. c 
 
 GIFT OF 
 
 SEELEY W. MUDD 
 
 and 
 
 GEORGE I. COCHRAN MEYER ELSASSER 
 
 DR. JOHN R. HAYNES WILLIAM L. HONNOLD 
 
 JAMES R. MARTIN MRS. JOSEPH F. SARTORI 
 
 to tke 
 
 UNIVERSITY OF CALIFORNIA 
 
 SOUTHERN BRANCH 
 
 JOHN FISKE
 
 iCM^ 
 
 y^l^''
 
 LECTURES 
 
 ON THE 
 
 CONSTITUTION and LAWS 
 
 O F 
 
 ENGLAND: 
 
 With a COMMENTARY on 
 
 MAGNA CHART A, 
 
 AND ILLUSTRATIONS OF MANY 
 O F T H E 
 
 ENGLISH STATUTES. 
 
 BY THE LATE 
 
 FRANCIS STOUGHTON SULLIVAN, LUD. 
 Royal Profeflbr 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, LI. !>. 
 
 LONDON: 
 
 Printed for Edward and Charles Dillv in the Poultry ; and 
 JostPH Johnson in St. Paul's Church-yard. 
 M,DCC,LXXVI. 
 
 t\ o f ^: \ 
 5 49'r ^ - --" - .
 
 r « • t 
 
 f. ) .^7./
 
 ;; 
 
 To THE RIGHT HONOURABLE 
 
 FREDERICK LORD NORTH- 
 
 KNIGHT OF THE MOST Noble Order of the CARTER, 
 
 First LORD of the TREASURY, 
 
 CHANCELLOR of the E X C H E Q^U E R, 
 
 A N t> 
 
 CHANCELLOR of the UNIVERSITY of Oxford, 
 
 M Y L O R D, 
 
 I Am ambitious of giving dignity to this Work by 
 infcribing it to your Lordfliip j and I conceive that 
 it has a natural claim to your protection. It regards 
 thofe laws and that conftitution which, at a moft cri- 
 tical period, you were called to defend ; and of which 
 the important purpofes are the fecurity and the hap- 
 pinefs of a free people. 
 
 In this illuftrious rank which divides your cares 
 between prerogative and liberty, and in which you 
 fupport the luftre of the Crown, while you guard the 
 
 independence
 
 [ vi ] 
 
 independence of the fubjed: ; the greatefl occafions are 
 afforded to diftinguifh the generofity of public virtue, 
 and to employ a capacity enlarged alike by refledioa 
 and experience. 
 
 But it does not become me to fay with what ho- 
 nour to yourfelf, and with what advantages to the 
 nation, you fuftain the arduous charge of government. 
 To pofterity, which will not be fufpeded of flattery, 
 it muft be left to celebrate the merits of an Admini- 
 ftration, too vigorous to yield under difficulties, and 
 of which the glory has increafed with danger. 
 
 I am, with the greatefl: refpe6t, 
 
 My Lo R D, 
 
 Your Lordihip's 
 Mofl: obedient, 
 And mofl humble fervant,. 
 
 GILBERT STUART.
 
 [ vii ] 
 
 A D V E R T I S E M E N T. 
 
 THE following Lectures were delivered in the Univerfity 
 of Dublin, and procured a very high Reputation to their 
 Author. The Refearches they contain into the Nature and 
 Hiftory of the Feudal Laws, were efteemed extcnfive and in- 
 genious ; and the Defcription they exliibit of the English 
 Constitution, will be allowed to be particularly interefling. 
 Thefe Advantages have occafioned their Publication. It was 
 thought, that Papers, which had done fo much Honour to Dr. 
 Sullivan, when alive, ought to illuftrate his Memory; and 
 that they might prove of Ufe to the prefent Age, and to Po- 
 g ilierity. 
 
 The Authorities afligned for Dr Sullivan's Opinions and 
 33 Reafonings are furniQied by the Editor. They are not, per- 
 
 ^ haps, in every Inftance thole to which he himfelf would have 
 
 appealed. This could not have been expelled. They are 
 fuch, notwithftanding, as will alfift the Student ; and the Pre- 
 liminary Discourse, it is hoped, will not be thought an 
 ufelefi or improper Addition to his Lectures. It will be a 
 Pleafui-e to the Editor to reflect that he has endeavoured to 
 pay a Tribute of Refpedl to the Wintings of a virtuous Man and 
 an ingenious Lawyer, whom an immature Death had raviflied 
 from liis Frietids and from Society,
 
 XX 
 
 CONTENTS. 
 
 LECTURE I. 
 
 THE intention and piirpcfes of political fociety — Cufioms and mamiers. 
 govern men before the enailment of pofitive laws — Arts and 
 property the fources of legi flat ion — Peadiarities attending the injlitu- 
 tJons of hycurgus and thofe of Mofes — In the infancy of a fate, lavjs 
 are few and plain — In times of civility and refinement, they are nu- 
 merous and complicated — The liberty of the people, a great caife of the 
 multiplicity of laws — The difficidty of the fliidy of the Euglip lavj — The 
 methods which have been followed in the fudy of it. 
 
 L E C T. II. 
 
 The plan of the prefent undertaking— The partkidars in which it 
 differs from that adopted by Mr Blackfone — The different ftuations of 
 the Univerfities of Oxford and Dublin — The chief obfirudions which 
 occur to the fiudent of the EfiglifJy laws — The methods which may be 
 employed to remove them — The law of things mo7-e proper to intro- 
 duce a fyfiem of jurifprudence than the laxu of peribns — The law of 
 things, or of real property in England, has its foiirce in the feudal 
 cufoms — The necefpty of a general acqtiaintance with the principles of 
 the feudal polity — The method in which it is propofcd to treat of it. 
 
 L E C T. III. 
 
 An enumeration and confutation of fever al opiriions concerning the 
 foundation of the feudal cufoms — The origin and rides of the feudal law 
 to be deduced from the infitution of the German nations before they in- 
 vaded the Roman empire — The Englif} indebted for this law to the 
 Franks — A general dcfcription of this people, with an account of the 
 
 b feveral
 
 X 
 
 CONTENTS. 
 
 feveral orders of men into ivhicb they tuere divided ivhile they continued 
 in Germany. 
 
 L E C T. IV. 
 
 The companions of a German Prince — The conjlitiition of a German 
 klncrdoni — The condition of property in Genfiany — The methods folloiued 
 there of difrikiting jnjlicc^ and the nature of the pimifmients infixed on 
 criminals.. 
 
 L E C T. V. 
 
 The decline of the Roman empire — The invafions of the Northern na' 
 tions — The manner in -which they fettled in the Roman provinces — The 
 changes infcnfhly introduced among thein in confequence of their new fttu- 
 ation — The policy and condition of the Franks after they had fettled in 
 France — The rife of the feudal law — Eftates beneficiary and temporary^ 
 
 L E C T. VI. 
 
 The introduBion of e fates for life into the feudal fif em — The nature 
 mid forms of invefiturc — The oath of fealty , and the obligations of 
 Lord and tenant. 
 
 L E C T. VII. 
 
 Improper feuds or benefices — Grants to the Church — Grants in which 
 the oath of fealty was remitted^Grants to which a condition was an- 
 nexed that enlarged or diminifocd the efate — Grants which referved cer- 
 tain other ferviccs, befide military fcrvice— ^Grants implying fomc certain 
 fervice, as rent, and not referving military fervice — Grants refcving no 
 fervices, but general fealty — Grand Serjeantry — Petty Scrjcantry—' 
 Grants to women — Grants of things not corporenl-^Fcudum de Cavena — 
 Feudum de Camera, 
 
 L E C T,
 
 CONTENTS. xi 
 
 L E C T. VIII. 
 
 Fcudtm SoUatte — Fcudttm habitationis — Faidum Guardi^ — Fciidum 
 Gaftaldie — Feudmn mercedis — Incorporeal benefices in England — Al' 
 vowfons — Prefentative advoiufons — Collative advowjons — Donatives. . 
 
 L E C T. IX. 
 
 Tithes — The voluntary contributions of the faithful, the original re- 
 venue of the Church — The ejlablifhrnent of regidar payments — The ap- 
 propriations of the Church — The. hijlory and general rules of tithes in 
 Eaigland. 
 
 L E C T. X. 
 
 The right of Seignory and its confequences — The right of Rcverfion — • 
 Rent feck — Rent charge — The nature of diftreis, as the remedy, for 
 recovering feudal duties. Obfcrvations on diftrefles in general. 
 
 L E C T. XL 
 
 The manner in ivhich efiates for life came to be enlarged into defcen- 
 dible eflatcs — The nature of Reliefs — Feudal opprejfions — The ad?ni(Jion 
 of allodial lands into the feudal policy — The extenfon of the feudal fyfl em 
 in France. 
 
 L E C T. SII. 
 
 Confequences attending the introduction of efiates of inheritance — The 
 incident of homage — Differences in England and the Continent, ivith re- 
 gard to the ceremonies of homage and fealty — The fine of alienation — 
 Attornment — Warranties — Wardfhip in chivalry. 
 
 L E C T. XIII. 
 
 Wardfhip in Socage — The nature and hifiory of the incident of mar- 
 riage. 
 
 L E C T.
 
 -m CONTENTS. 
 
 L E C T. XIV. 
 
 The rules of defcent in the old feudal lazu in regard to the foiis of the 
 Jafl pofcjfor — Reprcfcntation and collateral fuccejfion — Feminine feuds ^ 
 
 L E C T. XV. 
 
 The difference between allodial and feudal lands — The reJiriBions on 
 the feudal laiv — The decay ofthefe — The hiftory of voluntary alienations, 
 
 L E C T. XVI. 
 
 Involuntary alienations of feudal land — Talliage — Edward T. intro- 
 duces the firfi involuntary attachment of lands — Statutes enacled for this 
 purpofe — Their cffcBs — The origin of efates Tail, 
 
 L E C T. XVII. 
 
 The confequenccs and hijlory of efates Tail. 
 
 L E C T. XVIIL 
 
 Tl)e confitution of a feudal monarchy — The dignity and revenues of 
 the King — At examination of his poiver as to the raifmg of taxes and 
 fuhfidies. 
 
 L E C T. XIX. 
 
 The Kin^s power as to the making, repealing, altering, or difpenfmg 
 ivith laws. 
 
 L E C T. XX. 
 
 Lords of Parliament or Peers — Earls or Barons — The earlier fate 
 vf Baronies in England — The Barones majores ci' minores — Barons by 
 writ and by letters patent — The different ranks of Nobility. 
 
 L E C T. XXI. 
 
 Earls or Counts as dijlinguifed from Barons — The office of Counts — 
 Their condition after the con'qucf — Counties Palatine in England — Coun- 
 ties Palatine in Ireland — Spiritual Peers — The trials of Noblemen. 
 
 L E C T.
 
 CONTENTS. xili 
 
 L E C T. xxir. 
 
 The (hare of the Commons in the Legiflatiirc — The A'migcri or Gen- 
 try — Knights Bannerets — The nature of Knighthood altered in the reign 
 of James I Knights Baronets — Citizens and Burghers — The advance- 
 ment of the power and reputation of the Commons. 
 
 L E C T. XXIII. 
 
 The privilege of voting for Knights of the Shire — The hufinefs of 
 the different branches of the Legijlatiire, dijlind: and feparate — The 
 method of pafing laius — The hijlory and form of the legijlature in Ire- 
 land., 
 
 E E C T. XXIV. 
 
 Villenage — The Scrvi in Germany, mentioned by Ccefar and Tacitus, 
 the predcccJ]'ors of the Socmen or focage tenants in the feudal monarchy — - 
 Villeins in grofs and villeins belonging to the land of the Lord — The 
 condition of villeins — The different -ways by ivhich a man may become a 
 villein — The means by which villenage or its eff'cBs may he fifpended. 
 
 L E C T>. XXV. 
 
 The methods invented to defray villenage — The bent of the law of 
 England towards liberty — Copyhold tenants^-Tenants in ancient demefne. 
 
 L E C T. XXVL 
 
 The condition and fate of laws in England during the Saxon times — • 
 The military policy of the Saxons not fo pcrfeB as that of the Franks—^ 
 Their Kings eleifive — The divifion of the kingdom into fires, hundreds, 
 and ti things — The adminif ration of jufice — The county court — The hun- 
 dred 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, 
 
 L E C T.
 
 XIV 
 
 CONTENTS. 
 
 L E c T. xxvir. 
 
 I'hc pwiiflmKnt of public crbnes and private ivro7igs among the- 
 Saxons — The ranks of men among the Saxons — The dificulty of afcer- 
 taining the nature of the Saxon efates, and the tenures by -which they 
 ivere hcld—Obfcrvations to prove, that the Saxon lands were in general 
 allodial. 
 
 L E C T. XXVIH. 
 
 The Saxons, though their lands in general ivere allodial, ivere not 
 grangers to milita?j benefices for life — The alterations introduced by 
 JFilliam the Norman, as to the tenure of lands in England,. 
 
 L E C T. XXIX. 
 
 The alterations introduced by William, as to the adminiflration of ju- 
 flice — The Judges of the Curia Regis are appointed from among the 
 Normans — The county courts decline — The introduBion of the Norman 
 language — The difinBion between courts of record, and not of record — 
 The fcparation of the fpiritual and temporal courts — The confcquenccs of 
 this meafure. 
 
 L E C T. XXX. 
 
 Robert Duke of Normandy, and William Rufiis, dijpute the fuccejfion 
 to the Conqueror — The Englifo prefer the latter — The forefl laws — The- 
 cruelty and oppreffions of William — The advancement of Henry, the Con- 
 queror's yowigeji fon, to the crown of England — He grants a charter — . 
 The nature of this charter — His difpute with yifelm concerning Invcjli- 
 tures-^The celibacy of the clergy — State of the kingdom under Stephen. 
 
 L E C T. XXXI. 
 
 Henry IT. fucceeds to the crown — The reformation of ahfes — Ahera- 
 lions introduced into the Englif law — The commutation of fervices into 
 money — Efcuage or Scut age — Reliefs — Ajjizes of novel' dijfcifm, and other 
 
 ojftzes. 
 
 L E C T. XXXII. 
 
 The injiitution of Judges itinerant, or Jujlices in Eyre — The advan- 
 tages attending ii — The jurifdidion of thefe Judges — Their circuits — The 
 
 prefent
 
 CONTENTS. XV 
 
 prcfcnt form of tranfafling the county hufnicfs — 7 he divifion of the Quia 
 Regis into four courts — The jnrifdiflion of the court ofKin^s Bench. 
 
 L E C T. XXXIII. 
 
 The jiirifdidion of the high court of Chancery — The cJ}anceUor, a very 
 con fider able officer in the Curia Regis — The repeal of letters patent, impro- 
 vident ly ifi/ed to the detriment of the King or the fuhjcLl, a branch of the 
 jurifliifion of the court of Chancery — The Chancery, ajjfijiant to the Ex- 
 chequer in matters of the King's revenue — Other branches of the bufincfs 
 of this court. 
 
 L E C T. XXXIV. 
 
 The court of Common Bench or Common Pleas — The jurifiiilion of this 
 •Court — Adions real, perfonal, or mixt — The court of Exchequer — The 
 jurifdidion of this court — Exchequer chamber — The judicature of Parlia- 
 ment. 
 
 L E C T. XXXV. 
 
 'Henry IPs difputc with Becket — The conjlitutions of Clarendon — The 
 murder of Becket. 
 
 L E C T. XXXVI. 
 
 The rebellions of Henry's fans — Be is fucceeded by Richard I. The 
 
 fleps taken at this period towards fettling the fuccejfion to the kingdom — ■ 
 The laws of Oleron — Accejfon of John — His cruelty and opprefftons. 
 
 L E C T. XXXVII. 
 
 "John's difpute with the court of Rome— 'Cardinal Langton promoted 
 to he Archbifop of Canterbury — Pope Innocent lays the kingdom under an 
 inter did — John is excommimicated — His fubmiffion to Innocent — The dif- 
 contents of the Barons — Magna charta and charta de Forefla — An ex- 
 amination of the ^leflion. Whether the rights and liberties, contained in 
 thcfe charters ^ are to be confidercd as the antient rights and liberties of 
 
 the
 
 XVI 
 
 e O N T E N T S, 
 
 the nation, or as the fruits of rebellion, and revocable by the fuc'cejfors of 
 John ? 
 
 L E C T. XXXVIIL 
 
 The minority of Henry III. — Ecclefiaflical grievances — 'tl)e difpenfing 
 power — The canon law — Confirmation of Magna Chart a — A commentary, 
 on Magna Charta, infofar as it relates to what now is law. 
 
 L E C T. XXXIX, XL, XLI, XLII, and XLIIL 
 
 Continuation of the commentary on Magna Charta. 
 
 A D I S- 
 
 \
 
 A 
 
 DISCOURSE 
 
 CONCERNING THE 
 
 LAWS AND GOVERNMENT 
 
 O F 
 
 ENGLAND. 
 
 THE lafl conqueft attempted under the Roman Republic 
 was that of Britain. Julius Cselar, on the pretence that 
 its dates had given alFiftance to the Gauls, but chiefly from a 
 motive of glory, carried the Roman Eagles into a country from 
 which he was to retreat with dilgrace. It required a length of 
 time, and a fucceflion of able Proconfuls to reduce to fubjec- 
 tion Communities of fierce and independent warriours ; and 
 policy efFeclcd what could not be operated by arms. The 
 Britains were debauched into a relemblance with a moll cor- 
 rupted people. They renounced the fatigues of war for the 
 blandifliments of peace. They forfook their huts for palaces ; 
 affecfted a coftlinefs of living, and gave way to a feducing volup- 
 tuoufnefs. They funk into an abjeft debafement, without ha- 
 ving run that career of greatnefs, which, in genei'al, precedes 
 the decline of nations ; and, when they were trained to an op- 
 preifive yoke, the Romans found it neceflary to abandon them. 
 The impreflion wliich the barbarous tribes had made upon the 
 Empire required the prelence of the diftant legions i. 
 
 a The 
 
 I, Cxfar de bell. Gal. lib. 4. c. 1 8. Tacit, vit. Agric. Dion CafTius, vit. Sever.
 
 11 DISCOURSE ON THE LAWS AND 
 
 The liberty which die Romans, on their departure, prefented 
 to the Britains, could not be enjoyed by them. Timid and 
 daftardly, they fled before the Picts and Scots, and allowed 
 their countiy to be ravaged by a cruel and undifciplined enemy. 
 Amidft the fuggeftions of their fear, they forgot every principle 
 of policy and of prudence ; they called to their defence a fo^ 
 reign valour. The Saxons were invited to fight their battles ; 
 but they adled not long as protectors. Tliey were allured by 
 the proipe^l of coinpleating a fettlement in this ifland ; and the 
 total ruin of its inhabitants was projected. Defpair gave a tem- 
 poi'ary vigour and union to the Britains. They were unable, 
 however, to refift a people, accuftomed to victory, and direfted 
 by experienced commanders. The valiant and magnanimous 
 fell by the fword ; the ignoble flibmitted to an ignominious fer- 
 vitude : Wales afforded a retreat to fbme ; and others found fliel- 
 ter in Armorica 2. 
 
 But, if the Saxon conqueft: was ruinous to the Britains, it was 
 yet attended with confequences which were lading and impor- 
 tant. The lun of liberty revifited the ifland, and difplayed it- 
 felf with uncommon luftre. The Saxons, independent in their 
 original feats, fubmitted not to tyrants in their new fitviation. 
 They laid the foundation of a political fabric, the nioft: valuable 
 that has, at any time, appeared among men ; and which, though 
 fliaken by violent revolutions, a train of fortunate circumflances 
 has continued down to the prefent times. Fluiftuations have 
 taken place between prerogative and liberty ; but, accident and 
 wifdom have flill confpired to.preferve us from the fate of die 
 other kingdoms of Europe. 
 
 During 
 
 2. Bede, lib. i.
 
 GOVERNMENT OF ENGLAND. iU 
 
 Dunno; the exiftcncc, however, of the Heptarchy, the Saxons 
 feem to have departed little from their original condition of So- 
 ciety. The ferocious picfture which Tacitus has drawn of the 
 Germans, is, with a few exceptions, charaiftieriftic of them. If 
 we admire their heroilin, we are fhocked with their cruelty ; 
 and if we are in love with their democratical maxims, we mult 
 fbmetimes regret tiieir contempt of juflice and of order. The 
 moft important innovation introduced into their manners dur- 
 ing this sera was their converfion to chriflianity. But their ac- 
 quaintance with this mode of faith failed to be producflive of 
 beneficial conlequences. As they received it from the corrupted 
 Iburce of the Church of Rome, it involved them in endleis and. 
 idle difputes. It detracted from the vigour of their undei-flanding, 
 by turning their attention from civil precautions, and the arts of 
 policy, to the relics of iaints, and the (everities of religious dif- 
 cipline. The power derived from it intoxicated eccleliaflics : 
 They prefumed to interfere in affairs of (late ; and, a founda- 
 tion feemed already to be laid for fubjeding the ifland to the 
 dommlonof the Roman Pontiffs^ 
 
 When the Saxon kingdoms were confolidated into one ftatc 
 under Egbert, improvements were made In civility and know- 
 ledge. The incurfions of the Danes, and the difbrders rellilt- 
 ing from them, called forth the ability and the wifdom of the 
 Anglo-Saxon Princes. Alfred, notwithftanding the other im- 
 portant tranfaftions of his reign, found leifure to frame into a 
 code the laws of his predeceflbrs, and thofe Germanic cufloms 
 which had retained their influence. King Edgar has likeways 
 come down to us with the character of an able legiflator. The 
 eftablifhment of the Danes in England gave occafion to new 
 vilages and new laws j but thefe were neither many, nor confi- 
 
 derable. 
 3. Bede, lib. 3. and 5.
 
 iv DISCOURSE ON THE LAWS AND 
 
 derable 4. The ability of Canute did not allow him to make 
 di(lin(5Hons between his Danilli and his Englifh fubje<5ls ; and 
 die fceptre was not long in returning to a prince of the Saxon 
 line. No Monarch was ever more acceptable to a State than 
 Edward tlie Confeflbr ; and, though he had rather the qualities of 
 a faint than thofe of a king, his laws have been highly extolled. 
 They were flrenuoufly contended for during the adminift ration 
 of the earlier Norman princes ; they kept their ground in op- 
 pofition to the clergy and the imperial inftitutions ; and 'they 
 furniflied the foundation of what is termed the Common Law 
 of England 5. 
 
 In 
 
 4. The divifion of laws, during the Anglo-Saxon period, into Weft- Saxon-lage, 
 Mercen-lage and Dane-lage, was not of any importance. Thefe differed not 
 effentially from one another. " Our Saxons, fays Sir Henry Spelinan, though di- 
 " vided into many kingdoms, yet were they all one in effect, in manners, laws and 
 *' language : So that the breaking of theii* government into many kingdoms, or 
 " the reuniting of their kingdoms into a monarchy, wrouglit little or no change 
 " amongft them touching laws. For, though we talk of the WeJhSaxon-law, the 
 " Mercian- Icew and tlie Dune-lavj, whereby the weft parts of England, the middle 
 " parts, and thofe of Norfolk, Suffolk and the north, were feverally governed ; yet 
 " held they all an uniformity in fubftance, differing rather in theii- mulifls than in 
 <« their canea ; that is, in the quantity of iines and amerciaments, tlian in the 
 « courfe and frame of juftice." Relig. Spdm. p. 49. 
 
 c. King Edward's laws were compiled from thofe of former princes, and abolilli- 
 ed any httle peculiarities which diftinguilhed the Weft-Saxon, Mercian and Danilh 
 laws, fubjecling the whole kingdom to a common law. His code, accordingly, was 
 termed lex Jngli-(, or L-x teme. No corredl copy of it has defcended to us. 
 Thofe regulations, wliich pafs under his name in the editions of the Saxon-laws 
 by Lambard and Wilkins, have evidently fome interpolations. Traces of them 
 are to be feen in Hoveden and Knyghton ; and remains of them are likcways to be 
 found in the laws of WilHam I. From the time of this Prince to that of King 
 John, they continued, with the addition of fome Norman laws and cuftoms, the 
 law of tlie land. Pracipimus, fays William, ut omnes haheant et teneant leges 
 Ed'jiardi regis in omnibus rebus, adau^is his quas conjiituimus ad utilitatfm Anglorum. 
 
 Leg.
 
 GOVERNMENT OF ENGLAND. v 
 
 111 no portion of the Anglo-Saxon period does the power of 
 the Sovereign appear to have been exorbitant or formidable. 
 The enadioti of Laws, and the fupreme fway in all matters, 
 whether civil or ecclefiaRical, were vefted in the Witienagcmot, 
 or great National Aflembly '^. This council confifted of King, 
 Lords, and Commons, and exliibited a fpecies of government, 
 of which political liberty was the neceflary confequence ; as its 
 component parts were mutually a check to one another. The 
 free condition of the northern nations, and the peculiarity of 
 their lituation when they had made conquells, gave rife to this 
 valuable fcheme of admin iftration, and taught the politicians of 
 Europe uhat was unknown to antiquity, a diflincfUon between 
 defpotifm and monarchy. 
 
 The executive power remained with the crown ; but it was 
 the united aflent of the three eftates which conflituted the leaiP- 
 lature. The Lords were fpiritual as well as temporal ; for not- 
 withftauding that the Ecclefiaftics preached humility, and the 
 contempt of private intereft, they had been feized with ambi- 
 tion and the love of (liperiority 7. The people exercifed an 
 
 authority 
 
 Leg. Ciiliel. ap. Wilkins, p. 229. By the influence of the Barons under the laft 
 Prince, they were drawn up in the form of Magna Charta. For the great charter 
 was not what feme partial writers ha^'e reprefented it, a conceffion of privileges 
 extorted by violence, but a declaration of the principal grounds of the antient and 
 fundamental laws of England, and a correftion of the defefts of the common law. 
 See Lord Coke 2 In/t. and Lord Lyttelton's h'ljl. of Henry II. voLI. p. 42. 526. 
 
 6. IVittemigemot, imports a council of wife men ; the Saxon word vj'itta fio-ni- 
 fying a wife man ; and the Britifh word gemot expreUing a fynod or council. 
 During the Heptarchy, each kingdom had its U'ittenagemot . 
 
 7. The lay lords were the earls, thanes, and other nobility of the kingdom. 
 The fpiritual lords were the biiiiops and dignitaries of the church, whole poflefli- 
 ons were held in Frankalmoigne. After the conqucll, they were fubjefted to mi- 
 litary
 
 vl DISCOURSE ON THE LAWS and 
 
 authority that was important aiid ample. The counties ap- 
 peared by their knights, and the cities and boroughs by their 
 citizens and burgefles ; the Commons, as at tiais day con'titu- 
 ted, being inckided under the appellation of the luites or fapien- 
 tcs, who are always mentioned as a part of the Anglo-Saxoiv 
 parliament S. The aflertors of prerogative, indeed, liave affirnl- 
 
 ed 
 
 litary fervice and held by barony. Wliat may feem extraordinary, Ahefles were 
 alfo in ufe to fit in the Saxon Wittenagemots. In Wiwhtred's ^reat council at 
 Beconceld, «w«9 694. the Abefles fat and deliberated, and feveral of them fubfcrib- 
 ed the decrees made in it. Spel. cone. vol. I. The abeffes appeared alio in Ethel- 
 wolf's parliament at Winchefter anno 8 '55. Itigulph, edit, 'iavil. 862. And king 
 Edward's charter to the abbay of Croyland was fubfcribed by an abbefs. Even 
 in the time of Henry III. and in that of Edward I. it appears that four ab- 
 belFes Mere fummoned to parliament ; thofe of Shaftibury, Berking, St. Mary of 
 Winchefter, and of Wilton. Tit. hon. p. 729, and IVhitelock's notes upon the king's 
 'jiritfor choofing members of Parliament, vol. I. p. 479. 480. 
 
 8. The preambles of the Saxon laws exprefs an anxiety to pleafe the people,, 
 and allude to their confent in enabling them. The laws of king Ina begin thus : 
 Ego Ina Del gratia Occiduorum Snxonum Rex, mm confllio et cum doftrina Cenreda 
 fatris met, et Hedd<e Epifcopi met, et cum omnibus meis fenatoribus, et fenioribus SA.- 
 PIENTIBUS POPULI ME!, et midta etiam forietate minijlrorum Dei, confi<ltabam de 
 falute anims mflne, et de fundamento regni nojlri, ut jujia leges, et jujia flatuta per 
 ditionem nojlram ftabilita et conjlituta ejfent, ut nullus fenator nee fubditus mjler pofl 
 h.tc has nn/fras leges infringer et. See LL. Jlriglo-Saxon, ap. U'ilkins, p. 14. The 
 preambles to the laws of the other princes are nearly Cmilar ; and thofe of Ed- 
 gar, Ethelred and Canute, may ferve as additional examples, i. Leges Eadgari 
 regis. Hoc et inftitutum quod Eadgarus cum SAPIENTUM SUORUM conj.lio injiituit 
 in gloriam Dei, et fibi ipji in dignitatem regiam, et in ut Hit at em omni populo fuo. 1. 
 Leges /Ethelredi regis. Hoc eft con; Hum quod JEthelredus rex, et sapie.ntfs rjus 
 confultaverunt ad emendationem pads omni populo JVodfioci fffregione T lerciorum, fe- 
 cundum Jngli.e leges. 3. Leges Cnuti regis. Hoc efl conjUum quod Cnutus rex, 
 totius Anglix et Danorum et Noriuegorum rex, cum sapientum suoauM conj.Uo/an- 
 civit, in luudem Dei, et fbi ipj! in ornamentum regium, et ad utilitatem populi ; et hoc 
 tratfacris natalibus domini noflri liintonia. See U'ilkins, p. 76. 102. 126. 
 
 In the 8th law of Edward the Confeflbr we read, H<sc conceffa funt arege, baro. 
 nibus et populo; and m his .3 5th law we have the following words: Hoc eniin 
 
 fafiwn
 
 GOVERNMENT OF ENGLAND. vii 
 
 ed that thcfe were judges or men fkilled in the law; but this 
 
 opinion 
 
 fa£lum fuit per coMMTTne constlium et assknsum omnium epifcoporum, priiici- 
 piim, procerum, comitum, et omn'nnn sapientum femoruin et populorum totlut 
 regni^ et per praceptum regis Inx preed'iSli. See Wilkins, p. 198. The laws of 
 Edward are, I know, to be read with diftruft; but they are allowed to contain 
 genuhie relics of that prince ; and, in the prefent cafe, there feenis no rea- 
 fon for fufpicion. 1 heir appeal oi confequcnce to the ajjent of the people muit be 
 allowed to be of authority. For, if fuch ajfent was not known and believed in 
 that age, how is it pofllble that they could appeal to it? The advocates for the 
 late origin of the houfe of commons will iwt furely fuppofe, that the Confeflbr 
 alluded proplietically to tranfadions which were not to happen till the reigns of 
 Henry m. and Edward I. 
 
 In the Alirrotre de Jitfihes, it is exprefsly faid, that no king, during the Saxon 
 times, could diange his money, nor enhance nor impair it, nor make any money 
 but of filver, witliout the ajfent of the Lords and all the Commons. Part of this 
 book is conceived by Sir Edward Coke to have been written before the conqueft ; 
 and additions were made to it by Andrew Horn in the reign of Edward I. from 
 old MSS. the authors of which mufl: have feen ancient rolls and records. Mat- 
 ter, alio, from more exceptionable materials, it is to be thought, was fuperadded 
 by him. The book is notwithftanding of coufiderable weight and authority. 
 Mirroire des JuJIkes, cap. i. fefl:. 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 traft, which bears 
 this title : Modus quomodo parliamentum regis Anglic et Anglo RUM suorum teneba- 
 f«r TEMPORlBirs REGIS Edwardi, filit REGIS Ethelredi, qui modus recitatus fuit 
 per difcretiores regni coram U'illiehno duce Norir.annia conqueftore et rege Anglta 
 ipfo conqucJJore hoc pr^cipiente, et per ipfum approhatus, et fids temporihus et tem- 
 poribus fuccefjorum fuorum rcgum AngUa ufitatus. Other authors befide Lord 
 Coke have paid great refpeft to this treatife. It is to be acknowledged, however, 
 that Mr Selden has demonftrated that this traft could not poflibly be of the age of 
 the Confeflbr, from its employing terms which were not in ufe till long- after. 
 But this does not wholly derogate from its force as to the point in que^^ion. 
 For, allowing it to have been written in the reign of Edward III. the period which, 
 with great probabihry, fome writers have afligned to it, it vet proves that the fenfe of 
 that period was full and Prong with regard to the antiquity of the conftitution, as 
 confifting of king, lords and commons ; a circumftance which niuft \\zve great 
 weight in oppoiition to tliofe, who would make us believe, that our conftitution, 
 
 as
 
 vlii DISCOURSE on the LAWS and 
 
 opinion they fupport by very exceptionable evidence 9 : And k 
 
 has 
 
 as fo formed, was unknown till the times of Henry III. and Edward I. 4 Injlttute, 
 p. 2. 12. Selden, tit. hon. p. 739. 743. 
 
 " In the time of king Canutus, fays Whitelocke, to a charter then graunted to 
 " the monaftery of St. Edmond's Bury (probably in a pnblique councell) after the 
 " fubfcriptions of the queen and dukes, foUowes, / Oftaus, knight, / Thored, 
 " KNIGHT, / Tburkell, knight, and fo of others. How many thefe were, or how 
 " for feveral counties, doth not appear ; nor in that parlement of the fame king 
 •' (for fo is teftified by the difcriptioii of it) where it is fayd, that the king calling 
 " all the prtelats of his kingdonie, and the nobles, and great men to his parlement, 
 •' there were prefent bijhops, abbots, dukes, earles, -with many militibus, butte 
 " the certain number is not extant; nor of thofe which are mentioned in the par- 
 " lenient of Edward the Confeflbr, where after the king, queen, archbilhops, bi- 
 ." Ihops, abbots, king's chapleins, Thaines, knights are reckoned in that parle- 
 " ment." Notes upon the king's -writ, vol. i. p. 437. 
 
 Lambard, Dugdale, and other antiquaries, produce a very ftrong evidence of the 
 antiquity of the reprefentation of boroughs, by evincing, " That in eveiy quarter 
 " of the reahn, a great many borouglis do yet fend burgeffes to parUament, which 
 " are neverthelefs fo ancient, and fo long fince decayed, and gone to nought, that 
 " it cannot be Jhewed that tliey ha\'e been of any reputation at any time (ince the 
 " Conqueft; and much lefs that they have obtained this privilege by the grant of 
 " any king fucceeding the fame. So that the intereft winch they have in parha- 
 " ment groweth by an ancient ufage before the Conqueft, whereof they cannot 
 " ihew any beginning." Lambard Jrcheion, p. 256. 257. Coke EpiJ}. 9. Rep. 
 Dugdale, Jurid. p. 15. 
 
 This matter receives confirmation from what we are told of the boroughs of an. 
 dent demefne. " 1 hefe, fays Whitelocke, were tenants of the demefne lands of 
 '< William I. and of Edward the Confeflbr ; who (to the end that they might not 
 ♦' be hindered from their bufinefs of hulbandry of the king's land?) had many pri- 
 " vileges, whereof one was, that they ihould not be compelled to ferve in parlia- 
 " ment. Another vsas, that they Jhould not contribute to the wages of knights 
 " OK the shire. Which privileges they ftill enjoy, and had their beginning in 
 " the times of William I. and of the Confelfor, whofe tenants they firft were, as 
 " appears in the book of I3omefday, and is a fhong proof, that kmights and bi;r- 
 " GLSSES were tlien in parliament." Notes upon the Kings Writ, vol. 1 1. p. n^q. 
 
 Sefe alfo the 2 id note to the prefent traft. 
 9. The law was not then a particular profeffion. 
 
 1
 
 GOVERNMENT OF ENGLAND. ix 
 
 has been conjedtured, with no meaflire of propriety, by fbnie 
 compromifing writers, that all the more confiderable proprietors 
 of land had a title, without any eledlion, to give their AOtes in 
 the Wittenagemot i°. 
 
 In inferior allemblies, and in the forms of judicial proceed- 
 ings, the marks are alfo to be traced of the power of the people, 
 and of a limited adminiftration. The hundred and county 
 courts were admirably calculated for the proteclion of the (lib- 
 jecl. They were compoled oi freeholders, who were bound, un- 
 der a penalty, to allemble at ftated times ; and who, with the 
 hundreder, earl and bifliop, gave decilion in all matters of civil, 
 criminal, or eccleilaftical import. A very powerful obflruclion 
 was thus created to the oppreffions of the great. And, in the 
 inllitution of^jurj, our anceftors pofleflcd a bulwark, the mod 
 efficacious and noble that human wifdom has ever devifed for 
 the fecurity of the perfons and pofleffions of men ". 
 
 ^ Nor 
 
 lo. On the following record in the regifler of Ely, this notion feems to be 
 founded. Jbbas IVulfrtcus halmh fratrem, Cuthmundum vocahuh ; cu'i flimn pra- 
 potent'ts viri In matrimonium conjungi par aver at ; fed quon'iam tile XL. h'ldarum terra 
 dominium minus obttneret, licet nohilis ej/et, inter proceres tunc nzmcirpari non potint. 
 It is fomewhat remarkable, that Mr Hume is among thofe, who, refting on this 
 foundation, would make us conceiv^e, that a peifon who had 40 hides of land, 
 could, without being noble, give his voice in the Wittenagemot. Hi/}, of Ejig. 
 vol. I. p. 145. The paiTage, however, properly underftood, ferves to fliew, that,inthe 
 courfe of time, the attendance of the Nobles in parliament, having been deemed an 
 expenfive fervice, a law was made to relieve thofe of them from it who were not 
 poifelTed of 40 hides of land. The reader may confult hifl.Elienf, c. 36. 40. cip. 
 Cole, tlie authority appealed to by IVIr Kume. 
 
 II. It is perhaps impofiible to afcertain tlie a:ra of this invaluable inftitu- 
 
 tion. It lofes itfelf in a dillant antiquity. The Saxon laws mention 
 
 * it as a known invention. See L L. Ethelr. c. 4. Senat. Confult. de Mont. J'/al. 
 
 c. 3. r.p. IVilkins. See alfo Nicolfon, Prafat. ad Leg. Anglo-Sax. Spelm. Glojf. 
 
 and Coke's ifl Infiitute. Glaus Wormius traces it to a remote age am.ong the 
 
 Danes ;
 
 X DISCOURSE ON THE LAWS AND 
 
 Nor was the condition of thofe times ib entirely deflltiite of 
 grandeur as fome hiftorians have been fond to aflert. Even 
 in the age of Tacitus, London was a port not unknown to navi- 
 gators 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 indultry, trade and manufaftures ; and even import- 
 ed the luxuries of life from the mod diilant countries M. It 
 was a law of Athelllane, that the merchant, who had perform- 
 ed at his own expence three long and hazardous voyages, fliould 
 be Inverted with nobility '5. Civility and knowledge, commerce 
 and wealth increaled under Edgar, whofe ability and affable 
 manners allured many foreigners to his court ; and affairs did 
 not degenerate, nor was England lels refpedtable under the 
 peaceful and fortunate adminillration of Edward tlie Confeflbr. 
 
 But the beautiful pre-eminence on the fide of the people, 
 enjoyed during the Saxon times, was (bon to be violated. The 
 invafion of the duke of Normandy was about to introduce (iin- 
 
 guinary 
 
 Danes; and Stiernhook among the Swedes. Monument. Dan. lib. i.e. 10. De 
 Jure Sueon. et Coth. vctuflo. c. 4. 
 
 12. Annal. lib. 14. c. 33. Copia negot'tatorwn et conmteatuum inaxime celebre. 
 The city of London in the Danifli times was able to pay L. 1 1,000 as its propor- 
 tion of L. 70,000, a tax then impofed on the nation. AfTcr, in the hfe of Alfred, 
 refers to above 120 cities, boroughs and villages. 
 
 13. Lib. r. See alfo Holingh. (Jliron. p. 192. 
 
 14. Spel'ian, life of Alfred, b. 2. p. 28. Malmefb.lib. 2. c. 4. A writer in 
 Du Chefne having occafion to mention the fii-ft return of duke William to Nor- 
 mandy, after his in^'afron of England, has the following paffage : Attul'tt quan. 
 turn ex t'ithne trium Gallhin/m vix colligeretur argentum attjuc aurum : Chart jwfalli 
 abundantia jnultipliciter Calllas terra ilia {^Attglia'} vincit. Ccft. Cul. Conqucf. , 
 ?• 210. 
 
 15. LL. Anglo-Saxon, ap. Wilkins, p. 71.
 
 GOVERNMENT OF ENGLAND. xi 
 
 guinary and oppreffive times. We muft not, however, with a 
 multitude of authors, be deceived into the opinion, that this 
 warriour and ftatefman atchieved a conqucjl over the conftitution 
 and the people of England. He made efledlual by arms his 
 ri'^ht of fucceifion to Edward ; but he received the crown with 
 all its inherent properties. He took the oath which had been 
 prefcribed to the Saxon princes ; he acknowledged himfelf to 
 be equally under reflraint and limitation ; an<l he engaged 
 to preferve the immunities of the church, and to a<fl according 
 to the laws. The virtory he obtained at Haflings was over the 
 perfon of Harold, and not over the rights of the nation i^. 
 
 His 
 
 16. The ConfefTor dying without ifTue, the competitors for the crown were 
 iLdgar Atheling, Harold, and duke WiUiani. The iirft had not capacity to fway 
 the fceptre ; and the fucceflion of kings was not yet du-efted by veiy regular 
 maxims. Harold was a fubjeft, and in pofTelTion of no legal claim. William was 
 related to Edward, and urged the deftination of that prince to fucceed him. On 
 thefe grounds he invaded England ; and by oppofmg Harold, he meant to fecure 
 what was his right of fucceflion. His viftory accordingly gave him the capacity of 
 a fucceifor, and not of a conqueror. That the quarrel was perfonal with Harold 
 may be even conceived from the circumltance that duke William offered to decide 
 their difpute by iingle combat. Hale, hiji . of the com. lavj, cb.v. Cook, argument, 
 ant'tmrm. 
 
 With regard to William's right of fucceflion, the befl account appears to be that 
 which is found in Ingulphus, William of Poidiers, William Gemetenfis, and Orde- 
 ricus Vitalis, who were all of them his contemporaries. Thefe authors inform us, 
 that king Edward fent Harold into Normandy to aflure duke Wilham of his ha- 
 ving deffined him to be his fucceflbr to the cro\\'n of England ; a deftination which 
 he had before obferved to him by Robert Ai'chbiihop of Canterbury ; and which 
 appears to have been made with the confent of the national council. And of this 
 relation there remains a very curious and decifive confirmation. It is a tapelhy 
 found at Bayeux, and fuppofed to be work of Matilda the wife of duke William, 
 and of the ladies of her court, in which Harold is reprefented on his embafliy. See 
 a derc'-'tplton of this tapeJJry by Smart Lethhullier, Efq- ap. Du Carrel' s Anglo-Nor- 
 man antiquities. It is furpriling, when thefe particulars are confidered, that Mr 
 
 Hume
 
 xii DISCOURSE ON THE LAWS and 
 
 His accedjon, at the fame time, it will be allowed, was a 
 fburce of iaqLiietude and confufion. Dominion is ever confe- 
 quent on property ; and the forfeited cftates of the nobility and 
 the landed proprietors who had alFifled Harold, or who had af- 
 terwards joined in infarreftions, having l^een beftowed by him 
 on his oflicers ; and die liigh rank of many of thefe requiring 
 very ample retributions, a great proportion of territory was ne- 
 eeilarily veiled in the hands of a few. Nor was it favourable 
 to the fpirit of democracy, that the donations of William were, 
 governed by the more extended notions of the feudal law.. 
 
 This polity, which was common to the northern tribes, had not 
 been unknown to our Saxon anceflors ; but, though they were 
 familiar with grants, which were precarious, or ^^hich endured 
 for a term ot years, or during the life of the feudatory, they 
 had ihen few examples of the perpetuity of the fief. They had 
 not been accullomed to the laft flep of the feudal progrefs ; 
 but a tendency to its eftablidiment was obfervable among them ; 
 and, if the invafion of William had never taken place, the in- 
 flitutions of this law had yet arrived at then* highefl point. He 
 only haflened what the courfe of time was about to produce by 
 flow degrees ; It was a refult of his adminiftration, that, before 
 
 the 
 
 iiume flwuld have given his fanftion to the opinion that William's right w^en- 
 tirel)' by war, and that he ihould have conceived that thofe who refufe to this ■ 
 prince the title of Conqueror fliovild reft folely or cliiefly on the pretence that the 
 word conqueror is in old books and records applied to fuch as make an acquifition 
 of territory by any means. E'lfl. of Er.g. vol. i. p. 200. It is true, that Sir Henry 
 Spelman and other antiquaries have flio'.vn, that conquefius and cotiquij.iio were 
 •in the age of duke William fynonymous with acquiftio; but it is no lefs true, 
 that tlie authors who refufe to duke William the title of Conqueror, reft on much 
 fuperior evidence. ' It is not with pleafure that I differ from this great authority ; 
 but, no man has a title to enquire who will not think for himfelf ; and the moft 
 perfeft productions of human wit have their errors and their blemillics.
 
 GOVERNMENT OF ENGLAND. xill 
 
 the end of the reign of Henry II. fiefs, in their more enlarged 
 condition, had fpread themfelves over England '7. 
 
 This plan of political law, which had been propitious to li- 
 berty and conqueft in its rife, was prejudicial to both in its de- 
 cline ; and the fame inflitutions, which in one fituation, con- 
 ducted to greatnefs, led the way in another to confufion and 
 anarchy 1 8. The advantages which dlflinguiftied their earlier 
 flate, were unlcnown when they had attained the ultimate ftep 
 of their progrefs. When fiefs had become hereditary, the aflb- 
 ciation of the chief and the retainer, or the lord and xiis vaflal, 
 had no longer for its fupport, any other tie than that of land 19 ; 
 ai"y:l, if the pofleflbr of a fief was lefs attached to his followers, 
 he was lefs dependent on, and lels connected with liis prince. 
 The fyftem had loft the circumftances, which formerly had fit- 
 ted it ib admirably for war ; and the few regulations it includ- 
 ed with regard to peace and domeftic policy, were rather calcu- 
 lated for the narrow circle of a nafcent community, than for the 
 complicated fabric of an exteniive empire. 
 
 The exorbitant grants, which it was neceflary that duke W^il- 
 liam fliould make, the fuU eftablifliment of the perpetuity of the 
 fief.and the confequent inveftment of oflices of rank and of digni- 
 ty in particular families, introduced all the difordersof ariftocracy. 
 The moft princely dominion was in general claimed and exer- 
 cifed by the great 20. They aflumed the right of declaring war 
 
 • againft 
 
 17. See farther, an Hiftorical Diflertation concerning the antiquity of the Englifh 
 conftitution. Part 2. 
 
 1 8. Ibid. 
 
 19. Ibid. 
 
 20. It is a very curious faft, that even feme of the Anglo-Saxon nobles had all 
 fjie prerogatives of earls-palatine. Alfred, we are told, put to death one of his 
 
 judges
 
 xiv DISCOURSE ON THE LAWS and 
 
 againft each other of their private authority ; they coined mo- 
 ney ; and they affecled to exert without appeal every fpecies of 
 jnrifdidiion. But while they difputed in the field the prize of 
 military glory, or vied in difplays of magnificence and gran- 
 deur, their tenants and vaflals were opprefled to fupply their 
 necelhties ; and, amidft the unbounded rapine and licentioaP- 
 nels which arole, no legal protedlion was afforded to indivi'- 
 duals^i. There was no fafety for the helplefs but in aflbciations 
 with the powerful ; and to thefe they paid attention and (ervice. 
 The tribunals of juftice became corrupted ; and decifions were 
 publickly bought from the judges. New (burces of oppreilion 
 Avere thought of; and none were infamous enough to be reject- 
 ed. The feudal cafualties were exacfled with the mofl rigoro*js 
 feverity ; and, while the kingdom appeared to be divided into 
 a thoufand principalities, the people were nearly debafed into a 
 flate of fervility. 
 
 On a fuperficial view, one wOuld be apt to imagine, that, in 
 regard to competition, the nobles of thofe times were confidei'- 
 ably an overmatch for the prince. But Barons, whofe chief re- 
 commendations were the military virtues, who were haughty 
 and independent, and often inflamed againit each other with 
 the fierceft animohty, could not always aC:l in a body, or by fix- 
 ed and determined maxims. It was not fo vvitli the Ibvercigii : 
 
 The 
 
 judges for having pafTed fentence on a malefaftor for an offence which had been 
 co'Tunitted where the king's writ did not pafs. Mirroire de Jujiices, cP. v. And in 
 Selden we meet with earls who had entirely the civil and criminal jurifdidion in 
 their own territories. 7 it. Hon. part i. ch.v. If there \\ere no other proofs 
 than thefe, they would be fufficient to evince die reality of fiefs among the Anglo- 
 Saxons. 
 
 21. Madox, hift. of ^.xcheq. Erant in Anglia tjuodammodo, fays an old writer 
 concerning the age of Stephen, tot reges vel potius tyranni, quot domini Cajhllorum. 
 Cul. Neubrigenf,
 
 G O V E R N M E N T OF E N G L A N D. xv 
 
 The mafter of operations, which depended on himfelf, he could 
 (peculate in filencc, and watch the opportunities of a(flion. The 
 advantages he derived from liis fituation were powerful. Not 
 to mention his prerogatives and his revenue ; the returns of 
 feudal fervice reminded the nobility of their fubjeclion to him ; 
 and the inferior orders of men, regarding thele as their imme- 
 diate opprefTors, looked up to him as to their guardian. 
 
 Amidft the lawlefs confufion introduced by the flruggles be- 
 tween regal and ariftocratical dominion, the conftitutional rights 
 of the Commons feem to have received a temporary interruption, 
 and to have been infulted with a temporary difregard. Their 
 aflembling in parliament grew to be lets frequent and left effec- 
 tual ; and for a leafon, perhaps, was altogether fufpencled. But 
 notwithflanding the dilbrder occafioncd by thele ftruggles, they 
 were in time produd;ive of effefts which were beneficial to the 
 people. For if the charter, conftmiing their ancient liberties, 
 which was granted by Henry I. renewed by Stephen, and con- 
 tinued by Heni-y II. had remained ^^'ithout a due and proper 
 force ; the confederacy of the barons produced under Iving 
 John and Henry III. the revival and the exercife ot the mofl im- 
 portant privileges. Tlie magna chart a brought back, in 
 Ibme meafure, the golden times of the Confeflbr. ^ It appeared 
 to the barons, tliat they could not expert the afliftance of the 
 people, if, in treating with John, they fliould only a6l for their 
 own emolument ; they were therefore careful that flipulations 
 fhould be made in favour of general liberty. The people were 
 confidered as parties to tranfactions which moft intimately con- 
 cerned them. The feudal rigours were abated ; and the privi- 
 leges, claimed by the more dignified pofleflbrs of fiefs, were comr 
 municated to inferior vaflals. The cities and ' boroughs re- 
 ceived a confirmation of their ancient immunities and cu- 
 
 floms.
 
 ^vi DISCOURSE ON THE LAWS and 
 
 ftonis''-^. Provifions were made for a proper execution of 
 juftice ; and in the reftraints affixed to the power of the king 
 and the nobility, the people found protection and fecurity. 
 
 The Ibvereign, no lefs than the nobles, was an enemy to pu- 
 blic liberty ; and yet both contributed to eftabliih it. Stephen 
 gave the example of a practice, which as it ferved to enfeeble 
 the ariftocracy, was not forgotten by his fucccllbrs. In the 
 event of the reverfion to the crown of a great barony, he gave 
 it away in different divilions ; and the tenants in capite produ- 
 ced in this manner, threw naturally their influence into the fcale 
 of the commons. The partitions, alfo, which the extravagance 
 of the nobility, and the failure of male-heirs, introduced into 
 great eflates, contributed to reft ore the democracy. It w as a 
 redilt, likeways, of the madnefs of the Cruiades, that many ad- 
 venturers to the eafi returned with more cultivated manners, 
 and more improved notions of order and liberty ; and the ro- 
 mantic glory of acquiring a renown there, had induced many 
 potent barons to clifpofe of their poflelFions. The boroughs 
 haftened to i-ecover the fhock, which they had received durin^i^^, 
 the violent adminiftrations of William and of Rufus^s; and, if 
 charters of corporation and community were granted feldom 
 during the reigns of Henry I. and of Stephen, they were fre- 
 quent 
 
 22. Civ'itas JondoH. habeat omnes anTiq.UAS libertates et liberas consu^- 
 TUDiNES SUAS tam per terras qvani per aquas. Praterea volumus et concedimus 
 
 qmd OMNKS ALIAE CIVITATFS et IWRGI ft VILLAE f/ PORTUS hcibeurtt OMNES LI- 
 BERTATES, et LIBERAS CONSUETUDINES SUAS. Magna charta op. Black/lone, 
 LiTM Trails, vol. III. p. 21. 
 
 23. They had fuffcred confiderabl)'-, even from the lime of the Confcnbr to that 
 •of Domefd;iy-book. Authors ought therefore to be cautious in reafonuig back 
 fj-oni tliat monument to the Sa\on period. It is a pity, that tlie furvey of the 
 kinp;dom taken by Alfred did not yet remain. Tlie comparifon of it with that of 
 William would lead to very curious difcoverics.
 
 GOVERNMENT of ENGLAND. 
 
 xvu 
 
 •qncnt under Henry II. Richard I. king Jolin, and Henry III. 
 During the fovereij^nty, accordingly, ot the lad, and during that 
 of Edward I. the acquif itions fccured by the Commcns appear- 
 ed Co conllderable, that their aflenibllng in parliament became 
 a matter of greater regularity, and they rofe to their ancient im.- 
 portance from the diforder into which they had been thrown 
 during agitated and turbulent times. 
 
 The 49tli year of Henry III. and the 23d year of Edward I. 
 \\'hich fo many writers confider as the dates of the eftablilli- 
 ment of the Commons, were, of confequence, notlaing more than 
 memorable epochs in their hiftory '4. 
 
 c Under 
 
 24. Tliefirftfummonsof knights extjiit on record is fuppofed to be in the 49th 
 of Henry III. But this, though it were true, does not prove that kniglits were not 
 known till that time. The writ does not fay fo ; nor can it be gathered from it, 
 that knights ofthe/ljire were tlien newly efiabliiiied. If there remained, indeed, 
 an uniform feries of records from the earlieft times, in which there was no men- 
 tion of knights till the age of Kenry III. there might thence arife a (Irong argu- 
 ment againft their antiquity. But this is not the cafe ; and it happens, that in the 
 I cth year of king John, there is a writ to the ilierifF to fummon four knights 
 of the county; 15. Jo. Rs. rot. clauf.pt. 2. m. 7. dorfo. 4 difcrctos milites, de co/ni- 
 talufuo, adloquendum nohifcum. Tliere is alfo fimilar evidence, that in the 3 2d ajid 
 42d years of Henry III. knights made their appearance in parliament. JVhitelocke, 
 Notes, vol. /. 43 8. vol. II. 1 20. In the clofe roll, alfo, of the 38th y€ar of Henrj' III. 
 there is extant a writ of fummons direfted to the flierifFs of Bedfordihire and Buck- 
 incrhamiliire, requiring T^^'0 blights to be fent for each of thefe counties. Lyt- 
 telton Hifi. Henry II. notes to the ^d book, p. 70. 79. In ancient times, it was ufual 
 to fummon fometimes four knights, fometimes three, fometimes Two, and even 
 fometimes one knight. But from the leign of EdwardIII.it has been the conftant 
 pradice for the iheriif to return two knights for each county. U'hitelocke, vol. 1. 439. 
 
 The firft fummons directed to the iherifF for the eleftion of citizens and bur- 
 geffes, is fuppofed to be in the 23d of Edward I. But in the fixth year of king 
 John, fays Whitelocke, there is extant on record a \\ rit to the IlierifF, which men- 
 tions •' Bilhops, earls, barons, and all our faithful people in England ; by v. hofe 
 " aflent, lawes were then made." 6. Jo. regis, rot. clauf. m. 3. dors, et rot. pat. 
 m. 2. JJfenfu archi£pij\ crc. et omnium fdelium mfrrorum Jnglix. Notes on the 
 
 king's 
 

 
 xviii DISCOURSE on the LAWS and 
 
 Under Edward I. the conftitution received a {lability to 
 which it was no Icls indebted to his military than his civil ca- 
 pacity. 
 
 ilng's -writ, vol. II. p. 120. An ordinance in this year of king John, direifled fo all 
 the Jljerlffs in England, is mentioned from tlie records by Sir Robert Cotton, and 
 has thefe words : Pravifum efl assensu Archiepifcoporum, comltum, baronum, et 
 
 OMNIUM FIDELIUM N0STR0:iUM AnGLI AE. CottOtl. pojth. p. 15. 
 
 In the conventio inter regem Johannem et barones the people are ftated as parties ;. 
 a circumftance which would not have happened if they had not been reprefented. 
 Hxc eft conventio facta inter domirtum Johannem regem Angli^e ex una parte, et Ro- 
 bertum filium Walteri Marefcallum, 6c. et liberos homines TOTius regni ex 
 altera parte. Blackftone's Edition of tlie charters, '^p. Law Trafts, vol. II. 
 p. 30. 40. And what confirms this notion is, that we find the mayor of Londott 
 and the conflable of Chefer in the lift of thofe who were chofen confervators of the 
 public liberties in confequence of the great charter. Other proofs, lilceways, 
 of the antiquity of the commons are to be found in the great charters. See 
 Lyttelton, Hiil. Henry II. Notes to tlie id book, p. 71. 
 
 It is alfo worthy of notice, that the 25th oFEdwardl. which confirms the great 
 charter, obferves, that it was made by the commoyi afjent of all the reahn: And 
 the i5tli of Edward III. obferves, that it was aiSide par le roy,fes piers, et la com- 
 munalte de la terre. 
 
 Nor muft it be omitted, that the 5th of Richard II. has this remai-kable paflan-e .- 
 7he king doth -will and command, and it is ajfented in the parliament, by the prelates, 
 lords and commons, that all and fingtdar perfons and comwonaliies, luhicb from 
 henceforth Jh all have thefurnmons of the parliament, fiall come from henceforth to the 
 parliaments in the manner as they are bound to do, and have been accujhmed -within 
 the realm of England OF old times. And if any pcrfon of the fame rectm, ivl.icb 
 from henceforth fmll have the faid fummons (be he archbif)op, hi fop, abbot, pri'.r, 
 duke, earl, baron, banner d, KNICHT of the fire, c IT iZE>i of city, BV.iCf.SS cf 
 borough, or other Jingtdar pcrfon, or commonalty) do ahfent himfelf and come not ut 
 the faid fwmnons (except he may reafonahly and honcfily excufe him to our lord the 
 king) he fall be amerced, and otherioife punified, according as OF OLD Tl!\rF.s h.th 
 been ufetl to be done within the faid realm in the faid cafe. And if any f.^eriff of the 
 realm be from henceforth negligent in making his returns of -writs of the parliament ; 
 or that he leave out of the fJd returns ANY cities OR BOROUGH which be eound 
 
 AND OF OLD TIME XVERE WONT TO COME TO THE PARLIAMENT, he fcdl be an.er- 
 
 ced, or otherwife punified in the rnanncr as -jjjs accufiomed to be done it: tic faid 
 cafe in times paft. Stat. 2. cap. 4. ' 
 
 The
 
 GOVERNMENT of ENGLAND. xIji: 
 
 piicky. The wai'S and expeditions in ^^•hicl^ he engaged, in- 
 volved hull in immenfe expcnce ; and calling for fupplics, ren- 
 dered him particularly attentive to the people. The feudal 
 force of the kingdom could not be employed by him \vitli eflj- 
 cacy. In the decline of the gothic iyftem, the nobles were not 
 fuiHcicntly in fiibjeclion to the prince ; and their lervice was 
 limited to a narrow period. In the reign, indeed, of Henry II. 
 a pecuniary payment had been Ilibftituted in the place of , the 
 
 perlbnal 
 
 The exprefllon " ol' old time," lb often uled here, muft doubtlefs carry us far- 
 ther back th;ni the 23d of Ed\\ard I. or even the 49th of Henry III. The fpaca 
 of two of even three reigns does not make a period of antiquity. We do not fay, 
 that the acceffion of George I. was in anc'unt times. 
 
 I know well, that the expreffions commonalty , commun'itas regnl, baronaghim Ar.- 
 gl'it, magnates, mbiles, proceres, 6t. have been confidered as folely applicable to 
 barons and tenants In capite. But one mufi: beware of giving credit to this opi- 
 nion. The great charter of king John bears to have been made per regem, baro- 
 fies et Viberos homines totius regni ; a certain proof that it was not made by the king 
 and the barons only ; yet Henry HI. fpeaking of this parliament, calls it baronagium 
 AngUic. The magnates and proceres are faid to have made the ftatute of Mort- 
 main ; but it is well known, that the parliament which gave authority to this aa 
 conilfted of king, lords and Commons. In the :!5th of Edward I. the exprellion cum 
 comitibus, baroniiiKS, proceribiis, mbilihus, ac communifatibus, evidently refers to 
 KNIGHTS, CITIZENS and BURGESSES : And in the 14th of Edward III. commonalty 
 and Commons are ufed as fynonymous. See farther, Whitelocke, vol. 11. ch. Si. 
 Coke, 2(1 In/?. 583. Petyt, Rights of the Commons. Atkyns,on the povtr and jwii'- 
 ■di^ion of parliament. 
 
 Mr Hume, I am fenfible, ftrenuoufly aflerts the late origin of die Commons ; and 
 one would almoft imagine, that his hiftory of England had been written to prove 
 it. His reafonings, however, on conffitutional points, do not appear to me to be 
 always decifive ; and it is with pain I obferve the refpeft which this great man has 
 paid to tlie opinions of Dr Brady ; a \\ riter who is known to ha^'e difgraced ex- 
 cellent talents, by pleading the caufe of a fadion, and giving a varniih to tyranny. 
 
 The brevity w hich was neceflary to this traft, has permitted me rather to hint 
 at, than to treat the antiquity of the Commons. In a ^\•ork which I hope one da\' 
 to lay before the public, I ihall have an opportunity of entering into it at greater 
 length.
 
 XX DISCOURSE ox the LAWS and 
 
 peiTonal attendance of the military valTiil ; and the ciiftom had 
 prevailed oi hiring Ibldiers of fortune. Bnt, aniidft the preva- 
 lence of private and mercenary views, the g ener ous principles 
 \vhich had given folidity to the feudal fabric ^5. having totally 
 decayed, and the holding by a military tenure'having cealed to 
 be conlklered as an honour ; vaflals thought of eluding the du- 
 ties to which they were bound by their poflellions, and granting 
 them away in fictitious conveyances, received them back under 
 the burden of clufory or civil donations. It even grew to be 
 ufual among tenants to tcfufe the pecuniary payments, or the 
 fcutages to which they were liable : They denied the number of 
 their fees ; they alledged that the charge demanded of them 
 was not juftified by their charters ; and, while the prince was 
 ready to march againfl an enemy, it was not convenient to look 
 into records and regifters. The fovereign deprived of his fer- 
 vice, and defrauded of his revenue, and under the necefHty of 
 levying a military force, had no reiburce fo fecure or abundant 
 as the generolity of the people 26^ 
 
 The admirable improvements with Avhich Edward enriched 
 the laws, and facilitated the prefcrvation of domeftic peace and 
 
 order,, 
 
 a*;. Hift. DilTert. concerning the antiq. of the Engl, conftitut. part 2. 
 
 26. Madox, Hift. of the Excheq. Bar. /fugl. The granting of fupplies to tlie 
 fovereign, natui ally fuggefted to the people the petitioning for redrefs when under 
 the preflure of any grievance ; and the crowai, ^\■he^e it expected much, would 
 not natuially exerciie a rigorous feverity. 
 
 The tenn petitioners indeed, has, by fome authors, been confidered as re- 
 proachful to die Commons ; but how a petition, as the fpring of a law, could ha\'e 
 meannefs in it, is inconceivable. Even in the free age of Charlemagne, this moile 
 of application was employed. Unluz. capit.reg. Franc, torn. 1. 'ihe behaving 
 with reverence to the fovereign is very diiferent from acting withfcrvility. And 
 as to the petitioning againfl grievances, it is to be remembered, that refpeftful re- 
 quifitions of ancient and conftitutional privileges, which hud fuffered iuvafion, are 
 not to be confidered as mean follcitations for afts of favour. 
 
 /
 
 GOVERNMENT OF ENGLAND. xxi 
 
 order, contribiited alio with the grcateft efficacy to advance and 
 feciire the liberties of England. He cftabliflicd the limits of 
 the different courts ; he gave a check to the infolence and en- 
 croachments of the clergy ; he abrogated all inconvenient and 
 dangerous tifages ; and the great charter, and the charter of 
 the fored, received ii-om him the mofl ample fettlement 27. 
 
 The 
 
 27. Conf. Cart. an. 25. Ed. I. It is fingular, that even after the times of Ed- 
 ward I. fome writers will not allow, that the Commons were any eflential branch 
 of the legiflature ; yet the writ of fiimmons exprefles in ftrong terms their liglu of 
 aflent : ^d audtendmn et faciendum et confentiendum ; and a multitude of examples 
 may be produced of their actually confulting and determining about peace and 
 war and other important matters of ftate. 
 
 There is evidence that Edward I. called a parliament, and confulted with the 
 Lords and Commons about the conqueft of Wales ; and that on receiving informa- 
 tion that the French King intended to invade fome of his dominions in France, he 
 fummoned a parliament ad traftand. ord'inand. et fac'iend. cum prtelatis, frocer'ihu! 
 et aliis incolis regni quihujilbet, hiijufmodi perlculis et excogitatis malts fit ohjurand. 
 Infertingin the writ thefe memorable ^ ords, Lex juj?ijf7na, provida circttmfpeiltone 
 fiabil'ita : Ouod omnes tangit, ab omnibus approbetur. 
 
 Edward II. confulted with his people in his firft year pro foleinnitate fponfalium 
 et coronat'tonls ; and in liisfLxth year he confulted them, fuper diverfis negotiis fia- 
 tum regni et expeditionem guerrae ScoTI AEfpecialiter tangentibus * . 
 
 Edward III. fummoned the peers and Commons in his firft year to confult them. 
 Whether they would refolve on peace or war with the Scottifli king. In his fixthyear, 
 he aflembled the lords and Commons, and required their advice. Whether he (hould 
 undertake an expedition to the Holy Land. The lords and Commons confulted ac- 
 cordingly ; and while they applauded his religious and princely forwardnefs to the 
 holy enterprize, advifed a delay of it for that feafon. In his tliirteenth year, the 
 parliament aflembled ainfamento prtekttorum, procerum, «erwo« ""communiTATis 
 to advife de expeditione cvekrae in partihus tranfmarinis ; and ordinances were made 
 for provifion of Ihips, arraying of men for the marches, and defence of the ifle of 
 
 Jerfey. 
 
 * Tn his hiftory of this prince, Mr Hume has the following very ftiange aflertion : '• The Commoiis, 
 " though now an eftate in parliaraeut, were yet of fo little coiifiiicration, thut tbc/r .ijftiit -w.u nivtr 
 ♦i iermnded." Vol. II. p. 139.
 
 xxli DISCOURSE ON the LAWS and 
 
 The fagacity of his precautions and policy procured to him 
 mofl deiervedly the name of the Englijh Jujlinian ; and it may be 
 
 mentioned 
 
 Jerfey. In his fortietli year, the Pope denianciing the tribute of king John, the 
 parliament affembled, where, after confultation apart, the prelates, lords and Com- 
 mons ad vile the refufal of it, although it be by the dint of the fivord. 
 
 Richard II. in the firfl year of his reign, advifed with the peers and Cotnmom, How 
 he iliould befl: refift his enemies ? In the fecond year, he confulted \\ispeople how to 
 withftand the Scots ; who had combined againft him with France. In the fixdi 
 year, he confulted the parliament about the defence of the borders ; \\n 
 pofll-ffions beyond fea, Ireland and Cafcoyne, his fubjecls in Portugul, and fafe 
 keeping of the feas ; and whether he fhould proceed by treaty or alhancc, 
 or the duke of Lancalter by force ? The lords approved the duke's intention for 
 Portugal ; and the Commons advifed, that Thomas bilhop of Norwich, having the 
 Pope's crolceris, ihould invade France. In his forteenth year, this prince advifed 
 with the lords and Commons for the war with Scotland, and would not, without 
 their counfels, conclude a final peace with France. And the 5'ear enfuing the 
 Commons interefted the king to ufe moderation in the law of provifions, and pro- 
 jiofed that the duke of Aquitaine fliould be employed to negotiate the peace with 
 France. 
 
 With regard to the power of the Commons as to judicature in the times of which 
 we fpeak, there are not wanting decifive proofs. In the reign of Edward II. the 
 peers and Commons gave confent and judgment to the revocation and reverfement 
 of the fentence of banilhmentof the two Spencers*. In the firfl 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 inftj-uments, had 
 bv dureis forced her to make a writing to the king, in confequence of which flie 
 was defpoiled of her .inheritance, fentence was given for her by the prelates, lords 
 and Commons. In the 4th year of Edward III. it appears by a letter to the pope, 
 that to the fentence given againft the earl of Kent, the Commons were parties as 
 well as the peers* for the king direfted their proceedings in thefe words : Comiti- 
 bus, magnatibus, baronibus, et aliis de coMMUNitate did?! regni ad parliamenttan 
 illud congregatis injunximus, iit fuper his difcernerent et JUDICARENT quod rationi et 
 jii/licia co>rveniret. When in the firft year of Richard II. William Wefton and 
 
 John 
 
 • TlK Iharc tlie Cowko.j had in this aft, Sir Robert Cotton authenticates from the parliament rolls. 
 Citlom pofihuiiu, f. 348. Yft Mr Hume, in the moll podtive terms, denies that the Coir.mom had anj 
 concern in it. Vol. 2- p. ip.
 
 GOVERNMENT OF ENGLAND. xxiii 
 
 mentioned as a convincing proof, both of his genius, and of his 
 having fludied the welfare of his people, that, to the form in- 
 to which he modelled the common law, as to the adminiflration 
 of common juftice, the wifdom of fucceeding times has not 
 been able to add any conflderable improvements -8. 
 
 The crown of Edward I, but not his talents, defcended to 
 Edward II. The indolence, however, and the incapacity of 
 the lafl: piince, joined to his ablhrd pallion for favourites, 
 though they rendered his reign tumultuous and unhappy, were 
 no leis favourable to the dignity of parliament, and the power 
 
 of 
 
 John Jennings were arraigned in parliament for furrendering certain forts to the 
 king ; the Commons were parties to the fentence againft them, as appears from a 
 writing annexed to the record. In the firft year of Henry IV. although the Com- 
 mons refer by proteflation, the pronouncing the fentence of depofition againft 
 Kng Richard II. to the lords, yet they were equally interefted in it, as is evident 
 fi'om the record ; for there were made proftors or commiflioners for the whole 
 parliament, one bUhop, one earl, one abbot, one baronet, and two knights. " And to 
 *' mfer, fays a learned and accurate author *, tliat becaufe the lords pronounced the 
 " fentence, the point of judgment fticuld be only theirs, were as abfurd as to con- 
 " elude that no audiority was left in any other commiiTioner of o^rr and terrrlncr 
 " than in the perfon of that man folely tliat fpeakcih the fentence." In the 
 fecond year of Kenry V. the petition of the Commons imported no lefs than a 
 RIGHT to a£ic.nd ajfcnt to all things in parliament ; and the king allowed that they 
 poffeiTed this right. 
 
 Thefe examples of the importance of the people are flriking ; and they are fup- 
 portcd by the authority of the parliament-rolls, or by records above exception. 
 The curious reader may fee them, and other proofs to tlie fame purpofe, in the 
 pofJiumous pieces of Sir Robert Cotton. 
 
 28. Hale, hi/l. of the com. law, ch. vii. It has been fometimes infilled upon, 
 tliat much improvement was brought to England by the canon and civil laws. I 
 cannot, however, bTrt imagine, that thefe la\^ s, have, on the w hole, been rather 
 attended with difadvantage. For tyrannical maxims do not fuit a Iknited govern- 
 ment. They may have affifted, indeed, the invention, and extended the views of 
 fome lawyers; but they have filled the heads of more with illiberal prejudices. 
 • Sir Robert Cotton.
 
 xxiv DISCOURSE on the LAWS and 
 
 of the people, than the excellent admimilratioa of Edward III. 
 and the neceiiities to which he was ilibjecled by his ambition 
 and his prowels. A weak prince may lofe the prerogatives 
 tranlmitted to him ; bvit n ill never be the founder of a delpo- 
 tifm. A high-fpirited monarcli, dependent for refoiirces on 
 his people, may cany deftruciion and ruin into the country of 
 an enemy, but will not eafily be induced to attack the liberty 
 and the profj^erity of his own kingdom. 
 
 The fbns of Edward III. had contributed, wliile he lived, to 
 hi^ grandeur, and that of the nation ; but no Iboner was he laid 
 in his grave, than they excited commotions. The ambition of 
 their pofterity was ftill more pellilent and fatal. The wars be- 
 tween the Houfes of York and Lancafler deluo;ed England with 
 blood. The palfions of men were driven into rage and phrenzy ; 
 and in the mafHicres, rather than die battles that enfued, con- 
 qiTcft or death fecmed the only alternative. But while we turn 
 with forrow from this bloody pei'iod of our ftory, our fympa- 
 thy is foftened by the recolledlion, that the contending princes 
 brought acccflions to liberty, by adding to the weight of the 
 Commons. Tlie favour and cotmtenance of the people were 
 anxioufly folicited by both fac^Uons ; and their influence failed 
 not to grow, while the means of extending it were offered, 
 and wliile they were courted to feize them 29. 
 
 The nation, when latiated with the calamities of civil war, 
 thouffht of uniting the claims of the two hoftile families. Hen- 
 ry VII. the heir of the Houfe of Lancafler, was married to 
 Elizabeth, the heirefs of the Houfe of York. This prince affec- 
 ted 
 
 29. Tlie reader, who is defirous of feeing proofs of the confidcration of the 
 .people during the wars between the Houfes of York and Lancafler, may confuk 
 Cotton's abridgment of the records ; and Bacon on the laws and government of 
 England. Part II. -
 
 GOVERNMENT OF ENGLAND. xxv 
 
 ted to be profound, and he has obtained that cliaraCter. Bat 
 the condition of Eiu-ope at the time in whicli he lived, and the 
 fituation in which he found himfclf, pointed out to him his 
 ftrain of condudt. He was more myilerious than will- ; more 
 prudent than enterprizing ; and more a flave to avarice than 
 ambition. WitJiout having intended it, he placed the gran- 
 deur of the Commons on the molt Iblid foundation » In the fi- 
 berty which he granted to the nobility of breaking their en- 
 tails, he faw only the degradation of that order. The civil 
 wars had involved them in great expence ; and the growing 
 commerce and refinement of the times, expoicd them to fliU 
 greater. Their princely pollelfions flowed from them to give 
 dignity to the people 3°. 
 
 Henry VIII. had no certain charac^ler, and was acT:uated by- 
 no fixed and determined maxims. He had not the ability to 
 form, nor the firmnels to put into execution a deliberate fchcme 
 to overturn the liberties of his countiy. With lefs capacity 
 than his anceftor, his reign was more Iplendid ; and, with a 
 more imperious temper, he had the art or the felicity to pre- 
 ferve the affection of his fubjefts. The father removed the pil- 
 lar which fupported the power of the nobles : The fon gave a 
 mortal blow to the influence of the clergy. In tjie humilia- 
 tion of both, the Commons found a matter of triumph. The 
 
 d Reformation, 
 
 30. In the year i 546, there were 126 boroughs that returned members to par- 
 liament ; and the greateft number of thefe were weakhy and populous. Broiuii 
 W'tUis, mtit.parlicnn. vol. I. In the reign of Edward VI. 23 new boroughs \\ere fum- 
 moned to fend burgelFes to parhament. Phihp and Mary added 13 more, Eliza- 
 beth 30, James the 2 univerfities and 12 boroughs, Cha. I. 8 boroughs, and 
 Cha. II. the county of Durham and 2 boroughs. Ellys on temporal liberty. An- 
 ciently the king might incorporate any town, and enable it to fend burgelFes to 
 parhament ; but this privilege remains not at prefent with the crown. If the 
 king was now to venture on the creation of a parliamentary borough, it would reft 
 with the houfe of commons whether they would receive the members.
 
 xxvl DISCOURSE on the LAWS and 
 
 Reformation, though it iiitermpted the progrefs of literature, 
 was yet liighly conducive to civil liberty. The church in lo- 
 ling an authority which it had never inerited, and which it had 
 often abufed, funk into a dependence on government. The 
 fupremacy returned to the fbvereign to whom it originally be- 
 longed, and with whom it ought conftantly to have remained. 
 The vifitation of the monafteries difcovered more than the in- 
 ventions of a pious fraud ; vices and abufes which cannot be 
 defcribed, without conveying to the mind the impreffion of 
 whatever is moft wicked and mod diflionourable : Their fup- 
 preflion gave encouragement to induftry and to the arts ; and 
 tlieir wealth diffufed in a thoufand channels, circulated through 
 the kingdom. 
 
 The Reformation advanced under Edward VI. but it was 
 deflined that this prince fliould only make his appearance on 
 the flage of public life, and give the hope of an able adminiftra- 
 tion. The fway of Maiy was a paroxyfm of religious madnels. 
 ■She knew not, that when the individuals of a kingdom have a- 
 grecd to adopt a new religion, it is the duty of the fovereign 
 to give a {an6lion to it. The refonned were about to experi- 
 ence whatever cruelty the extremity of a miftaken zeal can in- 
 flift. But the fires lighted by Gardiner, Bonnei-, and fuch 
 abominable men, brought no converts to popery. The dread 
 of endangering the fucceifion of Elizabeth prevented the par- 
 liament from giving a check to the obflinate malignity and the 
 languinary rage of this unworthy queen ; or, perhaps, the na- 
 tion had fcarcely recovered the aftonifliment into which it was 
 thrown by the atrocity of her deeds, when, in the fixth year of 
 her reign, lliperllition, peeviflmels, and the moft felfifli and im- 
 hapjiy paflions, put an end to her life. 
 
 Elizabeth, who had learned wifdom from misfortune, attain- 
 ed the fummit of political glory. The perilous condition of 
 
 affairs,
 
 GOVERNMENT OF ENGLAND. xxva 
 
 affairs, on her commencing to reign, required fingular modera- 
 tion and ability, and flie exerted them. A fagacity, ahnoil in- 
 capable of miftake, direfted all her operations 3'. England 
 grew in commerce and advantages, while the reft of Europe 
 was agitated with contentions, and dcbafed with the tyranny of 
 power. Her jealoufy of prerogative was corrected by her at- 
 tachment to the felicity of her people ; and the popularity with 
 which file reigned is the fulleft proof that (lie preferved in^io- 
 lated all the barriers of liberty 3 2. The reformation which the 
 folly of her predecellbr had interrupted, was compleated by her 
 prudence. 
 
 This accompliihcd princeis was flicceeded by James VI. of 
 Scotland. He fubftituted, in the place of ability, the aflefta- 
 tion of it. The Englifh nation received liim with marks of re- 
 fyeS: which they were not to continue long. With hi<'h no- 
 tions of kingly dignity, all his adlions tended to deo-rade it ; 
 
 and. 
 
 31. " As for her government, fays a great authority, I afTure myfelf I iliall not 
 " exceed, if I do affirm, that this part of the ifland never had 45 years of better 
 " times ; and yet not all through the calmnefs of the feafon, but through the wif- 
 " dom 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 uiikindnefs • 
 " and yet not any one of them pafled without fubfidy gi-anted by the people, but 
 " one wherein none was deiired. And fometimes the aid was fo liberal that ihc 
 " refufed the one half, and thanked the people for the remnant ; a courtefy that 
 " rang loud abroad, to the Ihame of other princes. She never altered, continued 
 " repealed, nor explained any law, otherwife than by aft of parliament, whereof 
 " there are multitudes of examples in the ftatutes of her reign." Nat. Bacon 
 Difcourfe on the laM)s and government of England, part 2. 
 
 I do not mean to fay, that Elizabeth, and the princes who preceded her, never 
 afted againft the fjiirit of our government. Her reign, and thofe of many of her 
 predeceffors, were doubtlefs ftained with bold exertions of authority. But bold 
 exertions of authority mufl not be interpreted to infer defpotifm in our govern- 
 ment. We mufl: feparate the perfonal qualities of princes, and the rr nciplcf of 
 the conflntution. The go\'ernment of England, and the adminiflrations of its chief 
 raagiflxates, are very different things.
 
 xxvui D I S C O U R S E ON the LAWS and 
 
 and, while his littlenefs rendered lilm contemptible at home, he 
 became an object of ridicule abi'oad, from liis ignorance of 
 foreign politics. Carelefs in the choice of his miniflers, and 
 fupremely conceited of liis own wifdom, his reign brought rjo 
 glory to the crown. 
 
 The great improvement, which, about this period, difplayed 
 itfelf in the national manners, diffufed among all ranks of men 
 very enlarged ideas concerning the nature and principles of 
 civil government. The arts had been cultivated with uncom- 
 mon fuccefs. Difcoveries had been made in the mod diflant 
 reoions of the o-lobe. Commerce had brought o;reat acceflions 
 of wealth. The balance of property had turned with no equi- ' 
 vocal direction to the fide of the people. 
 
 It Avas not an age for faflidious and tyrannical maxims. The 
 Commons knew all their flrength, and were determined to em- 
 ploy it. The prince endeavoured in vain to imprefs them with 
 his exorbitant notions of regal authority. Every complaint 
 and grievance of the fubjecft an ere inquired into ; every fufpici- 
 ous and inclement a<fl: of prerogative was oppoied. The doc- 
 trines of the divine right of kings, and of pallive obedience, 
 were now firft heard of, and alarmed and aftonidied the nation. 
 Pretentions to power, deltrudiive of die natural and inherent 
 privileges of humanity, and inconliftent with ever}^ principle of 
 common fenfe, were aflerted from tlie pulpit, were claimed by 
 the fovercign. The extravagance of James awakened the thun- 
 der which was to burfl on the head of lais fucccllbr. 
 
 Charles I. had imbibed the fime lofty conceptions of kingly 
 power ; and liis charaflcr was marked by the fame incapacity 
 for real bullnels. His fituation requii-ed inlinuation and ad- 
 
 drefs ;
 
 G O V E R N M E N T OF ENGLAND. xxix 
 
 drcfs ; but he affected the utmoft: ftatclinefs of demeanor. He 
 diff^ufled the Commons ; he infulted the people. To the ex- 
 crcUe of his autliority, lie fancied there was no limitation. In- 
 flamed with oppofition, he prefnmed to attack whatever was 
 moft lacrcd, and moll valuable among men* The imprudence 
 of Buckingham had not foftened his obftinacy : His Qiieen was 
 indifcreet, and he confided in her. The violent councils of 
 Strafford precipitated his own and the ruin of his maftcr. The 
 religious foppery of Laud completed what the incapacity of 
 James had begun : It was the cement of \inion between the 
 friends of liberty and the fe£t of the Puritans. The people be- 
 held with a fixed and a general indignation the infult and the 
 violence which were offered to the majefty of their laws, and to 
 their conftltution. The flames of civil difcord were kindled. 
 England was torn during fix years with political and religious 
 fury. The unfortunate Charles atoned at length by his death 
 the dilbrders he had occafioned. The delegates of the people 
 pronounced him guilty of mlfgovernment and breach of trulL 
 ♦' The pomp, fays an eloquent hlllorlan, the dignity, the cere- 
 " mony of this tranfiftion, correlponded to the greatefl: con- 
 *' ceptlon that Is fuggefted in the whole annals of human 
 *' kind 33." 
 
 Cromwel, 
 
 33. Httme, HiJ}. of England, vol. V. p. 462. This hiftorian, the mofl: acconipliih- 
 eil, 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 
 Jhew, that in fome refpefts they afted from precedents of adminifh-ation in former 
 princes ; and this, if taken even in the fiilleft extent, is infiifficient to juftify them. 
 Charles, however, it will be allowed, exceeded every violation of liberty, of which 
 there had been any example; and when he had confented to reduce the exor- 
 bitancy of the regal power, his conduft created a fufpicion of his fmcerity. But 
 on the fuppolition that he did not advance his authority beyond the praftice of for- 
 
 /ji«r/c-^t-- 
 
 ^
 
 XXX D I S C O U R S E ON THE L A W S and- 
 
 ' Cromwel, tlie Immediate caulc of the death of Charles, and 
 of thofe cu'cumltances of cenfure which accompanied it, afto- 
 njflied at the height, to whicii, in the courte of the civil wars, 
 his ambition had carried him, was induced to afpire ftill higher. 
 His genius was great, his fortune greater. On the abolition of 
 monarchy, he introduced into England a military defpotiiin,. 
 under the appellation of a common- wealth 34. From an infe- 
 rior rank, he had rifen gradually to dii'ect the affah's of a power- 
 ful nation. Though irregular in his politics, the vigour of liis 
 condu6l brought lignal glory to his councils and his arms. 
 But the fabric he had built was ill-contrived and ill-cemented ; 
 its parts were clifproportioned ; and it refted on no folid foun- 
 dation. It began to totter during Ids own life. His fon Ri- 
 chard had none of the talents of an ufurper. The minds of 
 the people united in an anxious wifli for the re-eftablifliment of 
 the ancient conflitution ; and general Monke acquired the ho- 
 nour of the peerage, and the fame of uncommon political la- 
 
 gacity, 
 
 mer times, he is not tlierefore to be vindicated. It is no exculpation of a crime 
 in one indi\'idual, tliat it has been committed by others. The advantages of a free 
 government belonged to the people of England ; and they were the proper judges 
 ^\hen to enforce their privileges againft an invader. They might pardon in one; 
 fovereign what they would punifh in another. They might overlook in Elizabeth 
 what they did not wiih to excufe in Charles. The doftrine of refinance is deli- 
 cate. In a free conftitution, like that of which we fpeak, the prince and the people 
 will often fall into fituations where they feem to encroach, or acftuallydo fo, on the 
 rights of one another. But it is never on flight grounds that the people-will be 
 prevailed upon to take arms againft their chief magirtrate. After all, had England 
 been an abfolute monarchy, Was it thence proper and jufl: that it Ihould remain in 
 that fituation? There are rights which it is impoflible that men can either lofc or 
 forfeit. No authority and no precedent, no ufage and no law, can give a fanftion 
 to tyranny. 
 
 34. Lord Clarendon applies to him, with great propriety, what was faid of Cin- 
 na, aufum eum, qua riemo audcnt homis ; perfecijfe, qu/t a nullo, n't fi fort iffimn , fcrjici 
 
 prifftltt.
 
 GOVERNMENT OF ENGLAND. xxxi 
 
 gacity, for forwarding an event, which it was impoffible to pre- 
 
 vent. 
 
 Charles II. never forgave the people of England for the mil- 
 fortunes he himfelf had fuffered, nor for thofe of his Hoiifc. 
 Tliis monarch had quicknels of parts, but poflefled not that dif- 
 cernment which fees into the future. He entered without re- 
 flection into fchemes and proje<fts, and renounced them with 
 the fame precipitation. Though an enemy to the conftitutioii 
 of his country, and though in tlie intereft of France, he ^vas not 
 able to produce any lafling difadvantage to the kingdom. His 
 reign, though tumultuous, was not unfavourable to liberty. 
 The total abolition of the military tenures and their appen- 
 dages, which had place during his fovereignty, was a moll im- 
 portant acquilition to the people : It relieved their eltates from 
 every fburce of legal oppreflion. The habeas corpus acl, whicli 
 was fome years pofterior to it, offered the flrmefl; fecurity to 
 their perfons. It produces m a court of juftice the body of 
 every prifbner ; it makes known tlie caufe of every commit- 
 ment ; and, if an individual has lliffered confinement in oppo- 
 fition to the law, though at the command of the king in coun- 
 cil, he is rellored to his liberty, and has a claim of compenla- 
 tion for the lofs and the indignity his affairs and his honour 
 have fuftained. 
 
 The clamour againft popery was loud and violent during the 
 long adminiftration of Charles II. and yet the crown was permit- 
 ted to pafs to the Duke of York. This confidence, fo honour- 
 able to the people, was abufed by the fovereign. James II. had 
 the zeal of a monk, not the virtue and the talents of a great 
 king. His bigotry and his luft of power made him perpetrate 
 the moll atrocious and the mofl iniblent ads. Violating equal-
 
 xxxu DISCOURSE on the LAWS, 6v. 
 
 ly civil and religions liberty, his fubjecfls deprived him of a 
 throne of which he was unworthy. 
 
 In fettling the crown on the prince and prlncefs of Orange, 
 the wife^ precautioi-ts were taken, that the religion, the laws, 
 and the liberties of England fhould never more be in danger of 
 being lubverted. The limits of the prerogative were defined ; 
 the extent of the freedom of the people was alcertained ; and 
 the doctrine of refilling the prince, when he llioiild prefume to 
 encroach on the rights of the fubject, was explained and illu- 
 flrated 35. 
 
 From the Saxon conqiiefl:, dimng a long (liccefTion of ages, 
 this fortunate ifland has never degenerated from liberty. In 
 the moft inclement periods of its liiftory, it defpaired not of in- 
 dependence. It has conftantly foflered that indignant Ipiric 
 wiiich difdains all fubjeftion to an arbitrary fway. The confti- 
 tution, profpering under the (hocks it received, fixed iticlf at 
 the highefl; point of liberty that is compatible with government. 
 May it continue its purity and vigour ! and give felicity and 
 irreatnefs to the moft: diftant times ! 
 
 March 1775. 
 35. Bill of rights, toleration act, aft of fettlement.
 
 LECTURES 
 
 ON THE 
 
 LAWS OF ENGLAND, 
 
 LECTURE r. 
 
 TI^c intention and piirpofes of political focicty — Ciijloms and manners govern men 
 before the enadment ofpofitive Laws — Arts and property the foxirces of legijla^ 
 tion — Pecidiarties attending the injiitutions of Lycurgus and thofe of Mofes — 
 In the infancy of a fiat e^ laws are few and plain — In times of civility and re- 
 Jinement, they are numerous and complicated — The liberty of the people, a great 
 caufe of the midtiplicity of laws — The difficidty of thefludy of the Englijh law — 
 The methods which have been followed in thefiudy of it. 
 
 SINCE every political fociety was originally framed for the general 
 benefit of the feveral individuals of which it was compofed, in order 
 that, fupported by the united ftrength of the whole community, each 
 perfon might have that fecarity in his life, his liberty, his property, which, 
 unafiifted in a ftate of nature, he could not of himfelf attain unto ; and that, 
 inftrufted by the joint counfels and wifdom of the whole body, he might fo 
 direft his aftions, as to promote the public welfare, with which his own 
 fefety and interefl are neceffarily conneded ; it follows, that, in fuch a ftate, 
 every man muft, even for his own fake, in many things, facrifice his private 
 judgment, and his natural liberty of aftion, to the will of that community to 
 which he belongs ; which will, afting uniformly for the fame purpofes, can^ 
 not fail of producing a number of fixed rules and regulations, to ferve as 
 diredions to the fubjeds, in fuch cafes as are common, and frequently 
 occur. 
 
 V A ACCQR.-
 
 1 LECTURES ON the Lect. r. 
 
 Accordingly, we find, there never was n ftate or nation, even but one 
 degree removed from barbarity, that llibfiRcd without fonie general cu- 
 ftoms, at leaft, which fupplied the place of pofitive laws, by which the con- 
 duct of the feveral members of the fociety was to be governed, and for the 
 treach of which they were liable to punifliment ; and in fuch a fubmiflion the 
 very eflence of political freedom confifts. For, as M. Montefquieu very juflly 
 obfervcs, the liberty of man in a focial flate, different from that in a flate 
 of nature, confifteth not in a power of acting, in all things, according to his 
 own judgment, but in acting according thereto, in fubfervience to the will 
 of the public, in being free to do all things the law prohibits not, and to 
 omit all things the law doth not enjoin |, 
 
 Hence, in all fuch Infant ftates, the greatefl refpe£t is paid, and the 
 liighefl; influence allowed to thofe, who, either by their age and experience, 
 or, by their application and labour, have arrived at a proficiency in tb.e 
 knowledge of the culloms and practices prevailing in their own and neigh- 
 bouring nations : ^i mores homimim multorum vidit et urbcs, is the great 
 culogium of the mofl accomplifhed hero of the heroic ages. 
 
 It muft be allowed, indeed, that, in focieties fo fmall that their members 
 are, in general, contented with little more than the bare neceflaries of na- 
 ture, a few rules will be fufficient ; and every man of a tolerable capacity 
 will, with a reafonable degree of obfervation, be, in fome meafure, quali- 
 fied to be his own lawyer. But when it lliall 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, efteemed neceflaries ; 
 when the induftry of fome, and the negligence of others, have produced a 
 remarkable inequality in the goods of fortune ; when riches hath brought 
 forth her offspring, infolence and opprefTion, and when envy and avarice 
 inflame the breads of the indigent, it will be abfolutely neceflary to lay a 
 continual reftraint on fuch violent paffions, ready %t every inftant to deltroy 
 the peace of fociety, and to tear it into pieces, and, for that purpofe, to 
 form a great number of regulations, to curb thofe who have created to 
 tlicmfdves imaginary wants, and who no longer regulate their condud by 
 tile plain didtates of rude and limple nature. And as the condition of fuch a 
 nation mull be perpetually changing, as new arts and gratilications will be 
 
 con- 
 
 j- L'Efprit des Loix, Liv. xi. cli. 3,
 
 Lect 1. LAWS OF ENGLAND. % 
 
 continually Invented, as the increafe of commerce will every day open a pro- 
 fpeft of more various acquifitions, and infenfibly introduce a general change 
 of mahners in the people ; and, above all, as the wits of men, checked in 
 their darhng purfuits, will ever be at work to difcover methods of eluding 
 thofe laws which they dare not openly infringe, there mufl: enfue a conflant 
 alteration and variation of the rules already in being, and a continual addi- 
 tion of new ones to anfwer new and unforefeen emergencies. The laws, 
 therefore, of a nation fo circumflanced, muft increafe to fuch a number, and 
 confift of fo great a variety of particulars, as to render it impoflible for the 
 generality of the fubjefts to be mailers of them, and will oblige them to 
 refort to thofe whofe eafy circumftances and leifure have enabled them 
 thoroughly to comprehend and underftand them ; and among fuch a people 
 there muft be lawyers, although, perhaps, not formed into a diflinft and 
 fcparate profeffion, or known by that appellation. , 
 
 Great, undoubtedly, are the inconveniencies which attend a multiplicity 
 of laws, and very hard it feems, that all men Ihould be obliged to obey a 
 rule, which it is confeffed the majority are incapable of perfedly knowing ; 
 but fuch is the natural and neceflary courfe of things. If men will not be 
 contented to live in a ftate next to abfolute barbarity, if they will enjoy the 
 conveniencies as well- as the neceffaries of life, if they will be fecured againfl 
 the oppreffion and fraud of their fellow fubjefts, as well as againft the vio- 
 lence of ftrangers, they muft fubniit to a.nd abide by the confequences. And 
 fo fenfible of this neceffity was the great Spartan legifiator, that when he re- 
 folved his ftate fliould admit of no addition to, or alteration of his regula- 
 tions, he wifely ftopped up the fources from which new laws fpring. Com- 
 merce, and its inftrument, money, were prohibited ; all arts, except thofe 
 abfolutely neceilary, were interdidted, and the people, by conftantly living 
 and eating in public, were not only accuftomed, but neceflitated to content 
 themfelves with what ftmple nature requires. By thefe means (and by thefe 
 only, or by others funilar to thefe, could it be accompliflied) Lycurgus 
 gave a firmnefs and ftability to his republic, which continued for fevcral 
 hundred years, until conqucft introduced wealth, and its necelTary atten- 
 dants, which foon eat out the vitals of that fmgular conftitutionf. 
 
 The law of Mofes, likewife, was invariable, and admitted of no addi- 
 tions or alterations; and as, from the peculiar circumftances of the country, 
 
 and 
 t Plut. Vit. Lycurg.
 
 4 LECTURES ON the Lect. i. 
 
 •and its fituation, there was no danger of an accumulation of wealth from 
 foreign commerce, fo were the domeflic regulations inimitably calculated to 
 prevent a great inequality of circumftances, and to oblige the nation in ge- 
 neral to a plain and fimple life. All ufury among the Ifraelites was prohi- 
 bited, the lands were alienable no longer than to the year of jubilee, at which 
 time they returned free to the original proprietor or his heirs ; and, by the 
 invariable rules of defcent, and the continual dividing of eftates among all 
 the males in equal degree, every man was proprietor of fome fmall patri- 
 mony, and confequently obliged to live in a frugal and laborious manner |. 
 Athens, on the contrary, the mod commercial and the richeft city of 
 Greece, abounded, above all others, in a multiplicity of laws, and thofe, 
 for the caufcs already mentioned, perpetually varying and changing. Rome, 
 while it continued a mere military (late, was contented with a few, and 
 thofe fuch as were fhort and plain; but when, by the conquefl of Carthage, 
 of Greece, and of Afia, floods of wealth were poured into Italy, the necef- 
 fary confequences foon followed. New laws were continually made, which, 
 being as continually eluded, of courfe gave birth to others. Every new 
 conquefl brought an acceilion of riches, and became a fource of farther re- 
 gulations : until, at length, they fwelled to fuch a magnitude, as to be- 
 come, in the time of Juflinian, an intolerable burthen : For, to fay no- 
 ticing of the laws themfelves, the/enafus confi/Ita, the pkbifcita, the edidum 
 fcrpetuum^ and the conRitutions of the emperors, which were very volumi- 
 nous, the bare commentaries of the lawyers of authority amounted to 
 riiree thoufand volumes^ 
 
 If we look around the nations that now inhabit Europe, we fhall find 
 that the fame caufes have conftantly, every where, produced the fame ef- 
 fect. How few, how fliort, how plain, and fimple, were the antient laws 
 of the Saxons, the Franks, the Burgundians, the Goths, and the l>om- 
 bards, while each of them continued a plain and (imple people ||. As they 
 increafed in arts and wealth, as their kingdoms grew more powerful, cither 
 from internal peace and commerce, or by the melting of different fovereign- 
 ties into one, we might fee the laws gradually increafe in number and in 
 length ; this arofe from the ueceflity their legiflators were under, from the 
 xhfTerent circumftances of the times and people, to enter into details of 
 which their ruder anceftors had no conception : and this augmentation hath 
 
 ever 
 
 . X Spencer, Differt. de ratione Leg. Ufiiram prohibcntis. 
 jl Lindenbrogius, codex legum antiquarmn.
 
 Lect. I. L A W S OF E N G L A N D. 5 
 
 ever been in proportion to the \^'calth and power of the people that was 
 obliged to admit it ; as might eafily appear by fixing on any one period, 
 and by comparing the laws of thofe nations where arts and trade were fully 
 efhibliihed, with thofe of others where they had not yet got fo firm a footing. 
 
 Within thefe lall two hundred and fifty years, the inhabitants of Europe 
 in general, particularly thofe that have any confiderable Ihare in univerfal /^~^,<^^^;«-<-c«-t<. 
 commerce, feem to have been feized with an epidemical madnefs of making x, ^ y 
 
 new laws ; infomuch that there is fcarce a itate whofe laws, fmce the year t/(U^ '^ ,^u.ux^ccfu. 
 1500, are not equal, if not fuperior, in number and bulk, to thofe made ^ ^^^^^ o^.m^>-^^^ -C 
 in many preceding ages : an eOcd owing, partly to the decay of the old 7^ j . ^^^ t 
 military fyftem, and to the necelhty every government was under, to have ^ 
 
 recourfe to new methods for its fupport, when that failed j but principally fer?- ^^-^^c^ ^c^''^^^ 
 to the difcoveries of America, and of the paffage to the Eafh Indies ; which, 
 by the peaceful arts of induiby and trade, have poured into modern Eu- 
 rope an acceffion of treafure, equal to what was amaffed in Italy by conqueft 
 and rapine under the Roman empire. As Britain, during this interval, * 
 
 fliared more largely than any other country in this vaft increafe of wealth, 
 it is not furprifmg that her later laws have been numerous and voluminous 
 in proportion. 
 
 But there is another caufe peculiar to thefe nations, which hath not a little 
 contributed to the fame end, namely, that happy conltitution, and that li- 
 berty in which we fo jullly glory. A conflitution which lodges the fu- 
 preme, the legiflative power in three different hands, each of which (if con- 
 
 fidered apart) hath an interefl feparate and diftinft from the other two, mull > 
 
 require a variety of wife regulations, fo to afcertain their refpeftive rights 
 and privileges, and fo to poife and balance them, as to put it out of the 
 power of any one to overtop the others. A conltitution that admits the 
 people, by reprefentation, to fo confiderable a fhare of power, mull have 
 many laws to determine the manner of elettions, and the qualifications both 
 of eleftors and eledled. A conltitution that makes the prefervation of poli- 
 tical freedom its great objeft, and that aims to defend the life, liberty, and 
 property of the meanelt individual, not only againll others of their own 
 rank, but even againft the executive power of the fociety itfelf, mull have 
 many extraordinary fences, and barriers, to protect the weak from the mighty. 
 Such a conltitution muft , more particularly than others, reflrain its judges, 
 tlie dilpenfers of juflice, who are, at the appointment of the crown, to follow 
 
 the
 
 $ LECTURES ON the Lect. i» 
 
 the ftrid letter of the pofitive laws ; left, under the pretence of explahiing 
 and extending them, the nioft valuable privileges of the people might be 
 betrayed, or rendered illufory. And this very reftraint, fo neceCTary in fuch. 
 a form of government, will eternally (as new cafes arife, which, not being ia 
 the contemplation of the legiflature at the time, were not comprehended ia 
 the words of the old provifions) occafion the framing of new ones. 
 
 The flate and condition of thefe kingdoms are fuch, therefore, as necef- 
 farily require a great number of laws ; and heavy as the burden of them may 
 feem, it fhould be borne with chearfulnefs, by all who efteem the convent- 
 encies of hfe, and the perfeftion of arts, more than a rude and fimple flate 
 of nature ; who think wealth more eligible than poverty, and power than 
 wcakncfs ; or laftly, who prefer our excellent form of government, and its 
 mild adminijlration, to the defpotic tyrannies of Afia, or the more mode- 
 rately abfolute monarchies of Europe. 
 
 From what hath been already obferved, the difficulties attending this ftudy 
 in thefe kingdoms will readily appear ; but thefe, inftead of difcouraging^ 
 fhould animate every gentleman, and infpire him with refolution to furmount 
 them ; when he confiders them as infeparable from the happy fituation m 
 which we are placed, and that the character of an upright and fkilful 
 lawyer is one of the moft glorious, becaufe one of the moft ufeful to man- 
 kind ; that he is a fupport and defence of the weak, the proteftor of the in- 
 jured, the guardian of the lives and properties of his fellow citizens, the vin- 
 dicator of public wrongs, the common fervant both of prince and people, and, 
 in thefe countries, the faithful guardian of thofe liberties in which we pride 
 ourfelvcs, and which the bounteous Creator bellowed originally on all the 
 fons of Adam, and would have continued to them, had they continued 
 v.'orthy of the bleffing. 
 
 From hence, likcwife, abundantly appears the neeeflity of proper 
 methods being pointed out for the itudy of the laws, and of proper aflifU 
 ance being given to the youth intended for this profeHion. This was always 
 allowed, and for this purpofe were the inns of court originally foimded ; 
 and it muft be owned, that in ancient times, they, in a great meafure, an- 
 fwercd the end. Their exercifcs, in thofe days, were not mere matters of 
 form, but real tefts of the Itudent's proficiency. Their readers laid down, 
 in their kdurcs, the priiiciples of particular parts of the law, explained the 
 
 difficulties.
 
 Lect. I. LAWS OF ENGL AND. 7 
 
 difficulties, and reconciled the feeming contradictions, though, at the fame 
 time, it mufl be owned, too many of them exerted thcmfelves in difplaying 
 their own fkill and depth of knowledge in the profellion, rather than in re- 
 moving the obftruclions, and fmoothing the ruggdlnefs which are fo apt to 
 difcourage beginners, and which all beginners mufl: meet in this untrodden 
 path, without a guide. But, fincc the time that thefe aids have been there 
 laid afide, and that, in the midft of fo great and fo ricli a city, any degree 
 of reftraint or academical difcipline, to keep the ftudents conftantly atten- 
 tive to the bufinefs they are engaged in, hatli been found impraQicable, it 
 has been the wifli of every confidering perfon, that the elements of this 
 fcience fhould be taught in fome more eligible place, where the fludents 
 may at once have the benefit of a proper method of infliruclion, and by 
 proper regulations be obliged to improve themfelves in a ftudy fo important 
 both to them and the public. 
 
 That the univerfities, the feats of all other branches of learning, are 
 the places mofl: fit for this purpofe, hath been fo fully proved by 
 Mr Blackftone, in his preliminary lefture, not long fince reprinted in this 
 kingdom, that it will be much more proper and decent for me to refer gen- 
 tlemen to that excellent performance, than to weaken his arguments, by re- 
 peating, in other words, what he has demonftrated, with fuch force of 
 reafon, and elegance of expreflion. I fliall only add to what he hath ob- 
 ferved, that every other nation of Europe hath admitted the p'^ofeflion of 
 their municipal laws into their univerfities, and that the fame hath been the 
 opinion and practice of almoft every age and country, as far back as the lights 
 of hiflory extend. Were not the laws of Egypt, as well as their religion, 
 phyfick, hiftory, and fciences, taught in the colleges of their priefls ? It is 
 allowed by all, that the principal employment in the fchools of the prophets 
 was the fludy of the law of Mofes ; and, to come to more modern times j 
 the very firfl: univerfities that were ever founded by royal authority, were 
 the works of Roman emperors, and eredted merely for this profeflion. 
 The famous academies of Rome for the weft, and of Berytus for the eaft, 
 furnifhed that extenfive empire with a conftant fucceflion of excellent law- 
 yers, whofe names, and the fragments of whofe works were held in the 
 higheft honour, until the inundation of barbarians from the north of 
 Europe, and the prevailing arms of the Saracens in the eaft extinguiflied 
 the Rojnan government in thofe parts. But that of Conftantinople, founded 
 foon after the tranflation of the feat of empire thither, had a more happy 
 
 deftiny.
 
 8 LECTURES ON the Lect. r. 
 
 -deft'my, flouriflied with difllnguiflied reputation to thefe later ages, and 
 periflied not, but with the empire itfelf, when that city was taken by the 
 Turks. Nay, fo fenfible w^ere the Arabs themfelves, who dedroyed the 
 Roman academy of Berytus, of the utility of fuch inflitutions, that, for 
 their own law, they ereded others of the fame nature in Bagdad |. 
 
 Another powerful reafon for laying the foundation of this branch of learn- 
 ing in thefe feats of literature, arifes from the great utility, or rather, indeed, 
 neceffity, that all gentlemen bred in them are under, of gaining a general 
 idea, at leaft, of the principles and practice of the law of their country. 
 How advantageous this would be to every rank of gentlemen, whether legif- 
 lators, magiftrates, divines, or jurymen ; and to all, in fliort, who have any 
 property, to preferve, or tranfmit, or who have wiflies or defires to acquire 
 any, may be feen at large, illuftrated by Mr Blackftone in the fame per- 
 formance. And indeed, if, before the attempt, there could be any doubts 
 of the propriety of beginning this fludy in an univerfity, the extraordi- 
 nary fuccefs of his leftures in Oxford, and the high reputation he hath fo 
 juftly acquired thereby, leave no room for entertaining fuch at prefent. For 
 though much of both muft be attributed to the fmgular abilities of that 
 gentleman, yet it muft be allowed that the moft fkilful gardener cannot 
 make a tree flourifh in a foil unnatural to its growth. With the deepeft: 
 gratitude, therefore, fliould the members of this univerfity acknowledge 
 the munificence, and the wifdom of our prefent moft gracious Sovereign,, 
 who eftablillicd the prefent foundation for the benefit of the youth o£ 
 this kincjdom. 
 
 'b^ 
 
 But if the importance of this inftitution to the public be confidered, to- 
 gether with the difficulties attending the juft execution of it, when thefe 
 dilhcuUies are enhanced by the novelty of the attempt, when the public 
 attention is engaged by that very novelty, and when the future fuccefs of 
 the foundation, may, perliaps, in fome meafure, depend on the opinioa 
 conceived of it at the beginning; he muft, indeed, be pofTcfled of a very 
 overweaning opinion of his own abilities, who can undertake fo arduous a 
 tafi<, without feeling ftrong upprehenfions at the firft fetting out. All the 
 return the perfon thought worthy by this learned body to fill this chair can 
 make them for fo high an honour, and fo important a truft, is to aflure 
 
 them, 
 
 •f Conringiiis de Ant'quitatibas AcaJemicis. Bruckcnis, HiH. Philol". Giannone's hilK of 
 Naples, lib. i. tlwp. lo. i; i. ;.i.d ii. lib. ii. diap. 6. ^ I.
 
 Lect. I. L A WS OP ENG L AND. 9; 
 
 them, that the utmoft care, and the greateft exertion of what knowledge 
 and abilities he pofTefleth, fhall be employed to anfwer the ends propofed, 
 and to juftify, as far as in him lies, the choice they have made. And if the 
 young gentlemen for whofe benefit thefe ledures are defigned, poffeffed 
 with a jufl notion of the great utility to themfelves, and their country, 
 of the fludy they are engaged in, will exert that induftry, for the honour- 
 of their mother univerfity, which hath made her fo long famous for other 
 branches of learning ; he doubteth not but his weak endeavours at the fir/l 
 eflay, will not only merit indulgence, but in the end be crowned with con- 
 fiderable fuccefs. On their afliduity, as well as upon his Ikill, muft the 
 fuecefs of the undertaking depend. 
 
 In the next lefture the grounds and reafons of the plan propofed, as mod 
 proper for the commencing this fludy in this univerfity, fliall be laid open, 
 in hopes that the ftudents will proceed with the more alacrity, if they can- 
 be once convinced they are fet in the right track, and that, by the profef- 
 for's laying before the public the inducements he. had to prefer this before 
 any other, he may acquire information from the fkilful of it errors and 
 imperfedtions, and, confequently, alter it, fo as mofl effeftually to anfwer. 
 the ufeful ends of the inftitutipn. 
 
 LECTURE
 
 t6 L E C T U R E S ON the Lect. 2.. 
 
 LECTURE II. 
 
 The plan of the prefcnt undertaking — The particulars in which it (differs front- 
 that adopted by Mr Black/ioj2e — The different fituations of the Univerfities of 
 Oxford and Dublin — The chief obfimfHons ivhich occur to thefiudent of the 
 EngliJJ:) lazus — The methods which may be employed to remove them — The law cf 
 things more proper to introduce afyjlem of jurif prudence than the law o/'perfons 
 ■ — The Icnv o/" things, or of real property in England, has its four ce in the feudal 
 cufloms — The necejfity of a general acquaintance with the principles of the feudal 
 polity — The method in which it is propofed to treat of it. 
 
 HAVING, in the preceding lefture, fliewn the neceffity of a proper 
 method being pointed out for the ftudy of the laws of thefe king- 
 doms, from the utihty, as well as multiplicity of them ; and having ex- 
 plained from whence that multiplicity arifes, and that it is infeparable from 
 the happy fituation we are placed in ; and having acknowledged the great 
 advantage the ftudents of Oxford have received from Mr. Blackllone's lec- 
 tures, it will doubtlefs be thought neceflary, that fometliing fliould be faid 
 by way of illuflration of the plan propofed to be follov/ed here, and in 
 jufLification of its departure from the excellent one which that gentleman 
 has given us in his analyfis. The method of inftruftion intended to be pur- 
 fued in this place is not propofed as more perfeft, or abfolutely better in it- 
 felf, but as one that appears more adapted to the circumllances of our flu- 
 dents ; and as it will be allowed, that his courfe of leftures, in the manner 
 they proceed, hath feme great advantages as to the finifliing a lawyer, which 
 cannot be attained, and therefore fliould not be attempted here, it will be 
 particularly the duty of your profcffor to compenfate for thofe, by guarding- 
 ap"ain(l fome inconveniencies, which the extenfivenefs of his plan mull of 
 neceflity fubjed young beginners to. I fliall, therefore, proceed briefly to 
 compare the fituation of the two univerfities, in hopes, by that confidera- 
 tion, in fome meafure to vindicate the feveral particulars wherein I have 
 chofcn to vary from his fchcmc. The attendance on the courts of Wcfl- 
 miiiRer-Iiall, when once a gentleman hath read and digcfled enough to 
 liftcn with underflanding to what he there hears, hath, for a fuccellion of 
 
 ivges.
 
 LEtT. 2. L A W S OF E N G L A N D. ti 
 
 ages, been allowed to be, and it mufl be owned is, the mofl effcdual 
 means of accomplifliing a lawyer, and fitfmg him for praftice. In this re- 
 fpeft Oxford, in her proximity to Weftminfter, hath certainly an advantage, 
 as to her law fludents of above two years ftanding, who may at that time 
 be fuppofed capable of improvement by the arguments in the courts of law ; 
 as file is thereby rendered capable of conjoining thofe two excellent methods 
 of inftruttion. Mr. Blackftone was fully fenfible of this happy circum- 
 ftance, and, accordingly, his fcheme is adapted to it. All the leftures there 
 are appointed at times that fall in the law vacations-, and the courfe is gene- 
 ral and difl'ufive, not calculated merely for attendants of the firft and 
 fecond years, but adapted alfo to thofe cf a more advanced ftanding, and 
 eonfequently, in a manner equally copious, or very nearly fo, illuftrates 
 every one of the feveral branches of the Englifli law. But this method^ 
 however excellent in itfelf, and moft eligible where gentlenren can have an 
 opportunity of attending the profeflbr for feveral fucceffive years, muft, on 
 the other hand, be allowed to labour under fome inconveniencies, efpecially 
 as to thofe who are yet novices, which, as it fliould be the particular care 
 of the profeflbr here to obviate, it cannot be improper briefly to point out. 
 
 As the leftures of the Englifh profeffor ftre all read in the hw vacations, 
 nnd in all of them, except the long one, when few young gentlemen of for- 
 tune ftay in the univerfities, the Ihortnefs of thefe vacations neceflarily occa- 
 fions thefe ledtures to follow each other in a very quick fucceffion ; and, ac- 
 -cordingly, we find that five are delivered in every week. It is impoffible, 
 therefore, that the ftudents at firft fhould keep any manner of pace with 
 their profeflbr in their private reading, without which the ableft perfor- 
 mances in the way of preleftions will be of little utility. Many things in 
 •the fucceeding ones muft be rendered very difficult, if not abfolutely unin- 
 "telligible, for want of a due time for maftering and digefting thofe that pre- 
 ceded ; and another unhappy confequence of this quick fucceflion is, tliat 
 the moft ufeful and efl^eclual method of inftruction to beginners, at their 
 entrance upon any fcience, namely, a continued examination of the pro- 
 grefs they have made, is hereby entirely precluded, and rendered impradi- 
 cable. The great advantage of that method need not be enlarged upon in 
 this place, as every gentleman who hears me mult be already fully fatlsfied 
 of it from his own experience. 
 
 But
 
 J3 L E C T U R E S GN THE Lect. 2. 
 
 But this univerfity is circumftanced in a very different manner. The 
 neceffity our ftudents are under of repairing to Weflminfter, to finifh their 
 ftudies, before they are called to the bar, and their incapacity to reap any 
 benefit from the courts of law while they refide here, render it impoffible, 
 ris well as unneceffary, to conjoin thofe two methods of inflruftion before- 
 mentioned, as is done at Oxford ; and, by confining the profeflbr to pupils 
 of two years ftanding or little more, make it highly improper for him 
 to enter minutely into thofe parts of the law his audience have not 
 yet had time to apply to. His -great objeft, therefore, fliould be fo to 
 Frame his le£lures, as to be moft ufeful to youth at the beginning, to be 
 particular and copious in the elementary parts, in order to lay a fure foun- 
 dation, and to fmooth and make plain the difficulties which at firll will 
 every where occur. And as, for thefe reafons, a general and equally diffu- 
 five courfe is a method improper for him to purfue, it fliould be his efpe- 
 cial care to avoid, or remedy the inconveniencies with which fuch an one 
 is neceflarily attended. 
 
 It is a well known truth, that the entrance on any ftudy, however eafy 
 and agreeable fuch ftudy might be after fome progrefs made in it, is at 
 the beginning very irkfome, and attended with many perplexities ; princi- 
 pally arifing from the ufe of new terms, whofe fignifications are yet un- 
 known. But the laws of all nations, and thofe of England above all 
 others, abound in fuch novel words, and old ones ufcd in an uncommon 
 fenfe, more than any other fcience, and therefore muft be attended with 
 difficulties in proportion. And although many of its terms occur frequently 
 in common converfation, and may, confcquently, be fuppofed already 
 underftood, this is rather a difadvantage than otherwife ; for in common 
 difcourfe they are ufed in fo vague and undetermined a meaning, and fo 
 far from ftrift precifion and propriety, that it is no wonder fo many perfons 
 exclaim at the abfurdity of its maxims ; which, though frequently in their 
 mouths, they do not really underftand. Young gentlemen, then, have 
 not only many new words to acquire the fignification of, but tliey mufl 
 likewife unlearn the import of many others they are already acquainted 
 with, and affix to thofe familiar terms new and precife ideas, a talk, as 
 Mr. Locke obfcrves, of no fmall difficulty, and that requires not only the 
 ilridell attention, but conftant care and frequent repetition. Another great 
 dilliculty the fludy of the law of iln^land labours under, peculiar to itielf, 
 
 is 
 
 1
 
 Lect. 2. L A W S OF E N G L A N D. 13 
 
 is that want of method, fo obvious to be obferved, and fo often complained 
 ©f in its writers of authority, infomuch, that ahnoft 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 appro- 
 ved authority, (and none other but fuch fliould be put into the (ludcnts 
 hands,) calculated purpofely for the inftruSion of novices ; wherein the 
 general outlines of the whole law are laid down, the feveral parts of it pro- 
 perly diftributed, its terms explained, and the mofl common of its rules and 
 maxims, with the reafons of them, delivered and inculcated. It is not to 
 be admired then that Sir Henry Spelman fo pathetically deicribes his di- 
 ftrefs at his firfl entrance upon this ftudy. Emifit me mater Londi man, juris 
 nq/iri capejfendi gratia, ci/jus cum vejlibulum falutajjcm, repcriffemque linguam 
 peregrinam, diak^um barbaram, methodum inconcinnam, mokm non ingmtem 
 folum, fed jperpetuis hiimeris fujlinendam, excidit mihifateor animus f. 
 
 These then are the obftrudions to be removed, and the difficulties 
 to be obviated, by a profeflbr who confiders it his bufinefs to lead by 
 the hand young gentlemen, yet ftrangers to the fludy ; and for this 
 purpofe he fhould exert his utmoft care and attention, not to overburthen 
 the memories, or to diftraiEt the attention of his audience with too great 
 variety at firft, but to feed them with knowledge as he finds them capable, 
 and to give them time, by reading and meditation, to become mafters of 
 what they have already acquired, and by frequent examinations to fatisfy 
 himfelf they thoroughly comprehend and retain the fubflance of his pafl 
 ledures. The utility of this laft method, by which the (Indents will be laid 
 under a neceflity o^" reading in private, as to them, will be readily allowed j 
 but taken in another view will be of no lefs affiftance to the profeflbr him- 
 felf, in framing the preleftions he is to read. He will not only be encou- 
 raged to proceed with more alacrity, when he daily obferves the fuccefs of 
 his endeavours, but alfo, by the trial, be convinced of any defe£ts or errors 
 in his plan that before efcaped his obfervation, and will be warned thereby 
 to amend them ; and he will by this means be particularly and perpetually 
 cautioned againft the great and too common miflake of tutors, namely, 
 their imagining that fuch explications as are eafy and familiar to them, will 
 be equally obvious to unexperienced youth. But an examination will de- 
 monftrably fliew him where his illullrations have been defective or obfcure, 
 
 and 
 
 t Prsefat. ad GIofTar.
 
 T4 L E C T U R E S ON' the Lect. 2. 
 
 and will oblige him to accommodate his leftures to the capacity and pro- 
 grefs of his hearers. The next variation in the prefent plan from that etf 
 Mr Blackflone, to be taken notice of, is the propofal of beginning with the 
 law of things, not with the law of perfons,as he hath done. It mud be allow- 
 ed impoflible thoroughly to underftand the law of things, without fomc 
 previous knowledge of that of perfons ; but it is equally impoflible to be 
 mafter of the law of perfens, without an acquaintance with that of things. 
 Since, therefore, we muft begin with one of them, perhaps it will be fuffi- 
 cient to obferve, that fuch knowledge of the names and relations of perfons, 
 ■as is generally acquired by obfervation, before a perfon arrives at an age fit 
 for engaging in this ftudy, will enable him tolerably to tmderftand the law of 
 things ; and that whatever more is neceffary, and hath not been attained by 
 this means, may be eafiiy fupplied as the ftudent goes on. And, that I 
 may not be thought to lean too much on my own opinion in this particular, 
 I fliall quote the famous Sir Matthew Hale to the fame purpofe ; who, in his 
 Analyfis, introduces the la\v of things in the following manner : " Having 
 " done with the rights of perfons, I now come to the rights of things ; and^ 
 ■" though, according to the ufual method of civilians, and of our ancient 
 *' common law tractates, this conies in the fecond place, and after the Jura 
 *' perfonarum, and therefore I have herein purfued the fame courfe ; yet that 
 " muil not be the method of a young ftudent of the common law, but he 
 *' muft begin his ftudy here, at ^hcjitra rcrum ; for the former part contains 
 ■" matter proper for the ftudy of one that is well acquainted with xhoicjura 
 •*' rcrum f ." And, agreeably hereto, the wifdom of ages hath declared 
 Viitlcton^s Tenures, which contains the common law of England, as far as it 
 concerns real property, that is, lands or interefts derived outof and flowing 
 from them, to be the book moft proper for ftudents to begin with, in their 
 iludy of the law of thefe nations. 
 
 Taking It then for granted at prefent, that the law of real property is the 
 fitteft introduftion, it will be nectflary, as it is confefled to be the mofl 
 important, the moft extenfive, and, in confequence, the moft difficult part, 
 to lay the foundation deep and fure, and to derive its rules from what is 
 now univerfally alloAved to be its fource, the feudal cuftoms. This, indeed, 
 hath been denied by Lord Coke, and others of his age ; who thought it 
 v/ould depreciate the excellence of the laws of their country, to admit they 
 were derived from any other nation. But if thofe gentlemen had read over 
 
 but
 
 Lect. 2-. L A W S OF E N G L A N D, 15 
 
 but once the two books of the feudal law with tolerable attention, they 
 mult have received convidion, that one of the law& was certainly derived 
 from the other ; and whicli of them was fo would eafily appear, by com- 
 paring the law of England after the conquelt, with that which prevailed in 
 tlie Saxon times, and was not ftridly feudal, excluiive of tlie tcltimony of 
 the old hiilorians.. 
 
 But, perhaps, for this purpofe, it may be thought fufficient to explain 
 and deduce thefe rules from the feudal ones, as they occur occafionally 
 in the books of the common law ; which is the method, that, in confor- 
 mity to the reft of his plan, the Oxford profeilbr has adopted, and that the 
 reading through a courfe of that law, even the fhorteft, will be attended 
 with an vmproiitable delay, and detam the ftudents too long from their 
 principal objeft. The anfwer to this objeftion is fhort, and, if well 
 founded, perfedly fatisfadtory. It is, that the real reafon of propofing a 
 fyftem of the feudal law to be gone through, was to fave time. The method 
 is fo much better, and clearer, and, by neceflary confequence, fo much 
 eafier to be comprehended, and retained, that the delay will be abuodantly 
 compenlated, and one third at leaft of Littleton will be underftood, and 
 known by the ftudents, before they open his book. For the maxims of the 
 common law, as they he difperfed in our books, often without reafons, and 
 often with falfe or frivolous ones, appear disjointed and unconnefted, and 
 as fo many feparate and independent axioms ; and in this light very many 
 of them muft appear unaccountable, at leaft, if not abfurd ; whereas, in 
 truth, they are almoft every one of them deducible, by a train of necefTary 
 confequences, from a few plain and fimple rules, that were abfolutely ne- 
 ceflary to the being and prefervation of fuch kind of conftitutions as the 
 feudal kingdoms were. The knowledge of which few, timely obtained, 
 will obviate the neceffity of frequent and laboured illuftrations, as often as 
 thefe maxims occur in our law, will reconcile many feeming contradictions, 
 and will Ihew that many diilinttions, which at firft view appear to be with- ■ 
 out a difference, are founded in juft and evident reafon : to fay nothing of 
 the improvement the mind will attain by exercife, in following fuch a train 
 of deduftions, and the great help to the memory, by acquiring a perfeft 
 knowledge of the true grounds of thofe various rules, and of their mutual 
 connection with and dependence on each other. Ignoratis caujis rcrum, iit 
 res ipfas i^noretis, necejfc eft, is a maxim frequently in our lawyers mouths ; ; 
 
 and
 
 i6 LECTURES ON the Lect. 2. 
 
 and Littleton and Coke continually exhort the ftudent to explore the 
 grounds and reafons of the law, as the only fafe foundations to build on, 
 and deny that any man, without being perfectly acquainted with them, can 
 merit the honourable appellation of a lawyer. 
 
