very natural, as they were less hurtful than an absolute
alienation, were continued for the life of the grantee, though the
grantor had died before[124].




LECTURE VIII.

    _Feudum Soldatæ—Feudum habitationis—Feudum Guardiæ—Feudum
    Gastaldiæ Feudum mercedis—Incorporeal benefices in
    England—Advowsons—Presentative advowsons—Collative
    advowsons—Donatives._


In the preceding lecture I began to treat of the several kinds of
improper benefices, which are transferable only by the improper
investiture, or, as the English law says, _lie in grant_; intending
only to illustrate their general nature, without descending minutely
into particulars; and of these I have already mentioned the _feudum de
camera_, and that _de cavena_. I call these fiefs, even at the time I am
now treating of, in conformity with the practice of the feudal writers:
not with strict propriety, indeed; for _feudum_, properly speaking,
signifies a tenure of inheritance, and such were not yet introduced. But
before I quit them, it will be proper to take notice of some subdivisions
of them, to be met with in the feudal writers.

I have already observed they were either gratuitous or officious, that
is, without future service, or with it. Of the first kind there were two
species, that called _feudum soldatæ_, from the word _solidus_, which
signified a piece of money, and was a gratuitous pension, granted either
out of the charity or bounty of the lord, or in reward of past services;
the other called _feudum habitationis_; which is liberty of dwelling in
an house belonging to the lord, in whom the property still doth, and
the possession is still supposed to remain[125]. Of the officious ones
Corvinus mentions three kinds, _feudum guardiæ_, _feudum gastaldiæ_, and
_feudum mercedis_.

The _feudum guardiæ_ hath annexed to it the defence of a castle, for the
security of the realm; and this differs from the castle guard I have
before mentioned, in as much as that, where lands were given for the
defence of the castle, it was a corporeal benefice, and transferred by
livery and seizin; namely, by admitting the constable into the castle,
and delivering him the key thereof, and was an improper one only in
respect of its duration, as, in the early times, it continued only a
year; but this I am now speaking of was a pension, paid out of the king’s
exchequer for the same purpose; and was of the same nature with the
modern salaries of governors of garrisons[126].

The _feudum gastaldiæ_ was a pension granted to a person for transacting
the lord’s business, as for being his treasurer, steward, agent, or
receiver. The _feudum mercedis_ was in consideration of being an advocate
or defender of the lord. Such are grants to lawyers _pro consilio
impendendo_; and the salaries of the king’s lawyers, and the solicitors
for the crown[127].

I shall next run over briefly the several kinds of incorporeal benefices
which the law of England takes notice of, and explain their general
nature. And the first I shall take notice of is an _advowson_, which is
a right a man hath of nominating a proper person to fulfil the duties,
and to receive the profits of an ecclesiastical benefice. These rights
arose thus. In the infancy of the christian church, when the clergy were
supported by the voluntary contributions of the people, the bishop was
chosen by the clergy and people at large; and this method was so firmly
established, that when the emperors became christians, although they
made great donations of lands to the church, yet they left the manner
of election as they found it; and so it continued in Rome until the
year 1000 at least. But these elections, made by the giddy multitude,
were the occasions of infinite disorders. The value of these offices
being encreased, and the manners of the ecclesiastics corrupted by the
accession of riches; parties and factions were eternally forming, and
supported by all methods; and when a vacancy happened, the contest was
frequently not decided without bloodshed. It is no wonder that all the
sober part of the clergy, who were scandalized at these irreligious
practices, and the emperors, who were concerned in the peace of their
dominions, concurred in remedying these evils; which was at length
effected by excluding the laity, gradually, and by insensible degrees,
and confining the election to the ecclesiastics. Many of the emperors,
indeed, struggled hard to get the nomination to themselves, but the
clergy proving too powerful for them, they obtained, at most, but a power
of recommendation[128].

In the northern kingdoms the same causes produced the same effects, as to
the exclusion of the laity, but with more advantageous circumstances to
the rights of these princes. For as the lands they gave to the bishops in
right of their churches were held of them, so they gave the investiture;
and there was a kind of concurring right between the clergy, who elected,
and the king. He insisted on his right of giving the investiture, but
generally received their nominee, and granted it to him.

But after the time of Charles Martel, when the clergy were stripped of
most of their lands, things took a different turn. For when new grants
were made to the church by the king, he insisted, as feudal lord, on the
absolute nomination, and the giving investiture, by delivering the staff
or crosier, the emblem of his pastoral care, and the ring, the symbol of
his spiritual marriage with the church; but these rights were opposed by
the clergy, who were strongly supported by the popes then setting up for
being the feudal lords of all churchmen, and who hoped to derive, as they
did, great advantage from these dissentions. From the year 1000 to 1200,
great confusion subsisted throughout all Europe, occasioned by these
contests, until the popes in general prevailed; but for four hundred
years past, and particularly since the reformation, their power hath been
on the decline; and from this last period the patronage or advowson of
bishoprics hath been confessedly in our king, as hath been the case in
several other kingdoms; and though in England a form of election is still
retained, it is no more than a mere form[129].

The advowson, or patronage of inferior benefices, came in another way.
In order to understand this, let us consider how dioceses came to be
subdivided into parishes. Antiently, I mean about the year 420, the
bishop had the sole cure of souls throughout his whole district, and
received all the profits of it; which he and the clergy distributed
into four parts, not exactly equal ones; but unequal, according to
the exigences of the several interests to be considered; one to the
bishop, to maintain hospitality, and support the clergy residing with
him, and the Christians of other places, who were often forced to fly
from persecution, or travelled on their necessary concerns; one for the
building and repair of churches; one for the poor, and one to support
the inferior clergy, whom the bishop used to send to particular places,
as his deputies, and to remove or recal at his pleasure. The clergy who
lived in the city where the bishop resided, were supported by him in a
collegiate way at first; until at length their particular shares were
ascertained, and carved out of the general revenue of the church; and
this was the origin of _chapters_[130].

To return to the country clergy. The manner in which they came to
have settled establishments was thus: It was usual, as soon indeed as
tithes were established as a law, that is, before or about the time of
Charlemagne, for the bishop to allocate to his vicar or curate in any
district, the whole, or a part of the tithes or other profits arising
there; but when England, France, and other countries were ravaged by the
Danes and Normans, the fury of these barbarous heathens fell particularly
on the ecclesiastics. Their churches they burned, and themselves they
slaughtered without mercy; insomuch that, when their devastations ceased,
there ensued not only a great scarcity of clergymen, but such a want of
means of proper support for them (the old estates of the church having
been turned into military fiefs) that the feudal lords were willing, for
the sake of having divine service performed in their districts, for the
benefit of themselves and their vassals, to alienate part of their lands
to the church, which was then in indigence, for the purpose of building
houses for the parson, and providing a competent glebe for him, and also
for building new churches where they were wanted. Altho’ alienation was
at this time entirely disallowed by the feudal customs, yet the necessity
of those times prevailed against it in those instances, especially as
these superstitious people attacked, or ready to be attacked by an
heathen enemy, thought the lands so given to be really given for military
service, as they were given for the service of God, the Lord of Hosts,
who was to speed their arms. However, the circumstances and opinions
of that age would not allow any grant, without an acknowledgment of
the superiority of the grantor; nor allow any lord to give any grant
materially detrimental to his military fief. Hence, as an acknowledgment
that the lands so granted to the church proceeded from the bounty of the
Lord, he was allowed to nominate a clergyman to the bishop; who, if he
was qualified, was obliged to admit him. But as the patron might present
an improper person, and such an one as the bishop must be obliged in
conscience to reject; and might do this repeatedly, for any considerable
length of time, during which the duties of religion would be neglected,
it was, in after times, settled, in all countries, that the right of the
patron’s presentation should last only a limited time. In our countries
it is six months; after which time lapsed from the vacancy, the bishop’s
original right of nomination revives[131].

But the customs of those ages not admitting of the alienation of any part
of a military tenure, but what was absolutely necessary, it followed that
these glebes were far from being sufficient for the maintenance of a
parson. These grants, therefore, were not made without the consent of the
bishop, to allocate, in aid of the glebe, the tithes of that precinct,
to the use of the parson. And now the parson began to have a permanent
interest for life in his parish, and a permanent cure of souls therein;
but not exclusive of the cure of souls in the bishop, who was concomitant
with him in that point, though not in the profits. For when the bishop,
for the good of the church, appropriated a part of the revenues of the
church to a particular person and his successors, which, for the public
good, he was allowed to do, he could not, however, divest himself, or
his successor, of that general cure of souls through his whole district,
which was the essence of his office. As the parson, therefore, though
named by a layman, was his deputy, he was in truth (to speak by way of
accommodation) his feudal tenant. From him he received institution,
which is the improper investiture; to him he gave the oath of canonical
obedience, which is equivalent to the oath of fealty; and by him, or
persons appointed by him, he was inducted into his church, that is, had
livery and seizin given him[132].

This was the origin and nature of presentative advowsons, in which,
though a matter ecclesiastical, the lay patron was allowed to have
a temporal and a valuable interest: inasmuch as it might serve for
a provision of one of his children, or any other relation that was
qualified for it; and consequently be an ease to him; and as, at the
time that these glebes were granted, most fiefs were hereditary,
at least none were suffered to be granted but by those who had such
(because the lord superior might else be disinherited) this right of
_advowson presentative_ descended to the heir. The church in its distress
exceedingly encouraged and fostered these rights for a time; but when her
circumstances changed, and, in ages when profound ignorance prevailed
both among the clergy and laity, many were the attempts to deprive the
laity of their rights, and many the exclamations against the impropriety
and impiety of such persons pretending to name any one to an holy office.
But I do not find they ever thought of restoring to the laity the glebes,
in consideration of which, for the necessities of the church, those
rights were first allowed.

Thus much for _presentative advowsons_, which, I hope, from what hath
been already observed, will be sufficiently understood for the present.
I now must proceed to _collative advowsons_, namely, those given by the
bishop, which were of two kinds; either absolutely in his own right,
or by lapse, when the patron neglected to present; which was in truth
but a devolution of the antient right he had parted with, to him; and
therefore, as there is no substantial difference, they may well be
treated of together. As the bishop in the case of lapse, collates,
that is, institutes in his former right in default of the person who
had the right of presentation, I observed before, that the bishop had
used to grant to the country clergy a part or the whole of the tithes
of the precincts they served in; but when once, by the allowance of
presentative advowsons, parsons had got freeholds in them, the example
became contagious, and much to the benefit of the church. Those parts
of the diocese which still remained in the bishop’s hands were divided
into parishes; and the tithes of them, or at least a considerable part
of them, were assigned to the minister for his life. I need observe no
farther of these, than to say, that they differed no otherways in their
nature from the last mentioned, than that, as a patron had nothing here
to do, there was no presentation, and that _collation_ is, in the case
where the bishop hath the sole right, what is called _institution_ in the
case of a clerk presented.

The third and last kind of advowsons are those called _donatives_, in
the giving seizin of which the bishop hath nothing to do, such livings
being privileged, and exempt from the jurisdiction of the bishop, and
visitable by the patron only. How these exemptions arose, when, at
first, every place was a part of a diocese, and of the bishop’s cure of
souls, it will be worth while to inquire. The bishops of Rome, aided by
their great riches, and the fall of the western empire, did, by pursuing
a settled plan for many hundred years, with the greatest art and unshaken
perseverance (temporizing indeed when the season was unfit, but never
giving up expressly any point that had been claimed) at length, instead
of being the first bishops in rank, attained to a jurisdiction over all
the west, and claimed a general cure of souls, which made the bishops,
indeed, but pastors under them. However, conscious of their usurpations,
in order to establish them, it was necessary to depress the episcopal
order.

They began first with dismembering bishoprics, in order to found new
ones, on pretence of the churches being better served; and this they
did principally in Italy, where their influence was most extensive; and
that with a view, by having a greater number of votes, to over-rule
the determination of the general councils. They did the same, but more
sparingly, for the reason aforesaid, in other countries, with the
sovereigns; who, in these cases, were really actuated by the motive of
advancing the public good, and promoting religion. The next step was more
decisive. Their authority being now established, they took occasion,
on several pretences, to exempt from the jurisdiction of the bishops,
several places within their dioceses, which they kept immediately under
themselves, to which they appointed clerks by this way of donation,
and whom they visited by their legates, as their immediate ordinary.
The clergy, thus provided for, served as faithful servants and spies
to the pope, in all parts of the christian world, and were, next to
the monasteries, the firmest support of his power. The same practice
they pursued with respect to bishoprics, by exempting several of them
in divers places from the archbishop of the province. And this was the
origin of donatives. But, in order to shew the plenitude of their power,
the next step they took was of a higher strain. They not only founded
donatives for themselves, but for others, even of the laity; shewing by
this, that all ecclesiastical jurisdiction and discipline was entirely
subject to their will, and that, at pleasure, they could transfer it to
hands before judged incapable of it.

These two kind of donatives still subsist in England, the latter in the
hands of subjects, the former of the king as supreme ordinary, since the
pope’s usurped power was transferred to Henry the Eighth. I am sensible
many common lawyers insist that the king of England was always supreme
ordinary, and that nothing new was gained at that time, but only his
old authority, which the pope had usurped, restored to him. But what
shall we say to the first fruits and tenths; which are certainly papal
impositions, and comparatively of a modern date. The same I apprehend to
be the case of the ordinary jurisdiction. As to the supreme patronage, I
allow it was, originally, the king’s. My reason is, that I do not find in
the antient church any trace of a layman solely exercising ecclesiastical
jurisdiction, or enacting laws for the church[133].

In the apostolic times all things were transacted by the _faithful_ at
large; in the next age, they fell into the hands of the clergy, all
excepting the election of bishops, and approbation of clergymen. After
the emperors became christians, they published indeed ecclesiastical
laws, but that was only giving the sanction of the imperial power to
the canons the church had made; whose censures, when there were such
multitudes of new and counterfeit converts, were likely to have little
weight. In the northern nations the case was the same. Canons were made
by the clergy, and these were often enforced and turned into obligatory
laws by their general assemblies, who had the legislative authority;
and if there are any instances in those times of laymen exercising
ecclesiastical discipline as ordinaries, I own they have escaped me. I
speak merely of ecclesiastical discipline: for as to things of a temporal
concern, such as wills, administrations, marriages, tithes, &c. the
authority undoubtedly was from the king. But not as to matters entirely
spiritual, such as concern the _salutem animæ_[134].

I think therefore the king’s title to be supreme ordinary, stands better
settled on the parliamentary declaration, and on the reason of the thing,
that all coercive power should be derived from him, whom God hath made
the superintendant; than on the assertions of lawyers, that it always was
so. Matters of fact are to be determined by evidence, not by considering
what ought to have been; and we need not be surprized to find, that an
ignorant and superstitious people allowed practices, and a division of
power in themselves unreasonable.

In these donatives there was neither institution nor induction. The
patron gave his clerk a title by deed, on which he entered; for the
plenitude of the papal power supplied all forms. The patron was the
visitor, and had the power of deprivations; but what clearly shews, in my
apprehension, that these donatives were incroachments on the episcopal
authority, is, that, if once a common patron (for the king was saved
by his prerogative) had presented his clerk, and he got institution
and induction, the donative was gone for ever. The living became
presentative, and the bishop’s jurisdiction revived.

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




LECTURE IX.

    _Tithes—The voluntary contributions of the faithful, the
    original revenue of the church—The establishment of regular
    payments—The appropriations of the church—The history and
    general rules of tithes in England._


The next kind of incorporeal benefices taken notice of by the law of
England, that I shall mention is _tithes_; the New Testament, as well
as common reason, says, that _they who serve by the altar, should live
by the altar_; but is silent as to the manner in which this support
should arise. In the very first times, when their numbers were but few,
and those confined to Jerusalem and its neighbourhood; the christians
sold all they had, and lived out of the common stock. But this lasted
a very short time. When they increased to multitudes, that method was
found impracticable, so that each retained his possessions, and gave a
voluntary contribution out of it at his discretion. This was the fund
of the church; and in those times of fervent zeal in the laity, and
simplicity of manners in the clergy, it was found abundantly sufficient,
not only to support the ministers, and their own power, but also to build
churches, and to do many acts of charity to some of the pagans.

The revenues of the church went on continually encreasing to the time
of Constantine; and though by the Roman laws, no _colleges_, as they
called them, that is, communities or fraternities, unless they had the
sanction of the imperial authority, could accept legacies or donations,
yet, such was the devotion of the times, that many such private grants
were made; and the principal churches obtained great acquisitions,
not only in moveable goods, but in landed estates; insomuch that some
of the persecuting emperors were thought to be as much instigated to
their cruelties by avarice, as by their blind attachment to their pagan
superstition[135].

In the fourth century, the restraint being taken away, these largesses
from the rich and superstitious, to the church became much greater; but
the general voluntary contributions from all who could spare, diminished,
the apparent necessity for them being lessened; and the zeal of the
people, which persecution had kept warm and fervent, slackened from ease
and security. The bishops, who were the distributers, prided in vying
with each other in the magnificence of their churches; and, being now
raised to an eminent rank in the state, were not satisfied to live in
such a manner as contented the simplicity of the antient fathers of the
church; so that by the year 400, the inferior clergy and the poor were,
in many places, but in very scanty circumstances. This induced many of
the pious to fix upon a certain rate out of their own annual gains to
supply these necessities, and as the tenth was what had been assigned to
the Levites in the mosaical law, that generally became the proportion.
But as the payments of those tithes were purely voluntary, so did the
givers appropriate them in such manner as they pleased, and as they
thought they were most wanted[136].

In Egypt, where, it seems, this practice began, they were commonly
given to the monks, who had devoted themselves to a religious poverty;
in Illyricum generally to the poor; in other places to the inferior
clergy of such a district, or, if the church itself was indigent, to
the bishop, for the use of his church. The famous preachers about this
time, particularly St. Ambrose and St. Augustine, inforced this practice
with all their eloquence, and insisted on the levitical law of tithes
as binding on christians. This had great, but not general effects. Some
gave the tithe, others, of more zeal, gave more, and others less; and
though these contributions began now to be aided by the spiritual arms of
excommunication, yet were these only used to oblige a man, in testimony
of his being a christian, to make some offering, not to pay precisely the
tenth, or any other portion[137].

These payments of the tenth hitherto we see were voluntary; but there
soon came in another practice, which, in particular places, made them
compulsory. It was usual when a patron founded a church, in order for its
support, to charge his lands with the payment of tithes to the minister
who officiated therein. This created a permanent right in the church,
not by the force of any general law, or canon (for all such attributed
to these ages are forgeries of a later date) but from the especial gift
of the grantor, and the power he had to charge his land. The earliest
authority that proves a general right of tithes, through any country
of Europe, is to be met with in the council of Mascon, held under king
Guntram, who reigned in the south-east parts of France, in the year 586.
There the right of tithes, through all his dominions, is acknowledged as
an antient duty due to the church; and they are enjoined to be regularly
paid. But it is observable, in the very words of this law, that the
tithes so paid were not solely appropriated to the clergy, but much
of them applied to other charitable uses, _unde statuimus, ut decimas
ecclesiasticas omnis populus inferat, quibus sacerdotes, aut in pauperum
usum, aut in captivorum redemptionem erogatis, suis orationibus pacem
populo & salutem impetrant_. Thus the kingdom of Burgundy was the first
that established the universal payment of tithes by a positive law. This
payment, in the other parts of France, was long after at pleasure, or by
particular foundation; but was daily gaining ground, especially after
the impoverishment of the church by Charles Martel rendered them more
necessary; and his grandson Charlemagne was the first that established
them by a positive law, made in a general assembly of the states, through
all France; and that as due by a divine right, in the year 778. And as he
and his successors were masters also of Germany and Italy, the same law
and opinion soon passed into those countries[138].

But as positive as his law was, in the direction of payment of them to
the bishop or priest, it was for a long time not universally obeyed,
and where it was obeyed, often shamefully eluded, as appears by the
laws of his successors, and many ecclesiastical canons framed for the
redressing those mischiefs. For as a portion of the tithes was originally
distributed to the poor, under this pretence, it was customary for the
superstitious laity, when they granted the tithes, instead of aligning
them for the maintenance of the ministering, _i. e._ the secular clergy,
to appropriate them to monasteries, which were societies of voluntary
poor. These appropriations, or consecrations, as they were called, became
very numerous, both from the unbounded veneration paid to the monks,
and from the encouragement such grants received from the see of Rome,
which looked upon the monastic orders as its fastest friends, and was
bent upon raising them on the ruin of the secular clergy. But as the
monks of those times were generally laymen, and incapable of serving the
cure, it grew into a practice for them, if any of their own body was fit
for the purpose, to get him ordained; or if they had none, to employ a
secular priest, to perform the divine offices, under the name of their
vicar or deputy, who was to account with them for the profits, and was to
receive for his subsistence a stipulated proportion; and thus came in the
division of parochial tithes, into _rectorial_ and _vicarial_; the former
remaining in the _employer_, the latter in the _employed_, who did the
duty[139].

The same pretence of appropriating the tithes to the poor gave a handle
likewise to many, when they found it necessary to pay tithes, to grant
them to laymen in fee, under the like conditions and services as other
fiefs; and many likewise were the unworthy churchmen, who turned the
incomes of their church into provisions for their families, by granting
them in fief. Thus, in process of time, were the ministering clergy, and
the real poor, for whose support the tithes were originally granted, in
a great measure stripped of them; and they were converted either into
lay inheritances, for secular services, or applied to the support of
monasteries; and both these abuses began under the specious pretence of
charity. The latter, _viz._ the grants to monks, was always favoured by
the heads of the church; and the former, in spite of all their censures,
prevailed, until, at length, it was found necessary to apply some remedy
to both. The evils were too inveterate to be finally removed; but this
temper was found out in the council of Lateran, held in 1215, when it
was enacted, That all tithes which from time immemorial had been given
in fief might so continue, but no more be granted in that manner for the
future; and the appropriations to monasteries were confined to three
orders of monks who were looked upon as the most learned, and capable of
furnishing men fit for the duty[140].

I shall proceed now to say something of the fate of tithes in England.
That tithes had been paid in several parts of England during the
heptarchy, and established by law in some of its kingdoms, is undeniable;
but the first who ordained them by law, through all England, was
Ethelwolf, in his parliament of the year 855; who had been himself, in
his elder brother’s life, designed for the church; in this imitating
Charlemagne, at whose court his father had long resided. This may well
be allowed, although those authors that give us the copy of this law
differ in the date, both as to the time and place where it was made. But
be that as it may, his son Alfred certainly made a law for this purpose,
to bind not only his own English, but also the new converted Danes, to
whom he assigned seats in his kingdom, and whom he had submitted to the
government of Guthrun. Such laws were renewed by almost every one of his
successors down to the Norman conquest; an evident proof, that however
zealous those princes were for the support of the church, their pious
intentions were but ill seconded by their people. The severity of the
law of Edgar was remarkable, and of itself sufficient cause of their
backwardness; for it made the non-payment of the tenth a forfeiture
of eight-tenths. The _præpositus_ of the king and bishop, that is, I
presume, the sheriff and arch-deacon, were to seize the fruits out of
which the tithes had been with-held, and when they were divided into ten
parts, one was given to the church that had been defrauded, another to
the proprietor, and the remaining eight were divided between the king and
the bishop[141].

During these times appropriations of tithes, to other churches than the
parish one, and also to monasteries, were frequent, here as well as on
the continent; but, for some time after the conquest, the largesses to
the monks, with respect both to lands and tithes, encreased considerably,
and were continually encouraged by the popes, the kings, the bishops,
and nobility; by the popes for the reason already given; by the bishops
and nobility, who were all Normans or foreigners, out of partiality to
their countrymen (for such the monks generally were) and out of contempt
and hatred to the secular clergy, who were universally English; by the
kings, not only for this last mentioned cause, but for another peculiar
to themselves. The government of the Saxon kings was remarkably moderate,
and their laws and constitutions extremely favourable to the liberties
of the people. The first race of Norman kings pretended, indeed, a
right to the throne, and every one of them swore to observe the Saxon
laws, with such emendations as had been consented to in parliament by
William the First. But the conduct of every one of them shewed how little
regard they had to that obligation, and how bent they were on setting
themselves free from all restraint, and to destroy all traces of the old
Saxon laws. For this purpose it was absolutely necessary to depress the
secular clergy; who, in those times of ignorance, were the only lawyers;
insomuch, that, in William the Second’s reign, it was said, _nullus
clericus, nisi causidicus_; and, to render them unfit guardians of those
privileges, the kings were resolved to trample upon them. For this end, a
new language and new forms of proceeding were introduced into the courts,
the secular and ecclesiastical jurisdictions, which had been united, were
separated; and the clergy were banished from the temporal courts, and the
greatest part of the business which formerly had been transacted in the
country courts was transferred to the _curia regis_, under the immediate
inspection of his judges[142].

Thus were the secular clergy daily reduced in circumstances and
importance, while the monasteries flourished on their downfall. However,
about the time of Henry the Third (for it is hard precisely to fix
when it became an allowed maxim of the English law) all tithes arising
in any parish were, of common right, payable to the priest of that
parish, unless they had been previously appropriated to some other
priest, or monastery, either by a positive appropriation appearing, or
by prescription where that was lost, and that no layman could prescribe
against the payment of them. I say no layman, for with respect to
ecclesiastics, the case was otherwise. It had, indeed, been a controversy
in France several centuries before, whether the lands of a church or
monastery should pay tithes to the parish minister where they lay; but
it was determined by the better opinion that they should. However the
bishops of Rome, in complaisance to their friends the Monks, granted to
many monasteries an exemption from tithes for their lands. And these are
the lands, which we see at this day in the hands of laymen discharged of
tithes, by virtue of a statute in the reign of Henry the eighth; before I
proceed to which, it will be proper to take notice of what a _modus_ is,
as they were introduced in those early times.

A modus, then, is a composition for tithes in kind, within a certain
district; whereby the layman is discharged from rendering his tithes,
on his paying to the parson, in lieu thereof, what the local custom of
that place directs. These compositions were originally for the mutual
benefit of the clergy and laity; that one might have a settled certainty
what to receive, and the other what to pay; and was, while the equivalent
continued to bear any reasonable proportion to the value, an excellent
means to prevent yearly disputes between the minister and his flock;
but as most of them are fixed at certain rates of money, the change of
its value hath, in all these cases, greatly impoverished the parochial
clergy, especially as many of them grew up into a prescription, by
the negligence of the clergy, without an original composition. These
_moduses_ have, likewise, not a little hurt the spiritual jurisdiction;
for as their courts paid little or no regard to them, as being against
the canon law, if the original composition did not appear to have the
bishop’s authority, by being found in his registry, the temporal courts,
wherever one is pleaded, send a prohibition to the ecclesiastical one,
and reserve the tryal to themselves, by a jury of twelve men, as the
legal judges of the custom[143].

When Henry the eighth threw off the pope’s supremacy, great was his
danger both from abroad, and at home, particularly from the monasteries.
A resolution therefore was taken for suppressing them, and applying
their revenues to more useful purposes. The intention of Cranmer, at
least, was to restore the tithes to the parochial clergy, and out
of some part of the lands to found new bishopricks, and for other
religious and charitable purposes; the remainder to be united to the
royal demesnes to enable him to defend his realm without burthening his
subjects with subsidies. But little of this kind was done. Five or six
bishopricks, with very poor revenues, were erected, and the rest, both
of lands and tithes, were distributed to the laity in whose hands they
still remain, partly out of present political views, but principally
from the extravagance of that king and the indigence of his successors,
concurring with the avarice of their courtiers. As to the lands the
abbots held discharged of tithes, the parish ministers right to them
would, by the common law of England, have revived as soon as they got
into lay-hands; as it would have done before, if the abbot had aliened
with the consent of the convent, and this was the case of the lands of
the lesser monasteries. But when the greater ones were dissolved by the
act of 31st of Henry the eighth, it was expressly provided, that the king
and his grantees should enjoy those lands, discharged from tithes, in as
ample a manner, as the abbots held them before that time. Thus became
a great part of the tithes of the kingdom, which by the common law of
England were the legal maintenance of the parochial clergy, lay fees, and
inheritances, as they continue at this day[144].

Tithes are of three kinds, _prædial_, _personal_ or _mixed_. Prædial, are
the fruits arising immediately from the ground, as all sorts of grain,
hay, underwoods, fruits of trees, hops, saffron, hemp, flax, and such
like. Mixed, which arise from cattle nourished by the ground as their
young, colts, calves, lambs, pigs, or their productions, as milk, cheese,
butter, &c. Thirdly, personal, which arise from the labour and industry
of men using any merchandize, or manual occupation, and is the tenth part
of their clear gain.

The two first had their foundation in the law of Moses, the last was
introduced and strongly inforced by the canon law; nay so shameless were
some of the canonists, as to insist that harlots were obliged to pay the
tenth of their infamous gains; but this latter kind has had little effect
in England, except by the local customs of some particular places[145].

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

First then, as to prædial tithes: Regularly, they are due only out of
things that encrease annually, _simul & semel_, and therefore except
by special custom, mines, minerals, chalks, stones, slates, turfs,
being part of the soil, and not increasing annually, are not tithable;
but this rule admits of some exceptions, of which I shall just mention
two. Saffron, which encreases from three years to three years, is yet
tithable; and so is underwood, that is, all trees cut under twenty years
growth. The tithes of trees occasioned many contests between the clergy
and laity in England, the one exacting it by their canons, and the
commons in parliament constantly remonstrating against it. At length it
was settled by parliament, that none should be exempted but timber above
twenty years growth, as being fit for building. But this statute is so
constructed, that if the trees be not of the nature of timber, they are
tithable, though above that age, as bush, birch, and the like; but these,
if for the scarcity of other timber, they are used in building, as beech
is in Buckinghamshire, they are there exempted.

As to mixed tithes, the rule is, that things _feræ naturæ_ are not
tithable. Therefore fish, pheasants, partridges, rabbits, deer, bees, and
such like are not; but several of these, if reclaimed, have been adjudged
to be so, as bees in a hive, and the same reason holds as to pigeons in
a dove house; though the opinion of common lawyers is, that they are not
tithable, if spent in the house, and not used for sale.

But what shall we say for barren cattle, from whom no yearly profit
arises? Shall the parson receive no benefit whatever from them, and shall
it lie in the power of the occupier, by employing all his land in feeding
nothing but barren cattle, to leave his minister without support? Certain
it is, whatever the modern practice and opinion may be, that by the best
authorities of the antient lawyers, _agistment_ was due to the clergy
which was the tenth part of the value of the lands, or the twentieth,
which by custom, in most places, was generally paid, if the proprietor
depastured the whole year, or less, according to the time and quantity of
the cattle, saddle horses, or cattle for the plough, only excepted[146].

Thus much may suffice for the history and general rules of tithes, the
second species of incorporeal rights, to which I may add, as much of the
same nature, and founded on the same reason, what is called _ministers
money_ out of houses, in cities and towns, where there are no tithes,
which the act of parliament, of the 17th and 18th of Charles the second,
hath restrained to the twentieth part of the value of houses, as valued
by a commission from the Lord Lieutenant and six of the council.




LECTURE X.

    _The right of Seignory and its consequences—The right of
    Reversion—Rent seck—Rent charge—The nature of_ distress, _as
    the remedy for recovering feudal duties. Observations on_
    distresses _in general_.


Having spoken of tithes and advowsons, two kinds of incorporeal benefices
that arose in those antient times, I come now to treat of _seignories_
and their consequences. A seignory is an incorporeal right and interest
still remaining in the lord, when he parts with his lands, in benefice
to a tenant. Now the rights of a lord, in respect of his seignory, may
be considered in two ways, either as the services were due to the lord
from the _person_ of the tenant, or from the _lands_. He hath therefore,
in virtue of his seignory, a right to all those personal duties which
flow impliedly from the oath of fealty; such as to receive warning from
his tenants of any injury done, or impending danger to his person, his
dignity, or seignory, to receive faithful advice from them when called
upon, and to have his secrets faithfully kept by them; to be the judge
of their controversies, and the leader in war of such of them as hold
by military service. For these barbarous people had no idea of dividing
power, but always entrusted the civil and military sword in the same
hands; whereby they avoided the dangers and disorders that more polished
and richer nations have ever been exposed to, namely, of having the civil
and legal authority subverted by the military power. And so strict was
the bond between lord and tenant, that the latter could in no wise, in
point of judgment, decline his lord’s jurisdiction, by refusing him as
judge on account of partiality. Such a charge was a breach of fealty on
the vassal’s part, and no such presumption could be admitted by that law,
which looked upon the lord as equally bound by the oath of fealty, though
not taken by him, as the tenant was[147].

By the Roman law, a suspected judge might be refused by the suitors
for almost all the same causes, and grounded mostly upon the same
reasons, for which jurors, who in our law are _judges of the fact_,
may be challenged at this day. But the feudal customs admitted no such
suspicions as to the lord, and therefore in the English law, no judge,
however clearly interested in the cause, can be challenged. This maxim
once established, it was necessary, however, for the sake of justice,
that it should admit of some qualification. The _assessors_ in Germany,
who assisted the lord in judgment, from whom came, in after time, the
_pares curiæ_, were this qualification. But as these were not judges in
all feudal causes, but in some the lord alone continued sole judge; some
remedy was here to be applied, and on the continent and in England, they
proceeded differently. On the continent, the king, or superior lord,
appointed a _cojudge_, or assessor. In England the suitor, by applying to
the king’s courts was empowered to remove the cause thither; which hath
been one great occasion of these inferior courts of the lords dwindling
to nothing[148].

As to the right the lord had in the land by virtue of his seignory, the
principal, and upon which his other rights out of the land depended, was
his _reversion_. A reversion is that right of propriety remaining in the
lord, during the continuance of the particular estate of possession of
the tenant; whereby he is entitled to the service during the duration of
the term, and to the possession itself, when it is either expired, or
forfeited. Hence it appears that the fealty and services of the tenant
are incident to the lord’s reversion. Out of these reversions may be
carved another incorporeal estate, called a _remainder_, which is a
particular estate dependant upon, and consequent to a prior particular
estate; as if lands be granted to A. for five years, and afterwards to
B. for life. In this case A. hath a lease for years, B. a remainder for
life, and the reversion remains in the grantor. In our law, remainders,
and the particular precedent estate on which they depend are considered
as making but one estate; and so, in truth, they are with respect to the
reversioner, though not to each other. Therefore they must both pass out
of the grantor at the same time, though it is not absolutely necessary
that the remainder should vest in the grantee at the creation of the
precedent particular estate; for a remainder may be good which depends
on a contingency, as if a remainder, after a lease for life or years
to A, is limited to the eldest son of J. S. This is a good remainder,
but a contingent one, depending on the birth of J. S.’s son during the
continuance of the term of A; for the remainder being but one estate
with the precedent particular one, and only a continuation of it, must
commence instantly when it determines. Or, if after a lease to A, a
remainder is limited to the heirs of J. S. this is a good contingent
remainder, depending on the event of J. S. dying during the particular
estate. For it is a maxim of the English law, _Nemo est hæres viventis_.

To return to reversions, I mentioned fealty and services as incidents of
a reversion; but we must distinguish that fealty is an inseparable one,
which the services are not; for the tenure being from the reversioner,
and fealty necessarily incident to every tenure, it is impossible
they should be separated. A grant, therefore, of fealty, without the
reversion, is void; and the grant of the reversion carries the fealty
with it. But the case is otherwise as to the services; for the services
may be granted without the reversion, and although the reversion be
granted, the services, by special words, may be excepted[149].

It will be now proper to speak of the remedy the reversioner hath for the
recovery of his services, if they are not paid. In the antient times the
tenant was, at all the due times, at his peril obliged to perform his
service; for as each the smallest failure was a breach of his fealty,
his tenancy was thereby absolutely forfeited, and this long continued to
be the case in military tenures. But as the defence of the realm was not
concerned in the socage holdings, but only the immediate interest of the
lord, it was thought too hard, that every, perhaps involuntary omission,
should induce an absolute forfeiture; when the lord, where his dues were
certain, might receive an adequate recompence. Custom, then, introduced
the method of _distress_, in imitation of the Roman law, as the proper
method to recover an equivalent for the damages he sustained by the
non-performance of the duties. And afterwards, when the personal service
of the military tenants came to be commuted into a sum of money called
_escuage_, distress came to be the regular method of recovering that and
the other fruits of the military tenure; the damage the lord sustained
being now capable of a reduction to a certainty[150].

The introduction of distress on socage tenants was thus: When the
absolute forfeiture was thought too severe, the first step was, that the
lord should enter, and hold the lands till his tenant had satisfied him
as to his damages; but as this seizure frequently disabled the tenant
from making that satisfaction, especially if he had no other lands,
this, after some time, was thought still too rigorous, and in its stead
was substituted the seizure of the cattle, and other moveables found on
the land, and the detention of them as a pledge, until the damages were
answered; which is what we call _distraining_. This was a sufficient
security to the lord, as it rarely happened but that there was sufficient
found to answer his demand for one failure; and the tenant was not (as
not being deprived of his possession) reduced to an incapacity of paying
his rent of services, and thereby recovering his pledges. Hence all
feudal rents, or, as our law calls them, _rent services_, (being the
service the tenant pays to the lord, in consideration of the land he
holds from him) are distrainable[151].

But there was another species of rents in our law not distrainable;
which, therefore was called _redditus siccus_, or _rent seck_. This was
not a feudal service, not being paid from a tenant to his lord, and
was thus: When a man, keeping still his land in himself, grants a rent
thereout to a stranger, the grantor is justly bound by his grantee; but
the grantee, not being his lord, cannot have this remedy. For the remedy
of distress being substituted in the place of the lord’s right of entry,
could not be extended to a stranger, who never had that right. And this
was originally the only kind of rent seck; but the statute called _quia
emptores terrarum_, introduced another species of rents not distrainable,
by converting rent services into rents seck. The liberty of alienation
without the consent of the lords having been allowed before that statute,
it became customary for a tenant who sold his land, and parted with his
whole estate in it, to reserve the tenure of the _vendee_, not to his
superior lord and his heirs, but to himself and his heirs; whereby he
retained many advantages to himself, by continuing the vendee’s lord,
such as the right of escheat, if the tenant died without heirs, and the
benefit of the wardship and marriage, if it was held by knight’s service.
Now a rent reserved upon such a sale to the vender, was, as he continued
the vendee’s lord, a rent service, and consequently distrainable[152].

But this practice, though highly useful to the sellers, was of
considerable detriment, not only to their lords, who thereby frequently
lost the fruits of their tenures, but indeed to the whole military policy
of the kingdom. It was enacted, therefore, in the eighteenth of Edward
the First, by the statute above mentioned, that whenever a man aliened
his whole estate, the alienee should not hold from him, and be his
tenant, but from the superior lord, and be the lord’s tenant directly;
and that by the same services, by which the alienor had holden. The
alienor, then, by this statute, ceasing to be lord, and his right of
reversion clearly gone, if he reserves a rent on such alienation, he
cannot distrain for it, and it is a rent seck.

These rents seck, therefore, were of two kinds, one arising by grant,
which was the most antient, the other by reservation, when a man aliened
his whole estate. For if the whole estate was not gone, but a reversion
remained in him, a rent reserved was still, on account of that reversion,
a rent service; as if A. gave lands to B. and the heirs of his body,
reserving rent. As this estate tail, although it might continue for ever,
yet was capable of determination by the failure of that issue, such rent
was distrainable, for that reason, and also because, by the statute which
gave force to such estates tail, the reversion was saved to the donor.
But if he had made a lease of life or years, or a gift in tail, and
had, at the same time, conveyed over the remainder in fee, so that his
reversion was gone, a rent reserved on such a grant was _seck_.

The inconvenience attending these rents seck, in their not being
distrainable, introduced another species of rents called _rent charges_.
These are rents seck, armed with a power of distress by the special
agreement of the parties; and are of two kinds, as the former are created
either by _grant_, or _reservation_. Those by grant, which were the only
species of rent charges before the statute, were thus; as if I grant out
of my lands, keeping them still in myself, a rent for years, life, fee
tail, or fee simple, and give my grantee a power to enter and distrain
for the rent. It will be by reservation; if I reserve to myself a rent
upon a conveyance in fee simple, or upon a gift in tail with a remainder
over in fee, or upon a lease for life or years, with a remainder over in
fee, and it is covenanted that I shall have a right to enter and distrain
for the rent. The power of distress, therefore, in rent charges is good
only by the express provision of the parties, not by the force of the
general law[153].

Antiently it was a doubt whether a rent charge could be reserved upon a
_deed poll_; to understand which, it will be necessary to explain the
difference between a _deed poll_ and an _indenture_. A deed poll is
a grant from one man to another, and is all and every part of it the
act and words of the grantor only; and therefore the deed belongs to
the grantee, and there is no counterpart in the hands of the grantor;
because the grantee binds himself to nothing towards him. Whereas, in an
indenture, every clause is the act and words of both. They are mutually
bound to each other, and therefore there is a counterpart in the hands
of each party. Now if A. by deed poll, granted lands in fee to B.
reserving rent, with a clause of distress, it was doubted whether this
clause was not void, and the rent a rent seck; because as the lands by
A’s grant was in B. it was apprehended they could not be charged with it
without an express covenant from him; as in the deed poll he was a party
merely passive. But it is now held, and that very equitably, that such a
reservation can raise a good rent-charge; for his acceptance of the deed
upon the delivery is an act sufficient to shew his assent to take it on
the terms therein contained; and nothing can be more reasonable than that
whosoever takes a benefit shall take it under such conditions, and no
other than such as the donor intended.

Thus have I endeavoured to explain the nature of the three several kinds
of rents in our law, of which only rent service is properly feudal; but
upon account of the affinity of their nature, I thought proper to join
them here. It will be proper now to say something concerning the nature
of _distress_, as it was the remedy for recovering the feudal duties in
these kingdoms.

Distresses were not only taken for rents, and other services reserved,
but also to oblige persons to appear in courts of justice, or to raise
fines, and amerciaments inflicted on them. This likewise arose from the
feudal law, as by that the doing suit and service at the lord’s court was
one of the duties attendant on fealty.

But there is another kind of distress allowed by our law, arising neither
from the feudal contract, nor the express stipulation of the parties,
but from the _delictum_, or negligence of a stranger. It is called a
_distress for damage feasant_, and is a seizure of the cattle, or any
other moveable of a stranger, trespassing upon or damaging my ground. The
law in this case will not put me to my action against the proprietor,
whom perhaps I may never discover; but has provided a _festinum remedium_
for me, by way of distress; and this distress is more privileged than
others, for it may be taken in the night-time, which other distresses
cannot; because, otherwise, the cattle might escape, and the goods be
removed, and so the party injured remain without remedy.

Many and grievous were the extortions and oppressions of the antient
English lords in their taking distresses, during the troublesome reign of
Henry the Third, for the remedying which many wise regulations were made
by the statute of Marlebridge and others. For they not only distrained in
a most unreasonable manner for the smallest duties, but distrained where
nothing was due; and frequently even out of their fees; and to deprive
the parties injured of legal remedy, drove them into another county, or
inclosed them in a castle, or would not suffer their bailiffs to permit a
replevin[154].

Since I am on this head of distresses, it will be proper to make a few
observations, _what_ may be legally distrained, _when_, and _where_, and
_how_ a distress is to be demeaned, and what remedy the person wrongfully
distrained hath to recover his property.

First then, nothing can be distrained but moveables, and such as may
be restored in the same plight. For the distress is in the nature of a
pledge to be restored on due satisfaction made; therefore nothing fixed
to the freehold is distrainable, as doors, windows, furnaces, &c. for
these being affixed thereto, are part of the freehold, and cannot be
separated thence without damage. Therefore, a smith’s anvil, though not
actually fixed, or a millstone removed in order to be picked, are not
subject to distress; for the one is, in law, still part of the shop, as
the other is of the mill. Hence, likewise, money is not distrainable,
unless it be in a bag; because, otherwise, it cannot be known, so as to
return it in the same plight. For the same reason, by the old law, corn
in sheaves, or in stacks, or in a barn, or hay in cocks, or in a loft,
could not, for fear of damage in removing. That however hath been since
altered by statute, but corn or hay on a cart could be distrained by the
old law; for they being, in such a case, found in a situation fit for
removal, might be transported from place to place without any probable
danger of damage, or diminution.

Secondly, The instruments of a man’s livelihood, as the tools of a
tradesman, the books of a scholar, the plough-cattle of a ploughman, &c.
cannot be distrained where any other distress is to be found; and this
for the particular safety and benefit of individuals. But this holds not
in the case of _damage feasant_; for there the identical thing that did
the trespass, and that only, must answer for it.

Thirdly, Things sent to public places of trade are privileged, for the
public benefit of the realm, as cattle in a market, corn sent to a mill,
cloth in a taylor’s shop, yarn in a weaver’s house. For it would put a
total stop to commerce if these were answerable for the rents of such
places.

Fourthly, What is in the custody of law is not distrainable, for it would
be an absurdity that a man should have a right by law, to take things out
of the custody of the law itself, such as goods already distrained, or
goods taken in execution, or seized by process at the suit of the king.

Fifthly, Things in manual possession of another, are, for the time,
privileged, as an ax in a man’s hand, or the horse I ride on. But for
damage feasant, as I said before, every thing is distrainable; for the
thing itself which did the damage, is the pledge of the satisfaction, and
the only one.

Next let us see _how_ and _where_ they may be taken. The distress, then,
should not be excessive, as an ox should not be taken for twelve pence,
where other sufficient distress might be had, or two sheep where one was
sufficient; but for damage feasant, though ever so little, the whole may
be taken; and likewise for homage, fealty, or the wages of members in
parliament. As the interest of the whole community is concerned in these,
no distress can be excessive. No distress can be taken in the king’s
highway, for it is privileged for the public use of the nation. Neither
can any distress be taken by night, unless for damage feasant; for as no
tender of rent, or other duty, can be made, or acceptance enforced but
in the day-time, perhaps the tenant may, in such case, be provided, and
ready to tender his duties the succeeding morning, and thereby save his
chattels. Lastly, by the common law, no man could distrain out of his
fee, unless when coming to distrain he had the view of them, and they
were driven off to prevent him. But this hath been altered by statute,
and now a landlord may follow his tenant’s cattle, if conveyed by his
lessee off the land, and distrain them within twenty days.

As to the _manner_ of demeaning or managing the distress, it is the duty
of the distrainor to carry them to a pound, that they may be in the
custody of the law. _Pounds_ are of two kinds, _overt_, or _covert_; the
one for living cattle, the other for other goods that might take damage
by the weather. The reason why living cattle should regularly be put into
a pound overt, is, that, as they are but a pledge, from which, in itself,
the taker is to receive no benefit; and as the proprietor, therefore,
must be at the sole expence of feeding them, he should have the freest
access to them for that purpose; and, in such case, if they perish, the
loss is his; but if they be put into a covert pound, there, because the
owner cannot have access, the taker is to feed them, and answer for them
at his peril.

In antient times, the lords used to drive the distresses into foreign
counties, whereby the tenants knew not where to resort to feed their
beasts. This was forbidden by Marlebridge, cap. 4. However, that act
received this construction, that if a manor lay in two counties, and its
pound in one of them, the lord might distrain in the other county, and
impound them in his manor pound; because the tenant, by attending the
manor court, was presumed to know every thing transacted in the manor.
But now, by later acts, no distress of cattle shall be impounded out of
the hundred, or barony where taken, except in a pound overt, in the same
county, within three miles of the place; nor shall distresses be divided,
and impounded in several places. Dead chattels must be impounded likewise
within three miles, and that in a pound covert, otherwise the taker is
answerable for them, if damaged or stolen.

As to the _remedy_ for taking an unjust distress, the tenant might, if
there was nothing due, rescue them before they were put in pound, and
justify it; but when once impounded, they were in the custody of the law,
and must be delivered by law. Or if there was any thing due, he might,
before they were impounded, make a tender of satisfaction; which, though
the caption was just, rendered the detention unlawful; and therefore if
the beasts, after such tender, were put in pound, and died there, the
taker was answerable.

When the goods were once impounded, the remedy was by _replevin_, which
is a judicial writ out of Chancery, directed to the sheriff, who is
Judge in this case, complaining of the unjust taking and detention, and
commanding the sheriff to deliver them back to the owner, upon security
given to make out the injustice of the taking or detention, or else to
return the goods and chattels.

But this method of replevin, by writ out of Chancery, was very
inconvenient to the remote parts of the kingdom; as the owner might be
put to extraordinary expence and trouble, in maintaining his cattle for a
long time. Hence it was provided, by the statute of Marlebridge, cap. 21.
_Quod si Averia alicujus capiantur, & injuste detineantur, vicecomes post
querimoniam sibi factam, ea sine impedimento vel contradictione ejus qui
dicta Averia ceperit, deliberare possit_[155].

This impowered the sheriff to make replevins without writ, upon the
plaint of the plaintiff in replevin; and this he could do out of his
county court, because, as that was held only from month to month, were
it otherwise, the delay might be as great as in the case of a writ of
replevin; but then the sheriff, in order to lay the foundation of the
suit, must enter the plaint the next county court, that it may appear on
the rolls thereof.

The sheriff’s duty then was, in the first place, to take sufficient
security _ad prosequendum_, that is, that the plaintiff should make out,
in due course of law, the justice of his writ or plaint, that is, that
the cattle or goods were either taken, or detained unjustly. He was
also to take security _de retorno habendo_, that is, in case he failed,
that he would return the same distress, that it might be delivered to
the taker; and this is by the statute of West. 2.; and he generally,
likewise, took security to indemnify himself from any action that might
be brought against him. And then it was his duty immediately to deliver
the distress to the plaintiff in replevin.

Then it lies on the taker or defendant in replevin to _avow_, that is,
to set forth the reasons of his caption, to which the plaintiff replies;
and so the justice of the cause comes into question, to be legally
determined. Thus much is sufficient, at the present, to shew the remedy
the lord hath for his services, by virtue of his seignory, and how his
tenant is to defend himself if unjustly distressed[156].

I might here treat of another fruit of the lord’s seignory, which is the
_right of escheat_, or the lands falling back to the lord, either for the
_delictum_ of the tenant, or the failure of blood; but as, to understand
this last properly, we must know who are inheritable, it will be more
proper to defer it till after we have treated of _inheritances_.




LECTURE XI.

    _The manner in which estates for life came to be enlarged
    into descendible estates—The nature of Reliefs—Feudal
    oppressions—The admission of allodial lands into the feudal
    policy—The extension of the feudal system in France._


The feudal lands having been changed by degrees from tenancies for years
into permanent grants for life, partly by the necessities, and partly
by the favour of the lords, the matter did not stop here; but, to the
advantage of the vassals, their rights were continually gaining ground,
and insensibly extending themselves, to a durable continuance in the same
family. To this, undoubtedly, the number of allodial estates, which were
estates of inheritance in the hands of the Romans, greatly contributed.
For it is not to be imagined that it could be an agreeable spectacle
to the conquerors, when once they were settled, and secured in the
possession of the country, to behold their posterity in a more precarious
situation, with regard to property, than the vanquished were. It is true,
as by their constitution the lord was obliged to provide every gentleman,
that is, every one of their nation, unless he proved unworthy, with a
benefice, there was no danger of their issue not being supplied, in some
degree or other. But this did not satisfy them[157].

Their roving manner of life being antiquated, and the practice of
removing them from place to place every year being superseded by gifts
for life, the possessors, by habitude, became fond of their dwellings,
and no longer contented with bare necessaries, studied to render their
situation commodious and agreeable. They built houses of strength and
convenience, and by their socage, tenants and villains planted and
improved their lands. And now it began to be thought severe, that
the benefit of their improvements, and the fruit of their and their
dependants toil and labour, should go to strangers, or even to the lord
himself. For before this time it had began, and was now grown into a
common practice, for the lords, when they gave an estate for life, not to
content themselves merely with future service, but to exact, at the time
of their investiture, an _honorary fine_ from the tenant; and this, being
but moderate, was generally complied with, in order to gain a permanent
estate. The interest of the state, which was concerned in the improvement
of particulars, required also a preference of the defendants of those
that made them. It is no wonder, therefore, that it grew to be a maxim,
and universal opinion among these people, that the not continuing the son
in the possession of his deceased father, though it was in the lord’s
power to remove him, was a great hardship, and an unworthy act in the
lord[158].

With these general sentiments, the lords, for their own interest, were
obliged to comply, and especially the kings; who, by the frequent
divisions of the monarchy in France, had competitors to guard against;
and were, therefore, enforced to attach their vassals to them in the
strongest manner, by complying with their inclinations. The sons,
therefore, or one of them, generally succeeded; not in virtue of any
inherent right, but by a new gift, through the favour of the lord. For,
upon the death of his vassal, the estate being expired, the lord took
possession, and, upon receiving a fine, made a new grant, by investiture,
as of a new estate, to such an one of the sons as he chose; or he divided
it among them at his pleasure. These fines for continuing the fiefs in
the same family were called _relevia_ or _reliefs_, from the Latin word
_relevare_, which signified a second lightening, or removing the hand of
the lord, who had seized the benefice upon its vacancy, by the death of
the former possessor. Hence the son had no right to continue his father’s
possession. He was obliged to petition for a new investiture, and to
tender his relief, and himself ready to take the oath of fealty. These
reliefs were originally paid in arms, being the most valuable property
these military people had, and afterwards were converted into money. The
_quantum_ was originally at the lord’s will; but his own interest, from
the motives already hinted, commonly prevented him from being exorbitant.
This preference to a succession being at first a matter of favour, not
of right, some vassals, by degrees, obtained of their lord, in their
investitures, an absolute right of succession to their sons; which bound
the lord and his heir; and that in these two different manners. It was
either by a grant to the vassal, and one or more of his sons by name; and
then those omitted were excluded; or _to him and his sons_ generally; and
then, by the feudal law abroad, they were all admitted to enjoy in equal
portions, in imitation of the Roman law, which admits all the children in
that manner.

But the words of the grant were not extended, by a favourable
construction, to take in grandsons by the name of sons, for the following
reason. When a grant was made to a man and one or more of his sons by
name, the sons were originally, at the time of the investiture, capable,
or supposed capable, by the lord’s admission, of doing the services of
the feud; and their ability and merit was in the contemplation of the
grantor, and part of the consideration of the grant; and where it was
given to a man and his sons generally, the law presumed the same thing,
the same capacity in them, the same intention in the grantor. But in the
case of grandfather and grandson, the law could not presume so, it being
contrary to the ordinary course of nature, that both should, at the time
of investiture, be capable of doing the services in person; and therefore
the grandsons, unless specially provided for, were excluded[159].

Thus a right of succession for one step was gained by the express
provision of the parties, in particular cases. But as the lord, where
he continued the succession out of favour, entered into the lands, and
parted not with them without payment of his relief by the son, it was
reasonable in this case, where he positively bound himself, that these
advantages should be reserved to him. Therefore the heir could not enter,
but was obliged to petition his lord _humiliter_ and _devotè_, and to
offer his fealty and relief; and the interest of the lord and of the
state requiring the place of the deceased vassal to be speedily filled
up, a year’s and a day’s time was allowed for this application; within
which space, if the heir did not apply, unless prevented by inevitable
necessity, he forfeited his right of succession, and the lord was at
liberty to dispose of it to a stranger.

Reliefs, however, being, in their original creation, arbitrary, it should
seem to be in the power of the lord, where the quantity was not specified
in the tenor of the investiture, to defeat his own grant, by demanding,
under that name, more than the value of the land, or otherwise grievously
to distress his tenant. This, in England particularly, occasioned many
struggles. It appears from the laws of William the Conqueror, that, in
those times, the reliefs were fixed according to the different ranks of
the persons, and paid in horses and armour, in imitation of heriots in
the Saxon times; but his avaricious and tyrannical son William Rufus
laid claim to, and exacted arbitrary reliefs, to the great discontent of
all, and to the impoverishment of many of his subjects[160]. This was
redressed in Henry the First’s charter, where the first chapter says,
_Si quis baronum, comitum, sive aliorum qui de me tenent mortuus fuerit,
heres suus non redimet terram suam sicut faciebat tempore fratris mei,
sed legitima, & certa relevatione relevabit eam, similiter & homines
baronum meorum, legitima, & certa relevatione relevabunt terras suas de
dominis suis_[161]. Henry the First, however, was a man little inclined
to keep any engagements with his people that he could free himself from;
and therefore reliefs went on in an arbitrary way, for the most part,
under him, though not in so oppressive and extorting a manner as his
brother William had used. For in his grandson Henry the Second’s reign,
in whose time the feudal payments became generally converted into money,
we find, from Glanville, that the relief of a knight’s fee, indeed, was
reduced to a certainty, but that of a noble fee was not. _Dicitur autem
rationabile relevium alicujus, juxta consuetudinem regni, de feodo unius
militis, centum solidos;—de baroniis vero nihil certum statutum est, quia
juxta voluntatem & misericordiam domini regis solent baroniæ capitales de
releviis suis domino regi satisfacere[162]._

It seems a little odd, that the lower military people had got such an
advantage above the great and powerful lords; but this may be accounted
for from the number of the knights, who made the strength of the kingdom,
and were not to be disobliged; and also from the precarious situation
many of the great lords were in, who had been attached to the cause of
Stephen. However, the wisdom and moderation of this great prince was
such, that we find no complaints on this head, during his reign, or that
of his son Richard; but when John ascended the throne, a prince who
hated, and was hated by his nobles, the old oppressions were renewed,
and aggravated to such a degree, that the remedying thereof is the first
article of temporal concern in Magna Charta[163].

There it is provided, _Si quis comitum, vel baronum nostrorum, sive
aliorum tenentium de nobis in capite per servitium militare, mortuus
fuerit, & cum decesserit, heres ejus plenæ ætatis fuerit & relevium nobis
debeat, habeat hereditamentum suum per antiquum relevium; scilicet,
heres, vel heredes comitis de comitatu integro per centum libras,
heres vel heredes baronis de baronia integra per centum marcas; heres
vel heredes militis de feodo militis integra per centum solidos ad
plus: Et qui minus habuerit minus det, secundum antiquam consuetudinem
feodorum_[164]. And now were all reliefs reduced to a certain sum of
money, namely, the fourth part of what was then reckoned the value of the
inheritance; for a knight’s fee was then reckoned at twenty pounds, a
barony at four hundred marks, and an earldom at four hundred pounds per
annum. And by the gradual sinking of the value of money, and the rising
of lands, these payments continuing the same, came in a few centuries to
be not the twentieth part of the value. We see by the words _per antiquum
relevium, & secundum antiquam consuetudinem feodorum_, how careful the
lords were to have this certainty of relief acknowledged as their antient
right, and not to accept it as a concession from the crown. When the
military lords began, in imitation of the estates they themselves had,
to grant inheritances to their socage tenants, they likewise exacted, in
the nature of a relief, from every new possessor a year’s value; or, in
other words, the rent of the first year was doubled. For a year’s value
was what was, in France, at the beginning, paid for military tenures, by
the name of _rachat_, or _repurchase_, answering to our relief, until at
length they were reduced to a certainty in money; and, consequently, from
the same causes as in England, though remaining nominally the same, they
sunk to be very inconsiderable[165].

Estates of succession, as I observed, arose first from private grants,
and that for one generation only; but they were continually extending to
further lengths, and encreasing in number; insomuch that, fiefs falling
vacant much seldomer than before, the king had it not in his power to
gratify his deserving soldiers so frequently as he should, and the
crown was consequently enfeebled. This then started the notion of such
grants being good only during the life of the king or lord who made them,
and not binding on his successors. Upon this plan, Brunechild, in her
regency, during the minority of her infant son, attempted to revoke them,
and actually did revoke several; which at length raised that flame, and
caused that revolution, in which her son and herself miserably perished.
What shews the violent indignation her venturing on this step occasioned,
was the horrid manner of her death, that of being torn asunder by four
wild horses. Clothair the Second, who succeeded, was wise enough by law
to confirm these estates; and then, namely about the year 613, the former
doubt was removed, and all these estates of inheritance confirmed to
continue against the successor, according to the terms of the original
investiture. New grants were continually made, and for more generations
than had been formerly practised. But yet this rule of descent was not
general; but all grants, unless heirs were specially named, were but for
life; as it is in our law, in which a _feofment to a man for ever_, is
but an estate for life for want of words of inheritance[166].

What greatly contributed to the extending these grants to indefinite
generations, was the inclination that now seized the Romans and Gauls
who held allodial lands to be admitted into the feudal policy, by
becoming vassals to the king. They had long lain under very humiliating
distinctions. They were no members of the state. The loss of their lives,
and other injuries, were compensated only by half the satisfaction to a
Frank. For neglect, or contumacy, when called into the king’s courts,
they were reputed guilty, and forfeited their estates; whereas a Frank
was only imprisoned to oblige him to answer. When accused of the lightest
crimes, they were put to the ordeal; whereas the Franks were only
subjected thereto in case of murder. And many other were the distinctions
between the allodial and feudal tenants. No wonder then the former were
very desirous of enrolling themselves among the conquerors, which when
they had at length obtained, their liberty was effected, by their giving
their allodial lands, or a part of them, to the king, and receiving them
back, subject to the feudal rules. Now were they immediate vassals of
the king, and, as such, became Franks to all intents and purposes. But
these people were not so foolish, nor could it be expected from them, to
part with absolute inheritances, and take back only an estate for life.
They insisted upon grants for a perpetuity, at least for as long as the
issue male of the person resigning lasted. When once these donations were
become common, we may be assured the Franks were very ready to follow the
example, and to take all advantages either of the favour, or the weakness
of their kings; and to such a number did these inheritances increase,
that, about the year 730, the kingdom was near being lost to the
Saracens, for want of a sufficient number of beneficiary or life-estates,
to encourage the soldiery[167].

At the time the kings of France were merely nominal, and the whole
administration in the hands of the _maires du palais_, of whom the
second, who had obtained this unlimited authority, Charles Martel,
was so happy as to save the kingdom from those African invaders in a
battle near Tours, wherein they were routed with a slaughter almost
incredible. It remained to reward the victorious soldiers, who were at
least as much animated to their exploits by his previous promises, as
by their affection to the antient constitution of the state, which was
now in truth destroyed, the kings of the royal race being mere phantoms,
whose names he and his father had made use of at their pleasure. But
this family had not acquired sufficient weight and authority to act as
masters. The fund of lands, out of which benefices had been formerly
given, was almost exhausted, and the major part of the lands that were
not still allodial, was alienated either in perpetuity to the church,
as atonements for the vices of the former kings, or what was near a
perpetuity to the lords, for many descents. These last he could not
despoil. They were too firmly established by custom and law; and he and
all his predecessors had paved their way to greatness, by supporting
these hereditary grants at the expence of the crown. Necessity therefore
obliged him to make free with the lands of the church; for which, in
their visions, they lodged him in a chamber, the very lowest in hell. Of
these lands the greatest part he converted into benefices of the antient
kind, for life only; and by means of the number of those new ones, added,
to the old ones, that were in the same state, some kind of a balance was
formed; which for a time supported the government, and checked the growth
of inheritances. But it is remarkable, that, of those church lands,
several he gave as allodial ones. I will not pretend to say, that, in
this distinction, he considered the antient nature of the lands of the
church, some of which came from feudal, others from allodial proprietors.
It seems rather probable, as the allodial estates were greatly decreased,
by being turned into fiefs of inheritance, he was inclinable to form a
kind of equality between the feudal tenants, the beneficiaries, and the
allodians; that, by managing them, he might advance his family to the
title, as well as power of royalty; which we find was soon afterwards
accomplished by his son Pepin[168].

The policy of Pepin and his son Charlemagne corresponded with Charles
Martel’s views. The former allowed the continuance of inheritances
according to the original provision in the creation, but were much
fonder of the beneficiary estates, and Charlemagne made several laws to
prevent his beneficiaries from converting by any art their interests into
inheritances. In his time, a great majority of estates were benefices;
but this I presume is not to be understood of France particularly,
where, from the detail before mentioned, it could scarce be, but of his
whole empire. For in his acquisitions, and especially in Germany, where
such a practice was agreeable to the antient customs of the natives,
such a regulation was conformable to the sound policy of his father
and grandfather; by which they endeavoured to restore the splendour of
the old French monarchy, I mean with exception to the large gifts he
gave to the church on the borders of the infidels, in atonement for his
grandfather’s sacrilege, and in hopes of converting those barbarians, and
thereby civilizing them, and making them good subjects.

But the successors of Charlemagne had neither the power nor the
understanding of their ancestors. No wonder then, that, under them, the
general inclination of the subjects to change their benefices into fiefs
gained ground. The division of the empire, and frequent wars between the
brothers, weakened the royal authority, and strengthened their vassals;
who, at the times of their kings distress, were rather to be entreated
than commanded. In the time, therefore, of his grandsons, we find laws,
that, conforming to the inclination of the vassals, did in time put an
end to beneficiary estates, holden from the king; opened the gate to
_subinfeudations_, and all its extensive consequences; and raised a new
kind of polity never before seen in the world, the _feudal_ one, such as
it reigned about the year 1050 on the continent, and was introduced into
England by William the Conqueror[169].

I speak of the times of Charles the Bald, who reigned about 860. One of
his laws gave leave, and an unlimited one, to the allodians, to submit
themselves and their estates, in the nature of fiefs, to others besides
the kings. Nothing could contribute more to the weakening of the royal
power, and the throwing of all the weight into the baron’s scale. Before
they could be made Franks, only by becoming the immediate vassals of the
king. This was equally for the public benefit of the state, the king,
and the allodians. But when once the barrier was thrown down, in those
times of confusion, the allodians were glad to gain the protection of the
neighbouring lords, and, under colour thereof, detached themselves from
their former subjection to the counts, who were the king’s officers over
them.

Another law, of equal consequence, was to entitle the fee of a
beneficiary, who had only an estate for life, without any express
agreement for a longer continuance, to go to the son. This was extorted
by the circumstances of the times, and perhaps then was thought of little
consequence, as it only continued them for one generation. But the
temper and general inclination of the people were not to be controuled.
Those grants that had been so long as two generations in a family, it
was sometimes dangerous, always invidious not to continue; and thus
the successors often obtained permanent estates, when nothing less was
intended at the beginning. And this was easily obtained, as the use of
letters was not common among these people, and their charters were, by
frequent rebellions, liable to be destroyed.

The last law I shall mention, is that declaring, that the sons of counts,
who were the king’s officers over the _allodianée_, and were originally
for years, after for life, should succeed to their father. This put
the finishing stroke to the beneficiary estates. For though this, in
appearance, was, as the former, but for one life, and conditionally; yet,
from the prevailing principles, it was impossible they should not grow up
into inheritances. And as all inheritances were growing feudal ones, and
upon those conditions, and no others given, these counties become fiefs.
The demesnes of the crown within them became the demesnes of the count,
and all the allodiaries were now become his sub-vassals[170].

We are come to the dawn of a strictly feudal monarchy, and, to shew the
gradation, I have, in this lecture, taken in a great compass of time. But
before I proceed further downwards, it will be proper to return a little
back as to the order of time, and to speak of the consequences that
attended the introduction of estates of inheritance. Of one of these,
_reliefs_, I have already spoken in this lecture; but there are many
others that must be taken notice of.




LECTURE XII.

    _Consequences attending the introduction of estates of
    inheritance—The incident of homage—Differences in England and
    the Continent, with regard to the ceremonies of homage and
    fealty—The fine of alienation—Attornment—Warranties—Wardship in
    chivalry._


Having already, in my last lecture, taken notice of _relief_ which sprung
up immediately with estates of inheritance, and was their immediate
consequence, it is proper now to proceed to the other fruits of this
tenure, which grew up not so soon, but in after times: and the first to
be considered, as undoubtedly the next to relief, if not coeval with
it, is _homage_; which, Littleton says, is the most honourable service
(that is with respect to the lord, and the most humble service, that is
with respect to the tenant, that a freeholder can do to his lord) as
upon the introduction of estates for life, the ceremony of fealty was
introduced, so was it thought reasonable, when a further step was taken,
that of continuing them to heirs, that a new ceremony should be invented,
distinct from the former; which being performed publicly, in the presence
of the _pares curiæ_, should, in those illiterate ages, create a
notoriety, that the tenant had a more durable estate than a freehold. The
manner of performing homage is thus distinctly described by Littleton.
When the tenant shall make homage to his lord, he shall be ungirt, (that
is, unarmed) and his head uncovered, and his lord shall sit, and the
tenant shall kneel before him on both his knees, and hold his hands
jointly together between the hands of his lord, and shall say, _Thus I
become your man_ (from which word _homo_, _homagium_, and _hominium_
are derived) _from this day forward, of life and limb, and of earthly
worship, and unto you shall be true and faithful, and bear your faith,
for the tenements that I claim to hold of you, saving the faith that I
owe to our sovereign lord the king_; and then the lord so sitting shall
kiss him. These are the words of Littleton, and they are just in the
case he puts of a tenant doing homage to an inferior lord, and who had
no prior lord; but if he had a prior lord, or the homage was to be done
to the king, there was a difference in the form; for if the tenant had
a former lord, he also was to be excepted, that the new lord might have
notice of the tenant’s prior obligation, and that it was not in his power
to do absolute personal services at all times to him. And if the homage
was done to the king, who acknowledged no superior, then the exception
was entirely omitted; but if to a subject, it was so absolutely necessary
that an omission of it was looked upon as an attempt against the royal
dignity, and done in disherison of the crown. And accordingly we find,
that Edward the First, in the sixth year of his reign, brought an action
of ten thousand pounds damages, now at least in value thirty thousand
pounds, against the bishop of Exeter, for taking homage of thirteen of
his bishop’s vassals, without the exception of the king; and, in the end,
judgment was given against the bishop[171].

Our antient authors tell us, that the lands for which the homage was done
ought to be specified in the doing homage; and the reason given is, _Ne
in captione homagii contingat dominum, per negligentiam, decipi, vel per
errorem_. But it was better to say, that it was for the benefit both of
lord and tenant, and for the information of the _pares curiæ_, who were
to judge in case of any controversy between them.

In England the two ceremonies of homage and fealty were kept distinct;
the homage, as being for the most durable estate, was performed first,
and afterwards the fealty; but, on the continent, at least in some
countries, I find they were blended together, by the homage being done
upon oath.

Another difference between England and the continent was, that, in
England, no homage was repeated to the lord’s heir, by a tenant who had
himself performed it to the ancestor, but homage once from the tenant
was sufficient for his life; whereas, in France, new homage by the same
tenant was done on the death of the lord, as we may see plainly by many
instances, in the case of the kings of England and France, for the lands
the former held in the latter country. Homage was the symbol of a strict
and indissoluble bond between the bloods of the lord and tenant, by which
they, and the heirs of their blood, were mutually disabled from doing any
thing to the prejudice of the other party. The tenant, therefore, could
not alien, either by last will or by deed, in his life-time, without
the previous consent of the lord. This maxim was established partly in
favour of the blood of the first tenant, which was, in fact, often the
consideration of the original grant, as when the lord gave lands in
marriage with his daughter, or to a son or a brother, (and even where
it was not in truth so, the law presumed the blood of the first tenant
was in contemplation on the strength of this maxim, _fortes creantur
fortibus et bonis_, and the probability that a gallant warrior would, by
a proper education, qualify his son for the same profession) and partly
also in favour of the lord, that he should not be obliged to receive, as
his tenant, a person that was inexpert in war; or that, if qualified,
was, perhaps, an enemy to the lord, or that was previously vassal
and bound to another lord who was an enemy. For in those troublesome
times, the power of the crown of France, where these rules began, being
greatly diminished, every lordship made a little kind of state in
itself, frequently at open war; and when not so, at least in a state
of suspicious peace with its neighbours; and from this state of things
it happened, that the word _feud_ has come in our common language, to
signify a mortal quarrel, as being almost inseparable from the greater,
or even lesser fiefs[172].

In those times, the lord, when things grew into a more settled state,
took advantage of this maxim, that the tenant should not alien without
licence, and the tenants readily acquiesced, under the subsistence of the
rule, as it permitted them, in their turn, to exact a fine from their
under tenants, or the alienees of such in all cases of subalienation; by
which means this fine at length became an established fruit of tenure. In
England, however, it ceased in the case of lords that were subjects from
the time of the statute called _Quia emptores terrarum_, which gave every
person a free liberty to sell his lands: but the king not being named
in that statute, according to the well-known legal maxim, was not bound
thereby; and of course was paid fines for alienation, or by subsequent
statutes a commutation for such fines by his military tenants _in
capite_, to the time of the Restoration, when these tenures were entirely
abolished. On the other hand, the lord was not permitted to alien, even
with the consent of his superior, without the consent also of his tenant,
and that for a similar reason. For if he, the lord, might so do, he might
subject his tenant to one who was the tenant’s mortal enemy, and perhaps
for no other reason than for serving his former lord faithfully against
the new one[173].

This last maxim once established, introduced the practice of tenants
_attorning_ to their lords grants of the seignory. _Attornment_ is an act
of notoriety, originally performed in the presence of the _pares curiæ_,
signifying the tenant’s consent, and turning over from his former lord
to the new one, and the putting him, the new one, in the seizin of his
services. This, at first, was merely voluntary in the tenant; but when,
in England, free alienations were allowed by the aforesaid act, it was
not thought reasonable that it should be in the tenant’s power to defeat
his lord’s grant, by refusing to attorn. He was therefore obliged, by
an action called _Quid juris clamat_, to appear, and to shew forth what
title he had in the said lands, and whether he had any sufficient cause
why he should not attorn to the grantee; and if he could not shew any, he
was obliged by the judgment of the court to attorn[174].

Another effect of this homage was _warranty_, which is the obligation
on the lord to defend his tenant in the lands holden of him; or, if he
cannot, to give him a recompence of equal value in other lands, our law
went no farther; but the feudal law, if the warrantor had no lands to
give in exchange, obliged him to pay the value in money. _Warranty_ is
derived from the word _war_, because, in those real actions, the trial
was of old by combat. This obligation, indeed, subsided, as I have
already hinted, long before the introduction of hereditary estates; but
when these hereditary estates became common, and all the military tenures
were of this sort, and estates for lives and years were only, or for the
most part, socage, these last had no warranty annexed to them by law,
but only by special agreement; and the warranty I am now speaking of
was confined to inheritances, and of those only to such as were held by
homage _auncestrel_, that is, where the tenant and his ancestors had,
from time immemorial, done homage to the lord and his ancestors. Here, on
account of the continued connection between the blood of both families,
the law obliged the lord and his heirs to warrant the lands to the tenant
and his heirs[175].

The manner of taking advantage of this obligation of the lords by
voucher, which still remains in our law, (the other method by disuse
being antiquated) was shortly thus: When the tenant in possession
is impleaded for the lands by a stranger, who claims them as his
inheritance, he, the tenant appears, defends his right, and _vouches_,
that is, calls in his lord to warrant the lands to him. If the lord
appears gratis, and enters into the warranty, as he ought, if he is bound
to warranty, the tenant hath no more to do in the defence of the suit. It
is the lord’s business. Against him the stranger declares, and prosecutes
the suit. He defends, and it is found against him, either by legal trial,
or default, for want of appearing; and the judgment the court gives is,
that the demandant or stranger shall recover the lands demanded against
the tenant, and that the tenant shall recover lands of equal value from
the lord, or voucher, as he is termed, because he is _vocatus_, or called
in to take upon himself the defence. If the lord, who is to warrant, doth
not appear, he is summoned till he does; or if he appears, and will not
enter gratis into the warranty, the tenant is to shew how the person he
calls in is bound to warrant; which must be either by homage auncestrel,
or by his, or his ancestors express covenant, as I shall hereafter shew;
and until this was determined, the suit of the demandant was suspended;
because as yet it was uncertain who was obliged to defend the lands. So
we see in the judgment of this kind, there were in fact two judgments,
one against the tenant, who was to give up the lands, another against the
lord, who was to give lands equal in value. But there might be three, or
more judgments, as there might be two or more vouchers. As if there be in
respect to land, A, B, and C. A, lord paramont or superior, B _mesne_,
that is, tenant to A, and to lord C; and C tenant _paravaile_, that is,
the actual possessor of the land. Here, if D, a, stranger, brings his
action against C, the tenant, who vouches his lord B the mesne, who
enters into warranty, and vouches A the lord paramont, who enters into
warranty, and fails, D recovers the lands from C, C recovers in value
from B, and B recovers in value from A, and so on, if there be more
vouchers.

Warranties, as I hinted before, are of two kinds, _warranties in law_ or
by homage auncestrel, or by words in the deed, which the law construes to
import warranty (which stood upon a feudal footing), and _warranties in
deed_, that depend on a special covenant. These last were substituted in
the place of the former. For as by every alienation, either of the lord
or tenant, the mutual connection between the two bloods was extinguished,
and warranty by homage auncestrel consequently gone (insomuch that
now, by frequent alienations, there is no such thing left) the tenant
would not attorn to his lord’s grant when the lord aliened, nor a new
tenant accept of a grant from an old tenant of his tenancy, without
an express warranty, binding in the first case the new lord and his
heirs; in the latter the old one and his heirs. Afterwards the making
of these warranties was extended to persons between whom there was no
feudal connection; as if a man aliened lands to hold of his lord. Here
the grantee held of the lord of the grantor, not of the grantor; and
therefore, as he had nothing to bind the lord to warranty, would insist
on an express warranty from the grantor and his heirs[176].

One species of these warranties, namely, that which is called _collateral
warranties_, was made use of, and it was the first invention that was
made use of, to elude the statute of Edward the First, _De donis_, which
gave birth to, or rather restored to life that antient kind of feudal
estate, which we call _Fee tail_. But it must be owned this intention
was both against the words and intention of that law. A judge in his
grandson’s, Edward the Third’s, reign, says, they were wise men that
made this statute, and that the king that passed it was the wisest king
that ever was in England, and both assertions must be allowed. The
nobles who made it were wise men in their generations. For, by making
effectual these gifts in tail, they secured their estates in their
families, free from any forfeitures, arising from their own misconduct;
which before their estates were liable to. But at the same time it was
a destructive law for the nation. It put the great lords of England,
who were before too powerful, in a condition, by this security of the
inheritance’s descending to the heirs, to beard and awe the crown, and
it likewise discouraged industry and commerce, which then began to rear
their heads in England. Perhaps the wisdom of the sagest of the kings
of England, as he is universally called, may by some be doubted in
this, that he consented to this act; but he was a sage king, and did
wisely in consenting to it. The barons had been so oppressed in his
father’s reign, and their estates so often confiscated, that a mutual
jealousy subsisted at that time between them and the crown. They had been
restored, because the crown was otherwise in danger. They were jealous
likewise of Edward himself, for one or two of his actions: In short, his
barons were too powerful to be refused this law, however contrary to the
interest of the crown and the lower people, and there was more to be said
in its favour, it being entirely agreeable to the feudal principles,
that he who received an estate to him and the heirs of his body, should
not have it in his power to contravene, by any act of his, the gift of
the donor. He complied therefore with a good grace; but his wisdom,
if it was seen in his complying, was farther seen, and in a stronger
light, in the construction his judges and their successors made of this
act, that collateral warranty, without an equivalent, should be a bar.
However, this was but a feeble defence against the mischiefs of entails,
which every day happened, to the weakening of the public estates, and
collateral warranties, were not on every occasion so easy to be got[177].

At length, in Edward the Fourth’s reign, under pretence of warranties,
and those entirely fictitious, a method was found out, under the form of
legal proceedings, to defeat estates tail, and all remainders thereon,
and that in the manner following: A, who was tenant in tail, was
impleaded by collusion, by a person who pretended to claim title to the
lands antecedent to the estate tail, and who was, in fact, the man to
whom A, by his private agreement, was to alienate it, in destruction of
the estate tail. A appears, and takes defence, but vouches to warranty
B, a man who has not a foot of land, nor is likely to have any: B very
readily enters into the warranty; and when the day comes, that he should
defend the suit, makes default; in consequence whereof, the court gives
judgment, that the demandant should recover the lands against A, and
A’s lands of equal value against B the vouchee, who hath none; and yet
this was judged a good bar to the entail, upon the possibility that
B might purchase lands equivalent, and so A, and the other persons
entitled in tail, might receive satisfaction. And that is what, under the
name of a common recovery, is grown to be one of the common assurances
of the realm; and though, for about seventy years, the justice and
conscientiousness of it was disputed, yet being constantly asserted
as law by the judges, and taken notice and approved of by acts of
parliament, it is the now most effectual bar to an estate tail. To speak
candidly about these recoveries, as to their application to this purpose,
they were notorious breaches of the statute _De donis_, under the colour
of legal proceedings. Yet what could be done? the law could not be
repealed; for all members of parliament had their estates entailed. It
could only be eluded, and both for the king and all who had not estates
tail, it was necessary it should[178].