 But there is another, and, for gentlemen of rank and fortune particu- 
 larly, a more important confideration, that renders a general acquaintance 
 with the principles of the feudal law very proper at all times, but at pre- 
 fent eminently fo ; namely, the neceffity of knowing thefe, for the under- 
 flanding the nature of thofe Gothic forms of government, which, until 
 thefe laft three hundred years, prevailed univerfally through Europe, and 
 whence the prefent conftitution, with feveral correftions and improvements 
 indeed, in which thefe illands are now fo happy, is undoubtedly derived. 
 From hence only fliall we be able to determine whether the monarchy of 
 England, as is pretended, was originally and rightfully an abfolute royalty, 
 controuled and checked by the virtue of the prince alone, and whether the 
 privileges of the fubjefts, which we are fo proud of, were ufurpations on the 
 royal authority, the fruits of profperous rebellion, or at bell the concef- 
 fions of gracious princes to a dutiful people, and revockable by them oc 
 their fucceffors, whenever, in their opinion, their vaiTals fliould become 
 undeferving ; principles that were indullrioully, and, to the misfortune o£ 
 a deluded royal family, too fuccefsfully propagated during the laft century, 
 and that, of late, have been revived and defended, with no lefs zeal, than 
 feeming plaufibility. Every man, indeed, of candour and humanity, will 
 look with tendernefs on the errors of princes, unhappily educated in mif- 
 taken notions, and make due allowances for the weight which arguments 
 urged with great apparent force of reafon, concurring with the luft of 
 power, fo natural to the human breaft, will certainly have on fuch minds ; 
 but, furely, this indulgence may be carried too far, and will be allowed fo to 
 be, if, for their juftification, it fliall appear, upon examination, that the 
 hiftory of part ages has been partially delivered down, and perverted ; and 
 that to the vain and unprofitable grandeur of the prince, the happinefs of 
 millions, and their pofterity, hath been attempted to be offered up in facri- 
 fice. The queftion is of a matter of faft ; for on the dccifion of the fafl, 
 how the conftitution of England antiently ftood, the queftion of the right 
 folely depends. And furely it is the duty of every gentleman to inform 
 himl'clf, on the beft grounds, whether thofe great uun, who, for a fuccef- 
 
 fion
 
 Lect. 2. L A W S OF E N G L A N D. 17 
 
 fion of ages, expofed their lives in the field, or exerted their eloquence and 
 wifdom in the fenate, for the purpofe of preferving, and perpetuating thefc 
 privileges, deferved the honourable name of patriots, or the deteftable ap- 
 pellation of rebels ; whether the grievances our glorious deliverer came to 
 redrefs were real or imaginary ; or, if real, were fuch as our fathers were in 
 confcience bound to fubmit to ; and whether we can with juflice give to 
 the. family that now fills our throne with fuch luftre and dignity, that title 
 which they have always efteemed as their higheft honour, of being the lords 
 of freemen, and the aflertors of the liberties of mankind. 
 
 As the book * which it is intended the young gentlemen fliall read, for 
 the purpofe of acquiring a general idea of the feudal law, is compofed 
 in a fyftematical method, it is propofed that thefe leftures fliall proceed 
 in an hiflorical one, in order to fliew the original reafons of thofe cu- 
 floms, and to point out from what fmall beginnings, and by what particu- 
 lar fteps and gradations the mighty fabrick rofe. By this means the addi- 
 tions to, and the alterations of the law will be feen in a clearer light, when 
 we are acquainted with the nature of the regulations already in being ; and 
 by knowing the circumftances of the times, can at once perceive the wif- 
 dom and neceffity of fuch additions and alterations. And it is hard to 
 imagine a fludy more improving, more agreeable, or better adapted to a 
 liberal mind, than to learn how, from a mere military fyflem, formed and 
 created by the neceffities of a barbarous people, for the prefervation of their 
 conquefts, a more extenfive and generous model of government, bet- 
 ter adapted to the natural liberties of mankind, took place ; how, by 
 degrees, as the danger from the vanquifhed fubfided, the feudal policy 
 opened her arms, and gradually received the moft eminent of the conquered 
 nation to make one people with their conquerors ; how arts and commerce, 
 at firfl: contemptible to a fierce and favage people, in time gained credit to 
 their profefTors, and an admittance for them into the privileges of the focie- 
 ty ; and how, at length, with refpeft to the loweft clafs of people, which ftill 
 continued in fervitude, its rigour infenfibly abated ; until, in the end, the 
 chains of vaffalage fell off of themfelves, and left the meaneft individual, in 
 point of fecurity, on an equal footing with the greateft. 
 
 C Thus 
 
 * Corvini jus feudale.
 
 i8 L E C T U R E S ON the Lect. 2. 
 
 Thus much has been thought neceffary to obferve, in order to fliew the 
 reafons of propofing a courfe of the feudal laws, as an introduftion to the 
 Englifh ; to which may be added, that this method hath received the ap- 
 probation of many good judges, and hath, in experience, been found not 
 only ufeful for the end propofed, as it is the conftant praftice in Scotland, 
 whofe laws, except in the manner of adminiftering juftice, differ little from 
 ours, and hath been alfo ufed in England with good fuccefs j but, at the 
 fame time entertaining, and improving in other refpefts. 
 
 As we are to begin, therefore, with this law, the obfervations on the re- 
 maining parts of the plan may be, for the prefent, deferred ; I fhall, in my 
 next lefture, begin to deduce the origin of this law, and of its rules, from 
 the culloms of the German nations, before they invaded the Roman empire. 
 
 LECTURE
 
 Lbct. 3. LAWS OF E N G L A N D. 19 
 
 LECTURE III. 
 
 An emtmeration and confutation of feveral opinions concerning the foundation 
 of the feudal ciifioms — The origin and rules of the feudal law to be deduced 
 from the inflitution of the German nations before they invaded the Roman em- 
 pire — The Engli/h indebted for this law to the Franks — J general dcfcription 
 of this people, with an account of the fe-veral orders of men into which they 
 ivere divided while they continued in Germany. 
 
 THE feudal cufloms fucceeded the Roman imperial law in almort: 
 every country in Europe, and became a kind of a. Jus gentium ; but 
 having fprung up in rude illiterate ages, and grovi'n by flow degrees to 
 a ftate of maturity, it is no wonder that very different have been the opi- 
 nions concerning their origin, and that many nations have contended for the 
 honour of giving them birth, and of having communicated them to others. 
 Several eminent civilians, fmit with the beauty of the Roman law, and filled 
 with magnificent ideas of the greatnefs of that empire, have imagined that 
 nothing noble, beautiful, or wife, in the fcience of legiflation, could flow 
 from any other fource ; and, accordingly, have fixed on Rome as the parent 
 of the feudal confl;itutions. But as the paths of error are many, and difa- 
 greeing, fo have their endeavours to make out, and defend this opinion, 
 been various in proportion ; a fliort mention of them, and a very few ob- 
 fervations, will be fufficient to convince us, that they have been all miitaken. 
 
 ' First, then, fome civil lawyers have difcovered a likenefs between the 
 Roman patrons and clients, an infl:itution as early, as Romulus himfelf, and 
 the feudal lords and vaflralsf. The clients, we are told, paid the higheft 
 deference and refpeft to their patrons, aflifled them with their votes and 
 intereft; ; and, if reduced to indigence, fupplied their neceffities by contri- 
 butions among themfelves, and portioned off their daughters. On the 
 other hand, the patrons were Handing advocates for their clients, and 
 obliged to defend, in the courts of law, their lives and fortunes. The like 
 refpeO: was paid by vaflTals to their lords, and fimilar afrifl;ance was given 
 
 C 2 / - .. refpecT: 
 
 , + See Craig, de Feud. lib. i. dieg. 5. and Selden's Tides of Honour, part fecond, chap. i. 
 5 23. Bafnage, Couuime reformee de Normandie, torn. i. p. 139.
 
 20 LECTURES ON the Lect. 3. 
 
 to their wants. The fortune of the firfl: daughter, at leaft, 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 mufl confefs, 
 there is a ftrong refemblance ; but the differences are no lefs material, and 
 fliew plainly that the one could not proceed from the other. The connexion 
 between the patron and the client was merely civil; whereas the relation be- 
 tween the lord and the proper vaffal was entirely military ; and his fealty to 
 his fuperior was confirmed by the fanftion of an oath, whereas there was no 
 fuch tie between patron and client. The aids which the tenant gave to his 
 lord's neceffities, except in three iiillances, eftablillied by cuflom, to redeem 
 his lord's body taken in war, to make his eldefl fon a knight, and for the 
 firfl marriage of his eldefl; daughter, were purely voluntary. But the great 
 point which diftinguilhes them was, that whereas the Roman client's efl;ate 
 was his abfolute property, and in his own difpofal, the feudal vaflal had but a 
 qualified intereft. He could not bequeath, he could not alien, without his 
 lord's confent. I'he dominium •vermn remained with the lord to whom the 
 land originally had belonged, and from whom it moved to the tenants 
 Upon the failure therefore of the tenant's life, if it was not granted tranf- 
 miflible to heirs, or if it was, on the failure of heirs to the lands, it reverted 
 to the original proprietor. Neither was the lord, on all occafions, and in 
 every caufe, bound to be his vaflal's advocate, or, as they exprefs it, bound 
 to warranty, and obliged to come in and defend his tenant's right and pro- 
 perty. For tlie fealty on one fide, and the protection on the other, ex- 
 tended no farther than the feudal contrad ; and therefore the one was not 
 bound to warrant any of the tenant's lands, but fuch as were holden ot him, 
 nor the other to give aid, or do fervice in regard of his whole property, 
 but in proportion to that only which he derived from his fuperior. Add to 
 this, that the lord, in confideration of the lands having been originally his, 
 retained a jurifdldlion over all his tenants dwelling thereon, and iq his courj 
 fat in judgment, and determined their controverfies. Thefe flriking diverfities 
 (and many more there arc) it is apprehended, will be fuflicient to demon- 
 (Irate the impoflibility of deriving the feudal culloms from the old inflitution 
 of patron and client among the Romans. ' 
 
 Secondly, Others, fcnfiblc that military fervice was the firfl: fpring, and * 
 *lje grand confideration of all feudal donations, have furmifcd, that the- 
 
 grants
 
 Lect. 3. L A W S OF E N G L A N D. 21 
 
 grants of forfeited lands by the didators Sylla and Cafar, and afterwards 
 by the triumvirs Oftavius, Anthony and Lcpidiis, to their veterans, gave 
 the firfl; rife to themf. In anfvver to this, I obferve, tliat thofe lands, when 
 once given, were of the nature of all other Roman cftates, and as different 
 from fiefs, as the eftates of clients, which we have already fpoken of, 
 were. Befides, thefe were given as a reward for paft fervices, to foldiers 
 worn out with toil, and unfit for farther warfare ; whereas fiefs were given 
 at firft gratuitoufly, and to vigorous warriors, to enable them to do future. 
 military fcrvice. 
 
 Others have looked upon the emperor Alexander, Severusj as the firft 
 introducer o£ thefe J^enures, becaufe he had diflributed lands on the bordera 
 of the empire, which he had recovered from the Barbarians, among his 
 foldiers, on the condition of their defending them from the incurfions of 
 the enemy; and had granted, likewife, that they might pafs to their chil- 
 dren, provided they continued the fame defence. This opinion, indeed, 
 is more plaufible than any of the reft that derive their origin from the 
 Romans, as thefe lands were given in confideration of future military fer- 
 vice ; yet, when we confider, on the one hand, that in no other inftance 
 did thefe eftates agree with fiefs, but liad all the marks of Roman property j 
 and that, on the other hand, feudal grants were not, for many ages, de- 
 fcendlble to heirs, but ended, at fartheft,with the life of the grantee, we fliall 
 be obliged to allow this notion to be as untenable as any of the foregoing.. 
 
 . . The furmife of fome others, that the feudal tenancies were derived from 
 |he Roman agents, baillfts, ufufructuarles, or farmers, is fcarce worth con- 
 futing ; as thefe refembled only, and that very little, the loweft and moft. 
 ijnproper feuds; and them not in their original ftate, when they were. 
 precarious, but when, in imitation of the proper military fief, which cer- 
 tainly was the original, they were become more permanent. 
 
 Lastly, 
 ■f Selderu Ibid." Craig, lib. i. dieg. ;V 
 
 J This Emperor, fays Lampridius, gave the territories gained on the frontier,";, lirnita- 
 neis ducibus et militibus, ita ut eorum efTent fi hsredes illorum militarent, nee unquam ad 
 privatos pertinerent; 4icens attentiias eos militatiiros fi etiam fua rura defenderent. Addi- 
 dit fane his et animalia et fervos ; ut poflent colere quod acceperunt, ne per inopiam homi- 
 num vel per feneftutem poflidentium defererentur rura vicina barbarise, quod turpiffimum 
 effe dicebat. See alio Molin. in coiifuet. Parif. tit. I. de Fiefs, and Loyieau, des OiF. 
 lib. I. chap. I.
 
 22 LECTURES ON the Lect. 3. 
 
 Lastly, Some refort as far as Conftantinople for the rife of fiefs, and 
 tell us that Conftantine Porphyrogenetus was their founder ; but he lived in 
 the tenth century, at a time that this law was already in France, Germany^ 
 Italy, and Spain, where it had arrived very near its full perfeftion, and 
 was therefore undoubtedly his model: So that, tho' we mull acknowledge 
 him th<; firil who introduced thefe tenures into the Roman empire, to find 
 their original, we mufl look back into earlier ages, and among another people* 
 
 The pretenfions of the Romans having been confidered, and fet afide, it 
 follows, that this law mufl have taken its rife among the barbarous nations; 
 but from which of them particularly, remains to be inquired. Some, foli- 
 citous for the honour of the antient Gauls, quote Casfar's account of their 
 manners; eos qui opibus valebant multos habuijfe devotos, quos fecum ducerent in 
 bclla, foldurios fim lingua Jiiincupatos ; quorum h^c eji conditio, ut ojnnibus in 
 ^ita commodis una- cum his fruantur quorum fe amicitia dediderint ; fi quid iis 
 fer I'im accidat, aut cundi'm cafum una ferant autfibi mart an confcifcant^ ; in 
 thefe words they imagine they have plainly the mutual connexion between 
 lords and vafials. The Spaniards too put in their claim for the antient 
 Ccltibcrians, of whom Plutarch, in his life of Sertorius and Valerius Maxi- 
 mus, gives the fame account that Casfar doth of the antient Gauls ; and 
 Sir Edward Coke, in his zeal for the common law of England, which, 
 although he did not know it, is certainly feudal, relying on fabulous hifto- 
 rians, carries its antiquity fo far back as to the Britilh kings of GeoftVey of 
 Monmouth. But one fhort and plain obfervation will fully diifipate fuch 
 vain conceits, namely, that, whatever were the original cuftoms of the bar- 
 barous nations, inhabiting Gaul, Spain, or Britain, they were, many ages 
 before the rife of this law, entirely annihilated and forgotten. Gaul, Spain, 
 and Britain, were, for certuries, Roman provinces, governed entirely by 
 Roman magiftrates, according to the imperial laws. For the Romans were 
 particularly fludious of introducing their drefs, their language, their laws 
 and cuftoms, among the conquered nations, as the fureft, and moft efieftual 
 means of keeping them in fubjedion. 
 
 Hence, it appears, wc muft find the true original of this law among thofe 
 nations, that deftroycd the Weftern Empire of the Romans ; where we firfl 
 
 perceive 
 
 "i" De bell. Gull. lib. 4. chap. 22.
 
 Lect. 3. LAWS OF ENGLAND. 23 
 
 "O 
 
 perceive the traces of it, that is, among the Franks, Burgundians, Goths, 
 and Lombards*. Of thefe the firfl and lad have the greateft number of ad- 
 vocates ; and, vi^hether out of jealoufy to the French monarchy, or not, I 
 cannot determine, the majority declares for the Lombards. Thefc different 
 opinions, however, may be eafily adjufled, by diftinguifliing between the 
 beneficiary law, as I fliall call it, while the grants were at will, or for years, 
 or at the utmoft for life, and that which is more properly and ftrictly called 
 feudal, when they became tranfmiflible to heirs, and were fettled as inheri- 
 tances. As to the beneficiary law, no one of thefe nations can lay a better 
 claim to it than another, or with reafon pretend that the reft formed their 
 plan upon its model ; each of them independent of the other, having efta- 
 blifhed the fame rules, or rules nearly the fame ; which were, in truth, no 
 more than the ancient cuftoms of each nation, while they lived beyond the 
 Rhine, and were fuch as were common to all the different people of Ger- 
 many. But, as to the law and practice of feuds, when they became inheri- 
 tances, there can be little doubt but it was owing to the Franks. For the 
 books of the feudal law, written in Lombardy, acknowledge, that the Em- 
 peror Conrad, who lived about the year 1024, was the firft that allowed 
 fiefs to be defcendible in Germany and Italy f; whereas the kingdom of the 
 Lombards was deftroyed by Charlemagne above two hundred years before ; 
 and he it was who firft eftabliftied among his own Franks the fucceffion of 
 fiefs, limiting it, indeed, only to one defcent. His fucceffors continued the 
 fame practice, and, by flow degrees, this right of fucceflion was extended 
 fo, that by the time of Conrad, all the fiefs in France, great and fmall, 
 went in courfe of defcent, by the concefljon of Hugh Capet, who made ufe 
 of that device, in order to fweeten his ufurpation, and render it lefs dif- 
 agreeablej. By this conceffion he, indeed, eftabliftied his family on the 
 throne, but fo much weakened the power of that crown, that it coft much 
 trouble, and the labour of feveral centuries, to regain the ground then 
 loft. 
 
 The opinion of the feudal law's being derived from the Lombards feems 
 owing to this, that, in their country, thofe cuftoms were firft reduced into 
 
 writing, 
 * Montefquieu, L'efprit des loix, liv. 30. chap. 2. and 6. 
 f Lib. Feud. i. tit. i. 
 + L'efprit des lobe, liv. 31. chap. 31.
 
 24 L E C T U R E S ON the Lect. 3. 
 
 writing, and compiled in two books, about the year 1 150, and have been 
 received as authority in France, Germany and Spain, and conftantly quoted 
 as fuch. But then it fliould be confidered, that the vvrhten law in thefe 
 books is, in each of thofe nations, efpecially in France, controuled by their 
 unwritten cuftoms ; which lliews plainly, that they are received only as evi- 
 dence of their own old legal praftices. 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 fhouid be miftaken, and the Lombards were 
 really the firfl framers of the feudal law, yet I believe it will be allowed 
 more proper for the perfon who fills this chair to deduce the progrefs of it 
 through the Franks, from whom we certainly borrowed it, than to diftrafl: 
 the attention of his audience, by difplaying the feveral minute variations of 
 this law, that happened as it was ufed in different nations. To the nation of 
 the Franks, therefore, I fhall principally confine myfelf, and endeavour to 
 fhew by what fteps this fyftem of cuftoms was formed among them, and 
 how their conftitution, the model of our own juft after the conqueft, afofe ; 
 and at the fame time I (hall be particularly attentive to thofe parts of it only 
 that prevailed in England, or may fome way contribute to illuftrate our 
 domeftic inflitutions. 
 
 In order, then, to illuftrate the original of the French conftitution, and 
 of their beneficiary, and its fucceflbr the feudal law, it will be neceffary to 
 enter into fpme details as to the manners of this people, while they conti- 
 nued in Germany, and which they preferved for a confiderable time after 
 they paffed the Rhine ; as alfo to mention fome few particulars of their hif- 
 tory when fettled in France, in order to fliew the reafons of their original 
 cuftoms, and the ends their policy aimed at, and how', by change of circum- 
 ftances, the prefervation of that fyftem required new regulations ; how the 
 feudal law arofe, and grew to that perfeftion, in which, for fo many ages, 
 it flouriflied throughout Europe. As fkilful naturalifts difcover in the feed 
 the rudiments of a future tree, fo, in a few paftages of Csfar and Tacitus, 
 concerning the cuftoms of the Germans, may be feen the old feudal law, 
 and all its original parts, in embryo; which, in procefs of time, by gradually 
 dilating and unfolding themfelves, grew into a perfedt and compleat body. 
 
 It
 
 Lect. 3. L A W S OF E N G L A N D. 25 
 
 It will be highly proper, therefore, for the clearer comprehenfion of what Is 
 to follow, to dwell fomewhat particularly upon, and to make ourfelves ac- 
 quainted with, the manners and inftitutions of thofe people ; and for this 
 purpofe, perhaps, it will be fufRcient to confider them under the fcvcral 
 following heads, viz. their general difpolition and manners, the feveral ranks 
 and orders of perfons among them, their form of government, and the na- 
 ture of their policy ; their regulations touching property, their methods of 
 adminiftering juftice, and the nature of the punilhments they inflided on 
 
 criminals. 
 
 o 
 
 First, as to their manners and general difpofition: Germany vi-as at that 
 time a wild uncultivated country, divided into a great number of fmall 
 cantons, feparated from each other by thick forefts, or impaffable moralfes, 
 and inhabited by a rude and fimple people, who lived either by the chace or 
 pafturage, and were alv/ays either in a ftate of open war, or a fufpicious 
 peace with their neighbours : A circumftance that obliged every one of thefe 
 little ftates to efteem military virtue in the firfl place, and to train up all 
 their people, fit for that purpofe, in the conftant ufe of arms, and to keep 
 them perpetually in a ftate ready always for either offence, or defence f. 
 
 But fmce, in every number of men, however aflembled, fome there will 
 be, from the natural ftrength of their bodies, and courage of their minds, 
 more fit for foldiers, and others, from the contrary caufes, better adapted 
 to the arts of peace ; thefe nations were neceffarily diflributed into two 
 ranks ; thofe in whom the ftrength of the fociety confifted, the freemen or 
 foldiers, who were, properly fpeaking, the only members of the community, 
 and whofe fole employment was war, or (in the intervals of hoftilities, what 
 Xenophon confiders as its image) hunting ; and an inferior order of people, 
 who were fervants to them, and, in return for protedion, fupplied the war- 
 riors with the neceffaries of life, occupied the lands for them, and paid fti- 
 puhited rates of cattle, clothes, and fometimes corn, namely, where they 
 had learned the ufe of agriculture from the neighbouring Romans.' I fol- 
 low Craig in calling them fervants rather than flaves, as an expreffion much 
 more fuitable to their condition ; for they were not condemned to laborious 
 works, in the houfes of the freemen, as the flaves of other nations were. 
 
 D Among 
 
 t Tacitus de moribus Germanorum. Csefar de bell. Gall. lib. 6,
 
 26 LECTURES ON the Lect. 3. 
 
 Among thefe fimple people, the wives and children even of the greateft 
 among them, and the old men, unfit for the toils of war, were their only 
 domeftics. The fervants of the Germans lived apart, in houfes of their own, 
 and when they had rendered to their lords the fervices due by agreement, 
 they were fecured in the reft, as their own property ; fo that a fervant among 
 thefe people, though meanly confidered by the fuperior rank, was, in truth, 
 more a freeman than the generahty of the Romans under their Emperors -{-. 
 It has been an antient obfervation, that fervitude among the northern na- 
 tions hath always been more gentle and mild than among thofe that lay 
 more foutherly :' A difference, to be afcribed to the different manners of the 
 people, refulting partly from their climate, and partly from their way of 
 hfe> A plain and fimple people, unacquainted with delicacies, were conr 
 tented with the plaineft fair ; which was eafily fupplied, without afBifting 
 their fervants with heavy labour, and gave no room for envy and difcontent 
 in the breafts of inferiors. And a nation that had always the fword in 
 their hands v/ere too confcious of their own ftrength, to entertain any appre- 
 henfions from thofe, who, from their unfitnefs for that profeffion, were 
 deftined to other employments. All motives, therefore, to fear on the one 
 fide, and to envy and difcontent on the other, being removed, we need not 
 be furprized at the general humanity with which the fervants were treated 
 in thefe northern regions. The putting them in chains was a thing exceed- 
 ingly rare, and the killing them, except in a fudden guft of paflion (an ac- 
 cident which frequently happened among the freemen themfelves) was al- 
 moft unheard of. The only difference in that cafe was, that the death of a 
 fervant was not looked upon as a public crime, he being no member of the 
 political fociety, and therefore was not punilhed. Such then was the mu- 
 tual affection and confidence of thefe two ranks in each other, that when- 
 ever there was occafion, they made no fcruple of arming fuch of their fer- 
 vants as were capable, and, by making them foldiers, admitted them into 
 the number of freemen ; and the hopes of fuch advancement, we may be 
 affured, was a ftrong inducement to thofe of the lower rank to behave in 
 their ftation with fidelity and integrity. Another caufe of this great lenity 
 to their fervants arofe from a cuftom peculiar to the Germans, which or- 
 dained 
 f Servis, non in no(b-uni morem dcfcriptis per familiam minifleriis utantiir. Suam 
 (luiique fcdem, fuos ]5enates regit. Fruinenti moclum (lominus, aut pecoris, aut vfftis, 
 ut coloiio uijun^tt ; et fcrvus ha<ftemi'5 paret. Tacit, de mor. Germ. cap. 25.
 
 Lect. 3. L A W S o F E N G L A N D. 27 
 
 dained, that infolvent debtors fliould be reduced to fervltude, until, cither 
 by his labour, the creditor was fatisfied, or, as it frequently happened, the 
 debt was paid by the infolvent's relations. It was, indeed, reputed diflio- 
 nourable for the creditor himfelf to retain his debtor in fervitude ; but then 
 he eitlier fold him to the prince, or fome other perfon. 
 
 Among fo plain a people, perhaps it may be thought debts were rare, 
 and that few inftances occurred of freemen's being reduced to flavery ; but 
 Tacitus affiires us of the contrary f. Thefe people were pofTefTed with the 
 tape of gaming to fuch a degree, that nothing was more common than to 
 fee them, when all their property was lofl, fet their liberty itfelf at flake. 
 It was natural, therefore, to treat thofe with gentlenefs, who had been once 
 perhaps the moft valuable members of the body politic, efpecially for them 
 who knew their own privileges depended on the uncertain caprices of the 
 fame goddefs Fortune, and that an unlucky throw might reduce them to- 
 morrow to the fame low condition. I have been the more particular on 
 this head, in order to fliew, that, even in their infancy, the feudal maxims 
 ■were more favourable to the natural liberty of mankind, than the laws and 
 cuftoms of the fouthern and more polite nations, and were of fuch a fpirit, 
 as when circumftances changed, would naturally expand, and extend that 
 bleffmg to the whole body of the people ; as we find it at prefent in our 
 excellent conftitution. 
 
 To return, therefore, to the freemen : We find no traces of any difFerent 
 orders of men among them ; but as no kind of government, however rude, 
 can fubfift without fome fubordination, and as it was impofhble for them all 
 to continue together in one body, it was found neceffary, in order to dif- 
 perfe them round the country, that they fhould be fubdivided into lefler par- 
 ties, and to appoint to each a chief, the moft eminent and capable among 
 them ; who, when a diftrift was afligned him, diftributed that among his- 
 followers ; who again, after having retained what they efteemed fufficient for 
 their own purpofes, afligned part of what they had fo received to their fer- 
 vants. And here, indeed, we fee the firft rude original of lords and vaflals. 
 Thefe lords were thofe, of whom Tacitus fays, De minoribus rebus principes 
 tonfultant\. One of thefe lords, and to him a larger territory was afligned 
 
 D 2 than 
 
 t De mor. Germ. cap. 34. % De mor. Germ. cap. ii.
 
 28 LECTURES ON the Lect. 3. 
 
 than to the others, was the head of the whole body politic, and honoured 
 with the title of king. He was the fuperior, who, at their general aflem- 
 blies, made the diftribution already mentioned, and appointed the other 
 lords. And, befides his excelling the others in the enjoyment of a more 
 extenfive diftrict, and in having a greater number of vaffals and fervants, 
 he was remarkably diftinguifhed from them in two particulars. His office 
 was for life, and, in fome degree, hereditary ; for, in every nation there 
 was one family, defcended, it is to be prefumed, from the firfl: founder of 
 the ftate, or fome ancient hero, which was the only family noble by birth 
 among them, and the members of which alone were capable of this high 
 ftation. Not that thefe kings fucceeded in a lineal, or any other regular 
 courfe of defcent ; for Tacitus intimates fufficiently that they were ele£live, 
 when he fays, Reges ex nobilitate fnmunt-\. And indeed any one who confiders 
 attentively the circumftances of thefe people, always either ready to invade 
 their neighbours, or dreading invafions from them, will allow, that any 
 kind of a conftant regular fucceffion was inconfiftent with their prefervation. 
 They were neceflitated to choofe among the royal family a man in the flower 
 of youth, or, at leafl, in the vigour of life, who, by his valour and 
 wifdom, might prove the proper head of a nation always in a ftate of war. 
 This will appear beyond a doubt, if we examine the ancient praftice 
 of all the kingdoms founded by the Germans. Look over the lifts of their 
 kings in any one nation, and examine the degree of kindred in which they 
 flood related to each other, and you will find them all, indeed, of one fa- 
 mily ; but you will, at the fame time, fee that fcarce a third of them could 
 derive their kindred, by way of title or defcent, from their immediate prede- 
 ceflbr ; yet were they obeyed chearfully by their fubjefts, nor ever looked 
 upon in thofe days as ufurpers, though feveral modern writers, poflefled 
 with opinions of their own ages, fince kingdoms are almoft univerfally fet- 
 tled in a regular courfe of defcent, have been fo liberal in beftowing that 
 title upon them. 
 
 MoNTr.sQt;iEU allows this was the manner of fucceflion in tlie fecond race 
 of the Franks, but infifts that thofc of the firft inherited lineally |. But was 
 this fo originally, when Clovis came to the crown, he who hrft united all 
 the Franks under one fovereign ? We find fix or feven independent kings 
 
 of 
 
 t Ibid. caf. 7. -.1: L'efprit dcs lolx, liv. 31.
 
 Lect. 3- LAWS OF ENGL AN D. %^. 
 
 of the Salian Franlcs, every one of them Clevis's near relations, and con- 
 fequently defcended from a common anceflor, at no very great diftance. He 
 thought not himfelf, nor his pofterity, fecure in the poflellion of the throne, 
 until he had totally extirpated every other branch, and reduced the royal l"a- 
 mily to his fmgle perfon. Then, indeed, there vi'as no danger of a competi- 
 tion upon his death. So far was the crown from defcending to any determi- 
 ed perfon, that the kingdom was divided among all his .children ; and, for 
 feveral defcents, his bloody example was followed in one generation, and in 
 the next a new divifion took place; nor, in all this time, do we hear of any 
 other title fet up, than what followed either from the will of the father, the 
 confent of the people, or the fortune of war ; which, it is apprehended, is 
 fufficicnt to fliew, that, in thefe early ages, there were no invariable rules 
 of fucceffion fettled among the Franks. Otherwife, how came the king- 
 dom to be divifible, and the right heir to be obliged to content himfelf 
 with a fmall portion of Iiis fuppofed legal inheritance f ? 
 
 In the next leflure I fhall give an account of the companions of the prince 
 among the Germans, and finifli what I have to obferve of the conflitution 
 of their governments, and of their laws and cuftoms, unto the time of their 
 entering into the Roman empire. 
 
 t Mably, Obfervations fur I'hifloire de France, liv. i. cap. 3. 
 
 LECTURE
 
 33 
 
 LECTURES ON the Lect. 4. 
 
 LECTURE IV. 
 
 The companions of a German prince — The conjlitut'wn of a German king- 
 (Jom — The condition of property in Germany — The methods followed there 
 of diftribicting jufiice^ and the nature of the punijhments inflided on cri- 
 
 BEFORE we can be fully acquainted with all the feveral conftituent 
 parts of the German ftate, it will be neceflary to form a juft notion of 
 thofe who were called the companions of the king or prince ; who, being 
 chofen out of the moft robufl and daring of the youth, and having attached 
 themfelves particularly to the perfon of their fovereign, were his chief de- 
 fence in war, and the great fupport of his dignity in times of tranquillity. 
 A few words of Tacitus will fet this inflitution of theirs in a clear light. 
 Speaking of their princes, he fays, " This is their principal ftate, their chief 
 " ftrength, to be at all times furrounded with a numerous band of chofen 
 " young men, for ornament and glory in peace, for fecurity and defence 
 " in war; nor is it among his own people only, but alfo from the neigh- 
 " bouring communities, that a prince reaps high honour, and great re- 
 *' nown, when he furpaffes in the number and magnanimity of his follow- 
 " ers ; for fuch are courted by embaflies, and diftinguifhed with prefents, 
 *' and by the terror of their fame alone often diflipate wars. In the day of 
 " battle, it is fcandalous for the prince to be furpaffed in feats of bravery, 
 " fcandalous to the followers to fail in matching the valour of the prince. 
 " But it is infamy during life, and an indelible reproach to return alive from 
 *' a battle wherein their prince was flain. To preferve him, to defend 
 *' him, and to afcribe to his glory all their gallant actions, is the fum, and 
 " mofl; facred part of their oath. For from the liberality of their prince 
 " they demand and enjoy that war-horfe of theirs, and that terrible javelin, 
 " dyed in the blood of their enemies. In place of pay, they are fupplied 
 *' with a daily table and repafls, though grofsly prepared, yet very profufe. 
 " For maintaining fuch liberality and munificence, a fund is furnifhed by 
 
 " continual wars and plunder f." 
 
 Here, 
 ■}- De mor. Germ. cap. 13. and 14.
 
 Lect. 4. L A W S OF E N G L A N D. sr 
 
 Here, then, are to be feen mofl plainly the rudiments of that feudal cou- 
 neftion, that afterwards fubfiftcd between the king and all his military vaflals,. 
 and of the oath of fealty which the latter took to him. To his perfon, and 
 to aid him in all he undertook, his companions were bound, during his and 
 their lives, by the flriftefl ties ; but as to other freemen, who lived apart in 
 their villages, the bonds of allegiance were much more loofe. Tliis rude 
 people had no notion of what almod every civilized nation hath laid down 
 as a maxim, that being born in, and protedled by a fociety, creates a du- 
 rable obligation. They ferved, indeed, in confideration of the lands they 
 held, in all defenfive wars ; and in all ofFenfive ones, which either were ge- 
 nerally approved of, or in which they chofe particularly to engage them- 
 felves. Nay, fo great was the notion of particular independence among 
 thefe people, that they thought that all of the freemen or foldiers, except, 
 the comites, who had by oath bound themfelves to the perfon of the king for 
 life, were at liberty to engage in expeditions, that neither the king, nor the 
 majority of the nation confented to ; and that under leaders of their own 
 choofing. For as, at their general meetings, war was neceflarily the mofl 
 common fubjeft of deliberation, if any one propofed an enterprize, all who 
 approved the motion were at liberty to undertake it ; and if the king de- 
 clined commanding therein, tb^y chofe a general capable thereof ; and 
 when, under his conduft, they had fucceeded, they either returned, and 
 divided the fpoil, and became fubjedls of their former king as before ; or,, 
 if they liked the country they had fubdued better, fettled there, and form- 
 ed a new kingdom, under their victorious leader. Duces ex virtute/umunf, 
 faith Tacitus ; a praftice hard to be accounted for among nations expofed 
 to continual danger, and which muft be thereby frequently weakened, 
 on any other fuppofition, than that it was firfl introduced to dilburthen a 
 narrow territory, overflocked with inhabitants. This effeft, however, it 
 muft have had, that their kings were rendered more martial, and obliged 
 equally by their glory and intereft, to command in every expedition, that 
 was agreeable to any confiderable number of their fubjcdts. 
 
 From this cuftom Montefquieu very ingenioufly conjeflures, that the 
 Franks derived their right of conferring on their ?}!iiirs de palais the power 
 of war, at a time, when, by the long continued flaughters of the royal fii- 
 mily, they were obliged to place the crown on the heads of minors, or of 
 princes as incapable as minors ; a power that enabled them, by degrees, to 
 
 ufurp
 
 
 LECTURES ON the Lect. 4. 
 
 vifurp the civil adminiftration, and at length to transfer the title alio of royal- 
 ty to a new race, in the perfon of Pepin f. 
 
 Such, then, was the face of a German ftate. A king chofen for his il- 
 luftrious extraction, attended by a numerous body of chofen youth, at- 
 tached to his fervice in war by the flriftefl bonds of fidelity ; a number of 
 freemen divided into villages, over each of which v/as an eledive chief, en- 
 gaged, likewife, to military dut)', but in a laxer manner ; and under all 
 thefe were the fervants, who occupied the greatefl: part of the land, and fup- 
 plied the freemen with the neceffaries of life. 
 
 It is time now to attend a little to their domeftic policy, and to inform 
 ourfelves what were the rights of each of thefe orders in the time of peace. 
 The king, we are aflured by Tacitus, was far from being abfolute +. He was 
 judge, indeed, among his own peculiar vaffals, who lived on his demefne, as 
 the other chieftains were in their refpedive dillrifts. He prefided in their 
 general affemblies, and was the firfl: who propofed matters for their delibe- 
 ration. His opinion had great weight, indeed, from his rank and dignity, 
 but his power was rather that of perfuafion than of command. The royal 
 family was no otherwife diflinguiihed from others, than as their perfonal 
 merit acquired influence, or their high birth and capability of fucceffion en- 
 gaged refpect. The companions of the prince were highly honoured for 
 their faithful attachment to him, and their valourous atchievements in war ; 
 but, as to rights and privileges, were on the common footing of other free- 
 men. The only diflinftion was between the chieftains, or lords of the vil- 
 lages, and the vaffals who were under their jurifdiftion. The chieftains 
 were judges in their refpeftive diftrifts ; but, to prevent partiality, to each 
 of them were affigned an hundred perfons, chofen among the populace, to 
 accompany and affifl him, and to help him at once with their authority and 
 their counfel. And this inftitution was, in all probability, the original of 
 the jurifdiclion of the p^rcs cur'uc in the it^udal law. Another, and a very 
 great check on their chieftains, was their being eleftive, and confequently 
 amoveable every year, if their conduft was difpleafmg either to prince or 
 people. Thefe eleftions, as well as thofe of their affeffors, were made in 
 
 their 
 
 ■{• L'Efprit des loix, liv. 'i,i. 
 
 J^De mor. Germ. cap. 7. 12. and 14.
 
 Lect.4. laws of ENGLAND. 33 
 
 their affemblies ; where, indeed, every thing of any confequence was tranf- 
 aQed, and therefore they deferve to be particularly treated of. 
 
 These conventions, then, unlefs they were fummoned on extraordi- 
 nary occafions, were regularly held once a month, on certain dated 
 days ; but fuch was the impatience of this people of controul, or any re- 
 gularity of proceeding, that Tacitus obferves, that frequently two or three 
 days were fpent before they were all affembled. For in thefe meet- 
 ings, every freeman, that is, every foldier, had an equal voice. They ap- 
 peared all in arms, and filence was proclaimed by the priefts, to whom 
 alfo it belonged to keep the alTembly in order, and to punifli all difturbers 
 of its regularity. The king in the firfl place was heard, next fuch of the 
 chiefs as had any thing to propofe, and laftly others, according to their pre- 
 cedence in age, nobility, military virtue, or eloquence. If the propofition 
 difpleafed, they rejefted it by an inarticulate murmur. If it was pleafmg, 
 they brandifhed their javelins ; the mofl honourable manner of fignifying 
 their confent being by the found of their arms. But this approbation of the 
 general aflemblies was not of itfelf fufficient to eflablifli a rcfolution. As the 
 fudden determinations of large multitudes are frequently rafli, and injudi- 
 cious, it was found neceffary to have what they had fo determined re-confi- 
 dered by a feledt body, who fhould have a power of rejeding or confirming 
 them. For this purpofe the chieftains were formed into a fcparate aflembly, 
 who, in conjunction with the king, either difannulkd, or ratihcd what had 
 been agreed to by the people at large f . 
 
 Such then was tfie conftitution of a German kingdom, a conftitution fo 
 nearly refembling our own at prefent, as at firll view would tempt any one 
 to think the latter derived immediately from thence. Yet this was not 
 the cafe. With refpect to the Saxon times, as far as we can judge from the 
 few lights remaining, the form of government feems very nearly to refemble 
 tliis account which Tacitus gives us ; but, for two centuries, at lead, after 
 the conqueft, the Englifli conftitution wore a face purely feudal. The fub- 
 vaffals had long loft the privilege of being members of the general aflembly, 
 from caufcs that fliall be hereafter attempted to be explained ; and the 
 
 E whole 
 
 f Ibid. cap. xi.
 
 34 L E CT U R E S on the Lect. 4, 
 
 whole leginative power was lodged in the king and his immediate vaflals, 
 whofe interefts frequently clafliing, and creating continual broils, it was 
 found neceflary, for the advantage both of the fovereign and nobles, that a 
 proper balance fhould be formed. Accordingly, much at the fame time in 
 France, Spain, and England, namely, in or about the thirteenth century, 
 the happy method of readmitting the third eftate, by way of reprefentation, 
 was foimd out, with an addition very favourable to the natural rights of 
 mankind, that traders and artizans, who before had been treated with the 
 moft fovereign contempt, were now permitted to make part of the general 
 affembly, and put on an equal footing with other fubjeds -(-. 
 
 But to return to the affembly of German chieftains, or their houfe of 
 lords, as I may call it ; befides a fhare in the legiflative power, they were 
 likewife a council, to affift the king in the execution of the refolutions of 
 the general affembly, and determined folely by their own authority all mat- 
 ters of leffer moment, that did not immediately affed the whole conunu^^ 
 nity. De minoribus rebus principes confultant^ de majoribus omnes. 
 
 Many other things were likewife tranfafted in thefe general aflemblies, 
 as particularly the admiffion of a new member into the political fociety. 
 When a youth was judged capable of bearing arms, he was introduced by 
 his relations into the affembly ; and if they teftified his capacity of wielding 
 them, he was dignified with a lance and javelin by one of the chieftains, or 
 by his father, or fome other near relation. This was his toga virilis. Then, 
 and not before, was he emancipated from the family he belonged to, was 
 permitted to beconie a foldier, and in confequence admitted to all the privi- 
 leges of a free fubjed. A praftice that, in after ages, gave rife to the fo- 
 lemn and public manner of creating knights |. 
 
 This, hkewlfe, was the proper place of accufing criminals of public 
 crimes, namely fuch as were looked upon by thofe people particularly to 
 affeft the whole fociety j neither was it unufual, likewife, to bring hither ac- 
 
 cufations 
 
 •f- Muratori, Antiq. Ital. vol. 4. p. 160. et Seq. Mably, Obfervations fur riiiftoire de 
 France, torn. 2. p. 96. et Seq. Madox, Firma Burgi, cap. i. fed. 9. 
 
 X Tacit, de mor. Germ. c. 13, Spebnan's Gloflary, voc. Miles,
 
 Lect, 4. L A W S OP E N G L A N D. 35 
 
 cufations of private wrongs, if the party injured was apprehenfive of par- 
 tiality in his own canton. 
 
 But the bufmefs of greatefl; moment, next to legiflation, was, that, once in 
 a year, in thefe ailemblies, each village, with the approbation of the king, 
 chofe their chiefs, and their hundred afliftants f. Here it was they either 
 received a teftimony of their good behaviour, by being continued in office 
 another year, or faw themfelves reduced to the rank of private fubjefts, if 
 their conduct had not been acceptable. At the fame time were the lands 
 diftributed to the feveral chieftains, which leads me to fay fomething on the 
 next head, their regulations with refped to property ; as to which their in- 
 ftitutions were very fmgular, and totally different from thofe of all ancient, 
 as well as modern nations. 
 
 All property being then naturally divifible into two kinds, moveable and 
 "immoveable, of the firft thefe people had but a fcanty fliare, their whole 
 wealth confifting in their arms, a few mean utenfils, and perhaps fome cat- 
 tle. Th'e ufe of gold and (ilver, in the way of commerce, was utterly un- 
 known to them, except to a few of their nations, namely fuch as lived near 
 the Rhine, and had acquired fome by dealing with the neighbouring Gauls. 
 Confequently, there was no fuch thing as an accumulation of wealth among 
 them, or any great difparity in the diftribtition of this kind of property, over 
 which each had uncontrouled' dominion during his life. But as teftaments, 
 or laft wills, were unknown amongft them, upon death, the right went ac- 
 cording to the plain didates of nature. Tacitus faith, " To every man his 
 " own children were heirs and fucceflbrs. For want of them, his nearefl; 
 *« 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 ; fave that 
 to each of the females, a few arms were afligned, the only dowry in ufe 
 among thofe people; a dowry which, as Tacitus faith, fignified that they 
 were to fhare with their hufbands in all fortunes of life and death. Accord- 
 ingly, they conftantly attended them to the field, were witneffes of their va- 
 lour, took care of the wounded J; and often, if their party had the worft, 
 they ran into the ranks, and by their prefence and danger, animated the 
 
 men to renew the charge. 
 
 E 2 But 
 
 ■\ Tacit, de mor. Germ. cap. 12. 
 
 % Hi cuique fanftifllmi teftes, hi maximi laudatores. Tacit, de m. G. c. 7- GonfuU 
 alfo c. 5. and c. i§.
 
 36 LECTURES ON the LECT.4.: 
 
 But with refpeftto real or landed property, the cafe was very different. 
 Here a man had only the ufe, or enjoyment of the profits ; and that, too,, 
 but a temporary one. The real" property, or dominium verum, was lodged in 
 the community at large ; and was, at the end of every year, cantoned out, 
 and diftributed to the feveral tribes of the people ; and the portion affigned 
 to each was after that fubdivided to the refpeclive individuals ; who by 
 thefe means were perpetually removed from one part of the territory to ano-. 
 ther ; nor could any man tell in what place his lot was to fall the next 
 year f . And this cuftom, abfurd as it feems to us, they were fo fond of, , 
 as to continue for fome time after they fettled in the Roman territories ; un-. 
 til, growing by degrees acquainted with the conveniencies of life, a change 
 of manners was introduced, and they wiflied for more fettled habitations. 
 Then came into ufe grants for terms of years, after for life, and laftly,. 
 eftates defcendible to heirs, which are thofe we, properly fpeaking, called 
 Jitfs. This continual removal of habitation, fo intolerable to a people any 
 way accuftomed to comfortable dwellings, was no manner of inconvenience 
 to them. Their little fubftance was eafily removed, and two or three days 
 were fufficient to erect a forry hovel, which contented the wiilies of the 
 greateft among them |. But their paffion for this conflant change of place 
 feems derived from that condition which I have already obferved they were 
 in, namely, a middle ftate between hunters and {hepherds ; and that they 
 ftill retained that praftice, was an evidence that they had not been long re- 
 claimed from a favage life. Tacitus indeed fays, that, in the intervals of 
 war, they were not much employed in hunting, but lived a lazy and inaftive 
 life. This, however, I apprehend, mufl be underflood only of a few na- 
 tions, nearellto the Romans, where game was not fo plentiful, and not of 
 
 aU- 
 
 f It is to be willied, tliat our ingenious Profeflbr had here entered more at large into 
 the hiftory of property in land. The fiibjeifl is important and little underflood. The 
 conceptions entertained by the antient inhabitants of Germany and Gaul concerning pro- 
 perty have been explained and illuftrated in a book, intiuiled, " An Hillorical DifTer- 
 " tation concerning tlie Antiquity of the Englilli Conftitution." The author of tliis 
 trcatil'e feems to be the firll wlio has remarked that land is originally the property of 
 nations, and i!as attempted to account for tlie manner in wliich it comes to defcend to in- 
 dividuals. See his Diifert. part I. fct^. 3. See alio Profeflbr Millar's valuable work on 
 the Dillin(ftion of Ranks in Society, p. 165. et feq. 2d edition. 
 
 t Caefar, de bell. Gall. lib. 4. c. i. Lib. 6, c. 22. Tacit, de mor. Germ. c. 26..
 
 Lect. 4. LAWS OF E N G L A N D. 37 
 
 all the Germans in general : for it is certain the Franks had a flrong paflion 
 that way, after they were fettled in Gaul ; and from them the plan of the 
 foreft laws, fo juftly conjplained of in England, after the conqueft, was de- 
 rived. And true it is, that whole nations, as well as individuals, were pof- 
 fefled with this rambling inclination ; and that, not always with a view of 
 fettling in a better country. If the Germans changed their barren wilds for 
 the warm fun and fertile climate of Gaul, we are affiired by the fame autlio- 
 rity, that many tribes of the Gauls, on' the other hand, removed to the 
 forefts of Germany. If Jornandes tells us, that the Goths quitted the bleak. 
 and barren mountains of Scandinavia for the pleafant banks of the Danube, , 
 he likewife informs us, that, afterwards, they returned back into their na-- 
 tive country. 
 
 As to their methods of adminiflering juflice, Ihave already obferved, that 
 their chieftains, in the feveral diflrifts, allifted by their afleflbrs, were their 
 judges. Before them all caufes were brought, which were not difcuffed in 
 their general aflemblies ; but as to the manner of invefligating tlie truth, all 
 the German nations did not agree. Nay the Salian Franks diifered confi- 
 derably from their brethren, the Ripuarian Franks. If the judge, or his- 
 afleflbrs, or any of them, had knowledge of the facl in difpute, which often 
 happened, as thefe people lived much in public, and in the open air, they 
 gave fentence on fuch their knowledge. This was common to them all ; 
 but if there was no fuch knowledge in any of the pares curia, as I may call 
 them, and the faft in queftion was denied, the Salians proceeded thus : 
 The accufer or plaintiff" produced his witneflTes, the accufed did the like ; 
 and on comparing the evidence on both fides, the judges gave fentence. If 
 the plaintiff had no witneflds, the defendant, on his denial, was difmiflTed of 
 courfe. If the witnefles for the plaintiff" failed in fully proving the point, 
 and yet their teltimony was fuch, as induced a prefumption which the other 
 party was not able to remove, the trial was referred to the ordeal f . That 
 of boiling water was the moft ufual among them. The manner was thus : 
 The perfon fufpefted plunged his hand into the boiling water, which was 
 afterwards carefully clofed up, and infpefted at the end of three days : If no 
 fign of the fcalding then appeared, he was acquitted ; If otherwife, he was 
 efteemed guihy \. 
 
 It 
 
 f Du Cange, Gloffarium voc. Juramentuin. Georgifch, corp. juris Gemianici ailtiqui. 
 % SpeLnan, Glofl'. voc. Lada et Ladare. Struv. Hill:, jiir. crimmal. fefl. 9. 
 
 /%#*(* >»v
 
 3® L E C T U R E S ON the Lect. 4. 
 
 It is ftrange that any people fliould, for ages, make ufe of fuch amethody 
 ■which a very little refledion, or common experience, might eafily fatisfy; 
 them had no manner of connexion with guilt or innocence. But, befides 
 the grofs fuperftition of thefe nations, who thought the honour of provi- 
 dence concerned in the detedtion and punifhment of criminals, Montefquieu 
 hath given us another reafon for this pradice, which, whether jufl; or not, 
 for its ingenuity, deferves to be taken notice of. He obferves, that the mi- 
 litary profeflion naturally infpires its votaries with magnanimity, candour, 
 and fmcerity, and with the utmofl fcorn for the arts of falfhood and de- 
 ceit. This trial, then, he imagines calculated to difcover plainly to the eye, 
 whether the perfon accufed had fpent his whole life in the arts of war, and 
 in the handling of arms. For if he had, his hands would thereby have ac- 
 quired fuch a calloufnefs, as would prevent any imprefTion from the boil- 
 ing water, difcernib'le at that diftance of time. He therefore was acquitted, 
 becaufe it was prefumed he would not fcreen himfelf by a falfhood. But if 
 the marks appeared, it was plain he was an effeminate foldier, had refifted 
 the force of education, and the general bent of his countrymen ; that he 
 was not to be moved by the fpur of conftant example, that he was deaf to 
 the call of honour ; and confequently fuch a perfon whofe deniaf could have 
 no weight to remove the prefumption againfl him f . 
 
 These were the methods of trial among the Salians, but the Ripuarian 
 Pranks, the Burgundians, and feveral other German nations afted very dif- 
 ferently. No witneffes were produced among them on either fide, but they 
 contented themfelves with what were called negative proofs ; that is, the 
 perfon accufed fwore pofitively to his own innocence, and produced fuch a 
 number of his relations as the cuftom of the coimtry required : or if he had 
 not relations enough, the number was made up out of his intimate acquain- 
 tance : Thefe were to fwear that they believed his oath to be true, and up- 
 on this he was acquitted. But if be declined the oath, or could not pro* 
 duce a fufficient number of compurgators, he was found guilty ; a pradice 
 that fully proves thefe nations were, when this method was introduced, a. 
 people of great fimplicity and fmcerity J. 
 
 But 
 
 f L'Efprit des loix, liv. ;8. ch. 17. 
 
 t Georgil'cti, Corp. juris Gtrmanjci antiqui, p. 347. and p. 368.
 
 Lect. 4» LAWS OF ENGLAND. 39 
 
 But as, by this means, every profligate perfon, with the afliftance of a 
 few others as wicked as himfelf, was fure to efcape, the defefts of this kind 
 of trial introduced another, or rather revived an antient one, no lefs incon- 
 clufive. Antiently, the Germans had no judicatures for the decifion of pri- 
 vate wrongs ; but each in perfon took his own fatisfadion, and this intro- 
 duced perpetual combats. When the new method of trial came in ufe, a 
 party feeing liis adverfary ready to defeat his juft demands, and fcreen his 
 injuflice with perjury, reforted to his antient right, refufed to accept the 
 oath, and appealed to the providence of God by the trial of battle : a me- 
 thod as abfurd, indeed, as the former, but peculiarly adapted to the way 
 of thinking of the Germans, who frequently, before they entered into a . 
 war, prognofticated the.fuccefs of it from the event of a combat between 
 one of their own nation, and a captive of the enemy f . ITiis kind of trial 
 gained ground among all the defcendants of this ferocious people |, and 
 mtroduced itfelf at length among the Salians, who had it not at firft, and 
 who, by admitting pofitive proofs, had no need of it ; and, though long 
 fallen into difufe, hath left behind, its offspring, private duelling. It hath 
 been long fmce obferved, that this fadiionablc cuftom owed its origin to 
 thefe northern nations, the anceftors of the prefent inhabitants of Europe, 
 as no other nations, antient or modern, however martial or difpofed to war, 
 had any knowledge or practice of it ; but it is undeniably evinced by this, 
 that as a lie, above all other provocations, is the flrongeft, and what lays 
 gentlemen of honour under an indifpenfible necefhty of duelling, fo were - 
 you lie the very words mutually given and received in old times, the accu- 
 ftomed form of joining ilfue by battle, after which neither party, without . 
 perpetual infamy and degradation from his rank, could recede. 
 
 I HAVE taken the more notice of thefe four different methods of trial 
 among the old Germans, as every one of them has been received into Eng- - 
 land. Concerning the firft, the trial by witnefTes, little need be faid. As . 
 it is the faireft, and the jufleft, it has accordingly, purfuant to the praftice. ■ 
 of all civilized nations, prevailed over all the reft ; and it is that, and 
 
 that : 
 
 ff- DuCange, Gloff. voc. Duelluui. Spehnan, ycc. Campus. Selden's Duello, or Trea- 
 tife on Single Combat, ch. 5. 
 
 X Gcorgifch, Corp. juris Germanioi antiqui, p. 980, io63; 1225, 1267, 1270..
 
 40 LECTURES on the X-ect. 4. 
 
 .that only, that we ufe at this day. But the ordeal alfo was in ufe among 
 the Saxons, and continued fome time after the Norman conqueft ; as ap- 
 pears, not only by the old records of the law, but from the famous ftory, 
 whether true or falfe, of queen Emma, mother of Edward the Confeflbr, 
 and the plow-fliares f . The trial by negative proofs, though out of prac- 
 tice, is ftill in being, in what is called by us the wager of law ; where, if a 
 perfon is impleaded in an aftion of debt, on a fimple contract, he may clear 
 himfelf, by fwearing he oweth it not, and by producing eleven others, who 
 fwear to their belief that he has depofed the truth +. Hence it has hap- 
 pened, that, for a long time pafl, anions of debt, in fuch cafes, have not 
 been brought, but another, called an adionon the cafe, is the ufual method, 
 which admits the parties on both fides, as to the point of debt, >vel non debet 
 to an examination of witneffes. For the laft, the trial by battle, our old 
 books are full of it, in real attions ; and although, to prevent the inconve- 
 nience and uncertainty of it, the grand affize was invented ; yet was it in 
 the tenant's, that is, the defendant's option, to <:hoofe which method of trial 
 he pleafed. The latefl inftance of joining iffue by battle, I have met with, 
 is in Dyer's Reports, in the beginning of Elizabeth's reign || ; but by this 
 time it was fo much difcouraged, that, by force of repeated adjournments, 
 the parties were prevailed on to agree, and judgment was at length given 
 upon the failure of one of the parties appearing on the day appointed for 
 the combat. 
 
 "When the truth, by fome of the methods above-mentioned, was afcer- 
 tained, judgment was to be given. Here it will be proper to obferve, that, 
 among thefe people, there were only two kinds of crimes, that were looked 
 upon as public ones, and confequently capital. The firft was treafon, 
 or defertion in the field, the punifliment hanging ; the fecond cowardice, or 
 unlawful luft, for they were ftrift obfervers of the nuptial band, the punilh- 
 
 ment 
 
 -f- Selden, An;ile(5la Anglo-BrJtanuica, lib. 2. cap. 8. 
 
 X Bradj's Hid. oi" England, p. 65. 
 
 II Mr IJarnngton has remarked, that " tlie laft trial by battle in England was in the 
 " time of Cliarles I. and tliat it did not end in tlie actual combat." Obfervations on the 
 Statutes, ^d edit ion, p. 202. The laft inftance which occurs of the judicial combat m the 
 liiftory of l-'rance, m ,is tlie famous one between M. Jarnac and M. dc la Chaiftaigncrie, 
 A, D. 1547. Dr. Ilobtnrou's Charles V. vol. i. p. 298.
 
 Lect. 4' L A WS OP E N GL AND. 41 
 
 ment ftifl'ing in a morafs, with an hurdle over them. It feems,at firft view, 
 furprifing, that murder, which Tacitus afiures us, from fudden gufls of paf- 
 fion, and intemperance in liquor, was very frequent,' fhould- not, as it fo 
 much weakened the ftrength of the nation, be confidered as a criminal of- 
 fence, and puniflied accordingly f . But a little reflection on their fituation 
 will reconcile us to it. The perfon flain was already lofl to the fociety, and 
 if every murder was a capital offence, the ftate would lofe many of its 
 members, who were its chief fupportcrs. Befides, if the flayer had no 
 hopes of mercy, nothing elfe could be expedted than his defertion to their 
 enemies, to whom he could be of infinite fervice, ynd to them of infinite 
 detriment, from his knowledge of their ftrength and circumfl:ances, and of 
 the partes into their country, through the morafles and forefls, which were 
 their chief defence. Murder, therefore, like other lefler crimes, was 
 atoned among thofe people, as it was among the ancient Greeks, who were 
 in pretty fimilar circumfiances, in the heroic tinges, as Ajax affures us in 
 thefe words, in the ninth Iliad : 
 
 Ka; //.iv T/f Ti KccTtyytiloio fovoio 
 
 namely, by a fatisfaction of cattle, corn, or money, to the pcrfons injured, 
 that is, to the next of kin to the deceafed, with a fine to the king or lord, 
 as an acknowledgment of his offence, and to engage the fociety to protect 
 him againfl the future attempts of the party offended. Thefe fatisfaftions 
 were not regulated originally, nor fixed at any certain rate, but left to the 
 difcretion of the injured, or next of kin. However, if he appeared extra- 
 ordinarily unreafonable, and refufed what was judged competent, the focie- 
 ty, upon payment of his fine to their head, took the offender into protec- 
 tion, and warranted his fecurity againfl the attempts of the other party, or 
 his friends. After thefe nations were fettled in the Roman empire, thefe 
 fatisfa£tions for each offence were reduced to a certainty by their laws J. 
 
 This is as much as I have thought neceffary to obferve at prefent, con- 
 cerning the manners and cuflioms of thefe people, while they remained be- 
 yond the Rhine. It will next be proper to fee how far afterwards they re- 
 tained them, and what alterations were introduced by their new fituation. 
 
 F LECTURE 
 
 f Tacit, de mor. Germ. cap. 12. and 2 J. 
 
 t Lindenbrog. Cod. Leg. Antiq. p. 1404. Tacit, de mor. Germ. c. 2T. LI. Wal. by 
 Wotton, p. 192. 194. LI. Anglo-Saxon, ap. Wilkins, p. 18. 20. 41. Hickef. Diflert. 
 Epift. p. no. Georgifch, corpus jur. Germ, antiq.
 
 42 LECTURES on the Lect. 5, 
 
 LECTURE V. 
 
 ^he decline of the Roman empire — TJje invaftons of the Northern nations — Tfje- 
 manner in -which they fettled in the Roman provinces — T7}e changes infenjtbly 
 introduced among them in confequence of their new fituation — "The policy and- 
 condition of the Franks after they had fettled in France— ^The rife of the feudal 
 lain — Efiates beneficiary and temporary. 
 
 IT is full time now to quit the wilds of Germany, to attend thefe nations- 
 in their paffage into the Roman dominions, and to take a view of the 
 
 er wherein they fettled themfelves in thefe new countries. The Roman 
 
 e had been long on the decline ; but efpecially, from the time of Se- 
 
 , it every day grew weaker. This weaknefs arofe, in a great mea- 
 
 from an exceffive luxury, which difqualified not only their great ones, 
 
 le bulk of the Roman people for foldiers ; and alfo from the tyrannical 
 
 ify of their emperors, who were afraid of trufling perfons of virtue or 
 
 r, and had no other method of fupporting their authority, than by em- 
 
 ig numerous (landing armies, that, under them, pillaged and oppref- 
 
 le defencelefs populace ; and laftly, from the licentioufnefs of the foU 
 
 , who made and unmade emperors according to their wild caprices. 
 
 e proceeded many competitions for that dignity, and continual battles 
 
 411U daughters of their men at arms ; the natural confequence of which was, 
 
 that whoever prevailed in thefe bloody contefts, always found himfelf lefs 
 
 able and powerful to defend the empire from foreign enemies or domeflic 
 
 competitors, than his predeceffor was f . 
 
 About the year 200 after Chrift, the feveral nations who had been hi- 
 therto cooped up beyond the Rhine and the Danube, and kept in fome awe 
 by the terror of the Roman name, began to gather fome courage from the 
 weaknefs of the empire ; and from that time few years paffed without in- 
 curfions into, and ravages of, fome part of the fouthern territories, by one 
 or other of thefe people ; and how redoiibtable they became to that decay- 
 ing 
 
 f Montefquieu on the Rife and Decline of the Roman Empire. Dr Geddes, in his 
 Tract concerning the Kations which overturned the Empire ci' tlic Romans, p. 21. — r.6
 
 Lect. 5. LAWSofENGLAND. 43 
 
 ihg flate, may eafily be judged from the particular fondnefs the emperors 
 of thofc days had, upon every flight advantage gained over them, for anum- 
 ing the pompous titles of Gothicus, Vandalicus, Alemannicus, Francicus, 
 &c. not for the conqueft, or reducing into fubjeftion thofe feveral people, 
 as in antient times, but merely for having checked them, and kept them out 
 of the Roman boundaries f . 
 
 But thefe invafions of the northern nations were a long time confined to 
 the fingle views of rapine and plunder ; for as yet they were not fully con- 
 vinced of their own flrength, 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 feveral times fince changed the face of 
 Afia. I mean a vaft irruption of the Hunns, and other Tartarian nations 
 into the north of Europe- Thefe people, whether out of their natural de-' 
 fire of rambling, or prefled by a more potent enemy, were determined on a 
 general change of habitation ; and, finding the invafion of the Perfian em- 
 pire, which then was in its full grandeur, an enterprize too difficult, they 
 croffed the Tanais, and obliged the Alans and Goths, who lived about thd 
 Boryfthenes and the Danube, to feek new quarters. The former fled weft- 
 ward to Germany, already overloaded with inhabitants ; and the latter beg- 
 ged an afylum from Valens in the eaftern empire, which was willingly ac* 
 corded them. The countries fouth of the Dianube were before almofl: en- 
 tirely depopulated by their frequent ravages. Here, therefore, they were 
 permitted to fettle, on the condition of embracing the Chriflian faith ; and 
 it was hoped they, in time, would have proved a formidable barrier againft 
 the incroaching Hunns, and, by a conformity of religion, be at length 
 melted into one people with the Romans. For the attaining this purpofe, 
 they were employed in the armies, where, to their native fiercenefs and 
 bravery, they added fome knowledge of difcipline, the only thing they 
 wanted ; and many of their kings and great men were in favour at court, 
 and either fupported by penfions, or raifed to employments in the ftate t. 
 
 But the injudicioufnefs of this policy too foon appeared ; and indeed it 
 was not to be expefted that a people ufed entirely to war and rapine, and 
 
 F 2 unaccuf- 
 
 f Seidell's titles of honour, part I. chap, j. § i. 
 
 t Procop. de bel. Goth. ap. fcript. Byz. Jornandes, Paulus Wamefridus, Gregory of 
 Tours. Mably, obfervations fur I'hifloire de France, torn. i. chap. i.
 
 44 LECTURES ON the Lect. 5. 
 
 unaccuftomed to any other method of fubfiftance, could in a fliort time be 
 reduced to the arts of fecial life, and to the tillage of the earth; or be retain- 
 ed in any moderate bounds, in time of peace, when, by being admitted with- 
 in the empire, they faw with their own eyes the immenfe plunder that lay be- 
 fore them, and the inability of the Romans to oppofe their becoming mailers 
 of it. During the life of Theodofms they remained in perfcd quiet, awed 
 by his power and reputation ; but when he left two weak minor princes un- 
 der the guardianlhip of two interelled and odious regents, it was obvious 
 they could not be bridled much longer. Though, if we are to credit the 
 Roman hiflorians, their firft irruption was owing to the jealoufy Ruffinus^ 
 the prime miniiter of Arcadius, entertained of Stilicho, the guardian of Ho- 
 Tiorius. This latter, it is faid, ambitious of holding the reins of both em- 
 pires, pretended, that Theodofms had on his death-bed appointed him folc 
 regent of both. For, though Arcadius was now of fufficient age to govern 
 of himfelf, he was, in truth, for want of capacity, all his life a minor. Ruf- 
 finus, we are told, confcious of his rival Stilicho's fuperior talents and 
 power, refolved to facrifice his mailer's interefl rather than fubmit to one he 
 fo much hated ; and, accordingly, by his private emiffaries, ilirred up both 
 Goths and Hunns, to fall at once on the eaftern empire f. 
 
 In the year 406, thefe nations, fo long irreconcileable enemies to each o- 
 ther, poured tlieir fwarms in concert into the defencelefs dominions of Arca- 
 dius. The Hunns pafled by the Cafpian fea, and with unrelenting cruelty 
 ravaged all Afia to the gates of Antioch ; and at the fame time the Goths, 
 under the fo much dreaded Alarick, with no lefs fury, committed the hke 
 devaflations in Illyricum, Rlacedon, Greece, and Peneloponnefus. Stilicho, 
 tliinking that his faving the eaftern empire would undoubtedly accomplilh for 
 him his long wilhed-for defire of governing it in the name of Arcadius, as 
 he did the weftern in that of Honorius, haftened into Greece with a well-ap- 
 pointed army. But, when he had the barbarous enemy cooped up, and, as 
 it were, at his mercy, the weak prince, inftigated by his treacherous miniller 
 RufEnus, fent him orders to retire out of his dominions. The Goths re- 
 turned unmolefted to the banks of the Danube, laden with plunder ; and 
 Stilicho went bank to Italy boiling with rage and refentment, but he never 
 had an opportunity of wreaking his vengeance on his treacherous rival. 
 
 In 
 
 t Giannone's bill, of Naples, lib. ii. cap. 4.
 
 Lect. 5. L A W S OF E N G L A N D. 45 
 
 In the next year, Germany, furcharged with her own inhabitants, and the 
 nations who fled from the Hunns, and, perhaps, inftigated by Ruffinus, to 
 find work for StiHcho at home, fent forth her muhitudes acrofs the Rhine; 
 and, for three fucceflive years, the Suevians, Alans, Vandals, and Bur- 
 gundians, laid all the open country of Gaul wafte ; and, about the fame 
 time, Conftantine, a Roman Briton, aflumed the imperial purple, and waa, 
 acknowledged by all the Romans of that illand and Gaul. 
 
 The weftern empire was now utterly difqualified for defence : Stilicho, 
 the only man whofe abilities and influence were capable of faving the falling 
 ftate, had been fufpefted of treafon in afpiring to the diadem, and was put 
 to death ; and Alarick, having before effedually plundered Greece, was 
 now acting the fame part in Italy, while Honorius, fliut up in Ravenna, 
 made but feeble efforts of refinance. Twice was Rome befieged, once re- 
 deemed by an immenfe ranfom, and the fecond time taken, plundered and 
 burnt. At length thefe calamities a little fubfided ; Confl;antine, the Britifli 
 ufurper of the empire, died ; and all the weftern Romans again acknow- 
 ledged Honorius ; but the weftern empire, though flie lingered fome time, 
 had received her mortal wound, and utterly periflied in lefe than fifty years. 
 The diftrefled emperor Honorius granted to the Burgundians, who were 
 the moft civilized of thefe barbarians, and had embraced the Chriftian reli- 
 gion, the country they had poffeffed themfelves of, namely, Alface and 
 Burgundy. The Goths, who were already Chriftians, but of the Arian 
 perfuafion, having by this time exhaufted Italy, were eafily prevailed on, 
 under Ataulphus, Alarick's fucceflbr, to fettle in the fouth-weft of Gaul, 
 under a like grant ; which country had been quitted in the year 410 by the 
 Sueves, Alans, and Vandals, who had over-run all Spain, and divided it 
 into three kingdoms. And thus were two kingdoms formed in the fouth 
 of Gaul, the new inhabitants of which coming by compaft, and under the 
 title of the Roman emperor, behaved afterwards to the fubjeded Romans 
 and Gauls not in the light of brutal conquerors. Though they themfelves 
 retained their own cuftoms, they indulged thefe in the ufe of the Roman 
 laws, fuffered them to enjoy a confiderable portion of the lands, and made 
 Ro very afflidting diftinftions between themfelves and their fubjefts. 
 
 The
 
 jm^^ 
 
 46 L E C T U R E S ON the Lect. 5. 
 
 The Burgundians, particularly, we arc informed, took two thirds of the 
 lands, the pailuragc and forefts, with one third of the flaves to look after 
 their flocks, and left the ren^ainder to tlie Romans, who were ikilled in 
 agriculture. They alfo quartered themfelves in the houfes of the Romans, 
 which naturally produced an acquaintance and amity between the two na- 
 tions. But one great reafon, as 1 apprehend, of the lenity of thefe people 
 f/^^'^''"^ to the vanifhed (and a fimilar one will account for the Oftrogoths and 
 
 Lombards in Italy, afterwards, following their example, which likewife 
 hath been taken notice of with wonder by fome authors) Avas their neigh- 
 bourhood to the Roman empire, which ftill continued in name in the weft, 
 and which they might well be afraid of feeing revived, under a prince of 
 ability, if their harfh treatment alienated the conquered people's affedions 
 from them f. 
 
 But different was the treatment the conquered met with from the Franks, 
 who about this fame time fettled themfelves at a greater diftance from Italy, 
 namely, in Belgic Gaul. The Franks, above moll of the other German na- 
 tions, had been for a confiderable time attached to the Romans, infomuch 
 that if they did not receive their kings from them, as Claudian tells us they 
 did from Honorius, at leaft the kings received their confirmation fi-om 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 
 paffmg thi? Rhine, to invade the Roman territories. But when they found 
 the weftern empire already difmembered, they thought it not convenient 
 to lie ftill, and fuffer other nations to ftiare the prey entirely amongft them- 
 felves. T-lie Salians, therefore, took poffeflion of the prefent Netherlands, 
 and the Ripuarians to their original country of Mentz and Heife, added 
 Treves, Cologne, and Lorrain. Some have thought thefe people had grants 
 from the Roman emperor, in the fame manner as I have mentioned before 
 concerning the Burgundians and Vifigoths ; but I fliould, with others, ap- 
 prehend this to be a miftake ; for iEtius the Roman general left the Goths 
 and Burgundians in quiet poffeflion of their feats, but defeated, and obliged' 
 the Franks to repafs the Rhine, which made them, after the danger was over, 
 return with double fury; and for a long time after they treated the con- 
 quered 
 
 \ Bouquet, le droit public de France, cclairci par les monumens de Tantiquite, p. 6. — lo. 
 Moiitelijuieu, TElprit dcs loLx, liv. 30. chap. 6, "j, 8, 9. 
 
 /
 
 Lect. 5. L A W S OF E N G L A N D. 47 
 
 quered Romans In the ftile of maflers, and with many aniictive diftimflions, . 
 unknown to their neighbours the Goths and Burgundiansf. 
 
 Many, in the firfl: heat of viftory, they reduced to flavcry, to a fervitude 
 very different from what had been before praftil'ed in Germany, and nearly 
 approaching to what was ufed by the Romans. For whatever property was 
 acquired by thefe flaves or fervants, who in after ages were called Villains, 
 belonged to their mailers, not abfolutely, as at Rome ; but the mafters 
 claimed and took poffeffion of it, and they (I mean in France) for the en- 
 joyment of what was permitted them, paid a ftipulated tax called cenfus^ 
 which was the only tax ufed there in thofe ancient times. However, they 
 did not employ them in domelHc drudgery, but fuffered them to live apart, 
 as the proper German fervants had done. Their duties were uncertain, in 
 this agreeing with thofe of the men of war, and differing from thofc of 
 the middle rank, which I fhall hereafter mention, and were of the moft 
 humiliating kind, they being obliged to attend at their lord's fummons, to 
 carry out dung, remove nuifances, and do other mean and fervile offices. 
 The number of thefe flaves and villains for centuries perpetually increafed, . 
 from the many wars both foreign and civil, thefe people were engaged in, 
 and the JUS gentium of thofe ages, by which all that were taken in war were 
 reduced toflavery; infomuch that, by the year 1000, the number of thefe - 
 villains was immenfe, whole cities and regions being reduced to that flate;[, . 
 
 This introduftion of a new order 'of men, unknown to the original Ger- 
 man policy, and inferior to all others, was of advantage to that which had 
 before been the lowed, I mean the fervants, as they were called in Germany, 
 ox focage 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 fliare in the public deliberations, either in perfon or 
 by reprefentation, were in reality free men. Thefe, with the addition of 
 feveral of the captive Romans, who were moft fliilful in agriculture, were 
 the fucceffors of the old fervants in Germany ; but their numbers, from 
 
 the 
 
 •f Reliq. Spelm. p. 2. — 7. 
 
 X Potgteffer, de flat, fervorum, lib. 2. cap. I. Montefquieu, J'Erpritdes loix, liv. 30. 
 «hap. 14, Du Cange, voc. Servus.
 
 43 LECTURE^ON the Lect. 5. 
 
 the caufes before-mentioned, the perpetual wars, continually decrcafedi 
 great multitudes of them being reduced into the ftate of villainage f. 
 
 The foldiers, who were really what compofed the nation, continued for 
 a longer time pretty much in the fame ftate as in Germany ; for a whole 
 people do not part with their accuftomed ufages and praftices on a fudden. 
 They changed their habitations as before, their manner of judicature and ad- 
 miniftering juftice continued the fame, they met in general aflemblies as 
 ufual, but, as they were now difperfed over a more extenfive country, not 
 fo frequently as formerly. When they were converted to Chriftianity, 
 which happened under Clovis, who, by uniting all' the Franks, fubduing 
 the Alcmans, and conquering confiderable tradts of country from toth the 
 Vifigoths and Burgundians, firft formed a confiderable kingdom, it was 
 found exceedingly inconvenient to affemble every month. Thrice in the 
 year, namely on the three feflivals, was found fufficient, except on extraordi- 
 nary occafions ; and this method was continued many ages in France and in 
 England. For hundreds of years after the conqueft, thefe were the mofl 
 iifual and regular times of affembling parliaments. 
 
 But though things, in general, wore the fame face as when thefe people 
 remained at home, it will be neceflary to obferve, that a change was in- 
 fenfibly introducing, the king and the chieftains were daily increafing their 
 privileges, at the expence of the common foldiers, an event partly to be 
 afcribed to the general aflemblies being lefs frequent, and confequently 
 fewer opportunities occurring for the people at large to exert their power ; 
 but principally to the many years they had fpent fucceflively in camp, be- 
 fore they thought themfelves fecure enough to difperfe through the country. 
 The ftriftnefs of military difcipline, and that prompt and unlimited obe- 
 dience its laws require, habituated them to a more implicit fubmiffion to 
 their leaders, who, from the neceflities of war, were generally continued 
 in command. And it is no wonder that while the authority of the inferior 
 lords was thus every day gaining ftrength, that of the king fliould encreafe 
 more confiderably. For, probably, becaufe he, as general, was the fitteft 
 perfon to diflribute the conquered lands to each according to his merits, 
 he about this time aflumed to himfelf, and was quietly allowed the entire 
 
 power 
 
 I Spelman reliq. 17, 14, 248. Muratori antiq. Ital. vol. 5. p. 712.
 
 Lect. 5. L A W S o F E N G L A N D. 45* 
 
 power of the partition of lands. They were ftill, and for fome confiderable 
 time longer, affigned in the general aflemblies, but according to his fole 
 will and pleafure, to the feveral lords, who afterwards fubdivided them to 
 their followers in the fame manner at their difcretion ; whence it came, that 
 thefc grants were called benefices, and are conftantly defcribed by the old 
 writers, as flowing from the pure bounty and benevolence of the lord |. 
 
 A POWER fo extraordinary in a king would tempt any one, at firfl view; 
 to think that he who had fo unlimited a dominion over the landed property, 
 muft be a mofl abfolute monarch, and fubjeft to no manner of controul 
 whatfoever. It will therefore be proper to make an obfervation or two, to 
 fhew why, in fadt, it was otherwife. Firfl, then, the afcendant the lords 
 had gained over their followers, made it extremely dangerous for the king 
 to opprefs the lords, left it might occafion, if not a rebellion, at leaft a 
 defertion of them and their people. For the bonds of allegiance, except 
 among the companions of the king, as I obferved before, were not yet fully 
 tied. On the other hand, the intereft of the lords obliged them to protect 
 their inferiors from the regal power. Secondly, this power of the king, 
 and of his lords under hilm, was not unlimited in thofe times, as it may 
 appear to be at firft fight, and as it became afterwards. For, though he 
 could affign what land he pleafed to any of the Franks, he could not affign 
 any part to any other but a Frank, nor leave any one of the Franks unpro- 
 vided of a fufficicnt portion, unlefs his behaviour had notorioufly difquali- 
 fied him|. 
 
 But the flrongeft reafon againft this abfolute power in thofe times, is to 
 be drawn from the common feelings of human nature. As abfolute monar- 
 chies are only to be fupported by ftanding armies, fo is an abfolute unli- 
 mited power over that army, who have conftantly the fword in their hands, 
 a thing in itfelf impoffible. The Grand Seignior is, indeed, the uncontroul- 
 ed lord of the bulk of his fubjefts, that is, of the unarmed ; but let hipi 
 touch the meaneft of the janizaries, in a point of common intereft, and ha 
 will find that neither the facrednefs of the blood of Ottoman, nor the religi- 
 ous dodtrinc of paffive obedience, can feeure his throne. How then could 
 
 G an 
 
 t BrufTel, ufage des fiefs, liv. 2. Seidell's tit. of honour, part 2. cap. i. { 25. aiul 
 5 33- 
 
 % Mably, obfervations fur rhifloirc de France, liv. i. cliap. 5. and 6.
 
 50 L E C T U R E S ON THE Lect. 5. 
 
 an elective prince, in thefe northern regions, exercife an uncontrouled domi- 
 nion over a fierce people, bred up in the higheft notions of civil liberty and 
 equality ? One of their old maxims they long religioufly adhered to, that 
 is, that, in confideration of their lands, they were bound to ferve only in 
 defenfive wars; fo that a king who had engaged in an ofFenfive«one, had 
 every campaign a new army to raife by the dint of largefles ; which if he 
 had no treafure left him by his predeceflbr, as he frequently had, and which 
 every king by all means was diligent in amaffing, he fupplied from the 
 profits of his demefns, the ceyijiis on his villains, or elfe from foreign 
 plunder f. 
 
 But thefe people had not long been fettled in their new feats, before the 
 encreafe of their wealth, and the comfortablenefs of their habitations, ren- 
 dered a conftant removal inconvenient, and made them defirous of more 
 fettled affurance in their refidence, tlian that of barely one year. Hence 
 it came, that many were, by the tacit permiflion of the king, or the lord, 
 allowed to hold after their term was expired, and to become what our 
 law calls tenants by Jiifferanee, amoveable at any time, at the pleaiure of 
 the fuperior ; and afterwards, to remedy the uncertainty of thefe tenures^, 
 grants for more years than one, but generally for a very fliort term, were 
 introduced. The books of the feudal law, written many hundred years 
 after, indeed, fay that the firft grants were at will, then for one year, then 
 for more ; but I own I cannot bring myfclf to believe that thefe conquerors, 
 who were accuflomed in Germany to yearly grants, could be fatisfied with 
 a tenure fo precarious as under that of a year, in their new acquifitions. 
 Thefe grants at will, therefore, which are mentioned in thofe books, I un- 
 derftand to be after their term ended. I mean this only as to the warrior- 
 Franks, for as to the focagers and villains, I will readily allow that many of 
 tlie former, and all tlie latter, were originally at pleafure |. 
 
 About this period, as I gather from the reafon and circumftances of the 
 times, Mi^s introduced the tenure of caftleguard, which was the aflignment 
 
 of 
 t Gregor. Turonen. lib. 2. cap. 27. Ufage des fiefs, par BruffeJ, liv. 2. cap. 6. 
 DiiTertation on the antiq. of the Engliili conflitution, part 3. § 2. 
 
 X Lib. feud. I. tit. I. Hume appendix, 2. Dalrymple, Eflay on feudal property, 
 cap. f. 5 r.
 
 Lect. 5. L A W S OF E N G L A N D. ^/ 
 
 of a caftle, with a tra£t of country adjacent, on condition of defending it 
 from enemies and rebels. This tenure continued longer in its original ftatc 
 than any other ; for by the feudal law it could be granted for no jnore than 
 one year certain f. 
 
 It is time now to take notice of fuch of the Romans as lived among the • 
 Franks, and by them were not reduced to ilavery. Clovis began his con- 
 cjuefls with reducing Soiffons, where a Roman general had fet himfelf up 
 with the title of a king ; and after he had extended his conquefts over all 
 the other ftates, the Franks, and fome other German nations, the Armorici, 
 the inhabitants of Brittany, who, cut off from the body of the empire, had 
 for fome time formed a feparate ftate, fubmitted to him on condition of re- • 
 taining their eftates, and the Roman laws. Their example was foon follow- 
 ed by others. The Gauls who dwelt on the Loire, and the Roman garri- 
 fons there, were taken into his fervice. Thus was the king of France fove- - 
 reign of two diftinft nations, inhabiting the fame country, and governed by 
 different laws. The Franks were ruled by their cufloms, which Clovis and , 
 his fucceffors reduced into writing ; the Romans by the Imperial law. The 
 eftates of the one were beneficiary and temporary ; thofe of the others 
 were held plena jure and perpetual, and now, or foon after, began to be 
 called allodial. But thefe allodial eftates were not peculiar in after times to 
 the Romans ; for as thefe eftates were alienable, many of them were pur- 
 chafed by the Franks : So that we read, that when Sunigifila and Callamon 
 were deprived of the benefices they held as Franks, they were permitted to 
 enjoy their eftates in propriety. As the Romans were, before their fubmif- 
 fion, divided into three claffes, the nobles, the freemen, and the fiaves, fo 
 they continued thus divided ; the nobles being dignified with the title of 
 conviva regis \. 
 
 But as it was unfafe to truft the government of thefe new fubjefts in the 
 hands of one of their nation, the king appointed annually one of his com- 
 panions, or comites, for that purpofe, in a certain diftrift ; and this was the 
 origin of counties, and counts. The bufmefs of thefe lords was to take care 
 of, and account for the profits of the king's demefns, to adminifter juftice, 
 
 G 2 and 
 
 f Coke on Littleton, lib. 2. chap. 4. 
 
 t Montefquieu, I'Efprit des loix. liv. 30. chap. 13. Du Cange, voc. Alod. Sciiilteri 
 Thefaur. voc. Alcd.
 
 5x L E C T U R E S ON the Lect. 5. 
 
 nnd account for the profits of the courts ; which were very confiderable, as 
 fhe Roman laws about crimes being, by degrees, fuperfeded, and confe- 
 quently capital punifliment in mod cafes abolidied, all offences became 
 fineable, a third of which they retained to themfelves. They alfo, in imita- 
 tion of the lords of the Franks, led their followers to the wars. For every 
 free Roman, that held four manors, was obliged to ferve under his count ; 
 and thofe that had more or lefs contributed in proportion. This military 
 duty, together with an obligation of furniiliing the king with carriages and 
 waggons, was all the burden put upon them, inftead of thofe heavy taxes 
 and impofls they had paid to their emperors; fo that, in this inftance, their 
 fituation was much mended, though in other refpetts it was fufficiently mor- 
 tifying f The greatefl: among them was no member of the political body, 
 and incapable of the loweft office in the ftate ; and as all offences were now 
 fineable, thofe committed againft a Frank, or other Barbarian, were efti- 
 mated at double to the compenfation of thofe committed againft a Roman 
 or Gaul. No wonder, then, that gentilis homo, a term formerly of re- 
 proach among tlie Romans, (for it fignified a heathen and barbarian) 
 became now a name of honour, and a mark of nobility ; and that the Ro- 
 mans earneftly longed to turn their allodial eftates into benefices, and to quit 
 their own law for the Salic. And when once they had obtained that privi- 
 lege, the Roman law infenfibly difappeared, in the territories of the Franks, 
 the northern parts of modern France, which are flill called the pais des cou- 
 tumcs ; whereas, in the fouthern parts, wherfe no fuch odious diftinftions 
 were made by the original conqueror, the Roman law kept its ground, and 
 is to this day almoft entirely obferved. Thefe countries are called by the 
 French lawyers the pais de hi ccrite, meaning the Roman \. 
 
 But we cannot have a compkat idea of the conftitution of this nation, 
 without taking notice of the clergy, who now made a confiderable figure 
 among them. Churchmen had, ever fince the converfion of Confiantine, 
 been of great confequence in the empire ; but the influence they obtained 
 among the northern barbarians was much more extenfive than what they 
 had in the Roman empire. The converfion of Clovis to the Chriftian re- 
 ligion 
 t Heinnec. Elem. jur. Germ. lib. 3. \ 26. Sekltn's tit. of lion, part 2. cluip. i. 
 Spelnian, voc. Comites. 
 
 X Ripuar. L. L. tit. tie diverfis uitcrfe(Stionibus, p. 160, 161. ap. Georgifch, corp. 
 jur. Germ. Du Cange, voc. Kaida.
 
 Lect. 5. L A W S OF E N G L A N D. 53 
 
 ligion was owing to the earnefl: perfuafions of his wife Clotildis, a ^caious 
 Chriftian, and to a vow he made when prefled in battle, of embracing the 
 faith of Jefus Chrift, if he obtained the vidory. He and his people in ge- 
 neral accordingly turned Chriftians ; and the refpeft and fuperftitious re- 
 gard they had in former times paid to their pagan priefts, were now tranf- 
 ferred to their new inftruftors. The principal, therefore, of them were 
 admitted members of their general aflemblies ; where their advice and 
 votes had the greatefl: weight, as well as in the court of tlie prince ; as 
 learning, or even an ability to read, was a matter of aftoniihment to fuch an 
 illiterate people, and it was natural in fuch a (late they lliould take thofe in 
 a great meafure as guides in their temporal affairs, whom they looked on as 
 tlieir conduftors to eternal happinefs. As they were the only Romans Cfor 
 the churchmen were all of that nation) that were admiflible into honours, 
 the niofl: confiderable of their countrymen were fond of entering into this 
 profeffion, and added a new weight to it. But if the facrednefs of their 
 funftion gave them great influence, their wealth and riches added not a lit- 
 tle to it. Before the irruptions of the barbarians, they had received large 
 poffeffions from the bounty of the Roman emperors, and the piety of parti- 
 culars. Thefe they were fure to poffefs : but their fubfequent acquifitions 
 were much greater. Though thefe kings and their people had imbibed 
 the faith of Chrift, they were little difpofcd to follow its moral precepts. 
 Montefquieu obferves the Franks bore with their kings of the firft race 
 who were a fet of brutal murderers, becaufe thefe Franks were murderers 
 themfelves. They were not ignorant of the deformity of their crimes, but, 
 inftead of amending their lives, they chofe ratlier to make atonement for 
 their offences, by largefTes to their clergy. Hence the more wicked the 
 people, the more that order encreafed in wealth and power f . 
 
 But, to do juftice to the clergy of that age, there was another caufe of 
 their aggrandizement, that was more to their honour. As thefe barbarians 
 were conftantly at war, and reduced their unhappy captives to a Rate of 
 flavery, and often had many more than they knew what to do with, it was 
 ufual for the churchmen to redeem them. Thefe, then, became their fer- 
 
 vants, 
 
 f Bacon's Difcourfe on the Laws and Government of England, p. ii. — 27. JVlonaft. 
 Anglican, paflim. Mezeray, abr. chronol. torn. i. p. 1 72.
 
 54 L E C T U R E S ON the Lect. 5. 
 
 vants, and tenants, where they met not only with a more eafy fervitude, 
 but were, from the facrednefs of the church, both for themfelves and their 
 pofterity, fecured from any future dangers of the fame kind. It was ufual 
 alfo for the unliappy Romans, who were poflefled of allodial eftates,and faw 
 themfelves in danger, by thefe perpetual wars, of not only lofing them, but 
 their liberty alfo, to make over their eflates to the church, and become its 
 focage-tenants, on ftipulated terms, in order to enjoy the immunities 
 thereof. 
 
 By all thefe means the landed eflates of the clergy grew fo great, that in 
 time the military power of the kingdom was much enfeebled : for though 
 they were obliged to furnifh men for the wars, according as the lands they 
 held were liable to that fervice, this was performed with fuch backwardnefs 
 and infufEciency, that the flate at one time was near overturned, and it be- 
 came neceflary to provide a remedy. Charles Martel, therefore, after ha- 
 ving delivered the nation from the imminent danger of the Saracen invahon, 
 found himfelf ftrong enough to attempt it. He ftripped the clergy of al- 
 mofl all their poflefrions, and, turning them into ftrift military tenures, di- 
 vided them among the companions of his viftories ; and the clergy, inftead 
 of lands, were henceforth fupported by tithes, which before, though fome- 
 times in ufe, were only voluntary donations, or the cuftom of particvdar 
 places not eftabliflied by law f . 
 
 In my next leiSture I fliall confider the introduftion of eftates for life into 
 the feudal fyftem, and take notice of the confequences that followed from 
 thence. 
 
 I Montefquieu, I'Efprit de Loix, liv. 30. chap. 21. liv. 51. chap. 9. 10. ir. 
 
 LECTURE
 
 Lect. 6. LAWS OF ENGLAND. 
 
 LECTURE VI. 
 
 Tlje iniroduclion of ejlatcs for Ufe into the feudal fyjiem — The nature and for nu 
 of inveftititre — The oath of fealty, and the obligations of lord and tenant. 
 
 IN the preceding ledture I took notice of the different condition and fitua ■ 
 tion of the Romans and barbarians in the infancy of the French mo- 
 narchy ; but it will be neceflary to obferve, that all the barbarians them - 
 felves were not fubjeQ: to the fame laws and regulations. When the Ripua- 
 rian Franks, after the murder of their fovereign, fubmitted to Clevis, it was 
 under an exprefs condition of preferving their own ufages. The fame 
 privilege he allowed to the AUemans, Mhom he conquered, and to fuch 
 parts of the Burgundian and Gothic kingdoms as he reduced to his obe- 
 dience. The cuftoms of all thefe feveral people, as they were Germans, 
 were indeed of the fame fpirit, and did pretty much agree ; but in particu- 
 lar points, and efpecially as to the adminiilration of juftice, they had many 
 variations j and thefe the feveral nations were fond of and lludious of pre- 
 ferving. What was peculiar to thefe people, above all other nations, was 
 this, that thefe different laws were not local, but perfonal : for although the 
 Salians, in general, dwelt in one part of the country, the Ripuarians in 
 another, the Allemans in a third, &c. yet the laws were not confined to 
 thefe diftrids : but a Salian, in the Ripuarian territories was ftill judged by 
 his own, the Salian law ; and the fame was true of all the others. Another 
 peculiarity was, that the barbarians were not confined to live in the law they 
 were born under. The Romans, indeed, could not pafs from their Roman 
 law to that of any one of their conquerors, until they were allowed, feveral 
 ages after, to acquire fiefs ; but any of the barbarians, if he liked another 
 law better than his own, could adopt it : a privilege, I prefume, derived 
 from that antient pradice which they ufed, of removing from one ftate or 
 commonwealth to another, or of going forth to form a new one. 
 
 In the French monarchy, then, there were five different nations, befides 
 the Romans, governed by fire diftinft laws ; but thefe five people, being 
 
 all
 
 56 L E C T U R E S ON the Lect. 6. 
 
 all of the fame northern original, and defcended from the conquerors of 
 Gaul, were, in the ftate, every one of them efteemed and regarded on an 
 equal footing, enjoyed the fame privileges, and equally received benefices 
 from the king or other lords. I have already obferved, that the bonds be- 
 tween the king and his companions in Germany continued during their 
 joint lives. It had the fame duration after they fettled in Gaul ; where they 
 either prefided with him in his court, as they had done formerly, or were 
 fettled in benefices near him, and in fuch fituations as they might readily at- 
 tend him on occafion ; or elfe were the governors and leaders of the free 
 Romans, under the title of counts. But all the grants of lands or offices 
 that they enjoyed were, as yet, but temporary. So that they were fideles, 
 or vaflals, 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 fo 
 long a term -(-. 
 
 The introduction of beneficiary grants for life, as is very properly con- 
 jectured, was firft owing to the counts. They had, as 1 mentioned before, 
 the third part of the profits of the courts in their refpeftive diftrifts, which 
 made their office not only confiderable and honourable, but opulent. They 
 lived apart from. the other barbarians among the Romans, whofe allodial 
 ]-)roperty was fixed and permanent. It was natural for them to wifli the con- 
 tinuance 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 treafure, 
 which the kings frequently laboured under to fupport their wars : for of- 
 fcnfive ones they could carry on in no other manner than by ready treafure. 
 The counts, therefore, by the dint of prefents, or fines, attained, or I may 
 rather fay, purchafed eflates for life in their offices ; but thefe eftates had, 
 at firft, continuance only during the joint lives of the granter and grantee |. 
 
 But the matter did not ftop here. The example was quickly followed 
 by the other barbarian?, who were the immediate tenants of the crown, 
 
 and 
 
 •|- Lib. I. Feud. tit. I. Hanneton, de jiir. feud. p. 139. Du Cange, voc. Fideles et Fi- 
 dclita"!. 
 
 X Mably, Obfervations fur I'liiftoire de France, liv. i. chap. 6. Du Cange voc. Be- 
 ncficiuni.
 
 Lect. 6. LAWS OP E N -G L A N D. sy 
 
 and who now were growing weary of the conftant, or even a frequent 
 change of habitation. And, in one refpe£l, this allowance was of confider- 
 ab]e advantage to tlie king, as it created a tie upon them, equally durable 
 witlithat by which his companions were bound to him, and v.ore out by de- 
 grees that principle they had before retained, that by throwing up what they 
 held from him, they wereabfolved from their allegiance. They, therefore, 
 as well as the companions, took the oath of fealty ; which, as far as I can 
 find, was taken by none on the continent, whofe eftates were lefs than for 
 life; though, in the law of England, it is a maxim, that fealty is incident 
 to every tenure but two, namely, eftates at will (for they did not think it 
 reafonable that a perfon fhould bind himfelf by oath, in confideration of 
 what might be taken from him the next day) and eftates given in frank 
 almoigne, or free alms, that is, to religious honfes, in confideration of fay- 
 ing divine fcrvice, and praying for the donor and his heirs ; and thefe were 
 excufed out of refpecQ: to the churchmen, who were fuppofed not to need the 
 bond of an oath, to perform that duty to which they had dedicated them- 
 felves, and alfo becaufe the fervice was not done to the lord, who gave the 
 land, but to God. 
 
 Thus eftates for life, created by particular grants, went on continually en- 
 creafing in number, till the year 600, by which time almoft every military 
 tenure, caftle-guard excepted, was of this nature. And this accounts for 
 the particular regard the feudal, and from it our law fhews to the tenant of 
 the freehold, and the preference given to him above a tenant for years. 
 For, firft, his eftate was, generally, more valuable and permanent, as lone- 
 terms were then unknown ; and, fecondly, it was more honourable, as it 
 was a proof of a military tenure, and of the defcent of its polTeflbr from the 
 old German freemen. For it was a long time after that focage lands, in 
 imitation of thefe, came to be granted in the fame manner, for life. The 
 lords, or immediate tenants of the crown, having, by the means afore-men- 
 tioned, gotten eftates of continuance, and being bound for life to the king, 
 thought it their intereft likewlfe to conneft their tenants as ftricHy to them-, 
 by granting them freeholds alfo ; but in the oath of thefe fub-vaflals, which 
 they took to their lords, there was an exception of the fealty due to the 
 king, from whom the land was originally derived, or of a former lord, if 
 fuch an one they had, to whom they were bound by oath before. Thefe 
 
 H fi^ib-
 
 58 LECTURES ON the Lect. 6. 
 
 fub-vaffals, likewifc, had not in thofe early times, the power of creating 
 vaflalages, or eflates for life, under them ; for it was thought improper to 
 remove the dependence of any military man on the king to fo great a dif- 
 tance ; and indeed it was hardly worth any man's while, if it had been law- 
 ful, to accept fuch a gift as was determinable either on the death of the fu- 
 perior lord, or of his vaflal,who had granted it, or laftly, on his own death f . 
 
 Estates for life being now become common, and in high eftimation, 
 it was thought proper that they fliould be conferred with more form and 
 folemnity, and that by means of what the feudal law calls Invefliture, of 
 which there are two kinds. Tlie firft, or proper invefliture, was thus given : 
 The lord, or one impowcred 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 pofTefllon 
 to him, by putting into his hand a part of the premifes, in the name of the 
 whole, as a turf, a twig, or a hafp of the door, in the prefence of the pares 
 curia, that is, of the other vaffals or tenants of the lord. This is what our 
 law calls giving livery and feizin, from the lord's or his deputy's delivering, 
 and the tenant's taking feizin, for fo the pofleffion of a freehold or eftate for 
 life is called. The prefence of the pares curia was required equally for the 
 advantage of the lord, of the tenant, and of themfelves ; of the lord, that, 
 if the tenant was a fecret enemy, or otherwife unqualified, he might be ap- 
 prifcd thereof by the peers of his court, before he admitted him ; and that 
 they might be witneffes of the obligation the tenant had laid himfelf under 
 of doing fervice, and of the conditions annexed to the gift, if any there were, 
 which the law did not imply : for the benefit of the tenant, that they might 
 tellify the grant of the lord, and for what fervices it was given ; and laflly, 
 tor their own advantage, that they might know what the land was, that it 
 was open for the lord to give, and not the property of any of the vaflals ; 
 and alfo that no improper perfon Ihould be admitted a j>ar, or peer of their 
 court, and confequently be a witnefs, or judge, in their caufes |. 
 
 Hence 
 
 •|- Spelman's GIolT. voc. Fcodiem. Dalrymple on Feudal-Property, chap. i. Iluinc, 
 Append. 2. 
 
 I Du Cange, voc. ImefHtura. Spelman, voc. Pares Curix. Craig de feud. lib. 2. 
 dieg. 2.
 
 Lect. 6. LAWS oy ENGLAND. jy 
 
 Hence it is, that in our law, if a man has right to enter into fcvcral land ; 
 in the fame county, an entry into one of them, in the name of all, is fufficient 
 to vefl thefeizin, that is, the pofleflion of the freehold of all, in him ; be- 
 caufe the fome pans curice (who were in antient times the only vvitnefles al- 
 lowed) who know he had in their prefence entered into one, know alfo that 
 he entered that one in the name of all the others ; but if the lands lie in dif- 
 ferent counties (which are diftinft jurifdiftions, and have different pares 
 curia} an entry into one county, in the name of the whole, is not fufficient ;' 
 becaufe, as to feizin of lands in the other county, the pares t!)ereof are the 
 only competent witneffes. 
 
 As the proper invefliture required the aftual going upon the lands, which 
 was often inconvenient, the improper invefliture was introduced. This, 
 which was the fecond kind mentioned, was alfo performed in the prefence 
 of the pares curia, thus : The intended tenant, in a mofl humble and low- 
 ly manner, prays the grant of fuch an eflate from his lord ; which, when 
 the latter has agreed to, he inverts him, by words fignifying his grant, and 
 what it is of, accompanied by fome corporeal aflion, as delivering him a ftaft", 
 a ring, a fword, or clothing him with a robe, which laft, being the mofl com- 
 mon method amongfl the great immediate tenants of the king, gave rife to 
 the name invejliturc. After this, the tenant did fealty. But this improper 
 invefliture did not transfer the actual poffefTion of the land without fubfe- 
 quent livery and feizin, and gave the tenant not a right to enter, but only a 
 right of aiElion, whereby he might fue, and oblige the lord to transfer it by 
 an aftual livery. For allthefe lands, being liable to fervices arifing out of the 
 profits for which the lord was bound to anfwer to the king, his pofTeflion of 
 thefe profits by their rules was continued, until he had, by an adl of public 
 notoriety, namely, by giving livery and feizin on the land, put it out of 
 him. And this maxim was, I apprehend, eftabliflied alfo for the benefit of 
 the co-vafTals, who could better judge by their own eyes, on the fpot, whe- 
 ther an injury was done by the grant to any of them, than by hearing the 
 lands named and defcribed elfewhere, as, in fuch cafe, it frequently happen- 
 ed that all the vaflals were not prefent |. 
 
 H 2 Hence, 
 
 t Bracton, lib. 2. cap. 17. Spelman, voc. Fidelitas, etSeifina. Fkta, lib. 3. cap. ij. '
 
 6o L E C T U R E S ON the Lect. 6. 
 
 Hence, if the lord had granted lands by an improper inveRiture to A, 
 and had afterwards, by livery and feizin, granted them to B, they became 
 B's, though he was the later invefted ; and the remedy A had agalnft the 
 lord was not for the lands themfelves, for thofe he had already legally part- 
 ed with to B, and could not recal, but for their value, in confideration oi 
 his having bound himfelf to fealty. 
 
 This was the form and manner of proper and improper inveftitures in- 
 the early times, before thefe barbarians had learned the ufe of letters, and 
 was intended not merely for folemnity, but alfo to create fuch a notoriety 
 of the fad, as it might eafily be proved by viva voce teftimony. For if it 
 was denied, the tenant produced two or more of the pares curiiv, each of 
 whom fwore he had either been prefent at the inveftiture himfelf, or had 
 conflantly heard his father declare, that he was. And this, at firll, was the 
 only evidence admiffible, and was abundantly fufficient, when the grants 
 were only for one life. Such proof, however, could not be of any advan- 
 tage to the church ; for, though churchmen die, the church doth not, but 
 continues to be reprefented in a fucceffion of natural perfons. If fhe, there- 
 fore, had not a more permanent evidence to produce than what I have be- 
 fore-mentioned, flie could never, after fome length of time, afcertain her 
 rights. On this account brevia tejiata^or, as we call them, deeds, were made 
 ufe of, which were written inftruments, expreffing the grant, and its nature, 
 attcfted by fome of the pares, and authenticated by the feal of the lord, or by 
 his name and fign of the crofs. When this kind of evidence was once in- 
 troduced, as it was more fixed and certain than the frail memories of men, 
 it became cuftomary for the tenant, who had been invefted either properly 
 or improperly, to demand and obtain a breve tejlatian of that inveftiture, and 
 afterwards other fymbols in improper inveftitures went out of ufe, and the 
 delivery of a deed became the ordinary fign ; but this, as all other improper 
 inveftitures, required a fubfequent aftual livery and feizin. 
 
 Having thus delivered the antient and proper method of conftituting an 
 cflate for life, let us attend to the confequences, and fee what were the fcve- 
 ral rights and obligations of the lord and tenant, and for that purpofe exa- 
 mine the oath of fealty. 
 
 The
 
 Lect. 6. L A W S OF E N G L A N D. Ci 
 
 The general oath oF fealty on the continent was thus : Ego N. i-affallus^ 
 fuper hcccfanBa Dei evangelia, jiiro, quod ab hac horn in antea ufque ad idti- 
 mum vita mea diem, tibi M. domino meo^fiielis eru, contra omnem honmcm, r.v- 
 cepto fummo pontijice, vci imperatorc, vcl rcge, vel priore domino meo, as the 
 cafe was. In England, Littleton gives this account of it. When a freelio!- 
 der doth fealty to his lord, he (hall hold his right hand on a book, and flial! 
 fay thus : Know ye this, my lord, that I Ihall be faithful and true unto you, 
 and faith to you fhall bear, for the lands which I claim to hold of you ; and 
 that I fliall lawfully do to you the cuftoms and fervices which I ought to do, 
 at the terms affigned ; fo help me God, and his faints ; and he fhall kifs the 
 hook f . . 
 
 The only differences are, that the words ab hac bora in antea itfque ad id' 
 iimum vita mea diem are omitted : for abroad none but tenants for life fwore 
 fealty. In England termers for years did ; and that co?itra omnem hominem^ 
 cxcepto, &c. though implied, is likewife omitted ; which exceptions, how- 
 ever, in the Englifli law, were inferted in the doing of homage which the 
 tenant in fee did to his lord... 
 
 Such was the general oath of fealty ; but to fliew what being faithful 
 and true, and bearing faith comprehends, it will be proper to infert, froni 
 the feventh title of the fecond book of the feudal law, the larger oath, 
 which perfons, rude and ignorant of what the word fealty implied, were to 
 take. It runs in thefe word : Ego juro, quod niinquam fcienter cro in con-- 
 filio, vel infa&o quod tu amittas vitam, vel memhrian- aliquod, vel quod tu re- 
 cipias in perfond aliquam lafionem, vel injuriam, vel contumeliam , vel quod tu 
 amittas aliquem honorem quern nunc babes, vel in antea babcbis ; 'b' fi fcivero:, 
 vel audivero, de aliquo, qui velit aliquod ijlorum contra te facere, pro poffe meo, 
 ut non fiat impedimentum prcefiabo. Et ft impedimentwn prcefiare nequivero, 
 quam cito potero, tibi nunciabo ; <dr contra eum, prout poterc^, auxilium meum tibi 
 prceflabo; iy fi contigerit, te rem aliquam quam babes vel habebis injii/ie vel for' 
 tuito cafu amittere, eam recuperare juvabo, 'b' recuperatam omni tempore retinere. 
 Et fi fcivero te velle jufle aliquem offendere, & inde gene i\i /iter vel fpecialiter 
 fuero requifitus, meum tibi,ficut potero, prceflabo auxilium. Etfi aliquid mibi de 
 
 fecreto 
 
 t Spelman, Glofl". p. 266. Feud. lib. 2. tit. 6. Littleton, lib. 2. chap. 2. Bafnage,- 
 contume reformee de Normandie, tit. Des fiefs et droits Feodaux, art. 107.
 
 bz LECTURES ON THF. Lf.ct. 6, 
 
 fecreto manlfcjiavcrisy illud, fine tua liccntia, nemini pandam, vcl per quod pan- 
 ddiiir fac'iam ; iy ft confil'mm 7mhi fuper aliquo faflo pojlidaveris, illud tibi da- 
 bo confilium, quod mihl v'ldctur rmigis expedire tibi ; ^ nunquam ex perfona mea 
 allquid faciamfcienter, quod pertinent ad tuam vel iiionim ifijuriam vel contu- 
 mellam. 
 
 Besides the negative obligations, of doing nothing to the prejudice of 
 the lord or his family, the pofitive ones the vaflals lay under may be re- 
 duced to the two heads of counfel and aid; which, with us, are flill the 
 principal duties that the parliament, who are, or reprefent the vaflals of the 
 king, owe to the fovereign. Under counfel, not only giving faithful ad- 
 vice, but keeping his fecrets was included. Aid may be either in fupporting 
 his reputation and dignity, or defending his perfon or property. Under 
 the firft, the vaflal was not only to fhew him the higheft reverence, but was 
 forbid to accufe or inform againft him, except in the cafe of treafon, where 
 the fupreme lord was concerned. He could not in a fuit between them ten- 
 der to his lord the oath of calumny, whereby he fhould be obliged to fwear 
 he thought his caufe was juft, and that he did not carry it on with an intent 
 to harrafs and diftrefs ; for this was throwing an afperfion on his lord's cha- 
 rafter. He could not, for the fame reafon, bring any aQion againfl: him, 
 whereby he might be defamed, and particularly the interditlum unde-vi, 
 which was a charge againft the perfon fued, of an unjuft and violent difpof- 
 feflion of property. Neither could he, in any caufe that was not ftriclly 
 feudal (for in fuch as were for the general prefervation of that polity, he was 
 permitted) bear witnefs againft him. And, laftly, he was obliged to fup- 
 port his dignity, to attend his courts, and do fuit and fervice, as a witnefs 
 and a juror. 
 
 By aid to his perfon, he was not only obliged to defend his lord, if at- 
 tacked perfonally, but to alhft him in his wars, and that at his own expence, 
 out of the profits of his tenancy ; and if, in the field of battle, he deferted 
 his lord, before his lord was mortally wounded, it was an abfolute forfeiture. 
 But this aid he was not obliged to give until required ; for perhaps the lord 
 did not need the aid of all his tenants ; and the vafl'al, without notice, was 
 fuppofcd ignorant that there was any occafion for his affiftancc, unlefs it 
 could be proved the vaflal knew his lord's danger, when the lord himfelt 
 
 did
 
 Lect. 6. L A W S OF E N G L A N D. 6 
 
 J 
 
 did not ; or that he knew it was fo imminent as not to give the lord time 
 to fummon him ; in wliich two cafes, he was obliged to fervc without rc- 
 quifitionf. 
 
 But here fome diftinftions mufl be taken notice of as to the nature of 
 thefe wars. I have often repeated that the king's companions were bound 
 to aflift him in all his undertakings, ofFenfive or defenfive; and that tlic 
 other freemen were obliged only to ferve in defenfive wars. But now, by 
 this new introduftion of grants for life to the freemen, the cafe was altered. 
 In all defenfive wars, they were obliged to aid their lord, though he had 
 been the unjuft aggreflbr, and this for the prefervation of the fociety to 
 which they belonged ; but in ofFenfive ones, it was to be confidered whether 
 the caufe was juft, or doubtful, or notorioufly unjuft. In the two firft cafes, 
 he was obliged to furnifh his aid ; for if his lord's quarrel was doubtful, the 
 refpect and reverence he owed him, and his regard to his lord's character 
 and dignity, laid him under a neceffity of prefuming in his fuperior's favour. 
 But if the war was notorioufly unjuft, he was at liberty to fervc, or not, 
 as he pleafed. And the aid he was bound to give, where he was bound, 
 was againft all perfons, contra omncm bo?iiinem, even his parents, brothers, 
 children, and friends, with the following exceptions. Firft, not againft 
 the king, who was the fupreme lord of the whole, and in whofe prefervation 
 and dignity every individual was concerned. Secondly, not againft him- 
 felf, for felf-prefervation is the firft law of nature. Thirdly, not againft his 
 original country, though he had received a grant from a foreign lord, and 
 afterwards war broke out between them : tor by this time, the opinion of 
 a durable obligation to the ftate he was born in, began to prevail among 
 them. Laftly, not againft his antienter lord, when he had grants from two ; 
 for the fecond obligation could not annul the firft. It may here be natural- 
 ly alked, how fuch a vaflal, who had two lords, was to ad; in cafe of a war 
 betweerjjthem? If his firft lord's caufe was juft or doubtful, he was un- 
 doubtedly bound to him againft the fubfequent one, even in attacking him ; 
 and this was no forfeiture, for the fecond lord had fufficient notice of his 
 prior obligation, by the exception in the oath of fealty. Indeed, if he, ha- 
 ving a lord before, had omitted the exception, he juftly loft his fief, for the 
 deceit put on his latter lord. But if his firft lord's caufe was notorioufly un- 
 
 >ft, 
 t Coke on Littleton, book 2. chap. i. Du Cange, ^-oc. VaflTiiticum. Wright on te- 
 nures, p. 55, 56.
 
 6-^ LECTURES o-s the Lect. &. 
 
 juft, he was not at liberty to affift him againfl the fecond ; but by the two 
 bonds was obhged to remain neuter*. 
 
 This military duty was to be done in the vaffal's proper perfon, if he was 
 capable of it ; unlefs the lord was pleafed to accept of a deputy. But if he 
 was incapable himfelf, as often mufl: have happened, after eftates for life 
 came in, he was allowed to ferve by a fubftitute, fuch as the lord approve'd. 
 Suppofe, then, a man had two lords, who were at the fame time at war 
 with others, and each required his perfonal alTiftance, it was plain he was 
 obli^'-ed to ferve both, the elder lord in perfon, becaufe his right was prior, 
 and the lafl: by deputy f. 
 
 .The aids due to the lord, in.refpeft of his property, were, firft, to aid and 
 fupport him, if reduced to actual indigence, and to procure his liberty, by 
 pavinrr his ranfom, if taken in war. It was a doubt among the feudal law- 
 yers, whether, if the lord was imprifoned for debts, his tenants were obliged 
 to releafe him ; and the better opinion was, that they were, if the debts did 
 not tend to their very great impoverifhmentl. 
 
 These were all the aids neceifarily required by the law in thefe antient 
 limes. For thofe for m.aking his eldcfi: fon a knight, and marrying his elder 
 daughter, came in afterwards. All other contributions and affiflances were 
 merely voluntary, though very frequent, and were originally, as they are 
 ilill here, and are ftill called abroad, though impofed really and truly, fret. 
 
 We are now to fpeak of the duty of the lord to his vaflals ; and on this 
 head there is no need of enlarging much : for it was a maxim in the feudal 
 law that though the vaffal only took the oath to the lord, and the lord, on 
 account of his dignity, and the refpedt due to him from the tenant, took 
 none ; yet was he equally obliged as if he had taken it, to do every thmg, 
 and forbear every thmg, with refpeft to his tenant, that the vaflal was v.ith 
 
 rcfpeft 
 
 * Feud. lib. 2. tit. 23. and 24. Dalrymple on Feud, property, chap. 2. Wright on 
 
 tenures, p. 72. 
 
 f Madox, Antiquities of the Exchequer, vol. I. p. 655. Coke on Littleton, lib. 2. 
 
 ^hap. 5. 
 
 \ Uu Cange, voc. Auxilium. Madox, Antiq. Excheq. chap. ij.
 
 Lect. 6. L A W S OF E N G L A N D. 65 
 
 refped to the lord ; fo that the bond was in mofl refpefts ftriftly mutual ; 
 but not in all, for the lord was not obliged to fupport his indigent tenant, 
 or to give aids to him ; but, on the other hand, he was obliged to warrant 
 and defend the lands he had given to his tenant by arms, if attacked in open 
 war, and in courts of juflice, by appearing upon his voucher, that is, the 
 tenant's calling him in to defend his right, and if the lord failed, he was 
 bound to give lands of equal value, or, if he had not fuch to beftow, to 
 pay to the tenant (in confideration of the bond for life, he had bound him-, 
 felf to his lord in) an equivalent in money. 
 
 As, in cafe of the vaflal's failure in his duty, the lands returned to the 
 lord, fo, in cafe of the lord's failure on his fide, the lands were veiled in 
 the vaflal, free from all fervices to his immediate fuperior. But to the 
 king, or lord paramount, he ftill owed fervice, in proportion to his fief j and 
 by this means he might become, inftead of a fubvaffal, an immediate vaflal 
 of the kingf. 
 
 Having mentioned the obligations on each fide between lord and tenant,, 
 it next follows to fee what intereft each had in the lands given ; on which 
 head I (hall be brief, as thefe feveral rights were not fo nicely diflinguiflied 
 as in after ages, when thefe tenures became hereditary. The lord was then 
 to fuffer his tenant to enjoy the iflues and profits of the lands, he rendering 
 the fervices due by the refervation of law, and the additional ones, if 
 any fuch had been fpecially referved. In cafe of failure, he had, in thofe 
 antient times, a right of entry for the tenant's forfeiture. For while this 
 military fyftem continued in its full vigour, the fmallefl breach the vaflal 
 committed in his engagements was an abfolute forfeiture ; but in after times 
 when the lands were often given upon other confiderations than military 
 fervice ; and when the military was often commuted for pecuniary confi- 
 derations, a milder way was found out, that is, by dijirefs, by which the 
 lord, infliead of feizing the lands, took poflefllon of all the goods and chat- 
 tels of his tenants found upon the lands, (for the lands were ftill the mark 
 where he was to take),, and kept them as a depofit, till his tenant had made 
 
 I fatisfadtion, - 
 
 f Feud. lib. 2. tit. 25.
 
 66 LECTURES on the Lect. d, 
 
 fatisfadlon, originally indeed at the lord's pleafure, for the failure in his 
 dutyf. 
 
 The right the tenant had in the land was, that, paying the fervices due, 
 he fliould receive the produce thereof, and turn it to his own beft advan- 
 tage ; and that he might, if attacked in a court of juftice, vouch, or call in 
 his lord to defend his poflcffion by arms, or otherwife. But as his tenure 
 was precarious, and only for life, he was prohibited from doing any thing 
 that Ihould either hurt his lord's intereft, or that of the king, in whom and 
 his fucceflbrs the inheritance was veiled. Thus, he could not commit 
 wafle, by deflroying houfes, or cutting down trees, except what was necef- 
 fary for immediate ufe, for repairs, firing, or tillage. He could not be- 
 queath his tenancy, for he held only during life. He could not alienate with- 
 out the confent of his lord, for he had his lands in confideration of his per- 
 fonal fervice ; and although, in cafe of neceflity, he was allowed a fubfti- 
 tute, it was only fuch an one as was acceptable to the lord ; whereas by 
 alienation, the real tenant who was bound by oath to do the fervices out of 
 the profits, was to lofe them, and a flranger, perhaps an enemy, who was 
 under no tie to the lord, was to enjoy them. Alienation, therefore, with- 
 out the confent of the lord, was unlawful. If he confented indeed, and 
 accepted the allienee, he, upon his taking the oath of fealty, became the 
 real tenant, and the former was quit of all pofitive fervice, except honour 
 and reverence ; but ftill bound by his former oath from doing or fuffering 
 any thing to the prejudice of his former lord. Neither could a fub-vaifal, in 
 thofe early times, create a vafTalage to be held of himfelf. The immediate 
 vaflal of the king, indeed, could, but then it was on thefe terms ; firfl, that 
 the perfon he granted it to was one that was of the ligeance of the king, ei- 
 ther natural or adopted ; next, that he was as capable of rendering the fer- 
 vices as the grantor ; and laftly, that the fervices referved fliould, if not 
 better, which was expeded, be at leafl: equally beneficial to the fupreme 
 lord as thofe of the original grant to the intermediate or mefne lord. To ex- 
 plain this, if the king granted ten thoufand acres to his immediate vaffal, for 
 the fervice of ten knights, the vaffal might give one thoufand, indeed, or 
 
 any 
 
 f Brafton, lib. 3. p. 1 ^o. Spelm. voc. Efcheata. Glanville, lib. 7. cap. 1 7. Dal- 
 rymple on feud, property, p. 62. Ed. 1757. Hengham Parva, chap. 6. Coke on Lit* 
 tlcton, b. I. chap. I.
 
 hEcr. 6. L A W S OF E N G L A N D. 67 
 
 any leffer number of acres to one perfon, for the fervice of one knight ; but 
 if he gave more to one, as he had attempted to hurt and leflen the benefit 
 his fuperior had ftipulated for, his grant was void, and in thofe times, when 
 forfeitures were regularly exafted, the grant of the king to him was for- 
 feited alfof. 
 
 In my next lecture I (hall fay fomething of improper feuds, as they began 
 to he introduced about the time I am now upon, and were very feldom, in 
 thofe ages, granted for longer terms than for years or lives, and go on to 
 fhew by what means, by what fteps and degrees, eftates for life grew up 
 into inheritances. 
 
 ■\ Craig, de feud, lib. 2. dieg. 207. 
 
 LECTURE
 
 63 L E C T U R E S ON the Lect. 7. 
 
 LECTURE VII. 
 
 Improper feuds or henefices — Grants to the Church — Grants in which the oath 
 of fealty ivas remitted — Grants to which a coruiition was annexed^ that enlar^ 
 ged or diminifl^ed the eflate — Grants -which referved certain other fervices, be- 
 ftde military fervice — Grants implying fome certain fervice, as rent, afid not 
 referving military fervice — Grants referving nofervices, but general fealty — 
 Grand ferjeajity — Petty ferjeanty — Grants to women — Grants of things not 
 corporeal — Feudum de Cavcna — Feudum de Camera. 
 
 AVING, in the preceeding lefture, laid down the manner of conftltu- 
 ting a proper beneficiary eftate for life, which confided in lands grant- 
 ed for the defence of the ftate, upon the confideration of perfonal military 
 fervice, and the rights and obligations annexed thereto ; it will be proper to 
 mention fuch, (and to point out the feveral kinds of them) as are called im- 
 proper benefices, which are thofe that, in one or more particulars, recede 
 from the drift, and, in antient times, the ufual nature of thofe grants ; and 
 this is more efpecially neceflary, as, fmce the abolifhing the military tenures 
 in Charles the Second's time, all our prefent eftates come under one or o- 
 ther of thefe heads. It was a maxim in the feudal law, that conventio moduni 
 dat donationi ; and therefore, whatever terms the donor prefcribed, though 
 varying from the general courfe, was the rule by which the grant was to be 
 regulated. 
 
 In the firfl: place, then, all benefices granted to the church were improper 
 ones, becaufe given on other terms than that of military fervice, and be- 
 caufe they ended not with the death of the grantor or grantee, but continued 
 coeval with the life of the church, that is, for everf. 
 
 Secondly, Grants of lands, wherein the oath of fealty was remitted ; for 
 
 although fealty itfelf was an incident, eflential to, and infeparable from, 
 
 every eflate of life abroad, and every eftate of years alfo in England, the 
 
 ceremony of aftually taking the oath might be omitted; and if the lord had 
 
 put 
 ■J- Craig, de feud. lib. I. dieg. 1 1, and 12.
 
 Lect. 7. L A W S OF E N G L A N D. 69 
 
 put the tenant in pofleflion, without his having taken the oatli, the tenant 
 might enjoy without it. He was obliged, indeed, to take it whenever his 
 lord called upon him, on pain of forfeiture ; unlcfs, in the inveftiture, it 
 had been exprefsly remitted; in which cafe, he might rcfufe to take it, and 
 judify his refufal by the tenor of his inveftiture f. 
 
 Thirdly, All grants to which there was a condition annexed, that either 
 enlarged or diminiflied the eftate ; as if lands were granted to two, and the 
 furvivor of them. This was an improper benefice, as it had continuance 
 for more than one life ; or if they were granted to a man for life, provided 
 he did, or refrained from doing fuch an aft. This was improper alfo, be- 
 caufe it might have a more fpeedy determination. 
 
 Fourthly, All grants, in which certain fervices befide military were re- 
 fcrved, were alfo of this nature, as if the tenure was by military fervice and 
 a certain rent, or any other certain duty, or by military fervice reduced to 
 a certainty, as to attend, fuppofe forty days and no more, or by military fer- 
 vice with a power in the tenant to excufe himfelf, by paying a certain fum. 
 For the proper fief was for military fervice only, the occafions and duration 
 of which were uncertain J. 
 
 Fifthly, If military fervice was not referved at all, but fome other cer- 
 tain fervice inftead thereof, as rent, the grant was an improper one, and 
 fuch are our tenures, fmce they have been reduced to focage, which is deri- 
 ved from foke or foka, a plough, becaufe their duty was originally to attend 
 a certain number of days to plow their lord's grounds, or elfe to fupply 
 him with a certain quantity of corn in lieu thereof. This manner of paying 
 in kind, namely, by corn, cattle or other neceflaries, was continued every 
 where many ages ; in E.ngland, until the time of Henry the firft, when 
 they began to be commuted into money, to the great advantage of the fuc- 
 ceflbrs of thefe focage tenants, whofe eftates were before become heredi- 
 tary. For the computation being made at the rate and proportion of va- 
 lue between money and the neceflaries of life at that time, as money grew 
 more plentiful every day, its value continually funk, and the price of commo- 
 ■dities accordingly increafed ; in fo much that the prefent fucceffor of a te- 
 nant 
 
 t Ibid. % Ibid.
 
 yo L E C T U R E S ON THE Lect. 7. 
 
 nant at that time, who had before paid a fat ox, which was changed into 
 twenty fhillings, its then value, would now pay but the eight part of the ori- 
 ginal refervation, when the price of an ox is eight pounds. And this con- 
 tributed not a little to the happy equality which now reigns among all ranks, 
 as thefe bafer, the focage tenures, were continually rifing in value, and con- 
 fequently in confideration, and coming every day nearer to an equality, in 
 the ellimation of the world, with the nobler, the military benefices f. 
 
 Sixthly, If no fervices at all were referved, except general fealty, which 
 could not be remitted ; for it was thought reafonable, not only to grant 
 lands in confideration of future military fervice, but alfo to reward fuch as 
 had deferved eminently, and were perhaps maimed or mutilated, and fo un- 
 fit for future fervice, with lands free from fuch, or any other duty. 
 
 Seventhly, Grand ferjeanty is a benefice of an improper nature, even 
 ihough it be reckoned a military one, becaufe it is reduced to a certainty. 
 Grand ferjeanty is a certain fervice done by the body of a man to the perfon 
 of the king, and is of two kinds ; military, which is to be done either in or 
 out of the realm ; and not military, which is to be done within the realm. 
 Military, as when lands are given on condition of carrying the banner of the 
 king, or his lance, or to lead his army, that is, to be his conflable ; or to 
 number and array his army, that is, to be his marflial ; but thefe being cer- 
 lain fervices, and due to the perfon of the king, they were not obliged to 
 attend, but where he went in perfon ; and this right they infifled on fo 
 ilrongly, as had almofl: occafioned a rebellion in the time of Edward the 
 Firft ; who, although in mofl things an excellent prince, was of an hot and 
 haughty temper |. 
 
 Having determined to attack France on two fides ; in Flanders, where 
 he intended to command himfclf, and in Guienne ; he ordered the Earl of 
 Hereford, high conflable by tenure, and the Earl of Norfolk, marftial by te- 
 nure, to lead the army in Guienne, as his generals and commanders in chief. 
 But, however honourable and pleafing in other refpefts the offer might be, 
 
 they 
 
 f Reliq. Spclm. p. ;;, 7, 33, 43. Gervaf. de Tilb. Dialog, de Scaccar. lib. i. 
 cap. 7. Madox, Aatiq. Excheq. vol. I. p. 272. 
 
 X Fortefcue de Laud. leg. Angl. p. 99. Ed. 1737. Coke on Littleton, b. 2. chap. 7.
 
 Lf.ct. 7- LAWS OF ENGL AN D. yr 
 
 they feared that fuch a precedent, quietly complied with, might be, in after 
 times, a means of introducing new and hard ferviccs at the king's plcafure, 
 inllcad of the antient and known ones. They, therefore, flatly rcfufed, un- 
 lefs he went thither himfclf ; offering, at tlic fame time, to ferve under hhn 
 in Flanders. The king, boiling with refentmcnt againfl France, and pro- 
 voked at this contradiction to his plcafure, however juftly founded, threa- 
 tened Norfolk, in a tranfport of paflion, with hanging ; to which the other 
 replied, with equal fiercencfs, and total want of refpeft. The two Earls re- 
 tired to their eltates, put thenifelves in a Hate of defence, and even commit- 
 ted feveral outrages againft the king's colledors ; and their caufe was gene- 
 rally efpoufed by the nation, who were againfl the king's exafting any new 
 and unheard-of fervices. The behaviour of thefe lords to their fovereign, 
 and to fuch a fovereign, in fetting him at defiance, and that with terms of 
 difdain, when they themfelves were the aggreffors, was utterly unjuftiiiable ; 
 but, from their caufe, notwithftanding this behaviour of theirs, being uni- 
 verfally efpoufed by the nation, we may clearly fee the opinion and judg- 
 ment of thofe times ; that their kings were not unlimited, and that they had 
 no right to exaft from their vaflals any fervices but thofe that flowed from, 
 their tenures. The king, indeed, at firfl gave their lands and offices to 
 others ; but when he had cooled, and found they had infilled on no more 
 than was their right, he, in the frankeft manner, repaired his error. He 
 gave in parliament a new confirmation of Magna Charta. By another fla- 
 tute, he renounced all right of taking talliages, that is, levying taxes, even 
 on his own demefnes, without confent of parliament, as contrary to that char- 
 ter ; and in the body of this lall adt, in the amplefl manner, remitted all dif- 
 gufl and refentment againfl; the two earls and their aflbciates ; and gave 
 them the fulleft indemnity for the offences they had fo outrageoufly com- 
 mitted. Such conduct in any king, whofe fubje^ts were not difpofed to e- 
 fteem him, might have been as a fign of weaknefs, and have been attended 
 with difmal confequences ; but in Edward's realms there was not a man that 
 did not admire his wifdom, adore him for his valour, his honour, and his 
 fmcerity. He could encroach without incurring hatred, and he could re- 
 traft without being thought mean ; fo that it may be a quefl;ion, whether, by 
 the noble manner of his repairing his miftake, he did not tie his fubjedls to 
 him with flronger bonds of affetlion, than if he had never committed itf. 
 
 The 
 t Carte, hill, of England, vol. 2. p. 169. The reign of Edward I. in Rennet's col- 
 \e&. of Englilh hiftorians, p. 197.
 
 72 LECTURES ON the Lect. 7. 
 
 The grand ferjeanties that are not military are of various kinds, being 
 offices and fervices done to the perfon of the king within the realm, in order 
 to the fupport of his ftate and dignity ; for which reafon, although they are 
 not, properly fpeaking, military fervices, yet they are looked upon in that 
 light, and are endowed with the fame privileges, and fubject to the fame 
 regulations, except in a few infliances, to be hereafter mentioned ; fo that 
 no perfon under the rank of the lefler nobility, that is, of knighthood, was 
 capable of performing them ; and therefore, when, by allowing the aliena- 
 tion of lands, thefe tenures fell into the hands of perfons of inferior quality, 
 they were either knighted, or appointed a deputy of that rank. Thus, 
 at the coronation of Richard the Second, as we find in Lord Coke, William; 
 Furnivall claimed to find a globe for the right hand of the king, and to 
 fupport his hand on the day of his coronation, in virtue of the manor of 
 Farnham, which he held by that grand ferjeanty ; but, though defcended 
 of a noble family, he was not permitted to perform it in perfon, until he 
 had been dubbed a knight. At the fam.e coronation, John Wiltlhire, citi-r 
 zen of London, claimed to hold a towel while the king waflied before din-? 
 ner, which claim being allowed, as he was of too low rank to perform tho 
 fervice in perfon, he made Edmund Earl of Cambrige his deputy. Wo^ 
 men likewife and minors were obliged to ferve by deputy ; as did, at that 
 time, Anne Countefs-dowager of Pembroke, by Sir John Blount, and her 
 fon John Earl of Pembroke, a minor, by Edmund Earl of March f. 
 
 These grand ferjeanties, which were moft of them lands granted for 
 the doing certain duties at the folemnity of the coronation, contributing 
 to the fplendour and dignity of the crown, have been flill retained, though' 
 all other military tenures have been changed into free and common focage. 
 However, all thefe grand ferjeanties were not for the bare purpofe of at- 
 tending at coronations. The lord high ftewardfhip or fenefchalfhip of Eng- 
 land, of which the duty is to prefide at the trials of peers, was annexed to 
 the barony of Hinckly, which, pafling into the family of Leicefter, and then 
 into that of Lancaltcr, in the perfon of Henry the Fourth was united to 
 the crown ; but ever fince that time, as the powers and privileges the law 
 threw into his hands were looked upon as too extenfive, and dangerous, if 
 continued, this officer hath only been occafionally created, as for a corona- 
 tion, 
 
 j- Coke on Liuleton, lib. 2. chap, f . Madox, Anticj. Excheq. vol. I. p. 321, 326.
 
 Lect. 7. LAWS OF ENGLAND. 73 
 
 tion, or the trial of a peer, which ended, he breaks his ftaff", and the office 
 is vacant f . The fame is the cafe, and for the fame reafon, of the office of 
 liigh-con'lable, ever fince the attainder, in Henry the Eighth's time, of Ed- 
 ward Dulce of Buckingham, wiio enjoyed it as Earl of Hereford. Thus did 
 the crown get rid of two confiderable checks, which concurring with other 
 more extenfive and influencing caufes, helped to raife the power of the houfc 
 of Tudor above what the princes of the line of Plantagenet had enjoyed |. 
 The office of earl marfhal, indeed ftill continues in the noble family of Nor- 
 folk. For, notwithftanding the attainders of that family, when they were 
 reftored, it alfo was reftored to them. The reafon is, becaufe this office 
 is of little power ; indeed, in the vacancy of the conftable to whom he is 
 properly an affiftant, fcarce of any at all. It being, therefore, an honour- 
 able dignity, and attended with no danger, it is no wonder it hath remain- 
 ed |[. In this kingdom one grand ferjeanty remained till the year 17 15, in 
 the family of Ormond, that of butlerage ; but it differed from thofe before- 
 mentioned in this, that it was not a fervice arifmg from a grant of lands, 
 but of the prifage of wines, an antient profit of the crown, due by prero- 
 gative, namely, a right to take two tons of wine, one before the mart, and 
 the other behind, out of every Ihip containing twenty tons or more, until 
 Charles the Second purchafed it from the Duke of Ormond by a perpetual 
 penfion of four thoufand pounds a year |. 
 
 Eighthly, Petty ferjeanty was another fpecies of improper benefices, 
 and, in our law, was comprifed under the general head oi focage, becaufe 
 the fervice was certain. It is, as Littleton \ defines it, where a man holds 
 his land of our fovercign lord the king, to yield to him yearly a bow or a 
 fword, or a dagger, or a knife, or a lance, or a pair of gloves of mail, or 
 a pair of gilt fpurs, or an arrow, or divers arrows ; or to yield fuch other 
 fmall things belonging to war ; fo this, as well as grand ferjeanty, was a 
 
 K tenure 
 
 f Madox, hid. of Excheq. vol. I. p. 51. 
 
 J, lb. p. 40. 41. 
 
 II lb. p. 43. 
 
 f It may not be improperly remarked in this place, that about the 1 8th year of Hen- 
 ry II. Geoifrey Martell held in England the office or ferjeanty of Pincemaria, or But- 
 lerfliip. See Madox, hift. Exchec]. vol. I. p. jo. 
 
 X Lib. 2. cap. 9.
 
 74 L E C T U R E S ON the Lect. 7. 
 
 tenure of the king's perfon, and could not be held of a fubjeft. Such i< 
 the grant the Lord Baltimore hath in his province of Maryland ; for he 
 yields every Chriflmas five Indian arrows, befides a fifth of all gold and fil- 
 ver found within this province. 
 
 Ninthly, All grants to women were of the nature of improper ones, be- 
 caufe they muft always ferve by deputy ; and perfonal fervice is effential to 
 the proper militat y tenures f. But thefe v/ere not introduced fo early. 
 
 The tenth kind, and the lafl that I (hall mention, of improper benefices, 
 are thofe that are of things not corporeal, and of which, confequently, there 
 cannot be a poffeffion manually delivered over, that is, they do not admit of 
 livery and feizin, and therefore can be only conveyed by the improper in- 
 veftiture, that is, by words or writing, accompanied by a fymbol. Such are 
 rights in, or profits iffiiing out of land, where another hath the poffeffion ot 
 it. As the feudal law diftinguifhes between corporeal things, whofe pof- 
 feffion can be aftually transferred, and incorporeal, which cannot ; fo doth 
 our law make what is the fame diftinftion between things that he in livery, 
 and things that lie in grant. In the firfl:, it regularly requires an aftual li- 
 very ard feizin, and here a deed is not abfolutely neceffary ; but the fe- 
 cond pafs by the delivery of the deed. Here therefore a deed is abfolutely 
 neceffary ; for although the feudal law admits the ufe of other fymbols in 
 this cafe, ours, for the greater certainty, precifely requires this peculiar one, 
 that there may be full evidence of what was conveyed. Of this lafl tenth 
 kind as there are many and various fpecies, I ffiall run over fome of them 
 in a curfory manner, to explain and ffiew their general nature. 
 
 The firfl: I fliall take notice of is, that which, I prefume, was the moft 
 antient, as it feems to have come in the place of thofe repafts the king gave 
 to his comites, or companions, and is what is czWed feudum de cavena. Ca- 
 •vena fignified the repofitory, or repofitories of the neceffaries of life, while 
 in thofe ancient times the fervices due from the demefnes, or the focage 
 lands, to the king or lords, were paid in kind. Things therefore neceffary, 
 or ufcful for the fupport of hfe, dillributed in fpecie, out of the king's or 
 lord's cellar or pantry, or both, were what \h^fci(du!n cavena confiflied in ; 
 
 and 
 
 t Feud. lib. i. tit. 8.
 
 Lect. 7- L A WS OF E N G L A N D. 75 
 
 and that tliis came in place of the anticnt conftant entertainments, and 
 feafls, of the comites, or companions, appears from this, that it was a rule, 
 even after other grants were allowed to be hereditary, that tliefe determi- 
 ned with the life of the grantor, or grantee, which ever firll happened to ex- 
 pire. Thefe grants likewife were of two kinds ; fome granted in confider- 
 ation of future fervices, upon the failure of which a forfeiture was incurred, 
 others, in reward for paft fervices, where nothing was cxpeGed for the 
 future but general fealty. This difference runs through many other of 
 thefe gifts that lie in grant. For the feudal law diflinguiflies them into 
 cfficiofa, that is, to which a pofitive duty is annexed, and inofficiofa, where 
 no fubfequent fervice is required, but general fidelity, which is incident to 
 every tenure f . 
 
 The fecond I fhall mention hfcudum de camera^ which, I apprehend, was 
 originally a fubflitution for what I have jufl: mentioned, the feudtun de ca- 
 vena ; for it was inftead of an allowance of neceflaries out of the cellar or 
 pantry of the king, an annual allocation of a fum of money for will, life, 
 or years, according as it was granted out of the camera, or chamber Avhere 
 the king or lord kept his money ; and this was, as the other I before men- 
 tioned into whofe room it came, either a reward for paft fervices, in which 
 cafe no future duty was required, or on confideration of future ones. The 
 penfions granted by the king in our kingdom (Ireland) out of his revenue, 
 are of the nature of the former ; and the falaries to judges and other officers 
 are of the nature of the latter. What was common to both of thefe, the 
 feuduni de camera & de cavena, was, that, by the feudal law, they were not 
 due at the ftated time, unlefs there were provifions in the cavena, or money 
 in the camera, and that free from debts ; for the lord's fafety and dignity 
 was to be firft confidered ; but they were to wait for their arrear, till provi- 
 fions or money came in. 
 
 Another thing is to be obferved, that, although, at the introduftion of 
 thefe tenures, all others were for the life of the grantor and grantee at moft, 
 yet when the others became perpetual, thefe continued long after to be only 
 for the joint lives of the grantor and grantee, namely, as long as kings and 
 
 K 2 great 
 
 t Bruflel, ufage des Fiefs, torn. t. p. 41. Du Cange, voc. Cavena and Canava,
 
 76 L E C T U R E S ON the Lect. 7. 
 
 great lords were confidered as tenants for life, and incapable of alienating 
 their demefnes, or laying any permanent charge upon them. But when, by 
 the frequency of the example of alienations, and by the occafional indigence 
 of the kings and other lords, and the defire defigning perfons had to take 
 sdvantage of it, alienations of the demefnes were once introduced, to the 
 prejudice of the fucceflbr, thefe grants, as was very natural, as they were 
 lefs hurtful than an abfolute alienation, were continued for tlie life of the 
 grantee, though the grantor had died beforef . 
 
 •f- Spelmaii, and Du Cange, vcc. Camera, et voc. Feudum. Craig, de Feud. lib. I. 
 Diegef. 10. 
 
 LECTURE
 
 Lect. 8. LAWS OF ENGLAND. 
 
 77- 
 
 LECTURE Vin. 
 
 Feudum Soldata — Feudum habitationis — Feudiim Guardix — Feudim Gajlakii^ 
 Feudum mercedis — Incorporeal benefices in England — Advowfons — Frefenta- 
 tive advowfons — Collative advowfons — Donatives. 
 
 IN the preceding le£ture I began to treat of the feveral kinds of improper 
 benefices, which are transferable only by the improper invefliture, or, 
 as the Englifli law fays. He in grant ; intending only to illuflrate their gene- 
 ral nature, without defcending minutely into particulars ; and of thefe I have 
 already mentioned the feudum de camera, and that de cavena. I call thefe 
 fiefs, even at the time I am now treating of, in conformity with the praftice 
 of the feudal writers : not with ftrid propriety, indeed ; ^ox feudum, proper- 
 ly fpeaking, fignifies a tenure of inheritance, and fuch were not yet introdu- 
 ced. But before I quit them, it will be proper to take notice of fome fub- 
 divifions of them, to be met with in the feudal writers. 
 
 I HAVE already obferved they were either gratuitous or officious, that is^ . 
 without future fervice, or with it. Of the firfl: kind there were two fpecies, 
 that CTiWcd feudum foldata, from the word folidus, which fignified a piece of 
 money, and was a gratuitous penfion, granted either out of the charity or 
 bounty of the lord, or in reward of pafl; fervices ; the other called feudum 
 habitationis ; which is liberty of dwelling in an houfe belonging to the lord, 
 in whom the property ft:ill doth, and the poiTeflion is ftill fuppofed to re- ■ 
 main f. Of the officious ones Corvinus mentions three \im6.%, feudum guar' 
 dia, feudum gaflcddia:, ^nA feudum mercedis. 
 
 The feudum guardia hath annexed to it the defence of a caflle, for the 
 fecurity of the realm ; and this differs from the caflle guard I have before 
 mentioned, in as much as that, where lands were given for the defence of 
 the caftle, it was a corporeal benefice, and transferred by livery and feizin ; 
 namely, by admitting the conflable into the caflle, and delivering him the 
 
 key 
 
 f Du Cange, voc. Soldata, et voc. Feudum. sediiicii.
 
 7^ L E C T U R E S ON THE L^ct. 8. 
 
 key thereof, and was an improper one only in refpe£l of its duration, as, in 
 the early times, it continued only a year ; but this I am now fpeaking of was 
 a penfion, paid out of the king's exchequer for the fame purpofe ; and was 
 of the fame nature with the modern falar jes of governors of garrifons f . 
 
 The fctidum gajlaldics was a penfion granted to a perfon for tranfading 
 the lord's bufinefs, as for being his treafurer, fleward, agent, or receiver. 
 Thefeudum mercedis was in confideration of being an advocate or defender 
 of the lord. Such are grants to lawyers pro confdio impendcndo ; and the fa- 
 iaries of the king's lawyers, and the folicitors for the crown J. 
 
 I SHALL next run over briefly the fevefal kinds of incorporeal benefices 
 which the law of England takes notice of, and explain their general nature. 
 And the firfl I fliall take notice of is an advowfon, which is a right a man 
 hath of nominating a proper perfoh to fulfil the duties, and to receive the 
 profits of an ecclefiaflical benefice. Thefe rights arofe thus. In the in- 
 fancy of the chrifiian church, when the clergy were fupported by the volun- 
 tary contributions of the people, the bifhop was chofen by the clergy and 
 people at large ; and this method was fo firmly eflablifhed, that when the 
 emperors became chriftians, although they made great donations of lands to 
 the church, yet they left the manner of cleftiou as they found it ; and fo it 
 continued in Rome until the year i ooo at lead. But thefe eledions, made 
 by the giddy multitude, were the occafions of infinite diforders. The va- 
 lue of thefe offices being encreafed, and the manners of the ecclefiaftics cor- 
 rupted by the acceflion of riches ; parties and fadions were eternally form- 
 ing, and fupported by all methods ; and when a vacancy happened, the con- 
 tefl was frequently not decided without bloodOied. It is no wonder that all 
 the fober part of the clergy, who were fcandalized at thefe irreligious prafti- 
 ces, and the emperors, who were concerned in the peace of their dominions, 
 concurred in remedying thefe evils ; which was at length effefted by ex- 
 cluding the laity, gradually, and by infenfible degrees, and confining the 
 cledtion to the ecclefiaftics. Many of the emperors, indeed, ftruggled hard 
 to get the nomination to themfelves, but the clergy proving too powerful 
 for them, they obtained,- at moft, but a power of recommendation ||. 
 
 In 
 
 f Coke on Liuleton, lib. 2. chap. 4. 
 X Du Cange, voc. GafValdus. 
 
 II Gibfon, Cod. Jur. Ecclef. Anglican, tit. 23.
 
 Lect. 8. L A W S OF E N G L A N D. 79 
 
 In the northern kingdoms the fame caufes produced the fame effefls, as 
 to the exclufion of the laity, but with more advantageous circumflances to 
 the rights of thefe princes. For as tlie lands they gave to the bifhops in 
 right of their churches were held of them, fo they gave the inveftiture ; 
 and there was a kind of concurring right between the clergy, who elefted, 
 and the king. He infilled on his right of giving the invelliture, but gene- 
 rally received their nominee, and granted it to him. 
 
 But after the time of Charles Martel, when the clergy were ftripped of 
 moft of their lands, things took a different turn. For when new grants 
 were made to the church by the king, he infilled, as feudal lord, on the ab- 
 folute nomination, and the giving invelliture, by delivering the llaff or cro- 
 fter, tbe emblem of his paftoral care, and the ring, the fymbol of his fpiri- 
 tual marriage with the church ; but thefe rights were oppofed by the 
 clergy, who were ftrongly fupported by the popes then fetting up for 
 being the feudal lords of all churchmen, and who hoped to derive, as they 
 did, great advantage from thefe diffentions. From the year 1000 to 1200, 
 great confufion fubfifled throughout all Europe, occafioned by thefe con- 
 tefls, until the popes in general prevailed ; but for four hundred years part, 
 and particularly fince the reformation, their power hath been on the dcr 
 dine ; and from this lafl: period the patronage or advowlbn of bifhoprics 
 hath been confeffedly in our king, as hath been the cafe in feveral other 
 kingdoms ; and though in England a form of eledion is ftill retained, it is 
 JIG more than a mere form |. 
 
 The advowfon, or patronage of inferior benefices, came in another way. 
 In order to underlland this, let us confider how diocefes came to be fub- 
 divided into pariflies. Antiently, I mean about the year 420, the bifliop 
 had the fole cure of fouls throughout his whole diflrid, and received all the 
 profits of it ; which he and the clergy diflributed into four parts, not exact- 
 ly equal ones.; but unequal, according to the exigences of the feveral in- 
 terefls to be confidered ; one to the bifliop, to maintain hofpitality, and fup- 
 port the clergy rcfidin^ with him, and the Chriftians. of other places, who 
 
 were 
 
 f Montefquieu, TEfprit de Loix, liv. 51. chap. 11. Bacon, liift. and polit. difc. on the 
 laws and government of England, ch. 59. Inett's h'ifi. of the Engliih Church, vol. 2. 
 <h. 2.
 
 Bq L E C T U R E S on the Lect. g. 
 
 were often forced to fly from perfecutlon, or travelled on their necefTary 
 concerns ; one for the building and repair of churches; one for the poor, 
 and one to fupport the inferior clergy, whom the bifliop ufed to fend to par- 
 ticular places, as his deputies, and to remove or recal at his pleafure. The 
 clergy who lived in the city where the bilhop refided, were fupported by 
 him in a collegiate way at firft ; until at length their particular fliares were 
 afcertained, and carved out of the general revenue of the church j and this 
 'was the origin of chapters \., ■ 
 
 To return to the country clergy. The manner in which they came to 
 have fettled eftablifliments was thus : It was ufual, as foon indeed as tithes 
 were eftabhfhed as a law, that is, before or about the time of Charlemagne, 
 for the bifliop to allocate to his vicar or curate in any diitrid, the whole, or 
 a part of the titlxes or other profits arifmg there j but when England, 
 France, and other countries were ravaged by the Danes and Normans, the 
 fury of thefe barbarous heathens fell particularly on the ccclefiaftics. Their 
 churches they burned, and themfelves they flaughtered without mercy; in- 
 fomuch that, when their devaflations ceafed, there enfued not only a great 
 fcarcity of clergymen, but fuch a want of means of proper fupport for them 
 (the old eftates of the church having been turned into military fiefs) that the 
 feudal lords were willing, for the fake of having divine fervice performed 
 in their diflrids, for the benefit of themfelves and their valTals, to alienate 
 part of their lands to the church, which was then in indigence, for the pur- 
 pofe of building houfes for the parfon, and providing a competent glebe for 
 him, and alfo for building new churches where they were wanted. Altho* 
 alienation was at this time entirely difellowed by the feudal cuftoms, yet the 
 necefTity of thofe times prevailed againfl: it in thofe inftances, cfpecially as 
 thefe fuperftitious people attacked, or ready to be attacked by an heathen 
 enemy, thought the lands fo given to be really given for military fervice, 
 as they were given for the fervice of God, the Lord of Hofl:s, who was to 
 fpeed their arms. However, the circumflances and opinions of that age 
 would not allow any grant, without an acknowledgment of the fuperiority 
 of the grantor; nor allow any lord to give any grant materially detrimental 
 to his military fief. Hence, as an acknowledgment that the lands fo granted 
 to the church proceeded from the bounty of the Lord, he was allowed to 
 
 norainatG 
 
 . I Gibfon, CoJ. Jur. Ecclcf. Anglican, tit. 23.
 
 Lect. g. L A W S -OF ENGLAND. 8i 
 
 nominate a clergyman to .the bilhop ; who, if he was qualified, was obliged 
 to admit him. But as the patron might prefent an improper pcrfon, and 
 fuch an one as the bifliop muft be obliged in confcience to reject ; and 
 might do this repeatedly, for any confiderable length of time, during which 
 the duties of religion would be neglected, it was, in after times, fettled, in 
 all countries, that the right of the patron's prefentation fnould lafl: only a 
 limited time. In our countries it is fix months ; after which time lapfed 
 from the vacancy, the bifliop's original right of nomination revives f. 
 
 But the cufloms of thofe ages not admitting of the alienation of any part 
 of a military tenure, but what was abfolutely necefTary, it followed that thefe 
 glebes were far from being fufFicient for the maintenance of a parfon. Thefe 
 grants, therefore, were not made without the confent of the bifhop, to allo- 
 cate, in aid of the glebe, the tithes of that precinft, to the ufe of the parfon. 
 And now the parfon began to have a permanent intereft for life in his parifh, 
 and a permanent cure of fouls therein ; but not exclufive of the cure of 
 fouls in the bifhop, who was concomitant with him in that point, though not 
 in the profits. For when the bifliop, for the good of the church, appropri- 
 ated a part of the revenues of the church to a particular perfon and his 
 fucceffors, which, for the public good, he was allowed to do, he could not, 
 however, divefl: himfelf, or his fucceflbr, of that general cure of fouls 
 through his whole dillrid, which was the eflence of his office. As the par- 
 fon, therefore, though named by a layman, was his deputy, he was in truth 
 (to fpeak by way of accommodation) his feudal tenant. From him he re- 
 ceived inftitution, which is the improper invefliiture ; to him he gave the 
 oath of canonical obedience, which is equivalent to the oath of fealty ; and 
 by him, or perfons appointed by him, he was indufted into his church, that 
 is, had livery and feizin given him |. 
 
 This was the oripin and nature of prefentative advowfnns, in which, 
 though a matter ecclefiaf^ical, the lay patron was allowed to have a temporal 
 and a valuable intereft : inafmuch as it might ferve for a provifion of one of 
 his children, or any other relation that was qualified for it ; and confequent- 
 !y be an eafe to him ; and as, at the time that thefe glebes were granted, 
 
 L mofl 
 
 t Ibid. 
 
 I Ibid, and tit. 30.
 
 8z L E C T U R E S ON the Lect. 8. 
 
 mofl fiefs were hereditary, at lead none were fufFered to be granted but by 
 thofe who had fuch (becaufe the lord fuperlor might elfe be difinherited) 
 this right of advowfon prefentative defcended to the heir. The church in its 
 diflrefs exceedingly encouraged and foflered thefe rights for a time ; but 
 when her circumftances changed, and, in ages when profound ignorance 
 prevailed both among the clergy and laity, many were the attempts to de- 
 prive the laity of their rights, and many the exclamations againft; the impro- 
 priety and impiety of fuch perfons pretending to name any one to an holy 
 office. But I do not find they ever thought of refloring to the laity the 
 glebes, in confidcration of which, for the neceffities of the church, thofe 
 rights were firfl allowed. 
 
 Thus much for prefentative advowfons, which, I hope, from what hath 
 been already obferved, will be fufficiently underftood for the prefent. I now 
 mufl proceed to collative advowfons, namely, thofe given by the bifhop, 
 which were of two kinds ; either abfolutely in his own right, or by lapfe, 
 when the patron neglefted to prefent ; which was in truth but a devolution 
 of the antient right he had parted with, to him ; and therefore, as there is 
 no fubllantial difference, they may well be treated of together. As the bifhop 
 in the cafe of lapfe, collates, that is, inftitutes in his former right in default 
 of the perfon who had the right of prefentation, I obferved before, that the 
 bifhop had ufed to grant to the country clergy a part or the whole of the 
 tithes of the precinfts they ferved in ; but when once, by the allowance of 
 prefentative advowfons, parfons had got freeholds in them, the example 
 became contagious, and much to the benefit of the church. Thofe parts of 
 the diocefe which ftill remained in the bifhop's hands were divided into 
 parifhes ; and the tithes of them, or at lead a confiderable part of them, 
 were affigned to the minifter for his life. I need obferve no farther of thefe, 
 than to fay, that they differed no otherways in their nature from the laft 
 mentioned, than that, as a patron had nothing here to do, there was no 
 prefentation, and that collation is, in the cafe where the bifliop hath the fole 
 right;, what is called injlitution in the cafe of a clerk prefented. 
 
 The third and lafl kind of advowfons are thofe called donatives, in the 
 giving feizin of which the bifhop hath nothing to do, fuch livings being pri- 
 vileged, and exempt from the jurifdidion of the bilhop, and vifitable by the 
 
 patron
 
 Lect. G. L a W S of E N G L a N D. Bs 
 
 patron only. IIow thefe exemptions arofe, when, at firfl, every place was a 
 part of a diocefe, and of the bilhop's cure of fouls, it will be worth while to 
 inquire. ITie bifhopsof Rome, aided by their great riches, and the fall of 
 the wellern empire, did, by purfuing a fettled plan for many hundred years, 
 with the greatefl: art and unfhaken perfeverance (temporizing indeed when 
 the feafon was unfit, but never giving up exprefsly any point that had been 
 claimcd)at length, inftead of being the firll bifhops in rank, attained to a ju- 
 rifdiftion over all the weft, and claimed a general cure of fouls, which made 
 the bifhops, indeed, but paftors under them. However, confcious of their 
 ufurpations, in order to eftablifli them, it was neceflary to deprefs the epifco- 
 pal order. .; » 
 
 They began firft with difmembering biflioprics, in order to found new 
 ones, on pretence of the churches being better ferved 5 and this they did 
 principally in Italy, where their influence was moft extenfive ; and that with 
 a view, by having a greater number of votes, to over-rule the determination 
 of the general councils. They did the fame, but more fparingly, for the 
 reafon aforefaid, in other countries, with the fovereigns ; who, in thefe cafes, 
 were really aftuated by the motive of advancing the public good, and pro- 
 moting religion. The next flep was more decifive. Their authority being 
 now eftablidied, they took occafion, on feveral pretences, to exempt from 
 the jurifdittion of the bilhops, feveral places within their diocefcs, which 
 they kept immediately under themfelves, to which they appointed clerks by 
 this way of donation, and whom they vifited by their legates, as their imme- 
 diate ordinary. The clergy, thus provided for, ferved as faithful fervants 
 and fpies to the pope, in all parts of the chriftian world, and were, next to 
 the monafleries, the firmefl fupport of his power. The fame praftice they 
 purfued with refpeft to bifhoprics, by exempting feveral of them in divers 
 places from the archbilhop of the province. And this was the origin of 
 donatives. But, in order to fliew the plenitude of tlieir power, the next 
 ftep they took was of a higher ftrain. They not only founded donatives for 
 themfelves, but for others, even of the laity ; fhewing by this, that all eccle- 
 fiaflical jurifdiftion and difcipline was entirely fubjeft to their will, and that, 
 ^t pleafure, they could transfer it to hands before judged incapable of it. 
 
 L 2 These
 
 84 L E C T U R E S ON the Lect. 8. 
 
 These two kind of donatives ftill fubfift in England, the latter in the 
 hands of fubjects, the former of the king as fupreme ordinary, fince the 
 pope's ufurped power was transferred to Henry the Eighth. I am fenfible 
 many common lawyers infift that the king of England was always fupreme 
 ordinary, and that nothing new was gained at that time, but only his old 
 authority, which the pope had ufurped, reftored to him. But what ftiall we 
 fay to the firfl; fruits and tenths ; which are certainly papal impofitions, and 
 comparatively of a modern date. The fame I apprehend to be the cafe of 
 the ordinary jurifdiftlon. As to the fupreme patronage, I allow it was, 
 originally, the king's. My reafon is, that I do not find in the antient church 
 any trace of a layman folely exercifmg ecclefiaftical jurifdidion, or enacting 
 laws for the church |. 
 
 In the apoftolic times all things were tranfafted by the faithful at large ; 
 in the next age, they fell into the hands of the clergy, all excepting the elec- 
 tion of bifliops, and approbation of clergymen. After the emperors became 
 chriflians, they publiflied indeed ecclefiaftical laws, but that was only giving 
 the fanftion of the imperial power to the canons the church had made; whofe 
 cenfures, when there were fuch multitudes of new and counterfeit converts, 
 were likely to have little weight. In the northern nations the cafe was the 
 fame. Canons were made by the clergy, and thefe were often enforced and 
 turned into obligatory laws by their general aflemblies, who had the legifla- 
 tive authority ; and if there are any inflances in thofe times of laymen ex- 
 crcifing ecclefiaftical difcipline as ordinaries, I own they have efcaped me. 
 I fpeak merely of ecclefiaftical difcipline : for as to things of a temporal 
 concern, fuch as wills, adminiftrations, marriages, tithes, &c. the authority 
 undoubtedly was from the king. But not as to matters entirely fpiritual, 
 fuch as concern the fali/fem aitinut \. 
 
 I THINK therefore the king's title to be fupreme ordinary, (lands better 
 fettled on the parliamentary declaration, and on the reafon of the thing, that 
 all coercive power fliould be derived from him, whom God hath made the 
 fuperintendant ; than on the afl"ertions of lawyers, that it always was fo. 
 Matters of fa<5l are to be determined by evidence, not by confidering what 
 
 ought 
 
 f Gibfon, Cod. Jur. Ecclcf. Anglican; tit. 34. 
 t Giblbn, lit. i. and 3.
 
 Lect. 8. L A W S OF E N G L A N D. 8^ 
 
 ought to have been ; and we need not be furprized to find, that an ignorant 
 and fuperftitious people allowed pradices, and a divifion of power m them- 
 fclves unreafonable. 
 
 In thefe donatives there was neither inftitution nor induftion. The pa- 
 tron gave his clerk a title by deed, on which he entered ; for the plenitude 
 of the papal power fupplied all forms. The patron was the vifitor, and had 
 the power of deprivations ; but what clearly fhews, in my apprehenfion, 
 that thefe donatives were incroachments on tlie epifcopal authority, is, that, 
 if once a common patron (for the king was faved by his prerogative) had 
 prefented his clerk, and he got inftitution and induflion, the donative was 
 gone for ever. The living became prefentative, and the bifliop's jurifdidion 
 revived. 
 
 I SHOULD next proceed to tithes, another kind of incorporeal benefice; 
 but this would carry me too great a length for the prefent difcourfe. 
 
 LECTURE
 
 86 L E C T U R E S ON the Lect. 9, 
 
 LECTURE IX. 
 
 Tithes-r-The voluntary contributions cf the faithful, the original revenue of the 
 church — The cjiablijhment of regular payments — The appropriations of the 
 church — The hi/lory and general rules of tithes in England. 
 
 THE next kind of incorporeal benefices taken notice of by the law of 
 England, that I (hall mention is tithes ; the New Teftament, as well as 
 common reafon, fays, that they who ferve by the altar, Jloould live by the altar; 
 but is filent as to the manner in which this fupport fhould arife. In the ve- 
 ry ftrfl: times, when their numbers were but few, and thofe confined to Jeni- 
 falem and its neighbourhood ; the chriflians fold all they had, and lived out 
 of the common ftock. But this lafted a very fhort time. When they in- 
 creafed to multitudes, that method was found imprafticable, fo that each 
 retained his pofleffions, and gave a voluntary contribution out of it at his 
 difcretion. This was the fund of the church ; and in thofe times of fervent 
 zeal in the laity, and fimplicity of manners in the clergy, it was found abun- 
 dantly fufficient, not only to fupport the miniflers, and their own power, but 
 alfo to build churches, and to do many afts of charity to fome of the pagans. 
 
 The revenues of the church went on continually encreafing to the time 
 of Conflantine ; and though by the Roman laws, no colleges, as they called 
 them, that is, communities or fraternities, unlefs they had the fanftion of the 
 imperial authority, could accept legacies or donations, yet, fuch was the de- 
 votion of the times, that many fuch private grants were made ; and the 
 principal churches obtained great acquifitions, not only in moveable goods, 
 but in landed eftates ; infomuch that fome of the perfecuting emperors were 
 thought to be as much inftigated to their cruelties by avarice, as by their 
 blind attachment to theii pagan fuperititionf. 
 
 In 
 
 f Father Paul on beneficiary matters, ch. 3. and ch. 6. Seldcn's hiAory of tithes, 
 ch. 4. fe(fl. I. Spelm, larger work ol" tithes, th. 6.
 
 Lect. 9. L A W S OF E N G L A N D. 87 
 
 In the fourth century, the reftraint being taken away, thefe largeffes 
 from the rich and fuperftitious to the church became much greater ; but 
 the general voluntary contributions from all who could Ipare, diminiflied, 
 the apparent neceflity for them being leflened ; and the zeal of the people, 
 which perfecution had kept warm and fervent, flackened from eafe and fe- 
 curity. The bilhops, who were the diftrlbuters, prided in vying with each 
 other in the magnificence of their churches ; and,, being now raifed to an 
 eminent rank in the ftate, were not fatisfied to live in fuch a manner as 
 contented the fimplicity of the antient fathers of the church ; fo that by the 
 year 400, the inferior clergy and the poor were, in many places, but in very 
 fcanty circumftances. This induced many of the pious to fix upon a cer- 
 tain rate out of their own annual gains to fupply thefe neceffities, and as the 
 tenth was what had been affigned to the Levites in the mofaical law, that ge- 
 nerally became the proportion. But as the payments of thofe tithes were . 
 purely voluntary, fo did the givers appropriate them in fuch manner as they 
 pleafed, and as they thought they were moft wanted f. 
 
 In Egypt, where, it feems, this praftice began, they were commonly gi- 
 ven to the monks, who had devoted themfelves to a religious poverty ; in II- 
 lyricum generally to the poor ; in other places to the inferior clergy of fuch 
 a diftrift, or, if the church itfelf was indigent, to the bifhop, for the ufe of 
 his church. The famous preachers about this time, particularly St. Ambrofe 
 and St. Auguftine, inforced this practice with all their eloquence, and infift- 
 ed on the levitical law of tithes as binding on chriflians. This had great, 
 but not general effefts. Some gave the tithe, others, of more zeal, gave 
 more, and others lefs ; and though thefe contributions began now to be 
 aided by the fpiritual arms of excommunication, yet were thefe only ufed to 
 oblige a man, in teftimony of his being a chrHlian, to make fome offering, 
 not to pay precifely the tenth, or any other portion J. 
 
 These payments of the tenth hitherto we fee were voluntary ; but there 
 foon came in another praftice, which, in particular places, made them com- 
 pulfory. It was ufual when a patron founded a church, in order for its fup- 
 port, to charge his lands with the payment of tithes to theminifter who offi- . 
 
 dated ' 
 
 f Seidell's hill, of tithes, ch. 6. and 7. Spelm. larger work of tithes, ch. 29. 
 X De non temerand. Ecclef. tra(S. Spelm. p. 3.
 
 88 L E C T U R E S ON the Lect. 9. 
 
 elated therein. This created a permanent right in the church, not by the 
 force of any general law, or canon (for all fuch attributed to thefe ages are 
 forgeries of a later date) but from the efpecial gift of the grantor, and the 
 power he had to charge his land. The earlieft authority that proves a gene- 
 ral right of tithes, through any country of Europe, is to be met with in the 
 council of Mafcon, held under king Guntram, who reigned in the fouth-eaft 
 parts of France, in the year 586. There the right of tithes, through all 
 his dominions, is acknowledged as an antient duty due to the church ; and 
 they are enjoined to be regularly paid. But it is obfervable, in the very 
 words of this law, that the tithes fo paid were not folely appropriated to the 
 clergy, but much of them applied to other charitable ufes, iinde Jiatuirnus, 
 lit decimaj ecdefiajlicas omnis populus inferat, quibusfacerdofes, aut in pauperiini 
 Jifuniy aut in captivorum redemptionem erogatis, fuis orationibus pacem populo ^ 
 falutem impetrant. Thus the kingdom of Burgundy was the firfl that efta- 
 blifhed the univerfal payment of tithes by a pofitive law. This payment, in 
 the other parts of France, was long after at pleafure, or by particular foun- 
 dation ; but was daily gaining ground, efpecially after the impoverilhment 
 of the church by Charles Martel rendered them more neceffary ; and his 
 grandfon Charlemagne was the firft that eftabliflied them by a pofitive law, 
 made in a general affembly of the flates, through all France ; and that as 
 due by a divine right, in the year 778. And as he and his fucceifors were 
 mafters alfo of Germany and Italy, the fame law and opinion foon paffed 
 into thofe countries |. 
 
 But as pofitive as his law Was, in the direftion of payment of them to 
 the bifliop or prieft, it was for a long time not univerfally obeyed, and where 
 it was obeyed, often Ihaniefully eluded, as appears by the laws of his fuc- 
 ceflbrs, and many ecclefiaftical canons framed for the rcdrefling thofe mif- 
 chiefs. For as a portion of the tithes was originally diflributed to the 
 poor, under this pretence, it was cuftomary for the fuperftitious laity, when 
 they granted the tithes, inflead of afligning them for the maintenance of the 
 miniftering, /'. e. the fecular cler'gy, to appropriate them to monafteries, 
 which were focieJ:ies of voluntary poor. Thefe appropriations, or confe- 
 crations, as they were called, became very numerous, both from the un- 
 bounded 
 
 t Montefquieu, I'Efprlt des loix. liv. 31. diap. 12. Selden of tithes, ch. 7- Father 
 Paul of benefices, ch. 11.
 
 LxoT. 9. LAWS OF E N G L A N D. 89 
 
 bounded veneration paid to tlic monks, and from the encouragement fuch 
 grants received from the fee of Rome, which looked upon the monaRic or- 
 ders as its faflcfl; friends, and was bent upon raifing them on the ruin of the 
 fecular clergy. But as the monks of thofe times were generally laymen, 
 and incapable of ferving the cure, it grew into a praftice for them, if any of 
 their own body was fit for the purpofe, to get him ordained ; or if they had 
 none, to employ a fecular prieft, 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 fubfiftence a ftipulated proportion ; and thus 
 came in the divifion of parochial tithes, into reBorial and vicarial; the for- 
 mer remaining in the employer, the latter in the employed, who did the duty \. 
 
 The fame pretence of appropriating the tithes to the poor gave a handle 
 likewife to many, when they found it neceflary to pay tithes, to grant them 
 to laymen in fee, under the like conditions and fervices as other fiefs ; and 
 many likewife were the unworthy churchmen, who turned the incomes of 
 their church into provifions for their families, by granting them in fief. 
 Thus, in procefs of time, were the minifliering clergy, and the real poor, for 
 whofe fupport the tithes were originally granted, in a great meafure (tripped 
 of them ; and they were converted either into lay inheritances, for fecular 
 fervices, or applied to the fupport of monafteries ; and both thefe abufcs 
 began under the fpecious pretence of charity. The latter, viz. the grants 
 to monks, w^as always favoured by the heads of the church ; and the for- 
 mer, in fpite of all their cenfures, prevailed, until, at length, it was found 
 neceflary to apply fome remedy to both. The evils were too inveterate to 
 be finally removed 5 but this temper was found out in the council of Late- 
 ran, held in 1215, when it was enafted. That all tithes which from time 
 immemorial had been given in fief might fo continue, but no more be 
 granted in that manner for the future ; and the appropriations to monafte- 
 ries were confined to three orders of monks who were looked upon as the 
 moft learned, and capable of furnifhing men fit for the duty J. 
 
 I SHALL proceed now to fay fomething of the fate of tithes in England. 
 That tithes had been paid in feveral parts of England during the hep- 
 tarchy, and eftablifhed by law in fome of its kingdoms, is undeniable j but 
 
 M the 
 
 ■\ Father Paul of benefices, ch. 14. 
 
 % Giannone's hill, of Naples, b. 19. chap. 4. \ 2.
 
 90 LECTURES ON the Lect. 9. 
 
 the firfl: who ordained them by law, through all England, was Ethelwolf, 
 in his parliament of the year 855 ; who had been himfelf, in his elder bro- 
 ther's life, defigned for the church ; in this imitating Charlemagne, at 
 whofe court his father had long refided. This may well be allowed, although 
 thofe authors that give us the copy of this law differ in the date, both as to 
 the time and place where it was made. But be that as it may, his fon 
 Alfred certainly made a law for this purpofe, to bind not only his own 
 Englilh, but alfo the new converted Danes, to whom he aifigned feats in 
 his kingdom, and whom he had fubmitted to the government of Guthrun. 
 Such laws were renewed by almoft every one of his fucceffors down to the 
 Norman conqueft ; an evident proof, that however zealous thofe princes 
 were for the fupport of the church, their pious intentions were but ill fe- 
 conded by their people. The feverity of the law of Edgar was remarkable, 
 and of itfelf fufficient caufe of their backwardnefs ; for it made the non- 
 payment of the tenth a forfeiture of eight -tenths. The prapofitiis of the king 
 and bifliop, that is, I prefume, the fheriff" and arch-deacon, were to feize the 
 fruhs out of which the tithes had been with-held, and when they were di- 
 vided into ten parts, one was given to the church that had been defrauded^ 
 another to the proprietor, and the remaining eight were divided between 
 the king and the bilhopf. 
 
 During thefe times appropriations of tithes, to other churches than the 
 parifli one, and alfo to monalteries, were frequent, here as well as on the 
 continent ; but, for fome time after the conqueft, the largefles to the 
 monks, with refped both to lands and tithes, encreafed confiderably, and 
 were continually encouraged by the popes, the kings, the bifliops, and 
 nobility ; by the popes for the reafon already given ; by the bifliops and 
 nobility, who were all Normans or foreigners, out of partiality to their 
 countrymen (for fuch the monks generally were) and out of contempt and 
 hatred to the fecular clergy, who were univerfally Englifli ; by the kings, 
 not only for this lafl; mentioned caufe, but for another peculiar to them- 
 fclves. The government of the Saxon kings was remarkably moderate, 
 and their laws and conRitutions extremely favourable to the liberties of the 
 people. The firft race of Norman kings pretended, indeed, a right to the 
 
 throne, 
 •j- Selden on tithes, chap. ?. Bacon, hirt. and jiolit. diCc. on the Lav.'s and Govem- 
 mtnt of England, chap. 59, L. 1. Angl. Sax. ap. Wilkins.
 
 Lect. 9- LAWS OF ENGLAND. 91 
 
 throne, and every one of them fwore to obferve the Saxon laws, with fuch 
 emendations as had been confented to in parhanient by Wilham the Firft. 
 But the conduft of every one of them fliewed how little regard, they had to 
 that obligation, and how bent they were on fetting themfelves free from 
 all reftraint, and to deflroy all traces of the old Saxon laws. For this pur- 
 pofe it was abfolutely neceflary to deprefs the fecular clergy ; v;ho, in thofc 
 times of ignorance, were the only law^'Crs ; infomuch, that, in William the 
 Second's reign, it was faid, nulhis clericus, nlfi caufidicus ; and, to render 
 them imfit guardians of thofe privileges, the kings were refolved to tram- t-^^^t^ 
 pie upon them. For this end, a new language and nev/ forms of proceed- 
 ing were introduced into the courts, the fecular and ecclefiaftical jurifdic- 
 tions, which had been united, were feparated; and the clergy were baniflied 
 from the temporal courts, and the greatefl; part of the bufmefs which for- 
 merly had been tranfafted in the country courts was transferred to the curia 
 regis, under the immediate infpe£lion of his judges f. 
 
 Thus were the fecular dergy daily reduced in circumftances and impor- 
 tance, while the monafteries flouriflied on their downfall. However, about 
 the time of Henry the Third (for it is hard precifely to fix when it became 
 an cillowed maxim of the Englifli law) all tithes arifing in any parifh were, 
 of common right, payable to the prieft of that parifli, unlefs they had been 
 previoufly appropriated to fome other prieft, or monaftery, either by a pofi- 
 tive appropriation appearing, or by prefcription where that was loft, and 
 that no layman could prefcribe againft the payment of them. I fay no lay- 
 man, for with refped to ecclefiaftics, the cafe was otherwife. It had, in- 
 deed, been a controverfy in France feveral centuries before, whether the 
 lands of a church or monaftery fhould pay tithes to the parifli minifter 
 where they lay ; but it was determined by the better opinion that they 
 fhould. However the biihops of Rome, in complaifance to their friends 
 the Monks, granted to many monafteries an exemption from tithes for their 
 lands. And thefe are the lands, which we fee at this day in the hands of" 
 laymen difcharged of tithes, by virtue of a ftatute in the reign of Henry the 
 eighth ; before 1 proceed to which, it will be proper to take notice of what 
 a 7nodus is, as they were introduced in thofe early times. 
 
 M 2 A 
 
 t Brady, Appendix to his hift. p. ly. Carte, liift. of England, vol. r. p. 441.
 
 92 LECTURES ON the Lect. 9. 
 
 A MODUS, then, is a compofition for tithes in kind, within a certain dif- 
 trict ; whereby the layman is difcharged from rendering his tithes, on hi? 
 paying to the parfon, in lieu thereof, what the local cuftom of that place 
 direfts. Thefe compofitions were originally for the nnitual benefit of the 
 clergy and laity ; that one might have a fettled certainty what to receive, 
 and the other what to pay ; and was, while the equivalent continued to 
 bear any reafonable proportion to the value, an excellent means to prevent 
 yearly difputes between the minilter and his flock ; but as moft of them are 
 fixed at certain rates of money, the change of its value hath, in all thefe 
 cafes, greatly impoveriflied the parochial clergy, efpecially as many of them 
 grew up into a prefcription, by the negligence of the clergy, without an 
 original compofition. Thefe modufes have, likewife, not a little hurt the 
 fpiritual jurifdiftion ; for as their courts paid little or no regard to them, as 
 being againft the canon law, if the original compofition did not appear to 
 have the bifliop's authority, by being found in his regiftry, the temporal 
 courts, wherever one is pleaded, fend a prohibition to the ecclefiaftical one, 
 and referve the tryal to themfelves, by a jury of twelve men, as the legal 
 judges of the cuftom f. 
 
 When Henry the eighth threw off the pope's fupremacy, great was his 
 danger both from abroad, and at home, particularly from the monafteries. 
 A refolution therefore was taken foi- fuppreffing them, and applying their 
 revenues to more ufeful purpofes. The intention of Cranmer, at leafl, was 
 to reftore the tithes to the parochial clergy, and out of fome part of the 
 lands to found new bifhopricks, and for other religious and charitable pur- 
 pofes ; the remainder to be united to the royal demefnes to enable him to de- 
 fend his realm without burthening his fubjeds with fubfidies. But little of 
 this kind was done. Five or fix bifhopricks, with very poor revenues, were 
 erefted, and the reft, both of lands and tithes, were diftributed to the laity 
 ^in whofe hands they ftill remain, partly out of prefent political views, 
 but principally from the extravagance of that king and the indigence of his 
 fucceffors, concurring with the avarice of their courtiers. As to the lands 
 the abbots held difcharged of tithes, the parifli minifters right to them would, 
 by the common law of England, have revived as foon as they got into lay- 
 hands ; as it would have done before, if the abbot had aliened with the con- 
 
 fent 
 
 f Seidell on tLtlies, cliap. 1 4.
 
 Lect. 9- L A WS OF EN GL A N O. 93 
 
 fent of the convent, and this was the cafe of the lands of the lefler monaflo 
 ries. But when the greater ones were diflblved by the a£t of 31ft of Henry 
 the eighth, it was exprefsly provided, that the king and his grantees fliould 
 enjoy thofe lands, difcharged from tithes, in as ample a manner, as tlie ab- 
 bots held them before that time. Thus became a great part of the tithes of 
 the kingdom, which by the common law of England were the legal maintcr 
 nance of the parochial clergy, lay fees, and inheritances, as they continue 
 at this dayf . 
 
 Tithes are of three kinds, pradial, perfonal or mixed, Prasdial, are the 
 fruits arifing- immediately from the ground, as all forts of grain, hay, un- 
 derwoods, fruits- of trees, hops, faffron, hemp, flax, and fuch like. Mixed, 
 which arife from cattle nouriflied by the ground as their young, colts, calves, 
 lambs, pigs, or their productions, as milk, cheefe, butter, &c. Thirdly, 
 perfonal, which arife from the labour and induftry of men ufmg any mer- 
 chandize, or manual occupation, and is the tenth part of their clear gain.. 
 
 The two firft had riieir foundation in the law of Mofes, the lafl was in- 
 troduced and ftrongly inforced by the canon law, nay fo Ihamelefs were fome 
 of the canonifts, as to infill that harlots were obliged to pay the tenth of their 
 infamous gains ; but this latter kind has had little effeft in England, except 
 by the local cuftoms of fome particular places J. 
 
 As to what things are tithable or not by our law, it may. not be amifs to 
 lay down fome general maxims concerning them. 
 
 First then, as to prsdial tithes ; Regularly, they are due only out of 
 things that encreafe annually, ftmul irfemel, and therefore except by fpecial 
 cuftom, mines, minerals, chalks, ftones, flates, turfs, being part of the foil, 
 and not increafmg annually, are not tithable ; but this rule admits of fome 
 exceptions-, of which I fliall jufl mention two. Saffron, which encreafes 
 from three years to three years, is yet tithable ; and fo is underwood, that 
 is, all trees cut under twenty years growth. The tithes of trees occafioned 
 many contefts between the clergy and laity in England, the one exa(5ling it 
 
 by 
 
 t Carte's hift. of England, vol.5, p. 1%^, 145, 148, 149. Lord Herbert's life and. 
 reign of Henry VIII. p. 186. et i'eq. ap. Kennet. 
 
 X Gibfon, Cod. Jur. Ecclef. Anglican, tit. 35. Hume, vol. I. p. 51.
 
 94 LECTURES ON the Lect, 9. 
 
 by their canons, and the commons in parliament conftantly remonflrating 
 againfl it. At length it was fettled by parliament, that none (hould be 
 exempted but timber above twenty years growth, as being fit for building. 
 But this flatute is fo conflruded, that if the trees be not of the nature of 
 timber, they are tithable, though above that age, as bufh, birch, and the 
 like ; but thefe, if for the fcarcity of other timber, they are ufed in build- 
 ing, as beech is in Duckinghamfhire, they are there exempted. 
 
 As to mixed tithes, the rule is, that things ferx natures are not tithable. 
 Therefore filh, pheafants, partridges, rabbits, deer, bees, and fuch like 
 are not ; but feveral of thefe, if reclaimed, have been adjudged to be fo, as 
 bees in a hive, and the fame reafon holds as to pigeons in a dove houfe ; 
 though the opinion of common lavi^ers is, that they are not tithable, if 
 fpent in the houfe, and not ufed for fale. 
 
 But what fliall we fay for barren cattle, from whom no yearly profit 
 arifes ? Shall the parfon receive no benefit whatever from them, and fliall it 
 lie in the power of the occupier, by employing all his land in feeding no- 
 thing but barren cattle, to leave his minifter without fupport ? Certain it is, 
 whatever the modern praSice and opinion may be, that by the befl; autho- 
 rities of the antient lawyers, agiftment was due to the clergy which was the 
 tenth part of the value of the lands, or the twentieth, which by cuftom, in 
 moft places, was generally paid, if the proprietor depafliured the whole year, 
 or lefs, according to the time and quantity of the cattle, faddle horfes, or 
 cattle for the plough, only excepted f. 
 
 Thus much may fuffice for the hiflory and general rules of tithes, the 
 fecond fpecies of incorporeal rights, to which I may add, as much of the 
 fame nature, and founded on the fame reafon, what is called mimjiers money 
 out of houfes, in cities and towns, where there are no tithes, which the aft 
 of parliament, of the 17th and i8th of Charles the fecond, hath reftrained 
 to the twentieth part of the value of houfes, as valued by a commiflion trom 
 the Lord Lieutenant and fix of the council. 
 
 t Wood, Inftitute of the Laws of England, fol. l6l. etfeq. 
 
 LECTURE
 
 Lect. 10. L A W S OF E N G L A N D» 95 
 
 LECTURE X. 
 
 I 
 
 The right of Seignory and its confequences — The right of Revcrfton — Rent feck 
 —Rent charge — The nature of diftrefs, as the remedy for recovering feudal 
 duties. Obfervations on diflreflcs in general. 
 
 HAVING fpoken of tithes and advowfons, two kinds of incorporeal 
 benefices that arofe in thofe antient times, I come now to treat of 
 feignories and their confequences. A feignory is an incorporeal right and 
 intereft ftill remaining in the lord, when he parts with his lands, in benefice 
 to a tenant. Now the rights of a lord, in refpeft of his feignory, may be 
 confidered in two ways, either as the fervices were due to the lord from 
 the /i^r/oK of the tenant, ox ixovaxki^ lands. He hath therefore, in virtue 
 of his feignory, a right to all thofe perfonal duties which flow impliedly from 
 the oath of fealty; fuch as to receive warning from his tenants of any injury 
 done, or impending danger to his perfon, his dignity, or feignory, to receive 
 faithful advice from them when called upon, and to have his fecrets faithfully 
 kept by them ; to be the judge of their controverfies, and the leader in war 
 of fuch of them as hold by military fervice. For thefe barbarous people 
 had no idea of dividing power, but always entrufled the civil and military 
 fword in the fame hands ; whereby they avoided the dangers and diforders- 
 that more poliflied and richer nations have ever been expofed to, name- 
 ly, of having the civil and legal authority fubverted by the military power. 
 And fo ftria was the bond between lord and tenant, that the latter could in 
 no wife, in point of judgment, decline his lord's jurifdidion, by refyfing him 
 as judge on account of partiality. Such a charge was a breach of fealty on- 
 the vaJTal's part, and no fuch prefumption could be admitted by that law, 
 which looked upon the lord as equally bound by the oath of fealty, though 
 not taken by him, as the tenant was \. 
 
 By the Roman law, a fufpefted judge might be refufed by the fuitors for 
 
 almoft all the fame caufes, and grounded moftly upon the fame rcafons, for 
 
 which 
 4" Matlox, Baronia Angl.
 
 56 L E C T U R E S ON the Lxct. 10. 
 
 ■which jurors, who in our law arc judges oftbefafl, may be challanged at this 
 dav. But the feudal cufloms admitted no fuch fufpicions as to the lord, and 
 therefore in the Englifli law, no judge, however clearly interefled in the 
 caufe, can be challenged. This maxim once eflabliflied, it was neceffary, 
 however, for the fake of juflice, that it fliould admit of fome qualification. 
 The ciD'clJors in Germany, who affifted the lord in judgment, from whom 
 came, in after time, the pares curia, were this qualification. But as thcfe 
 were not judges in all feudal caufes, but in fomc the lord alone continued 
 fole judge ; fome remedy was here to be applied, and on the continent and 
 in England, they proceeded differently. On the continent, the king, or fa- 
 perior lord, appointed a cojudge, or affelfor. In England the fuitor, by ap- 
 plying to the king's courts was empowered to remove the caufe thither ; 
 which hath been one great occafion of thefe inferior courts of the lords 
 dwindling to nothing f. 
 
 As to the right the lord liad in the land by virtue of his feignory, the 
 
 principal, and upon which his other rights out of the land depended, was 
 
 his rcverfion. A reverfion is that right of propriety remaining in the lord, 
 
 during the continuance of the particular eftate of poflefTion of the tenant ; 
 
 whereby he is entitled to the fervice during the duration of the term, and 
 
 to the poffefTion itfdf, when it is either expired, or forfeited. Hence it 
 
 appears that the fealty and fervices of the tenant are incident to the lord's 
 
 reverfion. Out of thefe reverfions may be carved another incorporeal 
 
 eftate, called a remainder, which is a particular eftate dependant upon, and 
 
 confequent to a prior particular eftate ; as if lands be granted to A. for five 
 
 years, and afterwards to B. for life. In this cafe A. hath a leafe for years, 
 
 B. a remainder for life, and the reverfion remains in the grantor. In our 
 
 law, remainders, and the particular precedent eftate on which they depend 
 
 are confidered as making but one eftate ; and fo, in truth, they are with 
 
 refpeft to the reverfioner, though not to each other. Therefore they muft 
 
 both pafs out of the grantor at the fame time, though it is not abfolutely 
 
 necefl'ary that the remainder ftiould veft in the grantee at the creation of the 
 
 precedent particular eftate; for a remainder maybe good which depends on a 
 
 contingency, as if a remainder, after a leafe for life or years to A, is limited 
 
 to the eldeft fon of J. S. This is a good remainder, but a contingent one, 
 
 depending 
 I 4. Inflit. s68. Scroggs of Courts Baron, p. 56.
 
 Lect. 10. L A W S OF E N G L A N D. 97 
 
 depending on tlie birth of J. S's fon during the continuance of the term of 
 A ; for the remainder being but one eftate with tlie precedent particular 
 rne, and only a continuation of it, mufl: commence inftantly when it de- 
 termines. Or, if after-a leafe to A, a remainder is limited to the heirs of 
 J. S. this is a good contingent remainder, depending on the event of J. S. 
 dying during the particular eftate. For it is a maxim of the Englifli law. 
 Nemo eft hares viventis. 
 
 To return to reverfion?, I mentioned fealty and fervices as incidents of a 
 reverfion ; but we mufl diflinguifh that fealty is an infeparable one, which 
 the fervices are not ; for the tenure being from the reverfioner, and fealty 
 necefiarily incident to every tenure, it is impofTiblc they iliould be feparated. 
 A grant, therefore, of feahy, without the reverfion, is void; and the 
 grant of the reverfion carries tire fealty with it. But the cafe is otherwife as 
 to the fervices ; for the fervices may be granted without the reverfion, and 
 although the reverfion be granted, the fervices, by fpecial words, may be 
 excepted |. 
 
 It will be now proper to fpeak of the remedy the reverfioner hatli for the 
 recovery of his fervices, if they are not paid. In the antient times the te- 
 naht was, at all the due tinles, 'at his peril obliged toperform his fervice ; 
 for as each the fmalleft failure was a breach of his fealty, his tenancy was 
 thereby abfolutely forfeited, and this long continued to be the cafe in mili- 
 tary tenures. But as the defence of the realm was not concerned in the 
 focage holdings, but only the immediate interefl: of the lord, it was thought 
 too hard, that every, perhaps involuntary omiffion, fhould induce an ab- 
 folute forfeiture ; when the lord, where his dues were certain, might receive 
 an adequate recompence. Cuflom, then, introduced the method of dijlrefs^ 
 \\\ imitation of the Roman law, as the proper method to recover an equiva- 
 lent for the damages he fuflained by the non-performance of the duties. 
 And afterwards, when the perfonal fervice of the military tenants came to 
 be commuted into a fum of money called efcuage, diflrefs came to be the 
 regular method of recovering that and the other fruits of the military tenure; 
 the damage the lord fuftained being now capable of a redudlion to a cer- 
 tainty | 
 
 N The 
 
 f Coke on Littleton, lib. 2. chap. 12. § 215'. 
 
 X Madox, Antiquities of the Excheq. vol. i. p. 652.
 
 98 LECTURES ON the Lect. 10. 
 
 The introduftion of diftrefs on focage tenants was thus : When the ab- 
 folute forfeiture was thought too fevere, the firfl: ftep was, that the lord 
 fhould enter, and hold the lands till his tenant had fatisfied him as to his 
 damages ; but as this feizure frequently difabled the tenant from making 
 that fatisfaftion, efpecially if he'had no other lands, this, after fome time, 
 was thought ftill too rigorous, and in its Head was fubflituted the feizure of 
 the cattle, and other moveables found on the land, and the detention of 
 them as a pledge, until the damages were anfwered ; which is what we call 
 di/iraining. This was a fufficient fecurity to the lord, as it rarely happened 
 but that there was fufficient found to anfwer his demand for one failure; and 
 the tenant was not (as not being deprived of his poffeflion) reduced to an 
 incapacity of paying his rent of fervices, and thereby recovering his pled- 
 ges. Hence all feudal rents, or, as our law calls them, rent fervices, (be- 
 ing the fervice the tenant pays to the lord, in confideration of the land he 
 holds from him) are diflrainable f . 
 
 But there was another fpecies of rents in our law not diflrainable ; which, 
 therefore was called reddiius ficcm, or rent feck. This was not a feudal fer- 
 vice, not being paid from a tenant to his lord, and was thus : WTien a 
 man, keeping ftill his land in himfelf, grants a rent thereout to a ftranger, 
 the grantor is juftly bound by his grantee; but the grantee, not being his 
 lord, cannot have this remedy. For the remedy of diftrefs being fubftituted 
 in the place of the lord's right of entry, could not be extended to a 
 flranger, who never had that right. And this v/as originally the only kind 
 of rent feck; but the ftatute called quia emptores terrarum, introduced ano- 
 ther fpecies of rents not diftraifiable, by converting rent fervices into rents 
 feck. The hberty of alienation without the confcnt of the lords having been 
 allowed before that ftatute, it became cuftomary for a tenant who fold his 
 land, and parted with his whole eftate in it, to referve the tenure of tlie 
 lendec, not to his fupperior lord and his heirs, but to himfelf and his heirs ; 
 whereby he retained many advantages to himfelf, by continuing the vendee's 
 lord, fuch as the right of efcheat, if the tenant died without heirs, and the 
 benefit of the wardfliip and marriage, if it was held by knight's fervice. 
 Now a rent referved upon fuch a fale to the vender, was, as he continued 
 the vendee's lord, a rent fervice, and confequcntly diftrainable \. 
 
 But 
 
 •|- Coke on Littleton, lib. 2. chap. 12. % Ibid.
 
 Lfxt. ro. L A W S OP E N G L A N D. 99 
 
 But this prafl'ice, though highly ufeful to the fellers, was of confiderable 
 detriment, not only to their lords, who thereby frequently lofl the fruits of 
 their tenures, but indeed to the whole military policy of the kingdom. It 
 «-as enaiSted, therefore, in the eighteenth of Edward the Firft, by the fta- 
 tute above mentioned, that whenever a man aliened his whole eftate, the 
 alienee fliould not hold from him, and be his tenant, but from the fuperior 
 lord, and be the lord's tenant direftly ; and that by the fame ferviccs, by 
 which the alienor had holden. The alienor, then, by this llatutc, ceafing to 
 be lord, and his right of reverfion clearly gone, if he referves a rent on fuch 
 alienation, he cannot diftrain for it, and it is a rent feck. 
 
 These rents feck, therefore, were of two kinds, one arifing by grant, 
 which was the mod antient, the other by refervation, when a man aliened 
 his whole eftate. For if the whole eftate was not gone, but a rever- 
 fion remained in him, a rent referved was ftill, on account of that rever- 
 fion, a rent fervice ; as if A. gave lands to B. and the heirs of his body, re- 
 ferving rent. As this eftate tail, although it might continue for ever, yet 
 was capable of determination by the failure of that iffue, fuch rent was dif- 
 trainable, for that rcafon, and alfo becaufe, by the ftatute which gave 
 force to fuch eftates tail, the reverfion was faved to the donor. But if he 
 had made a leafe of life or years, or a gift in tail, and had, at the fame 
 time, conveyed over the remainder in fee, fo that his reverfion was gone, a 
 rent referved on fuch a grant wisfeck. 
 
 The inconvenience attending thefe rents feck, in their not being diftrain- 
 able, introduced another fpecies of rents called rent charges. Thefe are 
 rents feck, armed with a power of diftrefs by the fpecial agreement of the 
 parties ; and are of tvi^o kinds, as the former are created either by grant, 
 or refervation. Thofe by grant, which were the only fpecies of rent charges 
 before the ftatute, were thus ; as if I grant out of my lands, keeping them 
 fl;ill in myfelf, a rent for years, life, fee tail, or fee fim.ple, and give my 
 grantee a power to enter and diftrain for the rent. It will be by refervation; 
 if I referve to myfelf a rent upon a conveyance in fee fimple, or upon a gift 
 in tail with a remainder over in fee, or upon a leafe for life or years, with a 
 remainder over in fee, and it is covenanted that I ftiall have a right to enter 
 and diftrain for the rent. The power of diftrefs, therefore, in rent charges 
 
 N 2 is
 
 loo 
 
 LECTURES. ON the Lect. roi 
 
 is good only by the exprefs provifion of the parties, not by the forceof the 
 general lawf. 
 
 Antiently it was a doubt whether a rent charge could be referved upon 
 a deed poll; to underfland which, it will be neceffary 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 ad and words of the grantor 
 only ; and therefore the deed belongs to the grantee, and there is no coun- 
 terpart in the hands of the grantor ; becaufe the grantee binds himfelf to 
 nothing towards him. Whereas, in an indenture, every claufe is the aft 
 and words of both. They are mutually bound to each other, and therefore 
 there is a counterpart in the hands of each party. Now if A. by deed poll, 
 granted lands m fee to B. referving rent, with a claufe of diftrefs, it was 
 doubted whether this claiJe was not void, and the rent a rent feck ; be- 
 caufe as the lands by A's grant was in B. it was apprehended they could not 
 be charged with it without an exprefs covenant from him ; as in the deed 
 poll he was a party merely paffive. But it is now held, and that very equi- 
 tably, that fuch a refervation can i-aife a good rent-charge ; for his accept- 
 ance of the deed upon the delivery is an a£t fufficient to fhew his affent to 
 take it on the terms therein contained ; and nothing can be more reafonable 
 than that whofoever takes a benefit fliall take it under fuch conditions, and 
 no other than fuch as the donor intended. 
 
 Thus have I endeavoured to explain the nature of the three feveral kinds 
 of rents in our law, of which only rent fervice is properly feudal; but upon 
 account of the affinity of their nature, I thought proper to join them here. 
 It wUl be proper now to fay fomething concerning the nature of dijirefs, as it 
 was the remedy for recovering the feudal duties in thefe kingdoms. 
 
 Distresses were not only taken for rents, and other fervices referved, 
 but alfo to oblige perfons to appear in courts of juftice, or to raife fines, and 
 amerciaments inflided on them. This likewife arofe from the feudal law, 
 as by that the doing fuit and fervice at the lord's court was one of the duties 
 attendant on fealty.. 
 
 But there is another kind of diflrefs allowed by our law, arifmg neither 
 
 from the feudal contra^, nor the exprefs flipulation of the parties, but 
 
 from 
 f Coke, ut fupra.
 
 Lect. 10. L A W S OP E N G L A N D." loi 
 
 from the deliHiim, or negligence of a ftranger. It is called a dijlrefs for da- 
 mage feaf ant, and is a feizure of the cattle, or any other moveable of a 
 ftranger, trefpaffing upon or damaging my ground. The law in this cafe 
 will not put me to my aftion againft the proprietor, whom perhaps I may 
 never difcover ; but has provided a fcjlimtm remedium for me, by way of 
 diftrefs ; and this diftrefs is more privileged than others, for it may be 
 taken in the night-time, which other diftreffes cannot ; becaufe, otherwife, 
 the cattle might efcape, and the goods be removed, and fo the party inju- 
 red remain without remedy. 
 
 Many and grievous were the extortions and opprefTions of the antient 
 Englifli lords in their taking diftreffes, during the troublefome reign of Hen^ 
 ry the'ThirdifOr flie*" remgdyihg whfch 'many wife regulations were made by 
 the. ftatute. of Marlebridge and others.- For they* not only.diftraih'ed in 'a 
 moft unreafonable manner for the fmalleft duties, but diftraine(f where no- 
 thing was due ; and frequently even out of their fees ; and to deprive the 
 parties injured of legal remedy, drove them into another county, or inclofed 
 them in a caftle, or would not fuffer their bailiffs to permit a replevin +, 
 
 Since I am on this head of diftreffes, it will be proper to make a few 
 obfervations, what may be legally diftrained, ivhen, and where, and how a 
 diftrefs is to be demeaned, and wliat remedy the perfon wrongfully diftrainr 
 ed hath to .recover his property. 
 
 Ff RST then,, nothing can be diftrained but moveables, and fuch as may 
 be reftored in the fame plight. For the diftrefs is in the nature of a pledge, 
 to be reftored on due fatisfaftion made ; therefore nothing fixed to the free- 
 hold is diftrainable, as doors, windows, furnaces, &c. for thefe being af- 
 fixed thereto, 'are pSrt "of the" freehold, and cannot be feparatdd thence 
 without damage. Therefore, a finith's 'anvil-,, though not-aftuiliy "flxed, or 
 a millftone removed m order to be picked, are not fubjed to diftrefs ; for 
 the one is, in law, ftill part of the fliop, as the other is of the mill. Hence^ 
 iikewife, money is not diftrainable,. unlefs it be in a bag ; becaufe, otherr 
 wife, it cannot be known, fo as to return it in the fame plight. For the 
 
 fame 
 t Madox, Antiq. of tlie Excheq. chap. 13. The Statutes at Marlebridge, ap. Ruff-, 
 head, vol- i. p. 30. —
 
 102 LECTURES on the Lect. io. 
 
 fame reafon, by the old law, corn in flieaves, or in ftacks, or in a barn, or 
 
 hay in cocks, or in a loft, could not, for fear of damage in removing. 
 
 ^t/U. c /V ^ That however hath been fince altered by ftatute, but corn or hay on a cart 
 
 ^^„ ^ uy^ could be dillrained by the old law ; for they being, in fuch a cafe, found in 
 
 'ji jl'^^,^^,^ ji^ a fituation fit for removal, might be trartfported from place to place without 
 Z^,^^ ^ any probable danger of damage, or diminution. 
 
 ' ^"^ ^ ^ -Secondly, The inftruments of a man's livelihood, as the tools of a tradef- 
 f^mt^^^.^.^^^ -man, the books of a fcholar, the plough-cattle of a ploughman, S:c. can- 
 ^*^ 2"^f •'^ j^ot l3e dillrained where any other diltrefs is to be found ; and this for the 
 :^^*^> ^*^p/ particular fafety and benefit of individuals. But this holds not in the cafe 
 ^,<^W, »— - of damage feafant ; for there the identical thing that did the trefpafs, and 
 
 that only, muft anfwer for it. ^^t**- :»i^— '..^-^i-*-' ^ ^,^^<^^c^^^^-^ 
 
 Thirdly, Things fent to public places of trade are privileged, for the 
 pviblic benefit of the realm, as cattle in a market, corn fent to a mill, cloth 
 in a taylor's fhop, yarn in a weaver's houfe. For it would put a total (lop 
 to commerce if thefe were anfwerable for the rents of fuch places. 
 
 /iC (P-.-'^tyttc, Fourthly, "What is in the cuftody of law is not diftrainable, for it would 
 
 I / ^^^ «-r^ ''~^ be an abfurdity that a man fhould have a right by law, to take things out of 
 
 ^: £^£.^^1-^ the cuftody of the law itfelf, fuch as goods already diftrained, or goods taken 
 
 .^y^*^*-^ iin execution, or feized by procefs at the fuit of the king. , 
 
 ;* ^^*, ^'^.^^'^^'^ AU ^ y^.^'h^^ ysd^/^ Z-:.^t^ ^^i*-- X^.j ^^- ^^^^ r^^y ^/ r^L^-t^ 
 
 Fifthly, Things -in manual pofleffion of another, are, for the time, 
 privileged, as an ax in a man's hand, or the horfe I ride on. But for 
 damage feafant, as I faid before, every thing is diftrainable ; for the thing 
 itfelf which did the damage, is the pledge of the fatisfaftion, and the only 
 one. y^' ^^^ y.p^*^^^ ,aC <f4,,-^-- ^1=. p^.>*-— ^^ -^ ^'*->^ 
 
 Next let us fee how and inhere they may be taken. The diftrefs, then, 
 fhould not be exceflive, as an ox fliould not be taken for twelve pence, 
 where other fufficient diftrefs might be had, or two flieep where one was 
 fufficient ; but for damage feafant, though ever fo little, the whole may be 
 taken ; and likewife for homage, fealty, or the wages of members in par- 
 liament. As the intereft of the whoie community is concerned in thefe, no 
 
 diftrefs 
 
 ^^>-*^
 
 Lect, 10. LAWS OF ENGLAND. 103 
 
 diftrefs can be exceflive. No diftrefs can be taken in the king's highwa y, /^ // ^"^ "^ ' 
 for it Is privileged for the public ufe of the nation. Neither can any diftr efs ^^ /^''■^ -^'^t^ 
 betakenbynight, unlefs for damage feafant ; for as no tender of rent, or ,r^ ' co^-^l^ <^t^-— 
 other duty, can be made, or acceptance enforced but in the day-time, per- A'-//^ '^^^'^'^ 
 haps the tenant may, in fuch cafe, be provided, and ready to tender j^' /^yA'^^'-''^^ ^ 
 his duties the fucceeding morning, and thereby fave his chattels. Laftly, ,^,^. ^y*^^"^^' 
 by the common law, n o man could diftra i n out of his fee , unlefs when co- /^/^^ ^^^f*^ /^U^ 
 ming to diftrain he had the view of them, and they were driven off to pre- i^*^^*": ^/•*--- ^^ 
 vent him. But th is hath been ahered by ftatute, and now a landlord may fol- .-j^^^^' '^ -^ 'f 
 low his tenant's cattle, if conveyed by his leffee off the land, and diftrain them -t 4<^^^^ '*^^ 
 within twenty days. 
 
 As to the manner of demeaning or managing the diftrefs, it is the duty of /^^ fCy/ '^-^ /^ 
 
 the diftrainor to carry them to a pound, that they may be in the cuftody of --^ t -^ v^/e^i*. 
 
 the law. Founds are of two kinds, overt ^ or covert ; the one for living , .,^ . 
 cattle, the other for other goods that might take damage by the weather. 
 
 The reafon why living cattle (hould regularly be put into a pound overt, is, ■^f^'^^'"' ^ . 
 
 that, as they are but a pledge, from which, in itfelf, the taker is to receive /^ ' 
 no benefit ; and as the proprietor, therefore, muft be at the fole expence of ^* "^ ^-"^ 
 
 feeding them, he fhould have the freeft accefs to them for that purpofe ; and, //*«^'-- ^ ' "^ 
 
 in fuch cafe, if they perifli, the lofs is his ; but if they be put into a covert f^»^j'-^ ^^^-^ '^"^ 
 
 pound, there, becaufe the owner cannot have accefs, the taker is to feed .^u ^t^^-^^ 
 
 them, and anfwer for them at his peril. J^.JiZ., i^^y^ t^ 
 
 In antient times, the lords ufed to drive the diftreffes into foreign coun- . .y>/ /^ .^-^-^ 
 ties, whereby the tenants knew not where to refort to feed their beafts. This /O _^ A..,^ 
 
 was forbidden by Marlebridge, cap. 4. However, that a£l received this ^ x A^ '^ 
 conftruftion, that if a manor lay in two counties, and its pound in one of ^ 
 
 them, the lord might diftrain in the other county, and impound them in ," ^—^ 
 
 his manor pound ; becaufe the tenant, by attending the manor court, was "^ ' '**' ^^/^ 
 prefumed to know every thing tranfaded in the manor. But now, by later '^^'^''' ^^f''^'^'^'^ 
 afts, no diftrefs of cattle fhall be impounded out of the hundred, or barony ^-/-^ er.**.*-**- ^ 
 where taken, except in a pound overt, in the fame county, within three ,^i^-4»^ r'^^^'r 
 miles of the place ; nor fhall diftreffes be divided, and impounded in feveral ^^^,^ ,.^*'^^>^. 
 places. Dead chattels muft be impounded likewife within three miles, ^^J^'y/^^^ 

 
 304 ^^ E C T U R E S ON THE Lect. ro. 
 
 and that in a pound covert, otherwife the taker is anfwerable for them, 'if 
 (damaged or flolcn. 
 
 As to the nvncdy for taking an unjufl; diflrefs, the tenant might, if there 
 ^^/tyc^-t^J (/UMueA^ ^^.j^g nothing due, refcue them before they were put in pound, and juflify 
 l^c.^^^J'^-'^ y^t ; but when once impounded, they were in the cuftody of the law, and 
 
 -(^£-C-i 
 
 , . muff be dehvered' by law. Or if there was any thing due, he might, be- 
 
 ^ (^^e^^'^^i^^ '*<^ fore they were impounded, make a tender of fatisfaftion ; which, though 
 
 ^ M^ih^^(p ^^^i*y ^i^g caption was juft, rendered the detention unlawful ; and therefore if the 
 
 i^^J -c^^^c£^<^ beafis, after fuch tender, were put in pound, and died there, the taker 
 
 "^■"''7^''';^ '/ .was anfwerable. 
 
 7j/ ,^c^/L'^7l^ When the goods were once impounded, the remedy was hy replevin , 
 
 *>te^^ ,->/>^'^>^ which is a jufticial writ out of Chancery, direfted to the (heriff, who is 
 
 ^^t^i^M-c^ y AJ^<^S£ i" ^^'s ^'^^^■> complaining of the unjuft taking and detention, and 
 
 ii^ ,- /^^^'^^■T' commanding the fheriif to deliver them back to the owner, upon fecurity 
 
 '^'^^^^'*^^ */*y given to make out the injuftice of the taking or detention, or elfe to return 
 
 -^//>the goods and chattels 
 
 But this niethod of replevin, by writ out of Chancery, was very inconve- 
 nient to the remote parts of the kingdom ; as the owner might be put to 
 extraordinary expence and trouble, in maintarning his cattle for a long 
 time. Hence it was provided, by the ftatute of Marlebridge, cap. 21. ^od 
 fi Averia altcujus capiantur, 6" injujie define antur, •uicecomes pojl querimonlam 
 fibifailam, ea fine itnpedimento -vel contradiftione ejus qui dida Averia ceperit, 
 , deliberare poJfit\. 
 
 This impowered the flierifF to make replevins without writ, upon the 
 plaint of the plaintiff in replevin ; and this he could do out of his county 
 court, becaufe, as that was held only from month to month, were it other- 
 wife, the delay might be as great as in the cafe of a writ of replevin ; but 
 then the Iheriff, in order to lay the foundation of the fuit, muft enter the 
 plaint the next county court, that it may appear on the rolls thereof. 
 
 ^ The flieriff's duty then was, in the firft place, to take fufficient fecurity 
 ad profequcndum, that is, that the plaintiff fhould make out, in due courfe 
 
 of 
 •]■ RuiFhead, vol, i. p. 37.
 
 Llct. 10. L A W S OF E N G L A N D. 105 
 
 of law, the juftice of his writ or plaint, that is, that the cattle or goods were 
 either taken, or detained unjulUy. He was alfo to take fecurity de retonw 
 hahendo, that is, in cafe he failed, that he would return the fame diflrefs, that 
 it might be delivered to the taker; and this is by the ftatute of Weft. 2.; 
 and he generally, likewife, took fecurity to indemnify hi.nfelf from any 
 aftion that might be brought againft him. And then it was his duty im- 
 mediately to deliver the diflrefs to the plaintiff in replevin. 
 
 Then it lies on the taker or defendant in replevin to a-vozu, that is, to fet 
 forth the reafons of his caption, to which the plaintiff replies ; and fo the 
 juftice of the caufe comes into queftion, to be legally determined. Thus 
 much is fuflicient, at the prefent, to fliew the remedy the lord hath for his 
 fervices, by virtue of his feignory, and how his tenant is to defend himfelf 
 if unjuftly diftreffed |. 
 
 I MIGHT here treat of another fruit of the lord's feignory, which is the 
 right of cf cheat, or the lands falling back to the lord, either for tlie ddiclum 
 of the tenant, or the failure of blood ; but as, to undcrftand this laft pro- 
 perly, we muft know who are inheritable, it will be more proper to defer 
 it till after we have treated of inheritances. 
 
 f Glanvil, lib. 9. c. 8. lib. 10. c. 3. lib. 11. c. 4. 
 
 ^/..M^Z:^ >^^--^ i^^-^-^^ X"^^^*-^ '/^^^^ 
 
 A^ /^2 /^/^^ ^^ /c-/V ^^^ 
 
 ,^^:s:Jc7^/ ^^ ^.^^ ^^4^ /.^^^ J^i^Y 
 
 ^^-
 
 Jo6 LECTURES on the Lect. ii. 
 
 LECTURE XI. 
 
 The tnanner in ivhkh ejlates for life came to he enlarged into defcendihle eftaies 
 —The nature of Reliefs — Feudal opprcjfwns — The admijjion of allodial lands 
 into the feudal policy — The extenfwn of the feudal fyfiem in France. 
 
 THE feudal lands having been changed by degrees from tenancies for 
 years into permanent grants for Hfe, partly by the neceflities, and 
 partly by the favour of the lords, the matter did not (top here ; but, to the 
 advantage of the vafTals, their rights were continually gaining ground, and 
 infenfibly extending themfelves, to a durable continuance in the fame family. 
 To this, undoubtedly, the number of allodial eftates, which were eftates of 
 inheritance in the hands of the Romans, greatly contributed. For it is not 
 to be imagined that it could be an agreeable fpeQacle to the conquerors, 
 when once they were fettled, and fecured in the pofleffion of the country, 
 to behold their pofterity in a more precarious fituation, with regard to pro. 
 perty, than the vanquiflied were. It is true, as by their conftitution the 
 lord was obliged to provide every gentleman, that is, every one of their na- 
 tion, unlefs he proved unworthy, with a benefice, there was no danger of 
 their iflue not being. fupplied,. in fome degree or other. But this did not fa- 
 tisfy them f . 
 
 Their roving manner of life being antiquated, and the prafticc of re- 
 moving them from place to place every year being fuperfeded by gifts for 
 life, the poffeflbrs, by habitude, became fond of their dwellings, and no 
 longer contented with bare, neceflaries, ftudied to render their fituation 
 commodious and agreeable. They built houfes of flrength and conveni- 
 ence, and by their focage, tenants and villains planted and improved their 
 lands. And now it began to be thought fevere, that the lienefit of their 
 improvements, and the fruit of their and their dependants toil and labour, 
 fhould go to ftrangers, or even to the lord himfelf. For before this time 
 
 it 
 
 ■)• Houard, Anciennes loix des Fran9ois confervees dans les coutumes Angloifes, torn. I. 
 
 p. 32. et ftq. Craig, lib. i. dicg. 4.
 
 Lect. II. LAWS OF ENGLAND. 107 
 
 it had began, and was now grown into a common praiSlIce, for the lords, 
 when they gave an eftatc for hfe, not to content themfclves merely with 
 future fervice, but to exad, at the time of their invefliture, an hoiiorary fine 
 from the tenant ; and this, being but moderate, was generally complied 
 with, in order to gain a permanent eftatc. The interefl of the flate, which 
 was concerned in the improvement of particulars, required alfo a preference 
 of the defcendants of thofe that made them. It is no wonder, therefore, 
 that it grew to be a maxim, and univerfal opinion among thcfc people, that 
 the not continuing the fon in the pofleffion of his deceafed father, though it 
 was in the lord's power to remove him, was a great hardihip, and an unwor- 
 thy aft in the lord |. 
 
 With thefe general fentiments, the lords, for their own interefl:, were 
 obliged to comply, and efpecially the kings j who, by the frequent divifions 
 of the monarchy in France, had competitors to guard againfl ; and were, 
 therefore, enforced to attach their vaflals to them in the ftrongefl: manner, 
 by complying with their inclinations. The fons, therefore, or one of them, 
 generally fucceeded ; not in virtue of any inherent right, but by a new gift, 
 through the favour of the lord. For, upon the death of his vaffal, the 
 eftate being expired, the lord took pofleffion, and, upon receiving a fine, 
 made a new grant, by invefliture, as of a new eftate, to fuch an one of the 
 fons as he chofe ; or he divided it among them at his pleafure. Thefe fines 
 for continuing the fiefs in the fame family were called relevia or reliefs^ 
 from the Latin word relevare, which fignified a fecond lightening, or re- 
 moving the hand of the lord, who had feized the benefice upon its vacancy, 
 by the death of the former pofleflbr. Hence the fon had no right to con- 
 tinue his father's pofleffion. He was obliged to petition for a new invefli- 
 ture, and to tender his relief, and himfelf ready to take the oath of fealty. 
 Thefe reliefs were originally paid in arms, being the moft valuable property 
 thefe military people had, and afterwards were converted into money. The 
 quantum was originally at the lord's will ; but his ovra intereft, from the mo- 
 tives already hinted, commonly prevented him from being exorbitant. 
 This preference to a fucceffion being at firft a matter of favour, not of right, 
 fome vaflals, by degrees, obtained of their lord, in their inveftitures, an ab- 
 
 O 2 folute 
 
 -j- Brafton, lib. 2. c. 36. Hume, append. 2. Du Cange, wc. relevium. Spelman, 
 voc. relevamen. Rcliq. Spel. p. 32, 33.
 
 io8 LECTURES on the Lect. ii. 
 
 folute right of fucceffion to their fons ; which bound the lord and his heir ; 
 and that in thefe two different manners. It was either by a grant to the 
 vaflal, and one or more of his fons by name ; and then thofe omitted were 
 excluded ; or to him and his fons generally ; and then, by the feudal law 
 abroad, they were all admitted to enjoy in equal portions, in imitation of 
 the Roman law, which admits all the children in that manner. 
 
 But the words of the grant were not extended, by a favourable conftruc- 
 tion, to take in grandfons by the name of fons, for the following reafon. 
 When a grant was made to a man and one or more of his fons by name, the 
 fons were originally, at the time of the inveftiturc, capable, or fuppofed ca- 
 pable, by the lord's admiffion, of doing the fervices of the feud ; and their 
 ability and merit was in the contemplation of the grantor, and part of the 
 confideration of the grant ; and where it was given to a man and his fons 
 generally, the law prefumed the fame thing, the fame capacity in them, the 
 fame intention in the grantor. But in the cafe of grandfather and grandfon, 
 the law could not prefume fo, it being contrary to the ordinary courfe of 
 nature, that both fhould, at the time of inveftiture, be capable of doing the 
 fervices in perfon ; and therefore the grandfons, unjefs fpecially provided 
 for, were excluded -[-. 
 
 Thus a right of fucceffion for one ftep was gained by the exprefs provi- 
 fion of the parties, in particular cafes. But as the lord, where he continu- 
 ed the fucceffion out of favour, entered into the lands, and parted not with 
 them without payment of his relief by the fon, it was reafonable in this cafe, 
 where he pofitively bound himfelf, that thefe advantages ffiould be referved 
 to him. Therefore the heir could not enter, but v.as obliged to petition his 
 ^ lord /jumilitcr and devote, and to offer his fealty and relief; and the intercft 
 
 ^7u^iiru.J''i(Uou. pf ji^g JQJ.J gj^j of the ftate requiring the place of the deceafed vaffal to be 
 (f<H*v/^^^ fpeedily filled up, a year's and a day's time was allowed for this application ; 
 
 D^^ ^ ^ * within which fpace, if the heir did not apply, unlefs prevented by inevitable 
 
 neceffity, he forfeited his right of fucceffion, and the lord was at liberty to 
 difpofe of it to a ftranger. 
 
 Reliefs, 
 
 \ Fleta, lib. ■^,. c. 77. Feud. lib. r. tit. i. Daliymnle on feudal property, ch. J. 
 Madox, antiq. of tlie Exchequer, ch. 10. § 4. 
 
 y-7
 
 Lect. II. LAWS OF ENGLAND. 109 
 
 Reliefs, however, being, in their original creation, arbitrary, it fliould 
 feem to be in the power of the lord, where the quantity was not fpecified in 
 the tenor of the inveftiture, to defeat his own grant, by demanding, under 
 that name, more than the value of the land, or otherwife grievoufly to dif- 
 trefs his tenant. This, in England particularly, occafioncd many ftruggles. 
 It appears from the laws of William the Conqueror, that, in thofc times, 
 the reliefs were fixed according to the different ranks of the perfons, and 
 paid in horfes and armour, in imitation of heriots in the Saxon times ; but 
 his avaricious and tyrannical fon William Rufus laid claim to, and exaded 
 arbitrary reliefs, to the great difcontent of all, and to the impoverifliment of 
 many of his fubjeds f . This was rcdrefled in Henry the Firft's charter, 
 where the firfl chapter fays. Si qu'is baronum, comitum,five aliorum qui de me 
 tenmtmortuusfuerit^ beres fuus non rcdiinet terrain fuamficiit faciebat tempore 
 fratris mei,fed legitima, 6" ccrta rclcvatione relcvahit eam,fimiliter 'b' homines 
 baronian mcorum, legitima, 6" certa relevatione rekvabunt terras fuas de dominis 
 fuis \. Henry the Firfl, however, was a man little inclined to keep any en- 
 gagements with his people that he could free himfelf from ; and therefore 
 reliefs went on in an arbitrary way, for the mofl part, under him, though 
 not in fo oppreffive and extorting a manner as his brother William had ufed- 
 For in his grandfon Henry the Second's reign, in whofe time the feudal ' 
 payments became generally converted into money, we find, from Glanville, 
 that the relief of a knight's fee, indeed, was reduced to a certainty, but 
 that of a noble fee was not. Dicitur autein rationabile relevium alicujus,juxta 
 confuetudinem regni, de feodo unius militis, centum foUdos ;—de baroniis vero nihil 
 certumjlatutum ejl, quia juxta voluntatetn ^ mifericordiam domini regis folcnt 
 bdronicz capiiaks de rekviis fuis domino regi fatisfacere ||. 
 
 It feems a httle odd, that the lower military people had got fuch an ad- 
 vantage above the great and powerful lords ; but this may be accounted for 
 from the number of the knights, who made the flrength of the kingdom, 
 and were not to be difobliged ; and alfo from the precarious fituation many 
 of the great lords were in, who had been attached to the caufe of Stephen. 
 However, the wifdom and moderation of this great prince was fuch, that we 
 find no complaints on this head, during his reign, or that of his fan Richard ; 
 
 but 
 ■\ Wright on tenures, p. 95. 96. 
 :j: L L. Hen. i. c. i. 
 11 Lib. 9. c. 4.
 
 no LECTURES on the Lect. ii. 
 
 but when John afcended the throne, a prince who hated, and was hated by 
 his nobles, the old oppreffions were renewed, and aggravated to fuch a de- 
 gree, that the remedying thereof is the firfl: article of temporal concern in 
 Magna Charta |. 
 
 There it is provided. Si qu'is comiiiim, vel baronum nofirorum,five aliorum 
 tenentium de nobis in capite per fervitium miliiare, mortuus ficerit, c^ cum decef- 
 ferit, heres ejus plena atatis fuerit fb" relevium nobis debeaty habeat her edit a- 
 menium fuwn per antiquum relevium ; fcilicet, hcrcs, vel hercdes comitis de comi' 
 tatu intcgro per centum libras, heres vel heredes baronis de baronia Integra per 
 centum vuircas ; heres vel heredes ?nilitis de feodo militis Integra per centum fa- 
 lidos ad plus : Et qui 7ninus habuerit minus det, fecundum antiquam confuetU' 
 diyiem feodorum\. And now were all reliefs reduced to a certain fum of mo- 
 ney, namely, the fourth part of what was then reckoned the value of the 
 inheritance ; for a knight's fee was then reckoned at twenty pounds, a ba- 
 rony at four hundred marks, and an earldom at four hundred pounds per 
 annum. And by the gradual finking of the value of money, and the rifing 
 of lands, thefe payments continuing the fame, came in a few centuries to be 
 not the twentieth part of the value. We fee by the words per antiquum re- 
 levium^ & fecundum antiquam confuetudinem fcodorum, how careful the lords 
 were to have this certainty of relief acknowledged as their antient right, 
 and not to accept it as a concefTion from the crown. When the military 
 lords began, in imitation of the eftates they themfelves had, to grant inheri- 
 tances to their focage tenants, they likewife exafled, in the nature of a relief, 
 from every new pofleffor a year's value ; or, in other words, the rent of the 
 firft year was doubled. For a year's value was what was, in France, at the 
 beginning, paid for military tenures, by the name of rachat, or repurchafe, 
 anfwering to our relief, until at length they were reduced to a certainty in 
 money ; and, confcquently, from the fame caufes as in England, though re- 
 maining nominally the fame, they funk to be very inconfiderable ||. 
 
 Estates of fucceflion, as I obferved, arofe firft from private grants, and 
 that for one generation only ; but they were continually extending to fur- 
 ther lengths, and encreafing in number ; infomuch that, fiefs falling va- 
 cant much feldomer than before, the king had it not in his power to grati- 
 
 fy 
 
 \ Madox, antiq. of the Exchequer, ch. x. 
 \ RuiFhcail, vol. I. p. 2. 
 Ij Braclon, lib. 2. i"ol. 86,
 
 Lect. II. L A WS OF EN GL AN D. in 
 
 fyliis defcrving foldiers fo frequently as he fliould, and the crown was con- 
 feqiicntly en (ct bled. This then ftarted the notion of fuch grants being 
 good only during the life of the king or lord who made them, and not 
 binding on his fucceflbrs. Upon this plan, Brunechild', in her regency, 
 during the minority of her infant fon, attempted to revoke them, and ac- 
 tually did revoke feveral ; which at length raifed that flame, and caufed that 
 revolution, in which her fon and herfelf miferably periflied. What fliews 
 the violent indignation her venturing on this flep occafioned, was the horrid 
 manner of her death, that of being torn afunder by four wild horfes. Clo- 
 thair the Second, who fucceeded, was wife enough by law to confirm thefe 
 eftates ; and then, namely about the year 613, the former doubt was re- 
 moved, and all thefe eftates of inheritance confirmed to continue againft the 
 fucceflfor, according to the terms of the original invefliture. New grants 
 were continually made, and for more generations than had been formerly 
 pradifed. But yet this rule of defcent was not general ; but all grants, un- 
 lefs heirs were fpecially named, were but for life ; as it is in our law, in 
 which zfcof merit to a man for ever, is but an eftate for life for want of words 
 of inheritance f . 
 
 What greatly contributed to the extending thefe grants to indefinite ge- 
 nerations, was the inclination that now feized the Romans and Gauls who 
 held allodial lands to be admitted into the feudal policy, by becoming vaf- 
 fals to the king. They had long lain under very humiliating diftinftions. 
 They were no members of the flate. The lofs of their lives, and other in- 
 juries, were compenfated only by half the fatisfaftion to aFrank. For negleft, 
 or contumacy, when called into the king's courts, they were reputed guilty, 
 and forfeited their eftates ; whereas a Frank was only imprifoned to oblige 
 him to anfwer. When accufed of the lighteft crimes, they were put to the 
 ordeal ; whereas the Franks were only fubjecled thereto in cafe of murder. 
 And many other were the diftinftions between the allodial and feudal te- 
 nants. No wonder then the former \^•ere very dcfirous of enrolling them- 
 felves among the conquerors, which when they had at length obtained, 
 their liberty was efFefted, by their giving their allodial lands, or a part of 
 them, to the king, and receiving them back, fubjedl to the feudal rules. 
 Now were they immediate vaffals of the king, and, as fuch, became Franks 
 
 to 
 
 ■}• Montefquieu, I'Elprit de Loix, liv. 31. chap, i.
 
 112 LECTURES ON the Lfxt. rr. 
 
 to all intents and purpofes. But thefe people were not fo fool'ifli, nor could 
 it be expefted from them, to part with abfolute inheritances, and take back 
 only an eflate for life. They infifted upon grants for a perpetuity, at lead 
 for as long as the ifTue male of the perfon refigning lafted. When once 
 thefe donations were become common, we may be aflured the Franks were 
 very ready to follow the example, and to take all advantages either of the 
 favour, or the weaknefs of their kings ; and to fuch a number did thefe in- 
 heritances increafe, that, about the year 730, the kingdom was near being 
 loft to the Saracens, for want of a fufficient number of beneficiary or life- 
 eftates, to encourage the foldiery f. 
 
 At the time the kings of France were merely nominal, and the whole 
 adminiftration in the hands of the rnaires du palais, of whom the fecond, 
 who had obtained this unlimited authority, Charles Martel, was fo happy 
 as to fave the kingdom from thofe African invaders in a battle near Tours, 
 wherein they were routed with a flaughter almoft incredible. It remained 
 to reward the vid;orious foldiers, who were at leaft as much animated to 
 their exploits by his previous promifes, as by their affedion to the antient 
 conftitution of the ftate, which was now in truth deftroyed, the kings of the 
 royal race being mere phantoms, whofe names he and his father had made 
 ufe of at their pleafure. But this family had not acquired fufficient weight 
 and authority to aft as mafters. The fund of lands, out of which benefi- 
 ces had' been formerly given, was almoft exhaufted, and the major part of 
 the lands that were not ftill allodial, was alienated either in perpetuity to the 
 church, as atonements for the vices of the former kings, or what was near 
 a perpetuity to the lords, for many defcents. Thefe laft he could not de- 
 fpoil. They were too firmly eftabliflied by cuftom and law ; and he and all 
 his predecefTors'had paved their way to greatnefs, by fupporting thefe here- 
 ditary grants at the expence of the crown. NecelTity therefore obliged 
 him to make free with the lands of the church ; for which, in their vifions, 
 they lodged him in a chamber, the very loweft in hell. .Of thefe lands the 
 greateft part he converted into benefices of the antient kind, for. life only j 
 and by means of the number of thofe new ones, added, to the old ones, that 
 were in the fame ftate, fome kind of a balance was formed ; which for a 
 time fupported the government, and checked the growth of inheritances. 
 
 But 
 -j- St. Amand on the legidative poWer of England, p. 27. Montefquieu, I'Efprit des 
 !oix, liv. 31. ch. 8. Dr Uobertfon's Charles V. vol. i. p. 222.
 
 Lect. ir. LAWS OF E N G LAND. 113 
 
 But it is remarkable, that, of thofe church lands, feveral he gave as allodial 
 ones. I will not pretend to fay, that, in this diftinftion, he confidered the 
 antient nature of the lands of the church, fome of which came from feudal, 
 others from allodial proprietors. It feems rather probable, as the allodial 
 eftates were greatly decreafed, by being turned into fiefs of inheritance, he 
 was inclinable to form a kind of equality between the feudal tenants, the 
 beneficiaries, and the allodians ; that, by managing them, he might advance 
 his family to the title, as well as power of royalty ; which we find was foon 
 afterwards accomplifhed by his fon Pepin f . 
 
 The policy of Pepin and his fon Charlemagne correfponded with Charles 
 Martel's views. The former allowed the continuance of inheritances ac- 
 cording to the original provifion in the creation, but were much fonder of 
 the beneficiary eftates, and Charlemagne made feveral laws to prevent his 
 beneficiaries from converting by any art their interefts into inheritances. In 
 his time, a great majority of eftates were benefices ; but this I prefume is not 
 to be underftood of France particularly, where, from the detail before men- 
 tioned, it could fcarce be, but of his whole empire. For in his acqulfitlons, 
 and efpecially in Germany, where fuch a praftice was agreeable to the an- 
 tient cuftoms of the natives, fuch a regulation was conformable to the found 
 policy of his father and grandfather ; by which they endeavoured to reftore 
 the fpkndour of the old French monarchy, I mean with exception to the 
 large gifts he gave to the church on the borders of the infidels, in atone- 
 ment for his grandfather's facrilege, and in hopes of converting thofe bar- 
 barians, and thereby civilizing them, and making them good fubje<Ss. 
 
 But the fuccefTors of Charlemagne had neither the power nor the un- 
 derftandlng of their anceftors. No wonder then, that, under them, the ge- 
 neral inclination of the fubjefts to change their benefices into fiefs gained 
 ground. The divifion of the empire, and frequent wars between the bro- 
 thers, weakened the royal authority, and ftrengthened their vafTals ; who, 
 at the times of their kings diftrefs, were rather to be entreated than com- 
 manded. In the time, therefore, of his grandfons, we find laws, that, con- 
 
 P forming^ 
 
 f Mably, obfervations fur I'hiftoire de la France, torn. i. 1. 1. ch. ;. and 6. Montefquieii,, 
 TEfprit desloiXj liv. 31. ch. 9.
 
 114 LECTURES on the Lect. ir. 
 
 forming to the inclination of the vaflals, did in time put an end to benefici- 
 ary eftates, holden from the king ; opened the gate to fiibinfcudaticns, and 
 all its extenfive confequences ; and raifed a new kind of polity never before 
 feen in the world, the feudal one, fuch as it reigned about the year 1050 
 on the continent, and was introduced into England by William the Con- 
 queror f . 
 
 I SPEAK of the times of Charles the Bald, who reigned about 860. One 
 of his laws gave leave, and an unlimited one, to the allodians, to fubmit 
 themfelves and their eftates, in the nature of fiefs, to others befides the 
 kings. Nothing could contribute more to the weakening of the royal 
 power, and the throwing of all the weight into the baron's fcale. Before 
 they could be made Franks, only by becoming the immediate valTals of 
 the king. This was equally for the public benefit of the flate, the king, and 
 the allodians. But when once the barrier was thrown down, in thofe times 
 of confufion, the allodians were glad to gain the proteftion of the neigh- 
 bouring lords, and, under colour thereof, detached themfelves from their 
 former fubjection to the counts, who were the king's officers over them. 
 
 Another law, of equal confequence, was to entitle the fee of a benefi- 
 ciary, who had only an eftate for life, without any exprefs agreement for 
 a longer continuance, to go to the fon. Tliis was extorted by the circum- 
 ftances of the times, and perhaps then was thought of little confequence, as 
 it only continued them for one generation. But the temper and general 
 inclination of the people were not to be controuled. Thofe grants that had 
 been fo long as two generations in a family, it was fometimes dangerous, 
 always invidious not to continue ; and thus the fucceffors often obtained 
 permanent eftates, when nothing lefs was intended at the beginning. And 
 this was cafily obtained, as the ufe of letters was not common among thefe 
 people, and their charters were, by frequent rebellions, liable to be de- 
 ftroyed. 
 
 The lad law I fliall mention, is that declaring, that the fons of counts, 
 who were the king's officers over the allodlanee, and were originally for 
 
 years, 
 f Spelmnn on feuds and tenures. Mably, obfervations fur I'liiftoire de France, 
 tom. I. 1. 2. cli. 3. 4, 5, 6. Monteftiuieu, I'Efprit des loix, liv. ;r. ch. 28, 29, 30, 31. 
 Houard, antieniies loix des Francois, liv. I. ch. I. Bafnage, coutunie de Norinandie, 
 tom. r. p. 146.
 
 Lect. ir. L A WS OF EN G L AN D. 115 
 
 years, after for life, fliould fucceed to their father. This put the fmifhing 
 ftroke to the beneficiary eftates. For though this, in appearance, was, as 
 the former, t>ut for one life, and conditionally ; yet, from the prevailing 
 principles, it was impofTible they fliould not grow up into inheritances. And 
 as all inheritances were growing feudal ones, and upon thofe conditions, 
 and no others given, thefc counties become fiefs. The demefnes of the 
 crown within them became the demefnes of the count, and all the allo- 
 diaries were now become his fub-valfals f . 
 
 We are come to the dawn of a fl;ri£lly feudal monarchy; and, to fliew 
 the gradation, I have, in this leflure, taken in a great compafs of time. 
 But before 1 proceed further downwards, it will be proper to return a little 
 back as to the order of time, and to fpeak of the confequences that attend- 
 ed the introduftion of eftates of inheritance. Of one of thefe, reliefs, I 
 have already fpoken in this ledure ; but there are many others that muft 
 be taken notice of. 
 
 f See the authorities quoted above, and Selden's titles of honour, part 2. chap. j. 
 
 LECTURE
 
 ii6 L E C T U R E S ON the Lect. 12. 
 
 LECTURE XII. 
 
 Confeqiiences attending the mtroduflion of ejlates cf inheritance — The incident of 
 homage — Differences in Eiigland and the Continent, with regard to the cere- 
 monies of homage and fealty— The fine of alietiation — Attornment — Warran- 
 ties — WardJIiip in chivalry. 
 
 HAVING already, in my lafl: le£l:ure, taken notice of relief which 
 fprung up immediately with eflates of inheritance, and was their im- 
 mediate confequence, it is proper now to proceed to the other fruits of this 
 tenure, which grew up not fo foon, but in after times : and the firft to be 
 confidered, as undoubtedly the next to relief, if not coeval with it, is homage; 
 which, Littleton fays, is the moft honourable fervice (that is with refpefl: to 
 the lord, and the mofl: humble fervice, that is with refpeft to the tenant, 
 that a freeholder can do to his lord) as upon the introduftion of eftates for 
 life, the ceremony of fealty was introduced, fo was it thought reafonable, 
 when a further ftep was taken, that of continuing them to heirs, that a new 
 ceremony fliould be invented, dillinct from the former ; which being per- 
 formed publicly, in the prefence of the pares curia, Ihould, in thofe illiterate 
 ages, create a notoriety, that the tenant had a more durable eftate than a 
 freehold. The manner of performing homage is thus diftinftly defcribed 
 by Littleton. When the tenant fhall make homage to his lord, he fliall be 
 ungirt, (that is, unarmed) and his head uncovered, and his lord fliall fit, 
 and the tenant fliall kneel before him on both his knees, and hold his hands 
 jointly together between the hands of his lord, and (hall fay. Thus I become 
 your man (from which word honw, homagium, and hominium are derived) 
 from this day forward, of life and limb, and of earthly worjhip, and unto you 
 (hall be true and faithful, and bear your faith, for the tenements that 1 claim to 
 hold ofyou,faving the faith that I oixe to our fovereign lord the king ; and then 
 t!:e lord fo fitting Ihall kiii him. Ihtfe are the words of Littleton, and they 
 are juft in the cafe he puts of a tenant doing homage to an inferior lord, and 
 who had no prior lord ; but if he had a prior lord, or the homage was to be 
 done to the king, there was a difference in the form j for if the tenant had a 
 
 former
 
 Lect. 12. L A W S OF E N G L A N D. 117 
 
 former lord, he alfo was to be excepted, that the new lord might have no- 
 tice of the tenant's prior obligation, and that it was not in his power to do 
 abfolute perfonal fervices at all times to him. And if the homage was done 
 to the king, who acknowledged no fuperior, then the exception was en- 
 tirely omitted ; but if to a fubjefl:, it was fo abfolutely neceffary that an 
 omiffion of it was looked upon as an attempt againft the royal dignity, and 
 done in difherifon of the crown. And accordingly we find, that Edward 
 the Firft, in the fixth year of his reign, brought an aftion of ten thoufand 
 pounds damages, now at leafl in value thirty thoufand pounds, againft the 
 bifliop of Exeter, for taking homage of thirteen of his bifhop's vaflals, 
 without the exception of the king ; and, in the end, judgment was given 
 againft the bifhop f . 
 
 Our antient authors tell us, that the lands for which the homage was 
 done ought to be fpecified in the doing homage ; and the reafon given is, 
 Ne in captione homagii contingat domimim, per negligentiam, decipi, vel per er- 
 rorem. But it was better to fay, that it was for the benefit both of lord and 
 tenant, and for the information of the pares curia, who were to judge in 
 cafe of any controverfy between them. 
 
 • In England the two ceremonies of homage and fealty were kept diftind ; 
 the homage, as being for the moft durable eftate, was performed firft, and 
 afterwards the fealty ; but, on the continent, at leaft in fome countries, I 
 fiiid they were blended together, by the homage being done upon oath. 
 
 Another difference between England and the continent was, that, in 
 England, no homage was repeated to the lord's heir, by a tenant who had 
 himfelf performed it to the anceftor, but homage once from the tenant was 
 fufficient for his life ; whereas, in France, new homage by the fame tenant 
 was done on the death of the lord, as we may fee plainly by many inftan- 
 ces, in the cafe of the kings of England and France, for the lands the for- 
 mer held in the latter country. Homage was the fymbol of a ftrifl: and in- 
 diflbluble bond between the bloods of the lord and tenant, by which they, 
 and the heirs of their blood, were mutually difabled from doing any thing to 
 the prejudice of the other party. The tenant, therefore, could not alien, 
 
 either 
 
 ■\ Coke on Littleton, lib. 2. cli. i.
 
 ii8 L E C T U R E S ON the Lect. 12. 
 
 either by lafl will or by deed, in his life -time, without the previous confent 
 of the lord. This maxim was eflablilhed partly in favour of the blood of 
 the firft tenant, which was, in faft, often the confideration of the original 
 grant, as when the lord gave lands in marriage with his daughter, or to a 
 fon or a brother, (and even where it was not in truth fo, the law prefumed 
 the blood of the firft tenant was in contemplation on the ftrength of this 
 maxim, fortes creantur fortibits et bo?iJs, and the probability that a gallant 
 warrior would, by a proper education, qualify his fon for the fame profeflion) 
 and partly alfo in favour of the lord, that he fliould not be obliged to re- 
 ceive, as his tenant, a perfon that was inexpert in war ; or that, if qualified, 
 was, perhaps, an enemy to the lord, or that was previoufly vaffal and bound 
 to another lord who was an enemy. For in thofe troublefome times, the 
 power of the crown of France, where thefe rules began, being greatly di- 
 miniflied, every lordfhip made a little kind of flate in itfelf, frequently at 
 open war ; and when not fo, at leaft in a flate of fufpicious peace with its 
 neighbours ; and from this flate of things it happened, that the word feud 
 has come in our common language, to fignify a mortal quarrel, as being al- 
 mofl infeparable from the greater, or even lefTer fiefs f . 
 
 In thofe times, the lord, when things grew into a more fettled flate, took 
 advantage of this maxim, that the tenant fhould not alien without licence, 
 and the tenants readily acquiefced, under the fubfiftence of the rule, as it 
 permitted them, in their turn, to exa£t a fine from their under tenants, or 
 the alienees of fuch in all cafes of fubalienation ; by which means this fine 
 at length became an eflablifhed fruit of tenure. In England, however, it 
 ceafed in tlie cafe of lords that were fubjeds from the time of the flatute 
 called ^lia emptores terrarum, which gave every perfon a free liberty to fell 
 his lands : but the king not being named in that flatute, according to the 
 well-known legal maxim, was not bound thereby ; and of courfe was paid 
 fines for alienation, or by fubfequent flatutes a commutation for fuch fines 
 by his military tenants in cap'itc^ to the time of the Refloration, when thefe 
 tenures were entirely abolifiied. On the other hand, the lord was not per- 
 mitted to alien, even with the confent of his fuperior, without the confent 
 alfo of his tenant, and that for a fimilar reafon. For "if he, the lord, might fo 
 do, he might fubjcft his tenant to one who was the tenant's mortal enemy, 
 
 and 
 
 f HouanI, anciennes loix des Francois, liv. 2. ch. i. Du Cangc, voc. Hominium. 
 Spelman, voc. Homagiiim.
 
 Lect. 12. L A WS OF EN G.L AN U. 119 
 
 and perhaps for no other reafon than for ferving his former lord faithfully 
 againft the new one *. 
 
 This laft maxim once eftabliflied, introduced the practice of tenants at- 
 torning to their lords grants of the feignory. Amniment is an aft of noto- 
 riety, originally performed in the prefence of the pares curia, fignifying the 
 tenant's confcnt, and turning over from his former lord to the new one, and 
 the putting him, the new one, in the fcizin of his fervices. This, at firft, 
 was merely voluntary in the tenant; but when, in England, free alienations 
 were allowed by the aforefaid adt, it was not thought reafonable that it Ihould 
 be in the tenant's power to defeat his lord's grant, by refufmg to attorn. 
 He was therefore obliged, by an adion called Siuid juris clamat, to appear, 
 and to fhew forth what title he had in the faid lands, and v/hcther he had 
 any fufficient caufe why he fliould not attorn to the grantee ; and if he could 
 not Ihew any, he was obliged by the judgment of the court to attorn f. 
 
 Another effed of this homage was 'zc;^rr^«/)',_ which is the obligation on 
 the lord to defend his tenant in the lands holden of him; or, if he cannot, 
 to give him a recompence of equal value in other lands, our law went no 
 farther ; but the feudal law, if the warrantor had no lands to give in ex- 
 change, obliged him to pay the value in money. Warranty is derived from 
 the word w^r, becaufe, in thofe real adions, the trial was of old by combat. 
 This obligation, indeed, fubfided, as I have already hinted, long before 
 the introdudion of hereditary eflates ; but when thefe hereditary eftates be- 
 came common, and all the military tenures were of this fort, and eflates 
 for lives and years were only, or for the moft part, focage, thefe laft had no 
 warranty annexed to them by law, but only by fpecial agreement ; and the 
 warranty I am now fpeaking of was confined to inheritances, and of thofe 
 only to fuch as were held by homage auncejirel, that is, where the tenant 
 and his anceftors had, from time immemorial, done homage to the lord 
 and his anceftors. Here, on account of the continued connexion between 
 the blood of both families, the law obliged the lord and his heirs toVarrant 
 the lands to the tenant and his heirs |. 
 
 The 
 
 * Wright on tenures, p. 154. et feq. Dalrymple on feudal property, chap. 2. f. 2. 
 Millar on the dilluiction of ranks in fociety, fecond edit. p. 2iy. 
 f Wright on tenures, p. 172. 
 % Coke on Littleton, lib. 3. chap. 13.
 
 120 
 
 LECTURES ON the Lect. 12. 
 
 The manner of taking advantage of this obligation of the lords by 
 voucher, which ftill remains in our law, (the other method by difufe being 
 antiquated) was fhortly thus : When the tenant in pofleflion is impleaded 
 for the lands by a ftranger, who claims them as his inheritance, he, the te- 
 nant, appears, defends his right, and vouc/jes,' that is, calls in his lord to 
 ■warrant the lands to him. If the lord appears gratis, and enters into^ the 
 warranty, as he ought, if he is bound to warranty, the tenant hath no more 
 to do in the defence of the fuit. It is the lord's bufmefs. Againft him the 
 ftranger declares, and profecutes the fuit. He defends, and it is found 
 againft him, either by legal trial, or default, for want of appearing ; and 
 the judgment the court gives is, that the demandant or ftranger ftiall 
 recover the lands demanded againft the tenant, and that the tenant fhall 
 recover lands of equal value from the lord, or voucher, as he is termed, 
 becaufe he is "vocatus, or called in to take upon himfelf the defence. If the 
 lord, who is to warrant, doth not appear, he is fummoned till he does ; or 
 if he appears, and will not enter gratis into the warranty, the tenant is to 
 fhew how the perfon he calls in is bound to warrant ; which muft be either 
 by homage aunceftrel, or by his, or his anceftors cxprefs covenant, as I 
 {hall hereafter fliew ; and until this was determined, tlie fuit of the de- 
 mandant was fufpended ; becaufe as yet it was uncertain who was obliged 
 to defend the lands. So we fee in the judgment of this kind, there were in 
 fa5: two judgments, one againft the tenant, who was to give up the lands, 
 another againft the lord, who was to give lands equal in value. But there 
 might be three, or more judgments, as there might be two or more vouch- 
 ers, As if there be in refpecl to land. A, B, and C. A, lord paramont 
 or fuperior, B mefnef-thzt is, tenant to A, and to lord C ; and C tenant 
 paravailc, that is, the adlual poffeffor of the land. Here, if D, a ftranger, 
 brings his aftion againft C, the tenant, who vouches his lord B the mefne, 
 v.'ho enters into warrant)', and vouches A the lord paramont, v;ho enters 
 mto warranty, and fails, D recovers the lands from C, C recovers in value 
 from B, and B recovers in value from A, and fo on, if there be more 
 vouchers.. 
 
 Warraktief, as I hinted before, are of two kinds, ivarranties in hnvy 
 CI bv .homage auncellrel, or by words in the deed, which the law conftrues 
 to import warranty (which ftood upon a feudal footing), and ivarranties In 
 (IclJ, that dejieiid ou a ipecial covenant. Tliefe laft were fubftituted in the 
 
 place
 
 Lect. 12. L A WS OF EN G L A N D. 121 
 
 place of the former. For as by every alienation, either of the lord or tenant, 
 the mutual connedion between the two bloods was extinguiflied, and war- 
 ranty by homage aunceftrel confequently gone (infomuch that now, by 
 frequent alienations, there is no fuch tiling left) the tenant would not attorn 
 to his lord's grant when the lord aliened, nor a new tenant accept of a 
 grant frorti an old tenant of his tenancy, without an exprefs warranty, 
 binding in the firft cafe the new lord and his heirs ; in the latter the old one 
 and his heirs. Afterwards the making of thefe warranties was extended to 
 perfons between whom there was no feudal connedion ; as if a man aliened 
 lands to hold of his lord. Here the grantee held of the lord of the grantor, 
 not of the grantor; and therefore, as he had nothing to bind the lord to 
 •warranty, would infill on an exprefs warranty from the grantor and his 
 heirsf." 
 
 One fpecles of thefe warranties, namely, that which is called collateral 
 •warranties, was made ufe of, and it was the firft invention that was made 
 ufe of, to elude the ftatute of Edward the Firft, De donis, which gave birth 
 to, or rather reftored to life that antient kind of feudal eftate, which we 
 call Fee tail. But it muft be owned this intention was both againft the v/ords 
 and intention of that law. A judge in his grandfon's, Edward the Third's, 
 reign, fays, they were wife men that made this ftatute, and that the king 
 that pafled it was the wifeft king that ever was in England, and both aifer- 
 tions muft be allowed. The nobles who made it were wife men in their ge- 
 nerations. For, by making efFeftual thefe gifts in tail, they fecured their 
 eftates in their families, free from any forfeitures, arifing from their own 
 mifcondu£t; which before their eftates were liable to. But at the fame time 
 it was a deftrudive law for the nation. It put the great lords of England, 
 who were before too powerful, in a condition, by this fecurity of the inheri- 
 tance's defcending to the heirs, to beard and awe the crown, and it hkewife 
 difcouraged induftry and commerce, which then began to rear their heads in 
 England. Perhaps the wifdom of the fageft of the kings of England, as 
 he is univerfally called, may by fome be doubted in this, that he confented 
 to this act; but he was a fage king, and did wifely in confenting to it. The 
 barons had been fo opprefled in his father's reign, and their eftates fo often 
 
 Q^ confifcated, 
 
 f Houard, anclennes loix des Francois, liv, 3. chap. 13. Coke, ut fupra.
 
 122 LECTURES ON the Lect. 12. 
 
 confifcated, that a mutual jealoufy fubfifled at that time between them 
 and the crown. They had been reftored, becaufe the crown was otherwife 
 in danger. They were jealous likewife of Edward himfelf, for one or two 
 of his aftions: Infliort,his barons were too powerful to be refufed this law, 
 however contrary to the intereft of the crown and the lower people, and there 
 was more to be faid in its favour, it being entirely agreeable to the feudal 
 principles, that he who received an eftate to him and the heirs of his body, 
 fhould not have it In his power to contravene, by any aft of his, the gift 
 of the donor. He complied therefore with a good grace ; but his wifdom, 
 if it was feea in his complying, was farther feen, and in a ftronger light, in 
 the conftruftion his judges and their fucceflbrs made of this aft, that colla- 
 teral warranty, without an equivalent, fhould be a bar. However, this 
 was but a feeble defence againfl the mifchiefs of entails, which every day 
 happened, to the weakening of the public eftates, and collateral warranties, 
 were not on every occafion fo eafy to be got f . 
 
 At length, in Edward the Fourth's reign, under pretence of warranties, 
 and thofe entirely fiftitious, a method was found out, under the form of 
 legal proceedings, to defeat eftates tail, and all remainders thereon, and 
 that iji the manner following : A, who was tenant in tail, was impleaded 
 by collufion, by a perfon who pretended to claim title to the lands ante- 
 cedent to the eftate tail, and who was, in faft, the man to whom A, by his 
 private agreement, was to alienate it, in deftruftion of the eftate tail. A 
 appears, and takes defence, but vouches to warranty B, a man who has 
 not a foot of land, nor is likely to have any : B very readily enters into the 
 warranty ; and when the day comes, that he ftiould defend the fuit, makes 
 default ; in confequence whereof, the court gives judgment, that the de- 
 mandant ftiould recover the lands againft A, and A's lands of equal value 
 againft B the vouchee, who hath none; and yet this was judged a good bar 
 to the entail, upon the poflibility that B might purchafc lands equivalent, 
 and fo A, and the other perfons entitled in tail, might receive fatisfaftion. 
 And that is what, under the name of a common recovery, is grown to be 
 one of the common aft'urances of the realm ; and though, for about feventy 
 years, the juftice and confcientioufnefs of it was difputed, yet being con- 
 ftantly aflerted as law by the judges, and taken notice and approved of by 
 
 afts 
 f Wright on tenure":, p. i68, 169.
 
 Lect. 12. L A WS OF E N GL AND. 123 
 
 afts of parliament, it is the now moft effefbual bar to an eftate tail. To 
 fpeak candidly about thefe recoveries, as to their application to this pur- 
 pofe, they were notorious breaches of the ftatute De dotiis, under the co- 
 lour of legal proceedings. Yet what could be done ? the law could not be 
 repealed; for all members of parliament had their eftates entailed. It could 
 only be eluded, and both for the king and all who had not eftates tail, it 
 was neceffary it fhould f. 
 
 Another confequence of eftates becoming hereditary, and, in refpeft of 
 military tenures, a fruit of feignory, is wardjhip, or guardianfliip. For it 
 muft now frequently happen, by the death of anceftors, that eftates would 
 defcend to heirs incapable to do the fervice, to manage their affairs, or to 
 educate themfelves. It was neceffary, therefore, that the law ftiould make 
 provifion both for the doing the fervices, and the benefit of the heir, until 
 he arrived at a proper age. And the law proceeded in a different manner, 
 as the lands were holden either by knights fervice or focage ; tenure, in the 
 firft cafe, having in view principally the defence of the realm; in the fecond, 
 the benefit of the heir. With refpect to military tenures, the time of age 
 ■was twenty-one years compleat ; at which time the law prefumed the heir was 
 qualified, both by fkill and ftrength of body, to perform the part of a fol- 
 dier. At this age, therefore, he ivas out of the ward. If his anceftor died 
 before he had attained that age, his lord had by law the guardianfliip both 
 of his lands and perfon till then, and took the profits of the lands to himfelf 
 for his own ufe, being only obliged to educate and maintain the heir in a 
 condition fuitable to his rank and ftation. The reafon of this was, that it 
 was a principle in the feudal law, as the profits and the military duties were 
 equivalents for each other, that he who was obliged to the duty fliould en- 
 joy the profits, which, in the firft inftance, was the lord, he being obliged 
 to anfwer the king, or other fuperior lord, for all the military duties com- 
 prifed in his feignory. 
 
 He had the guardianfliip, likewife, of the heir's perfon ; firft, that, be- 
 caufe of the bond under which he lay to the tenant and his heirs, the law 
 had entire confidence in the care he would take of the minor ; fecondly, be- 
 caufe the lord was certainly well qualified to inftru<5t him in the art of war ; 
 
 (^2 and 
 
 ■\ Wright on tenures, p. i86.
 
 124 L E C T U R E S ON the Lect. 12. 
 
 and thirdly, his own intereft obliged him to do this carefully, that his vaf- 
 fal might be enabled to perform to him the future fervices. But this, as to 
 the perfon, is to be underftood, if the minor's father was not living. For 
 if he was, he was guardian by nature, and intitled to the cuftody of the 
 perfon, as in the cafe put by Littleton, where there is a grandfather by the 
 mother's fide, tenant, by knight fervice, father, and mother, and fon ; and 
 the mother dies, leaving the grandfather, and then the grandfather dies, 
 and his land defcends to the fon of his daughter, then a minor, the minor's 
 father flill alive; here the guardianfliip fliall be divided. The grandfather's 
 lord fhall have the ward of the lands, and the father fliall have the ward of 
 tlie perfon of his minor fon. So it is if a lord gives land in fee by military 
 fervice to the fon of A, by which fon's dying without iffue the lands de- 
 fcend to his brother, a minor. Here A, the father, fliall have the cuftody 
 of the body, and the lord, of the lands. There was another cafe, likewife, 
 wherein the guardianfliip, I cannot fay was divided, but where the ward- 
 fliip of the perfon was extinct. Antiently, although twenty-one years was 
 the regular time, yet, if the minor was knighted by the king, and thereby 
 adjudged capable of fervice in perfon, the guardianlhip Ceafed. For here, 
 the legal prefumption of unfitnefs was refufed by a pofitive aft of the king 
 to the contrary. But the lords obtained an afl: of parliament, that, not- 
 withfl:anding fuch knighthood in minority by the king, the lords fliould re- 
 tain the lands of the minor fo knighted, till he was twenty -one years of age ; 
 and fo, after this aft, the wardfliip of the lands continued, though that of 
 the perfon, who was by the king's aft declaredy5^/y«m, was gonef. 
 
 The term of twenty-one years, which I have mentioned was confined, as 
 may appear by what I faid concerning it, to heirs minor, that were males ; 
 but with refpeft to heirs female, minors, as alniofl: all of our fiefs foon after 
 the conqueft were feminine feuds, as the lawyers on the continent call them, 
 that is, dcfcendable to females in the next degree, if males in that degree 
 failed, the limitation of minority was difl^erent. In thcfe fiefs it was impof- 
 fible the woman herfelf fliould do perfonal fervice : She was, therefore, al- 
 lowed a fubfliitute ; but in time of minority, as flie could not appoint a pro- 
 per one, the lord who was bound to perform the fervice to his fuperior, had 
 
 the 
 
 f Fortcfcue tie laud. leg. Aiigli.-e, cap. 44. Glanvil, lib. 2. chap. 9. Spel. reliq. 
 p. 2;, 26. Du Cange, vot. Warda.
 