Another consequence of estates becoming hereditary, and, in respect of
military tenures, a fruit of seignory, is _wardship_, or guardianship.
For it must now frequently happen, by the death of ancestors, that
estates would descend to heirs incapable to do the service, to manage
their affairs, or to educate themselves. It was necessary, therefore,
that the law should make provision both for the doing the services, and
the benefit of the heir, until he arrived at a proper age. And the law
proceeded in a different manner, as the lands were holden either by
knights service or socage; tenure, in the first case, having in view
principally the defence of the realm; in the second, the benefit of the
heir. With respect to military tenures, the time of age was twenty-one
years compleat; at which time the law presumed the heir was qualified,
both by skill and strength of body, to perform the part of a soldier. At
this age, therefore, he was out of the ward. If his ancestor died before
he had attained that age, his lord had by law the guardianship both of
his lands and person till then, and took the profits of the lands to
himself for his own use, being only obliged to educate and maintain the
heir in a condition suitable to his rank and station. The reason of this
was, that it was a principle in the feudal law, as the profits and the
military duties were equivalents for each other, that he who was obliged
to the duty should enjoy the profits, which, in the first instance, was
the lord, he being obliged to answer the king, or other superior lord,
for all the military duties comprised in his seignory.

He had the guardianship, likewise, of the heir’s person; first, that,
because of the bond under which he lay to the tenant and his heirs,
the law had entire confidence in the care he would take of the minor;
secondly, because the lord was certainly well qualified to instruct
him in the art of war; and thirdly, his own interest obliged him to
do this carefully, that his vassal might be enabled to perform to him
the future services. But this, as to the person, is to be understood,
if the minor’s father was not living. For if he was, he was guardian by
nature, and intitled to the custody of the person, as in the case put by
Littleton, where there is a grandfather by the mother’s side, tenant,
by knight service, father, and mother, and son; and the mother dies,
leaving the grandfather, and then the grandfather dies, and his land
descends to the son of his daughter, then a minor, the minor’s father
still alive; here the guardianship shall be divided. The grandfather’s
lord shall have the ward of the lands, and the father shall have the ward
of the person of his minor son. So it is if a lord gives land in fee by
military service to the son of A, by which son’s dying without issue the
lands descend to his brother, a minor. Here A, the father, shall have the
custody of the body, and the lord, of the lands. There was another case,
likewise, wherein the guardianship, I cannot say was divided, but where
the wardship of the person was extinct. Antiently, although twenty-one
years was the regular time, yet, if the minor was knighted by the king,
and thereby adjudged capable of service in person, the guardianship
ceased. For here, the legal presumption of unfitness was refused by a
positive act of the king to the contrary. But the lords obtained an act
of parliament, that, notwithstanding such knighthood in minority by the
king, the lords should retain the lands of the minor so knighted, till
he was twenty-one years of age; and so, after this act, the wardship of
the lands continued, though that of the person, who was by the king’s act
declared _sui juris_, was gone[179].

The term of twenty-one years, which I have mentioned was confined, as may
appear by what I said concerning it, to heirs minor, that were males; but
with respect to heirs female, minors, as almost all of our fiefs soon
after the conquest were feminine feuds, as the lawyers on the continent
call them, that is, descendable to females in the next degree, if males
in that degree failed, the limitation of minority was different. In these
fiefs it was impossible the woman herself should do personal service:
She was, therefore, allowed a substitute; but in time of minority, as
she could not appoint a proper one, the lord who was bound to perform
the service to his superior, had the lands in the same manner as in
case of an heir male. However, there was no reason that the minority of
a woman in wardship should continue so long as that of a man, namely, to
twenty-one years; for as the law of God declared that man and wife should
be one flesh; so the canon law, and ours in consequence, have decreed,
that, in law, the man and wife are one person, and that the husband in
all respects is bound to perform the obligations she lies under. Hence,
in case of a female heir, the term of the lord’s guardianship was, by the
common law, limited to fourteen years; by which time it was presumed she
might have a husband capable, and obliged to do the duty for her. But
this age of fourteen years was, in a particular case, extended, by act of
parliament, to two years farther. However, as the reason of that depends
on the lord’s right to the marriage of the heiress, it will be better to
defer speaking thereof, until we come to that head.

It remains to be mentioned, what was the nature of this interest the
lord had in the estate of this minor tenant, by virtue of the feudal
institutions, and so contrary to the general and the original tenure of
them. For, simply, the lord had only the propriety, and in consequence
the right of reversion or escheat, with the render of the services;
whilst the tenant had the possession and the profits. But, in this
case, all these seem to be blended, particularly the right of original
propriety and possession, so essentially to be distinguished in the
feudal system. For the lord has not only his propriety in right of his
seignory, but also the absolute possession, and permanency, or taking of
the profits, and the minor heir apparently nothing. However, the law, in
this case, did justice, and created in the lord a temporary interest,
an estate for years, namely, for the number of years till the majority
was compleated, contrary to all the other feudal maxims. For the fee and
inheritance of the estate remained in the minor, though he had neither
possession or profits. This interest of the lord could not be called,
at least with strict propriety, a tenancy for years, because, in this
case, the lord possesses the tenant’s lands, not the tenant. The lords
had therefore no tenure, but an estate for years, created by the law; and
that it was originally considered as an estate for years, or a chattle
interest in lands, appears from two things. First, that in the early
times, when alienations were scarce allowed, it was assignable over to
another, without any licence or form. Secondly, that instead of going to
the heir, in case of the lord’s death, during the minority of the ward,
it went to the lord’s executors, as other estates for years did[180].

As the lord was bound to his vassal and his heirs by the homage done
to him, it certainly followed, that it was not lawful for him to do,
during the wardship, any actual waste (that is, any permanent damage) to
the estate of his minor ward, or to suffer any to be done by others. He
was also obliged to repair and keep in condition, out of the profits of
the estate, the houses and improvements thereon; yet so great was the
misbehaviour of the English lords, soon after the conquest, that many
severe and restrictive laws were, from time to time, made in favour of
the minor wards[181].

In my next I shall treat of guardians in socage, reserving the article
of marriage, though it appertained to military service, to a place by
itself; as it was of a distinct nature, and went on its own particular
ground in a great measure.




LECTURE XIII.

    _Wardship in Socage—The nature and history of the incident of
    marriage._


Having, in the last lecture, given some account of wardship and
guardianship in chivalry, it will be necessary to mention what provision
the law made, now lands were become hereditary, for the benefit of a
minor, when lands, held in socage, descended to him. In the former
case, where war was the consideration, whose times and exigences were
uncertain, the law was obliged, on account of the public safety, to
consider the interest of the lord, who was to answer the duties to the
state, in the first place, and the interest of the minor only in a
secondary light. But in socage lands, which the lord had parted with for
certain fixed stipulated services, to be paid at particular times, the
lord had no claim to any more than them. Neither did the public interest
demand a military person for the guardian of one who was not to be bred a
soldier. A near relation, therefore, was the properest person to take the
wardship.

But in fixing who that person should be, the feudal and the Roman civil
law proceeded on different principles; the latter fixed upon the nearest
relation that was inheritable to the estate, but the former entirely
excluded all relations that might inherit. Thus, if the land descended
on the side of the father, all relations of the father were incapable,
and the mother, or the next of kin of her blood, was the guardian. And
this is a difference wherein the English lawyers greatly triumph over
the civilians. For to give the care of a minor to one who might be his
heir, is, they say, _quasi agnum lupo committere ad devorandum_. But
this very reason strongly proves the general wickedness and barbarity of
the people, who were obliged to establish this rule at that time. Both
laws were equally wise, because adapted each to the circumstances of the
nations that made them. The Romans, who were a polished civilized people,
among whom murders were infrequent, were not afraid to trust the person
of the minor to the care of one who might be his heir; and such an one
they preferred on account of the preservation of the estate, which they
presumed would be taken best care of by him to whom it might descend. The
northern nations, on the contrary, who were barbarians, and murderers,
were obliged to sacrifice the consideration of preserving the estate, to
the personal safety of the infant, and therefore committed both to one
who could have no interest in the succession.

The guardian in socage differed from guardian in chivalry in this,
that he was but in the nature of a bailiff, or trustee, for the minor,
to whom, at the expiration of his guardianship, he was obliged to
account, upon an allowance of all his reasonable costs and charges.
Another difference was, as to the _term_ of the guardianship. For this
guardianship expired at the ward’s full age of fourteen; at which time,
if he pleased, he might enter and occupy the lands himself, or choose
another guardian; for as at that age he had discretion enough to consent
to marriage, so did the law suppose he had sufficient perhaps to manage
his own affairs, at least to choose the properest person for that
purpose[182].

But put the case, Suppose that the minor doth not enter, or choose
another guardian, but that the old one continues to receive the profits,
what remedy shall the minor have for those received after his age of
fourteen? Certain it is, he cannot bring an action of account against him
as guardian; for guardianship is expired; and yet the infant’s discretion
cannot be presumed so great, as to be perfectly acquainted with all
his legal rights, and therefore his negligence shall not be imputed to
him. The law in this case remedieth him by a reasonable fiction, and
supposeth, though the fact hath not been so, that the minor had appointed
him to receive the profits of the estate, and therefore gives an action
of accounts against him, not as guardian, but as bailiff or receiver.

But suppose the next of kin neglects the guardianship, and any other
person of his own head enters, and takes the profits, what remedy shall
the minor have? In this case the law will not suppose him that enters to
be a wrong doer, an _abator_, as the law would call him, if the heir was
of full age; but will rather presume his act proceeded from humanity and
kindness, to supply the neglect of the proper guardian; and therefore,
though he is not appointed guardian, either by the act of law or
otherwise, he shall be considered as such, and the heir, after fourteen,
shall have an action of account against him, and charge him as guardian.
So strictly was the guardian in socage accountable to his ward for the
profits, that, if he married him within the age of fourteen, he was not
only accountable for the money he received in consideration thereof (as
it was the practice in those days to sell the marriage of wards) but if
he received none, he was accountable out of his own fortune for what he
might have received on that account, unless the match itself was equally,
or more beneficial.

The next consequence of fiefs becoming hereditary, and which followed
from the wardship, is the _marriage_ of the ward by military service,
which belonged to his lord, and was one of his beneficial fruits of
tenure; and although this part of our law is now antiquated by the
abolishing of knight-service, it is necessary, for the understanding our
books, to have at least a general notion of it.

This right rose originally, on the continent, from fiefs becoming
descendible to female heirs, and was grounded upon the same principle
as the rule which forbad vassals to alien without their lords consent.
As every feudal kingdom, at this time, consisted of a number of
principalities, under their respective lords, who were often at war
with each other, the tenant could not alien without his lord, lest he
might introduce an enemy into the feudal society. The like danger was
there if a female heiress was permitted to marry at her own pleasure, or
could be disposed of by her relations without the lord’s consent. And at
first, it seems, that this rule was general to a woman heiress during
her whole life; but if so it was, it soon abated, and was confined to
the marriage of females in wardship, and to the first marriage only.
The law of Normandy says, if a woman be in wardship, when she shall be
of an age to marry, she ought to marry by the counsel and licence of
her lord, and by the counsel and assent of her relations and friends,
according to what the nobleness of her lineage and the value of her fief
shall require. So that antiently the lord had not the absolute disposal
of her, nor had he any thing to say to the marriage of males; for though
he should marry an enemy, the fief was not thereby put into subjection
to her, but she into the subjection of the vassal. And this rule, that
the lord’s consent should be had, was not intended for him to make an
advantage of, but was a mere political institution, for the safety of
the community. Such was the law introduced into England at the conquest.
However, it was but natural to expect that avaricious lords would take
advantage of their negative voice, to extort money for licence, and by
that, and their influence over their vassals, to arrogate the sole power
to themselves. That William Ruffus acted thus, we may well learn from
the remedial laws of his brother and successor Henry the First; _Si quis
baronum, vel hominum meorum, filiam suam nuptum tradere voluerit, sive
sororem, sive neptem, sive cognatam, mecum inde loquatur; sed neque ego
aliquid de suo pro hac licentia accipiam, neque ei defendam quin eam det,
excepto si eam jungere velit inimico meo_. Another is, _Si mortuo barone,
vel alio homine meo, filio hæres remanserit, illam dabo consilio baronum
meorum_[183].

Notwithstanding these laws, the mischief still gained ground, and the
lords extended their encroachments, until they not only got the absolute
disposal of female, but of male heirs also. When this happened, is hard
to determine precisely. That it was after Glanville, who wrote in Henry
the Second’s time, and before Bracton, who wrote in Henry the Third’s,
is plain: Mr Wright’s conjecture seems probable, that it grew up in
Henry the Third’s time, when the barons were very powerful, from a
strained construction of Magna Charta, which says, _Hæredes maritentur
absque disparagatione_; where the general word _hæredes_ should have
been construed to extend only to such heirs as by the former law were
marriageable by their lords, namely, female ones; but both king and
lords, taking advantage of the generality of the expression, claimed and
usurped that of the son’s also[184].

However, it is rather to be presumed that this incroachment began
earlier; since in the statute of Merton, the twentieth of Henry the
Third, we find these words: _Quia maritagium ejus qui infra ætatem est_
(speaking of a male) _mero jure pertinet ad dominum feudi_. From whence
I rather gather the practice was earlier than Magna Charta, which was
not above thirty years before, and confirmed by its interpretation. But
if, in this respect, the vassals were encroached on by their lords, in
another, they met with a mitigation in their favour. For the consent
during the father’s life, went into disuse, and every man was allowed
to marry his son or daughter at his pleasure; and this with very good
reason. For as the prohibition was for fear of introducing an enemy, of
this there was no danger where the marriage was by the father, a vassal,
bound by homage and fealty to do nothing to the prejudice of his lord.
Thus was right of consent to marriage, introduced first for political
reasons, turned into a beneficial perquisite, and fruit of tenure, for
the advantage of the lord; and notwithstanding all the laws made to
regulate it, as constantly abused; so that the evils thence arising were
not among the least causes for abolishing military tenures[185].

The penalty for marrying without consent was originally, as all breaches
of fealty were, absolute forfeiture. But the rigour of the feudal law
subsiding, lighter penalties were introduced. By the sixth chapter of
Merton remedy is given to the lord, whose ward, under fourteen, has been
taken away by any layman (and a later act extends it to the clergy)
and married, by an action against the _raptor_ or _ravisher_, as he is
called, for the value of the marriage, besides imprisonment and a fine
to the king. If the ward himself, after the age of consent, or fourteen,
should, to defraud his lord, marry himself, he, as guilty of a breach
of fealty, is more grievously punished than a stranger. For this act
provides, that the lord, in that case, shall retain the lands after the
full age of twenty-one, for so long a time as, out of the profits, he
might receive double the value of the marriage[186].

The next, the seventh chapter, is in favour of the ward, and an
inforcement of that chapter of Magna Charta which forbids disparagements
without inflicting any penalty. It enacts, that if the minor under
fourteen is married by his Lord to his disparagement, upon the plaint of
his relations, the lord shall lose the wardship; and the profits of the
lands, till full age, shall be received by the relations so complaining,
and laid out for the benefit of the heir. But if the marriage was after
fourteen, the age of consent, it was no forfeiture, on the maxim,
_Volenti non fit injuria_. This act goes farther in favour of the
minor; for it gives him a liberty of refusing any match the lord should
offer him. But to prevent the lord’s entirely losing the benefit of the
marriage by the refractoriness of the ward, it enacts, in this case, that
if he refuses a convenable marriage, the lord shall hold the lands after
twenty-one to his own use, until such time as his late ward shall pay him
the single value thereof.

The twenty-second chapter of Westminster the first confirms and repeats
the sixth of Merton, and farther obviates a fraudulent practice of the
guardians of female heirs. I observed that their wardship by law ceased
at the age of fourteen, by which time they might have husbands capable
of the service: but some lords, _for covetousness of the lands_, as the
act expresses it, would not offer any match at all to their female wards,
under the pretence of their being incapable of the services, in order to
hold on the lands for an unlimited time. This act so far alters the old
law, that if the heiress arrives unmarried at the age of fourteen, the
lord should hold two years longer, that he may have time to look out for
a proper match to tender her, within which time, if he neglects it, he
loses all right to her marriage. On the other hand, if the heiress will
refuse a suitable offer, the lord is impowered to retain the lands until
twenty-one, and so much longer, until he has received out of the profits
satisfaction for the value.

The ravishment of wards from their lords continuing, notwithstanding
the statute of Merton, the thirty-fifth of Westminster the second gave
the writ called _Of ravishment of ward_, and assigned a more speedy and
beneficial method of proceeding, and added to the punishments by the
former act of Merton inflicted on offenders[187].

But notwithstanding all these regulations concerning marriages, and the
other many acts made to prevent misbehaviour of lords to the lands of
their wards, the source of the evil remained in the wardship itself;
and the evils constantly followed, insomuch that for hundreds of years,
it was one of the heaviest grievances the subject suffered. Many were
the wastes done to estates; many the heirs married contrary to their
inclinations, and frequently unsuitably. The grievances fell heaviest
on the wards of the crown. There were always a set of needy or greedy
courtiers ready, if they had favour enough to beg, or otherwise to buy at
an under rate, the wardships of minor tenants, of which they were sure
to make the most advantage; marrying the most opulent heirs to their
own children, or relations, or extorting extravagant sums for their
consent. A remarkable instance of this happened so lately as Charles the
First’s time, in the case of the earl, afterwards first duke of Ormond.
A long suit had subsisted between the lady Preston, grand-daughter and
heiress at law of Thomas earl of Ormond, and her cousin, the heir male
of the family, for that part of the estate her grandfather had entailed
to go with the title. At length the relations on both sides thought the
best expedient to end this intricate dispute, was by uniting the young
relations, who likewise had conceived a strong affection for each other;
yet, although the king approved highly thereof, did the earl of Warwick,
who was grantee of the young lady’s wardship, extort ten thousand pounds
before he would consent to a marriage on every account so desirable.

King Henry the Eighth, finding how grievously the subject was oppressed,
and how much the crown was defrauded, erected, by act of parliament, a
court called the _Court of Wards_, to take proper care of minors, and to
answer in a moderate manner for the profits to the king. This for some
time was a considerable alleviation of the load; but in the weak reign
of James the First, who was governed by his favourites Somerset and
Buckingham, this court was converted into an engine for raising their
families, by providing their numerous and indigent relations with the
greatest heiresses, to the great discontent of the antient nobility,
who saw the most opulent fortunes suddenly raised by private gentlemen,
dignified by titles for the purpose. And great were the extortions
likewise for the licenses that were granted to some to marry at their
pleasure. The only advantage the public reaped at this time from this
right of disposal in marriage was, and it must be allowed to be a
considerable one, the opportunity it gave the crown of breeding the heirs
of many families in the reformed religion; and in justice, it must be
owned, this was not neglected.

In the eighteenth year of this last reign, it was moved in parliament to
purchase off these heavy burthens of ward and marriage, by settling an
handsome yearly revenue in lieu thereof on the crown. But the attempt
did not succeed at that time, probably owing to the courtiers opposition
to it, from their own interested views. In Charles the First’s reign,
this court was one of the great objects of complaint. At length, on
the restoration, the king consented to turn all the military tenures,
except grand serjeanty, into socage, in consideration of an hereditary
revenue settled on him, and so all the fruits thereof ceased, and the
feudal system, which had for ages, from time to time, undermined the
constitution, fell to the ground, though very many of the rules of
our law, founded on its principles, still retain their force[188]. In
this kingdom the equivalent given for this abolition was the tax of
hearth-money, in which, it must be owned, the king, and those who had
been his military tenants, were a little too sharp for the rest of the
people; for by the improvements of the kingdom, that revenue is every
day increasing to the crown, and almost the whole burthen is thrown on
the lower class, who before felt none of the oppression, or weight of
wardship and marriage.




LECTURE XIV.

    _The rules of descent in the old feudal law in regard to the
    sons of the last possessor—Representation and collateral
    succession—Feminine feuds._


It is now time to see how inheritances descended by the feudal law,
where, in the original grant, there were no particular directions to
guide the descent; for in such case the maxim of the feudal law holds,
_Tenor investituræ est inspiciendus_; or, as the common law expresses it,
_Conventio vincit legem_. The first rule then was, that descendants of
the first acquirer, and none others, were admitted. The reason was, that
his personal ability to do the duties of the fief was the motive of the
grant, together with the obligation his fealty laid him under to educate
his offspring to the lord’s obedience, and to qualify him for his service
in war. It was observed, therefore, it should go to the first purchaser’s
collateral relations, whom he had no power to bind by his acts, and over
whose education he had no influence. I mean where it was not particularly
otherwise expressed; for then the collaterals succeeded, as the merit of
their blood was part of the consideration; not so properly in the right
of heirs, as by way of remainder, under the lord’s original grant[189].

The next thing to be enquired is, since the descendants alone inherited,
whether all, or which only of them inherited. And here the females
and their descendants, unless they were specially named, were totally
excluded, not merely for their personal incapacity, but lest they should
carry the fief to strangers, or enemies; and therefore, where they were
admitted, they were obliged to marry with the consent of the lord. The
third rule is, that, unless it was otherwise stipulated, all the sons
succeeded equally to the father. This was the antient feudal law, and the
law of England in the Saxon times, the relicks of which remain in the
gavel kind of Kent, and remained in the last century in many, if they
do not still in some of the principalities of the empire. In France,
during the first, and a good part of the second race, we see the kingdom
divided among the sons. There are not wanting instances of the same
among the English Saxons; and the Spaniards continued the practice now
and then even in later ages. But the frequent wars, occasioned by these
partitions, at length abolished them, and made kingdoms to be considered
as indivisible inheritances. In imitation of the sovereignty, the same
alteration was introduced into the great seignories, which made, at
this time the principal strength of the kingdom, and which, now the
crown was become indivisible, would, if liable to partition, become so
inconsiderable in power, as to be at the mercy of the king[190].

The inconveniencies attending the lower military tenancies which still
continuing divisible, were crumbled into very small portions, and, of
course, must have fallen into indigent hands, were such, that these
also, for the most part, became descendible to a sole heir. But this,
however, was not effected but by degrees; for in the reign of Henry the
First, though a single knight’s fee was not divisible, yet when a man
died seized of more than one, they were distributed among his sons as far
as they went; but in his grandson’s reign the general law was settled
in favour of a single heir, in the same manner as it has stood ever
since[191].

But it remains to be enquired which of the sons, in case of an
indivisible inheritance, should be this sole heir. In the antient and
unsettled times, the law made no particular provision; but, as the lord
was the head of the military society, and bound to protect it, it was
left to his option to fix upon the properest person to do the duties:
and an instance of the exertion of this power we have in England so
late as the reign of Henry the Second, who gave the entire military
lands of Geoffry de Mandeville to his son by a second ventre, to the
exclusion of the eldest by a former wife, for this reason, _eo quod
melior esset miles_. A trace of this still remains in the case of a
peerage, descendible to heirs general, that is, male or female, falling
to daughters. Here the fief being indivisible, the king may appoint the
peerage to which he pleases, and until he doth so, it is not indeed
extinguished, but lieth dormant, being what is called _in abeyance_, or
the custody of the law. But at length this uncertainty was removed,
and the eldest son being generally the best qualified, and consequently
almost always chosen, obtained the right, by degrees, in exclusion of his
brethren, or the choice of the lord[192].

But it will be inquired with respect to kingdoms, who had no superior
to make the choice, how was it to be determined after they became
indivisible, which of the sons was to succeed, seeing the absolute right
of primogeniture was not yet established in the opinions of men. I
answer, the usual practice was for the king himself, before his death, to
appoint the successor; generally with the consent and approbation of his
states, and sometimes merely by his own act, which was almost universally
allowed, and obeyed by the people. But if no such disposition had been
made, the states assembled, and chose the person themselves; and these
appointments generally falling on the eldest son, paved the way for
lineal hereditary succession, though the case was not always so.

In France, Hugh Capet, to go no higher, in order to prevent competition,
caused his son Robert to be crowned, and sworn allegiance to in his
lifetime; but Robert neglecting the same precaution, Henry his younger
son was chosen in preference of the elder, who was obliged to content
himself with the dutchy of Burgundy. And if Henry was an usurper, so
were all the succeeding kings of France for three hundred years, till
that family of Burgundy failed. Henry followed his grandfather Capet’s
example, and so did his successors for about an hundred years, and
then, the notion of the lineal succession of the eldest son being fully
established, the custom of crowning the son in the father’s life, was
laid aside, as unnecessary.

In England the practice was antiently the same. William the Conqueror,
though he set up a claim under Edward the Confessor’s will, yet as that
never appeared, a formal election by which he was chosen, extorted indeed
by dread of his power, but apparently free, was his title. When pressed
to declare a successor, he only signified his wish that William might
succeed, but declared he would leave the people of England as free as he
had found them. William accordingly was elected in prejudice of his elder
brother Robert, and upon his death, occasioned by an accident, Robert
was again excluded, and Henry the First, the third brother, chosen. Henry
was willing to have the course of descent secured in his offspring; and
for this purpose proceeded in the method that had been so successful
in France, namely, by causing his son Henry to be crowned, and sworn
to. But this latter dying childless in the lifetime of his father, king
Henry caused his daughter Maud to be acknowledged successor, and the
oath of eventual allegiance to her to be taken by his people. However,
this project did not succeed. No nation of Europe had yet seen a crown
on the head of a female; and Spain was the only country that had ever
had a king who claimed in a female right. The majority, therefore, upon
Henry’s death, looked upon their oath as inconsistent with the nature of
monarchy, and void, and in consequence chose Stephen, who was the son
of Maud’s aunt, and grandson of the Conqueror, whose whole male issue
was now spent. There was, however, a large party in the kingdom who
paid a greater veneration to the obligation of their oath, and adhered
to Maud. Hence was this reign a continued scene of civil war, until all
sides, being wearied out, by mutual consent, ratified by the states of
the kingdom, Stephen was allowed king for life, and Maud’s personal
pretensions, as a woman, being set aside, her son, Henry the Second, was
declared, and sworn to, as eventual successor[193].

Henry the Second followed the example of his grandfather, and had his
eldest son Henry crowned; but that ungrateful prince conspiring and
rebelling against him at his death, which likewise happened in the
lifetime of his father, the old king fearing the like consequences,
refused to crown his next son Richard; who conscious of his own
ungrateful conduct, and suspecting that this refusal proceeded from
partiality to John, the youngest and favourite son, stirred up those
commotions and rebellions which broke his father’s heart. Richard was
the next heir, and did succeed, but not merely in the right of next
heir; for he assumed no title but that of duke of Normandy, until he was
elected and crowned. The title of John was notoriously by election, and
his son Henry the Third was the first who was introduced to his subjects
by the words, _Behold your king_, or words equivalent. Those few who
adhered to his father, immediately swore to him; but the majority, who
were disaffected, did not submit but upon terms, the restoration of the
charters.

From that day the lineal succession has been established, and the crown
is vested in the successor upon the death of his ancestor, and the maxim
prevailed of the king’s never dying; whereas before, the crown was in
abeyance, till coronation, and the date of the king’s reign was taken,
not as now, from the death of the former monarch, but from the day that
the succeeding one was crowned. Henceforth coronation became a mere
ceremony, though the form of an election is still continued in it. I
have been more particular in this detail, in tracing the origin of the
hereditary descent of the crown, to shew how false in fact, as well as in
reason, the notion is of its being founded either on divine right, or on
any law of man coeval with the monarchy[194].

Having laid down the rules of descent in the old feudal law, in regard
to the sons of the last possessor, it will be proper next to mention how
far it admitted representation, or collateral succession; for at first
both were excluded. If a man had two sons, one of which died before him,
leaving a son, the grandson could not succeed to his grandfather, but
the uncle was sole heir. This was grounded partly on the presumption
that the uncle was of more mature age, and better qualified to do the
service; but this could not be the only reason, for the rule was general,
and held where the grandson was of full age and capacity. We must have
recourse, therefore, to a farther cause, which was also the same that,
in those old times, prevented collateral descents; for if a man had two
sons, by the old law, the estate was divided between them. If one of
these died without issue, the brother did not succeed to the share of
the deceased, but it reverted, as an escheat, to the lord. The reason of
both these was, that he that claims by descent, must claim through the
last possessor, and derive his right from him; and that right arose from
the supposition of his being educated in the fealty of the lord, that
is, by the last possessor who had sworn fealty. Therefore the grandson,
being educated under the _patria potestas_ of his father, who, dying
before the grandfather, had never taken the oath of fealty, was excluded
the succession, as not trained up by a real tenant; but the uncle was
admitted to claim from the grandfather, the tenant under whom he was
bred[195].

This rule was of some advantage to the feudal system at that time, as it
frequently prevented the too great crumbling of fiefs, when almost all of
them were divisible. For the same reason a brother could not succeed to a
brother, even in a paternal fief, because he was not educated by the last
possessor that had done fealty: and though this seems very unreasonable,
as he had been bred in the fealty of the lord, namely by the father, yet
this rule continued for ages, being greatly for the advantage of the king
and the great lords, in regard to their escheats; as every failure of a
lineal descent occasioned them to happen. Neither was it thought severe
in those early ages by the tenants. As all benefices were originally for
life, it was a great advantage to have them made descendible even under
these strict limitations[196].

At length the necessity of Charlemagne’s grandsons, who had parted the
empire, and were in eternal broils, extorted from them, in France, a
grant of the grandson’s succeeding in his father’s share, by way of
representation, in imitation of the civil law, and also of brothers
succeeding to brothers in a paternal fief, but not in a new one. And
about an hundred and fifty years the like necessity of the emperor
Conrad, who was embroiled with the Pope, procured the same law for
Germany and Italy[197].

The extension of the right of collateral succession beyond brothers
grew up by degrees, not from any positive law. It was first extended to
uncles and cousin-germans, provided it was a fief descended from the
grandfather; afterwards to any the next cousin, to the seventh degree,
descended from the first purchaser; and at last to any, however remote,
who could prove their descent from the first purchaser. This was the rule
in ancient inheritances; but with respect to new ones, lately acquired,
there grew up a practice of granting them _as ancient_ ones; _feudum
novum, ut antiquum, datum_. Here the fief, though really new, was, by
means of this grant, supposed to proceed from some indefinitely remote
ancestor, at any distance; and therefore any one, who could prove himself
descended from a common ancestor of the last possessor, was admissible,
and he that was nearest by the rules of succession was preferred. In
this case, therefore, the old rule of requiring a proof, that the person
claiming as heir was a descendant of the body of any ancestor of the last
possessor, would be absurd, as defeating the tenure of investiture. Any
ancestor _pro re nata_ might be supposed the first purchaser, to support
the intention of the donor, in his directing it to be considered as an
ancient fief, although in fact modern. So in this case, if the fief was
masculine, any male relation, descended from male blood entirely, was
inheritable, even up to Adam, I mean, if he could prove his descent; but
females, and their descendants were excluded[198].

If it was descendible to females, either by the particular terms of the
grant, or by the general law of the country, then, as it was supposed to
descend from any lineal ancestor _pro re nata_, that ancestor might be
a female, and the descendants of females, and they themselves might be
admissible. The rule then was, to establish in this case of a fictitious
descent, the same regulations as in the case of a real one. But here the
root from whence the right of descent was to spring, was inverted; for
as there was no real ancestor, an original purchaser, the person last
seized, that is possessed of the fee, was the person to be considered. As
in the old and common case of inheritances descending, the reckoning was
downwards from the first acquirer; in case of collaterals, when they were
admitted, you begin to reckon lineally upwards, and at every step enquire
for collaterals descended from that lineal ancestor you are upon at the
time[199].

A man purchases _feudum novum, ut antiquum_, and dies without heirs of
his body. This feud is, by the constitution of it, presumed to have
descended from some of his ancestors. To find out who is that ancestor,
it was likely to have descended from, you must look at the law of
descents: the father, in the first place, is supposed the person. His
children, that is, the brothers or sisters, or their descendants, in the
first place; if none of them, the grandfather by the father is supposed
the person; then the grandfather’s descendants. The uncles and aunts
by the father, and their descendants, succeed in the second place. If
none of them, then the great grandfather’s by the grandfather and father
descendants, the great uncles and aunts, and their posterity; and if
there are none of them, you still go a step higher in the male line,
till you can trace it no farther. But now you begin to invert the rule
of tracing up in the male ancestors, and so downwards, and trace up to
the female ancestor of the males, as supposing the estate descended from
her, or her ancestors. For instance, I have supposed the descendants of
the male line have failed in the great grandfather. His wife, therefore,
the great grandmother, is supposed the first purchaser; for, upon account
of the probability of the inheritance coming through males, I trace up
to her through the father and grandfather; her heirs, therefore, shall
succeed, first, lineal, then collateral, in the same manner as if the
estate had descended from a remote ancestor of her’s. If none such can be
found, we descend another step, namely, to the grandmother by the father,
and suppose the estate to have come from her line; and then heirs, first
lineal, then collateral, succeed according to their several ranks. If
none of these, so that there is no kindred on the side of the father, the
presumption is, that this supposed antient feud came from the mother’s
family, and therefore the heirs of her male ancestors are to be traced
up, and discovered in the same manner; and whenever they fail, the heir
of the most remote female ancestor, all through males; and failing them,
the heir of the next most remote, and so on, until the blood of the
mother is spent; and then the estate, for want of heirs, reverts to the
lord, of whom it is holden.

Such is the rule of descents of new purchases granted as if they had
been ancient inheritances; but this rule was, on the Continent, and
anciently in England, confined to such grants, and them only, wherein
this clause appeared in the investiture. But in the reign of Stephen, his
necessity of gaining adherents, and the same necessity of his competitor
Henry the Second, occasioned so many grants of this kind to be made,
some originally, and others on the surrender of old ones, that it hath
since become the common law of England, that purchases, that is, new
acquisitions, are descendible to any relation, however remote[200].

It will be necessary to say something as to _feminine feuds_, which
are a deviation from the strict principles of the ancient law, which
excluded them and their descendants entirely. They first arose from the
woman’s being the principal consideration of the grant; as when a lord
gave lands in marriage with his daughter, sister, niece, kinswoman, or
any other female: here the lands being partly given in consideration of
the female blood, it was reasonable they and their descendants should
be inheritable. But this was still an exception to the general law, and
confined to those grants wherein it was mentioned, until the number
of those grants, at length prevailed to have this order of succession
considered as the general law, and the succession of males remote,
in exclusion of a nearer female (as in case of tail male) considered
as an exception. The monarchy of France, however, and of many of the
principalities of Germany, have retained the antient feudal law, in
absolutely excluding females and their descendants.

The descent of imperial crowns to females, was of a much later date,
than that of lower fiefs: for here a manly capacity was looked upon
as indispensibly requisite. The first step was admitting a male
representative for them, a husband or a son. This began in Spain.
Pelagius, who was of the blood royal, having gathered a few of the
Spanish fugitives together, after the Moorish conquest, founded a pretty
monarchy in the mountains of Asturias. His son Favila dying without
issue, the crown was given to his daughter’s husband, and this continued
the rule for many ages, where males failed. But where the son of such
female heir was of sufficient age to mount the throne, he of course
excluded both mother and father. At length, in the thirteenth century,
Europe, for the first time, saw a woman solely invested with royalty,
Joan the first of Naples; for Henry the first of England’s project in
favour of his daughter Maud, as we have said before, had miscarried.
Margaret of Denmark, Sweden and Norway, Joan the second of Sicily, and
Isabella of Castile, followed in the next century. In the following
century came Mary and Elizabeth in England, and many since in all parts
of Europe; so that at present the monarchies of Europe are descendible
to females in general, if we except France, and several but not all of
the principalities of the empire. Bohemia and Hungary have received a
queen in the person of the present empress in this present century,
but so inveterate are old customs and opinions, that when her faithful
Hungarians resolved to assist her to the last extremity, it was by
saying, _moriamur pro rege nostro Maria Teresa_, not _pro regina_[201].




LECTURE XV.

    _The difference between allodial and feudal lands—The
    restrictions on the feudal law—The decay of these—The history
    of voluntary alienations._


One great and striking difference between allodial and feudal lands
consisted in this, that the former entered into commerce. They were
saleable or otherwise alienable, at the will of the possessor, either
by act executed, and taking effect in his lifetime, or by will, to take
effect after his death. They were likewise pledges to the king for the
good behaviour of the owner, and therefore for his crimes forfeitable
against him and his heirs. They were also security to his fellow subjects
for the debts he might contract; and, therefore, by following the due
course of law, attachable and saleable, to satisfy the demands of a just
creditor[202].

In every one of these respects did fiefs, when they became descendible
inheritances, differ from them. The possessor was but an usufructuary,
and his power over his lands was checked and controlled by the interest
others had therein. These were the lord and the persons descended from
the first purchaser. The consent of the lord was absolutely necessary
to the tenant’s alienation, to prevent the introduction of an enemy or
unqualified person into the fief; but the consent of the lord alone
was not sufficient, if there were in being any persons entitled to the
succession. Thus if A. is himself the first purchaser of a fee, and hath
a son, his alienation, even with the consent of the lord, would hold
good only during his own life; but if he had aliened with the consent
of the lord before issue had, this should be valid, and bind the issue
born afterwards. For here the alienation was made by all the persons in
being interested in the land, and the former contract is by their mutual
act dissolved, nor is there any wrong done; for it is an absurdity to
say that a person not _in rerum natura_ can suffer wrong: the consent
therefore of the son, or sons, if one or more of them were in being, was
as necessary as the lord’s in this case.

If the lands descended from B. the first purchaser, to his son A.
before the introduction of collateral descent, the law was the same;
but when these were admitted, it varied for the same reason. A. could
not alienate with the consent of the lord and his sons, without the
consent also of all the collaterals intitled, that is, all the _agnati_,
or male descendants of B. for this would strip them of their right
of succession. If it descended from C. the grandfather, or from any
more remote ancestor, the consent also of all the male descendants
of the grandfather, or that remote ancestor was required, upon the
same principle. By this we see, it was next to an impossibility, that
an estate which had been any time in a family (so many consents were
required) could be alienated at all. However, there was allowed by that
law a transfer of the fief in a particular case, even without the consent
of the lord. This was called _refuting the fief_; it was a resignation of
it to the person who was next in order of succession. Here was no injury
done to the lord, or the _agnati_, because it went in the same manner,
and to the same persons, as if the refuter was absolutely dead, _&
quisque juri suo renunciare potest_. For the same reasons no testaments
of lands were allowed, except the lord, and all others concerned were
present and consenting; which scarce ever happening, it became a maxim of
the English law, that lands were not devisable by will.

Neither were the feudal lands originally forfeitable for the crimes
of the possessor for any longer time than his own life, if there were
persons entitled to the succession. But this rule of forfeiture was
afterwards extended to the issue of the criminal: for as the right of
succession depended much on the supposition the successor was educated
in the fealty of the lord, this presumption ceased where the father had
actually broke his oath of fealty. And at length, when the rule was
established, that every person must claim through him that was last
seized, and make himself heir to him, the delinquency of the predecessor
became likewise a bar to collaterals.

Feudal estates also were not liable to the debts contracted by the
feudatory. For if the creditor might have sold them for debt, a wide door
for alienation had been opened, by means of fictitious debts, contracted
by collusion between the creditor and vassal. Or even if they were honest
ones, the lords and the heirs would have been deprived of their right.
Neither could the creditor attach the profits of the land during the life
of the debtor; for if he could, an improvident vassal might so impoverish
himself, as to be incapable of the duties of the fief.

Such and so strong were the restrictions this old law laid on the
feudatory. But as times grew more settled, and the strictness of the
military system abated; as commerce increased, and with it luxury, the
propensity to alienation grew up, and became at length so strong, in
every country, as to be irresistable. And it is a speculation not only
curious, but very useful for the students of our law, to observe and
remark its progress in England[203].

The first step towards voluntary alienations arose from the practice of
sub-infeoffing. Originally, as I observed in a former lecture, although
the vassals of the king could infeoff, their vassals could not; but
at the latter end of the second race in France, when the power of the
crown was declined, and the great lords were in reality sovereigns,
acknowledging only a nominal dependance on the king, some of them, in
order to strengthen themselves, and to increase the number of their
military followers, allowed this privilege not only to their immediate
vassals, but to sub-vassals also, to an unlimited degree. And when
this practice was once begun, the other lords, for their own security
and grandeur, were obliged to follow the example. This practice of
subinfeuding contributed much to the power of the lords, and therefore
was by them encouraged. But though it was intended, at first, only to
extend to part of the vassal’s fief, the usage of subinfeuding the whole
gained ground, to the great prejudice of the heirs; when the terms of
subinfeudation were no better than those of the first grant; and of
the lords also, who thereby lost frequently their profitable fruits of
tenure, their reliefs, wardships, and marriages; which, with respect to
the lords, was remedied in the reign of Edward the First, by the statute
of _Quia emptores terrarum_ before mentioned[204].

In the mean time, free alienation was allowed in cities and boroughs;
partly because many of these were old Roman towns, and their lands and
houses allodial, and because those which were not so were founded by
lords on the same principles for the benefit of commerce, which could
never have flourished if a debtor had not full power over his property of
all kinds to satisfy his creditor; and if the creditor, in case he was
unwilling, had not power to compel him to sell for his just satisfaction.
Alienations, however, of one kind were permitted, namely, the founding of
monasteries, and endowing of churches. These, through the superstition
of the times, were looked upon as being equally beneficial to the feudal
society as subinfeudation, by engaging God in their interest; and even if
the lords and their heirs, who suffered by these grants, were willing to
dispute them, they were unable to contend with the omnipotent power of
the pope and the clergy; until at length the tyranny of the first, and
the avarice of the last, provoked both king and people to restrain them
by the acts against Mortmain. But no other alienations were yet allowed
without consent, as before mentioned[205].

In the reign of William Rufus a particular matter occurred, which
opened a way for alienation without the lords consent, and occasioned
a prodigious revolution in the landed property of Europe. This was the
madness of engaging in crusades for the recovery of the Holy Land. A
crazy friar returning from a pilgrimage to Palestine, where he saw
the Christians maltreated, began to preach up this expedition as the
most meritorious of works; and it is wonderful with what an epidemical
contagion the enthusiasm spread through all ranks of people. These
pilgrims, who assumed the cross, had no way of defraying the expence, but
by the sale of their lands, which their lords, if disinclined, dared not
to gainsay, or obstruct so pious a work. But indeed, most of them were
conscientiously affected with the same madness, as may be seen by the
great number of kings, princes, and lords, that beggared themselves in
these fruitless enterprizes[206].

The pope and the kings concurred in inflaming this superstition, but
from different motives. The pope did it out of ambition and avarice. The
former he satisfied by declaring himself the head of the expedition, and
thereby attaching to himself and his see such multitudes of redoubted
warriors by the strongest of bonds, conscientious superstition. And
indeed successors in that chair afterwards made very good use of this
example, by preaching up crusades against such Christian kings and
princes as disobliged them. But the more immediate advantage he received,
was the glutting his avarice by a proper sale of dispensations to such as
had rashly taken the cross, and afterwards found themselves unable, or
unwilling to fulfil the obligation. The reason that induced the kings of
Europe to promote this spirit, I mean such of them as were not possessed
with the frenzy themselves, was the hope of abasing their too great and
powerful vassals, which would naturally follow from the alienation of
part of their lands, to equip them for the expedition; and a desire to
facilitate the partition of these great seignories among females, when
the males were so frequently and miserably slaughtered[207].

So many were the alienations of this kind, and so long were they
continued, that it is no wonder that the interest of the lord and the
heirs began to lose ground in the opinions of the people, which proceeded
so far, as that, in the other cases, the lord, on the payment of a
moderate fine, either before or after, was looked upon as obliged to
consent to the alienation. Let us now see how the liberty of alienation
gained ground, particularly in England.

In Henry the First’s time, a man was allowed to alienate his purchase,
but not an estate that came by descent. This law says, _Acquisitiones
suas det cui magis velit; si Bocland autem habeat, quam ei parentes sui
dederint, non mittat eam extra cognationem suam_[208].

This liberty of alienation of purchases is not to be understood
generally, but only where the purchaser had no son; if he had any, it
may be a doubt whether he could alienate any part at this time. Certain
it is, he could not the whole, even in Henry the Second’s time. For thus
Glanville lays down the law: _Si vero questum tantum habuerit, is qui
partem terræ suæ donare voluerit, tunc quidem hoc ei licet sed non totum
questum, quia non potest filium suum hæredem cohæredare_[209].

The practice of alienating lands by descent grew up more slowly. At this
time a part only was alienable, and that not freely, to all persons, or
for any consideration generally; but only in particular cases, first to
the church in Frankalmoigne; secondly, to one who had done services in
war, or to the fief in time of peace; thirdly, for the advancement of his
family, as in Frank-marriage with his daughter, sister, niece, or cousin.
But every day this liberty gained ground, until at length the interest
of the heir entirely vanished, and that of the lord began, in military
tenures, to be little considered, and not at all in socage. However, in
Magna Charta some check was given to that kind of alienation of the whole
fief, that was carried on under the pretence of subinfeudation. _Nullus
liber homo det de cætero amplius alicui vel vendat de terra sua quam ut
de residuo terræ possit sufficienter fieri domino feudi servitium ei
debitum_; and this sufficiency was by practice explained to the half of
the fee[210].

No provision being made in these laws for the consent of the lords, they
generally, though not always, lost their fines; and a method likewise
was invented to obviate their refusal, by levying fines in the king’s
courts of record, in this manner. They used to suppose that the parties
had covenanted to alienate; and all writs of covenant (being actions of
public concern to the justice of the kingdom) were sueable only in the
king’s court; and by consequence this covenant to alienate was sueable
only there. The superior court then being possessed of the matter, as an
_adversary cause_, permitted the parties (on a fine being paid to the
king, in lieu of that which he would have received at the end of the
suit, from the party that failed) to make an amicable agreement or end of
the suit, which was done by the party sued coming in, and recognizing,
that is, acknowledging in court the right of the demandant to the land.
This method of conveyance by fine grew up, and still continues to be one
of the common assurances of the realm. For being transacted in a court of
record, it obviated the danger of future controversies between parties,
or any dispute concerning the execution of a deed, or the giving of
livery and seizin[211].

At length the statute of _Quia emptores terrarum_, already mentioned,
was made, as well to remedy the mischiefs the lords complained they
suffered by subinfeudation, namely, the loss of their fruits of tenure,
as to settle the doubt, as to the right of the tenants to alienate. This
statute entirely takes away the lords consent; for it gives the tenant
free power to sell, or alien the whole, or part of his tenancy, to whom
he pleased. But then, in favour of the lord, it establishes, that if
the tenant parts with his whole interest in the lands, namely, the fee
simple, the _alienée_ should not hold of the _alienor_, but immediately
from the alienor’s lord, by the same services, by which he, the alienor,
had holden. Thus were the lords, in one respect secured in their rights,
by the stopping the course of subinfeudations, and the tenants got a free
liberty of alienation without the consent of the lord, or paying any
fine to him. The king, however, not being named expressly in this act,
it was construed not to bind him, as I have said before; and his consent
was still required to the alienation of his tenants by military service,
according to the rule of Magna Charta; that is, if more than half was
alienated, so that the residue was deemed unsufficient to answer the
services. And this was put out of doubt by the statute _De prerogativa
regis_, made the 17th of Edward the Second, cap. 6.

The bent towards free alienation, however, was so strong as to occasion
a further mitigation so soon after, as the first year of Edward the
Third. For then it was provided, that if the king’s military tenant
alienated without licence, contrary to the late act, the land so
alienated should not be absolutely forfeited as before, but that the
king should be contented with a reasonable fine in chancery. These
compositions were sometimes dispensed with, to encourage the tenants to
attendance in hazardous expeditions; but, except in those singular cases,
they continued to be paid, until the reign of Charles the Second, when
knight’s service being abolished, they fell of course along with it[212].

Such was the progress the alienation of land made by conveyance _inter
vivos_; but the bequeathing lands by last will did not keep equal pace
with it. The first step made thereto was by laying hold of the doctrine
of _uses_, which about the time of Richard the Second was invented by
the clergy, to elude the statutes of Mortmain, by which their advance
from time to time was checked. As in every feudal grant there were two
estates, the absolute propriety in the lord, a qualified property,
namely, the possession and profits, in the tenant; now that they were
prohibited from taking the real tenancy, they cunningly devised a
means of subdividing the tenancy, by separating the profits from the
possession. When, therefore, a man had a mind to alienate to the church,
as he could not do it directly, he infeoffed a person to the use of such
a monastery. Here the feoffee and his heirs were, in the construction of
the common law, the proprietors, but, in fact, were bare trustees for the
monastery, for the use of which they received the profits. But it may be
asked, if the trustee or his heirs would not suffer them so to do, where
was their remedy. The courts of common law allowed of no such division of
estates at that time, nor would they have suffered such necessary laws to
be defeated by such collusion, though they had been acquainted with these
divided interests. They had recourse, therefore, to chancery, where, it
being always, to the time of Henry the Eighth, filled with a churchman,
they were sure to meet favour; and this court claiming an equitable power
to enforce persons conscientiously to fulfil their engagements, compelled
the trustee to support and maintain the uses.

These uses, once introduced, were applied to other purposes, particularly
to that I am now upon, the enabling persons to dispose of their lands
by will. The manner was thus: A. aliens his lands to B. to the use of
A. himself for his life, and, after his death, to such uses as he A.
should, by his last will and testament, appoint. B. was then compellable
in chancery, not only to suffer A. to take the profits during life, but
after his death to execute the directions of the will, and to stand
subject to the use of such persons as he appointed, and make such estates
as he directed. This method gained ground every day, as many persons
chose to retain their power of alienation in their own hands, to the last
moment of their lives, and to keep their heirs, or other expectants, in
continual dependance. And it at length grew so common, that in Henry the
Eighth’s time, it was thought proper to give leave, without going through
this round-about method, to dispose of lands directly and immediately
by will; of the whole of their socage lands, and of two thirds of the
lands holden by knight’s service. And this latter tenure being, after
the Restoration, turned into common socage, all lands, not particularly
restrained by settlement, are since become devisable; whereas, before
these laws, they were only so in particular places, by local custom. But
the statute that gives this power, in order to prevent frauds, expressly
orders such will to be in writing; whence arose a distinction, as to the
validity of wills of land, according as these lands had, or had not, been
before devisable by custom. For those that were so before, continued
devisable by will _nuncupative_, or without writing[213].

But the reduction of the will into writing was not found sufficient to
prevent forgery and perjury, and therefore the statute of frauds and
perjuries has added other solemnities, as requisite to pass lands by
will. It requires that it shall be signed by the testator, or some other
by his direction, and attested by three witnesses in his presence.

As to signing, it is insignificant where the signature is, whether at
the bottom, or the top, or in the context of the will, the name of the
testator, written by his own hand, in any place, being sufficient. And
the putting his seal to the will, though without his writing, has been
judged sufficient; for his seal is as much his mark, or sign, as his
handwriting. As to the attestation, the statute requires it to be in the
testator’s presence; but it is absolutely necessary, that he should look
on and see it done. Therefore, if it is attested in the room where he
lies sick in bed, with his curtains undrawn, this is a good attestation;
or if it is attested in a neighbouring room, and the door open, so that
he might possibly see it done, this is in his presence. But if the door
be shut, or the place so situated that he could not by any means see the
attestation, the will is void.

I shall next proceed to _involuntary alienation_ of lands, namely, for
payment of debts; and then give an account of the origin and progress
of _estates tail_, which were introduced to restrain this power of
alienation, and to restore, in some degree, the old law of keeping
estates in the blood of the first purchaser.




LECTURE XVI.

    _Involuntary alienations of feudal land—Talliage—Edward I.
    introduces the first involuntary attachment of lands—Statutes
    enacted for this purpose—Their effects—The origin of estates
    Tail._


The _involuntary_ alienation of feudal land, namely, the attaching,
and afterwards the selling it for debt, kept pace pretty much, but not
strictly, with the voluntary alienation already treated of. It first
began in cities and trading boroughs, which were either the remains of
old Roman towns, and where, consequently, the estates were allodial;
or else new towns, founded either by the kings, or other great lords;
or their demesnes, for the benefit of trades and arts within their own
districts. External commerce, during those confused times, was little
known or practised, the Barbarians of the North infesting the coasts
of the ocean, and the Saracens and Moors, those of the Mediterranean.
It was the interest, therefore, of every lord who had such a town on
his territory, to give it such privileges as would make it flourish,
and outrival the towns of like nature on the lands of the king, or the
neighbouring lords. For the natives of such towns were no part of the
feudal society, but were in the nature of socage tenants in the early
times, removeable, and consequently subject to be taxed, or, as our law
calls it, _talliagable_, from the French word _tailler_ to cut[214].

Talliage, consequently, was the cutting out a part from the whole of
the tenant’s substance, at the will of the lord. Yet this very power
of talliage, which the lords were not for a long time inclined to part
with, joined to their desire to make their towns flourish (that they
might be able to bear a greater talliage) put them under a necessity
of making such provisions, and granting such privileges, as were
necessary for the use of trade and commerce, and at length, in effect,
destroyed that absolute power of taxation, which the king and lords had
all along claimed and exercised, and which at first, for their own
interests sake (which no doubt they well understood) they had used with
great moderation. But after the discovery of the civil law at Amalfi
in Italy, in the reign of our Stephen, the kings of Europe, who found
therein an unlimited power of taxation in the emperor, were desirous to
establish the like authority in themselves; and for that purpose began
with oppressing their nobles with arbitrary scutages, or commutations
for military services; and the towns of their demesne with talliages,
not only arbitrary, but extravagantly beyond their power to pay without
ruin[215].

John of England was particularly famous for these extraordinary charges;
for though his title to the crown was, at that time, by many of his
subjects, and by others abroad, much doubted (as in prejudice of his
elder brother’s son Arthur then a minor) and his only just claim could
be but by parliamentary authority, the omnipotence of which was not
then so universally admitted, never was there a prince who carried his
prerogative to such extravagant and oppressive heights. This, at length,
occasioned the making _Magna Charta_; partly to assert and restore the
ancient liberties of the nation, which had been invaded; partly to alter
the old law, in such particulars as had been the engines of oppression.
One of the chief of these latter remedies was the taking away the right
of talliage, unless consented to in parliament. And now were the boroughs
emancipated, and the burgesses made freemen, which before they could
hardly be called, while their effects lay wholly at the mercy of the
lord[216].

In the next reign they advanced in importance; for as the treasure of the
kingdom was in their hands, they were sure to be favoured and courted on
both sides, during the fierce contests between the king and the barons.
And in the latter end of this reign it appears they had got admission
into parliament, which not a little increased their consequence. Edward
the First was a great favourer of merchants, and, for the security of
their debts, introduced the first involuntary attachment of lands by the
act called _statute merchant_, in the thirteenth year of his reign[217].

Before this time, no lands, except in boroughs by custom, were attachable
for debt, but only in the case of the king, who, by right of his
prerogative, could enter on the lands of his debtor, and receive the
profits, until he was paid. For the same political reason, the surety
also for a debt to the king, if he paid the debt, was allowed to come
in the king’s place, and enjoy the same privilege; but in all other
cases, the chattles were the only mark for the debt. This statute,
after reciting that merchants had fallen into poverty, for want of a
speedy remedy for recovering their dues, provides, that, in every city
or great town, which the king should appoint, there should be kept a
_recognizance_, that is, the acknowledgement or confession of debts due
to merchants, and of the day of payment; and that, in case payment was
not made at the day, they may, or should, on the application of the
merchant, and inspection of the roll, imprison the body of the debtor
until payment; and if no payment was made within three months, (which
time the debtor was allowed to sell his chattles or lands) his chattles
and lands were to be delivered to the merchant creditor, at a reasonable
valuation, or _extent_, as it is called; that out of the profits he might
satisfy himself. And in case the debtor could not be found within the
jurisdiction of the city or town, or had no chattles or lands therein,
then was the mayor to send into chancery the recognizance of the debt,
and the chancellor was to issue a writ to the sheriff in whose bailiwick
the debtor was or had effects, to act in like manner. And so greatly was
the merchant favoured, that tho’ this was but an estate for years (it
being certain, from the valuation, in what time the debt would be paid),
yet had he, with regard of maintaining actions to recover his possession
when deprived of it, the privileges of a free-holder given him, by
express provision in the act. Such was the favour shewn to merchants to
recover their just demands, nor were other creditors at this time left
totally unprovided for, in cases where there was a deficiency of chattles.

In the same year a law was made for attaching the lands of persons, in
favour of creditors who were not merchants, but in a different manner,
called an _elegit_. I shall here use the words of the statute, as
they are sufficiently plain, and easy to be understood. “When debt is
recovered or acknowledged in the king’s courts, or damages awarded, it
shall be, from henceforth, in the election of him that sueth for such
debt or damages, to have a writ to the sheriff of _fieri faciat_ of the
lands and goods” (which was the old remedy against the chattles) “or
that the sheriff shall deliver to him all the chattles of the debtor,
saving only his oxen and beasts of his plough, and the one half of his
land, until the debt be levied upon a reasonable price or extent.” After
this the act gives the same privilege as in case of statute merchant, to
the creditor dispossessed. From his making his election for the extending
the lands, the writ directed to the sheriff for that purpose got the name
of _elegit_. The difference of execution just mentioned shews clearly in
how superior a light the legislature regarded the interests of commerce.
That the debts to merchants, in whose prosperity the whole community was
concerned, might be levied as soon as possible, the security by statute
merchant gave possession of the whole of the land to the creditor; but
the writ of _elegit_ gave him possession of no more than one half.
Originally men could not alien lands at all. Afterwards they were allowed
to alien, but not beyond the half of the fief; and this principle or
maxim was strongly regarded at the time the writ of _elegit_ was framed,
which was before the statute of _Quia emptores terrarum_, which allowed
alienation of the whole. So that whatever stretches might be found
necessary, from the circumstances of merchandize, yet, with regard to the
kingdom in general, a small deviation only was made from the common law,
and the _elegit_ was allowed to affect no more by operation of law than a
man was supposed capable of alienating by his own deed[218].

Two reigns after, namely, the 27th of Edward the Third, when the mart, or
market of the standing commodities of England, namely, wool, woolfels,
hides, lead and tin, was removed from Flanders into England, and a court
merchant was erected in all such places where the staple was fixed,
to be held by the mayor of the staple, he had power given him to take
recognizances on the debts contracted at the staple, called _statute
staple_, in the same manner as of _statute merchant_; and as the effect
thereof was the same as of statute merchant, it need not be particularly
repeated. However in some time afterwards, statute merchant was, by
custom, extended to others beside merchants, and became one of the common
assurances of the realm. The statute staple was likewise extended upon
surmise of the debt being contracted at the staple; and though an act of
Henry the Eighth in England restrained this latter to its ancient bounds,
yet, the same act framed a new kind of security in imitation of it,
common to all the subjects, called a recognizance on that act, which had
all the effects and advantages of it[219].

The statutes of Elizabeth and those since her time, concerning bankrupts,
have gone much further. They not only, in the cases they extend to,
laid the whole land open to the creditor, but, instead of a possession,
and gradual discharge of the debt, which was all that was given by the
statute merchant, _elegit_, or statute staple, they gave him a more
speedy satisfaction, by enabling him to procure a sale of the lands[220].
But these later acts having never been enacted in this kingdom, I shall
content myself with having barely hinted at them, and their effects.

Voluntary alienations of land having gained ground, and become at length
established in England, contrary to the principles of the original law;
and it being allowed for a maxim, that he that had a fee simple, had an
absolute dominion over half of his land, to dispose of as he pleased,
and, in some cases, of the whole; it could not be, but that there would
arise many persons fond of perpetuating their estates in their families,
and consequently displeased at this power of alienation. The means they
used to attain their ends was under that maxim of law, _Tenor investituræ
est inspiciendus_, or, as we express it, _Conventio vincit & dat modum
donationi_. Every man therefore, absolute master of his estate, having
a right to give it on what terms he pleased, they began, not as before,
to give lands to a man and his heirs in general, for that would have
given an absolute dominion, but to heirs limited, as to the _heirs of his
body_, or to the _heirs male_ of his body, or to the heirs of his body by
such a woman. Here it was plain enough, that none were intended to take,
but such as came within this description; and by this means they hoped
to defeat the power of alienation, to secure the estate to the persons
described, and, in failure of them, the returning or reversion of it to
themselves or their heirs.

But the judges complying with the universal bent of the times to the
contrary, did not give these grants that construction they expected, upon
the natural presumption, that every person will have heirs of his body,
and that his posterity will continue for ever. They construed this to
be a fee simple; and yet, not entirely to disregard the intention of the
donor, to be a fee simple conditional; as if the words had been _to a man
and his heirs_, provided he have heirs of his body, and consequently to
be alienable, and forfeitable upon a certain event. And one great reason
of making this construction, I take to be the consideration of forfeiture
for treason and felony, which, by such grants, would be defeated by
another construction, and men thereby rendered more fearless to commit
crimes in those troublesome times[221].

Let us see then what estate or power was in _donor_ and _donée_
immediately by the grant; and what, upon the performance of the
condition, namely, the having issue. And first, the _donée_ had
immediately a fee simple upon the grant, contrary to Britton’s opinion,
that, before children born, he had only an estate for life, and
afterwards a fee. This appears from hence, that if a man had aliened in
fee before issue had, the donor could not have entered upon the lands
for the forfeiture, which, if he was tenant for life, he might. For the
alienation in fee of tenant for life is an absolute forfeiture, and gives
right of entry to the _lessor_. The _donée_, then, having presently a
fee simple in him, that is, an estate for ever, than which there can be
no greater; it was impossible the donor should have any actual estate
or interest in the lands. He had not, therefore, a _reversion_ vested
in him, that is, a certain positive right of the lands returning to him
or his heirs, as he would have had, if an estate for life only had been
granted. He had only a bare _possibility of reverter_, in case the donée
died without issue; or, leaving any, that issue had failed.

For the same reason, of the donée’s having a fee simple, no _remainder_
could be limited in such an estate. If land be given to A. for life or
for years, and after the efflux of the life or years to B., B. hath
presently a remainder in the lands for life, years, or in fee, according
as the limitation of the estate is; because it is certain that a life,
or term of years, must expire. But if land be given to A. and the heirs
of his body, and, in failure of such heirs, to B. and his heirs, this
remainder to B., before the statute _De Donis_, was void, for A. had
immediately an estate for ever, and therefore the limitation over to B.
was rejected, as repugnant to the estate it depended upon.

But though, by such a grant, the donée got a fee, it being clogged with
a condition, he had not, to all intents and purposes, an absolute power
over it, either with respect to the donor, or his own issue. If the
donor aliened before issue had, this was no bar to the donor, of his
possibility of _reverter_; but it was a bar to the issue born afterwards,
to enjoy the estate tail. For at this time fathers had a greater liberty
to bar their children, than a stranger. Therefore, in this case, the
_alienée_ and his heirs, were to enjoy the lands while the donée, or any
issue of his body remained. But whenever they failed, the donor’s, or his
heir’s possibility of reverter, was changed into an actual reversion, and
the land became his. For now, by a subsequent event, it appeared, that
the legal presumption of the estates continuing for ever was ill founded.
Neither, by the having of issue, was the condition performed to all
purposes, so as to vest an absolute fee in the _donor_; for if the donée
had died without issue, or if his issue failed, without any alienation
being made by either, in this case also, the donor’s possibility was
changed into an actual reversion. But by having issue, the condition was
so far performed, as to enlarge the power of the donée to three special
purposes; first, to alien absolutely, and thereby to destroy the right
of issue, and the possibility also of reverter in the donor; secondly,
to charge and incumber it to the prejudice of both issue and donor; and
thirdly, to forfeit it for treason or felony, to the prejudice of both
also. Such was the construction the judges made of these grants, which,
we see, gave, in almost all cases, an unlimited power of alienating,
contrary to the intention of the donor, and the form of the gift[222].

But, in the thirteenth of Edward the First, the lords, willing to
preserve the grandeur of their families, obtained of that monarch the
famous statute of Westminster the second, called _De Donis_, which by
these words, _quod voluntas donatoris, secundum formam in charta Doni
sui, manifeste expressam, de cætero observetur, ita quod non habeant
illi, quibus tenementum sic fuit datum sub conditione, potestatem
alienandi tenemenium sic datum, quo minus ad exitum illorum, quibus
tenementum sic fuerit datum, remaneat post eorum obitum, vel ad
donatorem vel ad ejus hæredem, si exitus deficiat, revertatur_[223],
created a new kind of inheritance, _estates tail_, which very much
resemble the old feudal donations, that were only descendible to the
issue of the first feudatory. Let us see the consequence of these words.
First, since the will of the donor was to be observed, it followed, that
neither the donée, nor his issue, should have power to alien, incumber,
or forfeit: the consequence of which was, that he could no longer have a
fee simple, as these are inseparable incidents to such an estate; but a
lesser estate, called _Fee tail_, from, the French word _Tailler_ before
mentioned, as being, like other lesser estates, carved out of the fee
simple.

Were it to be asked, in whom did the fee simple reside? it is plain it
could be in none other but the donor, who had it originally in him.
Therefore, by this statute, the possibility of reverter, which the donor
had, was changed into an actual present interest, called a _reversion in
fee simple_. But it was not always necessary that the fee simple should
be in the donor; for estates tail, being now less than a fee simple, it
became possible to limit a remainder thereon which should be good: Thus,
if a gift be made to A. and the heirs of his body, and, in failure of
such heirs, to B. and his heirs; in this case, there is no reversion:
for the donor hath parted with his whole estate, but A. hath an estate
tail, and B. a remainder in fee simple. Many remainders may be limited
on one another, as for instance, an estate may be given to A. for years,
remainder to B. for life, remainder to C. in tail, remainder to D. in
tail, remainder to E. in fee simple; but if the last remainder is not in
fee simple, but in fee tail, then is the reversion in fee simple to the
donor.

However, although a tenant in tail after this statute could alien only
for his own life, his heir in tail was not allowed to enter upon the
alienée without first proving his right in a court of law, and this is
what is meant by saying, _though a tenant in tail could not destroy the
estate tail by his alienation, yet he could continue it_. The reason of
this is, that all estates of inheritance are presumed fee simple, until
the contrary is proved, and it would be unjust to remove a possessor,
who came in by a title apparently fair, until the weakness of that
title appears judicially. This rule, however, extended only to estates
corporeal, that lay in liveries, not to incorporeal ones, that lay in
grant; which shews that this maxim of its working a discontinuance
proceeded from the feudal principle, of protecting the possessor, because
he was to do the feudal duties.

The statute to guard these inheritances from alienations, expressly
provides, that even a fine levied of them in the king’s courts of record
should be _ipso jure_ null.

The method of recovering such lands so discontinued, is by a writ called
a _Formedon_, from the words _forma doni_, of which writ there are three
kinds, according to the title of the persons who bring them; _formedon,
in the reverter_, _in the descender_, and _in the remainder_. _Formedon
in the reverter_ lies for the donor or his heirs, and lay at the common
law after the failure of issue, where the alienation was before issue
had; but since the statute, upon the failure of issue, it lies, though
the alienation be after. _Formedon in descender_ lies for the issue in
tail, when the ancestor has aliened, and is given by the statute. The
form of it is as follows, “The king to the sheriff of ⸺ greeting, command
A. that he justly, and without delay, restore to B. such a manor, &c.
which C. gave to D., and the heirs of his body, and which, after the
death of the said D., ought to descend to the said B. the son of the
said D. by the form of the aforesaid gift, as he says.” _Formedon in
remainder_ lies for a remainder man in tail, or his issue, after the
particular estate previous to his (whether it be for years, life, or in
tail) is spent. In the reverter, instead of the word _descend_, it is
_revert_; in the remainder, _remain_[224].

Having shewn the origin of estates tail, I shall next consider their
consequences, and future fortune.




LECTURE XVII.

    _The consequences and history of estates Tail._


The following are the words of my lord Coke. “When all estates were fee
simple, then were purchasers sure of their purchases, farmers of their
leases, creditors of their debts; the king and lords had their escheats,
forfeitures, wardships, and other profits of their seignories: and for
these, and other like cases, by the wisdom of the common law, all estates
of inheritance were fee simple; and what contentions and mischiefs have
crept into the quiet of the law by these fettered inheritances, daily
experience teacheth us.” By this enumeration of his, of the advantages
that attended estates of fee simple, it is easy to see who were the
sufferers, and wherein they suffered, by the introduction of estates
tail. But it is a little surprizing that he should make such a slip as
to say, that before this creditors were secure of their debts by all
estates being fee simple; when the first statute that gave them any hold
of lands was made after this statute _De Donis_, in the latter end of
the same year of the king’s reign, the thirteenth of Edward the First.
Those, indeed, who had landed estates at that time, and their posterity,
were great gainers hereby; but the king and the nation in general were
sufferers. The nation suffered by the check that commerce, then just
arising, received, by so much lands becoming unalienable, and the crown
suffered in a double respect; first by the opportunity it afforded to
strengthen and explain the great estates of the lords, and secondly by
the security it gave when enlarged.

Soon after the conquest, the estates of the English lords were enormous.
William brought over an army of 60,000 men, not levied by himself, (for
he was unable to raise or defray the expences of a third of that number,
out of the province of Normandy,) but consisting chiefly of adventurers,
who engaged in the expedition on the promise of forfeited lands, in
proportion to the numbers they brought with them. Accordingly, some
had seven hundred manors, others five, four, three, two, one hundred,
or less; insomuch, that all the lands of England, (if we except the
king’s demesnes, the church lands, and the little properties annexed to
cities and boroughs) were in no more than about seven hundred hands,
the principal of which were petty princes, like the dukes and counts of
France[225].

William was sensible, from the experience of that country, how dangerous
such large grants would prove to the authority of the crown, and he
accordingly moderated them as well as his circumstances would permit.
That the king might not be too far removed from the view of the lower
people, by the interposition of the great lords, their immediate
superiors, he did not, as in France, leave the whole judicial power,
and the profits of the county courts in the earls; but justice was
administered in the king’s name by his sheriffs; who, as being deputies
of the earls, were called _Vice Comites_, and who accounted for the
profits to the king, except as for the one third, which in England was
the earl’s proportion; and in after times, upon new creations, the third
also was referred to the king, and only a certain stipend out of it,
generally twenty pounds a year, assigned to the earl[226].

Another means he used of disarming them of the too great powers
immoderate estates would have given them, was avoiding the rock the
French court had split on, the giving vast territories, lying contiguous
to each other, in fief, whereby all the followers were immediately in
the view and at the call of the lords. William acted more prudently. He
generally gave to an earl twenty knights fees, which was the proportion
of an English earldom in the county, whose title he bore; perhaps
thirteen, or a barony, in another county; and the remainder, he was to
give, either in baronies in distant counties, or more generally in single
knights fees, dispersed through all England. This was his general method,
except to a few of his near relations, to whom he gave palatinates with
_jura regalia_, which were exactly in the nature of the French dutchies
and counties[227].

Another prudent step he took for the benefit of his successors, was the
making all his grants _feminine fiefs_. For as, in a course of several
descents, it must happen that lineal males would frequently fail, by
admitting the daughters in that case, these vast inheritances were
frequently broken, as females succeeded equally. His successors followed
his plan, and for that purpose, not only permitted, but encouraged their
great vassals to alien, and dismember their properties; and whenever a
great escheat fell, were always sure, unless there was a prince of the
blood to be provided for, to divide it into many hands.

Both kings and people received the advantages, and would have received
more, if this policy had continued. The immediate tenants of the crown
being encreased in number, and lessened in wealth, were not able to
confederate so easily against the crown; and, sensible of their being
weakened, had occasion for the support of the lower rank of the people,
whom, consequently, they treated with more gentleness and equality than
before. But this statute of entails put a stop to the progress that
course of things were in; estates became unalienable, and indivisible.
The property of no lord could lessen; and if it happened, as it
frequently did, that they acquired, either by descent or marriage,
or the purchase of an estate not tied up, a new entail connected it
inseparately with the old one; and thus the lords, towards the end of
the Plantagenet line, grew up to such a pitch of power, as was dangerous
to the constitution, and when they were divided into the factions of the
York and Lancaster, deluged the land with blood.

The king saw the mischief betimes, but the mischief was done. The act was
passed, and to get it repealed was impossible. They had nothing left, but
to find means to elude it by construction of law, wherever they could.
The scheme was readily embraced by the judges and lawyers, who had raised
great outcries against these fettered inheritances, and were joined by
all the trading and industrious people, and even by the younger branches
of these great families, whose fathers were thereby disabled to provide
for them.

The first means found out was by _collateral warranty_. Before this
statute all warranties by an ancestor bound the heir at law, although
no land descended from that ancestor, upon the presumption that no man
would disinherit his heir, without leaving him a recompence. But this
could be no longer the law in general; for, if so, the ancestor in tail
might, by his warranty, defeat the tail, contrary to the statute, which
says, _The will of the donor shall be observed_. They therefore made now
a distinction between a lineal warranty and a _collateral_ one. Lineal
warranty is that which is made by tenants in tail; collateral, that
which is made by one who is a stranger to the entail. In the first case
they held it no bar, unless assets descended; that is, an estate in fee
simple, equal in value. But in the latter case, that no assets descended,
they held it at bar as at common law[228].

To illustrate this by an example, If lands are given to A. and the heirs
male of his body, and A. aliens with warranty, this is lineal warranty,
and shall not bind the son; but if B. the brother of A. who has nothing
to say to the entail, joins in the alienation with warranty, or releases
to the alienee with warranty, or disseizes A, and then aliens with
warranty, and dies without issue, so that A’s son is his heir, this
warranty is collateral to the entail, and without assets should bind the
son of A, as at common law. At first view it may seem surprising how this
construction gained ground against the express words of the statute,
_Voluntas donatoris de cætero observetur_; for the will of the donor was
certainly as much defeated by a collateral, as by a lineal warranty; but
the judges took advantage of the preamble of the act, which, reciting
the mischief, speaks only of the alienation of the tenant in tail, that
is, of lineal warranty. They restrained, therefore, out of disfavour
to these fettered estates, the general words in the enacting part, to
the particular case mentioned in the preamble, on this ground, that the
common law was not to be altered without it appeared undeniable that the
legislator intended it; and here, as to collateral alienation, they are
silent. This was the first device used to defeat estates tail, namely, by
getting a collateral relation, whose heir the issue in tail was to be,
to concur in the alienation, and to bind himself and heirs to warranty;
which was generally obtained for a small consideration, as such person
could never be a gainer by the estate tail, since it could in no case
come to him.

When once this rule of collateral warranty barring an estate tail,
was settled, attempts were made to prevent its taking effect, and to
continue such estate notwithstanding. Jude Richel, in Richard the
Second’s time, led the way; he having settled lands on his eldest son
in tail; remainder to his second son in tail; adds, that the lands are
given on this condition, that, if the eldest son should alien, that
instant his estate should cease and determine, and the land remain to
the second son and the heirs of his body. Here he imagined he had got
clear of collateral warranty, because the first estate was to determine,
and the second to commence immediately on the alienation, and before
any collateral warranty could descend on the second. But the judges
determined this condition to be void; for which Littleton gives three
reasons, drawn rather from the art of law, than from the principles of
plain reason[229]. The true ground seems to be this:

In every reign, from Edward the First down to Edward the Fourth, bills
were brought into parliament to repeal the statute _De Donis_, as Coke
informs us, but had constantly miscarried, as the estates of the majority
in parliament were entailed. The only relief found out at that time
against their mischiefs was this collateral warranty; and if Richel’s
conditions were to be adjudged good, all estates tail would have been
made with such conditions, and there would have been an end of that
method of defeating them. The same was the fate of a similar settlement
of Judge Thirning, who took the advice of his cotemporary judges, in
wording his condition so as to make it effectual; but their successors
were of a different opinion, and rejected it. However, these collateral
warranties not being to be got in all cases, the relief was but partial,
and extended only to particular cases. And the tenant in tail himself
could by no act of his, in concurrence with any other person, except a
collateral ancestor of the issue in tail, bar them.

At length the judges found out a device, by a fiction in law, to enable
him to bar his issue, and all remainders, and reversions. A. brings his
action real against B, tenant in tail, and alledges the lands in tail to
be his A’s right and inheritance, when in truth he hath no title thereto;
B. comes in, and voucheth C. to warranty, who enters into warranty, and
after, when he should defend, makes default, so judgment is given for A.
against B. and for B. to recover in value against C. Here, though C. has
no land to render in value, the judges have construed B, and all that
should come after him, to be barred; because if C. ever after purchased
lands, these lands might be recovered from him, by virtue of the former
judgment; and so there was a possibility of a recompence. Though this
decision at first created great outcries, and even in Henry the Eighth’s
reign was but weakly defended in equity and conscience, by the author of
_Doctor and Student_, yet the judges, for the public good, constantly
adhering to it, and these common recoveries being taken notice of and
approved of by subsequent acts of parliament, are at length grown to be
common assurances of lands, and, passing in the court of record, are the
best securities of estates[230].

The bearing of estates tail, _by fine_ passed in the king’s courts, grew
up another way, and is founded on an act of parliament in Henry the
Seventh’s reign, and is indeed, properly speaking, a partial repeal of
the statute _De Donis_, since it puts it in the tenant in tail’s power to
destroy it, by observing certain solemnities. Though common recoveries
had been invented some years before, yet as they had not had time to grow
up to such a degree of firmness as to be sufficiently depended upon,
their legality was still doubted, and it was not certain that future
judges would give them the same construction which their predecessors had
done. Therefore, that politic prince Henry the Seventh, who saw, in all
its lights, that superiority which the preservation of landed property in
their families gave to the nobles, a superiority which had cost some of
his predecessors their lives and crowns, freed lawyers from the trouble
of inventing future devices against entails, by getting the famous
act passed in the fourth year of his reign, which made a fine, with
proclamations to conclude all persons, strangers as well as privies[231].

It was the purport of, and so it is expressed in the statute _De Donis_,
that a fine levied of entailed lands should be _ipso jure_ null, and it
is the intent of this act, on the contrary, that a fine, levied with
the prescribed solemnity, should be valid to bar the persons therein
intended to be barred. There is a clause, indeed, in this act, saving the
right and interests of all persons, which accrued after the ingrossing
of the fine, they pursuing their rights within a certain time after
they accrued. This clause was apparently thrown in to make the act pass,
and to deceive the enactors into an opinion, that it would not affect
estates tail; and on this clause a doubt occurred in that reign, whether
the issue of tenant in tail could be barred by this statute, and that,
notwithstanding by the tenor of it, privies were barred. The question
was, whether the statute meant privies to the fine, or privies to the
estate of the person levying it? The issue were not privies in the first
sense, but were in the latter. The judges embraced the opportunity this
ambiguity gave them, of defeating entails, and bound the issue by the
fine. A statute of the succeeding prince approved of that construction,
gave it retrospect, and prevented all ambiguity for the future[232].

Thus were estates tail no longer certain perpetuities, but defeasible
upon performing certain requisite solemnities. Still however they
continued not to be forfeitable for crimes, which was a point not to be
got over without an act of parliament, and there was little likelihood
of obtaining such an one; but Henry the Eighth snatched the lucky
opportunity his situation gave him, of gaining this important point, in
the 26th year of his reign, when he had quarrelled with the Pope, and
all hope of accommodation vanished; when a sentence of excommunication
was denounced against him, and numbers of his subjects, many of them of
great fortunes, bigotedly attached to the old religion, were known to
meditate rebellion. The parliament, the majority of which were of the new
profession, seeing no other means to preserve the security of the state,
and the protestant religion, yielded at length to the passing of an act
for that purpose[233].

However, there were not wanting persons after this, willing to create
perpetuities, in which they were always disappointed by the decision of
the judges. The first device was by giving estates upon condition, that
if tenants in tail should levy a fine, or suffer a recovery, the estate
should cease, and go over to the next issue intitled. But the judges
rejected such condition, for the same reason as in Richel’s case. They
adjudged the right of barring by a fine or recovery to be an incident
inseparable to a fee tail, and all conditions repugnant thereto idle
and void; for how could the law suffer that an estate, by previous act
of the donor, should, upon a judgment at law, become vested in any other
person than him who recovered? These ingenious conveyancers, finding that
the limitation upon breach of the condition came too late, as the estate
had already gone in another channel, framed the condition thus; that _if
tenant in tail should go about to levy_, &c. _or make any covenant to
levy, or hold any communication about levying_, &c. _the estate should
then_, &c. But these were all condemned upon the old principle, and still
more for their vagueness and uncertainty.




LECTURE XVIII.

    _The constitution of a feudal monarchy—The dignity and revenues
    of the King—An examination of his power as to the raising of
    taxes and subsidies._


As, in my former lectures, I drew a general sketch of the nature and
form of the governments that prevailed among the northern nations whilst
they remained in Germany, and what alterations ensued on their being
removed within the limits of the Roman empire, it will be now proper to
shew, in as brief a manner as may consist with clearness, the nature and
constitution of a feudal monarchy, when estates were become hereditary,
the several constituent parts thereof, and what were the chief of the
peculiar rights and privileges of each part. This research will be of
use, not only to understand our present constitution, which is derived
from thence, but to make us admire and esteem it, when we compare it with
that which was its original, and observe the many improvements it has
undergone. From hence, likewise, may be determined that famous question,
whether our kings were originally absolute, and all our privileges only
concessions of theirs; or whether the chief of them are not originally
inherent rights, and coeval with the monarchy; not, indeed, in all the
subjects, for that, in old times, was not the case, but in all that were
_freemen_, and, as all are such now, do consequently belong to all.

To begin with the king, the head of the political body. His dignity
and power were great, but not absolute and unlimited. Indeed, it was
impossible, in the nature of things, even if it had been declared so by
law, that it could have continued in that state, when he had no standing
force, and the sword was in the hand of the people. And yet it must be
owned his dignity was so high, as to give a superficial observer some
room, if he is partially inclined, to lean to that opinion. All the lands
in his dominions were holden of him. For, by degrees, the _allodia_ had
been changed into, and supposed to have been derived from, his original
grant, and consequently revertible to him. But then, the land proprietors
had (on fulfilling the conditions they were bound to) a secure and
permanent interest in their possessions. He could neither take them
away at pleasure, nor lay taxes or talliages on them by arbitrary will,
which would have been little different. Since, in Magna Charta, we find
the people insisting that the king had no right to assess the quantity
of escuage, which was a pecuniary commutation for military service,
nor to lay talliages on his other subjects, but that both must be done
in parliament. He was a necessary party to the making new laws, and to
the changing and abrogating old ones; and from him they received their
binding force, insomuch that many old laws, tho’ passed in parliament,
run in the king’s name only. For, in those days, persons were more
attentive to substance than forms; and it was not then even suspected,
in any nation of Europe, that any king would arrogate to himself a power
so inconsistent with the original freedom of the German nations. Nay, in
France, to this day, the king’s edicts are not laws, until registered in
parliament, which implies the consent of the people, tho’ that consent is
too often extorted by the violent power that monarch has assumed over the
persons and liberty of the members of that body[234].

The dignity of the king was supported, in the eyes of the people, not
only by the splendor of his royalty, but by the lowly reverence paid
him by the greatest of his lords. At solemn feasts they waited on him
on the knee, or did other menial offices about his person, as their
tenures required, and did their homage and fealty with the same lowly and
humiliating circumstances that the meanest of their vassals paid to them.
His person likewise was sacred, and guarded by the law, which inflicted
the most horrible punishment for attempts against him; neither was he to
be resisted, or accountable for any private injury done personally by
himself, on any account whatsoever. For the state thought it better to
suffer a few personal wrongs to individuals, than to endanger the safety
of the whole, by rendering the head insecure.

But the greatest of the kingly power consisted in his being entirely
entrusted with the executive part of the government, both at home and
abroad. At home justice was administered in his name, and by officers of
his appointment. He had, likewise, the disposal of all the great offices
of the state, with an exception of such as had been granted by his
predecessors in fee, and of all other offices and employments exercised
in the kingdom immediately under him. Abroad he made war and peace,
treaties, and truces as he pleased. He led his armies in person, or
appointed commanders; and exercised, in time of war, that absolute power
over his armies that is essential to their preservation and discipline.
But how was he enabled to support the expence of the government, or to
provide for the defence of the kingdom, or carry on a foreign war; since,
if he was not furnished in that respect, these high-sounding prerogatives
had been but empty names, and the state might have perished? and if he
could at pleasure levy the necessary sums, he being sole judge of the
necessity, both as to occasion and quantity, as Charles the First claimed
in the case of ship-money, the state of the subject was precarious, and
the king would have been as absolute a monarch as the present king of
France or Spain[235].

But abundant provision was made on this head, and that without
over-burdening the subject, for supporting the ordinary expences of the
government. A vast demesne was set apart to the king, amounting, in
England, to one thousand four hundred and twenty-two manors, as also
many other lands, which had not been erected into manors. Besides these,
he had the profits of all his feudal tenures, his worships, marriages,
and reliefs; the benefit of escheats, either upon failure of heirs or
forfeiture; the goods of felons and traitors; the profits of his courts
of justice; besides many other casualties, which amounted to an immense
revenue; insomuch, that, we are informed, that William the Conqueror
had L. 1061: 10s. a-day, that is, allowing for the comparative value of
money, near four millions a-year; so that Fortescue might well say, that,
originally, the king of England was the richest king in Europe. Such a
sum was not only sufficient for the occasions of peace, but out of it he
might spare considerably for the exigencies of war[236].

This revenue, however great, was not sufficient to support a war of
any importance and continuance, besides the extraordinary expence
of government. It remains, therefore, to see what provision this
constitution made, in addition to what the monarch might spare, for the
defence of England, as it might be attacked either by land or sea. For
the former, every sea-port was, in proportion to its ability, obliged to
find, in time of danger, at their own expence, one or more ships properly
furnished with men and arms; which, joined to such other ships as the
king hired, were, in general, an overmatch for the invaders. But if the
enemy had got footing in the country, the defence at land was by the
knights or military tenants, who were obliged to serve on horseback in
any part of England; and by the socage tenants, or infantry, who, in case
of invasion, were likewise obliged to serve, but not out of their own
country, unless they themselves pleased, and then they were paid by the
king.

With respect to carrying on _offensive_ war into the enemy’s country, the
king of England had great advantages over any other feudal monarch. In
the other feudal kingdoms the military vassals were not obliged to serve
in any offensive war, unless it was just, the determination of which
point was in themselves; but William the Conqueror obliged all to whom
he gave tenures to serve him _ubicunque_; and though he had not above
three hundred, if so many, immediate military tenants under him, yet
these were obliged, on all occasions, to furnish sixty thousand knights
compleatly equipped, and ready to serve forty days at their own expence.
If he wanted their service longer, he was obliged to obtain it on what
terms he could. There is, therefore, no reason to wonder that the king
of England, though master of so comparatively small a territory, was, in
general, an overmatch, in those early times, for the power of France. As
for _infantry_ in his foreign wars, he had none obliged to attend him.
Those he had were socage tenants, whose services were certain; so that
he was obliged to engage, and pay them, as hired soldiers. As the socage
tenants in his dominions had a good share of property, and enjoyed it
without oppression, it is no wonder the English archers in those days had
a gallant spirit, and were as redoubtable as the English infantry is at
present.

To support these military tenants, who served after the necessary time,
and likewise his infantry (as the surplus of his ordinary revenue would
not suffice) he had _customs_ and _talliages_, and _aids_ and _subsidies_
granted by parliament. These customs, or so much paid by merchants on the
exportation of goods, were of two kinds; as paid either by _merchant
strangers_, or by _merchant denizens_[237].

The customs paid by merchant strangers were not originally settled by act
of parliament, but by a compact between the merchant strangers and king
Edward the First. In the Saxon times the king had a power of excluding
strangers from his kingdom, not merely with an intention of inducing
their own people to traffick, but chiefly to keep out the Danes, who were
the masters of the sea; lest, under pretence of trade, they might get
footing in, and become acquainted with the state of the kingdom. They
were, accordingly, admitted by the kings upon such terms as the latter
were pleased to impose; but Edward, who had the success and prosperity
of his kingdom at heart, came to a perpetual composition with them; gave
them several privileges, and they gave to him certain customs in return.
What shews they had their origin from consent is, that the king could
not raise them without applying to parliament. The customs of natives
or denizens were, certainly, first given to the king by parliament;
though this has been denied by some, merely because no such act is to be
found, as if many of the antient acts had not been lost; but there are
acts and charters still extant, which expressly say they were appointed
and granted by parliament, without the power of which they could not be
either altered or enlarged.

The difference between the customs and the other aids I have mentioned,
_viz._ talliages and subsidies, is, that the latter were occasional,
granted only on particular emergencies, whereas the _customs_ were for
ever. If it be asked how they came to be granted in that manner, we must
refer back to the original state of boroughs and their inhabitants,
traders, in the feudal law. In France, the Roman towns were taken into
protection, and had their antient privileges allowed them; but in the
series of wars that happened in that country for ages, every one of
them in their turns were stormed, and reduced to vassalage, either to
the king or some other great lord; and as, now, these lords had learned
that the Roman emperor laid on taxes at his pleasure, it was but natural
they should claim the same right, especially over towns they had taken
in war. The burgesses, therefore, became in the nature of villains,
not indeed of common villains, for that would absolutely have destroyed
trade, but with respect to arbitrary taxation, which, however, if the
lord was wise, was never exorbitant. In England, I apprehend, they
became villains; for the Saxons were a murdering race, and extirpated
the old inhabitants. However, wise kings, considering the advantages of
commerce, by degrees, bestowed privileges on certain places, in order to
render them flourishing and wealthy; and at length, about the time of
Magna Charta, or before, when every uncertain service was varying to a
certainty, this privilege was obtained for merchant adventurers. But the
other burgesses, that did not import or export, and likewise villains,
were still talliageable at will. This was restrained by Magna Charta,
which declares all talliages unlawful, unless ordained by parliament[238].

To come to the latter head, whether taxes, aids, and subsidies can be
assessed by the king, as sole judge of the occasion, and the _quantum_—or
whether they must be granted by parliament, was the great and principal
contest between the two first princes of the unfortunate house of Stuart
and their people, and which, concurring with other causes, cost the last
of them his life and throne. To say nothing of the divine hereditary
right urged on the king’s behalf, and which, if examined into strictly,
no royal family in Europe had less pretensions to claim, both sides
referred themselves to the antient constitution for the decision of this
point. The king’s friends urged that all lands were holden from him by
services, and that this was one of his prerogatives, and a necessary
one to the defence of the state. They produced several instances of its
having been done, and submitted to, not only in the times of the worst,
but of some of the best kings; and as to acts of parliament against it,
they were extorted from the monarchs in particular exigencies, and could
not bind their successors, as their right was from God.

The advocates of the people, on the other hand, insisted, that, in
England, as in all other feudal countries, the right of the king was
founded on compact; that William the Conqueror was not master of all the
lands in England, nor did he give them on these terms; that he claimed
no right but what the Saxon kings had, and this they certainly had not;
that he established and confirmed the Saxon laws, except such as were
by parliament altered; that he gave away none but the forfeited lands,
and gave them on the same terms as they were generally given in feudal
countries, where such a power was in those days unknown. They admitted,
that, in fact, the kings of England had sometimes exercised this power,
and that, on some occasions, the people submitted to it. But they
insisted, that most of the kings that did it were oppressors of the worst
kind in all respects; that the subjects, even in submitting, insisted
on their ancient rights and freedom, and every one of these princes
afterwards retracted, and confessed they had done amiss. If one or two
of the best and wisest of their kings had practised this, they insisted
that their ancestors acquiescence once or twice, in the measures of a
prince they had absolute confidence in, and at times when the danger,
perhaps, was so imminent as to stare every man in the face, (for it was
scarce ever done by a good prince) as when there was not a fleet already
assembled in the ports of France to waft over an army, should not be
considered as conveying a right to future kings indiscriminately, as a
surrender of their important privileges of taxation. They insisted that
these good and wise kings had acknowledged the rights of the people;
that they excused what they had done, as extorted by urgent necessity,
for the preservation of the whole; that, by repeated acts of parliament,
they had disavowed this power, and declared such proceedings should never
be drawn into precedent. They observed, that there was no occasion for
the vast demesne of the king, if he had this extraordinary prerogative
to exert whenever he pleased. They denied the king’s divine right to
the succession of the crown, and that absolute unlimited authority that
was deduced from it. They insisted that he was a king by compact, that
his succession depended on that compact, though they allowed that a
king intitled by that compact, and acting according to it, has a divine
right of government, as every legal and righteous magistrate hath. They
inferred, therefore, that he was a limited monarch, and consequently
that he and his successors were bound by the legislative, the supreme
authority[239].

The advocates of the king treated the original compact as a chimera, and
desired them to produce it; which the other side thought an unreasonable
demand, as it was, they alledged, transacted when both king and people
were utterly illiterate. They thought the utmost proof possible was
given by quoting the real acts of authority, which the Saxon kings had
exercised; among which this was not to be found; that the Norman kings,
though some of them had occasionally practised it, had, in general, both
bad and good princes, afterwards disclaimed the right, and that it never
had (though perhaps submitted to in one or two instances) been given
up by their ancestors, who always, and even to the face of their best
princes, insisted that it was an encroachment on those franchises they
were intitled to by their birthright.

Such, in general, were the principles on which the arguments were
maintained on both sides: for to go into _minutiæ_, would not consist
with the design of this undertaking. I apprehend it will be evident from
this detail of mine, though I protest I designed to represent both sides
fairly, that I am inclined to the people in this question. I own I think
that any one that considers impartially the few monuments that remain
of the old Saxon times, either in their laws or histories, the constant
course since the conquest, and the practice of nations abroad, who had
the same feudal policy, must acknowledge, that though this right was
claimed and exercised by John, Henry the Third, Edward the First, Second,
and Third, Richard the Second, and Henry the Eighth, it was in the event
disclaimed by every one of them, by the greatest of our kings, Edward
the First and Third, and Henry the Eighth, with such candour and free
will, as inforced confidence in them; by the others, in truth, because
they could not help it. I hope I shall stand excused, if I add, that the
majority of those who engaged in the civil war, either for king Charles,
or against him, were of the same opinion. For, had he not given up this
point, (and indeed he did it with all the appearances of the greatest
sincerity) he would not have got three thousand men to appear for him in
the field. But, unfortunately for his family, and us, (for we still feel
the effects of it from the popish education his offspring got abroad)
his concession came too late. He had lost the confidence of too many
of his people, and a party of republicans were formed; all reasonable
securities were certainly given; but upon pretence that he could not
be depended upon, his enemies prevailed on too many to insist on such
conditions, as would have left him but a king in name, and unhinged the
whole frame of government. Thus the partizans of absolute monarchy on
one side, and the republicans, with a parcel of crafty ambitious men, who
for their own private views affected that character, on the other, rented
the kingdom between them, and obliged the honest, and the friends to the
old constitution, to take side either with one party or other, and they
were accordingly, for their moderation and desire of peace, and a legal
settlement, equally despised which ever they joined with[240].

I shall make but one observation more; that though it is very false
reasoning to argue from events when referred to the decision of God,
as to the matter of right in question; I cannot help being struck with
observing, that though this has been a question of five hundred years
standing in England, the decision of providence hath constantly been
in favour of the people. If it has been so in other countries for two
hundred or two hundred and fifty years past, which is the utmost, let
us investigate the causes of the difference, and act accordingly. The
ancients tell us it is impossible that a brave and virtuous nation can
ever be slaves, and, on the contrary, that no nation that is cowardly, or
generally vitious, can be free. Let us bless God, who hath for so long
a time favoured these realms. Let us act towards the family that reigns
over us, as becomes free subjects, to the guardians of liberty, and of
the natural rights to mankind; but above all, let us train posterity,
so as to be deserving of the continuance of these blessings, that
Montesquieu’s prophecy[241] may never appear to be justly founded.

“England (says he) in the course of things, _must_ lose her liberties,
and then she will be a greater slave than any of her neighbours.”




LECTURE XIX.

    _The King’s power as to the making, repealing, altering, or
    dispensing with laws._


Having, in the last lecture, begun to draw the outlines of a feudal
monarchy, particularly, as it antiently was in England, in order that it
may be more easy to understand the nature of our present constitution;
and to see how far, and in what particulars, it has deviated from its
original, either for the better, or the worse; and having, for that
purpose, begun with the regal prerogatives, and particularly with that
important one, the raising of money, it will be proper to proceed to
the king’s power as to the _laws_, either in the making, repealing,
altering, or dispensing with them: for these powers are now exercised by
the sovereigns in almost all the monarchies that were antiently feudal,
and have been claimed likewise in England. That this power could not
originally have been in the king, in any feudal state, is plain from the
detail I have given of the old German governments, and of the gradual
progress and formation of the European kingdoms from thence; and it would
not only be an entertaining, but useful study for gentlemen of fortune,
to trace, through the history of every nation, the several steps whereby
the liberties of the people have been undermined, until the whole power
hath settled in the monarch; but I shall content myself with a few
observations on this subject, drawn from the History of England, and such
as, in my apprehension, will be sufficient to settle this point as to us.

If the monarchies on the continent were not absolute in this respect,
much less could the Saxon kings pretend to such a power, from the very
nature of the foundation of their kingdoms. The Franks, the Goths, the
Burgundians, and others on the continent, were led to conquest by those
who had been previously their kings, and who had a stable and settled
authority over them. Very different was the settlement of the Saxons
in Britain. Neither Hengist, nor any of their first kings, had been
kings in Germany. They were mere leaders of companies of freebooters,
who had associated themselves first for plunder, and afterwards to fix
themselves in new seats, in imitation of the other German nations. Their
leaders, therefore, could have no powers, but what were conferred upon
them by their followers; and that _law-making_ was not one of those
powers, appears from the frequent meetings of their _witenagemots_, which
was the name they gave to their general assemblies, or parliaments; and
from all the laws of theirs now extant being made in them. It was the
boast of the good and wise king Alfred, that “he left the people of
England as free as the internal thoughts of man,” a speech which could
never have proceeded from the mouth of one who had the least notion of
the almighty power of kings over the laws. His successors were of the
same opinion. The law of Edward the Confessor, which was ratified by the
Conqueror, says, _Debet rex omnia rite facere in regno, & per judicium
procerum regni_, and if _omnia_, surely the making and repealing of laws,
the most important of all[242].

Our historians and records from that time down undeniably shew who,
in every age, were the legislators, and that the kings alone were not
so. The same is expressly delivered by all the old writers on the law,
Glanville, Bracton, Britton, Fleta and Fortescue. Nay, some of them, in
their zeal for liberty, have gone so far, as to pervert the meaning of
the civil law, which, in their time, was in high repute, and to deny the
absolute power of legislation to the Roman emperor. The civil law says,
_Quod principi placet legis habet vigorem_; but how doth Bracton comment
upon it? _Id est non quicquid de voluntate regis temere præsumptum est,
sed animo condendi jura, sed quod consilio magistratuum suorum, rege
auctoritatem præstante, & habita super hoc deliberatione & tractatu,
recte fuerit definitum[243]._

It must, however, be owned that many of our princes were very desirous of
assuming this power. In the reign of our Henry the First, a perfect copy
of the civil law being discovered at Amalfi, the princes of Europe got an
idea of a monarchy more powerful and absolute than either kings or people
had for many centuries before any notion of; and they were, in general,
desirous enough to stretch, if they could, their limited prerogative to
the height of the antient imperial despotism; but to do this by their
own authority was impossible. A wiser way was pursued. The excellency
of this law was, on every occasion, extolled, not only as providing
remedies, and determining, in many cases, where the feudal customs were
silent, but on account also of its justice and equity; praises that, it
must be owned, do belong to this law where the absolute authority of
the prince is not concerned. Foundations for the teaching this law were
established in all the universities, and the proficients therein were
sure of ample encouragement[244].

The popes, likewise, who wanted to set themselves up in the seat of the
old emperors, contributed not a little, in those days of ignorance,
to spread it; so that it is not wonderful that it got ground in every
country almost on the continent; and being melted into, and conjoined
with the feudal, customs, contributed not a little to the destruction
of the freedom of the antient constitutions. The same method was
attempted in England, but not with the like success. The foundation of
professorships, the introducing that law, and its forms, into the courts
that were more immediately under the king’s influence, as the courts
of the constable, the admiral, and of the universities, and the high
employments its professors obtained, sufficiently shew the fondness
many of our kings had for it. But the common lawyers and parliament
perceived the design, and foresaw the consequences that might follow.
Their opposition was steady and successful; and if they did not banish it
from the courts wherein it had got footing, at least they so limited and
circumscribed it, as to prevent its future progress.

The kings who had any wisdom or prudence, in order to dissemble their
real design, gave way to these restrictions, and waited for more
favourable opportunities; but the imprudent and haughty Richard the
Second avowed himself an open patron to this law. When the duke of
Ireland, the archbishop of York, and others his minions, were accused in
parliament of high treason, and the evidence being known to be so full as
that they must be convicted, he made this weak attempt to screen them.
He got his judges, who were his creatures, to declare the proceedings
against these persons null and void, as not being regulated according to
the forms prescribed by the civil law: but the barons, provoked at such
a bare-faced attempt, insisted they were regular, as agreeable to their
own customs, and declared positively they would never suffer England to
be governed by the Roman civil law, and passed sentence of high treason
against the judges[245].

Whence that king’s fondness for this law arose, may be seen from the
use he put it to, the protection of the instruments of his tyrannical
administration; and from the many wild and unguarded declarations he
made, especially that relative to his commons, _that slaves they were,
and slaves they should be_, and to his parliament, _that he would not at
their request discharge the meanest scullion in his kitchen_. But tho’
this prince was pleased to say, that _the laws were in his breath, and
that he could make and unmake them at his pleasure_, he did not think the
time was come to put that vaunt in execution. He took, therefore, another
way of usurping the legislative power. Having gained over a majority of
the returning officers, and either intimidated or gained over the most
powerful of the nobility, he called the famous parliament at Shrewsbury,
after having nominated to the returning officers whom they should
return; and, as he expected, this parliament, if so it may be called,
was complaisant enough to compliment the king with his heart’s desire.
The former sentence against the judges was reversed, and consequently
the civil law set up as the standard in trials of treason. And they
indirectly transferred the whole legislative power to the sovereign in
the following manner.

As there had been many petitions left unanswered, and many motions
undecided, they gave the power of deciding these, or other matters that
might arise before the next parliament, to the king, twelve peers,
and six commoners. For this committee, they chose such persons, the
majority of whom were at the devotion of the king, and gave him and the
majority power to fill up vacancies; thereby rendering the calling any
future parliament absolutely unnecessary. Thus was the constitution
subverted, and in its stead set up an _oligarchy_ in appearance, but in
truth an absolute monarchy. But as wisely and happily as Richard thought
he had conduced this affair, by which he supposed he had gained his
long wished-for end, neither the seeming authority of parliament, nor
the anathemas thundered in the pope’s bull against the contravenors,
could satisfy the people that they were not stripped of their ancient
rights, or that the king and his committee were rightful legislators.
What sentiments the nation entertained appears, from their deserting him
as one man, and following the first standard that was set up against
him[246].

Since the days of this unfortunate Richard, no king of England hath,
in open and express terms, assumed to himself singly the right of
legislation. Though James the First plainly claimed it, by implication,
in many of his speeches, particularly in those famous words of his,
_that as it was blasphemy for man to dispute what God might do in the
plenitude of his omnipotence, so was it sedition for subjects to dispute
what a king might do in the fulness of his power_. But it would be doing
injustice to the house of Stuart not to acknowledge that some of the
princes before them, particularly the Tudors, tho’ they did not pretend
to make laws, yet issued out many proclamations, or _acts of state_, as
they were afterwards called, to which they exacted the same unlimited
obedience as if they had been laws enacted by parliament. This is a point
worthy consideration; for if all proclamations, or acts of the king and
his council, require unlimited obedience, it is to little purpose whether
we call them laws or not, since such they are in effect. But this, I
think, will be pretty plain, if we make a proper distinction between
such proclamations, or acts of the king, as are particular exertions of
the executive power, which the law and constitution hath entrusted him
with, and such as, affecting the whole people, should in any wise alter,
diminish, or impair the rights they were before lawfully in possession of.

To give some few instances of the first sort. The appointment of
magistrates, the proclaiming war or peace, the laying on embargoes, or
performance of quarantine, the ordering erection of beacons in times of
danger of an invasion, the granting of escheated or forfeited estates,
and many more, are the antient and undoubted prerogatives of the king
alone, and the subject who resists, or disobeys, in such cases, is as
much a _rebel_, or disobedient subject, as if these acts were exercised
by the whole legislature. But with respect to making general rules and
ordinances, affecting the previous rights of the people, the case is very
different. For if such were to be universally obeyed, it is equivalent
to saying, that subjects have, properly speaking, no rights at all,
but hold every thing at the will of the king; a speech which the most
despotic monarch in Europe would not venture to advance.

However, I will not carry this so far as to deny that there may
cases happen wherein the king may have this right, and wherein his
proclamations and orders, even relating to such points, ought to be
obeyed. The cases, I mean, are those of a foreign invasion, or intestine
rebellion, when the danger is too imminent to attend the resolutions of
parliament. In such cases the constitution is, for a time, suspended
by external violence, and as _salus populi suprema lex est_, every man
is under an obligation to use his utmost endeavours to restore it,
and, consequently, obliged to obey him, to whom the constitution has
particularly entrusted that care. Instances of this kind did happen
during the confusions raised by the houses of York and Lancaster, and the
princes were accordingly obeyed. These precedents doubtless gave a handle
to their successors, who had no competitors to the throne, to exercise
the same power in more settled times. But this was used, at first, in a
cautious and sparing manner; and Henry the Eighth, who was a monarch as
unlikely to make undue condescensions to his people as ever lived, was
glad to derive it from the grant of parliament, that his proclamations
should have the force of laws, which was, in truth, giving into his hands
the legislative power for life[247].

His great successor, Elizabeth, carried this practice farther, and it
will be worth while to discover the reason why a people, in antient
times, so jealous of their privileges, should to the one prince
explicitly give up, and quietly suffer the other to usurp this power,
so essential to a limited constitution. And the cause I take to be the
critical state the nation stood in with respect to religion. The bulk
of the people, glad to be delivered from the yoke of papal tyranny, and
dreading its restoration, were willing to arm their princes with a power
sufficient to protect their religion from foreign and domestic enemies;
and about religion indeed, this power was at first principally exercised,
on the footing of the papal supremacy being transferred to the king.
Their end was attained: Papists and Puritans were both kept under, and
happy in the enjoyment of their religion, they did not consider the
consequences; that this very weapon might be used, by a prince of another
stamp, to root out the very religion they were so fond of, and that, by
admitting this exertion of power in a matter of so high consequence, it
would naturally be used in others that appeared of less[248].

This was what accordingly happened. Proclamations on other points
were issued; and monopolies in trade were introduced. All monopolies,
undoubtedly, were not destructive to trade. Where a new traffick has been
discovered, and one that requires a large expence, and is liable to many
hazards, it is very reasonable that the first undertakers should have the
trade for a time confined to them, that, by the prospect of extraordinary
profit, they may be encouraged to promote and settle that commerce on a
solid bottom. Such monopolies, instead of hurting, tend to the promotion
of traffick, and are not without similar instances in former times, I
mean the kings of England appointing the towns for the staple; and had
Elizabeth and James confined themselves to the erection of the Russia,
the Turky, and East India companies, and that for a limited term, their
conduct would have deserved the highest applause; but that was far from
being the case. Monopolies were introduced in the antient, the most
common and most necessary commodities, to the great impoverishment of the
nation by the advance of prices.

At first it may seem strange that the wise Elizabeth, who, on all
occasions, seemed to have her people’s wealth and ease at heart, should
follow so destructive a course. But the great end of all her actions was
the securing herself on the throne, and one of the principal means she
used for that end, was the asking money from her people as seldom as
possible. Hence proceeded the long leases of the crown lands, at small
rents and large fines, and hence all the monopolies, which she sold to
the undertakers; but better had it been for her subjects, to have raised
the sums she wanted by an additional subsidy, or an easy tax, than to pay
to the monopolists what they had advanced, with their exorbitant profits
besides. What Elizabeth began out of policy, James continued, to supply
his profusion, to such an extraordinary degree, as disgusted his people,
provoked his parliament, and at last made himself ashamed, insomuch that
he revoked above twenty. And now no monopoly can be raised but by act of
parliament, except in case of a new invention, and that but for a short
term of years[249].

I come now to the _dispensing power_, another prerogative which the
Stuarts claimed, and which cost the last of them the throne. As no state
can subsist without mercy as well as justice, the king hath the power
of distributing this mercy, and exempting a convicted criminal from the
penalty of the law, but this is only where the conviction is at his
suit; thus the king can pardon a murderer convicted on an indictment
in the king’s name, but if he was convicted on an _appeal_ by the next
relation, the king cannot. The pardon belongs to the appellant. But there
is a wide difference between a _pardon_, that is remission of punishment
after the fact, and _dispensing_, which is giving a previous licence
to break the law. A general dispensation is, in fact, a repeal, and a
particular one is a repeal _quod hunc_, and therefore can belong only
to the legislature. The Roman emperors, and the popes, as legislators,
assumed this power, and Henry the Third, an apt pupil of his lord and
master the pope, introduced the practice into England. In his reign a
patent, with a _non obstante_ to any law whatsoever, was produced into
court before Roger de Thurkeby, and this honest judge was astonished
at the innovation, as Matthew Paris tells us in these words: _Quod cum
comperisset, ab alto ducens suspicia de prædictæ adjectionis appositione,
dixit, heu, heu hos utquid dies expectavimus, ecce, jam civilis curia
exemplo ecclesiasticæ, conquinatur, & a sulphureo fonte rivulus
intoxicatur_[250].




LECTURE XX.

    _Lords of Parliament or Peers—Earls and Barons—The earlier
    state of Baronies in England—The Barones majores &
    minores—Barons by writ and by letters patent—The different
    ranks of Nobility._


Next in rank to the king are the _lords_, that held immediately of him by
military service, as long as that species of tenure subsisted; and whom,
from their privilege of sitting in parliament in their own rights, are
frequently called _Lords of Parliament_, and in common speech are called
_Peers_, though that word properly signifies any _co-vassals_ to the same
lord. Thus every immediate vassal of a baron are peers of that barony,
and the accurate description of the great personages I am speaking of
is _Pares Regni_. Of these there were, antiently, two ranks only, in
England, _Earls_ and _Barons_. Indeed, abroad also, to speak properly,
there were but two likewise: for there was no difference in power and
privilege between the _dukes_ and _counts_, or _earls_. But as every earl
is a baron, and something more, and as it is a maxim of our law, that
every lord of parliament sits there by virtue of his barony, it will, in
the first place, be necessary to see what a baron is.

The word _baron_ of itself originally, did not, more than peer, signify
an immediate vassal of the king; for earls palatine had their barons,
that is, their immediate tenants; and, in old records, the citizens of
London are stiled barons, and so are the representatives of the cinque
ports called to this day. Baron, therefore, at first signified only
the immediate tenant of that superior whose baron he is said to be,
but by length of time it became restrained to those who, properly and
exactly speaking, were _barones regis & regni_, and even not to all of
these, but to such only as had manors and courts therein. For though,
by the principles of the feudal constitutions, every immediate military
tenant of the crown, however small his holding, was obliged to assist
the king with his advice, and entitled likewise to give or refuse his
assent to any new law or subsidy, that is, to attend in parliament.
This attendance was too heavy and burthensome upon such as had only one
or two knights fees, and could not be complied with without their ruin.
Hence arose the omission of issuing writs to such, and which, being for
their ease, they acquiesced in, attendance in parliament being considered
at that time as a burthen. Thus they lost that right they were entitled
to by the nature of their tenure, until the method was found out of
admitting them by representation. Hence arose the distinction between
_tenants by barony_, and _tenants by knight service in capite_ of the
king. The former were such military tenants of the king, as had estates
so considerable as qualified them, without inconvenience, to attend in
parliament, and who were therefore entitled to be summoned. The _quantum_
of this estate was regularly thirteen knights fees and one third, as
that of a count or earl was twenty; that is, as a knight’s fee was then
reckoned at twenty pounds _per annum_, the baron’s revenue was four
hundred marks, or two hundred sixty-six pounds thirteen shilling and
four-pence, and the earl’s four hundred pounds, answering in value of
money at present to about two thousand six hundred, and four thousand
pounds yearly[251].

Such was the nature of all the baronies of England for about two hundred
years after the conquest; and they are called _baronies by tenure_,
because the dignity and privileges were annexed to the lands they held;
and if these were alienated with the consent of the king (for without
that they could not) the barony went over to the alienée. The manner of
creating these barons was by investiture, that is, by arraying them with
a robe of state, and a cap of honour, and girding on a sword, as the
symbols of their dignity. Of these Matthew Paris tells us there were two
hundred and fifty in the time of Henry the Third, and while they stood
purely on this footing, it was not in the king’s power to encrease the
number of the baronies, though of barons perhaps he might. For as William
the Conqueror was obliged to gratify several of his great officers
according to the number of men they brought, with two or more baronies,
whenever these fell into the hands of the crown by escheat, either for
want of heirs, or by forfeiture, it was in the king’s power, and was his
interest, to divide them into separate hands. The same thing likewise
happened, when, by an intermarriage with an heiress, more baronies than
one came into the hands of a nobleman, and escheated to the crown[252].

But the number of these feudal baronies could not, strictly or properly
speaking, be encreased by the king; for they could be created only out of
lands, and there were no lands vacant to create new ones out of, for the
king’s demesnes were, in those days, unalienable. However, we find, at
the end of Henry the Third’s reign, and even in John’s, that the number
of baronies were actually encreased, and a distinction made between the
_barones majores_, and _minores_. The _majores_ were those who stood upon
the old footing of William, and had lands sufficient in law, namely, the
number of knights fees requisite. The _minores_ were such as held by part
of a barony; as when an old barony descended to, and was divided among
sisters; in which case, when the husband of the sister whom the king
pleased to name, was the baron of parliament; or else were newly carved
out of the old baronies that had fallen in by escheat; as supposing the
king had granted six knights fees of an old barony to one, to hold with
all the burthens, and to do the service of an entire barony, and the
remaining seven and one third to another, on the same terms. But the
attendance of these minor barons also, at length became too burthensom
for their circumstances, and many of them were glad to be excused. The
kings took then the power of passing by such as they thought unable, by
not sending them writs of summons, and John extended his prerogative even
to omit summoning such of the _majores_ as he imagined were inclined to
oppose him. This however at length he was obliged to give up: For in his
Magna Charta it is said, _Ad habendum commune consilium regni faciemus
summoneri archiepiscopos, episcopos, abbates, commites, & majores barones
regni sigillatim, per literas nostras_[253].

The _barones majores_ were then fully and plainly distinguished from
the _minores_, and I think it will not be doubted they were such as had
the full complement of knights fees that made up an antient barony;
and, accordingly, we find in 1255, when Henry the Third had neglected
summoning some of these, the others refused to enter on any business,
_Quia omnes, tunc temporis, non fuerunt, juxta tenorem Magnæ Chartæ suæ,
vocati, et ideo, sine paribus suis, tunc absentibus, nullum voluerunt
tunc responsum dare, vel auxilium concedere vel prestare_. No king since,
ever omitted to summon all the greater nobility, until Charles the First
was prevailed upon to forbid the sending a writ to the Earl of Bristol by
Buckingham, who was afraid of being accused by that nobleman; but on the
application of the house of lords, and their adjourning themselves from
day to day, and doing no business, the writ at last was issued.

In the reign of Henry the Third also, the king’s prerogative of summoning
or omitting the lesser barons was likewise ascertained by an act of
parliament since lost, as we find by these words from history: _Ille
enim rex (scilicet Henricus Tertius) post magnas perturbationes, &
enormes vexationes inter ipsum regem, Simonem de Morteforti, & alios
barones, motas & sopitas, statuit & ordinavit, quod omnes illi commites &
barones regni Angliæ, quibus ipse rex dignatus est brevia summonitionis
dirigere, venirent ad parlamentum suum; & non alii nisi, forte, dominus
rex alia illa brevia illis dirigere voluisset_[254]. And from henceforth
no nobleman could sit in parliament without a writ. But there was this
difference between the greater and the lesser barons, that the former had
a right to their writ _ex debito justitiæ_, to the latter it was a matter
of favour; but when summoned, they, being really barons, had the same
rights with the rest, though sitting, not by any inherent title, but by
virtue of the writ. The other lesser barons, who were generally omitted
to be summoned, by degrees mixed with the other kings tenants in capite,
and were thenceforth represented by the knights of the shires[255].

But these baronies by tenure being long since worn out among the laity,
it is proper to proceed to the two ways now in being of creating peers,
by _writ_, and by _letters patent_. It is the lord Coke’s opinion, and
in this he has been followed ever since, that a writ to any man, baron,
or no baron, to sit in parliament, if once he hath taken his seat in
pursuance thereof, gains a barony to him and the heirs of his body. And
though the law, principally on the authority of that great lawyer, is
now so settled, certainly it is comparatively but a novel opinion, and
very ill to be supported by reason. The words of the writ are, _Rex tali
salutem, quia de advisamento & assensu concilii nostri, pro quibusdam
arduis & urgentibus negotiis statum & defensionem regni nostri Angliæ
contingentibus, quoddam parlamentum nostrum apud Westmonast. tali die,
talis mensis, proximo futuro teneri ordinavimus, & ibidem vobiscum, ac
cum prelatis magnatibus & proceribus dicti regni nostri, colloquium
habere & tractatum; vobis in fide & ligeantia quibus nobis tenemini,
firmiter injungendo mandamus, quod consideratis dictorum negotiorum
auctoritate & periculis imminentibus, cessante excusatione quacunque,
dictis die & loco personaliter intersitis nobiscum, ac cum prelatis
magnatibus & proceribus super dictis negotiis tractaturi, vestrumque
consilium impensuri, & hoc sicut nos, & honorem nostrum, ac expeditionem
negotiorum prædictorum diligitis, nullatenus omittatis_[256].

That this writ must be obeyed, there is no doubt, for every subject is,
by his allegiance, obliged to assist the king with faithful counsel: But
what right the party summoned acquired thereby is the question. The words
are not only personal to him, but restricted likewise to a particular
place and time; and accordingly, in antient times, we find many persons
summoned to one parliament, omitted in the next, and summoned perhaps to
the third. There is not a word therein that hints at giving the least
right to an heir; and what reason can be assigned why a man, by this
writ, should gain an estate of inheritance in a peerage, when, in letters
patents, it is admitted that he gains only an estate for life, without
the word _heirs_. That antiently there was no such notion appears from
the summons to parliament, where frequently we find the grandfather
summoned, the father passed by, and the grandson afterwards summoned:
Nay, in the rolls there are instances of ninety-eight persons being
summoned a single time only, and neither themselves, nor any of their
posterity, ever taken notice of afterwards. Or, if we were to allow
that this writ created an inheritance, what reason can be given why it
should be an estate tail only, and be confined to the heirs of the body,
and not, as all other new inheritances, created generally, go to the
collateral heirs?

But, in order to discover plainly what privileges persons so called
by writ, had, or could obtain in those times, it will be proper to
distinguish them into three kinds of persons. First, then, they were
either some of the _minores barones by tenure_; and these, when called,
had certainly all the privileges of the greater; or else they were
not barons at all, but plain knights or gentlemen; and, with respect
to these, it is plain they had a right to deliberate, debate, and
advise. But the better opinion is, they had no right to vote, but were
assistants and advisers only, as the judges are at present; for it is
absurd to suppose that, in those times, when the commons were low, and
inconsiderable, and the barons were more powerful than the crown, these
latter should suffer their resolutions to be over-ruled at the pleasure
of the king, by his calling in such numbers as we find he often did,
which must have been the case, if all he summoned had votes. But these
two kinds of persons gained by their writ, or sitting in consequence
of it, originally, no farther right than to be present at that time.
However, by many of these persons and their heirs having been constantly
summoned, especially since Henry the Seventh’s reign, and the ancient
practice of omitting any who had been very frequently so, going into
disuse, the distinction between the greater and the lesser barons was
forgot, and that opinion prevailed which my lord Coke had adopted, and
which is now the law, that a man, having once sat in parliament in
pursuance of the king’s writ, acquires thereby an estate tail to him and
the heirs of his body[257].

There were yet another kind of persons, not peers, that might be summoned
by writ. These were the eldest sons of peers, to whom the father’s
barony must descend; and in such case, if the heir was called by the
name of a barony that was in his father, he was a baron to all intents
and purposes. But it seems very plain, that this was not a new creation
of a barony; for in that case the son so called should have been the
lowest peer, whereas the practice is the contrary. The eldest son of the
duke of Norfolk, called by the title of lord Mowbray, sat first baron,
because that barony of his father’s is the antientest in England. It
seems, therefore, that this was considered as a transfer of the antient
barony by the joint consent of the father and king, and the father still
continues to sit by the remaining peerage in him. Accordingly we find no
instance of a baron’s son sitting on such a summons, unless the father
had another barony by which he might sit. If the father indeed had a
higher title, that has been reckoned sufficient to support his seat,
though his only barony was transferred to the son. This then being no new
creation, but a temporary transfer only of an old peerage, it should
seem, that this title, when once merged in the greater by the father’s
death, should go according to the old limitation; but of late we find
them considered as new creations. On the death of the late earl of Derby,
Sir Edward Stanley, his sixth cousin, succeeded, and sits in parliament
as baron Strange, by Henry the Seventh’s creation; but an elder son of
a former earl of Derby, having been called by writ while his father was
living, the Duke of Athol, as his heir by the female line, sits by the
same title of baron Strange of king Charles the First’s creation.

The descent of these two kinds of baronies are directed by the rules
of the descent of other inheritances at common law, and consequently
females are capable of succession, but with two exceptions; first, that
half blood is no impediment, and consequently the half brother excludes
the sister; secondly, that the honour is not divisible, and therefore,
if there be two or more sisters, heiresses, the title is _in abeyance_,
that is, is suspended, until the king makes choice of one of them and her
heirs; though by constant usage the law seems to be verging fast to a
constant descent to the eldest[258].

The third method of creating peers is by _letters patent_, which is the
most usual, and esteemed the most advantageous way; because a peerage is
thereby created, though the new nobleman hath never taken his seat, which
is not the case of a barony by writ. As to the manner of these creations,
there has a notable difference intervened since the accession of Henry
the Seventh from what was the practice before Richard the Second. In his
eleventh year began this method of creating by patent, in favour of John
de Beauchamp, who, though summoned, never sat there, but was attainted
by the next parliament, and afterwards executed. But, the attainder
out of the case, his patent in law could never have been deemed valid,
because Michael de la Pole was the lord chancellor who affixed the seal
to it, which had been before taken from him by act of parliament, and
he declared incapable of ever having it again. This, then, was a single
and ineffectual attempt of that weak prince to create a new peer without
the assent of parliament, which was the usual way, above thirty having
been made so in that very reign. His successors were too wise to follow
this example; for every barony newly created, till the union of the
roses, which were about fourteen, were, every one of them, as appears on
the face of the patents, by authority of parliament, if we except two
or three; and even these, on a close examination, will appear not to be
new baronies, but _regrants_ of old feudal baronies by tenure, which,
undoubtedly, were all in the sole disposition of the king[259].

But Henry the Seventh, having trodden down all opposition, was fortunate
enough to carry the point Richard had vainly attempted, and acquired
for his successors that prerogative which they have since enjoyed, of
creating peers at pleasure. The descent of these titles, created by
patent, is directed by the words of the creation. If heirs are not
mentioned, it is only an estate for life; if to a man and heirs of his
body, females are not excluded, but the general way is, to the heirs
male of the body of the grantée, perhaps, with remainders over, and they
descend as other estates entailed. The case of the dutchy of Somerset was
singular. Edward Seymour having sons by two venters, was created duke of
Somerset, and his heirs male of his second marriage, remainder to his
heirs male by his first. This title continued near two hundred years in
the younger branch, until, upon its failure in the late duke of Somerset,
Sir Edward Seymour, the present duke, the heir by the prior marriage,
succeeded by virtue of the remainder.

In the case of lord Purbeck, in Charles the Second’s reign, it was
controverted whether a title could be extinguished, for as lord Purbeck
had surrendered his honour by fine to the king, and there it was
determined, and so the law now stands, contrary to many precedents that
were produced, that the title is inherent in the blood, and while that
remains uncorrupted, can by no means be extinguished by surrender or
otherwise, and this, generally, whether the peerage be created by patent
or by writ; for Purbeck’s was by writ. In case of a patent where the
dignity is expressly entailed, it is surely as reasonable that it should
be impossible for the possessor to destroy the entail, as in an estate
tail of land, created by the king, and yet in old times there had been
many instances to the contrary. I shall mention but two that happened in
this kingdom.

Sir Thomas Butler was created baron Cahir by Henry the Eighth to his
heirs general. His heirs male failed in his son Edmond, the second baron,
and his nephew, Sir Theobald, was, in 1683, by queen Elizabeth created
baron Cahir; but it being found that Sir Thomas left daughters, to one
of whom the title ought to have been assigned by the queen, one of them,
and the heir of the other, who was dead in 1685, bargained, sold, and
released to Sir Theobald and his assigns, their right and title to the
said honour. The other was the case of the honour of Kingsale. Charles
the First, apprehending the barony of Kingsale to be extinguished by
attainder, created Sir Dominick Sarsfield viscount Kingsale, but, upon
lord Kingsale’s petition, and proof made by him that his barony still
subsisted, it was ordered that Sarsfield should surrender his viscounty
of Kingsale, and be treated viscount of Kilmallock, with his former
precedence, which was accordingly done.

These two instances were, indeed, of a particular nature, and calculated
to rectify grants that had arisen from error; but in England there were,
in ancient times, many instances of such surrenders without error. They
were, indeed, generally made in order to obtain higher titles; and
therefore it is no wonder they passed _sub silentio_, and were never
disputed. But as to the old baronies by tenure that were annexed to
land, nothing is clearer than that, by the king’s consent, they might
be aliened or surrendered, notable instances of which happened in the
reign of Henry the Third. Andrew Giffard, baron of Pomfret, surrendered
to the king; and Simon de Montfort, a nobleman of large possessions in
France, had two sons by the heiress of the earldom of Leicester, in whose
right he was earl of Leicester, and, having a mind to settle his second
son in England, assigned the earldom over to him, as Selden says; or,
which comes to the same thing (for the eldest son was equally defeated)
surrendered it to the king, who granted it to the second, according to
Camden.

All noblemen are equally so, and, therefore, each others peers; but they
differ in rank and precedence. The ranks are five; _dukes_, _marquisses_,
_earls_, _viscounts_, _barons_. The first duke was created by Edward the
Third; the first marquiss, by Richard II.; the first viscount, by Henry
the Sixth. Though their dignities are now personal, and annexed to the
blood, yet as they were originally annexed to land, so much of the old
form remains, that, in their creation, they must be named from some place
in some county; though I do not apprehend it to be material at this day,
whether there really be such a place or not. With respect to the raising
a lord from a lower degree of dignity to a higher, I should observe,
that long before Henry the Seventh’s time, the king had the right solely
in himself, though it was frequently done in parliament; for this was
not adding to the number of the peers, but an exertion of the ancient
prerogative of his settling precedence according to his pleasure. This
continued in England till Henry the Eighth, by act of parliament, settled
it according to antiency, and it still continues in Ireland, though it
has not been exerted since Henry the Seventh’s time, when lord Kingsale,
a Yorkist, was obliged to change places with lord Athenry, a Lancastrian,
and from first became the second baron, which hath continued his rank,
till lately, that Athenry was created an earl[260].




LECTURE XXI.

    _Earls or Counts as distinguished from Barons—The office of
    Counts—Their condition after the conquest—Counties Palatine in
    England—Counties Palatine in Ireland—Spiritual Peers—The trials
    of Noblemen._


In my last lecture I treated of baronies, which are the lowest rank
of peerage, and of the right whereby this class of nobles sits in the
great council of the nation, and also of the various methods that have
prevailed in different ages of creating them; but before I have done with
the higher nobility, it will be necessary to say something of _earls_ or
_counts_ as distinguished from barons; for they differ from them, not
only in having a greater number of knights fees, and consequently having
a greater revenue, but in possessing also a more extensive jurisdiction.
The institution of _counts_, I observed in a former lecture, wherein
I treated of the progress of the feudal law, was not, originally, a
part of the feudal policy. They were, indeed, always chosen out of the
king’s companions, who resided in his house, and were therefore called
_comites_, but they were not set to preside over Germans, who were the
conquerors, but over such of the old inhabitants, Romans or Gauls, who
by a voluntary submission had retained their freedom, and who in every
respect, except bearing a share in the legislature or government, were on
an equal footing with the conquerors[261].

The office of these counts was threefold, to judge these freemen in
peace, to conduct them in war, to manage the king’s demesnes in their
respective districts, and to account with him for them and the profits
of his courts of justice; which were very considerable when all offences
were punished by fines. At the beginning they were temporary officers,
but they soon became fixed for life, and at length, towards the latter
end of the second, and in the beginning of the third race in France,
they got, through the weakness of the crown, estates in fee in their
counties; and either by grants of the kings, or by usurpation, converted
the profits they before accounted for to the crown, for their own use,
and held their courts in their own name. In short, they became petty
sovereigns, paying only homage, and the usual services of ward, marriage,
and relief to their supreme lord; and as such they coined money, levied
war against their neighbours, nay frequently against the king himself;
until Lewis the Eleventh found the means of humbling them, and brought
the crown out of tutelage, as the French express it[262].

The present state of Germany is an exact representation of what the
French and the other continental monarchies were in those days, except
that the kings had large countries, and multitudes of vassals immediately
subject to them; whereas the emperor hath now none. But in England
these lords, tho’ very powerful, never ascended to such a pinnacle of
grandeur. Their first constitution here we must refer to the time of the
division of England into counties, to which they had a reference, which
is generally ascribed to Alfred. Their power and office was exactly the
same with the counts on the continent in those early times, namely, to
judge and lead the freemen to war. For the greatest part of the lands of
England were at that time allodial, as is proved by Spelman, contrary to
the opinion of Sir Edward Coke; although, with him, it must be allowed,
that there were fiefs also before the Conquest, and that they were not
all introduced at that period. Till that time their office was only for
life, and they were known by various names, as _duces_, _comites_, and
_consules_ in Latin, _ealdermen_ in Saxon, and _earls_ in the Danish
tongue[263].

But William, having turned all the lands into feudal, was obliged to
put his earls on the same footing, that those on the continent were
in his time, and consequently to make them hereditary. However he and
his successors were careful not to give them such extensive powers
and revenues as they had abroad. The county courts were held in the
king’s name, neither were the earls allowed the whole profits of them,
two-thirds of them being reserved to the king; and in appearance to
ease them, who were often obliged to attend in council or in war, but
in reality to prevent the king’s being defrauded, and to prevent the
too great influence which their judging in person might acquire to them
in their districts, officers chosen by the people, and approved by the
king, were substituted to administer justice under the names of _vice
comites_, or sheriffs; these were to pay to the king the two-thirds, and
to the earl his third of the profits, which was in those times looked
upon as so incident to an earldom, as to pass with it, although express
words were wanting; so that in those times an earl and a county were
correlatives[264].

Each earl took his title from some one county, and the number of the one
could not exceed that of the other. King John, however, altered their
nature in some measure, and his example has been followed in depriving
the earl of the thirds of the county profits; for he created Henry de
Bohun earl of Hereford, and granted to him twenty pounds yearly, to be
received out of the third penny of the county in lieu thereof. But it is
plain that the justice and success of this invention was doubted of at
first, for John took a collateral security from the earl, that he should
never in his earldom claim any more than the twenty pounds expressly
granted him. These sums, so granted, are called _creation money_, and
were formerly expressly granted out of the third penny of the county; but
of late have been made payable at the Exchequer. Such was the nature of
the ancient earldoms that were by tenure, and had reference to counties.
The modern ones, that are merely honorary, and go with the blood, were
first made in parliament. Afterwards the king was allowed, by his sole
authority, to advance a baron to a higher rank; for that was not adding
to the number of the peers; but the creation of a bare gentleman a
peer at once hath only been practised since the accession of Henry the
Seventh[265].

Before I quit this head of earldoms, it will be proper to say somewhat
about _counties palatine_ which had extraordinary privileges, like
unto the counties and duchies abroad. The first was that of Chester,
erected by the Conqueror, in favour of his nephew Hugh Lupus, in these
words: _Totumque hunc comitatum tenendum sibi & hæredibus, ita libere ad
gladium, sicut ipse rex tenet Angliam ad coronam_. The effect of this
creation was to have _jura regalia_; for the earl palatine might pardon
treason, murder, and other offences, might make justices of assize, gaol
delivery, and of the peace; might create barons of his county palatine,
and confer knighthood. They had likewise all forfeitures, that arose by
the common law, or by any prior statute; but forfeitures arising from
statute, made after the erection of the county palatine, belonged to the
king. They had courts as the king had at Westminster, and out of their
chancery issued all writs, original and judicial. Neither did the king’s
writs run within the county palatine, except writs of error, which were
in the nature of appeals, or in cases where, otherwise, there would be
a failure of justice. All manner of indictments and processes were made
in the name, and every trespass was laid to be done against the peace of
him that had the county palatine. But these and some other privileges
have been taken away, and annexed to the crown, in whose name they must
now be; but the _teste_ of the writs is still in the name of the earl
palatine[266].

Of these counties palatine there are now in England four, Lancaster
united to the crown, Chester to the principality of Wales; Durham and
Ely, each belonging to the bishop of the place; but the privileges of
these two are going fast into disuse. But in this kingdom, (Ireland) for
the encouragement of adventurers, the whole country, as fast as it could
be reduced, was erected into palatinates, and very little, except the
cities, retained in the king’s hand. The making so many great lords, who
had frequent quarrels with each other, and that at such a distance from
the seat of government, was one great occasion of the slowness of the
settlement of the kingdom. For, to strengthen themselves, such of them
as resided here attached the natives to them, and taught them the use of
arms, and others that dwelt in England entirely neglected to send hither
any defence, so that, by the end of Edward the Third’s time, the Irish
had repossessed themselves of almost the whole kingdom, if we except five
or six counties; whereas in John’s reign they held not above half, and
that under homage and tribute, either to the king, or the lords, who had
grants from him.

I shall give a short detail of these palatinates, and an account of the
manner of their distinguishment. The present county of Gallway, under
the name of the county of Cannaught, was a palatinate in the De Burghs;
as was Ulster, first in De Courcy, then in De Lacy; and these two were
united by De Burgh’s marriage with Lacy’s daughter, and afterwards
descended to Lionel of Clarence’s daughter, who married the earl of
March, and, in the person of Edward the Fourth, merged in the crown.
In the same prince, likewise, merged that of Meath, which, being in
another branch of the Lacy’s, was divided into the eastern and western
between two daughters. The former came by descent to the house of March,
and so to Edward the Fourth. Strongbow had the grant of Leinster as a
Palatinate, which at length was divided into five distinct ones between
his grand-daughters, who being married to English noblemen, took no care
for the defence of the country, their titles, estates, and Jura Regalia
were taken from them by act of parliament, under Henry the Eighth.

Kildare, being in the hands of the earl of that name, escaped for a
little time, until he was attainted under the same king, where it ended;
for though his heir was restored to the title and estate by queen Mary,
it was with an express exception of the palatinate. The kingdom of Cork,
containing that county and the south of Kerry, was another palatinate,
granted to Fitz Stephen and Cogan, who made partition between them; and
on Fitz Stephen’s death without issue, his part escheated to the crown.
Cogan’s share should have gone to the Courcey’s and Carens, but they
could never obtain the possession of it; for the earl of Desmond got the
estate by purchase from a Cogan who pretended a right, and held it; so
this share of the palatinate fell likewise into disuse. Desmond, indeed,
had interest enough to get a new palatinate created for himself in the
county of Kerry, called Desmond, which for repeated rebellions was justly
forefeited to queen Elizabeth.

Edward the Third erected the palatinate of Tipperary in favour of the
earl of Ormond, who was grandson to Edward the First, which continued in
that family, with some interruptions, until the attainder of the late
duke in 1715. Thus by degrees the crown regained the power it had parted
with, and was at length enabled, though with difficulty, to reduce the
whole kingdom, which had been well nigh lost by means of such profuse
grants.

Besides the temporal peers, there are spiritual ones, that is the
bishops, and, they have seats in parliament, which antiently many
abbots also enjoyed. The original of this right was from the feudal
customs. The priests of the Germans, while they continued pagans, were
necessary attendants in their general assemblies, not only for advice,
but the benefit of their prayers and divinations. When these nations
embraced Christianity, they transferred the same veneration and honour
to their new instructors and bishops; and sometimes other churchmen of
eminence, though they held lands not by military tenure, but by what is
called _free alms_, were, in every nation as well as England, members
of the states of parliaments. But since the conquest they have begun to
sit by another right, namely by their baronies; the conqueror having
converted their estates in free alms into baronies, and to their great
mortification, subjected them to military service[267].

Upon this head several questions have been propounded, as how far they
are lords of parliament, and whether the clergy are a third estate of
the realm, and sit solely in that right. This is a question of some
importance, because if they make a distinct estate, no law would be good
to which the majority of them did not consent. Certain it is that in
France, the clergy made one estate, the nobility the second, the burghers
the third; and in Sweden the peasants make the fourth, all sitting in
distinct houses, the majority of each of which must concur. And therefore
I do believe, that when, in England, we talk of _three estates_, the
clergy, not the bishops alone, make one of them, contrary to the modern
opinion, that the king is the first estate, and the bishops and the
nobility the second; for the king is in no country reckoned one of the
estates, but the head of all. However from this no argument can be drawn
that the bishops should sit separately, or that a majority of them, as
representing the clergy, should concur.

As to sitting separately, it is pretty clear that, by the old law,
none were members of parliament, but the immediate military tenants of
the king, and that they sat all in one house, however their titles and
fortune might differ; being all equal as to rank, with respect to the
king, and all having the same rights. The division of parliament into two
houses was never known in Scotland, who, in all probability, modelled
their constitution from their neighbours; nor doth it appear in England
previous to Edward the First, but arose, probably, from the great barons
disdaining to sit, as equals with citizens and burgesses. For even, after
this time, they did not disdain to associate with the knights of the
shires, who represented the minor barons, and other military tenants, as
appears by many instances. But for a number of centuries past the gentry,
which were formerly considered as a lower noblesse, and are so abroad,
have been melted into one body with the other commoners[268].

If then there was originally but one house, and if, since the division,
the bishops have constantly sat in the house of peers, there can be no
pretence for any privilege for them more than for the body of barons or
earls. It is urged, likewise, that several valid acts of parliament were
passed without any bishop present; but this happened only in distracted
times; and, whoever might think it prudent or proper to absent themselves
at a particular season, it will hardly be said to be a good parliament
when they were not summoned; and if, at any time, they refused to attend,
there was no reason why the public business should stop, as they sat, not
as an independent constituent part of parliament, but each distinctly
for himself, in right of his barony. From these occasional and general
absences of theirs, an opinion grew up by degrees, and now is established
law, that there is a material difference between bishops and lay lords,
in respect to their nobility. In truth, that they are not peers to each
other, and consequently that a bishop cannot sit in judgment on the life
of a peer, neither is he to be tried by the peers, but by a jury of
commoners.

It is worth while to see how these opinions grew up; for, from the
original constitution, every bishop, being a baron by tenure, and having
a fee simple therein, had certainly as great right as other barons; but
the canon law having forbid any ecclesiastics being concerned in matters
of blood, and they being obliged by the common law to attend judgments
in parliament, were in a great streight between the two laws, how to act
when a peer was capitally accused. They at length obtained from Henry
the Second in the constitutions of Clarendon, the following allowance:
_Et sicut cæteri barones debent interesse judiciis curiæ, regis quousque
perveniatur ad diminutionem membrorum, vel ad mortem_; where the last
words are plainly an exception in their favour, in derogation to the
common law, on account of their peculiar circumstances under the canon.
However, as many questions might arise before it came to the last vote,
that might intirely influence the final determination, they used to
absent themselves totally, and this going on for ages, and the feudal
baronies wearing out, and all titles becoming fixed to the blood,
not to the land, they came to be considered as peers of a different
nature, because their blood did not succeed, and that which was first a
favourable permission, was construed a prohibition; and when this was
once established, it followed necessarily, that, not being peers to the
nobility by blood, they must be tried by commoners[269].

With respect to the trials of noblemen, now I have said so much on that
head, I shall observe, they were carried on in two different methods.
Either the accused person was tried in parliament, and then all the
temporal lords had voices, or he was tried by a jury of peers; that is
the king appointed twenty-four noblemen for that purpose: A law that has
proved fatal to many noblemen, who happened to fall under the displeasure
of the court. A commoner hath a right to prevent the sheriffs returning
a jury to try him, if he can shew a just exception to the sheriff; and
after the return is made, he can challenge a certain number for causes
known only to himself, and as many more as he can prove sufficient matter
of exception to. Such care did the law take of the lives of the commons,
but no exception lay for a peer to the king’s return. The law would not
suppose the least partiality in him, even in his own cause; neither would
it suspect that a peer could be biassed by any consideration from doing
strict justice, and therefore no challenge lay against him for any cause,
however strong and notorious; and the same confidence is the reason why
they give their votes, guilty or not guilty, not upon their oaths, but
upon their honours.

I can scarce imagine that this method of trial could have prevailed in
the times of the great power of the barons, when they often made the
crown to totter; neither have I been able to discover its beginning.
Certain it is that, in the reigns of the Plantagenets most, if not all
noblemen, were tried in full parliament; and as certain it is, that,
during the reigns of the Tudors and Stuarts, the other was universally
followed; insomuch that every nobleman was sure either to suffer or
escape, according as the court was at that time affected towards him.
At length, after many struggles, about 1695, the bill for regulating
trials for high treason and misprision of treason was passed; one clause
of which provides, that on the trial of peers, every lord who hath a
right to vote in parliament, shall be summoned, and have a right to
vote. Thus was the inconvenience attending the king’s naming the jury
remedied; but the law in the other point stands as before, that no peer
can be challenged. According to this law have all trials of Irish peers
proceeded since that time, though there is no act for that purpose in
this kingdom[270].




LECTURE XXII.

    _The share of the Commons in the Legislature—The Armigeri or
    Gentry—Knights Bannerets—The nature of Knighthood altered
    in the reign of James I.—Knights Baronets—Citizens and
    Burghers—The advancement of the power and reputation of the
    Commons._


Having given a general idea of the lords, and their share of the
legislature, it will now be proper to descend, and see the several
classes of the lower rank, called _Commons_, and to examine what share
or influence they had formerly, or now enjoy, in the government. The
commoners may, in general, then, be divided into the _lesser nobility_,
or _gentry_, and the others, whom, for distinction sake, I shall call
the _lower commons_. For although, since the reign of Henry the Eighth,
many men of the best families, and some descended from the nobility,
have engaged in commerce, and thereby brought lustre to that order of
men, before that time all persons engaged in trade were held in as much
contempt by the gentry of England, as they are at present, by those of
any nation; and a gentleman who employed himself in hunting, or perhaps
serving the king, or some great lord, was looked upon to have degraded
himself.

The gentry were called _Armigeri_, because they fought on horseback,
in compleat armour, covered from head to foot; whereas the infantry’s
defensive arms were of a slighter kind, and no compleat covering. But we
are not to imagine that all who fought on horseback compleatly armed,
were gentry; for, in order to compleat their squadrons, men of the lower
ranks, who, by their strength of body, and military skill, were capable
of service, were admitted, but this did not make them gentlemen. Hence,
in our old histories, we find the _knights and esquires_, that is, the
real gentry, carefully distinguished from the _men at arms_. The peculiar
privilege of the gentry was the bearing on their shields certain marks,
to distinguish them from each other, and the men at arms called _Coats
of Arms_. At first they were personal privileges, and not inherent in
the blood, and the marks and rewards of some personal act of bravery
performed by the bearer; so we find in the romances, that a new knight
was to wear plain white, until, by some exploit, he merited a mark.
The general opinion is, that they were first introduced at the time of
the crusades, which I believe is pretty just, at least with respect to
our country: for the imperial crown of England had no arms before the
conquest. The Norman kings bore the arms of Normandy, _two leopards
passant_, to which Richard the First added that of Guienne, another
leopard passant, and so composed this English coat, in which, among other
alterations, the leopards have since been changed to lions[271].

For the further encouragement of valour, these marks became transmissible
to heirs, not to the eldest son only, as lands, but to all the sons;
saving that the younger were to take some addition, for distinction sake.
While these coats were granted by the king alone, and that for real
service done, and consequently were not too common; and while the custom
of wearing compleat armour remained, and the office of high constable
(the judge in such matters) continued, the gentry were very curious in
preserving these distinctions, and vindicating them from usurpation. But
as the military disposition of our gentry hath greatly subsided since the
loss of the provinces in France, and the kings at arms have assumed the
power of giving coats, nicety in these respects hath long since expired;
and now, as in a commercial country, especially, it should be, education
and behaviour are sufficient criterions of a gentleman.

I shall therefore say no more of them, as distinguished from the rest
of the commonalty, but observe, that of these there are two ranks,
_knights_ and _esquires_, or gentlemen. For though we now make a
distinction between these two last, the old law knew none, nor is it now
a misnomer, in a writ of pleadings, to stile an esquire a gentleman, or
the contrary. The holding of a knight’s fee did not make a man of that
order, but there were particular ceremonies required for the purpose. For
the original design of the institution of _dubbing knights_, was that,
after a person had, by performing military exercises, shewn that he had
properly accomplished himself, and was capable of that honourable service
in the field, in his proper person, he should, by a public solemnity,
be openly declared so. No wonder, then, that the highest nobility, the
sons of kings, nay kings themselves, thought this title an addition to
their dignity, as it was then an infallible proof, that they had not
degenerated from the virtue of their ancestors[272].

But among knights there were some of a more distinguished kind (I do
not mean to speak of particular orders, such as those of the garter and
others) called _Bannerets_, as knights in general were made, upon their
proving themselves by exercises capable of service. These were never
made but for an actual exploit in war, and then were dubbed with great
solemnity under the royal banner. Their distinction was bearing a little
banner, annexed to the wooden part of their lance, adjoining the iron
point; as, originally, every man who had a whole knight’s fee, or the
amount thereof in parts of fees, was obliged to serve in person, and was
not allowed a proxy, but in cases of necessity every such person was
obliged to appear upon the king’s summons, to shew himself qualified, and
to receive the order of knighthood. This power continued in the king,
even after the military tenants were discharged of personal attendance
on sending another, or paying escuage, and came to be considered as a
profitable fruit of the king’s seignory, and was frequently used as an
expedient to raise money, by obliging the unqualified, or those who had
no mind to the expence or fatigue of attending, to compound[273].

This right of composition was established by act of parliament, the
first of Edward the Second, which likewise fixes the estate the persons
summoned must have at twenty pounds a year, the quantity of a knight’s
fee; twenty pounds a year was indeed the valuation of a knight’s fee at
the time of the conquest, but by change of times, in Edward the Second’s
reign, it may well be esteemed forty; so that by this act a man who
had half a knight’s fee was liable to be summoned. This was one of the
unhappy means made use of by king Charles the First to procure money
when he quarrelled with his parliament. He was sensible, indeed, of a
difference in the value of money, and therefore summoned none but such
as had forty pounds a-year; but had he paid due attention to its real
rise, he should have summoned none under an hundred and twenty. For in
Edward’s reign a pound in money was a real pound in silver, whereas in
Charles’s, it was but a third part, and so the proportion was to sixty
pound sterling, and sixty more is the least rise that can be allowed for
the improvements in the value of lands, by the intermediate increase of
commerce. No wonder, therefore, that his people looked upon it as an
unsupportable grievance. Accordingly, in the 17th of his reign, the act
of Edward the second was repealed, and in Ireland, it vanished with the
tenures on which it depended[274].

The great change in the nature of knighthood happened in the reign of
James the First. The Plantagenets never created any persons such but with
a view to military merit, except their judges. The Tudors extended it to
persons who had served them well in civil stations, but so sparingly, and
to persons of such evident merit, that it still was an encouragement to
those that deserved well of the public. But James, who had a passion for
creating honours, poured forth his knighthoods, without regard to desert,
with so lavish an hand, confirming them for money frequently on wealthy
traders, and others without any apparent public merit, that thereby, as
also by creating an order of hereditary knights, called _baronets_, a
knighthood soon lost the badge of merit it before had carried.

The occasion of creating baronets was this. On the escheat of the six
counties in Ulster, they were planted with colonies of Scotch and
English; and, as it was necessary to support a standing army there, for
some years after, for the defence of the infant settlements, and money
was wanting for that purpose, as, in that reign, it always was for every
other, this scheme of creating an order of hereditary knights, to take
place after the barons, was fixed upon for that purpose. At first it
had some aspect towards military service, for each of them was obliged
to maintain so many soldiers in the plantation, for a limited time; and
to make the honour more valuable, and to get the better terms for it in
the first plan, it was provided, that no more than two hundred should
be originally created; and when any of them failed, no new ones to be
created in their room. But it was soon seen that these new knights,
when they had once attained their dignities, might not duly perform the
services they engaged for. The maintaining the soldiers, therefore,
was commuted into a sum paid to the king, who undertook to do it; and
had he been a good œconomist, it would have been a prudent precaution,
but whatever sums he could lay his hands on were always at the mercy of
his reigning favourite. He was, therefore, obliged to depart from his
intended limitation, and to exceed his number; and yet, after all, the
service was not done so well as it should have been. His successors have
followed his example, in adding to the number, which now is certainly
unlimited[275].

Next to the gentry, or military order, in estimation among the northern
nations stood the _citizens_ and _burghers_, that is, the trading
part of the nation, whether merchants or artificers. These were for
some ages held in a very low light, none of the conquerors or their
defendants applying themselves to such occupations. They were, indeed,
at first, allowed certain privileges and enjoyed their own laws, under
the inspection of magistrates appointed by the king, known by the name
of _Præpositi_, _Provosts_, or some other equivalent title. But these
liberties did not last long. The turbulent temper of the times, the
frequent competitions for the throne, and the many rebellions of the
great lords, occasioned the towns and their inhabitants to be taken in
war, one after another; and the persons so taken, were, by the prevailing
_Jus Gentium_ of these ages reduced to servitude; not, however to a
condition so low as the _villeins_, who were, properly, the slaves of
those people, and had no property but at the will of their lords. However
it is, no state, except one absolutely barbarous, could subsist without
artizans; and as commerce is the parent of wealth, and as neither it,
nor arts, could thrive where property is not, in some sort, secure, the
lords were in some degree, by their own interest, obliged to relinquish
to these people the seizing of their goods at pleasure, as they practised
towards their villeins, and to leave them at liberty to make regulations
among themselves for the benefit of trade[276].

Thus far, then, they were free, but their servitude consisted in their
being liable to taxes, or _tailliages_, at the will of the lords, who, if
they were wise, laid on such only as they could well bear; but miserable
was their condition when they fell into the hands of one who was needy
and rapacious; for, then, they were often fleeced, even to ruin and
depopulation. This induced the wiser lords, who saw the consequences,
and how much the arbitrary exertion of such powers must, in the end,
hurt themselves, to restrain their own powers; and, by degrees, by
granting them _charters_, to emancipate them. They formed them into
_bodies corporate_, confirmed the right of making _bye-laws_, which had
been permitted them, and granted them other privileges, or _franchises_,
as they called them, from their being infranchised, in derogation to
former regal or seignoral rights. But for their total freedom they were
indebted to parliament, which, seeing the bad use king John made of his
right in this kind, provided thus in Magna Charta, _Civitas London habeat
omnes libertates suas antiquas, & consuetudines suas. Præterea volumus
& concedimus, quod omnes aliæ civitates, burgi, & villæ, & barones de
quinque portubus, & omnes alii portus, habeant omnes libertates & liberas
consuetudines suas._ And another chapter restrains the king from laying
new and evil tolls, and confines him to the antient customs[277].

Hitherto, however, the citizens and burgesses were no part of the body
politic, and were not represented in parliament. But as, with their
security, their wealth and consequence encreased, about, or before the
year 1300, they were admitted to that privilege; that they might, in
conjunction with the knights of shires, be a check on the overgrown
power of the mighty lords; and about that time also the same privilege
was allowed to this class of people in the other nations of Europe also.
This right was confirmed, and so I may say, the _house of commons_, in
its present condition, formed by the statute of the thirty-fourth of
Edward the First. _Nullum tallagium vel auxilium, per nos vel heredes
nostros, in regno nostro ponatur, seu levetur, sine voluntate & assensu
archiepiscoporum, episcoporum, comitum, baronum, militum, burgensium,
& aliorum liberorum communium de regno nostro_; where we see, not only
the burgesses, but free yeomen also had representatives, namely, by
their voting along with the knights of the shires, according to the
maxim of that wise prince, _Quæ ad omnes pertinent, ab omnibus debent
tractani_[278].

Having come to the constitution of the house of commons as it stands
at present, it will not be amiss to look back, and see how far its
present form agrees with, or differs from the feudal principles. These
principles, we have seen, were principles of liberty; but not of liberty
to the whole nation, nor even to the conquerors; I mean, as to the point
I am now upon, of having a share in the legislation. That was reserved
to the military tenants, and to such of them only as held immediately
of the king. And the lowest and poorest of these also, finding it too
burthensome to attend these parliaments, or assemblies, that were held
so frequently, soon, by disuse, lost their privileges; so that the whole
legislature centered in the king, and his rich immediate tenants, of his
barony. And it is no wonder the times were tempestuous, when there was no
mediator, to balance between two so great contending powers, and were it
not that the clergy, who, though sitting as barons, were in some degree
a separate body, and had a peculiar interest of their own, performed
that office, sometimes, by throwing themselves into the lighter scale,
the government must soon have ended either in a despotical monarchy, or
tyrannical oligarchy.

Such were the general assemblies abroad in the feudal countries, but
such were not strictly the _wittenagemots_ of the Saxons, for their
constitution was not exactly feudal. I have observed that the most of
their lands were allodial, and very little held by tenure. The reason
I take to be this: On their settlement in Britain they extirpated, or
drove out, the old inhabitants, and therefore, being in no danger from
them, they were under no necessity of forming a constitution compleatly
military. But then those allodial proprietors being equally freemen, and
equal adventurers with these who had lands given them by tenure, if any
in truth had such, they could not be deprived of their old German rights,
of sitting in the public assemblies. From the old historians, who call
these meetings _infinita multituda_, it appears that they sat in person,
not by representation[279].

This constitution, however, vanished with the conquest, when all the
lands became feudal, and none but the immediate military tenants were
admitted. We find, indeed, in the fourth year of William the First,
twelve men summoned from every county, and Sir Matthew Hale will have
this to be as effectual a parliament as any in England[280]; but, with
deference to so great an authority, I apprehend that these were not
members of the legislature, but only assistants to that body. For if
they were part thereof, how came they afterwards to be discontinued till
Henry the Third’s time, where we first find any account of the commons?
The truth seems to be, that they were summoned on a particular occasion,
and for a purpose that none but they could answer. On his coronation he
had sworn to govern by Edward the Confessor’s laws, which had been some
of them reduced into writing, but the greater part were the immemorial
custom of the realm; and he having distributed his confiscations, which
were almost the whole of England, into his follower’s hands, who were
foreigners, and strangers to what these laws and customs were, it was
necessary to have them ascertained; and, for this purpose, he summoned
these twelve Saxons from every county, to inform him and his lords what
the antient laws were. And that they were not legislators, I think
appears from this, that when William wanted to revive the Danish laws,
which had been abolished by the Confessor, as coming nearer to his own
Norman laws, they prevailed against him, not by refusing their consent,
but by tears and prayers, and adjurations, by the soul of Edward his
benefactor.

Thus William’s laws were no other than the Confessor’s, except that
by one new one, he dextrously, by general words, unperceived by the
English, because couched in terms of the foreign feudal law, turned all
the allodial lands, which had remained unforfeited in the proprietor’s
hands, into military tenures. From that time, until the latter end of
Henry the Third’s reign, our parliaments bore the exact face of those on
the continent in that age; but then, in order to do some justice to the
lesser barons, and the lower military tenants, who were entitled by the
principles of the constitution to be present, but disabled by indigence
to be so in person, they were allowed to appear by representation,
as were the boroughs about the same time, or soon after. The persons
entitled to vote in these elections for knights of the shire, were, in
my apprehension, only the minor barons, and tenants by knight service,
for they were the only persons that had been omitted, and had a right
before, or perhaps with them, the king’s immediate socage tenants _in
capite_.

But certain it is, the law that settled this had soon, with regard to
liberty, a great and favourable extension, by which all freemen, whether
holding of the king mediately or immediately, by military tenure or
otherwise, were admitted equally to vote; and none were excluded from
that privilege, except villeins, copy-holders, and tenants in antient
demesne. That so great a deviation from the feudal principles of
government happened in so short a time, can only be accounted for by
conjecture. For records, or history, do not inform us. I shall guess
then, that the great barons, who, at the end of Henry the Third’s reign,
had been subject to forfeiture, and obliged to submit, and accept of
mercy, were duly sensible of the design the king had in introducing this
new body of legislators, and sensible that it was aimed against them,
could not oppose it. But, however, they attempted, and for some time
succeeded to elude the effects of it, by insisting that all freemen,
whether they held of the king, or of any other lord, should be equally
admitted to the right of the representation.

The king, whose profession was to be a patron of liberty, Edward the
First, could not oppose this; and as he was a prince of great wisdom
and foresight, I think it is not irrational to suppose, that he might
be pleased to see even the vassals of his lords, act in some sort
independently of them, and look immediately to the king their lord’s
lord. The effect was certainly this, by the power and influence their
great fortunes gave them in the country, the majority of the commons
were, for a long time, more in the dominion of the lords than of the
crown; though, if the king was either a wise or a good prince, they were
even then a considerable check upon the too mighty peers.

Every day, and by insensible steps, their house advanced in reputation
and privileges and power; but since Henry the Seventh’s time, the
progress has been very great. The encrease of commerce gave the commons
ability to purchase; the extravagance of the lords gave them an
inclination, the laws of that king gave them a power to alienate their
intailed estates; insomuch that, as the share of property which the
commons have is so disproportionate to that of the king and nobles, and
that power is said to follow property, the opinion of many is, that,
in our present situation, our government leans too much to the popular
side; while others, though they admit it is so in appearance, reflecting
what a number of the house of commons are returned by indigent boroughs,
who are wholly in the power of a few great men, think the weight of the
government is rather oligarchical[281].




LECTURE XXIII.

    _The privilege of voting for Knights of the Shire—The business
    of the different branches of the Legislature, distinct and
    separate—The method of passing laws—The history and form of the
    legislature in Ireland._


The house of commons growing daily in consequence, and the socage tenants
having got the same privilege of voting for the knights of the shire as
the military ones, it naturally followed, that every free person was
ambitious of tendering his vote, and thereby of claiming a share in the
legislature of his country. The number of persons, many of them indigent,
resorting to such elections, introduced many inconveniences, which are
taken notice of, and remedied by the statute of the eighth of Henry the
sixth chapter the seventh which recites, that of late “elections of
knights had been made by very great, outrageous, and excessive numbers
of people of which the most part was of people of small substance, and
of no value, whereof every one of them pretended a voice equivalent
with the most worthy knights and esquires, whereby manslaughter, riots,
batteries, and divisions among the gentlemen and other people of the
same counties shall very likely rise and be, unless convenient and due
remedy be provided in this behalf;” and then it provides that, “no
persons should have votes, but such as have lands or tenements to the
value of forty shillings a year above all charges.” And so the law stands
at this day, though by the change in the value of money, by the spirit
of this statute, no person should have a vote that could not dispend
ten pounds a year at least. Such a regulation, were it now to be made,
would, certainly, be of great advantage both to the representers and
represented; but there is little prospect of its ever taking place: And
if it should be proposed, it would be looked upon as an innovation,
though in truth, it would be only returning to the original principles of
the constitution[282].

Our legislature, then, consisting of three distinct parts, the king,
lords, and commons, in process of time, each of them grew up to have
distinct privileges, as to the beginning particular businesses. Thus all
acts of general grace and pardon take their rise from the king; acts
relative to the lords and matters of dignity, in that house; and the
granting of money in the commons. How the commons came by this exclusive
right, as to money matters, is not so easy to determine. Certain it is
that, originally, the lords frequently taxed themselves, as did the
commons the commonalty, without any communication with each other; but
afterwards, when it was judged better to lay on general taxes, that
should equally affect the whole nation, these generally took their rise
in that house which represented the bulk of the people; and this, by
steadiness and perseverance, they have arrogated so far into a right
peculiar to themselves, as not to allow the lords a power to change the
least title in a money bill. As to laws that relate not to these peculiar
privileges, they now take their rise indifferently either in the lords or
commons, and when framed into a bill, and approved by both, are presented
to the king for his assent; and this has been the practice for these two
or three hundred years past[283].

But the ancient method of passing laws was different, and was not only
more respectful to, but left more power in the crown. The house which
thought a new law expedient, drew up a petition to the king, setting
forth the mischief, and praying that it might be redressed by such or
such a remedy. When both houses had agreed to the petition, it was
entered on the parliament-roll, and presented to the king, who gave such
answer as he thought proper, either consenting in the whole, by saying,
_let it be as is desired_, or accepting part and refusing or passing
by the rest, or refusing the whole by saying, _let the ancient laws be
observed_, or in a gentler tone, _the king will deliberate_. And after
his answer was entered on the roll, the judges met, and on consideration
of the petition and answer, drew up the act, which was sent to be
proclaimed in the several counties[284].

Lord Coke very justly observes that these acts drawn up by men, masters
of the law, were generally exceedingly well penned, short, and pithy,
striking at the root of the grievance, and introducing no new ones;
whereas the long and ill penned statutes of later days, drawn up in the
houses, have given occasion to multitudes of doubts and suits, and often,
in stopping one hole, have opened two. However, notwithstanding this
inconvenience, there was good cause for the alteration of method. The
judges, if at the devotion of the court, would sometimes, make the most
beneficial laws elusory, by inserting a salvo to the prerogative, though
there was none in the king’s answer; whereas, by following the present
course, the subjects have reduced the king to his bare affirmative or
negative, and he has lost that privilege, by the disuse of petitions,
of accepting that part which was beneficial to himself, and denying the
remainder[285].