 Lect. 12. LAWS or ENGLAND. i2s 
 
 the lands in the fame manner as in cafe of an heir male. However, there 
 ■was no reafon that the minority of a wom.an in wardfliip fl.ould continue fu 
 long as that of a man, namely, to twenty-one years j for as the law of God 
 declared that man and wife fliould be one flefli ; fo the canon law, and ours 
 in confcquence, have decreed, that, in law, the man and wife are one per- 
 fon, and that the hufband in all refpeds is bound to perform the obligation'- 
 fhe lies under. Hence, in cafe of a female heir, the term of the lord's guar- 
 dianfhip was, by the common law, limited to fourteen years ; by which 
 time it was prefumed fhe might have a hufband capable, and obliged to do 
 the duty for her. But this age of fourteen years was, in a particular cafe, 
 extended, by aft of parliament, to two years farther. However, as the 
 reafon of that depends on the lord's right to the marriage of the heirefs, it 
 will be better to defer fpcaking thereof, until w-e come to that head. 
 
 It remains to be mentioned, what was the nature of this interefl the 
 lord had in the eflate of this minor tenant, by virtue of the feudal inilitutions, 
 and fo contrary to the general and the original tenure of them. For, fim- 
 ply, the lord had only the propriety, and in confequence the right of rever- 
 fion or efcheat, with the render of the fervices ; whilfl the tenant had the 
 pofTeflion and the profits. But, in this cafe, all thefe feem to be blended, 
 particularly the right of original propriety and poifefTion, fo effentially to be 
 diflinguiflied in the feudal fyflem. For the lord has not only his propriety 
 in right of his feignory, but alfo the abfolute pofTeflion, and permanency, or 
 taking of the profits, and the minor heir apparently nothing. However, 
 the law, in this cafe, did juftice, and created in the lord a temporary interelf, 
 an eftate for years, namely, for the number of years till the majority w-as 
 compleated, contrary to all the other feudal maxims. For the fee and inheri- 
 tance of the eftate remained in the minor, though he had neither pofTefTion 
 or profits. This interefl of the lord could not be called, ' at leafl with ftrift 
 propriety, a tenancy for years, becaufe, in this cafe, the lord pofleffcs the 
 tenant's lands, not the tenant. The lords had therefore no tenure, but an 
 eftate for years, created by the law ; and that it was originally confidered 
 as an eflate for years, or a chattle interefl in lands, appears from two 
 things. Firft, that in the early times, when alienations were fcarce allowed, 
 it was afhgnable over to another, without any licence or form. Secondly, 
 that inftead of going to the heir, in cafe of the lord's death, during the 
 
 minority
 
 •X26 LECTURES on the Lect. 12. 
 
 minority of the ward, it went to the lord's executors, as other eftates for 
 years didf. 
 
 As the lord was bound to his vaffal and his heirs by the homage done to 
 him, it certainly followed, that it was not lawful for him to do, during the 
 wardfhip, any aftual wafle (that is, any permanent damage) to the eftate 
 of his minor ward, or to fufFer any to be done by others. He was alfo 
 obliged to repair and keep in condition, out of the profits of the eflate, the 
 houfes and improvements thereon ; yet fo great was the mifbehaviour of 
 the Englifh lords, foon after the conqueft, that many fevere and reftriftive 
 laws were, from time to time, made in favour of the minor wards J. 
 
 In my next I (hall treat of guardians in focage, referving the article of 
 marriage, though it appertained to military fervice, to a place by itfelf ; as 
 it was of a diflinft nature, and went on its own particular ground in a great 
 meafure. 
 
 -j- Craig, de feud. lib. 2. dieg. 20. Wright on tenures, p. 86. et feqq. Dalrymple 
 on feud, propeiiy, chap. 2. § 2. 
 
 X Ruffhead's Statutes, p. 2, 3. Bafiiage, Coutume de Normandie, tit. des gardes. 
 
 LECTURE
 
 JLect. 13. L A WS OF E N GL AN D. 127 
 
 LECTURE XIII. 
 
 Wardjhip in Socage — The naUire and bi/iory of the incident of marriage. 
 
 HAVING, in the laft leflure, given fonie account of wardfhip and 
 guardianfhip in chivalry, it will be neceffary to mention what provi- 
 fion the law made, now lands were become hereditary, for the benefit of a 
 minor, when lands, held in focage, defcended to him. In the former cafe, 
 where war was the confideration, whofe times and exigences were uncertain, 
 the law was obliged, on account of the public fafety, to confider the interefl 
 of the lord, who was to anfwer the duties to the ftate, in the firfl place, and 
 the interefl of the niinor only in a fecondary light. But in focage lands, 
 which the lord had parted with for certain fixed flipulated fervices, to be 
 paid at particular times, the lord had no claim to any more than them. Nei- 
 ther did the public interefl demand a military perfon for the guardian of one 
 who was not to be bred a foldier. A near relation, therefore, was the pro- 
 pereft perfon to take the wardfhip. 
 
 But in fixing who that perfon fhould be, the feudal and the Roman civil 
 law proceeded on different principles ; the latter fixed upon the nearefl re- 
 lation that was inheritable to the eflate, but the former entirely excluded 
 all relations that might inherit. Thus, if the land defcended on the fide of 
 the father, all relations of the father were incapable, and the mother, or 
 the next of kin of her blood, was the guardian. And this is a difference 
 wherein the Englifh lawyers greatly triumph over the civilians. For to giA'e 
 the care of a minor to one who might be his heir, is, they fay, quafi agmim 
 liipo committere ad devorandum. But this very reafon flrongly proves the ge- 
 neral wickednefs and barbarity of the people, who were obliged to eflablifli 
 this rule at that time. Both laws were equally wife, becaufe adapted each 
 to the circumflances of the nations that made them. The Romans, who 
 were a polifhed civihzed people, among whom murders were infrequent, 
 
 were
 
 128 L E C T U R E S ON the Lect. 13. 
 
 Were not afraid to truft the perfon of the minor to the care of one who might 
 be his heir ; and fuch an one they preferred on account of the prefervation 
 of the eftate, which they prefuraed would be taken beft care of by him to 
 whom it might defcend. The northern nations, on the contrary, who were 
 barbarians, and murderers, were obliged to facrifice the confideration of 
 preferving the eftate, to the perfonal fafety of the infant, and therefore com- 
 mitted both to one who could have no interefl; in the fucceffioa. 
 
 The guardian in focage differed from guardian in chivalry in this, that 
 he was but in the nature of a bailiff', or truftee, for the minor, to whom, 
 at the expiration of his guardianfhip, he was obliged to account, upon an 
 allowance of all his reafonable cofi:s and charges. Another diff"erence was, 
 as to the term of -the guardianfliip. For this guardianfliip expired at the 
 ward's full age of fourteen ; at which time, if he pleafed, he might enter 
 and occupy the lands himfelf, or choofe another guardian ; for as at that 
 age he had difcretion enough to confent to marriage, fo did the law'fuppofe 
 he had fuffkient perhaps to manage his own affairs, at leaff; to choofe the 
 propereff; perfon for that purpofe f . 
 
 But put the cafe, Suppofe that the minor doth not enter, or choofe ano- 
 ther guardian, but that the old one continues to receive the profits, what 
 remedy fhall the minor have for thofe received after his age of fourteen ? 
 Certain it is, he cannot bring an aftion of account againfl: him as guardian ; 
 for guardianfliip is expired ; and yet the infant's difcretion cannot be pre- 
 fumed fo great, as to be perfectly acquainted witia all his legal rights, and 
 therefore his negligence (hall not be imputed to him. The law in this cafe 
 remedieth him by a reafonable fiftion, and fuppofeth, though the faft hath 
 not been fo, that the minor had appointed him to receive the profits of the 
 eftate, and therefore gives an aftion of accounts againft him, not as guar- 
 dian, but as bailiff' or receiver. 
 
 But fuppofe the next of kin neglefts the guardianfliip, and any other 
 perfon of his own head enters, and takes the profits, what remedy fliall the 
 
 minor 
 
 t Coke on Littleton, lib. 2. ch. 5. feci. 123. Houard, anciennes loix dea Franjois, 
 liv. 2. ch. 5.
 
 LEcr.1%, LAWS of ENGLAND. 129 
 
 minor have ? In this cafe the law will not fuppofe him that enters to be a 
 wrong doer, an abator, as the law would call him, if the heir was of full 
 age ; but will rather prefume his aft proceeded from humanity and kind- 
 nefs, to fupply the negleft of the proper guardian ; and therefore, though 
 he is not appointed guardian, either by the afl: of law or otherwife, he 
 {hall be confidered as fuch, and the heir, after fourteen, fliall have an action 
 of account againft him, and charge him as guardian. So ftridly was the 
 guardian in focage accountable to his ward for the profits, that, if he 
 married him within the age of fourteen, he was not only accountable for 
 the money he received in confideration thereof (as it was the praftice in 
 thofe days to fell the marriage of wards) but if he received none, he was 
 accountable out of his own fortune for what he might have received on that 
 account, unlefs the match itfelf was equally, or more beneficial. 
 
 The next confequence of fiefs becoming hereditary, and which followed' 
 from the wardfhip, is the marriage of the ward by military fervice, which be- 
 longed to his lord, and was one of his beneficial fruits of tenure ; and al- 
 though this part of our law is now antiquated by the aboWhing of knight- 
 fervice, it is neceffary, for the undcrflanding our books, to have at leaft a 
 general notion of it.. 
 
 This right rofe originally, on the continent, from fiefs becoming defcen- 
 dible to female heirs, and vi^as grounded upon the fame principle as the 
 rule which forbad vaflals to alien without their lords confent. As every 
 feudal kingdom, at this time, confifled of a number of principalities, under 
 their refpeftive lords, who were often at war with each other, the tenant 
 could not alien without his lord, left he might introduce an enemy into the 
 feudal fociety. The like danger was there if a female heirefs was permitted 
 to marry at her own pleafure, or could be difpofed of by her relations with- 
 out the lord's confent. And at firft, it feems, that this rule was general to 
 a woman heirefs during her whole life ; but if fo it was, it foon abated, and 
 was confined to the marriage of females in wardfhip, and to the firft mar- 
 riage only.. The law of Normandy fays, if a woman be in wardftiip, when 
 fixe fhall be of an age to marry, (he ought to marry by the counfel and licence 
 
 of 
 R
 
 ijo LECTURES on the Lect. 13. 
 
 of her lord, and by the counfel and aflent of her relations and friends, ac- 
 cording to what the noblenefs of her lineage and the value of her fief fhall 
 require. So that antiently the lord had not the abfolute difpofal of her, 
 nor had he any thing to fay to the marriage of males ; for though he fliould 
 marry an enemy, the fief was not thereby put into fubjedion to her, but flie 
 into the fubjeftion of the vaffal. And this rule, that the lord's confent 
 Ihould be had, was not intended for him to make an advantage of, but was 
 a mere political inftitution» for the fafety of the community. Such was the 
 law introduced into England at the conqueft. However, it was but natural 
 to expeft that avaricious lords would take advantage of their negative voice, 
 to extort money for hcence, and by that, and their influence over their vaf- 
 fals, to arrogate the fole power to themfelves. That William RufFus afted 
 thus, we may well learn from the remedial laws of his brother and fucccffor 
 Henry the Firfl ; Si quis haronum, vel hominum meorum, Jiliam fuam mtptum 
 tradere voliterit, five fororem, five neptem^five cognatam, mecum inde loquatur ; 
 fed neque ego aliquid de fuo pro hac licc7itia accipiam, neqiie eid£fenda?)i qiiin earn 
 def, excLptvft earn jungerc velit inimico )neo. Another is. Si mortuo barojie, vel 
 alio homine meo^ filio hares remanferit, illam dabo conjilio haronum meorum f . 
 
 Notwithstanding thefe laws, the mifchief ftill gained ground, and the 
 lords extended their encroachments, until they not only got the abfolute 
 difpofal of female, but of male heirs alfo. When this happened, is hard to 
 determine precifely. That it was after Glanville, who wrote in Henry the 
 Second's time, and before Brafton, who wrote in Henry the Third's, is 
 plain: Mr Wright's conjedure feems probable, that it grew up in Henry 
 the Third's time, when the barons were very powerful, from a ftrained 
 conflruftion of Magna Charta, which fays, Haredes maritentur abfqtie difpa- 
 ragatione ; where the general word haredes fhould have been confirued to 
 extend only to fuch heirs as by the former law were marriageable by their 
 lords, namely, female ones ; but both king and lords, taking advantage of 
 the generality of the expreflion, claimed and ufurped that of the Ion's 
 alfo \. 
 
 However, 
 
 I L L. Henry i. c. i. Bracloii, lib. 2. c. 37. feci. 6. Craig, de feud, lib. 2. Diegef. 
 21. DuCange, voc. Maritagium. Glanvil, liv. 7. c. 12. 
 
 X \Vright on tenures, p. 97.
 
 Lect. 15- LAWS OF ENGLAND. 131 
 
 However, it is rather to be prefumed that this incroachment began ear- 
 lier ; fince in the ftatutc of Merton, the twentieth of Henry the Third, we 
 find thefe words : Suhi maritagium ejus qui infra cetatem eft (fpeaking of a 
 male) mero jure pertinct ad dominum feudi. From whence I rather gather 
 the praftice was earlier than Magna Charta, which was not above thirty 
 years before, and confirmed by its interpretation. But if, in this refpeft, 
 the vaflals were encroached on by their lords, in another, they met with a 
 mitigation in their favour. For the confent during the father's life, went 
 into difufe, and every man was allowed to marry his fon or daughter at his 
 pleafure ; and this with very good reafon. For as the prohibition was 
 for fear of introducing an enemy, of this there was no danger where the 
 marriage was by the father, a vaffal, bound by homage and fealty to do 
 nothing to the prejudice of his lord. Thus was right of confent to mar- 
 riage, introduced firft for political reafons, turned into a beneficial perqui- 
 fite, and fruit of tenure, for the advantage of the lord ; and notwithfland- 
 ing all the laws made to regulate it, as conflantly abufed ; fo that the evils 
 thence arifing were not among the leafl caufes for abolilhing military 
 tenures f . 
 
 The penalty for marrying without confent was originally, as all breaches 
 of fealty were, abfolute forfeiture. But the rigour of the feudal law fub- 
 fiding, lighter penalties were introduced. By the fixth chapter of Merton 
 remedy is given to the lord, whofe ward, under fourteen, has been taken 
 away by any layman (and a later aft extends it to the clergy) and married,, 
 by an aftion againfl the raptor or ravifher, as he is called, for the value of 
 the marriage, befides imprifonment and a fine to the king. If the ward 
 himfelf, after the age of confent, or fourteen, fhould, to defraud his lord, 
 marry himfelf, he, as guilty of a breach of fealty, is more grievoufly punifh- 
 ed than a ftranger. For this aft provides, that the lord, in that cafe, fhall 
 retain the lands after the full age of twenty-one, for fo long a time as, out 
 of the profits, he might receive double the value of the marriage |. 
 
 The next, the feventh chapter, is in favour of the ward, and an inforce- 
 ment of that chapter of Magna Charta which forbids difparagements with- 
 
 R 2 out 
 
 f Ruff head's ftatutes, fol. p. 19. 
 X Ibid. p. 6.
 
 132 L E C T U R E S ON the Lect. 13. 
 
 out Infliciing any penalty. It enafts, that if the minor under fourteen is 
 married by his Lord to his difparagement, upon the plaint of his relations, 
 the lord fliall lofe the wardftiip ; and the profits of the lands, till full age, 
 fliall be received by the relations fo complaining, and laid out for the bene- 
 fit of the heir. But if the marriage was after fourteen, the age of confent, 
 it was no forfeiture, on the maxim, Volenti non Jit injuria. This a£t goes 
 farther in favour of the minor ; for it gives him a liberty of refufmg any 
 match the lord fliould offer him. But to prevent the lord's entirely lofmg 
 the benefit of the marriage by the refradorinefs of the ward, it enafts, in 
 this cafe, that if he refufes a convenable marriage, the lord fliall hold the 
 lands after twenty-one to his own ufe, imtil fuch time as his late ward fliall 
 pay Jiim the fmgle value thereof. 
 
 The twenty-fecond chapter of Wefl:minfter the firft confirms and repeats 
 the fixth of Merton, and farther obviates a fraudulent praftice of the guar- 
 dians of female heirs. I obferved that their wardfliip by law ceafed at the 
 age of fourteen, by which time they might have hufbands capable of the 
 fervice : but fome lords, for covetoufnefs of the lands, as the aft expreffes it, 
 would not offer any match at all to their female wards, under the pretence 
 of their being incapable of the fervices, in order to hold on tlie lands for an 
 unlimited time. This aft fo far alters the old law, that if the heirefs arrives 
 unmarried at the age of fourteen, the lord fliould hold two years longer, 
 that he may have time to look out for a proper match to tender her, within 
 which time, if he neglefts it, he lofes all right to her marriage. On the 
 other hand, if the heirefs will refufe a fuitable offer, the lord is impowered. 
 to retain the lands until twenty-one, and fo much longer, until he has recei- 
 ved out of the profits fatisfaftion for the value. 
 
 The ravifliment of wards from then- lords continuing, notwithftanding 
 the ftatute of Merton, the thirty-fifth of Weft:minft;er the fecond gave the 
 writ called Of ravtjhment of "ward, and affigned a more fpeedy and beneficial 
 method of proceeding, and added to the punifliments by the former aft of 
 Merton inflifted on offenders f . 
 
 But 
 
 t Coke's inftitutes, part 2. p. 440. Ruffhead, vol. I.
 
 Lect. 13. LAWS OF ENGLAND. 133 
 
 But notwithflanding all thefc regulations concerning marriages, and the 
 other many afts made to prevent mifbehaviour of lords to the lands of their 
 wards, the fource of the evil remained in the wardfliip itfelf; and the evils 
 conftantly followed, infomuch that for hundreds of years, it was one of the 
 heavieft grievances the fubjeft fullered. Many were the waftes done to 
 eftates ; many the heirs married contrary to their inclinations, and frequent- 
 ly unfuitably. The grievances fell heavieft on the wards of the crown. 
 There were always a fet of needy or greedy courtiers ready, if they had fa- 
 vour enough to beg, or otherwife to buy at an under rate, the wardfhips 
 of minor tenants, of which they were fure to make the moft advantage ; 
 marrying the moft opulent heirs to their own children, or relations, or ex- 
 torting extravagant fams for their confent. A remarkable inftance of this 
 happened fo lately as Charles the Firft's time, in the cafe of the earl, after- 
 wards firft duke of Ormond. A long fuit had fubfifted between the lady 
 Prefton, grand-daughter and heirefs at law of Thomas earl of Ormond, and 
 her coufm, the heir male of the family, for that part of theeftate her grand- 
 father had entailed to go with the title. At length the relations on both 
 fides thought the beft expedient to end this intricate difpute, was by unit- 
 ing the young relations, who likewife had conceived a ftrong affedion for 
 each other ; yet, although the king approved highly thereof, did the earl fef 
 Warwick, who was grantee of the young lady's wardftiip, extort ten thou- 
 fand pounds before he would confent to a marriage on every account fo de- 
 firable. 
 
 King Henry the Eighth, finding how grlevoufly the fubjeS: was oppref- 
 fed, and how much the crown was defrauded, ereded, by aft of parliament, 
 a court called the Court of Wards, to take proper care of minors, and to an- 
 fwer in a moderate manner for the profits to the king. This for fome time 
 was a confiderable alleviation of the load ; but in the weak reign of James 
 the Firft, who was governed by his favourites Somerfet and Buckingham, 
 this court was converted into an engine for raifmg their families, by pro- 
 viding their numerous and indigent relations with the greateft heirefles, to 
 the great difcontent of the antient nobility, who faw the moft opulent for- 
 tunes fuddenly raifed by private gentlemen, dignified by titles for the pur- 
 pofe. And great were the extortions likewife for the licenfes that were 
 granted to fome to marry at their pleafure. The only advantage the public 
 
 reaped
 
 134 L E C T U R E S ON the Lect. 13. 
 
 reaped at this time from this right of difpofal in marriage was, and it muft 
 be allowed to be a confiderable one, the opportunity it gave the crown of 
 breeding the heirs of many famihes in the reformed religion ; and in juftice, 
 it muft be owned, this was not negleded. 
 
 In the eighteenth year of this laft reign, it was moved in parliament to 
 purchafe off thefe heavy burthens of ward and marriage, by fettling ari 
 handfome yearly revenue in lieu thereof on the crown. But the attempt 
 did not fucceed at that time, probably owing to the courtiers oppofuion to 
 it, from their own interefted views. In Charles the Firft's reign, this court 
 was one of the great objefts of complaint. At length, on the reftoration, 
 the king confented to turn all the military tenures, except grand ferjeanty, 
 into focage, in confideration of an hereditary revenue fettled on him, and 
 fo all the fruits thereof ceafed, and the feudal fyftem, which had for ages, 
 from time to time, undermined the conftitution, fell to the ground, though 
 very many of the rules of our law, founded on its principles, ftill retain 
 their force |. In this kingdom the equivalent given for this abolition was 
 the tax of hearth-money, in which, it muft be owned, the king, and thofe 
 who had been his military tenants, were a little too (harp for the reft of the 
 people ; for by the improvements of the kingdom, that revenue is every day 
 increafmg to the crown, and almoft the whole burthen is thrown on the 
 lower clafs, who before felt none of the oppreffion, or weight of wardfhip 
 iind marriage. 
 
 * 32 Henry VIII. c. 46. 12 Car. II. 
 
 / 
 A- 
 / 
 
 LECTURE
 
 Lect. 14. LAWS OF ENGLAND. 135 
 
 LECTURE XIV. 
 
 The rules of defcent in the old feudal law in regard to thefons of the lafl poffef- 
 for — Reprefentation and collateral fuccejfion — Feminine feuds. 
 
 IT is now time to fee how inheritances defcended by the feudal law, where, 
 in the original grant, there were no particular diredions to guide the 
 defcent ; for in fuch cafe the maxim of the feudal law holds. Tenor invefli- 
 tura efi infpiciendus ; or, as the common law expreffes it, Conventio vincit 
 legem. The firfl rule then was, that defcendants of the firfl; acquirer, and 
 none others, were admitted. The reafon was, that his perfonal ability to do 
 the duties of the fief was the motive of the grant, together with the obliga- 
 tion his fealty laid him under to educate his offspring to the lord's obedi- 
 ence, and to qualify him for his fervice in war. It was obferved, therefore, 
 it fhould go to the firlt purchafer's collateral relations, whom he had no 
 power to bind by his afts, and over whofe education he had no influence. 
 I mean where it was not particularly otherwife expreffed ; for then the col- 
 laterals fucceeded,as the merit of their blood was part of the confidcration ; 
 not fo properly in the right of heirs, as by way of remainder, under the 
 lord's original grant f. 
 
 The next thing to be enquired is, fmce the defcendants alone inherited, 
 whether all, or which only of them inherited. And here the females and 
 their defcendants, unlefs they were fpecially named, were totally excluded, 
 not merely for their perfonal incapacity, but left they fhould carry the fief 
 to llrangers, or enemies ; and therefore, where they were admitted, they 
 were obliged to marry with the confent of the lord. The third rule is, that, 
 unlefs it was otherwife flipulated, all the fons fucceeded equally to the fa- 
 ther. This was the antient feudal law, and the law of England in the Saxon 
 times, the relicks of which remain in the gavel kind of Kent, and remain- 
 ed in the lafl century in many, if they do not ftill in fome of the principalities 
 
 of 
 
 f Craig, de feud. lib. 2. Dicgef. 13. Dalrymple on feudal property, ch. j. feft. t.
 
 136 LECTURES ON the Lect. 14. 
 
 of the empire. In France, during the firft, and a good part of the fecond 
 race, we fee the kingdom divided among the fons. There are not wanting 
 inftances of the fame among the Enghfh Saxons ; and the Spaniards con- 
 tinued th? pradice now and then even in later ages. But the frequent 
 wars, occafioned by thefe partitions, at length abolifhed them, and made 
 kingdoms to be confidered as indivifible inheritances. In imitation of the 
 fovereignty, the fame alteration was introduced into the great feignories, 
 which made, at this time the principal ftrength of the kingdom, and 
 v/hich, now the crown was become indivifible, would, if liable to partition, 
 become fo inconfiderable in power, as to be at the mercy of the kingf. 
 
 The inconveniencies attending the lower military tenancies which flill 
 continuing divifible, were crumbled into very fmall portions, and, of courfe, 
 mufl have fallen into indigent hands, were fuch, that thefe alfo, for the mofl 
 part, became defcendible to a fole heir. But this, however, was not effeded 
 but by degrees ; for in the reign of Henry the Firft, though a fmgle knight's 
 fee was not divifible, yet when a man died feized of more than one, they 
 were diftributed among his fons as far as they went ; but in his grandfon's 
 reign the general law was fettled in favour of a fingle heir, in the fame man- 
 ner as it has ftood ever fmce |» 
 
 But it remains to be enquired which of the fons, in cafe of an indivifible 
 inheritance, ftiould be this fole heir. In the antient and unfettled times, 
 the law made no particular provifion ; but, as the lord was the head of the 
 military fociety, and bound to proteft it, it was left to his option to fix upon 
 the propereft perfon to do the duties : and an inftance of the exertion of 
 this power we have in England fo late as the reign of Henry the Second, 
 who gave the entire military lands of GeofFry de Mandeville to his fon by 
 a fecond ventre, to the exclufion of the eldeft by a former wife, for this 
 reafon, co quod melior effet miles. A trace of this ftill remains in the cafe of 
 a peerage, defcendible to heirs general, that is, male or female, falling to 
 daughters. Here the fief being indivifible, the king may appoint the peer- 
 age to which he pleafes, and until he doth fo, it is not indeed extinguiflied, 
 but lieth dormant, being what is called in abeyance, or the cuftody of the 
 
 law 
 
 •j- Craig de feud. lib. 2. diegef. 14. 
 
 :f Bafnage, couiume de Normandit, tit. Dc pariage d'heritagc. L L. Hen. i. 70.
 
 Lect. 14. L A W S OF E N G L A N D. 137 
 
 law. But at length this uncertainty was removed, and the eldcft fon being 
 generally the beft qualified, and confequently almoll always chofcn, obtained 
 the right, by degrees, in exclufion of his brethren, or the choice of the 
 lordf. 
 
 But it will be inquired with relpe£l to kingdoms, who had no fuperior t© 
 make the choice, how was it to be determined after they became indivifible, 
 ■which of the fons was to fucceed, feeing the abfolute right of primogeniture 
 was not yet eftabliflied in the opinions of men. I anfwer, the ufual praftice 
 was for the king himfclf, before his death, to appoint the fucceflbr ; gene- 
 rally with the confent and approbation of his ftates, and fometiraes merely 
 by his own aft, which was almoft univerfally allowed, and obeyed by the 
 people. But if no fuch difpofition had been made, the ftates aflembled, 
 and chofe the perfon themfelves ; and thefe appointments generally falling 
 on the eldeft fon, paved the way for lineal hereditary fuccelTion, though the 
 cafe was not always fo. 
 
 In France, Hugh Capet, to go no higher, in order to prevent compcti- 
 tion, caufed his fon Robert to be crowned, and fworn allegiance to in his 
 lifetime ; but Robert neglecting the fame precaution, Henry his younger 
 fon was chofen in preference of the elder, who was obliged to content him- 
 felf with the dutchy of Burgundy. And if Henry was an ufurper, fo were 
 all the fucceeding kings of France for three hundred years, till that family 
 of Burgundy failed. Henry followed his grandfather Capet's example, and 
 fo did his fucceffors for about an hundred years, and then, the notion of 
 the lineal fucceflion of the eldeft fon being fully eftabliflied, the cuftom of 
 crowning the fon in the father's life, was laid afide, as unneceflary. 
 
 In England the practice was antiently the fame. William the Conque- 
 ror, though he fet up a claim under Edward the Confeffor's will, yet as 
 that never appeared, a formal eleftion by which he was chofen, extorted in- 
 deed by dread of his power, but apparently free, was his title. When pref- 
 fed to declare a fucceffor, he only fignified his wifti that William might fuc- 
 ceed, but declared he would leave the people of England as free as he had 
 found them. William accordingly was elefted in prejudice of his elder 
 brother Robert, and upon his death, occafioned by an accident, Robert 
 
 S was 
 
 f Dalrymple on feud, property, chap. j. § i. Hume, appen. 2.
 
 138 L E C T U R E S ON the Lect. 14. 
 
 was again excluded, and Henry the Firft, the third brother, chofen. Hen. 
 ry was willing to have the courfe of defcent fecured in his offspring ; and 
 for this purpofe proceeded in the method that had been fo fuccefsful in 
 France, namely, by caufmg his fon Henry to be crowned, and fworn to. 
 But this latter dying childlefs in the lifetime of his father, king Henry 
 caufcd his daughter Maud to be acknowledged fucceffor, and the oath of 
 eventual allegiance to her to be taken by his people. However, this pro- 
 jefl: did not fucceed. No nation of Europe had yet feen a crown on the head 
 of a female ; and Spain was the only country that had ever had a king who 
 claimed in a female right. The majority, therefore, upon Henry's death, 
 looked upon their oath as inconfiftent with the nature of monarchy, and void, 
 and in confequence chofe Stephen, who was the fon of Maud's aunt, and 
 orandfon of the Conqueror, whofe whole male iffue was now fpent. There 
 was, however, a large party in the kingdom who paid a greater veneration 
 to the obligation of their oath, and adhered to Maud. Hence was this 
 vcign a continued fcene of civil war, until all fides, being wearied out, by 
 mutual confent, ratified by the ftates of the kingdom, Stephen was allowed 
 king for life, and Maud's perfonal pretenfions, as a woman, being fet afide, 
 her fon, Henry the Second, was declared, and fworn to, as eventual fuc- 
 ceffor f. 
 
 Henry the Second followed the example of his grandfather, and had 
 his eldeft Ton Henry crowned ; but that ungrateful prince confpiring and 
 rebelling againfl: him at his death, which likewife happened in the lifetime 
 of his father, the old king fearing the like confequences, refufcd to crown 
 his next fon Richard ; who confcious of his own ungrateful condud, and 
 fufpecting that this refufal proceeded from partiality to John, the youngeft 
 and favourite fon, ftirred up thofe commotions and rebellions which broke 
 his father's heart. Richard was the next heir, and did fucceed, but not 
 merely in the right of next heir ; for he affumed no title but that of duke 
 of Normandy, until he was elefted and crowned. The title of John was 
 notorioufly by eledion, and his fon Henry the Third was the firfl who was 
 introduced to his fubjefts hy the wovds, Beho/d yat/r king, or words equU 
 valent. Thofe few who adhered to his father, immediately fwore to him; 
 
 but 
 
 f Hale's Iiift. of the common law, cliap. 5. Bacon's liift. and polit. dUcourfe on tLe 
 laws and government of jbnglandj part i. ch;ip. /}5, 55, and 56..
 
 Lect. 14- . LAWS OF ENGL AN D. 139 
 
 but the majority, who were difaftcded, did not fubmit but upon terms, the 
 refloration of the charters. 
 
 From that day the Hneal fucceffion has been eftabhlhed, and the crown 
 is vefled in the fucceflbr upon the death of his anceftor, 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 fucceeding one was crowned. Henceforth coronation became a 
 mere ceremony, though the form of an eledion is ftill continued in it. I 
 have been more particular in this detail, in tracing the origin of the here- 
 ditary defcent of the crown, to fhew how falfc in fad, as well as in reafon, 
 the notion is of its being founded either on divine right, or on ajiy law of 
 man coeval with the monarchy |. 
 
 Having laid down the rules of defcent in the old feudal law, in regard 
 to the fons of the laft poffeflbr, it will be proper next to mention how far it 
 admitted reprefentation, or collateral fucceffion ; for at firfl both were ex- 
 cluded. If a man had two fons, one of which died before him, leaving a 
 fon, the grandfon could not fucceed to his grandfather, but the uncle was 
 fole heir. This was grounded partly on the prefumption that the uncle was 
 of more mature age, and better qualified to do the fervice ; but this could 
 not be the only reafon, for the rule was general, and held where the grand- 
 fon was of full age and capacity. We mud have recourfe, therefore, to a 
 farther caufe, which was alfo the fame that, in thofe old times, prevented 
 collateral defcents ; for if a man had two fons, by the old law, the eftate 
 was divided between them. If one of thefe died without iffue, the brother 
 did not fucceed to the Ihare of the deceafed, but it reverted, as an efcheat, 
 to the lord. The reafon of both thefe was, that he that claims by defcent, 
 mull claim through the laft poileffor, and derive his right from him ; and 
 that right arofe from the fuppofition of his being educated in the fealty of 
 the lord, that is, by the laft pofleftbr who had fworn fealty. Therefore the 
 grandfon, being educated under the patr'ia poteftas of his father, who, dying 
 before the grandfather, had never taken the oath of fealty, was excluded 
 the fucceffion, as not trained up by a real tenant j but the uncle was ad- 
 
 S 2 mitted 
 
 t Id. chap. 57. See alfo Tyrrel's biflory, and Rennet's hiftorians.
 
 140 L E C T U R E S ON the Lf.ct. 14. 
 
 mitted to claim from the grandfather, the tenant under whom he was 
 bredf. 
 
 This rule was of fome advantage to the feudal fyflem at that time, as it 
 frequently prevented the too great crumbling of ficis, when almoft all of 
 them were divifible. For the fame reafon a brother could not fucceed to a 
 brother, even in a paternal fief, becaufe he was not educated by the lafl 
 poffeflbr that had done fealty : and though this feems very unreafonable, as 
 he had been bred in the fealty of the lord, namely by the father, yet this 
 rule continued for ages, being greatly for the advantage of the king and 
 the great lords, in regard to their efcheats ; as every failure of a lineal de- 
 fcent occafioned them to happen. Neither was it thought fevere in thofe 
 early ages by the tenants. As all benefices were originally for life, it was a 
 great advantage to have them made defcendible even under thefe ftrift 
 limitations |. 
 
 At length the neceffity of Charlemagne's grandfons, who had parted the 
 empire, and were in eternal broils, extorted from them, in France, a grant 
 of the grandfon's fucceeding in his father's fliare, by way of reprefentation, 
 in imitation of the civil law, and alfo of brothers fucceeding to brothers in a 
 paternal fief, but not in a new one. And about an hundred and fifty years 
 the like neceflity of the emperor Conrad, who was embroiled with the Pope, 
 procured the fame law for Germany and Italy 1[. 
 
 The extenfion of the right of collateral fucceflion beyond brothers grew 
 up fey degrees, not from any pofitive law. It was firfl; extended to uncles 
 and coufin-germans, provided it was a fief defcended from the grandfa- 
 ther ; afterwards to any the next coufin, to the feventh degree, defcended 
 from the firfl: purchafer ; and at lafl: to any, however remote, who could 
 prove their defcent from the firfl; purchafer. This was the rule in ancient 
 inheritances ; but with refpeft to nev/ ones, lately acquired, there grew up- 
 a pradlice of granting them as ancient ones ; feudum novum, iit antiquum, dw 
 .mm. Here the fief, though really new, was, by means of this grant, fup- 
 
 pofed 
 
 f Glanvil, lib. 7- cap. 3. Craig de feud. lib. 2. diegef. 15. Dalrymple on feudal 
 property, chap. J. § 2. 
 
 X Lib. Feud. 2. tit. 12. 
 
 SI Lindenbrogius, cod. leg. antiq. p. 679.
 
 Lect. 14. L A WS OF E N GL AN D. 141 
 
 pofed to proceed from fome indefinitely remote anceflor, at any dlftance ; 
 and therefore any one, who could prove himfelf defcended from a common 
 anceflor of the laft poficflbr, was admiffible, and he that was nearefl by the 
 rules of fucceflion was preferred. In this cafe, therefore, the old rule of re- 
 quiring a proof, that the perfon claiming as heir was a defcendant of the 
 body of any anceflor of the lafl poffefTor, would be abfurd, as defeating the 
 tenure of invefliture. Any anceflor pro re nata might be fuppofed the firfl 
 purchafer, to fupport the intention of the donor, in his diredling it to be 
 confidered as an ancient fief, although in faft modern. So in this cafe, if 
 the fief was mafculine, any male relation, defcended from male blood entire- 
 ly, was inheritable, even up to Adam, I mean, if he could prove his de« 
 fcent ; but females, and their defcendants were excluded f. 
 
 If it was defccndible to females, either by the particular terms of the 
 grant, or by the general law of the country, then, as it was fuppofed to de- 
 fcend from any lineal anceflor pro re nata, that anceflor might be a female, 
 and the defcendants of females, and they themfelves might be admiilible. 
 The rule then was, to eflablifh in this cafe of a fiftitious defcent, the fame 
 regulations as in the cafe of a real one. But here the root from whence the 
 right of defcent was to fpring, was inverted ; for as there was no real ancef- 
 tor, an original purchafer, the perfon lafl feized, that is poffefTed of the fee, 
 was the perfon to be confidered. As in the old and common cafe of inheri- 
 tances defcending, the reckoning was downwards from the firfl acquirer ; 
 in cafe of collaterals, when they were admitted, you begin to reckon lineal- 
 ly upwards, and at every flep enquire for collaterals defcended from that 
 lineal anceflor you are upon at the time \. 
 
 A MAN YiVirchzks feudum novum, ut antiquum, and dies without heirs of 
 his body. This feud is, by the conftitution of it, prefumed to have de- 
 fcended from fome of his anceflors. To find out who is that anceflor, it 
 was likely to have defcended from, you mufl look at the law of defcents : 
 the father, in the firfl place, is fuppofed the perfon. His children, that is, 
 the brothers or fillers, or their defcendants, in the firfl place ; if none of 
 them, the grandfather by the father is fuppofed the perfon ; then the 
 grandfather's defcendants. The uncles and aunts by the father, and their 
 
 defcendants, 
 
 -f- Dalrymple on feud, property, chap. y. 
 \ Craig, de feud. lib. s. diegef. 14.
 
 142 LECTURES ON the Lect. 14.* 
 
 defcendants, fucceed in the fecond place. If none of them, then the great 
 grandfather's by the grandfather and father defcendants, the great uncles 
 and aunts, and their poflerity; and if there are none of them, you (till go a 
 flep 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 anceftors, and fo down- 
 wards, and trace up to the female ancellor of the males, as fuppofmg the 
 eftate defcended from her, or her anceftors. For inftance, I have fuppofed 
 the defcendants of the male line have failed in the great grandfather. His 
 wife, therefore, the great grandmother, is fuppofed the firft purchafer ; 
 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, fhall fucceed, firft, lineal, then collateral, in the fame manner 
 as if the eftate had defcended from a remote anceftor of her's. If none fuch 
 can be found, we defcend another ftep, namely, to the grandmother by the 
 father, and fuppofe the eftate to have come from her line ; and then heirs, 
 firft lineal, then collateral, fucceed according to their feveral ranks. If 
 none of thefe, fo that there is no kindred on the fide of the father, the pre- 
 fumption is, that this fuppofed antient feud came from the mother's family, 
 and therefore the heirs of her male anceftors are to be traced up, and difco- 
 vered in the fame manner ; and whenever they fail, the heir of the moft re- 
 mote female anceftor, all through males ; and failing them, the heir of the 
 next moft remote, and fo on, until the blood of the mother is fpent ; and 
 then the eftate, for want of heirs, reverts to the lord, of whom it is hol- 
 den. 
 
 Such Is the rule of defcents of new purchafes granted as if they had been 
 ancient inheritances ; but this rule was, on the Continent, and anciently in 
 England, confined to fuch grants, and them only, wherein this claufe ap- 
 peared in the inveftiture. But in the reign of Stephen, his necefiity of gain- 
 ing adherents, and the fame necefiity of his competitor Henry the Second, 
 occafioned fo many grants of this kind to be made, fome originally, and 
 others on the furrender of old ones, that it hatli fince become the common 
 law of England, that purchafes, that is, new acquifitions, are dcfcendiblc to 
 any relation, however remote f . 
 
 It will be ncceflary to fay fomcthing as io feminine feuds, which are a devi- 
 ation from the ftrid principles of the ancient law, which excluded them and 
 
 their 
 ')■ Hale, liifl. torn, la\^', chap. 9.
 
 Lect. 14- LAWS OF EN GLAND. 143 
 
 their dcfcendants entirely. They firft arofe from the woman's being the 
 principal confideration of the grant ; as when a lord gave lands in marriage 
 with his daughter, fifler, niece, kinfwoman, or any other female : here 
 the lands being partly given in confideration of the female blood, it was rca- 
 fonable they and their defcendants fhould be inheritable. But this was ftill 
 an exception to the general law, and confined to thofe grants wherein it was 
 mentioned, until the number of thofe grants, at length prevailed to have 
 this order of fuccefiion confidered as the general law, and the fucceflion of 
 males remote, in exclufion of a nearer female (as in cafe of tail male) con- 
 fidered as an exception. The monarchy of PVance, however, and of many 
 of the principalities of Germany, have retained the antient feudal law, in 
 abfolutely excluding females and their defcendants. 
 
 The defcent of imperial crowns to females, was of a much later date, than 
 that of lower fiefs : for here a manly capacity was looked upon as indifpenfi- 
 bly requifite. The firft ftep was admitting a male reprefentative for them, a 
 hufband or a fon. This began in Spain. Pelagius, who was of the blood 
 royal, having gathered a few of the Spanifli fugitives together, after the 
 Moorifh conqueft, founded a pretty monarchy in the mountains of Afturias. 
 His fon Favila dying without iifue, the crown was given to his daughter's 
 hufband, and this continued the rule for many ages, where males failed. 
 But where the fon of fuch female heir was of fufficient age to mount the 
 throne, he of courfe excluded both mother and father. At length, in the 
 thirteenth century, Europe, for the firfl time, faw a woman folely inverted 
 with royalty, Joan the firfl of Naples; for Henry the firfl of England's pro- 
 ject in favour of his daughter Maud, as we have faid before, had mifcarried. 
 Margaret of Denmark, Sweden and Norway, Joan the fecond of Sicily, 
 and Ifabella of Callilc, followed in the next century. In the following cen- 
 tury came Mary and Elizabeth in England, and many fince in all parts of 
 Europe ; fo that at prefent the monarchies of Europe are defcendible to 
 females in general, if we except France, and feveral but not all of the prin- 
 cipalities of the empire. Bohemia and Hungary have received a queen in 
 the perfon of the prefent cmprefs in this prefent century, but fo inveterate 
 are old cufloms and opinions, that when her faithful Hungarians refolved 
 to afTifl her to the laft extremity, it was by faying, mariamur pro rege nojira 
 Marki Terc/a, not pro regina f . 
 
 LECTURE 
 
 \ Giannone's hift. of Naples. Selden's tit. hon. part 2. chap. g.
 
 144 L E C T U R E S ON the Lect. 15. 
 
 LECTURE XV. 
 
 The difference between allodial and feudal lands — The rejlridions on the feudal 
 law — The decay ofthefe — The hijlory of voluntary alienations. 
 
 ONE great and ftriking difFerence between allodial and feudal lands 
 confifted in this, that the former entered into commerce. They 
 were faleable or otherwife alienable, at the will of the pofleflbr, either by 
 aft executed, and taking effeft in his lifetime, or by will, to take efFeft 
 after his death. They were likewife pledges to the king for the good be- 
 haviour of the owner, and therefore for his crimes forfeitable againfl him 
 and his heirs. They were alfo fecurity to his fellow fubjedts for the debts 
 he might contraft j and, therefore, by following the due courfe of law, at- 
 tachable and faleable, to fatisfy the demands of a juft creditor |. 
 
 In every one of thefe refpefts did fiefs, when they became defcendible in- 
 heritances, differ from them. The poffeflbr was but an ufufruftuary, and his 
 power over his lands was checked and controlled by the interefl others had 
 therein. Thefe were the lord and the perfons defcended from the firft pur- 
 chafer. The confent of the lord was abfolutely neceffary to the tenant's alie- 
 nation, to prevent the introduction of an enemy or unqualified perfon into 
 the fief; but the confent of the lord alone was not fufficicnt, if there were 
 in being any perfons entitled to the fucccffion. Thus if A. is himfelf the 
 firfl purchafer of a fee, and hath a fon, his alienation, even with the con- 
 fent of the lord, would hold good only during his own life ; but if he had ali- 
 ened with the confent of the lord before iffuc had, this fliould be valid, and 
 bind the iffue born afterwards. For here the alienation was made by all the 
 perfons in being intcrefted in the land, and the former contraft is by their 
 
 mutual 
 
 f Bouquet, le droit public de France, p. 30. — 36. — Allodium, proprietas quas a niillo 
 recognoftitur. Tenerc in allodium, id eft, in plenam ct abiolutam proprietatem. Habet 
 integrum ac direiSlum dominium quale a principio de jure f;entium fuit dillributuin tt 
 di/Hn(ftuin. Du Moulin, de I'ancienne coutiime dc Paris, art. 46.
 
 Lect. 15. LAWS OF ENGLAND. 145 
 
 mutual afl: diffolved, nor is there any wrong done ; for it is an abfurdity to 
 fay that a perfon not in rerum natura can fuffer wrong : the confent therefore 
 of the fon, or fons, if one or more of them were in being, was as neceffary 
 as the lord's in this cafe. 
 
 If the lands defcended from B. the firfl purchafer, to his fon A. before 
 the introduftion of collateral defcent, the law was the fame ; but when 
 thefe were admitted, it varied for the fame reafon. A. could not alienate 
 with the confent of the lord and his fons, without the confent alfo of all 
 the collaterals intitled, that is, all the agnati, or male defcendants of B. for 
 this would ftrip them of their right of fucceffion. If it defcended from C. 
 the grandfather, or from any more remote anceftor, the confent alfo of all 
 the male defcendants of the grandfather, or that remote anceflor was re- 
 quired, upon the fame principle. By this we fee, it was next to an impof- 
 fibility, that an eflate which had been any time in a family (fo many con- 
 fents were required) could be alienated at all. However, there was al- 
 lowed by that law a transfer of the fief in a particular cafe, even without 
 the confent of the lord. This was called refuting the Jief\ it was a refigna- 
 tion of it to the perfon who was next in order of fucceffion. Here was no 
 injury done to the lord, or the agnati, becaufe it went in the fame manner, 
 and to the fame perfons, as if the refuter was abfolutely dead, cir quifque 
 jurifuo renunciare potejl. For the fame reafons no teftaments of lands were 
 allowed, except the lord, and all others concerned were prefent and confent- 
 ing ; which fcarce ever happening, it became a maxim of the Englifh law, 
 that lands were not devifable by will. 
 
 Neither were the feudal lands originally forfeitable for the crimes of the 
 pofleflbr for any longer time than his own life, if there were perfons entitled 
 to the fucceffion. But this rule of forfeiture was afterwards extended to 
 the iffiie of the criminal : for as the right of fucceffion depended much on 
 the fuppofition the fucceflbr was educated in the fealty of the lord, this pre- 
 fumption ceafed where the father had aftually broke his oath of fealty. And 
 at length, when the rule was eftablifhed, that every perfon muft claim 
 through him that was lafl feized, and make himfelf heir to him, the delin- 
 quency of the predeceffor became likewife a bar to collaterals. 
 
 T Feudal
 
 146 LECTURES ON the Lect. 15. 
 
 Feudai- eftates alfo were not liable to the debts contrafted by the feuda- 
 tory. For if the creditor might have fold them for debt, a wide door for 
 alienation had been opened, by means of fictitious debts, contrafted by col- 
 lufion between the creditor and vaffal. Or even if they were honeft ones, 
 the lords and the heirs would have been deprived of their right. Neither 
 could the creditor attach the profits of the land during the life of the debtor ; 
 for if he could, an improvident vafTa! might fo impoverhh himfelf, as to be 
 incapable of the duties of the fief. 
 
 Such and fo ftrong were the reftridlons this old law laid on the feuda- 
 tory. But as times grew more fettled, and the (Iriftnefs of the military fyf- 
 tem abated ; as commerce increafed, and with it luxury, the propenfity to 
 alienation grew up, and became at length fo ftrong, in every country, as 
 to be irrefiftable. And it is a fpeculation not only curious, but very ufeful 
 for the ftudents of our law, to obferve and remark its progrefs in England f . 
 
 The firft ftep towards voluntary alienations arofe from the praftice of fub- 
 infeoffing. Originally, as I obferved in a former lefture, although the 
 vaflals of the king could infeoft", their vaffals could not ; but at the latter 
 end of the fecond race in France, when the power of the crown was de- 
 clined, and the great lords were in reality fovereigns, acknowledging only 
 a nominal dependance on the king, fome of them, in order to ftrengthen 
 themfelves, and to increafe the number of their mihtary followers, allowed 
 this privilege not only to their immediate vaflals, but to fub-vaflals alfo, to 
 an unlimited degree. And when this prafliice was once begun, the other 
 lords, for their own fccurity and grandeur, were obliged to follow the 
 example. This practice of fubinfeuding contributed much to the power of 
 the lords, and therefore was by them encouraged. But though it was in- 
 tended, at firft, only to extend to part of the vaflal's fief, the ufage of fub- 
 infeuding the whole gained ground, to the great prejudice of the heirs ; 
 when the terms of fubinfeudation were no better than thofe of the firft; 
 grant ; and of the lords alfo, who thereby loft frequently their profitable 
 fruits of tenure, tlieir reliefs, wardftiips, and marriages j which, with refpeft 
 to the lords, was remedied in the reign cf Edward the Firft, by the ftatute 
 
 of S^uia emptores terrarum before mentioned |. 
 
 In 
 
 ■\ Dalrymple on fLnul. property, ch. 5. feci. i. 
 
 % Lib. 4. fc-ui!. tit. 34. RuiThead's flatutes, v. i. p. 122.
 
 Lect. 15. L A W S OF E N G L A N D. 147 
 
 In the mean time, free alienation was allowed in cities and boroughs ; 
 partly becaufe many of thefe were old Roman towns, and their lands and 
 houfes allodial, and becaufe thofe which were not fo were founded by lords 
 on the fame principles for the benefit of commerce, which could never have 
 flouriflied if a debtor had not full power over his property of all kinds to 
 fatisfy his creditor ; and if the creditor, in cafe he was unwilling, had not 
 power to compel him to fell for his juft fatisfaftion. Alienations, however, 
 of one kind were permitted, namely, the founding of monafleries, and en- 
 dowing of churches. Thefe, through the fuperftition of the times, were 
 looked upon as being equally beneficial to the feudal fociety as fubinfeuda- 
 tion, by engaging God in their interefl; and even if the lords and their heirs, 
 who fuffered by thefe grants, were willing to difpute them, they were un- 
 able to contend with the omnipotent power of the pope and the clergy ; 
 until at length the tyranny of the firft, and the avarice of the laft, provo- 
 ked both king and people to reftrain them by the a6ls againfl Mortmain. 
 But no other alienations were yet allowed without confent, as before men- 
 tioned |. 
 
 In the reign of William Rufus a particular matter occurred, which open- 
 ed a way for alienation without the lords confent, and occafioned a prodi- 
 gious revolution in the landed property of Europe. This was the madnefs 
 of engaging in crufades for the recovery of the Holy Land. A crazy friar 
 returning from a pilgrimage to Palefline, where he faw the Chriftians mal- 
 treated, began to preach up this expedition as the moft meritorious of 
 works ; and it is wonderful with what an epidemical contagion the enthu- 
 fiafm fpread through all ranks of people. Thefe pilgrims, who affumed the 
 crofs, had no way of defraying the expence, but by the fale of their lands, 
 which their lords, if difinclined, dared not to gainfay, or obftruft fo pious a 
 work. But indeed, moft of them were confcientioufly affefted with the 
 fame madnefs, as may be feen by the great number of kings, princes, and 
 lords, that beggared then^felves in thefe fruitlefs enterprizes J. 
 
 T 2 The 
 
 -^ Gibfon, cod. jur. ecclef. Anglican, tit. 28. 
 
 % Rennet's colleftion of hiftorians, vol. i. p. 116. Carte, hift. of England, vol, r. 
 p. 469- 555-
 
 148 L E C T U R E S ON the Lect. 15. 
 
 The pope and the kings concurred in inflaming this fupcrftition, but 
 from different motives. Ihe pope did it out of ambition and avarice. 
 The former he fatisfied by declaring himfelf the head of the expedition, and 
 thereby attaching to himJelf and his fee fuch multitudes of redoubted warri- 
 ors by the flrongeft of bonds, confcientious fupcrftition. And indeed fuccef- 
 fors in that chair afterwards made very good ufe of this example, by preach- 
 ing up crufades againfl fuch Chriftian kings and princes as difobliged them. 
 But the more immediate advantage he received, was the glutting his avarice 
 by a proper fale of difpenfations to fuch as had raflily taken the crofs, and 
 afterwards found themfelves unable, or unwilling to fulfil the obligation. 
 The reafon that induced the kings of Europe to promote this fpirit, I mean 
 fuch of them as were not poflefied with the frenzy themfelves, was the hope 
 of abafing their too great and powerful vaffals, which would naturally follow 
 from the alienation of part of their lands, to equip them for the expedition; 
 and a defire to facilitate the partition of thefe great feignories among fe- 
 males, when the males were fo frequently and miferably flaughtered |. 
 
 So many were the alienations of this kind, and fo long were they conti- 
 nued, that it is no wonder that the interefl of the lord and the heirs began 
 to lofe ground in the opinions of the people, which proceeded fo far, as that, 
 in the other cafes, the lord, on the payment of a moderate fine, either be- 
 fore or after, was looked upon as obliged to confent to the alienation. 
 Let us now fee how the liberty of alienation gained ground, particularly in 
 England. 
 
 In Henry the Firft's time, a man was allowed to alienate his purchafe, 
 but not an eftate that came by defcent. This law fays, Acquifitiones fuas det 
 cui 7nagis velit ; fi Bocland at/tem habcat, quam ei parentes fui dcderint, non 
 mtiat earn extra cognationem fuam J. 
 
 This liberty of alienation of purchafes is not to be underftood generally, 
 but only where the purchafer had no fon; if he had any, it may be a doubt 
 whether he could alienate any part at this time. Certain it is, he could not 
 the whole, even in Henry the Second's time. For thus Glanville lays 
 
 dovvn 
 
 •|- Hume, hift. of England, vol. r. 
 \ LL. Hen. I. cap. 70.
 
 Lect. 15- LAWS OF ENGLAND. 149 
 
 down the law : Si vera qucjlim tantum babucrity is qui partem terra /ua donarc 
 voliierit, tunc quidan hoc ei licet fed non totum qucjlum, quia non potcji flium 
 fuum haredem coharedarc -f. 
 
 The practice of alienating lands by defcent grew up more (lowly. At 
 this time a part only was alienable, and that not freely, to all perfons, or 
 for any confideration generally ; but only in particular cafes, firfl to the 
 church in Frankalmoigne ; fecondly, to one who had done fervices in war, 
 or to the fief in time of peace ; thirdly, for the advancement of his family, 
 as in Frank-marriage with his daughter, filler, niece, or coufin. But every 
 day tills liberty gained ground, until at length the interefl: of the heir en- 
 tirely vaniflied, and that of the lord began, in military tenures, to be little 
 confidered, and not at all in focage. However, in Magna Charta fome 
 check was given to that kind of alienation of the whole fief, that was car- 
 ried on under the pretence of fubinfeudation. Nullus liber homo dct de 
 ccetero amplius alicui vel vendat de terra fua quam ut de refiduo terra pojjit 
 fiifficienter fieri domino feudi fervitium ei debitum \ and this fufficiency was by 
 praftice explained to the half of the fee \. 
 
 No provifion being made in thefe laws for the confent of the lords, they 
 generally, though not always, loft their fines j and a method likewife was 
 invented to obviate their refufal, by levying fines in the king's courts of 
 record, in this manner. They ufed to fuppofe that the parties had cove- 
 nanted to ahenate j and all writs of covenant (being aftions of public con- 
 cern to the juftice of the kingdom) were fueable only in the king's court j 
 and by confequence this covenant to ahenate was fueable only there. The 
 fuperior court then being poflefled of the matter, as an adverfary caufe, per- 
 mitted the parties (on a fine being paid to the king, in heu of that which 
 he would have received at the end of the fuit, from the party that failed) to 
 make an amicable agreement or end of the fuit, which was done by the 
 party fued coming in, and recognizing, that is, acknowledging in court 
 the right of the demandant to the land. This method of conveyance by 
 fine grew up, and ftill continues to be one of the common aflurances of the 
 realm. For being tranfaded in a court of record, it obviated the danger 
 
 of 
 
 f Lib. 7. c. I. 
 
 X Glanvil, ut fupra. Ruff head's ftatutcs, vol. I. p. 8.
 
 I50 LECTURES on the Lect. 15. 
 
 of future controverfies between parties, or any difpute concerning the exe- 
 cution of a deed, or the giving of livery and feizin |. 
 
 At length the ftatute of .%;> einptorcs terrartan, already mentioned, was 
 made, as well to remedy the mifchiefs the lords complained they fuftered 
 by fubinfeudation, namely, the lofs of their fruits of tenure, as to fettle the 
 doubt, as to the right of the tenants to alienate. This ftatute entirely takes 
 away the lords confent ; for it gives the tenant free power to fell, or alien 
 the whole, or part of his tenancy, to whom he pleafed. But then, in fa- 
 vour of the lord, it eftablifties, that if the tenant parts with his whole in- 
 tereft in the lands, namely, the fee fimple, the alienee Ihould not hold of 
 the alienor, but immediately from the alienor's lord, by the fame fervices, 
 by which he, the alienor, had holden. Thus were the lords, in one re- 
 fpeft fecured in their rights, by the flopping the courfe of fubinfeudations, 
 and the tenants got a free hberty of alienation without the confent of the 
 lord, or paying any fine to him. The king, however, not being named 
 exprefsly in this aft, it was conftrued not to bind him, as I have faid before ; 
 and his confent was ftill required to the alienation of his tenants by military 
 fervice, according to the rule of Magna Charta ; that is, if more than half 
 was alienated, fo that the refidue was deemed unfufficient to anfwer the fer- 
 vices. And this was put out of doubt by the ftatute De prerogativa regisy 
 made the 17th of Edward the Second, cap. 6. 
 
 The bent towards free alienation, however, was fo ftrong as to occa- 
 fion a further mitigation fo foon after, as the firft year of Edward the Third. 
 For then it was provided, that if the king's military tenant alienated with- 
 out licence, contrary to the late aft, the land fo alienated Ihould not be ab- 
 folutely forfeited as before, but that the king fhould be contented with a 
 reafonable fine in chancery. Thefe compofitions were fometimes difpenfed 
 with, to encourage the tenants to attendance in hazardous expeditions ; but, 
 except in thofe fingular cafes, they continued to be paid, until the reign of 
 Charles the Second, when knight^s fervice being abolifhed, they fell of 
 courfe along with it |. 
 
 Such 
 
 ]• Britton, c. i8. Wright on tenures, p. 163. i6't. 
 ^ Staunford, de prerog. Reg. cap. 7.
 
 Lect. 15. LAWS OF ENGLAND. 151 
 
 Such was the progrefs the ahcnation of land made by conveyance intei^ 
 'uivos ; but the bequeathiug lands by lad will did not keep equal pace with 
 it. The firfl: ftep made thereto was by laying hold of the dodrlne of ufcsy 
 which about the time of Richard the Second was invented by the clergy, to 
 elude the flatutes of Mortmain, by which their advance from time to time 
 was checked. As in every feudal grant there were two eflates, the abfolute 
 propriety in the lord, a qualified property, namely, the pofleiTion and pro- 
 fits, in the tenant ; now that they were prohibited from taking the real 
 tenancy, they cunningly devifed a means of fubdividing the tenancy, by 
 feparating the profits from the poffeffion. When, therefore, a man 
 had a mind to alienate to the church, as he could not do it diredly, 
 he infeofFed a perfon to the ufe of fuch a monaftery. Here the feoffee 
 and his heirs were, in the conftruftion of the common law, the pro- 
 prietors, but, in faft, were bare truflees for the monaftery, for the ufe of 
 which they received the profits. But it may be afked, if the truftee or his 
 heirs would not fuffer them fo to do, where was their remedy. The courts 
 of common law allowed of no fuch divifion of eflates at that time, nor would 
 they have fuffered fuch neceffary laws to be defeated by fuch coUufion, 
 though they had been acquainted with thefe divided interefls. They had 
 recourfe, therefore, to chancery, where, it being always, to the time of 
 Henry the Eighth, filled with a churchman, they were fure to meet favour ; 
 and this court claiming an equitable power to enforce perfons confcienti* 
 oufly to fulfil their engagements, compelled the truftee to fupport and 
 maintain the ufes. 
 
 These ufes, once introduced, were applied to other purpofes, particu* 
 larly to that I am now upon, the enabling perfons to difpofe of their lands 
 by will. The manner was thus : A. ahens his lands to B. to the ufe of A. 
 himfelf for his life, and, after his death, to fuch ufes as he A. fliould, by 
 his laft will and teftament, appoint. B. was then compellable in chancery, 
 not only to fuffer A. to take the profits during life, but after his death to 
 execute the direftions of the will, and to ftand fubjedl to the ufe of fuch 
 perfons as he appointed, and make fuch eflates as he direSed. This me- 
 thod gained ground every day, as many perfons chofe to retain their power 
 of alienation in their own hands, to the laft moment of their lives, and to 
 keep their heirs, or other expedlants, in continual dependance. And it at 
 
 length
 
 152 L E C T U R E S ON the Lect. ij. 
 
 length grew fo common, that in Henty the Eighth's time, it was thought 
 proper to give leave, without going through this round-about metliod, to 
 difpofe of lands direftly and immediately by will ; of the whole of their fo- 
 cage lands, and of two thirds of the lands holden by knight's fervice. And 
 this latter tenure being, after the Reftoration, turned into common focage, 
 all lands, not particularly reftrained by fettlement, are fmce become devif- 
 able ; whereas, before thefe laws, they were only fo in particular places, 
 by local cuftom. But the ftatute that gives this power, in order to prevent 
 frauds, exprefsly orders fuch will to be in writing ; whence arofe a diftinc- 
 tion, as to the validity of wills of land, according as thefe lands had, or had 
 not, been before devifable by cuftom. For thofe that were fo before, con- 
 tinued devifable by will nmcupative, or without writing f . 
 
 But the reduftion of the will into writing was not found fufficient to 
 prevent forgery and perjury, and therefore the ftatute of frauds and per- 
 juries has added other folemnities, as requifite to pafs lands by will. It re- 
 quires that it fhall be figned by the teftator, or fome other by his diredtion, 
 and attefted by three witnefles in his prefence. 
 
 As to figning, it is infignificant where the fignature is, whether at the 
 bottom, or the top, or in the context of the will, the name of the teftator, 
 written by his own hand, in any place, being fufficient. And the putting 
 his feal to the will, though without his writing, has been judged fufficient j 
 for his feal is as much his mark, or fign, as his handwriting. As to the 
 atteftation, the ftatute requires it to be in the teftator's prefence ; but it is 
 abfolutely neceffary, that he fliould look on and fee it done. Therefore-, if 
 it is attefted in the room where he lies fick in bed, with his curtains un- 
 drawn, this is a good atteftation ; or if it is attefted in a neighbouring room, 
 and the door open, fo that he might poffibly fee it done, this is in his pre- 
 fence. But if the door be fliut, or the place fo fituated that he could not by 
 any means fee the atteftation, the will is void. 
 
 I SHALL next proceed to involuntary alienation of lands, namely, for pay- 
 ment of debts ; and then give an account of the origin and progrefs of 
 c/'iatcs tail, which were introduced to reftrain this power of alienation, and 
 to rcftore, in fome degree, the old law of keeping eftates in the blood of 
 the ftrft purchafcr. 
 
 LECTURE 
 
 \ An. 27. Hen. VIII. cap. 10. ap.RufFhead, vol. 2. p. ii6.
 
 Lect. 16. L A W S OF E N G L AN D. 153 
 
 LECTURE XVI. 
 
 Im'ohmtary alicfiations of feudal land—Talliage — Edward I. mtroduces the 
 firjl involuntary attachment of lands — Statutes enabled for this purpofe — Their 
 effcfls — The origin of eflates Tail. 
 
 THE involuntary alienation of feudal land, namely, the attaching, 
 and afterwards the felling it for debt, kept pace f vetty much, but 
 not ftriftly, with the voluntary alienation already treated of. It firft began 
 in cities and trading boroughs, which were either the remains of old Ro- 
 man towns, and where, confequently, the eftates were allodial ; or elfe new 
 towns, founded either by the kings, or other great lords; or their demefnes, 
 for the benefit of trades and arts within their own diftridts. External 
 commerce, during thofe confufed times, was little known or pradifed, the 
 Barbarians of the North infefting the coafts of the ocean, and the Saracens 
 and Moors, thofe of the Mediterranean. It was the interefl, therefore, of 
 every lord who had fuch a town on his territory, to give it fuch privileges 
 as would make it flourifh, and outrival the towns of like nature on the 
 lands of the king, or the neighbouring lords. For the natives of fuch 
 towns were no part of the feudal fociety, but were in the nature of focage 
 tenants in the early times, removeable, and confequently fubjeft to be taxed, 
 or, as our law calls it, talliagablc, from the French word tailler to cut f . 
 
 Talliage, confequently, was the cutting out a part from the whole of 
 the tenant's fubftance, at the will of the lord. Yet this very power of tal- 
 liage, which the lords were not for a long time inclined to part with, joined 
 to their defire to make their towns flourilh (that they might be able to bear 
 a greater talliage) put them under a neceffity of making fuch provifions, 
 and granting fuch privileges, as were neceflary for the ufe of trade and com- 
 merce, and at length, in efFeft, deflroyed that abfolute power of taxation, 
 which the king and lords had all along claimed and exercifed, and which at 
 
 U firft, 
 
 f Madox, hUl. of Exchequer, ch. 1 7. Firma burgi.
 
 154 L E C T U R E S OH the Lect. i6. 
 
 firft, for their own interefls fake (which no doubt they well underftood) they 
 had ufed with great moderation. But after the difcovery of the civil law at 
 Amalfi in Italy, in the reign of our Stephen, the kings of Europe, who 
 found therein an unlimited power of taxation in the emperor, were defirous 
 to cftablifli the like authority in themfelves ; and for that purpofe began 
 with opprefling their nobles with arbitrary fcutages, or commutations for mi- 
 litary fervices ; and the towns of their demefne with talliages, not only ar- 
 bitrary, but extravagantly beyond their power to nay without ruin |. 
 
 John of England was particularly famous for thefe extraordinary char- 
 ges ; for though his title to the crown was, at that time, by many of his fub- 
 jefl:s, and by others abroad, much doubted (as in prejudice of his elder 
 brother's fon Arthur then a minor) and his only jufl claim could be but 
 by parliamentary authority, the omnipotence of which was not then fo uni- 
 verfally admitted, never was there a prince who carried his prerogative to 
 fuch extravagant and oppreffive heights. This, at length, occafioned the 
 making Magna Charta; partly to aflert and reflore the ancient liberties of the 
 nation, which had been invaded ; partly to alter the old law, in fuch parti- 
 culars as had been the engines of oppreffion. One of the chief of thefe latter 
 remedies was the taking away the right of talliage, unlefs confented to in 
 parliament. And now were the boroughs emancipated, and the burgeffes 
 made freemen, which before they could hardly be called, while their effedts 
 lay wholly at the mercy of the lord +. 
 
 In the next reign they advanced in importance; for as the treafure of the 
 kinB,dom was in their hands, they were fure to be favoured and courted on 
 both fides, during the fierce contefts between the king and the barons. And 
 in the latter end of this reign it appears they had got admiflion into parlia- 
 ment, which not a little increafed their confequence. Edward the Firft was 
 a great favourer of merchants, and, for the fecurity of tlieir debts, intro- 
 duced the firft involuntary attachment of lands by the ad czWcAJlntutc mer- 
 chant, in the thirteenth )ear of his reign |j. 
 
 Before 
 
 + Du Cange, et Spelman, voc. Tallagium. MaJox, antiq. of the Exchcq\ic r, ch. 1 7. 
 X Hume's hift. of England, appendix 2. Madox, Finna burgi, tli. I. 
 II RuiFheadj i-ol. i. p. uj.
 
 Lect. i6. LAWS OF EN GLAND. 155 
 
 Before this time, no lands, except in boroughs by cuflom, were attach- 
 able for debt, but only in the cafe of the king, who, by right of his prero- 
 gative, could enter on the lands of his debtor, and receive the profits, until 
 he -was paid. For the fame political reafon, the furety alfo for a debt to the 
 king, if he paid the debt, was allowed to come in the king's place, and enjoy 
 the fame privilege ; but in all other cafes, the chatties were the only mark 
 for the debt. This ftatute, after reciting that merchants had fallen into 
 poverty, for want of a fpeedy remedy for recovering their dues, provides, 
 that, in every city or great town, which the king fliould appoint, there 
 fliould be kept a recognizance, that is, the acknowledgement or confeffion of 
 debts due to merchants, and of the day of payment ; and that, in cafe pay- 
 ment was not made at the day, they may, or fliould, on the application of 
 the merchant, and infpedion of the roll, imprifon the body of the debtor un- 
 til payment ; and if no payment was made within three months, (which 
 time the debtor was allowed to fell his chatties or lands) his chatties and lands 
 were to be delivered to the merchant creditor, at a reafonable valuation, or 
 extent, as it is called ; that out of the profits he might fatisfy himfelf. And 
 in cafe the debtor could not be found within the jurifdidion of the city or 
 town, or had no chatties or lands therein, then was the mayor to fend into 
 chancery the recognizance of the debt, and the chancellor was to iflue a writ 
 to the flierifF in whofe bailiwick the debtor was or had efle£ts, to adt in like 
 manner. And fo greatly was the merchant favoured, that tlio' this was but 
 an eftate; for years (it being certain, from the valuation, in what time the debt 
 would be paid), yet had he, with regard of maintaining aftions to recover his 
 pofleflion when deprived of it, the privileges of a free-holder given him, by 
 exprefs provifion in the adt. Such was the favour fliewn to merchants to 
 recover their juft demands, nor were other creditors at this time left totally 
 unprovided for, in cafes where there was a deficiency of chatties. 
 
 In the fame year a law was made for attaching the lands of perfons, in fa- 
 vour of creditors who were not merchants, but in a different manner, called 
 an elegit. I fhall here ufe the words of the ftatute, as they are fufficiently 
 plain, and eafy to be underftood. " When debt is recovered or acknowledged 
 " in the king's courts, or damages awarded, it fliall be, from henceforth, in 
 *' the eledion of him that fueth for fuch debt or damages, to have a writ to 
 " the (heriff oiferi faciat of the lands and goods" (which was the old re- 
 
 U 2 medy
 
 156 L E C T U R E S ON the Lect. 16. 
 
 medy againft the chatties) " or that the flierift' fliall deUver to him all the 
 " chatties of the debtor, faving only his oxen and beads of his plough, 
 " and the one half of his land, until the debt be levied upon a reafonable 
 " jirice or extent." After this the aft gives the fame privilege as in cafe 
 of ftatute merchant, to the creditor difpofTeffed. From his making his 
 eleftion for the extending the lands, the writ direfted to the fheriff for 
 that purpofe got the name of elegit. The difference of execution juft men- 
 tioned {hews clearly in how fuperior a light the legiflature regarded the inte- 
 refts of commerce. That the debts to merchants, in whofe profperity the 
 whole community was concerned, might be levied as foon as poffible, the 
 fecurity by ftatute merchant gave pofleffion of the whole of the land to the 
 creditor ; but the writ o^ elegit gave him poffeflion 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 flrongly regarded at the time the writ of elegit was framed, which was 
 before the ftatute of ^lia emptorcs terranan, which allowed alienation of 
 the whole. So that whatever ftretches might be found necelTary, from the 
 circumflances of merchandize, yet, with regard to the kingdom in general, 
 a fmall deviation only was made from the common law, and the elegit was 
 allowed to afleft no more by operation of law than a man was fuppofed 
 capable of alienating by his own deed j, 
 
 Two reigns after, namely, the 27th of Edward the Third, when the mart, 
 or market of the ftanding commodities of England, namely, wool, woolfels, 
 liidcs, lead and tin, was removed from Flanders into England, and a court 
 merchant was erected in all fuch places where the flaple was fixed, to be 
 held by the mayor of the ftaple, he had power given him to take recognizan- 
 ces on the debts contrafted at the ftaple, c2\\eAJiatute Jlaple, in the fame 
 nianner as oijlatiite merchant ; and as the efl'eft thereof was the fame as of^ 
 ftatute merchant, it need not be particularly repeated. However in fome 
 time afterwards, ftatute merchant was, by cuilom, extended to others bcfide 
 merchants, and became one of the common affurances of the realm. The 
 flatute flaple was llkewife extended upon furmife of the debt being con- 
 trafted at the flaple; and though an aft of Henry the Eighth in England re- 
 ftraincd this latter to its ancient bounds, yet, the fume act framed a new kind 
 
 of 
 1 An. 13. Ed. I. c. iS. ajiud RufTheacl, append.
 
 Lect. i6. LAWS OF ENGL AND. 157 
 
 of fecurity in imitation of it, common to all the fubjects, called a recognizance 
 on that act, which had all the effedls and advantages of it |. 
 
 The flatutfs of Elizabeth and tliofe fince her time, concerning bankrupts, 
 have gone much further. They not only, in the cafes they extend to, laid 
 the whole land open to the creditor, but, inftead of a poiTcilion, and gradual 
 difcharge of the debt, which was all that was given by the ftatute merchant, 
 elegit, or ftatute flaple, they gave him a more fpeedy fatisfaftion, by ena- 
 bling him to procure a fale of the lands |. But thefe later afts having never 
 been enafted in this kingdom, I fhall content myfelf with having barely 
 lilnted at them, and their effedls. 
 
 Voluntary alienations of land having gained ground, and become at 
 length eftablilhcd in England, contrary to the principles of the original 
 law ; and it being allowed for a maxim, that he that had a fee fimple, had 
 an abfolute dominion over half of his land, to difpofe of as he pleafed, and, 
 in fome cafes, of the whole ; it could not be, but that there would arife 
 many perfons fond of perpetuating their cftates in their families, and con- 
 fequently difpleafed at this power of alienation. The means they ufed to 
 attain their ends was under that maxim of law. Tenor in-vcjiitura ejl infpicien- 
 dus, or, as we exprefs it, Con-veniio vincit <& eiat inodum donation!. Every man 
 therefore, abfolute mafter of his eftate, having a right to give it on what 
 t«rnis he pleafed, they began, not as before, to give lands to a man and his 
 heirs in general, for that would have given an abfolute dominion, but to 
 heirs limited, as to the heirs of his body, or to the heirs male of his body, or 
 to the heirs of his body by fuch a woman. Here it was plain enough, that 
 none were intended to take, but fuch as came within this defcription ; and 
 by this means they hoped to defeat the power of alienation, to fecure the 
 eftate to the perfons dcfcribed, and, in failure of them, the returning or 
 reverfion of it to themfelves or their heirs. 
 
 But the judges complying with the unlverfal bent of the times to the 
 contrary, did not give thefe grants that conftru(5tion they expelled, upon 
 the natural prcfumption, that every perfon will have heirs of his body, and 
 
 that 
 f An. 23. Heniy \'ni. cap. 6. ap. RiifFliearl, vol. 2. p. 167. 
 + An. 13. Eliz. c. 7. An. I. James I. cap. 15. 21. Janicsl. cap. 19. 5. George II. c. 30.
 
 ij8 L E C T U R E S ON the Lect. i6. 
 
 that his pofterity will continue for ever. They conflrued this to be a fee 
 fimple ; and yet, not entirely to difregard the intention of the donor, to be 
 a fee fnnple conditional ; as if the words had been to a man and his heirs, 
 provided he have heirs of his body, and confequently to be alienable, and 
 forfeitable upon a certain event. And one great reafon of making this 
 conflrudion, I take to be the confideration of forefeiture for treafon and 
 felony, wlrich, by fuch grants, would be defeated by another conftruftion, 
 and men thereby rendered more fearlefs to commit crimes in thofe trouble- 
 fome times f . 
 
 Let us fee liien what eftate or power was in donor and donee immedi- 
 ately by the grant ; and what, upon the performance of the condition, name- 
 ly, the having iflue. And firft, the donee had immediately a fee fimple upon 
 the grant, contrary to Britton's opinion, that, before children born, he had 
 only an eftate for life, and afterwards a fee. This appears from hence, 
 that if a man had aliened in fee before iflue 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 hfe is an abfolute for- 
 feiture, and gives right of entry to the lejfor. The donee, then, having pre- 
 fently a fee fimple in him, that is, an eftate for ever, than which there can 
 be no greater ; it was impoflible the donor fliould have any adtual eftate or 
 intereft in the lands. He had not, therefore, a reverjion vefted in him, that 
 is, a certain pofitive right of the lands returning to him or his heirs, as he 
 would have had, if an eftate for life only had been granted. He had only 
 a \>-3XQ. p ojjibility of reverter, in cafe the donee died without iflue; or, leaving 
 any, that ifliie had failed. 
 
 For the fame reafon, of the donee's having a fee fimple, no remainder 
 could be hmitcd in fuch an eftate. If land be given to A. for life or for 
 years, and after the efflux of the life or years to B, B. hath prefently a re- 
 mainder in the lands for hfe, years, or in fee, according as the hmitation of 
 the eftate is ; becaufe it is certain that a life, or term of years, muft expire. 
 But if land be given to A. and the heirs of his body, and, in failure of 
 i'uch heirs, to B. and his heirs, this remainder to B, before the ftatute De 
 Bonis, was void, for A. had immediately an eftate for ever, and therefore 
 
 the 
 
 + Coke on Littleton, book i. cliap. 2. 5 t;'
 
 Lect. i6. L A W S OF EN GL AN D. 159 
 
 the limitation over to B. was rejeifted, as repugnant to the cftate it depen- 
 ded upon. 
 
 But though, by fuch a grant, the donee got a fee, it being dogged witli 
 a condition, he had not, to ail intents and purpofes, an abfolute power over 
 it, either with refpeft to the donor, or his own iffue. If the donor aliened 
 before iffue had, this was no bar to the donor, of his poffibility of reverter ; 
 but it was a bar to the iffue born afterwards, to enjoy the ellate tail. For 
 at this time fathers had a greater liberty to bar their children, than a ftran- 
 ger. Therefore, in this cafe, the alienee and his heirs, were to enjoy the 
 lands while the done'e, or any iffue of his body remained. But whenever 
 they failed, the donor's, or his heir's poffibility of reverter, was changed 
 into an aftual reverfion, and the land became his. For now, by a fubfe- 
 quent event, it appeared, that the legal prefumption of the eftates conti- 
 nuing for ever was ill founded. Neither, by the having of iffue, was the 
 condition performed to all purpofes, fo as to vefl:-«<in abfolute fee in the 
 donor ; for if the donee had died without iffue, or if his iffue failed, with- 
 out any alienation being made by either, in this cafe alfo, the donor's pof- 
 fibility was changed into an adlual reverfion. But by having iffue, the 
 condition was fo far performed, as to enlarge the power of the donee to 
 three fpecial purpofes ; firft, to alien abfolutely, and thereby to deftroy the 
 right of iffue, and the poffibility alfo of reverter in the donor; fecondly, to 
 charge and incumber it to the prejudice of both iffue and donor; and 
 thirdly, to forfeit it for treafon or felony, to the prejudice of both alfo. 
 Such was the conftruftion the judges made of thefe grants, which, we fee. 
 gave, in almoft all cafes, an unlimited power of alienating, contrary to the 
 intention of the donor, and the form of the gift |. 
 
 But, in the thirteenth of Edward the Firft, the lords, willing to pre- 
 
 ferve the grandeur of their families, obtained of that monarch the famous 
 
 llatute of Weftminfter the fecond, called De Donis, which by thefe words, 
 
 quod voluntas donatoris, fecimdujn formam in charta Donifui, vianifejie expref- 
 
 fam, de aetero obfervetur, ita quod non haheant illi, quibus tenementum fic fuit 
 
 datum fub conditione, potcjlatcm alienandi tcnemenium fic datum, quo minus ad 
 
 exitian i//crum, quibus tenementum fic fucrit datum, rem.aneat pojl corum obitum, 
 
 vel 
 t Wright on tenures, p. i86. et feq.
 
 i6o L E C T U R E S, ON the Lect. i6, 
 
 'vel ad donatorem vel ad ejus haredeju, fi cxitus deficiat, revertatur^, created 
 a new kind of inheritance, ejlatcs tail, which very much rcfemble the old 
 feudal donations, that were onlydefcendible to'the iflue of the firft. feuda- 
 tary. Let us fee the confequence of thefe words. Firft, fince the will of 
 the donor was to be obferved, it followed, that neither the donee, nor his 
 iflue, fliould have . power to alien, incumber, or forfeit : the confequence 
 of which was, that he could no longer have a fee fimple, as thefe are infe- 
 parable incidents to fuch an eftate ; but a lefler eft;ate, called Fee tail, from 
 the French word Tai/lerheiore mentioned, as being, like other leiTer eftates* 
 carved out of the fee fimple. 
 
 Were it to be aflced, in whom did the fee fimple rcfide ? it is plain it 
 could be in none other but the donor, who had it originally in him. 
 Therefore, by this ftatute, the poflibility of reverter, which the donor had, 
 was changed into an aftual prefent intereft, called a re-ver/ion in fee fimple. 
 But it was not always neceflary that the fee fimple fliould be in the donor ; 
 for eftates tail, being now lefs than a fee fimple, it became poflTible to li- 
 mit a remainder thereon which fliould be good : Thus, if a gift be made 
 to A. and the heirs of his body, and, in failure of fuch heirs, to B. and his 
 heirs ; in this cafe, there is no reverfion : for the donor hath parted with his 
 whole eftafc, but A. hath an eftate tail, and B. a remainder in fee fimple. 
 Many remainders may be limited on one another, as for inftance, an eftate 
 may be given to A. for years, remainder to B. for life, remainder to C. in 
 tail, remainder to D. in tail, remainder to E. in fee fimple ; but if the laft 
 remainder is not in fee fimple, but in fee tail, then is the reverfion in fee 
 fimple to the donor. 
 
 However, although a tenant in tail after this ftatute could alien only for 
 his own life, his heir in tail was not allowed to enter upon the alienee with- 
 out firft proving his right in a court of law, and this is what is meant by 
 faying, though a tenant in tail could not defiroy the efiate tail by his alienation, 
 yet be could continue it. . The rcafon of this is, that all eftates of inheritance 
 are prefumed fee fimple, until the contrary is proved, and it would be un- 
 j,uft to remove a pofleflbr, who came in by a title apparently fair, until the 
 weaknefs of that title appears judicially. This rule, however, extended 
 
 only 
 
 \. Coke's inflitutes, part 2. p. 332. Ruffhead, vol. i. p. 79.
 
 Lect. i6. L a W S of E N G L a N D. i6t 
 
 only to cflates coiporeal, that lay in liveries, not to incorporeal ones, that lay 
 in grant ; which fliews that this maxim of its working a difcontinuance pro- 
 ceeded from the feudal principle, of proteSing the pofleffor, becaufe he 
 was to do the feudal duties. 
 
 The ftatute to guard thefe inheritances from alienations, exprefsly pro- 
 vides, that even a fine levied of them in the king's courts of record (liould 
 be ipfo jure null. 
 
 The method of recovering fuch lands fo difcontinued, 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 perfons who bring them ; formedon, in the revev 
 ter, ill the defcaider, and in the rejnaiiider. Formedon in the reverter lies for the 
 donor or his heirs, and lay at the common law after the failure of iflue, where 
 the alienation was before iflue had ; but fmce the flatute, upon the failure 
 of ifTue, it lies, though the alienation be after. For?}iedon in defcender lies for 
 the iflue in tail, when the anceftor has ah^ned, and is given by the ftatute. 
 
 The form of it is as follows, " The king to the flieriff"of greeting, com- 
 
 *' mand A. that he juftly, and without delay, reftore to B. fuch a manor, 
 *' &c. which C. gave to D, and the heirs of his body, and which, after 
 *' the death of the faid D, ought to defcend to the faid B. the fon of the 
 *' faid D. by the form of the aforefaid gift, as he fays." Formedon in renmin- 
 der lies for a remainder man in tail, or his iflue, after the particular eftate 
 previous to his (whether it be for years, life, or in tail) is fpent. In the re- 
 verter, inftead of the word defcend, it is revert i in the remainder, remain f. 
 
 Having fhewn the origin of eflates tail, I fhall next confider their confe- 
 quences, and future fortune. 
 
 f Coke's inftitutes, part 2. p. 336. 
 
 LECTURE
 
 i62 LECTURES on the Lect. 17. 
 
 LECTURE XVII. 
 
 'The confeque^ues and hijlory of ejlates Tail. 
 
 THE following are the words of my lord Coke. " When all eflates 
 " were fee fimple, then were purchafers fure of their purchafes, 
 " farmers of their leafes, creditors of their debts ; the king and lords had 
 *' their efcheats, forfeitures, wardlhips, and other profits of their feignories : 
 " and for thefe, and other like cafes, by the wifdom of the common law, all 
 " eftates of inheritance were fee fimple ; and what contentions and inif- 
 " chiefs have crept into the quiet of the law by thefe fettered inheritances, 
 " daily experience teacheth us." By this enumeration of his, of the ad- 
 vantages that attended eftates of fee fimple, it is eafy to fee who were the 
 fufFerers, and wherein they fuffered, by the introdudion of eftates tail. 
 But it is a little furprizing that he fliould make fuch a flip as to fay, that be- 
 fore this creditors were fecure of their debts by all eftates being fee fimple ; 
 when the firft ftatute that gave them any hold of lands was made after this 
 ftatute De Donis, in the latter end of the fame year of the king's reign, the 
 thirteenth of Edward the Firft. Thofe, indeed, who had landed eftates at 
 that time, and their pofterity, were great gainers hereby ; but the king and 
 the nation in general were fufferers. The nation fuffered by the check that 
 commerce, then juft arifing, received, by fo much lands becoming unalie- 
 nable, and the crown fufi'ered in a double refpeft ; firft by the opportunity 
 it afforded to ftrengthen and explain the great eftates of the lords, and fe- 
 condly by the fecurity it gave when enlarged. 
 
 Soon after the conqueft, the eftates of the Englifli lords were enormous. 
 William brought over an army of 60,000 men, not levied by himfelf, (for 
 he was unable to raife or defray the cxpences of a third of that number, out 
 of the province of Normandy,) but confifting chiefly of adventurers, who 
 engaged in the expedition on the promife of forfeited lands, in proportion 
 to the numbers they brought with them. Accordingly, fome had feven 
 
 hundred
 
 Lect. 17. L A W S OF E N G L A N D. i6j; 
 
 hundred manors, others five, four, three, two, one hundred, or lefs j in- 
 fomuch, that all the lands of England, (if we except the king's dcmefnes, 
 the church lands, and the little properties annexed to cities and boroughs) 
 were in no more than about feven hundred hands, tlie principal of which 
 were petty princes, like the dukes and counts of France |. 
 
 William was fenfible, from the experience of that country, how dange- 
 rous fuch large grants would prove to the authority of the crown, and he 
 accordingly moderated them as well as his circumftances would permit. 
 That the king might not be too far removed from the view of the lower 
 people, by the hiterpofition of the great lords, their immediate fuperiors, 
 he did not, as in France, leave the whole judicial power, and the profits of 
 the county courts in the earls ; but juflice was adminlftered in the king's 
 name by his Iheriffs ; 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 alfo was referred to the king, and only a cer- 
 tain ftipend out of it, generally twenty pounds a year, aflignedto the earl j. 
 
 Another means he ufed of difarming them of the too great powers im- 
 moderate eflates would have given them, was avoiding the rock the French 
 court had fplit on, the giving vaft 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 afled more prudently. He generally gave to 
 an earl twenty knights fees, which was the proportion of an Englifli earldom 
 in the county, whofe title he bore; perhaps thirteen, or a barony, in another 
 county ; and the remainder, he was to give, either in baronies in diftant 
 counties, or more generally in fmgle knights fees, difperled through all En- 
 gland. This was his general method, except to a few of his near relations, 
 to whom he gave palatinates vjithjura regalia, which were exactly in the na- 
 ture of the French dutchies and counties |j. 
 
 Another prudent flep he took for the benefit of his fucceflbrs, was the 
 making all his gxssiXs feminine Jiefs. For as, in a courfe of feveral defcents, 
 
 X 2 it 
 
 f Hume's hift. of England, vol. i. Carte's hift. 382, 3S3, 384, 420. Bratly's liift. 
 append. 
 
 X Seiden, t.t. hen. part 2. cua^). 5. \ 3. || Ibid. \ 8, and 9.
 
 164 LECTURES ON the Lect. ly. 
 
 /' 
 
 it mufl happen that lineal males would frequently fail, by admitting the 
 daughters in that cafe, thefe vafl inheritances were frequently broken, as 
 females fucceeded equally. His fucceffors followed his plan, and for that 
 purpofe, not only permitted, but encouraged their great vaflals to alien, 
 and difmember their properties ; and whenever a great efcheat fell, were 
 always fure, unlefs there was a prince of the blood to be provitled for, to 
 divide it into many hands. 
 
 Both kings and people received the advantages, and would have re- 
 ceived more, if this policy had continued. The immediate tenants of the 
 crown being encreafed in number, and leflened in wealth, were not able to 
 confederate fo eafily againfl the crown ; and, fenfible of their being weak- 
 ened, had occafion for the fupport of the lower rank of the people, whom, 
 confequently, they treated with more gentlenefs and equality than before. 
 But this ftatute of entails put a flop to the progrefs that courfe of things 
 were in ; eftates became unalienable, and indivifible. 1 he property of no 
 lord could leflTen ; and if it happened, as it frequently did, that they acquir- 
 ed, either by defcent or marriage, or the purchafe of an eftate not tied up, 
 a new entail conneded it infeparately with the old one ; and thus the lords, 
 towards the end of the Plantagenet line, grew up to fuch a pitch of power, 
 as was dangerous to the conftitution, and when they were divided into the 
 faftions of the York and Lancafter, deluged the land with blood. 
 
 The king faw the mifchief betimes, but the mifchief was done. The 
 aft was pafled, and to get it repealed vras impofllble. They had nothing 
 left, but to find means to elude it by conftruftion of law, wherever they 
 could. The fcheme was readily embraced by the judges and lawyers, who 
 had raifed great outcries againfl: thefe fettered inheritances, and were joined 
 by all the trading and indufl:rious people, and even by the younger branches 
 of thefe great families, whofe fathers were thereby difabled to provide for 
 them. 
 
 The firfl: means found out was by collateral warrtinfy. Before this ftatute 
 all warranties by an anceftor bound the heir at law, although no land de- 
 fcended from that anceftor, upon the prefumption that no man would dif- 
 inherit his heir, without leaving him a recompence. But this could be no 
 
 longer
 
 Lect. 17. LAWS OF E N G L A N D. 165 
 
 longer the law In general ; for, if fo, the anceflor in tail might, by his 
 •warranty, defeat the tail, contrary to the ftatute, which fays. The ivill of 
 the donor JJmll be obferved. They therefore made now a difllndion between 
 a //«if^/ 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 ftranger 
 to the entail. In the firft cafe they held it no bar, unlefs aflets defcended ; 
 that is, an eftate in fee fimple, equal in value. But in the latter cafe, that 
 no affets defcended, they held it at bar as at common lawf. 
 
 To illullrate 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 
 fliall not bind the fon ; but if B. the brother of A. who has nothing to fay 
 to the entail, joins in the alienation with warranty, or releafes to the alienee 
 with warranty, or difleizes A, and then aliens with warranty, and dies with- 
 out iffue, fo that A's fon is his heir, this warranty is collateral to the entail, 
 and without aflets fliould bind the fon of A, as at common law. At firrt 
 view it may feem furprifing how this conftruftion gained ground againfl: the 
 exprefs words of the ftatute, Vohmtas donatoris de catero obfcrvctur ; 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 
 aft, which, reciting the mifchief, fpeaks only of the alienation of the tenant 
 in tail, that is, of lineal warranty. They reftrained, therefore, out of dif- 
 favour to thefe fettered eftates, the general words in the enacting part, to 
 the particular cafe mentioned in the preamble, on this ground, that the 
 common law was not to be altered without it appeared undeniable that the 
 legiflator intended it ; and here, as to collateral alienation, they are filent. 
 This was the firft device ufed to defeat eftates tail, namely, by getting a 
 collateral relation, whofe heir the iflue in tail was to be, to concur in the 
 alienation, and to bind himfelf and heirs to warranty ; which was generally- 
 obtained for a fmall confideratlon, as fuch perfon could never be a gainer 
 by the eftate tail, fmce it could in no cafe come to him- 
 
 When once this rule of collateral warranty barring an eftate tail, was 
 fettled, attempts were made to prevent its taking efteft, and to continue 
 fuch eftate notwithftanding. Jude Richel, in Richard the Second's time, 
 
 led 
 
 -J- Coke on Littleton; lib. 3. chap. 13. § 703, 709.
 
 i66 L E C T U R E S ON the Lect. 17. 
 
 led the way ; he having fettled lands on his eldefi: fon in tall ; remainder to 
 his fecond fon in tail ; adds, that the lands are given on this condition, 
 that, if the eldefl fon ftiould alien, that inftant his eftate fliould ceafe and 
 determine, and the land remain to the fecond fon and the heirs of his body. 
 Here he imagined he had got clear of collateral warranty, becaufe the firft 
 eflate was to determine, and the fecond to commence immediately on the 
 alienation, and before any collateral warranty could defcend on the fecond. 
 But the judges determined this condition to be void ; for which Littleton 
 gives three reafons, drawn rather from the art of law, than from the prin- 
 ciples of plain reafonf. The true ground feems to be this : 
 
 In every reign, from Edward the Firft down to Edward the Fourth, bills 
 were brought into parliament to repeal the ftatute De Donis, as Coke in- 
 forms us, but had conftantly mifcarried, as the eftates of the majority in par- 
 liament were entailed. The only relief found out at that time-againft their 
 mifchiefs was this collateral warranty ; and if Richel's conditions were to 
 be adjudged good, all eflates tail would have been made with fuch condi- 
 tions, and there would have been an end of that method of defeating them. 
 The fame was the fate of a fimilar fettlement of Judge Thirning, who took 
 the advice of his cotemporary judges, in wording his condition fo as to 
 make it effe£lual ; but their fucceflbrs were of a different opinion, and re- 
 jefted it. However, thefe collateral warranties not being to be got in all 
 cafes, the relief was but partial, and extended only to particular cafes. 
 And the tenant in tail himfelf could by no aft of his, in concurrence 
 with any other perfon, except a collateral anceflor of the iflue in tail, bar 
 them. 
 
 At length the judges found out a device, by a fi£lion in law, to enable 
 him to bar his iilue, and all remainders, and reverfions. A. brings his 
 aftion real againft B, tenant in tail, and alledges the lands in tail to be his 
 A's right and inheritance, when in truth he hath no title thereto ; B. comes 
 in, and voucheth C. to warranty, who enters into warranty, and after, 
 when he Ihould defend, makes default, fo judgment is given for A. againft 
 B. and for B. to recover in value againft C. Here, though C. has no land 
 , to render in value, the judges have conftrued B, and all that fliould come 
 
 after 
 
 \ Lib. 3. clap. 13. § 720,
 
 Lect. 17. LAWS OF EN G LA ND. 167 
 
 after him, to be barred ; becaufe if C. ever after purchafed lands, thefe 
 lands might be recovered from him, by virtue of the former judgment ; 
 and fo there was a pofllbility of a recompence. Though this decifion at 
 firfl created great outcries, and even in Henry the Eighth's reign was but 
 weakly defended in equity and confcicnce, by the author of Doftor and Sfii^ 
 dent, yet the judges, for the public good, conftantly adhering to it, and 
 thefe common recoveries being taken notice of and approved of by fubfe- 
 quent afts of parliament, are at length grown to be common aflurances of 
 lands, and, pafling in the court of record, are the befl fecurities of eftates f. 
 
 The bearing of eftates tail, by fine pafTed in the king's courts, grew up 
 another way, and is founded on an aft of parliament in Henry the Seventh's 
 reign, and is indeed, properly fpeaking, a partial repeal of the ftatute De 
 Donis, fmce it puts it in the tenant in tail's power to deftroy it, by obfer- 
 ving certain folcmnities. Though common recoveries had been invented 
 fome years before, yet as they had not had time to grow up to fuch a de- 
 gree of firmnefs as to be fufficiently depended upon, their legality was ftill 
 doubted, and it was not certain that future judges would give them the 
 fame conftruftion which their predecefTors had done. Therefore, that po- 
 litic prince Henry the Seventh, who faw, in all its lights, that fuperiority 
 which the prefervation of landed property in their families gave to the no- 
 bles, a fuperiority which had cofl. fome of his predeceflbrs their lives and 
 crowns, freed lawyers from the trouble of inventing future devices againft 
 fcntails, by getting the famous a6l pafTed in the fourth year of his reign, 
 which made a fine, with proclamations to conclude all perfons, ftrangers as 
 well as privies \. 
 
 It was the purport of, and fo it is exprefled in the ftatute De Dvnh, that 
 
 a fine levied of entailed lands fhould be ipfojure null, and it is the intent of 
 
 this aft, on the contrary, that a fine, levied with the prefcribed folemnity, 
 
 fliould be valid to bar the perfons therein intended to be barred. There is 
 
 a claufe, indeed, in this aft, faving the right and interefts of all perfons, 
 
 which accrued after the ingrofling of the fine, they purfuing their rights 
 
 within 
 •)■ Saintgerman, cap. jo. 
 
 t Bacon, voc. Fine and Recovery. An. 4. Hen. VII. C. 24. ap. RufFhead, vol. 2, 
 p. 79-
 
 i68 L E C T U R E S ON the Lect. 17. 
 
 within a certain time after they accrued. This claufe was apparently thrown 
 in to make the a£l pafs, and to deceive the enaftors into an opinion, that it 
 would not afFeft eftates tail ; and on this claufe a doubt occurred in that 
 reign, whether the iffue of tenant in tail could be barred by this ftatute, and 
 that, notwithllanding by the tenor of it, privies were barred. The quertion 
 was, whether the ftatute meant privies to the fine, or privies to the eftate of 
 the perfon levying it ? The iffue were not privies in the firft fenfe, but were 
 in the latter. The judges embraced the opportunity this ambiguity gave 
 them, of defeating entails, and bound the iffue by the fine. A ftatute of 
 the fucceeding prince approved of that conftruQion, gave it retrofpeft, and 
 prevented all ambiguity for the future |. 
 
 Thus were eftates tail no longer certain perpetuities, but defeafible upoa 
 performing certain requifite folemnities. Still however they continued not 
 to be forfeitable for crimes, which was a point not to be got over without 
 an ad of parliament, and there was little likelihood of obtaining fuch an 
 one ; but Henry the Eighth fnatched the lucky opportunity his fituation 
 gave him, of gaining this important point, in the 26th year of his reign, 
 when he had quarrelled with the Pope, and all hope of accommodation 
 vanifhed ; when a fentence of excommunication was denounced againft 
 him, and numbers of his fubjecls, many of them of great fortunes, bigoted- 
 ly attached to the old religion, were known to meditate rebellion. The 
 parliament, the majority of which were of the new profeffion, feeing no 
 other means to preferve the fecurity of the ftate, and the proteftant religion, 
 yielded at length to the paffmg of an acl for that purpofe |. 
 
 However, there were not wanting perfons after this, willing to create 
 perpetuities, in which they were always difappointed by the decifion of the 
 judges. The firft device was by giving eftates upon condition, that if te- 
 nants in tail fliould levy a fine, or fuffer a recovery, the eftate fhould ceafe, 
 and go over to the next iffue intitled. But the judges rejefted fuch con- 
 dition, for the fame reafon as in Richel's cafe. They adjudged the right of 
 barring by a fine or recovery to be an incident infeparable to a fee tail, and 
 
 aU 
 
 f An. 52. Hen. VIII. c. 36. ap. Ruffhead, vol. 2- p. 296, 
 J RuiFhead, vol. ?. p. 216.
 
 Lect. 17. L A W S OF E N G L A N D. 169 
 
 all conditions repugnant thereto idle and void ; for how could the law fuf- 
 fcr that an eftate, by previous aft of the donor, fliould, upon a judgment at 
 law, become veiled in any other perfon than him who recovered ? Thefe 
 ingenious conveyancers, finding that the limitation upon breach of the con- 
 dition came too late, as the eftate had already gone in another channel, 
 framed the condition thus ; that if tenant in tail jhould go about to levy, &c. 
 or make any covenant to levy, or hold any communication about levying, &c. the 
 ejlatc Jhould then, 8zc. But thefe were all condemned upon the old principle,, 
 and ftill more for their vaguenefs and uncertainty. 
 
 LECTURE
 
 170 L E C T U R E S ON the Lect. ig. 
 
 LECTURE XVIII. 
 
 The conjihut'ion of a feudal monarchy — The dignity and revenues of the King-— 
 An examination of his power as to the raifing of taxes andfubfidies, 
 
 AS, in my former ledures, I drew a general (ketch of the nature and 
 form of the governments that prevailed among the northern nations 
 whilfl: they remained in Germany, and what alterations enfued on their be- 
 ing removed within the limits of the Roman empire, it will be now proper 
 to fhew, in as brief a manner as may confifl with clearnefs, the nature and 
 conftitution of a feudal monarchy, when eftates were become hereditary, 
 the feveral conftituent parts thereof, and what were the chief of the peculiar 
 rights and privileges of each part. This refearch will be of ufe, not only to 
 underfliand our prefent conftitution, which is derived from thence, but to 
 make us admire and efleem it, when we compare it with that which was its 
 original, and obferve the many improvements it has undergone. From 
 hence, likewife, may be determined that famous queftion, whether our 
 kings were originally abfolute, and all our privileges only conceffions of 
 theirs ; or whether the chief of them are not originally inherent rights, and 
 coeval with the monarchy ; not, indeed, in all the fubjeds, for that, in old 
 times, was not the cafe, but in all that were freemen, and, as all are fuch 
 now, do confequently belong to all. 
 
 To begin with the king, the head of the political body. His dignity 
 and power were great, but not abfolute and unlimited. Indeed, it was im- 
 poflible, in the nature of things, even if it had been declared fo by law, 
 that it could have continued in that ftate, when he had no Handing force, 
 and the fword was in the hand of the people. And yet it mufl: be owned 
 his dignity was fo high, as to give a fuperficial obferver fome room, if he 
 is partially inclined, to lean to that opinion. All the lands in his dominions 
 were holden of him. For, by degrees, the allodia had been clianged into, 
 and fuppofed to have been derived from, his original grant, and confequent- 
 ly revertible to him. But then, the land proprietors had (on fulfilling the 
 
 conditions
 
 Lect. i8. LAWS OF ENGL AND. 171 
 
 conditions they were bound to) a fecure and permanent intereft in their 
 pofTcinons. He could neither take them away at pleafure, nor lay taxes or 
 talliages on them by arbitrary will, which would have been little different. 
 Since, in Magna Charta, we find the people infilling that the king had no 
 right to affefs the quantity of efcuage, which was a pecuniary commutation 
 for military fervice, nor to lay talliages on his other fubjefts, but that both 
 mufl: be done in parliament. He was a neceflary party to the making new 
 laws, and to the changing and abrogating old ones ; and from him they re- 
 ceived their binding force, infomuch that many old laws, tho' paffed in par- 
 liament, run in the king's name only. For, in thofe days, perfons were 
 more attentive to fubflance than forms ; and it was not then even fufpeft- 
 ed, in any nation of Europe, that any king would arrogate to himfelf a 
 power fo inconfiftent with the original freedom of the German nations. 
 Nay, in France, to this day, the king's edifts are not laws, until regillered 
 in parliament, which implies the confent of the people, tho' that confent is 
 too often extorted by the violent power that monarch has affumed over the 
 perfons and liberty of the members of that body f . 
 
 The dignity of the king was fupported, m the eyes of the people, not 
 only by the fplendor of his royalty, but by the lowly reverence paid him 
 by the greateft of his lords. At folemn feafts they waited on him on the 
 knee, or did other menial offices about his perfon, as their tenures re- 
 quired, and did their homage and fealty with the fame lowly and humilia- 
 ting circumftances that the meanefl of their vaflals paid to them. His per- 
 fon likewife was facred, and guarded by the law, which inflided the mofl 
 horrible punifhment for attempts againfl him ; neither was he to be refiftedj, 
 or accountable for any private injury done perfonally by himfelf, on any 
 account whatfoever. For the ftate thought it better to fuffer a few per- 
 fonal wrongs to individuals, than to endanger the fafety of the whole, by 
 rendering the head infecure. 
 
 But the greateft of the kingly power confifted in his being entirely en- 
 trufted with the executive part of the government, both at home and abroad. 
 At home juftice was adminiftered in his name, and by officers of his ap- 
 
 Y 2 pointment. 
 
 f Hottoman. Franco-Gall. Boulainvilliers on the antient parliaments of France. 
 Fonefcue de laud. leg. Angl. cap. ^/\. 36.
 
 172 L E C T U R E S ON the Lect. iS. 
 
 pointment. He had, iikewife, the difpofal of all the great offices of the 
 ftate, with an exception of fuch as had been granted by his predeceflbrs in 
 fee, and of all other offices and employments exercifed in the kingdom im- 
 mediately under him. Abroad he made war and peace, treaties, and tru- 
 ces as he pleafed. He led his armies in perfon, or appointed commanders ; 
 and exercifed, in time of war, that abfolute power over his armies that is 
 eflential to their prefervation and difcipline. But how was he enabled to 
 fupport the expence of the government, or to provide for the defence of 
 the kingdom, or carry on a foreign war ; fmce, if he was not furniflied in 
 that refped, thefe high-founding prerogatives had been but empty names, 
 and the ftate might have periflied ? and if he could at pleafure levy the ne- 
 ceflary fums, he being fole judge of the neceffity, both as to occafion and 
 quantity, as Charles the Firft claimed in the cafe of fliip-money, the ftate of 
 the fubjefl: was precarious, and the king would have been as abfolute a mo- 
 narch as the prefent king of France or Spain f . 
 
 But abundant provifion was made on this head, and that without over- 
 burdening the fubjeft, for fupporting the ordinary expences of the govern- 
 ment. A vaft demefne was fet apart to the king, amounting, in England, 
 to one thoufand foirr hundred and twenty-two manors, as alfo many other 
 lands, which had not been erefted into manors. Befides thefe, he had the 
 profits of all his feudal tenures, his worfliips, marriages, and reliefs ; the 
 benefit of efcheats, either upon failure of heirs or forfeiture ; the goods of 
 felons and traitors ; the profits of his courts of juftice ; befides many other 
 cafualties, which amounted to an immenfe revenue ; infomuch, that, we 
 are informed, that William the Conq^ueror had L. 1061 : los. a-day, that is, 
 allowing for the comparative value of 'money,/^n(far four millions a-year ; 
 fo that Fortefcue might well fay, that, originally, the lung of England was 
 the richeft king in Europe. Such a fum was not only fufficient for the oc- 
 cafions of peace, but out of it he might fpare confiderably for the exigen- 
 cies of war I . 
 
 This revenue, however great, was not fufficient to fupport a war of any 
 importance and continuance, befides the extraordinary expence of govern- 
 ment. 
 
 ■}• Craig, de feud. lib. I. diegef. 16. Du Cange voc. Dominicum. 
 :); Madox, hift. Excheq. Carte's hift. of England, vol, i. p. 423.
 
 Lect. i8. LAWS OF ENGL AN D. 173 
 
 mcnt. It remains, therefore, to fee what provifion this conftitution made, 
 in addition to what the monarch might fpare, for the defence of England, 
 as it might be attacked cither by land or fea. For the former, every fea- 
 port was, in proportion to its ability, obliged to find, in time of danger, at 
 their own expence, one or more fhips properly furniflicd with men and 
 arms ; which, joined to fuch other fliips as the king hired, were, in gene- 
 ral, an overmatch for the invaders. But if the enemy had got footing in 
 the country, the defence at land was by the knights or military tenants, 
 who were obliged to ferve on horfeback in any part of England ; and by 
 the focage tenants, or infantry, who, in cafe of invafion, were likewlfc 
 obliged to ferve, but not out of their own country, unlefs they themfelves 
 pleafed, and then they were paid by the king. 
 
 With refpeft to carrying on offcnfive war into the enemy's country, the 
 king of England had great advantages over any other feudal monarch. In 
 the other feudal kingdoms the military vaflals were not obliged to ferve in 
 any offenfive war, unlefs it was juft, the determination of which point was 
 in themfelves ; but William the Conqueror obliged all to whom he gave 
 tenures to ferve him ubiamque ; and though he had not above three hun- 
 dred, if fo many, immediate military tenants under him, yet thefe were 
 obliged, on all occafions, to furnilh fixty thoufand knights compleatly 
 equipped, and ready to ferve forty days at their own expence. If he want- 
 ed their fervice longer, he was obliged to obtain it on what terms he could. 
 There is, therefore, no reafon to wonder that the king of England, though 
 mafter of fo comparatively fmall a territory, was, in general, an overmatch, 
 in thofe early times, for the power of France. As for infantry in his foreign 
 wars, he had none obliged to attend him. Thofe he had were focage te- 
 nants, whofe fervices were certain ; fo tliat he was obliged to engage, and 
 pay them, as hired foldiers. As the focage tenants in his dominions had a 
 good fhare of property, and enjoyed it without oppreflion, it is no wonder 
 the Englifli archers in thofe days had a gallant fpirit, and were as redoubt- 
 able as the Englilh infantry is at prefent. 
 
 To fupport thefe military tenants, who ferved after the neceffary time, 
 and likewife his infantry (as the furplus of his ordinary revenue would not 
 fuffice) he had cujlonis and taUiages, and aids 2ind fuhftdics granted by parlia- 
 ment. Thefe cuftoms, or fo much paid by merchants on the exportation 
 
 of
 
 174 L E C T U R E S ON the Lect. iS. 
 
 of goods, were of two kinds ; as paid either by merchant Jirangers^ or by 
 merchant denizens |. 
 
 The cufloms paid by merchant Grangers were not originally fettled by 
 aQ: of parliament, but by a compad between the merchant ftrangers and 
 king Edward the Firfl. In the Saxon times the king had a power of ex- 
 cluding ftrangers from his kingdom, not merely with an intention of in- 
 ducing their own people to traffick, but chiefly to keep out the Danes, who 
 were the maflers of the fea ; left, under pretence of trade, they might get 
 footing in, and become acquainted with the ftate of the kingdom. They 
 were, accordingly, admitted by the kings upon fuch terms as the latter 
 were pleafed to impofe ; but Edward, who had the fuccefs and profperity 
 of his kingdom at heart, came to a perpetual compofition with them j gave 
 them feveral privileges, and they gave to him certain cufloms in return. 
 What fliews they had their origin from confent is, that the king could not 
 raife them without applying to parliament. The cuftoms of natives or 
 denizens were, certainly, firft given to the king by parliament ; though 
 this has been denied by fome, merely becaufe no fuch ad is to be found, 
 as if many of the antient a£ts had not been loft ; but there are adts and 
 charters ftill extant, which exprefsly fay they were appointed and granted 
 by parliament, without the power of which they could not be either altered 
 or enlarged. 
 
 The difference between the cufbms and the other aids I have men- 
 tioned, viz. talliages and fubfidies, is, that the latter were occafional, 
 granted only on particular emergencies, whereas the cujloms were for ever. 
 If it be afked how they came to be granted in tliat manner, we muft refer 
 back to the original ftate of boroughs and their inhabitants, traders, in the 
 feudal law. In France, the Roman towns were taken into protedion, and 
 had their antient privileges allowed them ; but in the feries of wars that 
 happened in that counti7 for ages, every one of them in their turns were 
 flormed, and reduced to vaflalags, either to the king or fome other great 
 lord ; and as, now, thefe lords had learned that the Roman emperor laid 
 on taxes at his pleafure, it was but natural they fhould claim the fame right, 
 cfpecially over towns they had taken in war. The burgefTes, therefore, be- 
 came 
 
 f Carte, ibid. Hume, append, 2. Madox, antiq. of the Exclieq. pafTim.
 
 LxcT. iB. LAWS OF ENGLAND. 175 
 
 came in the nature of villaine, not indeed of common villains, for that 
 would abfolutely have deftroyed trade, but with refpeft to arbitrary taxa- 
 tion, which, however, if the lord was wife, was never exorbitant. In Eng- 
 land, I apprehend, they became villains ; for the Saxons were a murdering 
 race, and extirpated the old inhabitants. However, wife kings, confidering 
 the advantages of commerce, by degrees, beftowed privileges on certain 
 places, in order to render them flouriCbing and wealthy ; and at length, about 
 the time of Magna Charta, or before, when every uncertain fervice was vary- 
 ing to a certainty, this privilege was obtained for merchant adventurers- 
 But the other burgeffes, that did not import or export, and likewife villains, 
 were ftill talliageable at will. This was reftrained by Magna Charta, which 
 declares all talliages unlawful, unlefs ordained by parliament f . 
 
 To come to the latter head, whether taxes, aids, arid fubfidies c-an be 
 aflefl'ed by the king, as fole judge of the occafion, and the quantum — or 
 whether they mud be granted by parHament, was the great and principal 
 contefl between the two firfl: princes of the unfortunate houfe of Stuart and 
 their people, and which, concurring with other caufes, coft the laft of them 
 his_^85aa3 throne. To fay nothing of the divine hereditary right urged on 
 the king's behalf, and which, if examined into flriftly, no royal family in 
 Europe had lefs pretenfions to claim, both fides referred themfelves to the 
 antient conftitution for the decifion of tliis point. The king's friends urged 
 that all lands were holden from him by fervices, and that this was one of 
 his prerogatives, and a neceffary one to the defence of the ftate. They 
 produced feveral inftances of its having been done, and fubmitted to, not 
 only in the times of the worft, but of fome of the belt kings ; and as to 
 afts of parliament againft it, they were extorted from the monarchs in par- 
 ticular exigencies, and could not bind their fucceffors, as their right was 
 from God. 
 
 The advoca:tes of the people, on the other hand, infilled, that, in Eng- 
 land, as in all other feudal countries, the right of the king was founded on 
 compaft ; that William the Conqueror was not mafter of all the lands in 
 England, nor did he give them on thefe terms ; that he claimed no right 
 but what the Saxon kings had, and this they certainly had not ; that he 
 
 eftabliflied 
 
 t Firma Burgi, ch. 4. j. 11.
 
 176 L E C T U R E S ON the Lect. 18. 
 
 eftablifhed and confirmed the Saxon laws, except fuch as were by parlia- 
 ment altered ; that he gave away none but the forfeited lands, and gave 
 them on the fame terms as they were generally given in feudal countries, 
 where fuch a power was in thofe days unknown. They admitted, that, in 
 fact, the kings of England had fometimes exercifed this power, and that, 
 on fome occafions, the people fubmitted to it. But they infilled, that mofl: 
 of the kings that did it were opprefTors of the worfl: kind in all refpefts ; 
 that the fubjefts, even in fubmitting, infifted on their ancient rights and 
 freedom, and every one of thefe princes afterwards retraced, and confeffed 
 they had done amifs. If one or two of the belt and wifefl; of their kings 
 had pradifed this, they infifted that their anceftors acquiefcence once or 
 twice, in the meafures of a prince they had abfolute confidence in, and at 
 times when the danger, perhaps, was fo imminent as to flare every man in 
 the face, (for it was fcarce ever done by a good prince) as when there was 
 not a fleet already affembled in the ports of France to waft over an army, 
 fhould not be confidered as conveying a right to future kings indifcrimi- 
 nately, as a furrender of their important privileges of taxation. They infill- 
 ed that thefe good and wife kings had acknowledged the rights of the people ; 
 that they excufed what they had done, as extorted by urgent necefTity, for 
 the prefervation of the whole ; that, by repeated a£ls of parliament, they had 
 difavowed this power, and declared fuch proceedings fhould never be drawn 
 into precedent. They obferved, that there was no occafion for the vafl 
 demefne of the king, if he had this extraordinary prerogative to exert when- 
 ever he pleafed. They denied the king's divine right to the fuccelTion of 
 the crown, and that abfolute unlimited authority that was deduced from it. 
 They infifted that he was a king by compaft, that his fuccelTion depended 
 on that compaft, 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 magiflrate hath. They inferred, therefore, that he was 
 a limited monarch, and confequently that he and his fuccelTors were bound 
 by the legiflative, the fupreme authority f . 
 
 The advocates of the king treated the original compa£l as a chimera, and 
 dcfired them to produce it ; which the other fide thought an unreafonable 
 demand, as it was, they alledged, tranfaded when both king and people 
 
 were 
 
 f Bibliotheca politica, Dial. 5. and jo.
 
 Lect. i^. laws of E N G L a N D. 177 
 
 were utterly illiterate. They thought the utmofl proof poffible was given 
 by quoting the real afts of authority, which the Saxon kings had exercifed ; 
 among which this was not to be found ; that the Norman kings, though 
 fome of them had occafionally praftifed it, had, in general, both bad and 
 good princes, afterwards difclaimed the right, and that it never had (though 
 perhaps fubmitted to in one or two inftances) been given up by their 
 anceftors, who always, and even to the face of their bed princes, infifled 
 that it was an encroachment on thofe franchifes they were intitled to bj- 
 their birthright. 
 
 Such, in general, were the principles on which the arguments were 
 maintained on both fides : for to go into mimitia:, would not confift with 
 the defign of this undertaking. I apprehend it will be evident from this 
 detail of mine, though I proteft I defigned to reprefent both fides fairly, 
 that I am inclined to the people in this queflion. I own I xhmk that any 
 one that confiders impartially the few monuments that remain of the old 
 Saxon times, either in their laws or hiftories, the conftant courfe fmce the 
 conquefl, and the praftice of nations abroad, who had the fame feudal 
 policy, muft acknowledge, that though this right was claimed and exercifed 
 by John, Henry the Third, Edward the Firft, Second, and Third, Richard 
 the Second, and Henry the Eighth, it was in the event difclaimed by every 
 one of them, by the greateft of our kings, Edward the Firft and Third, 
 and Henry the Eighth, with fuch candour and free will, as inforccd confi- 
 dence in them ; by the others, in truth, becaufe they could not help it. I 
 hope I fliall fland excufed, if I add, that the majority of thofe who engaged 
 in the civil war, either for king Charles, or againft him, were of the fame 
 opinion. For, had he not given up this point, (and indeed he did it with 
 all the appearances of the greateft fincerity) he would not have got three 
 thoufand men to appear for him in the field. But, unfortunately for his 
 family, and us, (for we ftill feel the effeds of it from the popifh education 
 his offspring got abroad) his conceffion came too late. He had loft the 
 confidence of too many of his people, and a party of republicans were 
 formed ; all reafonable fecurities were certainly given ; but upon pretence 
 that he could not be depended upon, his enemies prevailed on too many to 
 infift on fuch conditions, as would have left him but a king in name, and 
 unhinged the vi^hole frame of government. Thus the partizans of abfolutc 
 
 Z monarchy
 
 178 L E C T U R E S ON the Lect. iS. 
 
 monarchy on one fide, and the republicans, with a parcel of crafty ambi- 
 tious men, who for their own private views affefted that charafter, on the 
 other, rented the kingdom between them, and obliged the honeft, and the 
 friends to the old conftitution, to take fide either with one party or other, 
 and they were accordingly, for their moderation and defire of peace, and a 
 legal fettlement, equally defpifed which ever they joined with f 
 
 I fhall malce but one obfervation more ; that though it is very falfe rea- 
 foning to argue from events when referred to the decifion of God, as to the 
 matter of right in queftion ; I cannot help being ftruck with obferving, that 
 tliough this has been a queflion of five hundred years Handing in England, 
 the decifion of providence hath conftantly been in favour of the people. If 
 it has been fo in other countries for two hundred or two hundred and fifty 
 years part, which is the utmoft, let us invefligate thecaufes of the difference, 
 and act accordingly. The ancients tell us it is impofible that a brave and 
 virtuous nation can ever be Haves, and, on the contrary, that no nation that 
 is cowardly, or generally vitious, can be free. Let us blefs God, who hath 
 for fo long a time favoured thefe realms. Let us aft towards the family 
 that reigns over us, as becomes free fubjefts, to the guardians of liberty, 
 and of the natural rights to mankind ; but above all, let us train pofterity, 
 fo as to be deferving of the continuance of thefe bleffings, that Montefquieu's 
 prophecy I may never appear to be juflly founded. 
 
 "England (fays he) in the courfe of things, mu/i lofe her liberties, 
 " and then Ihe will be a greater Have than any of her neighbours." 
 
 I Biblioth. polit. 320. .^30. 333. 339. 356. 357- 37o. 
 i L'Efprit (]<;s lojx, !iv. 11 chap. 6. 
 
 \ 
 
 LECTURE
 
 Lect. 19. LAWS OF ENGLAND. lyc 
 
 T) 
 
 LECTURE XIX. 
 
 The King^s power as to the making, repenlbigy altering, or difpeyifitig with laivs. 
 
 HAVING, in the laft le£lure, begun to draw the outlines of a feudal 
 monarchy, particularly, as it antiently was in England, in order thai 
 it may be more eafy to underfland the nature of our prefent conflitution ; 
 and to fee how far, and in what particulars, it has deviated from its origi- 
 nal, either for the better, or the worfe ; and having, for that purpofe, be- 
 gun with the regal prerogatives, and particularly with that important one, 
 the raifing of money, it will be proper to proceed to the king's power as to 
 the laws, either in the making, repealing, altering, or difpenfing with them : 
 for thefe powers are now exercifed by the fovereigns in almoft all the mo- 
 narchies that were antiently feudal, and have been claimed likewife in Eng- 
 land. That this power could not originally have been in the king, in any 
 feudal ftate, is plain from the detail I have given of the old German go- 
 vernments, and of the gradual progrefs and formation of the European 
 kingdoms from thence ; and it would not only be an entertaining, but ufeful 
 ftudy for gentlemen of fortune, to trace, through the hiftory of every na- 
 tion, the feveral fleps whereby the liberties of the people have been under- 
 mined, until the whole power hath fettled in the monarch ; but I fhall con- 
 tent myfelf with a few obfervations on this fubjeit, drawn from the Hiftory 
 of England, and fuch as, in my apprehenfion, will be fufficient to fettle 
 this point as to us. 
 
 If the monarchies on the continent were not abfolute in this refpeft, much 
 lefs could the Saxon kings pretend to fuch a power, from the very nature of 
 the foundation of their kingdoms. The Franks, the Goths, the Burgun- 
 dians, and others on the continent, were led to conqueft by thofe who had 
 been previoufly their kings, and who had a ftable and fettled authority over 
 them. Very different was the fettlement of the Saxons in Britain. Neither 
 Hengift, nor any of their firft kings, had been kings in Germany. They 
 were mere leaders of companies of freebooters, who had aflbciated thcm- 
 
 Z 2 felves
 
 i8o LECTURES on the Lect. 19. 
 
 fdves firfl for plunder, and afterwards to fix themfelves in new feats, in 
 imitation of the other German nations. Their leaders, therefore, could 
 have no powers, but what were conferred upon them by their followers j 
 and that laiv-making was not one of thofe powers, appears from the fre- 
 quent meetings of their witenagemots, which was the name they gave to 
 their general affemblies, or parliaments ; and from all the laws of theirs 
 now extant being made in them. It was the boall of the good and wife 
 king Alfred, that " he left the people of England as free as the internal 
 " thoughts of man," a fpeech which could never have proceeded from the 
 mouth of one who had the leaft notion of the almighty power of kings over 
 the laws. His fucceffors were of the fame opinion. The law of Edward 
 the Confeffor, v/hich was ratified by the Conqueror, fays, Debet rex omnia 
 rite facere in regno, dr per judicium procerum regtii, and if omnia, furely the 
 making and repealing of laws, the moft important of all |. 
 
 Our hiftorians and records from that time down undeniably Ihew who, 
 in every age, were the legiflators, and that the kings alone were not fo. 
 The fame is exprefsly delivered by all the old writers on the law, Glanville, 
 Brafton, Britton, Fleta and Fortefcue. Nay, fome of them, in their zeal 
 for liberty, have gone fo far, as to pervert the meaning of the civil law, 
 which, in their time, was in high repute, and to deny the abfolute power of 
 legiflation to the Roman emperor. The civil law fays, ^od principi placet 
 Jegis habet ingorem ; but how doth Bradon comment upon it ? Id eji non 
 qiucqiiid de 'voliintate regis teniere prcefumptum eJi, fed animo condendi jura, fed 
 quod confilio magiflratuum fuorum, rege auBoritatcm praflante, ii" habitafuper 
 hoc dcUberatione & iradatu, relief iter it dcfnitum \. 
 
 It muft, hovrever, be owned that many of our princes were very defi- 
 rous of afluming this power. In the reign of our Henry the Firft, a per- 
 fe£l copy of the civil law being difcovered at Amalfi, the princes of Europe 
 got an idea of a monarchy more powerful and abfolute than either kings 
 or people had for many centuries before any notion of; and they were, in 
 general, defirous enough to ftretch, if they could, their limited prerogative 
 to the height of the antient imperial defpotifm j. but to do this by their own 
 
 authority 
 
 I Arter, de Geftis Alfred!. Tyrrcl, gen. introduift. to tlie Lift, of England. ^ 
 ;•: Lib. 3. cap. 9. fol. 107.
 
 Lect. 19- LAWS OF ENGLAND. i8-i 
 
 authority was impofiible. A wifer way was purfued. The excellency of 
 this law was, on every occafion, extolled, not only as providing remedies, 
 and determining, in many cafes, where the feudal cufloms were filent, but 
 on account alfo of its juftice and equity ; praifes that, it muft be owned, do 
 belong to this law where the abfolute authority of the prince is not con- 
 cerned. Foundations for the teaching this law were eftabliihed in all the 
 univerfitics, and the proficients therein were fure of ample encourage- 
 ment f . 
 
 The popes, likewife, who wanted to fet themfelves up in the feat of the 
 old emperors, contributed not a little, in thofe days of ignorance, to fpread 
 it ; fo that it is not wonderful that it got ground in every country almofl: 
 on the continent ; and being melted into, and conjoined with the feudal 
 cufloms, contributed not a little to the deflruftion of the freedom of the an- 
 tient conflitutions. The fame method was attempted in England, but not 
 with the like fuecefs. The foundation of profefforfhips, the introducing 
 that law, and its forms, into the courts that were more immediately under 
 the king's influence, as the courts of the conflable, the admiral, and of the 
 univerfities, and the high employments its profeffors obtained, fufficiently 
 fhew the fondnefs many of our kings had for it. But the common lawyers 
 and parliament perceived the defign, and forefaw the confequences that 
 might follow. Their oppofition was fteady and fuccefsful ; and if they did 
 not banifh it from the courts wherein it had got footing, at leall they fo li- 
 mited and circumfcribed it, as to prevent its future progrefs. 
 