I have the rather mentioned this ancient practice of making laws, because
it shews how inconsistent with our constitution is that republican
notion, which was broached by the enemies of Charles the First, that
the king, by his coronation oath, swearing to observe the laws _quas
vulgus elegerit_, was obliged to pass all bills presented to him, and had
no negative. The meaning, certainly, only extended to his observation
of the laws in being. For if the words were to be construed of future
propositions, and in the sense that those people would put upon them,
the lords also, as well as the king, must be deprived of their power of
dissent, and so indeed, it appears, they expounded it; for when the lords
offended them, by refusing the trial of the king, they confidently enough
with the maxim they had established, turned them out of doors.

But though such as I have mentioned is the constitution of the English
parliament, the form of the legislature in this kingdom hath been for
above two hundred and sixty years very different, the nature of which,
and the causes of its deviation from its model, it is proper every
gentleman of this country should be acquainted with. In the infancy of
the English government in Ireland, the chief governors were generally
chosen by the king out of the lords of the pale, the descendants of the
first conquerors, both as they were better acquainted with the interest,
and more concerned in the preservation of the colony, and also as,
by their great possessions, they were better enabled to support the
dignity of the place, whose appointments, the king’s revenue here being
inconsiderable, were very low. These governors, however, though men of
the greatest abilities, and of equal faithfulness to the crown, were not
able to preserve the footing the English had got soon after the conquest;
but were every day losing ground to the natives, down to the reign of
Edward the Third, which is generally, and, I believe, justly, attributed
to the negligence of the English lords, who, by intermarriages, had
acquired great estates in Ireland. The power of these lord lieutenants
was, in one respect, likewise exorbitant, namely, in giving consent to
laws without ever consulting his majesty, a power, perhaps, necessary at
first, when the country was in a perpetual state of war, and its interest
would not brook delays, but certainly, both for the sake of king and
people, not fit to be continued.

It was natural, therefore, for the king, who found himself ill served,
to change hands, and to entrust this exorbitant power with persons
not estated in the country, and whose attachment he could confide in;
and accordingly, from that time, we find natives of England generally
appointed to the government, to the great discontent of the Irish lords,
who looked upon themselves as injured by the antient practice not being
continued. This discontent was farther inflamed by a very extraordinary
step, which this otherwise wise and just king was prevailed upon to take,
and which first gave rise to that famous distinction between the English
by blood, and the English by birth. This king, and his father Edward
the Second, had granted great estates, and extensive jurisdictions to
many Irish lords of English blood, for services pretended to have been
done, many of which, it is probable enough, as the king alledged, were
obtained by deceit and false representation; and had he contented himself
with proceeding in a legal course, by calling these patents in by _scire
facias_, and vacating them upon proof of the deceit, no person could have
complained; but he took a very different method, as appears from the
writ he thought proper to issue on that occasion. _Quia plures excessivæ
donationes terrarum, tenementorum & libertatum, in terra Hiberniæ, ad
minus veracem & subdolam suggestionem petentium, tam per Edward II.
quam per regem nunc factæ sunt, rex delusorias hujusmodi machinationes
volens elidere, de concilio peritarum sibi assistentium, omnes donationes
terrarum, tenementorum, & libertatum prædictarum duxit revocandas,
quousque de meritis personarum, de causis & conditionibus donationum
prædictarum fuerit informatus, & ideo, mandatum est justiciariis regni
Hiberniæ, quod omnia terras tenementa & libertates predicta per dictos
regis justiciarios aut locum tenentes suos quibuscunque personis facto
scisire facias._ This hasty step alienated the English Irish from the
king and his advisers, and though, after a contest of eleven years, the
king annulled this presumption, the jealousy continued on both sides, and
the Irish of English blood, were too ready to follow the banners of any
pretender to the crown of England.

In the reign of Henry the Sixth, that weak prince’s ministers, jealous of
the influence of Richard duke of York in England, and of his pretensions
to the crown, constituted him governor of Ireland; than which they could
not have done a thing more fatal to their master’s family, or to the
constitution of this kingdom, as it turned out in the sequel; for to
induce him to accept it so eager were they to remove him from England,
they armed him almost with regal powers. He was made lieutenant for ten
years, had all the revenue, without account, besides an annual allowance
from England; had power to farm the king’s lands, to place and displace
officers, and levy soldiers at his pleasure. The use the duke made of
his commission was to strengthen his party, and make Ireland an asylum
for such of them as should be oppressed in England; and for this purpose
passed an act of parliament, reciting a prescription, that any person,
for any cause, coming into the said land, had used to receive succour,
tuition, supportation, and free liberty within the said land, during
their abiding there, without any grievance, hurt, or molestation of any
person, notwithstanding any writ, privy seal, great seal, letters missive
under signet, or other commandment of the king, confirming the said
prescription, and making it high treason in any person who should bring
in such writs, and so forth, to attach or disturb any such person.

This act, together with the duke’s popularity, and the great estate he
had in this kingdom, attached the English Irish firmly to his family,
insomuch that, in Henry the Seventh’s reign, they crowned the impostor
Lambert Simnel, and were afterwards ready to join Perkin Warbeck; and by
this act of the duke of York’s they thought to exculpate themselves[286].
But when that king had trodden down all opposition, he took advantage
of the precarious situation they were in, not only to have that act
repealed, and to deprive his representatives there from passing laws
_rege inconsulto_, but also to make such a change in the legislature, as
would throw the principal weight into his and his successors’ hands; and
this was by the famous law of Poyning’s[287]. By former laws a parliament
was to be holden once a year, and the lords and commons, as in England,
were the proposers. This act, intended to alter these points, gave
occasion to many doubts; and indeed, it seems calculated for the purpose
of not disclosing its whole effect at once. Its principal purport,
at first view, seeming to be intended to restrain the calling the
parliament, except on such occasions as the lord lieutenant and council
should see some good causes for it, that should be approved by the king.
The words are, that “from the next parliament that shall be holden by the
king’s commandment and license, no parliament be holden hereafter in the
said land, but at such season as the king’s lieutenant and council there
first do certify the king, under the great seal of that land, the causes
and considerations; and all such acts as to them seemeth should pass in
the same parliament, and such causes, considerations, and acts, affirmed
by the king and his council to be good and expedient for that land, and
his license thereupon, as well in affirmation of the said causes and
acts, as to summon the said parliament under his great seal of England
had and obtained; that done, a parliament to be had and holden after the
form and effect before rehearsed, and any parliament holden contrary to
be deemed void[288].”

The first and great effect of this act was, that it repealed the law for
annual parliaments, and made the lord lieutenant and council, or the king
who had the naming of them, with his council of England, the proposer
to the two houses of the laws to pass, at least of those that should
be so devised before the meeting of parliament. But the great doubt
was, as there were no express words depriving the lords and commons of
their former rights, whether, when the parliament was once met, they had
not still the old right of beginning other bills, or whether they were
not restrained to the acts so certified and returned. By the preambles
of some acts, soon after made, expressing that they were made at the
prayer of the commons in the present parliament assembled, one would be
inclined to think that the commons, after the assembling the parliament,
had proposed these laws. Certain it is, the latter opinion, supported by
the ministers of the king and his lawyers, gained ground. For, in the
twenty-eighth of Henry the Eight’s reign, an act was made suspending
Poyning’s law with respect to all acts already passed, or to be passed
in that parliament; the passing of which act was certainly a strong
confirmation of what was before doubtful against the house of lords or
commons in Ireland, whether they could bring in bills different from
those transmitted by the council, since here they both consented to the
suspension of the act, to make valid the laws they had passed or should
pass in that parliament, without that previous ceremony[289].

But in the reign of Philip and Mary, by which time this opinion, before
doubtful (for so it is mentioned in the act then made) was, however, to
be maintained, and strengthened, as it added power to the crown. The act
we at present live under was made to prevent all doubts in the former,
which was certainly framed in words calculated to create such doubts, to
be extended in favour of the prerogative. This provides, that as many
causes and considerations for acts not forseen before, may happen during
the sitting of parliament, the lord lieutenant and council may certify
them, and they should pass, if they should be agreed to by the lords
and commons. But the great strokes in this new act were two, the first
explanatory of part of the former in Henry the Seventh’s reign, that is,
that the king and council of England should have power to alter the acts
transmitted by the council of Ireland; secondly, the enacting part, that
no acts but such as so came over, under the great seal of England, should
be enacted; which made it clear, that neither lords or commons in Ireland
had a right to frame or propose bills to the crown, but that they must
first be framed in the privy council of Ireland, afterwards consented
to, or altered by the king, and the same council in England, and then,
appearing in the face of bills, be refused or accepted _in toto_ by the
lords and commons here[290].

It is true, that both lords and commons have attempted, and gained
an approach towards their antient rights of beginning bills, not in
that name, but under the name of _Heads of Bills_, to be transmitted
by the council; but as the council are the first beginners of acts of
parliament, they have assumed a power of modelling these also. The
legislature of Ireland is, therefore, very complicated. First, the privy
council of Ireland, who, though they may take the hint from the lords
or commons, frame the bill, next the king and council of England, who
have a power of alteration, and really make it a bill, unalterable, by
sending it under the great seal of England; then the two houses of lords
and commons, who must agree in the whole, or reject the whole; and, if
it passes all these, it is presented to the king for his assent; which
indeed is but nominal, as it was before obtained.




LECTURE XXIV.

    _Villenage—The Servi in Germany, mentioned by Cæsar and
    Tacitus, the predecessors of the Socmen or socage tenants in
    the feudal monarchy—Villeins in gross and villeins belonging to
    the land of the Lord—The condition of villeins—The different
    ways by which a man may become a villein—The means by which
    villenage or its effects may be suspended._


I now proceed to the lowest class of people that were in a feudal
kingdom, who, indeed, were not any part at all of the body politick,
namely _copyhold tenants_, _tenants in ancient demesne_, and _villeins_,
on which I shall not much enlarge as villenage is worn out both in
England and Ireland; and though the two former are common in England,
yet there are none such in this kingdom. I shall begin with _villenage_,
though the lowest kind, as I apprehend the other two by the tacit
consent of their lords, have for ages, from being villeins acquired the
privileges that distinguished them from such.

In a former lecture I gave it as my opinion, that, while the nations of
the north continued in Germany, there was no such order of men among
them; but that the persons among those people who were called _servi_
by Cæsar and Tacitus, were the predecessors of the _socmen_ or _socage
tenants_ in the feudal monarchy; though they certainly had not all
the privileges the socmen acquired, and that, after their settlements
in their conquests, this rank was introduced, and formed out of their
captives taken in war, in imitation of the Roman slaves. In this I am
strongly supported by my lord Coke, who quotes Bracton, Fleta, and the
Mirror, concerning their origin, to the following purpose: “The condition
of villeins who passed from freedom into bondage in ancient time grew by
the constitution of nations, and not by law of nature; in which time all
things were common to all, and by multiplication of people, and making
proper and private those things that were common, arose battles. And
then it was ordained by constitution of nations (he means by the tacit
consent of civilized nations) that none should kill another, but that
he that was taken in battle should remain bond to his taker for ever,
and he to do with him, and all that should come of him, his will and
pleasure, as with his beast or any other cattle, to give, or to sell, or
to kill. And after, it was ordained for the cruelty of some lords, that
none should kill them, and that the life and members of them, as well as
of freemen, were in the hands and protection of kings, and that he that
killed his villein should have the same judgment as if he had killed a
freeman[291].” This, it falls also to be observed, is the very account
the Roman civil law gives of the original of servitude.

Villenage, therefore, was a state of servitude, erected for the purpose
of doing the most ignoble, laborious, and servile offices to the lord,
according to his will and pleasure, whensoever called upon; such as
the instances _Littleton_ gives, of carrying and recarrying dung, and
spreading it on his lord’s land. _Bracton_, thus defines it _purum
villenagium est, a quo prestatur servitium incertum indeterminatum, ubi
scire non poterit vespere quale servitium, fieri debet mane_, viz. _Ubi
quis facere tenetur quicquid ei præceptum fuerit_. So the most honourable
service, the military one, was free, and its duties uncertain. The next
in rank, the socage was free, and its duties certain. This, the lowest,
was servile, and its duties uncertain[292].

Of those villeins there were two kinds, villeins belonging to the
person of the lord and his heirs, which our law calls _villeins in
gross_, and _villeins belonging to the land of the lord_, and who, in
consequence of the lands being aliened, went over to the new acquirer,
without any special grant. These were in the Roman law, called, _servi
adscriptitii glebæ_, that is, slaves annexed to the soil, and by our
lawyers _villeins_ regardant to a manor; for manors were, antiently,
thus distributed. After the lord had reserved to himself a demesne
contiguous to his castle, sufficient for the purpose of his house and
his cattle, the remainder was generally divided into four parts; the
first for settling such a number of military tenants as might always
more than suffice to do the service due to the superior lord; the second
for socage tenants, to plow the lord’s demesne, or, in lieu thereof,
to render corn, cattle, or other things as stipulated by him; the
third for villeins, for the purpose of carrying dung, felling timber,
making inclosures, and other servile offices, as required by the lord
at his pleasure; and the last share of land, was called the _waste_, or
_common_, being generally woodland, and coarse pasture, the wood for the
lord’s hunting, for supplying him with timber at his pleasure, and the
tenants with reasonable _estovers_ as they are called, out of the woods,
in those three articles, _housebote_ for the support of their houses,
_sloughbote_, for their utensils of husbandry, and _firebote_, for fewel;
and the pasture for the cattle of all the tenants, military, socage,
and villeins in common. This was the usual method of distribution, not
however into equal parts, for the demesne and waste were generally much
the largest, nor always into the same number of parts, for this varied
according to the quantity and quality of the land, whether better or
worse, and the military service reserved, whether lighter or heavier[293].

From this distribution we may see that, in most manors, there was land
which, having been originally set apart to the use of the villeins, was
called villein-land, which retained its name, and was liable to the
same name, and servile services, though it had come into the hands of
freemen, who, consequently, though free, might hold lands in villenage,
and be obliged to do the same uncertain services as a villein was. Few
freemen however we may suppose, would submit to such uncertain burthens,
and therefore when they took such lands, the lord generally reduced the
service to a certainty, and this tenure, because of the low nature of the
duties they performed, was also, though abusively, called _villenage_.
But speaking with propriety, it was socage, the tenant being a freeman,
and the services certain. Certainty of service being, as I have often
mentioned, the grand characteristic that distinguished the socage tenure
from the military above it, and from villenage below it.

Let us now see what kind of property this rank of people had in their
persons, their lands and their chattles; for from what has been already
observed, some kind of property they must have had, or they could not
have performed the services. And the first rule is, that, with respect to
every person but his lord alone, a villein was perfectly a freeman. His
life, his liberty, his property, were equally protected by the law, as
those of any other person. He could acquire, he could alien property, he
could be plaintiff in all kinds of actions whatsoever; but if defendant
he might plead his being a villein. As to his lord, his case was very
different. His life, indeed, his liberty, his limbs, were under the
protection of the king; and if in these he was injured by his lord, the
lord should be punished at the suit of the king, as in the case of any
other subject, but not at his own suit. However, there was two excepted
cases, where the law (for they most certainly punished the two detestable
crimes of murder and rape) gave a villein actions against the lord,
namely an _appeal_, that is an accusation in his own name of murder,
where the lord had killed the villein’s ancestor; and appeal of rape,
where the lord had ravished his _neif_, for so a bond woman, or female
villein, or _nief_, is called in our law. And here if the lord was found
guilty, the villein, or _neif_, were by that judgment manumized for ever.
For it would have been a glaring absurdity, to have afterward trusted
them in the power of the heir of that lord, whom they had hanged. Neither
had a villein, with respect to his daughter, the same power of disposing
her in marriage without the lord’s consent as he had of his son. And this
distinction was founded upon solid reason, for the son of a villein,
after his marriage, and his issue, continued in the same plight as he
was in before, villeins to the lord; but the daughter, by her marriage,
passed into another family, and her issue were either to be freemen,
if her husband was free, or villeins to the other lord, if her husband
was such; so that the lord had a very important interest in his seeing
his villein’s daughter married to another villein of his. This previous
consent, however, wore out by degrees, and by the custom of particular
places, a certain fine was all that the lord could claim for the marriage.

With respect to the lands the villein held from his lord, and also as
to his chattels, or personal fortune, he was only tenant, or possessor
at the will of the lord; for he the lord might resume the one, or take
possession of the other whenever he pleased; but in the interim they were
the villeins, and he might convert the profits of them to his own use,
unless they were also in being and seized; the seizure of them being what
made the absolute property in the lord. And the case was the same with
respect to purchases, or acquisitions of lands or goods; for before the
seizure, or some other public act equivalent thereto, the villein might
alien them as well as the goods he had held before at the will of the
lord, and the alienation was good against the lord, and the reason of
this was undeniable. For it would have put a total stop to all commerce
both of goods and land, if every buyer was obliged, at his peril, to
make enquiry, and to take notice whether the seller may not possibly, in
truth, be a villein to some one of the many lords in the kingdom; and it
would have been highly absurd to allow the lord to seize the lands, or
goods in the hands of the purchaser, when he might seize the purchase
money likewise in the hands of his villein, the seller; I say it is
the seizure, or some other public act equivalent thereto, that vests
the property in the lord; for, in all cases, an actual seizure was not
possible. A few instances will clear this up[294].

If the villein purchases lands in possession in fee simple, fee tail,
life, or years, the lord should, if he had a mind to make them his,
enter, and claim them; or if, for fear of danger, he dare not enter,
should come as nigh to the lands as he dare, and claim them there. And
this was sufficient to vest the estate in the lord, according to the
nature of the estate the villein had in it, and to defeat a future
purchaser; even though the lord should suffer the villein to continue
in the possession. For the purchaser is obliged, at his peril, to take
notice of all legal acts of notoriety, done respecting the lands he
purchases. But if the villein purchases land not in possession, as
suppose a remainder, or reversion, where there is a prior estate for life
or lives, or in tail, in another person in being; here the lord cannot
enter, for that would be disseizing, and doing wrong to the immediate
tenant of the freehold; and if he waited till that estate was spent, and
the remainder or reversion was to come into possession, the villein might
have aliened them before, and so defeated his lord. He should, therefore,
in such case, come to the land, and claim the reversion or remainder,
as his villein’s purchase. And this act presently is sufficient to
vest them, the reversion or remainder in him, and to defeat a future
purchaser. So if a villein purchased an advowson, or presentation to
a living, where the parson of the church is living, the lord cannot
present, which is the proper act to gain possession of the advowson. For
the church is full of an incumbent, but he shall come to the church,
and claim the advowson as his villein’s purchase; and this vests the
advowson in him, and will defeat a future alienation by his villein. In
the same way with respect to goods; the lord may either seize them, and
retain them in his own hands, or may come to the place where they are,
and openly claim them before the neighbours, and seize a part of them in
the name of the whole goods his villein _hath_; and this shall vest the
property in him, though he leaves the possession still in his villein;
and if he adds the words or _may have_, it vests the property of goods
after acquired, though it is otherwise of lands.

From this power of the lord as to his villein’s property, it appears
the villein can bring no action relative to property against him; for
all such actions, being either to recover the thing itself, or damages
for the wrong done, in both cases, it would be useless, and improper.
For, inasmuch as the lord had right to take, the taking could be no
injury, and to give damages even for a personal injury would be absurd
and nugatory, since the lord might immediately, as soon as recovered
rightfully, retake them from his villein. Therefore Littleton says, “a
villein cannot have an appeal of maim against his lord that hath maimed
him[295].” For, as the law then stood, _maim_ was only punishable by fine
and imprisonment, at the suit of the king, or by damages, in an appeal
of maim, at the suit of the party. Neither could he have an appeal of
robbery against him, though that offence, with respect to freemen, was
capital; for the lord having a right to take, could not be guilty of
robbery. However, there was one excepted case, wherein the lord could not
take things out of his own villein’s hands, and wherein the villein also
might maintain an action against him; but then, in this case, the villein
acted not in his own right, but in that of another, _in autre droit_, as
our law says, which was when a villein was made an executor. For here he
acted not in his own right, but as representative of his testator, for
the performance of whose will, and for no other purpose, he had allowed
to him this possession against his lord, and this right of action against
him.

Let us now see how many different ways a man might be a villein, how many
ways the villenage, or its effects, may be suspended, and how many ways
it might be totally destroyed.

Now a man might be a villein either by birth, or become such by his own
act. With respect to birth, our law considers only the condition of the
father, whether free or villein, contrary to the civil law, where the
maxim is _partus sequitur ventrem_. Our rule seems more agreeable to
natural reason, as the husband is master of the family, the head of
the wife, and supposed, at least, the principal party in the production
of the offspring. Yet the Roman law is not therefore to be charged with
absurdity, it proceeding on a principle peculiar to itself, namely,
that they allowed no matrimony but between free persons; a cohabitation
between two slaves, or between a slave and a free person, was called
_Contubernium_, not _Nuptiæ_, nor _Matrimonium_; and to such a commerce
their law did not give such continuance, or entire credit, as to presume
the father to be certain. A freewoman who so far disgraced herself as
to cohabit with a slave, they supposed equally guilty with others; and
therefore, as the father was uncertain, _in favorem libertatis_, they
presumed him a freeman. And, on the contrary, though a freeman cohabited
with a slave, that law gave no credit to her constancy, but rather
supposed the issue begat by one of her own rank, another slave. But in
England, if the father was free or slave, the issue was so; for our law
admitting such marriages as good ones, upon the maxim, _whom God hath
joined let no man sunder_, gave them an entire credit. What then shall we
say was the case of _bastards_, where the father was entirely unknown,
and who were _filii nullius_. Some old opinion in England indeed held,
that if the mother was a neif, because she was certain, the issue should
be a villein; but this doctrine was exploded, and it was settled that, as
the child was, by our law, to follow the rank of his father, and who that
was, was entirely uncertain, it should be universally presumed in favour
of liberty, that the father was a freeman, whatever the mother was. A
bastard, therefore, could not be a villein, but by his own act; and how a
man could become so I shall next proceed to shew[296].

There was then but one way for a freeman born to become a villein, I mean
in the latter ages, when the practice of making slaves of captives taken
in war went into disuse, and that was by his admission and confession.
For _volenti non fit injuria_ is a maxim of all laws, and in the antient
times of confusion, it might be an advantage, at some times, to a poor
freeman to put himself, even in this law manner, under the protection of
a lord that was both powerful and humane. But so careful was the English
law of liberty that it did not allow every confession or admission to
conclude against a man’s liberty, but such an one only as could not
proceed from mistake, inadvertence, or constraint. The confession must
be made in a court of record, and entered on record. Then indeed was
it conclusive, for it is a maxim of our law, that there is no averring
against a record, that is, charging it, or the contents thereof, with
falsehood. For if that could be, property could never receive a final
determination, nor a man be certain that the suit that he had obtained
might not be renewed against him[297].

But the law went farther in its precautions, and would not suffer any
confession, even in a court of record, to destroy liberty. If a man came
voluntarily into such a court, and made an extrajudicial confession,
that is where there was no suit depending, and contested in that court,
it could not bind him. The confession, to bind, must be made in such a
court, and in a suit litigated there; so that there might be no room
afterwards for pretending surprize, error, constraint, or terror. Thus,
if a stranger brought any action against a man (for if the lord brings
any action, except one kind only, against his villein, he the villein, is
thereby manumized, as I shall observe hereafter) I say, if a stranger, A,
brought an action against B, and B, to bar A, of his action, pleads on
record, as he may, that he is villein to C, this confession shall bind
him, and he shall be C’s villein, though he was in truth a freeman; yea
though A, in that very action, had replied that B was a freeman, and had
even proved him such: And indeed this was but a just punishment for his
fraudulent attempt to deprive A of his action.

Again, if a lord, claiming a man to be his villein, bring the writ called
_nativo habendo_, the proper one to prove this fact, that the defendant
was his villein, and the defendant confesses himself judicially so to
be, he and his issue are bound, though he was free before; or if the
defendant, in such case, pleads he is a freeman, and the lord, to prove
him his villein, produces the defendant’s uncles, or cousins, who swear,
that they and their ancestors, from time immemorial, or from a time
antecedent to the separation of family, have been villeins to that lord
and his ancestors, whatever becomes of the original suit, they themselves
thenceforwards are the lord’s villeins; and though they were in truth
free, it is but a just punishment, as I observed before, for their foul
attempt of reducing their kinsman to slavery. However, as we must allow
that every man is fond of his own and his posterity’s liberty, we must
accordingly believe that these instances of freemen becoming slaves
voluntary were very rare, and, that the majority of villeins were such as
were so by birth. Before I leave this head, I should observe that, with
respect to the issue of men becoming villeins by their own confession,
the issue born after the confession alone were bond, as being so born,
and that the children born before, retained the liberty they had acquired
by their birth.

Villenage could not only be totally destroyed by many means, but also
might be suspended for a time, and afterwards revive. The suspension
arose from some subsequent obligation the villein, or nief, happened to
lie under, which the law considered, and favoured more than the lord’s
right in his villein, or nief; therefore, if the king made a villein
a knight, such a creation, being for the defence of, and to encrease
the military strength of the realm, and the person obliged to serve
accordingly, his state of villenage was suspended, not destroyed. For, if
he was afterwards degraded from his order, he became the lord’s villein
again, so if a villein became a monk professed, now was he obliged to
live entirely in his monastery, and spend his time in prayers, and other
spiritual exercises, duties inconsistent with his service as a villein;
and those being performed to God were preferred to the interest of the
lord; but if such monk was deraigned, that is, degraded from his order,
and turned out of his monastery, he became a secular man again, and the
lord’s right revived. But if a villein is made a secular priest, he
not being confined to a monastery, nor his whole time dedicated to the
service of God, he is still a villein and obliged to attend his lord at
all times, when the stated times or occasions of his new duty do not
employ him. So if a nief marries a freeman, the right of the husband
in his wife, as founded on the law of God and nature, is preferred to
the lord’s, though prior, which is founded only on the constitutions of
nations: She, therefore, is priviledged, and a free woman during the
coverture; but if the husband dies, or a divorce happens, then is she a
nief again. But it may be asked, shall the lord thus, without any fault
of, or consent from him, be, by the act of others, deprived, even for a
time, of his right in his villein, and the advantage thence arising? I
answer, though the law, for the public good, suspended the villenage,
it did not leave the lord without redress for the wrong done unto him.
For, in the cases of profession and marriage, the lord shall have his
action against, and recover the damages he may sustain, from the abbot
who had admitted his villein a monk, or the husband who married his nief;
but against the king who has knighted his villein, he cannot have an
action, for, according to the principles of the feudal law, to bring an
action against the king is a breach of fealty: it is charging him with
injustice, and with breaking that mutual bond, whereby he is tied to his
vassals as strictly as they are tied to him. But he shall not be without
remedy. He shall have his action, and recover damages against those, who
by their aid, advice, counsel, or recommendation prevailed on the king
to make his villein a knight. Coke mentions two cases more, wherein I
cannot say so fully as he says, the _villenage itself_ is suspended, as
that the _effects_ thereof are suspended, as to a certain place; and both
these are in honour of the king, one is when a villein escapes from his
lord, and has continued for a year and a day in the demesne of the king,
doing service to him as his villein. The lord can neither seize him, nor
even bring a writ of _nativo habendo_ against him while he continues in
the royal demesne. The other is where a villein is made a secular priest
in the king’s chapel. The lord cannot seize him in the presence of the
king[298].

We shall next have a more agreeable subject, and by considering the
many ways the law of England hath contrived to destroy villenage, have
the pleasure of observing its natural bent toward the equal liberty of
mankind, and how it rejoiced to shake off the shackles of servitude, even
in those days when it admitted it.




LECTURE XXV.

    _The methods invented to destroy villenage—The bent of the law
    of England towards liberty—Copyhold tenants—Tenants in ancient
    demesne._


Relative to villenage, the following are the words of the antient judge
Fortescue, who wrote a treatise on the grounds of the English law, for
the instruction of his pupil, the unfortunate son of the unfortunate
king Henry the Sixth. _Ab homine, & pro vitio introducta est servitus;
sed libertas a Deo hominis est indita naturæ. Quare ipsa ab homine
sublata semper redire gliscit, ut facit omne quod libertate naturali
privatur[299]._ We are now to see how, and in how many ways, our law
favours this natural propensity to liberty. And the first and plainest
is a direct enfranchisement, or, as the Romans called it, _manumission_.
This, in the ancient times, before writing was common, used to be done,
as all their important acts, (for the better preserving them in memory)
in great form. _Qui servum suum liberum facit, in ecclesia, vel mercato,
vel comitatu, vel hundredo_, (_that is, the county court or hundred
court_) _coram testibus, & palam faciat, et liberas ei vias, & portas
conscribit apertas, & lanceam, & gladium, vel quæ liberorum arma in
manibus ei ponat[300]._ But after the use of writing became common, the
method was by the lord’s deed (mentioning him to be his villein, and
expressly infranchising him) sealed by the lord’s seal, and attested by
proper witnesses, as other deeds between freemen should be[301].

Before I go farther, I should observe the favour of the English laws to
liberty in that, by it all manumission, of what kind soever, was absolute
and irrevocable. Once a freeman, and ever so; whereas by the civil law, a
freedman was bound to many duties towards his patron. A relation between
them still subsisted, and if he was guilty of ingratitude, that is, of
any of the many offences their law marked as such, he was again to be
reduced to slavery.

But besides this species of express enfranchisement, there were many
implied ones. First, by the a act of the lord alone, and others by
construction of law, upon the act either of lord or villein. By the act
of the lord alone, namely, if he had entered into any solemn certain
contract with his villein, giving him thereby either a permanent right of
property, or a power to bring an action against his lord. In such cases
he was instantly manumized, without express words; for, otherwise, he
could not have the benefit of the gift intended, and the lord’s act, in
such cases, should be construed most wrongly against himself. As if the
lord gives land to his villein and his heirs, or to him and the heirs
of his body, or to him for life; immediately on the giving livery and
seizin, which was, as I have often observed, what compleated an estate of
freehold, and made it irrevocable, the villein became free. Otherwise he
could not enjoy the benefit of the grant, or protect it against his lord.

The same was the case if the lord gave him any certain property, as a
bond for payment of a sum of money, or a yearly annuity, or a lease of
lands for years. The villein could not securely enjoy the benefit of
the gift, without being able to bring an action against his lord, and
consequently being free against him. Yea, though the annuity or lease of
land was but for years, the manumission was absolute for ever, and not
suspended for the years only; which was different from the cases I put
in my last lecture, of villenage being suspended by the act, not of the
lord, but another person; but here where the lord himself, by his own
act, set him free, though but for a time, he was free for ever. But if
the lord gave his villein lands to hold at will; this being of the same
nature with the proper holdings of villeins, and the lord having reserved
in his own breast a power of ousting whenever he pleased, the villein
gaining thereby no certain property, he continued in his former situation.

Secondly, a man may be enfranchised without express words, by
construction of law, operating on the act either of the lord or villein.
If a lord had a mind to dispossess his villein of lands, or of goods, he
had a right to enter on the lands, or seize the goods, without ceremony;
but if, waving this right, he brought an action against him for them, or
if he brought not any action personal against him, but the one of _Nativo
Habendo_, the villein was enfranchised, whether the lord recovered or
not, or whether he prosecuted the action or not. For when he omitted
the easy remedy the law appointed, and brought his villein into court
to defend his right, he admitted him to be a person that could stand in
judgment against him, and litigate with him; that is, to be a freeman.
But it must be observed this enfranchisement did not commence immediately
from the taking out the writ, which was the commencement of the action,
but from the appearance of both plaintiff and defendant, and this for
the benefit of the lord; for otherwise, as Coke observes, a stranger,
by collusion with a villein, might take out an action against him in
his lord’s name. To which I may add, that the lord might have intended
his action against a freeman of the same name with the villein, and the
sheriff might have summoned the villein by mistake. In this case it was
hard that the lord should suffer. He therefore might, when he saw the
villein ready to appear, nonsuit himself, that is, decline appearing; and
then the villein could not appear, and therefore was not enfranchised.
But if he went on, and suffered his villein to appear, and consequently
enabled him to plead against him, he must have abided by the consequences
of his own folly, and his nonsuiting himself afterwards could in no sort
avail him[302].

A villein might likewise be manumitted by his lord’s bringing a criminal
action against him, though this was no admission of permanent property
in him, or of his capacity of standing in law against him as a freeman;
as if the lord brought an appeal of felony, as of murder, or robbery,
against him. If he was acquitted he might be enfranchised, because he
might be entitled to recover damages for the malicious prosecution, and
the danger his life had been in; and damages he could not recover without
being a freeman. I say _might_ be enfranchised, because he _might_
recover damages. For in this case a distinction is to be taken, whether
the villein was, before the appeal brought, indicted at the suit of the
king for the same offence, or was not. If he was not, the acquittal
shewed the prosecution to be malicious, and the villein was entitled to
recover damages, and so to be free. But if he had been indicted, there
were no grounds to suppose the appeal brought maliciously. The finding
the indictment by the grand jury was a presumption of his guilt. The lord
had a rational ground for bringing his appeal, and he had a right to
bring it for the punishment of his villein, if guilty. Otherwise he could
not have him hanged, for the indictment at the king’s suit might not be
prosecuted, or the king might pardon. In such case, therefore, there
being no malice presumed, the law gave no damages, and consequently no
enfranchisement. But the lord’s bringing the writ called _Nativo habendo_
against his villein, namely, claiming a man to be his, as such, was no
enfranchisement, for that would defeat the ends of the suit; and the law
allowed the lord a power to seize his villein without further ceremony,
it did not precisely compel him to that method only, for his villein
might be at too remote a distance, or under the protection of persons
too powerful. But if, after appearance, the lord suffered himself to be
nonsuited, in this action, it was an enfranchisement.

The law, likewise, enfranchised in some cases on the act of the villein
himself, as if the lord had been found guilty in an appeal of murder,
brought by his villein, or of rape by his nief; but these I mentioned in
the last lecture, and the reason is apparent.

By all these various ways the number of villeins insensibly diminished,
and the number of freemen continued to encrease in every reign; but what
gave the finishing stroke to servitude were the confusions occasioned by
the two contending houses of York and Lancaster; when the whole kingdom
was divided, and every lord obliged, even for his own security, to take
part with one side or the other; and when once engaged, necessitated
to support his party with his whole force. Villeins were, therefore,
emancipated in prodigious numbers, in order to their becoming soldiers.
Many of such, also, who had not been formerly emancipated, in those times
of distraction, fled for self-preservation to London, and other cities,
where, being absent from their lords, they were looked upon as free; and
where they generally continued, even after these troubles had ceased,
unknown to the heirs of the antient lords; and in consequence, for want
of proof of their servitude within fifty years last past, (which was the
time of limitation for this action) most of them and their posterity
became free. When things afterwards became composed, under Henry the
Seventh, many of these persons were by the heirs of their former lords
reclaimed, and recovered as villeins, though, undoubtedly, the far
greater part escaped undiscovered. But even in those actions that were
brought, both judges and juries were very favourable to the persons
claimed; the juries out of favour to liberty, and the judges, I presume,
following the policy of that reign, one of the great objects of which was
the depression of the great lords; to which nothing could more contribute
than the lessening the number of the persons who were held in such strict
dependance by them, and the profits of whose industry they had right to
seize, to encrease their wealth and their power[303].

Another thing which had, long before that period, lessened their numbers,
was the rise of copyhold tenants. These are persons who are said to hold
lands _at will, but according to the custom of a manor_, and those arose
from the villenage tenants, as I conceive, by the following means. When
a succession of mild and humane lords had neglected, for a long time,
to seize their villeins goods, or to exact villein service, so that
no memory remained of their having made use of such a practice, they
came to be considered in another light, and became exempted from that
seizure by prescription. For the lord claiming a villein in a _nativo
habendo_, must plead, and prove, that he, or his ancestors, had exacted
such services, from the person claimed, or his ancestors, otherwise he
failed. Therefore, in the case I have mentioned, though a future lord
had an inclination to depart from the practice of his predecessors, and
revive his rights, he could not recover them for want of proof; and these
persons so long indulged, became freemen. However their lands, (they
being only tenants at will) might still be resumed, until, at last, they
got, likewise, by the same kind of prescription, a permanent right in
them also, in the way I now shall relate.

If a lord had given his villein any certain estate, it was, as I before
observed, an absolute manumission for ever. But some lords, either in
reward for services done, or out of bounty, gave many of those underling
tenants, if not an absolute right to their holdings, at least, a fair
claim and title to a permanent estate, which, in honour, the lord or
his heirs could not defeat, and yet kept them in a particular kind of
dependance, between freedom and absolute villenage. But the question was
how this was to be done; for if the lord had given him a deed, to assure
him the lands, and so entered into a contract with him, he was entirely
emancipated. The way was then for the lord to enter into the roll of his
court, wherein he kept the list of his tenants, that he had given such
an one an estate at will, to hold to him and his heirs, or to him and
the heirs of his body, or to him for life or years; and these directions
being constantly complied with, grew by length of time into established
rights, and they came to be called _tenants at will, according to the
custom of the manor_.

They were still called tenants at will, because, they had been originally
such, for they were never considered as, nor called, _freeholders_, until
very lately, in one instance, they were admitted to vote for members
of parliament, and their votes allowed by the house of commons. This
decision was greatly exclaimed against by the tories, who were foiled
by this reception, as proceeding from a spirit of party, and as being
contrary to the rules of the antient law, as it certainly was. But, on
the other hand, it was agreeable to common reason and justice, and to the
spirit and principles also, though not to the practice of the antient
constitution. For when Edward the First lays down this maxim, _quæ ad
omnes pertinent ab omnibus debent tractari_, what reason can be assigned
why a copyholder for life, who has a valuable, and as certain estate,
in fact, as a freeholder, though called by a different name, and who
contributes equally to the taxes and expences of the government, should
not have equal privileges, and be equally intitled to be represented.
They are called _copyholders_, from the evidence they had of their
titles. The evidence that freemen had of their estates in land was
either a _deed_, if the grant was by deed, or if it was without deed,
the _livery and seizen_, attested by the witnesses present; but the
copyholder had no deed, neither was livery and seizen given to him, as he
was originally but a tenant at will. His evidence, therefore, was a copy
of the rule entered in the lord’s court roll, which was his title, and
from hence was he named copyholder[304].

The peculiarities attending this kind of tenure, that distinguished it
from other tenures, arose from their being considered as tenants at will.
Hence arose that antient opinion, that if a lord ousted his copyholder,
he could have no remedy by action in the king’s court against him: But
had this been the law that since prevailed, all copyholders had been long
since destroyed. Therefore, in Edward the Fourth’s reign, it came to
be settled, that if the lord turned out his copyholder, he might well
maintain an action of ejectment against him, as a tenant for years could,
or else they might sue the lord in equity to be restored.

From the same principle of its having been an estate at will, arose the
right of the lord to a fine, upon the change either of lord or tenant;
upon the change of the lord by the act of God only, that is by his death;
upon the change of the tenant, either by the act of God, by his death;
or by his own act, by his alienation. But the tenant paid no fine on the
lord’s alienation; for if he was so to do, he might be ruined by being
frequently charged. These fines were an acknowledgment of the lord’s
ancient right of removing them, and were, in some places, by custom,
fixed at a certain rate; in others, they were uncertain, and settled
by the lord: However, he was not allowed to exact an unreasonable one,
for if so, the tenancy would have been absolutely in his power, and of
the reasonableness of the fine the judges of the king’s courts were to
determine.

I mentioned the alienation of copyholders, but to alien directly they
could not, being esteemed but tenants at will, yet what they cannot
directly do, they may indirectly, by observing certain forms; that is,
by surrendering to the lord, to the use of such a person, and then the
lord is, in equity, compellable to admit into the copyhold the person
for whose use it is surrendered. These surrenders are either made in the
manor court, or out of it. If made in court, it is immediately entered in
the court roll; if out of court, it should be presented at the next court
day, and then entered. The surrender out of court must be made to the
lord himself, or to the steward of the manor, or it is not good; except
in some particular manors by custom, where it may be surrendered to the
lord’s bailiff, or to two or more of the copyholders, who are to present
it at court. When a surrender was made, the lord was only an instrument
to hand it over, and therefore must admit that grantee into such estate,
and no other, whom the grantor had appointed in his surrender. In many
cases a court of equity will supply the want of a surrender.

Copyholders could not devise their lands by will for two reasons. First,
that, in general, lands were not devisable till the reign of Henry the
Eighth; and for another reason peculiar to themselves, that, being
called tenants at will, they were not looked upon to have a sure and
permanent estate. But when, after the invention of _uses_, a way was
found out to evade the general law, and to make lands go by will, by the
owner granting his estate to another for the use of himself, the grantor,
for life, and after, for the use of such persons as he, the grantor,
should name in his will; and when courts of equity were found disposed to
oblige the grantee to perform the trust he had undertaken, in imitation
hereof, copyhold estates began to be surrendered to the lord to the use
of the copyholder’s last will; and then the lord, after his death, was
obliged to admit such person as he appointed in such his will, and in
the mean time, the copyholder enjoyed during his life, for the surrender
only did not transfer the estate, except it was to the lord’s own use. If
to any other use, the lord was but an instrument, and the land remained
in the surrenderer until the admittance of the new tenant, which, in the
case I have put, could not be till the old one was dead.

Another peculiarity arising from the same source, there being tenancies
at will, was, that neither the husband could be tenant by the courtesy,
nor the wife tenant in dower. The reason was, that every estate at will
determined by the death of the tenant, neither could an estate tail
be created of a copyhold; for the statutes _De Donis_ extended not to
them, and, therefore, if a gift was made in such words as would, at this
day, create such an estate, it would be in the nature of a _fee simple
conditional_ at common law. However, by special custom in particular
manors, copyhold might be entailed; might go to the tenant by the
courtesy, and the wife might be endowed thereout[305].

Thus much I have thought requisite to shew the general nature of this
tenure, and of its origin. More would be needless to say here, as there
are no such in this kingdom, though the law relating to them makes a
considerable part of the law of England. For the same reason I shall be
very short as to the tenants in antient demesne.

Lands in _antient demesne_ are the estates that the king had, as king, to
support his family, and other expences, and were antiently unalienable.
They were the lands of Edward the Confessor, and the Conqueror. But
as the king could not make profit of them himself, they were given to
tenants of two kinds, freeholders and copyholders. The law with respect
to them stands as it does with other freeholders and copyholders, except
that they have some peculiar privileges. The general reason of these
privileges was, that the freeholders were originally socage, and the
copyholders the villenage tenants of the king, and had these privileges
granted to them because they were supposed constantly employed on the
king’s land, to furnish him with corn, cattle, and other necessaries; and
their privileges have continued, though the services have been changed
into money, and the estates almost all alienated from the crown. These
are principally as follow: They are exempted from all burthens and taxes
laid on by parliament, unless they are specially named. They are not to
be taxed for the wages of the knights of the shire. They are not to pay
toll, or passage money for goods bought and sold in markets, for all
things concerning husbandry and sustenance. They are not to be impleaded
in any court, only in their manor court, nor to be summoned as jurymen,
with some other privileges of the like nature, not necessary to be here
insisted on[306].




LECTURE XXVI.

    _The condition and state of laws in England during the Saxon
    times—The military policy of the Saxons not so perfect as that
    of the Franks—Their Kings elective—The division of the kingdom
    into shires, hundreds, and tithings—The administration of
    justice—The county-court—The hundred court and court-leet—The
    court-baron—The curia regis—Method of trial in the Saxon
    courts—The ordeal—The waging of law—The trial by battle—Juries._


Having drawn a rough delineation of a feudal monarchy, and given a
general account of the ranks of people of which it was composed, and of
their distinct rights and privileges, it will next be proper, agreeably
to what I first proposed, to observe, through the several reigns, the
progress of English law, and by what steps and gradations it is come to
differ so widely from what it was in its original; not, indeed, to go
minutely through all the alterations made, for that would be a task that
could not be confined within the compass of these lectures, but to point
out the great and considerable changes, which had extensive influences,
and contributed to give the law a new face. But, before I enter upon
this, it will not be amiss to look back a little, and to say something
with respect to the law in the Saxon times, since much of that remained
after the conquest, and even makes a part of our law at this day.

The Saxons, being a German nation, brought into England the customs of
that country, customs very similar to, and, in many instances, exactly
the same with those used abroad on the continent. However, with respect
to their military policy, it was not so strict and perfect as that of the
Franks, occasioned, as I suppose, by their greater security from danger.
For they had no reason to dread the Britons, having extirpated many, and
expelled the rest, except a few whom they kept in the meanest offices, in
the nature of villeins. Neither was the authority of their kings so great
as abroad, for the founders of the kingdoms of the heptarchy were not
kings in Germany, as the kings of the Franks and other nations had been,
but only leaders of adventurers, who voluntarily associated themselves,
and therefore could have no authority but what their followers confirmed
upon them; and that it was not very considerable, appears from this, that
every thing of great moment was transacted in their general assemblies or
_wittenagemots_[307].

These kings were elective, though generally those of the same family,
(for to this also there were some exceptions) were elected. Offa says of
himself to his people, _Electus ad libertatis vestræ tuitionem, non meis
meritis, sed sola liberalitate vestra_. From the death of a former king
to the election of a new one there was an _interregnum_, and even during
these interregnums they made laws. For when the excellent king _Brithric_
had been poisoned by his queen, they enacted a law, that if any future
king should give his wife the title of queen, he should forfeit his
dignity, and his subjects should be free from their oath of allegiance;
and then they proceeded to elect Egbert, Brithric’s tenth cousin. And,
in pursuance of this law, Ethelbald, deposed his father, for giving that
title to Judith of France. Alfred, indeed, was not chosen upon a vacancy,
but claiming a part of the kingdom before the assembly at Swinburn, by
virtue of an agreement with his brother Ethelred, that assembly annulled
the agreement, as destructive to the nation, then threatened by the
Danes, but enacted that Alfred should succeed to the whole, though
Ethelred, and also their elder brother Ethelbert left sons[308].

I know it is generally said that these three brothers succeeded by their
father’s will, and so the Conqueror pretended a will of Edward the
Confessor in his favour, but what had Ethelwulf to leave, but the little
kingdom of Kent, which was assigned to him upon his deposition. Besides
his will was, that they should succeed in case of issue failing, and they
succeeded though there were sons; and Alfred, who should know his own
title best, acknowledged he had received his crown from the bounty of the
princes, elders, and people. Here I should mention, that the kings had
not a right to marry themselves without the consent of their people, for
of Alfred it is observed, that he did so, _contra morem & statuta_, not
only against custom, but against positive laws. To go through no more
particulars; it appears from history, that all the kings of the Saxon
race were elected; so were the Danes; so was the last Harold, though not
of royal blood, and though Edgar Atheling, who was the lawful heir, had
the kingdom been hereditary, was living; so was the Conqueror, and that
was the just title he had. But enough of this point.

To see how justice was administered among the Saxons; the kingdom,
for this purpose was divided into _shires_, those into _hundreds_,
or, as we call them in this kingdom (Ireland,) _baronies_, and these
into _tithings_, so called because they originally consisted of ten
contiguous families, over which a _tithingman_ presided. Every man, in
these tithings, was bound to keep the peace, not only for himself, but
for the others of his tithing; and if one of them committed a crime, the
rest were obliged to search him out, and produce him for trial; otherwise
the tithing was grievously amerced. This division of the kingdom into
_counties_, and their subdivisions, is generally ascribed to king Alfred.
That the division of hundreds into tithings was his is undoubted; and it
is probable the division of counties into hundreds was his also; that the
people, beggared by the Danish incursions, might have justice rendered
to them nearer their own homes, without the expence, the fatigue, and
even danger of travelling to the county town. But as to counties, they
certainly were more antient. Justice could not be administered, according
to the principles of the German policy, in a country so large as one
of the kingdoms of the heptarchy, without its being subdivided; and
accordingly, during those times, before the union of these kingdoms
into one, we find, in the old laws, the mention of _shires_ and
_sheriffs_[309].

But though Alfred was not the first maker of the divisions, we are not
therefore to charge the writers that give that account with falsity.
Even before his reign the Danes had made settlements in England, in the
northern parts. In the very beginning of it they reduced him to content
himself with the countries south of the Bristol channel and Thames, with
the addition of Essex, which, in their ravages, they had thrown into
the greatest confusion. The rest of England was left as their prey, in
which, after ravaging it several years, they fixed themselves, until,
at length this great prince, to whom no king, I may say, no man, whom
history has recorded, was superior, either for piety to God, for a strict
love of justice, for a fatherly affection to his people, for heroism in
battle, for fortitude of mind (that never despaired in the lowest state
of his affairs, when all seemed desperate) or for a wisdom capable of
directing upon every occasion the proper measures to be taken by the
state over which he presided; I say, until this great prince trampled his
enemies under his feet, and obliged the Danes, who had so long looked
upon him with contempt to sue to become his subjects, and to receive
the lands they had usurped, from him as their king and lord. For to
expel them was impossible, and if it had been otherwise, and the matter
had been effected, they had committed such massacres in the lands they
possessed, that the country would have been desolate. Then, indeed, this
king settled the limits of shires or counties, through all England; in
Essex, and the counties south of the Thames, I presume, according to
the old limits. For if we allow for one county being more woody, or
having more unprofitable land than another, they appear to bear no great
disproportion to each other. But, as to the lands the Danes held, it was
different, for here, to win his new subjects, he was to accommodate the
division somewhat to that which they had made among themselves, under
their several leaders. Hence, in that part of England which was then
Danish, we find the greatest difference between the size and value of
the lands in the several counties, some excessively large, and others as
exceedingly small; which, I think, is no way to be accounted for, in so
wise a prince, but that the several tribes of these Danes were to be kept
in their old bounds, and separate from each other. In such a succession
of ages, undoubtedly, these boundaries have received alterations, but
they could not have received such as would account for the disproportion;
and in truth we find the Danes had divided the land before he conquered
them.

In those counties and hundreds justice was administered to the
inhabitants near their homes, without the delays and expences of
resorting to Westminster. The court held by the sheriff, assisted by the
bishop, was, in its origin, as we find in the red book of the exchequer,
and had cognizance of four several matters that were handled, in this
order. First, all offences against religion and the ecclesiastical
jurisdiction were tried. The bishop, or his commissary, here was judge,
and the sheriff was his assistant; and if the delinquent disregarded the
censures of the church, he enforced the sentence by imprisonment. Next
were tried temporal offences, that concerned the publick, as felonies,
breach of the peace, nuisances, and many others. Here the sheriff was
judge, and the bishop was assistant, to enforce the sentence with
ecclesiastical censures. Thirdly, were tried civil actions, as titles
to lands, and suit upon debt or contracts. Here the sheriff presided,
but the _suitors of the court_, as they were called, that is, the
freeholders, were the judges, or as we now say, the _jury_, and the
sheriff executed the judgment, assisted by the bishop, if need were.
Lastly there was held an _inquest_, to see that every person above twelve
years of age who was in some tything, had taken the oath of allegiance,
and found security to the king for his good demeanor. This was called
the _view of frank pledge_, that is, the viewing that every person had
nine freemen pledges or security for his loyalty to the king, and his
peaceable behaviour to his fellow subjects[310].

But since the time of king Edgar, at least, this court has been divided
into two, the criminal matters, both ecclesiastical and civil, and also
the view of frank pledge was dispatched in one court called the _tourn_,
that is, the _circuit_, from the bishop and sheriffs going circuit
through the county; and the civil business was dispatched in another,
called, the _county court_. The law was, that the sheriff and bishop
should twice in the year go their circuit or tourn, namely, in the month
following Easter, and the month following Michaelmas; and should hold
their court in every hundred of the county; but the view of frank pledge
was to be taken only once a year, namely the tourn after Easter. But for
the more ready dispatching civil causes, the county court was held once
a month, that is in twenty-eight _days_, reckoning a month by four weeks
and not by the calendar[311].

Out of these courts were others afterwards derived, for the more easy and
expeditious way of distributing justice. Out of the sheriff’s tourn, were
two, the _hundred court_, and the _court leet_, and they had cognizance
of the same matters the tourn had, and were erected independent of the
sheriff’s tourn, for the mutual ease of him and the inhabitants, where,
in large counties, the hundred lay too remote to be conveniently visited
in the circuit. But many inconveniencies arising from the sheriff’s power
not running in these separated jurisdictions, the hundred court, which
was held by the steward of the hundred, were all, except a very few, that
had been given in fee to some great men, reunited to the tourn, and so
they vanished in Edward the Third’s reign[312].

The leet was of the same nature as the hundred court, derived out of the
tourn, and made a separate jurisdiction; but it was held in the name of a
subject, by the lord of the manor’s steward, and to the lord belonged the
profits of the courts leet. They were, however, though held by a subject,
in his own name, esteemed as the king’s courts, and allowed to be courts
of record, as well as the tourn from which they sprung.

Out of the county court, which was for private causes, was derived the
_court baron_. It was held from three weeks to three weeks, as all courts
were in the early Saxon times. It was when a manor was exempted from the
sheriff’s county court, and the jurisdiction granted to the lord, to
hold plea of civil suits. In this the suitors were the judges, as in the
county court[313].

In these several courts was justice administered in the Saxon times,
and even for a considerable time after the conquest, for the most part.
But soon after that time inconveniencies were found, partly from the
partiality of the judges in these inferior courts, and partly, from their
ignorance in law. Then began the higher court to draw to themselves the
jurisdiction of these matters, and the county courts to be confined to
pleas of such matters as exceeded forty shillings in value. The pleas of
lands were likewise brought in there, and discussed either in the higher
courts, or before justices of _nisi prius_. The appointment of _justices
errant_, and _justices of assize_; of _justices of goal delivery_, and of
the _quarter sessions_, together with the many powers granted by divers
acts of parliament to one or more justices of the peace, have, in a
succession of ages, continually sunk the business of these courts, and
have left them but a shadow of what they were.

But although most of the business in the old times was in these inferior
courts, there was one superior, that even in the Saxon times, had a
concurrent jurisdiction with them, the _curia regis_. The curia regis
sat in the king’s palace, and removed with him from one part of the
kingdom to another, generally in the king’s hall; except when they
judged questions belonging to the king’s treasure, when they sat in his
treasury, called the _exchequer_, from the chequered cloth wherewith
the table was covered. The judges were, the judiciary, the chancellor,
and the treasurer, together with such great lords as were attendant on
the court; so that, in parliament time, all the great lords sat there;
and this was the foundation of the lords judicature in parliament. The
judiciary presided in all cases that did not concern the revenues, and
indeed his power was so exorbitant by the antient law, being regent of
the kingdom in the king’s absence, that sometime after the conquest, the
kings thought proper to abolish the office, and divide even his judicial
power into several hands[314].

The chancellor was one of the most learned ecclesiastics. It fell,
therefore, naturally to his province to make out all writs, and
processes, and letters patent, and consequently the great seal of the
kingdom was lodged with him. He attended, likewise, something in the
nature of an equity judge; not that there was any such thing as a
distinct _court of equity_, but, as a learned and pious man, to direct
with his advice whenever the case happened, where conscience dictated one
way and the strict law another. The treasurer was present also to take
care that the king had his fines from offenders, which he was afterwards
to collect into the exchequer where he presided, where also he set leases
of the king’s lands for years, collected his rents and debts, and took
care of his escheats and forfeitures. The proper jurisdiction of this
court was where the king was concerned in interest as to his revenue;
where one of the great peers was to be tried for heinous offences, or
even where two persons had been guilty of crimes that seemed to have a
general influence, and tended to general confusion. For unless the crime
of a lower person was very heinous indeed, he was tried in the country,
in the tourn.

Civil causes likewise between the great lords fell under their
inspection, but those between meaner persons they seldom meddled with,
unless they had for difficulty been referred or adjourned to them from
the courts below, and if they, in that case, found the cause of great
difficulty, they adjourned it to the _curia regis_ in full parliament.
However, as they had the power of judging civil causes between all
persons in the first instance, if they thought the cause of such a
nature, that justice was not likely to be done in the country, they
had many applications from such as had those apprehensions; and as
this court had a discretionary power, either of sending them back to
the county-court, or of admitting them here, this gave an occasion for
exacting fines for license to plead in the king’s court, and thereby
of increasing his revenue; until at length, when the inferior courts
declined in reputation, and every man sought for justice in the _curia
regis_, these fines, being arbitrary, became an intolerable grievance,
which was remedied by those famous words in Magna Charta, _Nulli
vendemus, nulli negabimus justitiam_, as I shall observe hereafter. Such
were the courts held in the Saxon times, and for some time after the
conquest, whose several jurisdictions it is proper to point out, for the
better understanding of the alterations that afterward ensued[315].

I next proceed to the _method of trial_, or determining the matters in
issue in these courts. And they were the same that were used abroad,
which I have already mentioned, and shall therefore barely run them over.
First, _ordeal_, either by putting their hands in boiling water, or
holding a red hot bar of iron in their hands; or by _cold water_, that
is, tying their hands together, and their feet together, and throwing
the person accused into a pond; and this method the ignorant vulgar
have adopted to try witches. Secondly, the _oath_ of the party, with
_compurgators_, or, as it is called, _waging his law_; and in this manner
was Earl Goodwin acquitted of the murder of Alfred, king Ethelred’s
brother. Thirdly, _battle_, which was the usual method of trying the
title to lands, and appeals of felony, or capital crimes.

If a man was indicted of felony at the king’s suit, he could not offer
battle; for challenging the king was a breach of allegiance, but if he
was appealed of felony by a subject, he had his choice either of battle,
or submitting to be tried by a jury. But if he waged battle, he must
fight in proper person, whereas the appellant, who might be an infant,
or decrepid with age, or a man of religion, or a woman, was allowed
a champion. If lands were demanded from a man, he had, likewise, the
option of trial by battle, or by _grand assize_. If by battle, then were
both parties allowed champions, if they desired it; but the champion,
in such case, must first swear, that he knows the land was the right of
the party he fought for, or that his father told him he knew it, and
charged him to bear witness thereof. So that this trial was referring it
to the providence of God, which of the two contradictory witnesses, the
champions, swore true[316].

The other method was by the grand assize. _Assize_, coming from
_assides_, to fit together, signifies a jury. It was called _grand_,
because of its number. The sheriff returned four knights, who chose
twelve knights more, and their verdict determined. But the most usual
method of trial among the _Saxons_ was by _juries_, as at this day, that
is, by twelve of the _pares curiæ_. The invention of these is attributed
by the English lawyers to Alfred, and greatly do they exult over the laws
of other countries in the excellency of this method. But had they been
acquainted with the ancient laws of the continent, they would have found
the trial by _pares_ common to all the northern nations, though since
wore out by the introduction of the civil law; not so common, indeed, any
where as in England; where every age it gained ground, and wore out the
other[317]. Alfred’s merit, therefore, was rather in fixing the number,
and determining the qualities of the jurors, than in the invention; but
what these several qualifications were, will come in more properly in
another place.




LECTURE XXVII.

    _The punishment of public crimes and private wrongs among the
    Saxons—The ranks of men among the Saxons—The difficulty of
    ascertaining the nature of the Saxon estates, and the tenures
    by which they were held—Observations to prove that the Saxon
    lands were in general allodial._


In my last I gave an account of the courts wherein the Saxons
administered justice, and of the several methods of trial used in them;
it will be proper to add a few words concerning their _punishment_ of
persons found guilty either of public crimes or private wrongs. When I
spoke of the customs of the German nations, while they lived in that
country, I observed, that all offences were punished by _fines_ only, and
none by _death_, two only excepted, desertion in war, and the rape of a
married woman. The nations descended from them, when they settled within
the limits of the Roman empire, continued the same practice for some
ages, as did the Saxons also in England.

All wrong and crimes, not excepting murder and high treason, were
redeemable by fine and imprisonment, until the Heptarchy was declined;
and for this purpose their laws assigned the several mulcts that were
to be paid for the different offences. Murder was rated higher or
lower according to the quality of the person slain. That of their king
himself was valued at thirty thousand _thrymsæ_, a piece of their money.
But afterwards it was found necessary to inflict capital punishments.
Treason, murder, rape, and robbery, were of the number so punished,
though the punishment of rape was afterwards _castration_; but after the
Conquest it was made capital again. Corrupt administration of justice
was another; for it is recorded, to the praise of Alfred, that he hanged
forty four unjust judges in one year[318]. These were the judges in
the tourns, ealdermen of the counties, or their deputies the sheriffs.
Other offences against the public continued punishable by fine and
imprisonment, and satisfaction for private wrongs was obtained either
by restoration of the thing unjustly detained, if it was extant, or a
compensation to the value in damages, if it was not[319].

As to the order and ranks of people among them, there were, properly
speaking, but two, _freemen_ and _villeins_. The last, I presume, were
the remains of the antient Britons, but among the freemen there were
various orders, not distinguished by any hereditary difference of blood,
but by the dignities of the offices they held by the gift of the king.
Not that we are to imagine there was no regard whatsoever paid to the
descendants of great and illustrious men. As their king was eligible out
of the royal family only, so were there a number of other families, to
whom the enjoyment of these honourable offices were, I may say, confined,
not by any positive distinctive law, but by general practice, and by
the king’s constantly choosing out of them; and who may, with propriety
enough be called the _nobility_. Those honorary offices were of different
ranks of dignity; such as those of _ealdermen_ or _earls_, _coples_,
or as they were sometimes called _Thanes_, _Præpositi_, or rulers
of hundreds; all of whom were, originally, removeable at the king’s
pleasure, though, unless they misbehaved, they were generally continued
for life.

Some, indeed, have thought that earldoms were hereditary, even in the
Saxon times, because they see that earl Goodwin’s son succeeded him,
and the same was true in some other families also. But there is a great
difference between a son’s succeeding to his father by a legal right of
inheritance, and his succeeding either by the voluntary favour of the
king, or by his extorted favour, when a family has grown so powerful,
as to make it a necessary act in the king, in order to preserve public
peace. The latter was the case with respect to earl Goodwin’s family.
Edward the Confessor hated him mortally for the death of his brother
Alfred, as he did his whole family for his sake. However, as he owed the
crown solely to his interest and intrigues, as he was well acquainted
with the power, and knew that he had spirit enough to attempt dethroning
him, if once offended, that prince, who was careless of what came after
him, so he might reign in peace during life, caressed Goodwin and his
family; dissembled all resentment, and, after one or two weak struggles,
let him and his family govern the kingdom at their pleasure; a conduct
that raised them still higher in the opinions of the people, and
concurring with the incapacity of Edgar Atheling, Edward’s nephew, raised
Harold to the throne, as the only man in England capable of defending it
against two powerful invaders[320].

But the great difficulty is to know what kind of _estates_ the Saxons had
in their lands, and by what _tenures_ they held them. This question hath
divided the lawyers and antiquaries of England; some holding that the
tenures were as strictly feudal, as after the conquest, while others as
strongly deny it. I shall not, in this difficult point, pretend to decide
absolutely where so great masters differ, but only make some observations
that perhaps would induce one to believe, that the Saxon lands were, in
general, _allodial_, some of them military benefices for life, and none,
or, if any, at least very few feudal inheritances; and this I take to be
the truth of the matter.

First, then, the Saxon lands in general, were inheritances, descendable
to heirs; and were all subject to military service. An _Heriot_, which is
contended to be the same as the Norman _relief_, was paid upon the death
of the ancestor, and all landholders took the oath of allegiance, or of
fealty, as they would have it; and therefore, Coke and others conclude
that their lands were feudal, and held by knight service; and tho’ there
are no traces either of _wardship_ or _marriage_ to be met with in those
times, they insist that they, as fruits of knight service, must have been
in use tho’ from the paucity of the Saxon records remaining, they cannot
be discovered[321].

This reasoning seems to have great strength, and yet, if we examine with
a little attention, perhaps, these very arguments, when well considered,
will prove the contrary, _viz._ that most of the Saxons lands were
allodial.

First, then, as to their being hereditary: This, singly, is far from
being a proof of their being held by a feudal tenure. The lands of the
Greeks, of the Romans, I may say of all nations, except the conquering
Germans, nay, the allodial lands in their conquests, were hereditary.
Their being so seems rather a proof of their not being founded on the
feudal policy; for the military benefices did not become inheritances
any great length of time before the conquest; whereas there is no ground
to believe that the Saxon lands were ever otherwise. Besides, they had
some qualities that are utterly incompatible with the feudal system. They
were not only inheritances, but were _alienable_ at the pleasure of the
owner, without any leave from the superior, and were, likewise, devisable
by will; so that the Saxons were absolute masters of their land, and not
obliged to transmit to the blood the donor intended to favour, contrary
to the feudal law abroad, and to our law after the conquest. I shall
observe, by the way, that some lands in England in particular places,
being by custom devisable by will after the conquest, was a relict of the
old general Saxon law, those places not having, along with the rest of
the kingdom, embraced the feudal maxim[322].

Another striking difference is, that the Saxons’ lands were not
forfeitable for felony, which still remains by custom in the _gavelkind_
lands in Kent, whence that country proverb, _the father to the bough
and the son to the plough_. Their lands likewise were equally divisable
among all the sons, as were gavelkind lands; which is a customary relict
of the Saxon law, contrary to general rule, since the conquest, where,
at first, the king chose one, and afterwards, as at this day, the eldest
alone succeeded. But this last I will not urge against their being of
feudal origin, for that was the antient law of fiefs; it only shews there
was a considerable alteration introduced at the conquest. However, though
their being inheritances singly will not prove them fiefs, yet, when that
is joined to the military tenure, to the payment of reliefs, and to the
oath of fealty, we must allow them to be such. Let us see then, whether
any of them, singly, or taken all together, will enable us to draw that
conclusion[323].

Certain it is, then, that all the lands in England were, in the Saxon
times, liable to military service; but this will not prove that they
were feudal. For, as I have observed in a former lecture, the allodial
lands in France were subject to the same. Every man who held land as an
allodial tenant, was, according to the quantity, either to find a foot
soldier equipped for the wars, or to join with another to find one, if
he had not land sufficient. These allodial lands were subjected by law
to three sorts of duties. The first I have mentioned, the other two were
building, and repairing bridges, and furnishing waggons and carriages for
the conveyance of arms and the king’s provisions, or money[324].

The Saxon lands were, likewise, subject to what they called _trinoda
necessitas_, the three knotted obligation. The first was, furnishing a
foot soldier; the second, which was not in the allodial lands abroad,
was _arcis constructio_ the building and keeping in repair castles and
forts, where the king, for the public good, ordered them to be erected;
and lastly, _pontis constructio_ the building and repairing of bridges.
As to furnishing carriages, the Saxon freemen were exempted; these being
supplied, in that constitution, by the lower tenants in ancient demesne;
or the king had a right to seize any man’s carriages by his purveyors,
and use them upon paying for them. This right of purveyance of carriages,
and of timber, and of provisions for the king’s household, which was
intended for the king’s benefit, and by which no loss was to accrue to
the subject, as he was to be paid the value, became, in the hands of
the greedy purveyors, an occasion of great grievances; those officers
seizing, often more than was wanted, often where nothing was wanted,
merely to force the proprietor to a composition of money on restoring
them. The manner of payment, too, became very oppressive. The rates were
fixed at first at the due value, but as the rate of money changed, and
the prices of things rose, it came to be under the half, and as it was
not paid for on the spot, but by tickets on the treasurer, the owners,
were frequently put to more trouble and expence in attendance than the
value of their demand. This the purveyors well knew, and therefore turned
their office into an engine of extortion. Many were the proclamations
issued by the king; many the acts of parliament made to regulate it;
But the evil was inveterate, and proved very heavy even under the
best princes. The complaints of these oppressions were as great under
Elizabeth as under her successor James, and indeed, the evil was so
inveterate, that nothing but cutting it up by the roots, the destroying
purveyance itself, could cure it[325].

But to return to the military duty done by the Saxons in general for
their lands. In the first place, then, they served as foot soldiers,
and not on horseback, and in compleat armour, as the feudal tenants
were obliged. Again, the feudal tenants attended not but when called
upon, whereas, the Saxons had regular times of meeting and mustering,
though not summoned, in order to see that the men were well trained, and
properly armed. But the great difference lay in this, that no particular
person was bound to military duty, in consideration of his tenure in
the lands. The lands themselves were liable. Every hide of land found
a man, whether it was in the hands of one, or more persons. There was
then no personal attendance, and, consequently, no commutation for it.
The hide of land supported its soldier, while he continued fighting in
his own county; but if in another, he was to be maintained either by
that county, or the king; whereas, the military tenants, by the feudal
law, were obliged to serve forty days at their own expence, wherever the
king pleased, if the war was a just, or a defensive one; and indeed,
as William the Conqueror modelled it, if the war was even unjust, or
offensive. These differences, added to what I have already observed,
concerning their lands not being escheatable for felony, being alienable,
and being devisable by will, I think, shew plainly that, though the lands
were subject to military service, it was upon grounds and principles very
different from the feudal ones, and that they were rather in the nature
of the allodial lands on the continent.

As to _Herriots_, which Coke and his followers insist much upon, as being
_reliefs_, they also, when thoroughly considered, will, perhaps, be found
to be of a different nature. A Herriot was a title the landlord had from
his tenants, and the king, as supreme landlord, from his, of seizing,
the best beast of his dead tenant, or his armour, if he was a military
man. These being due upon the death of the tenant, certainly bore some
resemblance to the reliefs on the continent, and are in king Canute’s
law, which was written in Latin, called by the name of _relevatio_. To
shew what they were in that time, the _relevatio_, or Herriot of an earl,
was eight horses, four saddled, four unsaddled, four helmets, four coats
of mail, eight lances, eight shields, four swords, and two hundred marks
of gold; of the king’s thane four horses, two saddled, two unsaddled,
two swords, four lances, four shields, his helmet and coat of mail, and
fifty marks of gold; of the middling thane, a horse with his furniture,
with his arms. But, then, Spelman justly observes, that these were not
paid by the heir, as a relief to the lords, to entitle him to enter on
the inheritance. The heir had the lands immediately and was not obliged
to defer his entry till he had paid them, as he was his relief by the
feudal law, and by the law of England after the conquest. Nay, they were
not paid by the heir at law, but by the executor or administrator, as a
perquisite out of the tenant’s personal fortune[326].

However, William the Conqueror, finding these perquisites in use, and
that in Latin they were called _relevationes_, took advantage thereof,
and as the forfeited lands he bestowed on his Normans were given upon
the terms, and with the same burthens as lands on the continent, so were
the reliefs he exacted from such in the same manner, made payable by the
heir, not the executor; and as to the unforfeited lands, which remained
to the Saxons, and were very inconsiderable in number, he, in the manner
I shall shew in the next lecture, converted them, into real fiefs, such
as were then in use in France; from whence the reliefs came, likewise,
to be exacted from the heir, and to be considered as redemptions of the
inheritance, which, upon the principles of the feudal policy, could not
be entered upon by the heir till the relief was paid. This alteration
it was not in the Saxon landholders power to oppose, on the account
before-mentioned; nor, indeed, was the burthen on the heir such, if no
consequences were to be apprehended from it, as deserved opposition; for
William fixed the reliefs at a certainty, at the same rate, or with very
little addition, as the Herriots were in Canute’s law.

But experience soon shewed what effects might follow from the
construction of Norman judges, at the devotion of a king, upon the word
_relevium_ being used, and its becoming payable by the heir, instead
of the executor; his son and successor insisted that reliefs were by
the feudal law arbitrary, and looked upon his father’s limiting them
as a void act, that could not bind his successors. He, accordingly,
exacted arbitrary and excessive reliefs both from the Norman and Saxon
landholders in England, which exasperated both equally against him;
for though the reliefs in France were, by no law, as yet reduced to a
certainty, yet by custom they were to be reasonable, and not to be
merely at the will and discretion of the king or lord; in consequence of
which he was, on some occasions, forced to depend almost entirely, in his
wars with Normandy, on the mercenary army of the lower English, who had
no property; and had his reign continued much longer, it is extremely
probable he would have felt severely for the oppressions he laid his
military tenants of both nations under. But he dying in ten years, Henry
was obliged, before he was elected, to swear to observe the laws of
Edward the Confessor, which he did, with such emendations as his father
the Conqueror had made; and accordingly, as to _reliefs_ he faithfully
observed his oath; but it being inconvenient for the heir, who was at a
call to perform military duty, to be obliged to pay his relief in arms,
which he might want on a sudden emergency, it was therefore, generally
commuted for money. However, there being no settled rate fixed, at which
this commutation should be regulated, this also was made an engine of
oppression in John’s reign, until it was finally fixed at a certain sum
of money, according to the different ranks of the persons, by _Magna
Charta_[327].

As to the last argument, of the _Oath of fealty_ being taken by the
Saxons, it is the weakest of all. An oath of fealty taken by a feudal
tenant, was to his _lord_, whether king or not. It was merely as tenant
to him of land, and in consideration of such, and consequently the
proprietors of land only were to take it. The oath the Saxons took, which
is likened to this, was to the king, as king not as landlord, and not
at all in consideration of land; for every male person above the age of
twelve years was obliged to take this oath among the Saxons, whether he
had lands or not. In truth, it was no more than an oath of allegiance to
the king, as king, which was common in all kingdoms, and not peculiar to
those where the feudal maxims prevailed[328].

Hence I think I have some liberty to conclude, though I do it with due
deference, as the greatest masters in the antient laws and records of
England have been divided in this point, that the very reasons urged to
prove that lands were held in the Saxon times as feudal inheritances,
prove rather the contrary, and that they were, in the general I mean, of
the nature of the allodial lands on the continent.

In my next I shall speak of the alterations introduced by the conqueror,
both as to the tenure of lands in England, and as to the administration
of justice, which were so remarkable, as to deserve to be considered
with the strictest attention, as they laid the foundation for the great
alterations that have followed since.




LECTURE XXVIII.

    _The Saxons, though their lands in general were allodial, were
    not strangers to military benefices for life—The alterations
    introduced by William the Norman, as to the tenure of lands in
    England._


Though, in my last, I have delivered my opinion, that the lands of the
Saxons were not feudal, but allodial, I would not be understood as if
there were no lands held by them upon military service, different from
the allodial I have already described. It is undeniable, that there
was among them _lord_ and _vassal_; that there were lands held by such
military service as was performed abroad; where the bond of fealty
subsisted between lord and tenant, and where the tenants were obliged
to serve in person on horseback. But these were few; for the strength
of the Saxon army lay in their infantry. Besides, such were not feudal
inheritances, but benefices for life, for, in all the records remaining
of them, there is not a word implying an estate that could descend, or
a single trace of _wardship_, _marriage_, or _relief_, the necessary
concomitants of such estates. What puts that out of all doubt, in my
apprehension, is one of the laws of William himself, where he says it
was he that granted lands _in feudum, jure hæreditario_, which words are
added, by way of distinguishing the estates he granted from the military
estates for life, in use before. The word _feudum_ alone would have
been sufficient, had that law been in use before, and the words _jure
hæreditario_ were added by way of explanation of _feudum_; and _feudum_
is added by way of distinction from allodial inheritances[329].

When these military benefices began among the Saxons, I cannot say is
determined, but shall offer a conjecture, that carries a great face of
probability. That they were not coeval with the Heptarchy is certain;
for none of the German nations had, at that time, fixed estates for life
in their military holdings. What time, then, so probable as the days of
Egbert, who had resided long in the court of Charlemagne, where these
tenures were in use, and where he saw the benefit of them? Besides, this
was the very time that a body of horse began to be wanted, who could move
swiftly to encounter the Danes, then beginning their ravages, and whose
practice it was to land in separate bodies, and to kill and plunder,
until a superior force assembled, and then reimbarking, to commit the
same devastations on some other defenceless part of the coast. But these
kind of tenures, as I observed before, could be but few, as most of the
lands were inheritances appropriated to particular families.

To come now to William. A single battle, wherein Harold and the flower
of the nobility were slain, determined the fate of England. However,
many of the great men survived, and the bulk of the nation were averse
to his pretensions. A weak attempt was made to set up Edgar Atheling,
the only prince remaining of the royal race, but the intrigues of the
clergy, who were almost universally on the invader’s side (on account of
his being under the protection of the pope, and having received from him
a consecrated banner) co-operating with the approach of his victorious
army, soon put an end to Edgar’s shadow of royalty. He submitted, as did
his associates, and they were all received, not only with kindness but
with many high marks of distinction. William, accordingly, was crowned
with the unanimous consent of the nation, upon swearing to the laws of
Edward the Confessor; and it must be owned he behaved, during his first
stay, with the utmost equal justice and impartiality between the Normans
and natives. But the continuing to act in that manner did not consist
with his views, which were principally two; the first to gratify his
hungry adventurers with lands, the next to subvert the English law, and
introduce the feudal and Norman policy in lieu of it[330].

The first step he made there was no finding fault with. It was now
allowed, that William’s title was legal from the beginning, and that
Harold was an usurper, and all that adhered to him rebels. He made
enquiry for all the great men that fell in battle on Harold’s side. Their
lands he confiscated, and distributed, upon the terms of the Norman law,
to his followers; but these were not half sufficient to satisfy the
expectants, and the English were still too powerful, as he had pardoned
all those who survived. He therefore returned to Normandy, carrying
Edgar and the chief of the English nobility with him, under pretence
of doing them honour, but in reality, that they might be absent while
his views were carrying on; and in the mean time he left his scheme to
be executed by his Normans, and those he had appointed his regents. I
say _his_ scheme, for his interest, to exalt one side and depress the
other, on which he could not depend, almost forced him to this conduct.
The oppressions, therefore, were so exorbitant in his absence, as must
necessarily have driven a people to rebel, and for which a man of justice
would think the real delinquents ought to be the persons punished, whilst
the unhappy nation merited the freest pardon, for whatever they did when
actuated by a despair, proceeding from the denial of justice. But that
he himself was the immediate source of these distresses is evident from
his temper, which was such, that no regents of his durst have acted as
they did without his approbation. The Normans began by encroaching on
their neighbours the English, nay with forcibly turning them out of their
entire possessions. If these applied to the regents in the _curia regis_,
there was no redress. If they retaliated the injuries they suffered, they
were declared outlaws and rebels[331].

These proceedings threw the whole nation into a flame, and, had they
had a leader of sufficient weight and abilities to head them, William,
perhaps, might have been dethroned; but the right heir, and all the
men he feared, were out of the kingdom. They produced, therefore,
only ill-concerted, unconnected insurrections, headed by men of no
considerable figure, provoked by private wrongs; and these being easily
suppressed, afforded a fund of new confiscations, which he disposed of
in the same manner as the former, and thereby spread the use of the
feudal law further into several parts of England. However, though he did
not spare the insurgents, nor punish his officers that had occasioned
those commotions, he did not, as some have asserted, seize all the
lands of England as his by right of conquest; for, when he came over,
his court was open to the complaints of the English, and if any of them
could undeniably prove, as indeed few of them could, that they had never
assisted Harold, or been concerned in the late disturbances, they were
restored to their lands as they held them before; as appears from the
case of Edwin Sharrburn, and many others. By these means William obtained
the first of his great ends, the transferring almost all the lands of
England to his followers, and making them inheritances, descendible
according to the Norman law.

But as to the inheritances that still remained in English hands, had he
not proceeded somewhat farther, they would have gone in the old course,
and been free from the burthen of feudal tenure. But how to alter this,
and to subject the few allodial lands, as also the church lands, to the
Norman services, was the question; for he had sworn to observe Edward’s
laws. The alteration, therefore, must be made by the _commune concilium_,
or parliament, and this he was not in the least danger of not carrying,
in a house composed of his own countrymen, enriched by his bounty, and
who were born and bred under the law he had a mind to introduce; and
who could not be well pleased to see some of the conquered nation enjoy
estates on better terms than themselves the conquerors. The pretence
of calling this assembly, which was convened in the fourth year of
his reign, was very plausible. The English had grievously and justly
complained of the constant violation of the Saxon laws, and the only
extenuation that could be made for this, and which had some foundation
in truth, was, that the king and his officers were strangers, and not
acquainted with that law. He therefore summoned this _commune concilium_,
or parliament, to ascertain what the antient law was, and to make such
amendments thereto, as the late change and circumstances of affairs
required. And, for their instruction in the old law, which was but partly
in writing, most of it customary, he summoned twelve men, the most
knowing in the laws of England, out of each county, to assist and inform
them what those laws were.

Accordingly, we find the laws of William the First are, in general,
little other than transcripts of the Saxon laws or customs. However,
there are two, which were intended to alter the military policy of the
kingdom, to abolish the _trinoda necessitas_, and in its lieu, to make
the lands of the English, and of the church liable to knights service,
as the Normans lands were by his new grants, and thereby make the system
uniform. His fifty second law is entirely in feudal terms, and was
certainly drawn up by some person skilled in that law, for the purpose I
have mentioned. It runs thus: _Statuimus ut omnes liberi homines fædere
& sacramento affirment, quod intra et extra universum regnum angliæ,
Willielmo Domino suo fideles esse volunt, terras & honores illius ubique
servare cum eo, & contra inimicos & alienigenas defendere_[332].

I shall make a few remarks on the wording of this law; and first on the
word _statuimus_. Wright[333] observes, that it being plural, implies
that this was not by the king alone, but by the _commune concilium_,
or parliament, for the stile of the king of England, when speaking of
himself was for ages after in the singular number, and in the subsequent
part he is plainly distinguished from the enactors of the law; for it
is not _mihi_, or _nobis fideles esse_, but _Willielmo Domino suo_ in
the third person, nor, _terras & honores meos_ or _nostros servare_, but
_terras & honores illius_; and indeed, in the subsequent law I shall
mention it is expressly said in effect, that the subjecting the free
lands to knight service was _per commune concilium_. Secondly, the words
_liberi homines_ is a term of the feudal law, properly applicable to
allodial tenants, who held their lands free from the military service
that vassals were obliged to: And in this sense was it used in France
also, from whence William came. In these words were included also, the
men of the church, for as their lands were before subject to the _trinoda
necessitas_, it was reasonable when that was abolished, they should be
subject to this that came in the lieu of it. _Fædere_ and _sacramento
affirment_. _Fædus_ is the homage, which, though done by the tenant only
to the lord, was looked upon by the feudists as a contract, and equally
bound both parties, as is _sacramentum_; as appears after the feudal
oath of fealty; and they are placed in the order they are to be done,
homage first and then the oath of fealty. _Willielmo Domino suo_, not
_regi_, not the oath of allegiance as king, but the oath of fealty from
a tenant to a landlord, for the lands he holds. _Fidelis_ is the very
technical word of the feudal law for a vassal. But the words _intra &
extra universum regnum angliæ_ are particularly to be observed: For these
made a deviation from the general principles of the feudal law, and one
highly advantageous to the kingly power. By the feudal law no vassal
was obliged to serve his lord in war, unless it was a defensive war, or
one he thought a just one, nor for any foreign territories belonging
to his lord, that was not a part of the seignory of which he held; but
this would not effectually serve for the defence of William. He was duke
of Normandy, which he held from France, and he knew the king of that
country was very jealous of the extraordinary accession of power he had
gained by his new territorial acquisition, and would take every occasion,
just or unjust, of attacking him there; in short, that he must be almost
always in a state of war. Such an obligation on his tenants, of serving
every where, was of the highest consequence for him to obtain; nor was
it difficult, as most of them had also estates in Normandy, and were by
self-interest engaged in its defence.

The next law of his I shall mention is the fifty-eighth, which
enjoins all who held lands by military service, and some others, to
be in perpetual readiness. It runs to this effect: “We enact and
firmly command, that all earls and barons and knights and servants,
_servientes_, (that is the lower soldiers, not knighted, who had not
yet got lands, but were quartered on the abbeys,) and all the freemen,
(namely the Saxon freeholders, and of the tenants of the church,
which now was subjected to knights service) of our whole aforesaid
kingdom, shall have and keep themselves well in arms, and in horses,
as is fitting, and their duty; and that they should be always ready,
and well prepared to fulfil and to act whensoever occasion shall be,
according to what they ought by law to do for us from their fiefs and
tenements; and as we have enacted to them by the _commune concilium_ of
our whole kingdom aforesaid; and have given and granted to them in fee
in hereditary right.” The great effect of this law was to settle two
things, not expressly mentioned in the former; the first to shew the
nature of the service now required, knight service on horseback; and the
other, to ascertain to all his tenants, Saxons as well as Normans, the
hereditary right they had in their lands, for if that had not been done
by this law, as now all lands were made feudal, and their titles to them
consequently to be decided by that law, they might otherwise be liable
to a construction, according to its principles, that any man, who could
not shew in his title _words of inheritance_, which the Saxons generally
could not, was but tenant for life[334].

This general law then put all on the same footing, and gave them
inheritances, as they had before, but of another nature, the feudal one,
and consequently, made them subject to all its regulations. From this
time, and in consequence of these laws, the maxim prevailed, that _all
lands in England are held from the king_, and that they all proceeded
from his free bounty, as is strongly implied in the word _concessimus_;
and hence some, indeed many, have imagined that the conqueror seized
all the lands of England, as his by right of conquest, and distributed
them to whom, and on what terms he pleased. With respect to the greater
part, which he gave to his Normans, this is true; but it appears from
the records of his time, that it was not universally the case. The laws
I have mentioned so changed the nature of the inheritances, which he did
not seize, that they were subject to all the same consequences, as if
he had so done; though in truth, with respect to the Saxons, he did not
dispossess them. It was but a fiction in law.

I have mentioned that he made the lands of the church liable to knights
service, in lieu of the military expedition they were subject to before;
but this is to be understood with some limitation. For where the lands
of an ecclesiastical person, or corporation, were barely sufficient
to maintain those that did the duty, they, for necessity’s sake, were
exempted; and the Saxon expedition being abolished, the contribution
thereto fell with it, and they became tenants in _frankalmoine_, or
_free alms_. But where an ecclesiastical corporation was rich, and
able, besides their necessary support, according to their dignity, they
were, by these laws, under the words _liberi homines_, subjected to the
new ordained military service, as they had been before to the old, and
according to their wealth, were obliged to find one or more knights or
horsemen. If they were obliged to furnish as many as a baron regularly
was, they were barons, as all the bishops and many of the great abbots
were; and, as barons, sat in the _commune concilium_; whereas, before,
the clergy in general sat in parliament, as well as the laity, not as a
separate body, nor invested with separate rights, but both clergy and
laity equally concurred in making laws, whether relative to temporal
affairs or spiritual; though, with respect to the latter, it may well
be inferred, from the ignorance of the times, that they had almost the
entire influence. But after this time the clergy became a separate body
from the laity, had distinct interests also, and a separate jurisdiction;
nay, I may say, became, in some degree, a separate branch of the
legislature, by the right they claimed, and exercised, of making canons
to bind laity as well as clergy[335]. But the explaining this would carry
me too far at present, so I shall defer it to my next lecture.

In the mean time, I shall just recapitulate the prodigious alteration,
as to the properties of landed estates in England, introduced by the two
laws of the conquerors, I have mentioned, from what was their nature and
qualities before that time. They had been the absolute proprieties of
the owner, (I speak in general,) they could be aliened at pleasure, they
could be devised by will, were subject to no exactions on the death of
the owner, but a very moderate settled herriot paid by the executor. In
the mean time, on the death of the ancestor, the heir entered without
waiting for the approbation of the lord, or paying any thing for it; and
his heir, if there was no will, was all the sons jointly. No wardship,
or marriage, was due or exacted, if the heir was a minor. All these, by
the feudal customs being introduced, were quite altered. Lands could no
longer be aliened without the consent of the lord. No will or testament
concerning them availed any thing. The heir had no longer a right to
enter into his ancestor’s inheritance immediately on his death, until
he (not the executor) had paid a relief (and that not a moderate one)
and been admitted by the lord. The heir, likewise, was not all the sons
jointly, but one, first, such as the lord pleased to prefer; at length
it became settled universally in favour of the eldest; and the fruits of
tenure, wardship, marriage and relief (for the Saxon herriot was, as I
have mentioned, a different thing) came in as necessary attendants of a
feudal donation.

No wonder, then, that it has been said William introduced a new law, the
Norman one. He certainly did so as to landed estates; but this, as I have
observed before, by the consent of his parliament, who, being Normans,
were as well pleased with the change as himself; but it is not true
with respect to the other old Saxon laws, which did not clash with the
design of introducing the military feudal system. Them he confirmed, and
his feudal laws were called only emendations. However, certain it is,
his secret design was to eradicate even the Saxon, the laws he had, in
pursuance of his coronation oath, confirmed, and that he took many steps
thereto; which though they had not the full effect he intended, wrought
considerable changes. What these were, and the consequences of them,
shall be the subject of the next lecture.




LECTURE XXIX.

    _The alterations introduced by William, as to the
    administration of justice—The Judges of the Curia Regis are
    appointed from among the Normans—The county courts decline—The
    introduction of the Norman language—The distinction between
    courts of record, and not of record—The separation of the
    spiritual and temporal courts—The consequences of this measure._


William, by altering the nature of land estates, and the conditions upon
which they were held, had proceeded a good way in his second capital
design, the introduction of the Norman, and the abolishing of the Saxon
law. And farther than that, it was not proper nor consistent with his
honour, who had sworn to Edward’s laws, to proceed openly. However he
formed a promising scheme for sapping and undermining the Saxon law
by degrees. First, he appointed all the judges of the _curia regis_,
from among the Normans, persons fond of their own law, ignorant of the
English, and therefore incapable, even if they had a mind, to judge
according to it.

Before his time this court only meddled with the causes of the great
lords, or others that were of great difficulty, but now it was thought
proper to discourage the county courts, and to introduce most causes
originally into the superior court; and for this there was a reasonable
pretence, from the divisions and factions between the two nations and the
partialities that must ever flow from such a situation of affairs. The
ancient laws of England had been written, some in the Saxon, some in the
Latin tongue, and the laws of William, and of many of his successors,
were penned in the latter language. But in the _curia regis_ all the
pleadings henceforward were entered in the Norman tongue, the common
language of his court, as were also, all the proceedings therein, until
the time of Edward the Third. This introduced the technical law terms
and with those came in the maxims and rules of administering justice
belonging to that people, which gradually, wherever they differed
from, superseded the English. Hence proceeded the great affinity I may
say, identity, between the antient law of Normandy, as set forth in the
_coutumier_ of that country, and the law of England, as it stood soon
after the conquest.

The analogy, however, did not arise from this alone. Though England
borrowed most from Normandy, yet, on the other hand, Normandy borrowed
much from England. William, for the ease of his people, who had occasion
to frequent his court, or had suits in the _curia regis_, established
schools for instructing persons in this language, and obliged parents of
substance to send their children thither, which had the consequence of
abolishing the old Saxon tongue, and forming a new language, from the
mixture of both[336].

This introduction of a new language, together with the exaltation of
the _curia regis_ and the consequent depression of the county courts,
introduced, as I apprehend, the distinction between the _courts of
record_, and _not of record_, and made the county courts considered of
the latter kind. Courts of record are such whose proceedings are duly
entered, which, at that time, was to have been done in the Norman tongue,
and which proceedings are of such weight, as, unless reversed, for ever
appearing from the record, can never be gainsaid or controverted. Now,
to allow such a privilege to the proceedings of the inferior courts,
the county ones, where the suitors were judges, and where, besides, the
proceedings were in the English language, would have been contrary to the
policy of that time, and would have tended, rather to the confirmation
than depression of the old law. The spiritual courts, also, are not
allowed to be courts of record, and that, I presume, because they were
antiently a part of the county courts, and separated from them, as I
shall shew presently in this reign, and therefore could have no greater
privilege than the court from which they were derived. However some
inferior courts, such as the _tourn_, and the leet, were allowed to be
courts of record, and that, I conceive, both for the benefit of the
realm, and the profit of the king; for these were criminal courts, where
public offences were punished, and therefore should have all weight given
them, and where the king’s forfeitures and fines for crimes were found.

I have observed before, that the courts, in the Saxon times, were
mixed assemblies, where the bishop and sheriff presided, and mutually
assisted each other, and where the bishop, I may add, had a share in the
amerciaments and fines. But in this reign the spiritual and temporal
courts were separated by William, a thing which afterwards was of bad
consequence to many of his successors, but was, at the time, very
serviceable to the views he then had. This was certainly done partly to
oblige the pope, who had espoused his title, and at this time was setting
up for the universal lord of churchmen, though, in after times, they
carried their pretensions much higher[337].

One great engine the popes set on foot to attain the power they aimed
at, was to make a distinction between _clergy_ and _laity_, to have
the matters relating to the former, as well the merely spiritual as
the temporal rights they had acquired, cognizable only in their own
jurisdictions; and, to preserve the distinction stronger, to forbid their
interfering in the temporal courts, upon pretence of their time being
taken up in spiritual exercises, and particularly, that it suited not the
piety and charity of a clergyman, even by his presence, to countenance
the proceeding to sentence of death, or the mutilation of limbs. Many
were the laws they made for this purpose, upon motives of pretended
piety; and the circumstances and practices of the times contributed
greatly to their success. The emperors, kings, and great lords, had the
nomination to bishoprics, and other benefices, as their ancestors had
been the founders, and their lands were held from them. But shameful was
the abuse they made of this power. Upon pretence of the clergy being
their beneficiary tenants, according to the principles of the feudal law,
they exacted reliefs, and arbitrary ones from them before investiture,
or, to speak in plain terms, they sold them on Simoniacal contracts to
the highest bidder, as the Conqueror’s son William did afterwards in
England; so that the profligate and vicious were advanced to the highest
dignities, while the conscientious clergy remained in obscurity; nay, if
they could get no clergyman to come up to their price, they made gifts of
the title and temporalities to laymen, nay, to children; it was a matter
of little concern that there was no one to do the spiritual office.

Such practices, (and they were too common) gave just and universal
offence to all sober persons, so that the popes were generally
applauded for their aiming at the reformation of the evils, and for the
endeavouring, by their decrees, to reform the morals of the corrupt
clergy, and to restore an elective manner of conferring benefices, though
their real design was first to become the protectors of the clergy,
next, their lords and masters, and then, by their means, to tyrannize
over the laity; a plan which they carried into execution with too much
success. This plan was in the height of its operation in William’s reign.
The foundation of it had been laid before, as I observed, in the many
distinctions made between clergy and laity, and the prohibiting the
first, except some great ones, from meddling with secular affairs, or
tribunals. This reparation, however, had not yet taken place in England,
and it is not a wonder that William, who had peculiar views of his own in
it, as I shall observe, thought it reasonable to oblige his benefactor
the pope, and to conform the constitution of this church and nation to
that of France, where the clergy were a separate body.

The private views of the king were twofold, the first arose merely
from his personal character, his avarice. By the bishop’s ceasing to
be a judge in the temporal courts, he lost his share of the mulcts or
fines imposed therein, and in consequence the king’s two-thirds of them
were encreased. But his other view lay deeper. To comprehend this, we
must remember how great was the ignorance of those ages. Scarce a man,
except a clergyman, could read or write, insomuch that being able to
read was looked upon as a proof of being in orders. Many even of the
greatest lords could not write their names, but signed _marks_; and from
this ignorance it was that proceeded the great weight our law gives to
_sealing_ above _signing_ any instrument, and that sealing is what makes
it a man’s deed. It followed from hence that the laity must be grossly
ignorant in point of the laws. Their knowledge could extend no farther
than as they remembered a few particular cases, that fell under their own
observation; whereas the clergy had the benefit of reading the written
laws, and consulting the proceedings thereon, in the rolls of the courts
of justice, and they were the only lawyers of the times; insomuch that it
became a proverb, _nullus clericus nisi causidicus_.

What method then could so effectually answer the king’s end of making
the Saxon law fall into oblivion, which he could not openly abolish,
after having solemnly sworn to observe it, as the removing from the
courts of justice those persons who only knew it, and could oppose any
innovation his Norman ministers should attempt to introduce. This policy,
however, as artfully as it was laid, had not its full effect; for many
of the clergy, unwilling to lose so gainful a trade, appeared still
in these courts in disguise, as laymen, and at this time it is very
probably conjectured that that ornament of the serjeant at law’s dress,
the _coiff_, was introduced, and for this very purpose of hiding the
tonsure, which would have shewn them to be clerks. This their attendance,
in some degree, frustrated the scheme, and many of the Saxon laws, such
especially as were repeated in William’s, kept their ground, but many
more were forgotten.

I mentioned that one motive of William’s to separate the jurisdictions,
was to oblige the pope, to whose favour he owed much, yet it ought to
be observed to his honour, that he maintained the independency of his
kingdom with a royal firmness. Pope Gregory, commonly called Hildebrand,
who was the first that ventured so far as to excommunicate sovereign
princes, as he did the emperor no less than four different times,
conceiving William could not sit securely on his throne without the aid
of his see, demanded of him homage for the kingdom of England, and the
arrears of Peter’s pence; grounding his claim of superiority on his
predecessor’s consecrated banner, and that Peter-pence was the service
by which the kingdom was held from the holy see. But he found he had a
man of spirit to deal with. William allowed the justice of the demand
of Peter-pence, and promised to have it collected and paid, not as a
tribute, but as a charitable foundation, as in truth it was, to support
a college of English students at Rome, for the benefit of the English
church. As to _homage_, he absolutely refused it, and declared he held
his crown from God alone, and would maintain its independence; and to
convince the pope he was in earnest, he issued an edict forbidding, on
their allegiance, his subjects to acknowledge any person for sovereign
pontiff, until he had first acknowledged him. So bold a step convinced
Gregory, who was already sufficiently embroiled with the emperor, that
this was no fit time to push things; and so he dropped his project,
but without retracting it; for the court of Rome never did in any case
formally recede from a pretension it had once advanced.

The consequences of the separation of the ecclesiastical from the
temporal jurisdiction were many. It naturally occasioned controversies
concerning the respective limits, and these gave rise to the _curia
regis_ interposing in these matters, and, by prohibitions, preventing one
from encroaching upon the other. The great contest was concerning suits
for benefices, or church livings, which the clergy contended were of
_spiritual_, and the king’s courts, of _temporal_ cognizance. And this,
indeed, was the great question that, in those days, divided the Christian
world abroad. However in England, the clergy were, at length, foiled in
this point. But a much greater evil arose from this separation. It is
a maxim of all laws, that no man should be twice punished for the same
crime, and this just maxim the clergy, in favour of the members of their
own body, perverted in a shocking manner. If a clerk committed murder,
rape, or robbery, the bishop tried and condemned him to penance; and
this sentence was made a pretence of not delivering him to the temporal
courts, to be tried for his life. This was one of the great disputes
concerning the constitutions of Clarendon, in Henry the Second’s time,
between him and archbishop Becket[338].

At length, about Henry the Third’s reign, the limits between the several
jurisdictions were pretty well settled, and by subsequent statutes, and
judicial resolutions, are confined to the respective limits they are
now under. Indeed, since the Reformation, as the credit of the canon
law has declined, on account of the dilatory proceedings, and the use
of excommunication upon every trifling contempt, the reputation of the
ecclesiastical courts has greatly fallen, and prohibitions are now
issued, in many cases, where they could not have been granted in former
times. Yet, if we examine accurately, we shall find that these great
complaints, which, it must be owned, are in the general just, namely, of
dilatoriness and excommunications, proceeded from the separation of the
two courts by William. Before, when the courts sat together, the sheriff
assisted the bishop, and by his temporal power compelled the parties to
appear, and submit to the sentence, if they were contumacious against
excommunication. But when they were separated, the bishop was left to his
spiritual arms, merely, excommunication; and as the consequences of such
a sentence were, in the superstitious times, looked on as very dreadful,
and are really severe in law, several intermediate processes and notices
were necessary before they proceeded to that extremity; and this gave
opportunity to litigious persons to disobey every order the court made in
a cause, until they came to the brink of excommunication, and that way,
by repeated contumacies, to spin out causes to an unconscionable length.
And the want of other arms compelled these courts, on very trifling
contempts, to enforce their orders by excommunication, which, it must be
owned, according to its primitive and right use, should be reserved only
for flagitious immoralities[339].

Another evil consequence that flowed from this separation of these
courts, was, that the pope cunningly got his, the canon law, introduced
into the ecclesiastical courts, which made him the head of the church,
introduced appeals to him, and in effect, robbed the king of so many
subjects in ecclesiastical affairs, whereas, before, though there might
be references in cases of difficulty for advice to Rome, there were
no appeals thither. The _curia regis_ was to reform ecclesiastical
judgments, and the ecclesiastical, as well as temporal jurisdiction, was
the king’s.

Another evil consequence, and it is the last I shall mention, of this
alteration, was the setting up two legislatures, if I may say so, in the
kingdom. In the antient time all laws were made in the same assembly,
but now, the clergy being separated from the laity, when a parliament
was called, the business became divided; ecclesiastical matters, and
the taxes on the clergy, were handled in the convocation, as temporal
matters, and the taxes on the laity, were in parliament. This contributed
to the further clashing of jurisdictions. For it must be owned the
convocation exceeded their powers, and made canons about things merely
temporal; which, however, they contended to be spiritual; and sometimes
contrary to the express law of the land, nevertheless they by the
superstitious and ignorant, who knew not the distinction between such
things, were generally obeyed, and hence from such submission it is,
that, by custom, in several places, tythes are payable of things that are
not tythable at common law.

The right of the convocation’s canons binding the laity in spiritual
matters was never doubted in the times of popery, nay till Charles the
First’s time, if they had the approbation of the king, who was the head
of the church, it was the general opinion, except among the Puritans.
But since that time their jurisdiction is settled on a reasonable
footing. Their canons bind no man, spiritual or lay, in temporal matters.
They bind no layman in spiritual matters; but they bind the clergy
in spiritual matters, provided that no right of the laity is thereby
infringed. As for instance, there is a canon forbidding clergymen to
celebrate marriage out of canonical hours. This doth not bind even a
clergyman, for if it did, it would strip the laity of their right of
being married at any hour. However it is to be considered whether a canon
of the convocation is a new ordinance, or only a repetition of the old
ecclesiastical law. If the latter, it binds all men, spiritual and lay,
not as a canon, but as the law of the land.




LECTURE XXX.

    _Robert Duke of Normandy, and William Ruffus, dispute the
    succession to the Conqueror—The English prefer the latter—The
    forest laws—The cruelty and oppressions of William—The
    advancement of Henry, the Conqueror’s youngest son, to the
    crown of England—He grants a charter—The nature of this
    charter—His dispute with Anselm concerning Investitures—The
    celibacy of the clergy—State of the kingdom under Stephen._


William the Conqueror left three sons, Robert, William and Henry. The
eldest, Robert, according to the established rules of the French fiefs,
succeeded in Normandy, and on account of his primogeniture laid claim
also to the crown of England; but what right that gave him, might in
those days, well be a question. In the Saxon times the rule was to elect
a king out of the royal family, and the election generally fell on the
eldest son, though not universally; for the line of Alfred reigned in
prejudice to the descendants of his two elder brothers. Edred succeeded
to his brother Edmund, in prejudice of Edmund’s two sons; again, on
Edred’s death, his son was excluded, and Edmund’s eldest son resigned;
and lastly Edward the Confessor was king, though his elder brother’s
son was living. So that priority of birth was rather a circumstance
influencing the people’s choice, than what gave an absolute right of
succession[340].

Another thing, it might be pretended, should determine this point,
that is, as William claimed the crown through the will, as he said, of
the Confessor, he also had not a power to bequeath the crown. When,
therefore, he was making his will he was applied to on this head, but the
approach of death seems to make him acknowledge that his only just title
was his _election_, for though he hated his son Robert, and was extremely
fond of William, he refused to dispose of it by will. He only expressed
his wish that William might succeed, and dispatched him to England, with
letters to Lanfranc archbishop of Canterbury, requesting him to influence
the election in his favour, and he accordingly was crowned. Indeed, it
seems a little odd that William, whose bad qualities were universally
known (for he had not one single virtue, except personal bravery) should
be preferred to Robert, who, with that virtue, possessed all the amiable
virtues of humanity.

That the native English should prefer any one to Robert is not to be
wondered at, as he had, on all occasions, expressed the highest aversion
to them, but they had no influence in the matter and it appears, at first
view, the interest of the English lords, most of whom had also estates in
Normandy, to be subject to one monarch, and not have their estates liable
to confiscation, on taking part with one of the brothers against the
other. But the interest of Lanfranc and the clergy, added to his father’s
treasure, which he had seized, and distributed liberally, bore down all
opposition; and indeed, it is probable that Robert’s disposition, which
was well known, operated in his disfavour; for his extreme indolence and
prodigality, and his scruples of using improper means for attaining the
most desirable ends (whereas William was extremely active and would stick
at nothing) made it easy for persons of any penetration to see in whose
favour the contest between the two brothers must end[341].

We have little to say of the laws in his time, for he regarded no laws,
divine or human, ecclesiastical or temporal. He chose for judges and
courtiers the most profligate persons he could find. And one of the great
oppressions his people laboured under was the extending, and aggravating
the forest laws. The _forests_ were large tracts of land, set apart
by his father for the king’s hunting out of the royal demesnes; and
consequently William his father had by his own authority, made laws, and
severe ones, to be observed in these districts for the preservation of
the game, and erected courts to try offenders, and trespassers in his
forests. The great intention of these courts was to fleece his subjects,
who were as fond of hunting as their sovereign, by mulcts and fines; and
in truth, these were the only oppressions his countrymen, the Normans,
suffered under the Conqueror.

But Ruffus flew out of all bounds. He introduced the _lawing_, as it
is called, the Hamstringings of Dogs; nay, he made a law, by his own
authority, to make the killing of a deer capital. On pretence of this law
he seized many of the great and rich, confined them for years, without
bringing them to tryal, until he forced them to compound, and to give up
the better part of their estates. Not content with harrassing the laity,
he laid sacrilegious hands on the church revenues. Whenever a rich abbey,
or bishoprick, fell vacant, he laid his hands on the temporalities, kept
them vacant for years, as he did that of Canterbury four years; and even,
when he was prevailed upon to fill them, he openly set them to sale in
his presence, and gave them to the best bidder. However, in a violent
fit of sickness, he promised to reform, and did till he recovered his
strength, when his reformation vanished. The remonstrances of his clergy,
or the pope, had no effect with him; and, indeed, the circumstances of
the times were favourable. For as there were two popes, one made by the
emperor, the other, by the Romans, who disowned the imperial authority in
that respect, William acknowledged neither, and each was afraid to drive
him into his adversaries party, by proceeding to extremities.

These enormities raised him so many enemies among his subjects, of all
kinds, that Robert had a strong party, and an insurrection was begun
in his favour, which William, profiting of Robert’s indolence, easily
suppressed, and then invaded him in Normandy, and was near conquering it,
as, by a sum of money, he detached the king of France from the alliance,
if he had not been invaded by Scotland, in favour of Robert. He patched
up, therefore, a peace with him, ratified by the barons on both sides,
the terms of which were, that the adherents of each should be pardoned,
and restored to their estates, and the survivor succeed to the other[342].

Thus there was a legal settlement of the crown of England made, which
ought to have taken place, but did not. For William being accidentally
killed in hunting, while Robert was absent in Italy, on his return from
the holy war, Henry the youngest son, took the advantage, and seizing
his brother William’s treasure, was crowned the third day, after a very
tumultuous election, the populace threatening death to any that should
oppose him. The reason of their attachment to him was, that he was, by
birth, an Englishman, and therefore, they hoped for milder treatment
from him than they had met from his two Norman predecessors. Besides he
had promised a renewal of the Confessor’s laws, with such emendations as
his father had made. And in pursuance of this promise, as soon as he was
crowned, he issued a charter, containing the laws as he now settled them,
and sent copies of it to every cathedral in his kingdom.

These laws were, as to the bulk of them, the old Saxon constitutions,
with the addition of the Conqueror’s law of fiefs, and some things taken
from the compilations of the canon law. However, with respect to the
feudal law, he, in many instances, moderated its severity. With respect
to _reliefs_, he abolished the arbitrary and heavy ones which William
had exacted, and restored the moderate, and certain ones, which his
father had established. With respect to the _marriage_ of his vassal’s
children, he gave their parents and relations free power of disposing
of them, provided they did not marry them to his enemies, for obviating
which, his consent was to be applied for, but then he expressly engaged
not to take any thing for his consent; and the _wardships_ of his minor
tenants he committed to their nearest kindred, that they might take care
of the persons and estates of the ward, and account with him for the
profits during the minority, upon reasonable terms. He even, in some
degree, restored the Saxon _law of descents_, and permitted alienation
of lands. For if a man had several fiefs, and several sons, the eldest
had the principal one, on which was the place of habitation, only, and
the rest went among the sons, as far as they would go; and if a man
purchased or acquired land (as land might be alienated by the feudal law,
with the consent of the superior lord,) such acquisitions by the laws of
Henry, he was not obliged to transmit to his heirs; but might alien at
pleasure[343].

This mitigation of the former law was very agreeable to his people,
both English and Normans. The former were pleased to see the Saxon law
so nearly restored, and the latter, harrassed with the oppressions of
William, were glad to have the heavy burthens of their tenures lightened;
and indeed, began, by degrees, to relish the old English law, and to
prefer it to their own.

To attach the bulk of his subjects to him still more strongly, he took
another very prudent step. He married Maud the daughter of the king of
Scotland, by Edgar Atheling’s sister, so that in his issue the blood
of the Norman and Saxon kings were united. But still he was not firmly
settled, until the affairs of the church, and the right of lay persons
granting investitures of church livings were settled. He intended to
proceed in the same manner that his father and brother had done. He
accordingly named persons to the vacant bishopricks, and recalled Anselm,
archbishop of Canterbury, who had lived in exile during the latter
part of William’s reign, on account of the then famous dispute of lay
investitures. But Anselm, adhering to the canons of a council held at
Rome, refused to consecrate the bishops named by the king, and also to do
him homage for the temporalities of his own see, which the king required
before he gave him possession.

Henry, afraid of detaching from himself, and attaching to his brother
Robert, the pope and so powerful a body as the bulk of the clergy,
with so popular and high spirited a priest at their head, was obliged
to propose an expedient, that he should send ambassadors to the pope,
to represent that these canons were contrary to the antient law and
customs of the nation, and to endeavour to obtain a dispensation for
not complying with the canons; and that, in the mean time, Anselm might
enter into the temporalities of his see. This proposal was accepted.
But, though, the king’s desiring to do that by dispensation, which he
had a right to do by law, was tacitly giving up his cause, the pope
knew his own strength, and Henry’s weakness too well, to grant this
favour. He insisted on the canons being executed, which produced another
quarrel between the king and archbishop. The archbishop, attended
by other bishops his adherents, went to Rome to complain. The king
sent new ambassadors, but all in vain. The pope proceeded to threaten
excommunication, which, in those days of superstition, would have
tumbled Henry from the throne, so he was obliged to submit, and come to
a composition. He renounced the nomination and investiture _per annulum
& baculum_, restored the free election of bishops and abbots to the
chapters and convents, which, as the pope was judge of the validity
of such elections, was, in effect, almost giving them to him; and, in
acknowledgment of his antient right of patronage, was allowed the custody
of the temporalities during the vacancy; was allowed to give the _congé
d’elire_, or license to proceed to election, without which they could
not elect, and was allowed to receive homage from the elect, upon the
restitution of the temporalities.

Thus the pope gratified the king with the shadow, and gained to himself
and the church the substance, and thus, at this time ended, that contest
in England, which had cost so many thousand lives abroad, between the
pope and emperors. Henry, however, retained a considerable influence in
the elections, for before he issued his _congé d’elire_, he generally
convened his nobles and prelates, and with them recommended a proper
person, who generally was chosen; and this the pope, for the present,
suffered to pass[344].

I have little else to observe touching the laws in this reign, save what
pertains to the _celibacy of the clergy_. The popes, aiming at detaching
the clergy entirely from secular interests, had made many canons against
their marrying, and all the eloquence of some centuries had been
employed in recommending celibacy. These canons, however, had not their
full effect in England; for very many of the secular clergy were still
married. Anselm, in a synod he assembled, enacted a canon against them,
commanding them to dismiss their wives, upon pain of suspension, and
excommunication, if they presumed to continue to officiate. Cardinal de
Crema was afterwards sent legate by the pope to England, where, in a
general assembly of the clergy, he re-enacted the canons against their
marriages, and presiding in a lofty throne, uttered a most furious
declamation against such a sinful practice, declaring it a horrid
abomination, that priests should rise from the arms of a strumpet, and
consecrate the body of Christ. And yet the historians assure us, that,
after consecrating the eucharist in that assembly, he was found that very
night in the stews of Southwark, in bed with a prostitute; which made
him so ashamed, that he stole privately out of England[345].

Henry, though he had subdued Normandy, and kept his brother Robert in
prison, was not without uneasiness as to the succession to his dominions;
for Robert’s son was an accomplished prince, and protected by the king
of France, whereas his own bore but a worthless character. However, to
secure the succession to him, he assembled the barons of Normandy in
Normandy, and those of England in England, and prevailed on them to
take the oath of allegiance to him as such. But he being soon after
drowned, the king, in hopes of male issue, took a second wife, and after
three years fruitless expectation, he turned his thoughts to making his
daughter Maud his heir, and did accordingly prevail on his nobility to
take the oath of allegiance to her as successor. But one of the steps he
took for securing the throne to her, in fact, defeated his scheme. He
knew that a woman had never yet sat on an European throne, that Spain,
which was the only nation that admitted persons to reign in the right
of females, had never suffered the female herself, but always set up
her son, if he was of a competent age; if not, her husband. As to the
circumstances of his own family, his grandson was an infant, and neither
he nor his daughter had confidence in her husband. He knew that this
oath was taken against the general bent of his people, and that little
dependance could be had on it when he was gone, so easy was it to get
absolution. His chief dependance was on the power and influence of his
natural son Robert, who, indeed, did not disappoint him, and of his
nephew Stephen, and of his brother Roger, bishop of Salisbury, on all of
whom he heaped wealth and honours.

Stephen, thus advanced, began to lift his eyes to the crown. He, as well
as his cousin Maud, was a grandchild of the Conqueror, and descended from
the Saxon kings; and he had the personal advantage of being a male, and
bearing an extraordinary good character. By his ability and generosity
he had become exceedingly popular, and his brother Roger secured the
clergy in his interest. Immediately on his uncle’s death, he seized his
treasure, which he employed as Henry had done William’s, and having
spread a report that Henry, on his death bed, had disinherited Maud, and
made him his heir, he was crowned in a very thin assembly of barons.
Sensible of his weakness, he immediately convoked a parliament at Oxford,
where, of his own motion, he swore, not only to rule with equity, but
that he would not retain vacant benefices long in his hands, that he
would sue none for trespassing in his forests, that he would disforest
all such as had been made by the late king, and abolish the odious tax of
_Danegelt_; concessions, which, with the pope’s approbation of his title,
so satisfied the people, that all the lords and prelates who favoured
Maud, and had kept aloof, and among them Robert her brother, came in, and
swore allegiance to him as long as he kept these engagements; from which
conditional oath they expected he would soon release them, and indeed
they did all they could to provoke him to it. This bait taking, and he
having disobliged his brother and the clergy, Maud’s friends rose in her
favour; and made the kingdom for many years a field of blood[346].

In one of these battles Stephen was taken, and Maud was universally
acknowledged; but her insufferable haughtiness, her inflexible severity
to her captive, and her haughty refusal of the city of London’s request,
to mitigate her father’s laws, and restore the Saxon, so alienated
the people from her, that she was forced to fly from London, and arms
were again taken up for Stephen. Her brother, who was the soul of her
cause, being soon after taken prisoner, was exchanged for Stephen,
and he dying soon after, Maud was forced to leave the kingdom to her
competitor. However, Stephen continuing still embroiled with the clergy,
her son Henry, in a few years after, invaded England, and was joined by
multitudes; but some noblemen, who loved their country, mediated a peace,
and at last established it on the following terms; that Stephen should
reign during life; that Henry should succeed him, and receive hostages at
the present for the delivery of the king’s castles to him on Stephen’s
death; and that, in the interim, he should be consulted with on all the
great affairs of the kingdom; and this agreement was ratified by the
oaths of all the nobility of both sides. In this treaty no mention was
made of Maud’s title, though she was living[347].




LECTURE XXXI.

    _Henry II. succeeds to the crown—The reformation
    of abuses—Alterations introduced into the English
    Law—The commutation of services into money—Escuage or
    Scutage—Reliefs—Assizes of novel disseisin, and other assizes._


Upon Stephen’s death, Henry the Second succeeded, according to the
settlement of the crown before made, and came to the possession of the
kingdom with greater advantages than most kings ever did. He was in the
flower of youth, had an agreeable person, and had already given the most
convincing proofs both of wisdom and valour. He was by far the most
powerful prince of his time: For, besides England, which when united
to its king in affection, was, by the greatness of its royal demesnes,
and the number of knights fees, incomparably the mightiest state in
Europe, in proportion to its extent; he had in France, where he was but
a vassal, greater territories than the king of France himself. In him
were united three great fees, to each of which belonged several great
dependancies; Anjou, which came from his father; Normandy from his
mother, and Guienne by his wife. And, from the very first steps he took
on coming to the throne, his subjects had good foundation to hope that
this great power would be principally exerted to make them happy. The
whole reign of Stephen, until the last pacification, had been a scene of
dismal confusion, in which every lord of a castle tyrannized at pleasure,
during the competition for the crown; and though, from the time of the
settlement of peace, Stephen published edicts to restrain violence and
rapine, and made a progress through the kingdom, in order to re-establish
justice and order, he lived not long enough to see his good intentions
answered, but left the work to be accomplished by his successor.

The first thing Henry did was to discharge a multitude of foreigners,
whom Stephen kept in arms during his whole reign. His next care was the
reformation of the coin, which had been greatly debased. He coined money
of the due weight and fineness, and then cried down the adulterated
which had, in the late reign, been counterfeited by the Jews, and the
many petty tyrants in their castles. These to humble, and make amesnable
to law, was his next concern. As to the castles in private hands, that
had been erected in his grandfather’s time, or before, he meddled not
with them; but all that had been built during Stephen’s reign, either by
permission or connivance, through the weakness of that prince, which were
the great nuisances, he issued a proclamation for demolishing, except
some few, which, from their convenient situation, he chose to keep in
his own hands, for the defence of the realm. And, lastly, as the crown
had been greatly impoverished by the alienations Stephen had, through
necessity, been forced to make, he issued another, to renounce all the
antient demesnes that had been so alienated, that he might be enabled to
support his dignity without loading his people, except on extraordinary
occasions[348].

These reformations, however just in themselves, or agreeable to the
subject, he did not proceed on merely by his own authority. He had
deliberated with the nobles, who attended at his coronation, concerning
them, and had their approbation; and though there were no acts of
parliament made at that time, yet, as form in those days was less minded
than substance, these edicts had the obedience of laws immediately paid
them by all, except some mutinous noblemen, who still held their castles
in a state of defence. Having taken these prudent steps, he formed his
privy council of the best and wisest men of the nation, and by their
advice summoned a regular parliament, wherein many good regulations were
made. The laws of the Confessor, as amended by Henry the First, were
re-established, and every thing, both in church and state, settled on the
footing they were in the time of that king. Being thus armed with a full
parliamentary authority, he marched against his mutinous nobles, whom he
soon brought to submit; and demolished their castles.

In another parliament, in order to settle the succession, contests about
which had had fatal effects ever since the death of the Conqueror, he
prevailed on his subjects to take the oath of allegiance, to his two
sons, though both in their infancy, first to William, then, to Henry,
as his successors. And having taken all these wise and just measures,
for the peace and security of his kingdom, he repaired to his foreign
dominions; but his transactions there, or even at home, that do not
relate to the laws or constitution, are not within the compass of the
design of these lectures. Let it suffice to say, that he made as good
laws for, and was as good a sovereign to, his French as his English
subjects.

In his reign many were the alterations introduced into the English law,
most of them, no doubt, by act of parliament, though the records of them
are lost. For, in the beginning of his reign, as I observed, he enacted
in parliament the laws of Henry the First; and yet from the book of
Glanville, written in the latter end of his reign, it is plain there were
great changes, and the law was very much brought back to what it was in
the Conqueror’s reign; nay, in one respect, to what it was in Rufus’s, I
mean reliefs, the law of which I shall mention hereafter. Many likewise
were the regulations he introduced of his own authority, which in the
event proved very beneficial to his subjects.

The first I shall take notice of was his commutation of the services due
of his tenants in demesne, which formerly were paid in provisions and
other necessaries, into a certain sum of money, adequate to the then
usual price. His grandfather Henry did somewhat of this kind, but he it
was that established and fixed it; and his example was followed by his
lords, so that, from this time, rents became generally paid in certain
yearly sums of money, instead of corn and provisions. What advantage the
successors of these socage tenants gained thereby will be evident, if we
consider the price of things at or about that time. In the reign of Henry
the First, we are told, the current price of several commodities, which,
however, must be trebled when reduced to the money of our standard, were
as follows: That of a fat ox five shillings, of our money fifteen; a
wether four-pence, of ours, a shilling; wheat to serve an hundred men
with bread for one meal, a shilling, of ours, three shillings; a ration
for twenty horses for a day, four-pence, of our money a shilling. And
although we should allow that, in Henry the Second’s time, the prices
of things were even doubled, which is impossible to be admitted, it
is easy to see how greatly the future socage tenants paying the same
nominal rent, the value of which was daily decreasing, rose in wealth and
importance. Besides, they were greatly eased in point of the expence and
trouble of carrying the provisions to the king’s court, to which before
they were obliged, wherever he resided in England; whereas, now, they had
only to carry, or send by a proper messenger, the money to be accepted as
an equivalent[349].

His military tenants he eased in a much more considerable manner. By the
law of the Conqueror, every military man was obliged to serve at his own
expence forty days as well abroad, where the king’s occasions required,
as in England, and in person too, unless notoriously incapable; in
which case they were obliged to find each a deputy, and if they failed
herein, by the strictness of the feudal law, they forfeited their lands,
or rather, as the law was used in England, compounded at the king’s
pleasure; which, if he was very avaricious, came pretty near the same
thing. This was a miserable heavy grievance. For what oppression must it
be for a knight of Northumberland, who had, perhaps, but a single fee,
to transport himself, it may be, to Guienne, to serve forty days, and
then return? Nay, it was inconvenient to the king himself; for as France,
where the scene of the king of England’s wars generally lay, was every
where full of fortifications, it was scarce possible to finish a war in
forty days, however great the humour of that age was for pitched battles;
the consequence of which was, that, after that time, the king was ever in
danger of being left in the midst of a campaign, with an inferior army.

Henry then, sensible of these inconveniencies, both to himself and his
subjects, devised _escuage_, or _scutage_, in the fourth year of his
reign, upon account of his war with Toulouse upon which his wife had
some pretensions. He, knowing that this war required but a small part
of his force, did, both in Normandy and England, publish, that such of
his military tenants as would before-hand pay a certain sum of money,
should be excused from serving, either in person or by deputy; and this
sum, which was rated by him extremely moderately, and was, therefore,
generally paid by his vassals, rather than serve in so remote a place,
he employed in hiring mercenary soldiers of fortune, of whom there was
plenty on the continent; and those, by their engagement, were obliged to
serve during the continuance of the war[350].

That his sole view, in this new project, was the ease of his people,
and the better prosecution of his wars, and not the depressing the
military spirit of his subjects, appears from hence; that those who were
qualified, and chose to serve in person, he caressed, and encouraged
by all means possible; that he never brought a single mercenary into
England, when he had wars with Wales or Scotland, but insisted on his
subjects personal service; nay, that he never kept those mercenaries on
foot in his foreign dominions, but dismissed them as soon as the war was
at an end. And this of _scutage_ was the general method he followed in
his subsequent wars in France and Ireland. What wonder is it then, that
this prince was universally beloved by his people of all ranks? though,
as the best institutions are liable to be corrupted, this very scutage,
that he devised for public ease, was turned into an heavy engine of
oppression by his son John.

Another alteration in the law in the reign of this king, was the point
_of reliefs_, as I mentioned before. The old relief of William the
First, which was restored by Henry the First, was certain, to all lords
and knights, according to their degrees, and was paid in horses and
arms; but now the humour of the times being that every thing should be
paid in money, the relief of a knight’s fee was settled at one hundred
shillings, the fourth part of its then computed yearly value, and which
I suppose was about the price of the armour, a knight was before to
pay; and henceforward the arms of the deceased descended to the heir,
and consequently the coats of arms blazoned thereon became hereditary.
But the reliefs of barons, or earls, were not settled at this time, but
remained arbitrary, as Glanville informs us. _De baroniis & comitatibus
nihil certum est statutum, quia juxta voluntatem et misericordiam
domini regis solent baroniæ capitales de releviis suis domino regi
satisfacere[351]._

From the word _statutum_ I take it for granted this change of reliefs
into money was by act of parliament. Indeed, how could it be otherwise;
but, then, the most surprising circumstance is, that the great lords,
who, in that age principally composed the parliament, should take care
in this material point, of the knights, the lower military tenants, and
leave themselves at the mercy of the crown. I shall venture on conjecture
to assign the reason. The Conqueror settled the reliefs of earls and
barons at a certainty, because he had fixed the number of knights fees
they should contain; twenty to an earldom, and thirteen and two-thirds
to a barony; but by the time of Henry the Second, the number of knights
fees contained in them might be greater or less. For instance, if an earl
died, and left two daughters, his twenty fees would be divided equally
between them; but the dignity was to go to the husband of that daughter
the king chose. Now it would be hard that he should pay for ten knights
fees, merely because he had the same title, as much as the predecessor
paid for twenty. Again, in the new created honours, it seems very
probable, from many circumstances, that an earldom might be erected but
with fifteen knights fees, or, perhaps, with twenty-five. The certainty
of the _quantum_ of land an earldom or barony should consist of not
being settled, I imagine, was the reason that the _quantum_ of relief
was not expressly determined, though, by fixing that of a knight’s fee,
the reasonable relief might, in any case be easily determined. And that
Henry, and his son Richard exercised that discretion the law left in them
in this equitable manner, we may infer from there being no complaints,
as to reliefs, from the earls or barons, during their reigns; but John
revived the arbitrary relief of William Rufus, to the great oppression of
his nobles, until he was restrained by _Magna Charta_.

To no other reign than this, I think, can be ascribed, so properly, the
invention of _assizes of novel disseisin_, and the other _assizes_,
for obtaining possession of lands. By the strictness of the very
antient feudal law, if a man had been disseized, that is, turned out
of possession, if he did not enter, and regain his possession, or, at
least, claim it within a year and a day, he lost all right; for, if he
was a socage tenant, the possessor had, within that time, paid a rent to
his lord, and been by him, who was supposed the best judge, allowed to
be the rightful tenant; and, if he was a military one, it was probable,
in those ages of perpetual war, he had actually served, at least he had
kept himself in constant readiness if called upon. But the limitation of
a year and day being soon found too short, it was after extended to five
years; then, to the time of the possession of the disseizor himself,
namely till he had either died or aliened it. But upon the alienée, or
heir of the disseizor, he could not enter, because they came in honestly,
by a fair title, and were guilty of no wrong. However, this antient
law, that gave no remedy but by entry, during the seizor’s possession,
was still too severe; for the _disseizor_ might alien, or die suddenly,
before the _disseizee_ could enter, or he might hold the possession _manu
forti_, so that the disseizee might not be strong enough to enter and
recover his possession[352].

To remedy these evils, and to prevent bloodshed, the law provided for
the disseizee his right of action, either against the disseizor himself,
or his heir or assigns, and, in which, upon shewing his right to the
land, he should be restored to his possession by the king’s officer,
the sheriff, with the _posse_ of the county. But still this action was
hitherto but the _writ of right_, which meddled not with the unlawful
possession, only with the absolute right to the land, and this action,
if brought in the _curia regis_, where only impartial justice could
be expected; was very dilatory. It was dangerous also, as the tenant
in possession might offer battle. In this reign, then, were these
_possessory actions_ introduced, for the determining the point of
possession, leaving the right of propriety as it was. It was advantageous
likewise to the subject, both disseizor and disseizee, as it gave him
two trials for his lands; for the writ of right when once determined was
final and conclusive[353].

This distinction between the _right of possession_, and the _right of
propriety_ was borrowed from the civil law, which was first introduced
in the late reign, and was now, and for some time forward, studied with
great assiduity by the English, as appears from the many long transcripts
from it to be found in the books of our antient lawyers. There they found
the distinction of _actions possessory_ and _petitory_; _possessory_
when a man had been notoriously in possession, and reputed the owner,
and was put out by another of his own authority. The public peace was
concerned to protect the possession of the reputed owner, and not to
let him suffer the loss thereof while he was suing his petitory action,
that is on the mere right, which the other undoubtedly would delay, by
all the arts and shifts he could invent. The proceedings, therefore, in
possessory actions were summary and expeditious; for they only regarded
the possession, and did not determine the absolute right: so there was no
conclusive wrong done to either party, let the matter of possession be
decided how it would; for he that failed might bring his petitory action
for the right.

An _assize_ in our law was a very summary action. Bracton, who lived an
hundred years after, calls it _novum & festinum remedium_, and indeed
so _festinum_ was it, that, in its proceedings, it seems to depart from
the general rules of reason and all laws. For it is a maxim of all laws,
except in some few very extraordinary cases, that no proofs are to be
taken till an _issue_ is _joined_, as our law calls it, or till there is
a _contest_, as the civil law expresseth it; that is, till it is settled
what is the matter to be proved, or till there is something affirmed on
one side, and denied on the other, upon which the merits of the cause
turn. If there be no disagreement about _facts_, but the question is mere
_matter of law_, the judges, who are best acquainted therewith, are, by
our law to determine. If the question be matters of fact, or facts mixed
with law, the jury, assisted with the judges, are to determine; though
if they doubt about the point of law, they may find the facts specially,
and leave the law arising thereon to the judges, which is what we call a
_special verdict_. No jury, therefore, ought to have been summoned till
the defendant appeared, and issue was joined, so that it was known what
was the matter to be tried; and this is the general rule. But, for the
speedy settling and quitting possessions, the assize is an exception
thereto, as appears from the _writ of assize_ directed to the sheriff.
For, besides giving notice to the defendant, or _tenant_, as he is called
in this action (because he is in possession) the sheriff is immediately
to summon a jury or assize, as it is called upon this occasion, who shall
directly go to the place, and make themselves judges, by their view,
of the nature, quality, and quantity of the land, or thing demanded,
and inform themselves, by all the ways they best may, of the former
possession of the demandant, and how he came to lose it. They are then
to appear the same day with the demandant and tenant, and, when issue
is joined between them, are to determine the matter according to their
own prior knowledge, and the evidence then given before them. I observed
that this action is not final. A brings an assize against B. If judgment
be given for A, B may bring his _writ of right_, if he has the right of
propriety, and recover, and so _e contra_. But though B cannot deny his
disseizing A, he may still defend himself. The words of the writ are
_injuste, & sine judicio, disseizivit_. He may therefore shew that he
disseized A, justly, that is, that he had a right of entry. As, suppose
B was first in possession, A disseizes him; then B, as he lawfully may,
disseizes A, A shall not recover. But if B had been in possession, and
A’s father had disseized him, and died, so that the land has come to A,
who is innocent, B, not entering in the father’s life-time, has lost
his right of possession. It is so in A. Now if B disseizes A, the son,
though he had ever so good a right to the land, A shall recover the
possession; for B had no right to enter, though he had a right to recover
the possession he was deprived of by A’s father, by bringing an action.
Wherever a man comes innocently to a possession, the law will defend that
possession, until it is proved that he hath no good right to it[354].




LECTURE XXXII.

    _The institution of Judges itinerant, or Justices in Eyre—The
    advantages attending it—The jurisdiction of these Judges—Their
    circuits—The present form of transacting the county
    business—The division of the Curia Regis into four courts—The
    jurisdiction of the court of King’s Bench._


The greatest and most beneficial step taken by Henry the Second, was the
institution of _judges itinerant_, or _justices in eyre_, as they were
called, from the Norman word _eyre_, equivalent to, and derived from the
Latin _iter_. I observed before, that almost all businesses relative to
the administration of justice were, in the Saxon times, transacted in
the county, and hundred, that the leet and manor courts were held in the
county, near the suitors doors, and that none but the causes of the great
lords, or such as were of difficulty, were handled in the _curia regis_.
Under the reign of the Conqueror, I took notice, that the administration
of other causes was facilitated in the king’s great court, and that,
consequently, the business of the inferior courts began to decay; and I
laid open the motives William had for that conduct, the introduction of
the Norman, and suppression of the Saxon law. But the scheme succeeded
in the same manner as his other one did, of rooting out the English
language, and introducing his own in lieu thereof. As _this_ produced a
new language, from the mixture of both, so _that_ caused the English law
to consist henceforward partly of feudal, partly of old Saxon customs.
However, the causes of most persons were still determined in the inferior
courts; for they were but few who were able to undergo the trouble and
expence of suing in the _curia regis_, especially, as all persons, whose
causes did not properly belong to the cognizance of that court, were
obliged to pay a fine for declining the proper jurisdiction, and for
having licence to plead in the superior[355].

But by this time the decisions of those courts, where the freeholders
were judges both of law and fact, had fallen into great and just
disrepute, had occasioned many mischiefs, and were likely to produce
many more. The reasons, as they are delivered by lord Hale, were
principally three: First, the ignorance of the judges in the law: for
as the freeholders in general were Saxons, they must be supposed to
be entirely ignorant of the feudal law, which was now introduced with
respect to titles in lands; or, if they did know any thing of it, it is
not probable that they would prefer that to their own customs. Nay, the
Norman freeholders could be of little service in this point, considering
their illiteracy, their education being confined solely to arms, as also
their frequent absence almost every year to attend their lords in war.
With respect to the Saxon law also, it could be little expected that
it should be regularly observed, now that the clergy, who only were
acquainted with it, were removed, and none of the judges could possibly
know more than an illiterate juryman at this day, who could neither read
nor write, might be able to pick up by attending a court held once a
month. How inadequate such a knowledge would be, even in those times,
when the laws were comparatively few, need not be enlarged on[356].

It is true, some remedies were applied to obviate the bad consequences
of this ignorance; but they were very ineffectual. It was required that
the sheriff, who presided, should have some skill in the laws, but
notwithstanding, he was seldom found to have any; and if he had, it was
not very probable, as he was a Norman, that the jury would pay much
regard to his direction in giving their verdicts. As a further remedy to
this ignorance, by the laws of Henry the First, the bishop, the barons,
and the great men of the court, that is, the king’s immediate tenants,
were ordered to attend. But the bishop, in obedience to the canons,
applied himself solely to his ecclesiastical jurisdiction; and the others
were generally in the king’s service; so that they could but seldom
attend, and if they did, they could do but little service, being almost
all bred to nothing but the sword, and as illiterate as any other set of
men.

The next mischief, and which flowed from the former, was, that this bred
great variety of laws in the several counties, whereas the intention of
the Confessor in his compilation, and of his successors afterwards in
theirs, was to have one uniform certain law, common to the whole kingdom.
But the decisions, or judgments, being made by divers courts, and by
several independent judges, who had no common interest, or communication
together touching the laws, in process of time, every several county was
found to have several laws, customs, rules, and forms of proceeding;
which is always the effect of several independent judicatories,
administered by several judges. And, indeed, this I look upon to be one
of the great causes of very many local customs in many parts of England,
different from, and derogatory to, the general common law.

But the third and greatest evil, was the frequent injustice of the
judgments given in those petty courts, and every business of any moment
being carried by parties and factions. The contest about the crown had
been carried on with such violence, that one half of the people, all
over the kingdom, were professed enemies to the other; and though both
sides, wearied with war, came into the expedient of Henry’s succession,
and he behaved so that there were no factions against him, yet as to
individuals, the sense of past injuries, and the rancour arising from
thence, still remained. For the freeholders being the judges, and these
conversing with one another, and those almost entirely of their own
party; and being likewise much under the influence of the lords, every
one that had a suit there sped according as he could make parties; and
the men of great power and interest in the county did easily overthrow
others in their own causes, or in such wherein they were interested,
either by relation, tenure, service, dependance, or application. True it
is, the law provided a remedy for false judgments given in these courts,
by _a writ of false judgment_ before the king, or his chief justice; and
in case the judgment, given in the county court was found to be such, all
the suitors were considerably amerced. Yet this was insufficient for the
purpose: For, first, it was too heavy and expensive for many that were
aggrieved; next, it was hard to amerce all for the fault of a few, _viz._
the jury, who gave the verdict; and the amercement, though sometimes
very severe, being equally assessed, on all the freeholders, was not a
sufficient check upon the injustice of some juries[357].

The king therefore took a more effectual course; and, in his
twenty-second year, by advice of his parliament, held at Northampton,
instituted _justices itinerant_. He divided the kingdom into six
circuits, and to every circuit allotted three judges, men knowing and
experienced in the laws of the realm, to preside in such cases as were
of consequence, and to direct the juries in all matters of law. They
were principally empowered to try _assizes_, that is, as I explained in
my last lecture, the rights of possession, which had been notoriously
invaded in the last reign; and which, from the continuance of the old
parties, could not even, in this reign, be fairly determined in the
inferior courts[358].

Not that this was their sole business; for they had in their commissions
power to enquire into several other matters, such, particularly, as the
king found, by the advice he had received from the several counties, to
be evils not likely to be remedied in the county courts. These were,
before every commission for justices itinerant in eyre went out, digested
under certain articles, called _Capitula Itineris_, or _The chief heads
of the eyre_ or _circuit_, which specified what actions they were to deal
with. These were, in general (for the commissions varied at different
times, being sometimes more, sometimes less extensive) _civil_ and
_criminal_ actions, happening between party and party; actions brought
at the suit of the crown, either for public crimes, or the usurpation of
liberties, franchises, or jurisdiction from the crown, which had been
very frequent in the former times of confusion; and also the escheats of
the king.

The thing I find most remarkable is, that, in these distributions
of England into circuits, are omitted some counties, (I do not mean
Middlesex, where the _curia regis_ sat, or Chester, which was a county
palatine, for they of course were not to be included) as particularly
Lincoln, in the second eyre; also York, in the second eyre, is but one
county, whereas, in the first, it is two, York and Richmond; as in
Lancashire also, Lancaster, and Copeland; and Rutland is omitted in
both. All which shews, that the limits and divisions of all the counties
were not ascertained with precision at that time. The second eyre was
instituted three years after the first, by parliament also held at
Windsor, and in this there were but four circuits. After these two
first, the king appointed the circuits, and distributed the counties at
his pleasure.

The usual times of their going was once in seven years. However, they
were not stated certainly; for sometimes, if there was a more than
ordinary complaint of want of justice, they went every three or four
years, and sometimes, if there was no complaint, they were intermitted
beyond seven. Neither was the number of judges sent on the circuits
fixed, but alterable at the king’s pleasure.

The determinations in these circuits, being under the inspection of
men of integrity and skill, were in high estimation, and accordingly
are several times quoted by Bracton, as being of as great authority as
the decisions in the _curia regis_; and in consequence thereof, the
business in the county courts continually declined; justice was every
day administered worse in them, and at length they were confined, except
in some cases, to pleas under forty shillings. Nay even these were, upon
application, easily removeable by a writ called a _pone_, into the king’s
courts[359].

But as the hopes of obtaining justice in the inferior courts waxed every
day more faint, it was found necessary, during the intervals of the
eyres, to substitute other courts in their place. Hence the invention
of _justices of assizes_, of _oyer and terminer_, of _goal delivery_;
and the necessity of affairs afterwards obliging these to be sent very
frequently, it was thought fit, about the end of Edward the Third’s
reign, to lay aside the justices in eyre, as superfluous, since these
other did their business, except as to pleas of the king’s forests, where
the _eyres_ were continued. And, in process of time, to prevent the
enormous expence of bringing juries up to the king’s courts, the justices
of the _nisi prius_ were instituted, to try issues joined in the king’s
courts, and, the verdicts so found to return to the court from whence
the record was brought; which court, on the record so found, proceeds
to judgment. These are the judges who now transact the county business
in their circuits, under the several commissions before-mentioned; and
going regularly twice every year for that purpose, the whole business
they transact is, in common speech, called _Assizes_; that being, in
the antient times of their institution, the principal part of their
employment, though now such actions are scarce ever brought; personal
actions, which may repeatedly be tried, having superseded them[360].

About this time, also, it seems that the _curia regis_, the business
there increasing, was divided, for the more convenient dispatch thereof,
into four courts; and to each its separate jurisdiction allotted. The
exchequer, indeed, was in some sort a separate court before, and had
its distinct business of the province; and in it the treasurer, not the
_Justiciarius Angliæ_, presided, as he did in the other courts. It is not
impossible that, before this time, they had, in the _curia regis_, set
apart different days for different kinds of causes. But they were all, in
one respect, the same court; because they had the same judges, namely,
all such nobles as attended the court. But this being found inconvenient,
as these great men were generally ignorant in law, and business began
to encrease, it was found proper to appoint settled skilful judges, and
to divide the court, and appoint each part its separate jurisdiction.
However, those limits were not exactly settled, or, at least, not exactly
observed, for some time after: For we find in John’s reign, that _common
pleas_, that is, civil suits between party and party, and particularly
fines of lands, which are of the same nature, were held in the King’s
Bench; though, on the contrary, we find no pleas of the crown tried in
the court of Common Pleas. I suppose the reason was, that the latter
being derived out of the former, the king’s bench had a concurrent
jurisdiction with it, until restrained by that branch of Magna Charta,
_Communia placita non sequantur curiam nostram_. The first of those
courts in dignity and power, especially while the _Justiciarius Angliæ_
remained, was the _King’s Bench_, though of late days the Chancery hath
over-topped it. Here, as the king used frequently, in the antient times,
to sit in person, the king is supposed always present; which is the
reason why a blow given in this court, upon any provocation whatsoever,
is punished with the loss of the hand, as it is done in the presence
of the king. The proper jurisdiction of this court is causes where
the king is either directly or indirectly concerned, except as to his
revenue[361].

In all _pleas of the crown_ therefore, that is, suits of the king to
punish offences, as indictment of treason, felony, breach of the peace,
are proper subjects for this court. He is indirectly concerned in this,
that all erroneous judgments, given in the Common Pleas, or other
inferior courts, are here reformed; for the king is concerned to see
justice done to his subjects.

Secondly, for the same reason, this is a proper court to grant
prohibitions to courts that exceed their jurisdiction, though this is not
particular to the King’s Bench, but common to all the four courts.

Thirdly, it hath cognizance of all privileges and franchises, claimed
by any private persons or corporations; and if any usurped upon the
king in this respect, they are called in, by a _quo warranto_, to shew
by what title they claim such privileges. Likewise where any member of
a corporation is disfranchised, or removed from, or disturbed in his
office, here shall he be remedied. For when a king has given a franchise,
he is concerned, in honour and interest, to see that every man entitled,
shall enjoy the benefit of it.

Fourthly, the king is interested in the life, limbs, and liberty of every
subject. Therefore this is the court wherein appeals, brought by private
persons, of murder, felony, and maim, should be tried; and if any man
complains of wrongful imprisonment, this court shall, by writ of _habeas
corpus_, have him brought into court, with the cause of his imprisonment
returned; and if the cause is insufficient to discharge him, or if the
offence he is charged with be bailable, to bail him. Nay, this court,
in favour of liberty, hath a power, in all cases; they may, if they see
proper, bail a man for crimes that are not ordinarily bailable by common
law.

Fifthly, they have a right to hold plea of all the trespasses done _vi &
armis_, though brought principally for a private reparation to the party;
for this action favours of a criminal nature, and the king is entitled to
a fine for the breach of the peace.

Lastly, it has cognizance of all personal actions brought against persons
that have the privilege of this court. The persons privileged are two,
first the officers of the court, who are supposed to be constantly
attendant thereon, and to whom it would be inconvenient, as well as to
the court, to sue or be sued elsewhere; and therefore the privilege
extends to suits brought as well by, as against such officers; secondly,
the prisoners who are in the custody of the marshal of the court, and
who are consequently not at liberty to appear in any other. These
therefore can only be sued here; for the court will, in such case, order
the prisoner up from their own prison to make his defence; and, under
the colour of this rule, they now, by a fiction, make all sorts of a
actions suable in this court; for it is only alledging the defendant is
in the custody of the marshal, though in fact he is not, and that is held
sufficient to found the jurisdiction[362].

I shall next proceed to the jurisdiction of the high court of Chancery,
the second in antient times, but for some ages past the first court of
the realm.




LECTURE XXXIII.

    _The jurisdiction of the high court of chancery—The Chancellor,
    a very considerable officer in the Curia Regis—The repeal of
    letters patent, improvidently issued to the detriment of the
    King or the subject, a branch of the jurisdiction of the court
    of chancery—The chancery, assistant to the exchequer in matters
    of the King’s revenue—Other branches of the business of this
    court._


In my last lecture, having taken notice, that, in the reign of Henry
the Second, the _curia regis_ and the _Exchequer_, which dealt with the
king’s revenue, were distinct courts, and that there were even traces of
the _Common Pleas_, as another court, different from the higher court,
the _curia regis_; I took occasion to treat of these several courts,
and the several limits of their jurisdictions; although the now general
opinion be, that these courts were not separated till after the barons
wars, that is, not until an hundred years later; which opinion, as I
conceive, hath, thus far, its foundation in truth, that the precise
limits of their several jurisdictions were not perfectly ascertained, and
kept distinct till then, though the division had been made before, that
is, about the time I am now treating of. For, if it be a good maxim, as
my Lord Coke says, _boni judicis est officium ampliare jurisdictionem_,
it is not to be wondered at, that, for some time after the separation,
the _Justiciarius Angliæ_, who had the sole jurisdiction in him before,
should retain, in many instances, the exertion of it, where, after the
separation, the matter properly belonged to another court.

The maxim, indeed, is, in my opinion, utterly false. For where there
are separate courts with distinct powers, surely it is the duty of
each court, were it only to prevent confusion, to keep within their
proper limits. However thus much must be allowed in justification of
Lord Coke’s maxim, that, as it is too much the inclination of human
nature, when in power, to grasp at more than is properly our due, so the
judges of all courts, and of all nations, have been as little exempt
from this infirmity as any other set of men. Witness the outrageous
usurpation upon the temporal jurisdiction in antient days, both by the
ecclesiastical judges in the times of the Pope’s grandeur, and by the
judges of the constables and admirals courts, when supported by arbitrary
kings[363].

The temporal judges, on the other hand, with a firmness highly to be
commended, have successfully not only resisted these encroachments,
but, by way of reprizals, have, in these latter days, made considerable
inroads into the antiently allowed territories of those courts; not to
the detriment of the subject, I must confess; for the method of trial by
the common law, is certainly preferable to theirs. But the common law
courts have not satisfied themselves with extending their jurisdiction,
in derogation of those courts, which they justly looked on, in those
days, as enemies to them, and to the laws and constitution of the
kingdom, but they have made invasions into each others territories, and,
by what they call _fictions of law_, have made almost all causes, except
criminal ones, cognizable in any court; contrary to the very intention
of dividing the courts; which was, that each should have their separate
business, and that the judges and practitioners, by being confined in a
narrower track, should be more expert in their different provinces[364].

In treating of these courts, I began with the _King’s Bench_, which, as
long as the office of _Justiciarius Angliæ_ subsisted, was the superior;
but since Edward the First discontinued that office, on account of its
too great power, and the business of that officer hath been shared
between several judges, the rank of this court hath declined, and the
_Chancery_ hath obtained the first place. To this court, then, I shall
now proceed. And as in it there are, at present, and have been for some
ages, two distinct courts, one _ordinary_, proceeding by common law,
and the other _extraordinary_, according to the maxims of equity, where
common law could give no relief; I shall, for the present, confine myself
to the former, and defer treating of the latter, until I come to that
period when the _Equity jurisdiction_ arose.

In the antient times, before the division of the courts, the chancellor
was a very considerable officer of the _curia regis_. It was his business
to write and seal with the great _seal_ the _diplomata_, or _chartæ
regis_, what we now call _letters patents_; to issue all writs, either
for founding the jurisdiction of the _curia regis_, and the bringing
causes into that court, that by the antient law belonged to the courts
in the country; or those to the nobles, to summon them to attend the
_commune concilium_, or parliament. Afterwards, when the House of Commons
was formed, he issued writs to the proper places, for the election of
the members thereof. Hence, when the courts were divided, the making
out letters patents, the keeping the inrolments thereof, and issuing
of _original writs_, as they are called, that is, those that found the
jurisdiction of courts, and other writs of like nature, continued to
belong to him; and, as these records remained with him, there arose to
him a jurisdiction concerning them; except as to such writs as were
intended to found the jurisdiction of another court, which, though issued
from Chancery, were returnable into the proper court, and the cause
determined there[365].

The first branch of the jurisdiction of this court, then, was the repeal
of letters patents, that had issued improvidently, to the detriment of
either of the king or the subject; and this properly fell to the lot of
the chancellor, as he made out the patents, and kept the enrolments of
them. The method of repealing those was by a writ called _scire facias_
notified to the party claiming under the patent, and calling him in to
shew cause why it should not be revoked. This _scire facias_ issued in
three cases: the first, at the suit of a subject; where two patents were
granted to two persons of the same thing, the first patentee brought a
_scire facias_ against the second, to repeal his grant; the other two
were at the suit of the king, where the king was deceived, either by
false suggestions of merit, or as to the value of the thing granted; or,
in the second place, if the king had, by his patent, granted what by law
he could not have granted. Here, if the case was clear in law, and there
was no controverted matter of fact necessary to be settled, to ascertain
the right, the chancellor was judge; and if his judgment was against the
patent, it was his duty to _cancel_ the inrolment thereof; from which
part of his office he had his name. I say if the case was clear in law,
and there was no controverted matter of fact; for, if this latter was
the case, he could not try it, he being antiently but an officer of the
_curia regis_, and not a judge; and therefore unqualified to summon a
jury. The rule continued the same after the separation of the courts, and
his becoming a judge; principally, as I conceive, for the preservation
of the common law, and the birthright of Englishmen, the trial by jury.
For, as the chancellor was almost always, in those days, an ecclesiastic,
and consequently supposed more attached to the _civil_ and _canon law_,
there might be danger, if he was suffered to try matter of fact himself,
he might introduce a new method of trial. When, therefore, the cause was
heard upon a _demurrer_, that is, the facts admitted of both sides, and
only the law in dispute, he gave judgment; but if they came to issue on a
fact, he must carry the record over to the King’s Bench, who summoned the
jury, and gave judgment on the verdict[366].

Another branch of his jurisdiction was with relation to the inquisitions
of office. There are many officers whose duty it is to take care of the
profits and revenues of the king, and to that purpose they are sworn in
the Exchequer; such as _escheators_, _sheriffs_, and others, whose duty
it is to make enquiry what the king is entitled to in their respective
limits, whether lands or chattels, or by what title. For this purpose
they are to summon juries, and to return the verdicts found to the court
of the revenue of the Exchequer, in order that that court may take care
of the king’s rights. These were called _inquisitions_, or _enquiries_,
_of office_, as proceeding from the duty of an officer that made them.
But these officers being negligent in the performance of this their
duty, it became sometimes necessary, and afterwards customary to quicken
them, by issuing writs for this purpose; and these writs issued out of
Chancery, the _Officina Brevium_; and then, that it might be seen they
were properly obeyed, the return of the inquisition was made into the
court that issued the writ, and thus, the Chancery gained a jurisdiction
in this point, and became an assistant to the Exchequer in the matters
of the king’s revenue; not indeed in the administration thereof, but in
bringing it into the king’s possession[367].

It is a maxim in the English law, that nothing can pass from the king
to a subject but by _matter of record_, which maxim was not only
advantageous to the royal estate, as preventive of persons getting
grants by surprise, but also advantageous to the subject in the firmness
of his title, when once he had obtained it. And, on the contrary, the
regular and equal way of restoring possessions to the crown was by record
also, that is, by inquisitions finding the king’s title returned, as I
have mentioned. But as the verdicts taken in these inquisitions may be
erroneous, and detrimental to another person, by finding what was really
his property, to have been the property of another, and to have accrued
to the king by forfeiture or escheat; and as, regularly, by another maxim
of law, there is no averring against or contesting a record, it was
necessary that the bare return of inquisition into Chancery should not be
final and conclusive, but that time should be given to any that thought
himself affected to claim his right. Hence a month’s time is given by
statute, after the return of the inquisition, in which any person may
come in and _traverse the office_, that is, contest the validity of it.
And here the chancellor is judge, in the same manner as in the repeal
of letters patents, that is, if the subject of the controversy depends
merely upon matter of law; but if the parties come to an issue on matter
of fact, he cannot try it, for the reason above given, but it must go to
the King’s Bench[368].

Another branch of the judicial business is the hearing of petitions to
the king for justice in his own causes. No man, by the feudal principles
of our law, can bring an action against the king. For the charging him
with wrong doing would be a breach of fealty. The king cannot, by our
law, do wrong; but yet, from the multiplicity of his occupations, or from
his being misinformed, the subject may sometimes suffer wrong from him.
The remedy thereof, in this case, is by humble petition to the king, that
he would enquire into the cause, and do justice to the party, which,
though conceived in an humbler strain, is as effectual as an action, and
must be tried in this court, the proper channel to convey his majesty’s
graces, and the king, by his chancellor, dispenses justice to the party.

Another branch of the judicial business of this court was the proceeding
in certain cases against persons privileged, that is, the officers of
the court, who being supposed to be constantly attendant, were to be
sued here, as the officers of other courts, were in their respective
courts.

Lastly, this court had jurisdiction with respect to proceeding upon
_recognizances_, or acknowledgments of obligations taken in this court,
which being here recorded, and not to be removed, were properly here
triable[369].

There are some other causes, proper for the jurisdiction of Chancery,
which would carry me too far at present. I shall, therefore, conclude
here with mentioning one striking difference between this and the other
courts, that they sit only in the times of the four terms, whereas it is
open all the year. The confining the others to the terms arose from the
religion of the times, and the inquisitions of canon law, which forbad
courts to be held during the seasons of the three great festivals, and
of harvest. In obedience to this law, I may say (for the papal power was
then very high in England) was our Michaelmas vacation set apart for the
solemnization of Christmas, the Hillary vacation for Easter, the Easter
vacation for Whitsuntide, and the Trinity or long vacation, for the uses
of husbandry. But great would be the evils, if that court which is the
_Officina Justiciæ_, the Shop of Justice, were to be ever shut. Writs,
therefore, issued hence at all times, and all such causes as, for the
public good, cannot brook delay till the ordinary times of sitting of
other courts, are here handled in the vacations, such as to mention a
few, _habeas corpus’s_ and _homine replegiando’s_, to restore persons
imprisoned to liberty, prohibitions to keep inferior courts within their
proper limits; and _replevins_, to restore the possession of goods
distrained.

But the great business of this court, as a court of common law, was,
that it was the _Officina Brevium_, the shop where original writs were
purchased by suitors, in order to commence their actions. An _original
writ_, in the most common form, is an order to the sheriff to summon
the party complained of to do justice to, or else to answer to the
complainant in the proper court; containing a short description of the
complainant’s title, and the wrong done to him, from whence, in Latin,
it is called _Breve_, and answers to the original citation in the Roman
and ecclesiastical laws. This, and the making out patents, was the
principal business of the chancellor in the _curia regis_, and therefore
naturally continued with him after the division of the courts. The
reasons assigned by Gilbert for having one of these superior courts a
public shop for justice, are three; first, that it might appear that all
power of judicature flowed from the crown; secondly, that the crown might
not be defrauded of the fines due to it for suffering persons to desert
the inferior courts, and to sue for justice immediately from the king;
and lastly, to preserve an uniformity in the law; for these writs being
made out in one constant form contributed greatly thereto, being both a
direction to the judge, and a limitation of his authority.

Originally, the chancellor heard the complaints of the person injured,
and formed a writ according to the nature of the case, but as, among
a rude military people, little versed in commerce, and the variety of
transactions that attend it, the complaints of the people were confined
in a narrow compass, it but seldom happened, after some time, that there
was occasion for making a new writ, in a form different from what had
been used before. These forms, therefore, were collected into a book
of our law, called the _Register_, the antientest book of our law; and
the making them out, being now matter of course, nothing more than
copying out the old terms, inserting the proper names of persons, and
places, and the chancellor’s business encreasing, became devolved upon
the chancellor’s clerks, the _Clerici_, as they were antiently, or the
_Masters_, as they are now called, of Chancery; and they were restrained
from making out any of a different form from those in the Register.
However, as, in process of time, cases would happen which none of the
forms in that book would suit, and it was looked on as the corner-stone
of the law, the chancellor could not of himself venture to make out new
and unusual writs, but referred the complainants, in such cases, to
petition the parliament for remedy[370].

These petitions afterwards growing too frequent, and interrupting the
public business, it was found necessary to enlarge the power of the
Masters of Chancery, and to give them a qualified power of forming new
writs. This was done by the statute of Westminster the second, cap.
24, in Edward the First’s reign; it runs thus: _Quotiescunque de cætero
evenerit me cancellaria, quod in uno casu reperitur breve, & in consimili
casu cadente sub eodem jure, & simili indigente remedio, non reperitur,
concordent clerici de cancellaria in breve faciendo, vel atterminent
querentes in proximum parliamentum, & scribantur casus, in quibus
concordare non possunt, & referant eos ad proximum parliamentum, & de
consensu jurisperitorum fiat breve ne contingat de cætero, quod curia
domini regis deficiat conquerentibus in justitia perquirenda_; which last
words, _ne contingat_, &c. gave a handle, as I shall shew hereafter, to
this court to erect their equitable jurisdiction[371].

We see how this power given to the Masters was limited: it must be
exercised only in cases parallel to such as there was a remedy already
provided for; all the Masters must agree in the form of the new writ; and
the remedy must be the same as was in the similar case in the Register.
To illustrate this by the example of the first writ formed by the Masters
upon this statute, and which therefore, by way of eminence, is called a
_writ, in consimili casu_. The statute of Glocester ordered the Chancery
to form a writ for the relief of the person in reversion, where a tenant
in power had aliened her dower. The writ was accordingly framed, and
inserted in the Register. Now, by virtue of this statute of Westminster,
the Masters framed the writ _in casu consimili_, in favour of the person
in reversion, where a tenant by the courtesy, or tenant for life, had
aliened, he being equally damaged as the former case. But though this was
particularly called _a writ, in casu consimili_, there were many others
formed by virtue of this statute, such as for various kinds of trespasses
unknown in former ages, and actions upon the case, so frequent in these
our days, and so called, because the writ is formed according to the
circumstances of the case, and not upon the old forms continued in the
Register.

This new employment of Masters in Chancery, and the business of the court
encreasing, created a necessity of erecting new officers, to make out the
_brevia de cursu_, namely, those in the Register, who were therefore
called _Curritors_. The chief of the Masters is _Keeper of the Rolls_ of
this court, which was formerly a part of the chancellor’s business; and
he is therefore called _Master of the Rolls_. For ages past, since the
Equity business multiplied in England, this officer has been there, in
matters of equity, an assistant judge to the chancellor, but his decrees
are liable to a rehearing, and to be reversed by the chancellor. But in
this kingdom, the office hath not had any judicial authority annexed to
it.




LECTURE XXXIV.

    _The court of Common Bench or Common Pleas—The jurisdiction
    of this court—Actions real, personal, or mixt—The court of
    Exchequer—The jurisdiction of this court—Exchequer chamber—The
    judicature of Parliament._


The next of the superior courts, is the _Common Bench_, or _Common
Pleas_, as it is more commonly called, being the proper court for the
determining suits between subjects, wherein the king is not concerned;
and upon the multiplication of business in the _curia regis_, it was
separated from it, for the more speedy and easy dispatching the affairs
of the people. As in the very old times the king often sat in person in
the _curia regis_, and that he might have an opportunity of so doing when
he pleased, that court always followed the king wherever he went within
the kingdom of England; and in those days it was customary for the kings
to take progresses; and reside in the different seasons of the year in
different parts of the kingdom, as we see, by the variety of places where
the parliaments were held in old times. The same practice of the courts
and the records following the person of the king continued in France
longer than in England. For when king John was taken by the black prince
at the battle of Poictiers, the antient records of that kingdom were
lost, and there are scarce any now remaining there, of what had passed
previous to that time, except enrolments made since, of the antient
charters that were in the hands of the subjects.

But in England the constant removal of the courts was found very
burdensome to the people, who had suits much earlier. For their ease,
therefore, it was enacted in _Magna Charta_, that _communia placita non
sequantur curiam nostram, sed teneantur in aliquo certo loco_; that the
Court of Common Pleas should no longer be ambulatory, but held in one
certain place. Westminster was the place fixed upon, and there, if we
except some occasional removals, on account of epidemical sicknesses,
hath it been held ever since. And in long space of time after, the other
courts became, though not in pursuance of any positive law, fixed
there also. By their becoming settled in a certain place, one great
inconvenience, besides the hardships on the suitors, was avoided, namely,
the loss and imbezzlement of the records by these frequent removals. For
it is very remarkable, that there is not a record remaining of the times
previous to the fixing of the courts, not even the enrolments of the acts
of parliament themselves, except a few, and a very few, of the courts
of Exchequer, which, concerning the king’s revenue, were more carefully
preserved[372].

But the greatest advantage that attended this change was the improvement
of the law, and, what was a consequence thereof, the preservation of
the liberty of the subject. For now it became much more convenient
for persons to apply to that study, when they were no longer under
a necessity of removing. And we therefore, soon after, find the
practitioners of the law settled together, something in a collegiate
manner; and after the dissolution of the order of Knights Templars, the
habitation of these latter, called the _Temple_, was granted to them
for their residence and improvement. Here, they continued to confer the
degrees of _Apprentices, or Barristers at law_, and _Sergeants at law_,
which they had began before, in imitation of the bachelors and doctors
degrees in universities.