 The kings who had any wifdom or prudence, in order to difTemble their 
 real defign, gave way to thefe reflridions, and waited for more favourable 
 opportunities ; but the imprudent and haughty Richard the Second avowed 
 bimfelf an open patron to this law. When the duke of Ireland, the arch- 
 bifhop of York, and others his minions, were accufed in parliament of high, 
 treafon, and the evidence being known to be fo full as that they mufl be 
 conviSed, he made this weak attempt to fcreen them. He got his judges,. 
 who were his creatures, to declare the proceedings againfl thele perfons null 
 and void, as not being regulated according to the forms prefcribed by the 
 
 civil 
 
 t Giannone's hift. of Naples, lib. ii. chap, z. Hume's hift. of England, vol. 7.. 
 
 p.. 44r.
 
 \^ 
 
 182 L E C T U R E S ON the Lect. 19. 
 
 civil law : but the barons, provoked at fuch a bare-faced attempt, infilled 
 they were regular, as agreeable to their own cufloms, and declared pofitive- 
 ly they would never fuffer England to be governed by the Roman civil law, 
 and pafled fentence of high treafon againft the judges f . 
 
 Whence that king's fondnefs for this law arofe, may be feen from the 
 ufe he put it to, the protedion of the inftruments of his tyrannical admini- 
 ftration ; and from the many wild and unguarded declarations he made, 
 efpecially that relative to his commons, thatjlaves they loere, and Jlava they 
 Jhotddbe, and to his parliament, that he ivould not at their requcjl difcharge the 
 rneanejl fcuUion in his kitchen. But tho' this prince was pleafed to fay, that 
 the laws ivere in his breath, and that he could make and unmake them at 
 his pleafiire, he did not think the time was come to put that vaunt in execu- 
 tion. He took, therefore, another way of ufurping the legiflative power. 
 Having gained over a majority of the returning officers, and either intimi- 
 dated or gained over the mod powerful of the nobility, he called the fa- 
 mous parliament at Shrewfbury, after having nominated to the returning 
 officers whom they Ihould return ; and, as he expefted, this parliament, if 
 fo it may be called, was complaifant enough to compliment the king with 
 his heart's defire. The former fentence againft the judges was reverfed, 
 and confequently the civil law fet up as the ftandard in trials of treafon. 
 And they indiredly transferred the whole legiflative power to the fovereign 
 in the following manner. 
 
 As there had been many petitions left unanfwered, and many motions 
 undecided, they gave the power of deciding thefe, or other matters that 
 might arife before the next parliament, to the king, twelve peers, and fix 
 commoners. For this committee, they chofe fuch perfons, the majority of 
 whom were at the devotion of the king, and gave him and the majority 
 power to fill up vacancies ; thereby rendering the calling any future parlia- 
 ment abfolutely unneceflary. Thus was the conftitution fubverted, and in 
 its Read fct up an oligarchy in appearance, but in truth an abfolute monar- 
 chy. But as wifely and happily as Richard thought he had conduced this 
 aflair, by which he fuppofed he had gained his long wiflied-for end, neither 
 the fccming authority of parliament, nor the anathemas thundered in the 
 
 pope's 
 
 •j- Differtatio Seldeni ad Fletam, cap. 7.
 
 Lect. 19. LAWS OF EN GL AN D. 183 
 
 pope's bull againfl the contravenors, could fatisfy the people that they were 
 not ftripped of their ancient rights, or that the king and his committee were 
 rightful legiflators. What fentiments the nation entertained appears, from 
 their deferting him as one man, and following the firfl: ftandard that was fct 
 up againft him f . 
 
 Since the days of this unfortunate Richard, no king of England hath, 
 in open and exprefs terms, affumed to himfelf fmgly the right of legiflation. 
 Though James the Firfl plainly claimed it, by implication, in many of his 
 fpeeches, particularly in thofe famous words of his, that as it was blafphcmy 
 for man to difpute what God might do in the plenitude of his omnipotence, fo was 
 it fedition for fubje6ls to difpute what a king might do in the fulnefs of his power. 
 But It would be doing injuftice to the houfe of Stuart not to acknowledge 
 that fome of the princes before them, particularly the Tudors, tho' they 
 did not pretend to make laws, yet iffued out many proclamations, or a£ls of 
 fiate, as they were afterwards called, to which they exafted the fame unli- 
 mited obedience as if they had been laws enaded by parliament. This is a 
 point worthy confideration ; for if all proclamations, or afts of the king and 
 his council, require unlimited obedience, it is to little purpofe whether we 
 call them laws or not, fmce fuch they are in effeft. But this, I think, will 
 be pretty plain, if we make a proper diftindion between fuch proclamations, 
 or afts of the king, as are particular exertions of the executive power, 
 which the- law and conftitution hath entrulled him with, and fuch as, affect- 
 ing the whole people, fhould in any wife alter, diminifh, or impair the rights 
 they were before lawfully in poffefTion of. 
 
 To give fome few inftances of the firfl fort. The appointment of magi- 
 Ilrates, the proclaiming war or peace, the laying on embargoes, or perform- 
 ance of quarantine, the ordering ereftion of beacons in times of danger of 
 an invafion, the granting of efcheated or forfeited eftates, and many more, 
 are the antient and undoubted prerogatives of the king alone, and the fub- 
 jefi: who refifts, or difobeys, in fucli cafes, is as much a rebel, or difobe- 
 dient fubjeft, as if thefe a£ts were exercifed by the whole legiflature. But 
 with refpeft to making general rules and ordinances, affeSing the previous 
 rights of the people, the cafe is very different. For if fuch were to be uni- 
 
 verfally 
 f Bacon, hifl. and polit. difcourfe on the laws and government of England, part 2- 
 ch. I. and 2. The reign of Ricli. II. in Rennet's colletJlion of hiftorians.
 
 184 LECTURES ON the Lect. 19. 
 
 verfally obeyed, it is equivalent to faying, that fubjefls have, properly 
 fpeaking, no rights at all, but hold every thing at the will of the king ; a 
 fpeech vi'hich the mofl defpotic monarch in Europe would not venture to 
 advance. 
 
 However, I will not carry this fo far as to deny that there may cafes 
 happen wherein the king may have this right, and wherein his proclama- 
 tions and orders, even relating to fuch points, ought to be obeyed. The 
 cafes, I mean, are thofe of a foreign invafion, or inteftine rebellion, when 
 the danger is too imminent to attend the refolutions of parliament. In fuch 
 cafes the conflitution is, for a time, fufpended by external violence, and as 
 falus populi fuprema lex eji, every man is under an obligation to ufe his ut- 
 moft endeavours to reftore it, and, confequently, obliged to obey him, to 
 whom the conflitution has particularly entrufted that care. Inflances of this 
 kind did happen during the confufions raifed by the houfes of York and 
 Lancafter, and the princes were accordingly obeyed. Thefe precedents 
 doubtlefs gave a handle to their fucceflbrs, who had no competitors to the 
 throne, to exercife the fame power in more fettled times. But this was 
 ufed, at firft, in a cautious and fparing manner ; and Henry the Eighth, 
 who was a monarch as unlikely to make undue condefcenfions to his people 
 as ever lived, was glad to derive it from the grant of parliament, that his 
 proclamations fhould have the force of laws, which was, in truth, giving 
 into his hands the legiflative power for life f . 
 
 His great fucceffor, Elizabeth, carried this pradice farther, and it will 
 be worth while to difcover the rcafon why a people, in antient times, fo 
 jealous of their privileges, fliould to the one prince explicitly give up, and 
 quietly fuffer the other to ufurp this power, fo eflcntial to a limited conflitu- 
 tion. And the caufe I take to be the critical flate the nation flood in with 
 refpeft to religion. The bulk of the people, glad to be delivered from the 
 yoke of papal tyranny, and dreading its refloration, were willing to arm 
 their princes with a power fufHcicnt to proteft their religion from foreign 
 and domeflic enemies ; and about religion indeed, this power was at firfl 
 principally cxercifed, on the footing of the papal fupremacy being tranf- 
 ferred to the king. Their end was attained : Papids and Puritans were 
 
 both 
 t_Hiime's hift. of England, vol. 2.
 
 Lect. 19. LAWS OF ENGL AND. 1S5 
 
 botli kept under, and happy in the enjoyment of their religion, they did not 
 confider the confequenccs ; that tliis very weapon might be ufed, by a 
 prince of another (lamp, to root out the very rehgion they were fo fond of, 
 and that, by admitting this exertion of power in a matter of fo high confe- 
 quence, it would naturally be ufed in others that appeared of lefs |. 
 
 This "was what accordingly happened. Proclamations on other points 
 were iflued; and monopolies in trade were introduced. All monopolies, un- 
 doubtedly, were not dellruftive to trade. Where a new tradick has been 
 difcoyered, and one that requires a large expence, and is liable to many 
 hazards, it is very reafonable that the firfl undertakers fliould have the 
 trade for a time confined to them, that, by the profpeft of extraordinary 
 profit, they may be encouraged to promote and fettle that commerce on a 
 folid bottom. Such monopolies, inftead of hurting, tend to the promotion 
 of traffick, and are not without fimilar inflances in former times, I mean 
 the kings of England appointing the towns for the flaple ; and had Eliza- 
 beth and James confined themfelves to the ereftion of the RuHia, the l^urky, 
 and Eaft India companies, and that for a limited term, their conduft would 
 have deferved the higheft applaufe ; but that was far from being the cafe. 
 Monopolies were introduced in the antient, the moft common and mofl 
 neceflary commodities, to the great impoverifhment of the nation by the 
 advance of prices. 
 
 At firfl it may feem ftrange that the wife Elizabeth, who, on all occa- 
 fions, feemed to have her people's wealth and eafc at heart, fhould follow 
 fo deftruftive a courfe. But the great end of all her aftions was the fecu- 
 ring herfelf on the throne, and one of the principal means fhe ufed for that 
 end, was the afking money from her people as feldom as poiTible. Hence 
 proceeded the long leafes of the crown lands, at fmall rents and large fines, 
 and hence all the monopolies, which flie fold to the undertakers ; but better 
 had it been for her fubjefts, to have raifed the fums fhe wanted by an addi- 
 tional fubfidy, or an eafy tax, than to pay to the monopolies what they had 
 advanced, with their exorbitant profits befides. What Elizabeth began out 
 of policy, James continued, to fupply his profufion, to fuch an extraordi- 
 nary degree, as difgulled his people, provoked his parliament, and at lafl 
 
 A a made 
 
 ■f Cambden's reign of Elizabeth, paflim.
 
 r86 L E C T U R E S ON thf. Lect. 19. 
 
 made himfelf afliamed, infomuch that he revoked above twenty. And now 
 no monopoly can be raifed but by aft of parliament, except in cafe of a new 
 iiivention, and that but for a fliovt term of years |. 
 
 I COME now to the difpenfing poiver, another prerogative which the Stuarts 
 claimed, and vi'hich coft the laft of them the throne. As no ftate can 
 fubfift \\ithout mercy as well as juftice, the king hath the power of diflri- 
 buting this mercy, and exempting a convided criminal from the penalty of 
 the law, but this is only where the conviction is at his fuit ; thus the king 
 can pardon a murderer convicted on an indidment in the king's name, but 
 if he was convifted on an appeal by the next relation, the king cannot. The 
 pardon belongs to the appellant. But there is a wide difference between a 
 pardon, that is remiffion of punifhment after the fact, and difpcnfing, which 
 is giving a previous licence to break the law. A general difpenfation is, in 
 fa£t, a repeal, and a particular one is a repeal quod hunc, and therefore can 
 belong only to the legiflature. The Roman emperors, and the popes, as 
 legiflators, aflumed this power, and Henry the Third, an apt pupil of his 
 tord and mafter the pope, introduced the practice into England. In his 
 reign a patent, with a non objcante to any law vvhatfoever, was produced 
 into court before Roger de Thurkeby, and this honell judge was aftoniflied 
 at the innovation, as Matthew Paris tells us in thefe words : ^od cum com- 
 feri/fct, ah alto ducms fufpkia de pradidie adjeflionis appofuione, dixit, heu^ 
 heu has tttquid dies expeBavimus^ ecce, jam civilis cima exemplo ecckftaJiicXy 
 conquinatur, & a fulphurco fonte ri-vidus i>iioxicatur\, 
 
 f Wilfon's life and reign of James I. ap. Keiinet. 
 
 % Bibliotheca politka, dial. ii. Bacon, liift. and political difcourfe, pait I. chap. 64. 
 
 LECTURE
 
 Lect. 20. L A \V S OF E N G L A N D. 187 
 
 LECTURE XX. 
 
 Lords ofBarViament or Peers — Earls and Barons-^The earlier Jiate of Baronies 
 in England — The Barones majores c^ minores — Barons by writ and by let- 
 ters patent — The diff'erctit ranks of Nobility. 
 
 NE X T in rank to the king are the lords, that held immediately of 
 him by military fervice, as long as that fpecies of tenure fubfilled j 
 and whom, from their privilege of fitting in parliament in their own rights, 
 are frequently called Lords of Parliament^ and in common fpeech are called 
 Peers, though that word properly fignifies any co-vajfals to the fame lord. 
 Thus every immediate vaffal of a baron are peers of that barony, and the 
 accurate defcription of the great perfonages I am fpeaking of is Pares Rcgni. 
 Of thefe there were, antiently, two ranks only, in England, Earls and 
 Barons. Indeed, abroad alfo, to fpeak properly, there were but two like- 
 wife : for there was no difference in power and privilege between the dukes 
 and comits, or earls. But as every earl is a baron, and fomething more, and 
 as it is a maxim of our law, that every lord of parliament fits there by vir- 
 tue of his barony, it will, in the firfl place, be neceffary to fee what a 
 baron is. 
 
 The word baron of itfelf originally, did not, more tlian peer, fignify an 
 immediate vaflal of the king ; for earls palatine had their barons, that is, 
 their immediate tenants ; and, in old records, the citizens of London are 
 ftiled barons, and fo are the reprefentatives of the cinque ports called to 
 tins day. Baron, therefore, at firfl: fignified only the immediate tenant of 
 tliat fupperior whofe baron he is faid to be, but by length of time it became 
 refl:ained to thofe who, properly and exaftly fpeaking, were barones regis 
 ^ reg}ii, and even not to all of thefe, but to fuch only as had manors and 
 , courts therein. For though, by the principles of the feudal conftitutions, 
 every immediate military tenant of the crown, however fmall his holding, 
 was obliged to affifl the king with his advice, and entitled likewife to give 
 or retufc his aflent to any new law or fubfidy, that is, to attend in parlia- 
 
 A a 2 ment.
 
 i88 L E C T U R E S ON the Lect. 2oi 
 
 ment. This attendance was too heavy and burthenfome upon fuch as had 
 only one or two knights fees, and could not be complied with without their 
 ruin. Hence arofe the omiffion of iffuing writs to fuch, and which, being 
 for their eafe, "Aey acquiefced in, attendance in parliament being confidered 
 at that time as a burthen. Thus they loft that right they were entitled to 
 by the nature of their tenure, until the method was found out of admitting 
 them by reprcfentation. Hence arofe the diftinftion between tenants by 
 barony, and tenants by knight fcrvice in capite of the king. The former 
 were fuch military tenants of the king, as had eftates fo confiderable as qua- 
 lified them, without inconvenience, to attend in parliament, and who were 
 therefore entitled to be fummoned. The quantum of this eftate was regu- 
 larly thirteen knights fees and one third, as that of a count or earl was 
 twenty j that is, as a knight's fee was then reckoned at twenty pounds per 
 annum, the baron's revenue was four hundred merks, or two hundred fixty- 
 fix pounds thirteen fliilling and four-pence, and the earl's four hundred 
 pounds, anfwering in value of money at prefent to about two thoufand fix 
 hundred, and four thoufand pounds yearly |., 
 
 Such was the nature of all the baronies of England for about two hun- 
 dred years after the conqueft ; and they are called baronies by tenure, be- 
 caufe the dignity and privileges were annexed to the lands they held ; and 
 if thefe were alienated with the confent of the king (for without that they 
 could not) the barony went over to the alienee. The manner of creating 
 thefe barons was by inveftiture, that is, by arraying them with a robe of ftate, 
 and a cap of honour, and girding on a fword, as the fymbols of their dig- 
 nity. Of thefe Matthew Paris tells us there were two hundred and fifty in 
 the time of Henry the Third, and while they ftood purely on this footing, it 
 was not in the king's power to encreafe the number of the baronies, though 
 of barons perhaps he might. For as William the Conqueror was obliged to 
 o-ratify feveral of his great officers according to the number of men they 
 brought, with two or more baronies, whenever thefe fell into the hands of 
 the crown by efcheat, either for want of heirs, or by forfeiture, it was in 
 the king's power, and was his intereft, to divide them into feparatc hands. 
 The fame thing likcwife happened, when, by an intermarriage with an 
 
 heirefs, 
 \ Madox, Antiq. of the Exchequer, vol.1, p. 197, 198. Baronia Anglica, book i, 
 chap. I. Spelman, voc. Baro.
 
 Lect. 20. LAWS OF ENGLAND. 1% 
 
 heirefs, more baronies than one came into the hands of a nobleman, and 
 efchcated to the crown f . 
 
 But the number of thefe feudal baronies could not, flridly or properly 
 peaking, be encreafed 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 demefnes were, in thofe 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 aftually encreafed, and a diflindion made between the baroncs 
 wajores, and 7ninores. The majores were thofe who flood upon the old 
 footing of William, and had lands fuflicient in law, namely, the number of 
 knights fees requifite. The minores were fuch as held by part of a barony ; 
 as when an old barony defcended to, and was divided among fillers ; in 
 which cafe, when the hufband of the fifter whom the king plcafed to name, 
 was the baron of parliament ; or clfe were newly carved out of the old baro- 
 nies that had fallen in by efcheat ; as fuppofing the king had granted fix 
 knights fees of an old barony to one, to hold with all the burthens, and to 
 do the fervice of an entire barony, and the remaining feven and one third ta 
 another, on the fame terms. But the attendance of thefe minor barons alfo, 
 at length became too burthenfom for their circumflances, and many of 
 them were glad to be excufed. The kings took then the power of palhng 
 by fuch as they thought unable, by not fending them writs of fummons, 
 and John extended his prerogative even to omit fummoning fuch of the 
 majores as he imagined were inclined to oppofe him. This however at 
 length he was obliged to give up : For in his Magna Charta it is faid, Ad 
 habendum commune con/ilium regni facicmus fummoncri archiepifcopos, epifcopos^ 
 abbateSf commites, is' majores barones regni figdlatim^ per literas noJiras\, 
 
 The barones majores were then fully and plainly dillinguifiied from the- 
 minores, and 1 thing it will not be doubted they were fuch as had the full 
 complement of knights fees that made up an antlent barony ; and, ac- 
 cordingly, we find in 1255, when Henry the Third had negleftcd fummon- 
 ing fome of thefe, the others refufed to enter on any bufinefs, ^ia omnes^ 
 tunc temporis, mn fuerunt, juxta tenorem Magna Charta fua, vocati, et idea, 
 
 fine 
 
 •J- Brady's introduiElion, in append. Baronia Ar.glica, p. ;;3. 
 
 X Selden's titles of hocour^ part 2. chap. 5. Baronia Anglica, book r. chap. 2.
 
 190 LECTURES on the Lect. 20. 
 
 fine paribus fuh^ tunc abfetitibus, tiu/him vohterunt tunc rejponfum dare^ vel auxi- 
 lium concedere vel prejlare. No king fince, ever omitted to fummon all the 
 greater nobility, until Charles the Firfl; was prevailed upon to forbid the 
 fending a writ to the Earl of Briftol by Buckingham, who was afraid of be- 
 ing accufed by that nobleman ; but on the application of the houfe of lords, 
 and their adjourning themfelves from day to day, and doing no bufmefs, 
 the writ at lafi; was ilTued. 
 
 In the reign of Henry the Third alfo, the king's prerogative of fummon- 
 ing or omitting the lefler barons was likewife afcertained by an aft of par- 
 liament fince loft, as we find by thcfe words from hiftory : Ille enim rex 
 Cfcilicct Hcfiriciis TertiusJ pojl magnas perturbatmies, ii" cnormes vexationes 
 inter ipfian regem, Simonem de Morteforti, ir alios barones, mot as ^ fopitas^Jlw 
 tuit ^ ordituivit, quod omnes illi comniites c^ baro?ies regni Jng/i^, quibus ipje 
 rex dignatus ejl brevia fummonitionis dirigere, vcnirent ad parlamentum fuum \ 
 cif non alii ?ii ft, forte, dominus rex alia ilia brevia Hits dirigere voluiffct\. And 
 from henceforth no nobleman could fit in parliament without a writ. But 
 there was this difterence between the greater and the lefler barons, that tlie 
 former had a right to their writ ex debito jujiitia, to the latter it was a mat- 
 ter of favour ; but when fummoned, they, being really barons, had the fame 
 rights with the reft, though fitting, not by any inherent title, but by virtue 
 of the writ. The other lefler barons, who were generally omitted to be 
 fummoned, by degrees mixed with the other kings tenants in capite, and 
 were thenceforth reprefcnted by the knights of the flures|. 
 
 But thefe baronies by tenure being long fmce worn out among the laity, 
 it is proper to proceed to the two ways now in bemg of creating peers, by 
 wr/V, and by letters patent. It is -the lord Coke's opinion, and in this he 
 has been followed ever fince, that a writ to any man, baron, or no baron, 
 to fit in parliament, if once he hath taken his feat in purfuance thereof, 
 gains a barony to him and the heirs of his body. And though the law, 
 principally on the authority of that great lawyer, is now fo fettled, certainly 
 •it is comparatively but a novel opinion, and very ill to be fupported by rca- 
 
 fon, 
 
 \ Camden, Brltan. p. 122. 
 
 4: Stlden, lit. Honour, part 2. chap. j. § :r.
 
 Lect. 20. LAWS OP ENGLAND. 191 
 
 ion. The words of the writ are, Rex tali falutem, quia de advifamento 6* 
 ttjfenfit concilii nojiri, pro quibufdam arduis <b' iirgcntibus ncgotiis Jialuin 6' dc- 
 Jenfionem regni nojiri AngUcS contingentibus, qnoddam parlamentwn nrjlnim apud 
 Wejimonaji. tali die, talis mcnfis, proximo futuro tencri ordinavimus, ib' ibidem 
 vobifcwn, ac cum prelatis magnatibiis iy proccribus diSli regni nojiri, colloqidunv 
 habere & traflatum ; vobis in fide ir ligcantia quibus nobis tencmini, firmiter 
 injungendo mandamus, quod confideratis diciorum ncgotiorum aucloritate <b' pcri- 
 culis immincntibns, rcffiinte excttfationc qztaciinque, didis die &" loco pcrfonaliter 
 interfitis nobifcum, ac cum prelatis magnatibiis ir proccribus fuper diflis ncgotiis 
 traBatitri, vejirumque csnfiliiim impcnfuri, ^ hocficut nos, 6' bomrcm no/lruniy 
 ttc expcditionem Jicgotiorum pradidorum diligiiis, mdlatenus omittatis |.. 
 
 That this writ muft be obeyed, there Is no doubt, for every fubjedt is, by 
 his allegiance, obliged to affifl the king with faithful counfel : But what 
 right the party fummoned acquired thereby is the queftion. The words are 
 not only perfonal to him, but reltrifled likewife to a particular place and 
 time ; and accordingly, in antient times, we find many perfons fummoned 
 to one parliament, omitted in the next, and fummoned perhaps to the thirds 
 There is not a word therein that hints at giving the leaft right to an heir • 
 and what reafon can be afligned why a man, by this writ, Ihould gain an eftate 
 of inheritance in a peerage, when, in letters patents, it is admitted that lie 
 gains only an eftate for life, without the word heirs. That antiently there- 
 was no fuch notion appears from the fummons to parliament, wiiere fre- 
 quently we find the grandfather fummoned, the father palled by, and the 
 grandfon afterwards fummoned : Nay, in the rolls there are inftances of 
 ninety-eight perfons being fummoned a fmgle time only, and neither them- 
 felves, nor any of their pofterity, ever taken notice of afterwards. Or if 
 we were to allow that this writ created an inlieritance, what reafon can be 
 given why it fhould be an eftate tail only, and be confined to the heirs of 
 the body, and not, as all other new inheritances, created generally, go to 
 the collateral heirs ? 
 
 But, m order to difcover plainly what privileges perfons fo called by 
 writ, had, or could obtain in thofe times, it will be proper to diftinguifh. 
 tiiem into three kinds of perfons. Firft, then, they were either fome of the 
 
 minorcs 
 t Barouia AiigUca, books, chap. r. Selden's tit. Hon. part 2. cliap. 5. \ 22.
 
 ") 
 
 192 L E C T U R E S ON the ^ect. 20. 
 
 mmres baroncs by tenure ; and thefe, "when called, had certainly all the pri- 
 vileges of the greater ; or elle they were not barons at all, but plain knights 
 or gentlemen ; and,_ with refpefl: to thefe, it is plain they had a right to 
 deliberate, debate, and advife. But the better opinion is, they had no right 
 to vote, but were affiftants and advifers only, as the judges are at prefent ; 
 for it is abfurd to fuppofe that, in thofe times, when the commons were 
 low, and inconfiderable, and the barons were more powerful than the crown, 
 thefe latter fhould fuftisr their refolutions to be over-ruled at the pleafure of 
 the king, by his calling in fuch numbers as we fmd he often did, which 
 mufl have been the cafe, if all he fummoned had votes. But thefe two 
 kinds ofperfons gained by their writ, or fitting in confequence of it, origi- 
 nally, no farther right than to be prefent at that time. However, by many 
 of thefe pcrfons and their heirs having been conftantly fummoned, efpecially 
 fince Henry the Seventh's reign, and the ancient praftice of omitting any 
 who had been very frequently fo, going into difufe, the difticlion between 
 the greater and the leffer barons was forgot, and that opinion prevailed 
 which my lord Coke had adopted, and which is now the law, that a man. 
 Laving once fat in parliament in purfuance of the king's writ, acquires there- 
 by an ellate tail to him and the heirs of his body f . 
 
 There were yet another kind of perfons, not peers, that might be fum- 
 moned by writ. Thefe were the eldefl fons of peers, to whom the father's 
 barony mufl defcend ; and in fuch cafe, if the heir was called by the name 
 of a barony that was in his father, he was a baron to all intents and purpofes. 
 But it feems very plain, that this was not a new creation of a barony 5 for in 
 that cafe the fon fo called fliould have been the loweft peer, whereas the prac- 
 tice is the contrary. The eldefl: fon of the duke of Norfolk, called by the 
 
 y ■^ ") title of lord Mowbray, fat firfl baron, becaufe that barony of his father's is 
 
 ' ' ' ^ the antienteft in England. It feems, therefore, that this was confidered as a 
 
 transfer of the antient barony by the joint confent of the father and king, and 
 the father fl;ill continues to fit by the remaining peerage in him. According- 
 ly we find no infl;ance of a baron's fon fitting on fuch a fummons, unlefs the 
 father had another barony by which he might fit. If the father indeed had a 
 higher title, that has been reckoned fufficicnt to fupport his feat, though his 
 only barony was transferred to the fon. This then being no new creation, 
 
 but 
 f Coke on Liulcton, lib. 2. cliap. 8. \ 1 59. Baronia AngUca^ p. 164. et feq.
 
 Lect. 20. LAWS OF ENGLAND. 19: 
 
 but a temporary transfer only of an old peerage, it fliou!'! fcem, that this 
 title, when once merged in the greater by the father's death, fliould go ac- 
 cording to the old limitation ; but of late we find them confidercd as new 
 creations. On the death of the late earl of Derby, Sir Edward Stanley, his 
 fixth coufin, fucceeded, and fits in parliament as baron Strange, by Henry 
 the Seventh's creation ; but an elder fon of a former earl of Derby, having 
 been called by writ \a hile his father was living, the Duke of Athol, as his 
 heir by the female line, fits by the fame title of baron Strange of king 
 Charles the Firft's creation. 
 
 The defcent of thefe two kinds of baronies are direOied by the rules of 
 the defcent of other inheritances at common law, and confequently females 
 are capable of fucceffion, but with two exceptions ; firft, that half blood is 
 no impediment, and confequently the half brother excludes the fifter ; fe- 
 condly, that the honour is not dlvifible, and therefore, if there be two or 
 more filters, heireffes, the title is in abeyance, that is, is fufpended, until 
 the king makes choice of one of them and her heirs ; though by conllant 
 ufage the law feems to be verging fall to a conftant defcent to the eldeflf. 
 
 The third method of creating peers is by letters patent, which is the mofl: 
 ufual, and elleemed the moll advantageous way ; becaufe a peerage is 
 thereby created, though the new nobleman hath never taken his feat, which 
 is not the cafe of a barony by writ. As to the manner of thefe creations, 
 there has a notable difference intervened fince the acceffion of Henry the 
 Seventh from what was the praftice before Richard the Second. In his 
 eleventh year began this method of creating by patent, in favour of John 
 de Beauchamp, who, though fummoned, never fat there, but was attainted 
 by the next parliament, and afterwards executed. But, the attainder out 
 of the cafe, his patent in law could never have been deemed valid, becaufe 
 Michael de la Pole was the lord chancellor who affixed the feal to it, which 
 had been before taken from him by aft of parliament, and he declared in- 
 capable of ever having it again. This, then, was a fingle and ineffisdual 
 attempt of that weak prince to create a new peer without the aflent of par- 
 liament, which was the ufual way, above thirty having been made fo in 
 that very reign. His fucceffors were too wife to follow this example ; for 
 
 B b every 
 
 \ Coke on Littleton, p. i66. St. Amandonthe legiflative power of England, p. 19?.
 
 194 LECTURES on the Lect. 20. 
 
 every barony newly created, till the union of the rofes, which were about 
 fourteen, were, every one of them, as appears on the face of the patents, 
 by authority of parliament, if we except two or three ; and even thefe, on 
 a clofe examination, will appear not to be new baronies, but rcgrants of old 
 feudal baronies by tenure, which, undoubtedly, were all in the fole difpo- 
 fition of the king j-. 
 
 But Henry the Seventh, having trodden down all oppofition, was fortu- 
 nate enough to carry the point Richard had vainly attempted, and acquired 
 for his fucceffors that prerogative which they have fmce enjoyed, of creating 
 peers at pleafure. The defcent of thefe titles, created by patent, is directed 
 by the words of the creation. If heirs are not mentioned, it is only an 
 eftate for life ; if to a man and heirs of his body, females are not excluded, 
 but the general way is, to the heirs male of the body of the grantee, per- 
 haps, with remainders over, and they defcend as other eftates entailed. 
 The cafe of the dutchy of Somerfet vt-as fingular. Edward Seymour having 
 fons by two venters, was created duke of Somerfet, and his heirs male of 
 his fecond marriage, remainder to his heirs male by his firft. This title 
 continued near two hundred years in the younger branch, until, upon its 
 failure in the late duke of Somerfet, Sir Edward Seymour, the prefent 
 duke, the heir by the prior marriage, fucceeded by virtue of the remainder. 
 
 In the cafe of lord Purbeck, in Charles the Second's reign, it was con- 
 troverted whether a title could be extinguillied, for as lord Purbeck had 
 furrendered his honour by fine to the king, and there it was determined, 
 and fo the law now ftands, 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 extinguiihed by furrender or otherwife, and this, gene- 
 rally, whether the peerage be created by patent or by writ ; for Purbeck's 
 was by writ. In cafe of a patent where the dignity is exprefsly entailed, it 
 is furely as reafonable that it fliould be impoflible for the pofleflbr to deftroy 
 the entail, as in an eftate tail of land, created by the king, and yet in old 
 times there had been many inftances to the contrary. I fliall mention but 
 two that happened in this kingdom. 
 
 Sib. 
 \ Selden, tit. Hon. part 2. chap. 5. § 27. and z3.
 
 Lect. 20. LAWS OF ENGLAND. 19-j 
 
 Sir Thomas Butler was created baron Cahir by Henry the Eighth to his 
 heirs general. His heirs male failed in his fon Edmond, the fecond baron, 
 and his nephew, Sir Theobald, was, in 1683, by queen Elizabeth created 
 baron Cahir ; but it being found that Sir Tliomas left daughters, to one of 
 whom the title ought to have been afligned by the queen, one of them, and 
 the heir of the other, who was dead in 1685, bargained, fold, and releafcd 
 to Sir Theobald and his alligns, their right and title to the faid honour. The 
 other was the cafe of the honour of Kingfale. Charles the P'irfl, appre- 
 hending the barony of Kingfale to be extinguiflied by attainder, created 
 Sir Dominick Sarsfield vifcount Kingfale, but, upon lord Kingfale's peti- 
 tion, and proof made by him that his barony ftill fubfifled, it was ordered 
 that Sarsfield fliould furrender his vifcounty of Kingfale, and be treated vif- 
 count of Kilmallock, with his former precedence, which was accordingly 
 done. 
 
 These two inftances were, indeed, of a particular nature, and calculated 
 to reftify grants that had arifen from error ; but in England there were, in 
 ancient times, many inftances of fuch furrenders without error. They were, 
 indeed, generally made in order to obtain higher titles ; and therefore it is 
 no wonder they pafledy?/Z»^/t'«//o, and were never difputed. But as to the 
 old baronies by tenure that were annexed to land, nothing is clearer than 
 that, by the king's confent, they might be aliened or furrendered, notable 
 inftances of which happened in the reign of Henry the Third. Andrew 
 GifFard, baron of Pomfret, furrendered to the king ; and Simon de Mont- 
 fort, a nobleman of large pofleffions in France, had two fons by the heirefs 
 of the earldom of Leicefter, in whofe right he was earl of Leicefler, and, 
 having a mind to fettle his fecond fon in England, affigned the earldom over 
 to him, as Selden fays ; or, which comes to the fame thing (for the eldeft; 
 fon was equally defeated) furrendered it to the king, who granted it to the 
 fecond, according to Camden. 
 
 All noblemen are equally fo, and, therefore, each others peers ; but 
 they differ in rank and precedence. The ranks are five ; dukes, marquijfes, 
 earls vifcounts, barons. The firfl duke was created by Edward the Third ; 
 the firft marquifs, by Richard II, ; the firfl vifcount, by Henry the Sixth. 
 
 Bb 2 Though
 
 196 LECTURES ON the Lect. 20. 
 
 Though their dignities are now perfonal, and annexed to the blood, yet as 
 they were originally annexed to land, fo much of the old form remains, that, 
 in their creation, they muft be named from fome place in fome county ; 
 though I do not apprehend it to be material at this day, whether there really 
 be fuch a place or not. With refpeft to the raifmg a lord from a lower de- 
 gree of dignity to a higher, I fhould obferve, that long before Henry the 
 Seventh's time, the king had the right folely in himfelf, though it was fre- 
 quently done in parliament ; for this was not adding to the number of the 
 peers, but ^an exertion of the ancient prerogative of his fettling precedence 
 according to his pleafure. This continued in England till Henry the Eighth, 
 by aft of parliament, fettled it according to antiency, and it ftill continues 
 in Ireland, though it has not been exerted fmce Henry the Seventh's time, 
 when lord Kingfale, a Yorkift, was obliged to change places with lord 
 Athemy, a Lancaflrian, and from firft became the fecond baron, which 
 hath continued his rank, till lately, that Athenry was created an earl |. 
 
 f Camden's Introd. to his Britan. p. 234. et feq. Baronia Anglica. Selden, tit. hon. 
 part 2. chap. J. § 29. 30. jr. 
 
 LECTURE
 
 Lect. 21. L A W S F E N G L A N D. 197 
 
 LECTURE XXI. 
 
 Earls or Counts as di/linguijhed from Barons — The office of Counts — Their cori' 
 clition after the conqueji — Counties Palatine in England — Counties Palatine in 
 Ireland — Spiritual Peers — The trials of Noblemen. 
 
 IN my laft lecture I treated of baronies, which are the lowed rank of 
 peerage, and of the right whereby this clafs of nobles fits in the great 
 council of the nation, and alfo of the various methods that have prevailed 
 in different ages of creating them ; but before I have done with the higher 
 nobility, it will be neceffary to fay fomething of earls or counts as diftin- 
 guifhed from barons ; for they differ from them, not only in having a 
 greater number of knights fees, and confequently having a greater revenue, 
 but in poflefling alfo a more extenfive jurifdiftion. The inftitution of 
 counts, I obferved in a former ledure, wherein I treated of the progrefs of 
 the feudal law, was not, originally, a part of the feudal policy. They 
 were, indeed, always chofen out of the king's companions, who refided in 
 liis houfe, and were therefore called comites, but they were not fet to pre- 
 fide over Germans, who were the conquerors, but over fuch of the old in- 
 habitants, Romans or Gauls, who by a voluntary fubmiffion had retained 
 their freedom, and who in every refpeft, except bearing a Ihare in the legif- 
 lature or government, were on an equal footing with the conquerors f . 
 
 The office of thefe counts was threefold, to judge thefe freemen in peace, 
 to condud. them in war, to manage the king's demefnes in their refpeftive 
 diftricls, and to account with him for them and the profits of his courts of 
 juflice ; which were very confiderable when all offences were puniflied by 
 fines. At the beginning they were temporary officers, but they foon became 
 fixed for life, and at length, towards the latter end of the fecond, and in 
 the beginning of the third race in France, they got, through the weaknefs 
 of the crown, eftates in fee in their counties ; and either by grants of the 
 
 kings 
 f Selden, tit. Hon. part 2. cli. i.
 
 i^S L E C T U R E S ON the Lect. 21. 
 
 kings, or by ufurpation, converted the profits they before accounted for to 
 the crown, for their own ufe, and held their courts in their own name. In 
 fliort, tliey became petty fovereigns, paying only homage, and the ufual 
 fervices of ward, marriage, and relief to their fupreme lord ; and as fuch 
 they coined money, levied war againfl their neighbours, nay frequently 
 againft the king himfelf ; until Lewis the Eleventh found the means of 
 humbling them, and brought the crown out of tutelage, as the French 
 exprefs it f. 
 
 The prefent ftate of Germany is an exafl: reprefentation of what the 
 French and the other continental monarchies were in thofe days, except that 
 the kings had large countries, and multitudes of vaffals immediately fubjeft 
 to them ; whereas the emperor hath now none. But in England thefe lords, 
 thb' very powerful, never afcended to fuch a- pinnacle of grandeur. Their 
 firft conilitution here we muft refer to the time of the divifion of England 
 into counties, to which they had a reference, which is generally afcribed to 
 Alfred. Their pow^r and office was exaftly the fame wdth the counts on 
 the continent in thofe early times, namely, to judge and lead the freemen to 
 war. For the greateft part of the lands of England were at that time allo- 
 dial, as is proved by Spelman, contrary to the opinion of Sir Edward Coke; 
 although, with him, it muft be allowed, that there were fiefs alfo before 
 the Conqueft, and that they were not all introduced at that period. Till 
 that time their office was only for life, and they were known by various 
 names, as duces, comites, and confides in Latin, ealdcnncn in Saxon, and earls 
 in the Danifh tongue \. 
 
 But William, having turned all the lands into feudal, was obliged to 
 put his earls on the fame footing, that thofe on the continent were in his 
 time, and confequently to make them hereditary. However he and his 
 fucceffors were careful not to give them fuch extenfive powers and revenues 
 as they had abroad. The county courts were held in the king's name, nei- 
 ther were the earls allowed the whole profits of them, two-thirds of them 
 being referved to the king ; and in appearance to eafe them, who were of- 
 ten obliged to attend in council or in war, but in reality to prevent the 
 
 king's 
 
 t Du Bos, hift.'critique de L'erdblifTments de la monarchic Fran9oife, ton. 3. 497, &c. 
 Mafcou's hirt. of the antient Germans, b. 16. § 36. 
 
 X. Spclman's treatife of Feuds and Tenures.
 
 Lr.cT. -I. LAWS of E N G L A N D. 199 
 
 king's being defrauded, and to prevent the too great influence which their 
 judging in perfon might acquire to them in their diftrifts, officers chofen by 
 the people, and approved hy the king, were fubftitutcd to adminifter juf- 
 tice under the names of vice comites, or fheviffs ; thefe were to pay to the 
 king the two-thirds, and to the earl his third of the profits, which was in 
 thofe times looked upon as fo incident to an earldom, as to pafs with it, 
 although exprefs words were wanting ; fo that in thbfe times an earl and a 
 county were correlatives f . 
 
 Each earl took his title from fome one county, and the nun-rt:)er of the 
 one could not exceed that of the other. King John, however, altered their 
 nature in fome meafure, and his example has been followed in depriving 
 the earl of the thirds of the county profits ; for he created Henry de Bo- 
 hun earl of Hereford, and granted to him twenty pounds yearly, to be re- 
 ceived out of the third penny of the county in lieu thereof. But it is plain 
 that the juftice and fuccefs of this invention was doubted of atfirft, for John 
 took a collateral fecurity from the earl, that he fhould never in his earldom 
 claim any more than the twenty pounds exprefsly granted him. Thefe 
 fums, fo granted, are called creation money^ and were formerly exprefsly 
 granted out of the third penny of the county ; but of late have been made 
 payable at the Exchequer. Such was the nature of the ancient earldoms 
 that were by tenure, and had reference to counties. The modern ones, 
 that are merely honorary, and go with the blood, were firft made in parlia- 
 ment. Afterwards the king was allowed, by his fole authority, to advance 
 a baron to a higher rank j for that was not adding to the number of the- 
 peers ; but the creation of a bare gentleman a peer at once hath ortly been 
 praftifed fince the acceffion of Henry the Seventh J. 
 
 Before I quit this head of earldoms, it will be proper to fay fomewhat 
 about counties palatine which had extraordinary privileges, like unto the 
 counties and duchies abroad. The fn fl was that of Chefter, erefted by the 
 Conqueror, in favour of his nephew Hugh Lupus, in thefe words : Totuni- 
 qiie hum comitatiim tenendum fibi & hceredibm, ita libere ad gladium,ficut ipfe 
 rex tenet Angllam ad coronam. The effed of this creation was to \\xvtjura 
 
 regalia ; 
 
 f Selden, tit. hon. part 2. ch. y. 
 
 :|; Selden, tit. hon. part 2. ch. 5. \ 10.
 
 200 LECTURES on the Lect. 21. 
 
 regalia ; for the earl palatine might pardon treafon, murder, and other of- 
 fences, might make juftices of aflize, gaol delivery, and of the peace ; 
 might create barons of his county palatine, and confer knighthood. They 
 had likewife all forfeitures, that arofe by the common law, or by any prior 
 ftatute ; but forfeitures arifing from flatute, made after the ereftion of the 
 county palatine, belonged to the king. They had courts as the king had 
 at Weftminfter, and out of their chancery iffued all writs, original and ju- 
 dicial. Neither did the king's writs run within the county palatine, except 
 writs of error, which were in the nature of appeals, or in cafes where, other- 
 wife, there would be a failure of juftice. All manner of indidments and 
 proceffes were made in the name, and every trefpafs was laid to be done 
 againft the peace of him that had the county palatine. But thefe and fome 
 other privileges have been taken away, and annexed to the crown, in whofe 
 name they muft now be ; but the te/Ie of the writs is flill in the name of the 
 carl palatine f. 
 
 Of thefe counties palatine there are now in England four, Lancafter uni- 
 ted to the crown, Chefter to the principality of Wales ; Durham and Ely, 
 each belonging to the bifliop of the place ; but the privileges of thefe two 
 are going fall into difufe. But in this kingdom, (Ireland) for the encourage- 
 ment of adventurers, the whole country, as fall as it could be reduced, was 
 crefted into palatinates, and very little, except the cities, retained in the 
 king's hand. The making fo many great lords, who had frequent quarrels 
 with each other, and that at fuch a diftance from the feat of government, 
 was one great occafion of the flownefs of the fettlement of the kingdom. 
 For, to ftrengthen themfelves, fuch of them as refided here attached the na- 
 tives to them, and taught them the ufe of arms, and others that dwelt in 
 England entirely negleded to fend hither any defence, fo that, by the end 
 of Edward the Third's time, the Irifli had repoflefled themfelves of almoft 
 the whole kingdom, if we except five or fix counties ; whereas in John's 
 reion they held not above half, and that under homage and tribute, either 
 to the king, or the lords, who had grants from him. 
 
 I 
 
 f Baronia Anglica, p. 150, ct feq. Selden, tit. hon. part 2. chap 5. § 8. Bacon, hilh 
 andpolit. dilcouriie on the laws of England, part i. ch. 29.
 
 Lect. 21. LAWS OF ENGLAND. 201 
 
 I SHALL give a fhort detail of thefc palatinates, and an account of the 
 manner of their diftinguidiment. The prefent county of Gallway, under the 
 name of the county of Cannaught, was a palatinate in the De Burghs; as 
 was Ulfter, firfl in De Courcy, then in De Lacy ; and thefc two were uni- 
 ted by De Burgh's marriage with Lacy's daughter, and afterwards defcend- 
 ed to Lionel of Clarence's daughter, who married the earl of March, and, in 
 the perfon of Edward the Fourth, merged in the crown. In the fame prince, 
 likewife, merged that of Meath, which, being in another branch of the La- 
 cy's, was divided into the eaftern and weltern between two daughters. 
 The former came by defcent to the houfe of March, and fo to Edward the 
 Fourth. Strongbow had the grant of Leinfler as a Palatinate, which at 
 length was divided into five dillinfl: ones between his grand-daughters, who 
 being married to Englifli noblemen, took no care for the defence of the 
 country, their titles, eftates, and Jura Regalia were taken from them by ad 
 of parliament, under Henry the Eighth. 
 
 KiLDARE, being in the hands of the earl of that name, efcaped for a little 
 time, until he was attainted under the fame king, where it ended ; for 
 though his heir was reftored to the title and eftate by queen Mary, it was 
 ■with an exprefs exception of the palatinate. The kingdom of Cork, contain- 
 ing that county and the fouth of Kerry, was another palatinate, granted to 
 Fitz Stephen and Cogan, who made partition between them ; and on Fitz 
 Stephen's death without iffue, his part efcheated to the crown. Cogan's 
 fhare ihould have gone to the Courcey's and Carens, but they could never ob- 
 tain the poffeffion of it ; for the earl of Defmond got the eftate by purchafc 
 from a Cogan who pretended a right, and held it ; fo this fhare of the pala- 
 tinate fell likewife into difufe. Defmond, indeed, had intereft enough to get 
 a new palatinate created for himfelf in the county of Kerry, called Defmond, 
 which for repeated rebellions was juftly forefeited to queen Elizabeth. 
 
 Edward the Third ere£led the palatinate of Tipperary in favour of the 
 earl of Ormond, who was grandfon to Edward the Firfl, which continued 
 in that family, with fome interruptions, until the attainder of the late duke 
 in 171 5. Thus by degrees the crown regained the power it had parted with, 
 and was at length enabled, though with difBculty, to reduce the whole king- 
 dom, which had been well nigh lofl by means of fuch profufe grants. 
 
 Cc Besides
 
 202 
 
 LECTURES ON the Lect. 21. 
 
 Be^des the temporal peers, there are fpiritual ones, that is the bifhops, 
 and, they have feats in parhament, which antiently many abbots alio enjoyed. 
 The original of this right was from the feudal cufloms. The priefts of the 
 Germans, while they continued pagans, were neceffary attendants in their 
 general affemblies, not only for advice, but the benefit of their prayers and 
 divinations. When thefe nations embraced Chriftianity, they transferred 
 the fame veneration and honour to their new inftruftors and bifliops ; and 
 fometimes other churchmen of eminence, though they held lands not by 
 military tenure, but by what is called /r^f abns, were, in every nation as well 
 as England, members of the ftates of parliaments. But fince the conquefl 
 they have begun to fit by another right, namely by their baronies ; the con- 
 queror having converted their eftates in free alms into baronies, and to 
 their great mortification, fubjefted them to military fervice-f. 
 
 Upon this head feveral quellions have been propounded, as how far 
 they are lords of parliament, and whether the clergy are a third eftate of the 
 realm, and fit folely in that right. This is a queftion of fome importance, 
 becaufe if they make a dillinct eftate, no law would be good to which the 
 majority of them did not confent. Certain it is that in France, the clergy 
 made one eftate, the nobility the fecond, the burghers the third ; and in 
 Sweden the peafants make the fourth, all fitting in diftinft houfes, the ma- 
 jority of each of which muft concur. And therefore I do believe, that 
 when, in England, we talk of three ejiates, the clergy, not the biihops alone, 
 make one of them, contrary to the modern opinion, that the king is the 
 ■firft eftate, and the bifliops and the nobility the fecond ; for the king is in 
 no country reckoned one of the eftates, but the head of all. However 
 from this no argument can be drawn that the bifhops fliould fit feparately, 
 or that a majority of them, as reprefenting the clergy, fliould concur. 
 
 As to fitting feparately, it is pretty clear that, by the old law, none were 
 members of parliament, but the immediate military tenants of the king, and 
 that they fat all in one houfe, however their titles and fortune might differ ; 
 being all equal as to rank, with refpeft to the king, and all having the fame 
 rights. The divifion of parliament into two houfes was never known in Scot- 
 land, who, in all probability, modelled their conftitution from their neigh* 
 
 bours J 
 \ Coke on Littleton, lib 2. § 13 J. Selderi; tit. hon. part :. ch. 5. \ 19..
 
 Lect.21. laws op ENGLAND. 20.5 
 
 bours ; nor doth it appear in England previous to Edward the Firfi:, but 
 arofe, probably, from the great barons difclaining to fit, as equals with citi- 
 zens and burgefles. For even, after this time, they did not difdain to aflb- 
 ciate with the knights of the fliires, who rcprefented the minor barons, and 
 other military tenants, as appears by many inflances. But for a number of 
 centuries paft the gentry, which were formerly confidered as a lower no- 
 blefle, and are fo abroad, have been melted into one body with the other 
 commoners f . 
 
 If then there was originally but one houfe, and if, fmce the divifion, the 
 bifliops have conftantly fat in the houfe of peers, there can be no pretence 
 for any privilege for them more than for the body of barons or earls. It is 
 urged, likewife, that feveral valid a£ts of parliament were pafled without 
 any bifliop prefent ; but this happened only in diftrafted times ; and, who- 
 ever might think it prudent or proper to abfent themfelves at a particular 
 feafon, it will hardly be faid to be a good parliament when they were not 
 furamoned ; and if, at any time, they refufed to attend, there was no rea- 
 fon why the public bufmefs fliould flop, as they fat, not as an independent 
 conftituent part of parhament, but each diftinftly for himfelf, in right of his 
 barony. From thefe occafional and general abfences of theirs, an opinion 
 grew up by degrees, and now is eftablifhed law, that there is a material dif- 
 ference between bifliops and lay lords, in refpedl to their nobility. In truth, 
 that they are not peers to each other, and confcquently that a bifhop can- 
 not fit in judgment on the life of a peer, neither is he to be tried by the 
 peers, but by a jury of commoners. 
 
 It is worth while to fee how thefe opinions grew up ; for, from the ori- 
 ginal confl:itution, every bifliop, being a baron by tenure, and having a fee 
 fimple therein, had certainly as great right as other barons ; but the canon 
 law having forbid any ecclefiaftics being concerned in matters of blood, and 
 they being obliged by the common law to attend judgments in parliament, 
 were in a great ftreight between the two laws, how to a£l when a peer was 
 capitally accufed. They at length obtained from Henry the Second in the 
 conftitutions of Clarendon, the following allowance : Etftcut cateri barones 
 debent interejje judicih curia, regis qiwufque perveniatur ad diminutio7iem mem- 
 
 C c 2 brorum, 
 
 f Robertfon's hift. of Scotland, book I. p. 68. EfTays on Brit. Antiq. E/T. 2.
 
 204 LECTURES on the Lect. 21. 
 
 brorutriy wl ad mortem ; where the lafl words are plainly an exception in 
 their favour, in derogation to the common law, on account of their pecu- 
 liar circumftanccs under the canon. However, as many queftions might 
 arife before it came to the laft vote, that might intirely influence the final 
 determination, they ufed to abfent themfelves totally, and this going on for 
 ages, and the feudal baronies wearing out, and all titles becoming fixed to 
 the blood, not to the land, they came to be confidered as peers of a different 
 nature, becaufe their blood did not fucceed, and that which was firft a fa- 
 vourable permiffion, was conftrued a prohibition ; and when this was once 
 eftablifiied, it followed neceffarily, that, not being peers to the nobility by 
 blood, they muft be tried by commoners f . 
 
 With refpeft to the trials of noblemen, now I have faid fo much on that 
 head, I fliall obferve, they were earned on in two different methods. Ei- 
 ther the accufed perfon was tried in parliament, and then all the temporal 
 lords had voices, or he was tried by a jury of peers ; that is the king appoint- 
 ted twenty-four noblemen for that purpofe : A law that has proved fatal to 
 many noblemen, who happened to fall under the difpleafure of the court. 
 A commoner hath a right to prevent the fheriffs returning a jury to try him, 
 if he can fliew a juft exception to the fheriff ; and after the return is made, 
 lie can challenge a certain number for caufes known only to himfelf, and as 
 many more as he can prove fufficient matter of exception to. Such care did 
 the law talce of the lives of the commons, but no exception lay for a peer to 
 the king's return. The law would not fuppofe the leaft partiality in him, 
 even in his own caufe ; neither would it fufpeft that a peer could be biaffed 
 by any confidcration from doing ftridl juftice, and therefore no challenge 
 lay againfh him for any caufe, however ftrong and notorious ; and the fame 
 confidence is the reafon why they give their votes, guilty or not guilty, not 
 upon their oaths, but upon their honours. 
 
 I CAN fcarce imagine that this method of trial could have prevailed in the 
 times of the great power of the barons, when they often made the crown to 
 totter ; neither have I been able to difcover its beginning. Certain it is 
 that, in the reigns of the Plantagenets mod:, if not all noblemen, were tricil 
 in full parliament ; and as certain it is, tliat, during the reigns of the Tu- 
 
 dors 
 
 I Glbfon, cod. jiir. ecclef. Angl. vol. I. p. I .{J.
 
 Lect. 21. LAWS OF ENGLAND. 205 
 
 dors and Stuarts, the other was univerfally followed ; infomuch that every 
 nobleman was fure either to fufFer or efcape, according as the court was at 
 that time aftccSked towards him. At length, after many ftruggles, about 
 1695, the bill for regulating trials for high treafon and mifprifion of treafon 
 was pafled ; one claufe of which provides, that on the trial of peers, every 
 lord who hath a right to vote in parliament, fliall be fummoned, 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 ftands as before, that no 
 peer can be challenged. According to this law have all trials of Irifli peers 
 proceeded fmce that time, though there is no aft for that purpofe in this 
 kingdom |. 
 
 f Privileges of tlie Baronage, by SeUen, cli. 2. p. 1 5 3 7 of the edition of his works by 
 Wilkins. Coke's inftitute, fecond part, p. 49. and 50 ; third part^ p. 26. — 31. 
 
 LECTURE
 
 2o6 L E C T U R E S ON the Lect. 22. 
 
 LECTURE XXII. 
 
 Thejhare of the Commons in the Legijlature — T^he Armigeri or Gentry — Knights 
 Bannerets — The nature of Knighthood altered in the reign of James /.— • 
 Knights Baronets — Citizens and Burghers — The advancement of the power 
 and reputation of the Commons, 
 
 HAVING given a general idea of the lords, and their fliare of the 
 legiflature, it will now be proper to defcend, and fee the feveral 
 clafles of the lower rank, called Commons, and to examine what (hare or 
 influence they had formerly, or now enjoy, in the government. The com- 
 moners may, in general, then, be divided into the le/Jer jiobility, or gentry, 
 and the others, whom, for diftinftion fake, I lliall call the lower commons. 
 For although, fmce the reign of Henry the Eighth, many men of the befl 
 families, and fome defcended from the nobility, have engaged in commerce, 
 and thereby brought luflre to that order of men, before that time all per- 
 fons engaged in trade were held in as much contempt by the gentry of 
 England, as they are at prefcnt, by thofe of any nation ; and a gentleman 
 who employed himfelf in hunting, or perhaps ferving the king, or fome 
 great lord, was looked upon to have degraded himfelf. 
 
 The gentry were called Armigeri, becaufe they fought on horfeback, in 
 compleat armour, covered from head to foot ; whereas the infantry's defen- 
 five arms were of a {lighter kind, and no compleat covering. But we are 
 not to imagine that all who fought on horfeback compleatly armed, were 
 gentry ; for, in order to compleat their fquadrons, men of the lower ranks, 
 who, by their ftrength of body, and military fkill, were capable of fervice, 
 were admitted, but this did not make them gentlemen. Hence, in our old 
 hiftories, we find the knights and cfquires, that is, the real gentry, carefully 
 diftinguiflied from the tnen at arms. The peculiar privilege of the gentry 
 was the bearing on their Ihields certain marks, to diftinguifli them from 
 each other, and the men at arms called Coats of Arms. At firfl they were 
 perfonal privileges, and not inherent in the blood, and the marks and re- 
 wards
 
 Lect. 22. L A W S OF E N G L A N D. 207 
 
 wards of fome perfonal aft of bravery performed by the bearer ; fo we find 
 in the romances, that a new knight was to wear plain white, until, by fome 
 exploit, he merited a mark. The general opinion is, that they were firft 
 introduced at the time of the crufades, which I believe is pretty jufl, at 
 leafl with refpeft to our country : for the imperial crown of England had 
 no arms before the conqueft. The Norman kings bore the arms of Nor- 
 mandy, two leopards pajfant, to which Richard the Firft added that of 
 Guienne, another leopard paffant, and fo compofed this Englifli coat, in 
 which, among other alterations, the leopards have fince been changed to 
 lions f . 
 
 For the further encouragement of valour, thefe marks became tranf- 
 mifllble to heirs, not to the eldeft Jpn only, as lands, but to all the ions ; 
 faving that the younger were to take fome addition, for diftindlion fake. 
 While thefe coats were granted by the king alone, and that for real fervice 
 done, and confequently were not too common ; and while the cuftom of 
 wearing compleat armour remained, and the office of high conftable (the 
 judge in fuch matters) continued, the gentry were very curious in prefer- 
 vlng thefe diftinftions, and vindicating them from ufurpation. But as the 
 military difpofition of our gentry hath greatly fubfided fmce the lofs of the 
 provinces in France, and the kings at arms have affumed the power of 
 giving coats, nicety in thefe refpefts hath long fmce expired ; and now, as 
 in a commercial country, efpecially, it fliould be, education and behaviour 
 are fufficient criterions of a gentleman. 
 
 I SHALL therefore fay no more of them, as diftinguifhed from the reft of 
 the commonalty, but obferve, that of thefe there are two ranks, knights 
 and efquires, or gentlemen. For though we now make a diftindion be- 
 tween thefe two laft, the old law knew none, nor is it now a mifnomer, in 
 a writ of pleadings, to ftile an efquire a gentleman, or the contrary. The 
 holding of a knight's fee did not make a man of that order, but there were 
 particular ceremonies required for the purpofe. For the original dcfign of 
 tlie inftitution of dubbing knights, was that, after a perfon had, by perform- 
 ing military exercifes, Ihewn that he had properly accompliftied himfelf, 
 and was capable of that honourable fervice in the field, in his proper per- 
 fon, 
 
 •)■ Spelraan, voc. Armiger, Du Cange, voc. .'Vrmighi.
 
 2o8 L E C T U R E S ON the Lect. 22. 
 
 fon, he fliould, by a public folemnity, be openly declared fo. No wonder, 
 then, that the higheft nobility, the fons of kings, nay kings themfelves, 
 thought this title an addition to their dignity, as it was then an infallible 
 proof, that they had not degenerated from the virtue of their anceflors f . 
 
 But among knights there were fome of a more diftinguiflied kind (I do 
 not mean to fpeak of particular orders, fuch as thofe of the garter and 
 others) called Banfierets, as knights in general were made, upon their pro- 
 ving themfelves by exercifes capable of fervice. Thefe were never made 
 but tor an actual exploit in war, and then were dubbed with great folemnity 
 under the royal banner. Their diftindion was bearing a little banner, an- 
 nexed to the wooden part of their lance, adjoining the iron point ; as, ori- 
 ginally, every man who had a whole knight's fee, or the amount thereof in 
 parts of fees, was obliged to ferve in perfon, and was not allowed a proxy, 
 but in cafes of neceflity every fuch perfon was obliged to appear upon the 
 king's fummons, to fhew himfelf quahfied, and to receive the order of 
 knighthood. This power continued in the king, even after the military te- 
 nants were difcharged of perfonal attendance on fending another, or pay- 
 ing efcuage, and came to be confidered as a profitable fruit of the king's 
 feignory, and was frequently ufed as an expedient to raife money, by obli- 
 ging the unqualified, or thofe who had no mind to the cxpence or fatigue of 
 attending, to compound J. 
 
 This right of compofition was eftablilhcd by aft of parliament, the firft 
 of Edward the Second, which likewife fixes the eftate the perfons fummon- 
 ed mud 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 conqueft, but by change of times, in Edward the Second's reign, it 
 may well be efteemed forty ; fo that by this act a man who had half a 
 knight's fee was liable to be fummoned. This was one of the unhappy 
 means made ufe of by king Charles the Firft to procure money when he 
 quarrelled with his parliament. He was fenfible, indeed, of a diifcrcnce in 
 the value of money, and therefore fummoned none but fuch as had forty 
 pounds a-year ; but had he paid due attention to its real rife, he fhould have 
 
 fummoned 
 
 f Selden, tit. hon. part 2. ch. 5. § 33. Cantlen's introd. to liis Britar, 212. 
 J Selden, tit. hon. part 2. ch. 5. § ?o.
 
 Lect. 22. LAWS OF ENGLAND. 209 
 
 fammoned none under an hundred and twenty. For in Edward's reign a 
 pound in money was a real pound in filver, whereas in Charles's, it was but 
 a third part, and fo the proportion was to fixty pound fterling, and fixty 
 more is the leafl rife that can be allowed for the improvements in the value 
 of lands, by the intermediate increafe of commerce. No wonder, therefore, 
 that his people looked upon it as an unfupportable grievance. According- 
 ly, in the 17th of his reign, the ad of Edward the fecond was repealed, and 
 in Ireland, it vanifhed with the tenures on which it depended f . 
 
 The great change in the nature of knighthood happened in the reign of 
 James the Firft. The Plantagenets never created any perfons fuch but with 
 a view to military merit, except their judges. The Tudors extended it to ^^r; 
 perfons who had ferved them well in civil ftations, but fo fparingly, and to ^^ ^ 
 perfons of fuch evident merit, that it ftill was an encouragement to' thofc 'V^' ' 
 that deferved well of the public. But James, who had a paffion for crea- 
 ting honours, poured forth his knighthoods, without regard to defert, with 
 fb lavifli an hand, confirming them for money frequently on wealthy tra- 
 ders, and others without any apparent public merit, that thereby, as alfo ' "-'•'-^ 
 by creating an order of hereditary knights, called baronets, a knighthood ^<^'/i' 
 foon lofl the badffe of merit It before had carried. '/ ^ y n ' ' 
 
 The occafion of creating baronets was this. On the efcheat of the fix 
 counties in Uliler, they were planted with colonies of Scotch and Englifh ; 
 and, as it was neceflary to fupport a {landing army there, for fome years 
 after, for the defence of the infant fettlemcnts, and money was wanting for 
 that purpofe, as, in that reign, it always was for every other, this fcheme 
 of creating an order of hereditary knights, to take place after the barons, 
 was fixed upon for that purpofe. At firfl it had fome afpedl towards mili- 
 tary fervic-e, for each of them was obliged to maintain fo many foldiers in 
 the plantation, for a limited time ; and to make the honour more valuablci, 
 and to get the better tcrnis for it in the firfl; plan, it was provided, that no 
 more than two hundred (liould be originally created ; and when any of them 
 failed, no new ones to be created in their room. But it was foon feenthat 
 thefe new knights, when they had once attained their dignities, might not 
 duly perform the fervices they engaged for. The maintaining the foldiers, 
 
 D d therefore, 
 
 t 5pelm. reliq. differt, de niilite, Coke'i infl. part 2. p. 593.
 
 no 
 
 LECTURES ON the Lect. 22. 
 
 therefore, was commuted into a fum paid to the king, vho undertook to do 
 it ; and had he been a good ceconomift, it would have been a prudent pre- 
 caution, but whatever fums he could lay his hands on were always at the 
 mercy of his reigning favourite. He was, therefore, obhged to depart from 
 his intended limitation, and to exceed his number ; and yet, after all, the 
 fervice was not done fo well as it fhould have been. His fucceflbrs have 
 followed his example, in adding to the number, which now is certainly un- 
 limited f. 
 
 Next to the gentry, or military order, in eftimation among the northern 
 nations flood the citizens and burghers, that is, the trading part of the na- 
 tion, whether merchants or artificers. Thefe were for fome ages held in a 
 very low light, none of the conquerors or their defcendants applying them- 
 felves to fuch occupations. They were, indeed, at firft, allowed certain 
 j^rivileges and enjoyed their own laws, under the infpeftion of magiftrates 
 appointed by the king, known by the name of Frapoftti, Provojls, or fome 
 other equivalent title. But thefe liberties did not laft long. The turbulent 
 temper of the times, the frequent competitions for the throne, and the many 
 rebellions of the great lords, occafioned the towns and their inhabitants to 
 be taken in war, one after another ; and the perfons fo taken, were, by the 
 prevailing Jus Gentium of thefe ages reduced to fervitude ; not, however to 
 a condition fo low as the villeinsy who were, properly, the flaves of thofe 
 people, and had no property but at the will of their lords. However it is, 
 no flate, except one abfolutely barbarous, could fubfifl without artizans ; 
 and as commerce is the parent of wealth, and as neither it, nor arts, could 
 thrive where property is not, in fome fort, fecure, the lords were in fome 
 Jcgree, by their own intereft, obliged to relinquifli to thefe people the feizing 
 of their goods at plcafure, as they praftifed towards their villeins, and to 
 leave them at liberty to make regulations among themfelves for the benefit 
 -)f trade J. 
 
 Thus far, then, they were free, but their fervitude confifled in their 
 being liable to taxes, or tai/liages, at the will of the lords, who, if they 
 vvere wife, laid on fuch only as they could well bear ; but miferable was 
 
 their 
 I Selden, lit. hon- part 2. ch. J. § /,6. Cottoj's poftliumoiis works, 
 i Madox, Kirma Durgi, tli. i. 
 
 I
 
 Lect. 22. LAWS OF ENGLAND. :in 
 
 their condition when they fell into the hands of one \\ ho was needy and 
 rapacious ; for, then, they were often fleeced, even tn ruin and depopu- 
 lation. This induced the v/ilcr lords, who faw the confequences, and hov\ 
 much the arbitrary exertion of fuch powers mud, in the end, hurt them- 
 felves, to rellrain their own powers ; and, by degrees, by granting them 
 charters, to emancipate them. They formed them into bodies corporate, con- 
 firmed the right of making bye-laws, which had been permitted them, and 
 granted them other privileges, ox franchifes, as they called them, from their 
 being infranchlfed, in derogation to former regal or feignoral rights. But 
 for their total freedom they were indebted to parliament, which, feeing the 
 bad ufe king John made of his right in this kind, provided thus in Magna 
 Charta, Civitas London babcat omiics libertates Juas antiquas, <b' confuctiidincs 
 fiias. Praterea ijolumus cir concedimus, quod omnes al'ne chifates, burgi, cr" 
 villa, & barones de quinque portitbus, & omnes alii partus, habeant omnes liber- 
 tates & liberas confuetudines fuas. And another chapter reflrains the king 
 from laying new and evil tolls, and confines him to the antient cuftoms f. 
 
 Hitherto, however, the citizens and burgefles were no part of the body 
 politic, and were not reprefentcd in parliament. But as, with their fecuri- 
 ty, their wealth and confequence encreafed, about, or before the year 1300, 
 they were admitted to that privilege ; that they might, in conjunction with 
 the knights of fliires, be a check on the overgrown power of the mighty 
 lords ; and about that time alfo the fame privilege was allowed to this clafs 
 of people in the other nations of Europe alfo. This right was confirmed, 
 and fo I may fay, the houfe of commons, in its prefent condition, formed by 
 the ftatute of the thirty-fourth of Edward the Firfl. Nullum talhgiuni vcl 
 auxilium, per nos vel heredes nojiros, in regno nojlro ponaiur, feu levctur, fine 
 loluntate & ^ffenfu archiepifcoporum, epifcoporum, comitum, baronum, militum, 
 iurgerftum, <b' aliorum liberorum communium de regno nojlro ; where we fee, 
 not only the burgeffes, but free yeomen alfo had reprefentatives, namely, 
 by their voting along with the knights of the fhires, according to the 
 maxim of that wife prince, ^a ad omnes pertinent, ab omnibus dsbent 
 iradarj. \, 
 
 V 
 
 D d 2 Having 
 
 t Madox, Firma Burgi, ch. 2. Ruft'hcad, vol. I. p- 4. 
 X Ruffhead, vol. i. p. iffi*
 
 212 LECTURES ON the Lect. 22. 
 
 Having come to the conflitution of the houfeof commons as it ftands at 
 prefent, it will not be amifs to look back, and fee how far its prefent form 
 agrees with, or diifers from the feudal principles. Thefe principles, we 
 have feen, were principles of liberty ; but not of liberty to the whole na- 
 tion, nor even to the conquerors ; I mean, as to the point I am now upon, 
 of having a fliare in the legiflation. That was referved to the military te- 
 nants, and to fuch of them only as held immediately of the king. And the 
 loweft and poorefl of thefe alfo, finding it too burthenfome to attend thefe 
 parliaments, or affemblies, that were held fo frequently, foon, by difufe, loft 
 their privileges ; fo that the whole legiflature centered in the king, and his 
 rich immediate tenants, of his barony. And it is no wonder the times were 
 tempcftuous, when there was no mediator, to balance between two fo great 
 contending powers, and were it not that the clergy, who, tliough fitting as 
 barons, were in fome degree a feparate body, and had a peculiar intereft of 
 their own, performed that office, fometimcs, by throwing themfelves into 
 the lighter fcale, the government mufl foon have ended either in a dcfpotical 
 monarchy, or tyrannical oligarchy. 
 
 • Such were the general affemblies abroad in the feudal countries, but 
 fuch were not ftridly the luittenagcmots of the Saxons, for their conflitution 
 was not exaftly feudal. I have obferved that the mofl of their lands were 
 allodia], and very little held by tenure. The reafon I take to be this : On 
 their fettlcment in Britain they extirpated, or drove out, the old inhabitants, 
 and therefore, being in no danger from them, they were under no neceffity 
 of forming a conflitution compleatly military. But then thofe allodial pro- 
 prietors being equally freemen, and equal adventurers with thefe who had 
 lands given them by tenure, if any in truth had fuch, they could not be de- 
 prived of their old German rights,- of fitting in the public affemblies. From 
 the old hiRorians, who call thefe meetings injinita multliuda, it appears that 
 they fat in perfon, not by reprefentation f . 
 
 This conflitution, however, vaniflied with the conqueft, when all the 
 lands became feudal, and none but the immediate military tenants were ad- 
 mitted. We find, indeed, in the fburth year of William the Firft, twelve 
 
 men 
 
 :|: Guidon's hidory of Parliament. Tyrrel's introduiaion to his hiftory. L. L. Aiiglo 
 Saxon, ap. Wilkijis.
 
 Lect. 22. LAWS OF ENGLAND. 213 
 
 men fummoned from every county, and Sir Matthew Hale will have this 
 to be as efFedual a parliament as any in England | ; but, with deference to 
 fo great an authority, I apprehend that thefe were not members of the legii- 
 lature, but only afliftants to that body. For if they were part thereof, how 
 came they afterwards to be difcontinued till Henry the Third's time, where 
 we firft find any account of the commons ? The truth feems to be, that 
 they were fummoned on a particular occafion, and for a purpofe that none 
 but they could anfwer. On his coronation he had fworn to govern by Ed- 
 ward the ConfefTor's laws, which had been fome of them reduced into wri- 
 ting, but the greater part were the immemorial cuftom of the realm ; and 
 he having diftributed his confifcations, which were almofl the whole of 
 England, into his follower's hands, who were foreigners, and ftrangers to 
 what thefe laws and cuftoms were, it was neceffary to have them afcertained; 
 and, for this purpofe, he fummoned thefe twelve Saxons from every coun- 
 ty, to inform him and his lords what the antient laws were. And that they 
 were not legiflators, I think appears from this, that when William wanted 
 to revive the Danifli laws, which had been abolifhed by the Gonfeffor, as 
 coming nearer to his own Norman laws, they prevailed againft him, not by 
 refufing their confent, but by tears and prayers, and adjurations, by the 
 foul of Edward his benefactor. 
 
 Thus William's laws were no other than the Confeflbr's, except that by 
 one new one, he dextroufly, by general words, unperceived by the Eng- 
 lifli, becaufe couched in terms of the foreign feudal law, turned all the al- 
 lodial lands, which had remained unforfeited in the proprietor's hands, into 
 military tenures. From that time, until the latter end of Henry the Third's 
 reign, our parliaments bore the exadt face of thofe on the continent in that 
 age ; but then, in order to do fome juftice to the leffer barons, and the 
 lower military tenants, who were entitled by the principles of the conftitu- 
 tion to be prefent, but difabled by indigence to be fo in perfon, they were 
 allowed to appear by repi-efcntation, as were the boroughs about the fame 
 time, or foon after. The perfons entitled to vote in thefe eleiftions for 
 knights of the {hire, were, in my aj^rehenfion, only the minor barons, and 
 tenants by knight fervice, for they were the only perfons that had been 
 
 omitted, 
 
 t Hiftory of the common law of Engltad, p. 107..
 
 ai4 L E C T U R E S ON the Lect. 22. 
 
 omitted, and had a right before, or perhaps with them, the king's imme- 
 diate focage tenants 171 capite. 
 
 But certain it is, the law that fettled this had foon, with regard to liber- 
 ty, a great and favourable extenfion, by which all freemen, whether holding 
 of the king mediately or immediately, by military tenure or otherwife, were 
 admitted equally to vote ; and none were excluded from that privilege, ex- 
 cept villeins, copy-holders, and tenants in antient demefne. That fo great 
 a deviation from the feudal principles of government happened in fo fliort a 
 time, can only be accounted for by conjeftvre. For records, or hiflory, do 
 not inform us. I fliall guefs then, that the great barons, who, at the end 
 of Henry the Third's reign, had been fubjeft to forfeiture, and obliged to 
 fubmit, and accept of mercy, were duly fenfible of the defign the king had 
 in introducing this new body of legiflators, and fenfible that it was aimed 
 againft them, could not oppofe it. But, however, they attempted, and 
 for fome time fucceeded to elude the effeds of it, by infilling that all free- 
 men, whether they held of the king, or of any other lord, fliould be equal- 
 ly admitted to the right of the reprefentation. 
 
 The king, whofe profeflion was to be a patron -of liberty, Edward the 
 Firft, could not oppofe this ; and as he was a prince of great wifdom and 
 forefight, i think it is not irrational to fuppofe, that he might be pleafed to 
 fee even the vaflals of his lords, a<El in fome fort independently of them, 
 -and look immediately to the king their lord's lord. The efFed was certain- 
 ly this, by the power and influence their great fortunes gave them in the 
 country, the majority of the commons were, for a long time, more in the 
 dominion of the lords than of the crown ; though, if the king was either a 
 wife or a good prince, they were even then a confiderable check upon the 
 too mighty peers. 
 
 Every day, and by infenfible fteps, their houfe advanced in reputation 
 and privileges and power ; but fmce Henry the Seventli's time, the pro- 
 grcfs has been very great. The encreafe of commerce gave the commons 
 ability to purchafe ; the extravagance of the lords gave them an inclination, 
 the laws of that king gave them a power to alienate their intailed eflates ; 
 infomuch that, as the lliarc of property which the commons have is fo dif- 
 
 proportionate
 
 Lect. 22. LAWS OF EN GLAND. 215 
 
 proportionate to that of the king and nobles, and that power is faid to fol- 
 low property, the opinion of many is, that, in our prcfent fituation, our 
 government leans too much to the popular fide ; while others, though they 
 admit it is fo in appearance, reflefting what a number of the houfe of com- 
 mons are returned by indigent boroughs, who are wholly in the power of 
 a few great mean, think the weight of the government is ratlier oligar- 
 chical |. 
 
 t Biblioth, polit. dial. 6, 7, 8. Hume, vol. r. 
 
 LECTURE
 
 2i6 L E C T U R E S ON the Lect. 23. 
 
 LECTURE XXIII. 
 
 The privilege of voting for Knights of the Shire-^The bufmefs of the different 
 branches of the Legiflature, diJlinB and feparate — The method of pajjing 
 laws — The hijiory and form of the kgi/lature in Ireland. 
 
 TH E houfe of commons growing daily in confequence, and the focage 
 tenants having got the fame privilege of voting for the knights of 
 the (hire as the military ones, it naturally followed, that every free perfon 
 was ambitious of tendering his vote, and thereby of claiming a fliare in the 
 legiflature of his country. The number of perfons, many of them indigent, 
 reforting to fuch eleftions, introduced many inconveniences, which are ta- 
 ken notice of, and remedied by the ftatute of the eighth of Henry the fixth 
 chapter the feventh which recites, that of late " elections of knights had 
 *' been made by very great, outrageous, and exceffive numbers of people of 
 " which the mofl part was of people of fmall fubftance, and of no value, 
 " whereof every one of them pretended a voice equivalent with the mod 
 " worthy knights and efquires, whereby manflaughter, riots, batteries, and 
 *' divifions among the gentlemen and other people of the fame counties 
 " (hall very likely rife and be, unlefs convenient and due remedy be pro- 
 " vided in this behalf;" and then it provides that, " no perfons fhould 
 " have votes, but fuch as have lands or tenements to the value of forty 
 " fliiHings a year above all charges." And fo the law {lands at this day, 
 though by the change in the value of money, by the fpirit of this ftatute, no 
 perfon fliould have a vote that could not difpend ten pounds a year at leaft. 
 Such a regulation, were it now to be made, would, certainly, be of great 
 advantage both to the reprefenters and reprefented ; but there is little pro- 
 fpe6: of its ever taking place : And if it fliould be propofed, it would be 
 looked upon as an innovation, though in truth, it would be only returning 
 to the original principles of the conflitutionf. 
 
 Our 
 
 I 
 
 f Ruffhead, vol. i. p. 5^4.
 
 Lect. 23. LAWS OF E N G L A N D. 217 
 
 Our legiflature, then, confiftliig of three diftind: parts, tlie king, lords, 
 and commons, in procefs of time, each of them grew up to have diflinct 
 privileges, as to the beginning particular bufmcfTes. Thus all acts of gene- 
 ral grace and pardon take their rife from the king ; acts relative to the 
 lords and matters of dignity, in that houfe ; and the granting of money in 
 the commons. How the commons came by this exclufive right, as to mo- 
 ney matters, is not fo eafy to determine. Certain it is that, originally, the 
 lords frequentlv taxed themfelves, 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 flaould equally affedl the whole 
 nation, thefe generally took their rife in that houfe which reprefcnted the 
 bulk of the people ; arid this, by fleadinefs and perfeverance, they have ar- 
 rogated fo far into a right peculiar to themfelves, as not to allow the lords 
 a power to change the leail title in a money bill. As to laws that relate not 
 to thefe peculiar privileges, they now take their rife indifferently either 
 in the lords or commons, and when framed into a bill, and approved by 
 both, are prefented to the king for his aflent ; and this has been the pracf- 
 tice for thefe two or three hundred years pad f. 
 
 But the ancient method of pafiing laws was different, and was not only 
 more refpedful to, but left more power in the crown. The houfe which 
 thought a new law expedient, drew up a petition to the king, fettino- forth 
 the mifchief, and praying that it might be redreffed by fuch or fuch a re- 
 medy. When both houfes had agreed to the petition, it was entered on the 
 parliament-roll, and prefented to the king, who gave fuch anfwer as he 
 thought proper, either confenting in the whole, by faying, kt it be as is de- 
 fired, or accepting part and refufmg or pafling by the reft, or refuffng the 
 whole by faying, let the ancient laws be ohfervcd, or in a gentler tone, the 
 king will deliberate. And after his anfwer was entered on the roll the 
 judges met, and on confideration of the petition and anfwe^, drew up the 
 adj which was fent to be proclaimed in the feveral counties J., 
 
 . Lord Coke very juftly obferves that thefe afts drawn up by men, niaf- 
 ters of the law, were generally exceedingly well penned, fliort, and pithy, 
 
 E e ftriking 
 
 f Spelman, voc. Parlamentiini. Hales on Parlianients. Ellys on Temporal Liberty. 
 X Elfringe, on the method of pafling bills in Parliament. Gurdon*;; liirt. of Parliament.
 
 2i8 L E C T U R E S ON the Lect. 23. 
 
 Ilriking at the root of the grievance, and introduchig no new ones ; where- 
 as the long and ill penned ftatutes of later days, drawn up in the houfes, 
 have given occafion to multitudes of doubts and fuits, and often, in flop- 
 ping one hole, have opened two. However, notwithilanding this inconve- 
 nience, there v/as good caufe for the alteration of method. The judges, if 
 at the devotion of the court, would fometimes, make the moft beneficial 
 laws elufoiy, by inferting a falvo to the prerogative, though there was none 
 in the king's anfwcr ; whereas, by following the prefent courfe, the fubjefts 
 have reduced the king to his bare alTirmative or negative, and he has loft 
 that privilege, by the difufe of petitions, of accepting that part which was 
 beneficial to himfcif, and denying the remainder f. 
 
 I uayt: the rather mentioned this ancient praftice of making laws, be- 
 caufe it fhews how inconfiftent with our conftitution is that republican noti- 
 on, which was broached by the enemies of Charles the Firft, that the king, 
 by his coronation oath, fwearing to obferve the laws quas vulgus elegerit, was 
 obliged to pafs all bills prefented to him, and had no negative. The mean- 
 ing, certainly, only extended to his obfervation of the laws in being. For 
 if the words were to be conftrued of future propofitions, and in the fenfe 
 that thofe people would put upon them, the lords alfo, as well as the king, 
 muft be deprived of their power of diffent, and fo indeed, it appears, they 
 expounded it ; for when the lords offended them, by refufmg the trial of 
 the king, they confiftently enough with the maxim they had eflablifhed, 
 turned them out of doors. 
 
 But though fuch as I have mentioned is the conflitution of the Engllfli 
 parliament, the form of the legiflature in this kingdom hath been for above 
 two hundred and fixty years very different, the nature of which, and the 
 caufes of its deviation from its model, it is proper every gentleman of this 
 country fliould be acquainted with. In the infancy of the Englifli govern- 
 ment in Ireland, the chief governors were generally chofen by the king out 
 of the lords of the pale, the defcendants of the firft conquerors, both as they 
 were better acquainted with the intcreff, and more concerned in the pre- 
 fervation of the colony, and alfo as, by their great pofTefTions, they were 
 better enabled to fupport the dignity of the place, whofe appointments, the 
 
 king's 
 •)• RuiFhesd's preface to the ftatutes.
 
 Lect. 23- LAWS OF ENGLAND. ^19 
 
 king's revenue here being inconfitlerable, were very low. Thefe governors, 
 
 however, though men of the greated abilities, and of equal faithfulnefs to 
 
 the crown, were not able to preferve the footing the Englifli had got foon 
 
 after the conqueft ; but were every day lofing ground to the natives, down 
 
 to the reign of Edward the Third, which is generally, and, I believe, juftly, 
 
 attributed to the negligence of the Englifli lords, who, by intermarriages, 
 
 had acquired great eftates in Ireland. The power of thefe lord lieutenants 
 
 was, in one refpeft, likewife exorbitant, namely, in giving confent to laws "-^'^-'y 
 
 without ever confulting his majefty, a power, perhaps, necefTary at firll, 
 
 when the country was in a perpetual ftate of war, and its interell would not 
 
 brook delays, but certainly, both for the fake of king and people, not fit 
 
 to be continued. -^ ^^m^/-^ '/ 
 
 It was natural, therefore, for the king, who found himfelf ill ferved, to 
 change hands, and to entruft this exorbitant power with perfons not ellatcd 
 in the country, and whofe attachment he could confide in ; and accordingly, 
 from that time, we find natives of England generally appointed to the go- 
 vernment, to the great difcontent of the Irifli lords, who looked upon them- 
 felves as injured by the antient pradice not being continued. This difcon- 
 tent was farther intlamed by a very extraordinary ftep, which this otherwife 
 wife and jufl king was prevailed upon to take,iand which firft gave rife to 
 that famous diftinftion between the. Englifli by blood, and the Englifli by 
 birth. This king, and his father Ed\yard the Second, had granted great 
 cftatcs, and extenfive jurifdiftions to many Irifli lords of Englifli blood, for 
 fervices pretended to have been done, many of which, it is probable enouj^h, 
 as the king alledged, were obtained by deceit and falfe reprefentation ; and 
 had he contented himfelf with proceeding in a legal courfe, by calling 
 thefe patents in hj fcire facias , and vacating them upon proof of the deceit, 
 no perfon could have complained ; but he took a very different method, as 
 appears from the v/rit he thought proper to iffue on that occafion. £^ia 
 plures excejjiva donationcs terrarnm, tcnementorwn & libertattun, in terra Hi^ 
 berfii,£, nd minus veracem & fiibdolam fuggejlionem peteniium, tarn per Ed- 
 luard If. quam per regem nunc fada funt^ rex dduforias Jnijufmodi macbina- 
 iiones vdlens elidere, de concilio peritarum fibi ajpjlentium, ornties donationes ter' 
 rariim, tenementorum, & libcrtattim pradidariim duxit revocandas, quoufque de 
 meritis perfonarum, de caufis 6' condiiionibus donationum pradi£iarum fiterit in- 
 
 E e 2 formatus^
 
 220 
 
 LECTURES ox THE Lect. 23. 
 
 for mains, & idea, mandaium eji jujliciarih regni Hibernia, quod omnia terras 
 tcr.emcnta & Uberlatcs predict a per d'lclos regis jnjUciarios aiit locum tencntes fuos 
 cjiiibiifcunquc pcrfonis faclo fcifire facias. This hafty ftep alienated the Eng- 
 lifli Irifli from the king and his advifers, and though, after a conteft of ele- 
 ven years, the king nnnulled this prefumption, the jealoufy continued on 
 both fides, and the Irifh of Englifh blood, were too ready to follow the ban- 
 ners of any pretender to the crown of England. 
 
 In the reign of Henry the Sixth, that weak prince's minifters, jealous of 
 the influence of Richard duke of York in England, and of his pretenfions 
 to the crown, conflituted him governor of Ireland ; than which they could 
 not have done a thing more fatal to their maflier's family, or to the confti- 
 tution of this kingdom, as it turned out in the fequel ; for to induce him to 
 accept it fo eager were they to remove him from England, they armed him 
 alnioft with regal powers, tie was made lieutenant for ten years, had all 
 the revenue, without account, befides an annual allowance from England ; 
 had power to farm the king's lands, to place and difplace officers, and levy 
 foldiers at his pleafure. The ufe the duke made of his commiffion was to 
 flrengthen his party, and make Ireland an afylum for fuch of them as fhould 
 be oppreffed in England ; and for this purpofe pafled an ad of parliament, 
 reciting a prefcription, that any perfon, for any caufe, coming into the faid 
 land, had ufed to receive fuccour, tuition, fupportation, and free liberty 
 within the faid land, during their_ abiding there, without any grievance, 
 hurt, or moleftation of any perfon, notwithflanding any writ, privy feal, 
 great feal, letters mifiive..under fignet, or other commandment of the king, 
 confirming the faid prefcription, and making it high treafon in any perfon 
 who fliould bring in fuch writs, and fo forth, to attach or diflurb any fuch; 
 perfon. 
 
 This acl, together -with the duke's popularity, and the great eilate he 
 had in this kingdom, attached the Englifli Irifh firmly to his family, info- 
 piuch that, in Henry the Seventh's reign, they crowned the impoftbr Lam- 
 bert Simnel, and were afterwards ready to join Perkin Warbeck ; and by 
 this aft of the duke of York's they thought to exculpate themfelvesf. But 
 
 when 
 
 \ Kennet's Englifli Ilifiorians, vol. 2. p. 587, 6o6, Carte, vol. c. p. S2S. IIunie_. 
 vol. 2. and 3,
 
 Lect. 23. LAWS OF ENGLAND. 221 
 
 when that king had trodden down all oppofition, he took advantage of the 
 precarious fituation they were in, not only to have that aft repealed, and to 
 deprive his reprefentatives there from palling laws rcgc inconfidto, but 
 alfo to make fuch a change in the legiflature, as would throw the principal 
 weight into his and his fucceffors hands ; and this was by the famous law of 
 Poyning'sf. By former laws a parliament was to be holden once a year, 
 and the lords and commons, as in England, were the propofers. This aft, 
 intended to alter thefe points, gave occafion to many doubts ; and indeed, 
 it feems calculated for the purpofe of not difclofmg its whole efieft at once. 
 Its principal purport, at firfl view, feeming to be intended to reftrain the 
 calling the parliament, except on fuch occafions as the lord lieutenant and 
 council fhould fee fome good caufes for it, that fhould be approved by the 
 king. The words are, that " from the next parliament that flxill be hold- 
 " en by the king's commandment and licenfe, no parliament be holden 
 " hereafter in the faid land, but at fuch feafon as the king's lieutenant and 
 " council there firfl do certify the king, under the great fcal of that land, 
 " the caufes and confiderations ; and all fuch afts as to them feemeth fliould 
 " pafs in the fame parliament, and fuch caufes, confiderations, and afts, 
 " affirmed by the king and his council to be good and expedient for that 
 " land, and his licenfe thereupon, as well in affirmation of the faid caufes 
 " and afts, as to fummon the faid parliament under his great feal of Eng- 
 " land had and obtained ; that done, a parliament to be had and holden 
 " after the form and efl'eft before rehearfed, and any parliament holdeu; 
 '^' contrary to be deemed void |. 
 
 The firfl and great effeft of this aft was, that it repealed the law for 
 annual parliaments, and made the lord lieutenant and council, or the king 
 who had the naming of them, with his council of England, the propofer to. 
 the two houfes of the laws to pafs, at leafl of thofe that fliould be fo de- 
 vifed before the meeting of parliament. But the great doubt was, as there 
 were no exprefs words depriving the lords and commons of their former 
 tights, whether, when the parliament was once met, they had not flill the 
 old right of beginning other bills, or whether they were not reflrained to 
 the afts fo certified and returned. By the preambles of fome afts, foon 
 
 after 
 
 f Lord Bacon's life of Henry VII. ap. Kennet, vol. 2. p. 612. 
 $ Iriih ftatutes, vol. i. p. 2.3. Coke, 4. inftit. chap. 76.
 
 222 L E C T U R E S ON the Lect. 23. 
 
 after made, exprefTing that they were made at the prayer of the commons 
 in the prefent parliament affembled, one would be inclined to think that 
 the commons, after the affembling the parliament, had propoied thefe laws. 
 Certain it is, the latter opinion, fupported by the miniflers of the king and 
 his lawyers, gained ground. For, in the twenty-eigth of Henry the 
 Eight's reign, an aft was made fufpending Poyning's law with refpeft to 
 all afts already pafled, or to be paffed in that parliament ; the pailing of 
 which aft was certainly a flrong confirmation of what was before doubtful 
 againft the houfe of lords or commons in Ireland, whether they could 
 bring in bills different from thofe tranfmitted by the council, fmce here 
 they both confented to the fufpenfion of the aft, to make valid the laws 
 tliey had pafled or (hould pafs in that parliament, without that previous 
 ■ceremony ■}-. 
 
 But in the reign of Philip and Mary, by which time this opinion, before 
 doubtful (for fo it is mentioned in the aft then made) was, however, to be 
 maintained, and ftrengthened, as it added power to the crown. The aft 
 ■we at prefent live under was made to prevent all doubts in the former, 
 which was certainly framed in words calculated to create fuch doubts, to 
 be extended in favour of the prerogative. This provides, that as many 
 caufes and confiderations for afts not forfeen before, may happen during 
 the fitting of parliament, the lord lieutenant and council may certify them, 
 and they fhould pafs, if they fhould be agreed to by the lords and commons. 
 But the great ftrokes in this new aft were two, the firfl: explanatory of part 
 of the former in Henry the Seventh's reign, that is, that the king and coun- 
 cil of England fhould have power to alter the afts tranfmitted by the coun- 
 cil of Ireland ; fecondly, the enafting part, that no afts but fuch as fo came 
 over, under the great feal of England, fliould be enafted ; which made it 
 clear, that neither lords or commons in Ireland had a right to frame or 
 propofe bills to the crown, but that they mull firll be framed in the privy 
 council of Ireland, afterwards confented to, or altered by the king, and the 
 fame council in England, and then, appearing in the face of bills, be refufed 
 or accepted in toto by the lords and commons here |. 
 
 It 
 
 \ Irilh Statutes, p. 48. 
 X Irilh Stat. vol. i. p. 143.
 
 Lect. 23* LAWS OF EN GLAND. 223 
 
 It is true, that both lords and commons have attempted, and gained an 
 approach towards their anticnt rights of beginning bills, not in that name, 
 but under the name of Heads of Bills, to be tranfmitted by the council ; but 
 as the council are the firft beginners of a£ts of parliament, they have aflumed 
 a power of modelling thefe alfo. The legiflature of Ireland is, therefore, 
 very complicated. Firft, the privy council of Ireland, who, though they 
 may take the hint from the lords or commons, frame the bill, next the king 
 and council of England, who have a power of alteration, and really make it 
 a bill, unalterable, by fending it under the great feal of England ; then tlie 
 two houfes of lords and commons, who mud agree in the whole, or reject 
 the whole ; and, if it pafles all thefe, it is prefented to the king for his af- 
 fent ; which indeed is but nominal, as it was before obtained. 
 
 L E C T U R E-
 
 224 LECTURES on the Lect. 24. 
 
 LECTURE XXIV. 
 
 Villcnagc — Tlje Servi in Germany, mentioned by Cafar and Tacitus, the predecef- 
 
 fors of the Socmen or focage tenants in the feudal monarchy — Villeins in grofs 
 
 and -oilleins belongitig to the land of the Lord — The condition of villeins — The 
 
 different ways by which a 7nan 7nay become a 'villein — The means by which vil- 
 
 lenage or its effcds may be fufpended. 
 
 I Now proceed to the lowefl: clafs of people that were in a feudal king- 
 dom, who, indeed, were not any part at all of the body politick, name- 
 ly copyhold tenants, tenants in ancient -dcmefne, and villeins, on which I fliall 
 not much enlarge as villenage is worn out both in England and Ireland ; 
 and though the two former are common in England, yet there are none 
 fuch in this kingdom. I fliall begin with villenage, though the lowed kind, 
 as I apprehend the other two by the tacit confent of their lords, have for 
 ages, from being villeins acquired the privileges that diftinguiflied them 
 from fuch. 
 
 In a former ledrue I gave it as my opinion, that, while the nations of the 
 north continued in Germany, there was no fuch order of men among them ; 
 but that the perfons among thofe people who were called fervi by Ctefar 
 and Tacitus, were the predeceflTors of the focmen qv focage tenants in the feu- 
 dal monarchy ; though they certainly had not all the privileges the focmen 
 acquired, and that, after their fettlements in their conquefts, this rank was 
 introduced, and formed out of their captives taken in war, in imitation of 
 the Roman flaves. In this I am ftrongly fupported by my lord Coke, who 
 quotes Braclon, Fleta, and the Mirror, concerning their origin, to the fol- 
 lowing purpofe : " The condition of villeins who palled from freedom in- 
 " to bondage in ancient time grew by the conftitution of nations, and not 
 " by law of nature ; in which time all things were common to all, and by 
 " multiplication of people, and making proper and private thofe things 
 "s that were common, arofe battles. And then it was ordained by conflitu- 
 
 " tion
 
 Lect. 24- LAWS OF ENGLAND. iij 
 
 •' tion of nations (lie means by the tacit confent of civilized nations) that 
 *' none fhould kill another, but that he that was taken in battle fhould rc- 
 *' main bond to his taker for ever, and he to do with him, and ail that (Jiould 
 " come of him, his will and pleafure, as with his beafl or any other cattle, 
 *' to give, or to fell, or to kill. And after, it was ordained for the cruelty 
 *' of fome lords, that none flrould kill them, and that the life and mem- 
 *' bers of them, as well as of freemen, were in the hands and proteftion of 
 *' kings, and that he that killed his villein fliould have the fame judgment 
 *' as if he had killed a freeman f." This, it falls alfo to be obferved, is the 
 very account the Roman civil law gives of the original offervitude. 
 
 ViLLENAGE, therefore, was a flate of fervitudc, ere^bed for the purpofe 
 of doing the mod ignoble, laborious, and fervile offices to the lord, accor^ 
 ding to his will and pleafure, whenfoever called upon ; fuch as the inllanccs 
 Littleton gives, of carrying and recarrying dung, and fpreading it on his 
 lord's land. Bra^on, thus defines it puritm villcnngiiim eji, a quo prejlaiur 
 fervitium incertam indetermiiiatum, ubifcire non potetit vcfpere quale fermtium, 
 Jieri debet mane, viz. Ubi quis facer e tenetur qidcquid ei prccceptum fuerit. So 
 , the mofl: honourable fervice, the military one, was free, and its duties un- 
 certain. The next in rank, the focage was free, and its duties- certain. 
 This, the lo-weft, was fervile, and its duties uncertain J. 
 
 Of thofe villeins there were two kmds, villeins belonging to the perfon^ 
 of the lord and his heirs, which our law calls wV/r/wj /« ^r^, and •villeins 
 belonging to the land of the lord, and who, in confequence of the lands being 
 aliened, went over to the new acquirer, without any fpecial grant. Thefe 
 were In the Roman law, called, fervi ad/criptitii gleba, that is, flavcs an- 
 nexed to the Ibil, and by our lawyers villeins regardant to a manor ; for ma- 
 nors were, antiently, thus diftributed. After the lord had referved to him- 
 felf a demefne contiguous to his caftle, fufficient for the purpofe of his houfe 
 and Ws cattle, the remainder was generally divided into four parts ; the firft 
 for fettling fuch a number of military tenants as might always more than fuf- 
 fice to do the fervice due to the fuperior lord ; the fecond for focage tenants, 
 to plow the lord's demefne, or, in lieu thereof, to render corn, cattle, of 
 other things as ftipulated by him ; the third for villeins, for the purpofe of 
 
 F f carrying 
 
 f Coke on Littleton, lib, 2. di. Ii. § 17^. 
 
 J Bra(rbon, lib. 4. cap. 28.
 
 1^6 LECTURES on the Lect. 24. 
 
 carrying dung, felling timber, making inclofures, and other fervile offices, 
 ns required by the lord at his pleafure ; and the lafl: fhare of land, was called 
 the wajie, or common, being generally woodland, and coarfe pallure, the wood 
 for the lord's hunting, for fupplying him with timber at his pleafure, and the 
 tenants with refonable ejlovers as they are called, out of the woods, in thofe 
 three articles, hoiifeboie for the fupport of their houfes, Jloughbote, for their 
 utenfils ofhufbandry, znAJirebote, for fewel ; and the paflure for the cattle 
 of all the tenants, military, focage, and villeins in common. This was the 
 ufual method of diftribution, not however into equal parts, for the demefne 
 and wafte were generally much the largeft, nor always into the fame num* 
 ber of parts, for this varied according to the quantity and quality of the 
 land, whether better or worfe, and the miUtary fervicc referved, whether 
 lighter or heavier f. 
 
 From this diftribution we may fee that, in moft manors, there was land 
 which, having been originally fet apart to the ufe of the villeins, was called 
 villein-land, which retained its name, and was liable to the fame name^ 
 and fervile fervices, though it had come into the hands of freemen, who, 
 confequently, though free, might hold lands in villenage, and be obliged to 
 do the fame uncertain fervices as a villein was. Few freemen, however we 
 may fuppofe, would fubmit to fuch uncertain burthens, and therefore when 
 they took fuch lands, the lord generally reduced the fervice to a certainty, 
 and this tenure, becaufe of the low nature of the duties they performed, was 
 ?.lfo, though abufively, czWtAvilleyiage. But fpeaking with propriety, it was 
 focage, the tenant being a freeman, and the fervices certain. Certainty of 
 fervice being, as I have often mentioned, the grand charafteriftic that dif- 
 tinguiflied the focage tenure from the military above it, and from villenage 
 below it. 
 
 I.ET us now fee what kind of property this rank of people had in their 
 perfons, their lands and their chatties ; for from what has been already oh- 
 ferved, fome kind of property they muft have had, or they could not have per- 
 formed the fervices. And the firfl rule is, that, with refpeft to every perfon 
 but his lord alone, a villein was perfeftly a freeman. His life, his liberty, 
 his property, were equally protected by the law, as thofe of any other per- 
 fon. 
 -)■ Rcliq. Sptlm. 251. Barington on the ftututes 270. etfcq- CurJon'shill. of Court -Ba- 
 ron and Court-Leet, p. 573.
 
 Lect. 24. L A W S o F E N G L A N D. 227 
 
 fon. He could acquire, he could alien property, he could be plaintlfl' in all 
 kinds of adions whatfoev^r ; but if defendant he might plead his being a 
 villein. As to his lord, his cafe was very different. His life, indeed, his 
 liberty, his limbs, were under the proteQiion of the king ; and if in thcfe 
 he was injured by his lord, the lord fhould be puniflied at the fuit of the 
 king, as in the cafe of any other fubjeft, but not at his own fuit. How- 
 ever, there was two excepted cafes, where the law (for they moft certainly 
 puniflied the two deteftable crimes of murder and rape) gave a villein acti- 
 ons againfl: the lord, namely an appeal, that is an accufation in his own 
 name of murder, where the lord had killed the villein's anceftor ; and ap- 
 peal of rape, where the lord had raviflied his ncif, for fo a bond woman, or 
 female villein, or nkf, 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 abfurdity, to have afterward trufted them in the 
 power of the heir of that lord, whom they had banged. Neither had a vil- 
 lein, with rcfpe<Si: to his daughter, the fame power of difpofmg her in mar- 
 riage without the lord's confent as he had of his fon. And this diftinftion 
 was founded upon folidreafon, for the fon of a villein, after his marriage, 
 and his ifllie, continued in the fame plight as he was in before, villeins to the 
 lord ; but the daughter, by her marriage, paffed into another family, and 
 her iffue were either to be freemen, if her hufband was free, or villeins to 
 the other lord, if her hufband was fuch ^ fo that th^ lord had a very impor- 
 tant intereft in his feeinjg his villein's daughter married to another villein of 
 his. This previous confent, however, wore out by degrees, and by the 
 cuftora of particular places, a certain fine was all that the lord could claim 
 for the marriage. 
 
 With refpe<£l to the lands the villein held from his lord, and alfo as to 
 his chattels, or perfonal fortune, he was only tenant, or pofleflbr at the will 
 of the lord ; for he the lord might refume the one, or take poifeflion of the 
 other whenever he pleafed ; but in the interim they were the villeins, and he 
 might convert the profits of them to his own ufe, unkfs they were aUo in 
 being and feized j the feizure of them being what made the abfolute pro- 
 perty in the lord. And the cafe was the fame with refpeft to purchafes, or 
 acquifitions of lands or goods j for before the feizure, or fome other public 
 aft equivalent thereto, the villein might alien them as well as the goods he 
 had held before at the will of the lord, and the alienation was good againfl 
 the lord, and the rcafon of this was undeniable. For it would have put a 
 
 F f 2 total
 
 223 LECTURES on the Lect. 24. 
 
 total flop to all commerce both of goods and land, if every buyer was obli- 
 ged, at his peril, to make enquiry, and to take notice whether the feller 
 may not poflibly, in truth, be a villein to fome one of the many lords in the 
 kingdom ; and it would have been highly abfurd to allow the lord to feize 
 the lands, or goods in the hands of the purchafer, when he might feize the 
 purchafe money likewife in the hands of his villein, the feller ; I fay it is the 
 feizure, or fome other public a£l equivalent thereto, that veils the property 
 in the lord ; for, in all cafes, an actual feizure was not poflible. A few in- 
 ftances will clear this up f . 
 
 If the villein purchafes lands in pofleflion in fee fimple, fee tail, life, or 
 years, the lord fhould, if he had a mind to make them his, enter, and claim 
 them ; or if, for fear of danger, he dare not enter, fhould come as nigh to 
 the lands as he dare, and claim them there. And this was fufficient to veil 
 the eftate in the lord, according to the nature of the eRate the villein had 
 in it, and to defeat a future purchafer ; even though the lord fhould fuffer 
 the villein to continue in the poffeffion. For the purchafer is obliged, at 
 his peril, to take notice of all legal a£ts of notoriety, done refpeding the 
 lands he purchafes. But if the villein purchafes land not in poffeffion, as fup- 
 pofe a remainder, or reverfion, where there is a prior eftate for life or lives, 
 or in tail, in another perfon in being j here the lord cannot enter, for that 
 would be dilTeizing, and doing wrong to the immediate tenant of the free- 
 hold ; and if he waited till that eflate was fpent, and the remainder or rever- 
 fion was to come into poffeffion, the villein might have aliened them before, 
 and fo defeated his lord. He fliould, therefore, in fuch cafe, come to the 
 land, and claim the reverfion or remainder, as his villein's purchafe. And 
 this adl prefently is fufficient to vcft them, the reverfion or remainder in him, 
 and to defeat a future purchafer. So if a villein pnrchafcd an advowfon, 
 or prefentation to a living, where the parfon of the church is living, the 
 lord cannot prefent, which is the proper ad to gain poffefrion of the advow- 
 fon. For the church is full of an incumbent, but he fhall come to the church, 
 and claim the advowfon as his villein's purchafe ; and this vefls the advow- 
 fon in him, and v;ill defeat a future alienation by his villein. In the fame 
 way with refpeft to goods ; the lord may either feize them, and retain them 
 in his own hands, or may come to the place where they arc, and openly 
 claim them before the neighbours, and feize a part of them in the name of 
 
 the 
 \ Coke on Liitletcn^ 111, 2. cl.a;i 11,
 
 Lect. 24, L A W S OF E N G L A N D. 229 
 
 the whole goods his villein hath; and this fhall vefl; the property in him, 
 though he leaves the poffeffion Hill in his villein j and if he adds the words 
 or 7iuiy have, it veils the property of goods after acquired, though it is other- 
 wife of lands. 
 
 From this power of the lord as to his villein's property, it appears the 
 villein can bring no aftion relative to property againfl him ; for all fuch ac- 
 tions, being either to recover the thing itfelf, or damages for the wrong done, 
 in both cafes, it would be ufelefs, and improper. For, inafmuch as the lord 
 had right to take, the taking could be no injury, and to give damages even 
 for a perfonal injury would be abfurd and nugatory, fmce the lord might 
 immediately, as foon as recovered rightfully, retake them from his vellein. 
 Therefore Littleton fays, " a villein cannot have an appeal of maim againft 
 " his lord that hath maimed him f." For, as the law then flood, 7naim was 
 only punifhable by fine and imprifonment, at the fuit of the king, or by da- 
 mages, in an appeal of maim, at the fuit of the party. Neither could he 
 have an appeal of robbery againfl him, though that offence, with refpcd; to 
 freemen, was capital ; for the lord having a right to take, could not be 
 guilty of robbery. However, there was one excepted cafe, wherein the 
 lord could not take things out of his own villein's hands, and wherein the 
 villein alfo might maintain an aftion againfl him ; but then, in this cafe, 
 the villein afled not in his own right, but in that of another, in autre droits 
 as our law fays, which was when a villein was made an executor. For here 
 he afted not in his own right, but as reprelentative of his teftator, for the 
 performance of whofe will, and for no other purpofe, he had allowed to him 
 this poffeffion againft his lord, and this right of aftion againfl him. 
 
 Let us now fee how many different ways a man might be a villein, how 
 many ways the villenage, or its effeils, may be fufpended, and how many 
 ways it might be totally deflroyed. 
 
 Now a man m.ight be a villein either by birth, or become fuch by his 
 own aft. With refpe£t to birth, our law confiders only the condition of 
 the father, whether free or villein, contrary to the civil law, where the 
 maxim is partus feqidtur ventran. Our rule feems more agreeable to natu- 
 ral 
 
 f Lib. 2.. 5 19 4t
 
 230 I, E C T U R E S o>r the Lect. 24. 
 
 ral reafon, as the hufband Is niafler of the family, the head of the wife, 
 and fuppofed, at leaft, the principal party in the produftion of the offspring. 
 Yet the Roman law is not therefore to be charged with abfurdity, it pro- 
 ceeding on a principle peculiar to itfelf, namely, that they allowed no ma- 
 trimony but between free perfons ; a cohabitation between two flaves, or 
 between a flave and a free perfon, was called Contubernium, not Nupfia, 
 nor Matrimoniwn ; and to fuch a commerce their law did not give fuch con- 
 tinuance, or entire credit, as to prefume the father to be certain. A free- 
 woman who fo far difgraced herfelf as to cohabit with a flave, they fup- 
 pofed equally guilty M'ith others ; and therefore, as the father was uncer- 
 tain, in favorem libertatis, they prefumed him a freeman. And, on the 
 contrary, though a freeman cohabited with a Have, that law gave no credit 
 to her conftancy, but rather fuppofed the iffue begat by one of her own 
 rank, another flave. But in England, if the father was free or flave, the 
 iffue was fo ; for our law admitting fuch marriages as good ones, upon the 
 maxim, luhom God bath joined let no man fimder, gave them an entire cre- 
 dit. What then fliall we fay was the cafe of bajlards, where the father was 
 entirely unknown, and who were filii nullius. Some old opinion in Eng- 
 land indeed held, that if the mother was a neif, becaufe fhe was certain, the 
 iffue fhould be a villdn; but this doftrine was exploded, and it was fet- 
 tled that, as the child was, by our law, to follow the rank of his father, and 
 who that was, was entirely uncertain, it fliould be urliverfally prefumed in 
 favour of liberty, that the father was a freeman, whatever the mother was. 
 A baftard, therefore, could not be a villein, but by his own aft ; and how 
 Ji man could become fo I fliall next proceed to fliew f . 
 
 There was then but one way for a freeman born to become a villein, I 
 mean in the latter ages, when the praftice of making flaves of captives ta- 
 ken in war went into difufe, and that was by his admiffion and confeffion. 
 For iwlenii nan Jit injuria is a maxim of all laws, and in the antient times of 
 confufion, it might be an advantage, at fome times, to a poor freeman to 
 put himfclf, even in this law manner, under the proteftion of a lord that 
 was both powerful and humane. But fo careful was the Englifli law of li- 
 berty that it did not allow every confeffion or admiffion to conclude againfl 
 a man's liberty, but fuch an d!ie only as could not proceed from miftake, in- 
 advertence, 
 f Littleton, \ 1S7, 188.
 
 Lect. 24. L A W S OF E N G L A N D. 231 
 
 advertence, or conflraint. The confeffion muft be made in a court of re- 
 cord, and entered on record. Then indeed was it conclufive, for it is a 
 maxim of our law, that there is no averring againft a record, that is, char- 
 ging it, or the contents thereof, with falfehood. For if that could be, pro- 
 perty could never receive a final determination, nor a man be certain that 
 the fuit that he had obtained might not be renewed againll him f . 
 
 But the law went farther in its precautions, and would not fuffer any 
 confeffion, even in a court of record, to deftroy liberty. If a man came vo- 
 luntarily into fuch a court, and made an extrajudicial confeffion, that is 
 where there was no fuit depending, and contefted in that court, it could 
 not bind him. The confeffion, to bind, muft be made in fuch a court, and 
 in a fuit litigated there ; fo that there might be no room afterwards for pre- 
 tending furprize, error, conftraint, or terror. Thus, if a ftranger brought 
 any aftion againft a man (for if the lord brings any aflion, except one kind 
 only, againft his villein, he the villein, is thereby manumized, as I fliall ob- 
 ferve hereafter) I fay, if a ftranger, A, brought an aftion againft B, and B, 
 to bar A, of his afliion, pleads on record, as he may, that he is villein to C, 
 this confeffion ftiall bind him, and he fliall be C's villein, though he was in 
 truth a freeman ; yea though A, in that very a£lion, had replied that B 
 was a freeman, and had even proved him fuch : And indeed this was but a 
 juft punifliment for his fraudulent attempt to deprive A of his aflion.. 
 
 Again, if a lord, claiming a man to be his villein, bring the writ called 
 natl'vo habendo, the proper one to prove this fafl:, that the defendant was 
 his villein, and the defendant confeffes himfelf judicially fo to be, he and his 
 ilTue are bound, though he was free before ; or if the defendant, in fuch 
 cafe, pleads he is a freeman, and the lord, to prove him his villein, produ- 
 ces the defendant's uncles, or coufins, who fwear, that they and their an- 
 ceftors, from time immemorial, or from a time antecedent to the feparation 
 of family, have been villeins to that lord and his anceftors, whatever be- 
 comes of the original fuit, they themffelves thenceforwards are the lord's 
 villeins ; and though they were in truth free, it is but a juft puniftiment, as 
 I obferved before, for their foul attempt of reducing their kinfman to flavery^ 
 However, as we muft allow that every man is -fond of his own and his po- 
 
 fterity's 
 t Littleton, § IT4'-
 
 ^32 LECTURES on the Lect. 24. 
 
 fterity's liberty, we mufl; accordingly believe that thefe inftances of freemcns 
 becoming flaves voluntary were very rare, and, that the majority of villeins 
 were fuch as were fo by birth. Before I leave this head, I fliould obferve 
 that, with refpcQ: to the ifliie of jnen becoming villeins by their own con- 
 feflion, the ifl'ue born after the confeflion alone were bond, as being fo born, 
 and that the children born before, retained the liberty they had acquired by 
 their birth. 
 
 ViLLENACE could Hot Only be totally deftroyed by many means, but alfo 
 might be fufpended for a time, and afterwards revive. The fufpenfion arofe 
 from fome fubfequent obligation the villein, or nicf, happened to lie under, 
 which the law confidered, and favoured more than the lord's right in his vil- 
 lein, or nief; therefore, if the king made a villein a knight, fuch a creation, 
 being for the defence of, and to encreafe the military ftrength of the realm, 
 and the perfon obliged to ferve accordingly, his ftate of villenage was fu- 
 fpended, not deftroyed. For, if he was afterwards degraded from his order, 
 he became the lord's villein again, fo if a villein became a monk profeffed, 
 now was he obliged to live entirely in his monaftery, and fpend his time in 
 prayers, and other fpiritual exercifes, duties inconfiftent with his fervice as 
 a villein ; and thoie being performed to God were preferred to the intereft 
 of the lord ; but if fuch monk was deraigned, that is, degraded from his 
 order, and turned out of his monaftery, he became a fecular man again, and 
 the lord's right revived. But if a villein is made a fecular prieft, he not 
 being confined to a monaftery, nor his whole time dedicated to the fervice 
 of God, he is ftill a villein and obliged to attend his lord at all times, when 
 the ftated times or occafions of his new duty do not employ him. So if a 
 nief marries a freeman, the right of the hulTjand in his wife, as founded on 
 The law of God and nature, is preferred to the lord's, though prior, which 
 is founded only on the conftitutions of nations : She, therefore, is priviled- 
 ged, and a free woman during the coverture ; but if the hufband dies, or 
 a divorce happens, then is ihe a nief again. But it may be afked, fhall the 
 lord thus, without any fault of, or confent from him, be, by the aft of 
 others, deprived, even for a time, of liis right in his villein, and the advan- 
 tage thence arifmg ? I anfwcr, though the law, for the public good, fufpend- 
 ed the villenage, it did not leave the lord without redrefs for the wrong 
 done unto him. For, in the cafes of profeflion and marriage, the lord fliall 
 have his adlion againft, and recover the damages he may fuftain, from the 
 
 abbot
 
 Lect. 24- LAWS OF EN GLAND. 23^ 
 
 abbot who had admitted his villein a monk, or the hufband who married 
 his nief ; but againfl; the king who has knighted his villein, he cannot have 
 an aftion, for, according to the principles of the feudal law, to bring an 
 aftion againfl the king is a breach of fealty : it is charging him with in- 
 juftice, and with breaking that mutual bond, whereby he is tied to his vaf- 
 fals as ftriftly as they are tied to him. But he fliall not be without reme- 
 dy. He fliall have his aftion, and recover damages againfl; thofe, who by 
 their aid, advice, counfel, or recommendation prevailed on the king to 
 make his villein a knight. Coke mentions two cafes more, wherein I can- 
 not fay fo fully as he fays, the villenage itje/f\s fufpended, as that the efft'^s 
 thereof are fufpended, as to a certain place ; and both thefe are in honour 
 of the king, one is when a villein efcapes from his lord, and has continued 
 for a year and a day in the demefne of the king, doing fervice to him as 
 his villein. The lord can neither feize him, nor even bring a writ of nat'roo 
 haberido againfl: him while he continues in the royal demefne. The other 
 is where a villein is made a fecular priefl: in the king's chapel. The lord 
 cannot feize him in the prefence of the king -[-. 
 
 We fliall next have a more agreeable fubjeft, and by confidering the ma- 
 ny ways the law of England hath contrived to defliroy villenage, have the 
 pleafure of obferving its natural bent toward the equal liberty of mankind, 
 and how it rejoiced to fliake off the fliakles of fervitude, even in thofe days 
 when it admitted it. 
 
 f Ceke on Littleton, lib. 2. ch. 11. 
 
 LECTURE
 
 'V 
 
 234 LECTURES ON the Lect. 25. 
 
 LECTURE XXV. 
 
 ^le methods invented to dcjlroy villenage — The bent of the law of England 
 towards liberty — Copyhold tenants — Tenants in ancient demefne. 
 
 RELATIVE to villenage, the following are the words of the antient judge 
 Fortefcue, vA\o wrote a treatife on the grounds of the Englifli law, for 
 the inftrudlion of his pupil, the unfortunate fon of the unfortunate king 
 Henry the Sixth. Ab homine, 'b' pro vitio introdufla efi fervitus ; fed libertas 
 a Deo hominis eft indita natura. ^are ipfa ab homine fublata femper redire 
 glfcit, lit facit omne quod libcrtate naturali privatar *. We are now to fee 
 how, and in how many ways, our law favours this natural propenfity to li- 
 berty. And the firft and plaineft is a direfl: enfranchifement, or, as the Ro- 
 mans called it, manumiffion. This, in the ancient times, before writing was 
 common, ufed to be done, as all their important afts, (for the better pre- 
 ferving them in memory) in great form, ^i fervum fuum liberum facit, in 
 ecclefia, vel mercato, vel comitatu, vel hundredo, (that is, the county court or 
 hundred court) coram tefiibus, <b' palamfaciat, et liberas ei vias, if portas con- 
 fcribit apertas, ^ lanceam, & gladium, t'cl qua liberorum arma in vianibus ei 
 ponat f • But after the ufe of writing became common, the method was by 
 the lord's deed (mentioning him to be his villein, and exprefsly infranchifmg 
 him) fealed by the lord's feal, and attefled by proper witneffes, as other 
 deeds between freemen Ihould be |. 
 
 Before I go farther, I fhould obferve the favour of the Englilh laws to 
 liberty in that, by it all manumiffion, of what kind foever, was abfolute and 
 irrevocable. Once a freeman, and ever fo ; whereas by the civil law, a freed- 
 man was bound to many duties towards his patron. A relation between them 
 flill fubfifled, and if he was guilty of ingratitude, that is, of any of the 
 many offences their law marked as fuch, he was again to be reduced to 
 flavery. 
 
 But 
 * Cap. 42. :|: Formulare Anglicanum, tit. Grants and 
 
 f Wilkins, Leg. Anglofax. Manumiflions of Villeins.
 
 Lect. 25. L A W S OF E N G L A N D. 235 
 
 But befides this fpecies of exprefs enfranchifement, there were many 
 implied ones. Firft, by the aft of the lord alone, and others by conftruc- 
 tion of law, upon the aft either of lord or villein. By the aft of the lord 
 alone, namely, if he had entered into any folemn certain contraft with his 
 villein, giving him thereby either a permanent right of property, or a power 
 to bring an aftion againft his lord. In fuch cafes he was inflantly manu- 
 mized, without exprefs words ; for, otherwife, he could not have the be- 
 nefit of the gift intended, and the lord's aft, in fuch cafes, fhould be con- 
 ftrued moll llrongly againft himfelf. As if the lord gives land to his villein 
 and his heirs, or to him and the heirs of his body, or to him for life ; im- 
 mediately on the giving livery and feizin, which was, as 1 have often ob- 
 ferved, what compleated an eftate of freehold, and made it irrevocable, the 
 villein became free. Otherwife he could not enjoy the benefit of the grant, 
 or proteft it againft his lord. 
 
 The fame was the cafe if the lord gave him any certain property, as a 
 bond for payment of a fum of money, or a yearly annuity, or a leafe of 
 lands for years. The villein could not fecurely enjoy the benefit of the 
 gift, without being able to bring an aftion againft his lord, and confequent- 
 ly being free againft him. Yea, though the annuity or leafe of land was 
 but for years, the manumiflion was abfolute for ever, and not fufpended 
 for the years only ; which was different from, the cafes I put in my laft lee 
 ture, of villenage being fufpended by the aft, not of the lord, but anothei 
 perfon; but here where the lord himfelf, by his own aft, fet him free, 
 though but for a time, he was free for ever. But if the lord gave his vilr 
 lein lands to hold at will ; this being of the fame nature with the proper 
 holdings of villeins, and the lord having referved in his own breaft a power 
 of oufting whenever he pleafed, the villein gaining thereby no certain pro- 
 perty, he continued in his former fituatiom 
 
 Secondly, a man may be enfranchifed without exprefs words, by con- 
 ftruftion of law, operating on the aft either of the lord or villein. If a lord 
 had a mind to difpolTefs his villein of lands, or of goods, he had a right to 
 enter on the lands, or feize the goods, without ceremony ; but if, waving 
 this right, he brought an aftion againft him. for them, or if he brought not 
 aay aftion perfonal againft him, but the one of Nativo Habendo, the villein. 
 
 G g^ 2 was
 
 236 L E C T U R E S ON the Lect. 25. 
 
 was enfranchifed, whether the lord recovered or not, or whether he profe- 
 cuted the aftion or not. For when he omitted the eafy remedy the law 
 appointed, and brought his villein into court to defend his right, he admit- 
 ted him to be a perfon that could ftand in judgment againfl him, and liti- 
 gate with him ; that is, to be a freeman. But it muft be obfcrved this en- 
 francliifement did not commence immediately from the taking out the writ, 
 which was the commencement of the aftion, but from tlie appearance of 
 both plaintiff and defendant, and this for the benefit of the lord ; for otiier- 
 wife, as Coke obferves, a ftranger, by collufion with a villein, might take 
 out an aftion againft him in his lord's name. To which I may add, that 
 the lord might have intended his aftion againfl: a freeman of the fame name 
 with the villein, and the flieriff might have fummoned the villein by miftake. 
 In this cafe it was hard that the lord fhould fuffer. He therefore might, 
 when he faw the villein ready to appear, nonfuit himfelf, that is, decline 
 appearing ; and then the villein could not appear, and therefore was not 
 enfranchifed. But if he went on, and fuffered his villein to appear, and 
 confequently enabled him to plead againfl: him, he muft have abided by the 
 confequences of his own folly, and his nonfuiting himfelf afterwards could 
 in no fort avail him f. 
 
 A VILLEIN might likewife be manumitted by his lord's bringing a criminal 
 action againft him, though this was no admifhon of permanent property in 
 him, or of his capacity of ftanding in law againft him as a freeman ; as if 
 the lord brought an appeal of felony, as of murder, or robbery, againft 
 him. If he was acquitted he might be enfranchifed, becaufe he might be 
 entitled to recover damages for the malicious profecution, and the danger 
 his life had been in ; and damages he could not recover without being a 
 freeman. I fay might be enfranchifed, becaufe he might recover damages. 
 For in this cafe a diftinftion is to be taken, whether the villein was, before 
 the appeal brought, indided at the fuit of the king for the fame offence, or 
 was not. If he was not, the acquittal fliewed the profecution to be mali- 
 cious, and the villein was entitled to recover damages, and fb to be free, i.ut 
 if he had been indifted, there were no grounds to fuppofe the appeal brought 
 malicioufly. The finding the indidlment by the grand jury was a prefump- 
 tion of his guilt. The lord had a rational ground for bringing bis appeal, 
 
 and 
 f Hickef. difTcrt. epift. p. 15. ct feq. Brady's hift. p. 82. Fitzherbert's natura 
 
 breviu.u, p. 187, 189, 190. Cowcll's interpreter, voc. copiehould. Coke on Littleton, 
 
 lib. 2. chap. It.
 
 Lect. 25. LAWS OF ENGLAND. 237 
 
 and he had a right to bring it for the punifliment of his villein, If guilty. 
 Otherwife he could not have him hanged, for the indiftment at the king's 
 fuit might not be profecuted, or the king might pardon. In fuch cafe, 
 therefore, there being no malice prefumed, the law gave no damages, and 
 confequently no enfranchifement. But the lord's bringing the writ called 
 Nativo habendo againfl: his villein, namely, claiming a man to be his, as fuch, 
 was no enfranchifement, for that would defeat the ends of the fuit ; and the 
 law allowed the lord a power to feize his villein without further ceremony, 
 it did not precifely compel him to that method only, for his villein might 
 be at too remote a diftance, or under the proteftion of perfons too power- 
 ful. But if, after appearance, the lord fuffered himfelf to be nonfuited, in 
 this aftion, it was an enfranchifement. 
 
 The law, likewife, enfranchifed in fome cafes on the aft of the villein 
 himfelf, as if the lord had been found guilty in an appeal of murder, brought 
 by his villein, or of rape by his nief ; but thefe I mentioned in the lad lee- 
 ture, and the reafon is apparent. 
 
 By all thefe various ways the number of villeins infenfibly diminiflied, 
 and the number of freemen continued to encreafe in every reign ; but what 
 ^ave the finifliing ftroke to fervitude were the confufions occafioned by the 
 two contending houfes of York and Lancafter ; when the whole kingdom 
 was divided, and every lord obliged, even for his own fecurity, to take part 
 with one fide or the other ; and when once engaged, neceffitated to fupport 
 his party with his whole force. Villeins were, therefore, emancipated in 
 prodigious numbers, in order to their becoming foldiers. Many of fuch, 
 alfo, who had not been formerly emancipated, in thofe times of diftraftion, 
 fled for felf-prefervation to London, and other cities, where, being abfent 
 from their lords, they were looked upon as free ; and where they generally 
 continued, even after thefe troubles had ceafed, unknown to the heirs of 
 the antient lords ; and in confequence, for want of proof of their fervitude 
 within fifty years laft paft, (which was the time of limitation for this a£tion) 
 mofl of them and their pofterity became free. When things afterwards 
 became compofed, under Henry the Seventh, many of thefe perfons were 
 by the heirs of their former lords reclaimed, and recovered as villeins, though, 
 undoubtedly, the far greater part efcaped undifcovered. But even in thofe 
 
 adions
 
 ajS LECTURES on the Lect. 25. 
 
 aftions that were brought, both judges and juries were very favourable to 
 the perfons clahned ; the juries out of favour to liberty, and the judges, I 
 prefume, following the policy of that reign, one of the great objects of which 
 was the depreflion of the great lords ; to which nothing could more con- 
 tribute than the leffening the number of the perfons who were held in fuch 
 ftrift dcpendance by them, and the profits of whofe induftry they had right 
 to feize, to encreafe their wealth and their power f . 
 