The preservation of the liberty of the subject was, as I said before,
another happy consequence that resulted from the fixing the courts, and
the uniting the professors of the law into one body. For as, about this
time the study of the civil and canon laws was eagerly pursued by the
clergy in the universities, and the English customs as much depreciated
by them as possible, and as those two laws were founded on maxims of
despotism, and, as such, encouraged and supported to the utmost by the
popes, and all kings that aimed at arbitrary power, the common lawyers
were necessitated, for the support of their profession, to take the
popular side of the question, and to stickle for the old Saxon freedom,
and limited form of government.

Hence the steady opposition they made, even in those early times, to
the king’s dispensing. Nay, they carried their zeal for liberty so far,
as (since they could not directly, in those days, oppose the weight
of the civil law) to quote the very passages of it that were in favour
of absolute power, and by their glosses make it speak the language of
liberty. Thus Bracton quotes that text: _Quod principi placet, legis
habet vigorem_; that is, in its true meaning, the monarch is sole
legislator: but Bracton’s comment is, _id est, non quicquid de voluntate
regis temere presumptum fuerit, sed quod concilio magistratuum suorum,
rege auctoritatem præstante, habita super hoc deliberatione & tractatu,
recte fuerit definitum_; that is, the king is not sole legislator;
directly contrary to the sense of the very text he quotes. And it must be
allowed, to the honour of the common lawyers, that, with the exception
of a few venal time-serving individuals, they have, for a succession of
ages, proved themselves true friends to a rational civil liberty in the
subject, and to reasonable power and prerogative in the king[373].

To come to the jurisdiction of this court. Its proper business, as
appears from its name, is to take cognizance of all _common pleas_, that
is, all pleas that are not pleas of the crown, or at the suit of the
king. With these it cannot meddle; for all actions at the suit of the
king for criminal matters, belong to the King’s Bench, as those for his
revenue do properly to the Exchequer. But it hath jurisdiction, and that
universally, throughout England, in all civil causes, whether _real_,
_personal_, or _mixt_; the distinction of which it will not be amiss just
to point out.

Real _actions_ are those that are brought to recover land itself, where
the claimant has a right to an estate in it for life at least; and these,
until within these two hundred and fifty years, were the only ones used
for that purpose; but, since that time, they are gone almost entirely out
of use, on account of their nicety, their delays, their being conclusive;
and their place is supplied by mixed actions, which are easier, shorter,
and may be tried again. However, if any one was inclined, at this day, to
bring such an action, this is the court to bring it in; and therefore all
_common recoveries_, which antiently were, and still carry the form of,
real actions, are suffered in this court.

Personal _actions_ are those that are brought for the recovery either of
some duty, or demand in particular, or of damages for the non-performance
of some promise or contract, entered into, or lastly such as are brought
by a man to recover a compensation in damages for some injury sustained
in his person—or property. To give but one or two instances of these
last: If my ground is trespassed on, if my person is assaulted, my
reputation injured, the remedy is by the personal actions of _trespass_,
_assault & battery_, or _slander_. All actions for breach of covenants
are likewise personal actions; for, by the common law, damages only
are recoverable thereon, and the party is not obliged to perform the
covenant. Wherefore, if a man chuses rather to have his covenant
performed than receive a satisfaction in damages, he must go into a Court
of Equity, which will oblige a man to perform in specie, what he hath
specifically engaged to perform, if the performance is possible. This
court, therefore, being the proper court for personal actions, fines of
lands are levied here; for they are fictitious actions, founded on a
fictitious breach of covenant.

Mixed actions are designed for the recovery of a specific thing, and
also damages, and consequently partake of the nature both of real and
personal actions. For instance: If a tenant for life, or years, or at
will, commits waste, he forfeits to the owner of the inheritance the
place wherein the waste was done, and treble damages. The _action of
waste_, therefore being brought to recover both, is a mixed action.
The action of _ejectment_ also, which was originally proper to recover
damages for being put out of a lease for years, but is now the common
remedy, substituted in the lieu of real actions, is now of the same
nature; because both the land itself, and damages for the wrong are
recovered[374].

These three kinds of actions are properly the business of this court,
though, as to the two last, actions personal and mixed, the courts
of King’s Bench and Exchequer have, by fictions, gained a concurrent
jurisdiction with this court; the King’s Bench, by supposing the
defendant to be in the custody of the marshal thereof; and the Exchequer,
by supposing the plaintiff to be a debtor to the king.

The proper way of founding the jurisdiction of this writ, is by a writ
out of Chancery, returnable hither, either to begin a cause originally
here, or to remove one depending in an inferior court not of record; but,
in some cases, they proceed without any writ from Chancery, as in causes
brought by or against an officer of the court, and likewise, in granting
prohibitions to other courts that attempt to enlarge their jurisdictions.

Before I conclude, I must observe, that this court, though one of the
four high courts derived out of the _curia regis_, is not, however,
supreme, but subordinate to the King’s Bench. For judgments given therein
are reversible in the King’s Bench, by a writ of error issuing from the
Chancery, suggesting the king’s being informed that manifest error has
interveened, and commanding the record to be transmitted into the King’s
Bench; the judges belonging to which, upon the face of it, and nothing
else, are to affirm or reverse the judgment; for the error must be
manifest; and no error in point of fact, but error only in point of law,
can be averred against a record.

The lowest in rank of the four great courts, though from antient times
one of the greatest importance, is the court of _Exchequer_, whose
business was to collect in the several debts, fines, amerciaments,
or other duties or properties belonging or accruing to the king, and
likewise, to issue money by his orders; and this court being originally
solely erected for the king’s profit, is the reason, I presume, why
it is held in rank the lowest; it being more honourable to the crown
to give precedence of rank to those courts that were intended for the
administration of justice to the subject, above that which was intended
merely for the king’s temporal advantage. Besides, this court was, in its
original, distinct from the _curia regis_, the treasurer being the judge
in this, as the _justiciarius Angliæ_ was in the other; and therefore,
it was regular, that the Chancery, and Common Pleas, as having been once
part of the supreme court, should take place before this. Its having
been originally a distinct court, accounts for its independency on the
King’s Bench; for, no writ of error lies from it to the King’s Bench,
as doth from the Common Pleas, but its errors are rectified in another
manner[375].

This court, as well as the Chancery, hath, properly speaking, two courts:
one, ordinary, proceeding according to the strict rules of the common
law; the other, by equity; for, as it is the king’s duty to render
justice with mercy, so, in this court, the rights of the king are not
always exacted with rigour; but, on circumstances of reason and equity,
may be mitigated or discharged. The court of common law in this court
had antiently much more business than of late. Originally, whilst the
royal demesnes were unalienated, they had the setting of them for years;
but, afterwards, people chusing rather the authority of the great seal,
took them in Chancery. That court, as I mentioned when treating of it,
had likewise gained the returns of inquisitions of office, and had
also gained by act of parliament, the composition of forfeitures, for
the king’s tenants _in capite_ aliening their lands without license;
which, otherwise, would have belonged to this court. The erection of the
_Court of Wards_, also, by Henry the Eighth, took off that branch of its
jurisdiction; and the abolishing of the military tenures by Charles the
Second took away the business of calling in their fruits. The erecting
the office of _the Treasury_, as distinct, for the issuing of money, had
the same effect; but, above all, the erecting new jurisdictions, and
appointing new judges to try causes relative to the new taxes, as the
Commissioners of the Customs and Excise, and Commissioners of Appeal,
diminished the peculiar business of the court[376].

It will be now proper to consider the nature and extent of their present
jurisdiction. Here then are sworn the sheriffs, and other officers
concerned in the king’s revenue and duties; and here they are to return,
and make up their accounts. Here, likewise, the king sues his debtors, or
even the debtor of his debtor (for so far his prerogative extends); and
here also, for enabling his debtors to pay him, they are priviledged to
sue their debtors; an allowance that hath grown up by degrees to extend
the jurisdiction of this court, and to make it concurrent with the Common
Pleas. For it is only alledging, (and this they will not allow to be
traversed or denied) that the plaintiff is the king’s debtor, and the
business is done. The court acquires an immediate jurisdiction. The same
allegation is likewise necessary, when a suit of equity is commenced in
this court; for otherwise, the suit would, on the face of it, appear to
belong to Chancery. I need scarce observe, that the officers of this
court are to sue and be sued here; for that is a privilege common to
the officers of all the courts, arising from their personal attendance.
Here, likewise, the king’s attorney-general exhibits informations for
concealment of customs and seizures, informations upon penal statutes,
where there is a fine due to the king, forfeitures and breach of covenant
to the king; likewise all informations for intrusions, wastes, spoils or
encroachments on the king’s lands; in general, where the crown suffers in
its profits.

In this court of common law, the _Barons of Exchequer_ only are judges,
and are called _Barons_, because antiently none were judges there under
that degree. In the Court of Equity, the chancellor of the Exchequer is
joined with them, though it must be owned this officer hath seldom, of
late years, acted either in England or Ireland, in his judicial capacity,
and it hath been considered little more than as a great lucrative place.
Errors in this court are not, as I observed before, redressed in the
King’s Bench, as those of the Common Pleas are, but in another court,
called the Exchequer Chamber, consisting of the lord chancellor, lord
treasurer, and chief judges.

There is another court of _Exchequer Chamber_ in England, tho’ we have
none such in this kingdom, erected 27th Eliz. and composed of the judges
of the Common Pleas and barons of the Exchequer, in which lies a writ
of error from the King’s Bench, to reverse judgments in certain suits
commenced there originally. Into this court are frequently removed,
or adjourned from any of the other courts, causes that are of a new
impression, and attended with difficulty, or even such concerning which
the judges, perhaps, entertain no great doubts, but are new, and attended
with extensive consequences; and this, for the more solemn determination,
that all the judges of all the courts might be consulted about
establishing a new precedent. Antiently such causes were adjourned into
parliament, but the legislative business of that high court increasing,
this court was substituted for the above purpose of consultation[377].

To finish this account concerning the superior courts at once, it will
be proper to say something of the supreme judicature of all, that of
parliament. Antiently, as I have frequently observed, all causes but such
as concerned the king or peers, or those that were of great difficulty,
or such as justice could not be expected in by law, were dispatched in
the county courts, the rest by petition to the king in parliament, or, in
the intervals thereof, in the _curia regis_, which originally was but a
committee thereof, appointed by the king. Hence matters determined there,
were subject to a review in parliament; writs of error from the King’s
Bench returned there; and when the Equity courts grew up, appeals from
the Chancery and Exchequer in matters of equity. This power of judicature
is peculiar to the lords (for the parliament consisted at first only
of them, and when the commons were introduced, they sat in a distinct
house) and the parliament hears at present only matters that come from
other courts by appeal, or by writ of error, which is in the nature of
an appeal, and no causes originally. It is true, that, for a long time
after the division of the courts, many causes by petition were brought
into parliament in the first instance; but these being generally referred
to the courts below, the practice ceased, and would not now be allowed.
For a long time accusations against peers were originally admitted, but
at present, and for this long time, indictments found below are required
before a peer can be tried; nor can the trial of peers by impeachment
in parliament be considered as an original trial, for the commons are
considered as the grand inquest or grand jury of the whole nation, and
therefore an impeachment by them is not only equivalent to, but has and
ought to have greater weight than any indictment by any private grand
jury.

In this judicature of the lords, an impeachment there, is one
singularity, an exception to the grand rule, that every man is to be
tried by his peers, and that is, that a commoner impeached by the commons
shall be tried by the lords. The reason of this procedure seems to be,
that all the commons of England are supposed parties to the accusation,
when their representatives have accused him, and it might be dangerous
to trust his life with a common jury; but the lords are strangers to the
charge, and it is their interest to controul the commons, if they proceed
with too great violence[378].




LECTURE XXXV.

    _Henry II.’s dispute with Becket—The constitutions of
    Clarendon—The murder of Becket._


Having, in a general manner, run through the jurisdictions of the several
great courts of the kingdom, which were divided from each other about
the time I am now treating of, though the division was not compleated,
nor the several limits exactly adjusted till some time after; I shall
proceed, in a summary way, with the few remaining observations I have to
make, with respect to the state of the law during the reign of Henry the
Second. And the greatest and most remarkable of these was his dispute
with Becket, archbishop of Canterbury; a contest attended with the most
fatal effects, and which makes up a considerable part of the civil
history of that reign. The particular circumstances that attended it, and
the many turns it took, I shall not dwell on; but, as it arose from the
clashing of contrary laws, I shall briefly lay open its source, and give
an account of the events.

From the year of Christ one thousand, the popes had every day been
encreasing their power, and extending their pretensions. They set
themselves up, at first, as protectors of the clergy, who really had
been oppressed by the temporal princes, and in order to attach them more
firmly to their interests, they made canons in councils, and published
decretal epistles, by their own sole authority; which, in those days of
superstition, were too readily received as laws; all tending to depress
the civil power, to raise the ecclesiastical on its ruins, and, in short,
to pave the way for making the pope supreme monarch of the world, in
matters temporal as well as spiritual. The emperors, however, stickled
hard, on the other hand, to support their rights, and particularly
to maintain to themselves the nomination of the popes, as well as of
other bishops, which the popes had transferred to the people of Rome
first, and afterwards to the clergy alone; so that, for a good part of
this time, there was a schism in the church, and two popes in being,
the one named by the emperor, and the other elected; and I observed
before, William Rufus kept himself independent by acknowledging neither,
and was absolute master of the church. However, the popes that were
elected, generally gained ground. They had the majority of the clergy
on their side, and indeed most of the sovereign princes of Europe, who
were jealous lest the emperor, under pretence of being successor to the
Romans, might arrogate a superiority over them.

It is surprizing, yet very true, that, in these contested times, the
papal power was pushed very near its greatest height. The materials,
indeed, were formed and collected some time before. A multitude of
fictitious decretal epistles had been forged in the names of the antient
popes, so early as from the year 800, all tending to exalt the bishop
of Rome, as head over the church universal; but these were not as yet
generally known and received as laws, the church being hitherto governed
by collections of canons made by private persons, out of the canons of
the general or provincial councils and sayings of the fathers. But in
the reign of our Stephen, the mighty fabrick began to be reared, and
to take a regular form. Gratian, a Roman courtier, undertook to make
a new compilation of ecclesiastical laws, and published it under the
name of _Decretum_, which is now the first volume of the canon law.
This is a motely composition, digested under distinct heads or titles,
of rules and decisions, collected from the sayings of the fathers,
canons of the councils, and, above all, from the decretal epistles of
the popes, (the modern ones real, the ancient ones forged), and was put
together principally for the two great purposes, of aggrandising the
See of Rome, and exempting the clergy from lay-jurisdiction. And, for
that purpose, not only forged epistles and canons have been inserted
in it, but the real canons and writings of the fathers have been, in
many places, falsified by adding or omitting words as best served the
purpose proposed; and that this is the case of Gratian’s work, the
learned Papists themselves confess, in many instances. However, in that
ignorant age, it passed easily all for genuine. But the popes, wisely
considering, that, if it was canvassed, it would not bear a strict
scrutiny, never chose to give it an authentic testimony of their
authority, but contented themselves with authorising it to be read in
universities. In the interval I have mentioned, the popes began to turn
their spiritual arms of excommunication or interdict, that is, forbidding
the administration of divine offices, except in _articulo mortis_, in
a country or district, to temporal purposes, and the support of their
grandeur[379].

On this state of affairs happened the quarrel between the archbishop and
Henry, which embroiled him with the pope, embittered his life, and was
attended with consequences that brought him to the grave with sorrow. At
this time there were two popes, Victor, confirmed by the emperor, and
Alexander, the most enterprising pope the world had yet seen, supported
by the king of France. Had Henry followed the example of William, and
acknowledged neither, he might have kept both in awe, and vindicated the
rights of his crown with success. But he was prevailed upon by Lewis of
France to recognize Alexander, who was afterwards made an instrument
of humbling Henry, of whose power that monarch was jealous. For his
extreme partiality and severity is, in part, to be ascribed to the
influence of his protector, as well as to his zeal for ecclesiastical
immunities. These immunities had grown to an excessive height, and, under
the pretence that no man should be twice punished for one offence, the
bishops took care to inflict penance on ecclesiastical offenders, and
then refused to suffer them to be tried by the laws of the land; so that
the most profligate ruffians crowded into the lower order, and committed
with impunity (except penance, or rather, a pecuniary commutation for it)
what murders, rapes, and robberies, they thought fit. Henry was sensible
of those enormities, and, in hopes of curing them, by the assistance
of one highly obliged to him, got Becket, who was lord chancellor, his
favourite, and indebted to him for his grandeur, promoted to the See of
Canterbury. But he soon found how much he was mistaken in his man. Becket
had been bred in his youth in the study of the ecclesiastical laws,
and, though he had in all things hitherto complied with the king for
his advancement, was, at the bottom, strictly attached to his order and
its privileges, and resolved, at whatever price, rather to extend than
diminish them.

To dazzle the people, he threw aside the pomp and expensive life of
a courtier, and assumed the character of mortification and sanctity.
He began by reclaiming the estates belonging formerly to his see,
though they had been aliened by his predecessors, with the consent
of their chapters, and upon valuable consideration; and this under
pretence of a canon, made a year or two before by Pope Alexander, in a
packed council at Troyes in France; which was plainly saying, that an
ecclesiastical canon might repeal the laws of any country, and subvert
its constitution. He made an attempt likewise on the patronages of
laymen, and appointed a parson to a church, which belonged to one of
his own tenants, and afterwards excommunicated the tenant for turning
this person out, altho’ he was the king’s tenant _in capite_; and such,
by a law of the conqueror, were forbid to be excommunicated without the
king’s leave, under the penalties of treason. This was a very necessary
law; as otherwise a bishop might, by his sentence, deprive the king
of his service, and that of as many of his military tenants as he
pleased. However, in this point, when he found he was in danger of being
prosecuted on the law, he relented, and absolved the gentleman[380].

His screening of criminals was excercised also in the most shameful
manner. A lewd clerk had debauched a young lady, and afterwards publickly
murdered her father, and this criminal was refused to be given up to be
tried. Another was guilty of sacrilege, in stealing a silver chalice out
of a church, and _Becket_ would not suffer him to be tried by the laws of
the land. However, as the offence concerned the church, and was therefore
of a very heinous nature, he tried him himself; and having found him
guilty, branded him with a hot iron, in defiance both of the English and
canon laws, neither of which allow such punishments to an ecclesiastical
judge. But he knew he was too faithful a servant to the Pope, to be
called to an account even for making free with his own law.

Henry, finding it necessary to stop the prelate’s career, summoned an
assembly of the bishops, and demanded of them that they should degrade
all ecclesiastical murderers, and deliver them over to the secular arm.
At first the majority seemed to think this a reasonable proposal, as they
must, in the first place, find them guilty before they were to be given
up. But _Becket_ brought them over, by representing, that, by the canon
law, they were not to be concerned in matters of blood, and that their
delivering over any criminal to capital punishment would be infringing
thereof. They therefore refused the king. He then demanded whether they
would observe the laws and customs of the kingdom. Their answer was,
in all things that did not interfere with the rights of their order.
The king left the assembly in wrath, and at length, Becket was, by the
intreaties of the other bishops, and even of the Pope’s legate, who knew
his master, being embroiled with the antipope, was not able, at this
time, to support him, prevailed with to wait on the king, and promise to
observe the laws of the land without any reservation[381].

Henry, sensible that such a general promise, when particular facts arose,
might be explained and evaded, was resolved that the limits of the
ecclesiastical jurisdiction should be ascertained in such a manner as
would leave no room for subterfuges; and to that end called a parliament
at Clarendon, wherein Becket and the bishops swore to observe the laws
there made, called _constitutions_, as new laws, but declared to be the
old laws of the realm. These constitutions were in number sixteen. I
shall mention a few of the principal, in order to give a notion of the
points of jurisdiction then contested between the spiritual and lay
courts. First, then, it was declared, that suits about presentations
to livings belong to the king’s courts; that clergymen should be tried
for temporal crimes in the temporal courts; and that, if they pleaded
guilty, or were convicted, they should lose the ecclesiastical privilege;
that no clergyman should quit the realm without the king’s licence, nor
attain it, without giving security to attempt nothing to the prejudice of
the king or kingdom; that no immediate tenant, or officer of the crown,
should be excommunicated without the king’s licence; that appeals in
ecclesiastical causes should be made from the arch-deacon to the bishop,
from the bishop to the archbishop, from the archbishop to the king.

This indeed was striking at the root of the Pope’s supremacy, and of
his profits too. It was in truth declaring the king supreme head of
the church as to jurisdiction; next, that all that held ecclesiastical
dignities by the tenure of baronies, should do the duty of barons, and
among the rest sit in judgment as barons; however with this favourable
allowance to them, in consideration of their being bound by the canon
law, that they might retire when the question was to be put about loss
of life or limb; likewise that no bishop, or abbot, should be elected
without the king’s consent; nor, when elected, be consecrated till they
had first done homage and fealty; that the spiritual courts should
not hold plea of debts due upon oath; and lastly, that the spiritual
and temporal courts should mutually aid each other in carrying their
sentences into execution[382].

Such were the most material of the famous constitutions of Clarendon
drawn from the antient practice, and law of the kingdom, which the Pope
afterwards declared null and void, as contrary to the rights of the holy
church; which was plainly assuming the supreme legislature in every thing
that had the most distant relation to a church, or a churchman. But
Becket, who had sworn to obey the old laws only, for fear of personal
danger at that time, did not wait for the Pope’s condemnation of them,
but instantly shewed he was resolved to disobey, by enjoining himself
penance, and abstaining from officiating till he could obtain the Pope’s
absolution. Henry, provoked to the uttermost, was now resolved to crush
him. He called him to an account in parliament for all the king’s moneys
that had passed through his hands while he was chancellor, and for one
thousand marks he had lent him; demands that the king had never intended
to have made, but for his refractoriness; and which he well knew he was
not able to pay, having embezzled them in high living.

The archbishop resolved to stand out to extremity: he offered a most
wonderful plea in a cause merely civil, that of debt, _viz._ that his
being made archbishop of Canterbury had discharged him of all former
accounts and debts, and appealed, even in this purely civil cause, to the
Pope. When reproached with contravening the constitutions of Clarendon,
contrary to his oath, he broached another curious maxim, That, in every
oath a clergyman could take, there was a _tacit salvo_ for the rights
of his order; he forbid the bishop to sit in judgment upon him, under
pain of excommunication. He would not hear his sentence, but told the
peers that he was their father, and they his children, and that children
had no right to sit in judgment on their father. He then departed, in
contempt of the court, and went over to France, where he was kindly
received by that king; and the Pope avowed and encouraged him in all the
extravagances he had advanced, received his appeal, and annulled all
sentences against him.

However, as the schism was not yet ended, he kept him in for some time
from proceeding to extremities; but as soon as the danger was over,
the Pope suffered him to thunder out his excommunications against all
the ministers of the king, and all that observed the constitutions of
Clarendon. The king himself, indeed, was spared, and the kingdom was
not, on this occasion, laid under an interdict; a circumstance then
much apprehended. The king, on the other hand, enacted, that no appeals
should be made to the archbishop, or Pope; that the lands belonging to
Becket should be confiscated; that the clergy who resided abroad should
return in three months, or forfeit their benefices; and that no letter of
interdict should be brought into England, the penalty of which last was
afterwards made the same of treason.

The king was not a little uneasy at the apprehensions of personal
excommunication, or of an interdict’s issuing, as he observed the
censures already passed had but too much influence on the weakness of
many of his subjects. He therefore, to ward the blow, had recourse to
negotiation, which the Pope readily admitted, who feared, on the other
hand, from the popularity of Henry’s and the unpopularity of Becket’s
conduct, that his ecclesiastical thunders might be slighted in England.
He contrived, however, in the interim, to embroil him with the king of
France, and other powers on the continent. Matters continued on this
footing for some years, in a train of negotiation; in the course of which
the moderation of the king and the insolence of the archbishop were
equally remarkable, till, at length, the former, finding the Pope had
trod down all opposition, and that his own interest was on the decline,
was obliged, I may say, to submit; for he was reconciled to Becket;
engaged to restore his and his adherent’s effects, and to suffer him to
return to England, which he did with the additional quality of legate of
the Pope; and no mention was made of either side, of the subject of the
dispute.

But Becket was resolved to shew the world he had conquered. He began the
exercise of his legatine power, by suspending and degrading the clergy,
and excommunicating the laity that adhered to the laws of the kingdom.
Nay, he excommunicated two of the king’s tenants for cutting off the tail
of his sumpter mule; so sacred was the beast become.

Soon after he was murdered at the high altar, in consequence of a rash
speech of the king’s, in a barbarous manner, as all, any way acquainted
with the history of England, must know; and now was Henry compleatly
at the Pope’s mercy. For Becket, dead, served the See of Rome more
effectually than he ever could have done living. The bloodiness of
the fact, the sacredness of the place where it was committed, and the
resolution with which he died, filled not only all England, but all
Europe, with religious horror. Miracles in abundance he immediately
wrought, and he who by many was looked upon as a traitor, was now
universally esteemed a saint and a martyr; and so he was to the interest
of the See of Rome.

In these circumstances Henry was obliged to submit to be judged by the
Pope’s legates, who, at length, absolved him, on his swearing that he had
not willingly occasioned the murder, and that he felt great grief and
vexation on account of it; in which, no doubt, he was sincere. But before
he could obtain it, he was obliged to promise to be faithful to Alexander
and his successors, not to interrupt the free course of appeals to Rome
in ecclesiastical causes, and not to enforce the observance of evil
customs introduced since his accession to the throne; for so they stiled
the constitutions of Clarendon, though they were only declarations of the
old law. And thus ended this famous contest, in an absolute victory on
the side of the Pope[383].




LECTURE XXXVI.

    _The rebellions of Henry’s sons—He is succeeded by Richard_
    I.—_The steps taken at this period towards settling the
    succession to the kingdom—The laws of Oleron—Accession of
    John—His cruelty and oppressions._


Henry’s quarrel with the Pope, terminating in the manner it did,
necessarily weakened the weight and influence he ever before supported,
both in his own kingdom, and on the continent; nor could the unwearied
pains he afterwards took, in redressing grievances, and making salutary
laws, by the advice of his parliament, restore him to the consequence he
had lost. The rest of his life was spent in unfortunate wars with his
rebellious children, instigated thereto by the artful Philip of France.
And the pretence was grounded on a step that Henry had taken in favour
of his children, and I may add of his people, that of bringing the crown
to a regular course of succession, and by that means preventing contests
upon a vacancy. Hugh Capet, the first of the present race of French
kings, who came to the throne by election, in order to perpetuate it in
his family, invented that practice which his successors followed for near
three hundred years, of associating the eldest son, by causing him to be
crowned in the father’s lifetime.

Henry, who loved his children, and was sensible that the not following
this practice in England had occasioned the wars between William and
Henry the Conqueror’s sons, and their brother Robert, as well as those
between Stephen and himself and his mother, crowned his eldest son Henry.
But the use which the ungrateful prince made of his advancement, was
to embroil his father, by demanding the immediate cession of Normandy,
on pretence that, being a king, he should have some country given up
immediately to govern. Upon young Henry’s death, the father, who knew
Richard, with greater capacity, was equally unnatural with his elder
brother, resolved not to give him the same pretence to trouble him,
and refused obstinately to have him crowned; but this refusal served
itself for a pretext for rebellion, as it gave Richard room to think,
or at least to pretend to think, that his father intended to disinherit
him, and to settle the crown on his youngest and favourite son John.
In this rebellion Richard, assisted by the king of France, and many of
Henry’s subjects, who probably suspected Henry’s design was such as was
suggested, prevailed, and the father was obliged to engage that his
subjects should take the oath of eventual allegiance to Richard, and soon
after died of a broken heart, occasioned by the undutiful conduct of
every one of his sons.

Richard accordingly succeeded; during whose reign we have little to
observe concerning the laws, the whole time of it being spent in a
continual state of war either in Palestine or France. Enormously heavy
indeed were the taxations his subjects laboured under, and yet they
bore them with chearfulness. For the holy war, and the recovery of
the sepulchre of Christ from the infidels, no aids could be thought
exorbitant; and for his wars after his return he was readily supplied
out of affection; for the remorse he shewed for having occasioned his
father’s death, his admirable valour, the injustice of and the cruel
treatment he received in his captivity, and, above all, the opposition
between the perfidious conduct of the French king and his openness and
sincerity, endeared him to his subjects, made them shut their eyes on his
many failings, and bear their burthens with patience.

Two things only passed in this reign proper for the subject of these
lectures, the steps made for settling the succession of the crown,
and the laws of Oleron. As Richard was unmarried when he set out for
Palestine, he thought it proper to prevent, if he could, any doubt that
might arise, in case he died without issue. There might, in this case,
be two competitors, Arthur, the son of Geoffry, his next brother who was
dead, and John the youngest brother, who was living. However clear the
point is at this day in favour of the nephew, it was then far otherwise.
For Arthur might be urged the right of representation. He represented his
father Geoffry; in all the fiefs in France, the law was in favour of the
nephew; nay, Glanville, who wrote in Henry the Second’s reign in England,
as to English estates, declared to the same purpose; and certain it is
that the general current of opinions at that time tended that way[384].

On the other side, it might be said in favour of John’s pretensions,
that the examples of fiefs could be no precedents in case of crowns.
These required more strictly, a person capable of acting in person. That
this was the very case; John was a man, Arthur a child; that, allowing
Glanville to have laid down the law right, he had made a distinction,
which comes up to this case; for he says, the uncle shall succeed, if
the father of the nephew had in his life-time been _forisfamiliated_;
that Geoffry had been out of the _patria potestas_ of Henry, by being
sovereign prince of Britany; that in the Saxon times two cases, for the
exclusion of infants, had happened, much stronger than the present; that
when Edmund the first died in possession of the throne, his brother
Edred succeeded, not his sons; and though Edmund Ironside had been king,
yet, after the Danish usurpation ceased, his brother the _Confessor_
was preferred to his son, though of full age, whereas Geoffry never
had the crown; that, since the conquest, three several times had the
lineal succession been set aside by parliament. So that there were not
wanting plausible arguments of each side of the question, and it is with
injustice that modern historians, considering only the maxims of their
own times, when a regular succession has been established, charge John
with a manifest usurpation of the crown of England. But that he was a
manifest usurper of the territories in France must be allowed; for, by
the laws of that country, they should have gone to the nephew.

A question of this weight and difficulty should regularly have been
decided in parliament, which always hitherto had determined in such
matters; but Richard had never thought of the business till he left
England, and then it was too late to proceed in that method. He was
obliged, therefore, to content himself with declaring, by his own
authority, his nephew Arthur his successor; and, to prevent John’s
traversing his design, he exacted an oath from him not to set foot in
England for three years; but from this obligation he afterwards released
him, at the request of their mother. John used all his art to caress the
nobility, and to supplant his nephew Arthur, as he fondly hoped Richard
would never return. And indeed, the conduct of William Longchamp, bishop
of Ely, Richard’s viceroy, contributed greatly to his success; for, as
to oppressions and outrages, he was not exceeded even by William Rufus
himself. This gave John a pretext for intermeddling to preserve the
liberties of the people. He sent word to that prelate, that if he did
not refrain from his exorbitancies, he would visit him at the head of an
army; which for such an occasion he might easily raise.

A general assembly, or parliament, was called, to compose the
differences; in which it was settled, that Longchamp should continue
in the administration, and hold the castles during the king’s life,
but that, if he died without issue, they should be delivered to John
as successor; and this agreement was ratified by the oaths of all the
nobility and prelates, so that, as Arthur had the decision of the king in
his favour, John by this means attained that of the people. Sensible how
much this step must offend the king, and of the dangerous predicaments he
must stand in should he return, he spared no pains to ascend the throne
even in the life of his brother, in which he was cordially supported by
the king of France. But all his efforts were baffled by the vigilance of
the regency, who had been appointed on Longchamp’s deposition, and was
more necessary from his continuing in his former extravagancies. John
even gave out that Richard was dead, and seized several castles, which he
put in a state of defence. He was, however, soon reduced, upon the king’s
return, and all his treasonable practices pardoned at the intercession of
his mother. When Richard came to die, he changed his mind as to Arthur,
and by will appointed John his successor: an alteration, considering
his former attachments to his nephew, who had never offended him, that
could proceed from nothing but his unwillingness to leave his dominions
involved in a civil war through the intrigues and interest of his brother.

The laws of Oleron concerning naval affairs are the only specimen of this
prince’s legislative capacity. They were made at the isle of Oleron,
off the coast of France, where his fleet rendezvoused in their passage
to the Holy Land, and were designed for the keeping of order, and the
determination of controversies abroad. With such wisdom were these laws
framed, that they have been adopted by other nations as well as England.
And, I think, to this time we may, with probability enough, refer the
origin of the admiralty jurisdiction. In his reign, for the first and the
last time, was raised the feudal aid, for the redemption of the king from
captivity.

Notwithstanding all the faults of this prince, his firmness against the
papal power is to be commended. Two of his bishops having a controversy,
there was an appeal to the pope, who sent a legate to determine it; but
Richard prevailed on the parties to refer it to his arbitration, and
would not suffer the legate to enter England, till he had made an end
of the business; and when he did come, the king suffered him not to
excercise his legatine power in any but one single point, and that by
his express permission. Notwithstanding all the steps taken in favour of
John, in order to pave the way for his succession, the notion of Arthur’s
hereditary right had taken such strong root in the minds of many, that,
had he been in England, and of a sufficient age to manage his affairs, he
might have had a fair prospect of success[385].

The lower people indeed were easily prevailed on by his agents to take
the oath of fealty to John, while the prelates, and nobility in general,
retired to their castles, as deliberating what steps they should take;
but, at length, by magnificent grants, and more magnificent promises,
they were prevailed on to come in, and he mounted the throne without
opposition. But in the French provinces his usurpation met with more
resistance. Arthur had many partizans, and his cause was espoused by
Philip of France, the lord paramount, not with an intention to strip John
of all; for that, with Britany, would have made Arthur too powerful; but
with a design to divide the dominions more equally between them, and
perhaps to clip off a part for himself, as he afterwards did Normandy, as
being forfeited by a sentence of the peers of France, by John’s murder of
Arthur. By the way, I shall observe, that this sentence was notoriously
unjust. By the laws of France, Arthur was the undoubted heir of Normandy,
and on his death his sister ought to have succeeded, nor ought the duchy
to have been forfeited by the crime of a wrongful possessor. Or, taking
it the other way, that Philip had a right to choose his vassal, and,
consequently, that the investiture he gave to John was valid; then was
he rightful duke of Normandy, and Arthur, as duke of Britany, was his
vassal, and had justly forfeited his life, by rebelling and endeavouring
to depose his liege lord. That John was guilty of this crime there was no
room to doubt; and truly, from the whole of his conduct from that time,
he seemed to have been infatuated by the terrors of his conscience; for
it was but little less than frenzy. He knew he was, by this cruel act,
become the detestation of his subjects in general, and that his father,
in the midst of his power and popularity, had been humbled by the Pope;
and yet, at the same time, he trampled on the liberties of the former,
and oppressed them in the most outrageous manner, and while his subjects
were thus disaffected, he openly set the latter at defiance.

To this reign, however, so inglorious, and so miserable to the English
of that age, do their successors owe the ascertaining their liberties.
He was, if we except William Rufus, the first of the kings that openly
professed to rule by arbitrary power. I do not mean to deny that every
one of his predecessors from the Conquest had, in some particular or
other encroached on their people, but then there were either peculiar
circumstances of distress, that almost enforced and excused them, or one
or two wrong steps were atoned for by the greatness and goodness of their
general conduct. It is very observable, that, as England is almost the
only country in Europe that hath preserved its liberties, so was it the
first wherein the kings set up for absolute power: and the preservation
of them, I apprehend, was in a great measure owing thereto, that this
claim was started there when the feudal principles, and the spirit of
independency, except only in feudal matters, were in their vigour, and
consequently raised such a spirit of jealousy and watchfulness, as,
though it hath sometimes slept, could never be extinguished; whereas, in
other countries, the progress of arbitrary power hath been more gradual.
It hath made its advances when the feudal system was in its wane, and
when the minds of men, by the introduction of the civil and canon law,
were prepared for it.

What encouraged the kings of England to attempt this sooner than other
monarchs, we may judge, was the greater disparity in riches between them
and their vassals, than was in other countries; so that nothing much
less than a general confederacy could curb them; whereas, abroad, two
or three potent vassals were an overmatch for the sovereign. Besides,
having subjects on each side of the water, not knit together in any
common interest, they might hope to use the one to quell the other. But
whatever was the cause, so was the fact; and John, even before the death
of Arthur, having removed the dread of a competitor, shewed, by a most
extraordinary step, what kind of sovereign he was like to prove. By the
law of these days a vassal was to pay his relief to his superior out of
his own demesnes, and the profits of his seignory, and had no right to
demand aid for that purpose from his sub-vassals; John having detached
Philip from his nephew’s interest, by ceding a part of his French
territories, was to pay twenty thousand marks for the relief of the rest;
and, to receive this sum, he, by his own authority, laid three shillings
on every hide of land in England; thus making England to pay that relief
for his foreign dominions, which his foreign subjects themselves were not
obliged to pay.

The next instance was in favour of the Pope, under pretence of the holy
war. Innocent had laid a tax upon the clergy, of the fortieth of their
revenues, and sent a collector to England to gather it, whom John,
of his own authority, empowered to collect it from the laity. These
two impositions were submitted to, in as much as there was no plan of
opposition then formed; but they afterwards occasioned great discontent
among a people, who thought no taxes could be raised without their own
consent. Accordingly, the next time he summoned his military tenants
to attend him into France, they assembled at Leicester, and agreed to
refuse attendance, unless he would restore their privileges; for though,
by the law of the Conqueror, they were obliged to go, they looked upon
this obligation as suspended by his behaviour. However, they had not yet
sufficiently smarted, to unite them thoroughly, and this affair was made
up by his accepting a scutage.

To enumerate all the exorbitancies he committed would be tedious, and
unnecessary, as the remedies prescribed in _Magna Charta_ sufficiently
point out the grievances. Let it suffice to say, in general, that he
oppressed his military tenants by exacting extravagant reliefs, by
disparagement of heirs, by wasting his wards lands, by levying exorbitant
scutages, by summoning them to war, and delaying them so long at the
place of transportation that they were obliged to return home, having
spent all their money; or, when they were transported, keeping them
inactive till they were obliged to return for the same reason, and then,
without trial, seizing their lands as forfeited. The same oppressions he
extended to others, seized lands and tenements at will and pleasure,
imprisoned whom he pleased, laid heavy talliages on the socage tenants
and boroughs, without any regard to the privileges they had obtained from
his predecessors; and having, by these means excited the detestation of
his subjects, and forfeited his reputation by losing Normandy by his
indolence, he took it into his head that he was a match for the Pope,
and engaged in a contest with his Holiness, which subjected him and his
kingdom to the Roman See, tho’ eventually it contributed not a little to
the recovery of his subjects liberties.[386] The manner in which this
happened shall be the subject of the ensuing lecture.




LECTURE XXXVII.

    _John’s dispute with the court of Rome—Cardinal Langton
    promoted to be Archbishop of Canterbury—Pope Innocent lays
    the kingdom under an interdict—John is excommunicated—His
    submission to Innocent—The discontents of the Barons—Magna
    Charta and Charta de Foresta—An examination of the question,
    Whether the rights and liberties, contained in these charters,
    are to be considered as the antient rights and liberties of the
    nation, or as the fruits of rebellion, and revocable by the
    successors of John?_


If Alexander the Third shewed the grandeur of the pontifical power in
humbling Henry the Second, the displaying it in its full glory was
reserved for Innocent the Third who now reigned, and who being promoted
to the papacy at the age of thirty seven, had vigour of body and mind to
carry every point he engaged in, and was resolved to push his power to
the utmost. Having tasted the sweets of English gold, in the collection
made under pretence of the holy war, he had a great desire to renew
the experiment; and that he might be able to proceed with the less
opposition, was resolved to have an archbishop of Canterbury at his
devotion; and the See falling vacant, a controverted election furnished
him with an opportunity.

The election belonged to the convent of Christ-church, though it was
contested with them by the suffragan bishops. The very night the
archbishop died, a faction of the younger monks resolving to have an
archbishop of their own chusing, assembled, and chose Reginald sub-prior
of the convent, and sent him off before morning for Rome, to obtain
the Pope’s confirmation, of which they did not entertain any doubt, as
it would be plucking a feather from the king’s prerogative, that of a
previous licence for proceeding to election; and Innocent had already
shewn that he looked on himself as monarch of monarchs. But as they could
not expect the Pope would take this stride in support of a clandestine
election, they all took an oath of secrecy, to be observed till the
confirmation was obtained.

But Reginald’s vanity defeated the scheme, and made him divulge it,
which so provoked his electors, that they joined with the others,
petitioned the king for a license, and elected, at his recommendation,
the bishop of Norwich, and twelve of the monks were dispatched to solicit
his confirmation. The suffragan bishops opposed him, as being elected
without their concurrence, which point was determined for the convent by
Innocent; notwithstanding which, without assigning any invalidity in the
second election, he annulled it as well as the first, and recommended
to the twelve deputies to elect Stephen Langton, an Englishman and a
cardinal. At first they demurred, as having no authority; but the threat
of instant excommunication compelled them to obey. And then, as if they
had done nothing out of the way, he recommended Langton to John in a
very civil letter. The king, enraged to the highest, turned the monks
of Canterbury, who were entirely innocent, out of their convent and
the kingdom, and threatened the Pope that he would suffer no appeals.
Innocent, who had before this humbled Philip of France by an interdict,
and knew the man he had to deal with, proceeded very calmly, to order
three bishops to exhort the king to receive Langton, and recall the
monks; and, in case of non-compliance, to lay the kingdom under an
interdict[387].

The name of interdict frightened John, who knew how much he was hated.
He offered to comply, if he might be allowed to make a protestation of
a saving his dignity and prerogative; but no salvo would be allowed;
the interdict was published, Divine service ceased through the kingdom,
except in a very few places, where some clergymen were found honest and
bold enough to preach against the Pope’s proceedings. John, in revenge,
fleeced the clergy in a most horrible manner; and, what is yet more
surprising, did not desist from oppressing the laity. However, as to the
points in contest, he was not obstinate; he offered more than once to
submit; but Innocent had more extensive views. There was no remission
without he refunded to the churchmen every farthing he had extorted
from them, a thing absolutely out of his power. Then followed, after
successive delays calculated to shew that the holy father would give his
undutiful son time to repent, a sentence of excommunication by name, a
bull absolving his subjects from their oath of allegiance, and commanding
all persons to avoid his company; and, lastly, a sentence of deposition,
and a grant of all his dominions to the king of France, who had been
invited also by John’s subjects, whose patience had been by this time
quite exhausted with his tyranny, and the suspension of the performance
of Divine service.

Philip was very ready to execute this sentence, and assembled a numerous
army. Randulf was sent, as the Pope’s legate, to see the sentence of
deposition put in execution; but, in reality, with secret instructions
of a very different nature; for it was by no means Innocent’s intention
to give England to France, but to subject it to himself. John, terrified
with the exaggerated account of Philip’s armament, and the disaffection
of his subjects, submitted in every point before in contest, and in
one new one, that no clergyman should be outlawed. But this was not
sufficient to avert the danger from Philip, and his own disaffected
barons. To make him sacred and invulnerable, he became a vassal to the
Pope, resigned his kingdom to him by a formal charter, and received it
again as a favour, under homage, and a yearly rent of a thousand marks.

In consideration of this submission, John was favoured in the point
of indemnifying the clergy, which was what had so long retarded the
accommodation. Innocent took the estimating this on himself, and having
got all he wanted for the See of Rome, forgot his former clients the
clergy, and was very moderate with his new vassal. However, the interdict
was not removed, nor the king absolved from his excommunication, till
Langton was put into possession; which when done, John was obliged to
renew his homage, to swear to defend church and clergy against all
their adversaries, and to make restitution; and then he was absolved.
But there was one curious addition to this oath, which Langton, who was
an Englishman, and a lover of liberty, certainly inserted of his own
head, that he should restore the laws of the Confessor: For Innocent
would never, we may be well assured, have allowed such privileges to
his vassals. John, however, out of fear of Philip, being in an hurry to
be absolved, made no objection; and indeed he had no reason to doubt
the Pope would absolve him from his oath. But Langton and the nobles
were resolved to keep him strictly to it. Soon after, while he was in
France, his regents summoned a parliament, wherein the king’s peace was
proclaimed, and the laws of Henry the First were revived. These were
those he had sworn to restore, being in truth the Confessor’s, with a few
additions and alterations by the Conqueror and Henry.

John, however, went on in his old courses, being now sure of the Pope’s
protection, and indeed it was hard to charge him with a breach of Henry’s
charter, of which, though copies had been lodged in every cathedral and
great abbey in England, yet so carefully were they destroyed, that not
one appeared. At length archbishop Langton furnished them with one, which
had escaped the general calamity; and this the associated barons, who
had determined to restrain John, and recover their liberties, made the
basis of their demands, and swore to demand, and if refused, to vindicate
with the sword, at a meeting they had at Edmundsbury under pretence of
devotion. Accordingly, they waited on the king in a military dress, and
made their demands; but he, seeing they were only a party among the
nobles, and not imagining the rest were of the same sentiments, not
only refused, but with haughtiness insisted they should renounce them,
by giving under their hands and seals, that they would never make the
like demand on him or his successors. But his eyes were opened when he
found scarce two or three of those that were with him would comply. He
had recourse to procrastination, and promised them satisfaction at the
latter end of Easter. In the interim he exacted a new oath of allegiance
from his subjects; a feeble precaution; for none refused it, or thought
themselves precluded by that act of duty from vindicating their rights
in what manner they best might. To secure the clergy, he gave them a
charter, confirming their immunities, and the entire freedom of their
elections; and yet a great multitude continued zealous for the liberty
of the subject against him; but his main dependance was on religion. To
render his person sacred, he assumed the cross, as if he intended for
the holy war, and implored the protection of his Holiness, to whom the
discontented barons also represented the justice of their pretensions.
Innocent, in appearance, received them favourably, advised them to
represent their hardships in a decent and humble manner to the king, in
which case he would interpose in favour of all their just and reasonable
petitions; but annulled their association, and forbad them to enter into
any new one for the future.

The barons, who sent to the Pope rather out of respect than any
expectation of favour, proceeded in the method they began. They and their
vassals assembled in array, in such numbers as to compose a formidable
army; and when they had particularly specified their demands, and
were refused, they proceeded to attack him, by reducing his castles.
Against himself, as being under the cross, they made no attempt. On
this occasion, archbishop Langton, who was at the bottom of the whole
confederacy, outwitted John; who, as they had disobeyed the Pope, was
impatient to have them excommunicated, and this the Pope promised to
do as soon as the foreign troops, which the king had brought over for
his defence, had quitted the kingdom; but when they were gone, he broke
his engagement, so that John, left defenceless, was obliged to appoint
four nobles to treat with the revolted lords; and, upon conference, some
points they had insisted on before being given up, the liberties of the
nation were settled, as contained in the two charters of _Magna Charta_,
and _Charta de Foresta_[388].

The manner of obtaining these charters, and the right the people have
to the liberties contained in them, have been the subject of much
controversy between the favourers of arbitrary power and the assertors
of freedom; the one, contending that they were the fruits of rebellion,
extorted by force and fraud, from a prince unable to resist, and
therefore revocable by him or his successors; and the others, that they
were the antient privileges of the nation, which John had, contrary to
his coronation-oath, invaded, and which they therefore had a right to
reclaim by arms. That they were obtained by force, is undoubted, and
that John and many of his successors looked upon them, therefore, as of
no validity, is as clear, even from the argument lord Coke brings for
their great weight, their being confirmed above twenty times by act of
parliament. To what purpose so many confirmations, if the kings had not
thought them invalid, and had not, on occasions, broke through them; and
were it as clear that they were not the antient rights of the people,
it must be owned they were extorted by rebellion. But that they were no
other than confirmations, appears very plainly from the short detail I
have heretofore given of the constitution and spirit of the monarchy of
the Saxons, and all other northern nations.

As to any new regulations introduced in them, as some there are, they
are only precautions for the better securing those liberties the people
were before entitled to, and it is a maxim of all laws, that he who has a
right to a thing, hath a right to the means without which he cannot enjoy
that thing.

The friends, therefore, to absolute power, sensible that the original
constitution is against them, choose to look no farther back than
the Conquest. Then, say they, the Saxon government and laws were
extinguished, the English by the Conquest lost their rights, the
foreigners had no title to English liberties, and the Conqueror and his
son William acted as despotic monarchs. Therefore, their successors
had the same right, and it was treason to think of controuling them.
But how little foundation there is for this doctrine, may appear from
what I observed on the reign of the Conqueror. He claimed to be king on
the same footing as his predecessors; he confirmed the Saxon laws, and
consequently both Saxons and foreigners, when settled in the kingdom,
had a right to them. If he oppressed the English, that oppression did
not extend to all; and to those it did, it was not exercised as upon
conquered slaves, but as upon revolted rebels. But, for argument sake,
to allow that the English became slaves, and that the foreign lords
had no right to the Saxon privileges, both which are false, how came
the king to be despotic sovereign over them? They were partly his own
subjects, freemen, according to the feudal principles, who served him
as volunteers, for he had no right to command their service in England;
or volunteers from other princes dominions, and to say that freemen and
their posterity became slaves, because they are so kind as to conquer a
kingdom for their leader, is a most extraordinary paradox.

But William the Conqueror, in some instances, and his son in all, acted
as despotic princes; therefore they had a right so to do. I answer,
the triumvirs proscribed hundreds of the best Romans, therefore they
had a right. It is as unsafe to argue from matter of fact to matter of
right, as from matter of right to matter of fact. It is as absurd to
say, Tarquin ruled absolutely, therefore the Romans were rightfully his
slaves, as to say the Romans had a right to liberty under him, therefore
they were free.

But it may be said, the people quietly submitted, and new rights may be
acquired, and new laws made, by the tacit consent of prince and people,
as well as by express legislation. I allow it where the consent is
undoubtedly voluntary, and hath continued uninterrupted for a long space
of time; and how voluntary this submission was, we may judge from the
terms they made with Henry the First, before they suffered him to mount
the throne. Besides, there are some points of liberty, essential to human
nature, that cannot, either by express or tacit laws, be given up, such
as the natural right that an innocent man has to his life, his personal
liberty, and the guidance of his actions, provided they are lawful, when
the public good doth not necessarily require a restraint. In short, never
was there a worse cause, or worse defended; and this maxim was what
influenced the conduct of the Stuarts, and precipitated that unhappy
house to their ruin.

John, who entertained the same sentiments, had no resource to recover
his lost rights, as he thought them, but the assistance of the Pope, and
an army of foreigners. The first very cordially espoused his interest.
He was provoked that he, who had humbled kings, should be controuled by
petty lords, and that by these privileges he should be prevented from
reaping that golden harvest he expected from England. He annulled the
charters, commanded them to recede from them, and, on their disobedience,
excommunicated them, first in general, and then, by name.

About the same time arrived an army of veteran foreigners, that came
to assist John, who had, in imitation of the Conqueror, distributed to
them the estates of the barons. With these and a few English lords,
he took the field, and ravaged the country with a more than Turkish
barbarity. The confederate barons saw the liberties they had contended
for annulled, their lives and estates in the most imminent danger, and,
in a fit of despair, invited Lewis, prince of France, to the crown, who,
bringing over an army, saved them from immediate destruction. However,
this strengthened John. It was not for any to stand neuter. Few chose to
embark in an excommunicated party, and many, who saw slavery unavoidable,
and nothing left but the choice of a master, preferred their countryman
for a king to a foreigner. The loss of liberty now seemed certain, which
ever prevailed; when the haughtiness of Lewis, and his want of confidence
in the English noblemen who joined him, concurring with the death of
John, and the innocence of his infant son, providentially preserved the
freedom of England.




LECTURE XXXVIII.

    _The minority of Henry III.—Ecclesiastical grievances—The
    dispensing power—The canon law—Confirmation of Magna Charta—A
    commentary on Magna Charta, in so far as it relates to what now
    is law._


John left his minor son under the guardianship of the earl of Pembroke,
a nobleman of great abilities, and the strictest integrity. The first
step he took for the benefit of his pupil, was the confirmation of the
charters, and the next was a negotiation with the revolted lords, who
began to be discontented with the prince of France; which succeeded
so happily, that in a short time he brought them all over with very
little bloodshed, and Lewis was obliged to quit the kingdom. Peace being
re-established, the regent applied himself with all diligence to restore
the peace of the kingdom, and justice to her regular course: And had he
lived long enough to form the conduct and principles of the young king,
England never had a fairer prospect of happiness; but he soon dying, and
his successors being men of a different stamp, such principles were sown
in the monarch’s mind, as, in the event, produced bitter fruit both to
him and the whole kingdom.

This reign was as calamitous as the preceeding one, and rather more
shameful; and what added to the misfortune, it lasted three times as
long. As soon as Henry came of age, he revoked _Magna Charta_, as being,
an act of his nonage, soon after he confirmed it, then broke it, then
confirmed it by oath, with a solemn excommunication of all that should
infringe it; then he obtained from the Pope a dispensation of his oath,
and broke it again. And thus he fluctuated for fifty years, according as
his hopes or years prevailed. However, in general, the charter was pretty
well observed. The great point it was infringed in, was the levying
money without the parliament, and in this he frequently prevailed, being
assisted by his Lord Paramount, the Pope. They joined in levying taxes,
and then divided the spoil between them. Indeed, their Holinesses had,
upon each occasion, by much the greater share; for they not only fleeced
the clergy separately, but drew vast sums from the king, on pretence of a
foolish project of making his younger son king of Sicily; all which they
squandered on their private occasions.

In this reign they introduced the practice of provisorship, against
which so many acts of parliament have been made. It went on this maxim,
That the Pope was universal pastor of the church, and consequently sole
judge who should be his deputy in any particular place. The inference
necessarily followed, that the rights of patronage to livings, whether in
a Bishop or lay patron, were, strictly speaking, no rights at all, being
such only where the Pope did not chuse to interfere. But this privilege
would have been of little significance, if they could act only in the
vacancy of a living; for it would generally have been filled up before
he could have notice. Bulls of provisorships were, therefore, invented.
These were charters of the Pope, directed to the bishop, acquainting
him, that he had provided for such a person, by appointing him to such
a benefice, when it should become vacant, or the first benefice of such
a value that should fall; strictly forbidding the Bishop to admit any
other person, upon any account whatsoever. Sometimes the person provided
for was not named; but notice was to be given when the vacancy happened.
In process of time a number of livings were resolved in the same bull;
nay, one went so far as to forbid any living that should fall to be
filled, till the Pope had provided for three hundred persons. Such were
the delightful consequences of John’s homage, and of England becoming
St. Peter’s patrimony; so that the monkish historians tell us that Rome
sheared all Europe; but in England they flayed off the skin. An account
was taken at one time of the value of English benefices possessed by
Italian priests, non-residents, and it was found to exceed the ordinary
revenue of the crown. All these bulls concluded with a non obstante, that
is, notwithstanding any laws, custom, privilege, right or patronage,
or any thing else whatever; and this hopeful precedent Henry the Third
adopted in his charters, thereby, if he could not repeal, at least making
ineffectual the laws of the land; and thus began the king’s claiming a
_dispensing power_ over the laws[389].

In this meridian of the Pope’s power was the canon law introduced into
England, and it soon began to usurp considerably on the civil courts;
insomuch that, had not the common law judges exerted themselves to check
the ecclesiastical court by prohibitions, which they did even in this
reign, it would have gained the same ascendant that it has in the Pope’s
territory.

The latter end of this reign was filled with a succession of troubles,
occasioned by the repeated breaches of the charters, and fomented by
the ambition of some of the great nobles; however, in the end, the king
prevailed, by the assistance of his son; but it was found expedient,
even in the midst of victory, in order to prevent future convulsions,
to establish the liberties of England, by confirming _Magna Charta_;
and they have ever since stood their ground. I shall therefore proceed
briefly to speak to _Magna Charta_, and in so doing shall omit almost all
that relates to the feudal tenures, which makes the greatest part of it,
and confine myself to that which now is law.

The first chapter of _Magna Charta_, as confirmed in the 9th year of
Henry, which is that now in force, and differs from that of John in some
omissions, concerned the freedom of the church, in which was principally
included the freedom of elections to Bishopricks, which, since the
reformation, has been taken away. I shall, therefore, proceed to those
that concern the laity; the five next are feudal, and the seventh is
concerning widows. It first gives them free liberty to marry or not;
whereas, before, such as were called the _king’s widows_, that is,
those who held lands, or whose husbands held lands of the king, had
been obliged to pay for license to marry if they had a mind, or were
distrained to marry, if they had no mind, which it is unnecessary to say
was a grievous oppression. It restrains the taking any thing from the
widow for her dower, or for her own land, which her husband had held in
her right. It provides for her _quarantine_, that is, gives her leave to
stay forty days in her husband’s house, unless she had dower assigned to
her before, and within that time orders the third part of her husband’s
land to be assigned her by the heir, as her dower; and that, in the
interim, she should have reasonable estovers[390].

The next is in favour of the _king’s debtors_, and their securities. By
the old law, the king’s profit was so highly favoured, that he could, to
satisfy his debt, seize the chattels or extend, that is, take the profits
of the real estate of his debtor, at his pleasure; or he might, in the
first instance, come on the security, without attacking the principal
debtor. For remedy hereof, it forbids the king, or any of his officers,
seizing the land, while the debtor’s personal chattels are sufficient.
It forbids, also, the distraining the securities, while the debtor’s
chattels were sufficient. If they were not, the king had the option
either to seize the land of the debtor, or distrain the securities; and
if the latter was done, it provides, that the securities should have
the land, until they are reimbursed. Immediately after this, in king
John’s charter, followed the law prohibiting the king from levying any
talliage or tax on the socage tenants, or on boroughs, without assent
of parliament, which is here omitted; and this king and his son Edward
asserted and exercised the right; but the last was at length obliged
to give it up, in the famous statute _de tallagio non concedendo_, and
not till then were these ranks of the people entirely emancipated. This
omission for a time rendered illusory the next, the ninth chapter, which
provides that the city of London and all the other cities, boroughs, and
ports, should enjoy all their ancient liberties and customs; for these
would be of little use whilst arbitrary taxation remained. The tenth is
in affirmance of the common law, that no person should be distrained for
more rent or services than he owed out of the land. If he was, he had
a double remedy, either by _a suit in replevin_, or by the writ called
_ne injuste vexes_. The next is for fixing the court of Common Pleas,
of which I spoke already. The twelfth was for the ease of the people,
by taking assizes in the country. But those actions are out of use now.
The thirteenth is concerning assizes too. I hasten therefore to the
fourteenth that treats of _amerciaments_.

Amerciaments come from the word _mercy_, and are so called from the words
in the record, _sit in miserecordia pro falso clamore suo_, and were
properly, though the word hath been since extended, what a plaintiff
or defendant that had troubled the king’s courts should pay by way of
punishment for maintaining an unjust suit; whereas _fines_, to which they
bear a resemblance, and with which they have sometimes been confounded,
were for offences, and assessed by the court; as were amerciaments also
sometimes, and very grievously, though entirely against law. This act
restores the common law; orders the amerciaments to be proportioned to
the nature of the case, and also, in regard to the man’s circumstances,
so that he should not be ruined thereby; that no freeholder should be
amerced in so heavy a manner as to destroy his freehold; no merchant, his
merchandize; no villain, his carts, whereby he would be unable to do his
lord’s services; no ecclesiastic according to the value of his benefice,
but only according to his lay property. And that this might be constantly
observed, the amerciaments were to be asserted, or settled by the man’s
peers. It may be asked, what remedy had the man, who was too severely
amerced by his peers? On this act was grounded the writ of _moderata
miserecordia_, whereby this amerciament may be tried by another jury, and
moderated.

The fifteenth provides, that none should be distrained to repair bridges,
or landing places, but who are bound by their tenures or custom. The
sixteenth for the free navigation in rivers, and unloading of goods.
The seventeenth takes away the power of trying pleas of the crown
from sheriffs, constables and coroners, and other inferior officers;
a very necessary law, upon account of the great value of the life of
an individual, especially as none but the king’s courts could give the
benefit of clergy. However, sheriffs and coroners can take _indictments_;
for that is not _trying_, but bringing the matter into a method of
trial. The eighteenth concerns debts due to the king where his debtor
is dead. By this law, the first duty of executors is to pay the debts
of the deceased; those of the highest nature, not as to _value_, but in
_quality_, in the first place, then the lower ones: and if the effects
were not sufficient, it was in their option to pay one creditor of the
same nature without another, so that they observed the rule of not
paying the lower debtor before the higher. But the king, be his debts of
what nature they would, by his prerogative, had the preference of all
creditors, and by colour hereof his officers often seized and embezzled
the effects of the deceased, to the prejudice of other creditors and
legatees. This orders the sheriff to attach and value the goods by a jury
of twelve men, to the value of the debt, which were to remain unremoved,
till the king was paid; and then the whole, or, if not, the overplus, to
be restored to the executors. The two next are feudal. The twenty-first
relates to purveyorship, which has been abolished.

The twenty-second relates to the king’s right to the lands of felons. On
which there is something curious to be observed. By attainder of felony,
the goods and chattels of the felon are forfeited to the king, and the
land to the lord from whom they were holden; but in case of treason, both
were forfeited to the king. Such was the feudal law; but by the law of
England, in order to deter persons from committing felony, and to make
the lords more careful what kind of tenants they chose, the king had
an interest in the land of felons; not for his own benefit indeed, but
for the terrifying by example. He had a right to commit waste in them,
to cut down the trees, to demolish the houses and improvements, and to
plow up the meadows; and for this purpose he was allowed, by common
law, a year and a day. To prevent this destruction, the lords, to whom
the land escheated frequently, by a fine, bought off the king’s right
of waste; but if they did not, his officers would take the profits for
the time, and then hold it longer, till they had committed the waste.
This act prohibits the retaining the land longer than a year and a day,
and directs that then it should be restored to the lord. This new law
was certainly intended for the public good, to prevent this malicious
wasting, which the king’s officers would be sure to commit, if they were
not properly, as they thought, considered; and to give the king, in
lieu of the waste that he had a right to make, a lawful profit, which
his officers had unlawfully, to their own use, we may be sure, extorted
before. It gives the custody of the lands for that time, and consequently
the profits. But observe the consequence.

The king now had the custody, as also the profits, by a legal title for
a year and a day, unless the lord pleased to compound with him, and so
intitle himself to the immediate possession. But this did not satisfy
the greediness of the officers of the crown. It was easy to gather the
profits until very near the time the king’s right expired, and then,
for a week or fortnight before it was out, they had it in their power
to commit waste enough, if the lord, who was intitled by the escheat,
did not buy them out. This was certainly against the spirit of the law
whereof we are speaking, which was intended to give the king a real
profit, instead of a right destructive to the community in general; but
the waste was not prohibited expressly, and this was pretext enough for
these officers to exact composition for not doing it within the year. It
was accordingly claimed and paid, and accounted for as due to the king,
on that old maxim, That general laws do not change the prerogative royal,
but by express words. This was the doctrine and practice in the courts of
the third Henry, and convenient enough for him, who was always indigent.
But what was the opinion of the lawyers of that age, we may learn from
Bracton, Britton, and the author of Fleta; the first of which wrote in
the latter end of this reign, and the other two in the reign following.
Bracton says expressly, that “the king’s power over the lands of felons
convicted, was because he had a right to throw down the buildings, unroot
the gardens, and plow up the meadows; but because such things turned to
the great damage of the lords, it was provided, for common utility, that
such houses, gardens, and meadows should remain, and that the king for
this should have the advantage of the whole land for a year and a day,
and so every thing should return entire to the lord. Then he goes on,
but now both is demanded, namely, a fine for the term, likewise for the
waste, nor do I see the reason why[391].” Thus far Bracton. Britton says,
speaking in the person of the king, of felons, for in that manner his
book is written, “Their moveables are ours; their heirs are disinherited;
and we will have their tenements, of whatsoever holden, for a year and
a day, so that they shall remain in our hands that year and day, and
that we shall not cause to perish the tenements, nor hurt the woods,
nor plow the meadows, as hath been accustomed in time past[392].” Fleta
talks in the same strain, in commenting on this law of _Magna Charta_,
which he expressly quotes, that, as a mark of brand on felony, it had
been antiently provided that the houses should be thrown down, and so
goes on to enumerate the other species of waste, which I need not here
repeat, as I have mentioned them already; and then he says “because by
such doings great damage would accrue to the lords of the fiefs; for
common utility it was provided, that such hardships and severities should
cease; and that the king, in consideration thereof, should, for a year
and a day, enjoy the commodity of the whole land; after which term it
should return to the lords of the propriety entirely, without waste or
destruction[393].” The _Mirror_, another antient law-book, joins with
these; and this book, which was written in the same reign of Edward
the first, or, at the latest, in that of his son, says, “the point of
felons lands being held for the year is disused; for by that, the king
ought not to have but the waste by right, or the year, in name, (that
is, in nature) of a fine; to save the fief from _estrepement_ (that is,
waste), the ministers of the king take both the one and the other[394].”
A melancholy consideration, that, under his name, and in pretence of
his profit, though not really to his advantage, such a law should, for
their own profit, be eluded by his ministers; as by these testimonies,
one cotemporary, and the rest immediately subsequent, we are informed
it was contrary to the intention of this chapter of _Magna Charta_; but
the practice prevailed for a long time after. I shall conclude this
lecture with the words of Lord Coke on this chapter of _Magna Charta_.
“Out of these old books you may observe, that when any thing is given to
the king, in lieu or satisfaction of _an antient right of his crown_,
when once he is in possession of the new recompence, and the same in
charge, his officers and ministers will many times demand the old also,
which may turn to great prejudice, if it be not duly and discreetly
prevented[395]”.




LECTURE XXXIX.

    _Continuation of the commentary on Magna Charta._


The twenty-third chapter of _Magna Charta_ prohibits _fish weires_ in
rivers, which are great annoyances to navigation, and the free liberty
of fishing; and which have stood their ground in spite of all the laws
that can be made against them. The next relates to the inferior courts
of Lords of Manors, and to writs of _Præcipe in capite_; which having
gone into disuse, with the feudal tenures, I shall pass them over. The
twenty-fifth orders, that measures and weights should be one and the same
through the whole kingdom; witness the difference between Troy weight and
Averdupois; the wine gallon and ale gallon. Established customs, which
of necessity must come into daily practice, are hard to be rooted out
by positive laws; and indeed it is more prudent to let them continue.
For the confusion that such an alteration of things in daily or hourly
practice would occasion, would be more detrimental, for a considerable
time at least, than the uniformity intended to be introduced would be
attended with advantage[396].

The twenty-sixth is concerning the writ _De odio et atia_, that is, of
hatred and malice; which, though not abolished, hath long since been
antiquated; but, as it was an antient provision for restoring the liberty
of the subject, I shall take some notice of it. It was a maxim of the
common law, that no man imprisoned for any offence, which, if proved,
would touch his life or members, could be bailed out but by the supreme
criminal court, the King’s Bench; which, upon danger of death, or such
other special causes as appeared sufficient to them, had that power.
Hence, in those unsettled and oppressive times, it became a practice
for malicious persons to have a man clapped up in prison for a capital
offence, without either indictment or appeal brought against him; and
there he was of necessity to lie, until the justice in eyre came into
the county to deliver the gaols, which regularly was but once in seven
years; to avoid this hardship, the writ we are now speaking of was
invented, and issued out from time to time, as occasion required, out of
the Chancery. Besides, by this chapter of _Magna Charta_, it is ordered
to be granted without any purchase or reward; whereas, before, all the
original writs were purchased at the price the chancellor pleased to
set on them, which was a grievous oppression. It ordered the sheriff to
make inquisition in the county court, by the oath of a jury, whether the
imprisonment proceeded from malice or not. If they found it did, upon its
return, the person accused had a right to a writ, ordering the sheriff to
bail him by twelve _manucaptors_, or securities. But, this was only where
there was no indictment, or appeal; for these were accusations of record,
and therefore the finding the charge malicious in the county court, which
was no court of record, could not avail against them. This, writ has gone
into disuse, since justices of gaol-delivery have continued to go into
every county twice a year; a proceeding which has evidently superseded
the necessity of it[397].

The twenty-seventh chapter restrains the unjust practice in the king,
of arrogating to himself the wardship of his socage or burgage tenants,
where they held lands by military service from others, his subjects. The
whole military system hath since been dissolved by act of parliament, and
therefore it will be unnecessary for me to explain or enlarge upon the
nature of the mischief complained of in this chapter. The next forbids
any judge or officer of the king to oblige a man to _wage his law_, that
is, swear to his innocence, except in a cause where a suit was instituted
against him; but _wager of law_, being now totally fallen into disuse,
I hasten to the twenty-ninth chapter, the corner-stone of the English
liberties, made in affirmance of the old common law[398].

By the bare reading of this chapter we may learn the extravagances of
John’s reign, which it was intended to redress. It consists of two parts.
The first runs thus: _Nullus liber homo capiatur, vel imprisonetur,
aut disseisetur, de libero tenemento suo, vel libertatibus vel liberis
consuetudinibus suis, aut utlagetur aut exuletur, aut aliquo modo
destruatur, nec super eum ibimus, nec super eum mittimus, nisi per
legale judicium parium suorum, vel per legem terræ._ First, then, to see
to whom this act extends: the words _liber homo_, in antient acts of
parliament, is, in general, rightly construed _freeholders_, and so it
means here, in the second branch which prohibits disseisins; for none but
a freeholder is capable of being disseised, no others being said to have
a seisin of land. But it must not, throughout the whole of this act, be
confined to this limited sense. The first branch speaks of the restraint
of liberty; the third, of unjust outlawries; the fourth, of unjust
banishment; the fifth, of any kind of destruction, or wrongs; which,
offered to an innocent person, are against the natural rights of mankind,
and therefore, the remedy must extend to all: and so it hath always been
understood; for women are included in it, and so are villeins, for they
are free men against all but their lord.

Let us next consider the end of this part, which is an exception running
through the whole; _nisi per legale judicium parium suorum, vel per legem
terræ_. That is, by the common law, which doth not, in all these cases,
require a trial by peers; a thing indeed impossible, where the party
doth not appear; in which case there is a necessity of proceeding to
judgment another way. Coke observes, the words _legale judicium parium
suorum_ include the trial both of lords and commons, the finding of the
latter being upon oath, and called _Veredictum_, and in which all must
be unanimous; wherein it differs from the trial of lords, for they find
not upon oath, but upon honour; and it is not necessary that all should
agree, the majority, provided that majority consists of twelve, being
sufficient[399].

Upon this a question may be put, who are the peers of a woman of quality?
If she be noble by blood, that is, a peeress, (for I speak not of the
nobility by courtesy, which is merely nominal) there is no doubt but the
barons and other noblemen; if she be ennobled by marrying a peer, she
becomes in law one person with her husband, and therefore must have the
same peers with him, which right continues after her husband’s death,
unless she marries a commoner; for then, being one person with him, she
becomes a commoner; whereas a peeress, in her own right, marrying a
commoner, forfeits not her dignity, though she becomes one person with
him. She was not ennobled by her own act, and therefore, by no act of her
own can destroy that nobility she has by the gift of God, or the king, by
means of her blood, which she cannot alter.

Two exceptions, however, there are to the rule of every Englishman’s
being tried for offences by his peers; but neither of them against the
purport of this statute. First, the statute speaks in the disjunctive,
_per legale judicium parium suorum, aut per legem terræ_: now the _lex
terræ_, the common law, in the universal practice of it, allows these
exceptions; nor will they be found to be against the letter; for the
words are _nec super eum ibimus_, _nec super eum mittemus_, speaking in
the person of the king; which shews that it is meant of the accusation
or other suit of the king. Now these exceptions are not at his suit.
One of these exceptions I mentioned in a former lecture. It is where a
commoner is impeached by the commons in parliament; and the reason I
then gave, is, I think, plain and satisfactory, that every jury that
could be summoned is supposed a party to the charge brought by their
representatives, and therefore, as the man is accused as an enemy to
the king by the body of the people, that there may not be a failure of
justice, the lords, as the only indifferent persons, must be the judges.

The other exception may seem more extraordinary. It is that a lord of
parliament appealed, that is, accused of a crime, by a private person,
not for the satisfaction of public justice, but of his own private
wrong, shall not be tried by his peers, but by a jury of commoners. When
this law was introduced, the lords were few in number, immensely rich
and powerful, linked together frequently by alliances, almost always
by factions. In this towering situation, they looked down on the lower
ranks with disdain; frequently injured and oppressed them; and little
prospect would the poor commoner have of redress, were the criminal to
be tried by those of his own rank, several of them his relations, most
of them liable to be suspected of the same offences; especially, as the
law will not allow a lord to be challenged. Neither did the lord run any
extraordinary risk of being unjustly condemned. The lower rank of people
in all countries and ages have been used to look with respect on persons
possessed of great wealth and power, invested with titles of honour,
and dignified by blood of an antient descent. But, in those military
ages, such veneration was highly encreased by that valour and personal
bravery, which distinguished every one of the nobility, and than which
no virtue is more apt to captivate, in general, the hearts of mankind.
Besides, that the lord had his advantage of challenging suspected jurors;
whereas, if tried by his peers, he had not such privilege of exception,
though they were ever so notoriously his enemies. Every commoner almost,
how great soever, was, in those days, under the influence of some one or
other of the lords, and there could be little doubt but that influence
would be exerted, and successfully too, unless the guilt was too clear
and evident.

It may here be asked, When a civil suit is depending between a lord and a
commoner, how the issue is to be tried, whether by the lords alone, or by
commoners only, or by a jury composed of an equal number of each; in the
same manner, as, when an alien is tried, it is by a jury half natives,
half aliens? The answer is, it shall be tried by a jury of commoners;
only, on account of the dignity of the lord, there must be a knight on
the jury. I need not enlarge on the reason, as it is the same with the
former, the lesser danger of partiality.

I now come to the other part of the disjunctive, _aut per legem terræ_;
and it will be necessary to point out in general (for to descend into
particulars, would carry me a great deal too far) the principal cases,
where this _lex terræ_ supersedes the trial _per pares_. First, then, if
a man accused of a crime pleads guilty, so that there is no doubt of the
fact, it would be an absurd and useless delay to summon a jury, to find
what is already admitted: accordingly, by the _lex terræ_ judgment is
given on the confession. So in a civil action, if the defendant confesses
the action, or if he appears, and afterwards, when he should defend
himself, makes default, and will not plead (which case is equivalent
to confession) no jury is requisite. So, if both parties plead all the
matters material in the case, and a demurrer is joined, that is, the
facts agreed on both sides, and only the matter of right, depending on
the facts already allowed, in contest, the judges shall try by demurrer,
and give judgment according to _law_ without a jury. The general rule
is, that a jury shall try _facts_, and the judges the _law_; for it
would carry a face of absurdity to expect from a common, or indeed, from
any jury, a decision of a point of law that is controverted between the
lawyers of the plaintiff and defendant, who have made that science their
particular study. Besides, as the law inflicts so heavy a punishment on
jurors who give a false verdict, it would be the utmost cruelty to force
men unpractised in law to run such a hazard, where it must be supposed
an equal chance, at least, they may mistake. The same dangers that the
jurors would run by mistaking the law, hath, in points complicated both
of law and fact, introduced _special verdicts_, that is, the finding of
all the facts by the jury, and the leaving the matter of right to be
judged by the court, who best know the law: but this by way of digression.

All the proceedings of courts to bring causes to a hearing previous to
the impannelling a jury, and the carrying judgments into execution, are
_per legem terræ_, or, as my Lord Coke expresses it, the due process of
the law is _lex terræ_. The inflicting of punishment by the discretion
of courts for all contempts of their authority, without the intervention
of a jury, is also, I think part of the _lex terræ_, and founded in the
necessity of enforcing due respect and obedience to courts of justice,
and supporting their due dignity. The outlawing a person who absconds,
and cannot be found, so as to oblige him to answer a charge against him,
whether civil or criminal, is one of these proceedings _per legem terræ_
without a jury; of which, as I have now occasion, it will not be amiss to
give a short account, as it is in daily practice[400].

By the very antient law of England, the consequence of outlawry was very
troublesome. Not only a seizure of the person, lands and goods, was
lawful, but he was looked upon, not, merely, as one out of the protection
of the law, but also as a publick enemy; for whoever met him had a right
to slay him. This barbarous law undoubtedly proceeded hence, that no
person was then ever outlawed but for a felony; that is, a crime whose
punishment was death; but it was a most absurd thing to allow every
private person to execute the offender, who by refusing to answer has
confessed himself guilty: and the absurdity became more glaring, when,
about Henry the Third’s time, process of outlawry began to be extended
to all trespasses committed _vi et armis_, when the consequences were so
dreadful. Such extension seems surprising; yet the turbulent condition
of the times will, in some measure, account for it; when, under pretence
of dormant titles, forcible possessions, not without frequent bloodshed
and murders, were daily taken by the adherents of the king or barons, as
their respective parties prevailed. But when the times grew peaceable,
this bloody maxim wore out, and in the beginning of Edward the Third’s
reign, it was resolved by all the judges, that the putting any man to
death, except by the sheriff, and even by him without due warrant in law,
however outlawed and convicted, was murder; and since the forementioned
times, as the number of people encreased, and the opportunities of
concealment and absconding along with them, it has been found necessary
to grant the process of outlawry in many civil actions.

I shall briefly point out the proceedings therein, to shew the abundant
care the law of England takes, on the one hand, to do justice to the
plaintiff, if the defendant absconds, and will not appear; and, on the
other, that the defendant may have all possible opportunity of notice
before the outlawry be pronounced against him. First, there issue three
writs successively, to take the body of the defendant, if found in his
bailywick or county, and to bring him to answer. The first is called a
_capias_, from that mandatory word in the writ. When the sheriff cannot
find him in his bailywick, he returns a _non est inventus_ on the back
of the writ, on which there issues a second _capias_, called an _alias_,
from its reciting that _alias_, or before this, the like writ had issued.
On the same return of _non est inventus_ to this (for if upon any of
the processes the defendant is taken, or comes voluntarily in, so as to
answer, the end is obtained, and no further proceedings to outlawry go
on), the third writ issues called a _pluries_, because it recites the
sheriff had been _pluries_, that is, twice before, commanded to take him.
The sending these three writs, one after the other, in order to bring in
the party is, I presume (as, undoubtedly many of the antient practices in
our courts of law are) borrowed from the civil law; for by that law they
issued three citations, at the distance of ten days, one after another,
to call in the party to answer.

But as, upon a return of a _non est inventus_ on the third _capias_,
the personal apprehending the defendant may well be despaired of, the
law proceeds another way; in order, if possible, to give him notice,
that is by issuing the writ of _exigent_, so called from the Latin word
_exigere_, to _require_, or _call upon_. This writ commands the sheriff
to call the defendant in his county-court, where all the persons of the
county are supposed to have business, or at least some that can inform
him might have. The words are, _We command you that you cause such a one
to be required from county-court to county-court, until, according to the
law and custom of our realm, he be outlawed if he doth not appear. And if
he do appear, him to take, and safely keep, and so forth._ Now the law
and custom of the realm requires, in this case, that the party should be
called on five different county-court days, one after another, before
he can be outlawed; and these courts being held at the distance of four
weeks from each other, the interval amounts to sixteen weeks, besides the
time of the three previous _capias’s_; a time so abundantly sufficient,
as it is scarce to be presumed possible a person living in the county
should not have notice; and consequently, on his not appearing in the
fifth court, the coroners of the county, whose duty it is, give judgment
of outlawry against him.

Such is the care the common law takes to prevent outlawries by surprize.
But the act of the thirty-first of Elizabeth in England, enacted here
in the eleventh of James, had superadded another caution, namely
three publick proclamations. The reason of this superadded caution
was, I presume, on account of the dwindling of the business in the
county-courts, and, in consequence, their being not so well attended.
This writ, commanding the sheriff to make proclamation, issues with the
_exigent_, and recites it, and the cause for which the proceeding to an
outlawry is, and directs him to proclaim the party three several days;
first in the county-court, secondly at the quarter-sessions, a court of
more resort, and lastly on a Sunday immediately after Divine service, at
the most usual door of the church of the parish, where the person dwelt
at the time the _exigent_ issued; or if no church, in the church-yard of
the parish; or if no parish, at the nearest church, and all outlawries
in personal actions, where these solemnities are not observed, are
declared void.

I have been the more particular on this head, to shew the abundant care
the law has taken in these proceedings, and to vindicate it from the
common complaint, of outlawries being obtained surreptitiously, and
without notice. I am sensible such complaints are generally without
foundation; but if in any case they are just, the fault is not in the
law, but in man, in the laws not being duly executed; and if we are to
complain of the best laws, until they be in all cases perfectly and
uprightly executed, we shall never cease complaining while human nature
is what it is, weak and corrupt[401].




LECTURE XL.

    _Continuation of the commentary on Magna Charta._


Having mentioned the several kinds of proceeding to judgment without
the intervention of juries, practised by the courts of common law, and
authorised under the words of this statute, _per legem terræ_, it will
be proper, before I quit this head, to say something of other kinds of
courts which do not admit this method of trial; which, yet, have been
received, and allowed authority in England; and whose proceedings,
however different from those of the common law, are justified by the
same words, _per legem terræ_. These are the courts _ecclesiastical_,
_maritime_, and _military_.

If we trace back the origin of ecclesiastical jurisdictions, we shall
find its source in that advice of St. Paul, who reproves the new
christians for scandalising their profession, by carrying on law-suits
against each other before heathen judges, and recommends their leaving
all matters in dispute between them to the decision of the _Ecclesiæ_,
or the congregation of the faithful. In the fervour of the zeal of these
times, this counsel was soon followed as a law. The heathen tribunals
scarce ever heard of any of their controversies. They were all carried
before the bishop, who, with his clergy, presided in the congregation;
and who, from the deference the laity paid them, became at length the
sole judges, as, in after ages, the bishop became sole judge, to the
exclusion of his clergy. These judges, however, being, properly speaking,
only _arbitrators_, had no coercive power to enforce their judgments.
They were obliged, therefore, to make use of that only means they had
of bringing the refractory to submission, namely, excluding them from
the rights of the church, and warning other Christians against their
company, and indeed, it was an effectual one; for what could a Christian,
despised and abhorred by the heathen, and shut out from the commerce of
his brethren, do, but submit? Besides, if he was really a Christian,
this proceeding seems founded on the words of the Apostle, “He that will
not hear the _ecclesia_, the congregation, let him be unto thee as an
heathen[402].”

Thus was _excommunication_ the only process in the primitive church to
inforce obedience, as it is in ecclesiastical courts at this day; though,
considering the many petty and trifling occasions on which they are, of
necessity, obliged to have recourse to these arms, having no other, and
the many temporal inconveniencies it may be attended with, it has been
the opinion of many wise and learned, as well as of many pious men, that
it would not be unworthy the attention of the legislature to devise some
other coercive means for the punishment of contempts, and to restrain
excommunication to extraordinary offences only. Though, if we consider
that the jealousy which the temporal courts, and the laity in general,
so justly conceived of these judicatures in the time of popery, hath not
even yet entirely subsided, there is little prospect that this or any
other regulation, to amend their proceedings, and others they do want,
will be attempted.

When the empire became Christian, these courts and their authority were
fully established in the minds of the people. However, that the temporal
courts might not be stripped of their jurisdiction, and churchmen become
the sole judges, a distinction was made between matters of spiritual
and temporal cognizance; not but several matters, originally and
naturally temporal, were allowed, by the grants of the emperors, to the
ecclesiastical jurisdiction; and even, of such as were not allowed them,
they might take cognizance, if both the parties agreed thereto. This was
called _proroguing_ the jurisdiction, that is, extending, by the consent
of the litigants, its power to matters that do not properly belong to
it. A practice our law has most justly rejected; for it would introduce
confusion, and a perpetual clashing of courts, if it was in the power
of the private persons to break down the fences that the constitution
has so wisely erected ta keep every judicature within its strict bounds.
And indeed this practice was one of the great engines the churchmen made
use of, in their grand scheme of swallowing up all temporal jurisdiction
and power. The method of trial in these courts was by the depositions of
witnesses; and upon them the judge determined both the law and the fact.

Trials by jury were entirely unknown to the Romans, though indeed their
_centumviral court_, in the early times, bore some resemblance to them;
and even when the northern nations, who were the introducers of the
trial _per pares_, became Christians, the ecclesiastical courts on the
continent proceeded in their old manner. But in England, during the
times of the Saxons, both spiritual and temporal courts, though their
business was distinct, sat together, and mutually assisted each other, as
I observed under the Conqueror’s reign. But whether the matter of fact
in ecclesiastical causes was then tried by a jury, I will not pretend
to affirm, though, from the peculiar fondness the Saxons had, above
the other northern nations, for that method of trial, it may seem not
improbable. However, this is certain, that from the time William, who,
to gratify the court of Rome, and to shew his own political purposes,
separated the courts, the proceedings of the spiritual ones in England
have been conformed to the practice of those courts abroad, and to the
canon law. The alteration, if indeed there was any, was sufficiently
authorised by the king and pope; and indeed as all the bishoprics were
filled by Normans, they knew not how to proceed in any other manner.
By the time of John, the proceedings of these courts, and their trial
of causes without jury, had been universally fixed, and received as a
part of the _lex terræ_, and, as such, is confirmed by the words of this
statute.

The next court that the law of the land allows to proceed to sentence
without a jury is the Court of _Admiralty_, and that for absolute
necessity; for as its jurisdiction is not allowed as to any thing that
happens within the body of a county, except in one particular instance,
_contracts for sailors wages_, but extends only to things done on the
sea, or at most to contracts made in foreign countries (though this last
is denied by the lawyers of our days to belong to them) there is no place
from whence a jury can come. For the jury of the county, where the cause
of suit arose, are the triers, but here, it arose in none. Besides, the
great excellency of this method of trial consists in this, that the
jury, from their vicinity, have opportunities of knowing something of
the nature of the case, and of being acquainted with the characters and
credit of the witnesses, neither of which can be supposed in this case.
In this court the judge determines both matter of law and fact.

The same was the case of the Constable’s and Marshal’s Court, formerly
of great power, but now next to antiquated. Its jurisdiction was, first,
_martial law_, over the soldiers and attendants of the camp. Now the
trial of offenders in this kind, by a jury, whether taken out of the
army, or out of the county, if in the kingdom, would have effectually
destroyed that strict subordination, which is the soul of military
enterprises. Secondly, they had the trials of treasons and felonies done
by the king’s subjects in foreign kingdoms. Here there could be no trial
by jury, for the same reason as given already for the Court of Admiralty.
The last part of their jurisdiction was as to precedence, arms, and
marks of dignity, which flowing immediately from the grace of the crown,
the sole disposer and judge of them, were not supposed to be in the
cognizance of jurors, but proper to be determined by the king’s judges,
who had the keeping of the memorials of his grants in this kind. Besides,
these honorary distinctions are not local, but universal through the
realm; so that there is no particular county from whence a jury should
come[403].

Such are the reasons assigned why these two courts proceed _per legem
terræ_, and not by juries; but, to speak my own opinion truly, when
I consider that their methods are formed upon the proceedings of the
civil law, I suspect a farther design. The discovery and revival of
this law happened in the reign of our Stephen. I have already had
occasion to observe how greatly the princes, in every part of Europe,
were flattered by the tempting bait of unlimited power it set before
them, and particularly the kings of England, who were the first that
set out in pursuit of this delusive object; and that their being less
successful than others was, very probably, owing to their beginning the
career too early. When I consider then that these two courts, where
trials by juries prevail not, dealt in matters that were of the resort
of the prerogative, and that, in consequence, the modelling of them was
left to the king; when I see all the parts of these models taken from
the imperial law; when I reflect on the notoriously avowed and unjust
preference the weakest of them gave to that against the common law, and
the kind patronage the wisest and most moderate of them shewed to it, and
its possessions, down to the reign of Charles the Second, I cannot help
suspecting a deeper design. And, indeed, the common lawyers seemed to
take the alarm, and decried and despised every part of this law, though
most of it is founded on good reason, merely out of the apprehensions,
that giving it the least countenance, might, in time, open a door for the
absolute authority of the prince, and the rapaciousness of his _fisc_ or
treasury, and thereby overturn the constitution.

But there are other courts, besides those already named, that proceed
upon the deposition of witnesses, and not by jury, I mean the courts of
Equity; which, in imitation of the civil and canon laws, oblige a party
to answer upon oath to his adversary’s charge. This practice, though not
allowed by common law, is founded in very good reason. For, as the proper
business of a court of equity is to detect fraud and surprize, these
things being done in private, and endeavoured to be as much concealed
as possible, it is but reasonable that the plaintiff should have power
to sift the conscience of his adversary, and to examine not to a single
point, as the _issues_ at common law are, but to many separate facts,
from which, taken together, the fraud, if any, may appear. Such matters,
therefore, being of nice discussion, and of a complicated nature, are not
fit for the decision of a jury, and indeed would take up more time than
they could possibly employ in the examination. The court, therefore, go
upon _depositions_, and judge both of the law and fact. However, if a
matter of fact, necessary for the decision of the cause, appears on the
deposition doubtful; or if any matter arise which these courts have no
power to try, they direct an issue, wherein the point is tried by jury,
in a court of common law; and thus, these courts have the advantage of
both methods of trial, as well that of the civil, as that used by the
common law; namely the oath of the party, and depositions from one, and
the trial by jury from the other.

This method, however, of trial by deposition, has been objected to, as
productive of enormous expence and delays; and it cannot be denied, that,
as affairs are now conducted, there is too much reason for the objection.
Yet to this it may be answered, that if examiners were more careful, and
would set down nothing but what is evidence, and were the rules of court,
to cut off delays, always strictly inforced, the damage arising from both
these heads would be considerably lessened. To cut off all delays, and
to reduce the proceedings to as summary a method as that of the courts
of common law would, (considering the matters they are conversant about
are of different proof, and require the most acute examination) instead
of preventing frauds in most instances, by a hurried manner of trial,
serve to defend and encourage them. The policy of the common law was to
reduce the matter in question to a single fact, which the jury might,
with ease and convenience, determine within a convenient time. And it
must be owned that the lawyers and judges of latter days, by admitting
the trial of titles to lands in personal actions, have deviated much from
the simplicity of the law, and weakened the excellence of the trial by
jury. The present practice, of determining the title to land by an action
of trespass, will serve as an instance; where the enquiry is, whether
a man’s entering upon lands was a trespass or not; if he had right to
enter in, it was no trespass; if he had not, it was otherwise. Now,
as the right may depend upon twenty different matters of fact, beside
matters of law, all which must be settled and weighed, before the bare
question of trespass can be determined, it is easy to see to what lengths
trial by juries may be now spun; to how short a time the examination of
the most material points must be confined; how imperfect, consequently,
the examination must often be; to say nothing of the danger of a jury’s
erring when both body and mind is wearied out with long attendance, and
the attention consequently enfeebled.

If it be asked, how came this deviation, which has been attended with so
many inconveniencies? The true answer is the best, that it sprung from
the advantage of practitioners, and the litigiousness of suitors. By the
common law, no man could bring two actions of the same nature for the
same thing. If I am entitled to the possession of lands, I may bring
my _writ of entry_, or an _assize_, to recover it; but if I am foiled,
I cannot bring a second. So, if I am entitled to the propriety of the
land, I may bring my writ of right, and if I recover not therein, my
right is gone for ever. The litigiousness of suitors, who had a mind to
gain a method of trying the same thing over and over again, where they
miscarried, introduced this method I am speaking of. For every new entry
was a new trespass, and could not be said to have been tried before;
though whether it was a trespass or not, depends on what had been tried
before, and the avarice of practitioners, who desired frequent suits,
encouraged it. But when once it was allowed, notwithstanding all the
complaints of Coke and his co-temporary judges, it became universally
followed, and is now so established, and the higher actions so much out
of use, that I question whether there is a lawyer living who would be
able, without a great deal of study, to conduct a cause in one of those
antiquated real actions. The inconveniencies of these frequent trials
introduced, for the obviating them, a new practice, the applying to the
court of chancery, after two or more verdicts consonant to one another,
for an injunction to stop farther proceedings at law; which, though a
new, was become a necessary curb, after the common law-courts had allowed
the former method.

Besides these courts already mentioned, there are many other
judicatories, which, by particular acts of parliament, have particular
matters entrusted to their determination, without the intervention of
juries; as the several matters determinable summarily by one or more
justices of the peace; the affairs of the revenue by the commissioners;
and suits by civil bills for limited sums by judges of assize; though in
these last the presiding judge may, and ought, in matters of difficulty,
to call a jury to his assistance; and it must be owned in this poor
country the alteration of the law in this last particular, has been
attended with very good consequences. The expediency of the two former
changes, indeed, has been much disputed; but that being a question of
_politicks_, not of law, I shall not enter into it.

Thus much I have observed, in a summary way, concerning the several
methods of trial, differing from that _per pares_, which are authorised
by these words of _Magna Charta, per legem terræ_.

I shall next proceed to the point of the _personal liberty of the
subject_; but as it will be proper to take all that together, in one
view, I shall here conclude the present Lecture.




LECTURE XLI.

    _Continuation of the commentary on Magna Charta._


Having explained the import of the words _per legale judicium parium
suorum, vel per legem terræ_, which refer to, and qualify all the
preceeding parts, it will be proper to mention those preceeding
articles, and to make some observations upon them. They then consist of
six different heads. The first relates to the personal liberty of the
subject; the second to the preservation of his landed property; the third
is intended to defend him from unjust outlawry; the fourth to prevent
unjust banishment; the fifth prohibits all manner of destruction; and the
design of the sixth is to regulate criminal prosecutions at the suit of
the king. I shall briefly treat of all these particulars in the order in
which they stand.

The first clause tending to secure personal liberty, runs in these words;
_Nullus liber homo capiatur vel imprisonetur_. _Liber homo_, as I before
observed, here extends to all the subjects, and is not to be taken in
its more restrained sense, of a freeholder. We see the words are not
barely against wrongful imprisonment, but extend to arresting, or taking,
_nullus capiatur_. This act extends not only to prevent private persons,
particularly the great men, from arresting and imprisoning the subjects,
but extends also to those from whom, on account of their extraordinary
power, the greatest danger might be apprehended, I mean the king’s
ministerial officers, his council, nay himself, acting in person. “No
man,” (says my Lord Coke, commenting on this point,) “shall be taken,
that is restrained of liberty, by petition or suggestion to the king,
or his council; unless it be by indictment, or presentment of good and
lawful men, where such deeds be done.” For in that case it is _per legale
judicium parium_; though an indictment found, or a presentment made by
a grand jury, in one sense, cannot properly be called _judicium_, as it
is not conclusive; but the fact must be after tried by a petty jury;
yet for the purpose of restraining and securing a person accused upon
record, that he may be forthcoming on his trial, it is _judicium parium_.
Otherwise the most flagrant offenders might escape being tried and
convicted[404].

In the fifteenth chapter of Westminster the first, enacted in the third
year of Edward the First, and ordained to ascertain for what offences a
man might be detained in prison, and to make effectual provision for the
bailing out persons upon their giving security to abide a trial, those
accused of the slighter offences, persons detained _per maundement de
roy_ by the command of the king, are mentioned as not bailable; and this
may seem to contradict the law I have now laid down. Yet, when rightly
understood, it doth not. For as judge Gascoigne rightly said, the king
hath committed all his power judicial to divers courts, some to one,
some to another; and it is a rule in the construction of statutes, that
when any judicial act is referred to the king, it is to be understood
to be done in some court of justice, according to law. The command of
the king, therefore, doth not mean the king’s private will, but a legal
command, issued in his name, by his judges, to whom his judicial power is
intrusted. Accordingly, Sir John Markham, chief justice, told Edward the
Fourth, that the king could not arrest any man for suspicion of treason,
or felony, as any of his subjects might; and he gave a most excellent
reason for it: Because, says he, if the king did wrong, the party could
not have his action. In the sixteenth of Henry the Sixth, it was resolved
by the whole court, That if the king command me to arrest a man, and I do
arrest him, he shall have his action of false imprisonment against me,
although I did it in the king’s presence.

The maxim, then, is, that no man shall be taken and committed to prison,
but by _judicium parium, vel per legem terræ_, that is, by due process
of law. Now to understand this, it is necessary to see in what cases a
man may be taken before presentment or indictment by a jury; and in the
enquiry it is to be considered, that process of law, for this purpose,
is two-fold, either by the king’s writ, to bring him into a court of
justice, to _answer_, or by what is called _a warrant in law_. And this
is, again, two-fold, _indeed_, by the authority of a legal magistrate,
as a Justice of Peace’s _mittimus_, or that which each private person is
invested with, and may exercise.

First then, for making a _mittimus_ a good warrant, it is previously
necessary, that there should be an information on oath, before a
magistrate having lawful authority, that the party hath committed an
offence; or at least of some positive fact, that carries with it a strong
and violent presumption that he hath so done: Next, then, the _mittimus_
must contain the offence in certain, that it may appear whether the
offence charged is such an one as justifies the taking; whether it is
bailable, or such as the law requires the detention in prison. A warrant
without the cause expressed, is a void one, and imprisonment on it
illegal, and so it was adjudged in Charles the First’s reign, though done
by the secretaries of state, by the king’s authority, with the advice of
his council; thirdly, the warrant must not only contain a lawful cause,
but have a legal conclusion, _and him safely to keep until delivered by
law_; not until the party committing doth farther order, for that would
be to make the magistrate, who is only _ministerial_, _judicial_, as to
the point of the liberty of the subject; from whence might redound great
mischief to the party on one hand, or to the king and public on the
other, by letting an offender escape.

Let us see how far the law warrants a private person to take another,
and commit him to prison. First, then, if a man is present when another
commits treason, felony, or notorious breach of the peace, he hath a
right instantly to arrest and commit him, lest he should escape if any
affray be made, to the breach of the peace, any man present may, during
the continuance of the affray, by a warrant in law, in order to prevent
imminent mischief, restrain any of the offenders; but if the affray is
over, so that the danger is perfectly past, there is a necessity of
an information, and an express warrant; so, if one man wounds another
dangerously, any person may arrest him, that he be safely kept, until it
be known whether the party wounded shall die or not. Suspicion, also,
where it is violent and strong, is, in many cases, a good cause of
imprisonment. Suppose a felony done, and the hue and cry of the country
is raised, to pursue and take the offender, any man may arrest another
whom he finds flying; for what greater presumption of guilt can there
be, than for a person, instead of joining the hue and cry as his duty
prompts him, to fly from it? His good character or his innocence, how
clear it may after appear, shall not avail him. His imprisonment is
lawful.

Another lawful cause of arresting and imprisoning upon suspicion is, if
a treason or felony is certainly done; and though there is no certain
evidence against any person as the perpetrator, yet if the public voice
and fame is, that A is guilty, it is lawful for any man to arrest and
detain him. So, if a treason or felony be done, and though there be no
public fame, any one that suspects another for the author of the fact may
arrest him. But let him that so doth, take care his cause of suspicion
will be such as will bear the test; for otherwise he may be punishable
for false imprisonment. The frequent keeping company with a notorious
thief, that is, one that had been convicted, or outlawed, or proclaimed
as such, was a good cause of imprisonment. Lastly, a watchman may arrest
a night-walker at unseasonable hours by the common law, however peaceably
he might demean himself; for strolling at unusual hours was a just
cause of suspicion of an ill intent. With respect to persons arrested
by private authority, I must observe, that the law of England so abhors
imprisonment, without a certain cause shewn, that if there is not an
information on oath sworn before a magistrate, and his commitment thereon
in a competent time, which is esteemed twenty-four hours, the person is
no longer to be detained[405].

Such is the law of England with respect to the personal liberty of the
subject. Let us now see the remedies the law provides for those that
suffer by its being infringed: the writ of _odio & atia_ I have already
mentioned, and that it is long since out of use: the most usual way then
to remedy this, and to deliver the party, is the writ of _habeas corpus_,
in obedience to which, the person imprisoned is brought into court by the
sheriff, who is the keeper of the prison, together with the cause of his
caption and detention, that the court may judge whether the first taking
was lawful; and if it was, whether the continuance of the imprisonment is
such; and this is brought in the name of the party himself imprisoned.

The next is the writ _de homine replegiando_, of replevying a man, that
is, delivering him out upon security, to answer what may be objected
against him. This is most commonly used when a person is not in the
legal prison, but perhaps carried off by private violence, and secreted
from his friends, and therefore may be brought by a near friend having
interest in the person’s liberty, as by a father, or mother, for their
child, or a husband for his wife. These are the remedies for restoring a
person unjustly deprived of liberty, to the enjoyment of that invaluable
blessing. But very deficient would these remedies be, if there were no
provisions made for the punishment of a person offending against his
natural right, nor any relief for the person unjustly aggrieved.

For the point of punishment, an indictment will lie at the king’s
suit, against the false imprisoner, grounded on this statute, for the
vindication of the public justice of the nation; and the party, if found
guilty, shall be punished by fine and imprisonment. For the relief of the
person injured, he may have an action of false imprisonment, wherein he
shall recover damages; or an action on the case grounded on this statute,
wherein he shall have the same remedy. For Coke observes on this statute,
that it is a general rule, where an act of parliament is made against any
public mischief or grievance, there is either given expressly, or else
implied by the law, an action to the party injured.

Such is the antient original law of England with respect to liberty;
and so different from that of other nations of Europe, at least, as
their laws are understood and practised at present, where a man may be
imprisoned without knowing his crime or accuser, or having any means,
except of humble petition, to be brought to his trial. It is therefore no
wonder that the people on the continent envy much the situation of the
subjects of these islands, when they contemplate their own.

The next branch of the statute is, _Nullus liber homo disseizetur de
libero tenemento suo, vel libertatibus, vel liberis consuetudinibus
suis_. Here it may be thought the word _liber homo_ should be restrained
to freeholders, because none others can be disseized; but the following
words, _libertatibus_ and _consuetudinibus_, lead, by their import, to
a more enlarged construction, and take in all the subjects; so that
_disseizetur_ must not be taken in its limited peculiar sense, but
rather in general for _deprivetur_. First, then, no freeholder shall be
disseized of his freehold, but by verdict of a jury, or by the law of
the land, as upon default, not pleading, or being outlawed. It was made
to prevent wrongful entries, by such as had right or pretended right to
the land, in order to avoid breaches of the peace and bloodshed, which
often ensued thereon; but it was not intended to take away the entry of
a person who had a right to enter given him by law, for that the law
could never construe a _disseizen_, which is a wrongful diverting of the
freehold.

To understand this, it is necessary to observe, that a man may have right
to the lands, and yet no right to enter upon them; or he may have both;
and in the last case it is no disseizen. If A disseizes B, he shall
never, by his own wrongful act, deprive B of the right of possession; but
he may of his own authority enter at any time, during A’s life, provided
he doth it without breach of the peace. But if A is dead, now the lands
being thrown by the law upon A’s heir, who had no hand in the wrong, and
who is answerable to the Lord Paramount for the services due from the
land, B has, by his own negligence, in not entring, or if he could not
enter, claiming, during A’s life, lost the right of possession; it is
transferred to A’s heir, and B must recover his right by a suit at law.

To see what is meant by _libertatibus_. It comprehendeth, in the first
place, the laws of the realm, that every man should freely enjoy such
advantages and privileges as these laws give him. Secondly, it signifies
the privileges that some of the subjects, whether single persons, or
bodies corporate, have above others, by the lawful grant of the king;
as the chattels of felons or outlaws, and the lands and privileges
of corporations. Hence any grant of the king, by letters patent to
any person, which deprives another subject of his natural right and
free liberties, is against this branch of _Magna Charta_, as are all
monopolies, which were so plentifully and so oppressively granted in the
reigns of Elizabeth and James the First, and here in Ireland, in that
of Charles the First. We must, however, except such monopolies as are
erected by act of parliament, or by the king’s patents, pursuing the
directions of an act made for that purpose[406].

Lastly, _Consuetudinibus_ takes in and preserves those local customs
in many parts of England, which, though they derogate from the common
law, are yet countenanced and acknowledged as part of the general system
of law. It also extends to any privileges which a subject claims by
prescription, as wreck, waif, stray, and the like[407].

The next clause is, _aut utlagetur_; of which having spoken already, I
shall pass on to the fourth, _aut exuletur_. No man shall be banished
out of the realm, _nisi per legem terræ_; for the _judicium parium_ is
out of this clause, there being no crime of which a man is convicted,
whose sentence is banishment. The _transportation_ now commonly used
for slighter felonies is not like it; for that is by the free consent
of the criminal, who desires to commute a heavier punishment for a
slighter. Now _per legem terræ_ a man may be exiled two ways, either by
act of parliament, as some wicked minions of our former kings were, and
particularly Richard the Second’s corrupt judges into Ireland; or by a
man’s abjuring the realm when accused of felony, that is, swearing to
depart out of the kingdom, never to return; which latter is long since
fallen into disuse. Coke says, that the king cannot send any subject
against his will to serve him out of the realm, and the reason is strong;
for if he could under pretence of service, he might tear him from his
family and country, and transport him to the remotest corner of the
earth, there to remain during the whole of his life[408]. But what shall
we say as to the military tenants, who by the very tenure of their grants
were obliged to serve the king in his wars out of the realm? Certainly,
whilst the feudal system retained its pristine vigour, and personal
service was required, they were an exception to this rule; but when
the commutation of _escuage_ was established, they were considered as
under it. Indeed their general readiness to attend their king’s service
in person, gave no occasion for this question’s ever being decided.
The famous case on this point was in Edward the Third’s reign; that
prince had made many grants to Sir Richard Pembrige, some for _servitio
impenso_, others for _servitio impendendo_. The king commanded him to
serve in Ireland, as his Lord-deputy, which he positively refused to do,
looking upon the appointment as no better than an exile; and for this
refusal the king seized all that had been granted to him _pro servitio
impendendo_; and the question came on in court, whether the seizure
was lawful. The judges clearly held the refusal lawful, and therefore
would not commit him to prison; but as to the seizure, in consequence
of the words _pro servitio impendendo_, without specifying where, they
thought it justified. But Coke says, “it seemeth to me that the seizure
was unlawful.” For _pro servitio impenso_, and _impendendo_, must be
intended of lawful service within the realm. The last time this act was
violated was in the reign of the misguided James the First, in the case
of the unfortunate Sir Thomas Overbury; who for refusing to go ambassador
to Muscovy, was by that prince sent to the Tower, in which place he
was afterwards barbarously poisoned; and for his murder the favourite
Somerset and his countess were both condemned to die[409].




LECTURE XLII

    _Continuation of the commentary on Magna Charta._


The fifth branch of this statute is in very general terms; it is, _aut
aliquo modo destruatur_. “_Destruction_” is a word of very general
import. Coke, in the first place, explains it by saying, “no man shall
be fore-judged of life or limb, or put to the torture or death, without
legal trial.” But he shews, afterwards, by his instances, that it is much
more extensive: For he observes, that “when _any thing_ is prohibited,
_every thing_ is prohibited which necessarily leads to it.” Every
thing, therefore, openly and visibly tending to a man’s destruction,
either as to life, limb, or the capacity of sustaining life, is hereby
directly forbid: So that, _torture_, as it endangers life and limbs, and
may prevent a man from earning his livelihood, is, on all these three
accounts, unlawful, though common among all other nations of Europe, who
have borrowed it from the old Roman law with respect to slaves; a plain
indication in what light the introducers of it looked on their subjects.
It cannot be said that this hath never been violated in England in
arbitrary times; (as what nation is there, whose fundamental laws have
not been, on occasion, violated?) yet, in five hundred years, I do not
believe the English history can afford ten instances[410].

For the same reason, “judging a man, either in a civil or criminal cause,
without calling him to answer and make his defence,” is against this
provision. So likewise is “the not producing the witnesses, that the
party may have an opportunity to cross-examine them,” I believe, if they
may be had. For in the case of death, or absence in a foreign country,
that they cannot be produced, there is an exception, for very necessity’s
sake; and in that case, the examination of such person, taken before a
proper magistrate, is good evidence, tho’ thereby the party loses the
cross-examination or information against the murderer. But whenever this
happens, the jury should consider that the party has lost the benefit
of the cross-examination, and have that in their contemplation, when
they are preparing to give their verdict. Directly contrary to this
fundamental law, and to common justice, was the trial of Sir Walter
Raleigh, conduced by Coke, attorney-general, upon the depositions of
people who might be brought face to face. For, notwithstanding the
perfect knowledge of that great lawyer in the laws of England, he was a
most time-serving minister of the crown. The people of these nations are
much indebted to him for his excellent writings on the law, and more for
demonstrating the antient right of the people of England to the liberties
they claimed: But, if we consider that he was then in disgrace at court,
I fear this panegyric must be confined to his behaviour while a judge,
which was without reproach; nor did he hesitate to forfeit the favour of
the crown, by opposing incroachments on the law of England.

As _tending to destruction_; it is likewise unlawful to amerce or fine
a man convicted of a crime, beyond what he has a possibility of paying;
for that would tend to perpetual imprisonment, and disabling him from
maintaining himself and family. Neither is it lawful, tho’ a man be
indicted of treason or felony, for the king to grant, or even to promise,
the forfeiture of his lands or goods; for this would be throwing a
temptation in the way of others to suborn witnesses to his destruction.
These I mention, only as particular instances, to open the import of this
law; but the words are, _aliquo modo destruatur_, taking in “every thing
that directly tends to destruction.” And it must be observed that these
words, _aliquo modo_, are not in any other branch of this act.

I come now to the last clause of this first part, _nec super eum ibimus,
nec super eum mittemus, nisi per legale judicium parium suorum, aut per
legem terræ_. I observed before, from the words here being in the first
person, that they refer to the suit of the king; and they relate not
only, by the latter words, to a legal trial, as to matter and form, but
also to a trial in a proper and legal court. The words _nec super eum
ibimus_ belong to the King’s Bench, where the suits of the king, the
_placita coronæ_, are properly handled, and where the king is always
supposed to be present. The words _super cum mittemus_ refer to other
courts sitting for the same purposes, as Justice of gaol-delivery, for
instance, under the king’s commission. But when those words are coupled
with the following ones, _per legem terræ_, they carry a farther import;
not only that the courts, trying the king’s causes should proceed
according to the law of the land, but that the courts themselves should
be such as the _lex terræ_ authorizes; that is, either the common law,
from time immemorial, or acts of parliament. So that the king hath no
power, of his own authority, to form new criminal courts, as he may civil
ones. In some cases, he appoints, indeed, the judges of the courts of
common law, and issues commissions, and appoints the commissioners in
criminal courts authorized by parliament; but no farther doth his power
extend.

To this it may be objected, that the king may create a county palatine,
and consequently new criminal courts; but let this be considered:
Counties, and duchies, such as we call _palatine_, were, I may say,
indeed of the essence of a feudal kingdom, as ours originally was; that
is, the king might dismember a part of his kingdom from the immediate
subjection to the crown, transfer a subordinate degree of the legal
rights to a subject; and when a county of that kind was created, without
saying any more, all the courts, not new ones, but the same that were
at common law through the whole kingdom, followed as incidents; in
the same manner as by erecting a new county, not palatine, it had its
county-court, and the sheriff’s tourne. These are not erecting, properly
speaking, new courts, so much as bringing the old ones home to the doors
of the people of that district.

As I observed at the beginning, this law naturally divides itself into
two parts, the first ending at the words _per legem terræ_. Having made
such observations as have occurred to me as necessary or material for
the understanding thereof, I now proceed to the latter part of this
statute, which runs in these words: _Nulli vendemus, nulli negabimus,
aut deferemus justitiam, vel rectum_. Some have imagined that, by these
words, in the disjunctive, are meant common law and equity; but courts
of equity, and proceedings in cases of equity in those courts, were
not known in times so early; and the legal signification of _rectum_
in old statutes, and law-books, is either the right that a man hath to
a thing, or the law of the land, the means of attaining the possession
and enjoyment of that right; and in that sense it is here to be taken;
as Coke says, _justice_ is the end, _rectum_ the means, namely, due
process of law; neither of which is to be sold, denied, or delayed to the
subject. In order to understand this, it will be necessary to point out
some of the mischiefs that were before this act, which is the surest way
to expound the meaning of any law[411].

For this purpose it is to be remembered, that, in the Saxon times, almost
all suits, except between grandees, were expedited in the county-courts.
I have observed before, that the Conqueror and his successors discouraged
these, and encouraged suits in the _Aula Regis_, or king’s courts; and
that the subjects were fond of suing there; but still it was a matter of
favour, where the cause properly belonged to the country jurisdictions,
and could not be demanded as a right. As a matter of favour, it might
be denied by the king, or his chancellor, who was the issuer of the
original writs, unless a sum of money was paid, such as they demanded.
This was _selling_ justice. Or, if the person to be sued was a favourite
of the king, or chancellor, the writ might be denied; this was _denying_
justice. Or, if it was granted, as the proceedings were _ex gratia_,
the party might, _ad libitum_, be delayed by the judges, or the cause
might be stopped by order of the king, and this was the _deferring_ of
justice, meant by this act, which was intended for the giving every
subject a right, in all cases, and against all persons, to have justice
administered to him in the king’s courts. The chancellor now is hereby
obliged instantly to issue all original writs, and the judges of the
several courts, where causes depend, to issue the proper judicial ones
without fee or reward. This, however, is not so to be understood, as to
prohibit the moderate and accustomed fees, which, from time immemorial,
have been paid to the officer, for his trouble in making them out,
or to the judge, for putting the seal; for these are a part of their
livelihood, but only those arbitrary sums which were before taken, and
which the state properly calls the _selling_ of justice. So likewise
the judges are obliged, in every cause before them, to proceed with
expedition, and to suffer no delays, but such as the law allows, and
requires, for giving each party an opportunity of defence, and of laying
his cause fully before the court.

However, notwithstanding this act, the evil was often repeated, and many
suits stopped by the command of the king, and others, as appears by four
several acts of parliament, made to enforce and explain this one, the
substance of which acts, is summoned by Coke in these words: That “by
no means common right, or common law, should be disturbed or delayed;
no, though it be by command, and under the great seal, or privy seal,
order, writ, letters, message, or commandment whatsoever, either from the
king, or any other; and that the justices shall proceed, as if no such
writs, letters, order, message, or other commandment, were come to them.”
However, this is not to be understood so strictly, but that the king may
stop his own civil suit that he hath instituted for his own benefit, as
a _capias_ for a fine, because _quisque juri suo renunciare potest_;
and this stoppage, in truth, is for the benefit of the subject. It is
otherwise in criminal accusations, unless he can shew good cause to the
court to put it off. For every man accused has a right to be brought to
his trial[412].

Neither are legal protections within the prohibition of this law; these
were granted to stop suits against any man that was personally employed
in the service of the king, and were founded on this presumption, that
such service was for the public benefit, to which all private regards
must give way. But then these protections, must be legal ones, such,
and none other, as are found in the Register, the antientest book of
the law, and not ones newly devised, and for new-fangled causes. These
protections, however, were greatly abused in the sequel; favourites,
and their dependants, frequently obtaining them, to hinder others of
their just rights, under pretence of serving the king; where in truth,
there was no such thing. It is therefore recorded, highly to the honour
of Elizabeth, that she first discontinued the granting them; and her
laudable example has been followed by all her successors. I shall,
therefore, not dwell upon them, it being sufficient to have mentioned
that such things there are, or at least _were_ in our law.

I hope the prolixity with which I have treated of _this_ chapter of
_Magna Charta_, the care I have taken to open the true meaning and force
of every word in it, and the many tacit exceptions each part of it is
subject to, will be excused, when it is considered, that it not only
contains great variety of matter, but is the most important, and of
more general consequence and concern, than any other law of the land.
It is the guardian of the life, the liberty, the limbs, the livelihood,
the possessions, and to the right to justice of every individual, and
therefore it concerns every man to know it, and fully to understand it.

The thirtieth chapter is in favour of commerce and merchant strangers.
Certain it is, that, in antient times, the kings of Europe, and their
military subjects, looked on merchandize as a dishonourable profession;
as did the Romans also, in the military ages of that republic. By the
old laws of England, no merchants alien were to frequent England, except
at the four great fairs; and then were permitted to stay but forty days
at a time, that is, an hundred and sixty days in the whole year. But now
this act has altered the former law, and is very favourable to persons
engaged in commerce, who before were little better than at sufferance. It
commands, that all merchants, namely, merchant strangers, whose sovereign
is in amity with the king, unless publicly prohibited, that is, says
Coke, by Parliament, which is true, as the law hath since stood, (but
before, I conceive the king himself had the power to prohibit) shall
have safe and sure conduct in seven things. First, to depart out of
England without licence, at their will and pleasure. Secondly, to come
into England in the same manner. Thirdly, to continue in England without
limit of time. Fourthly, to go and travel through any part of England at
their pleasure, by land or water. Fifthly, free liberty to buy and sell.
Sixthly, without any manner of evil, tolls or taxes; but only, Seventhly,
by the old and rightful customs, that is, by such duties as were of old
time accustomed to be paid, and are therefore called _Customs_. By this
law the king is prohibited from laying any new taxes on the imports or
exports of merchant strangers. And as now they gained a general licence
to continue in the realm, from hence arose that privilege of merchant
strangers to take leases for years, of houses for their dwelling, and
warehouses for their goods, which they continued in England; for,
regularly, all acquisitions of aliens, in lands or tenements, belong to
the king[413].

The second branch of this act is a very equitable one. It concerns
merchant enemies, or rather such merchant strangers as came in friends,
and afterwards became enemies, by a war’s breaking out between the
sovereigns while they are in England. It provides that, on a war’s
so breaking out, the persons and effects of such merchants should be
seized, and safely kept till it should be known how the English merchants
had been treated in the enemy’s country; and that, if they were well
treated, these should be so too. This regulation, however, is not put
in use; because, by the treaties made between the sovereigns of Europe,
it is stipulated, that, on the breaking out of war, the merchants in
each others country should have a certain number of days to withdraw
themselves and their effects. But if a merchant enemy comes into the
country, after war declared, he is to be treated as an enemy; to which,
by the old law, now antiquated, there was a very humane exception, that
of persons driven into England by stress of weather.




LECTURE XLIII.

    _Continuation of the commentary on Magna Charta._


As I have dwelt on the twenty-ninth chapter of _Magna Charta_ so long,
and treated of it and every part of it so minutely, I shall, in this
lecture, dispatch the remaining part thereof with more expedition.
Indeed, of the thirty-first I would have said no more, than merely to
observe, that it related to the military tenures now abolished, were it
not proper to remark, that it was made to enforce the old feudal law,
then the law of England, with respect to landed estates, and to restrain
John’s successors from the violences he had introduced in favour of the
royal prerogative, to the detriment of the immunities and privileges of
the subjects. It has been already observed in these lectures, that by the
feudal law, especially as established by the Conqueror in England, the
king was very amply provided for with a landed estate, to support his
dignity and expences, which was at that time looked on all over Europe
as unalienable, except during the life of the king in being; and that
the rest of the land was to be the property of the free subjects of the
realm, subject to the services imposed, and the other consequences of his
seignory as feudal lord.

One of these consequences was the escheat on the failure of heirs, either
by there being none, or by the blood being corrupted by the commission
of felony, which in law amounted to the same thing; as no son, uncle,
nephew, or cousin, could by law claim as heir by descent to a person
attainted. For the legal blood, the title to the inheritance, failed in
him the last possessor, by his breach of fealty; and every heir lineal or
collateral by the law of England being obliged to claim as heir to the
person last seized, must be excluded, when the legal blood inheritable
failed in the last possessor.

In consequence of these escheats, which often happened in those times,
both by corruption of blood, and failure of heirs inheritable, (for,
as I have observed before, the granting _feuda antiqua ut nova_ was
introduced only by Henry the Second, the father of John, and were not at
this time become universal, as they since have been) John introduced this
new maxim, that when an earldom or barony fell to the crown by escheat,
he held it in the right of his crown, as it was originally derived from
thence; and consequently, that the tenants of the former lord, being
now, instead of _intermediate_, become _immediate_ tenants of the crown,
held of him _in capite_, as it was called; that is, that he, by this
escheat, obtained privileges over the tenants of the former lord, which
he, the former lord, never had, or could have, but which he claimed as
king, _in jure coronæ_. These privileges were many in number; but it will
be sufficient to mention only two of them, to shew into how much worse
a state the tenants of these escheated lordships were thrown, by being
considered as tenants _in capite_.

First, then, the king had from his tenants _in capite_, who came into
possession of their lands at full age, instead of _relief_, to which
subject lords were intitled, and which was only one fourth of the
value of the lands, his _primeir seizin_, which was the whole year’s
value. Another grievance was with respect to the wardship of military
tenants under age. As to the tenants _in capite_, the king had, by his
prerogative, a right not only to the wardship of the person of his minor
tenant, and of the lands he held of him _in capite_, but also of all
other lands held by knight-service of any other person. For as to socage
lands, they were to be in the hands of the next of kin, to whom the
inheritance could not descend, who, at the infant’s full age, was to be
accountable for the profits: and under the pretence of such tenants, upon
the superior lord’s escheat, becoming tenants _in capite_, John claimed
and exacted the privilege, to the detriment of the other lords. These
and other mischiefs, for others there were, as I observed before, and
some of them are mentioned in this statute, are remedied by the general
provision which restored the feudal law, that the king should hold all
such escheated lordships in the same right they were before held, and
have no other privilege, but what the lord by whose escheat they fell to
him had: in a word, that he should hold them as lord of that lordship,
not as king[414].

The thirty-second chapter relates to the alienation of lands, and gives
a qualified power of that kind. By the feudal law, as it was introduced
at the Conquest, no lord could alien his seignory without the tenants
consent, so neither could the tenant his tenancy, without approbation
of the lord. These strict rules were first broken into, in those
superstitious times, in favour of churchmen; afterwards, in Richard the
First’s time, to raise money for the holy war. Not but the subjects, by
their insisting on Edward the Confessor’s laws, of which free alienation
was a part, seemed to be fond of it. However, the kings, in all their
grants of the old English laws, were careful to preserve the feudal
system, in guarding against the alienation of the military tenures. Coke,
on commenting in this statute, in order to the better understanding
thereof, makes three observations relative to what was the common law
before this statute; in the last of which I apprehend he is mistaken, as
the law then stood; and that what he asserts therein to have been law did
not become (so though often in practice) till after the statute _quia
emptores terrarum_, in Edward the First’s reign.

His first observation is, that the tenant might have made a feoffment of
the whole, or a part of his tenancy, to hold _of himself_; and no doubt
but he might. This was the usual case of subinfudation, by which the
lord was in no sort prejudiced; for his seignory remained entire, and he
might distrain in any part for his whole service; and in such case, if
the under tenant was aggrieved, he was to have his remedy against his
immediate landlord the _mesne_, (or middle person), as he is called in
our law.

The second observation is, that the tenant could not alien in fee _apart_
of the tenancy, to hold, not of himself, but of the lord, than which
nothing could be more reasonable; for it would have been against these
old rules also, for a tenant to bring in another, as immediate vassal to
the lord, without his the lord’s consent. The tenant would by that means
dismember the seignory, which he received, entire, and so deprive the
lord of his right of distraining in the whole, and confine him merely to
that part remaining in his own hands, as original tenant. For as to the
part of the _allienee_, he could not distrain that for his service, there
having been no feudal contract between them. Such alienation, therefore,
unless when the lord accepted the _allienee_ as a tenant, was a breach of
fealty, and against the old feudal principles, and consequently unlawful
in England.

The third observation Coke makes on this statute, is, that by the common
law the tenant might have made a feoffment of the whole tenancy, to be
holden of the lord. For, says he, that was no prejudice at all to the
lord[415]. But though this certainly prevailed as common law, long before
either Coke or Littleton wrote, I cannot help thinking, both because
it was contrary to the old feudal law, and also from the words of the
statute _quia emptores terrarum_, that it was first introduced by that
act of parliament, the words of which are, _de cætero liceat unicuique
libero homini terras suas, seu tenementa sua vel partem, inde vendere_.
Here the alienating the whole is declared from henceforth lawful; which
words had been nugatory, if this had been common law before.

The chapter of _Magna Charta_ of which we are speaking, was, then, the
first positive law that allowed the free alienation of lands. It, in one
sense, enlarged, whilst in another it expressly restrained, the power
of the tenant; whereas, before, he might alien the whole, or part of
his tenancy in fee, but subject to the distress of the lord. Now, by
this statute, he was confined to an alienation only for so much, that,
out of what remained, the lord might have sufficient distress for his
entire service, and the part conveyed was in the _alienee_’s hands, free
from any future distress by the lord, or service due to him, fealty
only excepted. But it not being specified, how much of the land was
a sufficiency, though the half, or what was the half in value, was,
in common estimation, reputed such, the tenants, under this pretence,
would alien more; which gave occasion to many disputes and suits, and
the propensity to general alienations continuing, the law called _quia
emptores terrarum_, already mentioned, was at length made, which gave
a general licence to alien the whole, or a part at pleasure, to hold
of the superior lord; and this put an end, in the law of England, to
subinfudation of fee simples. For, since the passing that law, if a man
infeoffs another of the whole or part of his land, there is no tenure
between the feoffer and feoffee, but the feoffee holds of the feoffer’s
lord. But as to lower estates, as fee tail estates for life, years, or at
will, subinfudation remains; because the whole estate is not out of the
donor, or lessor, but a reversion remains in him; wherefore the tenure,
in such case, is of the donor or lessor.

By the statute of _Magna Charta_, in case of alienation of part, to hold
of the lord, the residue remaining in the original tenant’s hands, was
to answer the services, and the _alienee_ held of the lord, by fealty
only. But now by the second chapter of the forementioned statute, the
services were to be apportioned, that is, divided in proportion to the
value of the lands. If half of the lands, not in _extent_, but _value_,
was aliened, the _alienee_ paid half: if one third, the like quantity.
I have observed before, on this statute of _quia emptores_, that the
king, not being named, was not bound by it. For his tenant _in capite_
to alien without licence was a forfeiture, until, in the reign of Edward
the Third, a fine for alienating was substituted in the place of the
forfeiture, which fine continued until the restoration, when it was
abolished.

The thirty-third chapter provides, that the patrons, that is, the heirs
of the founders of abbeys, who, by title under the king’s letters patent,
or by tenure, or antient possession, were intitled to the custody of
temporalities, during the vacancy of the abbey, should enjoy them free
from molestation of any person, or of the king, under the pretence of the
prerogative[416].

The thirty-fourth chapter is relative to appeals of murder, brought
by private persons. When a man is murdered, not only the king, who is
injured by the loss of a subject, may prosecute the offender, but also
the party principally injured, that is, the widow of the deceased, if he
had one; for she, as having one person with him, stands intitled to this
remedy in the first place; but if he left no widow, his heir at law might
pursue it. It follows, therefore, that a female heir might, by the common
law, have brought an appeal of murder, as the daughter, or the sister, if
there had been neither children or brother. But this statute alters the
common law, and takes away the appeal, in such case, from every woman,
except the widow; so that, at this day, if a man be murdered, leaving
no widow, and his next heir be a female, no appeal of murder can be
brought. But this disability is personal to women; for though a daughter
or sister, living, can bring no appeal, though heir, yet, if they be dead
before the murder, leaving a son who is heir, he may bring it[417].

I shall now make a few observations on the right of the widow’s bringing
such appeal. First, then, the man slain must be _vir suus_, as the
statute expresses it. If, therefore, they had been divorced, the marriage
being dissolved, she could not have an appeal. It was otherwise, if they
had been only separated _a mensâ & thoro_; for then he still continued
her husband. He ceases likewise to be _vir suus_, if she ceases to be his
wife, or widow. Therefore, by her marrying again, her appeal is gone,
even though the second husband should die within the year, the time
limited for bringing it. This is carried so far, that though she brings
an appeal while a widow, yet if she marries while it is depending, it
shall abate for ever. So if she has obtained judgment of death against
the _appellee_, if she marries before execution, she can never have
execution against him. In one point the heir is less favoured in appeals
than the widow; for if the person murdered had been attainted of high
treason, or felony, so that his blood was corrupted, the heir could not
have it; for the civil relation between them was extinguished, by the
ancestor’s civil death: but the relation of husband and wife depends on
the law of God, who has declared the bond indissoluble; therefore no law
of man can make him cease to be _vir suus_, and, in such case, she shall
have an appeal.

The thirty-fifth chapter treats of the county-courts[418]; but having
already, in a former lecture, mentioned what appeared to me sufficient
on that subject, I shall proceed to the next, viz. the first law made to
prevent alienations in mortmain. Lands given to a corporation, whether
spiritual or lay, are said to fall into _mortmain_, that is, into a dead
hand, an hand useless and unprofitable to the lord of the fee, from whom
he could never receive the fruits. There could be no escheat, either for
want of heirs, or felony, because the body never died, nor was capable of
committing felony. For the same reason of its never dying, there could
be no wardship, or relief; neither could there be marriage. But besides
the loss to the lords, the public also suffered; for the military service
the lands were subject to, were often withdrawn, or, at least, very
insufficiently performed.

These alienations, without the consent of the superior lord, were
directly against the feudal polity; yet such was the power of the clergy,
who were the principal gainers thereby, in those ages, and so great
their influence, that they were not only tolerated, but universally
practised, through all Europe; for the founding of a monastery was the
usual atonement for the most atrocious crimes. In England, particularly,
from the accession of the Conqueror to that of John, containing one
hundred and thirty-four years, there were no less than an hundred and
four monasteries founded, many of them very richly endowed, besides
particular benefactions made to them and the old ones. No wonder, then,
it was found necessary, by laws, to put a stop to the growing wealth
of the church; but the reign of John, a vassal to the Pope, was not a
time to expect a remedy. Accordingly, this act goes no farther than to
remedy a collusive practice, by which a vassal, to defraud his lord of
the fruits of his seignory, made over his lands to a convent, and took it
back to hold from them; and to that end, the statute declares the land,
in such case, forfeited to the lord.

I shall say no more on this point, nor of the many cunning practices
churchmen, in after times, put in use by the advice of the most learned
lawyers they could procure, in order to creep out of this, and every
other statute made to restrain them, and for employing which, Coke says,
they were much to be commended. But he has forgot to tell us whether he
thought those great lawyers deserved commendation, for finding means
to elude the most beneficial laws of the land. It will be enough here
to say, that, from these devices, arose, in time, the wide-spreading
doctrine of _uses and trusts_, which have over-run our whole law, and
that the judicial powers of courts of equity have grown with them[419].

The next chapter was made to restrain the intolerable exactions of
_escuage_ which John had introduced, and forbids the assessing it, in any
other manner than was used in the time of Henry the Second, his father,
that is, as I observed under that reign, very moderately; so that every
man had his option, whether he would serve in person, or pay it[420].

Next comes the thirty-eighth, which is the conclusion. First, it saves
to the subjects all other rights and privileges before had, though
not mentioned herein. Coke observes, that there is no saving for the
_prerogative of the king_, or his heirs; for that would have rendered all
illusory. Secondly, it ordains that the king and his heirs should observe
it. Thirdly, that all the subjects should. Fourthly, it recites, that,
in consideration hereof, the king received from the subjects a grant
of the fifteenth of their moveables. For _Magna Charta_ is not merely
a declaration of the old laws, but alters them in many instances; for
which favourable alterations the subjects made this grant, and thereby
became purchasers of them. Fifthly, it prohibites the king, and his
heirs, from doing any thing whereby these liberties might be infringed or
weakened; and declares all such doings null and void. Lastly, comes the
alteration of twelve bishops, and nineteen abbots, and thirty-one earls
and barons[421].




FOOTNOTES


[1] Cæsar de bell. Gal. lib. 4. c. 18. Tacit. vit. Agric. Dion Cassius,
vit. Sever.

[2] Bede, lib. 1.

[3] Bede, lib. 3. and 5.

[4] The division of laws, during the Anglo-Saxon period, into
West-Saxon-lage, Mercen-lage and Dane-lage, was not of any importance.
These differed not essentially from one another. “Our Saxons, says Sir
Henry Spelman, though divided into many kingdoms, yet were they all one
in effect, in manners, laws and language: So that the breaking of their
government into many kingdoms, or the reuniting of their kingdoms into
a monarchy, wrought little or no change amongst them touching laws.
For, though we talk of the _West-Saxon-law_, the _Mercian-law_ and the
_Dane-law_, whereby the west parts of _England_, the middle parts, and
those of _Norfolk_, _Suffolk_ and the north, were severally governed;
yet held they all an uniformity in substance, differing rather in their
_mulcts_ than in their _canea_; that is, in the quantity of fines and
amerciaments, than in the course and frame of justice.” _Relig. Spelm._
p. 49.

[5] King Edward’s laws were compiled from those of former princes, and
abolished any little peculiarities which distinguished the West-Saxon,
Mercian and Danish laws, subjecting the whole kingdom to a common law.
His code, accordingly, was termed _lex Angliæ_, or _lex terræ_. No
correct copy of it has descended to us. Those regulations, which pass
under his name in the editions of the Saxon-laws by Lambard and Wilkins,
have evidently some interpolations. Traces of them are to be seen in
Hoveden and Knyghton; and remains of them are likeways to be found in the
laws of William I. From the time of this Prince to that of King John,
they continued, with the addition of some Norman laws and customs, the
law of the land. _Præcipimus_, says William, _ut omnes habeant et teneant
leges Edwardi regis in omnibus rebus, adauctis his quas constituimus
ad utilitatem Anglorum_. _Leg. Guliel. ap._ Wilkins, p. 229. By the
influence of the Barons under the last Prince, they were drawn up in
the form of _Magna Charta_. For the _great charter_ was not what some
partial writers have represented it, a concession of privileges extorted
by violence, but a declaration of the principal grounds of the _antient_
and fundamental laws of England, and a correction of the defects of the
common law. See _Lord Coke 2 Inst._ and _Lord Lyttelton’s hist. of Henry
II. vol. I._ p. 42. 526.

[6] _Wittenagemot_, imports a council of wise men; the Saxon word _witta_
signifying a wise man; and the British word _gemot_ expressing a synod or
council. During the Heptarchy, each kingdom had its _Wittenagemot_.

[7] The lay lords were the earls, thanes, and other nobility of the
kingdom. The spiritual lords were the bishops and dignitaries of
the church, whose possessions were held in Frankalmoigne. After the
conquest, they were subjected to military service and held by barony.
What may seem extraordinary, Abesses were also in use to sit in the
Saxon Wittenagemots. In Wightred’s great council at Beconceld, _anno_
694. the Abesses sat and deliberated, and several of them subscribed the
decrees made in it. _Spel. conc. vol. I._ The abesses appeared also in
Ethelwolf’s parliament at Winchester _anno_ 855. _Ingulph, edit. Savil._
862. And king Edward’s charter to the abbay of Croyland was subscribed
by an abbess. Even in the time of Henry III. and in that of Edward I.
it appears that four abbesses were summoned to parliament; those of
Shaftsbury, Berking, St. Mary of Winchester, and of Wilton. _Tit. hon. p.
729, and Whitelock’s notes upon the king’s writ for choosing members of
Parliament, vol. I. p. 479. 480._

[8] The preambles of the Saxon laws express an anxiety to please the
people, and allude to their consent in enacting them. The laws of king
Ina begin thus: _Ego Ina Dei gratia Occiduorum Saxonum Rex, cum consilio
et cum doctrina Cenredæ patris mei, et Heddæ Episcopi mei, et cum omnibus
meis senatoribus, et senioribus SAPIENTIBUS POPULI MEI, et multa etiam
societate ministrorum Dei, consultabam de salute animæ nostræ, et de
fundamento regni nostri, ut justæ leges, et justa statuta per ditionem
nostram stabilita et constituta essent, ut nullus senator nec subditus
noster post hæc has nostras leges infringeret_. See _LL. Anglo-Saxon,
ap. Wilkins, p. 14._ The preambles to the laws of the other princes are
nearly similar; and those of Edgar, Ethelred and Canute, may serve as
additional examples. 1. Leges Eadgari regis. _Hoc et institutum quod
Eadgarus cum SAPIENTUM SUORUM consilio instituit in gloriam Dei, et sibi
ipsi in dignitatem regiam, et in utilitatem omni populo suo_. 2. Leges
Æthelredi regis. _Hoc est consilium quod Æthelredus rex, et SAPIENTES
EJUS consultaverunt ad emendationem pacis omni populo Wodstoci in regione
Merciorum, secundum Angliæ leges_. 3. Leges Cnuti regis. _Hoc est
consilium quod Cnutus rex, totius Angliæ et Danorum et Norwegorum rex,
cum SAPIENTUM SUORUM consilio sancivit, in laudem Dei, et sibi ipsi in
ornamentum regium, et ad utilitatem populi; et hoc erat sacris natalibus
domini nostri Wintoniæ_. See _Wilkins_, p. 76. 102. 126.

In the 8th law of Edward the Confessor we read, _Hæc concessa sunt a
rege, baronibus et POPULO_; and in his 35th law we have the following
words: _Hoc enim factum fuit per COMMUNE CONSILIUM et ASSENSUM omnium
episcoporum, principum, procerum, comitum, et omnium SAPIENTUM seniorum
et POPULORUM totius regni, et per præceptum regis Inæ prædicti._ See
Wilkins, p. 198. The laws of Edward are, I know, to be read with
distrust; but they are allowed to contain genuine relics of that prince;
and, in the present case, there seems no reason for suspicion. Their
_appeal_ of consequence to the _assent_ of the _people_ must be allowed
to be of authority. For, if such _assent_ was not known and believed in
that age, how is it possible that they could appeal to it? The advocates
for the late origin of the house of commons will not surely suppose, that
the Confessor alluded prophetically to transactions which were not to
happen till the reigns of Henry III. and Edward I.

In the _Mirroire de Justices_, it is expressly said, that no king, during
the Saxon times, could change his money, nor enhance nor impair it, nor
make any money but of silver, without the _assent_ of the _Lords_ and
all the COMMONS. Part of this book is conceived by Sir Edward Coke to
have been written before the conquest; and additions were made to it
by Andrew Horn in the reign of Edward I. from old MSS. the authors of
which must have seen ancient rolls and records. Matter, also, from more
exceptionable materials, it is to be thought, was superadded by him. The
book is notwithstanding of considerable weight and authority. _Mirroire
des Justices_, cap. 1. sect. 3. _Atkyns on the power of parliament._

Concerning the high antiquity of the _commons_, Sir Edward Coke is
clear and explicit; and he has founded chiefly his opinion on the
ancient tract, which bears this title: _Modus quomodo parliamentum regis
Angliæ et ANGLORUM SUORUM, tenebatur TEMPORIBUS REGIS EDWARDI, filii
REGIS Ethelredi, qui modus recitatus fuit per discretiores regni coram
Willielmo duce Normanniæ conquestore et rege Angliæ, ipso conquestore hoc
præcipiente, et per ipsum approbatus, et suis temporibus et temporibus
successorum suorum regum Angliæ usitatus._ Other authors beside Lord
Coke have paid great respect to this treatise. It is to be acknowledged,
however, that Mr Selden has demonstrated that this tract could not
possibly be of the age of the Confessor, from its employing terms which
were not in use till long after. But this does not wholly derogate
from its force as to the point in question. For, allowing it to have
been written in the reign of Edward III. the period which, with great
probability, some writers have assigned to it, it yet proves that the
sense of that period was full and strong with regard to the antiquity
of the constitution, as consisting of king, lords and _commons_; a
circumstance which must have great weight in opposition to those, who
would make us believe, that our constitution, as so formed, was unknown
till the times of Henry III. and Edward I. _4 Institute_, _p._ 2. 12.
_Selden_, _tit. hon._ _p._ 739. 743.

“In the time of king Canutus, says Whitelocke, to a charter then graunted
to the monastery of St. Edmond’s Bury (probably in a publique councell)
after the subscriptions of the queen and dukes, followes, _I Oslaus,
KNIGHT_, _I Thored, KNIGHT_, _I Thurkell, KNIGHT_, and so of others. How
many these were, or how for several counties, doth not appear; nor in
that parlement of the same king (for so is testified by the discription
of it) where it is sayd, that _the king calling all the prælats of his
kingdome, and the nobles, and great men to his parlement_, there were
present bishops, abbots, dukes, earles, _with many MILITIBUS_, butte
the certain number is not extant; nor of those which are mentioned in
the parlement of Edward the Confessor, where after the king, queen,
archbishops, bishops, abbots, king’s chapleins, Thaines, KNIGHTS are
reckoned in that parlement.” _Notes upon the king’s writ_, vol. I. p. 437.

Lambard, Dugdale, and other antiquaries, produce a very strong evidence
of the antiquity of the representation of boroughs, by evincing, “That in
every quarter of the realm, a great many boroughs do yet send burgesses
to parliament, which are nevertheless so ancient, and so long since
decayed, and gone to nought, that it cannot be shewed that they have been
of any reputation at any time since the Conquest; and much less that
they have obtained this privilege by the grant of any king succeeding
the same. So that the interest which they have in parliament groweth
by an ancient usage before the Conquest, whereof they cannot shew any
beginning.” _Lambard Archeion_, _p._ 256. 257. _Coke Epist._ 9. _Rep.
Dugdale, Jurid._ _p._ 15.

This matter receives confirmation from what we are told of the _boroughs
of ancient demesne_. “These, says Whitelocke, were tenants of the demesne
lands of William I. and of Edward the Confessor; who (to the end that
they might not be hindered from their business of husbandry of the
king’s lands) had many privileges, whereof one was, that they should not
be compelled to serve in parliament. Another was, that they should not
contribute to the wages of KNIGHTS OF THE SHIRE. Which privileges they
still enjoy, and had their beginning in the times of William I. and of
the Confessor, whose tenants they first were, as appears in the book of
Domesday, and is a strong proof, that KNIGHTS and BURGESSES were then in
parliament.” _Notes upon the Kings Writ_, vol. II. p. 139.

See also the 22d note to the present tract.

[9] The law was not then a particular profession.

[10] On the following record in the register of Ely, this notion seems
to be founded. _Abbas Wulfricus habuit fratrem, Guthmundum vocabulo; cui
filiam præpotentis viri in matrimonium conjungi paraverat; sed quoniam
ille XL. hidarum terræ dominium minus obtineret, licet nobilis esset,
inter proceres TUNC nuncupari non potuit_. It is somewhat remarkable,
that Mr Hume is among those, who, resting on this foundation, would make
us conceive, that a person who had 40 hides of land, could, without being
noble, give his voice in the Wittenagemot. _Hist. of Eng. vol. I. p.
145._ The passage, however, properly understood, serves to shew, that, in
the course of time, the attendance of the Nobles in parliament, having
been deemed an expensive service, a law was made to relieve those of
them from it who were not possessed of 40 hides of land. The reader may
consult _hist. Eliens. c. 36. 40. ap. Gale_, the authority appealed to by
Mr Hume.

[11] It is perhaps impossible to ascertain the æra of this invaluable
institution. It loses itself in a distant antiquity. The Saxon laws
mention it as a known invention. See _LL. Ethelr. c. 4. Senat. Consult.
de Mont. Wal. c. 3. ap. Wilkins_. See also _Nicolson, Præfat. ad Leg.
Anglo-Sax. Spelm. Gloss. and Coke’s 1st Institute_. Olaus Wormius traces
it to a remote age among the Danes; and Stiernhook among the Swedes.
_Monument. Dan. lib. 1. c. 10._ _De Jure Sueon. et Goth. vetusto. c. 4._

[12] Annal. lib. 14. c. 33. _Copia negotiatorum et commeatuum maxime
celebre._ The city of London in the Danish times was able to pay L.
11,000 as its proportion of L. 70,000, a tax then imposed on the nation.
Asser, in the life of Alfred, refers to above 120 cities, boroughs and
villages.

[13] Lib. 1. See also Holingh. Chron. p. 192.

[14] Spelman, life of Alfred, b. 2. p. 28. Malmesb. lib. 2. c. 4. A
writer in Du Chesne having occasion to mention the first return of duke
William to Normandy, after his invasion of England, has the following
passage: _Attulit quantum ex ditione trium Galliarum vix colligeretur
argentum atque aurum: Chari metalli abundantia multipliciter Gallias
terra illa [Anglia] vincit. Gest. Gul. Conques. p. 210._

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

[16] The Confessor dying without issue, the competitors for the crown
were Edgar Atheling, Harold, and duke William. The first had not capacity
to sway the sceptre; and the succession of kings was not yet directed
by very regular maxims. Harold was a subject, and in possession of no
legal claim. William was related to Edward, and urged the destination of
that prince to succeed him. On these grounds he invaded England; and by
opposing Harold, he meant to secure what was his right of succession.
His victory accordingly gave him the capacity of a successor, and not
of a conqueror. That the quarrel was personal with Harold may be even
conceived from the circumstance that duke William offered to decide their
dispute by single combat. _Hale, hist. of the com. law, ch. v. Cook,
argument. antinorm._

With regard to William’s right of succession, the best account
appears to be that which is found in Ingulphus, William of Poictiers,
William Gemetensis, and Ordericus Vitalis, who were all of them his
contemporaries. These authors inform us, that king Edward sent Harold
into Normandy to assure duke William of his having destined him to be
his successor to the crown of England; a destination which he had before
observed to him by Robert Archbishop of Canterbury; and which appears
to have been made with the consent of the national council. And of this
relation there remains a very curious and decisive confirmation. It
is a tapestry found at Bayeux, and supposed to be work of Matilda the
wife of duke William, and of the ladies of her court, in which Harold
is represented on his embassy. See _a description of this tapestry by
Smart Lethieullier, Esq; ap. Du Carrel’s Anglo-Norman antiquities_. It is
surprising, when these particulars are considered, that Mr. Hume should
have given his sanction to the opinion that William’s right was entirely
by war, and that he should have conceived that those who refuse to this
prince the title of _Conqueror_ should rest solely or chiefly on the
pretence that the word _conqueror_ is in old books and records applied
to such as make an acquisition of territory by any means. _Hist. of Eng.
vol. 1. p. 200._ It is true, that Sir Henry Spelman and other antiquaries
have shown, that _conquestus_ and _conquisitio_ were in the age of duke
William synonymous with _acquisitio_; but it is no less true, that the
authors who refuse to duke William the title of Conqueror, rest on much
superior evidence. It is not with pleasure that I differ from this great
authority; but, no man has a title to enquire who will not think for
himself; and the most perfect productions of human wit have their errors
and their blemishes.

[17] See farther, an Historical Dissertation concerning the antiquity of
the English constitution. Part 2.

[18] Ibid.

[19] Ibid.

[20] It is a very curious fact, that even some of the Anglo-Saxon nobles
had all the prerogatives of earls-palatine. Alfred, we are told, put to
death one of his judges for having passed sentence on a malefactor for
an offence which had been committed _where the king’s writ did not pass.
Mirroire de Justices, ch._ v. And in Selden we meet with earls who had
entirely the civil and criminal jurisdiction in their own territories.
_Tit. Hon. part 2. ch._ v. If there were no other proofs than these, they
would be sufficient to evince the reality of fiefs among the Anglo-Saxons.

[21] Madox, hist. of Excheq. _Erant in Anglia quodammodo_, says an old
writer concerning the age of Stephen, _tot reges vel potius tyranni, quot
domini Castellorum. Gul. Neubrigens._

[22] _Civitas London. habeat omnes ANTIQUAS LIBERTATES et LIBERAS
CONSUETUDINES SUAS tam per terras quam per aquas. Præterea volumus et
concedimus quod OMNES ALIAE CIVITATES et BURGI et VILLAE et PORTUS
habeant OMNES LIBERTATES, et LIBERAS CONSUETUDINES SUAS._ _Magna charta
ap. Blackstone, Law Tracts, vol. III. p. 21._

[23] They had suffered considerably, even from the time of the Confessor
to that of Domesday-book. Authors ought therefore to be cautious in
reasoning back from that monument to the Saxon period. It is a pity,
that the survey of the kingdom taken by Alfred did not yet remain.
The comparison of it with that of William would lead to very curious
discoveries.

[24] The first summons of knights extant on record is supposed to be in
the 49th of Henry III. But this, though it were true, does not prove that
knights were not known till that time. The writ does not say so; nor can
it be gathered from it, that _knights of the shire_ were then _newly_
established. If there remained, indeed, an uniform series of records
from the earliest times, in which there was no mention of _knights_
till the age of Henry III. there might thence arise a strong argument
against their antiquity. But this is not the case; and it happens, that
in the 15th year of king John, there is a writ to the sheriff to summon
_FOUR knights of the county_; _15. Jo. Rs. rot. claus. pt. 2. m. 7.
dorso. 4 discretos milites, de comitatu suo, ad loquendum nobiscum_.
There is also similar evidence, that in the 32d and 42d years of Henry
III. _knights_ made their appearance in parliament. _Whitelocke, Notes,
vol. I. 438. vol. II. 120._ In the close roll, also, of the 38th year of
Henry III. there is extant a writ of summons directed to the sheriffs
of Bedfordshire and Buckinghamshire, requiring _TWO knights_ to be sent
for each of these counties. _Lyttelton, Hist. Henry II. notes to the 2d
book, p. 70. 79._ In ancient times, it was usual to summon sometimes
_FOUR knights_, sometimes THREE, sometimes TWO, and even sometimes _ONE
knight_. But from the reign of Edward III. it has been the constant
practice for the sheriff to return _TWO knights_ for each county.
_Whitelocke, vol. I. 439._

The first summons directed to the sheriff for the election of _citizens_
and _burgesses_, is supposed to be in the 23d of Edward I. But in the
sixth year of king John, says Whitelocke, there is extant on record a
writ to the sheriff, which mentions “Bishops, earls, barons, and _all our
faithful people in England_; by whose assent, lawes were then made.” _6.
Jo. regis, rot. claus. m. 3. dors. et rot. pat. m. 2. Assensu archiepis.
&c. et omnium fidelium nostrorum Angliæ. Notes on the king’s writ, vol.
II. p. 120._ An ordinance in this year of king John, directed _to all the
sheriffs_ in England, is mentioned from the records by Sir Robert Cotton,
and has these words: _Provisum est ASSENSU Archiepiscoporum, comitum,
baronum, et OMNIUM FIDELIUM NOSTRORUM ANGLIAE._ _Cotton. posth. p. 15._

In the _conventio inter regem Johannem et barones_ the people are stated
as parties; a circumstance which would not have happened if they had
not been represented. _Hæc est conventio facta inter dominum Johannem
regem Angliæ ex una parte, et Robertum filium Walteri Marescallum, &c.
ET LIBEROS HOMINES TOTIUS REGNI ex altera parte_. Blackstone’s Edition
of the charters, ap. Law Tracts, vol. II. p. 39. 40. And what confirms
this notion is, that we find the _mayor of London_ and the _constable of
Chester_ in the list of those who were chosen conservators of the public
liberties in consequence of the great charter. Other proofs, likeways, of
the antiquity of the commons are to be found in the great charters. See
Lyttelton, Hist. Henry II. Notes to the 2d book, p. 71.

It is also worthy of notice, that the 25th of Edward I. which confirms
the great charter, observes, that it was made by the _common assent of
all the realm_: And the 15th of Edward III. observes, that it was made
_par le roy, ses piers, et la communalté de la terre_.

Nor must it be omitted, that the 5th of Richard II. has this remarkable
passage: _The king doth will and command, and it is assented in the
parliament, by the prelates, lords and COMMONS, that all and singular
persons and commonalties, which from henceforth shall have the summons
of the parliament, shall come from henceforth to the parliaments in the
manner as they are bound to do, and have been accustomed within the realm
of England OF OLD TIMES. And if any person of the same realm, which
from henceforth shall have the said summons (be he archbishop, bishop,
abbot, prior, duke, earl, baron, banneret, KNIGHT of the shire, CITIZEN
of city, BURGESS of borough, or other singular person, or commonalty)
do absent himself, and come not at the said summons (except he may
reasonably and honestly excuse him to our lord the king) he shall be
amerced, and otherwise punished, according as OF OLD TIMES hath been used
to be done within the said realm in the said case. And if any sheriff of
the realm be from henceforth negligent in making his returns of writs
of the parliament; or that he leave out of the said returns ANY CITIES
OR BOROUGH WHICH BE BOUND AND OF OLD TIME WERE WONT TO COME TO THE
PARLIAMENT, he shall be amerced, or otherwise punished in the manner as
was accustomed to be done in the said case_ in times past. _Stat. 2. cap.
4._

The expression “of old time,” so often used here, must doubtless carry us
farther back than the 23d of Edward I. or even the 49th of Henry III. The
space of two or even three reigns does not make a period of antiquity. We
do not say, that the accession of George I. was in _ancient times_.

I know well, that the expressions _commonalty_, _communitas regni_,
_baronagium Angliæ_, _magnates_, _nobiles_, _proceres_, _&c._ have been
considered as solely applicable to barons and tenants _in capite_. But
one must beware of giving credit to this opinion. The great charter of
king John bears to have been made _per regem, barones et liberos homines
totius regni_; a certain proof that it was not made by the king and
the barons only; yet Henry III. speaking of this parliament, calls it
_baronagium Angliæ_. The _magnates_ and _proceres_ are said to have made
the statute of Mortmain; but it is well known, that the parliament which
gave authority to this act consisted of king, lords and _Commons_. In the
35th of Edward I. the expression _cum comitibus, baronibus, proceribus,
nobilibus, ac communitatibus_, evidently refers to KNIGHTS, CITIZENS and
BURGESSES: And in the 14th of Edward III. _commonalty_ and _Commons_ are
used as synonymous. See farther, _Whitelocke, vol. II. ch. 81_. _Coke,
2nd Inst. 583._ _Petyt, Rights of the Commons._ _Atkyns, on the power and
jurisdiction of parliament._

Mr Hume, I am sensible, strenuously asserts the late origin of the
Commons; and one would almost imagine, that his history of England had
been written to prove it. His reasonings, however, on constitutional
points, do not appear to me to be always decisive; and it is with pain
I observe the respect which this great man has paid to the opinions of
Dr Brady; a writer who is known to have disgraced excellent talents, by
pleading the cause of a faction, and giving a varnish to tyranny.

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

[25] Hist. Dissert. concerning the antiq. of the Engl. constitut. part 2.

[26] _Madox, Hist. of the Excheq. Bar. Angl._ The granting of supplies
to the sovereign, naturally suggested to the people the petitioning for
redress when under the pressure of any grievance; and the crown, where it
expected much, would not naturally exercise a rigorous severity.

The term _petitioners_ indeed, has, by some authors, been considered as
reproachful to the _Commons_; but how a petition, as the spring of a
law, could have meanness in it, is inconceivable. Even in the free age
of Charlemagne, this mode of application was employed. _Baluz. capit.
reg. Franc. tom. 1._ The behaving with reverence to the sovereign is very
different from acting with servility. And as to the petitioning against
grievances, it is to be remembered, that respectful requisitions of
ancient and constitutional privileges, which had suffered invasion, are
not to be considered as mean solicitations for acts of favour.

[27] _Conf. Cart. an. 25. Ed. I._ It is singular, that even after the
times of Edward I. some writers will not allow, that the Commons were any
essential branch of the legislature; yet the writ of summons expresses
in strong terms their right of assent: _Ad audiendum et faciendum et
consentiendum_; and a multitude of examples may be produced of their
actually consulting and determining about peace and war and other
important matters of state.

There is evidence that Edward I. called a parliament, and consulted
with the Lords and _Commons_ about the conquest of Wales; and that on
receiving information that the French King intended to invade some of his
dominions in France, he summoned a parliament _ad tractand. ordinand. et
faciend. cum prælatis, proceribus et aliis incolis regni quibuslibet,
hujusmodi periculis et excogitatis malis sit objurand_. Inserting in the
writ these memorable words, _Lex justissima, provida circumspectione
stabilita_: QUOD OMNES TANGIT, AB OMNIBUS APPROBETUR.

Edward II. consulted with his PEOPLE in his first year _pro solemnitate
sponsalium et coronationis_; and in his sixth year he consulted them,
_super diversis negotiis statum regni et expeditionem GUERRAE SCOTIAE
specialiter tangentibus_[A].

Edward III. summoned the peers and _Commons_ in his first year to consult
them, Whether they would resolve on peace or war with the Scottish king.
In his sixth year, he assembled the lords and _Commons_, and required
their advice, Whether he should undertake an expedition to the Holy Land.
The lords and _Commons_ consulted accordingly; and while they applauded
his religious and princely forwardness to the holy enterprize, advised
a delay of it for that season. In his thirteenth year, the parliament
assembled _avisamento prælatorum, procerum, necnon COMMUNITATIS_ to advise
_de expeditione GUERRAE in partibus transmarinis_; and ordinances were
made for provision of ships, arraying of men for the marches, and defence
of the isle of Jersey. In his fortieth year, the Pope demanding the
tribute of king John, the parliament assembled, where, after consultation
apart, the prelates, lords and _Commons_ advise the refusal of it,
_although it be by the dint of the sword_.

Richard II. in the first year of his reign, advised with the peers and
_Commons_, How he should best resist his enemies? In the second year,
he consulted his _people_ how to withstand the Scots; who had combined
against him with France. In the sixth year, he consulted the parliament
about the defence of the borders; his possessions beyond sea, _Ireland_
and _Gascoyne_, his subjects in _Portugal_, and safe keeping of the
seas; and whether he should proceed by treaty or alliance, or the duke
of Lancaster by force? The lords approved the duke’s intention for
Portugal; and the _Commons_ advised, that Thomas bishop of Norwich,
having the Pope’s _croiceris_, should invade France. In his fourteenth
year, this prince advised with the lords and _Commons_ for the war with
Scotland, and would not, without their counsels, conclude a final peace
with France. And the year ensuing the _Commons_ interested the king to
use moderation in the law of provisions, and proposed that the duke of
Aquitaine should be employed to negotiate the peace with France.

With regard to the power of the _Commons_ as to _judicature_ in the
times of which we speak, there are not wanting decisive proofs. In the
reign of Edward II. the peers and _Commons_ gave consent and judgment
to the revocation and reversement of the sentence of banishment of the
two Spencers[B]. In the first year of Edward III. when _Elizabeth_ the
widow of _Sir John de Burgo_ complained in parliament, that Hugh Spencer
the younger, Robert Baldock and William Cliffe his instruments, had
by duress forced her to make a writing to the king, in consequence of
which she was despoiled of her inheritance, sentence was given for her
by the prelates, lords and _Commons_. In the 4th year of Edward III. it
appears by a letter to the pope, that to the sentence given against the
earl of Kent, the _Commons_ were parties as well as the peers, for the
king directed their proceedings in these words: _Comitibus, magnatibus,
baronibus, et aliis de COMMUNITATE dicti regni ad parliamentum illud
congregatis injunximus, ut super his discernerent et JUDICARENT quod
rationi et justiciæ conveniret_. When in the first year of Richard
II. William Weston and John Jennings were arraigned in parliament for
surrendering certain forts to the king; the _Commons_ were parties to
the sentence against them, as appears from a writing annexed to the
record. In the first year of Henry IV. although the _Commons_ refer by
protestation, the pronouncing the sentence of deposition against King
Richard II. to the lords, yet they were equally interested in it, as is
evident from the record; for there were made proctors or commissioners
for the whole parliament, one bishop, one earl, one abbot, one baronet,
and two knights. “And to infer, says a learned and accurate author[C],
that because the lords pronounced the sentence, the point of judgment
should be only theirs, were as absurd as to conclude that no authority
was left in any other commissioner of _oyer and terminer_ than in the
person of that man solely that speaketh the sentence.” In the second year
of Henry V. the petition of the Commons imported no less than a _RIGHT to
act and assent to all things in parliament_; and the king allowed that
they possessed this right.

These examples of the importance of the people are striking; and they are
supported by the authority of the parliament-rolls, or by records above
exception. The curious reader may see them, and other proofs to the same
purpose, in the posthumous pieces of Sir Robert Cotton.

    [A] In his history of this prince, Mr Hume has the following
    very strange assertion: “The Commons, though now an estate in
    parliament, were yet of so little consideration, _that their
    assent was never demanded_.” Vol. II. p. 139.

    [B] The share the _Commons_ had in this act, Sir Robert Cotton
    authenticates from the parliament rolls. _Cottoni posthuma, p.
    348._ Yet Mr Hume, in the most positive terms, denies that the
    _Commons_ had any concern in it. Vol. 2. p. 140.

    [C] Sir Robert Cotton.

[28] _Hale, hist. of the com. law, ch. vii._ It has been sometimes
insisted upon, that much improvement was brought to England by the canon
and civil laws. I cannot, however, but imagine, that these laws, have, on
the whole, been rather attended with disadvantage. For tyrannical maxims
do not suit a limited government. They may have assisted, indeed, the
invention, and extended the views of some lawyers; but they have filled
the heads of more with illiberal prejudices.

[29] The reader, who is desirous of seeing proofs of the consideration
of the people during the wars between the Houses of York and Lancaster,
may consult Cotton’s abridgment of the records; and Bacon on the laws and
government of England. Part II.

[30] In the year 1546, there were 126 boroughs that returned members to
parliament; and the greatest number of these were wealthy and populous.
_Brown Willis, notit. parliam. vol. I._ In the reign of Edward VI. 23 new
boroughs were summoned to send burgesses to parliament. Philip and Mary
added 13 more, Elizabeth 30, James the 2 universities and 12 boroughs,
Cha. I. 8 boroughs, and Cha. II. the county of Durham and 2 boroughs.
_Ellys on temporal liberty._ Anciently the king might incorporate any
town, and enable it to send burgesses to parliament; but this privilege
remains not at present with the crown. If the king was now to venture on
the creation of a parliamentary borough, it would rest with the house of
commons whether they would receive the members.