 Another thing which had, long before that period, leflened their num- 
 bers, was the rife of copyhold tenants. Thefe are perfons who are faid to 
 hold lands at u/JII, but according to the cujlom of a. manor ^ and thofe arofe from 
 the villenage tenants, as I conceive, by the following means. When a fuc- 
 ceffion of mild and humane lords had neglefted, for a long time, to feize 
 their villeins goods, or to exa£t villein fervice, fo that no memory remain- 
 ed of their having made ufe of fuch a praclice, they came to be confidered in 
 another light, and became exempted from that feizure by prefcription. 
 For the lord claiming a villein in a natlvo habcndo, mufl: plead, and prove, 
 that he, or his anceflors, had exacted fuch fervices, from the perfon claimed, 
 or his anceflors, otherwife he failed. Therefore, in the cafe I have menti- 
 oned, though a future lord had an inclination to depart from the praftice of 
 his predeceffors, and revive his rights, he covdd not recover them for want 
 of proof; and thefe perfons fo long indulged, became freemen. However 
 their-lands, (they being only tenants at will) might ftill be refumed, until', 
 at lafl:, they got, likewife, by the fame kind of prefcription, a permanent 
 right in them alfo, in the way I now fhall relate. 
 
 If a lord had given his villein any certain eftate, it was, as I before ob- 
 ferved, an abfolute manumiffion for ever. But fome lords, either in re- 
 ward for fervices done, or out of bounty, gave many of thofe underling te- 
 nants, if not an abfolute right to their holdings, at lead, a fair claim and 
 title to a permanent eftate, which, in honour, the lord or his heirs could 
 not defeat, and yet kept them in a particular kind of dependance, between 
 freedom and abfolute villenage. But the queflion was how this was to be 
 done ; for if the lord had given him a deed, to affure him the lands, and fo 
 entered into a contra£l with him, he was entirely emancipated. The way 
 was then for the lord to enter into the roll of his court, wherein he kept the 
 
 lift 
 \ Carte, hift. of England, vol. :. p. 84/I. 845. 846.
 
 Lect. 25. LAWS OF ENGLAND. 239 
 
 lift of his tenants, that he had given fuch an one an eftate at will, to hold to 
 Iiim and his heirs, or to him and the heirs of his body, or to him for life or 
 years ; and thefe direftions being conftantly complied with, grew by length 
 of time into eftabliflied rights, and they came to be called tenants at will, ac- 
 cording to the ciijlom of the manor. 
 
 They were ftill called tenants at will, becaufe, they had been originally 
 fuch, for they were never confidered as, nor called, freeholders, until very 
 lately, in one inftance, they were admitted to vote for members of parlia- 
 ment, and their votes allowed by the houfe of commons. This decifion 
 was greatly exclaimed againft by the tories, who were foiled by this recep- 
 tion, as proceeding from a fpirit of party, and as being contrary to the rules 
 of the antient law, as it certainly was. But, on the other hand, it was agree- 
 able to common reafon and juftice, and to the fpirit and principles alfo, 
 though not to the pradice of the antient conftitution. For when Edward 
 the Firft lays down this maxim, qua ad omnes pertinent ab omnibus debcni 
 iraBari, what reafon can be alTigned why a copyholder for life, who has a 
 valuable, and as certain eftate, in faft, as a freeholder, though called by a 
 different name, and who contributes equally to the taxes and expences of 
 the government, fliould not have equal privileges, and be equally intitled to 
 be reprefented. They are called copyholders, from the evidence they had of 
 their titles. The evidence that freemen had of their eftates in land was ei- 
 ther a deed, if the grant was by deed, or if it was without deed, the livery 
 andfeizen, attefted by the witneffes prefent ; but the copyholder had no 
 deed, neither was livery and feizen given to him, as he was originally but a 
 tenant at will. His evidence, therefore, was a copy of the rule entered in 
 the lord's court roll, which was his title, and from hence was he named 
 copyholder |. 
 
 The peculiarities attending this kind of tenure, that diftinguiftied it from 
 
 other tenures, arofe from their being confidered as tenants at will. Hence 
 
 arofe that antient opinion, that if a lord oufted his copyholder, he could 
 
 have no remedy by aftion in the king's court againft him : But had this 
 
 been the law that fmce prevailed, all copyholders had been long fmce de- 
 
 ftroyed. Therefore, in Edward the Fourth's reign, it came to be fettled, 
 
 that 
 ■\ Fitzherbert's natura brevium, p. 28. Kitchen on Courts.
 
 24© L E C T U R E S ON the Lect. 25. 
 
 that If the lord turned out his copyholder, he might well maintain an aftion 
 of ejeftment againft him, as a tenant for years could, or elfe they might fue 
 the lord in equity to be reftored. 
 
 From the fame principle of its having been an eftate at will, arofe the 
 right of the lord to a fine, upon the change either of lord or tenant ; upon 
 the change of the lord by the aft of God only, that is by his death ; upon 
 the change of the tenant, either by the aft of God, by his death ; or by his 
 own aft, by his alienation. But the tenant paid no fine on the lord's aliena- 
 tion ; for if he was fo to do, he might be ruined by being frequently char- 
 ged. Thefe fines were an acknowledgment of the lord's ancient right of 
 removing them, and were, in fome places, by cuflom, fixed at a certain rate; 
 in others, they were uncertain, and fettled by the lord : However, he was 
 not allowed to exaft an unreafonable one, for if fo, the tenancy would have 
 been abfolutely in his power, and of the reafonablenefs of the fine the judges 
 cf the king's courts were to determine. 
 
 I MENTIONED the alienation of copyholders, but to alien direftly they 
 could not, being efleemed but tenants at will, yet what they cannot direft- 
 ly do, they may indireftly, by obferving certain forms ; that is, by furren- 
 dering to the lord, to the ufe of fuch a perfon, and then the lord is, in 
 equity, compellable to admit into the copyhold the perfon for whofe ufe it 
 is furrendered. Thefe furrenders are either made in the manor court, or 
 out of it. If made in court, it is immediately entered in the court roll ; if 
 out of court, it fliould be prefented at the next court day, and then entered. 
 The furrender out of court mufl be made to the lord himfelf, or to the 
 fteward of the manor, or it is not good j except in fome particular manors 
 by cuftom, where it may be furrendered to the lord's bailiff, or to two or 
 more of the copyholders, who are to prefent it at court. When a furrender 
 was made, the lord was only an inflrument to hand it over, and therefore 
 mufl admit that grantee into fuch eftate, and no other, whom the grantor 
 had appointed in his furrender. In many cafes a court of equity will fupply 
 the want of a furrender. 
 
 Copyholders could not devife tlieir lands by will for two rcafons. Firft, 
 that, in general, lands were not dcvifable till the reign of Henry the Eighth ; 
 
 and
 
 Lect. 25. L A W S OF E N G L A N D. 241 
 
 and for another reafon peculiar to themfclves, that, being called tenants at 
 will, they were not looked upon to have a fure and permanent eftate. But 
 when, after the invention of vfes, a way was found out to evade the general 
 law, and to make lands go by will, by the owner granting his eftate to ano- 
 ther for the ufe of hi mf elf, the grantor, for life, and after, for the ufe of 
 fuch perfons as he, the grantor, fliould name in his will ; and when courts 
 of equity were found difpofed to oblige the grantee to perform the truft he 
 had undertaken, in imitation hereof, copyhold eftates began to be furren- 
 dered to the lord to the ufe of the copyholder's laft will ; and then the lord, 
 after his death, was obliged to admit fuch perfon as he appointed in fuch his 
 will, and in the mean time, the copyholder enjoyed during his life, for the 
 furrender only did not transfer the eftate, except it was to the lord's own ufe. 
 If to any other ufe, the lord was but an inftrumcnt, and the land remained in 
 the furrenderer until the admittance of the new tenant, which, in the cafe 
 I have put, could not be till the old one was dead. 
 
 Another peculiarity arifing from the fame fource, there being tenancies 
 at will, was, that neither the hufband could be tenant by the courtefy, nor 
 the wife tenant in dower. The reafon was, that every eftate at will determi- 
 ned by the death of the tenant, neither could an eftate tail be created of a co- 
 pyhold j for the ftatutes De Dotiis extended not to them, and, therefore, if a 
 gift was made in fuch words as would, at this day, create fuch an eftate, it 
 would be in the nature o{ 2. fee fimple conditional at common law. However, 
 by fpecial cuftom in particular manors, copyhold might be entailed; might 
 go to the tenant by the courtefy, and the wife might be endowed thereout f . 
 
 Thus much I have thought requifite to ftiew the general nature of this 
 tenure, and of its origin. More would be needlefs to fay here, as there 
 ate no fuch in this kingdom, though the law relating to them makes a con- 
 fiderable part of the law of England. For the fame reafon I fliall be very 
 fhort as to the tenants in antient demefne. 
 
 Lands in antient demefne are the eftates that the king had, as king, to 
 fupport his family, and other expences, and were antiently unalienable. 
 They were the lands of Edward the Confeflbr, and the Conqueror. But 
 as the king could not make profit of them hunfeif, they were given to te- 
 
 H h nants 
 
 f Coke on Littleton, lib. i. chap. 8.
 
 242 L E C T U R E S ON the Lect. 25. 
 
 nants of two kinds, freeholders and copyholders. The law with refpeft to 
 them {lands as it does with other freeholders and copyholders, except that 
 they have fome peculiar privileges. The general reafon of thefe privileges 
 was, that the freeholders were originally focage, and the copyholders the 
 villenage tenants of the king, and had thefe privileges granted to them be- 
 caufe they were fuppofed conflantly employed on the king's land, to furnifh 
 him with corn, cattle, and other neceffaries ; and their privileges have 
 continued, though the fer vices have been changed into money, and the 
 eftates alnioft all alienated from the crown. Thefe are principally as follow: 
 They are exempted from all burthens and taxes laid on by parliament, un- 
 lefs they are fpecially named. They are not to be taxed for the wages of 
 the knights of the fliire. They are not to pay toll, or paffage money for goods 
 bought and fold in markets, for all things concerning hufbandry and fufte- 
 nance. They are not to be impleaded in any court, only in their manor 
 court, nor to be fummoned as jurymen, with fome other privileges of the 
 like nature, not neceilary to be here infilled on |. 
 
 f Maclox, Ilift. of the Excheq. vol. I. p. 295. Cowell's Interpreter, voc. Demaine» 
 Spel. Gloff. voc. Domiaiicuni. 
 
 LECTURE
 
 Lect. 26. LAWS OF EN GLAND. 243 
 
 LECTURE XXVL 
 
 The co7idition andjiatc of laws in Englatid during the Saxc?i times — The miHtary 
 policy of the Saxons iiot fo pcifcfl as that of the Franks — Their Kings ele^ive — 
 The divifion of the kingdom intofjircs, hundreds, and tithings — The admini- 
 Jlration of jiiflicc — The county-court — The hundred court and court-lcct — ■ 
 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 compofed, 
 and of their diftinft rights and privileges, it will next be proper, agreeably 
 to what I firft propofed, to obferve, through the feveral reigns, the progrefs 
 of Englifli law, and by what fteps and gradations it is come to differ fo 
 widely from what it was in its original ; not, indeed, to go minutely through 
 all the alterations made, for that would be a tafk. that could not be confin- 
 ed within the compafs of thefe leftures, but to point out the great and con- 
 fiderable changes, which had extenfive influences, and contributed to give 
 the law a new face. But, before I enter upon this, it will not be amifs to 
 look back a little, and to fay fomething with refpecl to the law in the Saxon 
 times, fmce much of that remained after the conqueft, and even maKes a 
 part of our law at this day. «. 
 
 The Saxons, being a German nation, brought into England the cuftoms ' 
 of that country, cufloms very fimilar to, and, in many inftances, exactly 
 the fame with thofe ufed abroad on the continent. However, with refped; 
 to their military policy, it was not fo flrift and perfeft as that of the Franks, 
 occafioned, as I fuppofe, by their greater fecurity from danger. For they 
 had no reafon to dread the Btitons, having extirpated many, and expelled 
 the reft, except a few whom they kept in the meaneft offices, in the nature 
 of villeins. Neither was the authority of their kings fo great as abroad, for 
 
 H h 2 the
 
 244 
 
 LECTURES ON the Lect. 26. 
 
 the founders of the kingdoms of the heptarchy were not kings in Germany, 
 as the kings of the Franks and other nations had been, but only leaders 
 of adventurers, who voluntarily aflbciated themfelves, and therefore could 
 have no authority but what their followers confirmed upon them ; and 
 that it was not very confiderable, appears from this, that every thing of 
 great moment was tranfafted in their general affemblies or ivittenagemots \. 
 
 These kings were eleflive, though generally thofe of the fame family, 
 (for to this alfa there were fomc exceptions) were elecled. OfFa fays of him- 
 felf to his people, Elecliis ad libertatis njeflm tttitionemy nun me'is meritis, fed 
 fold itbcralitate vejira. From the death of a former king to the eleftion of 
 a new one there vras an interregnum, and even during thefe interregnums 
 they made laws. For when the excellent king Brithric had been poifoned 
 by his queen, they enabled a law, that if any future king fliould give his 
 wife the title of queen, he fliould forfeit his dignity, and his fubjeds fhould 
 be free from their oath of allegiance ; and then they proceeded to eleft Eg- 
 bert, Brithric's tenth coufm. And, in purfuance of this law, Ethelbald, 
 depofed his father, for giving that title to Judith of France. Alfred, in- 
 deed, was not chofen upon a vacancy, but claiming a part of the kingdom 
 before the affembly at Swinburn, by virtue of an agreement with his bro- 
 ther Ethelred, that affembly annulled the agreement, as deftrudlive to the 
 nation, thea threatned by the Danes, but enafted that Alfred fliould fuc- 
 ceed to the whole, though Ethelred, and alfo their elder brother Ethelbert 
 left fons \. 
 
 I KNOW it Is generally faid that thefe three brothers fucceeded by their 
 father's will, and fo the Conqueror pretended a will of Edward the Confcf- 
 for in his favour, but what had Ethelwulf to leave, but the little kingdom 
 of Kent, which was afligned to him upon his depofition. Befides his will 
 was, that they fhould fucceed in cafe of iffue failing, and they fucceeded 
 though there were fons ; and Alfred, who fhould know his own title befl, 
 acknowledged he had received his crown from the bounty of the princes, 
 ciders, and people. Here I fliould mention, that the kings had not a right 
 to marry themfelves without the confent of their people, lor of Alfred it is 
 
 obferved, 
 
 f Bacon's dlfcourfc on tlie Laws and Government of England, part i. chap. i6. 
 
 X Tyrrel's general Introduction to his Hill, of England. Hume, append, i.
 
 Lect. 26. L A WS OF E N G L AN D. 245 
 
 obferved, that he did fo, contra morem &Jlatuta, not only againft cuftom, 
 but againft pofitive laws. To go through no more particulars ; it appears 
 from hiftory, that all the kings of the Saxon race were elefted ; fo were 
 the Danes ; fo was the laft Harold, though not of royal blood, and though 
 Edgar Atheling, who was the lawful heir, had the kingdom been heredi- 
 tary, was living ; fo was the Conqueror, and that was the jufl title he had- 
 But enough of this point. 
 
 To fee how juftice was adminillered among the Saxons ; the kingdom, for 
 this purpofe was divided into JJjires, thofe into hundreds, or, as we call them 
 in this kingdom (Ireland,) baronies, and thefe into tithhigs, fo called becaufe 
 they originally confided of ten contiguous families, over wKich a tilbingman 
 prefided. Every man, in thefe tithings, was bound to keep the peace, not 
 only for himfelf, but for the others of his tithing ; and if one of them 
 committed a crime, the reft were obliged to fearch him out, and produce 
 him for trial ; otherwife the tithing was grievoufly amerced. This divi- 
 fion of the kingdom into counUcs, and their fubdivifions, is generally af- 
 cribed to king Alfred. That the divifion of hundreds into tithings was 
 his is undoubted ; and it is probable the divifion of counties into hundreds 
 was his alfo j that the people, beggared by the Danifh incurfions, might 
 have juftice rendered to them nearer their own homes, without the expence, 
 the fatigue, and even danger of travelling to the county town. But as to 
 counties, they certainly were more antient. Juflice could not be admini- 
 ftered, according to the principles of the German policy, in a country fo 
 large as one of the kingdoms of the heptarchy, without its being fub- 
 divided ; and accordingly, during thofe times, before the union of thefe 
 kingdoms into one, we find, in the old laws, the mention of Poires and 
 periffs f . 
 
 But though Alfred was not the firft maker of the divifions, we are not 
 therefore to charge the writers that give that account with falfity. Even be- 
 fore his reign the Danes had made fettlements in England, in the northern 
 parts. In the very beginning of it they reduced him to content himfelf with 
 the countries fouth of the Briftol channel and, Thames, with the addition of 
 
 Effex, 
 t Spelm. Glofr. voc. Comitatus, hundredus, et trithinga. Tyrrel's introduclion to his 
 Hift. Carte's Hift. vol. i. p. 310. Spelm. life of Allred. Gurdoii's Hilt, of Court 
 ^aron and Court Leet. 
 
 a
 
 246 L E C T U R E S ON the Lect. 26. 
 
 EiTex, which, hi their ravages, they had thrown into the greatefl: confufion. 
 The reft of England was left as their prey, in which, after ravaging it fe- 
 veral years, they fixed themfeh'es, until, at length this great prince, to 
 whom no king, I may fay, no man, whom hiftory has recorded, was fupe- 
 rior, either for piety to God, for a drift love of juftice, for a fatherly affec- 
 tion to his people, for heroifm in battle, for fortitude of mind (that never 
 defpaired in the loweft ftate of his affairs, when all feemed dcfperate) or for 
 a wifdom capable of dire£ting upon every occafion. the proper meafures to 
 be taken by the flate over which he prefided ; I fay, until this great prince 
 trampled his enemies under his feet, and obliged the Danes, who had (9 
 long looked upon him with contempt to fue to become his fubjefts, and to 
 receive the lands they had ufurped, from him as their king and lord. For 
 to expel them was impollible, and if it had been otherwife, and the matter 
 had been effefted, they had committed fuch maffacres in the lands they pof- 
 feffed, that the country would have been defolate. Then, indeed, this 
 king fettled the hmits of fhires or counties, through all England ; in Effex, 
 and the counties fouth of die Thames, I prefume, according to the old li- 
 mits. For if we allow for one county being more woody, or having more 
 unprofitable land than another, they appear to bear no great difproportioa 
 to each other. But, as to the lands the Danes held, it was different, for 
 here, to win his new fubjefts, he was to accommodate the divifion fome- 
 what to fhat which they had made among .themfelves, under their feveral 
 leaders. Hence, in that part of England which was then Danilh, we find 
 the greatefl difference between the fize and value of the lands in the feveral 
 counties, fome exceffively large, and others as exceedingly fmall ; which, 
 I think, is no way to be accounted for, in fo wife a prince, but that the 
 feveral tribes of thefe Danes were to be kept in their old bounds, and fepa- 
 rate from each other. In fuch a fucceffion of ages, undoubtedly, thcfe 
 boundaries have received alterations, but they could not have received fuch 
 as would account for the difproportion ; and in truth we find the Danes 
 had divided the land before he conquered them. 
 
 In thofe counties and hundreds juflice was adminiftcred to the inhabitants 
 near their homes, without the delays and expences of reforting to AVcftmin- 
 Ilf r. The court held by the fheriff, affiilcd by the bifhop, was, in its ori- 
 gin, as we find in the red book of the exchequer, and had cognizance of 
 
 four
 
 Lect. 26. LAWS OF ENGLAND, . 247 
 
 four feveral matters that were handled, in this order. Firft, all offences againfl 
 religion and the ecclcfiaftical jurifdiftion were tried. The bifhop, or his 
 commiffary, here was judge, and the flieriff was his afliftant ; and if the delin- 
 quent difregarded the cenfures of the church, he enforced the fentence by 
 imprifonment. Next were tried temporal offences, that concerned the pub- 
 lick, as felonies, breach of the peace, nuifances, and many others. Here 
 the flieriff was judge, and the bifliop was affiffant, to enforce the fentence 
 with ecclefiaflical cenfures. Thirdly, were tried civil aQions, as titles to 
 lands, and fuit upon debt or contracts. Here the iheriftprefuled, but the 
 fuitors of the court, as they were called, that is, the freeholders, were the 
 judges, or as we now fay, they^ry, and the flieriff executed the judgment, 
 aflifted by the bifliop, if need were. Laftly there was held an inquejl, to fee 
 that every perfon above twelve years of age who was in fome tything, had 
 taken the oath of allegiance, and found fecurity to the king for his good 
 demeanor. This was called the vieiv of frank pledge, that is, the viewing 
 that every perfon had nine freemen pledges or fecurity for his loyalty ta 
 the king, and his peaceable behaviour to his fellow fubjefts f .. 
 
 But fince the time of king Edgar, at Icaft, this court has been divided 
 into two, the criminal matters, both ccclefiafliical and civil, and alfo the 
 view of frank pledge was difpatched in one court called the tourn, that is, 
 the circuit, from the bifliop and flieriffs going circuit through the county ; 
 and the civil bufinefs was difpatched in another, called, the cmtnty court. 
 The law was, that the flieriff and bifliop fliould twice i*n the year go their 
 circuit or tourn, namely, in the month following Eaflier, and the month 
 following Michaelmas ; and fliould hold their court in every hundred of the 
 county ; but the view of frank pledge was to be taken only once a year, 
 namely the tourn after Eafter. But for the more ready difpatching civil 
 caufes, the county court was held once a month, that is in twenty-eight 
 days, reckoning a month by four weeks and not by the calendar \. 
 
 Out of thefe courts were others afterwards derived, for the more eafy 
 and expeditious way of diftributing juflice. Out of the flieriff's tourn, were 
 two, the hu7idred court,, and the court kct, and they had cognizance of the 
 
 fame 
 f Gurdon's hid. of Court Baron acd Court Leet. Cowel's Interpreter, voc. Frank- 
 pledge. Bacon's Difcourfe on the Laws aiid- Govemment of England, part. i. cliap, 2.J. 
 X Bacon, chap. 14.
 
 248 L E C T U R E S ON the Lect. 26. 
 
 fame matters the tourn had, and were eredted independent of the flieriff 's 
 tourn, for the mutual cafe of him and the inhabitants, where, in large coun- 
 ties, the hundred lay too remote to be conveniently vifited in the circuit. 
 But many inconveniencies arifmg from the flieriff's power not running in 
 thefe feparated jurifdiftions, the hundred court, which was held by the 
 fteward of the hundred, were all, except a very few, that had been given 
 in fee to fome great men, reunited to the tourn, and fo they vanilhed in 
 £dward the Third's reign f. 
 
 The leet was of the fame nature as the hundred court, derived out of 
 the tourn, and made a feparate jurifdidion; but it was held in the name of 
 a fubjedl:, by the lord of the manor's fleward, and to the lord belonged the 
 profits of the courts leet. They were, however, though held by a fubjedt, 
 in his own name, efteemed as the king's courts, and allowed to be courts of 
 record, as well as the tourn from which they fprung. 
 
 Out of the county court, which was for private caufes, was derived the 
 court baron. It was held from three weeks to three weeks, as all courts 
 were in the early Saxon times. It was when a manor was exempted from 
 the flieriff's county court, and the jurifdiction granted to the lord, to hold 
 plea of civil fuits. In this the fuitors were the judges, as in the county 
 court I . 
 
 In thefe feveral Courts was juflice adminiflered in the Saxon times, and 
 even for a confiderable time after the conqueft, for the mofl; part. But foon 
 after that time inconveniencies were found, partly from the partiality of the 
 judges in thefe inferior courts, and partly, from their ignorance in law. 
 Then began the higher court to draw to themfelves the jurifdidtion of thefe 
 matters, and the county courts to be confined to pleas of fuch matters as ex- 
 ceeded forty fliillings in value. The pleas of lands were likcwife brought 
 in there, and difcuffed either in the higher courts, or before juflices of nifi 
 ■prius. The appointment oiju/liccs c?-rant, and j'lt/iices ofajfixe ; oi juflices of 
 goal delivery, and of the quarter fejfions, together with the many powers 
 granted by divers adts of parliament to one or more juflices of the peace, 
 
 have, 
 
 \ Bacon's difcourfe on the Laws and Govsrnment of England, cliap. 25, 26. 
 X Dugdak's Origincs Juridiciales, chap. 9, 10, II, 12, 13, 14, 15.
 
 Lect. 26. L A W S OF E N G L AN D. 249 
 
 have, in a fucceffion of ages, continually funk the bufinefs of thefe courts, 
 and have left them but a fhadow of what they were. 
 
 But although mofl of the bufinefs in the old times was in thefe inferior 
 courts, there was one fuperior, that even in the Saxon times, had a concur- 
 rent jurifdidion with them, the curia regis. The curia regis fat 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 queftions belonging 
 to the king's treafurc, when they fat in his treafury, called the exchequer^ 
 from the chequered cloth wherewith the table was covered. The judges 
 were, the judiciary, the chancellor, and the treafurer, together with fuch 
 great lords as were attendant on the court ; fo that, in parliament time, aJl 
 the great lords fat there ; and this was the foundation of the lords judica- 
 ture in parliament. The jufticiary prefided in all cafes that did not concern 
 the revenues, and indeed his power was fo exorbitant by the antient law 
 being regent of the kingdom in the king's abfence, that fometime after the 
 conqueft, the kings thought proper to abolifh the office, and divide even his. 
 judicial power into feveral hands |. 
 
 The chancellor was one of the mofl learned ecclefiaftics. It fell, there- 
 fore, naturally to his province to make out all writs, and procefles, and let- 
 ters patent, and confequently the great feal of the kingdom was lodged with 
 him. He attended, likewife, fomething in the nature of an equity judo-e ; 
 not that there was any fuch thing as a diflinft court of equity, but, as a learn- 
 ed and pious man, to direft with his advice whenever the cafe happened, 
 where confcience dictated one way and the ftrift law another. The treafurer 
 was prefent alfo to talce care that the king had his fines from offenders, 
 which he was afterwards to colleft into the exchequer where he prefided, 
 where alfo he fet leafes of the king's lands for years, colleded his rents and 
 debts, and took care of his efcheats and forfeitures. The proper jurifdiftion 
 of this court was where the king was concerned in interefl as to his revenue- 
 where one of the great peers was to be tried for heinous offences, or even 
 where two perfons had been guilty of crimes that feemed to have a general 
 influence, and tended to general confufion. For unlefs the crime of a low- 
 er perfon was very heinous indeed, he was tried in the country, in the tourn. 
 
 I i Civil 
 
 f Madox, Hifl. of Exchequer, chap. r.
 
 250 L E C T U R E S ON the Lect. 26. 
 
 Cn-iL caufes likewlfe between the great lords fell under their infpeflion, 
 Taut thofe between meaner perfons they feldoin meddled with, unlefs they had 
 for difficulty been referred or adjourned to them from the courts below, and 
 if they, in that cafe, found the caufe of great difHculty, they adjourned it to 
 the curia regis in full parliament. However, as they had the power of judg- 
 ing civil caufes between all perfons in the firfl: infiance, if they thought the 
 caufe of fuch a nature, that juftice was not likely to be done in the country, 
 they had many applications from fuch as had thofe apprehenfions ; and as this 
 court had a difcretionary ppv/er, either of fending them back to the county- 
 court, or of admitting them here, this gave an occafion for exafting fines for 
 licenfe to plead in the king's court, and thereby of increafing his revenue ; 
 until at length, when the inferior courts declined in reputation, and every 
 man fought for juftice in the curia regis, thefe fines, being arbitrary, became 
 an intolerable grievance, which was remedied by thofe famous words In 
 Magna Charta, Nu/li 'uendemus, ?ui/Ii ?2egabimus jujriiiani, as I fliall obfervc 
 hereafter. Such were the courts held in the Saxon times, and for fome 
 time after the conquefl:, whofe feveral jurifdiftions it is proper to point out, 
 for the better underftanding of the alterations that afterward enfuedf, 
 
 I NEXT proceed to the jnethod of trial, or determining the matters in iflue 
 in thefe courts. And they were the fame that were ufed abroad, which 1 
 have already mentioned, and fliall therefore barely run them over. Firft, 
 ordeal, either by putting their hands in boiling water, or holding a red 
 hot bar of iron in their hands ; or by cold "^•atcr, that is, tying their hands to- 
 gether, and their feet together, and throwing the perfon accufed into a pond; 
 and this method the ignorant vulgar have adopted to try witches. Secondly, 
 the oath of the party, with compurgators, or, as it is called, ivaging his law ; 
 and in this manner was Earl Goodwin acquitted or the murder of Alfred, 
 king Ethelred's brother. Thirdly, battle, which vi'as the ufual method of 
 trying the title to lands, and appeals of felony, or capital crimes. 
 
 If a man was indifted of felony at the king's fuit, he could not offer 
 battle ; for challenging the king was a breach of alle^giance, but if he Was 
 appealed of felony by a fubjed, he had his choice either of battle, or fub- 
 mitting to be tried by a jury. But if he waged battle, he muft fight in 
 
 proper 
 
 f Madox, Hift. Excheq. Dairy mple on Feudal Property, ch. 7. § I.
 
 Lect. 26. LAWS OF EN G LAN D. 251 
 
 proper perfon, whereas the appellant, who might be an infant, or dccrepid 
 with age, or a man of religion, or a woman, was allowed a champion. If 
 lands were demanded from a man, he had, likewife, the option of trial by- 
 battle, or hj grand affi-ze. If by battle, then were both parties allowed 
 champions, if" they defired it; but the champion, in fuch cafe, mufl: firft 
 fwear, that he knows the land was the right of the party be fougiit for, or 
 that his father told him he knew it, and charged hini to bear witnefs there- 
 of. So that this trial was referring it to the providence of God, which of 
 the two contradiftory witneffes, the champions, fwore true f . 
 
 The other method was by the grand affize. JJJ'ize, coming from ajjides, 
 to fit together, fignifies a jury. It was called grand, becaufe of its number. 
 The fherift" returned four knights, who chofe twelve knights more, and 
 their verdift determined. But the mofl ufual method of trial among the 
 Saxons was hj juries, as at this day, that is, by twelve of the pares curia;. 
 The invention of thefe is attributed by the EngliHi lawyers to Alfred, and 
 greatly do they exult over the laws of other countries in the excellency of 
 this method. But had they been acquainted with the ancient laws of the 
 continent, they would have found the trial by pares common to all the 
 northern nations, though fmce wore out by the introduftion of the civil 
 law ; not fo common, indeed, any where as in England ; where every age 
 it gained ground, and wore out the other |. Alfred's merit, therefore, was 
 rather in fixing the number, and determining the qualities of the jurors, 
 than in the invention ; but what thefe feveral qualifications were, will come 
 in more properly in another place. 
 
 f Dugdale, orig. Jurid. ch. 25. 26. NichoMbn, pr^fat. ad leg. Anglo. Sax. Du Cange, 
 voc. Duellum et Juramentum. Spel. voc. Campus et Judicium Dei. Muratori antiq. Ital,. 
 DiiTertat. 38. 
 
 X Stiernkook de jure vetufto Sueonum et Gothorum. c. 4. Diflert. on tlie antiquity of 
 the Englifli Conftitution, part. 4. \ 4. 
 
 Ii2 LECTURE
 
 £52 L E C T U R E S ON the Lect. 27. 
 
 LECTURE XXVII. 
 
 TJie pitnijhment of public cr-'uncs and private icrongs among ihe Saxons — T/je 
 raJil-s of men among the Saxons — The difficulty of afcertaining the nature of the 
 Saxon efiates, and the tenures by which they were held — Obfervations to prove 
 that the Saxon lands were in general allodial. 
 
 IN my lad I gave an account of the courts wherein the Saxons admini- 
 flered juflice, and of the feveral methods of trial ufed in them ; it will 
 be proper to add a few words concerning their punifhment of perfons found 
 guilty either of public crimes or private wrongs. When I fpoke of the 
 cuftoms of the German nations, while they lived in that country, I ob- 
 ferved, that all offences were punifhed hy fines only, and none by dcathy 
 two only excepted, defertion in war, and the rape of a married woman. 
 The nations defcended from them, when they fettled within the limits of 
 the Roman empire, continued the fame praftice for fome ages, as did the 
 Saxons alfo in England. 
 
 All wrong and crimes, not excepting murder and high treafon, were 
 redeemable by fine and imprifonment, until the Heptarchy was declined ; 
 and for this purpofe their laws affigned the feveral mulfts that were to be 
 paid for the different offences. Murder was rated higher or lower accord- 
 ing to the quality of the perfon flain. That of their king himfelf was va- 
 lued at thirty thoufand thrymfce, a piece of their money. But afterwards it 
 was found ncceffary to inflift capital punifliments. Treafon, murder, rape, 
 and robbery, were of the number fo puniflied, though the puniflmient of 
 rape was afterwards caflration ; but after the Conqueft it was made capital 
 again. Corrupt adminiflration of juftice was another ; for it is recorded, 
 to the praife of Alfred, that he hanged forty four unjufl judges in one year f . 
 Thefe were the judges in the tourns, ealdermen of the counties, or their de- 
 puties the fherifts. Other oflences againft the public continued punilhable 
 by fine and imprifonment, and i'atisfadion for private wrongs was obtained 
 
 cither 
 
 ■j- Mirroir des Juftices, chap. 2.
 
 Lect. 27. L A W S OF E N G L A N D. 253 
 
 either by reflorat'ion of the thing unjuftly detained, if it was extant, or a 
 compenfation to the value in damages, if it was not f. 
 
 As to the order and ranks of people among them, there v/ere, properly 
 fpeaking, but two, freemen and villeins. The lafl, I prefume, were the 
 remains o^ the antient Britons, but among the freemen there were various 
 orders, not diflinguiflied by any hereditary difference of blood, but by the 
 dignities of the offices they held by the gift of the king. Not that we arc 
 to imagine there was no regard whatfoever paid to the defcendants of great 
 and illuftrious men. As their king was eligible out of the royal family 
 only, fo were there a number of other families, to whom the enjoyment of 
 thefe honourable offices were, I may fay, confined, not by any pofitive dif- 
 tindive law, but by general pra£tice, and by the king's conftantly choofing 
 out of them ; and who may, with propriety enough be called the nobility. 
 Thofe honorary offices were of difflsrent ranks of dignity ; fuch as thofe 
 of ealdermen or earls ^ copies, or as they were fometimes called Thanes, Prapo- 
 Jltif or rulers of hundreds ; all of whom were, originally, removeable at 
 the king's pleafure, though, unlefs they mifbehaved, they were generally 
 continued for life 
 
 Some, indeed, have thought that earldoms were hereditary, even in the 
 Saxon times, becaufe they fee that earl Goodwin's fon fucceeded him, and 
 the fame was true in fome other families alfo. But there is a great differ- 
 ence between a fon's fucceeding to his father by a legal right of inheri- 
 tance, and his fucceeding either by the voluntary favour of the king, or 
 by his extorted favour, when a family has grown fo powerful, as to make 
 it a neceffary aft in the king, in order to preferve public peace. The latter 
 •was the cafe with refpe^ to earl Goodwin's family. Edward the Confeffor 
 hated him mo -tally for the death of his brother Alfred, as he did his whole 
 family for his fake. However, as he owed the crown folely to his interefl 
 and intrigues, as he was well acquainted with the power, and knew that he 
 had fpirit enough to attempt dethroning him, if once offended, that prince, 
 who was carelefs of what came after him, fo he might reign in peace during 
 life, careffed Goodwin and his family ; diffembled all refentment, and, after 
 one or two weak llruggles, let him and his family govern the kingdom at 
 
 their 
 t Tacit, de Mor. Germ. c. 21. L. L. Wal. p. I92. 194. L. L. Anglo, Sax. ap. Wilkiiis 
 p- 18. 20. 41. Hickef. diflert. Epiil. p. no. Lindenbrog, p. 1404.
 
 254 LECTURES on the Lect. 27. 
 
 their plcafure; a conduft that raifed them ftill higher in the opinions of the 
 people, and concurring with the incapacity of Edgar Atheling, Edward's 
 nephew, raifed Harold to the throne, as the only man in England ca- 
 pable of defending it againft two powerful invaders f . 
 
 But the great difficulty is to know what kind o^eftates the Saxons had in 
 their lands, and by what tenures they held them. This queftion hath divi- 
 ded the lawyers and antiquaries of England ; feme holding that the tenures 
 were as ftriftly feudal, as after the conquefl, while others as ftrongly deny it. 
 I {hall not, in this difficult point, pretend to decide abfolutely where fo 
 great mafters differ, but only make fome obfervations that perhaps would 
 induce one to believe, that the Saxon lands were, in general, allodial^ fome 
 of them military benefices for life, and none, or, if any, at leaft very few 
 feudal inheritances ; and this I take to be the tiruth of the matter. 
 
 First, then, the Saxon lands in general, were inheritances, ^defcendable 
 to heirs ; and were all fubjeft to military fcrvice. An Hcriot, which is con- 
 tended to be the fame as the Norman relief, was paid upon the death of the 
 anceftor, and all landholders took the oath of allegiance, or of fealty, as 
 they would have it ; and therefore, Coke and others conclude that their 
 lands \yerc feudal, and held by knight fervice ; and tho' there are no tra- 
 ces either of wardjljip or marriage to be met with in thofc times, they in- 
 fill that they, as fruits of knight fervice, muft have been in ufc tho' from 
 the paucity of the Saxen records remaining, they cannot be difcovered |. 
 
 This reafoning feenis to have great ftrength, and yet, if we examine with 
 a little attention, perhaps, thefe very arguments, when well confidered, will 
 prove the contrary, viz. that mofl of die Saxons lands were allodial. 
 
 First, then, as to their being hereditary : Tills, fingly, is far from being' 
 a proof of their being held by a feudal tenure. The lands of the Greeks, of 
 the Romans, I may fay of all nations, except the conquering Germans, nay, 
 the allodial lands in their conquefls, were hereditary. Their being fo 
 feems rather a proof of their not being founded on the feudal policy j for 
 
 the 
 
 ]■ Seidell's tit. of Hon. part 2. cli. j. Hume, vol. i. 
 
 1 1 Inll. 76. Uacoaoji the Govcrnmtntol' Engl. p. 75. Saltern de antiq. leg. Brit, c. 8.
 
 Lect. 27. LAWS OF ENGLAND. 255 
 
 the military benefices did not become inheritances any great length of time 
 before the conqueft ; whereas there is no ground to believe that the Saxon 
 lands were ever otherwife. Befides, they had fome qualities that are utter- 
 ly incompatible with the feudal fyftem. They were not only inheritances, 
 but were aliciuibk at the pleafure of the owner, without any leave from the 
 fuperior, and were, likewifc, devifable by will ; fo that the Saxons were ab- 
 folute mafters of their land, and not obliged to tranfmit to the blood the do- 
 nor intended to favour, contrary to the feudal law abroad, and to our law 
 after the conquefl;. I fhall obferve, by the way, that fome lands in England 
 in particular places, being by cuftom devifable by will after the conqueft, 
 was a relifl: of the old general Saxon law, thole places not having, along 
 with the reft of the kingdom, embraced the feudal maxim -j-. 
 
 Another ftriking difference is, that the Saxons lands were not forfeitable 
 for felony, which ftill remains by cuftom in the gavelkind lands in Kent, 
 whence that country proverb, the father to the bough and the fan to the plough. 
 Their lands likewife were equally divifable among all the fons, as were ga- 
 velkind lands ; which is a cuftomary relict of the Saxon law, contrary to 
 general rule, fince the conqueft, where, at firft, the king chofe one, and af- 
 terwards, as at this day, the eldeft alone fucceeded. But this hft I will not 
 urge againft their being of feudal origin, for that was the antient law of 
 fiefs \ it only fliews there was a confiderable alteration introduced at the 
 conqueft. However, though their being inheritances fingly will not prove 
 them fiefs, yet, when that is joined to the military tenure, to the payment of 
 reliefs, and to the oath of fealty, we muft allow them to be fuch. Let us 
 fee then, whether any of them, fingly, or taken all together, will enable 
 us to draw that conclufion |. 
 
 Certain it is, then, that all the lands in England w^ere, in the Saxon 
 times, liable to military fervice ; but this will not prove that they were feu- 
 <ial. For, as I have obferved in a former lefture, the allodial lands in 
 France were fubjccl to the fame. Every man who held land as an allodial 
 tenant, was, according to the quantity, either to find a foot foldier equipped 
 for the wars, or to join with another to find one, if he had not land fuflici- 
 
 ent. 
 
 f Spelman on Feuds and Tenures, ch. 6. 
 
 X Taylor and Soinner on Gavelkind, and Harris in his Hift. of Kent, p. 457.
 
 1'^^ L E C T U R E S ON the Lect. 27. 
 
 ent. Thefe allodial lands were fubjefted by law to three forts of duties. 
 The firft I have mentioned, the other two were building, and repairing 
 bridges, and furnilhing waggons and carriages for the conveyance of arms 
 and the king's provifions, or money f . 
 
 The Saxon lands were, likewlfe, fubje£t to what they called trinoda necejji- 
 ias, the three knotted obligation. The firfl was, furnifliing a foot foldier ; 
 the fecond, which was not in the allodial lands abroad, was arcis conJlruBio 
 the building and keeping in repair caftles and forts, where the king, for 
 the public good, ordered them to be erefted ; and laftly, ponUs conJlru£iio 
 the building and repairing of bridges. As to furnifliing carriages, the Sax- 
 on freemen were exempted ; thefe being fupplied, in that conftitution, by 
 the lower tenants in ancient demefne ; or the king had a right to feize any 
 man's carriages by his purveyors, and ufe them upon paying for them. 
 This right of purveyance of carriages, and of timber, and of provifions for 
 the king's houfehold, which was intended for the king's benefit, and by 
 which nolofs was to accrue to the fubjeft, as he was to be paid the value, 
 became, in the hands of the greedy purveyors, an occafion of great grievan- 
 ces ; thofe officers feizing, often more than was wanted, often where no- 
 thing was wanted, merely to force the proprietor to a compofition of money 
 on reftoring them. The manner of payment, too, became very oppreflive. 
 The rates were fixed at firfl at the due value, but as the rate of money 
 changed, and the prices of things rofe, it came to be under theJialf, and as 
 it was not paid for on the fpot, but by tickets on the treafurer, the owners, 
 were frequently put to more trouble and expence in attendance than the va- 
 lue of their demand. This the purveyors well knew, and therefore turned 
 their office into an engine of extortion. Many were the proclamations ilTued 
 by the king ; many the afts of parliament made to regulate it ; But the evil 
 was inveterate, and proved very heavy even under the befl: princes. The 
 complaints of thefe oppreffions were as great under Elizabeth as under her 
 fucceffor James, and indeed, the evil was fo inveterate, that nothing but 
 cutting it up by the roots, the deflroying purveyance itfelf, could cure it |. 
 
 But 
 
 ^ Spel. glofT. voc. Burghbote et Briighbote. 
 
 + Tyrrel's Introd. p. 120. Spel. Reliq. p. 22.
 
 Lect. 27. LAWS OF E N G L A N D. 257 
 
 But to return to the military duty done by the Saxons in general for 
 their lands. In the firfl: place, then, they ferved as foot foldiers, and not 
 on horfeback, 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 mudering, though not lummon- 
 ed, in order to fee that the men were well trained, and properly armed. 
 But the great difference lay in this, that no particular perfon was bound to 
 military duty, in confideration of his tenure in the lands. The lands them- 
 felves were liable. Every hide of land found a man, whether it was in the 
 hands of one, or more perfons. There was then no perfonal attendance, 
 and, confequently, no commutation for it. The hide of land fupported its 
 foldier, while he continued fighting in his own county ; but if in another, 
 he was to be maintained either by that county, or the king ; whereas, the 
 military tenants, by the feudal law, were obliged to ferve forty days at their 
 own expence, wherever the king pleafed, if the v/ar was a juft, or a defen- 
 five one ; and indeed, as William the Conqueror modelled it, if the war 
 was even unjuft, or offenfive. Thefe differences, added to what I have al- 
 ready obferved, concerning their lands not being efcheatable for felony, 
 being alienable, and being devifable by will, I think, fliew plainly that, 
 though the lands were fubjeifl to military fcrvice, it was upon grounds ' 
 and principles very different from the feudal ones, and that they were ra- 
 ther in the nature of the allodial lands on the continent. 
 
 As to Herrhts, which Coke and his followers infill much upcm, as being 
 reliefs, they alfo, when thoroughly confidered, will, perhaps, be found to be 
 of a different nature. A Herriot was a title the landlord had from his te- 
 nants, and the king, as fupreme landlord, from his, of feizing, the bed 
 bead of his dead tenant, or his armour, if he was a military man. Thefe 
 being due upon the death of the tenant, certainly bore fome refemblance to 
 the reliefs on the continent, and are in king Canute's Ia"w, which was writ- 
 ten in Latin, called by the name of relevativ. To fliew what they were in 
 that time, the rckvatio, or Flerriot of an carl, was eight horfes, four fad- 
 died, four unfaddled, four helmets, four coats of mail, eight lances, eight 
 fiiields, four fwords, and two hundred marks of gold ; of the king's thane 
 four horfes, two faddled, two unfaddled, two fwords, four lances, four 
 fliields, his helmet and coat of mail, and fifty marks of gold ; of the mid- 
 
 K k dling
 
 258 LECTURES ON the Lect. 27. 
 
 dling thane, a horfe -with his furniture, with his arms. But, then, Spel- 
 man juftly obferves, that thefe were not paid by the heir, as a rehef 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 
 Gonqueft. Nay, they were not paid by the heir at law, but by the execu- 
 tor or adminiftrator, as a perquifite out of the tenant's perfonal fortune f ^ 
 
 However, William the Conqueror, finding thefe perquifites in ufe, and 
 that in Latin they were called relevaiioncs, took advantage thereof, and as 
 the forfeited lands he beflowed on his Normans were given upon the terms, 
 and with the fame burthens as lands on the continent, fo were the reliefs 
 he exafted from fuch in the fame manner, made payable by the heir, not 
 the executor ; and as to the unfcrfeited lands, which remained to the Sax- 
 ons, and were very inconfiderable in number, he, in the manner I fhall 
 (hew in the next ledure, converted them, into real fiefs, fuch as were 
 then in ufe in France ; from whence the reliefs came, likewife, to be exac- 
 ted from the heir, and to be confidered as redemptions of the inheritance, 
 which, upon the principles of the feudal policy, could not be entered upon 
 by the heir till the relief was paid. This alteration it was not in the Saxon 
 landholders power to oppofe, on the account before-mentioned ; nor, in- 
 deed, was the burthen on the heir fuch, if no confequences were to be ap- 
 prehended from it, as deferved oppofition ; for William fixed the reliefs at 
 a certainty, at the fame rate, or with very little addition, as the Herriots 
 were in Canute's law. 
 
 But experience foon fliewed what effeds mig'nt follow from the conflruc- 
 tion of Norman judges, at the devotion of a king, upon the word rekviiint 
 being ufed, and its becoming payable by the heir, inftead of the executory 
 his fon and fucceflbr infilled that reliefs were by the feudal law arbitrary, 
 and looked upon his father's limiting them as a void ad, that could not bind 
 his fucceffors. He, accordingly, exafted arbitrary and exceflive reliefs both 
 from the Norman and Saxon landholders in England, which exafpcrated 
 both equally againfl: him ; for though the reliefs in France were, by no law, 
 as yet reduced to a certainty, yet by cuflom they were to be reafonable, 
 
 and 
 t Dr. Brady's GlofTary to his Tracts, p. 3. Spelman on Feuds and Tenures, p. 1 7. 
 and 1 8.
 
 Lect. 27- LAWS OF ENGLAND. ^3-9 
 
 and not to be merely at the will and difcretion of the king or lord ; in con- 
 fequence of which he was, on foine occafions, forced to depend ahnofl en- 
 tirely, in his wars with Normandy, on the mercenary army of tlie lower 
 Englifh, who had no property ; and had his reign continued much longer, 
 it is extremely probable he would have felt feverely for the oppreflions he 
 laid his military tenants of both nations under. But he dying in ten years, 
 Henry was obliged, before Ire was elefted, to fwear to obferve the laws of 
 Edward the Confeifor, which he did, with fuch emendations as his father 
 the Conqueror had made ; and accordingly, as to reliefs he faithfully ob- 
 ferved 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 fudden emergency, it was therefore, generally commuted 
 for money. However, there being no fettled rate fixed, at which this com- 
 mutation fhould be regulated, this alfo was made an engine of oppreihon 
 in John's reign, until it was finally fixed at a certain fum of money, accor- 
 ■ding to the difierent ranks of tlie perfons, by hlagna Charta f . 
 
 As to tlie lafl argument, of the Oath of fealty being taken by the Saxons, 
 it is the weakeft 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 confideration of fuch, and confequently the proprietors of land only 
 were to take it. The oath the Saxons took, which is likened to this, was 
 to the king, as king not as landlord, and not at all in confideration of 
 land ; for every male perfon above the age of twelve years was obliged to 
 take this oath among the Saxons, whether he had lands or not. In truth, 
 it was no more than an oath of allegiance to the king, as king, which was 
 common in all kingdoms, and not peculiar to thofe where the feudal 
 maxims prevailed J. 
 
 Hence I think I have fome liberty to conclude, though I do it with due 
 deierencc, as the greatelt mailers in the antient laws and records of England 
 have been divided in this point, that the very reafons urged to prove that 
 lands were held in the Saxon times as feudal inheritances, prove rather the 
 
 K k 2 contrary, 
 
 \ Madox, Hift. of the Exchequer, vol. I. chap. lo, § 4. 
 .t Spelm. on Feuds and Tenures, chap. 21.
 
 26o LECTURES on the Lect. 27. 
 
 contrary, and that they were, in the general I mean, of the nature of the 
 allodial lands on the continent. 
 
 In my next I fliall fpe^ of the alterations introduced by the conqueror, 
 both as to the tenure of lands in England, and as to the adminiftration of 
 juftice, which were fo remarkable, as to deferve'to be confidered with the 
 ftiifteft attention, as they laid the foundation for the great alterations that 
 have followed fince. 
 
 LECTURE
 
 Lect. 28. L A W S OF E N G L A N D. i6i 
 
 LECTURE XXVIII. 
 
 fhe Saxons, though their lands in general mere allodial, were notjlrangers to 
 military benefices for life — The alterations introduced by William the Norman^ 
 as to the tetmrc of lands in England. 
 
 THOUGH, in my lafl:, I have delivered my opinion, that the lands 
 of the Saxons were not feudal, but allodial, I would not be under- 
 ftood as if there were no lands held by them upon military fervice, different 
 from the allodial I have already defcribed. It is undeniable, that there 
 was among them lord and va[fal; that there were lands held by fuch mili- 
 tary fervice as was performed abroad ; where the bond of fealty fubfifted 
 between lord and tenant, and where the tenants were obliged to ferve in 
 perfon on horfeback. But thefe were few j for the flrength of the Saxon 
 army lay in their infantry. Befides, fuch were not feudal inheritances, but 
 benefices for life, for, in all the records remaining of them, there is not a 
 word implying an eftate that could defcend, or a fingle trace of ivardJJnp, 
 marriage, or relief the neceffary concomitants of fuch eftates. What puts 
 that out of all doubt, in my apprehenfion, is one of tlie laws of William 
 himfelf, where he fays it was he that granted lands infeudum, jure hceredi- 
 tario, which words are added, by way of diftinguifhing the eftates he 
 granted from the military eftates for life, in ufe before. The v/oxAfeuduni 
 alone would have been fufficient, had that law been in ufe before, and the 
 words jure hareditario were added by way of explanation of feudum ; and 
 feudum is added by way of diftinftion from allodial inheritances f .. 
 
 "When thefe military benefices began among the Saxons, I cannot fay 
 
 is determined, but {hall offer a conjefture, that carries a great face of pro- 
 
 babihty. That they were not coeval with the Heptarchy is certain ; for 
 
 ■ none of the German nations had, at that time, fixed eftates for life in their 
 
 military holdings. What time, then, fo probable as the days of Egbert, 
 
 who 
 ■j" Wright on tenures, chap. 2.
 
 262 L E C T U R E S o>} the Lect. 28. 
 
 ■who had refided long in the court of Charlemagne, where thefe tenures 
 were in ufe, and where he faw the benefit of them ? Befides, this was the 
 very time that a body of horfe began to be wanted, who could move fwift- 
 ly to encounter the Danes, then beginning their ravages, and whofe prac- 
 tice it was to land in feparate bodies, and to kill and plunder, until a fupe- 
 rior force affembled, and then reimbarking, to commit the fame devafta- 
 tions on fome other defencelefs part of the coafl:. But thefe kind of te- 
 nures, as I obferved before, could be but few, as mod of the lands were 
 inheritances appropriated to particular families. 
 
 To come now to William. A fingle battle, wherein Harold and the 
 flower of the nobility were flain, determined the fate of England. How- 
 ever, many of the great men furvived, and the bulk of the nation were 
 averfe to his pretenfions. A weak attempt was made to fet up Edgar 
 Atheling, the only prince remaining of the royal race, but the intrigues of 
 the clergy, who were almofl unlverfally on the invader's fide (on account 
 of his being under the protedion of the pope, and having received from 
 him a confecrated banner) co-opei-ating with the approach of his viftorious 
 army, foon put an end to Edgar's fhadow of royalty. He fubmitted, as 
 did his aflbciates, and they were all received, not only with kindnefs but 
 with many high marks of diRinftion. William, accordingly, was crowned 
 with the unanimous confent of the nation, upon fwearing to the laws of 
 Edward the Confeflbr ; and it mufl be owned he behaved, during his firft 
 ftay, with the utmoft equal juftice and impartiality between the Normans 
 and natives. But the continuing to act in that manner did not confift with 
 his views, which were principally two ; the firft to gratify his hungry ad- 
 venturers with lands, the next to fubvert the Englifh law, and introduce 
 the feudal and Norman policy in lieu of it j. 
 
 The firfl ftcp he made there was no finding fault with. It was now al- 
 lowed, that William's title was legal from the beginning, and that Harold 
 was an ufurper, and all that adhered to him rebels. He made enquiry for 
 all the great men that fell in battle on Harold's fide. Their lands he 
 confifcated, and diftributcd, upon the terms of the Norman law, to his fol- 
 lowers ; but thefe were not half fufficient to fatisfy the expedants, and the 
 
 Englilh 
 
 \ Hale's hift. Com. Law, chap. 5, and 7.
 
 Lect. 28. L A W S OF E N G L A N D. 263 
 
 Englifh were ftill too powerful, as he had pardoned all thofe who furvived. 
 He therefore returned to Normandy, carrying Edgar and the chief of the 
 Englifh nobility with him, under pretence of doing them honour, but in 
 reality, that they might be abfent while his views were carrying on ; and in 
 the mean time he left his fcheme to be executed by his Normans, and thofe 
 he had appointed his regents. I fay bis fcheme, for his intereft, to exalt 
 one fide and deprefs the other, on which he could not depend, almofl 
 forced him to this condufl;. The oppreffions, therefore, were fo exorbitant 
 in his abfence, as mufl: neceflarily have driven a people to rebel, and for 
 which a man of juftice would think the real delinquents ought to be the 
 perfons puniflied, whilfl the unhappy nation merited the freeft pardon, for 
 whatever they did when aftuated by a defpair, proceeding from the denial 
 of juftice. But that he himfelf was the immediate fource of thefc diftreflTes 
 is evident from his temper, which was fuch, that no regents of his durft 
 have a£led as they did without his approbation. The Normans began by 
 encroaching on their neighbours the Englifli, nay with forcibly turning 
 them out of their entire poffeifions. If thefe applied to the regents in the 
 curia regis, there was no redrefs. If they retaliated the injuries they dif- 
 fered, they were declared outlaws and rebels f .. 
 
 These pro(ieedings threw the whole nation into a flame, and, had they 
 had a leader of fufficient weight and abilities to head them, William, 
 perhaps, might have been dethroned ; but the right heir, and all the men 
 he feared, were out of the kingdom. They produced, therefore, only ill- 
 concerted, unconnefted infurreftions, headed by men of no confiderable 
 figure, provoked by private wrongs ; and thefe being eafily fuppreffed, af- 
 forded a fund of new confifcations, which he difpofed of in the fame man- 
 ner as the former, and thereby fpread the ufe of the feudal law further into 
 feveral parts of England. However, though he did not fpare the infur- 
 gents, nor puniih his officers t'hat had occafioned thofe commotions, he did 
 not, as fbme have aflerted, feize all the lands of England as his by right of 
 conquefl: ; for, when he came over, his court was open to the complaints of 
 the Englifh, and if any of them could undeniably prove, as indeed few of 
 them could, that they had never affifted Harold, or been concerned in the 
 late diflurbances, they were reflored to their lands as they held them be- 
 fore ;, 
 
 r Bacon's liift. and polit. difcourfe, chap. 44, 45. &c. Tyrrel's hift.
 
 264 L E C T U R E S ox the Lect. 28. 
 
 fore ; as appears from the cafe of Edwin Sharrburn, and many others. By 
 thefe means William obtained the firft of his great ends, the transferring al- 
 moft all the lands of England to his followers, and making them inheri- 
 tances, defcendible according to the Norman law. 
 
 But as to the inheritances that flill remained in Englifli hands, had he not 
 proceeded fomewhat farther, they would have gone in the old courfe, and 
 been free from the burthen of feudal tenure. But how to alter this, and 
 to fubjefl: the few allodial lands, as alfo the church lands, to the Norman 
 fervices, wa/ the queftion ; for he had fworn to obferve Edward's laws. 
 The alteration, therefore, muft be made by the commune concilium, or par- 
 liament, and this he was not in the lead danger of not carrying, in a houfe 
 compofed of his own countrymen, enriched by his bounty, and who were 
 born and bred under the law he had a mind to introduce ; and who could 
 not be well pleafed to fee fome of the conquered nation enjoy eftates on 
 better terms than themfelves the conquerors. The pretence of calling this 
 affembly, which was conveened in the fourth year of his reign, was very 
 plaufible. The Englifli had grievoufly and judly complained of the con- 
 ftant violation of the Saxon laws, and the only extenuation that could be 
 made for this, and v/hich had fome foundation in truth, was, that the king 
 and his officers were ftangers, and not acquainted with that law. He there- 
 fore fummoned this commune concilium, or parliament, to afcertain what the 
 antient law was, and to make fuch amendments thereto, as the late change 
 and circumftances of affairs required. And, for dieir inftruftion in the old 
 law, which was but partly in writing, moft of it cuftomary, he fummoned 
 twelve men, the moft knowing in the laws of England, out of each county, 
 to affift and inform them what thofe laws were, 
 
 AccoRniNGLY, we find the laws of William the Firft are, in general, lit. 
 tie other than tranfcripts of the Saxon laws or cuftoms. However, there 
 are two, which were intended to alter the military policy of the kingdom, 
 to abolifli the trinoda necejjitas, and in its lieu, to make the lands of the En- 
 glifli, and of the church liable to knights fervice, as the Normans lands were 
 by his new grants, and thereby make the fyftem uniform. His fifty fecond 
 law IS emirciy in Icuual terms, and was certamly drawn up by fome perlon 
 
 fliillcd
 
 Lf.ct. 29. LAWS OF E N G L A N D. 265 
 
 Ikilled in that law, for the purpofe I have mentioned. It runs thus : S/a' 
 ttiimus ui omiKs libcri homines fcederc ir facramento qffinncnt, quod intra ct 
 extra univerfum rcgnwn anglia, PVil/ielmo Doinimfuojideles ejji volunt, terras 
 & bonores illiits tibiquejervare cum eo, & contra inimicos <6' alienigcnas defcw 
 dcre f . 
 
 I SHALL make a few remarks on the wording of this law; and firft on 
 the word Jlatuimus. Wright \ obfcrves, that it being plural, implies that 
 this was not by the king alone, but by the commune concilium, o-r parliament, 
 for the ftile of the king of England, when fpeaking of himfelf was for 
 ages after in the fingular number, and in the fubfequent part he is plainly 
 diHinguilhed from the enadors of the law ; for it is not mihi, or nobis jidC' 
 les ejfe, but Willielmo Domino fuo in the third perfon, nor, terras & honores 
 tneos or nojlros fervare , but terras & honores ilUus ; and indeed, in the fub- 
 fequent law I fhall mention it is exprefsly faid in effe£t, that the fubjefting 
 the free lands to knight fervice was per commune concilium. Secondly, the 
 ■words libcri homines is a term of the feudal law, properly applicable to allo- 
 dial tenants, who held their lands free from the military fervice that vafl'als 
 were obliged to : And in this fenfe was it ufed in France alfo, from whence 
 William came. In thefe words were included alfo, the men of the church, 
 for as their lands were before fubjeft to the trinoda necejjhas, it was reafon- 
 able when that was abolifhed, they fliouldbe fubjeft to this that came in the 
 lieu of it. Fadere z.nA facramento affirment. 7vci:/«i is the homage, which, 
 though done by the tenant only to the lord, was looked upon by the feu- 
 difts as a contraQ:, and equally bound both parties, as hfacramentum ; as 
 appears after the feudal oath of fealty ; and they are placed in the order 
 they are to be done, homage firft and then the oath of fealty. Willielmo 
 Domino fuo, not regi, not the oath cf 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 vaflal. But the words intra &• 
 extra univerfum regnum anglix are particularly to be obferved : For thefe 
 made a deviation from the general principles of the feudal law, and one 
 highly advantageous to the kingly power. By the feudal law no vaflid was 
 "obliged to ferve his lord in war, unlefs it was a defenfivc war, or one he 
 
 L 1 thought 
 
 + L L. Anglo Saxon, .ip. Wilkiiis, p. 228. Wright on tenures, p. 66. 
 
 X p. 69.
 
 266 L E C T U R E S ON the Lect. -8. 
 
 thought a juft one, nor for any foreign territories belonging to his lord, 
 that was not a part of the feignory of which he held ; but this would not 
 effeftually ferve for the defence of William. He was duke of Normandy, 
 which he held from France, and he knew the king of that country was 
 very jealous of the extraordinary accefhon of power he had gained by his 
 new territorial acquifition, and would take every occafion, juft or unjuft, of 
 attacking him there ; in fhort, that he muft be almoft always in a ftate of 
 war. Such an obligation on his tenants, of ferving every where, was of 
 the higheft confequence for him to obtain ; nor was it difficult, as mofli 
 of them had alfo eftates in Normandy, and were by felf-intereft engaged in 
 its dc fence » 
 
 The next law of his I (hall mention is the fifty-eighth, which enjoins aft 
 who held lands by military fervice, and fome others, to be in perpetual rea- 
 dinefs. It runs to this effeft : " We enadt and firmly command, that all 
 " earls and barons and knights and kYv^.nts, fervicntes, (that is the lower 
 " foldiers, not knighted, who had not yet got lands, but were quartered 
 " on the abbeys,) and all the freemen, (namely the Saxon freeholders, and 
 " the tenants of the church, which now was fubjefted to knights fervice) of 
 " our whole aforefaid kingdom, fhall have and keep themfelves well in 
 " arms, and in horfes, as is fitting, and their duty ; and that they fliould be 
 " always ready, and well prepared to fulfil and to act whenfoever occafion 
 " fiiall be, according to what they ought by law to do for us from their 
 " fiefs and tenements ; and as we have enaded to them by the commune 
 " concilium of our whole kingdom aforefaid ; and haVe given and granted 
 " to them in fee in hereditary right." The great eileft of this hw was to 
 fettle two things, not exprefsly mentioned in the former ; the firft to llievr. 
 the nature of the fervice now required, knight fervice on horfeback j and 
 the other, to afcertain to all his tenants, Saxons as well as Normans, the 
 hereditary right they had in their lands, for if that had not been done by this 
 law, as now all lands were made feudal, and their titles to them confequent- 
 }y to be decided by that law, they might otherwife be liable to a conftruc- 
 tion, according to its principles, that any man, who could not fhew in his 
 
 title
 
 Lect. 28. LAWS OF EN GL AND. 267 
 
 title words of inheritance^ which the Saxons generally could not, was but te- 
 nant for life f . 
 
 This general law then put all on the fame footing, and gave them inheri- 
 tances, as they had before, but of another nature, the feudal one, and con- 
 fequently, made them fubjed to all its regulations. From this time, and in 
 confequence of thcfe laws, the maxim prevailed, that all lands in England arc 
 held from the king, and that they all proceeded from his free bounty, as is 
 ftrongly implied in the word conccjfimus ; and hence fome, indeed many, 
 have imagined that the conqueror feized all the lands of England, as his by 
 right of conqueft, and diftributed them to whom, and on what terms he 
 pleafed. With refpe£l to the greater part, which he gave to his Normans, 
 ihis is true ; but it appears from the records of his time, that it was not uni- 
 verfally the cafe. The laws I have mentioned fo changed the nature of the 
 inheritances, which he did not feize, that they were fubjeO: to all the fame 
 confequences, as if he had fo done ; though in truth, with refpedl to the 
 SaxonSj he did not difpoffefs them. It was but a fiftion in law. 
 
 I HAVE rnentiohed that he made the lands of the church liable to knights 
 fervice, in heu of the military expedition they were fubject to before ; but 
 this is to be underftood with fome limitation. For where the lands of an 
 ecclefiaftical perfon, or corporation, were barely fufficient to maintain thofe 
 that did the duty, they, for neceflity's fake, were exempted ; and the Saxon 
 expedition being abolilhed, the contribution thereto fell with it, and they 
 became tenants infrankalmoinc, or free alms. But where an ecclefiaftical 
 corporation was rich, and able, befides their neceffary fupport, according 
 to their dignity, they were, by thefe laws, under the words liheri homines^ 
 fubjefted to the new ordained military fervice, as they had been before to 
 the old, and according to their wealth, were obliged to find one or more 
 knights or horfemen. If they were obliged to furnifli as many as a baron 
 regularly was, they were barons, as all the bifhops and many of the great 
 abbots were ; and, as barons, fat in the commune concilium ; whereas, be- 
 fore, the clergy in general fat in parliament, as well as the laity, not as a fe- 
 parate body, nor invefted with feparate rights, but both clergy and laity 
 equally concurred in making laws, whether relative to temporal affairs or 
 Spiritual ; though, with refped to the latter, it may well be inferred, from 
 
 L 1 2 the 
 
 -j- L L. Anglo. Saxon, ajj. Wilkins. Wright on tenures, p. 72.
 
 268 L E C T U R E S ON the Lect. 28. 
 
 the ignorance of the tunes, that they had almoft the entire influence. But 
 after this time the clergy became a feparate body from the laity, had di- 
 ftinft interefls alfo, and a feparate jurifdiction ; nay, I may fay, became, in 
 fomc degree, a feparate branch of the legiflature, by the right they claimed, 
 and excrcifed, of making canons to bind laity as well as clergy |. But the 
 explaining this would carry me too far at prefent, fo I fliall defer it to my 
 next lecture. 
 
 In the mean time, I fhall juft recapitulate the prodigious alteration, as to 
 the properties of landed eftates in England, introduced by the two laws of 
 the conquerors, I have mentioned, from what was their nature and qualities 
 before that time. They had been the abfolute proprieties of the owner, (I 
 fpeak in general,) they could be aliened at pleafure, they could be devifed 
 by will, were fubjed to no exaftions on the death of the owner, but a very 
 moderate fettled herriot paid by the executor. In the mean time, on the 
 death of the anceflor, the heir entered without waiting for the approbation 
 of the lord, or paying any thing for it ; and his heir, if there v\'as no will, 
 was all the fons jointly. No wardfliip, or marriage, was due or exafted, if 
 the heir was a minor. All thefe, by the feudal cuftoms being introduced, 
 were quite altered. Lands could no longer be aliened without the confent 
 of the lord. No will or teftament concerning them availed any thing. The 
 heir had no longer a right to enter into his anceflor's inheritance immediate- 
 ly on his death, until he (not the executor) had paid a relief (and that not 
 a moderate one) and been admitted by the lord. The heir, likewife, was 
 not all the fons jointly, but one, firfl:, fuch as the lord pleafed to prefer ; at 
 length it became fettled univerfally in favour of the eldefl ; and the fruits of 
 tenure, wardfhip, marriage and relief (for the Saxon herriot was, as I have 
 mentioned, a different thing'i came in as neceffary attendants of a feudal 
 donation. 
 
 No wonder, then, that it has been faid William intioduced a new law, 
 the Norman one. He certainly did fo as to landed eftates ; but this, as I 
 have obferved before, by the confent of his parliament, who, being Nor- 
 mans, were as well pleafed with the change as himfclf j but it is not true 
 
 with. 
 
 ■\ Madox, Baronia Angl. p. 25. Scld, tit. lion, part 2. ch. y^
 
 Lect. 28. L A W S OF E N G L A N D. 269 
 
 with refped to the other old Saxon laws, which did not clafh with the defign 
 of introducing the military feudal fyflem. Them he confirmed, and his 
 feudal laws were called only emendations. However, certain it is, his fe- 
 cret defign was to eradicate even the Saxon, the laws he had, in purfuance 
 of his coronation oath, confirmed, and that he took many fleps thereto ; 
 •which though they had not the full effeft he intended, wrought confiderable 
 changes. What thefe were, and the confequences of them, fliall be the 
 fubjed of the next ledure. 
 
 LECTURE 
 
 o
 
 27© LECTURES on the Lect. 29. 
 
 LECTURE XXIX. 
 
 The alterations introduced by William, as to the adminijlration ofjitftice — The 
 Judges of the Curia Regis are appointed from among the Normans — The cowi' 
 iy courts decline — The introduction of the Norinan language — The diJlinBion 
 between courts of record, and not of record — The feparation of the fpiritual and 
 temporal courts — The confequences of this meafure. 
 
 WILLIAM, by altering the nature of land eftates, and the conditions 
 upon which they were held, had proceeded a good way in his fe- 
 cond capital defign, the introduftion of the Norman, and the abolifliing of 
 the Saxon law. And farther than that, it was not proper nor confiftent 
 with his honour, who had fworn to Edward's laws, to proceed openly. 
 However he formed a promifing fcheme for fapping and undermining the 
 Saxon law by degrees. Firft, he appointed all the judges of the curia regis, 
 from among the Normans, perfons fond of their own law, ignorant of the 
 Englifli, and therefore incapable, even if they had a mind, to judge accor- 
 ding to it. 
 
 Before his time this court only meddled with the caufes of the great 
 lords, or others that were of great difficulty, but now it was thought proper 
 to difcourage the county courts, and to introduce mofl caufes originally into 
 the fuperior court ; and for this there was a reafonable pretence, from the 
 •divifions and fadions between the two nations and the partialities that muft 
 ever flow from fuch a fituation of affairs. The ancient laws of England had 
 been written, fome in the Saxon, fome in the Latin tongue, and the laws of 
 William, and of many of his fucceffors, were penned in the latter language. 
 But in the curia regis all the pleadings henceforward were entered in the 
 Norman tongue, the common language of his court, as were alfo, all the 
 proceedings therein, until the time of Edward the Third. This introduced 
 the technical law terms and with thofe came in the maxims and rules of 
 adminiftering juflice belonging to that people, which gradually, wherever 
 
 they
 
 Lect. 29- LAWS OF ENGLAND. 271 
 
 they diflered from, fuperfeded the Englifh. Hence proceeded the great 
 affinity I may fay, identity, between the antient law of Normandy, as fet 
 forth in the coutumier of that country, and the law of England, as it flood' 
 foon after the conqueft. 
 
 The analogy, however, did not arife from this alone. Though England 
 borrowed moflfrom Normandy, yet, on tlie other hand, Normandy borrow- 
 ed much from England. William, for the eafe of his people, who had oc- 
 cafion to frequent his court, or had fuits in the curia regis, eftabliflied fchoob 
 for inflrufting perfons in, this language, and obliged parents of fubftance to 
 fend their children thither, which had the confequence of abolifhing the old 
 Saxon tongue, and forming a new language, from the mixture of both -[•. 
 
 This introduftion of a new language, together with the exaltation of the 
 atria regis and the confequent depreffion of the county courts, introduced, 
 as I apprehend, the diftinfcion between the courts of record, and not of record y. 
 and made the county courts confidered of the latter kind. Courts of re- 
 cord are fuch whofe proceedings are duly entered, which, at that time, was 
 to have been done in the Norman tongue, and which proceedings are of 
 fuch weight, as, unlefs reverfed, for ever appearing from the record, can 
 never be gainfaid or controverted. Now, to allow fuch a privilege to the 
 proceedings of the inferior courts, the county ones, where the fuitors wera 
 judges, and where, befides, the proceedings were in the Engll-fli language, 
 would have been contrary to the policy of that time, and would have tended 
 rather to the confirmation than depreffion of the old law. The fpiritual 
 courts, alfo, are not allowed to be courts of record, and that, I prefume, 
 becaufe they were antiently a part of the county courts, and feparated from 
 them, as I fhall fliew prefently in this reign, and therefore could have no 
 greater privilege than the court from which they were derived. However 
 fome inferior courts, fuch as the 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 thefe were criminal courts, where public of- 
 fences were punifhed,^and therefore fliould have all weight given them,. and 
 where the king's forfeitures and fines for crimes were found. 
 
 I HAVE 
 t Dugdale's orig. jurid. c. 34. Madox, bift. of Excheq. ch. 2. La coiitume de Nor- 
 
 mandie..
 
 272 L E C T U R E S ON THE Lect. 29. 
 
 I HAVE obferved before, that the courts, in the Saxon times, were mixed 
 aflemblies, where the bifliop and flieriff prefided, and mutually aihfted each 
 other, and where the bifhop, I may add, had a Ihare in the amerciaments 
 and fines. But in this reign the fpiritual and temporal courts were fepara- 
 ted by William, a thing which afterwards was of bad confequence to many 
 of his fucceflbrs, but wag, at the time, very ferviceabk to the views he then 
 had. This was certainly done partly to oblige the pope, who had efpoufed 
 his title, and at this time was fetting up for the univerfal lord of churchmen, 
 though, in after times, they carried their pretenfions much higher |. 
 
 One great engine the popes fet on foot to attain the power they aimed 
 at, was to make a diftinftion between clergy and laity, to have the matters 
 relating to the former, as well the merely fpiritual as the temporal rights 
 they had acquired, cognizable only in their OAvn jurifdiftions j and, to pre- 
 ferve the diilinction (tronger, to forbid their interfering in the temporal 
 courts, upon pretence of their time being taken up in fpiritual exercifes, and 
 particularly, that it fuited not the piety and charity of a clergyman, even by 
 his prefence, to countenance the proceeding to fentence of death, or the 
 mutilation of limbs. Many were the laws they made for this purpofe, upon 
 motives of pretended piety ; and the circumflances and praQices of the 
 times contributed greatly to their fuccefs. The emperors, kings, and great 
 lords, had the nomination to biflioprics, and other benefices, as their an- 
 ceftors had been the founders, and their lands were held from them. But 
 fliameful was the abufe they made of this power. Upon pretence of the 
 clergy being their beneficiary tenants, according to the principles of the feu- 
 dal law, they exafted reliefs, and arbitrary ones from them before invefli- 
 ture, or, to fpeak in plain terms, they fold them on Simoniacal contrafls to 
 the higheft bidder, as the Conqueror's fon William did afterwards in Eng- 
 land ; fo that the profligate and vicious were advanced to the higheft dig- 
 nities, while the confcientious clergy remained in obfcurity ; nay, if they 
 could get no clergyman to come up to their price, they made gifts of the 
 title and temporalities to laymen, nay, to children ; it was a matter of little 
 concern that there was no one to do the fpiritual office. 
 
 Such 
 
 f Baron Gilbert's hifl. of Exchtri. p. 5J. Lord Liuleton's hift. of Henry II. 410. 
 vol. I. p. 43. 4J7, Carte, vol. I. p. 419. 420.
 
 Lect. 29. L A W S OF E N G L AN D. 273 
 
 Such pra6l:lcc3, (and they were too common) gave jufl and univerfal of- 
 fence to all fobcr pcrfons, fo 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 rcftore an 
 elective manner of conferring benefices, though their real dcfign was firlt to 
 become the protetlors of the clergy, next, their lords and mafters, and 
 then, by their means, to tyrannize over the laity ; a plan which they carried 
 into execution with too much fuccefs. This plan was in the height of its 
 operation in William's reign. The foundation of it had been laid before, 
 as I obfcrved, in the many diflindions made between clergy and laity, and 
 the prohibiting the firft, except fome great ones, from meddling with fecu- 
 lar affairs, or tribunals. This feparation, however, had not yet taken place 
 in England, and it is not a wonder that William, who had peculiar views c^ 
 his own in it, as I fliall obferve, thought it reafonable to oblige his bene- 
 faftor the pope, and to conform the conflitution of this church and nation 
 to that of France, where the clergy were a fcparate body. 
 
 The private views of the king were twofold, the firfl; arofe merely frorft 
 his perfonal charafter, his avarice. By the bifliop's ceafmg to be a judge 
 in the temporal courts, he loft his fliare of the mulfts or fines impofed there- 
 in, and in confequence the king's two-thirds of them were encreafed. But 
 his other view lay deeper. To comprehend this, we muft remember how 
 great was the ignorance of thofe ages. Scarce a man, except a clergymany 
 could read of write, infomuch that being able to read was looked upon as a 
 proof of being in orders. Many even of the greateft lords could not write 
 their names, but figned marks ; and from this ignorance it was that proceed- 
 ed the great weight our law gives to fealing above figning any inftrument, 
 and that fealing is what makes it a man's deed. It followed from hence 
 that the laity muft be grofsly ignorant in point of the laws. Their know- 
 ledge could extend no farther than as they remembered a few particular 
 cafes, that fell under their own obfervation ; whereas the clergy had the 
 benefit of reading the written laws, and confulting the proceedings thereon, 
 in the rolls of the courts of juftice, and they were the only lawyers of the 
 times } infomuch that it became a proverb, nullus clericus nlji caujidkus. 
 
 M m What
 
 274 LECTURES on the Lect. 29. 
 
 What method then could fo effectually anfwer the king's end of making 
 the Saxon law fall into oblivion, which he could not openly abolifh, after 
 having folemnly fworn to obferve it, as the removing from the courts of 
 juftice thofe perfons who only knew it, and could oppofe any innovation his 
 Norman minifters fhould attempt to introduce. This policy, however, as 
 artfully as it was laid, had not its full effeft ; for many of the clergy, un- 
 willing to lofe fo gainful a trade, appeared flill in thefe courts m difguife, 
 as laymen, and at this time it is very probably conje£lured that that ornament 
 of theferjcant at law's drefs, the coijf', was introduced, and for this very pur- 
 pofe of hiding the tonfure, which would have fliewn them to be clerks. 
 This their attendance, in fome degree, fruilrated the fchenie, and many of 
 the Saxon laws, fuch efpecially as were repeated in William's, kept their 
 ground, but many more were forgotten, 
 
 I MENTIONED that one motive of William's to feparate the jurifdidionsy, 
 was to oblige the pope, to whofe favour he owed much, yet it ought to be 
 obferved to his honour, that he maintained the independency of his king- 
 dom with a royal firmnefs. Pope Gregory, commonly called Hildebrand, 
 who was the firft that ventured fo far as to excommunicate fovereign princes, 
 as he did the emperor no lefs than four different times, conceiving Williara 
 could not fit fecurely on his throne without the aid of his fee, demanded of 
 him homage for the kingdom of England,, and the arrear's of Peter's pence ; 
 grounding his claim of fuperiority on his predecefTor's confecrated banner, 
 and that Peter-pence was the fcrvice by which the kingdom was held from 
 the holy fee. But he found he had a man of fpirit to deal with. William 
 allowed the juftice of the demand of Peter-pence, and promifed to have it 
 collefted and paid, not as a tribute, but as a charitable foundation, as in 
 truth it was, to fupport a college of Englifh fludents at Rome, for the be- 
 nefit of the Englifh church. As to. homage, he abfolutely refufed it, and 
 declared he held his crown from God alone, and would maintain its inde- 
 pendance ; and to convince the pope he was in earnefl, he iffued an edi£t 
 forbidding, on their allegiance, his fubjects to acknowledge any perfon for 
 fovereign pontiff", until he had firfl acknowledged him. So bold a flep con- 
 vinced Gregory, who was already fufficiently embroiled with the emperor, 
 that this was no fit time to pufh things 5 and fo he dropped his projed, but 
 
 without
 
 Lect. 29. LAWS OF ENGLAND. 275 
 
 without retrafliing it ; for the court of Rome never did in any cafe formally 
 recede from a pretenfion it had once advanced. 
 
 The confequences of the reparation of the ecclefiaflical from the tempo- 
 ral jurifdidion were many. It naturally occafioned controverfies concern- 
 ing the refpeftive limits, and thefe gave rife to the curia regis interpofing in 
 thefe matters, and, by prohibitions, preventing one from encroaching upon 
 the other. The great contefl was concerning fuits for benefices, or church 
 livings, which the clergy contended were oifpiritital, and the king's courts, 
 of temporal cognizance. And this, indeed, was the great quedion that, in 
 thofe days, divided the Chridian world abroad. However in England, the 
 clergy were, at length, foiled in this point. But a much greater evil arofe 
 from this feparation. It is a maxim of all laws, that no man fliould be 
 twice punifhed for the fame crime, and this jufl maxim the clergy, in fa- 
 vour of the members of their own body, perverted in a fliocking manner. 
 If a clerk committed murder, rape, or robbery, the bifliop tried and con- 
 demned him to penance ; and this fentence was made a pretence of not de- 
 livering him to the temporal courts, to be tried for his life. This was one 
 of the great difputes concerning the conftitutions of Clarendon, in Henry 
 the Second'^ time, between him and archbilhop Becket |. 
 
 At length, about Henry the Third's reign, the limits between the feve- 
 Tal jurifdiftions were pretty well fettled, and by fubfequent ftatutes, and ju- 
 dicial refolutions, are confined to the refpettive limits they are now under. 
 Indeed, fmce the Reformation, as the credit of the canon law has declined, 
 on account of the dilatory proceedings, and the ufe of excommunication 
 upon every trifling contempt, the reputation of the ecclefiaflical courts has 
 greatly fallen, and prohibitions are now iffued, in many cafes, where they 
 could not have been granted in former times. Yet, if we examine accurate- 
 ly, we fhall find that thefe great complaints, which, it muft be owned, are 
 in the general juft, namely, of dilatorinefs and excommunications, proceed- 
 ed from the feparation of the two courts by William. Before, when the 
 courts fat together, the fheriff afFifted the biOiop, and by his temporal power 
 compelled the parties to appear, and fubmit to the fentence, if they were 
 
 M m 2 ■ con- 
 
 f Madox, Excheq. ch. I. Bacon on the laws and government of England, part I. 
 rh. 59. and 66. Brady, Carte and Tyrrel.
 
 276 L E C T U R E S ON the Lect. 29. 
 
 contumacious againft excommunication. But when they were feparated, 
 the bilhop was left to his fpiritual arms, merely, excommunication ; and as 
 the confeqiiences of fuch a fentence were, in the fuperflitious times, looked 
 on as A'ery dreadful, and are really fevere in law, feveral intermediate pro- 
 cefles and notices were neceffary before they proceeded to that extremity ; 
 and this gave opportunity to litigious perfons to difobey every order the 
 court made in a caufe, until they came to the brink of excommunication, 
 and that way, by repeated contumacies, to fpin out caufes to an unconfcion- 
 able length. And the want of other arms compelled thefe courts, on very 
 trifling contempts, to enforce their orders by excommunication, which, it 
 mud be owned, according to its primitive and right ufe, fhould be referved 
 only for flagitious immoralities f • 
 
 Another evil confequence that flowed from this reparation of thefe 
 courts, was, that the pope cunningly got his, the canon law, introduced into 
 the ecclefiaftical courts, which made him the head of the church, introduced 
 appeals to him, and in effeft, robbed the king of fo many fubjeflis in eccle- 
 fian;ical afliiirs, whereas, before, though there might be references in cafes 
 of difficulty for advice to Rome, there were no appeals thither. The curia 
 regis was to reform ecclefiaftical judgments, and the ecclefiaftical, as well as 
 temporal jurifdielion, was the king's. 
 
 Another evil confequence, and it is the laft 1 fhall mention, of this alte- 
 ration, was the fetting up two legiflatures, if I may fay fo, in the kingdom. 
 In the antient time all laws were made in the fame aflTembly, but now, the 
 clergy being feparated from the laity, when a parliament was called, the 
 bufmefs became divided ; ecclefiaftical matters, and the taxes on the clergy, 
 were handled in the convocation, as temporal matters, and the taxes on the 
 laity, were in parliament. This contributed to the further clafliing of jurif- 
 diftions. For it muft be owned the convocation exceeded their powers, and 
 made canons about things merely temporal ^ which, however, they contend- 
 ed to be fpiritual ; and fometimes contrai-y to the exprefs law of the land, 
 neverthelefs they by the fuperftitious and ignorant, who knew not the diC- 
 tinftion between fuch things, were generally obeyed, and hence from fuch 
 
 fubmillion 
 
 \ Hale, hifl..com..law, ch. 7. Bacon, hiil. and polit. difcoiu-fe, p.. 129. &c.
 
 Lect. 29. L A W S OF E N G L A N D. 277 
 
 fubmiflion it is, that, by cuftom, in feveral places, tythes are payable of things 
 that are not tythable at common law. 
 
 The right of the convocation's canons binding the laity in fpiritual mat- 
 ters was never doubted in the times of popery, nay till Charles the Firfl's 
 time, if they had the approbation of the king, who was the head of the 
 church, it was the general opinion, except among tlie Puritans, But fmce 
 that time their jurifdidlion is fettled on a reafonable footing. Their canons 
 bind no man, fpiritual or lay, in temporal matters. They bind no layman 
 in fpiritual matters ; but they bind the clergy in fpiritual matters, provided 
 that no right of the laity is- thereby infringed. As for inflance, there is a 
 canon forbidding clergymen to celebrate marriage out of canonical hours. 
 This doth not bind even a clergyman, for if it did, it would ftrip the laity 
 of their right of being married at any hour. However it is to be confidered 
 whether a canon of the convocation is a new ordinance, or only a repetition 
 of the old ecclefiaftical law. If the latter, it binds all men, fpiritual and lay, 
 not as a canon, but as the law of the land. 
 
 LECTURE
 
 278 L E C T U R E S ON the Lect. 30. 
 
 LECTURE XXX. 
 
 Robert Duke of Normandy, and Wil/iam Rt/Jfus, difpnte the fiiccejjlon to th? 
 Conqueror— The EngUjh prefer the latter — The forcfi laws — The cruelty and 
 opprcjjions of Williain — The advancement of Henry, the Conqueror' s youngefl 
 fan, to the crown of England — He grants a charter — The nature of this 
 charter — His difpute with Anfelm concerning Invejiitures — The celibacy tf 
 the clergy — State of the ki?igdom under Stephen. 
 
 WILLIx\M the Conqueror left three fons, Robert, William and 
 Heiiry. The eldefl, Robert, according to the eflabliflied rules 
 of the French fiefs, fucceedcd in Normandy, and on account of his pri- 
 mogeniture laid claim alfo to the crown of England ; but what r?ght that 
 gave him, might in thofe days, well be a queition. In the Saxon times 
 the rule was to eleft a king out of the royal family, and the eleftion gene- 
 rally fell on the eldefl fon, though not univerfally ; for the line of Alfred 
 reigned in prejudice to the defcendants of his two elder brothers. Edred 
 fucceded to his brother Edmund, in prejudice of Edmund's two fons ; 
 again, on Edred's death, his fon was excluded, and Edmund's eldefl fon 
 refigncd ; and laflly Edward the Confeffor was king, though his elder 
 brother's fon was living. So that priority of birth was rather a circum- 
 flance influei'icing the people's choice, than what gave an abfolute right of 
 XuccefTionf. 
 
 Another thing, it might be pretended, fliould determine this point, 
 that is, as William claimed the crown through the will, as he faid, of the 
 Confeffor, he alfo had not a power to bequeath the crown. When, there- 
 fore, he was making his will he was applied to on this head, but tiie ap- 
 proach of death feems to make him acknowledge that his only jufl title was 
 his t/eflion, for though he hated his fon Robert, and was extremely fond of 
 William, he refufed to difpofe of it by will. He only expreffed his wifli 
 
 that 
 
 f Tyncl's Introdm^. to his hift. '
 
 Lect. 30. LAWS OF E N G L A N D. -79 
 
 that William might fucceed, and difpatched him to England, with letters 
 to Lanfranc archbifhop of Canterbury, requelling him to influence the 
 eledtion in his favour, and he accordingly was crowned. Indeed, it feems 
 a little odd that William, whofe bad qualities were univerfally known (for 
 he had not one fmgle virtue, except perfonal bravery) fliould be preferred 
 to Robert, who, with that virtue, poffefTed all the amiable virtues of hur 
 manity. 
 
 That the native Englifh fhould prefer any one to Robert is not to be 
 wondered at, as he had, on all occalions, expreffed the highefl averfion to 
 them, but they had no influence in tlie matter ; and it appears, at firfl 
 view, the intereft of the Englifh lords, moft of whom had alfo efliates in 
 Normandy, to be fubjed to one monarch, and not have their eftates liable 
 to confifGation, on taking part with one of the brothers agalnfl; the other. 
 But the interefl: of Lanfranc and the clergy, added to his father's treafure, 
 which he had feized, and diftributed liberally, bore down all oppofition ; 
 and indeed, it is probable that Robert's difpofition, which was well known, 
 operated in his disfavour ; for his extreme indolence and prodigality, and 
 his fcruples of ufmg improper means for attaining the moft defirable ends 
 (whereas William was extremely active and would ftick at nothing) made 
 it eafy for perfons of any penetration to fee in whofe favour the contefl 
 between the two brothers mufk end -j-. 
 
 We have little to fay of the laws ia his time, for he regarded no laws^ 
 divine or human, ecclefiaflical or temporal. He chofe for judges and cour- 
 tiers the mofl profligate perfons he could find. And one of the great op- 
 preffions his people laboured under was the extending, and aggravating the 
 forefl laws. Iht fore/is were large tra£ts of land, fet apart by his father 
 for the king's hunting out of the royal demefnes ; and confequently Wil- 
 liam his father had by his own authority, made laws, and fevere ones, to 
 be obferved in thefe diftrids for the prefervation of the game, and erected 
 courts to try offenders, and trefpaffers in his forefls. The great intention 
 of thefe courts was to fleece his fubjedts, who were as fond of hunting as 
 their fovereign, by mul£ts and fines ; and in truth, thefe were the only op- 
 prefTions his countrymen, the Normans, fuffered under the Conqueror. 
 
 But 
 t Carte, vol. i. p. 452, 4J3,.
 
 28o L E C T U R E S ON the Lect. 30. 
 
 But Ruftus flew out of all bounds. He introduced the /awing, as it is 
 called, the Hamftringings of Dogs ; nay, he made a law, by his own au- 
 thority, to make the killing of a deer capital. On pretence of this law he 
 feized many of the great and rich, confined them for years, without bring- 
 ing them to tryal, until he forced them to compound, and to give up the 
 better part of their eflates. Not content with harrafling the laity, he laid 
 facrilegious hands on the church revenues. Whenever a rich abbey, or 
 bilhoprick, fell vacant, he laid his hands on the temporalities, kept them 
 vacant for years, as he did that of Canterbury four years ; and even, when 
 he was prevailed upon to fill them, he openly fet them to fale in his pre- 
 fence, and gave them to the befl bidder. However, in a violent fit of ficknefs, 
 he promifed to reform, and did till he recovered his ftrength, when his re- 
 formation vaniflied. The remonftrances of his clergy, or the pope, had 
 no efFecl with him ; and, indeed, the circumftances of the times were fa- 
 vourable. For as there were two popes, one made by the emperor, the 
 other, by the Romans, who difowned the imperial authority in that refpetl, 
 William acknowledged neither, and each was afraid to drive him into his 
 adverfaries party, by proceeding to extremities. 
 
 These enormities raifed him fo many enemies among his fubjefts, of all 
 kinds, that Robert had a ftrong party, and an infurreclion was begun in 
 his favour, which William, profiting of Robert's indolence, eafily fuppref- 
 fed, and then invaded him in Normandy, and was near conquering it, as, 
 by a fum of money, he detached the king of France from the alliance, if 
 he had not been invaded by Scotland, in favour of Robert. He patched 
 up, therefore, a peace with him, ratified by the barons on both fides, the 
 terms of which were, that the adherents of each fhould be pardoned, and 
 rellored to their eflates, and the furvivor fucceed to the otherf . 
 
 Thus there was a legal fettlement of the crown of England made, which 
 ought to have taken place, but did not." For William being accidentally 
 killed in hunting, while Robert was abfent in Italy, on his return from the 
 holy war, Henry the youngeft fon, took the advantage, and feizing his 
 brother William's treafure, was crowned the third day, after a very tumul- 
 tuous cleftion, the populace threatening death to any that ihould oppofe him. 
 
 The 
 
 •j- Kennel's hiftoiians, and Carte,
 
 Lect. 30. LAWS o>' E N G L A N D. 281 
 
 The reafon of their attachment to hun was, that he was, by birth, an En- 
 gliihman, and therefore, they hoped for milder treatment from him than 
 they had met from his two Norman predeceffors. Befidt.s he had promifcd 
 a renewal of the Confeflor's laws, with fuch emendations as his father had 
 made. And in purfuance of this promife, as foon as he was crowned, he 
 iffucd a charter, containing the laws as he now fettled them, and fent 
 copies of it to every cathedral in his kingdom. 
 
 These laws were, as to the bulk of them, the old Saxon conftitutlons, 
 "with the addition of the Conqueror's law of fiefs, and fome things taken 
 from the compilations of the canon law. However, with refpeO: to the 
 feudal law, he, in many inftances, moderated its feverity. With refpe£t to 
 reliefs^ he abolifhed the arbitrary and heavy ones which William had exac- 
 ted, and reftored the moderate, and certain ones-, which his father had 
 cftablilhed. With refpeft to the marriage of his vaffal's children, he gave 
 their parents and relations free power of difpofing of them, provided they 
 did not marry them to his enemies, for obviating which, his confent was 
 to be applied for, but then he exprefsly engaged not to take any thing for 
 his confent ; and the icardjhips of his minor tenants he committed to their 
 neareft kindred, that they might take care of the perfons and elfates of the 
 ward, and account with him for the profits during the minority, upon rea- 
 fonable terms. He even, in fome degree, reftored the Saxon law of de- 
 Jccnts, and permitted alienation of lands. For if a man had feveral fiefs, 
 and feveral fons, the eldeft had the principal one, on which was the place 
 of habitation, only, and the reft went among the fons, as far xis they 
 would go ; and if a man purchafed or acquired land {as land might be 
 alienated by the feudal law, with the confent of the fuperior lord,) fuch 
 acquifitions by the laws of Henry, he was not obliged to tranfmit to his 
 heirs j but might alien at pleafuref. 
 
 This mitigation of the former law was very agreeable to his people, 
 both Englifl\ and Normans. The former were pleafed to fee the Saxon law 
 fo nearly reftored, and the latter, harraflfed with the oppreflions of William, 
 were glad to have the heavy burthens of their tenures lightened j and in- 
 
 N n deed, 
 
 t Hale, hift. com. la\v, chap. 7. Carte, vol. i. p. 480. et feq.
 
 282 LECTURES on the Lect. 30. 
 
 deed, began, by degrees, to relifli the old Englifli law, and to prefer it to 
 tlieir own. 
 
 To attach the bulk of his fubjefts to him ftill more flrongly, he took ano- 
 ther very prudent (lep. He married Maud the daughter of the king of 
 Scotland, by Edgar Atheling's fifter, fo that in his iffue the blood of the 
 Norman and Saxon kings were united. But ftill he was not firmly fettled, 
 until the affairs of the church, and the right of lay perfons granting invef- 
 titures of church livings were fettled. He intended to proceed in the fame 
 manner that his father and brother had done. He accordingly named 
 perfons to the vacant bifhopricks, and recalled Anfelm, archbifhop of Can- 
 terbury, who had lived in exile during the latter part of William's reign, 
 on account of the then famous difpute of lay inveftitures. But Anfelm, 
 adhering to the canons of a council held at Rome, refufed to confecrate 
 the bifhops named by the king, and alfo to do him homage for the tem- 
 poralities of his own fee, which the king required before he gave him pof- 
 fefTion. 
 
 Henry, afraid of detaching from himfelf, and attaching to his brother 
 Robert, the pope and fo powerful a body as the bulk of the clergy, with 
 fo popular and high fpirited a prieft at their head, was obliged ta propofe 
 an expedient, that he Ihould fend ambaffadors to the pope, to reprcfent 
 that thefe canons were contrary to the antient law and cuftoms of the na- 
 tion, and to endeavour to obtain a difpenfation for not complpng with the 
 canons ; and that, in the mean time, Anfelm might enter into the tempo- 
 ralities of his fee. This propofal was accepted. But, though, the king's 
 defiring to do that by difpenfation, which he had a right to do by law, was 
 tacitly giving up his caufe, the pope knew his own ftrength, and Henry's 
 v/eaknefs too well, to grant this favour. He infifled on the canons being 
 executed, which produced another quarrel between the king and archbi- 
 fhop. The archbifhop, attended by other bifhops his adherents, went to 
 Rome to complain. The king fent new ambalTadors, but all in vain. The 
 pope proceeded to threaten excommunication, which, in thofc days of fu- 
 perflition, would have tumbled Henry from the throne, fo he was obliged, 
 to fubmit, and come to a compofition. He renounced the nomination and 
 invcftiture per annulum & baculum, reftored the free clcdion of bifhops and 
 
 abbots
 
 Lect. 30. L A W S OF E N G L A N D. 283 
 
 abbots to the chapters and convents, which, as the pope was judge of the 
 validity of fuch eleftions, was, In effeft, almofl: giving them to him ; and. In 
 acknowledgment of his antient right of patronage, was allowed the cufto- 
 dy of the temporalities during the vacancy ; was allowed to give the congi 
 d'elire, or licenfe to proceed to eleftion, without which they could not 
 eleft, and was allowed to receive homage from the eleft, upon the reftitu- 
 tion of the temporalities. 
 
 Thus the pope gratified the king with the fhadow, and gained to him* 
 felf and the church the fubflance, and thus, at this time ended, that con- 
 tcft in England, which had coft fo many thoufand lives abroad, between 
 the pope and emperors. Henry, however, retained a confiderable influ- 
 ence In the eleftions, for before he iffued his conge d'elire, he generally 
 convened his nobles and prelates, and with them recommended a proper 
 perfon, who generally was chofen ; and this the pope, for the prefent, fuf- 
 fered to pafsf. 
 
 T HAVE little elfe to obferve touching the laws in this reign, favc what 
 pertains to the celibacy of the clergy. The popes, aiming at detaching the 
 clergy entirely from fecular interefts, had made many canons agalnft their 
 marrying, and all the eloquence of fome centuries had been emploj'ed in 
 recommending celibacy. Thefe canons, however-^ had not their full effed: 
 in England ; for very many of the fecukr clergy were ftill manned. An- 
 felm, in a fynod he aflembled, enafted a canon againfl: thfem, command- 
 ing them to difa:ifs their wives, upon pain of fufpenfion, and excommuni- 
 cation, if they prefumed to continue to officiate. Cardinal de Crema was 
 afterwards fent legate by the pope to England, where, in a general affem- 
 bly of the clergy, he re-enacted the canons agalnft their marriages, and 
 prefiding in a lofty throne, uttered a moft furious declamation agalnft fuch 
 a fmful pradice, declaring it a horrid abomination, that priefts fhould rife 
 from the arms of a {trumpet, and coTifecrate the body of Chrift. And 
 yet the hiilorians affure us, that, after confecrating the eucharift in that af- 
 fembly, he was found that very niglit in the flews of Southwark, in bed 
 
 N n 2 with 
 
 f Carte ; and Rennet's hiftoriansv
 
 a84 LECTURES on the Lect. 30. 
 
 with a proftitute ; which made him fo afliamed, that he ftole privately out 
 of England f. 
 
 Henry, tliough he had fubdued Normandy, and kept his brother Ro- 
 bert in prifon, was not witliout uneafinefs as to the fucceffion to his domini- 
 ons ; for Robert's fon was an accompliflied prince, and protefted by the 
 king of France, whereas his own bore but a worthlcfs charader. However, 
 to fecure the fucceffion to him, he affembled the barons of Normandy in 
 Normandy, and thofe of England in England, and prevailed on them to 
 take the oath of allegiance to him as fuch. But he being foon after drown- 
 ed, the king, in hopes of male iffue, took a fecond wife, and after three 
 years fruitlefs expedation, 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 fucceffor. But one of the fteps he took for fe- 
 curing the throne to her, in facl, defeated his fcheme. He kncAv that a 
 woman had never yet fat on an European throne, that Spain, which was 
 the only nation that admitted perfons to reign in the right of females, had 
 never fuffered the female herfelf, but always fet up her fon, if he was of a 
 competent age ; if not, her hufband. As to the circumftances of his own 
 family, his grandfon was an infant, and neither he nor his daughter had 
 confidence in her hufband. He knew that this oath was taken againfl the 
 general bent of his people, and that little dependance could be had on it 
 when he was gone, fo eafy was it to get abfolution. His chief dependance 
 was on the power and influence of his natural fon Robert, who, indeed, 
 did not difappoint him, and of his nephew Stephen, and of his brother Ro- 
 ger, bifliop of Salifbury, on all of .whom he heaped v?ealth and honours. 
 
 Stephen, thus advanced, began to lift his eyes to the crown. He, as 
 
 well as his coufm Maud, was a grandchild of the Conqueror, and defcended 
 
 from the Saxon kings ; and he had the perfonal advantage of being a male, 
 
 and bearing an extraordinary good charafter. By his ability and generofi- 
 
 ty he had become exceedingly popular, and his brother Roger fecured the 
 
 clergy in his intereft. Immediately on his uncle's death, he feized histrea- 
 
 fure, which he employed as Henry had done William's, and having fpread 
 
 a report that Henry, on his death bed, had difinhcrited Maud, and made 
 
 hiiu. 
 t Kennet's liiftorians, Hume, vol. i. p. 243.
 
 Lect. 30. L A W S OF E N G L A N D. 283 
 
 him his heir, he was crowned in a very thin aflembly of barons. Senfible 
 of his weaknefs, he immediately convoked a parliament at Oxford, where, 
 of his own motion, he fwore, not only to rule with equity, but that he 
 would not retain vacant benefices long in his hands, that he would fuc 
 none for trefpafling in his forefts, that he would disforefl: all fuch as had 
 been made by the late king, and abolifli the odious tax of Danegdt ; con- 
 ceffions, which, with the pope's approbation of his title, fo fatisfied the 
 people, that all the lords and prelates who favoured Maud, and had kept 
 aloof, and among them Robert her brother, came in, and fwore allegiance to 
 him as long as he kept thefe engagements 5 from which conditional oath they 
 Gxpeded he would foon releafe them, and indeed they did all- they could 
 to provoke him to it. This bait taking, and he having difobliged his bro- 
 ther and the clergy, Maud's friends rofe in her favour j and made the 
 kingdom for many years a field of blood f .. 
 
 In one of thefe battles Stephen was taken, and Maud was univerfally ac- 
 knowledged y but her infufferable haughtinefs, her inflexible feverity to her 
 captive, and her haughty refufal of the city of London's requefl, to miti- 
 gate her father's laws, and reftore the Saxon, fo alienated the people from 
 her, that fhe was forced to fly from London, and arms were again taken 
 up for Stephen. Her brother, who was the foul of her caufe, being foou 
 after taken prifoner, was exchanged for Stephen, and he dying foon after, 
 Maud was forced to leave the kingdom to her competitor. However, Ste- 
 phen continuing flill embroiled with the clergy, her fon Henry, in a few 
 years after, invaded England, and was joined by multitudes ; but fome 
 noblemen, who loved their country, mediated a peace, and at lall efi'ecled 
 it on the following terms ; that Stephen fhould reign during Hfe ; that 
 Henry fliould fucceed him, and receive hoftages at the prefent for the de- 
 livery of the king's caftles to him on Stphen's death ; and that, in the in- 
 terim, he fliould be confulted with on all die great affairs of the kingdom ;. 
 and this agreement was ratified by the oaths of all the nobility of both fides. 
 In this treaty no mention was made of Maud's title, though fhe was li- 
 ving |. 
 
 t Bacon, hift. and polit. difc. p. 103, Src. Carte, vol, I. p. 3:25. et feq. 
 ^ Kennet's hiflorians. 
 
 LECTURE
 
 286 LECTURES on the Lect. 31. 
 
 LECTURE XXXI. 
 
 Henry II. fuccccds to the croivn — The reformation of abufes — Alterations intr«' 
 duced into the Englifh La^o — The commutation offervices into money — EfcU' 
 age or Scuiage — Reliefs — Affixes of novel diffeifin^ and other ajfizes. 
 
 UPON Stephen's death, Henry the Second fucceeded, according to the 
 fettlement of the cro^vn before made, and came to the pofleffion of the 
 kingdom with greater advantages than mod kings ever did. He was in 
 the flower of youth, had an agreeable perfon, and had already given the 
 moft convincing proofs both of wifdom and valour. He was by far the 
 moft powerful prince of his time : For, befidcs England, which when uni- 
 ted to its king in afiedtion, was, by the greatnefs of its royal demefnes, 
 and the number of knights fees, incomparably the mightiefl ftate in Eu- 
 rope, in proportion to its extent ; he had in France, where he was but a 
 vaffal, greater territories than the king of France himfelf. In him were 
 united three great fees, to each of which belonged feveral great dependan- 
 cies ; Anjou, which came from his father ; Normandy from his mother, 
 and Guienne by his wife. And, from the very firft fteps he took on com- 
 ing to the throne, his fubjefts had good foundation to hope that this great 
 power would be principally exerted to make them happy. The whole 
 reign of Stephen, until the laft pacification, had been a fcene of difmal 
 confufion, in which every lord of a caille tyrannized at pleafure, during 
 the competition for the crown ; and though, from the time of the fettle- 
 ment of peace, Stephen publifhed edifts to reftrain violence and rapine, 
 and made a progrefs through the kingdom, in order to re-eflablifh juflice 
 and order, he hved not long enough to fee his good intentions anfwered, 
 but left the work to be accompliflied by his fucceflbr. 
 
 The firfl thing Henry did was to difcharge a multitude of foreigners, 
 vv'hom Stephen kept in arms during his whole reign. His next care was 
 the reformation of the coin, which had been greatly debafed. He coined 
 
 money
 
 Lect. 31. LAWS OF EN GLAND. zZy 
 
 money of the due weight and fincnefs, and then cried down the adulterated 
 which had, in the late reign, been counterfeited by the Jews, and the ma- 
 ny petty tyrants in their caftles. Thefe to humble, and make amefnable 
 to law, was his next concern. As to the caftles in private hands, that had 
 been erefted in his grandfather's time, or before, he meddled not with 
 them ; but all that had been built during Stephen's reign, either by per- 
 miffion or connivance, through the weaknefs of that prince, which were 
 the great nulfances, he iffued a proclamation for demolifliing, except fomc 
 few, which, from their convenient fituation, he chofe to keep in his own 
 hands, for the defence of the realm. And, laftly, as the crown had been 
 greatly impoveriflied by the alienations Stephen had, through necefTity, 
 been forced to make, he ifTued another, to renounce all the antient demef- 
 nes that had been fo alienated, that he might be enabled to fupport his dig- 
 nity without loading his people, except on extraordinary occaficnsf. 
 
 These reformations, however juft m themfelves, or agreeable to the 
 fubjeft, he did not proceed on merely by his own authority. He had deli- 
 berated with the nobles, who attended at his coronation, concerning them, 
 and had their approbation ; and though there were no afts of parliament 
 made at that time, yet, as form in thofe days was lefs minded than fub- 
 ftance, thefe edids had the obedience of laws immediately paid them by all, 
 except fome mutinous noblemen, who flill held their caftles in a ftate of 
 defence. Having taken thefe prudent fteps, he formed his privy council 
 of the bcft and wifeft men of the nation, and by their advice fummoned z. 
 regular parliament, wherein many good regulations were made. The laws 
 of the Confeffor, as amended by Henry the Firft:, were rc-eftabliflied, and 
 every thing, both in church and ftate, fettled on the footing they were in 
 the time of that king. Being thus armed with a full parliamentary authorir- 
 ty, he marched againft his mutinous nobles, whom be Ibon brought to 
 fubmit ; and demolilhed their caftles.. 
 
 In another parliament, in order to fettle the fucceflion, contefts about 
 which had had fatal eft'efts ever fince the death of the Conqueror, he pre- 
 vailed on his fubjefts to take the oath of allegiance, to his two fons, though 
 both in their infancy, firft to William, then, to Henry, as his fucceffors. 
 
 And 
 f, Hale^ bifl. ?oni. law, chap. 7. Carte.
 
 c88 L E C T U R E S ON the Lect. 31. 
 
 And having taken all thefe wife and jufl: meafures, for the peace and fecu- 
 rity of his kingdom, he repaired to. his foreign dominions ; but his tran- 
 faflions there, or even at home, that do not relate to the laws or conftitu- 
 tion, are not within the compafs of the defign of thcfe leftures. Let it fuf- 
 fice to fay, that he made as good laws for, and was as good a fovereign to, 
 his French as his Englifh fubjefts. 
 
 In his reign many were the alterations introduced into the Englifh law, 
 moft of them, no doubt, by aft of parliament, though the records of them 
 are loft. For, in the beginning of his reign, as I obferved, he enafted in 
 parliament the laws of Henry the Firft ; and yet from the book of Glan- 
 ville, written in the latter end of his reign, it is plain there were great 
 changes, and the law was very much brought back to what it was in the 
 Conqueror's reign ; nay, in one refped, to what it was in Rufus's, I mean 
 reliefs, the law of which I fhall mention hereafter. Many likewife were the 
 regulations he introduced of his own authority, which in the event proved 
 very beneficial to his fubjccts. 
 
 The firft I fhall take notice of was his commutation of the fervices due 
 -of his tenants in demcfne, which formerly were paid in provifions and other 
 neceffaries, into a certain fum of money, adequate to the then ufual price. 
 His grandfather Henry did fomewhat of this kind, but he it was that efta- 
 blifhed.and fixed it ; and his example was followed by his lords, fo that, 
 from this time, rents became generally paid in certain yearly fums of mo- 
 ney, inftead of corn and provifions. What advantage the fucceffors of 
 thefe focage tenants gained thereby will be evident, if we confider the price 
 of things at or about that time. In the reign of Henry the Firft, we are 
 told, the current price of feveral commodities, which, however, muft be 
 trebled when reduced to the money of our ftandard, were as follows : That 
 of a fat ox five fhillings, of our money fifteen ; a wether four-pence, of 
 ours, a (hilling ; wheat to ferve an hundred men with bread for one meal, 
 a ftiilling, of ours, three flnllings ; a ration for twenty horfes for a day, 
 four-pence, of our money a fliilling. And although we fliould allow that, 
 in Henry the Second's time, the prices of things were even doubled, which 
 is impoftiblc to be admitted, it is eafy to fee how greatly the future focage 
 
 tenants.
 
 Lect. 31- LAWS OF ENGLAND. 289 
 
 tenants paying the fame nominal rent, the value of which was daily decrea- 
 fmg, rofe in wealth and importance. Beiides, they were greatly eafed in 
 point of the expence and trouble of carrying the provifions to the king's 
 court, to which before they were obliged, wherever he refided in England ; 
 whereas, now, they had only to carry, or fend by a proper meffenger, the 
 money to be accepted as an eq^uivalent f. 
 
 His military tenants he eafed in a much more confiderable manner. By 
 the law of the Conqueror, every military man was obliged to ferve at his 
 own expence forty days as well abroad, where the king's occafions required, 
 as in England, and in perfon too, unlefs notorioufly incapable ; in v/hich 
 cafe they were obliged to find each a deputy, and if they failed herein, by 
 the flriftnefs of the feudal law, they forfeited their lands, or rather, as the 
 law was ufed in England, compounded at the king's pleafure ; which, if he 
 was very avaricious, came pretty near the fame thing. This was a mife- 
 rable heavy grievance. For what opprellion mufl; it be for a knight of Nor- 
 thumberland, who had, perhaps, but a fmgle fee, to tranfport himfelf, it 
 may be, to Guienne, to fervc forty days, and then return ? Nay, it was in- 
 convenient to the king himfelf; for as France, where the fcene of the king 
 of England's wars generally lay, was every where full of fortifications, it 
 was fcarce poffible to finilh a war in forty days, however great the humour 
 of that age was for pitched battles ; the confequence of which was, that, 
 after that time, the king was ever in danger of being left in the midft of a, 
 compaign, with an inferior army. 
 
 Henry then, fenfible of thefe inconveniencies, both to himfelf and his. 
 iTibjefts, devifed e/ci/age, or fciitage, in the fourth year of his reign, upon' 
 account of his war with Touloufe upon which his wife had fome pretenfi- 
 ons. He, knowing that this war required but a fmall part of his force, did, 
 both in Normandy and England, pubhfli, that fuch of his military tenants 
 as would before-hand pay a certain fum of money, fliould be excufed from 
 ferving, either in perfon or by deputy ; and this fum, which was rated by 
 him extremely moderately, and was, therefore, generally paid by his vafl'als, 
 rather than ferve in fo remote a place, he employed in hiring mercenary 
 foldiers of fortune, of whom there was plenty on the continent ; and thofe, 
 
 O o by 
 
 f Ger.vaf.. de Tilbury, dial, de Scaccario,.
 
 ipo LECTURES on the Lect. 31. 
 
 by their engagement, were obliged to ferve during the continuance of the 
 war |. 
 
 That his fole view, in this new projeft, was the eafe of his people, and 
 the better profecution of his wars, and not the deprelhng the military fpirit 
 of his fubjects, appears from hence ; that thofe who were qualified, and 
 chofe to ferve in perfon, he careffed, and encouraged by all means poflible ; 
 that he never brought a fingle mercenary into England, when he had wars 
 with Wales or Scotland, but infilled on his fubjeds perfonal fervice ; nay, 
 that he never kept thofe mercenaries on foot in his foreign dominions, but 
 difmiffed them as foon as the war was at an end. And this oi faitagc was 
 the general method he followed in his fubfequent wars in France and Ire- 
 land. What wonder is it then, that this prince was univerfally beloved by 
 his people of all ranks ? though, as the befh inftitutions are liable to be cor- 
 rupted, this very fcutage, that he devifed for public eafe, was turned into an 
 heavy engine of opprefTion by his fon 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 Firft, which 
 v/as reftored by Henry the Firfl, was certain, to all lords and knights, ac- 
 cording to their degrees, and was paid in horfes and arms ; but now the hu- 
 mour of the times being that every thing fhould be paid in money, the re- 
 lief of a knight's fee was fettled at one hundred {hillings, the fourth part of 
 its then computed yearly value, and which I fuppofe was about the price of 
 the armour, a knight was before to pay ; and henceforward the arms of the 
 deceafed defcended to the heir, and confcquently the coats of arms blazon- 
 ed thereon became hereditary. But the reliefs of barons, or earls, were not 
 fettled at this time, but remained arbitrary, as Glanville informs us. De ha- 
 roniis 'b' cojnitntibus nihil certum eji ftatutum, quia juxla voluntatem et miferi' 
 rordiam dotnini regis folent baronia capitales de releviis fuis domino regifatisfa' 
 cere |. 
 
 From the woxAflatutum I take it for granted this change of reliefs into 
 
 money was by a£t of parliament. Indeed, how could it be otherwife ; but, 
 
 then, 
 f Madox, liifb. of Excheq. ch. 16. 
 
 % Lib. 9. c. ].
 
 Lect. 31. LAWS OF ENGLAND. 291 
 
 then, the niort: furprifing ch-cumftance is, that the great lords, who, in that 
 age principally compofed the parliament, fhould take care in this material 
 point, of the knights, the lower military tenants, and leave themfelves at the 
 mercy of the crown. I fliall venture on conjefture to affign the reafon. 
 The Conqueror fettled the reliefs of earls and barons at a certainty, becaufe 
 he had fixed the number of knights fees they fhould contain ; twenty to an 
 earldom, and thirteen and two-thirds to a barony ; but by the time of Hen- 
 ry the Second, the number of knights fees contained in them might be 
 greater or lefs. For inflance, if an earl died, and left two daughters, his 
 twenty fees would be divided equally between them ; but the dignity was 
 to go to the hufband of that daughter the king chofe. Now it would be 
 hard that he fliould pay for ten knights fees, merely becaufe he had the 
 fame title, as much as the predeceflbr paid for twenty. Again, in the new 
 created honours, it feems very probable, from many circumflances, that 
 an earldom might be erefted but with fifteen knights fees, or, perhaps, with 
 twenty-five. The certainty of the quantum of land an earldom or barony 
 fhould confift of not being fettled, I iniagine, was the reafon that the quan- 
 tum of rehef was not exprefsly determined, though, by fixing that of a 
 knight's fee, the reafonable relief might, in any cafe be eafily determined. 
 And that Henry, and his fon R.ichard,, exercifed that difcretion the law left 
 JcR than in this equitable manner, we may infer from there being no com- 
 plaints, as to reliefs, from the earls or barons, during their reigns^ but 
 John revived the arbitrary relief of William RufuS, to the great oppreflion 
 of his nobles, until he was reflrained by Ma^na Charta. 
 
 To no other reign than this, I think, can be afcribed, fo properly, the 
 invention oi ajjlzes of novel diffeifm, and the other ajjlzes, for obtaining pof- 
 feffion of lands. By the flriclnefs of the very antient feudal law, if a man 
 had been dilleized, that is, turned out of poflTeirion, if he did not enter, and 
 regain his poffeffion, or, at leaft, claim it within a year and a day, he loft 
 all right ; for, if he was a focage tenant, the poffeiTor had, within that time, 
 paid a rent to his lord, and been by him, who was fuppofed the beft judge, 
 allowed to be the rightful tenant ; and, if he was a military one, it was pro- 
 bable, inthofe ages of perpetual war, he had actually ferved, at leaft he had 
 kept himfelf in conftant readinefs if called upon. But the limitation of a 
 year and day being foon found too ihort, it was after extended to five years ; 
 
 O o. 3 tlien.
 
 29^ LECTURES on the Lect. 31 = 
 
 then, to the tune of the poffeffion of the diffeizor hhnfelf, namely till he had 
 either died or aliened it. But upon the alienee, or heir of the difleizor, he 
 could not .enter, becaufe they came in honeftly, by a fair title, and were 
 guilty of no wrong. However, this antient law, that gave no remedy but 
 by entry, during the feizor's pofleilion, was ftill too fevere ; for the dijfeizor 
 might alien, or die fuddenly, before the dijfeizee could enter, or he might 
 hold the poffeffion mmiu forti, fo that the diffeizee might not be flrong 
 enough to enter and recover his poffeffion f . 
 
 To remedy thefe evils, and to prevent bloodflied, the law provided for 
 the diffeizee his right of adtion, either againft the diffeizor himfelf, or his 
 heir or affigns, and, in which, upon fliewing his right to the land, he fliould 
 be reftored to his poffeffion by the king's officer, the fheriff, with the pojfc of 
 the county. But ftill this attion was hitherto but the writ of right, which 
 meddled not with the unlawful poffeffion, only with the abfolute right to the 
 land, and this aftion, if brought in the curia regis, where only impartial 
 juftice could be expefled ; was very dilatory. It was dangerous alfo, as the 
 tenant in poffeffion might offer battle. In this reign, then, were thek pof- 
 Jeffury aBions introduced, for the determining the point of poffeffion, leaving 
 the right of propriety as it was. It was advantageous likev/ife to the fub- 
 jeft, both diffeizor and diffeizee, as it gave him two trials for his lands ; for 
 the writ of right when once determined was final and conclufive \. 
 
 This diftinftion between the right of pojfejjion, and the right of propriety 
 was borrowed from the civil law, which was firft introduced in the late 
 reign, and was now, and for fome time forward, ftudied with great affidui- 
 ty by the Engliffi, as appears from the many long tranfcripts from it to be 
 found in the books of our antient lawyers. There they found the diftinc- 
 tion of aBions poffeffory and petitory ; poffeffory when a man had been notoriouf- 
 ly in poffeffion, and reputed the owner, and was put out by another of his 
 own authority. The public peace was concerned to protedt the poffeffion 
 of the reputed owner, and not to let him fuffer the lofs thereof while he 
 was fuing his petitory aftion, that is on the mere right, which the other un- 
 doubtedly would delay, by all the arts and fliifts he could invent. The pro- 
 ceedings, 
 
 f Coke on Littleton, fol. 153. 
 X Ibid.
 
 Lect. 31. LAWS OF ENGLAND. 29-; 
 
 ceedings, therefore, in pofTeflbry aftions were fumniary and expeditious ; 
 for they only regarded the poflcfllon, and did not determine the abfolutc 
 right : fo tliere was no conclufive wrong done to either party, let the mat- 
 ter of poflefTion be decided how it would ; for he that failed might bring his 
 petitory adion for the right. 
 
 An ajffze in our law was a very fumniary ai^ion. Brafton, who lived an 
 hundred years after, calls it novum ir fejlinum remedium, and indeed {o fej}i' 
 vum was it, that, in its proceedings, it feems to depart from the general rules 
 of reafon and all laws. For it is a maxim of all laws, except in fome few 
 very extraordinary cafes, that no proofs are to be taken till an iffue \% joined, 
 as our law calls it, or till there is a contcjl, as the civil law expreffeth it ; that 
 is, till it is fettled what is the matter to be proved, or till there is fome- 
 thing affirmed on one fide, and denied on the other, upon which the merits 
 of the caufe turn. If there be no difagreement about fa^s, but the quefti- 
 on is mere, matter of law, the judges, who are befl: acquainted therewith, 
 are, by our law to determine. If the queflion be matters of fad, or faAs 
 mixed with law, the jury, aflifted with the judges, are to determine; though 
 if they doubt about the point of law, they may find the fa£ts fpecially, and 
 leave the law arifing thereon to the judges, which is what we call a fpecial 
 •verdid:. No jury, therefore, ought to have been fummoned till the defen- 
 dant appeared, and iffue was joined, fo that it was known what was the mat- 
 ter to be tried ; and this is the general rule. But, for the fpeedy fettling 
 and quitting poffeffions, the aflize is an exception thereto, as appears from 
 the writ of ajjlze directed to the flieriff. For, befides giving notice to the 
 defendant, or tenant, as he is called in this adion (becaufe he is in poffef- 
 fion) the fheriffis immediately to funimon a jury or affize, as it is called up- 
 on this occafion, who fhall diredly go to the place, and make themfclves 
 judges, by their view, of the nature, quality, and quantity of the land, or 
 thing demanded, and inform themfelves, by all the ways they bed may, of 
 the former poffeffion of the demandant, and how he came to lofe it. They 
 are then to appear the fame day with the demandant and tenant, and, when 
 iflue is joined between them, are to determine the matter according to their 
 ■own prior knowledge, and the evidence then given before them. I obferv- 
 ed that this adlionis not final. A brings an affize againft B. If judgment 
 be given for A, B may bring his writ of right, if he has the right of proprie- 
 ty,
 
 294 LECTURES on the Lect. 31. 
 
 ty, and recover, and fo e contra. But though B cannot deny his dlfleizing 
 A, he may ftill defend hlmfelf. The words of the writ are injujle, ir fine 
 judicio, diffcizivit. He may therefore fliew that he diffeized A, judly, that 
 is, that he had a right of entry. As, fuppofe B was firfl in pofleffion, A 
 difleizes him ; then B, as he lawfully may, diffeizes A, A fhall not recover. 
 But if B had been in poiTclTion, and A's father had diffeized him, and died, 
 fo that the land has come to A, who is innocent, B, not entering in the fa- 
 ther's life-time, has loft his right of poffeffion. It is fo in A. Now if B dif- 
 feizes A, the fon, though he had ever fo good a right to the land, A (hall 
 recover the poiTeirion ; for B had no right to enter, though he had a right 
 to recover the poffeffion he was deprived of by A's father, by bringing an 
 a(Elion. Wherever a man comes innocently to a poifeffion, the law will de- 
 fend that poffeffion, until it is proved that he hath no good right to it |. 
 
 -\ Brafton, lib. 4. 
 
 LECTURE
 
 Lect. 32. LAWS OF E N G L A N D. ^ 294 
 
 L ;E C T U R E XXXII. 
 
 The injlitutlon of Judges Itinerant, or Jujlices in Eyre — The advantages at- 
 tendhig it — The jiirifdiflion of thefe Judges — Their circuits — The prefent 
 form of tranfading the county bufinefs — The divifion of the Curia Regis into 
 four courts — The jiirifdidion of the court of King's Bench. 
 
 THE greatefl; and moft beneficial ftep taken by Henry the Second, was 
 the inflitution o( Judges itineratit, or jujiices in eyre, as they were cal- 
 l led, from the Norman word eyre, equivalent to, and derived from the Latin 
 iter. I obferved before, that almofl; all bufinefles relative to the adminiflra- 
 tion of juftice were, in the Saxon times, tranfafted in the county, and hun- 
 dred, that the leet and manor courts were held in the county, near the fui- 
 tors doors, and that none but the caufes of the great lords, or fuch as were 
 of difficulty, were handled in the curia ?-egis. Under the reign of the Con- 
 queror, I took notice, that the adminiftration of other caufes was facilitated 
 in the king's great court, and that, confequently, the bufinefs of the inferior 
 courts began to decay ; and I laid open the motives William had for that 
 condu£t, the introduftlon of the Norman, and fupprefiion of the Saxon law. 
 But the fcheme fucceeded in the fame manner as his other one did, of root- 
 ing out the Englifh language, and introducing his own in lieu thereof. As 
 this produced a new language, from the mixture of both, fo that caufed the 
 Englifh law to confifl; henceforward partly of feudal, partly of old Saxon 
 cuftoms. However, the caufes of moft perfons were flill determined in the 
 inferior courts ; for they were but few who were able to undergo the trouble 
 and expence of fuing in the curia regis, efpecially, as all perfons, whofe cau- 
 fes did not properly belong to the cognizance of that court, were obliged to 
 pay a fine for declining the proper jurifdiftion, and for having licence to plead 
 in the fuperior |, 
 
 But by this time the decifions of thofe courts, where the freeholders 
 were judges both of law and fa£t, had fallen into great and jufl: difrepute, 
 
 had 
 
 f Hale's hift. Com. Law, chap. 7. Dugdale, orig. jiirid, p. 2 7. Hoveden, p. 590.
 
 296 L E C T U R E S ON the Lect. 32. 
 
 liad occafioned many mifchiefs, and were likely to produce many more. The 
 reafons, as they are delivered -by lord Hale, were principally three : Firft, 
 the ignorance of the judges in the law: for as the freeholders in general 
 were Saxons, they mull; be fuppofed to be entirely Ignorant of the feudal 
 law, which was now introduced with refpeft 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 cuftoms. Nay, the Norman freeholders could be of little fervice 
 in this point, confiderlng their illiteracy, their education being confined 
 folely to arms, as alfo their frequent abfence alnioll every year to attend 
 their lords in war. With refpect to the Saxon law alfo, it could be little 
 expeded that it fliould be regularly obferved, now that the clergy, who only 
 were acquainted with it, were removed, and none of the judges could pof- 
 fibly know more than an illiterate juryman at this day, who could neither 
 read nor write, might be able to pick up by attending a court held once a 
 month. How inadequate fuch a knowledge would be, even In thofe times, 
 when the laws were comparatively few, need not be enlarged on f . 
 
 It is true, fome remedies were applied to obviate the bad confequenccs 
 of this ignorance ; but they were very ineftedual. It was required that the 
 flieriif, who prefided, fhould have fome fklll In the laws, but notwithftand- 
 ing, he was feldom found to have any ; and if he had, it was not very pro- 
 bable, as he was a Norman, that the jury would pay much regard to his di- 
 rcdtion In giving their verdifts. As a further remedy to this ignorance, by 
 the laws of Henry the Firft, the bifliop, the barons, and the great men of the 
 court, that Is, the king's immediate tenants, were ordered to attend. But 
 the bifliop, in obedience to the canons, applied hlmfelf folely to his ecclefi- 
 aftlcal jurifdictlon ; and the others were generally in the king's fervice ; fo 
 that they could but feldom attend, and if they did, they could do but little 
 fervice, being almoft all bred to nothing but the fword, and as Illiterate as 
 any other fet of men. 
 
 The next mifchief, and which flowed from the former, was, that this bred 
 
 great variety of laws In the feveral counties, whereas the intention of the 
 
 ConfeflTor in his compilation, and of his fucceflbrs afterwards In theirs, was 
 
 to have one uniform certain law, common to the whole kingdom. But 
 
 the, 
 t Hale's hift. Com. Law, ch. 7;
 
 Lect. 32. LAWS OF ENGLAND. 297 
 
 the decifions, or judgments, being made by divers courts, and by fcvcral 
 independent judges, who had no common interefl, or communication to- 
 gether touching the laws, in procefs of time, every feveral county was 
 found to have feveral laws, cufloms, rules, and forms of proceeding; 
 which is always the effed of feveral independent judicatories, adminiftered 
 by feveral judges. And, indeed, this I look upon to be one of the great 
 caufes of very many local cuftoms in many parts of England, diflereut 
 from, and derogatory to, the general common law.. 
 
 But the third and greatefl; evil, was the frequent injuftlce of the judg- 
 ments given in thofe petty courts, and every bufmefs of any moment being 
 carried by parties and faftions. The conteft about the crown had been 
 carried on with fuch violence, that one half of the people, all over the 
 kingdom, were profefl'ed enemies to the other ; and though both fides, 
 wearied with war, came into the expedient of Henry's fucceflion, and he 
 behaved fo that there were no faftions againft him, yet as to individuals, 
 the fenfe of pad injuries, and the rancour arifing from thence, ftill re- 
 mained. For the freeholders being the judges, and thefe converfmg with 
 one another, and thofe almoft entirely of their own party ; and being like- 
 wife much under the influence of the lords, every one that had a fuit there 
 fped according as he could make parties ; and the men of great power and 
 interell in the county did eafily overthrov/ others in their own caufes, or 
 in fuch wherein they were interefled, either by relation, tenure, fervice,. 
 dependance, or application. True it is, the law provided a remedy for 
 falfe judgments given in thefe courts, by a writ of fa If e judgment before the 
 king, or his chief juftice ; and in cafe the judgment given in the county 
 court was found to be fuch, all the fuitors were confiderably amerced. Yet 
 this was infufficient for the purpofe : For, firft, it was too heavy and expen- 
 five for many that were aggrieved ; next, it was hard to amerce all for the 
 fault of a few, viz. the jury, who gave the verdidt ; and the amercement, 
 though fometimes very fevere, being equally affefled, on all the freehold- 
 ers, was not a fufficient check upon the injuftice of fome juries f. 
 
 The king therefore took a more effeftual courfe ; and, in his twenty- 
 fecond year, by advice of his- parliament, held at Northampton, inftituted 
 
 P p ' jtiflices 
 
 \ Fltzherbert, Nat. brev. p. 41,
 
 29S L E C T U R E S ON thk Lect. 32. 
 
 jujiices itinerant. He divided the kingdom into fix circuits, and to every 
 circuit allotted three judges, men knowing and experienced in the laws of 
 the realm, to prefide in fuch cafes as were of confequence, and to direft 
 the juries in all matters of law. They were principally empowered to try 
 affizes, that is, as I explained in my lad lecture, the rights of poffeflion, 
 which had been notorioufly invaded in the laft reign ; and which, from the 
 continuance of the old parties, could not even, in this reign, be fairly 
 determined in the inferior courts f . 
 
 Not that this was their fole bufinefs ; for they had in their commiffions 
 power to enquire into feveral other matters, fuch, particularly, as the king 
 found, by the advice he had received from the feveral counties, to be evils 
 not likely to be remedied in the county courts. Thefe were, before every 
 commiflion for juftices itinerant in eyre went out, digefted under certain 
 articles, called Capitula Itineris, or The chief heads of the eyre or circuit, 
 which fpecified what aftions they were to deal with. Thefe were, in 
 general (for the commiffions varied at different times, being fometimes 
 more fometimes lefs extenfive) civil and criminal adions, happening be- 
 tween party and party ; actions brought at the fuit of the crown, either for 
 public crimes, or the ufurpation of liberties, franchifes, or jurifdiftion from 
 the crown, which had been very frequent in the former times of confufion ; 
 and alfo the efcheats of the king. 
 
 The thing I find moft remarkable is, tliat, in thefe diftributions of Eng- 
 land into circuits, are omitted fome counties, (I do not mean Middlefex, 
 where the curia regis fat, or Chefter, which was a county palatine, for they 
 of courfe were not to be included) as particularly Lincoln, in the fccond 
 eyre; alfo York, in the fecond eyre, is but one county, whereas, in the ^ 
 firft, it is two, York and Richmond ; as in Lancafliire alfo, Lancafter, and 
 Copeland ; and Rutland is omitted in both. All which Ihews, that the 
 limits and divifions of all the counties were not afcertained with precifion at 
 that time. The fccond eyre was inftituted three years after the firft, by 
 parliament alfo held at Windfor, and in this there were but four circuits. 
 
 After 
 
 t Dugdale, orig. jurid. chap. 20. Madox, hift. of Exchequer, chap. 3. 5 lo. 
 Brat^on, lib. 3. chap. 10, ii. M. Pari":, an. 1176.
 
 Lect. 32. LAWS OF ENGLAND. 299 
 
 After thefe two firfl:, the king appointed the circuits, and diflributed the 
 counties at his pleafure. 
 
 The ufual times of their going was once in feven years. However, they 
 were not ftated certainly ; for fometimes, if there was a more than ordina- 
 ry complaint of want of juftice, they went every three or four years, and 
 fometimes, if there was no complaint, they were intermitted beyond feven. 
 Neither was the number of judges fent on the circuits fixed, but aherable 
 at the king's pleafure. 
 
 The determinations in thefe circuits, being under the infpeclion of men 
 of integrity and ikill, were in high ellimation, and accordingly are feveral 
 times quoted by Bradon, as being of as great authority as the decifions in 
 the curia regis ; and in confequence thereof, the bufmefs in the county 
 courts continually declined ; jullice was every day adminillered worfe in 
 them, and at length they were confined, except in fome cafes, to pleas un- 
 der forty flilllings. Nay even thefe were, upon application, eafily remove- 
 able by a writ called a pone, into the king's courts •[. 
 
 But as the hopes of obtaining juftice in the inferior courts waxed every- 
 day more faint, it was found neceflary, during the intervals of the eyres, 
 to fubflitute other courts in their place. Hence the invention oijujiiccs cf 
 djjizes, of oyer and terminer^ of goal delivery ; and the necclhty of affairs 
 afterwards obliging thefe to be fent very frequently, it was thought fit,, 
 about the end of Edward the Third's reign, to lay afide the juftices in eyre,. 
 as fuperfluous, fince thefe other did tJieir bufinefs, except as to pleas of the 
 king's forefts, where the eyres were continued. And, in procefs of time, 
 to prevent the enormous expence of bringing juries up to the king's 
 courts, the juftices of the nljl prius were inllituted, to try iffues joined in 
 the king's courts, and; the verdiQs fo found to return to the court from 
 whence the record was brought ; which court, on the record fo found, pro- 
 ceeds to judgment. Thefe are the judges who now tranfuft the county bu- 
 finefs in their circuits, under the feveral conimilTions before-mentioned ; 
 and going regularly twice every year for that purpofe, the whole bufinefs 
 they tranfaft is, in common fpeech, called AJfix.es ; that being, in the an- 
 
 P p 2 tient 
 
 \ 4. Inftit. p. 184, 266. Hile, hill. com. law. chap. li
 
 ^oo LECTURES ON the Lect. 32. 
 
 tient times of their inilitution, the principal pari; of their employment, 
 though now fuch aftions are fcarce ever brought ; perfonal adions, which 
 may repeatedly be tried, having fuperfeded themf. 
 
 About this time, alfo, it feems that the airia regis, the bufmefs there 
 increafmg, was divided, for the more convenient difpatch thereof, into four 
 courts ; and to each its feparate jurifdiftion allotted. The exchequer, in- 
 deed, was in fome fort a feparate court before, and had its diftinQ bufmefs 
 of the province j and in it the treafurer, not the Jujiiciarha AngUa, prefid- 
 ed, as he did in the other courts. It is not impoflible that, before this time, 
 they had, in the curia regis, fet apart different days for different kinds of 
 caufes. But they were all, in one refpeft, the fame court ; becaufe they 
 had the fame judges, namely, all fuch nobles as attended the court. But 
 this being found inconvenient, as thefe great men were generally ignorant 
 in law, and bufmefs began to encreafe, it was found proper to appoint fet- 
 tled fkilful judges, and to divide the court, and appoint each part its feparate 
 jurifdiftion. However, thofe limits were not exaftly fettled, or, at leaft, 
 not exadly obferved, for fome time after : For we find in John's reign, 
 that common pleas, that is, civil fuits between party and party, and particu- 
 larly fines of lands, which are of the fame nature, were held in the King's 
 Bench ; though, on the contrary, we find no pleas of the crown tried in 
 the court of Common Pleas. I fuppofe the reafon was, that the latter be- 
 ing derived out of the former, the king's bench had a concurrent jurifdic- 
 tion with it, until reftrained by that branch of Magna Charta, Co?n?nunia 
 placita )W7i fequantur curiam nojiranu The firft of thofe courts in dignity 
 and power, efpecially while the Jujliciarius Jnglia remained, was the King's 
 Bench, though of late days the Chancery hath over-topped it. Here, as 
 the king ufed frequently, in the antient times, to fit in perfon, the king is 
 fuppofed always prefent ; which is the reafon why a blow given ip this court, 
 upon any provocation whatfoever, is punifhed with the lofs of the hand, as 
 it is done in the prefence of the king. The proper jurifdiSion of this court 
 is caufes where the king is either dire£lly or indirectly concerned, except 
 as to his revenue |. 
 
 In 
 
 ■f 2. Inftit. p. 24. et feq. 4. Inftit. p. 162. Seltlen's notes on Hengham. 
 J Dugdale, orig. jurid. chap. 1 7.
 
 Lect. 32- LAWS OF ENGLAND. 301 
 
 In all pleas of the crown therefore, that is, fults of the king to punifli 
 offences, as indidlment of treafon, felony, breach of the peace, are proper 
 fubjefts for this court. He is indiretl:ly concerned in this, that all erro- 
 neous judgments, given in the Common Pleas, or other inferior courts, 
 are here reformed ; for the king is concerned to fee jullice done to his 
 fubjefts. 
 
 Secondly, for the fame reafon, this is a proper court to grant prohibi- 
 tions to courts that exceed their jurifdidion, though this is not particular 
 to the King's Bench, but common to all the four courts. 
 
 Thirdly, it hath cognizance of all privileges and franchifes, claimed by 
 any private perfons or corporations ; and if any ufurped upon the king in 
 this refpeft, they are called in, by a quo warranto, to fiiew by what title 
 they claim fuch privileges. Likewife where any member of a corporation 
 is disfranchifed, or removed from, or difturbed in his office, here fliall he 
 be remedied. For when a king has given a franchife, he is concerned, 
 in honour and intereft, to fee that every man entitled, ftiall enjoy the be- 
 nefit of it. 
 
 Fourthly, the king is interefled in the life, limbs, and liberty of every 
 fubjeft. Therefore this is the court wherein appeals, brought by private 
 perfons, of murder, felony, and maim, fhould be tried ; and if any man 
 complains of wrongful imprifonment, this court fhall, by writ of habeas 
 corpus, have him brought into court, with the caufe of his imprifonment 
 returned ; and if the caufe is infufficient to difcharge him, or if the offence 
 he is charged with be bailable, to bail him. Nay, this court, in favour 
 of liberty, hath a power, in all cafes ; they may, if they fee proper, bail a 
 man for crimes that are not ordinarily bailable by common law. 
 
 Fifthly, they have a right to hold plea of all the trefpafles done ^7' & 
 nrniis, though brought principally for a private reparation to the party ; for 
 this a£l;ion favours of a criminal nature, and the king is entitled to a fine 
 for the breach of the peace. 
 
 Lastly, it has cognizance of all perfonal aftions brought againft per- 
 fons that have the privilege of this court. The perfons privileged are two, 
 
 firft
 
 302 LECTURES on the Lect. 32. 
 
 firfl: the officers of the court, who are fuppofed to be conflantly attendant 
 thereon, and to whom it would be inconvenient, as well as to the court, to 
 fue or be fued elfewhere ; and therefore the privilege extends to fuits 
 brought as well by, as againfl fuch officers ; fecondly, the prifoners who 
 are in the cuftody of the marfhal of the court, and who are confequently 
 not at liberty to appear in any other. Thefe therefore can only be fued 
 here; for the court will, in fuch cafe, order the prifoner up from their 
 own prifon to make his defence; and, under the colour of this rule, they 
 now, by a fiftion, make all forts of aSions fuable in this court ; for it is 
 only alledging the defendant is in the cuflody of the marflial, though in 
 fafl; he is not, and that is held fufficient to found the jurifdidtionf. 
 
 I SHALL next proceed to the jurifdifl:ion of the high court of Chancery, 
 the fecond in antlent times, but for fome ages pafl the firll court of the 
 realm. 
 
 + 4. Inrdtutc, p. 70. et feq. 
 
 L E C T IT R E
 
 Lect. 33- L A WS OF £ N G L A N D. 303 
 
 LECTURE XXXIII. 
 
 The jurifdiSllon of the high court cf chancery — The Chancellor, a irry confider- 
 able officer in the Curia Regis — The repeal cf letter! patent, imprcvidently 
 ijfiied to the detriinent of the King or thefuhje6l, a branch of the jurifdi^ion 
 of the court of chancery — The chancery, ajjiflant to the exchequer in matters 
 of the King's revenue — Other branches of the bufinefs of this court. 
 
 IN my laft lefture, having taken notice, that, in the reign of Henry the 
 Second, the curia regis and the Exchequer, which dealt with the king's 
 revenue, were diftinft courts, and that there were even traces of the Coju- 
 vion Pleas, as another court, different from the higher court, the curia regis', 
 I took occafion to treat of thefe feveral courts, and the feveral limits of 
 their jurifdiftions ; although the now general opinion be, that thefe courts 
 were not feparated till after the barons wars, that is, not until an hundred 
 years later ; which opinion, as I conceive, hath, thus far, its foundation in 
 truth, that the precife limits of their feveral jurifdiftions were not perfectly 
 afcertained, and kept diftindt till then, though the divifion had been made 
 before, that is, about the time I am now treating of. For, if it be a good 
 maxim, as my Lord Coke fays, boni judicis e/i offcium ampliare jurifdidionetn, 
 it is not to be wondered at, that, for fome time after the fcparation, the 
 Jujliciarius Anglice, who had the fole jurifdiftion in him before, fhould re- 
 tain, in many inftances, the exertion of it, where, after the feparation, the 
 matter properly belonged to another court. 
 
 The maxim, indeed, is, in my opinion, utterly falfe. For ■vX'here there 
 are feparate courts with diftinct powers, furely it is the duty of each court, 
 were it only to prevent confufion, to keep within their proper limits. How- 
 ever thus much muft be allowed in juftification of Lord Coke's maxim,-! 
 that, as it is too much the inclination of human nature, when in power, to 
 grafp at more than is properly our due, fo the judges of all courts, and of 
 all nations, have been as little exempt from this infirmity as any other fet 
 
 of
 
 304 LECTURES ON the Lect. 33. 
 
 of men. Witncfs the outrageous ufurpation upon the temporal jurifdi£lIon 
 m antient days, both by the ecclefiaftical judges in the times of the Pope's 
 grandeur, and by the judges of the conftables and admirals courts, when 
 fupported by arbitrary kings f. 
 
 The temporal judges, on the other hand, with a firmnefs highly to be 
 commended, have fuccefsfully not only refifled thefe encroachments, but, 
 by way of reprizals, have, in thefc latter days, made confiderable inroads 
 into the antiently allowed territories of thofe courts ; not to the detriment 
 of the fubjeft, I mufl confefs ; for the method of trial by the common law, 
 is certainly preferable to theirs. But the common law courts have not fa- 
 tisfied themfelves with extending their jurifdiftion, in derogation of thofe 
 courts, which they juftly looked on, in thofe days, as enemies to them, 
 and to the laws and confliitution of the kingdom, but they have made inva- 
 fions into each others territories, and, by what they cail Jidions of law, have 
 made almofl all caufes, except criminal ones, cognizable in any court ; con- 
 trary to the very intention of dividing the courts ; which was, that each 
 fhould have their feparate bufmefs, and that the judges and pradlitioners, 
 by being confined in a narrower track, fliould be more expert in their dif- 
 ferent provinces |. 
 
 In treating of thefe courts, I began with the King's Bench, which, as 
 long as the office of Jujliciarius AngUa fubfifled, was the fuperior ; but 
 fince Edward the Firfl; difcontinued that office, on account of its too great 
 power, and the bufmefs of that officer hath been fliared between feveral 
 judges, the rank of this court hath declined, and the Chancery hath obtain- 
 ed the firH: place. To this court, then, I fhall now proceed.. And as in- 
 it there are, at prefent, and have been for fome ages, two diftinft courts, 
 one ordinary, proceeding by common law, and die other extraordinary, ac- 
 cording to die maxims of equity, where common law could give no relief; 
 I fliall, for the prefent, confine myfelf to the former, and defer treating of 
 the latter, until I come to that period when the Equity jurifdidion arofe. 
 
 In the antient times, before the divifion of the courts, the chancellor 
 was a very confiderable officer of die curia regis. It was his bufmefs ta 
 
 write 
 d'Anvtr's abrigement, vol. 2. % 4. Inftitute, p. 79.. 
 
 r
 
 Lect. 33. L A W S OF E N G L A N D. 305 
 
 write and feal with the great feal the diphmatay or chartcz regis, what we 
 now call letters patents; to iffiie all writs, either for founding the jurifdic- 
 tion of the curia regis, and the bringing caufes into that court, that by the 
 antient law belonged to the courts in the country ; or thofe to the nobles, 
 to fummon them to attend the cojiwmne concilium, or parliament. Afterwards, 
 when the Houfe of Commons was formed, he iffued writs to tlie proper 
 places, for the ele£lion of the members thereof. Hence, when the courts 
 were divided, the making out letters patents, the keeping the inrolments 
 thereof, and iffuing of original -writs, as they are called, that is, thofe that 
 found the jurifdiftion of courts, and other writs of like nature, continued 
 to belong to him ; and, as thefe records remained with him, there arofe to 
 him a jurifdiction concerning them ; except as to fuch writs as were intend- 
 ed to found the jurifdiftion of another court, which, though iffued from 
 Chancery, were returnable into the proper court, and the caufe determined 
 there f . 
 
 The firft branch of tlie jurifdiQion of this court, then, was the repeal cf 
 letters patents, that had iilued improvidcntly, to the detriment of either of 
 the king or the fubje£l: ; and this properly fell to the lot of the chancellor, 
 as he made out the patents, and kept the enrolments of them. The me- 
 thod of repealing thofe was by a writ called fcire facias notified to the party 
 claiming under the patent, and calling him in to fliew caufe why it fhould 
 not be revoked. 'i.'h.\s fcire facias ilTued in three cafes : the firft, at the fuit 
 of a fubjeft ; where two patents were granted to two perfons of the fame 
 thing, the firft patentee brought z fcire facias againft the fecond, to repeal 
 his grant ; the other two were at the fuit of the king, where the king was 
 deceived, either by falfe fuggeftions of merit, or as to the value of the thing 
 granted ; or, in the fecond place, if the king had, by his patent, granted 
 what by law he could not have granted. Here, if the cafe was clear in law, 
 and there was no controverted matter of hO: neceiTary to be fettled, to af- 
 certain the right, the chancellor was judge ; and if his judgment was againft 
 the patent, it was his duty to caficel the inrolment thereof; from which part 
 of his office he had his name. I fay if the cafe was clear in law, and there 
 was no controverted matter of fad ; for, if this latter was the cafe, he could 
 not try it, he being ahtiently but an officer of the curia regis, and not a 
 
 Q_q judge; 
 
 t Dugdale, orig. jiirid. ch. i6. 4. InO. p. 80.
 
 3o6 LECTURES on the Lect. 33. 
 
 judge ; and therefore unqualified to fummon a jury. The rule continued 
 the fame after the feparation of the courts, and his becoming a judge ; prin- 
 cipally, as I conceive, for the prefervation of the common law, and the birth- 
 right of EngliOimen, the trial by jury. For, as the chancellor was almofl 
 always, in thofe days, an ecclefiaftic, and confequently fuppofed more at- 
 tached to the civil and canon law, there might be danger, if he was fuftered 
 to try matter of fad himfelf, he might introduce a new method of trial. 
 When, therefore, the caufe was heard upon a demurrer, that is, the fa£tj 
 admitted of both fides, and only the law in difpute, he gave judgment ; 
 but if they came to ilTue on a faft, he muft carry the record over to the 
 King's Bench, wJio fummoned the jury, and gave judgment on the ver- 
 didf. 
 
 Another branch of his jurifdiftion was with relation to the inquifitions 
 of office. There are many officers whofe duty it is to take care of the pro- 
 fits and revenues of the king, and to that purpofe they are fworn in the Ex- 
 chequer ; fuch as efch&ators, Jheriffs, and otliers, whofe duty it is to make 
 enquiry what the king is entitled to in their refpeftive limits, whether lands 
 or chattels, or by what title. For this purpofe they are to fummon juries, 
 and to return the verdifts found to the court of the revenue of the Ex- 
 chequer, in order that that court may take care of the king's rights. Thefe 
 were called inquififions, or enquiries, of office, as proceeding from the duty of 
 an officer that made them. But thefe officers being negligent in the per- 
 formance of this their duty, it became fometimes neceflary, and afterwards 
 cuftomary to quicken them, by iffiiing writs for this purpofe ; and thefe 
 writs iffiied out of Chancery, the Officinu Brevium ; and then, that it might 
 befeen they were properly obeyed, the return of the inquifition was made 
 into the court that iffued the writ, and thus, the Chancery gained a jurif- 
 didtion in this point, and became an affiftant to the Exchequer in the mat- 
 ters of the king's revenue ; not indeed in the adminiftration thereof, but in 
 bringing it into the king's poffisffion \. 
 
 It is a maxim in the Englifli law, that nothing can pafs from the king to 
 a fubjed but by 7naitcr of record, which maxim was not only advantageous 
 
 to 
 
 t 4. Iiift. p. 79. 80. 84. 88. 
 X Ibid. p. 225. 113. 80. 76^
 
 Lect. 33- LAWS OF EN GLAND. 307 
 
 to the royal eflate, as preventive of perfons getting grants by furprifc, but 
 alfo advantageous to the fubjeft in the firninefs of his title, when once he 
 had obtained it. And, on the contrary, the regular and equal way of re- 
 ftoring pofleflions to the crown was by record alfo, that is, by inquifitions 
 finding the king's title returned, as I have mentioned. But as the verdifts 
 taken in tliefe inquifitions may be erroneous, and detrimental to another per- 
 fon, by finding what was really his property, to have been the property of 
 another, and to have accrued to the king by forfeiture or efcheat ; and as, 
 regularly, by another maxim of law, there is no averring againfl: or conteft- 
 ing a record, it was neceffary that the bare return of inquifition into Chan- 
 cery fhould not be final and conclufive, but that time Ihould be given to 
 any that thought himfelf affedled to claim his right. , Hence a month's 
 time is given by flatute, after the return of the inquifition, in which any per- 
 fon may come in and traverfe the office, that is, contefl the validity of it. 
 And here the chancellor is judge, in the fame manner as in the repeal of 
 letters patents, that is, if the fubjed of the controverfy depends merely upon 
 matter of law ; but if the parties come to an iffue on matter of faft, he can- 
 not try it, for the reafon above given, but it mult go to the King's 
 Bench f. 
 
 Another branch of the judicial bufinefs is the hearing of petitions to 
 the king for juftice in his own caufes. No man, by the feudal principles of 
 our law, can bring an aftion againfl 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 mifinformed, the fubjeft may fometimes fuffer wrong from him. The 
 remedy thereof, in this cafe, is by humble petition to the king, that he 
 would enquire into the caufe, and do jullice to the party, which, though 
 conceived in an humbler ftrain, is as effectual as an adion, and mufl be 
 tried in this court, the proper channel to convey his majefty's graces, and 
 the king, by his chancellor, difpenfes juflice to the party. 
 
 Another branch of the judicial bufinefs of this court was the proceed- 
 ing in certain cafes againfl perfons privileged, that is, the officers of the 
 
 Qjq 2 court, 
 
 t 4. ijifl. p. 155. 79. 206.
 
 3o8 L E C T U R E S ON the Lect. 33. 
 
 court, -who being -fuppofed to be conftantly attendant, were to be fiied here, 
 as t|ie officers of other courts, were in their refpeftive courts. 
 
 Lastly, this court had jurifdiclion with refpecl to proceeding upon re- 
 cognizances, or acknowledgments of obligations taken in this court, which 
 being here recorded, and not to be removed, were properly here triablef.. 
 
 There are fome other caufes, proper for the jurifdidion of Chancery, 
 which would carry me too far at prefent. I fliall, therefore, conclude here 
 with mentioning one flriking difference between this and the other courts, 
 that they fit only in the times of the four terms, whereas it is open all the 
 year. The confining the others to the terms arofe from the religion of the 
 times, and the inquifitions of canon law, which forbad courts to be held 
 during the feafons of the three great feftivals, and of harveft. In obedience 
 to this law, I may fay (for the papal power was then very high in England) 
 was our Michaelmas vacation fet apart for the folemnization of Chriftmas, 
 the Hillary vacation for Eafter, the Eafter vacation for Whitfuntide, and the 
 Trinity or long vacation, for the ufes of hufbandry. But great would be 
 the evils, if that court which is the Officina Jiiftkia, the Shop of Juflicc, 
 were to be ever fhut. Writs, therefore, iffued hence at all times, and all 
 fuch caufes as, for the public good, cannot brook delay till the ordinary 
 times of fitting of other courts, are here handled in the vacations, fuch as to 
 mention a few, habeas corpus's and homine replegiando's, to reftore per- 
 fons imprifoned to liberty, prohibitions to keep inferior courts within 
 their proper limits ; and replevins, to reftore the poffefDon of goods di- 
 ftrained.. 
 
 But the great bufinefs of this court, as a court of common law, was, that 
 it was the Officina Brevium, the Ihop where original writs were purchafed by 
 fuitors, in order to commence their aftions. An original writ, in the moft 
 common form, is an order to the flicrifFto fummon the party complained of 
 to do juftice to, or elfe to anfwer to the complainant in the proper court ; 
 containing a fhort defcription of the complainant's title, and the wrong done 
 to him, from whence, in Latin, it is called Breve, and anfwers to the ori- 
 ginal citation in the Roman and ecclefiaftical laws. This, and the making 
 out patents, was the principal bufinefs of the chancellor in the curia regis, 
 
 and 
 -)■ 4 InJh ch. 8. Bacon, hift. and polit. difcourfe, part. 2. cli. iS.
 
 Lect. 33- LAWS of ENGLAND. 309 
 
 and therefore naturally continued with him after the divifion of the courts. 
 The reafons afligned by Gilbert for having one of thefe fuperior courts a pu- 
 blic fliop for jullice, are three ; firft, that it might appear that all power of 
 judicature flowed from the crown ; fecondly, that the crown might not be 
 defrauded of the fines due to it for fuflering perfons to defert the inferior 
 courts, and to fue for juftice immediately from the king ; and laftly, to pre- 
 ferve an uniformity in the law ; for thefe writs being made out in one con- 
 ftant form contributed greatly thereto, being both a diredion to the judge^ 
 and a limitation of his authority. 
 
 Originally, the chancellor heard the complaints of the perfon injured, 
 and formed a writ according to the nature of the cafe, but as, among a rude 
 military people, little verfed in commerce, and the variety of tranfafliorts 
 that attend it, the complaints of the people were confined in a narrow com- 
 pafs, it but feldom happened, after fome time, that there was occafion for 
 making a new writ, in a form diiFerent from what had been ufed before. 
 Thefe forms, therefore, were colleded into a book of our law, called the 
 Regi/ler, the anticnteft book of our law ; and the making them out, being 
 now matter of courfe, nothing more than copying out the old terms, infert- 
 ing the proper names of perfons, and places, and the chancellor's bufi- 
 nefs encreaiing, became devolved upon the chancellor's clerks, the Cle- 
 ric}, as they were antiently, or the MaJIers, as they are now called, of 
 Chancery ; and they were reftrained from making out any of a dif- 
 ferent form from thofe in the Regifter. However, as, in procefs of 
 time, cafes would happen which none of the forms in that book would 
 fuit, and it was looked on as the corner-done of the law, the chancel- 
 lor could not of himfelf venture to make out new and unufual writs, 
 but referred the complainants, in fuch cafes, to petition the parliament 
 for remedy |. 
 
 These petitions afterwards growing too frequent, and interrupting the 
 public bufinefs, it M'as found neceffary to enlarge the power of the Ma- 
 tters of Chancery, and to give them a qualified power of forming new 
 writs. This was done by the ftatute of Weftminfter the fecond, cap. 
 
 24, 
 
 f Baron Gilbert's hiftory of the Court of Common Pleas. Madox, hift. Excheq. ch. 2. 
 fed. 9. 2 Inilitute, p. 53. 407. 4 Inftitute, cli. 8.,
 
 310 LECTURES on the Lect. 33. 
 
 24, in Edward the Firft's reign ; it runs thus : ^otiefcunqiie de cxtero 
 evenerit me canccllaria, quod in imo cafu reperitur breve, & in confimili 
 cafu cadente fitb eodem jure, & ftmili indigente remedio, non reperitur, con- 
 cordent clerici de cancellaria in breve faciendo, vel atterminent querentes ift 
 proximwn parliamentum, & fcribantur cafus, in quibus concordare non pof- 
 fiint, 6* referant eos ad proximum parliamentum, 6" de confcnfu jurif- 
 peritorum fat breve ne contingat de catero, quod curia domini regis dcficiat 
 conquerentibus in jujiitia perquirenda ; which laft words, ne contingat, &c. 
 gave a handle, as I fliall ihew hereafter, to this court to erect their equitable 
 jurifdidtion \. 
 
 We fee how this power given to the Mafters was limited : it muft 
 be exercifed only in cafes parallel to fuch as there was a remedy alrea- 
 dy provided for ; all the Mafters muft agree in the form of the new 
 writ J and the remedy muft be the fame as was in the fimilar cafe in 
 the Regifter. To illuftrate this by the example of the firft writ form- 
 ed by the Mafters upon this ftatute, and which therefore, by way of 
 eminence, is called a writ, in co7ifinuli cafu. The ftatute of Glocefter 
 ordered the Chancery to form a writ for the relief of the perfon in re- 
 verfion, where a tenant in power had aliened her dower. The writ was 
 accordingly framed, and inferted in the Regifter. Now, by virtue of 
 this ftatute of Weftminftcr, the Mafters framed the writ in cafu con- 
 fimili, in favour of the perfon in reverfion, where a tenant by the cour- 
 tefy, or tenant for life, had aliened, he being equally damaged as the 
 former cafe. But though this was particularly called a writ, in cafu 
 confimili, there were many others formed by virtue of this ftatute, fuch 
 as for various kinds of trefpafles unknown in former ages, and ac- 
 tions upon the cafe, fo frequent in thefe our days, and fo called, be- 
 caufe the writ is formed according to the circumftances of the cafe, and 
 not .upon the old forms continued in the Regifter. 
 
 This new employment of Mafters in Chancery, and the bufmefs of 
 the court encreafmg, created a neceflity of eredllng new officers, to 
 make out the brevia de curfu, namely, thofe in the Regiitcr, who were 
 
 therefore 
 
 X 2 Inftitute, p. 405.
 
 Lect. 33- LAWS of ENGLAND. 311 
 
 therefore called Curritors. The chief of the Maflers is Keeper of the 
 Rolls of this court, which was formerly a part of the chancellor's bufi- 
 nefs ; and he is therefore called Majier of the Rolls. For ages paft, 
 fmce the Equity bufinefs multiplied in England, this officer has been 
 there, in matters of equity, an affiftant judge to the chancellor, but 
 his decrees are liable to a rehearing, and to be reverfed by the chan- 
 cellor. But in this kingdom, the office hath not had any judicial au- 
 thority annexed to it. 
 
 LECTURE
 
 312 L E C T U Pv E S ON the Lect. 34. 
 
 LECTURE XXXIV. 
 
 ne court of Common Bench or Common Pleas — The jurifJidion of this court — 
 Aflions real, perfonal, or fnixt — The court of Exchequer — The jurifdidion of 
 this court — Exchequer chamber — The judicature of Parliament. 
 
 THE next of the fuperior courts, is the Common Bench, or Conwion Pkasj 
 as it is more commonly called, being the proper court for the deter- 
 mining fuits between fubjefts, wherein the king is not concerned ; and up- 
 on the multiplication of bufmefs in the curia regis, it was feparated from it, 
 for the more fpeedy and eafy difpatching the affairs of the people. As in 
 the very old times the king often fat in perfon in the curia regis, and that 
 he might have an opportunity of fo doing when he pleafed, that court al- 
 ways followed the king wherever he went within the kingdom of England; 
 and in thofe days it was cuftomary for the kings to take progreffes; and re- 
 fide in the different feafons of the year in different parts of the kingdom, as 
 we fee, by the variety of places where the parliaments were held in old 
 times. The fame pra£i:ice of the courts and the records following the per- 
 fon of the king continued in France longer than in England. For when 
 king John was taken by the black prince at the battle of Poiftiers, the an- 
 tient records of that kingdom were loft, and there are fcarce any now re- 
 maining there, of what had paffed previous to that time, except enrolments 
 made fmce, of the antient charters that were in the hands of the fubjeQs. 
 
 But in England the conflant removal of the courts was found very bur- 
 dcnfome to the people, who had fuits much earlier. For their eafe, there- 
 fore, it was enafted in Magna Charta, that communia placiia 7ion fequantur 
 curiam nojlram,fcd tcneantur in aliquo certo loco ; that the Court of Conmion 
 Pleas fliould no longer be ambulatory, but held in onie certain place. 
 Weftminfter was the place fixed upon, and there, if we except fome occa- 
 fional removals, on account of epidemical ficknefles, hath it been held ever 
 fince. And in long fpace of time after, the other courts became, though 
 
 not
 
 Lect. 34- LAWS OF ENGLAND. 313 
 
 not in purfuance of any pofitive law, fixed theie alfo. By their becoming 
 fettled in a certain place, one great inconvenience, befides the hardfliips on 
 the fuitors, was avoided, namely, the lofs and imbezzlenicnt of the records 
 by thefe 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 a£ls of parliament themfelves, except a few, and a 
 very few, of the courts of Exchequer, which, concerning the king's reve- 
 nue, were more carefully prefervedf. 
 
 But the greateft advantage that attended this change was the improve- 
 ment of the law, and, what was a confequence thereof, the prefervation of 
 the liberty of the fubjeft. For now it became much more convenient for 
 perfons to apply to that ftudy, when they were no longer under a neceffity 
 of removing. And we therefore, foon after, find the praditioners of the 
 law fettled together, fomething in a collegiate manner ; and after the diflb- 
 lution of the order of Knights Templars, the habitation of thefe latter, cal- 
 led the Temple, was granted to them for their refidence and improvement. 
 Here, they continued to confer the degrees of Apprentices, or Barrifters at 
 law, and Sergeants at law, which they had began before, in imitation of 
 the bachelors and doctors degrees in univerfities. 
 
 The prefervation of the liberty of the fubjecl was, as I faid before, ano- 
 ther happy confequence that refulted from the fixing the courts, and the 
 uniting the profelfors of the law into one body. For as, about this time 
 the ftudy of the civil and canon laws was eagerly purfued by the clergy in 
 the univerfities, and the Englifh cuftoms as much depreciated by them as 
 pollible, and as thofe two laws were founded on maxims of defpotifm, and, 
 as fuch, encouraged and fupported to the utmoft by the popes, and all 
 kings that aimed at arbitrary power, the common lawyers were neceffita- 
 ted, for the fupport of their profeflion, to take the popular fide of the 
 queftion, and to ftickle for the old Saxon freedom, and limited form of 
 government. 
 
 Hence the fleady oppofition they made, even in thofe early times, to the 
 king's difpenfing. Nay, they carried their zeal for liberty fo far, as (fince 
 
 R r they 
 
 t 2. Inftitute, p. 21, 22.
 
 314 LECTURES on the Lect. 34. 
 
 they could not dlreftly, in thofe days, oppofe the weight of the civil law) 
 to quote the very paflages of it that were in favour of abfolate power, and 
 by their gloffes make it fpeak the language of liberty. Thus Brafton quotes 
 that text: ^od principi placet, legis habet vigor em; that is, in its true mean- 
 ing, the monarch is fole legiflator : but Bra£lon's comment is, id eji, non 
 qiiicquid de veluntate regis temere prefumptumfuerit,fed quod concilio magijira- 
 tuum fiiurum, rege au^oritatem prajiante, habita fitper hoc deliberatione <b' trac- 
 tatu, re£le fuerit definitum ; that is, the king is not fole legiflator ; direftly 
 contrary to the fenfe of the very text he quotes. And it mud be allowed, 
 to the honour of the common lawyers, that, with the exception of a few 
 venal time-ferving individuals, they have, for a fucceffion of ages, proved 
 themfelves true friends to a rational civil liberty in the fubjeft, and to rea- 
 fonable power and prerogative in the king-]-. 
 
 To come to the jurifdiclion of this court. Its proper bufmefs, as appears 
 frorn its name, is to take cognizance of all common pleas, that Is, all pleas 
 that are not pleas of the crown, or at the fuit of the king. With thefe it 
 cannot meddle ; for all aftions at the fuit of the king for criminal matters, 
 belong to the King's Bench, as thofe for his revenue do properly to the Ex- 
 chequer. But it hath jurifdiftion, and that univerfally, throughout Eng- 
 land, in all civil caufes, whether real, perfonal, or mixt; the diftindion of 
 which it will not be amifs juft to point out. 
 
 Real anions are thofe that are brought to recover land itfelf, where the 
 claimant has a right to an eftate in it for life at leafl ; and thefe, until with- 
 in thefe two hundred and fifty years, were the only ones ufed for that pur- 
 pofe ; but, fince that time, they are gone almofl; entirely out of ufe, on ac- 
 count of their nicety, their delays, their being conclufive ; and their place 
 is fupplied by mixed actions, which are eafier, fliortcr, and may be tried a- 
 gain. However, if any one was inclined, at this day, to bring fuch an ac- 
 tion, this is the court to bring it in ; and therefore all common recoveries, 
 which antiently were, and {till carry the form of, real a£tions, are fuft'ered 
 in this court. 
 
 P£RSONAL 
 
 I Bratfton, lib. i. cap. I. Fortefcue de kind. leg. Anglki> cap. 34.
 
 Lect. 34. LAWS OF ENGLAND. 315 
 
 Personal actions are thofe that are brought for the recovery either of 
 feme duty, or demand in particular, or of damages for the non-performance 
 of fome promife or contraft, entered into, or laftly fuch as are brought by 
 a man to recover a compenfation in damages for fome injury fuftained in 
 his perfon— or property. To give but one or tvi-o inftances of thefe lafl: : 
 If my ground is trcfpalTed on, if my pevfon is aflaulted, my reputation in- 
 jured, the remedy is by the perfonal actions of trefpafs, affauli & battery, 
 oxjiander. All adions for breach of covenants are likewife perfonal ac- 
 tions; for, by the common law, damages only are recoverable thereon, 
 and the party is not obliged to perform the covenant. Wherefore, if a 
 man chufes rather to have his covenant performed than receive a fatisfac- 
 tion in damages, he mufl; go into a Court of Equity, which will oblige a 
 man to perform in fpecie, what he hath fpecifically engaged to perform. If 
 the performance is poffible. This court, therefore, being the proper court 
 for perfonal aftions, fines of lands are levied here ; for they are fiditiout 
 adions, founded on a fi£titious breach of covenant. 
 
 Mixed acEtlons are defigned for the recovery of a fpecific thing, and alfo 
 damages, and confequently partake of the nature both of real and perfonal 
 aclions. For inflance : If a tenant for life, or years, or at will, commits 
 wafte, he forfeits to the owner of the Inheritance the place wherein the 
 waflc was done, and treble damages. The aeiion ofivajie, therefore be- 
 ing brought to recover both, is a mixed adion. The aftion of ejedment 
 alfo, which was originally proper to recover damages for being put out of 
 a leafe for years, but is now the common remedy, fubftituted in the lieu of 
 real aftions, is now of the fame nature ; becaufe both the land itfelf, and 
 damages for the wrong are recovered |. 
 
 These three kinds of aftions are properly the bufinefs of this court 
 though, as to the two lafl, adions perfonal and mixed, the courts of King's 
 Bench and Exchequer have, by fiftlons, gained a concurrent jurifdiclion 
 with this court ; the King's Bench, by funpofing the defendant to be in 
 the cuftody of the marflial thereof j and the Exchequer, by fuppofing the 
 plaintiff to be a debtor to the king. 
 
 I^r 2 The 
 
 •j- Baron Gilbert, Hill, of the comt of Com. Pleas. 4. Iiifl. cl:. 10.
 
 3i6 L E C T U R E S ON the Lect. 34. 
 
 The proper way of founding the jurifdifl:ion of this writ, is by a writ out 
 of Chancery, returnable hither, either to begin a caufe originally here, or to 
 remove one depending in an inferior court not of record ; but, in fonic 
 cafes, they proceed without any writ from Chancery, as in caufes brought 
 by or againft an officer of the court, and likewife, in granting prohibitions 
 to other courts that attempt to enlarge their jurifdidions. 
 
 Before I conclude, I mufl: obferve, that this court, though one of the 
 four high courts derived out of the curia regis, is not, however, fupreme, 
 but fubordinate to the King's Bench. For judgments given therein are re- 
 verfible in the King's Bench, by a writ of error ifluing from the Chancery, 
 fuggefting the king's bcmg informed that manifell error has interveened, 
 and commanding the record to be tranfmitted into the King's Bench ; the 
 judges belonging to which, upon the face of it, and nothing elfe, are to af- 
 firm or reverfe the judgment ; for the error mult be maniteif ; and no error 
 in point of faft, but error only in point of law, can be averred againft a 
 record. 
 
 The loweft in rank of the four great courts, though from antient times 
 one of the greateft importance, is tne court of Exchequer, whofe bufmefs 
 was to colled in the feveral debts, fines, amerciaments, or other duties or 
 properties belonging or accruing to the king, and likewife, to ilfue money 
 by his orders ; and this court being originally folely erefted for the king's 
 profit, is the reafon, I prefume, why it is held in rank the loweft ; it being 
 more honourable to the crown to give precedence of rank to thofe courts 
 that were intended for the adminiftration of juftice to the fubjeft, above 
 that which was intended merely for the king's temporal advantage. Be- 
 fides, this court was, in its original, diftind from the curia regis, the treafu- 
 rer being the judge in this, as the. jujiiciarius Anglia was in the other ; and 
 therefore, it was regular, that the Chancery, and Common Pleas, as having 
 been once part of the fupreme court, fliould take place before this. Its 
 having been originally a diftindl: 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 reQified in another manner*. 
 
 This 
 * 3d. InH. p. 196. 197. 255. 551.
 
 Lect. 34. L A W S OF E N G L A N D. 317 
 
 This court, as well as the Chancery, hath, properly fpeaking, two courts: 
 one, ordinary, proceeding according to the ftrifl: rules of the common 
 law ; the other, by equity ; for, as it is the king's duty to render juftice 
 with mercy, fo, in this court, the rights of the king are not always ex- 
 aOied with rigour ; but, on circumftances of reafon and equity, may be 
 mitigated or difcharged. The court of common law in this court had an- 
 tiently much more bufinefs than of late. Originally, whilfl; the royal de- 
 menfnes were unalienated, they had the fetting of them for years ; but, 
 afterwards, people chufmg rather the authority of the great feal, took them 
 in Chancery. That court, as I mentioned when treating of it, had like- 
 wife gained the returns of inquifitions of office, and had alfo gained by aci 
 of parliament, the compofition of forfeitures, for the king's tenants in capite 
 aliening their lands without licenfe ; which, otherwifc, would have belonged 
 to this court. The ereftion of the Court of Wards, alfo, by Henry the Eighth, 
 took off that branch of its jurifdiftion ; and the abolifliing of the military 
 tenures by Charles tlie Second took away the bufinefs of calling in their 
 fruits. The ereftlng the office of the Trcafury, as diflind, for the iffiiing 
 of money, had the fame effedt ; but, above all, the erefting new jurifdic- 
 tions, and appointing new judges to try caufes relative to the new taxes, as- 
 the Commiffioners of the Cuftoms and Excife, and Commiffioners of Ap- 
 peal, diminifhed the peculiar bufinefs of the court j. 
 
 It will be now proper to confider the nature and extent of their prefent 
 jurifdiiStion. Here then are fworn the Iheriffs, and other officers concerned 
 in the king's revenue and duties ; and here they are to return, and make up 
 their accounts. Here, Ukewife, the king fues his debtors, or even the debtor 
 of his debtor (for fo far his prerogative extends); and here alfo, for enabling 
 his debtors to pay him, they are priviledged to fue their debtors ; an allow- 
 ance that hath grown up by degrees to extend the jurifdidion of this court, 
 and to make it concurrent with the Common Pleas. For it is only alledging, 
 (and this they will not allow to be traverfed or denied) that the plaintiff is 
 the king's debtor, and the bufinefs is done. The court acquires an immedi- 
 ate jurifdlftion. The fame allegation is Ukewife neceffary, when a fuit of 
 equity is commenced in this court ; for otherwife, the fuit would, on the 
 face of it, appear to belong to Chancery. I need fcarce obferve, that the 
 
 officers 
 
 t 4th Inft. ch. xi.
 
 3i8 LECTURES on the Lkct. 34. 
 
 officers of this court are to fue and be fued here; for that is a privilege com- 
 mon to the officers of all the courts, arifmg from their perfonal attendance. 
 Here, likewife, the king's attorney-general exhibits informations for con- 
 cealment of cuftoms and feizurcs, informations upon penal Ratutes, where 
 there is a fine due to the king, forfeitures and breach of covenant to the 
 king ; likewife all informations for intrufions, waftes, fpoils or encroach- 
 ments on the king's lands ; in general, where the crown fufFers in its 
 profits. 
 
 In this court of common law, the Barons of Exchequer only are judges, 
 and are called Barons, becaufe antiently none were judges there under that 
 degree. In the Court of Equity, the chancellor of the Exchequer is joined 
 with them, though it niuft be owned this officer hath feldom, of late years, 
 acted either in England or Ireland, :in his judicial capacity, and it hath 
 been confidered little more than as a great lucrative place. Errors in this 
 court are not, as I obferved before, redrefled in the King's Bench, as thofe 
 of the Common Pleas are, but in another court, called the Exchequer 
 Chamber, confiding of the lord chancellor, lord treafurer, and chief 
 judges. 
 
 There is another court of Exchequer Chamber in England, tho' we 
 have none fuch in this kingdom, ereded 27th Eliz. and compofed of 
 the judges of the Common Pleas and barons of the Exchequer, in which 
 lies a writ of error from the King's Bench, to reverfe judgments in cer- 
 tain fuits commenced there originally. Into this court are frequently 
 removed, or adjourned from any of the other courts, caufes that are of a 
 new impreffion, and attended with difficulty, or even fuch concerning 
 which the judges, perhaps, entertain no great doubts, but are new, and 
 attended with extcnfive confequences ; and this, for the more folemn 
 determination, that all the judges of all the courts might be confulted about 
 eflablilhing a new precedent. Antiently fuch caufes were adjourned into 
 parliament, but the legiflative bufinefs of that high court increafing, this 
 court was fubftituted for the above purpofe of confultation f . 
 
 To 
 
 t 4th Iiift. ch. 1 3.
 
 Lect. 34. LAWS OF E N G L A N D. 319 
 
 To finifh this account concerning the fuperior courts at once, it will be 
 proper to fay fomcthing of the fupreme judicature of all, that of parlia- 
 ment. Antiently, as I have frequently obferved, all caufcs but fuch as 
 concerned the king or peers, or thofc that were of great difficulty, or fuch 
 as juflice could not be expeded in by law, were difpatchcd in the county 
 courts, the reft by petition to the king in parliament, or, in the intervals 
 thereof, in the curia regis, which originally was but axommittce thereof, 
 appointed by. the king. Hence matters determined there, were fubjefl: 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 jic- 
 culiar to the lords (for the parliament conhfted at firft only of them, and 
 when the commons were introduced, they fat in a diftind: houfe) and the 
 parliament hears at prefent only matters that come from other courts by 
 appeal, or by writ of error, which is in the nature of an appeal, and no 
 caufcs originally. It is true, that, for a long time after the divifion of the 
 courts, many caufes by petition were broughl; into parliament in the firft 
 Inftance ; but thefe being generally referred to the courts below, the prac- 
 tice ceafed, and would not now be allowed. For a long time accufations 
 againft peers were originally admitted, but at prefent, and for this long 
 time, indiftments found below are required before a peer can be tried ; nor 
 can the trial of peers by impeachment in parliament be confidered as an 
 original trial, for the commons are confidered as the grand inqueft or grand 
 jury of the whole nation, and therefore an impeachment by them is not only 
 equivalent to, but has and ought to have greater weight than any indift- 
 ment by any private grand jury. 
 
 In this judicature of the lords, an impeachment there. Is one fingularity, 
 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 fliall be tried by 
 the lords. The reafon of this procedure feenis to be, that all the com- 
 mons of England are fuppofed parties to the accufation, when their repre- 
 fentatives have accufed him, and it might be dangerous to truft his life 
 with a common jury ; but the lords are ftrangers to the charge, and it is 
 their intereft to controul the commons, if they proceed with too great 
 vi olencc *. 
 
 * Hales of the power and jurifdicflion of Parliament. Selden of the Judicature of Par- 
 liament. See liis works vol. 3. 4. Inft. ch. i. 
 
 LECTURE
 
 320 LECTURES on the Lect. 34, 
 
 LECTURE XXXV. 
 
 Henry II. V difpnte luith Becket — The conjiitutions of Clarendon — Tlie murder 
 of Becket. 
 
 A V I N G, in a general manner, run through the jurifdidions of the 
 feveral great courts of the kingdom, which were divided from each 
 other about the time I am now treating of, though the divifion was not 
 compleated, nor the feveral limits exactly adjufted till fome time after ; I 
 fhall proceed, in a fummary way, with the few remaining obfervations I 
 have to make, with refpefl: to the flate of the law during the reign of 
 Henry the Second. And the greateft and moil remarkable of thefe was 
 his difpute with Becket, archbifliop of Canterbury ; a contefl; attended with 
 the moft fatal eft'efts, and which makes up a confiderable part of the civil 
 hiftory of that reign. The particular circumftances that attended it, and 
 the many turns it took, I fhall not dwell on ; but, as it arofe from the 
 clafliing of contrary laws, I fhall briefly lay open its fource, and give an 
 account of the events. 
 
 From the year of Chrifl one thoufand, the popes had every day been 
 cncreafing their power, and extending their pretenfions. They fet them- 
 felves up, at firll, as proteftors of the clergy, who really had been op- 
 prefTed by the temporal princes, and in order to attach them more firmly 
 to their interefts, they made canons in councils, and publiflied decretal 
 epiftles, by their own fole authority ; which, in thofe days of fuperflition, 
 were too readily received as laws ; all tending to deprefs the civil power, to 
 raife the ecclefiaftical on its ruins, and, in fliort, to pave the vi-ay for mak- 
 ing the pope fupreme monarch of the wOrld, in matters temporal as well as 
 fpiritual. The emperors, however, ftickled hard, on the other hand, to 
 fupport their rights, and particularly to maintain to themfelves the nomina- 
 tion of the popes, as well as of other bifhops, which the popes had transferred 
 
 to
 
 Lr.cT. 35- LAWS OF ENGLAND. 321 
 
 to the people of Rome firfl, and afterwards to the clergy alone ; fo that, 
 for a good part of this time, there was a fchlfm in the church, and two 
 popes in being, the one named by the emperor, and the other elefted; and 
 I obferved before, William Rufus kept himfelf independent by acknow- 
 ledging neither, and was abfolute mailer ot the church. However, the 
 popes that were eledled, generally gained ground. They had the majority 
 of the clergy on their fide, and indeed moll of the fovereign princes of 
 Europe, who were jealous left the emperor, under pretence of being fuc- 
 ceflbrtothe Romans, might arrogate a fuperiority over them. 
 
 It is furprizing, yet very true, that, in thefc contefted times, the papal 
 power was puflied very near its greateft height. The materials, indeed, 
 were formed and collefted fome time before. A multitude of fiditious 
 decretal epiftles had been forged in the names of the antient popes, fo early 
 as from tlie year 800, all tending to exalt the bifliop of Rome, as head over 
 the church univerfal ; but thefe were not as yet generally known and re- 
 ceived as laws, the church being hitherto governed by colleftions of canons 
 made by private perfons, out of the canons of the general or provincial 
 councils and faylngs 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 ecclefiaftical laws, 
 and publiflied it under the name of Dccrctiim, which is now the firft volume 
 of the canon law. This is a motely compofition, digefted under diftind 
 heads or titles, of rules and decifions, collected from the fayings of the 
 fathers, canons of the councils, and, above all, from the decretal epiftles 
 of the popes, (the modern ones real, the ancient ones forged), and was put 
 together principally for the two great purpofes, of aggrandifmg the See of 
 Rome, and exempting the clergy from lay-jurifdi£tion. And, for that pur- 
 pofe, not only forged epiftles and canons have been inferted in it, but the 
 real canons and writings of the fathers have been, in many places, falfified 
 by adding or omitting words as beft ferved the purpofe propofed ; and 
 that this is *the cafe of Gratian's work, the learned Papifts themfelves con- 
 fefs, in many inftances. However, in that ignorant age, it paffed eafily all 
 for genuine. But the popes, wifely conftdering, that, if it was canvafled, it 
 would not bear a ftrid fcrutlny, never chofe to give it an authentic tefti- 
 
 S f mony
 
 322 LEG T U R E S on the Lect. 35. 
 
 mony of their authority, but contented themfelves with authorifing it to 
 be read in univerfities. In the interval I have mentioned, the popes began 
 to turn their fpiritual arms of excommunication or interdid, that is, forbid- 
 ding the adminlftration of divine offices, except in articulo mortis, in a 
 country or dlftrict, to temporal purpofes, and the fupport of their gran- 
 deur |. 
 
 On this ftate of affairs happened the quarrel between the archbifliop and 
 Henry, which embroiled him with the pope, embittered his life, and was 
 attended with confequences that brought him to the grave with forrow. At 
 this time there were two popes, Viftor, confirmed by the emperor, and 
 Alexander, the moft enterprifing pope the world had yet feen, fupported by 
 the king of France. Had Henry followed the example of William, and ac- 
 knowledged neither, he might have kept both in awe, and vindicated the 
 rights of his crown with fuccefs. But he was prevailed upon by Lewis of 
 France to recognize Alexander, who was afterwards made an inflrument 
 of humbling Henry, of whofe power that monarch was jealous. For his ex- 
 treme partiality and feverity is, in part, to be afcrlbed to the influence of 
 his proteftor, as well as to his zeal for ecclefiaftical immunities. Thefe 
 immunities had grown to an excefTive height, and, under the pretence that 
 no man fliould be fwice puniflied for one offence, the blfliops took care to 
 inflict penance on ecclefiaftical offenders, and then refufed to fuffer them 
 to be tried by the laws of the land ; fo that the moft profligate rufhans 
 crowded into the lower order, and committed with impunity (except pe- 
 nance, or rather, a pecuniary commutation for it) what nuirders, rapes, 
 and robberies, they thought fit. Henry was fenfible of thofe enormities, 
 and, in hopes of curing them, by the affiftance 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 lie foon found 
 how much he was miftaken in his man. Becket had been bred in his 
 youth in the ftudy of the ecclefiaftical laws, and, though he had in all 
 things hitherto complied with the king for his advancement, was, at the 
 bottom, ftrlftly attached to his order and its privileges, and refolved, at 
 whatever price, rather to extend than diminifh them. 
 
 To 
 
 ■\ Giannone's Lift, of Naples, b. i. Bower's hift. of the Popes, vol. i .
 
 Lect. 35. LAWS OF E N G L A N D. 323 
 
 To dazzle the people, he threw afide the pomp and expenfive life of a 
 courtier, and afiumed the charader of mortification and fandity. He be- 
 gan by reclaiming the eftates belonging formerly to his fee, though they had 
 been aliened by his predecellors, with the confent of their chapters, and 
 upon valuable confideration ; 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 faying, that an ecclefiaftical canon might repeal 
 the laws of any country, and fubvert its conftitution. He made an attempt 
 likewifc on the patronages of laymen, and appointed a parfon to a church, 
 which belonged to one of his own tenants, and afterwards excommunicated 
 the tenant for turning this perfon out, altho' he was the king's tenant in ca- 
 pite ; and fuch, by a law of the conqueror, were forbid to be excommunica- 
 ted without the king's leave, under the penalties of treafon. This was a 
 A'ery neceflTary law ; as otherwife a bifliop might, by his fentence, deprive 
 the king of his fervice, and that of as many of his military tenants as he 
 pleafed. However, in this point, when he found he v/as in danger of being 
 profecuted on the law, he relented, and abfolved the gentleman f . 
 
 His fcreening of criminals was excercifed alfo in the moft fliameful man- 
 ner. A lewd clerk had debauched a young lady, and afterwards publickly 
 murdered her father, and this criminal was refufed to be given up to be 
 tried. Another was guilty of facrilege, in ftealJng a filver chalice out of a 
 church, and Becket would not fuffer him to be tried by the lavv's of the land. 
 However, as the offence concerned the church, and was therefore of a very 
 heinous nature, he tried him himfelf ; and having found him guilty, brand- 
 ed him with a hot iron, in defiance both of the Englifli and canon laws, 
 neither of which allow fuch punilhments to an ecclefialtical judge. But he 
 knew lie was too faithful a fervant to the Pope, to be called to an account 
 even for making free with his own law. 
 
 Hi'NRY, finding it neceffary to ftop the prelate's career, fummoned an af- 
 fembly of the bilhops, and demanded of them that they Ihould degrade all 
 ecclefiaftical murderers, and deliver them over to the fecular arm. At firft 
 the majority feemed to think this a reafonable propofal, as they mull, in 
 the firft place, find them guilty before they were to be given up. But Becket 
 
 S f 2 brought 
 
 t Lord Lyttelton's hifl. of Henry II. b. 3.
 
 324 L E C T U Pv E S on the Lect. 35. 
 
 brought them over, by reprefenting, that, by the canon law, they were not 
 to be concerned in matters of blood, and that their delivering over any cri- 
 minal to capital punifliment would be infringing thereof. They therefore re- 
 I'ufed the king. He then demanded whether they would obferve the laws 
 and cuftoms of the kingdom. Their anfwer was, in all things that did not 
 interfere with the rights of their order. The king left the aflembly in 
 wrath, and at length, Becket was, by the intreaties of the other bilhops, 
 and even of the Pope's legate, who knew his mafter, being embroiled 
 with the antipope, was not able, at this time, to fupport him, prevailed 
 with to wait on the king, and promife to obferve the laws of the land with- 
 out any refervation f . 
 
 Henry, fenfible that fuch a general promife, when particular fafts arofe^ 
 might be explained and evaded, was refolved that the limits of the ecclefia- 
 ftical jurifdidion fhould be afcertained in fuch a manner as would leave no 
 room for fubterfuges ; and to that end called a parliament at Clarendon, 
 wherein Becket and the bifhops fwore to obferve the laws there made, called 
 'conjiitutions, as new laws, but declared to be the old laws of the realm. 
 Thefe conftitutions were in number fixteen. I fliall mention a few of the 
 principal, in order to give a notion of the points of jurifdidion then contefted 
 between the fpiritual and lay courts. Firft, then, it was declared, that 
 fuits about prefentations to livings belong to the king's courts ; that clergy- 
 men fhould be tried for temporal crimes in the temporal courts ; and that, 
 if they pleaded guilty, or were convided, they fliould lofe the ecclefiafti- 
 cal privilege ; that no clergyman fiiould quit the realm without the king's 
 licence, nor attain it, without giving fecurity to attempt nothing to the pre- 
 judice of the king or kingdom ; that no immediate tenant, or officer of the 
 crown, fhould be excommunicated without the king's licence ; that appeals 
 in ecclefiaftical caufes fhould be made from the arch-deacon to the bifliopj 
 from the bifhop to the archbifhop, from the archbifhop to the king. 
 
 This indeed was flriking at the root of the Pope's fupremacy, and of 
 his profits too. It was in truth declaring the king fupreme head of the 
 church as to junfdittion ; next, that all that held ecclefiaftical dignities by 
 
 the 
 
 f Daniel, ap. Kcnnet. Carte.
 
 Lect. 35. LAWS OF ENGLAND. 325 
 
 the tenure of baronies, fliouki do the duty of barons, and among the rcfl 
 fit m judgment as barons j however with this favourable allowance to them, 
 in confideration of their being bound by the canon law, that they might re- 
 tire when the queftion was to be put about lofs of life or limb ; likewife 
 that no biihop, or abbot, fhould be eletted without the king's confcnt ; 
 nor, when elefted, be confecrtlled till they had fir(t done homage and 
 fealty ; that the fpiritual courts Ihouldnot hold plea of debts due'uponoath ; 
 and laftly, that the fpiritual and temporal courts fliould mutually aid each 
 other in carrying their fcntences into execution f . 
 
 Such were the mofl material of the famous conftitutions of Clarendon 
 drawn from the antient pradlice, 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 affuming the fupreme legillaturc in every thing 
 that had the mofl diftant relation to a church, or a churchman. But Becket, 
 who had fworn to obey the old laws only, for fear of perfonal danger at that 
 time, did not wait for the Pope's condemnation of them, but inflantly 
 fliewed he was refolved to difobey, by enjoining himfelf penance, and ab- 
 ftaining from officiating till he could obtain the Pope's abfolution. Plenry, 
 provoked to the uttermoft, was now refolved to crulli him. He called 
 him to an account in parliament for all the king's moneys that had paffed 
 through his hands while he was chancellor, and for one thoufand marks he 
 had lent him ; demands that the king had never intended to have made, 
 but for his refraftorinefs ; and which he well knew he was not able to pay, 
 having embezzled them in high living. 
 
 The archbifliop refolved to fliand out to extremity : he offered a mofl 
 wonderful plea in a caufe merely civil, that of debt, viz. that his being made 
 archbifliop of Canterbury had difcharged him of all former accounts and 
 debts, and appealed, even in this purely civil caufe, to the Pope. When 
 reproached with contravening the conftitutions of Clarendon, contrary to 
 his oath, he broached another curious maxim. That, in every oath a clergy- 
 man could take, there was a tacit falvo for the rights of his order ; he for- 
 bid the bifliop to fit in judgment upon him, under pain of excommunication. 
 
 He 
 
 t Hoveden. edit. Savil. 494 — 549. Mat. Paris, an. 1 164 Lord Lyttelton's hift. of 
 Henry U book 3. Brady's liiflory.
 
 326 L E C T U R E S ON the Lect. 35. 
 
 He would not hear his fentence, but told the peers that he was their father, 
 and they his children, and that children had no right to fit in judgment on 
 their father. He then departed, in contempt of the court, and went over 
 to France, where he was kindly received by that king ; and the Pope avowed 
 and encouraged him in all the extravagances he had advanced, received hi* 
 appeal, and annulled all fentences againfl him. 
 
 However, as the fchifm was not yet ended, he kept him in for feme 
 time from proceeding to extremities ; but as foon as the danger was over, 
 the Pope fuffered him to thunder out his excommunications againft all the 
 minifters of the king, and all that obferved the conftitutions of Clarendon. 
 The king himfelf, indeed, was fpared, and the kingdom was not, on this oc- 
 cafion, laid under an interdift ; a circumflance then much apprehended. 
 The king, on the other hand, enafted, that no appeals (liould be made to 
 the archbilliop, or Pope ; that the lands belonging to Becket Ihould be con- 
 fifcated ; that the clergy who refided abroad ihould return in three months, 
 or forfeit their benefices ; and that no letter of interdict fhould be brought 
 into England, the penalty of which laft was afterwards made the fame of 
 treafon. 
 
 The king was not a little uneafy at the apprehenfions of perfonal excom- 
 munication, or of an interdift's ifluing, as he obferved the cenfures already 
 pafled had but too much influence on the weaknefs of many of his fubjeds. 
 He therefore, to ward the blow, had recourfe to negotiation, which the 
 Pope readily admitted, who feared, on the other hand, from the popularity 
 of Henry's and the unpopularity of Becket's conduft, that his ecclefiafti- 
 cal thunders might be flighted in England. He contrived, however, in the 
 interim, to embroil him with the king of France, and other powers on the 
 continent. Matters continued on this footing for fome years, in a train of 
 negotiation ; in the courfe of which the moderation of the king and the info- 
 lence of the archbifliop were equally remarkable, till, at length, the former, 
 finding the Pope had trod down all oppofition, and that his own intereft 
 was on the decline, was obliged, I may fay, to fubmit ; for he was recon- 
 ciled to Becket ; engaged to reftore his and his adiicrcnt's cffedls, and to 
 fufFer him to return to England, which he did with the additional quality 
 
 9i
 
 Lect. 35. L A W S o F E N G L A N D. 327 
 
 of legate of the Pope j and no mention was madeof cither fide, of the fub- 
 je£l of the difpute. 
 
 But Becket was refolvcd to fliew the world he had conquered. He be- 
 gan the exercife of his legatine power, by fufpendiiig and degrading the 
 clergy, and excommunicating the laity that adhered to the laws of the king- 
 dom. Nay, he excommunicated two of the king's tenants for cutting oil" 
 the tail of his fumpter mule ; fo facred was the bead become. 
 
 Soon after he was murdered at the high altar, in confequence of a rafli 
 fpeech of the king's, in a barbarous manner, as all, any way acquainted 
 with the hiftory of England, mufl: know; and now was Henry compleatly 
 at the Pope's mercy. For Becket, dead, ferved the See of Ronie more ef- 
 feftually than he ever could have done living. The bloodinefs of the faft, 
 the facrednefs of the place where it was committed, and the refolution with 
 which he died, filled not only all England, but all Europe, with religious 
 horror. Miracles in abundance he immediately wrought, and he who by 
 many was looked upon as a traitor, was now univerfally efteemed a faint 
 and a martyr ; and fo he was to the intereft of the See of Rome. 
 
 In thefe circumftances Henry was obliged to fubmit to be judged by the 
 Pope's legates, who, at length, abfolved him, on his fwearing that he had 
 not willingly occafioned the murder, and that he felt great grief and vexa- 
 tion on account of it ; in which, no doubt, he was fmcere. But before he 
 could obtain it, he was obliged to promife to be faithful to Alexander and 
 bis fucceflbrs, not to interrupt the free courfe of appeals to Rome in ecclefi- 
 allical caufes, and not to enforce the obfcrvance of evil cuftoms introduced 
 fmce his acceffion to tlie throne ; for fo they filled the conflitutions of Cla- 
 rendon, though they were only declarations of the old law. And thus 
 ended this famous conteft, in an abfolute vidory on the fide of the Pope f . 
 
 f Hume, Carte, Lyttelton, &-c. 
 
 LECTURE
 
 ^ 
 
 28 L E C T U R E S ON the Lect. 35. 
 
 LECTURE XXXVI. 
 
 TJje rebellions of Henry's fans — He is fucceeded by Richard I. — Thejleps taken 
 at this period towards fettling the fuccejfwn to the kingdom — 'The laws of Ole- 
 ron — Accejfwn of John — His cruelty and opprejjions. 
 
 E N R. Y's quarrel with the Pope, termhiating in the manner it did, 
 neceffarily weakened the weight and influence he ever before fup- 
 ported, both in his own kingdom, and on the continent ; nor could the 
 unwearied pains he afterwards took, in redreffing grievances, and making 
 falutary laws, by the advice of his parliament, reftore him to the confequencc 
 he had loft. The reft of his life was fpent in unfortunate wars with his re- 
 bellious children, inftigated thereto by the artful Philip of France. And the 
 pretence was grounded on a ftep that Henry had taken in favour of his chil- 
 dren, and I may add of his people, that of bringing the crown to a regular 
 courfc of fucceflion, and by that means preventing contefts upon a vacancy. 
 Hugh Capet, tlie firft of the prefent race of French kings, who came to the 
 throne by eledion, in order to perpetuate it in his family, invented that 
 praftice which his fucceflbrs followed for near three hundred years, of aflb- 
 ciating the eldeft fon, by caufing him to be crowned in the father's life- 
 time. 
 
 PIenry, who loved his children, and was fenfible that the not following 
 this praftice in England had occafioned tlie wars between William and 
 Henry the Conqueror's fons, and their brother Robert, as well as thofe 
 between Stephen and himfelf and his mother, crowned his eldeft fon 
 Henry. But the ufe which the ungrateful prince made of his advance- 
 ment, was to embroil his father, by demanding tlie immediate ceflion of 
 Normandy, on pretence that, being a king, he lliould have fome country 
 given up immediately to govern. Upon young Henry's death, the father, 
 who knew Richard, with greater capacity, was equally unnatural with his 
 elder brother, refolved not to give him the fame pretence to trouble him, 
 
 and
 
 Lect. 36. LAWS OF ENGLAND. 329 
 
 and refufcd obftinately to have him crowned ; but this refufal ferved itfelf 
 for a pretext for rebellion, as it gave Richard room to think, or at lead to 
 pretend to think, that his father intended to difinherit him, and to fettle the 
 crown on his youngefl and favourite fon John. In this rebellion Richard, 
 aflifted by the king of France, and many of Henry's fubjefts, who proba- 
 bly fufpefted Henry's defign was fuch as was fuggefted, prevailed, and the 
 father was obliged to engage that his fubjeds (hould take the oath of even- 
 tual allegiance to Richard, and foon after died of a broken heart, occafioncd 
 by the undutiful conduft of every one of his fons. 
 
 Richard accordingly fuccecded ; during whofe reign we have little to 
 obferve concerning the laws, the whole time of it being fpent in a continual 
 ftate of war either in Paleftine or France. Enormoufly heavy indeed were 
 the taxations his fubjefts laboured under, and yet they bore them with chear- 
 fulnefs. For the holy war, and the recovery of the fepulchre of Chrift from 
 the infidels, no aids could be thought exorbitant ; and for his wars after his 
 return he was readily fupplied out of afteftion ; for the remorfe he fliewed 
 for having occafioned his father's death, his admirable valour, the injuflice 
 of and the cruel treatment he received in his captivity, and, above all, the 
 oppofition between the perfidious conduft of the French king and his open- 
 nefs and fincerity, endeared him to his fubjefts, made them fliut their eyes 
 on his many failings, and bear their burthens with patience. 
 
 Two things only pafled in this reign proper for the fubje£i: of thefe lec- 
 tures, the fteps made for fettling the fucceffion of the crown, and the 
 laws of Oleron. As Richard was unmarried when he fet out for Paleftine, 
 he thought it proper to prevent, if he could, any doubt that might arife, 
 in cafe he died without iffue. There might, in this cafe, be two competi- 
 tors, Arthur, the fon of Geoffry, his next brother who was dead, and 
 John the youngeft brother, who was living. However clear the point is at 
 this day in favour of the nephew, it was then far otherwife. For Arthur 
 might be urged the right of rcprefentation. He reprefented his father 
 Geofi'ry ; in all the fiefs in France, the law was in favour of the ne- 
 phew ; nay, Glanville, who wrote in Henry the Second's reign in 
 England, as to Englifli eftates, declared to the fame purpofe ; and certain it 
 is that the general current of opinions at that time tended that way |. 
 
 Tt On 
 
 f Hale, hift. com. law, chap. 7.
 
 330 L E C T U R E S ON the Lect. 36. 
 
 On the other fide, it might be faid in favour of John's pretenfions, that 
 the examples of fiefs could be no precedents in cafe of crowns. Thefe re- 
 quired more ftriclly, a perfon capable of ading in perfon. That this was 
 the very cafe ; John was a man, Arthur a child ; that, allowing Glanville 
 to have laid down the law right, he had made a diftinftion, which comes up 
 to this cafe ; for he fays, the uncle fliall fucceed, if the father of the nephew 
 had in his life-time hetn forisfamiUated ; that Geoffry had been out of the 
 ■patri a poicftas of Henry, by being fovereign prince of Britany ; that in the 
 Saxon times two cafes, for the exclufion of infants, had happened, much 
 { ftronger than the prefent ; that when Edmund the firfl died in poffeflion of 
 ! the throne, his brother Edred fucceeded, not his fons ; and though Ed- 
 I mund Ironfide had been king, yet, after the Danifli ufurpation ceafed, his 
 brother the Cufifefllr was preferred to his fon, though of full age, whereas 
 Geoffry never had the crown ; that, fmce the conqueft, three feveral times 
 had the lineal fucceffic3n been fet afide by parliament. So that there were 
 not wanting plaufible arguments of each fide of the queflion, and it is with, 
 injuftice that modern hiilorlans,confidering only the maxims of their own 
 times, when a regular fucceffion has been eflabliflied, charge John with a 
 manifefl ufurpation of the crown of England. But that he was a manifeft 
 ufurper of the territories in France mufl; be allowed ; for, by the laws of 
 that country, they Ihould have gone to the nephew. 
 
 A QUESTION of this weight and difficulty fliould regularly have been 
 decided in parliament, which always hitherto had determined in fuch mat- 
 ters ; but Richard had never thought of the bufinefs till he left England, 
 and then it was too late to proceed in that method. He was obliged, there- 
 fore, to content himfelf with declaring, by his own authority, his nephew 
 Arthur his fucceffor ; and, to prevent John's tiaverfing his defign, he ex- 
 afted an oath from him not to fet foot in England for three years ; but from 
 this obligation he afterwards releafed him, at the requeft of their mother. 
 John ufed all his art to carefs the nobility, and to fupplant his nephew Ar- 
 thur, as he fondly hoped Richard would never return. And indeed, the 
 conduft of William Longchamp, bifliop of Ely, Richard's viceroy, contri- 
 buted greatly to his fuccefs ; for, as to oppreffions and outrages, he was not 
 exceeded even by William Rufiis himfelf. This gave John a pretext for 
 
 intermeddling
 
 Lect. 36. LAWS OF ENGLAND. 331 
 
 intermeddling to preferve the liberties of the people. He fent word to that 
 prelate, that if he did not refrain from his exorbitancies, he would vifit him 
 at the head of an army; which for fuch an occafion he might eafily raife. 
 
 A GENERAL aflcmbly, or parliament, was called, to compofe the dif- 
 ferences ; in which it was fettled, that Longchamp fliould continue in the 
 adminiflration, and hold the caflles during the king's life, but that, if he 
 died without iffue, they fliould be delivered to John as fucceflbr ; and this 
 agreement was ratified by the oaths of all the nobility and prelates, fo that, 
 as Arthur had the decifiou of the king in his favour, John by this means 
 attained that of the people. Senfible how much this ftep muft offend the 
 king, and of the dangerous predicaments he mufl (land in fliould he return, 
 he fparcd no pains to afcend the throne even in the life of his brother, in 
 which he was cordially fupported by the king of France. But all his efforts 
 were baffled by the vigilance of the regency, who had been appointed on 
 Longchamp's depofition, and was more necelfary from his continuing in his 
 former extravagancies. John even gave out that Richard was dead, and 
 feized feveral caftles, which he put in a ftate of defence. He was, how- 
 ever, foon reduced, upon the king's return, and all his treafonable prac- 
 tices pardoned at the interceflion of his mother. When Ilichard came to 
 die, he changed his mind as to Arthur, and by will appointed John his 
 fuccefibr : an alteration, confidering his former attachments to his nephew, 
 who had never offended him, that could proceed from nothing but his 
 unwillingnefs to leave his dominions involved in a civil war through the 
 intrigues and intereft of his brother. 
 
 The laws of Oleron concerning naval affairs are the only fpecimen of 
 this prince's legiflative capacity. They were made at the iffe of Oleron, 
 tiff" the coaft of France, where his fleet rendezvoufed in their paflagc to the 
 Holy Land, and were defigned for the keeping of order, and the determi- 
 nation of controverfies abroad. With fuch wifdom were theft laws framed, 
 that they have been adopted by other -nations as well as England. And, I 
 think, to this time we may, with probability enough, refer the origin of the 
 admirality jurifdidion. In his reign, for the firfl: and the lall: time, was 
 raifed the feudal aid, for the redemption of the king from captivity. 
 
 T t a Not.
 
 332 L E C T U R E S ON the Lect. 36. 
 
 Notwithstanding all the faults of this prince, his firmnefs againft the 
 papal power is to be commended. Two of his bifliops having a controverfy, 
 there was an appeal to the pope, who fent a legate to determine it ; but 
 Richard prevailed on the parties to refer it to his arbitration, and would 
 not fuffer the legate to enter England, till he had inade an end of the bufi- 
 nefs ; and when he did come, the king fuflered him not to excercife his 
 legatine power in any but one fingle point, and that by his exprefs permif- 
 non, Notwithflanding all the fteps taken in favour of John, in order to 
 pave the way for his fucceflion, the notion of Arthur's hereditary right had 
 taken fuch flrong root in the minds of many, that, had he been in lingland, 
 and of a fufficient age to manage his affairs, he might have had a fair pro- 
 Ipedl of fuccefsf. 
 
 The lower people indeed were eafily prevailed on by his agents to take 
 the oath of fealty to John, while the prelates, and nobility in general, re- 
 tired to their caftles, as deliberating what fteps they fliould take ; but, at 
 length, by magnificent grants, and more magnificent promifes, they were 
 prevailed on to come in, and he mounted the throne without oppofition. 
 But in the French provinces his ufurpation met with more refinance. Ar- 
 thur had many partizans, and his caufe was efpoufed by Philip of France, 
 the lord paramount, not with an intention to flrip John of all ; for that, 
 with Britany, would have made Arthur too powerful ; but with a dcfign to 
 divide the dominions more equally betvi'een them, and perhaps to clip off 
 a part for himfelf, as he afterwards did Normandy, as being forfeited by a 
 fentence of the peers of France, by John's murder of Arthur. By the way, 
 I fhall obferve, that this fentence was notorioufly urjuft. By the laws of 
 France, Artliur was the undouted heir of Normandy, and on his death his 
 filler ought to have fucceeded, nor ought the duchy to have been forfeited 
 by the crime of a wrongful poffeffor. Or, taking it the other way, that 
 Philip had a right to choofe his vaffal, and, confequently, that the invefti- 
 ture he gave to John was valid ; then was he rightlul duke of Normandy, 
 and Arthur, as duke of Britany, was his vaffal, and had juflly forfeited his 
 life, by rebelling and endeavouring to depofe his liege lord. That John 
 was guilty of this crime there v/as no room to doubt ; and truly, from the 
 whole of his conduft from that time, he fcemed to have been infatuated by 
 the terrors of his confcience ; for it was but little lefs than frenzy. He 
 
 knew 
 f Mare Clauf. 386. Kennet's hiftorians. Hume. Carte.
 
 Lect. 36. LAWS OF ENGLAND. 333 
 
 knew he was, by this cruel aft, become the dcteftation of his fubjecls in 
 general, and that his father, in the niidft of his power and popularity, had 
 been humbled by the Pope ; and yet, at the fame time, he trampled on the 
 liberties of the former, and opprefled them in the moll outrageous manner, 
 and while his fubjeits were thus difatlctled, he openly let the latter at 
 defiance* 
 
 To this reign, however, fo inglorious, and fo miferable to the Englifh o£ . ^c^^t.j^-'^ 
 
 that age, do their fucceffors owe the afcertaining their, liberties. He was, z' 
 
 if we except William Rufus, the firft of the kings that openly profeffed to 
 rule by arbitrary power. I do not mean to deny that every one of his pre- 
 deceffors from the Conqueft had, in fome particular or other encroached 
 on their people, but then there were either peculiar circumftances of di- 
 ftrefs, that almofl enforced and excufed them, or one or two wrong fteps 
 were atoned for by the greatnefs and goo Jnefs of their general conduft. It 
 is very obfervable, that, as England is almofl; the only country in Europe 
 that hath preferved its liberties, fo was it the firfl wherein the kings fet up 
 for abfolute power : and the prefervation of them, I apprehend, was in a 
 great meafure owing thereto, that this claim was ftarted there when the feu- 
 dal principles, and the fpirit of independency, except only in feudal mat- 
 ters, were in their vigour, and confcquently raifed fuch a fpirit of jealoufy 
 and watchfulnefs, as, though it hath fometimes flept, could never be extin- 
 guiflied ; whereas, in, other countries, the progrefs of arbitrary power hath 
 been more gradual. It hath made its advances when the feudal fyftem was 
 in its wane, and when the minds of men, by the introduction of the civil 
 and canon law, were prepared for it. 
 
 What encouraged the kings of England to attempt this fooner than 
 other monarchs, we may judge, was the greater difparity in riches between 
 them and their vaiTals, than was in other countries 4 fo that nothing much 
 lefs than a general confederacy could curb them ; whereas, abroad, two or 
 three potent vaiTals were an overmatch for the fovereign. Befides, having 
 fubjeds on each fide of the water, not knit together in any common intcrefl:, 
 they might hope to ufe the one to quell tjie other. But whatever was the 
 caufe, fo was the fixd ; and John, even before the death of Arthur, having 
 removed the dread of a competitor, fliewed, by a mofl extraordinary ftep, 
 
 what.
 
 334 L E C T U R E S ON the Lect. 36. 
 
 what kind of fovereign he was like to prove. By the law of thefe days a 
 vaflal was to pay his relief to his fuperior out of his own demefnes, and the 
 profits of his feignory, and had no right to demand aid for that purpofe 
 from his fub-vaflals ; John having detached Philip from his nephew's in- 
 tereft, by ceding a part of his French territories, was to pay twenty thou- 
 fand marks for the relief of the reft ; and, to receive this fum, he, by his own 
 authority, laid three fliillings on every hide of land in England ; thus 
 making England to pay that relief for his foreign dominions, which his 
 foreign fubjefts thenifelves were not obliged to pay. 
 
 The next inftance was in favour of the Pope, under pretence of the holy 
 war. Innocent had laid a tax upon the clergy, of the fortieth of their reve* 
 •lues, and fent a colle£i:or to England to gather it, whom John, of his own au- 
 thority, empowered to collect it from the laity. Thefe two impofitions were 
 fubmitted to, in as much as there was no plan of oppofitidn then formed ; 
 but they afterwards occafioned great difcontent among a people, who thought 
 no taxes could be ralfed -ft ithout their own confent. Accordingly, the next 
 time he fumm.oned his military tenants to attend him into France, they af- 
 fembled at Leicefter, and agreed to refufe attendance, unlefs he would reftore 
 their privileges ; for though, by the law of the Conqueror, they were ob- 
 liged to go, they looked upon this obligation as fufpended by his behaviour. 
 Howevejn^r, they had not yet fufficiently fmarted, to unite them thoroughly, 
 and this affair was made up by his accepting a fcutage. 
 
 To enumerate all the exorbitancies he committed would be tedious, and 
 unneceffary, as the remedies prefcribcd in Magna Cbarta fufficiently point 
 out the grieviMices. Let it fuffice to fay, in general, that he oppreffcd his 
 militarv tenants by exacting extravagant reliefs, by difparagcment of heirs, 
 by wafting his wards lands, by levying exorbitant fcutages, by fummoning 
 them to war, and delaying them fo long at the place of tranfportation that 
 thev were obliged to return home, having fpent all their money ; or, when 
 they were tranfported, keeping them inaftive till they were obliged to re- 
 turn for the fame reafon, and then, without trial, fcizinp; their lands as for- 
 feited. The fame oppreflions he extended to others, feized lands and tene- 
 ments
 
 Lect. 36. L A W S OF E N G L A N D. 335 
 
 merits at will and pleafure, imprifoned whom he pleafed, laid heavy talli- 
 ages on the focage tenants and boroughs, without any regard to the privi- 
 leges they had obtained from his predeccflbrs ; and having, by thefe means 
 excited the deteflation of his fubjcds, and forfeited his reputation by lofmg 
 Normandy by his indolence, he took it into his head that he was a match 
 for the Pope, and engaged in a conteft with his Holinefs, which fubjefted 
 him and his kingdom to the Roman See, tho' eventually it contributed not 
 a little to the recovery of his fubjefts liberties, f The manner in which this 
 happened (hall be the fubjedl of the enfuing ledure. 
 
 f Brady, Daniel, Tyrrel, and the general hiftories of England. 
 
 LECTURE
 
 336 L E C T U R E S ON the Lect. 37. 
 
 LECTURE XXXVII. 
 
 John^s difpufe with the court of Rome — Cardinal Lanpon promoted to be Arch- 
 bijhcp of Canterbury — Tope Innocent lays the kingdo?n under an interdid — 
 John is excommunicated — His fubmijfwn to Innocent — The difcontents of the 
 Barons — Magna Charta and Chart a de Forejia — An examination of the quef- 
 tion. Whether the rights and liberties, contained in thefe charters, are to be 
 confidered as the antient rights and liberties of the nation, or as the fruits of 
 rebellion, and revocable by the fuccejjhrs of Juhn ? 
 
 F Alexander the Third fhewed the grandeur of the pontifical power in 
 humbling Henry the Second, the difplaying it in its full glory was referved 
 for Innocent the Third who now reigned, and who being promoted to the 
 papacy at the age of thirty feven, had vigour of body and mind to carry 
 every point he engaged in, and was rcfolved to puih his power to the utmoft. 
 Having tafted the fweets of Englifli gold, in the collection made under pre- 
 tence of the holy war, he had a great defire to renew the experiment ; and 
 that he might be able to proceed with the lefs oppofition, was refolved to 
 have an archbifliop of Canterbury at his devotion ; and the See falling va- 
 cant, a controverted election furnilhed him with an opportunity. 
 
 The eleflion belonged to the convent of Chrifl-church, though it was 
 contefted with them by the futfragan bifhops. The very night the arch- 
 bifliop died, a faftion of the younger monks refolving to have an archbifliop 
 of their own chufmg, aflembled, and chofe Reginald fub-prior of the 
 convent, and Cent hlrii oiT 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 irom the king's prerogative, that of a previous licence 
 for proceeding to eleftion ; and Innocent had already fliewn that he looked 
 on himfelf as monarch of monarchs. But as they could not expcd the 
 Pope would take this ftride in fupport of a clandeltine election, they all 
 took an oath of fccrecy, to be obfcrved till the confirmation was obtained. 
 
 But
 
 Lect. 37. L A W S OF ENGLAND. 337 
 
 But Reginald's vanity defeated tlie fclieme, and made him divulge it, 
 which fo provoked his eleftors, that they joined with the others, petitioned 
 the king for a Hcenfe, and eledted, at his recommendation, the bifliop of 
 Norwich, and twelve of the monks were difpatchcd to folicit his confirma- 
 tion. The fuffragan bidiops oppofed him, as being elected without their 
 concurrence, which point was determined for the convent by Innocent ; 
 notwithftanding which, without ailigning any invalidity in the fecond elec- 
 tion, he annulled it as well as the firft, and recommended to the twelve de- 
 puties to eleO: Stepiien Langton, an Englifliman and a cardinal. At 
 iirft they demurred, as having no authority ; but the threat of inllant ex- 
 communication compelled them to obey. And then, as if they had done 
 notliing out of the way, he recommended Langton to John in a very civil 
 letter. The king, enraged to the higheft, turned the monks of Canterbury, 
 who were entirely innocent, out of their convent and the kingdom, and 
 threatened the Pope tliat he would fuffcr no appeals. Innocent, who had 
 before this humbled Philip of France by an interdift, and knew the man 
 he had to deal with, proceeded very calmly, to order three bifliops to 
 exhort the king to receive Langton, and recall the monks ; and, in cafe 
 of non-compliance, to lay tlie kingdom under an interdici f . 
 
 The name of interdlft frightened John, who knew how much he was 
 
 hated. He offered to comply, if he might be allowed to make a protefta-/x A^X-*, 
 
 tion of a faving his dignity and prerogative ; but no falvo would be allowed; ' > , 
 
 the interdid was publiflied. Divine fervice ceafed through the kingdom, J ki^'' 
 
 except in a very few places, where fome clergymen were found honeft and 
 
 bold enough to preach againft the Pope's proceedings. John, in revenge, 
 
 fleeced the clergy in a mofl horrible manner ; and, v/hat is yet more fur- 
 
 prifing, did not defift from oppreffing the laity. However, as to the points 
 
 in contefi, he was not obftinate ; he offered more than once to fubinit ; 
 
 but Innocent had more extenfive views. There was no remiiTion without 
 
 he refunded to the churchmen every farthing he had extorted from them 
 
 a thing abiblutely out of his power. Then followed, after fucceffive delavs 
 
 calculated to ihew that the holy father would give his undutiful fon time 
 
 to repent, a fentence of excommunication by name, a bull abfolving his 
 
 fubjeds from their oath of allegiance, and commanding all perfons to 
 
 U u avoid 
 
 Kennet's hiflorians. Hume. Carte.
 
 338 LAWS OF ENGLAND, Lect. 37. 
 
 avoid his company ; and, laftly, a fentence of depofition, and a grant of all 
 his dominions to the king of France, who had been invited alfo by John's 
 fubjedts, whofe patience had been by this time quite exhaufled vi'ith his 
 tyranny, and the fufpenfion of the performance of Divine fervice. 
 
 Philip was very ready to execute this fentence, and affembled a nume- 
 rous army. Randulf was fent, as the Pope's legate, to fee the fentence of 
 depofition put in execution ; but, in reality, with fecret inflruftions of a 
 very different nature ; for it was by no means Innocent's intention to give 
 England to France, but to fubjeft it to himfelf. John, terrified with the 
 exaggerated account of Philip's armament, and the difaffeftion of his fub- 
 jects, fubmitted in every point before in conteft, and in one new one, that 
 no clergyman fliould be outlawed. But this was not fufficient to. avert 
 the danger from Philip, and his own difaffedted barons. To make 
 him facred and invulnerable, he became a vaffal to the Pope, refigned his 
 kingdom to him by a formal charter, and received it again as a favour, 
 under homage, and a yearly rent of a thoufand marks. 
 
 In confideration of this fubmiffion, John was favoured in the point of 
 indemnifying the clergy, which M'as what had fo long retarded the accom- 
 modation. Innocent took the eftimating this on himfelf, and having got 
 all he wanted for the See of Rome, forgot his former clients the clergy, 
 and was very moderate with his new vaffal. However, the interdift was 
 not removed, nor the king abfolved from his excommunication, till Lang- 
 ton was put into poffeffion ; which when done, John was obliged to renew 
 his homage, to fwear to defend church and clergy againfl; all their adver- 
 faries, and to make reftitution ; and then he was abfolved. But there 
 was one curious addition to this oath, which Langton, who was an Englifn-- 
 man, and a lover of liberty, certainly inferted of his own head, that he 
 fliould redore the laws of the Confeffor : For Innocent would never, we 
 may be well affured, have allowed fuch privileges to his vaffals. John, 
 however, out of fear of Philip, being in an hurry to be abfolved, made no 
 obieftion ; and indeed he had no reafon to doubt the Pope would abfolve 
 him from his oath. But Langton and the nobles were refolved to keep 
 him ftriaiy to it. Soon after, while he was in France, his regents fum- 
 moned a parliament, wherein the king's peace was proclaimed, and the 
 
 itiws
 
 •Lect. 37. LAWS OF ENGLAND. S39 
 
 laws of Henry the Firft were revived. Thefe were thofe he had fworn to 
 reftore, being in truth the Confeflbr's, with a few additions and alterations 
 by the Conqueror and Henry. 
 
 John, however, went on in his old courfes, being now fure of the Pope's 
 proteftion, 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 fo carefully were they deflroyed, that not one 
 appeared. At length archbifhop Langton furniflied them with one, which 
 had efcaped tlie general calamity ; and this the aiTociatcd barons, who had 
 determined to reftrain John, and recover their liberties, made the bafis of 
 their demands, and fwore to demand, and if refufed, to vindicate with 
 the fword, at a meeting they had at Edmundlbury under pretence of 
 ■devotion. Accordingly, they waited on the king in a military drefs, and 
 made their demands ; but he, feeing they were only a party among the 
 nobles, and not imagining the reft were of the fame fentiments, not only 
 refufed, but with haughtinefs infifted they fiiould renounce them, by gi- 
 ving under their hands and feals, that they would never make the like de- 
 mand on him or his fucceflbrs. But his eyes were opened when he found 
 fcarce two or three of thofe that were with him would comply. He had 
 recourfe to procraftination, and promifed them fatisfaction at the latter end 
 of Eafter. In the interim he exaded a new oath of allegiance from his 
 fiibjeflis ; a feeble precaution ; for none refufed it, or thought themfelves 
 jjrecludcd by that afi: of duty from vindicating their rights in what man- 
 ner they bell might. To fecure the clergy, he gave them a charter, con- 
 firming their immunities, and the entire freedom of their eleftions ; and 
 yet a great multitude continued zealous for the liberty of the fubjefl: againft 
 him ; but his main dependance was on religion. To render his perfon 
 facred, he afiumed the crofs, as if he intended for the holy war, and im- 
 plored the proteftion of his Holinefs, to whom the difcontented barons alfo 
 reprcfcnted the juftice of their pretenfions. Innocent, in appearance, re- 
 ceived them favourably, advifed them to reprcfent their hardfliips in a de- 
 cent and humble manner to the king, in which cafe he would interpofe in 
 favour of all their juft and reafonable petitions ; but annulled their affocia- 
 don, and forbad them to enter into any new one for the future, 
 
 U u 3 The
 
 340 LECTURES OK the Lect. 37. 
 
 The barons, who fent to the Pope rather out of refpecl than any expec- 
 tation of favour, proceeded in the method they began. They and their 
 vafTals aflembled in array, in fuch numbers as to compofe a formidable 
 army ; and v.hen they had particularly fpecified their demands, and were 
 refufed, they proceeded to attack him, by reducing his caftles. Againft 
 himfelf, as beinpf under the crofs, they made no attempt. On this occafion, 
 archbifliop Langton, who was at the bottom of the whole confederacy, out- 
 witted John ; who, as they had difobeyed the Pope, was impatient to have 
 them excommunicated, and this the Pope promifed to do as foon as the 
 foreign troops, which the king had brought over for his defence, had quit- 
 ted the king-dom ; but when they were gone, he broke his engagement, fo 
 that John, left defencelefs, was obliged to appoint four nobles to treat with 
 the revolted lords ; and, upon conference, fome points they had infifled on 
 before being given up, the liberties of the nation were fettled, as contained 
 , in the two charters of Magna Charta , and Charla de Forejia f . 
 
 The manner of obtaining thefe charters, and the right the people have 
 to the liberties contained in tliem, have been the fubjeft of much controveify 
 between the favourers of arbitrary power and the aflertors of freedom ; the 
 one, contending that they were the fruits of rebellion, extorted by force 
 and fraud, from a prince unable to refifl:, and therefore revocable by him 
 or his fuccefTors ; and the others, that they were the antient privileges of the 
 nation, which John had, contrary to his coronation-oath, invaded, and which 
 thev therefore had a right to reclaim by arms. That they were obtained 
 by force, is undoubted, and that John and many of his fucceffors looked 
 upon them, therefore, as of no validity, is as clear, even from the argument 
 lord Coke brings for their great weight, their being confirmed above twenty 
 times by aft of parliament. To what purpofe fo many confirmations, if the 
 kings had not thought them invalid, and had not, on occafions, broke 
 through them ; and were it as clear that they were not the antient rights of 
 the people, it muft be owned they were extorted by rebellion. But that 
 they were no other than confirmations, appears very plainly from the fliort 
 detail I have heretofore given of the conflitution and fpirit of the mo- 
 narchy of the Saxons, and all other northern nations. 
 
 •j- Blackftone's difcourfe concerning the hift. of the charters. Gurdon's hift. of Parlia* 
 incnt. Hale, hill. com. law, cli, 7. 
 
 4' As
 
 Lect. 37- LAWS of ENGLAND. 341 
 
 As to any new regulations introduced in them, as fome there arc, they 
 are only precautions for the better fecuring thofe 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 abfolute power, fenfible that the original con- 
 ftitution is againft them, choofe to look no farther back than the Conqueft. 
 Then, fay they, the Saxon government and laws were extingulflied, the 
 Englifli by the Conquell loft their rights, the foreigners had no title to 
 Englifh liberties, and the Conqueror and his fon William aded as defpotic 
 monarchs. Therefore, their fucceflbrs had the fame right, and it was trea- 
 fon to think of controullng them. But how little foundation there is for 
 this dodrine, may appear from what I obferved on the reign of the Con- 
 queror. He claimed to be king on the fame footing as his predeceffors ; he 
 confirmed the Saxon laws, and confequently both Saxons and foreigners, 
 when fettled in the kingdom, had a right to them. If he opprefled the 
 Englifli, that oppreflion did not extend to all ; and to thofe it did, it was 
 not exercifed as upon conquered flaves, but as upon revolted rebels. But, 
 for argument fake, to allow that the Englifli became flaves, and tliat the 
 foreign lords had no right to the Saxon privileges, both which are falfe, 
 how came the king to be defpotic fovercign over them ? They were partly 
 Jiis own fubjeds, freemen, according to the feudal principles, who ferved 
 him as volunteers, for he had no right to command their fervice in England ; 
 or volunteers from other princes dominions, and to fay that freemen and 
 their pofterity became flaves, becaufe they are fo kind as to, conquer a king- 
 dom for their leader, is a moft extraordinary paradox. 
 
 But "William the Conqueror, in fome inftances, and his fon in all, adled 
 as defpotic princes ; therefore they had a right fo to do. I anfwer, the tri- 
 umvirs profcribed hundreds of the befl Romans, therefore they had a right. 
 It is as unfafe to argue from matter of faft to matter of right, as from mat- 
 ter of right to matter of faft. It is as abfurd to fay, Tarquin ruled abfo- 
 lutely, therefore the Romans were rightfully his flaves, as to fay the Romans 
 had a right to liberty under him, therefore they were free. 
 
 But it may be faid, the people quietly fubmitted, and new rights may be 
 acquired, and new laws made, by the tacit confent of prince and people, as 
 
 well
 
 42 L E C T U Pv E S ON the Lect. 37. 
 
 well as by exprefs legiflation. I allow it where the confent is undoubtedly 
 voluntary, and hath continued uninterrupted for a long fpace of time ; and 
 how voluntary this fubmiffion was, we may judge from the terms they 
 made with Henry the Firft, before they fuffered him to mount the throne. 
 Befides, there are fome points of liberty, eflential to human nature, that 
 cannot, cither by exprefs or tacit laws, be given up, fuch as the natural 
 right that an innocent man has to his life, his perfonal liberty, and the 
 guidance of his anions, provided they are lawful, when ;the public good _ 
 doth not neceflarily require a reftraint. In fliort, never was there a worfe 
 caufe or worfe defended ; and this maxim was what influenced the condud 
 "of the Stuarts, and precipitated that unhappy houfe to their ruin. 
 
 John, wlio entertained the fame fentiments, had no refourcc to recover 
 liis lofl rightSj as he thought them, but the affiftance of the Pope, and an 
 army of foreigners. The firft very cordially efpoufed his intereft. He was 
 provoked that he, who had humbled kings, fliould be controuled by petty 
 lords, and that by thefe privileges he fliould be prevented from reaping 
 that "-olden harveft he cxpefted from England. He annulled the charters, 
 commanded them to recede from them, and, on their difobedience, excom- 
 municated them, firft in general, and then, by name. 
 
 About the fame time arrived an army of veteran foreigners, that came 
 to afllft John, who had, in imitation of the Conqueror, diftributed to them 
 the eftates of the barons. With thefe and a few Englifli lords, he took 
 the field, and ravaged the country with a more than Turkifli barbarity. The 
 confederate barons faw the liberties they had contended for annulled, their 
 lives and eftates in the moft imminent danger, and, in a fit of defpair, invi- 
 ted Lewis, prince of France, to the crown, who, bringing over an army, 
 faved them from immediate deftruclion. However, this ftrengthcned Jolin, 
 It was not for any to ftand neuter. Few chofc to embark in an excommu- 
 jiicated party, and many, who faw flavery unavoidable, and nothing left 
 but the choice of a maftcr, preferred their countryman for a king to a fo- 
 reigner. The lofs of liberty now feemcd certain, which ever prevailed ; 
 when the haughtincfs of Lewis, and his want of confidence in the Englifli 
 noblemen who joined him, concurring with the death of John, and the 
 innocence of his infant fon, providentially prefervcd the freedom of 
 
 <England. 
 
 LECTURE
 
 Lect. 38. LAWS OF ENGLAND. 
 
 343 
 
 LECTURE XXXVIIL 
 
 The minority of Henry HI. — Ecclefiajlical grievances — The difpenfmg power 
 
 The canon law — Confirmation of Magna Charta — A commentary on Magna 
 Charta, in fo far as it relates to what now is law. 
 
 JOHN left his minor fon under the guardianOiip of the earl of Pem- 
 broke, a nobleman of great abilities, and the llriaefl integrity. The 
 firfl flep he took for the benefit of his pupil, was the confirmation of the 
 charters, and the next was a negotiation with the revolted lords, who be- 
 gan to be difcontented with the prince of France ; which fucceeded fo hap- 
 pily, that in a fliort time he brought them all over with very little bloodfhed, 
 and Lewis was obliged to quit the kingdom. Peace being re-eflabliflied 
 the regent applied himfelf with all diligence to reflore the peace of the king- 
 dom, and juftice to her regular courfe : And had he lived long enough to 
 form the conduft and principles of the young king, England never had 
 a fairer profpeft of happinefs ; but he foon dying, and his fucceffors being 
 men of a different flamp, fuch principles were fown in the monarch's mind, 
 as, in the event, produced bitter fruit both to him and the whole king-- 
 dom. 
 
 This reign was as calamitous as the preceeding one, and rather more 
 fliameful ; and what added to the misfortune, it lafted three times as long. 
 As foon as Henry came of age, he revoked Magna Charta, as being- an aft 
 of his nonage, foon after he confirmed it, then broke it, then confirmed it 
 by oath, with a folemn excommunication of all that fliould infringe it ; 
 then he obtained from the Pope a difpenfation of his oath, and broke it 
 again. And thus he fluftuated for fifty years, according as his hopes or 
 fears prevailed. However, in general, the charter was pretty well obfcr- 
 ved. The great point it was infringed in, was the levying money without 
 the parliament, and in this he frequently prevailed, being affifted by his 
 Lord Paramount, the Pope. They joined in' levying taxes, and then divi- 
 ded the fpoil between them. Indeed, thsir Holineffes had, upon each occa- 
 
 fibn
 
 344 L E C T U R E S ON the Lect. 38. 
 
 fion, by much the greater fliare ; for they not only fleeced the clergy fepa- 
 rately, but drew vafl: funis from the kmg, on pretence of a foolifli projed 
 of making his younger fon king of Sicily j all which they fquandered on 
 tlieir private occafions. 
 
 In this reign they i ntroduced the practice of proviforfliip, againft which 
 fo many ads of parhament have been made. It went on this maxim. That 
 the Pope was univerfal pallor of the church, and confequently fole judge 
 who fliould be his deputy in any particular place. The inference neceffa- 
 rily followed, that the rights of patronage to livings, whether in a Bifliop or 
 lay patron, were, ftridly fpeaking, no rights at all, being fuch only where 
 the Pope did not chufe to interfere. But this privilege would have been of 
 little fignificance, if they could aft only in the vacancy of a living ; for it 
 would generally have been filled up before he could have notice. Bulls of 
 proviforfliips were, therefore, invented. Thefe were charters of the Pope, 
 directed to tfie bifliop, acquainting him, that he had provided for fuch a 
 perfon, by appointing him to fuch a benefice, when it fliould become va- 
 cant, or the firft benefice of fuch a value that fliould fall ; fl-rittly forbidding 
 the Bifliop to admit any other perfon, upon any account whatfoever. 
 Sometimes the perfon provided for was not named ; but notice was to be gi- 
 ven when the vacancy happened. In procefs of time a number of livings 
 were refolved in the fame bull ; nay, one went fo far as to forbid any living 
 that fliould fall to be filled, till the Pope had provided for three hundred per- 
 fons. Such were the delightful confequences of John's homage, and of 
 England becoming St. Peter's patrimony ; fo that the monkifli hifl:orians 
 tell us that Rome fiieared all Europe ; but in England they flayed off" the 
 fkin. An account was taken at one time of the value of Englifli benefices pof- 
 fefied by Italian priefl;s, non-refidcnts, and it was found to exceed the ordi- 
 nary revenue of the crown. All thefe bulls concluded wtih i mn ohjlante^ 
 that is, notwithfl;anding any laws, cuftom, privilege, right or patronage, or 
 any thing elfe whatever ; and this hopeful precedent Henry the Third adop- 
 ted in nis charters, thereby, if he could not repeal, at leafl: making ineffec- 
 tual the laws of the land ; and thus began the king's claiuiing a difpcnfing 
 power over the laws j-. 
 
 In 
 
 ■f Sir Robert Atkins on the difpenfing power. Bibliotheca Politica. The general hif- 
 tories of England.
 
 Lect. 38-. L A W S o F E N G L A N D. 345 
 
 In this meridian of the Pope's power was the canon law introduced 
 into England, and it foon began to ufurp confiderably on the civil courts ; 
 infomuch that, had not the common law judges exerted themfelves to 
 check the ecclefiaftical court by prohibitions, which they did even in 
 this reign, it would have gained the fame afccndant that it has in the 
 Pope's territory. 
 
 The latter end of this reign was filled with a fucceffion of troubles, occa- 
 fioned by the repeated breaches of the charters, and fomented by the ambi- 
 tion of fome of the great nobles ; however, in the end, the king prevailed, 
 by the affiftance of his fon ; but it was found expedient, even in the midft 
 of viftory, in order to prevent future convulfions, to eftablilh the liberties 
 of England, by confirming Magna Charta ; and they have ever fincc flood 
 their ground. I fliall therefore proceed briefly to fpeak to Magna Charta^ 
 and in fo doing fliall omit almofl all that relates to the feudal tenures, which 
 makes the greatefl part of it, and confine myfelf to that which now is 
 law.. 
 
 The firft chapter of Magna Charta, as confirmed in the 9th year of Hen.^ 
 ry, which is that now in force, and differs from that of John in fome omif- 
 fi.ons, concerned the freedom of the church, in which was principally in- 
 cluded the freedom of ele£tions to Bifliopricks, which, fince the reforma- :i /.T 
 tion, has been taken away. I fliall, therefore, proceed to thofe that con- 
 cern the laity ; the five next are feudal, and the feventh is concerning wi- 
 dows. It firfl gives them free liberty to marry or not ; whereas, before, 
 fuch as were called the king^s widows, that is, thofe who held lands, or whofe 
 hufbands held lands of the king, had been obliged to pay for licenfe to 
 marry if they had a mind, or were diftrained to marry, if they had no 
 mind, which it is unncceffary to fay was a grievous opprefTion. It reflrains 
 the taking any thing from the widow for her dower, or for her own land, 
 which her hufband had held in her right. It provides for her quarantine^ 
 that is, gives her leave to flay forty days in her hufband's houfe, unlefs fhe 
 had dower afTigned to her before, and within that time orders the 
 third part of her hufband's land to be afTigned her by the heir, as her 
 dower ; and that, in the interim, flie fliould have reafonable eflovers f . 
 
 X X The 
 
 •J-.RuiFiiead, vol. i. .
 
 346 L E C T U R E S oM the Lect. 38. 
 
 P The next is in favour of the hn^s debtors^ and their fecurities. By the 
 
 old law, the king's profit was fo highly favoured, that he could, to fatisfy 
 his debt, feize the chattels or extend, that is, take the profits of the real 
 eftate of his debtor, at his pleafure ; or he might, in the firft inftance, come 
 on the fecurity, without attacking the principal debtor. For remedy hereof, 
 it forbids the king, or any of his officers, feizing the land, while the debt- 
 or's perfonal chattels are fufficient. It forbids, alfo, the diflraining the fecu- 
 rities, while the debtor's chattels were fufficient. If they were not, the king 
 had the option either to feize the land of the debtor, or diftrain the fecuri- 
 ties ; and if the latter was done, it provides, that the fecurities fliould have 
 the land, until they are reimburfed. Immediately after this, in king John's 
 charter, followed the law prohibiting the king from levying any talliage or 
 tax on the focage tenants, or on boroughs, without affiant of parliament, 
 which is here omitted ; and this king and his fon Edward affertpd and exer- 
 cifed the right ; but the laft was at length obliged to give it up, in the fa- 
 mous ftatute de tatlagio non concedendo, and not till then were thefe ranks of 
 the people entirely emancipated. This omiffion for a time rendered illufo- 
 
 y ry the next, the ninth chapter, which provides that the city of London and 
 all the other cities, boroughs, and ports, fliould enjoy all their ancient liber- 
 ties and cuftoms ; for thefc would be of little ufe whilfl; arbitrary taxation 
 
 /^ remained. The tenth Is in affirmance of the common law, that no perfon 
 
 fliould be diftrained for more rent or fervices than he owed out of the land. 
 
 If he was, he had a double remedy, either by a fuit in replevin, or by the 
 
 /) writ called ne injujle vexes. The next is for fixing the court of Common 
 
 Pleas, of which I fpoke already. The twelfth was for the eafe of the peo- 
 
 /'? pie, by taking affizes in the country. But thofe adions are out of ufe 
 now. The thirteenth is concerning affizes too. I haften therefore to the 
 ■^ fourteenth that treats of amerciaments. 
 
 , Amerciaments come from the word mercy, and are fo called from the 
 
 ' / words in the record, _/// in mifcreeurdia pro f alfo clamore fuo, and were pro- 
 perly, though the word hath been fince extended, what a plantiff or defen- 
 dant that had troubled the king's courts fliould pay by way of puniftiment 
 for maintaining an unjuft fuit ; whereasyf;2a, to which they bear a refem- 
 blancc, and with which they have fometimcs been confounded, were for of- 
 . fences,
 
 Lect. 38. LAWS OF ENGLAND. 
 
 347 
 
 // 
 
 fences, and afleffed by the couit ; as were amerciaments a!fo fomctimes, 
 and very grievoufly, though entirely againfl law. This aft reftores the 
 common law ; orders the amerciaments to be proportioned to the nature of 
 the cafe, and alfo, in regard to the man's circumflances, fo that he fliould 
 not be ruined thereby ; that no freeholder ftiould be amerced in fo heavy 
 a manner as to deftroy his freehold ; no merchant, his merchandize ; no 
 villain, his carts, whereby he would be unable to do his lord's fervices ; no 
 ecclefiaftic according to the value of his benefice, but only according to his 
 lay property. And that this might be conftantly obferved, the amercia- 
 ments were to be affertcd, or fettled by the man's peers. It may be afked, 
 what remedy had the man, who was too feverely amerced by his peers ? 
 On this adt was grounded the writ of moderata Tiiiferecordia, whereby this 
 amerciament may be tried by another jury, and moderated. 
 
 The fifteenth provides, that none fliould be diftrained to repair bridges, /^ 
 or landing places, but who are bound by their tenures or cuftom. The 
 fixteenth for the free navigation in rivers, and unloading of goods, llie 
 feventeenth takes away the power of trying pleas of the crown from flierifFs, / 
 conftables and coroners, and other inferior officers ; a very necpflary law, 
 upon-account of the great value of the life of an individual, efpecially as 
 none but the king's courts could give the benefit of clergy. However, 
 flierift's and coroners can take indiilnie/iis ; for that is not trying, but bring- 
 ing the matter into a method of trial. The eighteenth concerns debts due /" 
 to the king where his debtor is dead. By this law, the firft duty of execu- 
 tors is to pay the debts of the deceafed ; thofe of the higheft nature, not 
 as to value, but in quality, in the firfl: place, then the lower ones : and if the 
 effefts were not fufficient, it was in their option to pay one creditor of the 
 fame nature without another, fo that they obferved the rule of not paying 
 the lower debtor before the higher. But the king, be his debts of what 
 nature they would, by his prerogative, had the preference of all creditors, 
 and' by colour hereof his officers often feized and embezzled the effisfts of 
 the deceafed, to the prejudice of other creditors and legatees. This or- 
 ders the flierift' 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 rcftored to the 
 
 X X 2 executors..
 
 34S L E C T U R E S OM the Lect. 38. 
 
 7^u.t>/t f ^/ f ) ^'"^^'^"to""^- The two next are feudal. The twenty-firfl relates to pur- 
 fi // LjI^ ^ veyorlliip, which has been aboliflied. 
 
 ^ ^ The twenty-fecond relates to the king's right to the lands of felons. On 
 which there is fomething curious to be obferved. By attainder of felony, 
 the goods and chattels of the felon are forfeited to the king, and the land 
 to the lord from whom they were holden ; but in cafe of treafon, both 
 were forfeited to the king. Such was the feudal law ; but by the law of 
 England, in order to deter perfons from committing felony, and to make 
 the lords more careful what kind of tenants they chofe, the king had an 
 interefl in the land of felons ; not for his own benefit indeed, but for the 
 terrifying by example. He had a right to commit wade in them, to cut 
 down the trees, to demolifli the houfes and improvements, and to plow 
 up the meadows ; and for this purpofe he was allowed, by common law, 
 a year and a day. To prevent this deftruftion, the lords, to whom the 
 land efcheated frequently, by a fine, bought oft' the king's right of wafte ; 
 but if they did not, his officers would take the profits for the time, and 
 then hold it longer, till they had committed the wafte. This ad prohibits 
 the retaining the land longer than a year and a day, and direfts that then 
 it {hould be reftored to the lord. This new law was certainly intended 
 for the public good, to prevent this malicious wafting, which the king's 
 officers would be fure to commit, if they were not properly, as they 
 thought, confidered ; and to give the king, in lieu of the wafte that he 
 had a right to make, a lawful profit, which his officers had unlawfully, to 
 their own ufe, we may be fure, extorted before. It gives the cuftody of 
 the lands for that time, and confequently the profits. But obferve the 
 confequence. 
 
 The king now had the cuftody, as alfo the profits, by a legal title for a 
 year and a day, unlefs the lord pleafed to compound with him, and fo intitle 
 himfelf to the immediate polTcffion. But this did not fatisfy the grcedi- 
 nefs of the officers of the crown. It was eafy to gather the profits until 
 very near the time the king's right expired, and then, for a week or fort- 
 night before it was out, they had it in their power to commit wafte enough, 
 if the lord, who was intitled by the efcheat, did not buy thcui out. This 
 
 ■was
 
 Lect. 38. LAWS OF ENGLAND. 349 
 
 was certainly agalnfl: the fplrlt of the law whereof we are fpeaklng, which 
 was intended to give the king 'a real profit, inftead of a right deflrudive 
 to the community in general ; but the wafte was not prohibited exprefsly, 
 and this was pretext enough for thefe officers to exaQ: compofition for not 
 doing it within the year. It was accordingly claimed and paid, and ac- 
 counted for as due to the king, on that old maxim, That general laws do 
 not change the prerogative royal, but by exprefs words. This was the 
 doQirine and praftice 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 Brafton, Britton, and the au- 
 thor of Fleta ; the firft of which wrote in the latter end of this reign, 
 and the other two in the reign following. Brafton fays exprefsly, that , 
 *' the king's power over the lands of felons convitled, was becaufe he 
 " had a right to throw down the buildings, unroot the gardens, and plow up 
 " the meadows ; but becaufe fuch things turned to the great damage of the 
 " lords, it was provided, for common utility, that fuch houfes, gardens, 
 " and meadows fliould remain, and that the king for this Ihould have the 
 " advantage of the whole land for a year and a day, and fo every thing 
 " lliould return entire to the lord. Then he goes on, but now both is 
 " demanded, namely, a fine for the term, likewife for the wafte, nor 
 " do I fee the reafon why *." Thus far Brafton. Britton fays, fpeaking 
 in the perfon of the king, of felons, for in that manner his book is written, 
 " Their moveables are ours ; their heirs are difmherited ; and we will 
 " have their tenements, of whatfoever holden, for a year and a day, fo 
 *' that they fliall remain in our hands that year and day, and that we fhall 
 " not caufe to perifli the tenements, nor hurt the woods, nor plow the 
 " meadows, as hath been accuftomed in time paft f ." Fleta talks in the 
 fam.e ftrain, in commenting on this law of Magna Charta, which he ex- 
 prefsly quotes, that, as a mark of brand on felony, it had been antiently 
 provided that the houfes fliould be thrown down, and fo goes on to enu- 
 merate the otlier fpecies of wafte, which I need not here repeat, as I have 
 mentioned them already ; and then he fays " becaufe by fuch doings 
 *' great damage would accrue to the lords of the fiefs ; for common uti- 
 *^ lity it was provided, that fuch hardfliips and feverities fliculd ceafe : 
 
 " and 
 * Lib. 3. p, 129. 137. t Cap. 5.
 
 550 LECTURES on the Lect. 38. 
 
 " and that the king, in confideration thereof, fliould, for a year and a 
 *' day, enjoy the commodity of the whole land ; after which term it 
 " fhould return to the lords of the propriety entirely, without wafte or 
 " deftruftion f." The Mirror, another antient law-book, joins with thefe ; 
 and this book, which was written in the fame reign of Edward the firfl:, or, 
 at the lateft, in that of his fon, fays, " the point of felons lands being held 
 " for the year is difufed ; for by that, the king ought not to have but the 
 " wafte by right, or the year, in name, (that is, in nature) of a fine ; to fave 
 " the fief from ejirepement (that is, wafte), the minifters of the king take 
 " both the one and the other \" A melancholy confideration, that, under 
 his name, and in pretence of his profit, though not really to his advantage, 
 i'uch a law fliould, for their own profit, be eluded by his minifters ; as by 
 thefe teftimonies, one cotemporary, and the reft immediately fubfequent, 
 we are informed it was contrary to the intention of this chapter oiMagna 
 Charta ; but the praSice prevailed for a long time after. I fliall conclude 
 this lefture with the words of Lord Coke on this chapter of Ah/gna Charta. 
 " Out of thefe old books you may obferve, that w hen any thing is given 
 " to the king, in lieu or fatisfaftion of an antient right of his crown, when 
 " once he is in poffeflion of the new recompence, and the fame in charge, 
 I " his officers and minifters will many times demand the old alfo, which 
 " may turn to great prejudice, if it be not duly and difcreetly prevented (|". 
 
 •J- Lib. I. cap. 28. ifCap. 5. jl 2 Inll. p. 37. 
 
 LECTURE
 
 Xect. 39. L A W S OF E N G L A N D. 351 
 
 LECTURE XXXIX. 
 
 Continuation of the commentary on Magna Charta. 
 
 iJ ^ I iHE twenty-third chapter of Magna Charta prohibits fijh wcires in 
 
 JL rivers, which are great annoyances to navigation, and the free liberty 
 
 of fifliing; and which have ftood their ground in fpite of all the laws that can 
 
 pi be made againfl: them. The next relates to the inferior courts of Lords of 
 Manors, and to writs of Pracipe in capite ; which having gone into difufe, 
 
 2 ,>" 'with the feudal tenures, I fliall pafs them over. The twenty-fifth orders, 
 that meafures and weights fliould be one and the fame through the whole 
 kingdom ; witnefs the difference between Troy weight and Averdupois ; 
 the wine gallon and ale gallon. Eflablifhed cuftoms, which of neceffity 
 muft come into daily praftice, are hard to be rooted out by pofitive laws ; 
 and indeed it is more prudent to let them continue. For the confufion that 
 fuch an alteration of things in daily or hourly pradice would occafion, 
 would be more detrimental, for a confiderable time at leafl, than the uni- 
 formity intended to be introduced would be attended with advantage f . 
 
 2.^ The twenty-fixth is concerning the writ De odio ct atia, that is, of ha- 
 tred and malice ; which, though not aboliflied, hath long fmce been anti- 
 quated ; but, as it was an antient provifion for reftoring the liberty of the 
 fubjed, I fliall take fome notice of it. It was a maxim of the common 
 law, that no man imprifoned for any offence, which, if proved, would 
 touch his life or members, could be bailed out but by the fupreme criminal 
 court, the King's Bench ; which, upon danger of death, or fuch other fpe- 
 cial caufes as appeared fuflicient to them, had that power. Hence, in 
 thofe unfettled and oppreflive times, it became a praftice for malicious per- 
 fons to have a man clapped up in prifon for a capital offence, without 
 either indiftment or appeal brought againfl him ; and there he was of ne- 
 ceffity to lie, until the juflice in eyre came into the county to deliver the 
 
 gaols 
 t 2 Inft. 38. 41. Barrington on the Statutes, p. 15. t6
 
 352 L E C T U R E S ON the Lect. 39.' 
 
 gaols, which regularly was but once in feven years ; to avoid this hardfhip, 
 the writ we are now fpeaking of was invented, and iffued out from time to 
 time, as occafion required, out of the Chancery. Befides, by this chapter 
 of Magna Charta, it is ordered to be granted without any purchafe or re- 
 ward ; whereas, before, all the original writs were purchafed at the price 
 the chancellor pleafed to fet on them, which was a grievous oppreffion. It 
 ordered the fherifF to make inquifition in the county court, by the oath of 
 a. jury, whether the imprifonment proceeded from malice or not. If they, 
 found it did, upon its return, the perfon accufed had a right to a writ, order- 
 ing the flieriff to bail him by twelve mamtcaptors, or fecurities. But, tb.is 
 was only where there was no indiftment, or appeal ; for thefe were accufa- 
 tions of record, and therefore the finding the charge malicious in the county 
 court, which was no court of record, could not avail againft them. This, 
 writ has gone into difufe, fmce juflices of gaol-delivery have continued to 
 go into every county twice a year ; a proceeding which has evidently fuper- 
 feded the neceflity of it f . 
 
 The twenty-feventh chapter reftrains the unjuft practice in the king, of 
 arrogating to himfelf the wardfliip of his focage or burgage tenants, where 
 they held lands by military fervice from others, his fubjeds. The whole; 
 military fyftem hath fmce been diflblved by aft of parhament, and there-, 
 fore it will be unneceflary for me to explain or enlarge upon the nature of 
 the mifchief complained of in this chapter. The next forbids any judge or 
 /''/ officer of the king to oblige a man to wage his law, that is, fwear to his- 
 innocence, except in a caufe where a fuit was inftituted againft him ; but 
 wager of law, being now totally fallen into difufe, I haften to the twenty- 
 ninth chapter, the corner-ftone of the Englifli liberties, made in affirmance 
 of tlie old common law \. 
 
 By the bare reading of this chapter,, we may learn the extravagances of 
 
 John's reign, which it was intended to redrefs. It confifts of two parts. 
 
 /■ The firft runs thus : Niillus liber homo capiatur, vel imprifonctur, aiit difflife- 
 
 tur, dc libera ienemento fuo, vcl Ubcrtatibus vel liberis confitetudinibus fids, aut 
 
 utlagettir 
 
 t Mirror, cap. J. fed. 2. Clanvil, lib. 14. cap. 3. Braijlon, lib. 3. p. 121. 
 Fleta, lib. 1. cap. 23. 
 + 3 IiOl. p. 43- 45
 
 Lect. 39- L A WS OF E N GL AN D. "353 
 
 iitlagctur aut cxulctur, aid aliquo modo deftniatur, ncc fuper cum ibimiis, ncc 
 fiiper aim mittimus, tiifi per kgale judicium par iiim fuorian, vel per legem terra. 
 Firfl, then, to fee to whom this a£t extends : the words liber homo, in anti- 
 ent adts of parliament, is, in general, rightly con^irxxeA. freeholders , and fo it 
 means here, in the fecond branch which prohibits diffeifins ; for none but 
 a freeholder is capable of being diflTeifed, no others being faid to have a 
 feifin of land. But it mufl not, throughout the whole of this act, be con- 
 fined to this limited fenfe. The firft branch fpeaks of the reflraint of li- 
 berty ; the third, of unjufl outlawries 5 the fourth, of unjufl banifliment ; 
 the fifth, of any kind of deftruclion, or wrongs ; which, oflered to an in- 
 nocent perfon, are againft the natural rights of mankind, and therefore, 
 the remedy muft extend to all : and fo it hath always been underftood ; 
 for women are included in it, and fo are villeins, for they are free men 
 againft all but their lord. 
 
 Let us next confidcr the end of this part, which is an exception running ' 
 through the whole ; nifi per legale judiciwn pariwnfuorum, i-cl per legem terra. 
 That is, by the common law, which doth not, in all thefe cafes, require a 
 trial by peers ; a thing indeed impoffible, where the party doth not appear ; 
 in which cafe there is a neceffity of proceeding to judgment another way. 
 Coke obferves, the words legale judicium parium fuorum include the trial both 
 of lords and commons, the finding of the latter being upon oath, and called 
 Verediflum, and in which all muff be unanimous ; wherein it differs from 
 the trial of lords, for they find not upon oath, but upon honour ; and it is 
 not neceffary that all fliould agree, the majority, provided that majority 
 confifls of twelve, being fufficient ■\. 
 