[31] “As for her government, says a great authority, I assure myself I
shall not exceed, if I do affirm, that this part of the island never had
45 years of better times; and yet not all through the calmness of the
season, but through the wisdom of her regiment.” _Lord Bacon._

[32] “She loved not to be tied, but would be knit unto her people. Of
13 parliaments called during her reign, not one became abortive by
unkindness; and yet not any one of them passed without subsidy granted by
the people, but one wherein none was desired. And sometimes the aid was
so liberal, that she refused the one half, and thanked the people for the
remnant; a courtesy that rang loud abroad, to the shame of other princes.
She never altered, continued, repealed, nor explained any law, otherwise
than by act of parliament, whereof there are multitudes of examples
in the statutes of her reign.” _Nat. Bacon, Discourse on the laws and
government of England, part 2._

I do not mean to say, that Elizabeth, and the princes who preceded her,
never acted against the spirit of our government. Her reign, and those
of many of her predecessors, were doubtless stained with bold exertions
of authority. But bold exertions of authority must not be interpreted
to infer despotism in our government. We must separate the personal
qualities of princes, and the principles of the constitution. The
government of England, and the administrations of its chief magistrates,
are very different things.

[33] _Hume, Hist. of England, vol. V. p. 462._ This historian, the most
accomplished, perhaps, who has written in modern times, has attempted
to vindicate both James and Charles; but he has done nothing more than
to produce evidence to shew, that in some respects they acted from
precedents of administration in former princes; and this, if taken even
in the fullest extent, is insufficient to justify them. Charles, however,
it will be allowed, exceeded every violation of liberty, of which there
had been any example; and when he had consented to reduce the exorbitancy
of the regal power, his conduct created a suspicion of his sincerity.
But on the supposition that he did not advance his authority beyond the
practice of former times, he is not therefore to be vindicated. It is no
exculpation of a crime in one individual, that it has been committed by
others. The advantages of a free government belonged to the people of
England; and they were the proper judges when to enforce their privileges
against an invader. They might pardon in one sovereign what they would
punish in another. They might overlook in Elizabeth what they did not
wish to excuse in Charles. The doctrine of resistance is delicate. In a
free constitution, like that of which we speak, the prince and the people
will often fall into situations where they seem to encroach, or actually
do so, on the rights of one another. But it is never on slight grounds
that the people will be prevailed upon to take arms against their chief
magistrate. After all, had England been an absolute monarchy, Was it
thence proper and just that it should remain in that situation? There are
rights which it is impossible that men can either lose or forfeit. No
authority and no precedent, no usage and no law, can give a sanction to
tyranny.

[34] Lord Clarendon applies to him, with great propriety, what was said
of Cinna, _ausum eum, quæ nemo auderet bonus; perfecisse, quæ a nullo,
nisi fortissimo, perfici possent_.

[35] Bill of rights, toleration act, act of settlement.

[36] L’Esprit des Loix, Liv. xi. ch. 3.

[37] Plut. Vit. Lycurg.

[38] Spencer, Dissert. de ratione Leg. Usuram prohibentis.

[39] Lindenbrogius, codex legum antiquarum.

[40] Conringius de Antiquitatibus Academicis. Bruckerus, Hist. Philos.
Giannone’s hist. of Naples, lib. 1. chap. 10. § 1. and 11. lib. 11. chap.
6. § 1.

[41] Præfat. ad Glossar.

[42] P. 55.

[43] Corvini jus feudale.

[44] See Craig, de Feud. lib. 1. dieg. 5. and Selden’s Titles of Honour,
part second, chap. 1. § 23. Basnage, Coutume reformée de Normandie, tom.
1. p. 139.

[45] Selden. Ibid. Craig, lib. 1. dieg. 5.

[46] This Emperor, says Lampridius, gave the territories gained on the
frontiers, limitaneis ducibus et militibus, ita ut eorum essent si
hæredes illorum militarent, nec unquam ad privatos pertinerent; dicens
attentius eos militaturos si etiam sua rura defenderent. Addidit sane
his et animalia et servos; ut possent colere quod acceperunt, ne per
inopiam hominum vel per senectutem possidentium defererentur rura vicina
barbariæ, quod turpissimum esse dicebat. See also Molin. in consuet.
Paris. tit. 1. de Fiefs, and Loyseau, des Off. lib. 1. chap. 1.

[47] De bell. Gall. lib. 4. chap. 22.

[48] Montesquieu, L’esprit des loix, liv. 30. chap. 2. and 6.

[49] Lib. Feud. 1. tit. 1.

[50] L’esprit des loix, liv. 31. chap. 31.

[51] Tacitus de moribus Germanorum. Cæsar de bell. Gall. lib. 6.

[52] Servis, non in nostrum morem descriptis per familiam ministeriis
utantur. Suam quisque sedem, suos penates regit. Frumenti modum dominus,
aut pecoris, aut vestis, ut colono injungit; et servus hactenus paret.
Tacit. de mor. Germ. cap. 25.

[53] De mor. Germ. cap. 24.

[54] De mor. Germ. cap. 11.

[55] Ibid. cap. 7.

[56] L’esprit des loix, liv. 31.

[57] Mably, Observations sur l’histoire de France, liv. 1. cap. 3.

[58] De mor. Germ. cap. 13. and 14.

[59] L’Esprit des loix, liv. 31.

[60] De mor. Germ. cap. 7. 12. and 14.

[61] Ibid. cap. xi.

[62] Muratori, Antiq. Ital. vol. 4. p. 160. et Seq. Mably, Observations
sur l’histoire de France, tom. 2. p. 96. et Seq. Madox, Firma Burgi, cap.
1. sect. 9.

[63] Tacit, de mor. Germ. c. 13. Spelman’s Glossary, voc. Miles.

[64] Tacit, de mor. Germ. cap. 12.

[65] Hi cuique sanctissimi testes, hi maximi laudatores. Tacit. de m. G.
c. 7. Consult also c. 5. and c. 18.

[66] It is to be wished, that our ingenious Professor had here entered
more at large into the history of property in land. The subject is
important and little understood. The conceptions entertained by the
antient inhabitants of Germany and Gaul concerning property have
been explained and illustrated in a book, intituled, “An Historical
Dissertation concerning the Antiquity of the English Constitution.” The
author of this treatise seems to be the first who has remarked that land
is originally the property of nations, and has attempted to account for
the manner in which it comes to descend to individuals. See his Dissert.
part 1. sect. 3. See also Professor Millar’s valuable work on the
Distinction of Ranks in Society, p. 165. et seq. 2d edition.

[67] Cæsar, de bell. Gall. lib. 4. c. 1. Lib. 6. c. 22. Tacit. de mor.
Germ. c. 26.

[68] Du Cange, Glossarium voc. Juramentum. Georgisch, corp. juris
Germanici antiqui.

[69] Spelman, Gloss. voc. Lada et Ladare. Struv. Hist. jur. criminal.
sect. 9.

[70] L’Esprit des loix, liv. 28. ch. 17.

[71] Georgisch, corp. juris Germanici antiqui, p. 347. and p. 368.

[72] Du Cange, Gloss. voc. Duellum. Spelman, voc. Campus. Selden’s
Duello, or Treatise on Single Combat, ch. 5.

[73] Georgisch, corp. juris Germanici antiqui, p. 980, 1063, 1223, 1267,
1270.

[74] Selden, Analecta Anglo-Britannica, lib. 2. cap. 8.

[75] Brady’s Hist. of England, p. 65.

[76] Mr Barrington has remarked, that “the last trial by battle in
England was in the time of Charles I. and that it did not end in the
actual combat.” Observations on the Statutes, 3d edition, p. 202. The
last instance which occurs of the judicial combat in the history of
France, was the famous one between M. Jarnac and M. de la Chaistaignerie,
A. D. 1547. Dr. Robertson’s Charles V. vol. 1. p. 298.

[77] Tacit. de mor. Germ. cap. 12. and 25.

[78] Lindenbrog. Cod. Leg. Antiq. p. 1404. Tacit. de mor. Germ. c. 21.
LL. Wal. by Wotton, p. 192. 194. LL. Anglo-Saxon, ap. Wilkins, p. 18. 20.
41. Hickes. Dissert. Epist. p. 110. Georgisch, corpus jur. Germ. antiq.

[79] Montesquieu on the Rise and Decline of the Roman Empire. Dr. Geddes,
in his Tract concerning the Nations which overturned the Empire of the
Romans, p. 21.-26.

[80] Selden’s titles of honour, part 1. chap. 5. § 1.

[81] Procop. de bel. Goth. ap. script. Byz. Jornandes, Paulus
Warnefridus, Gregory of Tours. Mably, observations sur l’histoire de
France, tom. 1. chap. 1.

[82] Giannone’s hist. of Naples, lib. II. cap. 4.

[83] Bouquet, le droit public de France, èclairci par les monuments de
l’antiquité, p. 6.-10. Montesquieu, l’Esprit des loix, liv. 30. chap. 6,
7, 8, 9.

[84] Reliq. Spelm. p. 2.-7.

[85] Potgiesser, de stat. servorum, lib. 2. cap. 1. Montesquieu, l’Esprit
des loix, liv. 30. chap. 14. Du Cange, voc. Servus.

[86] Spelman reliq. 12, 14, 248. Muratori antiq. Ital. vol. 5. p. 712.

[87] Brussel, usage des fiefs, liv. 2. Selden’s tit. of honour, part 2,
cap. 1. § 23. and § 33.

[88] Mably, observations sur l’histoire de France, liv. 1. chap. 5. and 6.

[89] Gregor. Turonen. lib. 2. cap. 27. Usage des fiefs, par Brussel, liv.
2. cap. 6. Dissertation on the antiq. of the English constitution, part
3. § 2.

[90] Lib. feud. 1. tit. 1. Hume appendix, 2. Dalrymple, Essay on feudal
property, cap. 5. § 1.

[91] Coke on Littleton, lib. 2. chap. 4.

[92] Montesquieu, l’Esprit des loix. liv. 30. chap. 13. Du Cange, voc.
Alod. Schilteri Thesaur. voc. Alod.

[93] Heinnec. Elem. jur. Germ. lib. 3. § 26. Selden’s tit. of hon. part
2. chap. 1. Spelman, voc. Comites.

[94] Ripuar. L. L. tit. de diversis interfectionibus, p. 160, 161. ap.
Georgisch, corp. jur. Germ. Du Cange, voc. Faida.

[95] Bacon’s Discourse on the Laws and Government of England, p. 11.-27.
Monast. Anglican, passim. Mezeray, abr. chronol. tom. 1. p. 172.

[96] Montesquieu, l’Esprit de Loix, liv. 30. chap. 21. liv. 31. chap. 9.
10. 11.

[97] Lib. 1. Feud. tit. 1. Hanneton, de jur. feud. p. 139. Du Cange, voc.
Fideles et Fidelitas.

[98] Mably, Observations sur l’histoire de France, liv. 1. chap. 6. Du
Cange voc. Beneficium.

[99] Spelman’s Gloss. voc. Feodiem. Dalrymple on Feudal-Property, chap.
1. Hume, Append. 2.

[100] Du Cange, voc. Investitura. Spelman, voc. Pares Curiæ. Craig de
feud. lib. 2. dieg. 2.

[101] Bracton, lib. 2. cap. 17. Spelman, voc. Fidelitas, et Seisina.
Fleta, lib. 3. cap. 15.

[102] Spelman, Gloss. p. 266. Feud. lib. 2. tit. 6. Littleton, lib. 2.
chap. 2. Basnage, contume reformée de Normandie, tit. Des fiefs et droits
Feodaux, art. 107.

[103] Coke on Littleton, book 2. chap. 1. Du Cange, voc. Vassaticum.
Wright on tenures, p. 55, 56.

[104] Feud. lib. 2. tit. 23. and 24. Dalrymple on Feud. property, chap.
2. Wright on tenures, p. 72.

[105] Madox, Antiquities of the Exchequer, vol. 1. p. 653. Coke on
Littleton, lib. 2. chap. 2.

[106] Du Cange, voc. Auxilium. Madox, Antiq. Excheq. chap. 15.

[107] Feud. lib. 2. tit. 25.

[108] Bracton, lib. 3. p. 130. Spelm. voc. Escheata. Glanville, lib. 7.
cap. 17. Dalrymple on feud. property, p. 62. Ed. 1757. Hengham Parva,
chap. 6. Coke on Littleton, b. 1. chap. 1.

[109] Craig, de feud. lib. 2. dieg. 207.

[110] Craig, de feud. lib. 1. dieg. 11. and 12.

[111] Ibid.

[112] Ibid.

[113] Reliq. Spelm. p. 3, 7, 33, 43. Gervas. de Tilb. Dialog. de Scaccar.
lib. 1. cap. 7. Madox, Antiq. Excheq. vol. 1. p. 272.

[114] Fortescue de Laud. leg. Angl. p. 99. Ed. 1737. Coke on Littleton,
b. 2. chap. 7.

[115] Carte, hist. of England, vol. 2. p. 169. The reign of Edward I. in
Kennet’s collect. of English historians, p. 197.

[116] Coke on Littleton, lib. 2. chap. 8. Madox, Antiq. Excheq. vol. 1.
p. 321, 326.

[117] Madox, hist. of Excheq. vol. 1. p. 51.

[118] Ib. p. 40. 41.

[119] Ib. p. 43.

[120] It may not be improperly remarked in this place, that about the
18th year of Henry II. Geoffrey Martell held in England the office or
serjeanty of Pincernaria, or Butlership. See Madox, hist. Excheq. vol. 1.
p. 50.

[121] Lib. 2. cap. 9.

[122] Feud. lib. 1. tit. 8.

[123] Brussel, usage des Fiefs, tom. 1. p. 41. Du Cange, voc. Cavena and
Canava.

[124] Spelman, and Du Cange, voc. Camera, et voc. Feudum. Craig, de Feud.
lib. 1. Dieges. 10.

[125] Du Cange, voc. Soldata, et voc. Feudum. ædificii.

[126] Coke on Littleton, lib. 2. chap. 4.

[127] Du Cange, voc. Gastaldus.

[128] Gibson, Cod. Jur. Eccles. Anglican, tit. 23.

[129] Montesquieu, l’Esprit de Loix, liv. 31. chap. 11. Bacon, hist. and
polit. disc. on the laws and government of England, ch. 59. Inett’s hist.
of the English Church, vol. 2. ch. 2.

[130] Gibson, Cod. Jur. Eccles. Anglican. tit. 23.

[131] Ibid.

[132] Ibid. and tit. 30.

[133] Gibson, Cod. Jur. Eccles. Anglican, tit. 34.

[134] Gibson, tit. 1. and 2.

[135] Father Paul on beneficiary matters, ch. 2. and ch. 6. Selden’s
history of tithes, ch. 4. sect. 1. Spelm. larger work of tithes, ch. 6.

[136] Selden’s hist. of tithes, ch. 6. and 7. Spelm. larger work of
tithes, ch. 29.

[137] De non temerand. Eccles. tract. Spelm. p. 3.

[138] Montesquieu, l’Esprit des loix. liv. 31. chap. 12. Selden of
tithes, ch. 7. Father Paul of benefices, ch. 11.

[139] Father Paul of benefices, ch. 14.

[140] Giannone’s hist. of Naples, b. 19. chap. 4. § 2.

[141] Selden on tithes, chap. 8. Bacon, hist. and polit. disc. on the
Laws and Government of England, chap. 59. L. l. Angl. Sax. ap. Wilkins.

[142] Brady, Appendix to his hist. p. 15. Carte, hist. of England, vol.
1. p. 441.

[143] Selden on tithes, chap. 14.

[144] Carte’s hist. of England, vol. 3. p. 135, 143, 148, 149. Lord
Herbert’s life and reign of Henry VIII. p. 186. et seq. ap. Kennet.

[145] Gibson, Cod. Jur. Eccles. Anglican. tit. 35. Hume, vol. 1. p. 51.

[146] Wood, Institute of the Laws of England, fol. 161. et seq.

[147] Madox, Baronia Angl.

[148] 4. Instit. 268. Scroggs of Courts Baron, p. 56.

[149] Coke on Littleton, lib. 2. chap. 12. § 215.

[150] Madox, Antiquities of the Excheq. vol. 1. p. 652.

[151] Coke on Littleton, lib. 2. chap. 12.

[152] Ibid.

[153] Coke, ut supra.

[154] Madox, Antiq. of the Excheq. chap. 13. The Statutes at Marlebridge,
ap. Ruffhead, vol. 1. p. 30.

[155] Ruffhead, vol. 1. p. 37.

[156] Glanvil, lib. 9. c. 8. lib. 10. c. 3. lib. 11. c. 4.

[157] Houard, Anciennes loix des François conservées dans les coutumes
Angloises, tom. 1. p. 32. et seq. Craig, lib. 1. dieg. 4.

[158] Bracton, lib. 2. c. 36. Hume, append. 2. Du Cange, voc. relevium.
Spelman, voc. relevamen. Reliq. Spel. p. 32, 33.

[159] Fleta, lib. 3. c. 77. Feud. lib. 1. tit. 1. Dalrymple on feudal
property, ch. 5. Madox, antiq. of the Exchequer, ch. 10. § 4.

[160] Wright on tenures, p. 95. 96.

[161] LL. Hen. 1. c. 1.

[162] Lib. 9. c. 4.

[163] Madox, antiq. of the Exchequer, ch. x.

[164] Ruffhead, vol. 1. p. 2.

[165] Bracton, lib. 2. fol. 86.

[166] Montesquieu, l’Esprit de Loix, liv. 31. chap. 1.

[167] St. Amand on the legislative power of England, p. 27. Montesquieu,
l’Esprit des loix, liv. 31. ch. 8. Dr Robertson’s Charles V. vol. 1. p.
222.

[168] Mably, observations sur l’histoire de la France, tom. 1. l. 1. ch.
5. and 6. Montesquieu, l’Esprit des loix, liv. 31. ch. 9.

[169] Spelman on feuds and tenures. Mably, observations sur l’histoire
de France, tom. 1. l. 2. ch. 3, 4, 5, 6. Montesquieu, l’Esprit des loix,
liv. 31. ch. 28, 29, 30, 31. Houard, anciennes loix des François, liv. 1.
ch. 1. Basnage, coutume de Normandie, tom. 1. p. 146.

[170] See the authorities quoted above, and Selden’s titles of honour,
part 2. chap. 5.

[171] Coke on Littleton, lib. 2. ch. 1.

[172] Houard, anciennes loix des François, liv. 2. ch. 1. Du Cange, voc.
Hominium. Spelman, voc. Homagium.

[173] Wright on tenures, p. 154. et seq. Dalrymple on feudal property,
chap. 2. § 2. Millar on the distinction of ranks in society, second edit.
p. 215.

[174] Wright on tenures, p. 172.

[175] Coke on Littleton, lib. 3. chap. 13.

[176] Houard, anciennes loix des François, liv. 3. chap. 13. Coke, ut
supra.

[177] Wright on tenures, p. 168, 169.

[178] Wright on tenures, p. 186.

[179] Fortescue de laud. leg. Angliæ, cap. 44. Glanvil, lib. 2. chap. 9.
Spel. reliq. p. 25, 26. Du Cange, voc. Warda.

[180] Craig, de feud. lib. 2. dieg. 20. Wright on tenures, p. 86. et
seqq. Dalrymple on feud. property, chap. 2. § 2.

[181] Ruffhead’s Statutes, p. 2, 3. Basnage, Coutume de Normandie, tit.
des gardes.

[182] Coke on Littleton, lib. 2. ch. 5. sect. 123. Houard, anciennes loix
des François, liv. 2. ch. 5.

[183] LL. Henry 1. c. 1. Bracton, lib. 2. c. 37. sect. 6. Craig, de feud.
lib. 2. Dieges. 21. Du Cange, voc. Maritagium. Glanvil, liv. 7. c. 12.

[184] Wright on tenures, p. 97.

[185] Ruffhead’s statutes, fol. p. 19.

[186] Ibid. p. 6.

[187] Coke’s institutes, part 2. p. 440. Ruffhead, vol. I.

[188] 32 Henry VIII. c. 46. 12 Car. II.

[189] Craig, de feud. lib. 2. Dieges. 13. Dalrymple on feudal property,
ch. 5. sect. 1.

[190] Craig de feud. lib. 2. dieges. 14.

[191] Basnage, coutume de Normandie, tit. De partage d’heritage. LL. Hen.
1. 70.

[192] Dalrymple on feud. property, chap. 5. § 1. Hume, appen. 2.

[193] Hale’s hist. of the common law, chap. 5. Bacon’s hist. and polit.
discourse on the laws and government of England, part 1. chap. 45, 55,
and 56.

[194] Id. chap. 57. See also Tyrrel’s history, and Kennet’s historians.

[195] Glanvil, lib. 7. cap. 3. Craig de feud. lib. 2. dieges. 15.
Dalrymple on feudal property, chap. 5. § 2.

[196] Lib. Feud. 2. tit. 12.

[197] Lindenbrogius, cod. leg. antiq. p. 679.

[198] Dalrymple on feud. property, chap. 5.

[199] Craig. de feud. lib. 2. dieges. 14.

[200] Hale, hist. com. law, chap. 9.

[201] Giannone’s hist. of Naples. Selden’s tit. hon. part 2. chap. 9.

[202] Bouquet, le droit public de France, p. 30.-36.—Allodium, proprietas
quæ a nullo recognoscitur. Tenere in allodium, id est, in plenam et
absolutam proprietatem. Habet integrum ac directum dominium quale à
principio de jure gentium fuit distributum et distinctum. Du Moulin, de
l’ancienne coûtume de Paris, art. 46.

[203] Dalrymple on feud. property, ch. 3. sect. 1.

[204] Lib. 4. feud. tit. 34. Ruffhead’s statutes, v. 1. p. 122.

[205] Gibson, cod. jur. eccles. Anglican, tit. 28.

[206] Kennet’s collection of historians, vol. 1. p. 116. Carte, hist. of
England, vol. 1. p. 469. 555.

[207] Hume, hist. of England, vol. 1.

[208] LL. Hen. 1. cap. 70.

[209] Lib. 7. c. 1.

[210] Glanvil, ut supra. Ruffhead’s statutes, vol. 1. p. 8.

[211] Britton, c. 18. Wright on tenures, p. 163. 164.

[212] Staunford, de prerog. Reg. cap. 7.

[213] An. 27. Hen. VIII. cap. 10. ap. Ruffhead, vol. 2. p. 226.

[214] Madox, hist. of Exchequer, ch. 17. Firma burgi.

[215] Du Cange, et Spelman, voc. Tallagium. Madox, antiq. of the
Exchequer, ch. 17.

[216] Hume’s hist. of England, appendix 2. Madox, Firma burgi, ch. 1.

[217] Ruffhead, vol. 1. p. 115.

[218] An. 13. Ed. I. c. 18. apud Ruffhead, append.

[219] An. 23. Henry VIII. cap. 6. ap. Ruffhead, vol. 2. p. 167.

[220] An. 13. Eliz. c. 7. An. 1. James I. cap. 15. 21. James I. cap. 19.
5. George II. c. 30.

[221] Coke on Littleton, book 1. chap. 2. § 13.

[222] Wright on tenures, p. 186. et seq.

[223] Coke’s institutes, part 2. p. 332. Ruffhead, vol. 1. p. 79.

[224] Coke’s institutes, part 2. p. 336.

[225] Hume’s hist. of England, vol. 1. Carte’s hist. 382, 383, 384, 420.
Brady’s hist. append.

[226] Selden, tit. hon. part 2. chap. 5. § 3.

[227] Ibid. § 8. and 9.

[228] Coke on Littleton, lib. 3. chap. 13. § 703, 709.

[229] Lib. 3. chap. 13. § 720.

[230] Saintgerman, cap. 50.

[231] Bacon, voc. Fine and Recovery. An. 4. Hen. VII. c. 24. ap.
Ruffhead, vol. 2. p. 79.

[232] An. 32. Hen. VIII. c. 36. ap. Ruffhead, vol. 2. p. 296.

[233] Ruffhead, vol. 2. p. 216.

[234] Hottoman. Franco-Gall. Boulainvilliers on the antient parliaments
of France. Fortescue de laud. leg. Angl. cap. 34. 36.

[235] Craig, de feud. lib. 1. dieges. 16. Du Cange voc. Dominicum.

[236] Madox, hist. Excheq. Carte’s hist. of England, vol. 1. p. 423.

[237] Carte, ibid. Hume, append. 2. Madox, antiq. of the Excheq. passim.

[238] Firma Burgi, ch. 4. 5. 11.

[239] Bibliotheca politica, Dial. 5. and 10.

[240] Biblioth. polit. 320. 330. 333. 339. 356. 357. 370.

[241] L’Esprit des loix, liv. 11 chap. 6.

[242] Asser, de Gestis Alfredi. Tyrrel, gen. introduct. to the hist. of
England.

[243] Lib. 3. cap. 9. fol. 107.

[244] Giannone’s hist. of Naples, lib. 11. chap. 2. Hume’s hist. of
England, vol. 2. p. 441.

[245] Dissertatio Seldeni ad Fletam, cap. 7.

[246] Bacon, hist. and polit. discourse on the laws and government
of England, part 2. ch. 1. and 2. The reign of Rich. II. in Kennet’s
collection of historians.

[247] Hume’s hist. of England, vol. 2.

[248] Camden’s reign of Elizabeth, passim.

[249] Wilson’s life and reign of James I. ap. Kennet.

[250] Bibliotheca politica, dial. 11. Bacon, hist. and political
discourse, part 1. chap. 64.

[251] Madox, Antiq. of the Exchequer, vol. 1. p. 197, 198. Baronia
Anglica, book 1. chap. 1. Spelman, voc. Baro.

[252] Brady’s introduction, in append. Baronia Anglica, p. 33.

[253] Selden’s titles of honour, part 2. chap. 5. Baronia Anglica, book
1. chap. 2.

[254] Camden, Britan. p. 122.

[255] Selden, tit. Honour, part 2. chap. 5. § 21.

[256] Baronia Anglica, book 2. chap. 1. Selden’s tit. Hon. part 2. chap.
5. § 22.

[257] Coke on Littleton, lib. 2. chap. 8. § 159. Baronia Anglica, p. 164.
et seq.

[258] Coke on Littleton, p. 166. St. Amand on the legislative power of
England, p. 193.

[259] Selden, tit. Hon. part 2. chap. 5. § 27. and 28.

[260] Camden’s Introd. to his Britan. p. 234. et seq. Baronia Anglica.
Selden, tit. hon. part 2. chap. 5. § 29. 30. 31.

[261] Selden, tit. hon. part 2. ch. 1.

[262] Du Bos, hist. critique de L’etablissments de la monarchie
Françoise, tom. 3. 497, &c. Mascou’s hist. of the antient Germans, b. 16.
§ 36.

[263] Spelman’s treatise of Feuds and Tenures.

[264] Selden, tit. hon. part 2. ch. 5.

[265] Selden, tit. hon. part 2. ch. 5. § 10.

[266] Baronia Anglica, p. 150, et seq. Selden, tit. hon. part 2. chap 5.
§ 8. Bacon, hist. and polit. discourse on the laws of England, part 1.
ch. 29.

[267] Coke on Littleton, lib. 2. § 135. Selden, tit. hon. part 2. ch. 5.
§ 19.

[268] Robertson’s hist. of Scotland, book 1. p. 68. Essays on Brit.
Antiq. Ess. 2.

[269] Gibson, cod. jur. eccles. Angl. vol. 1. p. 143.

[270] Privileges of the Baronage, by Selden, ch. 2. p. 1537 of the
edition of his works by Wilkins. Coke’s institute, second part, p. 49.
and 50.; third part, p. 26.-31.

[271] Spelman, voc. Armiger. Du Cange, voc. Armigiri.

[272] Selden, tit. hon. part 2. ch. 5. § 33. Camden’s introd. to his
Britan, 242.

[273] Selden, tit. hon. part 2. ch. 5. § 39.

[274] Spelm. reliq. dissert. de milite. Coke’s inst. part 2. p. 593.

[275] Selden, tit. hon. part 2. ch. 5. § 46. Cotton’s posthumous works.

[276] Madox, Firma Burgi, ch. 1.

[277] Madox, Firma Burgi, ch. 2. Ruffhead, vol. 1. p. 4.

[278] Ruffhead, vol. 1. p. 156.

[279] Gurdon’s history of Parliament. Tyrrel’s introduction to his
history. L. L. Anglo Saxon, ap. Wilkins.

[280] History of the common law of England, p. 107.

[281] Biblioth, polit. dial. 6, 7, 8. Hume, vol. 1.

[282] Ruffhead, vol. 1. p. 544.

[283] Spelman, voc. Parlamentum. Hales on Parliaments. Ellys on Temporal
Liberty.

[284] Elsringe, on the method of passing bills in Parliament. Gurdon’s
hist. of Parliament.

[285] Ruffhead’s preface to the statutes.

[286] Kennet’s English Historians, vol. 2. p. 587, 606. Carte, vol. 2. p.
828. Hume, vol. 2. and 3.

[287] Lord Bacon’s life of Henry VII. ap. Kennet, vol. 2. p. 612.

[288] Irish statutes, vol. 1. p. 23. Coke, 4. instit. chap. 76.

[289] Irish Statutes, p. 48.

[290] Irish Stat. vol. 1. p. 143.

[291] Coke on Littleton, lib. 2. ch. 11. § 172.

[292] Bracton, lib. 4. cap. 28.

[293] Reliq. Spelm. 251. Barington on the statutes 270. et seq. Gurdon’s
hist. of Court-Baron and Court-Leet, p. 573.

[294] Coke on Littleton, lib. 2. chap. 11.

[295] Lib. 2. § 194.

[296] Littleton, § 187, 188.

[297] Littleton, § 174.

[298] Coke on Littleton, lib. 2. ch. 11.

[299] Cap. 42.

[300] Wilkins, Leg. Anglosax.

[301] Formulare Anglicanum, tit. Grants and Manumissions of Villeins.

[302] Hickes. dissert. epist. p. 13. et seq. Brady’s hist. p. 82.
Fitzherbert’s natura brevium, p. 187, 189, 190. Cowell’s interpreter,
voc. copiehould. Coke on Littleton, lib. 2. chap. 11.

[303] Carte, hist. of England, vol. 2. p. 844. 845. 846.

[304] Fitzherbert’s natura brevium, p. 28. Kitchen on Courts.

[305] Coke on Littleton, lib. 1. chap. 8.

[306] Madox, Hist. of the Excheq. vol. 1. p. 295. Cowell’s Interpreter,
voc. Demaine. Spel. Gloss. voc. Dominicum.

[307] Bacon’s discourse on the Laws and Government of England, part 1.
chap. 16.

[308] Tyrrel’s general Introduction to his Hist. of England. Hume,
append. 1.

[309] Spelm. Gloss. voc. Comitatus, hundredus, et trithinga. Tyrrel’s
introduction to his Hist. Carte’s Hist. vol. 1. p. 310. Spelm. life of
Alfred. Gurdon’s Hist. of Court Baron and Court Leet.

[310] Gurdon’s hist. of Court Baron and Court Leet. Cowel’s Interpreter,
voc. Frank-pledge. Bacon’s Discourse on the Laws and Government of
England, part. 1. chap. 23.

[311] Bacon, chap. 24.

[312] Bacon’s discourse on the Laws and Government of England, chap. 25,
26.

[313] Dugdale’s Origines Juridiciales, chap. 9, 10, 11, 12, 13, 14, 15.

[314] Madox, Hist. of Exchequer, chap. 1.

[315] Madox, Hist. Excheq. Dalrymple on Feudal Property, ch. 7. § 1.

[316] Dugdale, orig. Jurid. ch. 25. 26. Nicholson, præfat. ad leg. Anglo.
Sax. Du Cange, voc. Duellum et Juramentum. Spel. voc. Campus et Judicium
Dei. Muratori antiq. Ital. Dissertat. 38.

[317] Stiernhook de jure vetusto Sueonum et Gothorum. c. 4. Dissert. on
the antiquity of the English Constitution, part. 4. § 4.

[318] Mirroir des Justices, chap. 2.

[319] Tacit. de Mor. Germ. c. 21. L. L. Wal. p. 192. 194. L. L. Anglo,
Sax. ap. Wilkins p. 18. 20. 41. Hickes. dissert. Epist. p. 110.
Lindenbrog, p. 1404.

[320] Selden’s tit. of Hon. part 2. ch. 5. Hume, vol. 1.

[321] 1 Inst. 76. Bacon on the Government of Engl. p. 75. Saltern de
antiq. leg. Brit. c. 8.

[322] Spelman on Feuds and Tenures. ch. 6.

[323] Taylor and Somner on Gavelkind, and Harris in his Hist. of Kent, p.
457.

[324] Spel. gloss. voc. Burghbote et Brughbote.

[325] Tyrrel’s Introd. p. 120. Spel. Reliq. p. 22.

[326] Dr. Brady’s Glossary to his Tracts, p. 3. Spelman on Feuds and
Tenures, p. 17. and 18.

[327] Madox, Hist. of the Exchequer, vol. 1. chap. 10. § 4.

[328] Spelm. on Feuds and Tenures, chap. 21.

[329] Wright on tenures, chap. 2.

[330] Hale’s hist. Com. Law, chap. 5, and 7.

[331] Bacon’s hist. and polit. discourse, chap. 44, 45. &c. Tyrrel’s hist.

[332] LL. Anglo Saxon, ap. Wilkins, p. 228. Wright on tenures, p. 66.

[333] P. 69.

[334] LL. Anglo. Saxon. ap. Wilkins. Wright on tenures, p. 72.

[335] Madox, Baronia Angl. p. 25. Seld. tit. hon. part 2. ch. 5.

[336] Dugdale’s orig. jurid. c. 34. Madox, hist. of Excheq. ch. 2. La
coutume de Normandie.

[337] Baron Gilbert’s hist. of Excheq. p. 55. Lord Littleton’s hist. of
Henry II. 4to. vol. 1. p. 43. 457. Carte, vol. 1. p. 419. 420.

[338] Madox, Excheq. ch. 1. Bacon on the laws and government of England,
part 1. ch. 59. and 66. Brady, Carte and Tyrrel.

[339] Hale, hist. com. law, ch. 7. Bacon, hist. and polit. discourse, p.
129. &c.

[340] Tyrrel’s Introduct. to his hist.

[341] Carte, vol. 1. p. 452, 453.

[342] Kennet’s historians, and Carte.

[343] Hale, hist. com. law, chap. 7. Carte, vol. 1. p. 480. et seq.

[344] Carte; and Kennet’s historians.

[345] Kennet’s historians. Hume, vol. 1. p. 243.

[346] Bacon, hist. and polit. disc. p. 103, &c. Carte, vol. 1. p. 525. et
seq.

[347] Kennet’s historians.

[348] Hale, hist. com. law, chap. 7. Carte.

[349] Gervas. de Tilbury, dial. de Scaccario.

[350] Madox, hist. of Excheq. ch. 16.

[351] Lib. 9. c. 4.

[352] Coke on Littleton, fol. 153.

[353] Ibid.

[354] Bracton, lib. 4.

[355] Hale’s hist. Com. Law, chap. 7. Dugdale, orig. jurid. p. 27.
Hoveden, p. 590.

[356] Hale’s hist. Com. Law, ch. 7.

[357] Fitzherbert, Nat. brev. p. 41.

[358] Dugdale, orig. jurid. chap. 20. Madox, hist. of Exchequer, chap. 3.
§ 10. Bracton, lib. 3. chap. 10, 11. M. Paris, an. 1176.

[359] 4. Instit. p. 184, 266. Hale, hist. com. law. chap. 7.

[360] 2. Instit. p. 24. et seq. 4. Instit. p. 162. Selden’s notes on
Hengham.

[361] Dugdale, orig. jurid. chap. 17.

[362] 4. Institute, p. 70. et seq.

[363] d’Anver’s abrigement, vol. 2.

[364] 4. Institute, p. 79.

[365] Dugdale, orig. jurid. ch. 16. 4. Inst. p. 80.

[366] 4. Inst. p. 79. 80. 84. 88.

[367] Ibid. p. 225. 113. 80. 76.

[368] 4. Inst. p. 155. 79. 206.

[369] 4 Inst. ch. 8. Bacon, hist. and polit. discourse, part. 2. ch. 18.

[370] Baron Gilbert’s history of the Court of Common Pleas. Madox, hist.
Excheq. ch. 2. sect. 9. 2 Institute, p. 53. 407. 4 Institute, ch. 8.

[371] 2 Institute, p. 405.

[372] 2. Institute, p. 21, 22.

[373] Bracton, lib. 1. cap. 1. Fortescue de laud. leg. Angliæ, cap. 34.

[374] Baron Gilbert, Hist. of the court of Com. Pleas. 4. Inst. ch. 10.

[375] 2d. Inst. p. 196. 197. 255. 551.

[376] 4th Inst. ch. xi.

[377] 4th Inst. ch. 13.

[378] Hales of the power and jurisdiction of Parliament. Selden of the
Judicature of Parliament. See his works vol. 3. 4. Inst. ch. 1.

[379] Giannone’s hist. of Naples, b. 1. Bower’s hist. of the Popes, vol.
1.

[380] Lord Lyttelton’s hist. of Henry II. b. 3.

[381] Daniel, ap. Kennet. Carte.

[382] Hoveden. edit. Savil. 494-549. Mat. Paris. an. 1164. Lord
Lyttelton’s hist. of Henry II. book 3. Brady’s history.

[383] Hume, Carte, Lyttelton, &c.

[384] Hale, hist. com. law, chap. 7.

[385] Mare Claus. 386. Kennet’s historians. Hume. Carte.

[386] Brady, Daniel, Tyrrel, and the general histories of England.

[387] Kennet’s historians. Hume. Carte.

[388] Blackstone’s discourse concerning the hist. of the charters.
Gurdon’s hist. of Parliament. Hale, hist. com. law, ch. 7.

[389] Sir Robert Atkins on the dispensing power. Bibliotheca Politica.
The general histories of England.

[390] Ruffhead, vol. 1.

[391] Lib. 3. p. 129. 137.

[392] Cap. 5.

[393] Lib. 1. cap. 28.

[394] Cap. 5.

[395] 2 Inst. p. 37.

[396] 2 Inst. 38. 41. Barrington on the Statutes, p. 15. 16.

[397] Mirror, cap. 5. sect. 2. Glanvil, lib. 14. cap. 3. Bracton, lib. 3.
p. 121. Fleta, lib. 1. cap. 23.

[398] 2 Inst. p. 43. 45.

[399] 2. Institut. p. 48. 49.

[400] 2. Institut. p. 51.

[401] 2 Inst. p. 51. 55.

[402] Father Paul, of beneficiary matters.

[403] 4 Institut.

[404] 2 Inst. p. 46.

[405] 2 Institut. p. 51.-55.

[406] 2 Inst. p. 47.

[407] 2 Inst. p. 47.

[408] Ibid.

[409] 2 Inst. p. 48.

[410] 2 Inst. p. 48.

[411] 2 Institut. p. 55, 56.

[412] 2 Institut. p. 56.

[413] 2 Institut. p. 57. et seq. Barrington on the statutes. p. 23. 25.

[414] 2 Institut, p. 64.

[415] 2 Inst. p. 65.-67.

[416] 2 Inst. p. 68. Barrington, p. 25.

[417] Ibid. p. 68. 69.

[418] 2 Inst. p. 69. 74.

[419] 2 Inst. p. 74, 75. Barrington, p. 27.

[420] Ibid. p. 76. See also Inst. lib. 2. cap. Escuage. Barrington, p.
28.-31.

[421] 2 Inst. p. 76.-78.




INDEX.


  A

  Abbots, 202

  Abeyance, 136

  Actions of debt, 40

  ⸺ on the case, 40, 310

  ⸺ personal, 301, 315

  ⸺ real, 314, 366

  ⸺ mixed, 315

  ⸺ possessory and petitory, 292

  ⸺ to be tried by the judges itinerant, 298

  ⸺ of waste, 315

  ⸺ of ejectment, _ibid._

  Acts of State. See proclamations

  Admiralty jurisdiction, 331

  ⸺ court of, 362

  Advowsons of Bishoprics, 78

  ⸺ right of nomination, in whom lodged, 79

  ⸺ presentative, 81

  ⸺ collative, 82

  ⸺ donative, _ibid._

  ⸺ now subsisting in England, 84

  ⸺ how forfeited, 85

  Ætius, 46

  Agistment when due to the Clergy, 94

  Aids and subsidies, 174

  Alias writ of, 357

  Alans, 43

  Alarick, 44, 45

  Alexander III., 322

  Alexander Severus, 21

  Alfred makes a law for the payment of tithes, 90

  ⸺ his boast of the liberty he transmitted to England, 180

  ⸺ divided England into counties, hundreds, and tithings, 198, 245

  Alienation, 66

  ⸺ of lands, 80, 81, 146, 147, 148, 149, 150, 153, 157, 161, 384

  ⸺ in mortmain, 387

  Allodial. See estates allodial

  Allodians attach themselves to their neighbouring Lords, 114

  Amalfi, a copy of the civil law found there, 180

  Amerciaments, how settled by Magna Charta, 346

  Appeals, where properly to be brought, 301

  Appeal for murder, 186

  Arabs, erect academies for the study of their laws, 8

  Armigeri, 206

  Arresting by mittimus, 369

  ⸺ persons not authorised by warrant, 370

  Assemblies, general. The share they held in the government in the
        13th century, 33

  ⸺ manner of admitting members therein, 34

  ⸺ crimes cognizable thereby, _ibid._

  Assessors in Germany, 96

  Assize, trial by, 250

  ⸺ of novel disseisin, 291

  ⸺ writ of, 292

  Athenians, their multiplicity of laws, 4

  Ataulphus, 45

  Athol, Duke of, 193

  Attainder of felony, 348

  Attornment, 119

  Attorney-General, 318


  B

  Bail, superior power in the Court of King’s Bench to take it, 301

  Baron of England, its original import, 187

  ⸺ quantum of revenue to qualify for attendance in parliament, 188

  Barons, oppose the arbitrary measures of King John, 339

  ⸺ of the Exchequer, 318

  Barones majores & minores, 189

  ⸺ their rules of descent, 193

  ⸺ minores privileges obtained by writ of election to parliament,
        192

  Baronets, by whom first created, 209

  Baronies by tenure, 188

  ⸺ long since worn out among the laity, 190

  Barristers at law, 313

  Bastards, 23

  Becket, Thomas a, 322, 327

  Beauchamp, John, the first peer created by patent, 193

  Benefices, or grants of land, wherefore so called, 49

  ⸺ improper, 68

  ⸺ incorporeal, 78

  Beneficiary law, 23

  ⸺ estates, 113

  Berytus, its famous academy, 7

  Bishops, how chosen in the infancy of Christianity, 78

  ⸺ their ancient revenue, 80

  ⸺ allocate the tithes in aid of the glebe, 81

  ⸺ retain the general cure of souls, _ibid._

  ⸺ their seats in parliament, whence derived, 202, 203

  Bishop’s court, originally joined to the Sheriff’s, 247

  Bishops of Rome, their artful conduct; to obtain the supremacy, 83

  ⸺ dismember bishoprics, _ibid._

  ⸺ attempt to over-rule general councils, _ibid._

  ⸺ practise upon sovereign Princes, 83

  ⸺ encourages of the civil law, 181

  ⸺ their bull ineffectual to silence the people of England, when
        incensed against Richard II., 182, 183

  ⸺ assume a dispensing power, 186

  ⸺ their views respecting England, 272

  ⸺ lord it over the Kings of Europe, 320

  ⸺ compel King John to surrender his crown, 338

  ⸺ dispose of the English benefices by provisorship, 344

  Blackstone (Judge), 8, 9

  Bodies corporate, 211

  Bracton, 130, 180, 225, 293, 299, 314, 349

  Brevia testata, 60

  Britain, Great. Whence its multiplied laws, 5, 6

  ⸺ its peculiar advantages, 6

  Britton, 180, 349

  Brothers, not the heirs one of another, 140

  Brunechild, 111

  Burghers. See Citizens

  Burgundians, 4, 43, 46

  Butlerage of England, 72

  Bye-Laws, 211


  C

  Canon law, 13, 180, 203, 345

  Capias, writ of, 357

  ⸺ for a fine, 379

  Capitula itineris, 298

  Castleguard, 50

  Castration, 252

  Celtiberians. See Spaniards, 22

  Census, a tax among the Franks, 47

  Chancellor of England, 249

  ⸺ his ancient office, 305

  ⸺ derivation of his name, _ibid._

  ⸺ of the Exchequer, 318

  Chancery, court of, 249, 300

  ⸺ ordinary, 304, 310

  ⸺ extraordinary, 364, 366

  Chapters, their origin, 80

  Charles I. his claim of ship-money, 172

  ⸺ his conduct to the Earl of Bristol, 190

  ⸺ raises money by Knights fines, 208

  Charles II. purchases the right of prisage of wines, 73

  ⸺ abolishes the feudal system, 68, 134, 150

  Charles the Bald, 114

  Charlemagne, 80, 88

  Charters, 211, 281

  Church benefices stiled improper feuds, 68

  ⸺ lands not secured by living evidence, 60

  ⸺ secured by brevia testata, _ibid._

  ⸺ revenue of, how antiently distributed, 80

  Churchmen. See Clergy

  Circuits established by Henry II., 294, 298

  Citizens of London, anciently stiled Barons, 187

  ⸺ their original state, 209

  ⸺ antiently no part of the body politic, 210

  ⸺ admitted to vote along with Knights of the Shires, 211

  Civil law, 12, 13, 170

  ⸺ attempted to be introduced by the Princes of Europe, 180

  ⸺ and by the Pope, 181

  ⸺ became blended with the feudal, _ibid._

  ⸺ destructive of freedom, _ibid._

  ⸺ opposed by the English parliament, _ibid._

  ⸺ openly countenanced by Richard II., 181

  ⸺ obligations of a freeman to his patron thereby, 234

  Claudian, 46

  Clergy, their wealth and importance, 52

  ⸺ their practice of redeeming slaves, 53

  ⸺ divested of their possessions by Martel, 54

  ⸺ supported by the voluntary contributions of the people, 78

  ⸺ their temporalities how derived, 80

  ⸺ feudal tenants to the bishop of their precinct, 81

  ⸺ rendered serviceable to the views of the Pope, 83

  ⸺ SECULAR, depressed under the Norman Kings, 90

  ⸺ the only lawyers in the reign of William II., 91, 273

  ⸺ banished the temporal courts, 91

  ⸺ celibacy of the, 283

  ⸺ the only people that could read and writ, 273

  ⸺ DIGNIFIED, their share in the legislation, 267

  ⸺ IN FRANCE, make one distinct state, 202

  Clothair II., 111

  Clovis, 28, 48, 51, 52

  Coats of arms, 206

  ⸺ became hereditary, 290

  Coiff of a Serjeant at law, conjecture about its origin, 274

  Cojudge, 96

  Coke, Lord, 16, 72, 162, 190, 198, 217, 224, 233, 254, 257, 303, 340,
        350, 353, 356, 365, 367, 371, 373, 375, 376, 378, 380, 384, 388

  Collation to a living, 82

  Colleges, 86

  Commons, house of, 206, 319

  ⸺ its present constitution compared with the feudal principles,
        211

  ⸺ its advance in privilege and powers, 214

  ⸺ whether most inclined to popular or oligarchical influence,
        214, 217

  Common Pleas, court of, 300, 312, 316

  Commentaries on the Laws, how multiplied by the Romans at the time of
        Justinian, 4

  Commoner, his right of excepting against the Sheriffs return of a
        Jury, 204

  Commerce, its effect in multiplying laws, 3

  ⸺ FOREIGN, 153

  ⸺ regarded by Magna Charta, 380

  Commune Concilium, further the designs of William the Conqueror, 264

  Commissioners of Customs, 317

  ⸺ of Excise, 317

  ⸺ Appeals, _ibid._

  Companions of the King or Prince, 30

  Constitutions of Clarendon, 203, 275, 325

  Coutumier of Normandy, 271

  Convocation of the Clergy, 276

  Conrad Emperor, 23

  Constable, High, of England, 73

  Constantine Porphyrogenetus, 22, 45

  Convivæ Regis, a title on whom conferred, 51

  Copyhold tenants, 324

  Corvinus, 77

  Cork, kingdom of, 201

  Covassals. See Pares curiæ

  Councils general, 83

  Counts, their origin and employments, 51

  ⸺ obtain grants of estates for life, 57, 187

  Counts. See Earldoms

  County court, 104, 247, 248, 296

  Counties their origin, 51

  ⸺ PALATINE, 199

  Court of wards, 133, 317

  ⸺ record, the King’s, its cognizance of covenants to alienate, 149

  ⸺ merchant, 156

  ⸺ of the constable, 181

  ⸺ admiralty, _ibid._

  ⸺ Tourn, 247, 271

  ⸺ Sheriffs. See Sheriff

  ⸺ of the hundred, 247

  ⸺ Leet, 247, 271

  ⸺ Baron, 271

  Courts of Westminster-Hall, 10

  ⸺ Ecclesiastical and temporal, their rights settled, 275

  ⸺ Martial, 363

  ⸺ of Record, what are such, 271

  ⸺ not of Record, what are such, _ibid._

  Craig, 25

  Cranmer, 92

  Creation money, 199

  Crimes public, what among the Franks, 40

  ⸺ how punished, 252

  Cross, sign of it used in the first written instruments, 60

  Curia Regis, judges in that court, 249

  ⸺ how appointed by William the Conqueror, 270

  ⸺ the foundation of the Lords judicature in parliament, 249

  ⸺ their pleadings entered in the Norman language, 270

  ⸺ divided into four courts, 300

  Customs paid on merchandize, 173

  ⸺ LOCAL; origin of several, 297, 273


  D

  Danegelt, 285

  Decretals of the Pope, 320, 321

  Deed poll, 100

  Demesnes, 50

  Demurrer, what, 306

  Derby, Earl of, 193

  Descents by feudal law, to whom, 135

  ⸺ law of, 141

  Dioceses, how subdivided into parishes, 79

  Dispensing power, a prerogative claimed by the Stuarts, 186

  ⸺ distinct from a power of pardoning, _ibid._

  ⸺ opposed by the early lawyers, 314

  Distress, what, 65, 100, 101

  ⸺ introduced instead of actual forfeiture, 97

  ⸺ severity of English Lords in levying it restrained, 101

  ⸺ how and where to be levied, 102

  ⸺ restrictions in levying it, _ibid._

  Duelling, the practice whence derived, 39

  Dukes, 187

  Dyer’s reports, 39


  E

  Earldoms of England, quantum of Knight’s fees assigned thereto, 163

  ⸺ how antiently held, 197

  ⸺ wherein differing from Barons, _ibid._

  ⸺ when created, 198

  Earls, 187

  ⸺ their authority restricted in the County court, 198

  ⸺ PALATINE, 187

  ⸺ the first created, 199

  Ecclesiastical Courts, 271

  ⸺ how separated from the temporal, 275

  ⸺ their right of recognizance of suits for benefices annulled by
        the temporal courts, 276

  ⸺ screen their members from the rigour of the law, 276, 322

  ⸺ their power of excommunication, 360

  Edgar King, severity of the law enacted by him for payment of tithes,
        90

  ⸺ division of the Sheriff’s and Bishop’s court in his reign, 247

  Edmundsbury, meeting of the Barons there, 339

  Edward I. his dispute concerning grand serjeanty grants, 70

  ⸺ gives in parliament a new confirmation of Magna Charta, 71

  ⸺ renounces the taking of talliage, _ibid._

  ⸺ his action against the Bishop of Exeter respecting homage, 117

  ⸺ motives for his conduct, 121

  ⸺ the CONFESSOR, his laws, 180

  Egypt, antient method of studying the laws there, 7

  ⸺ tithes first introduced there, 87

  Elegit, writ of, 156

  Elizabeth Queen, causes her proclamation to carry the force of laws,
        184

  ⸺ why submitted to by the people, _ibid._

  ⸺ her false policy in encouraging monopolies in trade, 185

  ⸺ discontinued the granting of protections, 379

  Emma Queen, 40

  Enfranchisement, express, 234

  ⸺ implied, 235

  England, how divided by the Saxons, 245

  ⸺ divided into circuits by Henry II., 298

  Escheat, 98, 140

  ⸺ of the King, 298, 382

  Escuage, 97, 289

  Esquires, their rank, 207

  Estates, allodial, 51, 52, 56, 106, 144, 254

  ⸺ of CONTINUANCE, 57

  ⸺ TAIL, 99, 121, 160

  ⸺ BENEFICIARY, 114

  ⸺ FEUDAL, not liable to the debts of the feudatory, 146

  Ethelwolf, establishes tithes by law in England, 90

  Evidence, the kind admissible among the Franks before the use of
        letters, 60

  Exchequer court of, 300, 313, 315

  ⸺ ordinary, 317

  ⸺ extraordinary, _ibid._

  ⸺ chamber, 318

  Extent, 155

  Eyre or circuit, omissions of places in first and second, 298


  F

  Fealty, the oath of, 61

  ⸺ its obligations, _ibid._

  ⸺ why not required of the Lords, 64

  Fee simple, 99

  ⸺ tail, 99, 121

  Females, their dowry among the Franks, 35

  ⸺ the part they bore in the State, _ibid._

  ⸺ excluded from descent by the feudal law, 135

  ⸺ under what limitations admitted, _ibid._

  Feud, whence adopted into common language, 118

  Feudal law. See LAW

  Feuds improper, 68, &c.

  ⸺ advowsons, 78

  ⸺ tithes, 86

  ⸺ feminine, 142

  Feudum de cavena, 75

  ⸺ camera, _ibid._

  ⸺ soldatæ, 77

  ⸺ habitationis, _ibid._

  ⸺ guardiæ, _ibid._

  ⸺ gastaldiæ, 78

  ⸺ mercedis, _ibid._

  Fiefs, 21, 36, 55

  ⸺ feminine, 163

  Fine levied on entailed lands, 167

  Fines honorary, 107

  ⸺ established as a fruit of tenure, 118

  ⸺ abolished at the restoration, _ibid._

  ⸺ for licence to plead in the King’s court, 250

  First fruits and tenths, 84

  Fictions of law, 304, 315

  Fish weires, 351

  Fleta, 180, 349

  Forest laws, whence derived, 37

  Formedon, writ of three kinds, 161

  Fortescue, 180, 234

  Frank pledge, 247

  Franks, 4, 23, 24, 31, 35, 37, 38, 41, 42, 46, 48, 55

  Freemen, among the Germans, the nature of the allegiance required
        from them to their Princes, 31

  Free alms, 202

  Furnivall, William, 72


  G

  Gallway, county palatine of, 201

  Gascoigne, Judge, 368

  Gavel-kind, 135, 255

  Gauls, 22, 51, 111

  Gentry, who so called, 206

  ⸺ their peculiar privileges, _ibid._

  ⸺ cause of their military disposition subsiding, 207

  Gentilis homo, its ancient and modern acceptation, 52

  Geoffry of Monmouth, 22

  Germans, their method of deciding disputes by single combat, 39

  ⸺ Murder not punished with death among them, 41

  Germany, its condition at the time of the Franks, 32

  ⸺ its ancient constitution nearly resembling that of England, 33

  Gilbert, Judge, his opinion concerning the division of courts, 309

  Glanville, 109, 130, 148, 180, 288, 290, 330

  Glebe-land, how obtained by the clergy, 80

  Gold and silver, their use unknown to the Franks, 35

  Goths, 4, 43, 44, 46, 47

  Grand assize, for what purpose invented, 40

  Grandsons, 108, 139, 140

  Grants, the first feudal ones, 50

  ⸺ temporary, 56

  ⸺ beneficiary, _ibid._

  ⸺ FOR LIFE, how obtained, 57

  ⸺ improper, 68

  ⸺ to women, 74

  ⸺ of things not corporeal, _ibid._

  ⸺ to indefinite generations, 112

  ⸺ laws tending to establish them, 114

  ⸺ of William the Conqueror to his followers, 163

  ⸺ of Knight’s fees, _ibid._

  Gregory, Pope, demands homage and Peter’s pence from William the
        Conqueror, 274

  Gratian, 321

  Guardianship. See Wardship


  H

  Habeas Corpus, 301, 370

  Hale, Sir Matthew, 14, 213, 296

  Heptarchy, 252

  Heriots, 254, 257

  Hearth-money, 134

  Heir in tail, 160

  Heirs of landed inheritance, 136

  Hengist, 179

  Henry I. his charter in favour of the Saxon laws, 281

  ⸺ subdues Normandy, 284

  ⸺ II. payment in kind commuted into money, 69

  ⸺ his quarrel with Pope Alexander II., 322

  ⸺ his wholesome regulations, 286, 287

  ⸺ III. introduces a dispensing power into England, 186, 344

  ⸺ consequences of his neglecting to summon the Barones majores, 189

  ⸺ his illegal patent opposed by Roger de Thurkeby, 186

  ⸺ his oppressions, 344

  ⸺ VI. his mistaken conduct with regard to Ireland, 220

  ⸺ VIII. his danger upon throwing off the Pope’s supremacy, 92

  ⸺ suppresses the monasteries, _ibid._

  ⸺ meets a court of Ward, 133

  ⸺ obtains from parliament a sanction for his proclamations to
        bear the force of laws, 184

  Hereford, Earl of, his dispute with Edward I., 70

  Homage, 61

  ⸺ when instituted, and how performed, 116

  ⸺ fealty, 117

  ⸺ warranty, a consequence of homage, 119

  ⸺ auncestrel, the import of this term, _ibid._

  ⸺ duties arising from homage to lord and vassal, 118

  Honorius, 44

  Hugh Capet, 23, 137

  Hunns, 43, 44


  I

  James I. his arbitrary claims, 183

  ⸺ mistaken policy in encreasing monopolies, 185

  ⸺ institutes a new title of honour, 209

  Independence of the King, the idea thereof entertained by the early
        Franks, 31

  Inhabitants of Europe, their propensity to the making of new laws, 5

  Innocent III., 334

  Inns of Court, wherefore founded, 6

  ⸺ their ancient usefulness, _ibid._

  ⸺ their present state, 7

  ⸺ Institution to a living, 82

  Interdict laid on England by Innocent III., 334

  Investiture proper, 58

  ⸺ improper, 59

  ⸺ its nature fixes the line of duty, 69

  John, King, mutual hatred between him and his nobles, 110

  ⸺ his arbitrary government, 154, 352

  ⸺ claims a right of taxation, 177

  ⸺ omits summoning some of the Barones majores, 189

  ⸺ deprives the earls of the thirds of the county profits, 199

  ⸺ supplants his nephew Arthur, 331

  Jornandes, 37

  Ireland, peerages there recovered by petition, 195

  ⸺ erected into palatinates, 200

  ⸺ form of trial of noblemen in that kingdom, 204

  ⸺ the statutes of Edward II. abolished, 209

  ⸺ state of legislation there, 218, 222

  ⸺ influence of Poyning’s law on its government, 221

  Issue joined, 292

  Italian priests, the chief possessors of benefices in England in
        John’s reign, 342

  Judges itinerant, 294

  ⸺ their jurisdiction, 298

  ⸺ of assize, 366

  ⸺ judgment, in what instances obtained without the intervention
        of juries, 354

  Juries, trial by, 251

  ⸺ their original power, 247

  ⸺ judges of law and fact, 294, 356

  Justice, method of administering it among the Salic Franks, 37

  Justices of Nisi Prius, 248, 299

  ⸺ errant, _ibid._

  ⸺ of assize, _ibid._

  ⸺ of oyer and terminer, 299

  ⸺ of gaol delivery, 248

  ⸺ of Quarter Sessions, 248, 366

  ⸺ in Eyre, 294

  Judiciary of England, 248, 300

  ⸺ discontinued by Edward I., 304


  K

  Kildare, county palatine of, 201

  King’s Bench, court of, 300

  ⸺ its power in taking bail, 301

  ⸺ suits cognizable therein, 300, 301, 306

  ⸺ its peculiar distinctions, 312, 314

  King never dies, origin of that maxim, 139

  Kings elective among the Franks, 28, 29

  ⸺ their power, 48, 49

  ⸺ Norman, the arms borne by them, 207

  Kings of England, their power anciently limited, 71

  ⸺ their right of service from their vassals, _ibid._

  ⸺ possessed of donatives, 83

  ⸺ their ecclesiastical jurisdiction, 84

  ⸺ their title to supreme ordinary, whence derived, _ibid._

  ⸺ their power by the feudal law, 170

  ⸺ executive branch of government belongs to them, 171

  ⸺ their revenue, 172

  ⸺ their supplies for foreign wars, 173

  ⸺ their authority, whence derived, 175

  ⸺ their proclamations, how far legal, 183

  ⸺ their dispensing power, 186

  ⸺ their demesnes unalienable, 189

  ⸺ their prerogative of summoning the lesser Barons to parliament,
        190

  ⸺ their right of raising peers to a higher rank, 196

  ⸺ their power of settling precedency, _ibid._

  ⸺ not one of the three estates, but the head of all, 202

  ⸺ their right of appointing peers to try an accused nobleman, 204

  ⸺ ancient concern in making laws, 217

  ⸺ their present influence in framing laws, 218

  ⸺ their style when speaking of themselves, 265

  ⸺ have no power to create new criminal courts, 377

  Kingsale, Lord, 196

  Knights, origin of that dignity, 34

  ⸺ their advantages over the Lords with regard to feudal payments,
        109

  ⸺ service, 129

  ⸺ when abolished, 150

  ⸺ fees, 188

  ⸺ their privileges by writ of election to parliament, 192

  ⸺ their rank, 206

  ⸺ their ancient dignity, 207

  ⸺ BANNERET, 208


  L

  Laity, when excluded from the election of the clergy, 78

  Lands, their property how far alienable among the Jews, 3

  Lands, distributed to the Christians by the General Assembly, 34

  ⸺ interest of Lord and vassal therein, 65

  ⸺ Saxons, by what tenures they held their lands, 254

  Langton, Legate, 338

  Lateran, council of, 89

  Lawing, 280

  Laws feudal, the foundation of the law of things, 14

  ⸺ the foundation of the English constitution, 15

  ⸺ method of teaching them, 17

  ⸺ their origin and progress, _ibid._

  ⸺ succeed the Roman imperial law, 19

  ⸺ various opinions on their origin, _ibid._

  ⸺ not derived from Roman laws and customs, 21

  ⸺ first reduced into writing by the Lombards, 23

  ⸺ their tendency to cherish the national liberties of mankind, 27

  ⸺ in ENGLAND, permit no Lord to be challenged by the suitors, 96

  ⸺ allow a power of appeal to the King’s court, _ibid._

  ⸺ their doctrine of remainder, _ibid._

  ⸺ respecting warranty, 119

  ⸺ wardship, 123, 124

  ⸺ their obligations on minors, 132

  Laws POSITIVE, or general customs, always to be found in communities
        however barbarous, 1

  ⸺ a knowledge of them a means of procuring respect and influence,
        2

  ⸺ of things and persons, which to be first treated on, 14

  ⸺ few and intelligible in small societies, _ibid._

  ⸺ when necessarily numerous and extensive, _ibid._

  ⸺ inconveniencies attending their multiplicity, 3

  ⸺ of what kind in Rome at different periods, 4

  ⸺ their great increase in Europe since the, 14th century, 5

  ⸺ of NORMANDY, respecting the marriage of females in wardship, 129

  ⸺ of ENGLAND, advantages attending a knowledge of them, 8

  ⸺ what required by them in transferring possessions, 74

  ⸺ its maxim respecting the devising of lands by will, 145

  ⸺ how enacted, 217

  ⸺ their ancient method of passing, _ibid._

  ⸺ their tendency to promote liberty, 234

  ⸺ alterations introduced in them by Henry II., 289

  Lawyers, 3

  Laymen, how far exercising ecclesiastical discipline, 48

  ⸺ tithes granted to them in fee, 89

  ⸺ by what means possessed of lands discharged of tithes, 92

  Legates of Rome, 83

  Leinster, county palatine of, 201

  Letters Patent for creating of Peers, 190

  ⸺ when took place, 193

  ⸺ grants by them, how forfeited, 194, 195

  ⸺ anciently called Chartæ Regis, 305

  ⸺ repealable by the Lord Chancellor, _ibid._

  Lex Terræ, what, 355

  Licences to marry, 131

  Liberty of the subject, how advanced, 313

  ⸺ how ascertained, 333

  Littleton, 14, 15, 61, 73, 116, 124, 225, 229

  Livery and seizen, 58, 59

  Locke, Mr., 12

  Longchamp Archbishop of Canterbury, 330

  Lords feudal, their power over minors respecting marriage, 129

  ⸺ respect paid by them to the person of their King, 171

  ⸺ their power over their villeins, 224, 232

  ⸺ of parliament in England, their rank, 187

  ⸺ created by writ, or letters patent, 190

  ⸺ privilege to their eldest sons, 192

  ⸺ their titles extinct on surrender, 195

  ⸺ their quality as noblemen, 187

  ⸺ spiritual, 202

  ⸺ lay, their form of trial, 204

  Lombards, 4

  Lupus, Hugh, 199

  Lycurgus, 3


  M

  Markham, sir John, 368

  Maud, 282, 284

  Magna Charta specifies the quantum to be paid in relief, 110, 290

  ⸺ misconstrued in the right of Lords to the disposal of minor
        heirs in marriage, 130

  ⸺ restrains the alienation of lands, 150

  ⸺ its designs, 154

  ⸺ abolishes the right of talliage, 154, 171, 175

  ⸺ summons to parliament settled thereby, 189

  ⸺ its regulations of fines in the King’s court, 250

  ⸺ abolishes the removal of the courts of justice, 312

  ⸺ commentary thereon, 343 to the end

  Manors how distributed by William the Conqueror to his followers, 163

  Marriages, 133

  Marshal, Earl, of England, 72

  Maritime court. See Admiralty

  Mascon, council of, 88

  Master of the Rolls, 310

  Masters in Chancery, 309

  ⸺ empowered to frame new writs, _ibid._

  Maxim of Law, 306, 341

  Measures and weights, 351

  Meath, county palatine of, 201

  Merchant stranger, 174, 380

  ⸺ denizen, 174

  ⸺ enemies, 381

  Military system (Old) its influence on law, 4

  ⸺ power, danger of its subverting the civil and legal
        authorities, 95

  ⸺ benefices, their rise among the Saxons, 261

  ⸺ tenures, their service lightened by Henry II., 288

  ⸺ abolished by Charles II., 150

  ⸺ courts, 360

  Minor heirs male, when deemed of age, 123

  ⸺ in chivalry, when deemed of age, 124

  ⸺ in socage, when deemed of age, 128

  ⸺ female, in chivalry, when deemed of age, 124

  ⸺ their marriages, how controuled by their Lords, 129

  ⸺ when released from wardship, 132

  Mittimus, essentials to render it legal, 369

  Modus, payment of tithes by a, 91

  Monarchy of France, 55, 56

  ⸺ of England, its nature ascertained by the feudal laws, 16

  ⸺ how changed, by estates becoming hereditary, 170

  Monasteries, the firmest support of papal power, 83, 88

  ⸺ tithes improperly applied to their use, 89

  ⸺ raised on the suppression of the secular clergy, 91

  Money, its present decreased value, 69

  Monopolies, 185

  Montesquieu, 2, 28, 31, 38, 53, 178

  Moses, 3, 7

  Mowbray, Lord, 192

  Murder, why not punished with death among the ancient Germans, 41

  ⸺ how punished by the Saxons, 252


  N

  Neif, 227, 230, 232

  Nisi Prius, Justices of, 248

  Norfolk, Earl of, his dispute with Edward I., 70

  Northern nations become formidable to the Roman empire, 43

  Notorieties of a fact, how regarded in feudal grants, 60


  O

  Oath of fealty, from whence to be traced, 31

  ⸺ taken by the Saxons, 259

  Officers of Courts, where to be sued, 318

  Officina brevium, 306

  Oleron, laws of, 331

  Oligarchy introduced into England, 182

  Ordeal trial among the Franks, 37

  ⸺ continued after the Norman conquest, 40

  Ormond, Earl of, 201

  ⸺ Duke of, 133

  Overbury, Sir Thomas, 374

  Outlawry, 356

  ⸺ proclamation to be made by statute, 31st Elizabeth, 358


  P

  Païs des coutumes, 52

  ⸺ de loi ecrite, _ibid._

  Pares curiæ, 58, 59, 96, 116, 119

  Paris, Matthew, 186, 188

  Parliament of England, its ancient constitution, 187, 193, 202, 213

  ⸺ its judicature, 319

  Patron, lay, his interest in presentative advowsons, 81

  ⸺ inverted with donatives by grants from the Pope, 83

  ⸺ possessed a power of deprivation, 85

  Peer. See Lords of Parliament

  Peeress, who are her peers, 353

  Pelagius, 143

  Pembrige, Sir Richard, 373

  Pepin, 113

  Persian Empire, 43

  Pembroke, Earl of, 343

  Philip of France, 332, 338

  Plantagenets, 209

  Pleas of the crown, 301

  Pole, Michael de la, 193

  Popes. See Bishops of Rome

  _Posse_ of the county, 292

  Possessions, corporeal, 74

  ⸺ incorporeal, 74, 78, 87, 95

  Pounds overt and covert, 103

  Precedence of Peers, how settled by parliament, 196

  Primogeniture, 137

  Prisage of wines, 73

  Privileges of the subject, whence derived, 16

  ⸺ of the distinct parts of the legislature, 217

  Privileged persons, how to be sued, 307

  Proclamations royal, when and how far legal, 183

  ⸺ conduct of Henry VIII. relative to them, 184

  ⸺ their force in the reign of Elizabeth, _ibid._

  ⸺ baneful consequences attending the arbitrary use of them, 185

  Professors of Laws, 13

  Property, its division, 35

  ⸺ of lands, where lodged by the Franks, _ibid._

  Provisorship, 344

  Provosts, 210

  Punishments inflicted by the ancient courts of law, for public and
        private wrongs, 251

  ⸺ for false imprisonment, 370

  Purbeck, Lord, 194

  Purchases new, how descendible, 144

  Purveyance for the King, 256, 257


  Q

  Quo Warranto, writ of, 301


  R

  Rachat, or Repurchase, 110

  Raleigh, Sir Walter, 376

  Ranks of the people in the Saxon times, 253

  Ravishment of wards, 132

  Record, matter of, 306

  Records of France, lost at the battle of Poictiers, 312

  Recognizance, 155, 308

  Rectorial tithes. See Tithes

  Register of writs, 309

  Refuting the fief, 145

  Reliefs or fines, 107

  ⸺ wherein burdensome to the tenant, 109

  ⸺ altered by Henry II., 290

  ⸺ fixed by Magna Charta, 110

  ⸺ and heriots, their difference, 257

  Remainder derived from a reversion, 96

  Rent charges, 99

  Replevin, 104

  Reversion, right of, in land, 96

  ⸺ fealty and service incidental thereto, 97

  ⸺ on contingency, _ibid._

  Richard I., 329, 332

  Richard II., 181, 183

  Right of entry for possession, 59, 65

  ⸺ action, _ibid._

  Rome, its famous academies, 7

  ⸺ taken by the Goths, 45

  Roman imperial law, 19

  ⸺ empire, 42

  ⸺ emperors, 186

  ⸺ estates, 51

  ⸺ patron and client, 19, 20

  Romans, their policy respecting conquered nations, 22

  ⸺ become socage tenants to the church, 54

  ⸺ their condition under the Franks, 111


  S

  Salic Law, 52

  Sergeanty, grand, 70

  ⸺ various kinds, 72

  ⸺ the rank capable of performing it, _ibid._

  ⸺ for what purposes granted, _ibid._

  ⸺ butlerage held thereby in the family of Ormond, 73

  ⸺ PETTY, _ibid._

  Satisfaction for petty crimes, how regulated by the Franks, 41

  Saxons, the nature of their primitive laws, 4

  ⸺ their government in England, how far feudal, 33, 212, 243

  ⸺ admit the ordeal trial in determining causes, 40

  ⸺ the authority of their Kings, whence derived, 179, 180

  ⸺ their courts of law, 246, 250

  ⸺ method of trial therein, 250, 251

  ⸺ punishments inflicted, 252

  ⸺ nature of their tenures, 254, 265

  Scire facias, writ of, 219, 305

  Scotland, method of studying the law there, 18

  ⸺ its parliament not divided into two houses, 202

  Seal, used in the first written instruments, 60

  Sealing of instruments, why more strictly authenticating them than
        signing, 273

  Seignory, 95

  Sergeants at law, 313

  Service from a tenure, how dependant on the nature of the grant, 96

  ⸺ when required by the lord, 97

  ⸺ rent, 98

  ⸺ made rent seck by statute Edward I., _ibid._

  Sharrburn, Edwin, his lands restored by William the Conqueror, 264

  Sheriffs, their power in making replevins, 104

  ⸺ method of proceeding thereon, _ibid._

  ⸺ appointed to restrain the power of the Earls, 199

  ⸺ nature of their court, 246

  ⸺ nature of their court altered by William the Conqueror, 272

  ⸺ their ignorance of law, 296

  Socage tenures, their increased value, 70

  Socage tenants, 47, 224, 289

  ⸺ nature of the grants to them, 50

  ⸺ subject to distress instead of forfeiture, 97

  ⸺ relief paid by them to their lords, 110

  ⸺ lands granted for life, 57

  ⸺ free and common, 72

  ⸺ petty sergeanty, 73

  ⸺ its derivation, 69

  Society political, for what purposes instituted, 1

  ⸺ the obligations which it lays on individuals, _ibid._

  Sons, the inheritance obtained by the eldest, 137

  ⸺ succeeded equally to the father, 135

  Spaniards, 22

  Special verdict, 356

  Spelman, Sir Henry, 13, 198, 258

  Statute of Ethelwolf, 90

  ⸺ Alfred, _ibid._

  ⸺ Edgar, _ibid._

  ⸺ Edward I. quia emptores terrarum, 99, 146, 149, 384

  ⸺ Edward I. de donis, 121

  ⸺ 34th Edward I., 211

  ⸺ 17th Edward II. de prerogativa regis, 150

  ⸺ for compounding a Knight’s fee, 208

  ⸺ of Marlebridge, 101, 103, 104, 345

  ⸺ respecting knighthood conferred on minors, 124

  ⸺ of Merton, 131

  ⸺ Westminster I., 132, 368

  ⸺ Westminster II., 132, 159, 309

  ⸺ Mortmain, 151

  ⸺ Merchant, 154

  ⸺ of writ of elegit, 156

  ⸺ Elizabeth concerning bankrupts, 157

  ⸺ concerning outlawry, 358

  ⸺ of William the Conqueror, 265

  ⸺ 8th Henry VI. chap. 5., 216

  ⸺ Poyning’s, 221

  ⸺ 28th Henry VIII. suspending Poyning’s law, 222

  ⸺ Philip & Mary respecting Ireland, _ibid._

  ⸺ ancient and present, manner of enacting them, 217

  Stewardship, High, of England, 72

  Stephen, King, 284

  Stilicho, 44, 45

  Strange, Baron of, 193

  Strongbow, 201

  Stuart, house of, 183

  Study of the law in Great Britain, 6

  ⸺ proper method, 7

  ⸺ causes of difficulty therein, 12, 13

  ⸺ reasons for beginning with the law of things instead of that of
        persons, 14

  ⸺ promoted by fixing the courts of justice, 313

  Substitute, when allowed in aid from a vassal, 64

  Subvassals, 33, 57, 65

  Succession royal by descent, 137, 138, 139, 143

  ⸺ collateral, 139, 140

  ⸺ to estates, how rendered hereditary, 107, 110, 144

  ⸺ of sons to the father, 135


  T

  Tacitus, 27, 28, 30, 31, 32, 35, 36

  Talliage, 71, 153, 173, 174

  Taxes, how assessed, 174

  Tenants by sufferance, 50

  ⸺ allodial, 111

  ⸺ not allowed to alienate, 118

  ⸺ copyhold, whence derived, 238

  ⸺ when subject to fines to their lord, 239

  ⸺ their power of alienation, how restricted, _ibid._

  ⸺ in frankalmoine or free alms, 267

  ⸺ in capite, 383

  Toga virilis, what, 34

  Tenures feudal. See fiefs

  ⸺ subject to fealty, 57

  ⸺ military, how forfeited, 65

  ⸺ when abolished, 68

  ⸺ of the crown, obligations therefrom, 187

  ⸺ hereditary, 65

  ⸺ the nature of those now held, 69

  ⸺ Saxon, 254

  ⸺ in ancient demesne, 224, 241, 288

  Temple, the, granted to the practitioners of the law, 313

  Thanes, 253, 258

  Tipperary, its palatinate, 201

  Tithes introduced among the Franks by Charles Martel, 54

  ⸺ when established by law, 80

  ⸺ allocated from the bishop to the parish priest, 82

  ⸺ an incorporeal benefice, 86

  ⸺ originally what, 87

  ⸺ first introduced in Egypt, _ibid._

  ⸺ how distributed there, _ibid._

  ⸺ how rendered compulsory, _ibid._

  ⸺ forgeries concerning them, 88

  ⸺ divided into rectorial and vicarial, 89

  ⸺ how paid in England during the heptarchy, _ibid._

  ⸺ when made payable to the parish priest, 91

  ⸺ monastery lands exempted from them, _ibid._

  ⸺ settled by a modus, _ibid._

  ⸺ Cranmer’s intention concerning them, 92

  ⸺ when established in England on the footing they now stand, 93

  ⸺ their three kinds, _ibid._

  Transportation, 273

  Traders and artizans admitted into the general assembly of the people
        in the thirteenth century, 34

  Treasurer of England, 249

  ⸺ presided in the Exchequer court, 300

  Trinoda necessitas, 256, 264

  Trial, methods of, among the old Germans, 37

  ⸺ received into England, 39

  ⸺ by witness, _ibid._

  ⸺ ordeal. See Ordeal

  ⸺ by negative proof, 40

  ⸺ by battle, 250

  ⸺ by grand assize, 251

  ⸺ by juries, _ibid._

  ⸺ by deposition, 353, 364

  Tudor, house of, 183, 209


  U

  Vandals, 45

  Vassals (military) their connections with their king, 31

  ⸺ bound by an oath of fealty for life, 56

  ⸺ immediate of the king, who, 65

  ⸺ now represented by the parliament, 62

  Villein-land, 226

  Villein, a name given to slaves and servants, 47

  ⸺ nature of the grants made to them, 50

  ⸺ whom reduced to that state, 174

  ⸺ feudal, 224, 225

  ⸺ their property, 226

  ⸺ when allowed to bring actions against their lord, 229

  ⸺ their right of purchasing land, 227

  ⸺ power of their lords over their property, 228

  ⸺ causes of their decrease in England, 237

  Villenage, how destroyed and suspended, 232

  Ulster, county palatine of, 201

  Uncle, the heir of his grand nephew, 139

  University of Dublin, its situation for the study of the law, 12

  ⸺ of Oxford, 10

  Universities, 7, 11, 12

  Voucher, appearance upon, 65

  Uses, doctrine of, 151, 241

  Usury, 4

  Uses and Trust, 388


  W

  Wager of the law, 40, 250, 352

  Wages to members of parliament, how to be levied, 101

  Wardship in chivalry, laws respecting it, 123, 126

  ⸺ in socage, 127

  ⸺ how differing from wardship in chivalry, 128

  ⸺ obligations on the guardian, _ibid._

  ⸺ penalty on marriage without the consent of the lord, 129

  ⸺ its evils, 133

  ⸺ not comprehended in Saxon tenures, 261

  Warranty, 119

  ⸺ collateral, 164

  Warwick, Earl of, 133

  Waste, committing of, 66

  William the Conqueror, 137, 163, 212, 258, 262, 264, 266, 267, 268,
        270, 273, 274

  ⸺ Rufus, 278

  Wills and testaments, unknown to the Franks, 35

  ⸺ lands not devisable thereby, 145

  ⸺ how rendered devisable, 151, 152

  ⸺ required to be in writing, 152

  ⸺ further requisitions, _ibid._

  ⸺ copyholds not devisable thereby, 240

  Wiltshire, John, 72

  Wittenagemots of the Saxons, 180, 212

  Wright, 265

  Writ of chancery to recover by replevin, 104

  ⸺ election to parliament, 190, 191

  ⸺ error, 200, 316

  ⸺ nativo habendo, 231

  ⸺ assize, 293

  ⸺ false judgment, 297

  ⸺ scire facias, 219, 305

  ⸺ original, 308

  ⸺ by a master in chancery, 309

  ⸺ de odio & atia, 351

  ⸺ of capias, 357

  ⸺ alias, _ibid._

  ⸺ pluries, _ibid._

  ⸺ exigent, 358

  ⸺ entry, 365

  ⸺ de homine replegiando, 371.



FINIS.