 Upon this a queilion may be put, who are the peers of a woman of qua- 
 lity ? If flie be noble by blood, that is, a peerefs, (for I fpeak not of the 
 nobility by courtefy, which is merely nominal) there is no doubt but the 
 barons and other noblemen ; if fhe be ennobled by marrying a peer, flie 
 becomes in law one perfon with her hufband, and therefore muff have the 
 fame peers with him, which right continues after her hulband's death, un- 
 .kfs fhe marries a commoner ; for then, being one perfon with him, (he be- 
 comes a commoner ; whereas a peerefs, in her ov/n rirTht, marryino- a 
 
 Y y commoner, 
 
 f 2. Inflitut. p. 48. 49.
 
 554 L E C T U R E S ON the Lect. 39. 
 
 eornmoner, forfeits not her dignity, though fhe becomes one perfon with 
 him. She was not ennobled by her own aft, and therefore, by no aft of 
 her own can deftroy that nobihty fhe has by the gift of God, or the king, 
 by means of her blood, which fhe cannot alter. 
 
 Two exceptions, however, there are to the rule of every Englifliman's 
 being tried for offences by his peers ; but neither of them againfl the pur- 
 port of this flatute. Firfl, the ftatute fpeaks in the disjunftive, per legale 
 judicium parium fuoriim.) aut per legem terra : now the lex terra, the common 
 law, in the univerfal praftice of it, allows thefe exceptions ; nor will they 
 be found to be againfl the letter ; for the words are nee fuper eum ibimus, 
 nee fuper eum niittemus, fpeaking in the perfon of the king ; which fhews 
 that it is meant of the accufation or other fuit of the king. Now thefe ex- 
 ceptions are not at his fuit. One of thefe exceptions I mentioned in a for- 
 mer lefture. It is where a commoner is impeached by the commons in 
 parhament ; and the reafon I then gave, is, I think, plain and fatisfaftory, 
 that every jury that could be fummoned is fuppofed a party to the charge 
 brought by their reprefentatives, and therefore, as the man is accufed as an 
 enemy to the king by the body of the people, that there may not be a 
 failure of juftice, the lords, as the only indifferent perfons, muft be the 
 judges. 
 
 The other exception" may feem more extraordinary. It is that a lord of 
 parliament appealed, that is, accufed of a crime, by a private perfon, not 
 for the fatisfaftion of public juftice, but of his own private wrong, fliall not 
 be tried by his peers, but by a jury of commoners. When this law was 
 introduced, the lords were few in number, immenfely rich and powerful, 
 linked together frequently by alliances, almoft always by faftions. In this 
 towering fituation, they looked down on the lower ranks with diidain ; fre- 
 quently injured and opprefTed them ; and little profpeft would the poor 
 commoner have of redrefs, were the criminal to be tried by thofe of his 
 own rank, feveral of them his relations, mofl of them liable to be fufptfted 
 of the fame offences ; efpecially, as the law will not allow a lord to be 
 challenged. Neither did the lord run any extraordinary rifk of being un- 
 iiiftly condemned. The lower rank of people in all countries and ages 
 
 have
 
 Lect. 39. LAWS OF ENGLAND. 355 
 
 have been ufed to look with refpedl on pcrfons poflelTed of great wealth 
 and power, invefted with titles of honour, and dignified by blood of an an- 
 ticnt defcent. But, in thofe military ages, fuch veneration was highly en- 
 creafed by that valour and perfonal bravery, which dillinguiflied every one 
 of the nobility, and than which no virtue is more apt to captivate, in gene- 
 ral, the hearts of mankind. Befides, that the lord had his advantage of 
 challenging fufpeded jurors ; whereas, if tried by his peers, he had not fuch 
 privilege ot exception, though they were ever fo notorioufly his enemies. 
 Every commoner almolt, how great foever, was, in thofe days, under the 
 influence of feme one or other of the lords, and there could be little 
 doubt but that influence would be exerted, and fuccefsfully too, unlefs the 
 guilt was too clear and evident. 
 
 It may here be alked. When a civil fuit is depending between a lord 
 and a commoner, how the ifTue is to be tried, whether by the lords alone, 
 or by commoners only, or by a jury compofed of an equal number of each ; 
 in the fame manner, as, when an alien is tried, it is by a jury half natives, 
 half ahens ? The anfwer is, it fliall be tried by a jury of commoners ; only, 
 on account of the dignity of the lord, there mull be a knight on the jury. 
 I need not enlarge on the reafon, as it is the fan\e with the former, the 
 lefTer danger of partiality. 
 
 I NOW come to the other part of the disjunctive, out per legera terra ; 
 and it will be neceffary to point out in general (for to defcend into particu- 
 lars, would carry me a great deal too far) the principal cafes, where this lex 
 terra fuperfedes the trial per pares. Firft, then, if a man accufed of a crime 
 pleads guilty, fo that there is no doubt of the faft, it would be an abfurd 
 and ufelefs delay to fummon a jury, to find what is already admitted : ac- 
 cordingly, by the lex terra judgment is given on the confefTion. So in a 
 civil atlion, if the defendant confefTes the aftion, or if he appears, and af- 
 terwards, when he fhould defend himfelf, makes default, and will not 
 plead (which cafe is equivalent to confeflion) no jury is requifite. So, it 
 both parties plead all tke matters material in the cafe, and a demurrer is 
 joined, that is, the fafts agreed on both fides, and only the matter of right, 
 depending on the fads already allowed, in conteft, the judges Ihall try by 
 
 Y y a demurrer
 
 3 J 
 
 56 L E C T U R E S ON THE Lect. 39. 
 
 demurrer, and give judgment according to law without a jury. The ge- 
 neral rule is, that a jury Ihall txy fafts, and the judges the law ; for it would 
 carry a face of abfurdity to expect from a common, or indeed, from any 
 jury, a decifion of a point of law that is controverted between the lawyers 
 of the plant! if and defendant, who have made that fcience their particular 
 ftudy. Befides, as the law infliGs fo heavy a punifliment on jurors who 
 give a falfe verdict, it would be the utmoft cruelty to force men unpraftifed 
 in law to run fuch a hazard, where it muft be fuppofed an equal chance, 
 at leaft, they may miftake. The fame dangers that the jurors would run 
 by miftaking the law, hath, in points complicated both of law and faft, 
 introduced^ff/W verdids, that is, the finding of all the fafts by the jury^ 
 and the leaving the matter of right to be judged by the court, who bell 
 know the law : but this by way of digreffion. 
 
 All the proceedings of courts to bring caufes to a hearing previous to 
 the impannelling a jury, and the carrying judgments into execution, arc 
 per kge?n terra, or, as my Lord Coke expreffes it, the due procefs of the 
 law is kx terra. The inflicting of punifhment by the difcretion of courts 
 for all contempts of their authority, without the intervention of a jury, is 
 alfo, I think part of the lex terra, and founded in the neceflity of enforcing 
 due refpett and obedience to courts of juftice, and fupporting their due 
 dignity. The outlawing a perfon who abfconds, and cannot be found, 
 fo as to oblige him to anfwer a charge againfl him, whether civil or criminal, 
 is one of thefe proceedings per /ege?n terra without a jury ; of which, as I 
 have now occafion, it will not be amifs to give a fliort account, as it is in 
 daily practice |. 
 
 By the very antient law of England, the confequence of outlawry was 
 very troublcfome. Not only a fcizure of the perfon, lands and goods, was 
 lawful, but he was looked upon, not, merely, as one out of tlie proteftion 
 of the law, but alfo as a publick enemy ; for whoever met him had a right 
 to flay him. This barbarous law undoubtedly proceeded hence, that no 
 perfon was then ever outlawed but for a felony ; tliat is, a crime whole pu- 
 nifliment was death ; but it was a moll abfurd thing to allow every pri- 
 vate perfon to execute the oilendcr, who by refulmg to anfvver has confefl'cd 
 
 himfelf 
 t 2. Inftitur. p. 51.
 
 Lect. 39. LAWS OF E N G L A N 1). 357 
 
 himfelf guilty : and the abfurdity became more glaring, when, about Hen- 
 ry the Third's time, procefs of outlawry began to be extended to all tref- 
 palTes committed vi ct amis, when the confcquences were fo dreadful. Such 
 extenfion fecms furprifmg ; yet the turbulent condition of the times will, in 
 feme meafure, account for it ; when, under pretence of dormant titles, for- 
 cible poneffions, not without frequent bloodflied and murders, were daily 
 taken by the adherents of the king or barons, as their refpedtive 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 refolved by 
 all the judges, that the putting any man to death, except by the flicrill', 
 and even by him without due warrant in law, however outlawed and con- 
 vifted, was murder ; and fmce the forementioned times, as the number of 
 people encreafed, and the opportunities of concealment and abfconding 
 along with them, it has been found neceffary to grant the procefs of 
 outlawry In many civil aiStions. 
 
 I SHALL briefly point out the proceedings therein, to fhew the abundant 
 care the law of England takes, on the one hand, to do juflice to the plain- 
 tiff, if the defendant abfconds, and will not appear ; and, on the other, 
 that the defendant may have all poffible opportunity of notice before the 
 oudawry be pronounced againll him. Firll, there iffue three writs fuccef-. 
 fively, to take the body of the defendant, if found in his bailywick or 
 county, and to bring him to anfwer. The firft is called a capias, from that 
 mandatory word in the writ. "When the flieriff cannot find him in his 
 bailywick, he returns a nofi ejl inventus on the back of the writ, on which 
 there iffues a fecond capias, called an alias, from its reciting that alias, or 
 before this, the like writ had iffued. On the fame return of non ejl inventus 
 to this (for if upon any of the procefles the defendant is taken, or comes 
 voluntarily in, fo as to anfwer, the end is obtained, and no further proceed- 
 ings to outlawry go on), the third writ iffues called 2.pluries, becaufe it re- 
 cites the flieriff had been pluries, that is, twice before, commanded to take 
 him. The fending thefe three writs, one after the other, in order to bring 
 in the party is, I prefume (as, undoubtedly many of the antient praftices 
 in our courts of law are) borrowed from the civil law ; for by that law 
 they iffued three citations, at the diflance of ten days, one after another, to 
 call in the party to anfwer. 
 
 BtJT
 
 358 L E C T U R E S ON the Lect. 39. 
 
 But as, upon a return of a non eft inventus on the third capias, the per- 
 fona! apprehending the defendant may well be defpaired of, the law pro- 
 ceeds another way ; in order, if poffible, to give him notice, that is by iflu- 
 ing the writ of exigent, fo called from the Latin word exigere, to require, 
 or ca/l upon. This writ commands the flierlff to call the defendant in his 
 county-court, where all the pcrfons of the county are fuppofed to have 
 bufmefs, or at leafl fome that can inform him might have. The words 
 are, We co?nmand you that you caufe fuch a one to be required from county-court 
 to county-court, until, according to the law and cujlom of our realm, he be out- 
 lawed if he doth not appear. And if he do appear, him to take, andfafely keep, 
 and fo forth. Now the law and cuftom of the realm requires, in this cafe, 
 that the party fliould be called on five different county-court days, one 
 after another, before he can be outlawed ; and thefe courts being held at 
 the diilance of four weeks from each other, the interval amounts to fixteen 
 weeks, befides the time of the three previous capias's ; a time fo abundantly 
 fufficient, as it is fcarce to be prefumed poflible a perfon living in the county 
 fhould not have notice ; and confequently, on his not appearing in the 
 fifth court, the coroners of the county, whofe duty it is, give judgment of 
 outlawry againfl him. 
 
 Such is the care the common law takes to prevent outlawries by furprizc. 
 But the aft of the thirty-firft of Elizabeth in England, enadted here in the 
 eleventh of James, had fuperadded another caution, namely three publick 
 proclamations. The reafon of this fupperadded caution was, I prefume, on 
 account of the dwindling of the bufmefs in the county-courts, and, in con- 
 fequence, their being not fo well attended. This writ, commanding the 
 flrerifl to make proclamation, iifues with the exigent, and recites it, and 
 the caufe for which the proceeding to an outlawry is, and direfts him to 
 proclaim the party three feveral days ; firfl in the county-court, fecondly at 
 the quarter-feffions, a court of more refort, and laflly on a Sunday immedi- 
 ately after Divine fervice, at the moft ufual door of the church of the parifli, 
 where the perfon dwelt at the time the exigent iffued ; or if no church, 
 in the church-yard of the parifli } or if no parifh, at the ncarefl church, 
 
 and
 
 Lect. 39. LAWS OP ENGLAND. 359 
 
 and all outlawries in pcrfonal aftions, "where thcfc folcmnities arc not ob- 
 ferved, are declared void. 
 
 I HAVE been the more particular on this head, to fliew the abundant care 
 the law has taken in thefe proceedings, and to vindicate it from the com- 
 mon complaint, of outlawries being obtained furreptitioufly, and with- 
 out notice. I am fenfible fuch complaints are generally without founda- 
 tion ; but if in any cafe they are juft, the fault is not in the law, but in man, 
 in the laws not being duly executed ; and if we are to complain of the 
 beft laws, until they be in all cafes perfectly and uprightly executed, we 
 Ihall never ceafe complaining while human nature is what it is, weak and 
 corrupt f . 
 
 fzlnft. p. 51. 5 J. 
 
 LECTURE
 
 ;6o LECTURES on the Lect. 40. 
 
 LECTURE XL. 
 
 Continuation of the commentary on Magna Charta. 
 
 HAVING mentioned the feveral kinds of proceeding to judgment 
 without the intervention of juries, praftifed by the courts of com- 
 mon law, and authorifed under the words of this flatute, per legem terra, 
 it will be proper, before I quit this head, to fay fomething of other kinds 
 of courts which do not admit this method of trial ; which, yet, have been 
 received, and allowed authority in England ; and whofe proceedings, how- 
 ever different from thofe of the common law, are juftified by the fame 
 words, per legem terra. Thefe are the courts eeclefiajiical, maritime, and 
 military. 
 
 If we trace back the origin of ecclefiaftical jurifdiftions, we fliall find 
 its fource in that advice of St. Paul, who reproves the new chriflians for fcan- 
 dallfrng their profeffion, by carrying on law-fuits againft each other before 
 heathen judges, and recommends their leaving all matters in difpute be- 
 tween them to the decifion of the Ecclefia, or the congregation of the 
 faithful. In the fervour of the zeal of thefe times, this counfel was-foon 
 followed as a law. The heathen tribunals fcarce ever heard of any of their 
 controverfies. They were all carried before the bifliop, who, with his 
 clergy, prefided in the congregation ; and who, from the deference the laity 
 paid them, became at length the fole judges, as, in after ages, the bilhop 
 became fole judge, to the exclufion of his clergy. Thefe judges, however, 
 being, properly fpeaking, only arbitrators, had no coercive power to en- 
 force their judgments. They were obliged, therefore, to make ufe of that 
 only means they had of bringing the refradory to fubmiifion, namely, ex- 
 cluding "them from the rights of the church, and warning other Chriflians 
 againfl their company, and indeed, it was an eiledual one ; for what could 
 a Chriitian, dcfpifed and abhorred by the heathen, and fliut out from the 
 commerce of his brethren, do, but fubmit ? Befidcs, if he was really a 
 
 Chriftian
 
 Lect. 40. L A W S OF E N G L A N D. 361 
 
 Chriftian, this proceeding feems founded on the words of the Apoftle, " He 
 " that will not hear the ecc/e/ta, the congregation, let him be unto thee as 
 " an heathenf." 
 
 Thus was excommunication the only procefs in the primitive church to 
 inforce obedience, as it is in ecclefiaftical courts at this day ; though, con- 
 fidering the many petty and trifling occafions on which they are, of neceffity, 
 obliged to have recourfe to thefe arms, having no other, and the many 
 temporal inconveniencies it may be attended with, it has been the opinion 
 of many wife and learned, as well as of many pious men, that it would 
 not be unworthy the attention of the legiflature to devlfe fome other 
 coercive means for the punifhment of contempts, and to reflrain excom- 
 munication to extraordinary offences only. Though, if we confider that the 
 jealoufy which the temporal courts, and the laity in general, fo juflly con- 
 ceived of thefe judicatures in the time of popery, hath not even yet entirely 
 fubfided, there is little profpecl that this or any other regulation to amend 
 their proceedings, and others they do want, will be attempted,. 
 
 When the empire became Chriftian, thefe courts and their authority were 
 fully eftablifhed in the minds of the people. However, that the temporal 
 courts might not be ftripped of their jurifdiclion, and churchmen become 
 the fole judges, a diftindtion was made between matters of fpiritual and 
 temporal cognizance ; not but feveral matters, originally and naturally tem- 
 poral, were allowed, by the grants of the emperors, to the ecclefiaftical 
 jurifdidlion ; and even, of fuch as were not allowed them, they might take 
 cognizance, if both the parties agreed thereto. This was called proroguing 
 the jurifdiction, that is, extending, by the confent of the litigants, its 
 power to matters that do not properly belong to it. A praftice our law 
 has moft juftly rejeded ; for it would introduce confufion, and a. perpetual 
 clafhing of courts, if it was in the power of the private perfons to break 
 down the fences that the conftitution has fo wifely ereded to keep every 
 judicature within its ftrlft bounds. And indeed this practice was one of 
 the great engines the churchmen made ufe of, in their grand fcheme of 
 fwallowing up all temporal jurifdidion and power. The method of trial in 
 thefe courts was by the depofitions of witneffes ; and upon them the judge 
 determined both the law and the fa£l. 
 
 Z z Tai.'ii.s 
 
 -j-. Father Pan', of beneficiary matters. .
 
 362 L E C T U R E S ON the Lect. 40. 
 
 Trials by jury were entirely unknown to the Romans, though indeed 
 their cetitiim-viral court, in the early times, bore fome refemblance to them ; 
 and even when the northern nations, who were the introducers of the trial 
 per pares, htc-MQC Chriftians, the ecclefiaftical courts on the continent pro- 
 ceeded in their old manner. But in England, during the times of the 
 Saxons, both fpiritual and temporal courts, though their bufmefs was dif- 
 tintt, fat together, and mutually affiiled each other, as I obferved under 
 the Conqueror's reign. But whether the matter of faft in ecclefiaftical 
 caufes was then tried by a jury, I will not pretend to affirm, though, from 
 the peculiar fondnefs the Saxons had, above the other northern nations, for 
 that method of trial, it may feem not improbable. However, this is cer- 
 tain, that from the time William, who, to gratify the court of Rome, and 
 to fliew his own political purpofes, feparated the courts, the proceedings of 
 the fpiritual ones in England have been conformed to the praftice of thofe 
 courts abroad, and to the canon law. The alteration, if indeed there was 
 any, was fufficiently authorifed by the king and pope ; and indeed as all 
 the biihoprics were filled by Normans, they knew not how to proceed in 
 any other manner. By the time of John, the proceedings of thefe courts, 
 and their trial of caufes without jury, had been univerfally fixed, and 
 received as a part of the lex terra, and, as fuch, is confirmed by the woxds 
 of this ftatute. 
 
 The next court that the law of the land allows to proceed to fentence 
 
 without a jury is the Court of Admiralty, and that for abfolute neceffity ; 
 
 for as its jurifdiftion is not allowed as to any thing that happens within the 
 
 body of a county, except in one particular inftance, contraBs for failors 
 
 ivages, but extends only to things done on the fea, or at moft to contracts 
 
 made in foreign countries (though this laft is denied by the lawyers of our 
 
 days to belong to them) there is no place from whence a jury can come. 
 
 . For the jury of the county, where the caufc of fuit arofe, are the triers, 
 
 but here, it arofe in none. Befidcs, the great excellency of this method of 
 
 trial confifts in this, that the jury, from their vicinity, have opportunities of 
 
 knowing fomething of the nature of the cafe, and of being acquainted with 
 
 the char:' flers and credit of the witnefics, neither of which can be fuppofed 
 
 in this cafe. In this court the judge determines both matter of law and 
 
 fact. 
 
 The
 
 Lect. 40. LAWS OF P: N G L A N D. 363 
 
 The fame was the cafe of the Conftable's and Marfhal's Court, formerly 
 of great power, but now next to antiquated. Its JurifdicVion was, firfl, 
 martial law, over the foldiers 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 efleftually deftroyed that 
 ftrift fubordination, which is the foul of military enterprifes. Secondly, 
 they had the trials of treafons and felonies done by the king's fubjctts in 
 foreign kingdoms. Here there could be no trial by jury, for the fame 
 reafon as given already for the Court of Admiralty. The Lift part of their 
 jurifdidion was as to precedence, arms, and marks of dignity, which flow- 
 ing immediately from the grace of the crown, the fole difpofer and judre 
 of them, were not fuppofed to be in the cognizance of jurors, but proper 
 to be determined by the king's judges, who had the keeping of the me- 
 morials of his grants in this kind. Befides, thefe honorary diftinftions are 
 not local, but univerfal through the realm ; fo that there is no particular 
 county from whence a jury fhould come |. 
 
 Such are the reafons afllgned why thefe two courts proceed per legem 
 term, and not by juries ; but, to fpeak my own opinion truly, when I 
 confider that their methods are formed upon the proceedings of the civil 
 law, I fufpeft a farther defign. The difcovery and revival of this law hap- 
 pened in the reign of our Stephen. I have already had occafion to obferve 
 how greatly the princes, in every part of Europe, were flattered by the 
 tempting bait of unlimited power it fet before them, and particularly the 
 kings of England, who were the firfl that fet out in purfuit of this delufive 
 obje£t ; and that their being lefs fuccefsful than others was, very probably, 
 owing to their beginning the career too early. When I confider then that 
 thefe two courts, where trials by juries prevail not, dealt in matters that 
 were of the refort of the prerogative, and that, in confequence, the model- 
 ling of them was left to the king ; when I fee all the parts of thefe models 
 taken from the imperial law ; when I refled on the notorioufly avowed and 
 unjuft preference the weakell of them gave to that againil the common 
 law, and the kind patronage the wifeft and moft moderate of them fhewed 
 to it, and its poflfcfrions, down to the reign of Charles the Second, I can- 
 
 Z z 2 not 
 
 f 4 Inftitut.
 
 364 L E C T U R E S ON the Lect. 40. 
 
 not help fufpefting a deeper defign. And, indeed, the common lawyers 
 feemed to take the alarm, and decried and defpifed every part of this law, 
 though moft of it is founded oagood reafon, merely out of the apprehen- 
 fions, that giving it the leafl: countenance, might, in time, open a door for 
 the abfolute authority of the prince, and the rapacioufnefs of his fife or trea- 
 fury, and thereby overturn the conftitution. 
 
 But there are other courts, befides thofe already named, that proceed 
 upon the depofition of witnefles, and not by jury, I mean the courts of 
 Equity ; which, in imitation of the civil and canon laws, oblige a party to 
 anfwer upon oath to his adverfary's charge. This praftice, though not 
 allowed by common law, is founded in very good reafon. For, as the 
 proper bufmefs of a court of equity is to deteft fraud and furprize, thefe 
 things being done in private, and endeavoured to be as much concealed as 
 poflible, it is but reafonable that the plantiff fliould have power to fift the 
 confcience of his adverfary, and to examine not to a fmgle point, as the 
 iffues at common law are, but to many feparate facts, from which, taken 
 together, the fraud, if any, may appear. Such matters, therefore, being 
 of nice difcuffion, and of a complicated nature, are not fit for the decifion of 
 a jury, and indeed would take up more time than they could poffibly em- 
 ploy in the examination. The court, therefore, go upon depofitions, and judge 
 both of the law and facl. However, If a matter of faft, neceflary for the 
 decifion of the caufe, appears on the depofition doubtful ; or if any matter 
 arife which thefe courts have no power to try, they direfl: an iffue, wherein 
 the point is tried by jury, in a court of common law ; and thus, thefe 
 courts have the advantage of both methods of trial, as w"ell that of the civil, 
 as that ufed by the common law ; namely the oath of the party, and depo- 
 fitions from one, and the trial by jury from the other. 
 
 This method, however, of trial by depofition, has been obje£led to, as 
 produftive of enormous expence and delays ; and it cannot be denied, that, 
 as affairs are now conduflied, there is too much reafon for the objettion. Yet 
 to this it may be anfwercd, that if examiners were more careful, and would 
 fet down nothing but what is evidence, and were the rules of court, to cut off 
 delays, always ftrictly inforced, the damage arifing from both thefe heads 
 would be confiderably leffened. To cut off all delays, and to reduce the 
 proceedings to as fummary a method as that of the courts of common law 
 
 would.
 
 Lect. 40. LAWS OF ENGLAND. 365 
 
 would, (confidcring the matters they arc converfiint about are of different 
 proof, and require the moll acute examination) inflead of preventing frauds 
 in moll inftances, by a hurried manner of trial, ferve to defend and encou- 
 rage them. The policy of the common law was to reduce the matter in 
 queftion to a fmgle fad, which the jury might, with eafe and convenience, 
 determine within a convenient time. And it muft be owned that the lawyers 
 and judges of latter days, by admitting the trial of titles to lands in perfonal 
 aftions, have deviated much from the fimplicity of the law, and weakened 
 the excellence of the trial by jury. The prefent praftice, of determining the 
 title to land by an aftion of trefpafs, will ferve as an inflance ; where the 
 enquiry is, whether a man's entering upon lands was a trefpafs or not ; if he 
 had right to enter in, it was no trafpafs ; if he had not, it was otherwife. 
 N ow, as the right may depend upon twenty different matters of faft, befide 
 matters of law, all which muft be fettled and weighed, before the bare 
 queftion of trefpafs can be determined, it is eafy to fee to what lengths trial 
 by juries may be now fpun ; to how (hort a time the examination of the moft 
 material points muft be confined ; how imperfedl, confequently, the ex- 
 amination muft often be ; to fay nothing of the danger of a jury's erring 
 when both body and mind is wearied out with long attendance, and the 
 attention confequently enfeebled. 
 
 If it be afked, how came this deviation, which has been attended with 
 fo many inconveniencies ? The true anfwer is the beft, that it fprung from 
 the advantage of practitioners, and the litigloufnefs of fuitors. By the 
 common law, no man could bring two aftions of the fame nature for the 
 fame thing. If I am entitled to the poffeffion of lands, I may bring my ict// 
 of entry, or an ajjize, to recover it ; but if I am foiled, I cannot bring a 
 fecond. So, if I am entitled to the propriety of the land, I may bring my 
 writ of right, and if I recover not therein, my right is gone for ever. 
 The litigioufnefs of fuitors, who had a mind to gain a method of trying 
 the fame thing over and over again, where they mifcarried, introduced 
 this method I am fpeaking of. For every new entry was a new trefpafs, and 
 could not be faid to have been tried before ; though whether it was a trefpafs 
 or not, depends on what had been tried before, and the avarice of praditi- 
 oners, who defired frequent fuits, encouraged it. But when once it was 
 allowed, notwithftanding all the complaints of Coke and his co-temporary 
 judges, it became univerfally followed, and is now fo eftablflied, and the 
 
 higher
 
 366 LECTURES ON the Lect. 40. 
 
 higher aClions fo much out of ufe, that I queflion whether there is a lawyer 
 living who would be able, without a great deal of ftudy, to conduft a caufe 
 in one of thofe antiquated real adions. The inconveniencies of thefe fre- 
 quent trials introduced, for the obA'iating them, a new practice, the apply- 
 ing to the court of chancery, after two or more verdifts confonant to one 
 another, for an injunttion to flop farther proceedings at law ; which, 
 though a new, was become a neceffary curb, after the common law^-courts 
 had allowed the former method. 
 
 Besides thefe courts already mentioned, there are many other judicato- 
 ries, which, by particular acts of parliament, have particular matters en- 
 trufted to their determination, without the intervention of juries ; as the 
 feveral matters determinable fummarily by one or more juflices of the peace ; 
 the affairs of the revenue by the commiffioners ; and fuits by civil bills for 
 limited fums by judges of affize ; though in thefe lafl: the prefiding judge 
 may, and ought, in matters of difficulty, to call a jury to his affiftance ; 
 and it muft be owned in this poor country the alteration of the law in this 
 laft particular, has been attended with very good confequences. The ex- 
 pediency of the two former changes, indeed, has been much difputed ; but 
 that being a queflion oi politicks, not of law, I fliall not enter into it. 
 
 Thus much I have obferved, in a fummary way, concerning the feveral 
 methods of trial, differing from that per parcs^ which are authorifed by 
 thefe words of Magna Charta,per lege?n terra. 
 
 I SHALL next proceed to the point of the pcrfonal liberty of the ftihjen ; but 
 as it will be proper to take all that together, in one view, I fliall here con- 
 clude the prefent Ledure. 
 
 L E C T U R E
 
 Lect. 4t. L a W S of ENGLAND. 367 
 
 LECTURE XLL 
 
 Continuation of the commentary on Magna Chart a. 
 
 HAVING explained the import of the words /^r legale judicium parium 
 fuorum, I'd per legem terra:, which refer to, and quahfy all the pre- 
 ceeding parts, it will be proper to mention thofe preceeding articles, and to 
 make fome obfervations upon them. They then confifl: of fix diiferent 
 heads. The firfl relates to the perfonal liberty of the fubjeft ; the fecond 
 to the prefervation of his landed property ; the third is intended to defend 
 him from unjufl: outlawry ; the fourth to prevent unjufl banifhment ; the 
 fifth prohibits all manner of deftruftion ; and the defign of the fixth is to 
 regulate criminal profecutions at the fuit of the king. I fliall briefly treat of 
 all thefe particulars in the order in which they Hand. 
 
 The firfl claufe tending to fecure perfonal liberty, runs in thefe words ; 
 Nul/us liber homo capiatur I'cl imprijonetur. Liber homo, as i before obferved, 
 here extends to all the fubjects, and is not to be taken in its more reftrained 
 fenfe, of a freeholder. We fee the words are not barely againfl wrongful 
 imprifonment, but extend to arrefting, or taking, 7iullus capiatur. This 
 act extends not only to prevent private perfons, particularly the great men, 
 from arrefting and imprifoning the fubjefts, but extends alfo to thofe from 
 whom, on account of their extraordinary power, the greatefl; danger might 
 be apprehended, I mean the king's miniderial officers, his council, nay 
 himfelf, acting in perfon. « No man," (fays my Lord Coke, commenting 
 on this point,) " fliall be taken, that is reflirained of liberty, by petition or 
 " fuggeltion to the king, or his council ; unlefs it be by indictment, or pre- 
 " fentment of good and lawful men, where fuch deeds be done." For in 
 that cafe it is per legale judicium parium ; though an indidment found, or 
 a prefentment made by a grand jury, in one fenfe, cannot properly be called 
 judicium, as it is not conclufive ; but the fad mufl; be after tried by 3 petty 
 
 jury ;
 
 368 L E C T LMi E S on the Lect. 41. 
 
 jury ; yet for the purpofe of reflraining and fecuring a perfon accufed upon 
 record, that he may be forthcoming on his trial, it is Judicium pariujiK 
 Otherwife the moft flagrant offenders might efcape being tried and con- 
 vi£i:ed f . 
 
 In the fifteenth chapter of Weftminflier the firft, enacled in the third 
 year of Edward the Firft, and ordained to afcertain for what offences a man 
 might be detained in prifon, and to make effectual provifion for the bailing, 
 out perfons upon their giving fecurity to abide a trial, thofe accufed of the 
 fiighter offences, perfons detained per inaundement de roy by the command'of 
 the king, are mentioned as not bailable ; and this may feem to contradicl 
 the law I have now laid down. Yet, when rightly underftood, it doth 
 not. For as judge Gafcoigne rightly faid, the king hath committed all his 
 power judicial to divers courts, fome to one, fome to another ; and it is a 
 rule in the conftruftion of flatutes, tliat when any judicial a£t is referred 
 to the king, it is to be underftood to be done in fome court of juftice, ac- 
 cording- to law. The command of the king, therefore, doth not mean the 
 king's private will, but a legal command, iffued in his name, by his judges, 
 to whom his judicial power is intrufted. Accordingly, Sir John Markham, 
 chief juftice, told Edward the Fourth, that the king could not arreft any. 
 man for fufpicion of treafon, or felony, as any of his fubjefts might ; and. 
 he gave a moft excellent reafon for it : Becaufe, fays he, if the king did. 
 wrong, the party could not have his adion. In the fixteenth of Henry the. 
 Sixth it was refolved by the whole court. That 'if the king command me to 
 arreft a man, and I do arreft him, he fliall have his adion of falfe imprifon- 
 ment againft me, although I did it in the king's prefence. 
 
 The maxim, then, is, that no man fliall be taken and committed to pri- 
 fon, but hy judicium parium, vel per legem terra, that is, by due proccfs of 
 law. Now to underftand this, it is neceffary to fee in what cafes a man 
 may be taken before prefentment or indiftment by a jury ; and in the en- 
 quiry it is to be confidcrcd, that procefs of law, for this purpofe, is tAvo- 
 fold, either by the king's writ, to bring him into a court of juftice, to an- 
 fwer, or by what is called a ivarrant in law. And this is, again, two-fold, 
 
 indeed, 
 
 \ 2 Inft. p. 46.
 
 Lect. 4T. laws of E N G L a N D. z6<) 
 
 indeed, by the authority of a legal magiftrate, as a Juflice of Peace's imitimus, 
 or that which each private perfon is invefted with, and may excrcife. 
 
 t 
 
 First then, for making a mittimus a good warrant, it is previoufly necef- 
 fary, that there fhould be an information on oath, before a magiftrate ha- 
 ving lawful authority, that the party hath committed an offence ; or at leaft 
 of fome pofitive fa£l, that Carries with it a flrong and violent prefumption 
 that he hath fo done : Next, then, the mittimus muft contain the offence in 
 certain, that it may appear whether the offence charged is fuch an one as 
 jufl:ifies the taking j whether it is bailable, or fuch as the law requires the de- 
 tenfion in prifon. A warrant without the caufe exprefled, is a void one, and 
 imprifonment on it illegal, and fo it was adjudged in Charles the Firfli's 
 reign, though done by the fecretaries of ftate, by the king's authority, with 
 the advice of his council ; thirdly, the warrant muft not only contain a law- 
 ful caufe, but have a legal conclufion, and himfafely to keep until delivered by 
 law ; not until the party committing doth farther order, for that would be 
 to make the magtftrate,who is only minijlerial, judicial, as to the point of the 
 liberty of the fubjedt ; from whence might redound great mifchief to the 
 party- on one hand, or to the king and public on the other, by letting an 
 olFender efcape. ■, 
 
 Let us fee how far the law warrants a private perfon to take another, 
 and commit him to prifon. Firft, then, if a man is prefent when another 
 commits treafon, felony, or notorious breach of the peace, he hath a right 
 inftantly to arrefl: and commit him, lefl: he fliould efcape if any aftVay be 
 made, to the breach of the peace, any man prefent may, during the con- 
 tinuance of the affray, by a warrant in law, in order to prevent imminent 
 mifchief, reflirain any of the offisnders ; but if the affray is over, fo that the 
 danger is perfedly pad, there is a neceffity of an information, and an ex- 
 prefs warrant; fo, if one man wounds another dangerouffy, any perfon may 
 arreft him, that he be fafely kept, until it be known whether the party 
 wounded ihall die or not. Sufpicion, alfo, where it is violent aixi ffrong, 
 is, in many cafes, a good caufe of imprifonment. Suppofe a felony done, 
 and the hue and cry of the country is raifed, to purfue and take the offen- 
 der, any man may arrefl another whom he finds flying ; for what greater 
 
 A a a prefumption
 
 370 L E C T U R E S ON the Lect. 41. 
 
 prefumption of guilt can there be, than for a perfon, inftead of joining the 
 hue and cry as his duty prompts him, to fly from it ? His good character 
 or his innocence, how clear it may after appear, fliall not avail him. His 
 imprifonment is lawful. 
 
 Another lawful caufe of arreting and imprifoning upon fufpicion is, if 
 a treafon or felony is certainly done ; and though there is no certain evi- 
 dence againft any perfon as the perpetrator, yet if the public voice and fame 
 is, that A is guilty, it is lawful for any man to arreft and detain him. So, 
 if a treafon or felony be done, and though there be no public fame, any 
 one that fufpefts another for the author of the faft may arreft him. But 
 let him that fo doth, take care his caufe of fufpicion will be fuch as will bear 
 the teil ; for otherwife he may be punifhable for falfe imprifonment. The 
 frequent keeping company with a notorious thief, that is, one that had been 
 convicted, or outlawed, or proclaimed as fuch, was a good caufe of impri- 
 fonment. Laflly, a watchman may arreft a night-walker at unfeafonable 
 hours by the common law, however peaceably he might demean himfelf ; 
 for ftrolling at unufual hours was a juft caufe of fufpicion of an ill intent. 
 With refpect to perfons arrefted by private authority, I muft obferve, that 
 the law of England fo abhors imprifonment, without a certain caufe fliewn, 
 that if there is not an information on oath fworn before a magiftrate, and 
 his commitment thereon in a competent time, which is efteemed twenty- 
 four hours, the perfon is no longer to be detained |. 
 
 Such is the lav\' of England with refpect to the perfonal liberty of the 
 fubject. Let us now fee the remedies the law provides for thofe that fuffcr 
 by its being infringed : the writ of odio ir atia I have already mentioned, 
 and that it is long fince out of ufe : the moft ufual way then to remedy this, 
 and to deliver the party, is the writ of habeas corpus, in obedience to which, 
 the perfon imprifoned is brought into court by the Iheriff, who is the keeper 
 of the prifon, together with the caufe of his caption and detention, that the 
 court may judge whether the firft taking was lawful ; and if it was, whether 
 the continuance of the imprifonment is fuch ; and this is brought in the 
 name of the party himfelf imprifoned. 
 
 The 
 
 • I 2 Inftilut. p. 51. — 5;.
 
 Lect. 41. LAWS OF ENGLAND. 371 
 
 Thk next is the writ de hominc rcplegiando, of replevying a man, that is, 
 delivering him out upon fecurity, to anfwer v/hat may be objefted againft 
 him. This is mofl commonly ufed when a perfon is not in the legal prilbu, 
 but perhaps carried off by private violence, and fecreted from his friends, 
 and therefore may be brought by a near friend having i-nterefl in the perfon's 
 liberty, as by a father, or mother, for their child, or a hufband for his 
 wife. Thefe are the remedies for refloring a perfon unjuftly deprived of 
 liberty, to the enjoyment of that invaluable bleiTmg. But very deficient 
 would thefe remedies be, if there were no provifions made for the punifli- 
 ment of a perfon offending againft his natural right, nor any relief for the 
 perfon unjuftly aggrieved. 
 
 For the point of punifhment, an indictment will lie at the king's fuit, 
 againfl; the falfe imprifoner, grounded on this flatute, for the vindication of 
 the public juftice of the nation ; and the party, if found guilty, fliall be 
 punilhed by fine and imprifonment. For the relief of the perfon injured, 
 he may have an adlion of falfe imprifonment, wherein he fliall recover dama- 
 ges ; or an adion on the cafe grounded on this ftatute, wherein he fhall 
 have the fame remedy. For Coke obferves on this ftatute, that it is a gene- 
 ral rule, where an aft of parliament is made againft any public mifchief or 
 grievance, there is either given exprefsly, or elfe implied by the law, an 
 action to the party injured. 
 
 Such is the antient original law of England with refpeft to liberty ; and 
 fo different from that of other nations of Europe, at leaft, as their laws are 
 underftood and pradtifed at prefent, where a man may be imprifoned with- 
 out knowing his crime or accufer, or having any means, except of humble 
 petition, to be brought to his trial. It is therefore no wonder that the peo- 
 ple on the continent envy much the fituation of the fubjedts of thefe illands, 
 when they contemplate their own. 
 
 The next branch of the ftatute is, Nul/ns liber homo dijfdzeiur de I'tbere 
 tcnemcntofuo, ve! Hbertatibus, vel liberis conjuetudinibus fuis. Here it may be 
 thought the word liber homo ihould be reftrained to freeholders, becaufe 
 none others can be diffeized ; but the following words, libcrlatibiis and con- 
 fuetudinibus, lead, by their import, to a more enlarged conftrudtion, and 
 
 A a a 2 take
 
 37- LECTURES on the Lect. 41. 
 
 take in all the fubjects ; fo that diffeizctur muft not be taken in its limited 
 peculiar fenfe, but rather in general for dephvctiir. Firfl, then, no freehol- 
 der fli all be diffeized of his freehold, but by verdici of a jury, or, by the 
 law of the land, as upon default, not pleading, or being outlawed. It was 
 made to prevent wrongful entries, by luch as had right or pretended right 
 to the land, in order to' avoid breaches of the peace and bloodflied, which 
 often enfued thereon ; but it was not intended to take away the entry of a 
 perfon who had a right to enter given him by law, for that the law could 
 never conftrue a dtjfdzen^ which is a wrongful diverting of the freehold. 
 
 To underfland this, it Is neceffary to obferve, that a man may have riglit 
 to the lands, and yet no right to enter upon them ; or he may have both ; 
 and in the lad cafe it is no difleizen. If A diffeizes B, he fhall never, by 
 h.is own wrongful ad, deprive B of the right of poflefTion ; but he may of 
 h.is own authority enter at any time, during A's life, provided he doth it 
 without breach of the peace. But if A is dead, now the lands being thrown 
 by the law upon A's heir, who had no hand in the wrong, and who is an- 
 fwerable to the Lord Paramount for the fervices due from the land, B has, 
 by his own negligence, in not entring, or if he could not enter, claiming, 
 during A*s life, loft the right of pofleflion ; it is transferred to A's heir, 
 and B muR recover his right by a fuit at law. 
 
 " To fee what is meant by Ubertatlbiis. It coniprehendeth, in the firfl place, 
 the laws of the realm, that every man fliould freely enjoy fuch advantages 
 and privileges as thefe laws give him. Secondly, it fignifies the privileges 
 that fome of the fubjefts, whether fingle perfons, or bodies corporate, have 
 above others, by the lawful grant of the king ; as the chattels of felons or 
 outlaws, and the lands and privileges of corporations. Hence any grant 
 of the king, by letters patent to any perfon, which deprives another fub- 
 jecl of his natural right and free liberties, is againft this branch of Magiia 
 Charta, as are all monopolies, which were fo plentifully and fo opprefTively 
 granted in the reigns of Elizabeth and James the Firft, and here in Ireland, 
 in that of Charles the Firft. We muft, however, except fuch monopolies 
 as are erected by a£t of parliament, or by the king's patents, purfuing the 
 directions of an aft made for that purpofe. f . 
 
 Lastly, 
 f 2 Lift. p. 47.
 
 Lect. 4T. LAWS OF EN GLAND. 373 
 
 Lastly, Confuctudhnhus takes In and prcfcrves thofe local cuRoms in 
 many parts of England, which, though they derogate from the common law, 
 are yet countenanced and acknowledged as part of the general fyflcm of 
 law. It alfo extends to any privileges which a fubjeft claims by prefcription, 
 as wreck, waif, flray, and the like f . 
 
 The next claufe is, out utlageiur ; of which having fpoken already, I 
 fliall pafs on to the fourth, aiit cxuletur. No man fliall be baniflied out of 
 the realm, mfi per legem terra ; for the judicium .parium is out of this claufe, 
 there being no crime of which a man is conviiT:ed, whofe fentence is banifli- 
 ment.' The iranfportalion now commonly ufed for {lighter felonies is not 
 like it ; for that is by the free confent of the criminal, who defircs to com- 
 mute a heavier punifliment for a (lighter. Now per legem terra a man mav 
 be exiled two ways, either by acl of parliament,. as fome wicked minions of 
 ■our former kings were, and particularly Richard tht Second's corrupt judges 
 into Ireland ; or by a man's abjuring the realm* when accufed of felony, 
 that is, fwearing to depart out of the kingdom, never to return ; which 
 latter is long fmce fallen into difufe. Coke fays, that the king cannot fend 
 any fubjeft againfl; his will to ferve him out of the realm, and the reafon is 
 ftrong ; for if he could under pretence of fervice, he might tear him from 
 his family and country, and tranfport him to the remotefl: corner of the 
 earth, there to remain during the whole of his life \. But what fhall we 
 fay as to the military tenants, who by the very tenure of their grants were 
 obliged to ferve the king in his wars out of the realm ? Certainly, whilft 
 the feudal fyftem retained its priftine vigour, and perfonal fervice was re- 
 quired, they were an exception to this rule ; but when the commutation of 
 efcuage was eftabliflied, they were confidered as under it. Indeed their ge- 
 neral readinefs to attend their king's fervice in perfon, gave no occafion for 
 this queftion's ever being decided. The famous cafe on this point was in 
 Edward the Third's reign ; that prince had made many grants to Sir Rich- 
 ard Pembrige, fome ior fervitio impenfo, others iorfervitio impendendo. The 
 king commanded him to ferve in Ireland, as his Lord-deputy, which he po- 
 fitively refufed to do, looking upon the appointment as no better than an 
 
 exile ; 
 t 2 In/tt. p. 47. \ Ibid.
 
 374 L E C T U R E S ON the LECT.41. 
 
 exile ; and for this refufal the king feized all that had been granted to him 
 proferviiio impendendo ; and the queftion came on in court, whether the 
 feizure was lawful. The judges clearly held the refufal lawful, and there- 
 fore would not commit him to prifon ; but as to the feizure, in confequence 
 of the words proferviiio impendendo, without fpecifying where, they thought 
 it juftified. But Coke fays, " it feemeth to me that the feizure was un- 
 " lawful." ¥oT p>rofervitio impenjo, and impendendo, muft be intended of law- 
 ful fervice within the realm. The laft time this a£l: was violated was in the 
 reign of the mifguided James the Firlt, in the -cafe of the unfortunate Sir 
 Thomas Overbury ; who for refufmg to go ambaffador to Mufcovy, was 
 by that prince fent to the Tower, in which place he was afterwards barba- 
 roufly poifoned ; and for his murder the favourite Somerfet and his coun- 
 tefs were both condemned to die f . 
 
 t 2 Inft. p. 48. 
 
 LECTURE
 
 Lect. 42. L A W S OF E N G L A N D. 375 
 
 LECTURE XLII. 
 
 Contimmiion of the commentary on Magna Charta, 
 
 THE fifth branch of this flatute is in very general terms ; it is, aul 
 aliquo mode dcjiruatiir. " Dejlrudiun" is a word of very general im- 
 port. Coke, in the firft place, explains it by faying, " no man (liall be fore- 
 " judged of life or limb, or put to the torture or death, without legal 
 " trial." But he Ihews, afterwards, by his inflances, that it is much more 
 extenfive : For he obferves, that " when atiy thing is prohibited, every thing 
 " is prohibited which neceffarily leads to it." Every thing, therefore, 
 openly and vifibly tending to a man's deftruftion, either as to life, limb, or 
 the capacity of fuftaining life, is hereby diredly forbid : So that, torture, 
 as it endangers life and limbs, and may prevent a man from earning his 
 livelihood, is, on all thefe three accounts, unlawful, though common among 
 all other nations of Europe, who have borrowed it from the old Roman law 
 with refped to flaves ; a plain indication in what light the introducers of it 
 looked on their fubjefls. It cannot be faid that this hath never been vio- 
 lated in England in arbitrary times ; (as what nation is there, whofe fun- 
 damental laws have not been, on occafion, violated ?) yet, in five hundred 
 years, I do not believe the Englifh hiltory can afford ten inftancesf. 
 
 For the fame reafon, "judging a man, either in a civil or criminal caufe, 
 
 " without calling him to anfwer and make his defence," is againft this pro- 
 
 vifion. So likewife is " the not producing the witneffes, that the party 
 
 *' may have an opportunity to crofs-examine them," I believe, if they may 
 
 be had. For in the cafe ot death, or abfence in a foreign country, that 
 
 they cannot be produced, there is an exception, for very neccfiity's fake ; 
 
 and in that cafe, the examination of fuch perfon, taken before a proper ma- 
 
 giftrate, is good evidence, tho' thereby the party lofes the crofs-examina- 
 
 lion or information againfl the murderer. But whenever this happens, the 
 
 jury 
 ■j- 2 Inft. p. 4S.
 
 3/6 L E C T U R E S ON the Lect. 42. 
 
 jury fhould confider that the party has loft the benefit of the crofs-exami- 
 nation, and have that in their contemplation, when they are preparing to 
 give their verdict. Diredly contrary to this fundamental law, and to com- 
 mon juftice, was the trial of Sir Walter Raleigh, conduced by Coke, at- 
 torney-general, upon the depofitions of people who might be brought face 
 to face. For, notwithftanding the perfect knowledge of that great lawyer 
 in the laws of England, he was a mod time-ferving minifter of the crown. 
 The people of thefe nations are much indebted to him for his excellent 
 writin<TS on the law, and more for demonftrating the anticnt right of the 
 people of England to the liberties they claimed : But, if we confider that 
 he was then in difgrace at court, I fear this panegyric muft be confined to 
 his behaviour while a judge, which was without reproach ; nor did he he- 
 fitate to forfeit the favour of the crown, by oppofing incroachments on the 
 law of England. 
 
 As tending to deJirtiBion ; it is likewife unlawful to amerce or fine a man 
 convifted of a crime, beyond what he has a poflibility of paying ; for that 
 would tend to perpetual imprifonment, and difabling him from maintaining 
 himfelf and family. Neither is it lawful, th&' a man be indifted of treafon 
 or felony, for the king to grant, or even to promife, the forfeiture of his 
 lands or goods ; for this would be throwing a temptation in the way of 
 others to fuborn witneffes to his deftruftion. Thefe I mention, only as par- 
 ticular inftances, to open the import of this law ; but the words ^rcaliqiio 
 modo dejiruatiir, taking in " every thing that direftly tends to deft ruftion." 
 And it muft be obferved that thefe words, aliquo modo, are not in any other 
 branch of this aft. 
 
 I COME now to the laft clanfe of this firft part, necfiipcr eum ibhnus, ncc 
 rupa- eum mittcmtcs, ni^ per legale judicium parium/uorum, aut per legem terra. 
 I obferved before, from the words here being in the firft perfon, that they 
 refer to the fuit of the king ; and they relate not only, by the latter words-, 
 to a legal trial, as to matter and form, but alio to a trial in a proper and le- 
 gal court. The words nce/uper aim ibimus belong to the King's Bench, where 
 the iuits of the king, the placita corona, are properly handled, and where 
 the king is always fuppofed to be prefent. The words fupcr cum mittcmus 
 
 refer
 
 Lect.42. laws of ENGLAND. 377 
 
 refer to other courts fitting for the fame purpofcs, as Juftice of gaol-deli- 
 very, for inftance, under the king's comnilflion. But when thofe words 
 are coupled with the following ones, per legem terra, they carry a farther 
 import ; not only that the courts, trying the king's caufes fhould proceed 
 according to the law of the land, but that the courts themfelvcs fliould be 
 fuch as the lex terra authorizes ; that is, either the common law, from time 
 immemorial, or a£ts of parliament. So that the king hath no power, of his 
 own authority, to form new criminal courts, as he may civil ones. In fome 
 cafes, he appoints, indeed, the judges of the courts of common law, and 
 iflues commiflions, and appoints the commiffioncrs in criminal courts au- 
 thorized by parliament ; but no farther doth his power extend. 
 
 To this it may be objected, that the king may create a county palatine, 
 and confequently new criminal courts ; but let this be confidered : Counties, 
 and duchies, fuch as we call palatine, were, I may fay, indeed of the eflence 
 of a feudal kingdom, as ours originally was ; that is, the king might dif- 
 nicmber a part of his kingdom from the immediate fubjeclion to the crown, 
 transfer a fubordinate degree of the legal rights to a fubjed ; and when a 
 county of that kind was created, without faying any more, all the courts, 
 not new ones, but the fame that were at common law through the whole 
 kingdom, followed as incidents ; in the fame manner as by erecting a new 
 county, not palatine, it had its county-court, and the Iherift's tourne. 
 Thefe are not erecting, properly fpeaking, new courts, fo much as bring- 
 ing the old ones home to the doors of the people of that diftrid. 
 
 As I obferved at the beginning, this law naturally divides itfelf into two 
 parts, the firft ending at the words per legem terra. Having made fuch ob- 
 fervations as have occurred to me as necefl'ary or material for the under- 
 flanding thereof, I now proceed to the latter part of this ftatute, which 
 runs in thefe words : Nulli vendemus, nulli negabimm, aut deferemus juftitiam, 
 vcl reclum. Some have imagined that, by thefe words, in the disjunftive, 
 are meant common law and equity ; but courts of equity, and proceedings 
 in cafes of equity in thofe courts, were not known in times fo early ; and 
 the legal fignification of return in old ftatutes, and law-books, is either the 
 right that a man hath to a thing, or the law of the land, the means of at- 
 taining the poflefllon and enjoyment of that right ; and in that ienfe it is 
 
 B b b here
 
 378 LECTURES on the Lect. 42. 
 
 here to be taken ; as Coke {a.ys, Jujiice is the end, return the means, name- 
 ly, due procefs of law ; neither of which is to be fold, denied, or delayed 
 to the fubjeft. In order to underfland this, it will be neceflary to point 
 out fome of the mifchiefs that were before this afl:, which is the fureft way 
 to expound the meaning of any law f . 
 
 For this purpofe it is to be remembered, that, in the Saxon times, almoft 
 all fuits, except between grandees, were expedited in the county-courts. 
 I have obferved before, that the Conqueror and his fucceflbrs difcouraged 
 thefe, and encouraged fuits in the Aula Regis, or king's courts ; and that the 
 fubjecls were fond of fuing there ; but ftill it was a matter of favour, where 
 the caufe properly belonged to the country jurifdiftions, and could not be 
 demanded as a right. As a matter of favour, it might be denied by the 
 king, or his chancellor, who was the iffuer of the original writs, unlefs a 
 fum of money was paid, fuch as they demanded. This was felling juftice. 
 Or, if the perfon to be fued was a favourite of the king, or chancellor, the 
 writ might be denied ; this was denying juflice. Or, if it was granted, as 
 the proceedings were ex gratia, the party might, ad libitum, be delayed by 
 the judges, or the caufe might be flopped by order of the king, and this. 
 was the deferring of juftice, meant by this aft, which was intended for the 
 giving every fubjeft a right, in all cafes, and againft all perfons, to have 
 juftice adminiftred to him in the king's courts. The chancellor now is 
 hereby obliged inftantly to iffue all original writs, and the judges of the fe- 
 veral courts, where caufes depend, to ilfue the proper judicial ones without 
 fee or reward. This, however, is not fo to be underftood, as to prohibit 
 the moderate and accuftomed fees, which, from time immemorial, have ' 
 been paid to the officer, for his trouble in making them out, or to the 
 judge, for putting the feal ; for thefe are a part of their livelihood, but on- 
 ly thofe arbitrary funis which were before taken, and which the ftate pro- 
 perly calls the felling of juftice. So likewife the judges are obliged, in 
 every caufe before them, to proceed with expedition, and to fufter no de- 
 lays, but fuch as the law allows, and requires, for giving each party an op- 
 portunity of defence, and of laying his caufe fully before the court. 
 
 riowEVEK, 
 ■\ 2 Inftitut. p. 55, 56.
 
 Lect. 42. LAWS OF ENGLAND. 379 
 
 However, notwithflanding this aft, the evil was often repeated, and 
 many fuits flopped by the command of the king, and others, as appears by 
 four feveral afts of parliament, made to enforce and explain this one, the 
 fubftance of which afts, is fummoned by Coke in tliefe words : That " by 
 " no means common right, or common law, fliould be diflurbed or de- 
 " layed ; no, though it be by command, and under the great feal, or privy 
 " feal, order, writ, letters, meflage, or commandment whatfoever, either from 
 " the king, or any other ; and that the juflices Ihall proceed, as if no 
 " fuch writs, letters, order, meflage, or other commandment, were come 
 " to them." However, this is not to be underftood fo ftriftly, but that 
 the king may ftop his own civil fuit that he hath inftituted for his own be- 
 nefit,' as a capias for a fine, becaufe qtiifqiic juri fuo renunciare potejl ; and 
 this ftoppage, in truth, is for the benefit of the fubject. It is otherwife in 
 criminal accufations, unlefs he can fhew good caufe to the court to put it 
 off. For every man accufed has a right to be brought to his trial |. 
 
 Neither are legal proteftions within the prohibition of this law ; thefe 
 were granted to flop fuits againfl any man that was perfonally employed in 
 the fervice of the king, and were founded on this prefumption, that fuch 
 fervice was for the public benefit, to which all private regards mufl give 
 way. But then thefe protedlions, mufl be legal ones, fuch, and none other, 
 as are found in the Regifler, the antientefl book of the law, and not ones 
 newly devifcd, and for new-fangled caufes. Thefe proteftions, however, 
 were greatly abufed in the fequel ; favourites, and their dependants, fre- 
 quently obtaining them, to hinder others of their jufl rights, under pretence 
 of ferving the king ; where in truth, there was no fuch thing. It is there- 
 fore recorded, highly to the honour of Elizabeth, that fhe firfl difcontinued 
 the granting them ; and her laudable example has been followed by all her 
 fucceffors. I fliall, therefore, not dwell upon them, it being fufficient to 
 have mentioned that fuch things there are, or at leafl were in our law. 
 
 I HOPE the prolixity with which I have treated of this chapter of Magna 
 
 Charia, 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 fubjecl to, will 
 
 be excufed, when it is confidered, that it not only contains great variety of 
 
 B b b 2 matter, 
 
 f 2 Inftitut. p. 56.
 
 380 LECTURES ON the Lect. 42. 
 
 matter, but is the mod important, and of more general confequence and 
 concern, than any other law of the land. It is the guardian of the life, the 
 liberty, the limbs, the livelihood, the poflelTions, and to the right to juflice 
 of every individual, and therefore it concerns every man to know it, and 
 fully to underftand it. 
 
 The thirtieth chapter is in favour of commerce and merchant ftrangers. 
 Certain it is, that, in antient times, the kings of Europe, and their military 
 fubjefts, looked on merchandize as a difnonourable profeffion ; as did the 
 Romans alfo, in the military ages of that republic. By the old laws of 
 England, no merchants alien were to frequent England, except at the four 
 great fairs ; and then were permitted to flay but forty days at a time, that 
 is, an hundred and fixty days in the whole year. But now this a£t has 
 altered the former law, and is very favourable to perfons engaged in com- 
 merce, who before were little better than at fiifferance. It commands, that 
 all merchants, namely, merchant ftrangers, whofe fovereign is in amity 
 with the king, unlefs publicly prohibited, that" is, fays Coke, by Parlia- 
 ment, which is true, as the law hath fmce flood, (but before, I conceive the 
 king himfelf had the power to prohibit) fliall have fafe and fure conduft in 
 feven things. Firft, to depart out of England without licence, at their 
 will and pleafure. Secondly, to come into England in the fame manner. 
 Thirdly, to continue in England without limit of time. Fourthly, to go 
 and travel through any part of England at their pleafure, by land or water. 
 Fifthly, free liberty to buy and fell. Sixthly, without any manner of evil, 
 tolls or taxes ; but only. Seventhly, by the old and rightful cuftoms, that 
 is, by fuch duties as were of old time accuftomed to be paid, and are there- 
 fore called Cii/ioms. By this law the king is prohibited from laying any new 
 taxes on the imports or exports of merchant ftrangers. And as now they 
 gained a general licence to continue in the reahu, from hence arofe that 
 privilege of merchant ftrangers to take leafes for years, of houfes for their 
 dwelling, and warehoufes for their goods, whilft they continued in Eng- 
 land ; for, regularly, all acquifitions of aliens, in lands or tenements, belong 
 to the king f. 
 
 The 
 
 f a Ijiftiuit. p. 57. ct feq. Barrington on tlie ftatutes. p. 23. 25.
 
 Lect. 42. LAWS OF ENGLAND. 381 
 
 The fecond branch of this a6t is a very equitable one. It concerns 
 merchant enemies, or rather fuch merchant (Irangers as came in friends, 
 and afterwards became enemies, by a war's breaking out between the fove- 
 reigns while they are in England. It provides that, on a war's fo break- 
 ing out, the perfons and effeQs of fuch merchants fiiould be feized, and 
 fafely kept till it fliould be known how the Englilh merchants had been 
 treated in the enemy's country ; and that, if they were well treated, tliefe 
 fhould be fo too. This regulation, however, is not put in ufe j becaufe, by 
 the treaties made between the fovereigns of Europe, it is flipulated, that, 
 on the breaking out of war, the merchants in each others country fliould 
 have a certain number of days to withdraw thenafelves 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 perfons driven into England by ftrefs 
 of weather. 
 
 LECTURE
 
 382 L E C T U R E S ON the Lect. 43. 
 
 LECTURE XLIIl. 
 
 Continuation of the commentary on Magna Charta. 
 
 AS I have dwelt on the twenty-ninth chapter of Magna Charta fo long, 
 and treated of it and every part of it fo minutely, I {hall, in this lec- 
 ture, difpatch the remaining part thereof with more expedition. Indeed, 
 of the thirty-firft I would have faid no more, than merely to obferve, that it 
 related to the military tenures now abolifhed, were it not proper to remark, 
 that it was made to enforce the old feudal law, then the law of England, 
 i with refpeft to landed eftates, and to reftrain John's fucceffors from the 
 . violences he had introduced in favour of the royal prerogative, to the detri- 
 I ment of the immunities and privileges of the fubjefts. It has been already 
 obferved in thefe leftures, that by the feudal law, efpecially as eftablifhed 
 by the Conqueror in England, the king was very amply provided for with 
 a landed eftate, to fupport his dignity and expences, which was at that time 
 looked on all over Europe as unalienable, except during the life of the 
 king in being ; and that the reft of the land was to be the property of the 
 free fubjects of the realm, fubjeft to the fervices impofed, and the other 
 confequences of his feignory as feudal lord. 
 
 One of thefe confequences was the efcheat on the failure of heirs, ei- 
 ther by there being none, or by the blood being corrupted by the commif- 
 fion of felony, which in law amounted to the fame thing ; as no fon, uncle, 
 nephew, or coufin, could by law claim as heir by defcent to a perfon 
 attainted. For the legal blood, the title to the inheritance, failed in him 
 the lafl: poffelTor, by his breach of fealty ; and every heir lineal or collateral 
 by the law of England being obliged to claim as heir to the perfon lafl 
 feized, mufl be excluded, when the legal blood inheritable failed in the 
 lafl poflciTor. 
 
 In confequence of thefe efcheats, which often happened in thofe .times, 
 both by corruption of blood, and failure of heirs inheritable, (for, as I 
 
 have
 
 Lect. 43. L A W S OF E N G L A N D. 383 
 
 have obferved before, the granting fcuda anfiqua ut nova was introduced 
 only by Henry the Second, the father of John, and were not at this time 
 become univerfal, as they fince have been) John introduced this new maxim, 
 that when an earldom or barony fell to the crown by efcheat, he held it in 
 the right of his crown, as it was originally derived from thence ; and con- 
 fequently, that the tenants of the former lord, being now, inflead of inler- 
 mediate, become immediate tenants of the crown, held of him in aipite, as it 
 was called ; that is, that he, by this efcheat, obtained privileges over the 
 tenants of the former lord, which he, the former lord, never had, or could 
 have, but which he claimed as king, in jure corona. Thefe privileges were 
 many in number ; but it will be fufficient to mention only two of them, to 
 fliew into how much worfe a ftate the tenants of thefe efcheated lordlliips 
 were thrown, by being confidered as tenants in capite. 
 
 First, then, the king had from his tenants in capite, who came into pof- 
 feflion of their lands at full age, inftead of relief, to which fubjed lords 
 were intitled, and which was only one fourth of the value of the lands, his 
 frimeir feizin, which was the whole year's value. Another grievance was 
 with refpeQ: to the wardfhip of military tenants under age.. As to the te- 
 nants in capite, the king had, by his prerogative, a right not only to the 
 wardfhip of the perfon of his minor tenant, and of the lands he held of him 
 in capite, but alfo of all other lands held by knight-fervice of any otlier per- 
 fon. For as to focage lands, they were to be in the hands of the next of 
 kin, to whom the inheritance could not defcend, who, at the infant's full 
 age, was to be accountable for the profits : and under the pretence of fuch 
 tenants, upon the fuperior lord's efcheat, becoming tenants in capite, John 
 claimed and exafted the privilege, to the detriment of the other lords. 
 Thefe and other mifchiefs, for others there were, as I obferved before, and 
 fome of them are mentioned in this ftatute, are remedied by the general 
 provifion which reftored the feudal law, that the king ftiould hold all fuch 
 efcheated lordlhips in the fame right they were before held, and have no 
 other privilege, but what the lord by whofe efcheat they fell to him had : 
 in a word, that he Ihould hold them as lord of that lordfliip, not as king f. 
 
 The 
 
 t 2 InfVitut. p. .64..
 
 h3- 
 
 384 L E C T U R E S ON the Lect. 4: 
 
 The thirty-fecond chapter relates to the ahenation of lands, and gives a 
 qualified power of that kind. By the feudal law, as It was introduced at 
 the Conqueft, no lord could alien his feignory without the tenants confent, 
 fo neither could the tenant his tenancy, without approbation of the lord. 
 Thefe drift rules were firft broken into, in thofe fuperflitious times, in fa- 
 vour of churchmen ; afterwards, in Richard the Firfl's time, to raife mo- 
 ney for the holy war. Not but the fubjeds, by their infilling on Edward 
 the Confeflbr's laws, of wliich free alienation was a part, feemed to be 
 fond of it. However, the kings, in all their grants of the old Englifh laws, 
 were careful to preferve the feudal fyftcm, in guarding againft the alienation 
 of the military tenures. Coke, on commenting in this Itatutc, in order to 
 the better underflanding thereof, makes three obfervations relative to 
 what was the common law before this ftatute ; in the laft of which I appre- 
 hend he is miftaken, as the law then flood ; and that what he afferts there- 
 in to have been law did not become (fo though often in praftice) till after 
 the flatute quia etnptores terrarum, in Edward the Firfl's reign. 
 
 His firfl obfervation is, that the tenant might have made a feoffment of 
 the whole, or a part of his tenancy, to hold of hlmfclf ; and no doubt but 
 he m/ight. This was the ufual cafe of fubinfudation, by which the lord 
 was in no fort prejudiced ; for his feignory remained entire, and he might 
 dillrain in any part for his whole fervice ; and in fuch cafe, if the under 
 tenant was aggrieved, he was to have his remedy againll his immediate 
 landlord the viefne, (or middle perfon), as he is called in our law. 
 
 The fecond obfervation is, that the tenant could not alien in fee apart of 
 the tenancy, to hold, not of himfelf, but of the lord, than which nothing 
 could be more reafonable ; for it would have been againft thefe old rules 
 alfo, for a tenant to bring in another, as immediate vaffal to the lord, with- 
 out his the lord's confent. The tenant would by that means difmember 
 the feignory, which he received, entire, and fo deprive the lord of his 
 right of diftraining in the whole, and confine him merely to that part re- 
 maining in his own hands, as original tenant. For as to the part of the 
 allicnee, he could not diftrain that for his fervice, there having been no feu- 
 dal contract between them. Such alienation, therefore, unlefs when the 
 lord accepted the allienec as a tenant, was a breach of fealty, and againft 
 the old feudal principles, and confequently unlawful in England. 
 
 The
 
 ,-n 
 
 LECT.34. LAWS OF ENGLAND 385 
 
 The third obfervation Coke makes on this ftatute, is, that by the com- 
 mon law the tenant might have made a teoilment of the whole tenancy, 
 to be holden of the lord. For, fays he, that was no prejudice at all to the 
 lord f . But though this certainly prevailed as common law, long before ei- 
 ther Coke or Littleton wrote, I cannot help thinking, both becaufe it was 
 contrary to the old feudal law, and alfo from the words of the ftatute quia / ' y / 
 emptores tcrrarnm, that it was firfl introduced by that aft of parliament, the ^ 
 words of which are, de ccetero liceat unicuique IVocro homini terras fuas, feu tc- 
 nementafua vel partem, iiide -vender e. Here the alienating the whole is de- 
 clared from henceforth lawful ; which words had been nugatory, if this 
 had been common law befoiv. 
 
 The chapter of Magna Charta of which we are fpeaking, was, then, the 
 firft pofitive law that allowed the free alienation of lands. It, in one fenfe, 
 enlarged, whilfl: in another it exprefsly reftrained, the power of the tenant ; 
 ■whereas, before, he might alien the whole, or part of his tenancy in fee, 
 but fubjedl to the diftrefs of the lord. Now, by this ftatute, he was confi- 
 ned to an alienation only for fo much, that, out of what remained, the lord 
 might have fufficient diftrefs for his entire fervice, and the part conveyed 
 ■was in the alienee's hands, free from any future diftrefs by the lord, or fervice 
 due to him, fealty only excepted. But it not being fpecified, how much 
 of the land was a fufficiency, though the half, or what was the half in value 
 was, in common eftimation, reputed fuch, the tenants, under this pre- 
 tence, would alien more ; which gave occafion to many difputes and fuits 
 and the propenfity to general alienations continuing, the law called quia emp- 
 tores terrarum, already mentioned, was at length made, which gave a gene- 
 ral licence to alien the whole, or a part at pleafure, to hold of the fuperior 
 lord ; and this put an end, in the law of England, to fubinfudation of fee 
 fimples. For, fmce the pafling that law, if a man infeofts another of the 
 whole or part of his land, there is no tenure between the feoffer and feoffee 
 but the feoftee holds of the feoffer's lord. But as to lower eftates, as fee 
 tail eftates for life, years, or at will, fubinfudation remains ; becaufe the 
 whole eftate is not out of the donor, or leflbr, but a reverfion remains in 
 him ; wherefore the tenure, in fuch cafe, is of the donor or leffor. 
 
 C c c By 
 
 -}• 2 Inft. p. 65. — 67.
 
 386 L E C T U R E S ON the Lect. 45. 
 
 By the ftatute of Magna Charta, in cafe of alienation of part, to hold of 
 the lord, the refidue remaining in the original tenant's hands, was to anfwer 
 the fervices, and the alienee held of the lord, by fealty only. But now by 
 the fecond chapter of the forementioned (latute, the fervices were to be ap- 
 portioned, that is, divided in proportion to the value of the lands. If half 
 of the lands, not in extent, but value, was aliened, the alienee paid half: if 
 one third, the like quantity. I have obferved before, on this ftatute of 
 quia emptores, that the king, not being named, was not bound by it. For 
 his teriant in capite to alien without licence was a forfeiture, until, in the 
 reign of Edward the Third, a fine for alienating was fubftituted in the place 
 of the forfeiture, which fine continued until '.he reftoration, when it was 
 aboliihed. 
 
 TiTE 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 pofl'cffion, were intitled to the cuflody of temporali- 
 ties, during the vacancy of the abbey, fhould enjoy them free from molef- 
 tation of any perfon, or of the king, under the pretence of the prero- 
 gative f . 
 
 The thirty-fourth chapter is relative to appeals of murder, brought by 
 private perfons. When a man is murdered, not only the king, who is 
 injured by the lofs of a fubjeO:, may profecute the offender, but alfo the 
 party principally injured, that is, the widow of the deceafed, if he had one j 
 for Ihe, as having one perfon with him, flands intitled to this remedy ia 
 the firft place ; but if he left no widow, his heir at law might purfue it. It 
 follows, therefore, that a female heir might, by the common law, have 
 brought an appeal of murder, as the daughter, or the fifler, if there had 
 been neither children or brother. But this ftatute ahers the common law, 
 and takes away the appeal, in fuch cafe, from every woman, except the 
 widow ; fo that, at this day, if a man be murdered, leaving no widow, 
 and his next heir be a female, no appeal of murder can be brought. But 
 this difability is perfonal to women ; for though a daughter or filler, 
 living, can bring no appeal, though heir, yet, if they be dead before the 
 murder, leaving a fon who is heir, he may bring it j. 
 
 \ 2 Infl. p. 68. Barrington, p. 25. 
 % Ibiil. p. 66, 69.
 
 Lect. 43. L A W S OF E N G L A N D. 387 
 
 I SHALL now make a few obfervations on the right of the widow's bring- 
 ing fuch appeal. Firft, then, the man flain mufl: be virfuus, as the fta- 
 tute exprefl'es it. If, therefore, they had been divorced, the marriage be- 
 ing diflblved, flie could not have an appeal. It was otlierwife, if they had 
 been only feparated a menfd & thoro ; for then he flill continued her huf- 
 band. He ceafes likewife to be vir fuus, if fhe ceafes to be his wife, or 
 widow. Therefore, by her marrying again, her appeal is gone, even 
 though the fecond hufband fliould die within the year, the time limited for 
 bringing It. This is carried fo far, that though (he brings an appeal while 
 a widow, yet if flie marries while it is depending, it (hall abate for ever. 
 So if flie has obtained judgment of death againfl the appellee, if fhe mar- 
 ries before execution, flie can never have execution againfl: him. In one 
 point the heir is lefs favoured in appeals than the widow ; for if the perfon 
 murdered had been attainted of high treafon, or felony, fo that his blood 
 ■was corrupted, the heir could not have it ; for the civil relation between 
 them was extinguiflied, by the ancefl:or's civil death : but the relation of 
 hufljand and wife depends on the law of God, who has declared the bond 
 indiflbluble ; therefore no law of man can make him ceafe to be vir fuus 
 and, in fuch cafe, flie fliall have an appeal. 
 
 The thirty-fifth chapter treats of the county-courts f ; but having already^ 
 in a former lefture, mentioned what appeared to me fufficient on that fub- 
 jecl, I fliall proceed to the next, viz. the firfl: law made to prevent aliena- 
 tions in mortmain. Lands given to a corporation, whether fpiritual or lay, 
 are faid to fall into mortmain, that is, into a dead hand, an hand ufelefs and 
 unprofitable to the lord of the fee, from whom he could never receive the 
 fruits. There could be no efcheat, either for want of heirs, or felony, be- 
 caufe the body never died, nor was capable of committing felony. For the 
 fame reafon of its never dying, there could be no wardfliip, or relief- nei- 
 ther could there be marriage. But befides the lofs to the lords, the public 
 alfo fuffered ; for the military fervice the lands were fubjedto, were often 
 withdrawn, or, at leaft, very infufiiciently performed. 
 
 These alienations, without the confent of the fuperior lord, were direftly 
 
 againfl: the feudal polity ; yet fuch was the power of the clergy, who were 
 
 C c c 2 the 
 
 f 2 Inft. p. 69. 74.
 
 388 L E C T U R E S ON the Lect. 43. 
 
 the prlneipal gainers thereby, in thofe ages, and fo great their influence, 
 that they were not only tolerated, but univerfally practifed, through all 
 Europe ; for the founding of a monaftery was the ufual atonement for the 
 moft atrocious crimes. In England, particularly, from the acceflion of the 
 Conqueror to that of John, containing one hundred and thirty-four years, 
 there were no lefs than an hundred and four monafteries founded, many of 
 them very richly endowed, befides particular benefactions made to them 
 and the old ones. No wonder, then, it was found necefTary, by laws, to 
 put a flop to the growing wealth of the church ; but the reign of John, a 
 vaflal to the Pope, was not a time to expefl: a remedy. Accordingly, this 
 aft goes no farther than to remedy a collufive practice, by which a vailal, 
 to defraud his lord of the fruits of his feignory, made over his lands to a 
 convent, and took it back to hold from them ; and to that end, the ftatute 
 declares the land, in fuch cafe, forfeited to the lord. 
 
 I SHALL fay no more on this point, nor of the many cunning pra£lice3 
 churchmen, in after times, put in ufe by the advice of the moft learned 
 lawyers they could procure, in order to creep out of this, and every other 
 flatute made to rcftrain them, and for employing which. Coke fays, they 
 were much to be commended. But he has forgot to tell us whether he 
 thought thofe great lawyers deferved commendation, for finding means to 
 elude the moft beneficial laws of the land. It will be enough here to fay, 
 that, from thefe devices, arofe, in time, the wide-fpreading doftrine of ufes 
 and trujls^ which have over-run our whole law, and that the judicial powers 
 of courts of equity have grown with them \. 
 
 The next chapter was made to reftrain the Intolerable exaQions of efcuage 
 which John had introduced, and forbids the afTefTmg it, in any other man- 
 ner than was ufed in the time of Henry the Second, his father, that is, as 
 I obferved under that reign, very moderately ; fo that every man had his 
 option, whether he would ferve in perfon, or pay it |. 
 
 Next comes the thirty -eighth, which is the conclufion. Firft, it faves to 
 the fubjeQs all. other rights aiid privileges before had, though not men- 
 tioned 
 
 \ 2 Inft. p. 74, 7 J. Barrington, p. 27. 
 
 I Ibid. p. 76. See alfo 1 lufh lib, 2. cap. Efcuage. Barriiigton, p. 28. — 31.
 
 Lect. 43- LAWS of ENGLAND. 389 
 
 tioned herein. Coke obfcrves, that there is no faving for the prerogative of 
 the king, or his heirs ; for that would have rendered all iilufory. Secondly, 
 it ordains that the king and his heirs fhould obferve it. Thirdly, that all 
 the fubjedts fhould. Fourthly, it recites, that, in confideration hereof, the 
 king received from the fubjeds 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 inflances ; for which favourable alterations the fubjecls made 
 this grant, and thereby became purchafers of them. Fifthly, it prohibites 
 the king, and his heirs, from doing 'any thing whereby thefe liberties might 
 be infringed or weakened ; and declares all fuch doings null and void. 
 Laftly, comes the alteration of twelve bifhops, and nineteen abbots, and 
 thirty-one earls and barons +. 
 
 t 2 Lift. p. 76.-78. 
 
 INDEX.
 
 4
 
 N D E X, 
 
 A 
 
 Page. 
 
 BBOTS - - . 202 
 
 Abeyance - - 1^6 
 
 Aftions of debt - - - 40 
 
 on the cafe - - 40, 310 
 
 perfonal - . 301, 315 
 
 real . . , ^,4^ ^gg 
 
 mixed - - 31 r 
 
 pofTeflTory and petitory . « 202 
 
 ■ ■ to be tried by the judges itinerant - 298 
 
 ■ '■ of wafte - . 31 c 
 •' - of ejedment - - /^/^. 
 Adls of State. See proclamations 
 
 Admiralty jurifdiftion - - " 33i 
 
 court of - - . 362 
 
 Advowfons of Bifhoprics - - 78 
 
 ■ right of nomination, in whom lodged - ^g 
 
 prefentative - - 8i 
 
 collative - - - 82 
 
 donative - - jbij. 
 
 now fubfifting in England - 84 
 
 how forfeited - 85 
 
 iEtius - - - 46 
 
 Agiftment when due to the Clergy - - » 94 
 
 Aids and fubfidies 
 
 Alias writ of - - 
 
 Alans 
 
 Alarick - - - 44, 45 
 
 Alexander III. - - 322 
 
 Alexander Severus - - - 21 
 
 Alfred makes a law for the payment of tithes - go 
 
 his boafl of the liberty he tranfmitted 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 
 
 I in mortmain - - 387 
 
 Allodial, 
 
 ^74 
 
 357 
 
 43
 
 392 INDEX 
 
 Page. 
 
 Allodial. See eftates allodial 
 
 Allodians attach themfelves to their neighbouring Lords 114 
 
 Amalfi, a copy of the civil law found there - - 180 
 
 Amerciaments, how fettled by Magna Charta - 346 
 
 Appeals, where properly to be brought - - 301 
 
 Appeal for murder - - - 186 
 
 Arabs, erect academies for the ftudy of their laws - 8 
 
 Armigeri - - 206 
 
 Arrefting by mittimus - - 369 
 
 perfons not authorifed by warrant - 370 
 
 Affemblies, general. The ihare they held in the government in the 
 
 13th century - - ^^i 
 
 manner of admitting members therein 34 
 
 crimes cognizable thereby - ibid. 
 
 Afleflbrs in Germany - 96 
 
 Affize, trial by - - 2jo 
 
 of novelle difleizin - - 291 
 
 writ of - - 292 
 
 Athenians, their multiplicity of laws - - 4 
 
 Ataulphus - .- - 45 
 
 Athol, Dukeof - - i93 
 
 Attainder of felony - - 348 
 
 Attornment - . - - 119 
 
 Attorney-General - - - 318 
 
 B 
 
 B 
 
 AIL, fuperior power in the Court of King's Bench to take it 301 
 
 Baron of England, its original import - 187 
 
 quantum of revenue to qualify for attendance in parliament 188 
 
 Barons, oppofe the arbitrary meafures of King John - 339 
 
 of the Exchequer - - 318 
 
 Barones majores & minores - - 189 
 
 their rules of defcent - 193 
 
 minores privileges obtained by writ of eledion to parliament 1 92 
 
 Baronets, by whom firll created - - 209 
 
 Baromes by tenure - - 188 
 
 — long fince worn out among the laity 190 
 
 Barriflers at law - - - 313 
 
 Baftards - - 23 
 
 Becket, Thomas a - - 322, S'zy 
 
 Beauchamp, John, the firfl peer created by patent - 193 
 
 Benefices, or grants of land, wherefore fo called - 49 
 
 Benefices
 
 N D E X. 393 
 
 Pase. 
 
 o 
 
 Benefices, improper - - - 68 
 
 incorporeal - - 78 
 
 Beneficiary law - - - 23 
 
 eftates - - 113 
 
 Berytus, its famous academy - - 7 
 
 Bifhops, how chofen in the infancy of Chriftanity - 78 
 
 their ancient revenue - - 80 
 
 allocate the tithes in aid of the glebe - 81 
 
 retain the general cure of fouls - - ibid. 
 
 their feats in parliament, whence derived - 202, 203 
 
 Bilhop's court, originally joined to the Sheriff's - 247 
 
 Bifhops of Rome, their artful conduft to obtain the fupremacy 83 
 
 difmember bifhoprics - - ibid. 
 
 attempt to over-rule general councils - ibid. 
 
 praftile upon fovereign Princes - - 83 
 
 encourages of the civil law - - 181 
 
 — ^— — — — ^— their bull ineffeftual to filence the people of England, 
 
 when incenfed againfl Richard II. - 182,183 
 
 I afTume a difpenfing power . 186 
 
 their views refpefting England - 272 
 
 lord it over the Kings of Europe - 320 
 
 compel King John to furrender his crown 338 
 
 difpofe of the Englifh benefices by proviforfliip 344 
 
 Blackftone (Judge) - - 8,9 
 Bodies corporate - - -211 
 
 Brafton - - 130, 180, 22^, 293, 299, 314, 349 
 
 Brevia teflata - - - 60 
 
 Britain, Great. Whence its multiplied laws - - 5) 6 
 
 its peculiar advantages - -6 
 
 Britton - - - 180, 349 
 
 Brothers, not the heirs one of another - 140 
 
 Brunchild - - - - m 
 Burghers. Sec Citizens 
 
 Burgundians - - 4, 45, 46 
 
 Butlerage of England - - - 72 
 
 Bye-Laws - - - 211 
 
 Ddd CANON
 
 394 INDEX. 
 
 Page. 
 
 CANON law - - 13, 180, 203, 345 
 
 Capias, writ of - - 357 
 
 • for a fine - - 379 
 
 Capitula itineris - - - 298 
 
 Caftleguard - - - 50 
 
 Caftration - - - 252 
 
 Celtiberians. See Spaniards - - 22 
 
 Cenfus, a tax among the Franks - - 47 
 
 Cliancellor of England - - - 249 
 
 his ancient office - 305 
 
 derivation of his name - il/iJ. 
 
 of the Exchequer - ' - - 318 
 
 Chancery, court of - - 249, 300 
 
 ordinary ^- - 304, 310 
 
 extraordinary - - 364, t,66 
 
 Chapters, their origin - - - 80 
 Charles I. his claim of fliip-money - - 172 
 his conduft to the Earl of Briftol - - 190 
 
 ■ raifes money by Knights fines - 208 
 
 Charles II. purchafes the right of prifage of wines - 73' 
 
 aboliflies the feudal fydem - - 68, 134, 150 
 
 Charles the Bald - - - 114 
 
 Charlemagne - - - 80, 88 
 
 Charters - - - 211, 281 
 
 Church benefices ftiled improper feuds - - 68 
 
 lands not fecured by living evidence - 60 
 
 fecured by brevia teftata - - ibid, 
 
 revenue of, how antiently diftributed - - 80 
 
 Churchmen. See Clergy 
 
 Circuits eflabhfhed by Henry II. - - 294, 298 
 
 Citizens of London, anciently ftiled Barons - - 187 
 
 — — their original ftate - - - 209 
 
 antiently no part of the body politic - 210 
 
 admitted to vote along with Knights of the 
 
 Shires - - - 211 
 
 Civil law - - - 12, 13, 170 
 
 attempted to be introduced by the Princes of Europe 1 80 
 
 and by the Pope - - 181 
 
 became blended with the feudal - ibid.' 
 
 deftructive of freedom ... ibid. 
 
 oppofed by the Englilh parliament - - ibid. 
 
 Civil
 
 INDEX. 395 
 
 Page. 
 
 Civil law, openly countenanced by Richard II. - 1 8 1 
 
 obligations of a freeman to his patron thereby - 234 
 
 Claudian - - - - 46 
 
 Clergy, their wealth and importance - - 52 
 
 — — - — their practice of redeeming flaves - - 53 
 
 diverted of their pofleflions by Martel - - 54 
 
 fupported by the voluntary contributions of the people 78 
 
 their temporalities how derived - - 80 
 
 feudal tenants to the bifliop of their precind - 8 1 
 
 rendered ferviceable to the views of the Pope - 83 
 
 SECULAR, deprcifed under the Norman Kings - 90 
 
 the only lawyers in the reign of William II. - 91, 273 
 
 baniflied the temporal courts - - 91 
 
 cehbacyofthe - - - 283 
 
 the only people that could read and writ - 273 
 
 DIGNIFIED, their fliare in the legiflation - 2,67 
 
 IN France, make one diftindt ftate ~ - 202 
 
 Clothair II. - - - m 
 
 Clovis - ... 28, 48, 51, 52 
 
 Coats of arms - - - 206 
 
 became hereditary - - 290 
 
 Coiff of a Serjeant at law, conjefture about its origin - 274 
 
 Cojudge - - - - 96 
 Coke, Lord 16, 72, 162, 190, 198, 217, 224, 233, 254, 257, 303, 
 
 340, 35o> 353^ 356, 365. 3^7^ 37^ 373^ 375» 37^^^ 
 
 378, 380, 384, 388 
 Collation to a living - - - 82 
 
 Colleges - - - 86 
 
 Commons, houfe of - - - 206, 319 
 
 — its prefent conftitution compared with the feudal 
 
 principles - - -211 
 
 — its advance in privilege and powers - 214 
 
 whether mofl inclined to popular or oligarchical 
 
 influence - - 214, 217 
 
 Common Pleas, court of - - 300, 312, 316 
 
 Commentaries on the Laws, how multiplied by the Romans at the time 
 
 of Juftinian - - - 4 
 
 Commoner, his right of excepting againft the Sheriffs return of a Jury 204 
 Commerce, its effcQ; in multiplying laws - - 3 
 
 _ FOREIGN - - - 153 
 
 _ regarded by Magna Charta - - 380 
 
 Commune Concilium, further the defigns of William the Conqueror 264 
 
 Commiffioners of Cuftoms - - '3^7 
 
 D d d 2 Commiffioners
 
 396 INDEX. 
 
 Page. 
 
 CommifTioners of Exclfe - - ' 317 
 
 Appeals - - ibid. 
 
 Companions of the King or Prince - - 30 
 
 Conititutions of Clarendon - - 2.03, 275, 325 
 
 Contumier of Normandy - - - 271 
 
 Convocation of the Clergy - - 276 
 
 Conrad Emperor - - - 23 
 
 Condable, High, of England - - 73 
 
 Conftantine Porphyrogenatus - - 22, 45 
 
 Convivse Regis, a title on whom conferred - - 51 
 
 Copyhold tenants - - 324 
 
 Corvinus - - - 77 
 
 Cork," kingdom of - - 201 
 Covaflals. See Pares curias 
 
 Comicils general - - - 83 
 
 Counts, their origin and employments - - 5c 
 
 obtain grants of eflates 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 - - - 1 56 
 
 — of the conftable - - 181 
 
 admiralty - ■- - ibid. 
 
 Tourn - - 247, 271 
 
 Sheriffs. See Sheriff 
 
 of the hundred . - w 247 
 
 Leet - - - 247, 271 
 
 Baron - - - 271 
 
 Courts of Weftminfler-Hall - - - 10 
 
 — . Ecclefiaflical and temporal, their rights fettled - 275 
 
 —Martial - - - 363 
 
 , of Record, what are fuch - - 271 
 
 not of Record, what aire fuch - ibid. 
 
 Craig - - - - 25 
 
 Cranmer - - - 92 
 
 Creation money - - - 199 
 
 Crimes public, what among the Franks - - 40 
 
 how puniihed - - 252 
 
 Crofs, fign of it ufed in the firft written inftruments - 60 
 
 Curia Pvegis, judges in that court - - 249 
 
 Curia
 
 INDEX. 397 
 
 Pngc. 
 
 Curia Regis, how appointed by William the Conqueror - 270 
 
 the foundation of the Lords judieature in parliament 249 
 
 their pleadings entered in the Norman language 270 
 
 divided into four courts - - 300 
 
 Cuftoms paid on merchandize - - 173 
 LOCAL ; origin of feveral - - 297, 373 
 
 D 
 
 DANE GELT - - 285 
 
 Decretals of the Pope - - 320, 321 
 
 Deed poll - ... 100 
 
 Demefnes - - - 50 
 
 Demurrer, what - - 306 
 
 Derby, Earl of - - -193 
 
 Defcents by feudal law, to whom - - - 135 
 
 law of - - - - 141 
 
 Diocefes, how fubdivided into pariflies - 79 
 
 Difpenfmg power, a prerogative claimed by the Stuarts - 186 
 
 • — ■ diflinfl: from a power of pardoning - ibid. 
 
 oppofed by the early lawyers 3 1 4 
 
 Dlftrefs, what - - - 6^, 100, loi 
 
 introduced inftead of aftual forfeiture - 97 
 
 feverity of Englilh Lords in levying it retrained - 101 
 
 how and where to be levied - - 102 
 
 reftriftions in levying it - ibid. 
 
 Duelling, the pradice whence derived - "39 
 
 Dukes - - - 187 
 
 Dyer's reports - - - 39 
 
 ARLDOMS of England, quantum of Knight's fees afligned 
 thereto - - - 163 
 
 how antiently held - 197 
 
 wherein differing from Barons - ibid. 
 
 when created - - 198 
 
 Earls - - - 187 
 
 — their authority reftrided in the County court >- 198 
 
 Palatine ... 187 
 
 the firft created - - 199 
 
 Ecclefiaftical
 
 398 INDEX 
 
 Page. 
 Ecclefiafliical Courts - - - 271 
 
 how feparated from the temporal - ly^ 
 
 their right of recognizance of fuits for benefices 
 
 annulled by the temporal courts - 276 
 fcreen their members from the rigour of the 
 
 law - - 276, 322 
 
 their power of excommunication - 360 
 
 Edgar King, feverity of the law enafted by him for payment of tithes 90 
 
 divifion of the Sheriff 's and Bifliop's court in his reign 247 
 
 Edmundfbury, meeting of the Barons there - - 339 
 
 Edward 1. his difpute concerning grand ferjeanty grants - 70 
 
 gives in parliament a new confirmation of Magna Charta 71 
 
 renounces the taking of talliage - - ibid, 
 
 his aftion againfl: the Bifhop of Exeter refpeding homage 117 
 
 — — —— motives for his conduft - - 121 
 
 the Confessor, his bws - - 180 
 
 Egypt, antient method of ftudying the laws there - 7 
 
 tithes firft introduced there - - - 87 
 
 Elegit, writ of - - - 156 
 
 Elizabeth Queen, caufes her proclamation to carry the force of laws 184 
 
 — why fubmitted to by the people - ibid. 
 
 — her falfe policy in encouraging monopolies in trade 185 
 
 — difcontinued tlie granting of protections - 379 
 
 Emma Queen - - - 40 
 
 Enfranchifement, exprefs - - 234 
 
 implied - - - 235 
 
 England, how divided by the Saxons > - 245 
 
 divided into circuits by Henry II. - - 298 
 
 Efcheat - - - 98, 140 
 
 -of the King - - - 298, 382 
 
 Efcuage - - - 97, 289 
 
 Efquires, their rank - - - . 207 
 
 Eftates, allodial - -. 51, 52, 56, 106, 144, 254 
 
 of CONTINUANCE - - '57 
 
 ' TAIL - - - 99, 121, l6o 
 
 BENtFICIARY - - - II4 
 
 FEUDAL, not liable to the debts of the feudatory - 146 
 
 Ethclwolf, eflabliflies tithes by law in England - -go 
 
 Evidence, the kind admiffible among the Franks before the ufe of letters 60 
 
 Exchequer, court of - . - - 300, 313, 315 
 
 ordinary • - - 317 
 
 extraordinary - - ibid. 
 
 chamber - - - 318 
 
 Extent
 
 N D E X. 
 
 Extent - - - 
 
 Eyre^or circuit, omiffions of places in firft and fecond 
 
 399 
 
 Page. 
 298 
 
 FEALTY, the oath of 
 
 its obligations 
 
 why not required of the Lords 
 
 Fee fimple 
 
 tail 
 
 Females, their dowery among the Franks 
 
 the part they bore in the State 
 
 excluded from defcent by the feudal law 
 
 under what limitations admitted 
 
 Feud, whence adopted into common language 
 Feudal law. See Law 
 Feuds improper 
 
 advowfons 
 
 tithes 
 
 FEMIMINE 
 
 Feudum de cavena 
 — camera 
 
 foldatas 
 
 habitationis 
 
 guardiae 
 
 gaftaldias 
 
 mercedis 
 
 Fiefs 
 
 . feminine 
 
 Fine levied on entailed lands 
 
 Fines honorary ... 
 
 eftablilhed as a fruit of tenure 
 
 abolifhed at the refloration 
 
 for licence to plead in the King's court 
 
 Firft fruits and tenths 
 
 Ficlions of law 
 
 Fifh weires 
 
 Fleta 
 
 Foreft laws, whence derived 
 
 Formedon, writ of three kinds 
 
 Fortefcue 
 
 Frank pledge - 
 
 61 
 
 ibid. 
 64 
 99 
 
 99, 121 
 
 35 
 ibid. 
 
 ibid. 
 118 
 
 68, &c. 
 
 78 
 
 86 
 
 142 
 
 . 75 
 ibid. 
 
 . 77 
 ibid. 
 
 ibid. 
 
 78 
 
 ibid. 
 
 21, 36, 55 
 163 
 
 167 
 
 107 
 
 118 
 
 ibid. 
 
 250 
 
 84 
 
 315 
 
 351 
 
 349 
 
 37 
 161 
 
 180, 234 
 
 247 
 
 Franks 
 
 304, 
 180,
 
 400 INDEX. 
 
 Page. 
 
 Franks - 4, ^3» ^4, 3^> :->5-> 37» 3^' 4i. 42, 46, 48, 55 
 
 Freemen, among the Germans, the nature of the allegiance required 
 
 from them to their Princes - - 31 
 
 Free alms ... . 202 
 
 Furnivall, William - - - 72 
 
 G 
 
 GA L L A W A Y, county palatine of - - 20 t" 
 
 Gafcoigne, Judge - - - 368 
 
 Gavcl-kind - - - 135, 255 
 
 Gauls - - - - 22, 51, II I 
 
 Gentry, who fo called - - - 206 
 
 their peculiar privileges - - ibid. 
 
 caufe of their military difpofition fubfiding "^ - 207 
 
 Gentilis homo, its ancient and modern acceptation - 52 
 
 GeoftVy of Monmouth - - - 22 
 
 Germans, their method of deciding difputes by fmgle combat - 39 
 
 Murder not puniflied with death among them - 41 
 
 Germany, its condition at the time of the Franks - 32 
 
 its ancient conftitution nearly refembling that of England 33 
 
 Gilbert Judge, his opinion concerning the divifion of courts - 309 
 
 Glanville - - 109, 130, 148, 180, 288, 290, 330 
 
 Glebe-land, how obtained by the clergy - - - 80 
 
 Gold and filver, their ufe imknown to the Franks - 35 
 
 Goths - ; - 4, 43, 44, 46, 47 
 
 Grand affize, for what purpofe invented - - 40 
 
 Grandfons ... 108, 139, 140 
 
 Grants, the firft feudal ones - - ■ - ^q 
 
 . temporary - - - 56 
 
 . beneficiary - - - iliid. 
 
 . FOR LIFE, how obtained ' " 57 
 
 . improper - - - 68 
 
 — to women - - . ^4 
 
 — of things not corporeal - - Hk^/. 
 
 ■ to indefinite generations - • - - 112 
 
 laws tending to eftablifli them - 1 14 
 
 . 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 
 Guardianfhip. See Wardfliip 
 
 Habeas
 
 N D E X. 401 
 
 H 
 
 Page. 
 
 HABEAS Corpus - - 30'' 37° 
 
 Hale, Sir Matthew - - 14,213,296 
 
 Heptarchy - - • 252 
 
 Heriots - - - 254, 257 
 
 Hearth-money - - ' ^34 
 
 Heir in tail - - - 160 
 
 Heirs of landed inheritance - - - 136 
 
 Hengift ... - 179 
 
 Henry I. his charter in favour of the Saxon laws - - 281 
 
 ■ fubdues Normandy - - 2S4 
 
 -II. payment in kind commuted into money- - 69 
 
 — his quarrel with Pope Alexander II. - - 322 
 
 his wholefome regulations - - 286, 287 
 
 -III. introduces a difpenfmg power into England - 186, 344 
 
 — confequences of his negleding to fummon the Barones 
 
 majores - - - 189 
 
 his illegal patent oppofed by Roger de Thurkeby - 186 
 
 his oppreflions - - - 344 
 
 . VI. his miftaken conduft with regard to Ireland - 220 
 
 . ^VIII. his danger upon throwing off the Pope's fupremacy 92 
 
 .. fupprefl'cs the monafleries - - ibid. 
 
 meets a court of Ward - - 133 
 
 obtains from parliament a fanftion for his proclamations 
 
 to bear the force of laws - - 184 
 
 Hereford, Earl of, his difpute with Edward I. - - 70 
 
 Homage - - - - - 61 
 
 i when inftituted, and how performed - - 116 
 
 fealty - - - 117 
 
 — warranty, a confequence of homage ^ - 119 
 
 aunceftrel, the import of this term - ibid. 
 
 duties arifing from homage to lord and vaffal - - 118 
 
 Honorius - - - "44 
 
 Hugh Capet - - - - 23, 137 
 
 Hunns - - - - 43> 44 
 
 J 
 
 A M E s I. his arbitrary claims - - 1 83 
 
 miftaken policy in encreafing monopolies - 185 
 
 — inftitutes a new title of honour - . 209 
 
 E e e Independence
 
 402 
 
 INDEX. 
 
 Page' 
 Independence of the King, the idea thereof entertained by the early 
 
 Franks - - - 31 
 
 Inhabitants of Europe, their propenfity to the making of new laws 5 
 
 Innocent III. ... ^34 
 
 Inns of Court, wherefore founded - - 6 
 
 their ancient ufeiuhiefs - - ibkl. 
 
 .^ — their prefent ftate - - - 7 
 
 -Inllitution to a living - - - 82 
 
 Interdid laid on England by Innocent III. - - 334 
 
 Inveftiture proper - - - "5^ 
 
 improper - - - 59 
 
 Ils nature fixes the hne of duty - - 69 
 
 John, King, mutual hatred between him and his nobles - no 
 his arbitrary government - - 154, 352 
 
 claims a right of taxation - - 177 
 
 omits fummoning fome of the Barones majores - 189 
 
 deprives the earls of the thirds of the county profits -^ 199 
 
 fupplants his nephew Arthur - - 331 
 
 Jornandes - - ' 2>7 
 
 Ireland, peerages there recovered by petition - • 195 
 
 erefted into palatinates - - 200 
 
 form of trial of noblemen in that kingdom - 204 
 
 the ftatutes of Edward II. aboliflied - - 209 
 
 ftate oflegiflation there - - 218,. 222 
 
 influence of Poyning's law on its government - 221 
 
 Iflue joined - - - 292 
 
 Italian priefts, the chief pofTeflbrs of benefices in England in John's 
 
 reign - - - - 342 
 
 Judges itinerant - - - 294 
 
 their jurifdiftion - - - 298 
 
 of aflize - - - 366 
 
 judgment, in what inftances obtained without the intervention 
 
 of juries - - - 354 
 
 Juries, trial by - - - 251 
 
 — -their original power - - - 247 
 
 ju'-lg^^ °f '''^^^' '^"'■^ f^"-^ " " 294, 356 
 
 Juftice, method of adminiftering it among the Salic Franks - 37 
 
 Juftices of Nifi Prius - - - 248, 299 
 
 errant - - - ibid. 
 
 of aflize - - - ibid. 
 
 of oyer and terminer " . " " 299 
 
 of gaol delivery - . - 248 
 
 of Quarter Seflions - . 248,366 
 
 in Eyre - - 294 
 
 Jufticiary
 
 INDEX. 403 
 
 Page. 
 
 Jufticiary of England - - 248, 300 
 dlfcontinued by Edward I. - - - 304 
 
 K 
 
 K 
 
 I L D A R E, county palatine of - 201 
 
 King's Bench, court of - - - 3*^° 
 
 its power in taking bail - - 301 
 
 fuits cognizable therein 300, 301, 306 
 
 its peculiar diftindions - 312, 314 
 
 King never dies, origin of that maxim - 139 
 Kings elective among the Franks ^ - 28, 29 
 
 their power - - - 4^? 49 
 
 Norman, the arms borne by them - - 207 
 
 Kings of England, their power anciently limited - - 71 
 
 their right of fervice from their vaffals - ibid. 
 
 — poffeffed of donatives - - 83 
 
 ■ their ecclefialtical jurifdidion - - 84 
 
 their title to fupreme ordinary, whence derived ibid. 
 
 — -^ their power by the feudal law - 170 
 
 — - executive branch of government belongs to tliem 1 7 1 
 
 __ their revenue - - - 172 
 
 ■ — their fupplies for foreign wars 173 
 
 . their authority, whence derived - 175 
 
 . their proclamations, how far legal - 183 
 
 -_ ^ their diipenfmg power - - 186 
 
 their demefnes unalienable - - 189 
 
 _ their prerogative of fummoning the lefler Barons 
 
 to parliament - - 190 
 
 . • — their right of raifmg peers to a higher rank 156 
 
 — their power of fettling precedency - ibid. 
 
 — not one of the three eltates, but the head of all 202 
 
 their right of appointing peers to try an accufed 
 
 nobleman - - 204 
 
 — ancient concern in making laws - 217 
 
 their prefent influence in framing laws - 218 
 
 their flyle when fpeaking of themfelves - 265 
 
 . have no power to create new criminal courts 377 
 
 Kingfale, Lord - - - 196 
 
 .E e e 2 Knights,
 
 404 
 
 N D E X. 
 
 Page. 
 Knights, origin of that dignity - - 34 
 their advantages over the Lords with regard to feudal pay- 
 ments - - - 109 
 
 fervice - - - 129 
 
 when abolifhed - - 150 
 
 fees - - - - 188 
 
 their privileges by writ of eleftion to parliament - 192 
 
 their rank . _ . 206 
 
 their ancient dignity - - 207 
 
 Banneret - - > 208 
 
 LAITY, when excluded from the eleftion of the clergy - 78 
 
 Lands, their property how far alienable among the Jews 3 
 
 Lands, diftributed to the Chriftians by the General Aflembly - 34 
 
 interefl of Lord and vaffal 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 Englilli conflitution - 15 
 
 method of teaching them - - 17 
 
 their origin and progrefs - « ibid. 
 
 fucceed the Roman imperial law - - 19 
 
 various opinions on their origin • ibid. 
 
 not derived from Roman laws and cuftoms - ax 
 
 firft reduced into writing by the Lombards 23 
 
 their tendency to cherilh the national liberties of mankind 27 
 
 in England, permit no Lord to be challenged by the 
 
 fuitors - - - 96 
 
 allow a power of appeal to the King's court - ibid. 
 
 tlieir doftrine of remainder - - ibid. 
 
 rcfpecting warranty - - 119 
 
 wardfliip - - 123, 124 
 
 their obligations on minors - - 132 
 
 Laws POSITIVE, or general cuftoms, always to be found in communities 
 
 however barbarous - - i 
 
 Laws pofitive, a knowledge of them a means of procuring refped and 
 
 influence - - 2 
 
 of things and perfons, which to be firft treated on 14 
 
 few and intelligible in fmall focieties - ibid. 
 
 when ncceffarily numerous and extenfive - ibid. 
 
 Laws
 
 INDEX, 405 
 
 Page. 
 
 l-~a\vs Positive, inconveniencies attending their multiplicity - 3 
 
 - — . of what kind in Rome at different periods - 4 
 
 their great increafe in Europe fince the 14th century 5 
 
 of Normandy, refpefting the marriage ot females in wardihip 129 
 
 of England, advantages attending a knowledge of them 8 
 
 what required by them in transferring poffefTions 74 
 
 its maxim refpeding the devifmg of lands by will 145 
 
 how enacted - - 217 
 
 their ancient method of paffmg - ibid. 
 
 their tendency to promote liberty - 234 
 
 akeiations introduced in them by Henry II. 289 
 
 Lawyers - - - 3 
 
 Laymen, how far exercifmg ccclefiaftical difcipline - 48 
 
 — tithes granted to them in fee - 8g 
 
 by what means poffefled of lands difcharged of tithes 92 
 
 Legates of Rome - - ■ ^3 
 
 Leinfler, county palatine of - - 201 
 
 Letters Patent for creating of Peers - 190 
 
 when took place - - - 193 
 
 grants by them, how forfeited - 194, 1 9 j 
 
 anciently called Chartae Regis - - -505 
 
 repealable by the Lord Chancellor . ibid. 
 
 Lex Terras, what - - 3^^ 
 
 Licences to marry - - - 10 j 
 
 Liberty of the fubjeft, how advanced - - 313 
 
 ■ how afccrtained - - 2)2)^ 
 
 Lyttleton _ - 14, 15, 61, 73, 116, 124, 225, 229 
 Livery and feizen - - - 58? 5Q 
 Locke, Mr - - - 12 
 Longchamp Archbifliop of Canterbury - - ^30 
 Lords feudal, their power over minors refpefting marriage - 129 
 refpeft paid by them to the perfon of their King - 171 
 
 their power over their villeins - - 224, 232 
 
 of parliament in England, their rank - - 187 
 
 created by writ, or letters patent - 190 
 
 privilege to their eldefl fons - 192 
 
 their titles extinft on furrender - 195 
 
 their quality as noblemen - - 187 
 
 fpiritual - . - 202 
 lay, their form of trial - 204 
 
 Lombards - - . - 4 
 
 Lupus, Hugh . - . - 199 
 
 Lycurgus - . _ . , 
 
 Markham,
 
 4o6 INDEX. 
 
 M 
 
 Page.. 
 
 MARKHAM, Sir John - - 368 
 
 Maud - - - 282, 284 
 
 Magna Chaita fpecifies the quantum to be paid in relief 1 10, 290 
 
 mifconftrued in the right of Lords to the difpofal of 
 
 minor heirs in marriage - - 130 
 
 reft rains the ahenation of lands - - 150. 
 
 its defigns - - -154 
 
 aboliflies the right of talliage - 154, 171, 175 
 
 fummons to parliament fettled thereby - 189 
 
 its regulations of fines in the King's court - 250 
 
 — abolilhes the removal of the courts of juftice - 312 
 
 commentai-y thereon - 343 to the end 
 
 Manors how diftributed by William the Conqueror to his followers 163 
 
 Marriages - - - ^33 
 
 Marflial, Earl, of England - - - 72 
 Maritime court. See Admiralty 
 
 Mafcon, council of - - - 88 
 
 Mafter of the Rolls - - - 310 
 
 Mafters in Chancery .... 309 
 
 — '■ empowered to frame new writs - ibid. 
 
 Maxim of Law - - - 306, 341 
 
 Meafures and weights - - 35 !• 
 
 Meath, county palatine of - - - 2or 
 
 Merchant ftranger - - - 174, 380 
 
 . denizen - - - 174 
 
 ■ enemies - - - 381 
 
 Military fyftem (Old) its influence on law - - 4 
 
 power, danger of its fubverting the civil and legal authorities 95 
 
 benefices, their rife among the Saxons - - 261 
 
 tenures, their fervice lightened by Henry IL . - 28S 
 
 — aboliflied by Charles IL - - 150 
 
 courts - - - 360 
 
 Minor heirs male, when deemed of age - - 123 
 
 — in chivalry, when deemed of age - 1 24 
 
 in focage, when deemed of age - - " 128 
 
 female, in chivalry, when deemed of age - i 24 
 
 their marriages, how controuled by their Lords 1 29 
 
 ■ when releafed from wardlhip - - 132 
 
 Mittimus, elfcntials to render it legal - - 369 
 
 Modus,
 
 INDEX. 407 
 
 Page. 
 
 Modus, payment of tithes by a - - - 91 
 
 Monarchy of France - - - ^^, 56 
 
 of England, its nature afccrtained by the feudal laws 16 
 
 how changed, by cRates becoming hereditary 170 
 
 Monafteries, the firmefl fupport of papal power - - 83, 88 
 
 tithes improperly applied to their ufe - - 89 
 
 raifed on the fuppreHion of the fecular clergy - 91 
 
 MoJiey, its prefent decrcafed value - - - 69 
 Monopolies - - - - - 185 
 Montefquieu - - 2, 28, 31, 38, 53, 178 
 Mofes - - - - - 35 7 
 Mowbray, Lord - - - - 192 
 Murder, why not punifhed with death among the ancient Germans 41 
 how punifhed by the Saxons - - - 252 
 
 N 
 
 NEIF - - - 227, 230, 232 
 
 Nifi Prius, Juftices of - - - 248 
 
 Norfolk, Earl of, his difpute with Edward I. - - 70 
 
 Northern nations become formidable to the Roman empire - 43 
 
 Notorieties of a hdi, how regarded in feudal grants - 60 
 
 o 
 
 o 
 
 A T H of fealty, from whence to be traced - 31 
 
 _ — taken by the Saxons - - 259 
 
 Officers of Courts, where to be fued - - 318 
 
 Officina brevium - - - , - 306 
 
 Oleron, laws of - - - - 33^ 
 
 Oligarchy introduced into England - - 182 
 
 Ordeal trial among the Franks - - - 37 
 
 . continued after the Norman conquefl; - - 40 
 
 Ormond, Earl of - - - 201 
 
 Duke of - - - 133 
 
 Overbury, Sir Thomas - - - 374 
 Outlawry - - - - 356 
 proclamation to be made by ftatute 31ft Elizabeth - 358 
 
 PAIS
 
 4o8 INDEX 
 
 Page. 
 
 PAIS des coutumes - - - 5* 
 de loi ecrite - - - ibid.. 
 
 Pares curise - - - 58, 59, 96, 116, 119 
 
 Paris, Matthew .... 186, 18S 
 
 Parliament of England, its ancient conftitution 187, 193, 202, 213 
 
 its judicature - - 319 
 
 Patron, lay, his intereft in prefentative advowfons - 81 
 
 ————— inverted with donatives by grants from the Pope 83 
 
 poffefled a power of deprivation - - 85 
 
 Peer. See Lords of Parliament 
 
 Peerefs, who are her peers - _ - 2,Si. 
 
 Pelagius . . . _ . 143 
 
 Pcmbridge, Sir Richard , . _ . 373 
 
 Pepin - . - « - 113 
 
 Perfian Empire - - - - - 43 
 
 Pembroke, Earl of - • - - 343 
 
 Philip of France . . . ^ - 232, 338 
 
 Plantagenets - - - » 209 
 
 Pleas of the crown ... - - 301 
 
 Pole, Michael de la - - - - 193 
 Popes. See Bifhops of Rome 
 
 Poffe of the county - - - - 292 
 
 Poffellions, corporeal - - - 74 
 
 incorporeal - - - 74, 78, 87, 95, 
 
 Pounds overt and covert - - - 103 
 
 Precedence of Peers, how fettled by parliament - - 19$ 
 
 Primogeniture - - - -- 137 
 
 Prifage of wines - -■ "73 
 
 Privileges of the fubjeft, whence derived - * 16 
 
 of the diflinft parts of the legiflature » - 217 
 
 Privileged perfons, how to be fued - - - 307 
 
 Proclamations royal, when and how far legal - - 183 
 
 conduft of Henry VIII. relative to them - 184 
 
 ————— their force in the reign of Elizabeth - ibid. 
 
 baneful confequences attending the arbitrary ufe of them 185 
 
 Profeffors of Laws - - - 13 
 
 Property, its divifion - - '35 
 
 of lands, where lodged by the Franks - - ibid. 
 
 Proviforfhip - » - 344 
 
 Provofts • - - 210 
 
 Punifhments
 
 INDEX. 409 
 
 Page. 
 
 Punlfliments inflided by the ancient courts of law, for public and 
 
 private wrongs - - 251 
 
 — for falfe imprifonment - - 370 
 
 Purbeck, Lord - - - 1 94 
 
 Purchafes new, how defcendible - - - 144 
 
 Purveyance for the King - - 5.56, 257 
 
 Q 
 
 U O Warranto, writ of - - 301 
 
 R 
 
 RACHAT, or Repurchafe - - no 
 
 Raleigh, Sir Walter - • - 376 
 
 Ranks of the people in the Saxon times - ' "^53 
 
 Ravilhment of wards - - - 132 
 
 Retford, matter of - - 306 
 
 Records of France, loft at the battle of Poiftiers - - 312 
 
 Recognizance - - - 155, 308 
 Reftorial tithes. See Tithes 
 
 Regifler of writs - - 309 
 
 Refuting the fief - - - 145 
 
 Reliefs or fines - - - 107 
 
 1 wherein burdenfome to the tenant - 109 
 
 ■ ■ altered by Henry II. - - . 290 
 
 ' ■ ■ fixed by Magna Charta - - 110 
 
 . and heriots, their difference - 257 
 
 Remainder derived from a reverfion - - - 96 
 
 Rent charges - - "99 
 
 Replevin - - - 104 
 
 Reverfion, right of, in land - - - 96 
 
 featly and fervice incidental thereto - '97 
 
 on contingency - - ibid. 
 
 Richard I. - - - 329, 332 
 
 Richard II. - - 181, 183 
 
 Right of entry for poffeffion - - - 59, 6^ 
 
 aftion - - - ibid. 
 
 Rome, its famous academies - - "7 
 
 — — taken by the Goths - - - 45 
 
 Roman imperial law - - - 19 
 
 F f f Roman
 
 4IO INDEX. 
 
 Page. 
 Roman empire - --42 
 
 emperors - - - .186= 
 
 ■ eflates - - -■ 51- 
 
 patron and client - - - 19, 20 
 
 Romans, their policy refpefling conquered nations - - 22 
 
 become focage tenants to the church - - 54 
 
 their condition under the Franks - lit 
 
 s 
 
 A L I C Law - - - 52 
 
 Sergeant}', grand _ - . 70 
 
 — various kinds - - - 72 
 
 the rank capable of performing it - ibid. 
 
 • for what purpofes granted - ibid. 
 
 butlerage held thereby in the family of Ormond jt^ 
 
 -^————^^ PETTY - - - ibid. 
 
 Satisfadion for petty crimes, how regulated by the Franks - 41 
 
 Saxons, the nature of their primitive laws - - 4 
 
 their government in England, how far feudal 33, 212, 243 
 
 admit the ordeal trial in determining caufes - - 40 
 
 the authority of their Kings, whence derived - 179, 180 
 
 their courts of law - - 246, 250 
 
 method of trial therein - - 250, 251 
 
 punifliments inflided - - 252 
 
 nature of their tenures - - 254, 265 
 
 Scire facias, writ of - - - - 219, 305 
 
 Scotland, method of fludying the law there - - - 18 
 
 — — — its parliament not divided into two houfes - 202 
 
 Seal, ufed in the firft written inftruraents - - 60 
 Sealing of inftruments, why more ftriftly authenticating thcra than 
 
 figning - - 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 feck by flatute Edward I. - ' ibid. 
 
 Sharrburn, Edwin, his lands rcftorcd by William the Conqueror 264 
 
 Sheriff's, their power in making replevins - - 104 
 
 — — ^-^— method of proceeding thereon - - ibid. 
 
 appointed to reftrain the power of the Earls - - 199 
 
 nature of their court - - - 246 
 
 Sheriffs,
 
 INDEX. 411 
 
 Page. 
 
 Sheriffs, nature of their court altered by William the Conqueror 272 
 
 their ignorance of law - - . <2,g6 
 
 Socage tenures, their increafed value - - 70 
 
 Socage tenants - - - 47, 224, 289 
 
 nature of the grants to them - ' 50 
 
 fubjefl: to diflrefs inftead of forfeiture ' " 97 
 
 — — relief paid by them to their lords - no 
 
 lands granted for life - ' ' 57 
 
 free and common - - 7a 
 
 petty fergeanty - - "73 
 
 ■ its derivation - - - 69 
 
 I 
 
 Society political, for what purpofes inftituted 
 
 the obligations which it lays on individuals - ibid. 
 
 Sons, the inheritance obtained by the eldefl - - 137 
 
 fucceeded equally to the father - . i ^ c 
 
 Spaniards - - - - 23 
 
 Special verdift - - - 3^6 
 
 Spehnan, Sir Henry - - - 13, 198, 258 
 
 Statute of Ethelwolf - - - 90 
 
 Alfred - - - il,ij, 
 
 Edgar _ - - . /^/^. 
 
 Edward I. quia emptores terrarum 99, 146, 14^^ 384 
 
 Edward I. de donis - . ,21 
 
 34th Edward I. - - - 2 1 r 
 
 ■ 1 7th Edward 11, de prerogativa regis - i ro 
 
 — for compounding a Knight's fee - 208 
 
 of Markbridge - 101, 103, 104, 345 
 
 refpefting knighthood conferred on minors - 124 
 
 of Merton - - . 131 
 
 Weftminfter I. - - 132, 368 
 
 Weftminfter II. - - 132, 159, 309 
 
 Mortmain - - -151 
 
 Merchant - - - 154 
 
 of writ of elegit - - . jrg 
 
 — Ehzabeth concerning bankrupts . 1^7 
 
 • concerning outlawry - - 3^3 
 
 ■ of William the Conqueror - . 265 
 
 8th Henry VI. chap. 5. - - 216 
 
 Poyning's - - . - 221 
 
 28th Henry VIII. fufpending Poyning's law - 222 
 
 Philip & Mary refpeding Ireland - - ibid. 
 
 ■ ancient and prefent, manner of ena^ing them - 217 
 
 F f f z Stewardfhip,
 
 412 
 
 I N D E X. 
 
 Stewardfliip, High, of England 
 Stephen, Khig 
 Stilicho 
 
 Strange, Baron of - 
 
 , Strongbow - - - 
 
 Stuart, houfe of - 
 Study of the law in Great Britain - ■ - — ^ 
 
 proper method - - 
 
 ■ caufes of difficulty therein - - 12, 
 
 reafons for beginning with the law of things inftead of 
 
 that of perfons 
 
 promoted by fixing the courts of juftice 
 
 Subftitute, -when allowed in aid from a vaffal 
 Subvafl'als ... 
 
 Succeflion royal by defcent - - 1 37, 
 
 collateral 
 
 to eftates, how rendered hereditary 
 
 of fons to the father 
 
 Page. 
 72 
 284 
 44, 45 
 
 201 
 - 6 
 
 14 
 
 313 
 64 
 
 138, ^39^ »43 
 
 139, 140 
 
 107, 110, 144 
 
 TACITUS - - c 
 
 Talliage 
 Taxes, how afleflfed 
 Tenants by fufferance 
 
 allodial 
 
 not allowed to alienate 
 
 copyhold, whence derived 
 
 when fubjeft to fines to their lord 
 
 their power of alienation, how reflrlQied 
 
 in frankalmoine or free alms 
 
 in capite 
 
 Toga virilis, what - - 
 
 Tenures feudal. See fiefs 
 
 fubject to fealty 
 
 military, how forfeited 
 
 when abolifhed 
 
 of the crown, obligations therefrom 
 
 28, 30, 31, 
 7i» ^53 
 
 hereditary 
 
 the nature of thofe now held 
 
 Saxon 
 
 32, 35, 3^ 
 
 . ^73' 174- 
 
 174 
 
 5° 
 I II 
 
 118 
 
 238 
 239 
 ibid. 
 267 
 
 383 
 34 
 
 57 
 
 65 
 
 68 
 
 - 187 
 
 65 
 69 
 
 254 
 Tenures
 
 N D E X. 
 
 413 
 
 Tenures in ancient demefne - - 224, 
 
 Temple, the, granted to the praditioners of the law 
 
 Thanes - - 
 
 Tipperary, its palatinate 
 
 Tithes introduced among the Franks by Charles Martel 
 
 when eflablifhed by law - - - 
 
 allocated from the bifliop to the parilh prieft 
 
 — — • an incorporeal benefice 
 
 originally what 
 
 firft introduced in Egypt 
 
 how diftributed there - - 
 
 how rendered compulfory 
 
 forgeries concerning them 
 
 divided into reftorial and vicarial 
 
 how paid in England during the heptarchy 
 
 when made payable to the parifh prieft 
 
 monaftery lands exempted from them 
 
 fettled by a modus - - - 
 
 Cranmer's intention concerning them 
 
 when eftalilhed in England on the footing they now Hand 
 
 their three kinds 
 
 Tranfportation ... 
 
 Traders and artizans admitted into the general aflembly of the people in 
 
 the thirteenth century 
 Treafurer of England 
 
 — — prefided in the Exchequer court 
 
 Trinoda neceflitas - - 
 
 Trial, methods of, among the old Germans 
 
 received into England 
 
 ■ by witnefs - . ,. 
 
 ordeal. See Ordeal 
 
 by negative proof 
 
 ■ ■ by battle 
 
 by grand affize 
 
 — — by juries - - -. 
 
 — — by depofition 
 
 Tudor, houfe of - ',- ' 
 
 
 Page. 
 
 241 
 
 , 288 
 
 ^53 
 
 313 
 
 ' 
 
 201 
 
 
 54 
 80 
 
 • 
 
 82 
 
 
 86 
 
 - 
 
 87 
 
 ibid. 
 
 
 ibid. 
 
 
 ibid. 
 
 
 88 
 
 ^ 
 
 89 
 ibid. 
 
 - 
 
 91 
 
 ibid. 
 
 
 ibid. 
 
 
 92 
 
 .. 
 
 93 
 ibid. 
 
 
 373 
 
 )ple i 
 
 n 
 
 - 
 
 34 
 
 
 249 
 
 - 
 
 300 
 
 2569 
 
 264 
 
 
 27 
 
 
 . 39 
 
 ibid. 
 
 
 40 
 
 -■ 
 
 250 
 
 
 ibid. 
 
 353> 
 1^3, 
 
 364 
 
 209 
 
 VAN-
 
 414 INDEX. 
 
 U 
 
 V 
 
 Page. 
 
 ANDALS - - . - 45 
 
 Vaflals (military) their connexions with their king 3 1 
 
 bound by an oath of fealty for life - • 5^ 
 
 immediate of the king, who - - ^5 
 
 now reprefented by the parliament 62 
 
 Villein-land - - - 226 
 
 Villein, a name given to flaves and fervants - - 47 
 
 nature of the grants made to them - 50 
 
 whom reduced to that ftate - - 174 
 
 feudal - - - 224, 225 
 
 their property - - - 226 
 
 when allowed to bring afliions againft their lord - 229 
 
 their right of purchafmg land - - 227 
 
 power of their lords over their property - - 228 
 
 caufes of their decreafe in England ^ - - 237 
 
 A'^illeinage, how deRroyed and fufpended - - 232 
 
 Ulfter, county palatine of - - - 20 1 
 
 Uncle, the heir of his grand nephew - - " ^39 
 
 Univerfity of Dubhn, its fituation for the ftudy of the law 12 
 
 . of Oxford - - - 10 
 
 Univerfities - - - 7, 11, 12 
 
 Voucher, appearance upon - - -6^ 
 
 Ufes, doftrine of - - - 151, 241 
 
 Ufury - - - 4 
 
 UfesandTrufl: - - - 388 
 
 w 
 
 WAGER of the law • - 40, 250, 352 
 Wages to members of parliament, how to be levied - 101 
 Wardfliip in chivalry, laws refpefting it - - 123, 126 
 in focage - - - 127 
 
 how differing fromwardfhip in chivalry 128 
 
 ■ obligations on the guardian - - ibid. 
 
 penalty on marriage without the confent of the lord 129 
 
 its evils - - " 133 
 
 not comprehended in Saxon tenures - 261 
 
 Warranty - - - 119 
 
 collateral ■• - - 164 
 
 I Warwick,
 
 N D E X. 
 
 415 
 
 Page. 
 Warwick, Earl of - - - i,. 
 
 Wade, committing of - - -66 
 
 William the Conqueror 137, 163, 212, 258, 262, 264, 266, 267, 268, 
 
 270. 273. 274 
 278 
 
 • Rufus 
 
 Wills and tcflaments, unknown to the Franks - . -j r 
 
 lands not devifable thereby - i^c 
 
 • — how rendered devifable - - 151,152 
 
 — required to be in writing - - 152 
 
 further requifitions - - Hficf, 
 
 Wiitlhire, John 
 
 1 »ft^»C«» 
 
 ■ copyholds not devifable thereby - 240 
 
 — " ' " - 72 
 
 Wittenagemots of the Saxons - - . 180, 212 
 
 Wright . - .265 
 
 Writ of chancei-y to recover by replevin - - 104 
 
 eledtion to parliament - . . ipo, 191 
 
 error - - . 200, 316 
 
 native habendo - - - 231 
 
 aflize - - . 2qq 
 
 — — — falfe iudgmeut - - - in-? 
 
 fciretacias - . . 219,305 
 
 original - - - 308 
 
 by a mailer in chancery - 009 
 
 de odio & atia - - . --j 
 
 of capias - - ' .,,._. 
 
 alias - -. . ;^/^. 
 
 — pluries . . . . y^y^^ 
 
 exigent - - - 358 
 
 ■ entry _ - _ - - 365 
 
 ■ de homine replegiando - - 371 
 
 I N I
 
 5 497 f
 
 This book is DUE on the last date stamped below 
 
 m s 1 ^ 
 
 SEP 2 3 1942 
 -MAY 14 1345 
 
 HOM 
 
 19 
 
 A947 
 
 mi ij J95Q 
 
 ill -^rpoptSEp" 
 UTERtlBRABY LpiB'^ 
 SEPl 5 1969 , 
 
 THREE WEEKS FROM OATtJjt^RKHtt 
 
 NON 
 
 RENEWABU^ OC^ 
 
 RtC 
 
 .Q tO-UWi 
 
 Form L-9 
 
 ^gffs^i^^
 
 D 000 730 361 3